The Supreme Court reiterated that any identification made by witnesses in the TIP in presence of the police officer tantamount to statements made to the police officer under Section 162 Cr.P.C.
The appeals are directed against the judgment of the High Court of Kerala upholding the conviction of Accused under Sections 143, 147, 148 of the Indian Penal Code, 18601 , and Sections 3(2)(e) of Prevention of Damages to Public Property Act, 19842 , read with Section 149 of the IPC. A sentence of four years of rigorous imprisonment and a fine of Rs. 10,000, as imposed by the Trial Court, was also upheld by the High Court.
Senior Advocate Sonia Mathur, appearing for Accused, contended that the High Court has not rendered any independent finding on the issue of destruction of public property and has merely reiterated what the Sessions Court had held.
Senior Advocate Vinay Navare, appearing for Accused, contended that the statements given by Prosecution witnesses could not form the basis of conviction because prosecution witness 5 had stated in his deposition that he was not present at the time of the incident and that he reached the place of occurrence only after the incident.
Advocate Harshad V. Hameed, appearing for the State, contended that the decision in Pradeepan v. State of Kerala, is not binding. The same were mere guidelines which could be adjusted based on the facts and circumstances of a case.
The division bench of Justice B.R. Gavai and J Pamidighantam Sri Narasimha noted that instead of filing an application for conducting a TIP at the earliest, the IO filed a remand application, pursuant to which the Accused were remanded to police custody.
The court opined 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 bench held that 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.
“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”, the court said.
Case title: Gireesan Nair & Ors. Etc. v/s State of Kerala
Citation: Criminal appeal nos. 18641865 of 2010