Holding

In the absence of a test identification parade and given the contradictions between eyewitness testimony and forensic evidence, the prosecution did not prove the appellant's identity beyond reasonable doubt, warranting his acquittal.

Summary

The appellant Vishwanatha was convicted by the Karnataka High Court for murder and robbery based on the testimony of two eyewitnesses, PW‑1 and PW‑2, who claimed to have seen him and a co‑accused strangling the victim. The trial court had acquitted them, citing contradictions between the eyewitness accounts and the post‑mortem report, but the High Court reversed that acquittal. On appeal, the Supreme Court examined whether a conviction could stand without a test identification parade (TIP) for an accused unknown to the witnesses and whether the eyewitness testimony, which conflicted with forensic findings, was sufficient. The Court found that the appellant was a stranger to the witnesses, no TIP or descriptive details were recorded, and there were six persons named Vishwanatha in the locality, creating reasonable doubt about his identity. Moreover, the ligature marks described in the autopsy did not match the witnesses' description of the manner of strangulation. Consequently, the prosecution failed to prove the case beyond reasonable doubt, and the appellant was acquitted.

Issues considered

Whether conviction can be sustained in the absence of a test identification parade for an accused who is a stranger to the witnesses.
Whether eyewitness testimony that is inconsistent with post‑mortem findings can be relied upon to establish guilt.
Whether identification of an accused in court without prior TIP is permissible under Indian law.
Whether reasonable doubt regarding the identity of the appellant exists sufficient to overturn the conviction.

Legislation cited

Indian Penal Code, 1860s. 302, s. 34, s. 450

Subjects

Test identification paradeAbsence of test identification paradeOrder of acquittal reversedIdentity of accused doubtRobberyStar witnessesIdentification of accused in courtPrior TIPDescription of accused in FIRBenefit of doubtCase not proved beyond reasonable doubtStrangulationHomicide

Judgment

[2024] 7 S.C.R. 50 : 2024 INSC 482

Vishwanatha
v.
The State of Karnataka by the Secretary,
Home Department
(Criminal Appeal No. 129 of 2012)
08 July 2024
[Sudhanshu Dhulia* and Prasanna B. Varale,JJ.]

Issue for Consideration
High Court reversing the order of acquittal found the appellant
along with co-accused (now deceased) guilty of offences under
Sections 302 and 450 read with Section 34 of Penal Code, 1860
and sentenced them. In view of doubt as regards the identity of
the appellant, whether it was the accused persons who were
responsible for the death of PW-1 and PW-3’s mother.

Headnotes†
Evidence – Test Identification Parade (TIP) – Absence of – When
fatal – As per the prosecution, the appellant and the co-accused
(now deceased) broke into the house of PW-1 and PW-3 to
commit robbery when they were not at home and killed their
old mother – However, this was witnessed by PW-1 when she
returned home at around 12:30 in the afternoon but, she could
not enter the room as it was locked from inside – On raising
alarm, PW-2, a neighbour came and they both peeped through
the window of the bedroom and saw the incident – TIP not
conducted, PW-1 and PW-2 identified accused in Court – Trial
Court acquitted the accused persons – Acquittal reversed by
High Court – Correctness:
Held: As per the eyewitnesses, PW-1 and PW-2 they saw the
two accused strangulating PW-1’s mother by pulling both ends
of the rope – However, their evidence does not corroborate
with the post mortem report – The report does suggest that the
deceased was indeed strangulated to death but, it could not be
in the manner as seen by PW-1 and PW-2 as the ligature mark
extended only from one angle of the mandible to the other and
no such mark was seen at the back of the neck – Absence of any
reasonable explanation as to how PW-1 reached her house in a

