TIP - Test Identification Parade

Test Identification Parade  (TIP) - Refusal to undergo - No specific provision which lends statutory authority to an identification parade 

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2020 SCeJ 1925

SUPREME COURT OF INDIA

03.11.2020

 

Criminal trial  - Test Identification Parade  (TIP) - Refusal to undergo -  Identification in the course of a TIP is intended to lend assurance to the identity of the accused - The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade - CrPC, Section 162 - Evidence Act, 1872, Section 9, 138. #2020 SCeJ 1925  [Para 39]

Held, Refusal to undergo a TIP is borne out by the fact that S (deceased) and R ( accused) were known to each other prior to the occurrence and that PW4, who is a prime eye-witness, had seen R when he would attend the court during the course of the hearings. Consequently, in a case, such as the present, the Court would be circumspect about drawing an adverse inference from the facts, as they have emerged. In any event, as we have noticed, the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.

Held further,

 In the present case, we have already indicated the presence of the alleged eyewitnesses PW4 and PW5 at the scene of the occurrence is seriously in doubt. The 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. #2020 SCeJ 1925 

 

Indian Penal Code, Section 302 read with Section 34   - Expert - Non examination of (ballistic expert)  - There is no inflexible rule which requires the prosecution to examine a ballistics examiner in every case where a murder is alleged to have been caused with the use of a fire arm - The principle which has emerged is that the failure of the prosecution in a given case, to examine a ballistics expert has to be assessed bearing in mind the overall context of the nature of the evidence which is available - When direct evidence of an unimpeachable character is available and the nature of injuries is consistent with the direct evidence, the examination of a ballistics expert need not be insisted upon as a condition to the prosecution proving its case - On the other hand, where direct evidence is not available or there is doubt in regard to the nature of that evidence, the failure to examine the ballistic examiner would assume significance - Evidence Act, 1872, Section 9, 138. #2020 SCeJ 1925  

 

Indian Penal Code, Section 302 read with Section 34   - Expert  - Non examination of (ballistic expert)  - On facts  -  Benefit of doubt  - Prosecution cited a ballistics examiner as a witness and yet, did not lead his evidence -  Juxtaposed in light of the fact that the eye-witness account of is not free from doubt - In this context, the Court must therefore hold that the discrepancies which have been noticed in the FSL report could have best been explained by the authors of FSL reports  - This not having been done, the accused would, in our view, be entitled to the benefit of doubt - Evidence Act, 1872, Section 9, 138.  #2020 SCeJ 1925 Held, In the present case, the weapons of offence were alleged to have been recovered in the context of the investigation in another FIR. The weapons were marked as W/1 and W/2 in that case. The third FSL report arising out of the investigation in FIR No. 781 in the present case does not deal with weapon W/1 at all. The third FSL report wrongly attributes weapon W/2 to accused R alias S. Whether or not weapon W/2 had been made available to the ballistics examiner was a matter which could have been explained if the prosecution were to lead his evidence. The prosecution cited a ballistics examiner as a witness and yet, did not lead his evidence. This must be juxtaposed in light of the fact that the eye-witness account of PW4 and PW5 is not free from doubt. We have also analysed the evidence of PW4 and PW5 and have noted that there is a grave element of doubt as to whether they were witnesses at the scene of occurrence. In this context, the Court must therefore hold that the discrepancies which have been noticed in the FSL report could have best been explained by the authors of FSL reports both in FIR No. 311/2006 and FIR No. 781/2006. This not having been done, the accused would, in our view, be entitled to the benefit of doubt. 

 

CrPC, Section 162 - Criminal trial  - Test Identification Parade  (TIP) - 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 principles summarized. #2020 SCeJ 1925

(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 eyewitness 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.

 

Criminal trial  - Test Identification Parade  (TIP) - 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 - CrPC, Section 162 - Evidence Act, 1872, Section 9, 138. #2020 SCeJ 1925