Holding

The conviction cannot be sustained as the identification was unreliable; the appellant is entitled to the benefit of doubt.

Summary

The appellant Ravi and co-accused U were charged with murder under Sections 302, 307 and 120B IPC. The FIR was lodged against unknown persons and did not contain any identification marks. Police photographed the accused at the police station and the photographs were published in a local daily, naming them as the perpetrators. A test identification parade was conducted ten days later, during which some witnesses identified the appellant, but the identification was deemed vague and possibly influenced by the newspaper publication. The trial court convicted the appellant, the High Court upheld the conviction, but the Supreme Court held that the identification was unreliable, the delay in conducting the parade and the publication of photographs rendered the evidence inadmissible, and therefore the appellant was entitled to the benefit of doubt. The conviction was set aside and the appeal was allowed, ordering the appellant's release.

Issues considered

The reliability of identification of an accused when photographs are published in the press before a test identification parade.
Whether a test identification parade held after a significant delay can satisfy the requirements of Section 9 of the Evidence Act.
The effect of an FIR that does not name the accused on the admissibility of identification evidence.
Whether conviction can be sustained on vague identification without a proper test identification parade.

Legislation cited

Indian Evidence Act, 1872s. 9

Subjects

murderidentification paradetest identificationbenefit of doubtpublication of photographsevidenceIndian Evidence Actcriminal procedure

Judgment

A RAVI@ RAVICHANDRAN
v.
STA TE REP. BY INSPECTOR OF POLICE

APRIL 27, 2007

B [S.B. SINHA AND MARKANDEY KATJU, JJ.]

Penal Code, 1860-s. 302-Murder-Prosecution for-Publication of
the names and photographs of the accused and co-accused in daily newspaper '
as being responsible for the incident-Names of assailants not mentioned in
c FIR-Test Identification Parade ten days after the publication of
photographs-Photographs of accused taken to Police Station-Conviction
by courts below-On appeal, held: the accused was entitled for benefit of
doubt, in absence of his proper identification-A conviction can be arrived
at even in absence of Test Identification Parade, but the same cannot be
D based on vague identification-Evidence Act, 1872-s.9-Test Identification
Parade.

Appellant-accused along with co-accused 'U' and three other co-accused
were trial u/ss. 120-B, 302, 307, 147, 148 and 149 IPC for having caused
death of one person.
E
Prosecution case was that PW-1 (informant) saw the accused persons
assaulting the deceased and PW-3. FIR was lodged against unknown persons.
No mark of identification was also disclosed therein. At the time of preparation
I
.
of Inquest Report, informant disclosed the Investigating Officer that he had
noticed a scar on the right hand of one of the accused. Appellant-accused and il
F co-accused 'U' were arrested. Their photographs were published in local daily
with the caption that they were the persons accused of murder of the deceased. ..
Ten days thereafter the accused were put on Test Identification Parade. PW-
1 and PW-3 identified the appellant. PW-2 and 4 could not identify.

puring trial, publication of the photographs was proved by DW-1. Trial
G
Court held the appellant-accused guilty and convicted him under section 302
IPC. Co-accused 'U' was convicted under Section 307 IPC. Other three
accused were acquitted. High Court upheld the conviction. Hence, the present
appeal

H 766
RA VI@RAVICHANDRAN v. STATE REP. BY INSPECTOR OF POLICE 767
Allowing the appeal, the Court A
HELD: 1.1. The manner in which the occurrence took place as well as
the conduct of the prosecution witnesses do not lead to an inference that the
appellant has properly been identified. He is at least entitled to benefit of doubt.
[Para 25) [774-B)
B
1.2. The test identification parade was held after ten days. It is also not
in dispute that the photographs of the accused were taken at the police station.
.,. The Investigation Officer allowed them to be published. Photographs of the
.'
appellant and the co-accused 'U' were not only published, according to the
prosecution witnesses, they were shown to be accused in the aforementioned
crime. Some of them admittedly were aware of the said publication. The
purported test identification parade which was held ten days thereafter loses
c
all significance, in the aforementioned fact situation. (Para 16) [771-D-E]

1.3. It is no doubt true that the substantive evidence of identification of
an accused is the one made in the court. A judgment of conviction can be
arrived at even if no test identification parade has been held. But when a First D
Information Report has been lodged against unknown persons, a test
.. identification parade in terms of Section 9 of the Evidence Act, is held for the
~ purpose of testing the veracity of the witness in regard to his capability of
identifying persons who were unknown to him. The witnesses were not very
sure as to whether they had seen the appellant before. Had the accused been
known, their identity would have been disclosed in the First Information Report. E
PW-1 for the first time before the court stated that he had known the accused
from long before, but did not know their names earlier, although he came to
know of their names at a later point of time. (Para 17] [771-F-G)