* Author
[2024] 7 S.C.R. 51

Vishwanatha v. The State of Karnataka by the Secretary,
Home Department

short span of time of 21/2 hours, after leaving home at 10:00 AM,
creates doubt on the prosecution story – Furthermore, appellant
was not known to any of the witnesses and more pertinently, the
two eyewitnesses – Co-accused was related to the complainant
and was thus, known to the eyewitnesses – Hence, there was
no requirement of TIP as regards him – But, the appellant was
a total stranger to PW-1 and PW-2 – His name ‘Vishwanatha’
came to their knowledge, only after co-accused called him by
name exhorting him to run – The identification of an accused in
court is acceptable without a prior TIP and absence of TIP may
not be fatal for the prosecution – It would depend on facts of
each case – In a case where the identity of the accused is not
known and TIP has not been conducted, the court has to see if
there was any description of the accused either in the FIR or in
any of the statement of witness recorded during the investigation
– There was none in the present case – There were six persons
by the name of ‘Vishwanatha’ in the locality and when there is
doubt on the presence of the two star witnesses PW-1 and PW-2
(who identified the accused), the identity of the present appellant
remained in doubt – Not safe to convict the appellant solely only
on the basis of the testimony of PW1 and PW2 – Prosecution
not able to prove its case beyond reasonable doubt – Appellant
acquitted by giving him the benefit of doubt – Impugned judgment
set aside as far as it relates to the conviction of the appellant.
[Paras 13-17, 19]

Case Law Cited
Mulla v. State of U.P. [2010] 2 SCR 633 : (2010) 3 SCC 508;
Malkhansingh v. State of M.P. [2003] Supp. 1 SCR 443 : (2003)
5 SCC 746 – relied on.

List of Acts
Penal Code, 1860.

List of Keywords
Test identification parade; Absence of test identification parade;
Order of acquittal reversed; Doubt as regards the identity of the
accused; Robbery; Stareyewitnesses; Identity of accused not
known; Identification of accused in court; Prior TIP; Description
of accused either in FIR/ statement of witness; Benefit of doubt;
Case not proved beyond reasonable doubt.
52 [2024] 7 S.C.R.

Digital Supreme Court Reports

Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.129
of 2012
From the Judgment and Order dated 06.06.2009 of the High Court
of Karnataka at Bengaluru in CRLA No. 1217 of 2002
Appearances for Parties
X M Joseph, Omanakuttan K. K., Antony Ignatius M J, Advs. for the
Appellant.
R Nedumaran, D. L. Chidananda, Advs. for the Respondent.
Judgment / Order of the Supreme Court

Judgment
Sudhanshu Dhulia, J.
1. The appellant in this Criminal Appeal challenges judgement and order
dated 06.06.2009 passed by the High Court of Karnataka which has
allowed the Criminal Appeal of the State; thereby reversing the order
of acquittal of the Trial Court, thus convicting the present appellant
of offences under Sections 302 and 450 read with Section 34 of the
Indian Penal Code and sentenced him, inter alia, to life imprisonment,
under Section 302 of IPC.
2. The case of the prosecution is that Rohini (PW-1) and Rohithaksha
(PW-3) were residing with their mother Devaki (deceased; aged 86
y/o) at Kudupu, Mangalore. Devaki was strangulated to death by the
present appellant and co-accused Ravikumar. On 26.12.2000 when
PW-1, PW-3 and PW-4 (wife of PW-3) were not present in their home,
and their 86-year-old mother was alone, the present appellant and
the co-accused broke into their house with the intention to commit
robbery and killed Devaki. A written complaint was filed before the
police at 2:30 p.m. by PW-1 which formed the basis of the FIR which
was registered at PS: Mangalore Rural Circle at approximately 3:00
p.m, in which the two accused Ravikumar and the present appellant
Vishwanatha were named.
3. In the FIR, it was mentioned that on that fateful day (26.12.2000),
she (i.e. PW-1/Complainant), had gone out for some work and when
she returned home at about 12:30 in the afternoon, she heard some
[2024] 7 S.C.R. 53

