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SC summarized principles on Test Identification Parade

Rajesh @ Sarkari & Anr. v State of Haryana,

Criminal Appeal No. 1648 of 2019, November 3, 2020

The Hon’ble Supreme Court bench comprising of Justice Dr. Dhananjaya Y Chandrachud, Justice Indu Malhotra, and Justice Indira Banerjee observed that the finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade. In the present case, the complainant is the father of the deceased who has been shot by the assailants near the law department in Maharishi Dayanand University where the deceased was pursuing an LLB degree. The appellants in the present case have been convicted of an offence under Section 302 IPC r/w Section 34 of IPC by the session’s court and the appeal against the same has been dismissed by the High Court of Punjab and Haryana.

The Supreme Court has observed the legal position involved in proving the charge of murder alleged to have been caused with a lethal weapon as in the present case the deceased was killed by the use of firearms. Considering the earlier precedents, Mohinder Singh vs State, AIR 1953 SC 415 and Gurucharan Singh vs State of Punjab, (1963) 3 SCR 585, it has been observed that,

Where the direct evidence is of an unimpeachable character and the nature of the injuries disclosed by the post-mortem reports is clearly consistent with the direct evidence, the examination of a ballistics expert may not be essential. Contrarily, the evidence of a ballistics expert would assume significance where direct evidence is not satisfactory, or is of interested witnesses or where the nature of the injuries requires expert corroboration. In other words, whether the examination of a ballistics expert is necessary is dependent upon the factual context as it emerges in each case. (Para 29)

The complainant, who is an eye-witness to the case, stated that he could identify the accused if a test identification parade was conducted. The prosecution has also argued that in the case of refusal of the test by the accused an adverse inference has to be drawn. In this regard, the court Supreme Court has considered earlier decisions in Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391], Santokh Singh v. Izhar Hussain [(1973) 2 SCC 406 : 1973 SCC (Cri) 828], Malkhansingh v. State of M.P. [(2003) 5 SCC 746 : 2003 SCC (Cri) 1247], Visveswaran v. State [(2003) 6 SCC 73] , Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC 631], Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1], Ashwani Kumar and Ors. v. State of Punjab (2015) 6 SCC 308 and Mukesh and Ors. v. State for NCT of Delhi and Ors. AIR 2017 SC 2161. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process.

The apex court has laid down the following principles enunciating the purpose of the test identification parade:

(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)

The court also noted that there were several contradictions in the depositions of the PW4 and PW5, who claimed to be eye-witnesses at the occurrence and also the non-examination of the ballistic expert regarding the discrepancies in the Forensic Laboratory Report, would entitle the accused to a benefit of doubt.

The court has held,

We have arrived at the conclusion that the prosecution has failed to establish its case beyond reasonable doubt. The appellants are, hence, entitled to the benefit of doubt and are acquitted of the offence with which they have been charged. (Para 40)

Lalitha Sarvani. A