... ~
1.4. In a case of this nature, it was incumbent upon the prosecution to
arrange a test identification parade. Such test identification parade was F
required to be held as early as possible so as to exclude the possibility of the
accused being identified either at the police station or at some other place by
the concerned witnesses or with reference to the photographs published in
the newspaper. A conviction should not be based on a vague identification.
(Para 18) [771-H; 772-A)
G
.... 1.5. Publication of the news item with photographs has clearly been
proved by DW-1. Prosecution witnesses accepted the said fact. It was, therefore,
wholly unnecessary for DW-1 to identify the ac.::used persons in dock. Not
only the authenticity of such publication has not been questioned by the
prosecution, DW-1 was not cross-examined at all. It was for the prosecution
as also the Presiding Officer of the court to verify the identification of the H

''
768 SUPREME COURT REPORTS [2007) 5 S.C.R.
k
A accused with reference to the said photographs. It was not necessary for the
appellant to prove the same. [Para 23) (773-G)

Suryamoorthi and Anr. v. Govindaswamy and Ors., (1989) 3 SCC 24
and Acharaparmbath Pradeepan and Anr. v. State ofKera/a, (2006) 13 SCALE
600, relied on.
B
2. The appellant herein was not named in the First Information Report.
The fact that he had some identification marks had not been disclosed in the
F.I.R. The purpose of preparing the inquest report is only to notice as to T ,,
whether the murder committed was homicidal in nature or not and not for
making a note in regard to identification marks of the accused.
c (Para 24 and 25) (773-H; 774-A-B)

CRIMINAL APPELLATE JURISDICTION · Criminal Appeal No. 636 of
2007.

From the Final Judgment and Order dated 03.02.2005 of the High Court
D of Judicature at Madras in Criminal Appeal No. 774of1996.

Venkateswara Rao Anumolu, Sateesh Galla, Prabhakar Parnam, K.K.S. ~

Krishnaraj and Satya Mitra Garg for the Appellant. .-

R. Sundaravaradan, V.G. Pragasam, S. Vallinayagam and S. Prabu
E Ramasubramanian for the Respondent.
The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.

F I. Accused No. 2 before the learned Trial Judge is the appellant before f >
t'>
us. He along y•ith one Udayakumar and three others were tried for commi~sion
of offences punishable under Section 120-B read with Sections 302, 307, 147,
148 and 149 of the Indian Penal Code.

2. The prosecution case shortly stated was as under :
G Liaqut Ali (PW-I\ a school teacher, was a resident of 6th street in TSR )'
Layout in the town of Tirupur. On 09.0.8.1993, at about 05.30 a.m., he was
going to a mosque for offering the morning prayers. He was returning back
to his house accompanied by one Rasheed (PW-2) from the mosque. John
Basha-(deceased) and Usman Ali (PW-3, the injured), were walking ahead of
H them. Saleem (PW-4) and one Mubarak were behind them.
RA Vl@RAVICHANDRAN v. STATE REP. BY INSPECTOR OF POLICE [S.B. SINHA, J.J. 769
.... 3. When the deceased, PW-2 and PW-3 turned towards a lane which A
was on the eastern side of the house of PW-2, the appellant and Udayakumar
were seen coming from the opposite direction. Appellant allegedly shouted
that they were the persons who had thrown the bomb at the RSS office and
started stabbing the deceased indiscriminately. PW-3 (Usman Ali) was allegedly
stabbed by Udayakumar. When they cried for help, the appellant allegedly
picked up a stone and dropped it on the head of the deceased. Appellant and B
the said Udayakumar thereafter allegedly ran away from the place of occurrence.

4. A First Information Report was lodged against unknown. No mark of
identification of the accused was also disclosed therein. While, however, the
Investigating Officer was preparing an inquest report, the first informant
allegedly disclosed to him that he had noticed a scar on the right hand of one
c
of the assailants. On or about 14.08.1993, i.e. after five days, the appellant was
arrested. The said Udayakumar was also arrested. Their photographs were
published in a local daily with the caption that they were the persons who
were the accused of causing murder of John Basha and injury to PW-3.
D
5. The said publication was made in a Tamil daily 'Dinakaran' on
16.08.1993. Prior thereto or immediately thereafter, the appellant and the said
Udayakumar was not put on test identification parade. They were put on test
identification parade only on 24.08.1993. In the said purported test identification
parade, whereas PW-1 and PW-3 purported to have identified the appellant,
PW-2 and PW-4 could not identify even Accused No. 1. E
6. Out of the five accused persons, who not only were charged for
commission of the said offences, but also for hatching a conspiracy against
the minority community, were put to trial. The learned Trial Judge by a
judgment and order dated 17.09.1996 held the appellant guilty of commission
-'
of the offence of murder of John Basha punishable under Section 302 IPC and
F
- convicted Udayakumar for committing an offence punishable under Section
307 IPC; acquitted the other three accused persons. They were, however,
acquitted of other charges.