Vishwanatha v. The State of Karnataka by the Secretary,
Home Department

sound coming from inside her house which alerted her, but she could
not enter the room as it was locked from inside. PW-1 then raised an
alarm and as a result PW-2, who is a neighbour came for her help.
Then both PW-1 and PW-2 managed to peep through the window
of the bedroom, where they saw that the accused had twisted a
cloth around the neck of the deceased (PW-1’s 86-year-old mother),
which they were pulling at the two ends, each holding one end of the
rope. PW-1 recognised the first accused as Ravikumar as he was
the nephew of PW-4 (the daughter-in-law of the deceased). PW-1
called Ravikumar by name which alerted the two and they escaped.
4. The police submitted its chargesheet on 05.03.2001 against both the
accused, who were caught the same day. The case was committed
to Sessions and ultimately assigned to the Court of IInd Additional
Sessions Judge, Mangalore who framed charges against the accused
on 20.09.2001 under sections 450 and 302 read with 34 of IPC. The
prosecution examined 18 witnesses and 11 documents as exhibits
placed by the prosecution. The Sessions Judge passed its order on
18.12.2001 acquitting both the accused.
5. What weighed with the Sessions Court was the apparent contradictions
between the oral testimony and autopsy report. PW-1 and PW-2 who
were eye-witnesses to the crime and had identified both the accused
and had deposed that the two had committed the murder of Devaki.
Dr. Bhaskar Alva, (PW-6) Sr. Specialist in Wedlock District Hospital,
Mangalore who conducted the post-mortem of deceased-Devaki
on 26.12.2000 had given his opinion that the cause of death was
asphyxia as a result of strangulation. The Sessions Court observed
that PW-1 and 2 had deposed that cloth was tied around the neck
of the deceased which was used to strangulate her, however, PW-6
had deposed there were no ligature marks on the back of the neck
of the deceased. Under these circumstances, the Sessions Court
discredited the two eye-witnesses, PW-1 and PW-2 and also noted
the discrepancies in the deposition of PW-1 as regards the identity
of the appellant and consequently his role in the crime.
6. The appeal of the State against this acquittal was allowed by the
High Court on 06.06.2009, which reversed the order of acquittal, and
found both the accused guilty of offences under Sections 302 and
450 read with Section 34 of IPC and sentenced them to Rigorous
Imprisonment for 5 years and Rigorous Imprisonment for life along
54 [2024] 7 S.C.R.

Digital Supreme Court Reports

with fine of Rs. 5,000/- respectively. The High Court held that the
contradictions in the case of prosecution were minor and not material
enough to warrant acquittal of the accused persons. These were
the observations made by the High Court at paragraph 27 of the
Impugned Judgement:
“27. Test Identification Parade not being conducted for
the identification of accused No. 2 is also not fatal to the
prosecution because by 6’O clock in the evening both
accused Nos. 1 and 2 were apprehended and produced
before the investigating officer P.W.18. It is also apparent
on record that when accused No. 1 uttered the name of
accused No. 2 both P.Ws. 1 and 2 learnt the name and
they had seen exactly what was happening inside the
bedroom. Therefore, question of mistaking in identifying
accused Nos. 1 and 2 does not arise. However, both P.Ws.
1 and 2 identified accused Nos. 1 and 2 before the Court.
The time gap between the date of crime and the evidence
being only 10 months, we are of the opinion that it was
quite possible for any who witnesses and especially P.W.1
to remember the details of the assailants who took the life
of her mother. Therefore, this discrepancy also would not
come in the way of the prosecution.”
7. Shortly after the Judgement was passed by the High Court, Ravikumar,
who was accused no. 1 passed away. The present criminal appeal
thus has been filed on behalf of the remaining accused Vishwanatha.
8. The learned counsel on behalf of the appellant would argue that
PW-1 and PW-2 are not credible witnesses pointing again towards
the contradictions in their testimony and autopsy report. He would
submit that there has been no test identification parade (hereinafter
referred to as ‘TIP’) to establish the identity of the appellant who
was a total stranger to the two witnesses and in the absence of TIP,
the appellant cannot be convicted, as then it cannot be said that the
prosecution has proved its case beyond a reasonable doubt.
9. The learned counsel for the State would argue that the High Court has
rightly observed that this is not a case of mistaken identity. Further,
TIP is not a substantive piece of evidence and absence of TIP would
not be fatal for the prosecution case as PW-1 & PW-2 had already
identified the accused before the court. As far as discrepancies in
[2024] 7 S.C.R. 55

Vishwanatha v. The State of Karnataka by the Secretary,
Home Department

the testimonies of the witnesses are concerned, they are minor in
nature and do not affect the case of prosecution in any manner.
10. We have heard the submissions of the learned counsel of the State
and that of the State and also perused the material on record.
11. In the present case, there are concurrent findings by both the courts
below as to the death of the deceased Devaki, being a homicidal
death and these findings are corroborated by the testimony of PW-6,
the doctor who conducted the autopsy and issued the post-mortem
report on 26.12.2000. There cannot be any doubt that the death of
the deceased was homicidal and the only question for determination
before this Court is whether it is the accused persons who were
responsible for this death?
12. PW-1 and PW-2 are the star witnesses of the prosecution. They had
deposed during the trial that the two accused had strangulated the
deceased to death. PW-1 had said that on the day of the incident,
she left home at around 9:30 in the morning and when she returned
at 12:30 in the afternoon she found that her room was bolted from
inside and then she heard her mother screaming. It was then that
she called PW-2 for help. PW-1 further states that she saw through
the window both the accused strangulating her mother by pulling the
rope at the two ends. She further states, that when PW-1 called one
of the accused Ravikumar by name, who she immediately recognised
being their relative, Ravikumar called the name of the other accused
i.e., the present appellant and the two escaped. The relevant extract
of the deposition given by PW-1 on 22.10.2001 before the trial court
is reproduced below:
“…When I came to courtyard of our house I heard sound
full of pain and scream. I found that both the bolts of the
house was locked inside. Immediately I called my neighbour
Rajesh. He came there. Since Northern side of window
was kept opened my self and Rajesh peeped inside the
room…………we saw in the western side of the room and
found Accused Ravi, who is standing before the Court now
and he used to twist the cloth rope and put round the neck
and caught one end of rope. Another end of the rope was
in the hands of another person. They were tightening the
rope, which was round the neck of my mother. I made a big
noise. I addressed Accused Ravi “what he is doing” (In Tulu
56 [2024] 7 S.C.R.

Digital Supreme Court Reports

‘Dane Malpuva’). What is he doing, I asked. Immediately
he (Accused Ravi) told Accused Vishwananth that “the
work is spoiled”, you run (In Tulu ‘KelasaKettand’). Said
accused ran through the back door of the house, after
unlocking bolts. My neighbour Rajesh followed them in
the back of them……..when seeing my mother I found
her right leg and right hand was in twisting condition and
found no clothes on the body of my mother and found
little temperature in the body. Immediately called Dr.K.B
Shetty by phone…..After 10 minutes from my phone call,
doctor came there. After coming to our house, said doctor
examined my mother and told us that she was dead….”
PW-2 also claimed to have seen the incident from the window along
with PW-1 and he then narrates his unsuccessful attempt to catch
the accused persons. The relevant portion of PW-2’s examination-
in-chief is as follows:
“When seeing through the window we found mother of
Rohini (PW-1), Smt. Devaki (deceased) was on the cot.
On the right side of Devaki, Ravikumar was standing and
in another side another accused was standing. We found
cloth was rolled round neck of Devaki. The one end of
cloth rope was found in the hands of 1st Accused and
cloth ropes another end was found in the hands of 2nd
Accused. Both accused were, found dragging the cloth
rope on both sides…………Accused ran away through
back door of the house.”
13. The above evidence of PW-1 and PW-2, all the same, does not
corroborate with the post mortem report, which shows that the ligature
marks, though round the neck, but are missing on the back of the
neck. If the testimony of PW-1 and PW-2 is to be believed then the
ligature marks should have been all round the neck, including the back.
The ante mortem injuries in the post mortem report are as follows:
“On examination, I found the following external injuries:
(i) Ligature mark round the neck above the thyroid
cartilage, extending from 1 angle of mandible to the
other- size 8”× ¾”
(ii) Finger nail marks over the tip of the nose.
[2024] 7 S.C.R. 57

