Test Identification Parade - Relevance in Investigation Process - Case Analysis

Under the Indian Evidence Act, admissibility of facts which are the occasion, cause or effect of relevant facts or facts in issue are dealt with in section 7. Showing motive, preparation for any fact in issue or relevant fact is made admissible under section 8. Facts which are necessary to explain or introduce a fact in issue are admissible under section 9. Sections 7 and 8 provide generally for the admission of facts that caused the fact in issue or relevant fact whereas section 9 generally provides for facts explanatory of any such fact.<!–[if !supportFootnotes]–>[1]<!–[endif]–>

When a party’s identity is in issue, it may be proved or disporved not only by direct testimony, or opinion evidence, but also presumptively by similarities or dissimilarities in personal traits like height, size, hair, complexion etc. However, of all the facts, evidence about the identification of a stranger has been the most elusive and courts generally agree that evidence identification of a stranger based on personal characterisitics should be approached with abundant caution. The problem of identification frequently arise criminal cases in the case of corpus delicti or where the issue is whether the accused is the criminal or not. There is no hard and fast rule laid down with regard to primary evidence of identification in civil cases.<!–[if !supportFootnotes]–>[2]<!–[endif]–> To admit a test identification parade as evidence in court, Section 9 of the Evidence Act is used. Section 9 of the Evidence Act states –

9. Facts necessary to explain or introduce relevant facts -

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

Purpose of a Test Identification Parade

Identification parades have two main objectives –

<!–[if !supportLists]–>· <!–[endif]–>To satisfy the investigation authorities that a certain person, not previously known to the witness, was involved in the commission of the offence or that a particular property was the subject of the crime

<!–[if !supportLists]–>· <!–[endif]–>To furnish evidence to corroborate the testimony which the witness concerned tenders to the court.<!–[if !supportFootnotes]–>[3]<!–[endif]–>

The purpose of the parade is to test the strength and trustworthiness of the evidence. Test identification parades are carried out as a part of the investigation process. The actual evidence regarding identification is that which is given by the witness in the court. The fact that a particular witness has been able to identify the accused in a test identification parade may only be used as a corroborative piece of evidence to that given in the court. A test identification parade becomes necessary only when the witness does not know the accused by name or face or has had only a fleeting glance of him at the time of accident. Test identification may be carried out either for identifying persons or even articles. The identification of articles is a question of fact and no invariable rule in this regard can be formulated to govern all cases alike although chances of mistake in identification are not rare where articles are of ordinary make and are generally available.<!–[if !supportFootnotes]–>[4]<!–[endif]–> It is in cases of TI parades to identify the criminal that problems arise as shall be seen through case analysis.

TI Parade – Case Analysis

 

In Rameshwar Singh v. State of J and K<!–[if !supportFootnotes]–>[5]<!–[endif]–> the Court observed:

…It may be remembered that the substantive evidence of a witness is his evidence in court, but when the accused person 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 investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial….

In Harinath and Anr. v. State of Uttar Pradesh<!–[if !supportFootnotes]–>[6]<!–[endif]–>, the Court held that even on the premise that there was no such prior acquaintance the evidence establishing the identity of the culprits assumes particular materiality in a case, as here, of a dacoity occurring in the darkness of the night. The evidence of the test identification would call for a careful scrutiny. In a case of this kind where the eye witnesses, on their own admission, did not know the appellants before the occurrence, their identification of the accused persons for the time in the dock after a long lapse of time would have been improper. It has been stated in Halsbury’s Law of England:

It is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial; and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out.

In such cases, it is needless to say, the test identification at an identification parade to test the power of recollection of the witnesses assumes added significance. The conduct of an identification parade belongs to the realm, and is part of the investigation. The evidence of test identification is admissible under Section 9 of the Evidence Act. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test.

The one area of criminal evidence susceptible of miscarriage of criminal justice is the error in the identification of the criminal. The major source of the error is to be found in the identification of the accused by the victim of the crime. It is to be remembered that the emotional balance of the victim or eye-witness may be so disturbed by his extra-ordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally-the desire to require a crime, to exact vengeance upon the person believed guilty, to find a scape-goat, to support, consciously or unconsciously, an identification already made by another. The witness’s certainty may not be immediate, without this delay being necessarily a sign of error. Nevertheless, error is more frequent when recognition comes some time after seeing. Thus, in this case the benefit of wholly unexplained lack of promptitude in holding the test identification, enured to the appellants. The evidence of test identification was held to lack the requisite element of re-assurance to support the conviction. A reasonable doubt arises.