7. The High Court dismissed the appeal preferred by the appellant G
herein and the said Udayakumar.

8. We have been taken through the First Information Report as also the
depositions of the so-called eye-witnesses. The nature and purport of the
evidence of all the eye-witnesses are almost similar.
H
770 SUPREME COURT REPORTS [2007] 5 S.C.R.

A 9. We may at the outset notice the evidence of the first infonnant (PW-
!). According to him, the appellant and the said Udayakumar had been
running towards John Basha (deceased) and Usman Ali (PW-3) from about
a distance of 15 feet from them. According to him, nobody shouted when the
first injury was inflicted. Apart from those two, he stated, nobody else was
touched. He stated that he been knowing the accused persons from before
B as also their names, but then stated that he did not know the same at· that
time. According to him, he had mentioned in the First Infonnation Report
about the scar which he had noticed on the right hand of the appellant, but
the First Infonnation Report does not show it. He accepted that the
.,
photographs of the appellant and the said Udayakumar had appeared in the
c newspaper that they had committed the murder of John Basha.

10. PW-2 even could not remember as to whether he had identified the
appellant on the basis of scar mark. PW-3 allegedly had disclosed the mark
of identification. His statement must have been taken after the inquest report
was made. PW-4 even could not say whether he had seen the appellant and
D the said Udayakumar prior to the date of occurrence. But still then according
to him their faces were· known. He could not even recollect as to whether he
had stated about the said identification mark to anybody else.

11. Photograph of the accused which had been published in Tamil daily
'Dinakaran' was proved by one King Kong, who examined himself as DW-
E I. He pursuant to the summons issued to him had brought with him a copy
of the newspaper dated 16.08.1993. He in his deposition stated that in the
fourth page of the newspaper, two photographs were published showing the
persons connec(ed with Tirupur murder case. Their names were also disclosed
therein as Udayakumar and Ravi. He was not even cross-examined.
F
12. The High Court by a curious process of reasoning opined that as
the DW-1 did not whisper a word that the photographs published in the
~
•
newspaper were those of the appellant and the said Udayakumar and as he
had not been asked to identify them in court, his evidence was not admissible
in law.
G
13. Objections were taken by the accused that their photographs had
been taken in the police station. It has further been accepted that whereas
the Accused No. I was short in stature, the appellant was tall. The age of
the persons who had been selected for test identification parade had not been
noted by the Magistrate, who conducted the test identification parade. No
H person having similar scar mark on his hand was put on the test identification
RA Vl@RAVICHANDRANv. STATEREP. llY INSPECTOR OF POLICE [S.B. SINHA, J.) 771

parade. A
14. PW-2, who had come to identify after the first witness was sent to
the same place. Where PW-1 was sent immediately after the test identification
parade, chance of their disclosure about the appellant to PW-3 and others
cannot be ruled out. He had identified one Raju, who was not connected with
the case. Similarly, Usman Ali (PW-3) had identified one Arun who was not B
involved in the case. He in the second and third identification had identified
one Raju, apart from the said Arun, who was again not connected with the
case.

15. Mr. R. Sundaravaradan, learned Senior Counsel appearing on behalf
of the State, however, would submit that identification of the prisoners in C
court only is the substantive evidence and the High Court was correct in its
approach in rendering its opinion on the said basis. It was furthermore
submitted that DW-1 was merely a hearsay witness.

16. Certain facts are not in dispute. The test identification parade was D
held after ten days. It is also not in dispute that the photographs of the
accused were taken at the police station. The Investigation Officer allowed
them to be published. Photographs of the appellant and the said Udayakumar
were not only published, according to the prosecution witnesses, they were
shown to be the accused in the aforementioned crime. Some of the them
admittedly were aware of the said publication. The purported test identification E
parade which was held ten days thereafter, in our opinion, loses all significance,
in the aforementioned fact situation.

17. It is no doubt true that the substantive evidence of identification
·' of an accused is the one made in the court. A judgment of conviction can
be arrived at even if no test identification parade has been held. But when F
a First Information Report has been lodged against unknown persons, a test
identification parade in terms of Section 9 of the Evidence Act, is held for the
purpose of testing the veracity of the witness in regard to his capability of
identifying persons who were unknown to him. The witnesses were not very
sure as to whether they had seen the appellant before. Had the accused been G
known, their identity would have been disclosed in the First Information
Report. PW-I for the first time before the court stated that he had known the
accused from long before, but did not know their names earlier, although he
came to know of their names at a later point of time.

