Test Identification Parade of the Accused: Law, Practice and Safeguards

INTRODUCTION:

In all criminal trials, the two most intrinsic points of determination are the following: whether the alleged offence was committed, and, if so, who committed the offence. One of the ways employed to establish the identity of a person as the doer of a particular act is by way of identification parades. Evidence by way of identification parades is taken under Section 9 of the Indian Evidence Act, 1872. The purpose of identification parade is to test the veracity/trustworthiness of the evidence of the witness. The object of conducting a Test Identification Parade (hereinafter referred to as the “TIP”) is, firstly, to satisfy the investigating authority, before remitting the case to the court for trial, that the person arrested, who was not previously known to the witness, was in fact one of those who committed the crime; and secondly, to satisfy the court that the accused arrested is in fact the culprit.[1] The whole idea behind TIP is to test whether or not the witness who claims to have seen the culprits at the time of occurrence/commission of the offence is thoroughly reliable and can identify the culprits from midst of other individuals without any aid and/or other source. TIP is conducted to test the veracity of the witnesses who claim to have seen the culprits committing the offence.[2] This practice of TIP is not borne out of procedure, but out of prudence.

Identification of an accused in the court of law is substantive evidence, whereas, evidence of identification in TIP though is primary evidence but is not substantive one, and the same can be used only to corroborate the identification of the accused by the witness in the court of law. It is interesting to note that, if TIP is not conducted and the witness identifies the accused for the first time in the court of law, then, the evidence regarding identification in the court of law does not ipso facto becomes inadmissible and cannot be discarded on the ground that it was not preceded by TIP; the court identification of accused without TIP is admissible if the court finds it trustworthy. The general rule is that, the evidence of identification of the accused before the court of law should not, ordinarily form the basis of conviction until and unless it is corroborated by previous identification in the TIP or vide some other evidence, although there are certain exceptions to this rule, for example, in the case of State of H.P. v. Prem Chand[3], the eyewitness knew the accused to be his uncle and had seen him coming to his house on the day of occurrence and also on the day preceding the day of occurrence and clearly identified him in the court of law, here, the Apex Court held that there was no need to hold TIP. Further, in the case of, Ramesh Kumar v. State of Punjab[4], it was held that, there is no need for identification parade where the witnesses already knew who the assailants were. TIP is not a sine qua non in every case, that is, if the facts and circumstances of a case conclusively establish the guilt of the accused, then, there is no need to hold TIP.

PURPOSE OF TEST IDENTIFICATION PARADE:

Usually, there is a stretched time gap between the commission of an offence and the trial of the offence, and quite naturally if the accused is not known to the eyewitness, then, how can it be expected of the eyewitness to remember minute details such as: general appearance, physical structure, stature and complexion of the accused, and as a necessary corollary, how can it be expected of the eyewitness to identify the accused with exactitude in the court of law; thus, to resolve this anomaly, soon after the commission of crime, if any eyewitness is available then TIP should be conducted as a matter of priority, prudence and propriety and not just procedure, so that the eyewitness is able to depose about the accused and the crime scene when his memory is fresh and unsullied. It is important to note that, evidence of TIP conducted by police cannot be tendered in the court of law because such identification amounts to a statement made to the police and accordingly as per the purport of Section 162 of the Criminal Procedure Code, 1973, such evidence being in the nature of statement made to the police during investigation it cannot be tendered as evidence in the court of law. In order to make TIP admissible in the court of law, so that it can be used to corroborate the oral evidence that would be given in the court of law, TIP must be conducted in the presence of a magistrate (judicial or executive).

Once the witness identifies the accused at the TIP conducted before the magistrate, then, the magistrate becomes a witness and is to tell the court about the various precautionary steps that the magistrate took to see that the witness actually picked out the concerned accused/suspect at the TIP without any police help. If a witness clearly and correctly identifies the accused at the TIP but not before the court of law, then, the evidence of the magistrate, who conducted the TIP holding that the witness identified the accused at the TIP, supported by remarks of the trial judge regarding the demeanour of the witness, that, the witness was frightened and was thus unable to recognise the accused at the trial, would be relevant and sufficient to convict the accused.   

