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Synopsis

The Supreme Court on February 14, 2025, said that if a witness who identified a person or an article in a Test Identification Parade (TIP) is not examined during trial, the report—potentially useful for corroboration or contradiction—loses its evidentiary value for identification purposes.

The bench of Justices P S Narasimha and Manoj Misra said, the rationale behind this legal principle is that unless the witness enters the witness box and submits himself for cross examination, how can it be ascertained as to on what basis he identified the person or the article.

The court reasoned that because it is quite possible that before the TIP is conducted, the accused may be shown to the witness or the witness may be tutored to identify the accused.

"Be that as it may, once the person who identifies the accused during the TIP is not produced as a witness during trial, the TIP is of no use to sustain an identification by some other witness," the bench said.

The court acquitted appellant Vinod alias Nasmulla, who, along with others, was accused of committing dacoity along with others and looted 35 passengers by brandishing a gun at temple of the driver in a bus going to Raipur in Chhattisgarh on the night of September 29, 1993.

The bench noted though the TIP was carried out with the aid of driver, Khalasi (i.e., the cleaner) and conductor of the bus, none of them was examined as a witness during trial.

"A test identification parade under Section 9 of the Evidence Act, 1872 is not substantive evidence in a criminal prosecution but is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is, firstly, to ensure that the investigating agency is proceeding in the right direction where the accused is unknown and, secondly, to serve as a corroborative piece of evidence when the witness identifies the accused during trial," the bench said.

The court pointed out that the evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identity.

In the instant case, the court noted though it was proved by the Naib Tehsildar who executed the TIP, that the TIP for identifying the appellant was conducted and the he was identified by two out of three witnesses, those three witnesses who participated in the TIP of the appellant were not examined during trial.

Thus, the TIP report, which could have been used to either contradict or corroborate those witnesses, is of no evidentiary value. Hence, the only substantive evidence on record of the case in respect of identification of the appellant is the dock identification by another witness, a police personnel travelling in the bus, the bench said.

During cross-examination, on being questioned about his movement papers, he could not provide a satisfactory explanation for his movement in that bus, the court further noted.

The bench pointed out that this witness' statement was recorded on the same day the FIR was registered. The appellant was also arrested that very night within few hours of the incident. Yet, this witness was not used for identifying the accused during the TIP, which seriously dents his credibility.

"Besides that, when you withhold the best evidence such as that of the driver, conductor and cleaner of the Bus, who all participated in the TIP, without giving good reason as to why they were not produced or summoned, the dock identification by a solitary witness, that too a police personnel, fails to inspire our confidence to sustain conviction of the appellant for the offence punishable under Section 395 read with Section 397 of the IPC, particularly, in absence of corroborative evidence of recovery of any looted article either from, or at the instance of, the appellant," the bench said.

The court also seriously doubted the arrest of the appellant by a police constable when he went to answer nature's call at 3 am on September 29, 1993.

This witness claimed to have seen the appellant hiding in the bushes near a public pond, probably to evade arrest as the police had been on lookout for dacoits. He claimed the appellant tried to escape by threatening to use his country-made pistol, but he managed to overpower and arrest the appellant; and later he, along with the piston,l was handed over to the police station in charge.

"Ordinarily, if a person is carrying a loaded weapon, he would use the same to evade arrest unless the person is completely outnumbered. Here, the appellant is stated to have been arrested by the prosecution witness who was single and about to attend nature’s call. Moreover, there is no injury on either side to suggest that resistance was offered at the time of arrest. Such a prosecution story is too convenient to be acceptable as true," the bench said.

The bench felt the court should have been circumspect so as to look for corroborative pieces of evidence.

"This we say so, because it is not uncommon for the police to be under pressure to quickly resolve a case having implications on public order and therefore, look for soft targets," the bench said.

In the case, the bench mentioned there was neither recovery of any looted article from the appellant or at his instance, nor the country-made pistol was linked to any empty cartridge recovered from the bus or the scene of crime. There is also no injury report to substantiate that the appellant offered resistance before he was apprehended, court pointed out.

"In absence of any such corroborative evidence, it would be too naive on our part to accept the prosecution story regarding the manner in which the appellant is stated to have been arrested," the bench said.

The court also noted the seizure memo was prepared after about nine hours of the appellant's alleged arrest.

"Such a long delay in producing the seized articles at the police station for preparing seizure memo, in absence of cogent explanation, dents the credibility of prosecution story regarding the arrest of the appellant at about 3 a.m. on 29.09.1993," the bench said.

Court thus held the prosecution had failed to prove the guilt beyond reasonable doubt. It granted the appellant the benefit of doubt, by allowing his appeal. In the case, eight armed men were alleged to be involved in the incident but only two accused were arrested and put to trial in a sessions court in Sarguja, Ambikapur. Of the two, one accused was acquitted by the trial court.

Case Title: Vinod @ Nasmulla Vs The State of Chhattisgarh