Identification by witness: In criminal justice system

Introduction

Identity may be thought of as a quality of a thing or a person. In an instance where the court must know the identity of any person or thing which would substantially help in adjudicating upon a case, then every fact which establishes such identity becomes relevant. With the development of law, police use visual, scientific, audio, etc. modes for obtaining identification of suspects. Indeed, there is no restriction on facts to be given in court to establish the identity in question, but their admissibility may vary. This paper focuses on the study of witness evidence that are admissible in proving the identity of a suspect and problems which may curtail the admissibility of such shreds of evidence.

Significance of identification evidence

The two questions which hold great importance in criminal trials are: whether the offence that is alleged was committed and if yes, then who committed it. Talking particularly about the questions pertaining to identity may come up in two ways—

  1. A person’s identity with an ascertained person.
  2. A person’s identity as the doer of a particular act.

When a person’s identity with an ascertained person is in issue then it may be proved and disproved presumptively by similarity or dissimilarity of characteristics like weight, size, hair, voice, etc[1].

The identity of a person or thing is necessary to prove relevant facts of the case and the identification test is not a substantive piece of evidence. It provides a kind of assurance to the investigating agency and the court that they are proceeding in the right direction. The same was held by the court in Musheer Khan v. State of M.P.[2].

There is this notion that witnesses are the best sources of extracting reliable evidence because of the assumptions that if a person sees someone commit a crime especially a stranger he or she would not forget the accused face or appearance because the person witnessed an unusual event and it is a human tendency to remember such things somewhere in the back of their minds which was not normal to them. Also, Bentham said “witnesses are the eyes and ears of justice”, this makes the role of a witness of paramount importance in the justice delivery system.

Though identification evidence is potentially unreliable and merely corroborative in nature, errors in recording them or cases of mistaken identity though in good faith can lead to effects like wrong convictions which can prove to be extremely serious for the defendants and his/her family also many times. For a long time misidentifications have bedeviled our justice system and continue to, with a rate of 52% wrongful convictions every year as a consequence of it. So, the testimonies and identification evidence made by a witness must be dealt with utmost sensitivity as they play a vital role in deciding a matter and delivering judgment. Any false or wrong identification made on part of the witness becomes a gateway to the wrongful conviction of an innocent for the crime which that person to all intents and purposes didn’t commit. It is of paramount importance for the Judge to check and weigh the credibility and accuracy of such identification evidence given by the witnesses along with keeping a check that the evidentiary standards are maintained to avoid a miscarriage of justice.

Many times, it becomes difficult to identify the accused as the crimes are committed under the cover of darkness. In such cases, the identity of a person or thing and commission of a crime can be established using circumstantial evidence[3]. In cases where the guilt gets established by circumstances in such cases, the identification of the accused either in court or through test identification parade is not a sine qua non[4].

Under Indian law

Section 9 of the Evidence Act, 1872 deals with the facts which establish the identity of anything or person.

As per the section, all these facts are relevant[5]

  1. One’s which are necessary to explain a fact in issue or relevant fact.
  2. Which are required to introduce any fact in issue or relevant fact.
  3. That support the inference suggested by a fact in issue or relevant fact[6].
  4. Which rebut any or all conjectures made by a fact in issue or relevant fact[7].
  5. Which establish the identity of a person or a thing whose identity is relevant.
  6. Which fix the time or place at which the facts in issue or relevant fact happened[8].
  7. Establish the relations of parties between whom any such fact was transacted.

These facts are not otherwise admissible as far as they are necessary for the purpose pointed out in each category[9]. These facts sometimes give strength to the evidence given by one side and sometimes break the force of evidence given by the adverse side. These are explanatory pieces of evidence that are not relevant in themselves and the effect of these may not be affirmative in all cases, still, they prove to be substantial for corroboration of other shreds of evidence.

As we know that our criminal law stands on the saying “innocent until proven guilty” and this principle makes it mandatory for the prosecution to establish the evidence beyond reasonable doubt for the conviction to take place. The cases which rely on identification evidence tend to fail even if there exist any room for misidentification to occur because then the probative value of such evidence slump down[10].

There are various modes of identification—

  1. Photofits

Photofit is a reconstructed picture of a person what in layman terms we know to be a sketch of the face of a person or an attempted description of someone[11]. This technique is basically used as an attempt to reproduce the face of the suspects soon after the crime takes place so that the witness can let out whatever he can recall from the incident which he witnessed. It is claimed by Psychologist Ebbinghaus in “forgetting curve” that–

if attempts are made to recall and rehearse information then it can become a part of long-term memory otherwise at its first stage the information forms a part of our short-term memory which tends to fade away over a period of time[12].

