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section 9 and Test identification parade

The evidence of test identification is admissible under Section 9 of the Indian Evidence Act. The Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in the Cr. P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court.


Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Where identification of an accused by a witness is made for the first time in Court, it should not form the basis of conviction. As was observed by Apex Court in Matru v. State of U.P., (1971) 2 SCC 75, identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. (Vide Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406).


The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests . It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.


In Subhash v. State of U.P. (1987) 3 SCC 331, the parade was held about three weeks after the arrest of the accused. Therefore, there was some room for doubt if the delay was in order to enable the identifying witnesses to see him in jail premises or police lock-up and thus make a note of his features. Moreover, four months had elapsed between the date of occurrence and the date of holding of the test identification parade. The descriptive particulars of the appellant were not given when the report was lodged, but while deposing before the Sessions Judge, the witnesses said that the accused was a tall person with shallow complexion. The Court noted that if on account of these features the witnesses were able to identify the appellant Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time when his face was fresh in their memory. It is important to note that since the conviction of the accused was based only on the identification at the test identification parade, the Court gave him the benefit of doubt while upholding the conviction of the co-accused. This is also a case where the conviction of the appellant was based solely on the evidence of identification. There being a delay in holding the test identification parade and in the absence of corroborative evidence, this Court found it unsafe to uphold his conviction.


In State of Andhra Pradesh v. Dr. M.V. Ramana Reddy (1991) 4 SCC 536, the Court found a delay in holding the test parade for which there was no valid explanation. It held that in the absence of a valid explanation for the delay, the approach of the High Court could be said to be manifestly wrong calling for intervention.



In the case of Brij Mohan & Ors. v. State of Rajasthan, (1994) 1 SCC 413, the test identification parade was held after three months. The argument was that it was not possible for the witnesses to remember, after a lapse of such time, the facial expressions of the accused. It was held that generally with lapse of time memory of witnesses would get dimmer and therefore the earlier the test identification parade is held it inspires more faith. It was held that no time limit could be fixed for holding a test identification parade. It was held that sometimes the crime itself is such that it would create a deep impression on the minds of the witnesses who had an occasion to see the culprits. It was held that this impression would include the facial impression of the culprits. It was held that such a deep impression would not be erased within a period of three months.


In Rajesh Govind Jagesha v. State of Maharashtra (1999 ) 8 SCC 428, the accused was apprehended on 20th January, 1993, while the identification parade was held on 13th February, 1993. It was also not disputed that at the time of identification parade the appellant was not having a beard and long hair as mentioned at the time of lodging of the first information report. It was also not disputed that no person with a beard and long hair was included in the parade. The witnesses were alleged to have identified the accused at the first sight despite the fact that he had removed the long hair and beard. This Court held that the Magistrate should have associated 1-2 persons having resemblance with the persons described in the FIR and why it was not done was a mystery shrouded with doubts and not cleared by the prosecution. In these circumstances, the Court observed that the possibility of the witnesses having seen the accused between the date of arrest and the test identification parade cannot be ruled out. This case also rests on its own facts, and mere delay in holding the test identification parade was not the sole reason for rejecting the identification.


In the case of Daya Singh v. State of Haryana, (2001) 3 SCC 468, the test identification parade was held after a period of almost eight years inasmuch as the accused could not be arrested for a period of 7-1/2 years and after the arrest the test identification parade was held after a period of six months. It was pointed out that the purpose of test identification parade is to have the corroboration to the evidence of the eye witnesses in the form of earlier identification. It was held that the substantive evidence is the evidence given by the witness in the Court and if that evidence is found to be reliable then the absence of corroboration by the test identification is not material. It was further held that the fact that the injured witnesses had lost their son and daughter-in-law showed that there were reasons for an enduring impression of the identity on the mind and memory of the witnesses.



In Lal Singh v. State of U.P., (2003) 12 SCC 554, while discussing all the cases germane to the question of identification parades and the effect of delay in conducting them held that:

"It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard and fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probablising the possibility of the accused having been shown to the witnesses, the Court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety."


