MANU/SC/0339/1991

Equivalent/Neutral Citation: AIR1991SC 1468, 1991C riLJ1833, 1991 INSC 134, 1991(2)RC R(C riminal)373, 1991(1)SC ALE909, (1991)3SC C 434,
[1991]2SC R723, 1991(2)UJ473

IN THE SUPREME COURT OF INDIA

Criminal Appeal no. 194 of 1979
Decided On: 07.05.1991
Bollavaram Pedda Narsi Reddy and Ors. Vs. State of Andhra Pradesh
Hon'ble Judges/Coram:
Kuldip Singh and M. Fathima Beevi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K. Madhava Reddy and G. Narasimhulu, Advs
For Respondents/Defendant: B. Parthasarthi, Adv.
ORDER
M. Fathima Beevi, J.
1 . The appellants are Bollavaram Pedda Narsi Reddy (A-1), Bollavaram Chinna Narsi
Reddy (A-2), Kavala-kuntla Rama Subba Reddy (A-3), Duddula Venkata Subba Reddy
(A-5) and Mala Prakasam (A-6) before this Court. These appellants along with accused
No. 4 Duddela Ramana Reddy, were tried for the murder of one Chandrasekhara Reddy
on the night of August 15, 1974. The trial court acquitted all the accused. On appeal by
the State, the High Court convicted these appellants under Sections 302 read with 149,
I.P.C., and sentenced them to undergo imprisonment for life and also imposed short-
term imprisonment for minor offence to run concurrently.
2 . Chandrasekhara Reddy, the deceased, and the accused were residents of village
Jeereddy Kotharpalli. In 1970, Accused No. 3 was elected as a Sarpanch of the village
with active support of the deceased. However, differences arose between them as they
supported rival groups in the election in the neighbouring village. 10 days before the
incident, the deceased is stated to have openly declared that he would get Accused-3
removed by moving a no confidence motion. This according to the prosecution is the
motive for the crime.
3 . On the date of occurrence, Chandrasekhara Reddy met PW-1 (Guddeti Balaveera
Reddy) and PW-2 (Donthireddi Subba Reddy) in the hotal of Subbamma (PW-8) in the
neighbouring village Proddatur. The deceased along with the two witnesses attended a
cinema show at Anwar Talkies. They came out of the theatre 10 minutes earlier around
9.30 P.M. and were walking along the road towards the bus stand. When they reached
near the old telephone exchange about 50 metres away from Anwar Talkies, there was
an explosion of crackers. The accused persons suddenly surrounded the deceased. They
were armed with daggers. They attacked him after one of them pushing aside PW-1.
PW-1 fell on the barbed wire fence of the transformer and received scratches on his
thigh. The deceased was stabbed indiscriminately and simultaneously by all the
assailants who retreated in two different directions and the deceased died on the spot
instantaneously. Besides PWs 1 and 2, who witnessed the occurrence, PW-3 Donthireddi
Narayana Reddy, and PW-4 Poreddi Subba Reddy. had also seen the attack. These

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witnesses were passing along the road. PW-5, Mekkamalla Balireddi, reached the scene
attracted by the crowd and had seen the accused persons running away. The street light
besides the electric light at a petrol bunk and the light in the bunk on the side of the
road were burning at the time of the occurrence. The assailants had been identified by
the witnesses in that light. The assailants were strangers to the PWs 1 and 2 but A-2, 3
and 5 were known to PWs 3 and 4 and 5 who had also acquaintance with the deceased.
PW-5 informed PW-7 (Polagiri Siva Reddy), the brother of the deceased, about the
occurrence, while PWs 3 and 4 left the place after seeing the deceased lying at the
scene. This in short is the prosecution case.
4 . The Town Police Station is situated about two furlongs away from the place of
occurrence. PW-1 along with PW-2 went to the police station and lodged the first
information report. A crime was registered against six unidentified persons. PW-16 (Sri
S. Khasim Sab, Sub Inspector of Police), recorded the statement Ex. P-1. The Circle
Inspector visited the scene. PW-2 was referred to the Medical Officer at 4 A.M. The
inquest on the dead body was held on the next morning. The post-mortem examination
revealed that deceased had sustained 54 injuries all except one being incised wounds.
At the time of the inquest, the statements of PWs-2 and 7 were recorded. PW-7
suspected the involvement of Accused 2, 3 and 5. On 17.8.1974, the police dogs were
pressed into service. It is stated that the sniffer went to the village of the deceased and
thereafter to the houses of Accused 2 and 3. Statements of PWs 3, 4 and 5 were
recorded on 18.8.1974. Accused No. 6 was arrested on 25.9.1974. A test identification
parade was conducted by PW-9 (Sri G.V. Raghavaiah, Judicial Second Class Magistrate)
on 31.10.1974. A-6 was identified by PWs 1, 2, 3 and 4 at the parade as recorded in Ex.
P-2 proceeding. The other accused persons were arrested on 1.11.1974. PW-10 (Sri D.
Sreeramulu, Judicial Second Class Magistrate), conducted the test identification parade
in which as per Ex. P-3 proceeding, PWs 1, and 2 identified accused 1, 2, 3 and 5. The
investigation was completed and the charge was laid against the six persons.
5 . The learned sessions judge analysed the prosecution evidence meticulously and
discarded the testimony of PWs 1 to 5. He considered PWs 3, 4 and 5 as chance
witnesses, found their conduct in not disclosing the involvement of the accused persons
known to them until their statements were recorded on 18.8.1974 as suspicious and
strange when they had acquaintance with the deceased. PWs 3 and 4 when examined by
PWs 9 and 10 for the purpose of test identification parade had given statement which
vary with their earlier statement and their evidence before court was contradictory to
their prior statements. It was, doubtful whether they could have seen the occurrence or
identified any of the assailants. Their evidence was, therefore, rejected as
untrustworthy. The testimony of the two eye witnesses PWs 1 and 2 who claimed that
they were in the company of the deceased at the time of the occurrence was also not
accepted by the trial court for various reasons. They were strangers to the accused
persons. Their evidence regarding the identification of the assailants as the accused did
not impress the trial court which pointed out that the prosecution had no consistent
case regarding the source of light at the scene that these witnesses even if present at
the scene when the assailants mounted the attack on the deceased could not have
remained there to observe and memorize the features of the assailants and identify
them after a long lapse of time. PW-1 rushed to the police station in utter confusion
even without his dhoti. The witnesses were frightened and ran away. In this situation in
the meagre light available, they could not have identified the assailants as the accused.
The learned judge on a consideration of the medical evidence was also of the view that
the occurrence could not have happened at the time mentioned by these witnesses and,
said there were several suspicious features which render their version doubtful. The
learned judge also pointed out that the identification parade was perfunctory and was of

