Holding

Convictions based solely on improperly conducted identification parades and on probabilistic identification are unsustainable; the appeal is allowed and the convictions are set aside.

Summary

The case arose from a bomb attack on a police lock‑up in Mumbai where a detainee was killed. Police constable PW‑2 identified two accused, Vijay and Keshya, as miscreants, but his statement did not contain their surnames. The FIR later listed full names, and the accused were arrested, photographed while in lock‑up, and those photographs were shown to PW‑2 and another constable before test‑identification (TI) parades that were conducted inside the lock‑up. The trial court and the High Court convicted the appellants on the basis of these identifications. The Supreme Court held that identification parades are investigative tools and must not involve showing photographs beforehand or be held where witnesses can see the accused prior to the parade; otherwise the identification is unreliable. Moreover, a conviction cannot rest on a high probability that witnesses knew the accused, especially when the FIR was prepared after investigation. Consequently, the Court set aside the convictions and ordered the appellants’ release.

Issues considered

Whether a test‑identification parade is valid when photographs of the accused are shown to witnesses before the parade and the parade is held in the investigating agency's lock‑up.
Whether an FIR that records full names of accused not disclosed by the witness is admissible as the basis of investigation.
Whether a conviction can be sustained on the basis of identification by witnesses who did not know the accused prior to the incident, relying only on a high degree of probability.
Whether the prosecution proved beyond reasonable doubt that the appellants were among the miscreants.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 161
Indian Evidence Act, 1872s. 9
Indian Penal Code, 1860s. 302

Subjects

identification paradetest identificationphotograph identificationFIR irregularitiesprobability vs certaintyconviction on identificationcriminal procedureevidence lawmurderlock‑up

Judgment

A RA VIND RA @ RA VI BANSI GOHAR.
v.
ST ATE OF MAHARASHTRA AND ORS.

AUGUST 4, 1998

B [M.K. MUKHERJEE AND D.P. WADHWA, JJ.]

Penal Code, 1860-Section 302-Murder-Po/ice Constable was the
eye-witness, not disclosing details about the accused in his statement to the
police as to fix-up the identity of the accused nor ascerting that person whom
C he named in FIR was accused before the court-Police showing photographs
of the accused to the witness before identification parade-Witnesses were
attached to the Police Station where the accused were in lock-up for some
time prior to incident-Held: Would not establish the probability of witnesses
knowing accused persons--Hence Conviction on the basis of the sole
identification of such witnesses is not sustainable.
D
Evidence Act, 1872-Section 9-Test-ldentification-Parade-
Legitimacy-Photographs of the accused persons shown to witnesses before
parade-Parade held in lock-up of the investigating agency-ldentifYing
witness were Police-Constables attached to concerned police station-Held,
E not valid since the witnesses had sufficient opportunity to identifY the accused.

Criminal procedure Code, 1973--Section 154-FIR on the statement
of the Police Constable, who knew the two accused out offour-No disclosure
of surname nor details whom he had seen-FIR still mentioning full name of
two accused-The peculiar fact and circumstances remain unexplained-
F Held, FIR was not prepared at the time alleged by the prosecution but it
was the outcome of the investigation.

According to prosecution, a number of persons attacked on a police
station and hurled country-made bombs. In the process a number of police
G constables sustained injuries. Four of them, who were carrying firearms,
thereafter entered into the Lock-up from the front entrance, where PW-2, a
police Naik, was on duty and went to cell No. 1 where B was detained and
killed him. PW-17, Officer-In-Charge of the police station recorded the
statement of PW-2, wherein PW-2, besides detailing the incident stated that
he could identify Vand K as two of the miscreants. PW-17, on the statement
H PW-2, registered a case and took up investigation.
978
RAVINDRA @RAVI BANS Iv. STA TE OF MAHARASHTRA 979

In the course of investigation three of the accused persons including A
the two appellants were placed on Test Identification (TD parades, which were
held by, PW-18, Special Executive Magistrate. PW-2, identified both the
appellants and an accused Rand PW-12, identified one of the appellants.