Dana Yadav State of Bihar (2002) 7 SCC 295] , the Hon’ble Supreme Court categorically held that, the sole purpose of TIP is to lend corroboration to the court identification of the accused, and, identification before court should not normally be relied upon if the name of the accused is neither mentioned in the First Information Report, nor, is stated before the police.



In the case of Anil Kumar v. State of Uttar Pradesh, (2003) 3 SCC 569, this Court observed as under:


"It is to be seen that apart from stating that delay throws a doubt on the genuineness of the identification parade and observing that after lapse of such a long time it would be difficult for the witnesses to remember the facial expressions, no other reasoning is given why such a small delay would be fatal ..A mere lapse of some days is not enough to erase the facial expressions of assailants from the memory of father and mother who have seen them killing their son..."



In another case of Pramod Mandal v. State of Bihar, 2004 (13) SCC 150, placing reliance on the case of Anil Kumar (supra), this Court observed that it is neither possible nor prudent to lay down any invariable rule as to the period within which a Test Identification Parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the Courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the Test Identification Parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification.




Supreme Court of India

Mulla & Another vs State Of U.P on 8 February, 2010


The identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is two- fold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.


Therefore, the following principles regarding identification parade emerge: (1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses; (2) this condition can be revoked if proper explanation justifying the delay is provided; and, (3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses.



Vijayan v. State of Kerala. (1999) 3 SCC 54

In this case where the photograph of the accused was shown to the identifying witness and also the same was published in local newspapers, the identification parade was worthless. When the witness, identifying at a parade, failed to identify in court, the TI Parade identification lost its importance.


Supreme Court of India

Laxmi Raj Shetty And Anr vs State Of Tamil Nadu on 26 April, 1988


In the world as a whole today, the identification by photographs is the only method generally used by the interpol and other crime detecting agencies for identification of criminals engaged in drug trafficking, narcotics and other economic offences as also in other international crimes. Such identification must take the place of a test identification.


State of Himachal Pradesh v. Lekh Raj and Anr. JT, [1999] 9 SC 43 wherein it has been observed as under:

The evidence of identifying the accused person at the trial for the first time is, from its very nature, inherently of a weak character. Identification proceedings are used for corroboration purposes for believing that the person brought before the court was the real person involved in the commission of the crime. The identification parade even if held, cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where accused is not known to the witness or the complainant.



Supreme Court of India

Ram Lochan Ahir vs State Of West Bengal on 10 December, 1962

In the first place, a superimposed photograph is not any trick photograph seeking to make something appear different from what it is in reality. There is no distortion of truth involed in it or attempted by it. A superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other. Both the photographs are of existing things and they are superimposed or brought into the same plane enlarged to the same size for the purpose of comparison. Possibly some illustrations might make this point clear. For instance, if the photo of the deceased when alive were printed on a transparent medium and that were placed above a photograph of the skull-both being of the same size-the visual picture seen of the two together would approximate to the document objected as inadmissible. In the above, it would be seen both the photographs would be admissible in evidence and no objection could be taken to their being examined together. Again for instance, if instead of a two-dimensional photograph we had first a hollow model of the head of the deceased-say of transparent or semi-transparent material-constructed or made from a photograph, that certainly would be admissible in evidence provided there was proof that the model was exactly and accurately made. If the model were dismantled into segments and placed upon the skull with a view to show that the curves and angles, the prominences or depressions etc. exactly corresponded there could be no dispute that it would be a perfect method of establishing identity. If this were granted the superimposed photograph which is merely a substitute for the experiment with the model which we have just now described would be equally admissible as evidence to establish the identity of a thing. It was pointed out that this was the first occasion that in India an identity of a skeleton was sought to be established by means of superimposed photographs and that P. W. 18 had done this experiment by reference to what he had read in the books on the subject and that on that ground the evidence could' not be accepted. Any deficiency in scientific accuracy might go to the weight of the evidence which in the case on hand was a matter for the jury to consider, but we are now only on a very narrow question as to whether it is excluded from evidence as inadmissible. Our answer is that it was admissible in evidence.


