SIDDANKI RAM REDDYversusSTATE OF ANDHRA PRADESH

                    [2010] 8 S.C.R. 1119


                  SIDDANKI RAM REDDY                               A
                               v.
               STATE OF ANDHRA PRADESH
           . (Criminal Appeal No.· 1852 of 2008) ·

                        JULY 27, 2010
                                                                   B
          [R.M. LODHA AND A.K. PATNAIK, JJ.]

    Penal Code, 1860:

    s.302 - Murder - Conviction by courts below -                  c
Interference with - HELD: When evidence produced by
prosecution neither has quality nor credibility, it would be
unsafe to rest conviction upon such evidence, and judgments
of courts below will have to be interfered with - In the instant
case, trial court and High Court mechanically relied upon the      D
prosecution evidence that it was the appellant who had
attacked the deceased in court premises, without appreciating
that it was unsafe to rest conviction upon the evidence of the
witnesses with regard to the identification of the accused -
Conviction set aside - Constitution of India, 1950 - Article
                                                                   E
136 - Evidence - Test identification parade.

    Evidence:

     Identification of accused - Test identification parade -
Purpose of - HELD Is to have corroboration to the evidence         F
of the eye-witnesses in the form of earlier identification - In
the instant case, out of the three witnesses who had
participated in the test identification parade, two failed to
identify the accused as the assailant and the third had seen
the accused earlier in the police station - Besides, they had      G
seen the assailant for a very short time - When an attack is
made on the deceased by a mob in a crowded place and the
eye witnesses had little time to· see the accused, the
substantive evidence should be sufficiently corroborated by
                             1119                                  H
   1120    SUPREME COURT REPORTS              [201 O] 8 S.C.R.

A the test identification parade - Penal Code, 1860 - s 302.

      A charge-sheet was filed against fifteen persons,
  including the appellant, for murder of the son of the
  complainant in court premises. A-11 to A-15 were
  absconding. The trial court convicted and sentenced the
8
  appellant (A-1) u/s. 302 IPC and acquitted A-2 to A-10. The
  judgment was affirmed by the High Court.

       In the appeal filed by A-1, it was contended for the
  appellant that there was no reliable evidence to inculpate
C the appellant, as none of the eye-witnesses, namely, PWs
  1, 5 and 6, could identify the appellant; and that the test
  identification parade was not fair as only the appellant
  and another out of the 8 suspects arrested, were
  subjected to the test identification parade.
D
       Allowing the appeal, the Court

       HELD: 1.1. It is true that concurrent findings of fact
  arrived at on the basis of evidence by the trial court and
  the High Court are not normally interfered with by this
E Court in appeal. But, as has been held by this Court in
  A. Subair, • when the evidence produced by the
  prosecution has neither quality nor credibility, it would be
  unsafe to rest conviction upon such evidence and the
  judgments of the courts below will have to be interfered
F with. This is one such case in which both the trial court
  and the High Court have mechanically relied on the
  evidence of PWs 1, 5 and 6 that it was the appellant who
  had attacked the deceased with an axe in the court
  premises without appreciating that it was unsafe to rest
G conviction upon the evidence of PWs 1, 5 and 6 with
  regard to the identification of the assailant. [para 22]
  [1133-F-H; 1134-A-C]
      *A. Subair v. State of Kera/a (2009) 6 SCC 587;
                                                      =
   Mankamma v. State of Kera/a 2009 (14 ) SCR 1152 (2009)
H 1o sec 164, relied on.
   SIDDANKI RAM REDDY v. STATE OF ANDHRA               1121
                 PRADESH

     1.2. The evidence of PW-1, the father of the deceased,    A
naming the appellant as the assailant is not reliable
because though he has stated that he knew the appellant
by name, in the FIR which was lodged in less than an
hour after the incident he has not mentioned the name
of the appellant. The proceedings cf the test identification   B
parade show that PW-1 has not identified any of the
suspects. The version given by PW-1 in the witness box
that the appellant was the assailant of the deceased
appears to be based on his suspicion that the appellant
out of grudge might have killed the deceased. This             c
suspicion of PW-1 is borne out by his own testimony.
[Para 14-15] [1129-B, C; F-G]

     Ram Kumar Pandey v. State of Madhya Pradesh 1975
(8) SCR 519; (1975) 3 sec 815, relied on.
                                                               D
     1.3. PW-5, who at the relevant time was working as a
court constable, claims to have seen the appellant on the
date of occurrence when he attacked the deceased by an
axe. In the test identification parade, he identified the
appellant as the assailant. His evidence, however, is that     E
he was present when the appellant and other accused
persons were produced for remand in the court on
11.3.2005 and he, therefore, knew the physical features
of the appellant on 11.3.2005. It is thus clear that when
the test identification parade took place on 23.4.2005, PW-    F
5 had not only seen the appellant but also had knowledge
that he was the accused in the murder which took place
in the court premises on 28.2.2005. His evidence that the
appellant was the assailant is, therefore, not reliable.
[Para 17-18] [1130-G-H; 1131-A-F]
                                                               G
     Lal Singh and Ors. v. State of u. P. (2003) 12 sec 554,
relied on.

     1.4. PW-6, another constable on court duty, also
stated that he saw the assailant attacking the deceased        H
    1122   SUPREME COURT REPORTS               (2010] 8 S.C.R


A with an axe in the court premises. It is difficult to believe
  the evidence of PW-6 regarding the identification of the
  appellant as the assailant because in the test
  identification parade he has stated that the suspect has
  injury mark on his right cheek; whereas the Magistrate
B (PW-34) conducting the test identification parade has
  stated in his evidence that according to his Report (Ex.
  P64) none of the two suspects had injury mark on the
  right cheek. [Para 4 and 19] [1125-B-C; 1132-B-C]

      2.1. This Court has held in Daya Singh* that the
C purpose of test identification is to have corroboration to
  the evidence of the eye-witnesses in the form of earlier
  identification and that the substantive evidence of a
  witness is the evidence in the court. In the facts of the
  instant case, a mob attacked the deceased in the
D crowded corridors of the court and PW-1, PW-5 and PW-
  6 in their evidence in the court claim to have seen the
  appellant chasing the deceased and assaulting him with
  an axe on his neck. All these three eye-witnesses have
  also stated that soon after the assault the appellant ran
E away from the court premises. Thus, they saw the
  assailant for a very short time when he assaulted the
  deceased with the axe and thereafter when he made his
  escape from the court premises. When an attack is made
  on the deceased by a mob in a crowded place and the
F eye-witnesses had little time to see the accused, the
  substantive evidence should be sufficiently corroborated
  by a test identification parade held soon after the
  occurrence and any delay in holding the test
  identification parade may be held to be fatal to the
G prosecution case. [Para 20] [1132-D-H; 1133-A]
        *Daya Singh v. State of Haryana 2001 (1) SCR
    1115=2001 (3) SCC 468; Lal Singh and Ors. v. State of U.
    P 2003 (12) sec 554, relied on.

H
   SIDDANKI RAM REDDY v. STATE OF ANDHRA                 1123
                 PRADESH

     2.2. Further, the test identification parade has not A
been fair to the appellant. Although eight suspects were
arrested, only the appellant and one other were produced
before the witnesses at the test identification. parade.
This gives room for a lot of doubt on the case of the
prosecution that none other than the appellant was the B
assailant. Therefore, the corroboration of the substantive
evidence of PWs 1, 5 and 6 on the identification of the
suspect by the test identification parade is not.
trustworthy. [Para 21) [1133-B-E]

     State of Maharashtra v. Suresh 2002 (1) SCC 471,            C
distinguished.

                     Case Law Reference:
    1975 (8) SCR 519            relied on.           Para 14
                                                                 D
    (2003) 12 sec 554           relied on.           Para 18
    2001 (1) SCR 1115           relied on.           Para 20
    2002 (1) sec 471            distinguished       Para 21
                                                                 E
    (2009) s sec 587            relied on.          Para 22
    2009 (14) SCR 1152          relied on.          Para 22

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1852 of 2008.                                                F
    From the Judgment & Order dated 4.7.2008 of the High
Court of A.P. at Hyderabad in Criminal Appeal No. 147 of 2006.

    Suhsil Kumar, Aditya Kumar, Guntur Prabhakar for the
Appellant.                                                       G

    Rama Krishna Reddy, Altaf Fatima (for D. Bharathi
Reddy) for the Respondent.


                                                                 H
    1124    SUPREME COURT REPORTS                 [2010]8SCR


A       The Judgment of the Court was delivered by

         A.K. PATNAIK, J. 1. This is a Criminal Appeal against
    the judgment dated July 4, 2008 of the High Court of Andhra
    Pradesh in Criminal Appeal No. 147 of 2006.
B        2. The facts very briefly are that on February 28, 2005 one
    Komidi Sai Baba Reddy (deceased) was killed in the court
    premises of R.R. District at Cyberabad. The father of the
    deceased lodged a First Information Report (FIR) before the
    Station House Officer, P.S. L.B. Nagar alleging that on
C   February 28, 2005 at 11.00 a.m. when the deceased was
    coming to the court, Narsimha Reddy's son, Srinivas Reddy
    and others sprinkled chilly powder in the eyes of the deceased
    and cut him by an axe and all this was done due to old
    vengeance. After investigation, a charge sheet was filed against
D   15 accused persons including the appellant in the court of the
    Second Metropolitan Magistrate, R.R. District, Cyberabad. As
    accused nos. 11 to 15 were absconding, the case was split
    up and accused nos. 1 to 10 were tried for several charges in
    Sessions Case No.195 of 2005. After the trial the 5th Additional
E   Sessions Judge (FTC) acquitted accused nos. 2 to 10 of the
    charges and convicted the appellant, who was the accused
    no.1, under Section 302 of the Indian Penal Code, 1860 and
    sentenced him to undergo Rigorous Imprisonment for life and
    to pay a fine of Rs.25,000/- and in default to suffer Simple
F   Imprisonment for one year.

        3. Mr. Sushi! Kumar, learned counsel for the appellant,
  submitted that it will be clear from the evidence led by the
  prosecution that the deceased was killed in the court premises
  by a mob and there is no reliable evidence on record to show
G that it was the appellant who had killed the deceased. He took
  us through the evidence of PW-1. PW-5 and PW-6, who
  according to the prosecution are the eye witnesses, to show
  that none of them have been able to identify the assailant of
  the deceased. He referred to the FIR (Ext.P1) to show that the
H appellant-Ram Reddy had not been named in the FIR lodged
    SIDDANKI RAM REDDY v. STATE OF ANDHRA                   1125
           PRADESH [A.K. PATNAIK, J.]

by PW-1. He submitted that in the FIR the accused persons           A
named are Narsimha Reddy's son and Srinivas Reddy, and the
appellant is neither Narsimha Reddy's son nor Srinive1s Reddy
and, therefore, the evidence of PW-1 that the appellant was the
assailant is not at all reliable.
                                                                    B
     4. He submitted that PWs 5 and 6 were police constables
performing court duty and they did not know the appellant
personally and yet they have deposed before the court that the
appellant was the assailant of the deceased. He submitted that
PW5 has stated that the appellant was wearing a Kurta and
Lachi, whereas the Inspector of Police (PW-36), who arrested        c
the appellant, has stated in his evidence that at the time of
arrest, the appellant was neither wearing c:i Kurta nor a Lachi.

  · 5. He next submitted that the Test Identification Parade
was not at all fair because the appellant was arrested and eight    D
others had also been arrested but only the appellant and one
other accused were produced before the witnesses in the Test
Identification Parade before the Judicial Magistrate (PW-34).
He submitted that though the appellant was arrested on March
9, 2005, he was produced in the Test Identification Parade on       E
April 23, 2005 about 54 days after the arrest and this inordinate
delay in conducting the Test Identification Parade has not been
explained by the prosecution.

     6. He submitted that in any case in the Test Identification
Parade PWs 1, 5 and 6 have not been able to properly identify       F
the appellant. He submitted that PW-1, father of the deceased,
has not identified the appellant at all. He argued that PWs 5
and 6 had enough opportunity to see the appellant prior to the
Test Identification Parade and in fact when the appellant was
produced before the court alongwith other accused persons           G
after the arrest, PW-5 was one of the members of the poiice
escort party and therefore he knew who was the accused
before the Test Identification Parade. He submitted that PW-6
has stated before the Magistrate (PW-34) carrying out the
Identification Parade that he can identify the appellant on the     H
    1126    SUPREME COURT REPORTS                 (2010)8SCR


A basis of a scar on the cheek. but PW-34 has stated in his
  evidence that the appellant did not actually have any such scar
  or wound mark.

       7. Mr. Sushil Kumar vehemently argued that in the absence
B of any reliable evidence to establish beyond reasonable doubt
  that it was the appellant who was the assailant amongst the
  mob in the court premises. the conviction under Section 302
  of the Indian Penal Code, 1860 cannot be sustained. According
  to him, this is a fit case in which the appeal should be allowed
  and the impugned judgment set aside and the appellant should
C be acquitted.

        8. Mr. Rama Krishna Reddy, learned counsel appearing
  for the State of Andhra Pradesh, on the other hand, supported
  the judgments of the trial court and the High Court. He submitted
o that the murder of the deceased took place at 11.00 a.m. in
  broad day light in the court premises during the court hours and
  in full view of the public and the evidence of PW-1 clearly
  establishes that the appellant killed the deceased out of
  revenge because the appellant's brother-in-law, Narsimha
E Reddy, had been killed on September 22, 2004. He submitted
  that the contention on behalf of the appellant that he is not
  named in the FIR by PW-1 is not correct. He submitted that in
  the FIR [Ex.P1] the brother-in-law of Narsimha Reddy was
  named as one of the accused and in the confessional statement
F of the appellant [Ex.P20] recorded by the Inspector of Police
  (PW-36) the appellant has admitted that he is the brother-in-
  law of Narsimha Reddy. He further submitted that pursuant to
  the confession, the axe with which the murder was committed
  (M.0.-1) was also recovered.

G       9. He next submitted that the trial court and the High Court
    have relied on the evidence of PWs 5 and 6, who were none
    other than the court constables and who had chased the
    appellant for a while after the incident. He argued that PWs 5
    and 6 were therefore natural witnesses of the occurrence and
H
   SIDDANKI RAM REDDY v. STATE OF ANDHRA                  1127
          PRADESH [A.K. PATNAIK, J.]

they had no axe to grind against the appellant and their           A
evidence ought to be believed.

     10. Regarding the delay in conducting the Test
Identification Parade, he submitted that there was no unusual
delay in conducting the Test Identification Parade as the
                                                                   B
appellant alongwith eight others were arrested on 9/10 March,
2005 and were produced before the Magistrate on March 11,
2005 and thereafter on April 7, 2005 a requisition was made
by the Inspector of Police (PW-36) for conducting the Test
Identification Parade and on April 23, 2005 the Test
Identification Parade was conducted by the Magistrate. He          C
submitted that in any case the defence has not put any question
to Investigation Officer (PW-36) seeking his explanation for the
delay, if any.

     11. Mr. Reddy cited State of Maharashtra v. Suresh            D
[(2000) 1 SCC 471] wherein this Court has observed that if
potholes were to be ferreted out from the proceedings of the
Magistrates holding Test Identification Parades then possibly
no Test Identification Parade can escape from one or two
lapses and Test Identification Parades would become unusable.      E
He also relied on Daya Singh v. State of Haryana [(2001) 3
SCC 468] in which this Court has held that a Test Identification
Parade held 7 to 8 years after the incident was not vitiated
where ·an enduring impression of the identity of the accused
was gained during the incident.
                                                                   F
     12. He submitted that this Court has held in Mohd. Aslam
v. State of Maharashtra [(2001) 9 SCC 362] that where the
testimony of an eye witness is supported by another eye
witness with regard to the occurrence as well as the role of the
accused in the occurrence, minor lapses, if any, in the conduct    G
of the Test Identification Parade, cannot be a reason for
acquitting the accused. He submitted that in the present case,
PWs 1, 5 and 6, who were eye witnesses to the occurrence,
have clearly spoken about the attack by the appellant on the
deceased and their evidence is corroborated by the evidence        H
        1128     SUPREME COURT REPORTS                    [2010] 8 S.C.R.


