Six appellants were convicted under Sections 395, 396 read with Section 397, I.P.C for having looted a passenger bus at about 11 p.m. on a moonless night and having caused the death of one passenger. The sole basis for their conviction was their identification by different PWs… What is the evidentiary value of such test identification?

Question: Six appellants were convicted under Sections 395, 396 read with Section 397, I.P.C for having looted a passenger bus at about 11 p.m. on a moonless night and having caused the death of one passenger. The sole basis for their conviction was their identification by different PWs in the identification parade conducted by the Executive Magistrate.

The evidence showed that after their arrest, the accused persons were kept in the police station for 2 days and that at the time of holding the test identification parade, the accused persons were in fetters whereas the other undertrials, who were mixed with the accused persons were not in fetters. The witnesses also deposed that the culprits had their faces muffled at the time of the incident.

It is argued on behalf of the appellants that in these circumstances it would not have been possible for the PWs. to identify the distinctive features of the culprits at the time of the commission of an offence. So their subsequent identification in the test becomes doubtful. It is also contended that during their detention at the police station for 2 days, they were shown to the PWs. What is the evidentiary value of such test identification? Would you uphold the conviction? [D.J.S 1996]

Find the answer to the mains question only on Legal Bites. [Six appellants were convicted under Sections 395, 396 read with Section 397, I.P.C for having looted a passenger bus at about 11 p.m. on a moonless night and having caused the death of one passenger. The sole basis for their conviction was their identification by different PWs… What is the evidentiary value of such test identification?]

Answer

Test identification is a process by which the identity of the persons, things or animals concerned in the offence under investigation or trial is established, through a test parade. The test is used in the actual meaning of an examination in which the witness is to find out the person, thing or animal in a test identification parade.

Section 9 of the Indian Evidence Act, 1872 makes the identification of proper accused and properties admissible and relevant facts in a court of Law, with a specific provision to direct the suspected to be present for the identification parade by the Investigating Officer under Section 54A of Code of Criminal Procedure, 1973.

In regard to the admissibility of the test of an identification parade, they are relevant by virtue of Section 9 of the 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 the identity of the accused and corroborating the identity of witnesses before trial.
2. TIP also tests the memory of the witnesses.

Hence, TIP provides evidence regarding the identity of the offender as well as evidence for corroborating the evidence of the witness before the court. There is one more objection to TIP. It tests the memory and ability of the witness who claims to have seen a person previously

Based on the present in the case at hand, the following facts create doubt about the veracity of the test identification parade:

1. When the offence occurred by the accused looting a passenger bus at about 11 p.m. on a moonless night culprits had their faces muffled. The fact that the faces of the accused persons was muffled and could not be seen in the moonless night also throw doubt on the veracity of PWs statements.
2. The accused persons were kept in the police station for 2 days and at the time of holding the test identification parade, the accused persons were in fetters whereas the other undertrials, who were mixed with the accused persons were not in fetters. This may hamper the statement of witnesses to whom the accused were produced after 2 days and showing in fetters as this may create already an apprehension in the mind of the PWs that those in fetters have done the wrong, resulting in biases in their statement.

It is to be noted that result of the identification parade conducted at the stage of investigation is not a substantive piece of evidence and cannot be the basis of a conviction by itself. The evidence against the accused must be the evidence given by the identifying witness in the witness box.

Without this substantive evidence of identification by the witness in court the evidence of identification of the accused or property is a previous test of identification parade even by the self same witnesses cannot really be taken into consideration against the accused, what to speak of basing a conviction of the accused on such evidence. However, in the present case, the PWs deposed their statement during the identification parade conducted by the Executive Magistrate.

In Hasib v. State of Bihar [1972 Crl.L.J. 233 (SC)], the aspect of identification of the accused is clearly explained. The SC observed:

“Now, identification parades are ordinarily held at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of the alleged offence or the persons who are alleged to have been concerned in the offence.

Such tests or parades belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding on the right lines. It is accordingly desirable that the test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimize the chances of the memory of the identifying witness fading away by reason of long lapse of time.”

When the accused is not previously known to the witness concerned, then identification of the accused by the witness soon after the former’s arrest is of vital importance because it furnishes to the investigation agency an assurance that the investigation is proceeding on the right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial.

In case the identity of an accused is disputed, when the victim did not know the accused before the occurrence of the crime test of identification is very much required. Where the culprits are unknown to the witnesses but the witnesses say in course of their examination by the Investigating Officer that they would be able to recognize some of the criminals if shown, a test of identification parade of the suspects ought to be held at the earliest possible opportunity whenever possible before a Magistrate as held in Biray Singh v. State, 1953 Crl.L.J., 1817 (Allahabad).

The SC in the case of Dana Yadav v. the State of Bihar, (2002) 7 SCC 295 has observed that: Identification of the accused made in court, is substantive evidence, whereas identification of the accused in test identification parade is though a piece of primary evidence but not substantive and the same can be used only to corroborate the identification of accused by the witness in court.

Therefore, relying on the decision of the SC in the aforesaid case, it is clear that Test Identification parade being only a supportive piece of evidence cannot be made sole basis of conviction, especially in the present case at hand, when the facts already cast a lot of doubt on the veracity of the statements given by the witnesses. Hence, the conviction shall not be allowed based on the TIP alone.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X