Supreme Court of India

Kedar Singh And Ors. vs State Of Bihar on 18 September, 1997

"The only blemish pointed out against this eye witness is that situated as he was he could not have witnessed the occurrence. It has been maintained that it was a dark night and that the temple whereat an electric bulb of high power was said to be on could not be enough to identify the assailants. The Courts below have given sufficient reason to dispel such argument. Examining it again, it is noticeable that the deceased and PW-2 were within a short distance of each other going on the pathway when the deceased was surrounded by the accused persons in order to be assaulted. At that time PW-2 may have been stunned when firing was resorted to by Tuna Singh and his two acquitted co-accused as it was done at the spur of the moment. That apart, the act of Shivjee Singh in immobilising the deceased while lying down and let Kedar Singh chop off his head should have been an act comparatively slower and by that time, PW-2 could have gathered his wits and identify the assailants. It has also to be observed that even on a full dark night there is never total darkness. There can be other means to identify another through the shape of his body, clothes, gait, manner of walking etc. etc. Identification possible by voice too. That apart, we have the positive evidence that the temple light was on with the aid of which PW-2 claims to have identified the assailants. It is noteworthy that the occurrence took place at about 8.00 p.m. a time in the month of September when normally a place of worship becomes a visiting point. Thus neither can the presence of PW 2 at the spot be doubted nor can his ability to identify the assailants be questioned when he was stated to be 50 yards away from the temple and by the means of the light he could have certainly identified the assailant, his perception having sharpened. We thus are of the view that he was rightly believed by the Courts below."


Supreme Court of India

Earabhadrappa Alias Krishnappa vs State Of Karnataka on 11 March, 1983

It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement.


Supreme Court of India

Ravinder Kumar And Anr vs State Of Punjab on 31 August, 2001

"The second contention relates to the evidence of PW-5 Daya Ram (rickshaw-puller). He remembered the two appellants who engaged him to carry the load in his rickshaw up to the railway station. He also identified the wooden box in which the load was packed, with the help of the scribblings made on it. The contention is that it is not possible for any person, much less a rickshaw-puller like PW5, to remember who exactly employed him to carry a particular load on a particular day, after the lapse of several days thereafter. This contention is raised overlooking the psychological phenomenon that human memory is very often a conditioned characteristic. Anything which has any special or peculiar lineament can create an impact on the human mind lasting for long. While it is true that routine events in a man's day to day life may not remain in his mind for being remembered later, any odd or bizarre happenings involving him or in front of him have the tendency to stick in his mind indelibly. If there is any cause for him to recollect such events again they get refreshed again. That is why he is able to narrate such events with all details when asked to do so. This applies to all witnesses in criminal cases involving serious offences. Normally no porter or rickshaw-puller could speak from memory as to whom or whose load he carried many days ago. But if the carrying of a load on a particular day was soon followed by the flash of sensational news in the locality - that the load contained the corpse of a murdered person, the instinctive reaction of the carrier is to become inquisitive to know whether it was in respect of the load which he himself carried. If that inquisitiveness had turned positive it is extremely probable that all the vivid details relating to that event would stick in his memory. For him such event would not have been a usual occurrence but extraordinarily odd and queer. Hence it is not likely to fade out of the canvass of his mind. It will be unrealistic to jettison the testimony of such a witness on the mere ground that he could not have remembered after the lapse of long period the identity of the persons who engaged him and also of the load which he carried. We, therefore, repel such contention."


Madras High Court

R.Murugesan vs State Rep By on 5 February, 2014


What is the meaning of the expression "Substantive Evidence"? The Evidence Act does not define this. It is the creature of Judiciary and its meaning is traceable to the definition of the word Evidence in Section 3 of the Evidence Act.


