Document Fragment View

Matching Fragments

6 hereinafter referred to as ‘CJM’.

order dated 24.07.2000, directed PW­47 (JMFC­ IV, Thiruvananthapuram) to conduct a TIP. Accordingly, PW­47 decided to conduct the TIP on 31.07.2000 for the identification of Accused Nos. 1­16.

7. To protect the sanctity of the TIP, the Judicial Magistrate (PW­47) is said to have instructed the IO (PW­84) to ensure that the witnesses (who were later examined as PWs 1, 3, 4, 5, 6 and

7) earmarked for the TIP do not get any opportunity to see the Accused before the TIP. For conducting the TIP, the Judicial Magistrate (PW­47) directed the IO (PW­84) to arrange forty civilians as non­suspects. The IO (PW­84) could, however, arrange only for thirty non­suspects being twenty police officers and ten civilians. In addition to these thirty non­suspects, the Judicial Magistrate (PW­47) is said to have shortlisted twenty­one undertrials to participate in the TIP. However, PW­47 decided to go ahead with only twenty­one undertrials and ten civilians. It is his version that he made an effort to fetch more undertrials for the TIP, but to no avail. Ultimately, he conducted the TIP by mixing the sixteen accused with the thirty­one non­suspects.

18. The Sessions Court rejected all the objections to the legality and credibility of the TIP by holding that (i) the IO (PW­84) was just present and did not influence the TIP in any manner; (ii) the imbalance in the ratio between suspects and non­suspects in the TIP is not the Judicial Magistrate’s (PW­47) or the IO’s (PW­84) fault, because they tried their best to fetch more non­suspects;

(iii) the IO (PW­84) took steps to prevent disclosure of identity of accused to witnesses before the TIP by covering the side of the vehicle in which they were brought to the court for extension of remand, though, he also stated that he did not put a mask on them; (iv) there is no material to show that photographs or video­ graphs of the Accused were taken and shown to the witnesses prior to the TIP; and (v) even though PW­3 and PW­4 admitted in cross­examination before the Court that some of the accused were shown to them before the TIP, during re­examination, both of them frankly admitted that after the incident, they had seen the miscreants for the first time during the TIP. In view of its conclusions on the TIP, the Trial Court proceeded to convict Accused Nos. 1­7, 9­12, 14, 16­19 under Sections 143, 147, 148 IPC and 3(2)(e) of PDPP Act r/w 149 of the IPC and sentenced them to four years of imprisonment.

14 (2007) 15 SCC 372 15 (1995) Supp 1 SCC 80

24. Shri Harshad V. Hameed, learned counsel appearing for the State, countered the submissions made regarding the conduct of the TIP by contending that – (i) the decision in Pradeepan v. State of Kerala16, is not binding. The same were mere guidelines which could be adjusted based on the facts and circumstances of a case. Reliance was also placed on the decision of the Kerala High Court in Mohanan Nair v. State of Kerala 17, to support the same point; (ii) a TIP can be accepted as a piece of evidence based on the subjective satisfaction of a court, which has occurred in this case; (iii) if there were concerns about the manner in which the TIP was conducted, then the TIP itself should have been challenged. In that view of the matter, it was submitted that when it has not been challenged, then under Section 80 of the Indian Evidence Act, 1872, a presumption arises that the TIP Report is a valid proof of evidence; (iv) the JFMC (PW­47) took every measure within his reach to ensure smooth conduct of the TIP; (v) the IO (PW­84) took all possible measures to ensure that the TIP is conducted at the earliest possible opportunity; (vi) reliance was placed on the decision of this Court in the case of 17 (1989) Cr.L.J. 2106 (Ker) Munna Kumar Upadhyay v. State of Andhra Pradesh18, where it was held that if pictures of the suspects were circulated in newspapers months before the TIP is conducted, then the circulation would have lost its effect on the minds of the witnesses; (vii) the Sessions Court has only convicted those accused, who were identified both before the Court as well as in the TIP. The testimony of these eyewitnesses never suffered from any infirmities; and (viii) the evidence of PW­5, PW­6 and PW­8, which was relied upon by the Trial Court, was not biased.

45. In view of the above, we are of the opinion that there existed no useful purpose behind conducting the TIP. The TIP was a mere formality, and no value could be attached to it. As the only evidence for convicting the appellants is the evidence of the eye­ witnesses in the TIP, and when the TIP is vitiated, the conviction cannot be upheld. We will now examine the other lapses while conducting the TIPs.

46. Re: Delay in conducting the TIP: Undue delay in conducting a TIP has a serious bearing on the credibility of the identification process. Though there is no fixed timeline within which the TIP must be conducted and the consequence of the delay would depend upon the facts and circumstances of the case 42, it is imperative to hold the TIP at the earliest. The possibility of the TIP witnesses seeing the accused is sufficient to cast doubt about their credibility. The following decisions of this Court on the consequence of delay in conducting TIP have emphasised that the possibility of witnesses seeing the accused by itself can be a decisive factor for rejecting the TIP. In Suresh Chandra Bahri v. State of Bihar43, it was held that: