This article is written by Tejbir Chugh.
Where the court needs to establish the identity of certain persons and things then every fact that assists the court in doing the same becomes relevant. Characteristics such as height, weight, body, facial structure, complexion, distinctive marks are relevant. The investigating agencies use various methods in this process. These methods include DNA profiling, skull superimposition technique, fingerprints and footprints and the most popular Test Identification Parade. The police machinery has been using TIP for the longest time, it becomes relevant where the identifying witness has never seen the accused ever before.
Test Identification parades are relevant under section 9 of the Indian Evidence Act, 1872, sec 54A and sec 162 of The Code of Criminal Procedure, 1973. Sec 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 insofar as they are necessary for that purpose. [54A. Identification of person arrested.– Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit:] [Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with:
Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be videographer. 162. Statements to police not to be signed: Use of statements in evidence. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
The Test Identification Parades are held at the instance of the investigating agency. Its purpose is to ascertain the veracity of the witness claiming to have seen the accused at the time of the offence. In the case of State of Maharashtra v Suresh it was observed that “The object of conducting a Test Identification Parade is two fold. First is to enable the witness to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them during the commission of the crime. Second is to satisfy the investigating authorities that the prisoner whom they suspect is the one that the witness has seen.” It also strengthens the evidence of prosecution as to corroborate dock identification. It is a very useful tool in the investigation and guides the police. It is an important part of the investigation for the prosecution as well as accused. It is significant for the prosecution since the skipping of TIP will make dock identification inherently. So is it for the accused, as if the witness doesn’t identify it will be fatal to the prosecution.
- The officer in charge has to seek permission from the Magistrate for conducting TIP. It is conducted in the jail premises after the permission of the Court.
- A letter is sent to the jail authorities to do the arrangement for the TIP and decide a specific date for it. It has to be conducted by the Magistrate, who also chooses two witnesses for the process. These witnesses are known as Panchas.
- The jail authorities have to select six dummy persons in which the accused is to be mixed. These six dummies should be identical in body and facial structure. All of them are then made to stand in a line.
- The accused is to be given the liberty to stand at the position he wants and no police officers can be present in the same room. As soon as the arrangement is complete, the the witness has to identify the accused amongst the dummies by touching him.
- The Magistrate has to prepare a report distinctively mentioning the demeanours, time taken and reason given by the identifying witness. The report is to be forwarded to the court.
Precautions to be undertaken
There is no invariable rule as to how many accused can be the part of the same Test Identification Parade but ordinarily, a maximum of two accused are used in the same parade. In the case of two accused it would mean a total of fourteen people which includes two accused and twelve dummies. The identifying witness is to identify the accused without any support. So if among all the prisoners lined up the accused is kept in fetters, such identification will not be valid. Also, the jail authorities have to keep a separate set of clothes if the accused wants to change. The jail authorities have to ensure that there is a wall between the identifying witness and accused before the TIP. In the case if there are more than one identifying witness, as soon as one witness has been through the parade, he/she should not be allowed to interact with the other witness. If in any case a police officer is present within the same room in which TIP is conducted, it would be governed by the sec 162 of The Criminal Procedure Code, 1973 and such identification will lose its evidentiary value and can put the whole investigation under doubt.
It can also be conducted through photograph, sketch and even by voice of the suspect in certain exceptional cases where the identifying witness might be blind. It was held in Dola alias Dolagobinda Pradhan v State of Odisha that the identification from voice may be possible if there is evidence to show that witness was sufficiently acquainted with the accused in order to recognize him or her voice, however, the evidentiary value of voice identification would be very fragile unless it could be shown the witness was well aware of the accused’s voice and supported by circumstances.
Rights of the accused
The process has to be conducted as soon as possible after the arrest. It is done to ensure that his face is not shown to the identifying witness. If in any case, his face is shown before the TIP, he can provide this information to the Magistrate conducting the process and that is to be mentioned in the report. However, in Murarilal Jeyaram Sharma v. State of Maharashtra, the officer investigating the case kept on writing to the Magistrate for permission but it led to a delay of two months since he was busy in court duties yet the TIP was held to be valid. The accused cannot demand to be subjected to TIP as a matter of right since there is no provision in Cr.P.C for it. However it was held in Tek Chand v. State, ordinarily in such a situation TIP should be conducted to ensure the validity of the defence of the accused. On the contrary, if the accused is not co-operating in the process, the officer in charge can write to the Magistrate to direct the accused under sec 54A of The Code of Criminal Procedure, 1973. This can also be used to draw a negative inference against the accused.
It is a weak piece of evidence and only a prima facie proof with corroborative value. The court while appreciating such evidence has to keep the circumstances in consideration. Factors such as whether the witness had sufficient time and the lighting at the place of offence are relevant. The weight of such evidence depends upon the reliability of the witness. Where the only evidence against the accused person is identification by one witness, as a rule of prudence it should not be considered sufficient enough to secure a conviction. The value can vary depending upon the reliability of the witness. The Supreme Court also held that where the eye-witness could not identify the accused but identified him at TIP, such evidence is farce evidence.
Once Samuel Leibowitz, American criminal attorney who later became a justice in the New York State Supreme Court had visited a Law college for a lecture to a class of fifty students and suddenly in the midst of it a girl came running into the class being very scared. She was being followed by two men who got into the class and lifted her and took her away. The boys of the class stood up to chase the men but were stopped by the Mr. Leibowitz who explained them was a part of an experimental research. Later, he asked all the students of the class to write down in exact words as to what they saw in this incident. After about an hour, all the fifty answered were checked and not even one of them tallied each other. The question arose: was anyone telling lies? No rather it was every individual’s perception of reality. This indicates one thing, namely whatever is perceived is not necessarily the reflection of what actually happened. This phenomena of perceived realities is also very relevant in Test Identification Parades. The human memory is fragile and temporary, so the identifying witness might actually identify a suspect not involved in the commission of crime leading to a lot of resentment for the suspect.
A test such as TIP is a very important part of the investigation to ascertain that it is in the right direction. It might be only of corroborative value but it is important along with the identification done in the court. It has its own disadvantages just like any other process and if not done meticulously might change the direction of the case and thwart the course of justice. The guidelines to police officers can be made more stricter to ensure the manner in which it is conducted is righteous and fair. This hundred-year-old procedure can be strengthened with slight reforms and strict guidelines to assist the courts in expeditious trial and in the pursuit of truth.
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