""Evidence" means and includes __ (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;


such statements are called oral evidence;


(2) all documents including electronic records produced for the inspection of the Court;


such documents are called documentary evidence."


Oral evidence means statements made by a witness in the witness stand on oath in the Court which conducts the inquiry or trial in connection with matters of fact. This is called Substantive evidence. It should not be confused with the expression Substantial evidence. Substantial evidence falls within the province of appreciation of evidence. Statements of witnesses in the trial Court about facts they have perceived by senses is Substantive evidence. The narration of the events by the witness in the trial Court is Substantive evidence. Now coming to the Test Identification Parade Report [Ex.P13] done by the Magistrate [P.W.7], we have to state the following. Identification of the accused by P.W.3 and P.W.4 in the parade is not substantive evidence. They identified the appellants in their substantive evidence in Court. The prosecution failed to elicit answers from them with regard to their participation in the Test Identification Parade. A witness should say in the witness box that he identified the accused in the Identification Parade conducted by a Magistrate earlier. Thereafter, if the Identification Parade proceedings and the Identification Parade Report is proved by examining the Magistrate who conducted the parade, then the substantive evidence of the witness in the Court that he had earlier participated in an Identification Parade and identified the same accused will stand corroborated by the evidence of the Magistrate and his Identification Parade Report. When a Magistrate gives evidence with regard to the Test Identification Parade conducted by him, he will only give the name of the witness who participated in the parade. He cannot say that the witness who participated in the parade is prosecution witness so and so before the trial Court.



Supreme Court of India

Mohd.Farooq A.G.Chipa Rangari & ... vs State Of Maharashtra on 6 August, 2009

The TIP was conducted only after a period of 45 days which is not such a long period to cast any doubt over the evidentiary value of the TIP. Even otherwise, a TIP does not constitute substantive evidence but can only be used for corroboration of the statement in court. It is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation is proceeding on the right lines. The substantive evidence is the evidence of identification in court, which in the present case has been done by PW-18. This Court in the case of Amitsingh Bhikamsingh Thakur v. State of Maharashtra,(2007) 2 SCC 310, at page 315, has succinctly observed as follows :


" identification tests do not constitute substantive evidence.

They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 (in short "the Code") and the Evidence Act, 1872 (in short "the Evidence Act"). It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.


" It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration."


No one can be compelled to line-up for TIP and if the accused/suspect

refuses to submit himself for TIP, he does so at his own risk ( SURAJ

PAL V. STATE OF HARYANA, (1995) 2 SCC 64 )



If court is of the opinion that regard being had to the facts of a particular

case, bail should be granted to the accused, then, bail cannot be rejected

simply because TIP is still to be conducted. Court is empowered to grant

bail by imposing some limited conditions on the accused such as that the

accused shall not appear in public or interact with media for a limited

time;

Giving thumb impression, or, foot impression, or, palm/finger impression,

or, specimen of handwriting, or, exposing parts of body for the purpose of

identification, is outside the periphery of “to be a witness” so far as the

mandate of Article 20(3) of the Constitution of India, 1950 is concerned.

( STATE OF BOMBAY V. KATHI KALU OGHAD, AIR 1961 SC 1808 )

In the case of VISVESWARAN VRS. STATE REP. BY S.D.M., AIR 2003

SC 2471, their lordships of the Hon’ble Supreme Court have held that

the approach required to be adopted by the Courts in rape cases has to

be different. The ground realities are to be kept in view. Moreover, their

lordships have further held that the identification of accused either in

Court or in test identification parade is not a sine qua non for conviction.