In the case of State of Maharashtra v. Sukhdeo Singh and Another<!–[if !supportFootnotes]–>[7]<!–[endif]–>, the Court stated that the direct evidence regarding identity of the culprits comprises of identification for the first time after a lapse of considerable time in Court or identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused persons had since changed their appearance. Test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the court ordinarily seeks to act on it. In the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance. Where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under Section 9 of the Evidence Act is to tot the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only -once. If no T.I. parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court.

The Court clearly held in the 2003 case of Malkhansingh and Ors. v. State of M.P.<!–[if !supportFootnotes]–>[8]<!–[endif]–> that 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 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.<!–[if !supportFootnotes]–>[9]<!–[endif]–>

In 2007, in the case of Ravi @ Ravichandran v. State rep. By Inspector of Police<!–[if !supportFootnotes]–>[10]<!–[endif]–>, the test identification parade was held after ten days. It was also not in dispute that the photographs of the accused were taken at the police station. The Investigation Officer allowed them to be published. Photographs of the appellant were not only published, according to the prosecution witnesses, they were shown to be the accused in the aforementioned crime. Some of them admittedly were aware of the said publication. The purported test identification parade which was held ten days thereafter, in the opinion of the Court, lost all significance, in the aforementioned fact situation. It is no doubt true that the substantive evidence of identification of an accused is the one made in the court. A judgment of conviction can be arrived at even if no test identification parade has been held. But when a First Information Report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. The witnesses were not very sure as to whether they had seen the appellant before. Had the accused been known, their identity would have been disclosed in the First Information Report. The witness for the first time before the court stated that he had known the accused from long before, but did not know their names earlier, although he came to know of their names at a later point of time.

In a case of this nature, it was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the concerned witnesses or with reference to the photographs published in the newspaper. A conviction could not be based on a vague identification.

In Amit Singh Bhikamsingh Thakur v. State of Maharashtra<!–[if !supportFootnotes]–>[11]<!–[endif]–> it was held that 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.<!–[if !supportFootnotes]–>[12]<!–[endif]–> 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 Indian 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. 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.

Further, it has been held in the case of Mahabir v. The Sate of Delhi<!–[if !supportFootnotes]–>[13]<!–[endif]–> that failure to hold a test identification parade would not make inadmissible the evidence of identification in Court.<!–[if !supportFootnotes]–>[14]<!–[endif]–> 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.

In the more recent case of Santosh Devidas Behade v. State of Maharashtra<!–[if !supportFootnotes]–>[15]<!–[endif]–>, the Court stated that it is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. When the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance, both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution.<!–[if !supportFootnotes]–>[16]<!–[endif]–> But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade.

Conclusion

Thus, from the above case-analysis, courts, over the years, have made it clear that a TI parade holds on corroborative value and not substantive value as evidence in court. Absence of a test identification parade will not lead to vitiating the trial or prove fatal to the prosecution in the case. There is no right in the Code of Criminal Procedure which the accused can demand for the investigation authorities to necessarily carry out the parade or that it be conducted in a particular manner.<!–[if !supportFootnotes]–>[17]<!–[endif]–> It is no doubt prudent to hold an identification parade for witnesses who do not know the accused before the occurrence but failure to hold the parade would not render inadmissible the evidence of the identification in court. The weight to be attached to such identification would be a matter for the courts to decide.<!–[if !supportFootnotes]–>[18]<!–[endif]–> Delay in holding TI parade throws doubt on the genuineness thereof apart from the fact that it is difficult that after the lapse of a considerable period of time the witness would have to remember the facial identity of the accused. Thus, a TI parade must be held at the earliest possible opportunity. However, at the same time, it must be remembered that non-holding of the TI parade is not fatal to the prosecution case. The value attached to TI parade depends on the precautions taken while holding the parade.<!–[if !supportFootnotes]–>[19]<!–[endif]–> When the accused is well-acquainted with the accused, a TI Parade is not necessary. However, if the accused is not known at all to the witness and is identified for the first time in court, the evidence of the witness is valueless and cannot be relied upon in the absence of a TI Parade.<!–[if !supportFootnotes]–>[20]<!–[endif]–> Thus, we see that though a TI Parade is only a corroborative piece of evidence, it nonetheless does have an important role to play in the investigation process, making the prosecution’s case easier and stronger.

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