    A   of other witnesses inclLlding PWs 34 and 36. According to him,
        this is not a fit case in which this Court should interfere with the
        concurrent findings of the trial court and the High Court holding
        the appellant guilty of the offence punishable under Section 302
        of the Indian Penal Code, 1860.
    B       13. The first witness on whom the High Court has relied
      on to convict the appellant is PW-1, the father of the deceased.
      The evidence of PW-1 is that on 28.02.2005 a case against
      his son and Sridevi was posted in the 2nd Metropolitan
      Magistrate Court and he had gone along with his son and
    C Sridevi to the court premises and they attended the court as
      soon as the case was called and came out of the court at about
      11.00 a.m. and at that time Narsing Yadav, accused No.2, who
      was standing at the flag-post, sprayed chilly powder into their
      eyes and while his deceased son was trying to obliterate the
    D chilly powder from his face, the accused No.1 (the appellant)
      chased him with an axe and he ran after the appellant and when
      the deceased came to the corridor of the court, he bent his
      head to a side to save from the blow of the axe, due to which
      that blow was received by another person. Thereafter, the
    E deceased took a turn to the left towards the 2nd Additional
      District Judge's Court and the chappal of the deceased slipped
      in that process and he bent and immediately the appellant
      hacked the deceased on left side of the neck. On seeing PW-
      1, the accused No.1 raised the axe but PW-1 went a little bit
    F back and then the appellant hacked the deceased three times
      on the left side of the neck and near the ear. PW-1 has further ·
      stated that this took place in the corridor of the Court Hall of
      2nd Additional District Judge's Court. The appellant then
      started ringing the axe in the air showing threatening gestures
.   G so as to cause terror and create fear in the mind of the people
      and although an advocate tried to catch the appellant he could
      not catch him and the appellant jumped the compound wall of
      the court opposite to the main entrance and went away.

               14. The evidence of PW-1 naming the appellant Ram
    H
      SIDDANKI RAM REDDY v. STATE OF ANDHRA                     1129
             PRADESH [A.K. PATNAIK, J.]

 Reddy as the assailant of the deceased is not reliable because         A
 though PW-1 has stated that he -knew that accused No.1 (the
 appellant) was the brother-in-law of Narsimha Reddy and that
 his name was Ram Reddy, in the FIR (Ex.P-1) which was lodged
 in less than an·hour·after the incident·at about 11.45 a.m. he
 has not mentioned the name of the;appellant as Ram Reddy.              B
 The:evidence·ofthe Investigation Officer (PW-36) also is that
 PW-1 did not state the name·ofthe appellant as Ram Reddy
 before him at the time of the inquest. If PW-1 knew the appellant
 as Ram Reddy at the time of the occurrence, he would have
 named Ram Reddy in the FIR'(Ex.P1) which he lodged within              c
 an hour of the incident and would have also named him as the
 assailant before the Investigation Officer (PW-36) The omission
 on the part of PW-1 not to mention the name of appellant as
 Ram Reddy in·the FIR (Ex.P1) before the Investigation Officer
 soon after the incident or at the time of inquest is ·relevant for     D
 deciding whether the evidence of'PW-1 that the appellant was
 the assailant is reliable. In Ram Kumar Pandey v. State of
 Madhya Pradesh [(1975) 3 SCC 815] cited by Mr. Sushil
 Kumar, this Court has held that omissions of important facts in
 the FIR affecting the probabilities of the case are relevant under     E
 Section 11 of the Evidence Act in judging the veracity of the
 prosecution case. In that case, the omission to mention any
 injury inflicted on Harbinder Singh by the appellant in the FIR
 was held to be very significant in the circumstances of the case.

        15. Moreover, it appearsJhat PW-1 did not actually know         F
   the appellant at the time of the incident and therefore did not
   name the appellant·in the FIR (Ex.P-1). The Investigation Officer
   (PW-36) has stated in his evidence that PW-1 did not know the
 . accused previously and therefore he requested the inclusion of
   PW-1 in the Test Identification Parade. In the Test Identification   G
   Parade, PW-1 could not identify any person as the assailant
   of the deceased. The evidence of the Magistrate (PW-34), who
· conducted the Test Identification Parade; is that PW-1 did not
   state before him thathe can identif~1 the appellant-Ram Reddy.
   The proceedings of the Test Identification Parade (Ex.P64)           H
    1130    SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A show that PW-1 has not identified any of the suspects. The
  version given by PW-1 in the witness box that the appellant was
  the assailant of the deceased appears to be based on his
  suspicion that the appellant out of grudge may have killed the
  deceased. This suspicion of PW-1 is borne out by his own
B testimony to the effect that Ram Reddy (accused No.1) is the
  brother-in-law of the deceased Narsimha Reddy and bearing
  grudge in regard to his brother-in-law being killed accused No.1
  has done this.