Vishwanatha v. The State of Karnataka by the Secretary,
Home Department

(iii) Fracture of both legs below the knee and fracture of
right forearm below the elbow”
The report does suggest that the deceased was indeed strangulated
to death. But it could not be in the manner as seen by PW-1 and
PW-2 (who had seen the two accused strangulating the 86 years
old woman by pulling both ends of the rope) as the ligature mark
extended only from one angle of the mandible to the other and no
such mark was seen at the back of the neck. Had the strangulation
been in the manner as described by PW-1 and PW-2, the ligature
marks would have been different.
14. The aspect which perhaps weighed heavily in the mind of the Trial
Court which had acquitted the two accused was the fact that the
first complaint, inquest report, the ‘autopsy report’ and the ocular
evidence of PW-1 (also of PW-2) did not match. Having regard to
the positioning of the bed on which the deceased was allegedly
strangulated, the trial court has given a finding that it would be highly
improbable for two persons to strangulate the deceased by pulling
the two ends of the rope of cloth from behind, since the cot was
touching the northern and western walls. Moreover, the fact that Dr.
K.B Shetty, (who was the first doctor to examine the deceased within
10 minutes of the incident), was never examined by the prosecution.
The absence of any reasonable explanation as to how PW-1 reached
her house in a short span of time of 21/2 hours, after leaving home at
10:00 AM1, creates doubt on the prosecution story. Trial Court also
expressed its doubt as to the involvement of the present appellant
(Accused No.2), as no TIP was conducted. This aspect was argued
at length before this Court as well, since it goes to the very root of
any criminal trial. Admittedly, no TIP was conducted in the present
case. This Court in Mulla v. State of U.P., (2010) 3 SCC 508 had
emphasized the scope and object of TIP as follows:
“55. The identification parades are not primarily meant for
the court. They are meant for investigation purposes. The
object of conducting a test identification parade is twofold.
First is to enable the witnesses to satisfy themselves that
the accused whom they suspect is really the one who was

1 The complaint (Ex.P1) given by PW-1 to the PSI on the spot, mentions that she left her house at around
10.00 am, whereas in her deposition before the Trial Court, she mentions the time as 9.30 am.
58 [2024] 7 S.C.R.

Digital Supreme Court Reports

seen by them in connection with the commission of the
crime. Second is to satisfy the investigating authorities that
the suspect is the real person whom the witnesses had
seen in connection with the said occurrence.”
15. This Court in Malkhansingh v. State of M.P (2003) 5 SCC 746 2
has held that:
“The evidence of mere identification of the accused
person at the trial for the first time is from its very nature
inherently of a weak character. The purpose of a prior
test identification, therefore, is to test and strengthen
the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look
for corroboration of the sworn testimony of witnesses in
court as to the identity of the accused who are strangers
to them, in the form of earlier identification proceedings.”
In the case at hand, it is an admitted position that the Appellant was
not known to any of the witnesses and more pertinently, the two
eyewitnesses, PW1 and PW2.
16. Coming back to the facts and circumstances of the present case, it is
an admitted fact that Ravikumar (Accused No.1, now deceased) was
known to the eyewitnesses and was also related to the complainant.
Hence, there was no requirement of TIP as regard to Ravikumar
(accused no.1). But the case of appellant- Vishwananth stands on a
different footing. He was a total stranger to the two eye witnesses i.e.
PW-1 and PW-2. The name ‘Vishwanath’ came to their knowledge,
only after Ravikumar (Accused no. 1) called his co-accused, by name
exhorting him to run. In a case where the identity of the accused is
not known and TIP has not been conducted, the court has to see if
there was any description of the accused either in the FIR or in any
of the statement of witness recorded during the investigation. There
is none in the present case.
The identification of an accused in court is acceptable without a
prior TIP and absence of TIP may not be fatal for the prosecution. It
would depend on facts of each case. In the case at hand, though the
appellant was identified in court by PW-1 and PW-2, the Trial Court

