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 b