The appellants pleaded that while they were in the lock-up earlier their
photographs were taken which were later shown to PWs 2 & 12 to enable B
them to implicate the appellants in the case. The trial ended in conviction of
each of the appellants for those offences and sentence of death, imprisonment
for different terms, including life, and fine. High Court in appeal affirmed the
convictions and sentence of the appellants. Hence this appeal.

Allowing the appeal and setting aside the conviction and sentence of the C
appellants, this Court.

HELD : 1. The identification parades belong to the investigation stage
and they serve to provide the investigating authority with materials to assure
themselves if the investigation is proceeding on the right lines. It is through
these identification parades that the investigating agencies is required to D
ascertain whether the person whom they suspect to have committed offence
,. were the real culprits-and not by showing the suspects or their photographs.
Such being the purpose of identification parades, the investigating agency, by
showing the photographs of the suspects whom they intended to place in the
TI 11arade, made it farcical. If really the investigating agency was satisfied E
that the witnesses did know that the appellants from before and they were
in fact amongst the miscreants, the question of holding the TI parade in
respect of them for their identification could not have arisen. [985-C-D]

1.2. In the present case not only the photographs of the appellants and
other accused were shown before the TI parade, but they were held in the F
lock-up of the investigating agency thereby giving sufficient opportunity to
the identifying witnesses of seeing the persons to be identified. Having
regard to the facts that the two identifying witnesses were police constables
attached to the police station concerned, it was all the more necessary for
the investigating agencies to ensure that the TI parade wa~ held in a manner G
and at a place so as to avoid any criticism about its legitimacy.
[985-H; 986-A]
Hasib v. State of Bihar, [1972] 4 SCC 773: AIR (1972) SC 283, held
in applicable.

Laxmipat Choraria v. State ofMaharashtra, AIR (1968) SC 938; (1968) H
980 SUPREME COURT REPORTS [1998] 3 S.C.R.

A 2 SCR 624, referred to.

2. In his statement PW-2, stated that V and K were among the
miscreants. He did not disclose therein their surnames nor did he name any
other miscreants. However, in the formal FIR prepared on the basis of the
Statement of PW-2 he mentioned the full name of the two accused. In the
B cross-examination PW-2 admitted that at the time he lodged the FIR he did
not know the surname ofV and K. So, in this peculiar fact and circumstances,
which remain unexplained, he only conclusion that could be drawn is that
FIR was not prepared at the time alleged by the prosecution and was not the
basis of investigation-as it should be-but was the out come of the investigation.
C [984-D-H; 985-A)
3. To sustain the conviction, the High Court was required to record a
positive finding on the basis of reliable and acceptable evidence that the two
witnesses knew the appellants from before and not on the basis of high degree
of probability of knowing the appellants. Rather, it appears that the defence
D of the appellants that while they were in the lock-up earlier, their photographs
were taken and thereafter shown to the witnesses to implicate them in the
case is probabilised by the admission made by the Investigating Officers as
·•
also the witnesses that they were shown their photographs. [987-B-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
E 431 of 1998 Etc.

From the Judgment and Order dated 3/4. 7. 97 of the Bombay High Court
in C.C. No. 1/96 with Crl. A. No. 285of1996.

F V.S. Kotwal, Shirish Gupta and A.S. Bhasme for the Appellants.

I.G. Shah, S.S. Shinde and D.M. Nargolkar for the Respondents.

