SC: Guilt can’t be based purely on refusal to undergo identification parade

The Hon’ble Supreme Court, on 3rd November 2020, in the matter of Rajesh @ Sarkari & Anr. v. State of Haryana pronounced that 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. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.

The Hon’ble Supreme Court observed that:

There is no inflexible rule which requires the prosecution to examine a ballistics examiner in every case where a murder is alleged to have been caused with the use of a fire arm. 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.(Para 34)

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 eye- witness to the crime (Para 36(i))

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 (Para 36(ii))

Identification parades are governed in that context by the provision of Section 162 of the CrPC (Para 36(iii))

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 (Para 36(iv))

The identification of the accused in court constitutes substantive evidence (Para 36(v))

Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act (Para 36(vi))

A TIP may lend corroboration to the identification of the witness in court, if so required (Para 36(vii))

As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ 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 (Para 36(viii))

Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible (Para 36(ix))

The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case (Para 36(x))

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 (Para 36(xi))

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. (Para 36(xii))

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. (Para 39)

Copy of judgement:Judgement_03-Nov-2020

-Adv. Tushar Kaushik

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