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no assistance to the prosecution. The learned sessions judge analysed the entire
evidence and considered it unsafe to accept the testimony of the two witnesses to
record a conviction. In that view of the matter, he acquitted all the accused persons.
6 . The High Court considered the reasoning as perverse and on a reappraisal of the
evidence, took a contrary view. In the opinion of the High Court, PWs 1 to 4 are truthful
witnesses and their evidence could be accepted. In its view, there was no serious
infirmity in the prosecution evidence. Accordingly, the High Court accepted the
testimony of PWs 1 and 2, corroborated by the evidence of test identification parade
and the testimony of PWs 3 and 4 to find the appellants guilty. Since accused No. 4 was
not identified by PWs 1 to 4, he was given the benefit of doubt and his acquittal was
confirmed.
7 . The learned Counsel for the appellants has taken us through the entire evidence in
the case. The appeal is one under Section 2 of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970. It is, no doubt, open to this Court to
reexamine the evidence for the purpose of satisfying itself whether the High Court was
justified in reversing the order of acquittal in the facts and circumstances of the case. It
is well-settled proposition of law that in an appeal against acquittal, the Appellate Court
is empowered to evaluate the evidence and arrive at its own conclusion. It is equally
settled law that where the view taken by the trial court or an appreciation of the
evidence is also a plausible view, the Appellate Court shall be slow to interfere with it
even when a different view is possible on a reappraisal of the evidence. The learned
Counsel for the appellants pointed out that the High Court in reversing the order of
acquittal in this case had departed from these established principles and had thus erred
grievously in convicting the appellants. It was submitted that the conviction recorded by
the High Court essentially rests on the testimony of PWs 1 and 2. When the serious
infirmities in the evidence of the other two eye witnesses PWs 3 and 4 had been
brought to the notice of the High Court, it has eschewed that evidence and has placed
reliance only on the testimony of PWs 1 and 2 in arriving at the conclusion that the
appellants are guilty of the offence. The appellants' learned Counsel, therefore,
contended that if the view taken by the trial court on the testimony of PWs 1 and 2
cannot be characterised as perverse or wholly unreasonable, there is no justification for
the High Court to accept that evidence as the basis of a conviction even if in its opinion
the evidence of these two witnesses could have been relied on. The main plank of the
argument of the learned Counsel is that the witnesses being strangers to the assailants
when there are circumstances to show that they did not have the opportunity to identify
the assailants, their evidence involving these appellants is not free from doubt and,
therefore, the trial court had taken the reasonable view that it is unsafe for the court to
accept that evidence to convict the accused persons. We see considerable force in the
contention of the learned Counsel for the appellants.
8. The evidence given by the witnesses before the court is the substantive evidence. In
a case where the witness is a stranger to the accused and he identifies the accused
person before the court for the first time, the court will not ordinarily accept that
identification as conclusive. It is to lend assurance to the testimony of the witnesses
that evidence in the form of an earlier identification is tendered. If the accused persons
are got identified by the witness soon after their arrest and such identification does not
suffer from any infirmity that circumstance lends corroboration to the evidence given by
the witness before the court. But in a case where the evidence before the court is itself
shaky, the identification before the magistrate would be of no assistance to the
prosecution.