The Judgment of the Court was delivered by :

M.K. MUJ(HERJEE. J. Ravindra@ Ravi Bansi Gohar and Keshya @
G Kishore Amarsingh Maheshkar, the appellants in these two appeals, along
with two others were arraigned before an Additional Sessions Judge of
Greater Bombay to answer charges of rioting, two murders and other cognate
offences. The trial ended in conviction of each of the appellants for those
offences and sentence of death, imprisonment for different terms, including
H life, and fine. Against their convictions and sentences they preferred an
RAV!NDRA@RAV! BANS! v. STATE OF MAHARASHTRA [M.K. MUKHERJEE, J.] 981
appeal before the High Court, which was heard along with the case arising A
out of the statutory reference made by the trial Judge under Section 366 Cr.
P.C. In disposing of the reference case and the appeal by a common judgment,
the High Court affirmed the convictions and sentences of the appellants and
set aside those of the other two. Hence this appeal.

2. Shorn of details, the prosecution case is as under: B

(a) On March 5, 1987 at or about 3.30 a.m. a number of persons were
found approaching Satrasta police lock up of Agripada Police Station through
an opening in the compound wall and hurling country-made bombs. One of
the bombs hit and injured Manaji Mani, who was at the police post (guard C
chowki) near the lock up. Thereafter four of them, who were carrying fire-
arms, came to the front entrance of the lock up where Uttam Vishnu Gharte,
(PW2), a police Naik, was on duty. They asked him to had over the keys of
the lock up but on his refusal to do so inspite of threats meted out to him,
they retreated a few steps and hurled bombs towards the iron wire mesh
which was in front of cell No. I on the ground floor of the lock up. Through D
that wire mesh they then fired in the direction of cell No. I. Thereafter they
entered the gate, went inside through the rear lobby of the lock up, and one
of them broke open the lock of the gate of the front lobby. All of them then
entered through that gate and went to cell No. I wherein one Babu Gopal
Reshim, a suspect was detained. After firing at him-which resulted in his E
instantaneous death- they came back shouting some slogans. At the time of
retreat they also threw bombs in the area under the staircase which is treated
as resting room of the guards. In the process a number of police constables
sustained injuries. All the miscreants then ran away towards Sane Guruj Path.

(b) On getting information of the incident over phone Shri Zende F
(PW! 7), Officer-in-charge of Agripada police Station rushed to the lock up.
After making a preliminary survey of the scene of crime he recorded the
statement of P.W.2, wherein he, besides datailing the incident, stated that he
could identify Vijaya and Keshya as two of the miscreants. On that report
(Ext.24), P.W.17 registered a case and took up investigation. He prepared a G
panchnama of the articles found there which included five live bombs and
bullets. He also prepared a sketch map of the scene of offence. In the
meantime he had arranged to send the injured constables, including P.W.2.
and Ahire, to the hospital for treatment and the dead body of Babu Gopal
Reshim for post mortem examination, after holding inquest. While in the
hospital Ahire succumbed to his injuries. H
982 SUPREME COURT REPORTS (1998] 3 S.C.R.

A (c) In course of investigation three of the accused persons including
the two appellants were arrested on June 29, 1987 and they were placed in
two Test Identifications (T.l) parades which were held on July 8, 1987 by
Shri L.J. Parikh (P. W.18), Special Executive Magistrate. In those parades
P. W.2 identified both the appellants and accused Rajendra (since acquitted)
B and constable Ashok Dinkar Chakranarayan (P. W.12) identified appellant Ravi.
Accused Vinod Bhika Maria (since acquitted), who was arrested after charge
sheet was filed against the former three accused, was also placed in a T.l
parade in which constable Chandrakant S. Sawant (P.W.4) identified him as
one of the miscreants. Thereafter a supplementary chargesheet was filed
against him.
c 3. The appellants pleaded not guilty to the charges framed against them
and contended that they were falsely implicated at the instance of the police.
Besides, they asserted that earlier they had been arrested by the Agripada
Police Station and while they were in the lock up in question, their
photographs were taken which were later shown to P. Ws.2 and 12 to enable
D them (the three witnesses) to implicate them in the incident in question.

