{"id":238458,"date":"2020-11-03T22:01:27","date_gmt":"2020-11-03T16:31:27","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=238458"},"modified":"2020-11-06T11:16:32","modified_gmt":"2020-11-06T05:46:32","slug":"two-men-cleared-of-murder-walk-free-after-12-years-in-prison-as-sc-holds-that-conviction-cannot-be-based-solely-on-refusal-to-undergo-a-test-identification-parade","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2020\/11\/03\/two-men-cleared-of-murder-walk-free-after-12-years-in-prison-as-sc-holds-that-conviction-cannot-be-based-solely-on-refusal-to-undergo-a-test-identification-parade\/","title":{"rendered":"Two men walk free after 12 years in prison as SC holds that conviction cannot be based solely on refusal to undergo a Test Identification Parade"},"content":{"rendered":"

Supreme Court<\/strong>: The 3-judge bench of Dr. DY Chandrachud*<\/strong>, Indu Malhotra and Indira Banerjee, JJ has summarised the principles relating to conduct of a Test Identification Parade (TIP) and has held that<\/p>\n

\u201c\u2026 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.\u201d<\/span><\/strong><\/p>\n

The Court was hearing a case where two men were convicted for killing a final year LLB student of Maharishi Dayanand University, Rohtak under Section 302 read with Section 34 of the India Penal Code and have been sentenced to imprisonment for life. The appellants had refused to undergo a TIP and it was contended that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP.<\/p>\n

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Test Identification Parade: Principles summarised<\/strong><\/span><\/h3>\n
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  1. 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;<\/li>\n
  2. 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;<\/li>\n
  3. Identification parades are governed in that context by the provision of Section 162 of the CrPC;<\/li>\n
  4. 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;<\/li>\n
  5. The identification of the accused in court constitutes substantive evidence;<\/li>\n
  6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act;<\/li>\n
  7. A TIP may lend corroboration to the identification of the witness in court, if so required;<\/li>\n
  8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness\u2019 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;<\/li>\n
  9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible;<\/li>\n
  10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case;<\/li>\n
  11. 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<\/li>\n
  12. 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.<\/li>\n<\/ol>\n
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    Examination of ballistics expert \u2013 When not necessary<\/strong><\/span><\/h3>\n
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    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.<\/p>\n

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    Discussion and ruling on facts<\/strong><\/span><\/h3>\n
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    Scrutinising the evidence in the present case, the Court noticed the following aspects:<\/p>\n