Evidence Act, 1872 : s. 9 – Test Identification Parade(TIP) – Legality and validity of – Prosecution case that accused persons to avenge the police atrocity hatched a conspiracy, abetted acts of rioting and destruction of public property – A-17 and A-19 alleged to have caused the death of a bus conductor – Accused convicted and sentenced for hatching conspiracy, murder of the bus conductor and destruction of roadways buses and other public properties – Findings of trial court and High Court on issue of conspiracy and murder attained finality – As regards, issue of destruction of property, the trial court rejected all the objections to the legality and credibility of TIP, and convicted the accused Nos. 1-7, 9-12, 14, 16 and 18 u/ss. 143, 147, 148 IPC, and s. 3(2)(e) of 1984 Act r/w s. 149 IPC and sentenced to four years of rigorous imprisonment – High Court upheld the same – On appeal, held: Witnesses had the opportunity of seeing the accused before the conduct of TIP – Even one of the accused deposed to the said effect – There existed no useful purpose behind conducting the TIP – TIP was a mere formality, and no value could be attached to it – Delay in holding the TIP coupled with other circumstances cast a serious doubt on the credibility of the TIP witnesses – Conduct of the TIP, coupled with the hovering presence of the police during the conduct of the TIP vitiated the entire process – Trial court as well as the High Court erred in relying on the evidence of the TIP witnesses – Discrepancies in the manner in which both the TIPs were conducted, the prosecution could not establish its case beyond reasonable doubt – Apart from the TIPs, no other evidence put forth by the prosecution to prove the guilt of the accused – When the TIP is vitiated, the conviction cannot be upheld – Appellants acquitted of all the charges – Code of Criminal Procedure, 1973 – s. 386 – Penal Code, 1860 – ss. 143, 147, 148, 149 – Prevention of Damages to Public Property Act, 1984 – s. 3(2)(e).
s. 9 – Test Identification Parade – Conduct of – Object of conducting TIP – Evidentiary value of TIP – Explained. Allowing the appeals, the Court
HELD: 1.1 The eyewitnesses questioned by the
prosecution did not give out the names or identities of the accused participating in the riot and involved in the destruction of public property. Therefore, the IO (PW-84) had to necessarily conduct a Test Identification Parade (TIP). The object of conducting a TIP is threefold. First, to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Third, to test the witnesses’ memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime. [Para 25][615-E-G]
1.2 TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. The evidence of a TIP is admissible under Section 9 of the Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained. [Para 26][615-G-H; 616-A-B]
1.3 It is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that a TIP is held without avoidable and unreasonable delay after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses before the test identification parade. This is a very common plea of the accused, and therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. But reasons should be given as to why there was a delay. [Para 27][616-C-D]
1.4 In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form, i.e., physically, through photographs or via media (newspapers, television etc), the evidence of the TIP is not admissible as a valid piece of evidence. [Para 28][616-E-F]
1.5 If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless. Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973. [Para 29][617-A-B]
1.6 It is significant to maintain a healthy ratio between suspects and non-suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine-qua-non that the non-suspects should be of the same age-group and should also have similar physical features (size, weight, color, beard, scars, marks, bodily injuries etc.) to that of the suspects. The concerned officer overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality. It is for the prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before conducting the TIP. Thus, the burden is not on the defence. Instead, it is on the prosecution. [Para 30, 31][617-C-F]
2.1 Having considered the evidence of crucial eye-witnesses and the material indicating the conduct of the TIP, the witnesses had the opportunity of seeing the accused before the conduct of the TIP. Not only have the witnesses deposed that they had seen the suspects before the TIP, even accused No. 2, at the end of the 1st TIP, had raised a grievance that the suspects were all photographed, video-graphed and were shown to the witnesses from the cabin of the IO (PW84). At the end of the 2nd TIP, he had also stated that when accused Nos. 1-19 were taken to court for the purpose of remand, and the presence of all the witnesses was arranged in the court by the police. In fact, all the accused collectively stated that they were wearing the very same dress, straight from their arrest, till the date of the TIP to indicate that the TIP did not serve its purpose. There is no reason to disbelieve the truthfulness of the statement of the accused because they had raised this contention right from the beginning and have maintained it all along. In view thereof, there existed no useful purpose behind conducting the TIP. The TIP was a mere formality, and no value could be attached to it. As the only evidence for convicting the appellants is the evidence of the eyewitnesses in the TIP, and when the TIP is vitiated, the conviction cannot be upheld. [Para 44, 45][622-A-D]
2.2 Undue delay in conducting a TIP has a serious bearing on the credibility of the identification process. Though there is no fixed timeline within which the TIP must be conducted and the consequence of the delay would depend upon the facts and circumstances of the case, it is imperative to hold the TIP at the earliest. The possibility of the TIP witnesses seeing the accused is sufficient to cast doubt about their credibility. [Para 46][622-EF]
2.3 Accused Nos. 1-16 were arrested on 13.07.2000. Instead of filing an application for conducting a TIP at the earliest, the IO (PW-84) filed a remand application, pursuant to which the accused were remanded to police custody. There is strong evidence that the accused were shown to the witnesses during their police custody period. The fact that an application for conducting a TIP was filed on 23.07.2000, i.e., the very next day after the police custody period ended, leads to the inevitable conclusion that the accused were taken into police custody to facilitate their easy identification during the TIP. Otherwise, this Court sees no reason why an application for conducting a TIP was not filed immediately after the arrest of the accused. In such circumstances, the delay in holding the TIP coupled with other circumstances casts a serious doubt on the credibility of the TIP witnesses. [Para 48][623-F-G;]
2.4 Having considered the statement of the JMFC (PW-47) and the evidence of the IO (PW-84) together, the presence of the Investigating Officer at the time of the TIP cannot be ruled out. The Investigating Officer stated that he has not taken any steps to ensure that the accused and the witnesses do not see each other. It is rather surprising to note that Investigating Officer thinks that such a measure is not necessary. The first and second TIP report made by the JMFC (PW-47) is taken note of. The Magistrate recorded that the Accused had raised concerns over the manner in which the TIP was conducted. In view of the evidence available on record, this Court is of the opinion that the conduct of the TIP, coupled with the hovering presence of the police during the conduct of the TIP vitiated the entire process. The Trial court as well as the High Court has committed a serious error in relying on the evidence of the TIP witnesses for convicting and sentencing the appellants. This Court is of the opinion that the conviction and sentencing are not sustainable. In view of these lapses on the part of the prosecution, it is not necessary for this Court to consider various other grounds raised by the appellants. [Paras 53 and 56][625-B-C; 626-C-D]
2.5 Having considered the matter in detail and having noted the various discrepancies in the manner in which both the TIPs were conducted, the prosecution has not established its case beyond reasonable doubt. Apart from the TIPs, there is no other evidence put forth by the prosecution to prove the guilt of the accused for offences under Sections 143, 147, 148 IPC and s. 3(2)(e) of PDPP Act r/w 149 IPC. The conviction and sentence of the appellants by the High Court and trial court u/ss. 143, 147,
148 IPC and s. 3(2)(e) of 1984 Act rw s. 149 IPC is set aside. [Para 57, 58][626-E-H]
Chunthuram v. State of Chhattisgarh (2020) 10 SCC
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As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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