The chances of misidentification increase with the increase in the time interval between the crime and identification exercise. In Reg. v. Cook (Christopher) the appeal that a photofit was not a written statement that could come under the purview of the rule against hearsay was dismissed and the photofit evidence was held to be admissible by virtue[13].

  1. Identification by photographs

Identification by photograph is another method used specifically at the investigation stage. It was held by the Supreme Court that there is no legal provision which states that identification by photograph is not admissible. In fact, it becomes a substantive piece of evidence when such identification is made in the Court[14]. Moreover, according to the court, identification by photograph must take place of test identification[15]. It is to be noted that in cases where the witness lays out some identifying features of the accused the course of action to be adopted by the investigating officer should be the one where the witness is shown more than one photograph of the suspect if available to draw out a confirmation as to the identity of the accused[16].

  1. Video and voice identification

Identification of the accused by the witness through video recording is admissible. In the case of D. Gopalakrishnan v. Sadanand Naik[17], it was said by the court that where there is the availability of video recording through which the witness can testify the identity of the accused then the photographs of the suspects should not be shown before such identification.

On the other hand, identification by voice is a bit risky in criminal trials particularly where the witness is not acquainted with the suspect and there are fine variations in overtones.[18] Many a time the legality of the orders passed by courts directing the accused to furnish the sample of his or her voice as a part of the identification process has been challenged. This question particularly was dealt with by the Law Commission of India in its 87th Report[19] on the Identification of Prisoners Act, 1920[20] when on the realisation of the fact that there is no legal provision in Indian laws, the necessity to amend Section 5[21] of the Act of 1920 was suggested which would empower the courts to direct the accused to give a sample of his voice. The controversy was finally settled by the Supreme Court in Ritesh Sinha v. State of U.P.[22], invoking its plenary power under Article 142[23] of the Constitution of India through the process of judicial interpretation the court under the cover of Section 54-A of the Criminal Procedure Code, 1973[24] engrafted the power on the Magistrate to pass orders directing the voice samples to be furnished by the accused or the suspect whenever in the case, the witness is capable of confirming the identity of the accused on the basis of voice recognition[25].

  1. Test identification parade

One of the most popular and widely used methods of identification of witness is the identification parade. Test identification parade is one where the witness who claims to have seen the culprit at the time of occurrence is to identify the accused from the midst of suspects without any aid or other source. These are meant to test the veracity of the witness and the capability to identify unknown persons. Test identification parade should be conducted at the earliest possible so as to eliminate the chance of the accused being shown to witness prior to the identification parade which might otherwise affect the memory of the witness along with the credibility of the evidence to be sought.

Test identification parade belongs to the investigation stage and there is no provision in the Code of Criminal Procedure, 1973[26] under which the accused can claim it as a matter of right or makes it mandatory for the investigating officer or agency to hold an identification parade[27]. In Ramanathan v. State of T.N.[28] the Supreme Court explained the utility of the evidence created by test identification parade (TIP). The Court said that the purpose behind holding a test identification parade by placing suspects in a line up so that the witness of the incident could recall the features in sufficient details and to find out who is the perpetrator of the crime.

It is not a substantive piece of evidence rather is used for the purpose of corroboration and to strengthen the trustworthiness of substantive evidence of a witness in the Court[29].The parades come under the purview of Section 164[30] of the Code of Criminal Procedure, 1973[31].

Delay or failure in holding the TIP does not by itself render the evidence inadmissible or unacceptable but affects the credibility and weight attached to such identification[32]. The Supreme Court held that the identification by witness of the accused for the first time in the court is worthless till the time it is not tested prior by test identification parade[33]. But this view was changed later on in Ravi Kapur v. State of Rajasthan[34] it was held that court identification is itself a good identification in the eye of the law, it depends on the facts and circumstances of each case and is not necessary that it must be preceded by test identification parade.

Procedure for test identification which is generally followed is

  1. Test identification parade is conducted by the Magistrate.
  2. Such parades are conducted in special rooms with one side view glass where on one side of it the suspects are lined up and on the other side the witness and Magistrate.
  3. The witness and Magistrate must not be on the side where they are not visible to the suspects. The main reason behind this is the protection of the witness and also to avoid any kind of influence or threat which could compel the witness to make false identification.
  4. Also, the attire of the suspects must be changed every time a witness is called to identify the accused among them.
  5. The Magistrate must prepare, certify and carry multiple copies of TIP reports[35].

With the development of technology and sophisticated computer systems countries like Britain nowadays use VIPER (video identification parade electronic recording) as a replacement for live parades where a line up of 15-second clips are shown in a sequence which starts with the person’s front face and then slowly turning to show left and right profiles[36]. There is a dire necessity to introduce such a system in India as well.