        16. The next eye-witness on which the High Court has
C placed reliance is PW-5. His evidence is that he was working
  as a police constable in L.B. Nagar P.S. since 11.06.2001. On
  28.02.2005, he was on court duty working as court constable
  in the court of the 2nd Metropolitan Magistrate and he came to
  the court at about 10.00 a.m. or 10.30 a.m. At about 11.00 a.m.
D he was at the front of the entrance of the court and he saw
  people running into the court building towards the 2nd A.D.J.,
  court. He saw a person with white kurta and pajama running
  to the court building chasing another person in white clothes
  and the person with white kurta and pajama hacking the person
E in front of him with an axe on his neck near the 2nd A.D.J. Court
  Hall and after hacking the assailant was running out through the
  main entrance towards the compound wall and then he and
   Mahender (PW-4), who was an advocate, chased the assailant
  but the assailant ran and went to the motorcycle on the other
F side of the compound wall. Mahender (PW-4) threw a stone on
  the assailant which hit him on the back and then he returned to
  the 2nd A.D.J. Court Hall where he saw the victim lying on the
  ground with faint breathing. While giving his evidence PW-5
   pointed out towards the appellant who was standing in the Court
G Hall and identified him as the assailant.

         17. PW-5, who was a constable attending to his duties in
    the court, was not expected to know the appellant before the
    incident, but he claims to have seen the appellant on 28.02.2005
    when he attacked the deceased by an axe. He was summoned
H
   SIDDANKI RAM REDDY v. STATE OF ANDHRA                     1131
          PRADESH [A.K. PATNAIK, J.]
to Cherlapally Jail for the Test Identification Parade and he has     A.
identified the appellant as the assailant during the Test
Identification Parade, If PW-5 saw the appellant for the first time
in the Test Identification Parade on 23.04.2005 his evidence
would have·been trustworthy. His evidence, however, is that he
was present when the accused No.1 (the appellant) and other           a
accused persons were produced for remand in the court on
11.03.2005 and he therefore knew the physical features of
appellant on 11.03.2005. It is thus clear that when the Test
Identification Parade took place on 23.04.2005, PW~5 had not
only seen the appellant but also had knowledge that the               C
appellant was the accused .in the murder which took place in
the court premises on 28.02.2005.

     18. In Lal Singh & Ors. v. State of U. P. [(2003) 12 SCC
554] cited by Mr. Sushil Kumar, this Court has held that the
Court has to rule out the possibility of the witnesses having         D
been shown to the witnesses before holding a Test Identification
Parade. In fact, in State of Maharashtra v. Suresh cited by Mr.
Reddy, this Court has noted that all precautions were taken that
the witnesses could not see the suspect during transit from the
lock-up to the place for Test of Identification Parade. But as we     E
have seen, PW-5 had already seen the appellant in court on
11.03.2005 and already knew that the appellant was the
accused when the Test Identification Parade was conducted on
23.04.2005. The evidence of PW-5 that the appellant was the
assailant is, therefore, not reliable.                                F

      19. The last eye witness on whom the High Court has
relied upon is PW-6. His evidence is that on 28.02.2005 he
came to court by 10.30 a.m. and attended the J.F.C.M., East
and North, and at about 11.00 a.m. he went to the section of          G
2nd A.D.J. court on some work and was returning when he saw
a person armed with an axe coming from the main entrance
side towards the 2nd A.D.J. Court Hall and he hacked the
person whom he was chasing with the axe on his neck. The
victim collapsed to the ground and he and a civilian by the name
                                                                      H
    1132    SUPREME COURT REPORTS                   [2010] 8 S.C.R


A Kumar tried to catch hold of the assailant, but the assailant by
  ringing the axe around terrorised everyone and created fear in
  the mind of the people. The further evidence of PW-6 is that
  when the assailant gave a blow he bent to the aside and then
  the assailant went through the main entrance. He was
8 summoned      to Cherlapally Jail for the Test Identification Parade
  in which he identified the accused No.1 (the appellant) as the
  assailant. It is difficult to believe the evidence of PW-6 regarding
  the identification of the appellant as the assailant because in
  the Test Identification Parade he has stated that the suspect
C has injury mark on his right cheek and the Magistrate (PW-34)
  conducting the Test ldentificati.on Parade has stated in his
  evidence that according to his Report (Ex. P64) none of the two
  suspects had injury mark on the right cheek.