4. In order to establish its case the prosecution examined twenty eight
witnesses and exhibited a number of documents. No witness was, however, '
examined on behalf of the defence. Of the witnesses examined P.W.2,.P.W.4
and P.W.12, who, among others, were at the police lock up at the material time,
E gave an ocular version of the incident. Besides, Shakil Mohd. Ibrahim Ansari
(P.W.21), who was also detained in the police lock up as a suspect, was
examined by the prosecution to recount the incident. Though he supported
the prosecution case as to manner in which the incident took place, he did
not name or identify any of the four accused persons, for which he was
declared hostile and cross examined with reference to his statement recorded
F under Section 161 Cr. P.C. On perusal of the record we find that the evidence
of the above four witnesses regarding the occurrence stands corroborated by
the evidence of the doctors who held post mortem examinations upon the
dead bodies of Babu Gopal Reshim and Ahire and examined the injured
constables. Besides, the reports of the forensic Science Laboratory also go
G a long way to corroborate their version. In such circumstances, we find no
-
reason to disturb the concurrent findings of the learned Courts below in this
regard. Indeed, the learned counsel appearing for the appellants did not
seriously challenge this part of the prosecution case.

5. The next and the most crucial question that now falls for our
H determination if whether the prosecution has succeeded in conclusively proving
RA VINDRA@RA VI BANS! v. STATE OF MAHARASHTRA [M.K. MUKHERJEE, J] 983
that the two appellants were among the miscreants. To prove this part of its A
case the prosecution relied solely upon the evidence of P. W.2 and P.W.12.
P. W. 2 testified that out of the four persons who came to the lock up site he
could identify Vijaya (he died before the trial commenced) and Keshya and
he pointed out to appellant Kishore as keshya. According to him he knew
both of them for about 7/8 months prior to the incident. He also identified B
appellant Ravi and accused Raju (since acquitted) as two of the other
miscreants, but admitted that he did not know them from before. He further
stated that he identified the above three witnesses in a T.I. parade. The other
witness, namely P.W.12 identified appellant Ravi as one of the miscreants and
while identifying him deposed that he knew him and his name was Ravi
Bansal. He added that he came to know his name at the time of the T.I. Parade. C
The evidence of the above two witnesses regarding identification in T.I.
parade was corroborated by that of P.W.18 who held the parade on July
8,1987.

6. It is not in dispute-indeed, the prosecution case itself, as testified
by two of the Investigating Officers is,- that the photographs of the four D
accused (including the two appellants) were shown to the above witnesses
r before the T.I. parade was held. Notwithstanding this glaring fact, which in
our view, made the identification in T.I. parade and, for that matter,
identification in Court worthless, the trial Court accepted the evidence of
P.W.2 & P.W.12 and that of P.W.4 who identified another accused. The High
Court, however, relying upon the judgment of this Court in Laxmipat Choraria E
& Others v. State of Maharashtra, A.LR. (1968) SC 938, held, that the
evidence of the witnesses so far as it related to identification of the accused
who were not known to them from before was unworthy of credit, as,
admittedly, their photographs were shown to them before T.I. parade.

-- Accordingly, the High Court acquitted the other two accused and also left
out of consideration the evidence of P.W.2 regarding identification of
appellant Ravi. The High Court, however, accepted the evidence of P.W.2 &
p

P.W.12 regarding identification of appellants Kishore and Ravi respectively,
as those witnesses claimed to have known them from before and drew the
following conclusion to uphold their convictions and sentences:
G
"On the basis of the evidence on record we have come to the
conclusion that accused No.3 (Kishore) was known to the P.W.2 and
accused No.I (Ravi) was known to P.W.12. In these circumstances if
the police officers just to ensure earlier identity of accused showed
the photographs of accused who were already known to the witnesses
and further the said fact was confirmed by holding identification H
984 SUPREME COURT REPORTS (1998] 3 S.C.R.

A parade soon after and circumstances of the case we do not see that
it creates any infirmity in the case of the prosecution so far as the
identification of accused No.I by P.W.12 and accused No. 3 by P.W.2
is concerned. We must emphasize the fact that the material on record
in our opinion clearly shows that high degree of probability of P.W.2
knowing the accused No.3 and P. W.12 knowing the accused No. I, the
B witnesses being police officers attached to the Agripade Police Station
and the accused being inmates of the lock up in recent past of the
occurrence of the incident in question."