18. In a case of this nature, it was incumbent upon the prosecution to H
772 SUPREME COURT REPORTS [2007] S S.C.R.

A arrange a test identification parade. Such test identification parade was required
to be held as early as possible so as to exclude the possibility of the accused
being identified either at the police station or at some other place by the
concerned witnesses or with reference to the photographs published in the
newspaper. A conviction should not be based on a vague identification.

B 19. In Suryamoorthi and Anr. v. Govindaswamy and Ors., (1989] 3 SCC
24, this Court held :

"I 0. Two identification parades were held in the course of investigation.
At the first identification parade PW I identified all the seven accused
persons whereas PW 2 identified three of them, namely, accused 2, 6
c and 7 alone. It is, however, in evidence that before the identification
parades were held the photographs of the accused persons had
appeared in the local daily newspapers. Besides, the accused persons
were in the lock-up for a few days before the identification parades
were held and therefore the possibility of their having been shown to
D the witnesses cannot be ruled out altogether. We do not, therefore,
attach much importance to the identification made at the identification
parades ... "

20. Holding of a test identification parade after a long time particularly
when their photographs were published has also been commented upon by
E this Court in Acharaparambath Pradeepan & Anr. v. State of Kera/a, (2006)
13 SCALE 600, stating :

"Descriptions of a few persons were given in the statements of
the child witnesses. Except A I, however, they were not arrested. The
reason for their being not arrested had not been disclosed. They were
F arrested, as noticed hereinbefore, on 6.03 .2000 only after their names
were disclosed by PWs 7 and 8. Test Identification Parade of the
accused persons, other t~an Al, was held on 4.04.2000. Why the
Investigating Officer took such a long time for arranging a test
identification parade has not been disclosed. Furthermore, A3 was not
identified. A6 was present when the first Test Identification Parade
G was taken but he had not been identified by any of the witnesses.

We are not impressed with the purported explanation in regard to
the holding of test identification parade. Identification of the said
accused by the child witnesses, having regard to the facts and
circumstances of the case lead us to a definite conclusion that they
H
RA VJ@RAVICHANDRAN v. STATE REP. BY INSPECTOR OF POLICE [S.B. SINHA,J.] 773
=:"'
were the only persons who participated in the commission of the A
offence.

They are entitled to benefit of doubt. There had been great delay
in conducting the Test Identification Parade. Undue delay has also
occurred in recording the statements of PWs 7 and 8."
B
21. Reliance placed by Mr. Sundaravaradan on Samant N. Balakrishna
etc. v. George Fernandez and Ors. etc., AIR (1969) SC 1201 in regard to
.,. evidentiary value of a news item published in a newspaper is misplaced.
Therein a news item was published in an election dispute in regard to a matter
in respect of which there was no primary evidence, and, thus, it was held to
be secondary evidence, stating : c
" ... A news item without any further proof of what had actually
happened through witnesses is of no value. It is at best a second-
hand secondary evidence. It is well-known that reporters collect
information and pass it on to the editor who edits the news item and
then publi~hes it. In this process the truth might get perverted or D
garbled. Such news items cannot be said to prove themselves although
they may be taken into account with other evidence if the other
evidence is forcible .... "

[See also S.A. Khan v. Ch. Bhajan Lal and Anr., [1993] 3 SCC 151]
E

22. We are not concerned with the speech made by a person, the
authenticity or correctness whereof published in the newspaper is in dispute.
We have seen the newspaper cutting. Photographs of the two accused have
... ~ been shown; their names as accused had also been disclosed.
F
23. Publication of the news item with photographs has clearly been
proved by DW-1. Prosecution witnesses, as noticed hereinbefore, accepted
the said fact. It was, therefore, wholly unnecessary for DW-1 to identify the

- .. accused persons in dock. Not only the authenticity of such publication has
not been questioned by the prosecution, DW-1, was not cro~-examined at G
all. It was for the prosecution as also the Presiding Officer of the court to
verify the identification of the accused with reference to the said photographs.
It was not necessary for the appellant to prove the same.

24. We have noticed hereinbefore that the appellant herein was not
named in the First Information Report. The fact that he had some identification H
774 SUPREME COURT REPORTS [2007] 5 S.C.R.

A marks had not been disclosed in the F.I.R. The purpose of preparing the
inquest report is only to notice as to whether the murder committed was
homicidal in nature or not and not for making a note in regard to identification
marks of the accused.

25. The manner in which the occurrence took place as well as the
B conduct of the prosecution witnesses as discussed hereinbefore do not lead
to an inference that the appellant has properly been identified. He is, in our
opinion, at least entitled to benefit of doubt.

26. For the reasons aforementioned, the impugnedjudgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. The appellant
C shall be released forthwith, if not required in any other case.
K.K.T. Appeal allowed.

-