          20. This Court has held in Daya Singh v. State of Haryana
D (supra) cited by Mr. Reddy that the purpose of test identification
    is to have corroboration to the evidence of the eye witnesses
    in the form of earlier identification and that the substantive
    evidence of a witness is the evidence in the Court and if that
    evidence is found to be reliable then absence of corroboration
E by test identification would not be in any way material. In the
    facts of the present case, a mob attacked the deceased in the
    crowded corridors of the collrt of the 2nd Additional District
    Judge and PW-1, PW-5 and PW-6 in their evidence in the court
     claim to have seen the accused No.1 (appellant) chasing the
F deceased with an axe and assaulting the deceased with axe
     on his neck. All these three eye witnesses have also stated that
     soon after the assault the appellant ran away from the court
     premises. The three eye witnesses thus saw the injured/
   •deceased for a very short time when he assaulted the deceased
G with the axe and thereafter when he made his escape from the
     court premises. When an attack is made on the injured/
     deceased by a mob in a crowded place and the eye witnesses
     had little time to see the accused, the substantive evidence
     should be sufficiently corroborated by a test identification
, , p;:irade held "'oon after the occurrence and any delay in holding
    SIDDANKI RAM REDDY v. STATE OF ANDHRA                    1133
           PRADESH [A.K. PATNAIK, J.]

the test identification parade may be held to be fatal to the        A
prosecution case. In Lal Singh & Ors. v. State of U. P., this
Court has held that where the witness had only a fleeting
glimpse of the accused at the time of occurrence, delay in
holding a test identification parade has to be viewed seriously.
                                                                     B
     21. Further, the test identification parade in this case has
not been fair to the appellant. Although eight suspects were
arrested, only the appellant and one 0th.er were produced
before the witnesses at the Test Identification Parade. This
gives room for a lot of doubt on the case of the prosecution         C
that none other than the appellant was the assailant. In State
of Maharashtra v. Suresh (supra}, on which reliance was
placed by Mr. Reddy, the Court found that the suspect was
permitted to stand anywhere among seven persons and the
witnesses were then asked to identify the person whom they
saw on the crucial day and on these facts this Court held that       D
the test identification parade was conducted in a reasonably
foolproof manner. This is not what has been done in the present
case and, therefore, the corroboration of the substantive
evidence of PWs 1, 5 and 6 on the identification of the suspect
by the test identification parade is not trustworthy.                E

     22. It is true, as has been submitted by Mr. Reddy, that
both the trial court and the High Court have arrived at concurrent
findings on the basis of the evidence of PWs 1, 5, 6 and other
witnesses that the appellant was the assailant of the deceased       F
and that concurrent findings of fact arrived at on the basis of
evidence by the trial court and the High Court are not normally
interfered with by this Court in appeal. But as has been held
by this Court in A. Subair v. State of Kera/a [(2009) 6 SCC
587], when the evidence produced by the prosecution has              G
neither quality nor credibility, it would be unsafe to rest
conviction upon such evidence and the judgments of the courts
below will have to be interfered with. This Court has also held
in Mankamma v. State of Kera/a [(2009) 10 SCC 164] that
ordinarily this Court does not interfere in a matter by re-
                                                                     H
    1134    SUPREME COURT REPORTS                    [2010) 8 S.C.R.


A appreciating the evidence but when it is found that the evidence
   has been appreciated by the High Court in a mechanical
  manner and without proper consideration of facts and
   circumstances on record, this Court will have to re-appreciate
   the evidence in the interest of justice. This is one such case in
B ,which both the trial court and the High Court have mechanically
   relied on the evidence of PWs 1, 5 and 6 that it was the
   appellant who had attacked the deceased with an axe in the
   court premises without appreciating that it was unsafe to rest
   conviction upon the evidence of PWs 1, 5 and 6 with regard to
c the identification of the assailant.
         23. In the result, we allow this appeal and set-aside the
    impugned judgments of the High Court and the trial court and
    direct that the appellant, who is in custody, be released forthwith
    if not required in any other case.

    R.P.                                             Appeal allowed.