7. We have heard the learned counsel for the parties at length and with
C their assistance gone through the evidence relevant to the question which we
have to now answer. On going through the record we have found certain
disturbing features in the prosecution case which remain unexplained and go
a long way to discredit it. In his statement, which was recorded as the F.I.R.
(EXT. 24) P.W. 2 stated, that 'Vijaya' and 'Keshya' were among the miscreants.
He, however, did not disclose therein their surnames nor did he name any
D other miscreant. Curiously, however, we find that in the formal F.I.R prepared
on the basis of the statement of P.W.2 the following names have been shown
in the column meant for recording the names of the accused:

"!. Vijay alias Vijay Utkar
E
2. Keshya alias Kishore Marrya, Laxa and other 9/10 persons".

When cross examined on this point, P.W.2 admitted that at the time he lodged
the F.l.R. he did not know that the surname ofVijay was 'Utkar' and he came
to know about his surname from the papers. So far as keshya is concerned
F he stated that he knew that he was residing in Kanjarwada and was gunda ....,--.
of the locality and that he had told the police at the time of lodging of the
F.I.R. about those facts. He, however, admitted that in his statement he did
not give the detailed particulars of whom he knew and saw among the
miscreants and that there may be a number of persons by the name keshya.
G In view of the above admissions of P. W.2 we are at loss to understand how
the surnames of Vijay and Keshya and the name of laxa could find place in
the formal F.I.R. recorded on the statement of P.W.2. Equally surprising is that
though P.W.2 named keshya, his name was also given as@ Kishore Marrya.
While on this point it is also pertinent to mention that the full name of the
appellant Kishore who, according to P.W.2, was named as Keshya in his
H statement, is admittedly 'Kishore Kaheshkar'. From all these peculiar facts
RAVINDRA@RAVI BANS! v. STATE OF MAHARASHTRA [M.K. MUKHERJEE,!.] 985
and circumstances, which remain unexplained, the only conclusion that can A
;
be drawn is that the F.1.R. was not at all prepared at the time alleged by the
prosecution (4.15 a.m.). Indeed, in the instant case the F.I.R. was not the basis
of the investigation-as it should be - but was the outcome of investigation.

8. The next unusual feature of the case, is the showing of the
photographs of the accused to the witnesses who were to identify them in B
T.l. parade. As noticed earlier, the High Court did not lay any importance on
this aspect of the matter so far as the two appellants are concerned on
the ground that those photographs were shown to P.Ws.2 and 12, who were
already known to them to test whether their identification was correct or not
and that fact was confirmed by holding identification parade immediately after
their arrest. This finding of the High Court, in our view, is wholly unsustainable.
c
The identification parades belong to the investigation stage and they serve
to provide the investigating authority with materials to assure themselves if
the investigation is proceeding on right lines. In other words, through these
identification parades that the investigating agency is required to ascertain
whether the persons whom they suspect to have committed the offence were D
the real culprits - and not by showing the suspects or their photographs.
Such being the purpose of identification parades the investigating agency, by
showing the photographs of the suspects, whom they intended to place in
the T.l. parade, made it farcical. If really the investigating agency was satisfied
that P.Ws 2 & 12 did know the appellants from before and they were in fact E
amongst the miscreants, the question of holding T.I. parade in respect of them
for their identification could not have arisen.

