766.
(SC) 03-11-2020
A. Indian Evidence Act, 1872 (1 of 1872), Section 9 – Code of Criminal Procedure, 1973 (2 of 1974), Section 162 -- Test Identification Parade – TIP -- Principles which have emerged from the precedents of Supreme Court can be summarized as follows:
(i) The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye-witness to the crime;
(ii) There is no specific provision either in the CrPC or the Indian Evidence Act, 1872 which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP;
(iii) Identification parades are governed in that context by the provision of Section 162 of the CrPC;
(iv) A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held;
(v) The identification of the accused in court constitutes substantive evidence;
(vi) Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act;
(vii) A TIP may lend corroboration to the identification of the witness in court, if so required;
(viii) As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration;
(ix) Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible;
(x) The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case;
(xi) Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence; and
(xii) The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.
(Para 36)
B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 9 – Code of Criminal Procedure, 1973 (2 of 1974), Section 162 – Acquittal in murder case – Serious infirmity in evidence -- Refusal to go Test Identification Parade/ TIP – Effect of -- Identification in the course of a TIP is intended to lend assurance to the identity of the accused -- Finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade -- Presence of the alleged eye-witnesses at the scene of the occurrence is seriously in doubt -- Ballistics evidence connecting the empty cartridges and the bullets recovered from the body of the deceased with an alleged weapon of offence is contradictory and suffers from serious infirmities -- Hence, in this backdrop, a refusal to undergo a TIP assumes secondary importance, if at all, and cannot survive independently in the absence of it being a substantive piece of evidence -- Prosecution has failed to establish its case beyond reasonable doubt -- Appellants are, hence, entitled to the benefit of doubt and are acquitted of the offence.
(Para 39,40)