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9 . In the present case, the appellants are admittedly persons with whom the two
witnesses had no previous acquaintance. The occurrence happened on a dark night.
When the crime was committed during the hours of darkness and the assailants are
utter strangers to the witnesses, the identification of the accused persons assumes great
importance. The prevailing light is a matter of crucial significance. The necessity to
have the suspects identified by the witnesses soon after their arrest also arises.
According to the prosecution, the attack on the deceased was sudden and simultaneous
and the assailants slipped away in no time. Both PWs 1 and 2 had deposed that they
were attracted by the explosion and when they turned back, the assailants surrounded
the deceased and inflicted the stab injuries. PW-1 was pushed aside.
He fell on the fence of the barbed wire of the transformer, received scratches. His dhoti
stuck to the wire. He left it there and ran to the police station in utter confusion. His
statement Ex. P-1 does not disclose that PW-2 accompanied him, though PWs 1 and 2
stated before court that they went together. The possibility of the companions of the
deceased having been scattered and gone in different directions cannot be ruled out.
Even in Ex. P-1 statement what PW-1 said is that six persons attacked the deceased;
they were villagers; they were wearing dhoti and kurta. One was about 45 years of age
and of dark complexion, another was 30 years of age lean and yet another was also a
lean person. These may be the vague impression the witness had on seeing the
assailants suddenly. It is not however in evidence that the description given by PW-1 in
Ex. P-1 fits in with the description of any one of the appellants. When the magistrates
recorded the statements of the witnesses, they could not give any characteristic feature
of any one of the assailants. The entire case depends on the identification of the
appellants and the identification is founded solely on the test identification parades.
10. Therefore, in the absence of cogent evidence that PWs 1 and 2 by reason of the
visibility of the light at the place of occurrence and proximity to the assailants had a
clear vision of the action of each one of the accused persons in order that their features
could get impressed in their mind to enable them to recollect the same and identify the
assailants even after a long lapse of time, it would be hazardous to draw the inference
that the appellants are the real assailants. There is no whisper in Ex. P-1 that there was
some source of light at the scene. The omission cannot be ignored as insignificant.
When the Investigating Officer has visited the scene, he made reference to the street
lights, petrol bunk light etc. Whether the street lights and the petrol bunk/ light had
been burning at the time of the occurrence and the spot where the incidence happened
was so located as to receive the light emanating from these sources are required to be
made out by the prosecution. When this significant fact is left out in the earliest record,
the improvement in the course of the investigation and trial could be of no avail. The
fact that there had been no proof regarding the identity of the assailants until 18.8.1974
would suggest that even persons who collected at the scene in the course of the
incidence or soon thereafter were not in a position to identify any one of the assailants.
Since the Investigating Officer arrived at the scene the same night and the inquest was
held in the next morning, it would have been possible for the investigating agency to
collect information regarding the identity of the assailants earlier to 18.8.1974, if they
had been really identified by any one of the witnesses examined in the case. When no
natural light was available and the street light was at a distance it is unlikely that the
eye witnesses by momentary glance of the assailants who surrounded the victim had a
lasting impression and the chance of identifying the assailants without mistake. The
credibility of the evidence relating to the identification depends largely on the
opportunity the witness had to observe the assailants when the crime was committed
and memorize the impression. This aspect of the matter had been stressed by the trial
court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the

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inherent infirmity and failed to deal effectively with every important circumstance in the
evidence which weighed with the trial court to disbelieve the prosecution case.
11. We have noticed that the magistrates in conducting the test identification parade
have committed a grave error. In the case of Accused No. 6 PW-9 had mixed up along
with PWs 1 and 2 a person, Gulati who knew the accused. Similarly, in the identification
of the other accused, PW-4 who claimed acquaintance with Accused Nos. 2, 3 and 5 was
mixed up with PWs 1 and 2. When persons who have already known the accused
persons to be identified are mixed up with the witnesses, the test identification is
clearly vitiated and is futile. Value of identification parade depends on the effectiveness
and the precautions taken against the identifying witness having an opportunity of
seeing the persons to be identified before they are paraded with others and also against
the identifying witness being provided by the investigating authority with other unfair
aid or assistance so as to facilitate the identification of the accused concerned.
Therefore, the evidence of the earlier identification in this case is unacceptable. The
testimony of PWs 1 and 2 before court is also unsafe to be acted upon.
12. Thus we do not consider that the view taken by the learned sessions judge on the
whole was erroneous. The overall view of the evidence taken by the learned sessions
judge is reasonable and plausible, while it is true that some of the reasons given if
taken individually do not appear to be substantial. Even when two evenly balanced
views of the evidence are possible one must necessarily concede the existence of a
reasonable doubt. Thus on a careful and anxious consideration of the evidence in the
light of the reasoning adopted by the trial court as well as the High Court, we are of the
opinion that the High Court was not justified in interfering with the order of acquittal
when the identity and involvement of the appellants had not been established beyond
reasonable doubt. We accordingly allow the appeal, set aside the conviction and
sentence and maintain the order of acquittal. The bail bonds of the appellants shall
stand cancelled.
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