9. Another disturbing feature of the case is that the T.I. parade was held
inside the lock up of C.l.D. department of the Bombay police which was
investigating into the case at the material time. In Hasib v. State of Bihar AIR F
........ (1972) SC 283 this Court observed that a vital factor for determining the value
of an identification parade is the effectiveness of the precautions taken by
those responsible for holding them against the identifying witnesses having
an opportunity of seeing the persons to be identified by them before they are
paraded with other persons and also against the identifying witnesses being
G
provided by the investigating authority with other unfair aid or assistance so
as to facilitate the identification of the accused concerned. The above
observations aptly apply in the facts of the instant case for not only the
photographs of the appellants and other accused were shown before the T.I.
parades, but they were held in the lock up of the investigating agency thereby
giving sufficient opportunity to the identifying witnesses of seeing the persons H
986 SUPREME COURT REPORTS [1998] 3 S.C.R.

A to be identified. Having regard to the fact that the above two identifying
witnesses were police constables attached to the concerned police station, it
was all the more necessary for the investigating agency to ensure that the
T.I. parade was held in a manner and at a place (preferably in jail) so as to
avoid any criticism about its legitimacy.

B 10. Coming now to the cases of the individual appellants we first take
up that ofRavindra who, as earlier noticed, was identified by P.W.12. According
to him he knew Ravi from before but he came to know about his name at the
time of T.I. parade. He, however, in his testimony did not state how he knew
him nor did he state in his statement recorded under Section 161 Cr. P.C. that
C amongst the miscreants he saw one whom he knew from before but did not
know his name. Unfortunately, this vital omission which rendered his evidence
regarding identification of appellant Ravi suspect in Court was not at all
considered by the High Court or the trial Court.

11. As regards the other appellant the relevant evidence of P.W.2, who
D identified him, in his cross examination is that Keshya, whom he named in his
statement before the police, was residing in Kanjarwada and was gunda of
the locality. He further stated that he had told the police that Keshya was
resident of Kanjarwada. If really P.W.2 knew about all those details, it was,
in the fitness of things, expected of him to disclose them in the statement he
E made before the police so as to fix up the identity ofkeshya. That apart, P.W.2
did not assert that Keshya, whom he named in the F.l.R, was the appellant
Kishore before us. On the contrary, he said that there may by many persons
by the name of Keshya. From these facts and circumstances the only reasonable
conclusion we can legitimately draw is that to ascertain whether Keshya
named by P.W.2 in his statement really referred to. the appellant Kishore
F Kaheshkar, that the police showed him his (Kishore's) photograph and placed
him in T.I. parade. In drawing this conclusion we have drawn inspiration from
the mystery surrounding the F.I.R.

12. That the High Court felt it difficult to sustain the convictions of the
G appellants in absence of any foundation laid by P. Ws.2 and 12 to indicate as
to how they came to know the appellants would be evident from the
observations made by the High Court (quoted earlier) that there was a high
degree of probability of P.Ws. 2 and 12 of knowing the two appellants
respectively as they were attached to Agripada police Station and they (the
appellants) were the inmates of the lock up for some time prior to the incident
H in question. we are constrained to say that the above reasoning of the High
RAVJNDRA i!) RAVI BANS! r STATE OF MAHARASHTRA [M.K. MUKHERJEE,J.] 987
~ Court is convoluted and strained. It was for the above two witnesses to A
testify that they had seen them while they were in the lock up earlier and that
is how they knew them from before the incident. In absence of any such
assertion, the High Court was not at all justified in making the above
observation on the basis of 'high decree of probability'. To sustain the
conviction the High Court was required to record a positive finding on the B
basis of reliable and acceptable evidence that the two witnesses knew the
appellants from before and not on the basis of high degree of probability.
Rather, it appears to us, the defence of the appellants that while they were
in the lock up earlier their photographs were taken and thereafter shown to
the witnesses to implicate them in the case is probabilised by the admission
made by the investigating officers as also P. W.2, that they were shown their C
photographs.

13. For the foregoing discussion we are unable to sustain the impugned
judgment on the basis of the sole identification of P.W.s. 2 and 12. The
appeals are accordingly allowed and the convictions and the sentences of the
appellants are set aside. The appellants, who are in jail, be released forthwith D
unless wanted in connection with any other case.

B.K.S. Appeals allowed.