In every case, the guilt can be proved from other circumstances. Many a

times, crimes are committed under cover of darkness when none is able

to identify the accused. The commission of crime can be proved also by

circumstantial evidence. The ground realities are to be kept in view. It is

also required to be kept in view that every defective investigation need

not necessarily result in the acquittal. In defective investigation, the only

requirement is of extra caution by Courts while evaluating evidence. It

would not be just to acquit the accused solely as a result of defective

investigation. Any deficiency or irregularity in investigation need not

necessarily lead to rejection of the case of prosecution when it is

otherwise proved.


In the case of SHEIKH HASIB V. STATE OF BIHAR, (1972) 4 SCC 773

A three Judge Bench of the Supreme Court reiterated that it is only the

identification of the accused in the Court which is a substantive evidence

and the test identification parade is held during investigation to minimize

the chances of memory to identifying witnesses fading away due to long

lapse of time



VIJAY @ CHINEE V. STATE OF MADHYA PRADESH (2010) 8 SCC 191

Holding of the Test Identification Parade is not a substantive piece of evidence,

yet it may be used for the purpose of corroboration; for believing that a person

brought before the Court is the real person involved in the commission of the

crime. However, the Test Identification Parade, even if held, cannot be

considered in all the cases as trustworthy evidence on which the conviction of

the accused can be sustained. It is a rule of prudence which is required to be

followed in cases where the accused is not known to the witness or the

complainant.

Honorable High court of Judicature at Hyderabad in its Devision

Bench Judgment in between RAJAMOORI RAM REDDY VS STATE OF

ANDRA PRADESH 2016 (2) ALT ( CRIMINAL ) 91 ruled that after arrest of

accused, shown him in press conference or produced before public through

electronic media. Though it was said to be powered him with mass. While

shown the accused in media, as the police were already presented the accused

before public media, Subsequent identification in test identification parade

would loose its credibility.




WOULD GIVING VOICE SAMPLES BE VIOLATIVE OF ARTICLE 20 (3) ?

In State of Bombay vs.Kathi Kalu Oghad :-


“(32) ………It has to be noticed that Article 20(3) of our Constitution does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must, in our opinion, be in the negative.


(33) …….the evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So, when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself.”


Supreme Court of India

Ritesh Sinha vs State Of Uttar Pradesh on 2 August, 2019

In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.



Failure to hold TIP would not make inadmissible the evidence of

identification of the accused in the court of law if such court

identification of accused is found to be reliable, trustworthy and

dependable (vide: MALKHAN SINGH V. STATE OF M.P., AIR 2003 SC 2669)


In the case of, DANA YADAV STATE OF BIHAR (2002) 7 SCC 295, the

Hon’ble Supreme Court of India categorically held that, the sole purpose

of TIP is to lend corroboration to the court identification of the accused,

and, identification before court should not normally be relied upon if the

name of the accused is neither mentioned in the First Information Report,

nor, is stated before the police;

Holding TIP is not obligatory and accused has no right to insist upon the

holding of TIP. Delay in holding TIP although is not fatal, but, efforts

must be made to hold it as soon as possible to avoid the mischief of

accused being shown to the witnesses ( ANIL KUMAR V. STATE OF U.P.,

(2003) 3 SCC 569 )


Court identification of the accused by the witness is useless, when the

witness has already failed to identify the accused at the TIP ( HARE

KISHAN SINGH V. STATE OF BIHAR, AIR 1988 SC 863 )


Incorrect identification of the accused by a witness in the court of law

has no bearing if the case of the prosecution stands proved by virtue of

other evidences.

In the case of, SIMON v. STATE OF KARNATAKA AIR

2004 SC 2775, the court held that, there can be variety of reasons for

failure to identify, that is, the witness might have been won over, or,

might have lost memory because he had seen the accused on the crime

scene several years ago;

If the accused is caught red-handed from the scene of crime then no

question of TIP arises ( KISHORE PRABHAKAR SAWANT V. STATE OF

MAHARASHTRA, (1999) 2 SCC 45 )


IDENTIFICATION BY PHOTOGRAPH:

In the case of, Rabinder Kumar Pal v. Republic

of India (2011) 2 SCC 490 the Hon’ble Supreme Court of India held that,

photo identification of accused and test identification parade are only aides to

the investigation conducted by the investigating officer and these do not form

substantive evidences. Substantive evidence is the evidence in the court of law

on oath. The logic behind test identification parade, which includes photoidentification, lies in the fact that it is only an aid to the investigation, where an

accused is not known to the witnesses; the I.O. conducts test identification

parade to ensure that he has caught hold of the right person as the accused.


Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time. In support of the prosecution case about the photo identification parade and dock identification, heavily relied on the decision of Apex Court in Manu Sharma V. State NCT Delhi . It was argued in that case that PW 2 Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer concerned is a relevant and an admissible piece of evidence. In para 254, this Court held:


"Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation."

It was further held:

"It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

It was further held that "the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath".


In Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562, the following conclusion is relevant:


"12. In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time"





IDENTIFICATION BY VOICE: In the case of, Mohan Singh v. State of Bihar (2011) 9 SCC 272

the trial pertained to an offence concerning conspiracy for murder; here, the witness

heard the accused while the accused was demanding money from the victim, and subsequently the witness identified the accused by the voice of the accused. Even prior to the happening of the

incident, the witness had some acquaintance with the accused. The court held

that, the evidence tendered by the witness, identifying the accused by his voice

was reliable.


Supreme Court of India

Simon & Ors vs State Of Karnataka on 29 January, 2004

We are unable to accept the contention that wrong identification by one witness by itself would be fatal to the case of the prosecution. A case is required to be decided on the examination of entire evidence. Mere wrong identification by one of the eye-witnesses by itself cannot be fatal to the case of the prosecution. There can be variety of reasons for wrong identification. The witness may be won over. There may be loss of memory or any other reason. The wrong identification made by PW89 of the accused other than that of Simon, without anything more, by itself would not be fatal if the case of the prosecution on the basis of other evidence adduced by it stands proved.


CONVICTION ON SOLE TESTIMONY OF IDENTIFICATION ? WHETHER RELIABLE ? IF PROSECUTION HAS NO OTHER EVIDENCE ?

Supreme Court of India

Sheikh Hasib Alias Tabarak vs The State Of Bihar on 23 August, 1971

Suffice it to say that the fate of the entire prosecution case depends on the evidence regarding the identification of the persons charged So far as the present appellant is concerned the only evidence against him it that of his identification by Jadunandan Singh, Inspector of police (P.W. 10). The question, therefore, arises whether his testimony relating to the identification of the appellant provides evidence which, according to the settled principles, can be considered sufficient for sustaining his conviction. The evidence of P W. 13 is also somewhat unsatisfactory and we are far from impressed by his testimony with respect to the precautions taken by him for fair test identification parades. In his cross-examination a suggestion was thrown that there was some kind of interpolation in his report of the first T.I. parade held at 5 p.m. from which it could be suspected that the appellant was present in that parade but was not identified by P.W. 10, Whether or not the appellant was included in the suspects to be identified at 5 p.m. in either case we are unable to attach much value to his identification parade. There is, however, also another aspect which requires to be noticed. Now, if P.W. 10 had recognised the appellant at the time and place of the occurrence as one of the two dacoits hailing from village Banaudha then clearly the identification test of the appellant by this witness can be of little value because the accused was already known to the witness. In that event there is no question of the identification parade dated February 14, 1963 being used as corroborative evidence supporting his identification in Court. As a result of the foregoing discussion we find that there is no legal evidence connecting the appellant with the alleged offence in question and we have, therefore, no hesitation in acquitting him.









In Jana Yadav vs. State of Bihar, (2002) 7 SCC 295, para 38, the following conclusion is relevant:


"Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible.


Rabindra Kr. Pal @ Dara Singh vs Republic Of India on 21 January, 2011

In the same manner, showing photographs of the miscreants and identification for the first time in the trial Court without being corroborated by TIP held before a Magistrate or without any other material may not be helpful to the prosecution case. To put it clear, the evidence of witness given in the court as to the identification may be accepted only if he identified the same persons in a previously held TIP in jail.