2 Para 7.
[2024] 7 S.C.R. 59

Vishwanatha v. The State of Karnataka by the Secretary,
Home Department

did not attach much weight to it, as no identification proceedings
were conducted, and the Court found it unsafe to acknowledge the
identity merely on the basis of identification in the Court.
In the present case, where there are six persons by the name of
‘Vishwanatha’ in the locality and where this Court has doubts on
the presence of the two star witnesses PW-1 and PW-2 (who have
identified the accused), we are of the opinion that the identity of the
present appellant remained in doubt.
17. Another fact which casts a doubt on the identity of the present
appellant, is that there is no description in the FIR of ‘Vishwanatha’
except that his name is mentioned. He then becomes the first
of the two to be arrested by the police. Learned counsel of the
appellant would submit that there were six persons by the name of
‘Vishwanantha’ in Kudupu village at the relevant point of time, a fact
which was placed by the defence during trial, which has not been
confronted. In such a situation, it was the duty of the prosecution
to show as to how and on what basis, the appellant came to be
apprehended by the police. The Sub-Inspector, PS-Mangalore
Rural (PW-19), who apprehended the appellant, had also failed
to explain how he came to apprehend the appellant without any
information regarding his description. In his examination-in-chief,
the Sub-Inspector (PW-19) explained the arrest of the appellant in
the following manner:
“2. In respect of this case, crime no.388-2000 on
26.12.2000 my inspector instructed me to find out the
accused. The same day myself and my staff taken into
custody the accused Vishwananth at 4:30 PM near
Goraksha Jnana Mandira, Near Kadri Park, Mangalore.
Said accused is before the Court. I identify him. With the
help of Vishwanath we had arrested another accused, Ravi
Kumar at 5 P.M in a ‘Galli’ near State Bank of Mysore,
Silver gate, Kulashekara, Mangalore…”
A perusal of the testimony of the Sub-Inspector/PW-19 indicates
that there is not even a whisper as to what formed the basis of the
appellant’s arrest. He was cross-examined and what was gathered
from his cross-examination is that the appellant was arrested in
absence of any independent witnesses and without preparing any
arrest memo. All these facts combined together cast a doubt on the
60 [2024] 7 S.C.R.

Digital Supreme Court Reports

identity of the appellant. Thus, it is not safe to convict the appellant
solely only on the basis of the testimony of PW1 and PW2, which
itself.
18. Another aspect which needs to be considered is that the prosecution
case rests primarily on the evidence of PW-1 and PW-2, who were
the star witnesses. The admitted case of the prosecution is that
PW-1, who is the daughter of the deceased, had gone out for some
household work and there was no one in the house when the crime
was committed. First, PW-1 had gone to a place named ‘Kulshekara’
and then to the Post Office, and in the end to her uncle’s house
at ‘Ullal’. The distance between her residence at Kudupu and Ullal
is about 20 km. She first walks some distance and then catches
a bus to reach Kulshekara and from there she went to the post
office, and after attending to her work, she takes a bus to go to her
uncle’s house at Ullal. Finally, she returned home in Kudupu and all
of this was done by her within a period of 2½ hours. But this is not
enough, as per the prosecution version, she also reached her house
at the very moment when the deceased was being strangulated
and then peeping through the window pane, she witnessed the two
accused pulling the two ends of the rope. She called Accused no.
1-Ravikumar by his name, which led to the two accused fleeing
from the spot and PW-2 who is the neighbour, chased them but in
vain. This whole story of the prosecution is unbelievable for more
reasons than one. Even if it is assumed for the sake of argument
that PW-1 had reached the house at the exact time when the crime
was being committed, the testimony to the effect that her mother
was strangulated to death by a rope-like material, in the manner
narrated by her, is not corroborated by the post-mortem report
where ligature marks on the neck were not found to be encircling
the neck in a round manner, as it should have been in such a case
of strangulation. There were no ligature marks on the back of the
neck. As discussed earlier, the marks were only on the front side
extending from one angle of the mandible to the other. We therefore
conclude that the prosecution has not been able to prove its case
beyond reasonable doubt.
19. In view of the above, we allow this appeal and acquit the appellant
in this case by giving him the benefit of doubt. Consequently, the
impugned judgment and order dated 06.06.2009 is set aside as far as
it relates to the conviction of the appellant, and the order of acquittal
[2024] 7 S.C.R. 61

Vishwanatha v. The State of Karnataka by the Secretary,
Home Department

of the Trial Court is upheld qua the appellant. The appellant, who
is already on bail, need not surrender. His bail bonds and sureties
stand discharged.
Pending application(s), if any, also stand(s) disposed of.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Divya Pandey