In the case of, Ahmed Bin Salam v. State of A.P.[5], the police inquired from the witness as to whether or not, he could identify the persons who were on scooter and who threw bombs towards the deceased; the accused persons were thereafter shown to the witness and the witness identified them as accused. The Hon’ble Supreme Court of India held that, such an exercise cannot be termed as TIP. 

TEST IDENTIFICATION PARADE- NOT SUBSTANTIVE EVIDENCE:

TIP is not substantive evidence; it only assures that the investigatory process is progressing on right lines.[6] TIP is a part of the investigatory process under Section 162 of the Criminal Procedure Code, 1973. TIP has been in common use for a very long time; the object is to place the suspect of crime in a line with other individuals for identification. The purpose is to find out whether or not the suspect/accused is the perpetrator of the crime. This is all the more essential where the name and details of the accused, although, are not known to the eyewitnesses of the incident, but, still by recalling the scene of crime and the physical features (face, eyes, complexion, height and/or physique) of the accused/suspect the eyewitnesses are able to identify the accused/suspect.[7] The rationale of TIP is to confirm the identity of the accused and to help the police in their investigation. In the case of, State of A.P. v. V.K. Venkata Reddy[8], the Hon’ble Supreme Court of India categorically held that, the evidence given by a witness in the court of law is substantive testimony while the identification made by the witness in the TIP is only confirmatory of the testimony made before the court of law.

Further, in the case of, Rabinder Kumar Pal v. Republic of India[9], the Hon’ble Supreme Court of India held that, photo identification of accused and TIP are only aides to the investigation conducted by the investigating officer (‘I.O.’ for short) and these do not form substantive evidences. Substantive evidence is the evidence in the court of law on oath. The logic behind TIP, which includes photo-identification, lies in the fact that it is only an aid to the investigation, where an accused is not known to the witnesses; the I.O. conducts TIP to ensure that he has caught hold of the right person as the accused.

DELAY IN HOLDING TEST IDENTIFICATION PARADE MUST BE EXPLAINED:

Many times TIP gets delayed due to the non-availability of the magistrate; the delay in holding TIP must be accounted for satisfactorily, for example, in the case of, Rajesh Govind Jogesh v. State of Maharashtra[10], the explanation tendered by the I.O. that no magistrate was available in Bombay for 5 (five) weeks for supervising the TIP was held to be not a satisfactory explanation by the Hon’ble Supreme Court of India; whereas, in another case, Murarilal Jivaram Sharma v. State of Maharashtra[11], delay of 2 (two) months in holding TIP was held to be sufficiently explained where the I.O. although kept writing to the magistrate for holding TIP but the magistrate was not able to spare time due to his pre-occupations. Delays in holding TIP can reduce the credence that can be attributed to the evidence obtained vide the TIP route.

HOLDING TEST IDENTIFICATION PARADE WHEN NECESSARY AND WHEN NOT:

Absence of TIP in all cases is not fatal, for example, in the case of Dastagir Singh v. State of Karnataka[12], where X was raped by A, and, X was able to see A due to the proximity involved in the commission of crime, the Hon’ble Supreme Court of India, held that, to say that, TIP is necessary to test the veracity, reliability and memory of X, will be incongruous and farcical because in offences such as that of rape, the victim herself is a “natural witness”. However, in another case, Devinder Singh v. State of H.P.[13], the Apex Court held that, because the crime of rape was committed in the night, in the room of the victim, where there was no light, even if, it is stated that the victim had a fleeting glimpse of the accused when torch was lighted in the room after the commission of the crime, it will not be enough as the accused was not known to the victim, and, therefore, it was incumbent upon the prosecution to hold TIP, and failure to do so was held to be fatal to the case of the prosecution. In the case of Jadunath Singh v. State of U.P.[14], it was emphatically held that, if the prosecution refrains from holding TIP on the plea that, the witness already knew the accused, but later it transpires during the course of the trial that the witness did not know the accused in the past, then, the prosecution runs the risk of losing the case; therefore, if there is any doubt, it is always advisable for the prosecution to hold TIP. On the contrary, in the case of, Asha & Ors v. State of Rajasthan[15], the Hon’ble Supreme Court of India held that, TIP was not necessary as the F.I.R. was lodged within one (1) hour of the commission of the crime and the culprits were named in the F.I.R., that is, the culprits were known to the complainant.