HOLDING TEST IDENTIFICATION PARADE WHEN NECESSARY

AND WHEN NOT:

Absence of test identification parade in all cases is not fatal,

for example, in the case of Dastagir Singh v. State of Karnataka AIR 2004

SC 2884 where X was raped by A, and, X was able to see A due to the

proximity involved in the commission of crime, the Hon’ble Supreme Court of

India, held that, to say that, test identification parade is necessary to test the

veracity, reliability and memory of X, will be incongruous and farcical because

in offences such as that of rape, the victim herself is a “natural witness”.

However, in another case, Devinder Singh v. State of H.P AIR 2003 SC 3365

the Apex Court held that, because the crime of rape was committed in the

night, in the room of the victim, where there was no light, even if, it is stated

that the victim had a fleeting glimpse of the accused when torch was lighted in

the room after the commission of the crime, it will not be enough as the

accused was not known to the victim, and, therefore, it was incumbent upon

the prosecution to hold test identification parade, and failure to do so was held

to be fatal to the case of the prosecution. In the case of Jadunath Singh v.

State of U.P AIR 1971 SC 363 it was emphatically held that, if the

prosecution refrains from holding test identification parade on the plea that,

the witness already knew the accused, but later it transpires during the course

of the trial that the witness did not know the accused in the past, then, the

prosecution runs the risk of losing the case; therefore, if there is any doubt, it

is always advisable for the prosecution to hold test identification parade. On

the contrary, in the case of, Asha & Ors v. State of Rajasthan AIR 1997 SC

2828, the Hon’ble Supreme Court of India held that, test identification parade

was not necessary as the F.I.R. was lodged within one hour of the

commission of the crime and the culprits were named in the F.I.R., that is, the

culprits were known to the complainant.



PRACTICAL JUDICIAL CIRCULARS AND PRACTICE PROCEDURES :

Where the witness states before the court that, he identified the

accused at the test identification parade and the magistrate corroborates the

witness, then there is no difficulty. But, the problem begins when the witness

states that, (a) he did not identify the accused at the test identification parade,

but is able to identify the accused in the court; or, (b) he did identify the

accused at the test identification parade, but is unable to identify the accused

in the court; or, (c) he did not identify the accused at the test identification

parade, nor is able to identify the accused in the court. The question for

consideration which arises here is this: Can the magistrate give evidence of the

test identification parade which was held by him and during which the accused

was identified by the witness?

The purpose of test identification parade is to enable the witness

who claims to have seen the commission of the crime, to identify the

accused/suspect out of the several persons lined up by the I.O. in the presence

of judicial/executive magistrate. The test identification parade takes place in

the presence of magistrate and it is the magistrate who prepares the record of

the test identification parade proceedings. It is for the witness to point out the

accused/suspect out of the several persons and it is for the magistrate to

corroborate the identification by the witness of the accused/suspect. Thus, in

situations (a) and (c), there is nothing for the magistrate to corroborate, and it is only in situation (b) that a magistrate can corroborate the identification of

the accused/suspect by the witness.


During the course of investigation, witnesses may say that they will

identify the culprits, if they were shown to them, they will identify the

properties, if the properties are produced before them. Therefore, the necessity

of holding of test of identification parade during the investigation is necessary

to test the memory and veracity of the witness does arise. Test of identification

parade is integral part of investigation. In regard to the admissibility of test of

identification parade, they are relevant by virtue of Section 9 of Indian Evidence

Act. Hon'ble Supreme Court of India was pleased to opine in Budhasen V.

State of A.P. 1970 Crl.L.J. 1149 SC, that the T.I.P. has two fold objectives:

[1] Establishing identity of the accused and corroborating the

identity of witness before trial.

[2] TIP also tests the memory of the witnesses.



