Test Identification Parade (TIP) was not conducted immediately after the arrest but with a delay casts a serious doubt on the credibility of TIP
48. Returning to the facts of the present case, we have already noted that Accused Nos. 1-16 were arrested on 13.07.2000. Instead of filing an application for conducting a TIP at the earliest, the IO (PW-84) filed a remand application, pursuant to which the Accused were remanded to police custody. There is strong evidence that the Accused were shown to the witnesses during their police custody period. The fact that an application for conducting a TIP was filed on 23.07.2000, i.e., the very next day after the police custody period ended, leads to the inevitable conclusion that the Accused were taken into police custody to facilitate their easy identification during the TIP. Otherwise, we see no reason why an application for conducting a TIP was not filed immediately after the arrest of the Accused. In such circumstances, we firmly believe that the delay in holding the TIP coupled with other circumstances has cast a serious doubt on the credibility of the TIP witnesses.
Legality of TIP
49. Re: Legality of the TIP and the presence of the IO during the conduct of the TIP:A three-judge bench of this Court in Chunthuramv. State of Chhattisgarh [(2020) 10 SCC 733], by relying on Ramkishan Mithanlal Sharma v. State of Bombay [(1955) 1 SCR 903], has held that any identification made by witnesses in a TIP in the presence of a police officer tantamount to statements made to the police officer under Section 162 Cr.P.C. The Court held:
“The infirmities in the conduct of the test identification parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the dentifications are held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of Section 162 of the Code.”
50. The evidence of IO (PW-84) about the conduct of the Test Identification Parade may be noted: –
“(Q). Did you make any arrangement to prevent the witness and the accused from seeing each other inside the jail?
(A). I did not think it as something needed.”
51. Further, when a question regarding the presence of the IO (PW-84) was put to JMFC (PW-47), he stated that:
“…in the parade conducted on 31.07.2000, 31 non-suspects were selected. The civilian were produced by the IO. On that date also Dy. SP and CI were present in the premises of the jail……”
53. Having considered the statement of the JMFC (PW-47) and the evidence of the IO (PW-84) together, we are of the view that the presence of the Investigating Officer at the time of the TIP cannot be ruled out. The Investigating Officer has stated that he has not taken any steps to ensure that the accused and the witnesses do not see each other. It is rather surprising to note that Investigating Officer thinks that such a measure is not necessary.
Hovering presence of the police during the TIP vitiated the entire process
56. In view of the evidence available on record, we are of the opinion that the conduct of the TIP, coupled with the hovering presence of the police during the conduct of the TIP vitiated the entire process. The Trial Court as well as the High Court have committed a serious error in relying on the evidence of the TIP witnesses for convicting and sentencing the Appellants. We are of the opinion that the conviction and sentencing are not sustainable. In view of these lapses on the part of the prosecution, it is not necessary for us to consider various other grounds raised by the Appellants.
57. Conclusion: Having considered the matter in detail and having noted the various discrepancies in the manner in which both the TIPs were conducted, we believe that the prosecution has not established its case beyond reasonable doubt. Apart from the TIPs, we find no other evidence put forth by the prosecution to prove the guilt of the Accused for offences under Sections 143, 147, 148 IPC and 3(2)(e) of PDPP Act r/w 149 of the IPC.
Party
GIREESAN NAIR & ORS. ETC vs STATE OF KERALA – Criminal Appeal Nos. 1864-1865 of 2010 -NOVEMBER 11, 2022 – [2022] 8 S.C.R. 599.
https://main.sci.gov.in/supremecourt/2010/7351/7351_2010_13_1501_39632_Judgement_11-Nov-2022.pdfhttps://main.sci.gov.in/supremecourt/2010/7351/7351_2010_13_1501_39632_Judgement_11-Nov-2022.pdf