Conclusion

Though there are many ways to set up accused identity, the admissibility and credibility of such identification evidence given by a witness need to be weighed, especially in cases where the case of prosecution solely depends on such identification evidence. Therefore these evidences are a paradox in themselves because the memory of the witness can be easily flawed due to factors like duress or stress after witnessing a crime, influence from accused, family or acquaintance, and lapse of time, etc. and this affects the quality and credibility of such evidences making them hopelessly unreliable. Research tells that the memory of the witness of the accused appearance may remain in short memory for a brief period of time which can be easily lost. Also, the chances of memory for face getting affected and altered are substantial, particularly in situations where the eyewitness receives any misleading information through any source. Therefore these evidences are merely corroborative and not substantive in nature because their credibility and accuracy remain in question which prevents them from being the sole basis of conviction of the accused. Still, the importance of the identification evidence given by witness cannot be ignored completely while adjudicating upon a case. Steps should be taken by the courts to understand the subjectivity of the question involved, carefully weigh the identification evidence and accordingly apply legal principles[37].


3rd year student, BA LLB, Delhi Metropolitan Education affiliated with GGSIP University, e-mail: prerna_mohan@yahoo.com.

[1] Irshad v. State of Rajasthan, 2004 SCC OnLine Raj 474

[2] (2010) 2 SCC 748

[3] Prakash v. State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri) 642

[4] Visveswaran v. State, (2003) 6 SCC 73 : 2003 SCC (Cri) 1270

[5] The Evidence Act, 1872, S. 9

[6] Shantanu Chakrak, S. 9 of the Evidence Act, 1872, Shareyouressays (25-3-2021, 12.02 a.m.), <https://www.shareyouressays.com/knowledge/section-9-of-the-indian-evidence-act-1872-2/120396>.)

[7] SRD Law Notes (22-3-2021, 16.00), <https://www.srdlawnotes.com/2016/12/identification-parade_23.html>.

[8] Tan Shoo May, Visual Identification: Recognition and Identification, Law of Evidence (23-3-2021, 11.10 a.m.), <http://evidencejournalist.weebly.com/bloggers/visual-identification-recognition-identification>.

[9] Batuk Lal, The Law of Evidence, 129 (22nd Edn., Central Law Agency, 2018).

[10] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31),  <https://criminallawstudiesnluj.wordpress.com/2019/03/07/the-eyewitness-enigma-a-paradox-in-the-law-of-evidence/#_ftn1>.

[11] Reg. v. Cook (Christopher), (1987) 2 WLR 775

[12] Siegen K. Chou, What is the Curve of Forgetting? 45(2) The American Journal of Psychology 348 (1933).

[13] (1987) 2 WLR 775

[14] Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau, (2000) 1 SCC 138

[15] Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319

[16] D. Gopalakrishnan v. Sadanand Naik, (2005) 1 SCC 85

[17] (2005) 1 SCC 85

[18] Dola v. State of Odisha, (2018) 18 SCC 695

[19] <http://www.scconline.com/DocumentLink/515Y2gm2>.

[20] Law Commission of India, 87th Report on the Identification of Prisoners Act, 1920,(1980) 

[21] <http://www.scconline.com/DocumentLink/Wz2R58rl>.

[22] (2019) 8 SCC 1, para 27

[23] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[24] <http://www.scconline.com/DocumentLink/WRitQgBb>.

[25] P.N. Prakash, Sanjay S. Jain and Sharath Chandran, The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha v. State of U.P., (2021) 1 SCC J-73 

[26] <http://www.scconline.com/DocumentLink/y587uE3Q>.

[27] Malkhansingh v. State of M.P., (2003) 5 SCC 746

[28] (1978) 3 SCC 86 at pp. 1211-1212

[29] Ram Babu v. State of U.P., (2010) 5 SCC 63; Vijay v. State of M.P., (2010) 8 SCC 191, 199

[30] <http://www.scconline.com/DocumentLink/JD3w6KNb>.

[31] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, SCC OnLine (25-3-2021, 13.00), <https://www.scconline.com/blog/?p=234322#_ftn23>.

[32] Shyamal Ghosh v. State of W.B.,  (2012) 7 SCC 646

[33] V.C. Shukla v. State (Delhi Admn.), (1980) 2 SCC 665 at p. 1396

[34] (2012) 9 SCC 284

[35] Murugasamy v. State, 2017 SCC OnLine Mad 37658

[36] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, at p. 6, SCC OnLine (25-3-2021, 13.00), <https://www.scconline.com/blog/?p=234322#_ftn23>..

[37] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31), at p. 3  <https://criminallawstudiesnluj.wordpress.com/2019/03/07/the-eyewitness-enigma-a-paradox-in-the-law-of-evidence/#_ftn1>.

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