Biray Singh v. State, 1953 Crl.L.J., 1817 (Allahabad).

The following points to be taken into consideration to decide for test of

identification parade;

1. The accused is not known to the witness or victim before the occurrence

of crime.

2. When the witnesses gave vivid description of the accused in their

statements or in the F.I.R.

3. When the witnesses say in the examination by the investigating officer

that they would be able to recognize some of the criminals.

4. When the accused was seen for a sufficient time by the witnesses and

picked up his distinctive features etc., in order to recollect later on.

5. Surrounding circumstances like condition of light etc., were sufficiently

favourable showing features of accused.

6. When there were peculiar features with respect of the accused and a

mention was made in the FIR or statements etc.



Do's and Dont's – in TIP

Do's.

1. The Test of Identification Parade should be held soon after the arrest. It

is not a ground for rejection of bail.

2. The police should take steps to arrange Test of Identification Parade by

Magistrate only.

3. It is desirable to get identifiers' statements recorded u/s. 164 Cr.P.C.,

before the investigation.

4. Identifier should also identify accused or property in Court, as

Identification proceedings are not substantive evidence,

5. Identification of persons differs from identification of property.

Dont's

1. There should not be any delay in arranging of TIP, after arrest of accused

since delay may lead to grant of bail to accused. Even if accused is released on

bail, he has to attend the TIP but its sanctity will be lost.

2. The TIP should not be held by police, as it is hit by section 162 Cr.P.C.

3. There is no bar that private person should not conduct TIP but it is not

advisable.

4. Do not show the suspects to the witnesses.

5. Do not show the photographs of the suspects to the witnesses.

6. The police officer should see that the photographs of the accused is not

published in the news papers.

7. Do not allow the presence of police officer during the TIP.


General precautions and procedures hold by the Magistrate during the

TIP.

1. After making all arrangements, police should completely leave the place

to conduct actual identification proceedings.

2. The accused, as far as possible, be mingled with persons of similar

description, status, build and age in the proportion of minimum of 1 : 5

and maximum of 1 : 10 and they must be made to take their positions

around with the persons with whom they are mingled or in the line.

3. The suspects should not be made to stand together.

4. The Magistrate or other person should satisfy that there are no other

persons or police officer at the time of TIP.

5. The witnesses are kept out of view from the premises where the parade is

taking place and that it is not possible to communicate with them by

signals or other communications.

6. If a witness makes a statement, it can be recorded.

7. Further details which took place at the time of identification should be

recorded in the proceedings.

8. After the identification of one witness is over, care should be taken to see

that the witness does not mingle or communicate with other witness for

whom identification parade is yet to be conducted.

9. If the identification by one witness is over, the whole parade will be reshuffled and the accused can take different positions.

10. If the accused is willing to change their dress, they should be allowed to

do so.

11. If any accused makes any objection, it should be recorded.

12. If there is any visible marks available on the accused, which are likely to

facilitate his identification, then it is the duty of the personnel

conducting the investigation either to cover up such marks or mix that

accused with several other persons having similar marks, failure to take

this precaution is sufficient to take away the value of the identification.

After the completion of identification parade and drawing up all the

proceedings, a certificate must be appended duly signed by the

Magistrate or the panchayathdars, as the case may be.

13. The accused generally will not demand for Test of Identification Parade,

but if any such demand is made by the accused, the police should

arrange the same.

Other precautions:

(a) Mixing of suspects and innocent persons [non-suspects]:

The proper way to hold identification proceedings is to put up each

suspect seperately for identification mixed with as large a number of innocent

men as possible, in any case not less than 9 or 10.

When several suspects are required to be identified and they are put up

for identification separately, care should be taken to see that the innocent

persons mixed up or changed with every change of suspect, for otherwise the

benefit of holding separate identification proceedings would vanish -{AIR 1953

All. 385}.

(b) Concealment of distinctive marks:

The covering of marks should be with reasonable limits and sho