Read judgment: Umesh Chandra &Ors vs. State of Uttarakhand
New Delhi, August 13, 2021: While quashing the conviction under sections 395 & 397 of the Indian Penal Code (IPC), the Supreme Court has held that mere identification in the test identification parade cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification.
A Division Bench of Justice Navin Sinha and Justice Subhash Reddy ordered the release of Appellants, noticing the very casual manner in which the Police conducted the investigation by Test Identification Parade (TIP) supported by a claim of recovery to link the two events but failed miserably to establish either.
The Apex Court very clearly mentioned that the TIP, a part of the investigation, cannot be said to have been proved much unless it was held in accordance with the law. There cannot be repeated TIPs till such time that the prosecution is successful in obtaining identification of the accused, added the Court.
The Division Bench found it “extremely disturbing” that both the Trial Court and the High Court did not go into this aspect at all to satisfy themselves if any TIP had been proved to have been held at all and that too in accordance with the law.
These observations came pursuant to the sentence of seven years awarded to four accused convicted u/s 395 and 397 of IPC, for committing dacoity.
The incident took place in the house of Hukumchand, the informant, wherein seven accused intruded and looted cash and jewelry, and fled. This led to lodging of FIR, whereby the accused were arrested.
They were stated to have confessed having committed dacoity and looting cash and jewelry which were recovered from them along with weapons on their person.
During the pendency of the Trial, the informant passed away and the accused were identified in a TIP. It was on the basis of this identification that their conviction had followed. However, the recovery not having been proved as the original seizure memo was never produced, they were acquitted of the charge u/s 412 IPC. The appellants were also acquitted of the charge under the Arms Act.
The appellants had vehemently submitted that the conviction based on the TIP would be unsustainable as no TIP had been proved to have been held in accordance with law.
It was further put forth that in the trial of two acquitted accused, one prosecution witness had turned hostile denying identification of the recovered items or the accused in the TIP, stating that his signature was obtained on it by the police.
On the other hand, acknowledging that acquittal u/s 412 IPC was not questioned, the State submitted that it would not be very relevant once the identification of the appellants stood established in the TIP which was held properly after covering the face of the accused.
After considering the submissions, the Apex Court found that the FIR was registered against unknown persons and the case of the prosecution solely rested on the identification in the TIP.
The Bench also conceded that the acquittal of the appellants u/s 412 IPC and the Arms Act had attained finality. No doubt the test identification parade was conducted within about a month of the occurrence. It was also to be kept in mind that one prosecution witness was a minor aged about 13 years at the time of occurrence, added the Bench.
The Top Court said that a test identification parade u/s 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence, and the purpose of holding a test identification parade during the stage of investigation is only to ensure that the investigating agency prima facie was proceeding in the right direction where the accused may be unknown or there was a fleeting glance of the accused.
“But more important than that, the test identification parade being a part of the investigation, has to be proved by the prosecution as having been held in accordance with law. The onus lies on the prosecution to establish that the TIP was held in accordance with law. It is only after the prosecution prima facie establishes a valid TIP having been held, the question of considering any objection to the same arises. If the prosecution has failed to establish that a TIP was properly held by examining the witnesses to the same, there is nothing for the accused to disprove,” opined the Top Court.
In the TIP, the primary witnesses, who are wife and son of the informant, both of them are stated to have been present in the house when the occurrence took place, did not identify any of the appellants.
What the Court had before it was identification by a minor boy and that too in the 3rd and 4th rounds insofar as the present appellants were concerned. In the nature of the TIP held it is completely non est in the law and the benefit has to go to the accused, noted the Bench.
The Court also noted a Magistrate was stated to have conducted the TIP but he was not examined. No explanation was forthcoming as to why the Magistrate was not examined. The only evidence available was that of the Station House Officer that during the investigation the TIP was held in the District Jail, Nainital and he identified the proceedings in the Court.
According to the Bench, the identification of the proceedings was irrelevant as obviously he could not have been present during the TIP.
Thus, the Apex Court refused to uphold the conviction and also commented that there was a marked similarity on facts in the present case with Iqbal and Another vs. State of Uttar Pradesh, wherein doubting the identification in the TIP, coupled with failure to produce corroborative substantive evidence like recovery of the stolen goods or the weapons, the conviction was held to be unsustainable.