Where the witness states before the court that, he identified the accused at the TIP and the magistrate corroborates the witness, then there is no difficulty. But, the problem begins when the witness states that, (a) he did not identify the accused at the TIP, but is able to identify the accused in the court; or, (b) he did identify the accused at the TIP, but is unable to identify the accused in the court; or, (c) he did not identify the accused at the TIP, nor is able to identify the accused in the court. The question for consideration which arises here is this: Can the magistrate give evidence of the TIP which was held by him and during which the accused was identified by the witness?

The purpose of TIP is to enable the witness who claims to have seen the commission of the crime, to identify the accused/suspect out of the several persons lined up by the I.O. in the presence of judicial/executive magistrate. The TIP takes place in the presence of magistrate and it is the magistrate who prepares the record of the TIP proceedings. It is for the witness to point out the accused/suspect out of the several persons and it is for the magistrate to corroborate the identification by the witness of the accused/suspect. Thus, in situations (a) and (c), there is nothing for the magistrate to corroborate, and it is only in situation (b) that a magistrate can corroborate the identification of the accused/suspect by the witness.           

IDENTIFICATION BY PHOTOGRAPH:

Section 22 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (“TADA” for  short) stated that: “Where a person has been declared a proclaimed offender in a terrorist case, the evidence regarding his identification by witnesses on the basis of his photograph shall have the same value as the evidence of the test identification parade.”

In the case of, Kartar Singh v. State of Punjab[16], constitutional validity of Section 22 of TADA was challenged before the Apex Court. The Hon’ble Supreme Court of India held that, Section 22 of TADA was opposed to the fair and reasonable procedure enshrined in Article 21 of the Constitution of India, 1950.

IDENTIFICATION BY VOICE:

In the case of, Mohan Singh v. State of Bihar[17], the trial pertained to an offence concerning conspiracy for murder; here, the witness heard the accused while the accused was demanding money from the victim, and subsequently the witness identified the accused by the voice of the accused. Even prior to the happening of the incident, the witness had some acquaintance with the accused. The court held that, the evidence tendered by the witness, identifying the accused by his voice was reliable.

TEST IDENTIFICATION PARADE- SAFEGUARDS:

1. TIP must ideally be conducted as soon as possible to avoid any mistake on the part of the witnesses. The judicial/executive magistrate who is to conduct the TIP must first acquaint himself with the facts of the case, and thereafter he must take note of the suspects who are to be identified and the witnesses who shall be identifying the suspects;
2. Where the prosecution-witness is well-acquainted with the accused/suspect, holding of TIP is a complete waste of public time and money;
3. Ideally, before conducting TIP, two independent and well thought-of individuals (not connected/associated with police officials) must be called-up by the police officials to participate in the TIP. The judicial/executive magistrate should brief these independent individuals about the facts of the case, and, as to who is to be identified (suspect) and who all are to come forward to identify (eye-witnesses);
4. All police officers and constables must be asked to completely withdraw themselves from the room where the TIP is to be conducted;
5. Ideally, TIP must not be held in a police station building but rather separate rooms must be reserved for holding TIP in separate building[18];
6. In the case of, Bhaskar Virappa Kanchan State of Maharashtra[19], it was held that, at times TIP can be conducted even in a police station, provided, the place of identification is completely separate from the police office; police officials have no access to the place where TIP is being conducted; there was no opportunity for the identifying witnesses to see the accused/suspect before the TIP; and there is nothing on record to state that the accused/suspect was shown to the identifying witnesses prior to the TIP;
7. Before the commencement of the TIP, the two independent-well-thought-of individuals (panch witnesses) must be asked to bring the accused/suspect from the lock-up room, and the judicial/executive magistrate must state in the identification memo that, the accused was brought to the room where TIP was to be conducted by the respective two independent individuals (panch witnesses);
8. When the accused/suspect is brought before the judicial/executive magistrate, then, it is incumbent upon the judicial/executive magistrate to allow the accused/suspect to take any place he likes in the parade. The place the accused/suspect selects to stand at must be mentioned in the identification memo by the judicial/executive magistrate;
9. An accused/suspect has no right to cover his face while the TIP is going on; thus, it is necessary that adequate number of dummies are made to stand with accused/suspect in the TIP, and ideally, each accused must be put to identification disjointedly;
10. Before the parade begins, the judicial/executive magistrate must allow the accused/suspect to alter his/her dress; if, the accused/suspect alters his/her dress, then, the fact of his/her altering the dress must be recorded by the judicial/executive magistrate in the memo of identification prepared by him;
11. The judicial/executive magistrate must mention in the identification memo, whether the identifying-witnesses identified the accused/suspect straightway, or, after some hesitation, or, after pointing at the wrong person and then later correcting themselves;
12. Police authorities must ensure that delay in conducting TIP should not result into exposure of identity of the accused to the witnesses as this will be fatal to the very premise of TIP;
13. Appreciation of evidence obtained vide the TIP route depends upon the strength and trustworthiness of the witnesses;
14. If the manner of holding TIP throws doubt/suspicion on the police officials, then, TIP will have no evidentiary value. However, mere presence of police officials and/or public prosecutor at the place where TIP is conducted will not vitiate it, especially when no prejudice is shown to have been caused to the accused[20];
15. Witnesses should be prevented from seeing the suspect before he is paraded; if there is only one suspect who is to be identified, then, at least half a dozen of other individuals must be placed in the parade, however, if there are two suspects that are to be identified then there should be at least ten (or twelve) of other individuals that must be placed in the parade. Not more than two suspects are to be placed in any single TIP;
16. The suspect must be placed among persons of similar height, weight, age, physical structure and complexion as far as possible;
17. If there are more witnesses than one, then, witnesses should be introduced one by one and should be asked to identify the suspect; witnesses must be allowed to touch any of the persons paraded before them;
18. If parade takes place in a prison then the prison officer should be present throughout the parade;
19. The identification memo prepared by the judicial/executive magistrate must contain the details as regards the time, place and date of the parade; details of the panch witnesses (two independent individuals); names of the persons standing in the parade; and statements made by the identifying witnesses[21];
20. In the case of, Krishnarayana Babu v. State[22], it was held that, it is the duty of judicial/executive magistrate to take note of every objection which is made by an accused/suspect at the time of TIP so that the court which has to appreciate the evidentiary value of the TIP can take into consideration those objections and in the light of those objections can understand the contents of the identification memo;
21. After the TIP is complete then, the judicial/executive magistrate must read over the contents of the identification memo to the panch witnesses and they must sign the memo, stating that they agree with the details of the TIP contained in the memo;
22. Identification memo must be written in the language of the court;
23. If a First Class Magistrate or Second Class Magistrate specially empowered in this behalf by the State Government holds identification, then, Section 164 of the Criminal Procedure Code, 1973 applies and the identification memo prepared is admissible in evidence under Section 80 of the Indian Evidence Act, 1872 without proof. However, if others, such as, Naib Tehsildar, (that is, Third Class Magistrate) holds identification parade, then, he must be called on to prove the identification memo[23];
24. Court identification of the accused/suspect for the first time by an identifying witness is generally an evidence of inherently weak character[24];
25. There are no minimum number of witnesses that are required to identify the suspect/culprit in TIP; and,
26. There is no statutorily prescribed time limit within which TIP must be conducted. Prudence demands that TIP must be conducted as soon as possible.

EXCURSUS:

1. Where the accused is not named in the F.I.R. and was not previously known to the witnesses, TIP must be held[25];
2. Identification of the accused through a photograph can take the place of a formal TIP[26];
3. Failure to hold TIP would not make inadmissible the evidence of identification of the accused in the court of law if such court identification of accused is found to be reliable, trustworthy and dependable[27];
4. In the case of, Dana Yadav State of Bihar[28], the Hon’ble Supreme Court of India categorically held that, the sole purpose of TIP is to lend corroboration to the court identification of the accused, and, identification before court should not normally be relied upon if the name of the accused is neither mentioned in the First Information Report, nor, is stated before the police;
5. Holding TIP is not obligatory and accused has no right to insist upon the holding of TIP. Delay in holding TIP although is not fatal, but, efforts must be made to hold it as soon as possible to avoid the mischief of accused being shown to the witnesses[29];
6. Court identification of the accused by the witness is useless, when the witness has already failed to identify the accused at the TIP[30];
7. Incorrect identification of the accused by a witness in the court of law has no bearing if the case of the prosecution stands proved by virtue of other evidences. In the case of, Simon State of Karnataka[31], the court held that, there can be variety of reasons for failure to identify, that is, the witness might have been won over, or, might have lost memory because he had seen the accused on the crime scene several years ago;
8. If the accused is caught red-handed from the scene of crime then no question of TIP arises[32];
9. If the contents of the TIP are contrary to the contents of the F.I.R. and the statement of the accused under Section 161 of the Criminal Procedure Code, 1973, then, TIP will be held to be unreliable[33];
10. If the accused refuses to appear for TIP then an adverse inference of guilt can be drawn against him (Section 54A of the Criminal Procedure Code, 1973).[34] However, in the case of, Satnarayan v. State of A.P.[35], it was held that, a suspect cannot be compelled to participate in TIP if he is undergoing treatment;
11. No one can be compelled to line-up for TIP and if the accused/suspect refuses to submit himself for TIP, he does so at his own risk[36];
12. If court is of the opinion that regard being had to the facts of a particular case, bail should be granted to the accused, then, bail cannot be rejected simply because TIP is still to be conducted. Court is empowered to grant bail by imposing some limited conditions on the accused such as that the accused shall not appear in public or interact with media for a limited period of time;
13. Giving thumb impression, or, foot impression, or, palm/finger impression, or, specimen of handwriting, or, exposing parts of body for the purpose of identification, is outside the periphery of “to be a witness” so far as the mandate of Article 20(3) of the Constitution of India, 1950 is concerned.[37]

[1] See: Satya Narain v. State, AIR 1953 All 385

[2] See: Md. Kalam v. State of Rajasthan, AIR 2008 SC 1813

[3] (2002) 10 SCC 518

[4] (1993) Cri L.J. 1800 (SC)

[5] 1999 Cri L.J. 2281 (SC)

[6] See: Musheer Khan v. State of M.P., (2010) 2 SCC 748

[7] See: Ramanathan v. State of Tamil Nadu, AIR 1978 SC 1201

[8] (1976) 1 SCC 463

[9] (2011) 2 SCC 490

[10] AIR 2000 SC 160

[11] AIR 1997 SC 1593

[12] AIR 2004 SC 2884

[13] AIR 2003 SC 3365

[14] AIR 1971 SC 363

[15] AIR 1997 SC 2828

[16] (1994) 3 SCC 569

[17] (2011) 9 SCC 272

[18] See: Anthony v. State of Maharashtra, 2003 (4) Mah L.J. 894 (Bom)

[19] 2003 Bom CR (Cri) 1648

[20] See: State of U.P. v. Girija Shankar Mishra, 1985 Cri L.J. NOC 79 (Del) (DB)

[21] See: Yakul Abdul Razak Menon v. State of Maharashtra, (2013) 13 SCC 1

[22] 1996 Cri L.J. 4484 (Mad)

[23] See: Asharfi v. State, AIR 1961 All 153

[24] See: Malkhan Singh v. State of M.P., AIR 2003 SC 2669

[25] See: Mohd. Saleem v. State, 1992 Cr. L.J. 1959 (Delhi)

[26] See: Laxmi Raj Shetty v. State of T.N., AIR 1988 SC 1274

[27] See: Malkhan Singh v. State of M.P., AIR 2003 SC 2669

[28] (2002) 7 SCC 295

[29] See: Anil Kumar v. State of U.P., (2003) 3 SCC 569

[30] See: Hare Kishan Singh v. State of Bihar, AIR 1988 SC 863

[31] AIR 2004 SC 2775

[32] See: Kishore Prabhakar Sawant v. State of Maharashtra, (1999) 2 SCC 45

[33] See: State of Orissa v. Harachand Khilei, 2008 Cr. L.J. (NOC) 524 (Orissa)

[34] See: Kiwan Prakash Pandurang Mokash v. State of Maharashtra, ILR 1974 Bom 337

[35] 1994 Cri L.J. 37 (AP)

[36] See: Suraj Pal v. State of Haryana, (1995) 2 SCC 64

[37] See: State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808