Circumstance Six: Test Identification Parade
38. The investigating authorities conducted a test identification parade - asking PW-5 to identify the Appellant- convict from a long line of habitual offenders. He did so thrice. This has been taken as another circumstance against the convict Appellant. Before proceeding to the merits of this circumstance, let us appreciate the law on this point.
38.1 No provision of law casts an obligation upon the investigating authorities to conduct a test identification parade. If it is conducted, the provision that governs is Section 162, Code of Criminal Procedure [See: Munshi Singh Gautam v. State of M.P. MANU/SC/0964/2004 : 2004:INSC:648 : (2005) 9 SCC 631; Malkhansingh v. State of M.P. MANU/SC/0445/2003 : 2003:INSC:308 : (2003) 5 SCC 746; Visveswaran v. State MANU/SC/0352/2003 : 2003:INSC:262 : (2003) 6 SCC 73; and Ashok Debbarma v. State of Tripura MANU/SC/0168/2014 : 2014:INSC:167 : (2014) 4 SCC 747.]
38.2 The onus to show that the T.I.P. has been conducted in accordance with law lies on the prosecution, and only after this burden stands prima facie discharged, does the question of considering objections in this regard arise. [See: Umesh Chandra v. State of Uttarakhand MANU/SC/1412/2021 : (2021) 17 SCC 616.]
38.3 It is not a substantive piece of evidence. Its only purpose is for the investigating authorities to analyse the correctness, or lack thereof, of the direction in which they are steering the investigation. [See: Hari Nath v. State of U.P. MANU/SC/0229/1987 : 1987:INSC:315 : (1988) 1 SCC 14; and Iqbal v. State of U.P. MANU/SC/0559/2015 : 2015:INSC:387 : (2015) 6 SCC 623]
38.4 If the prosecution does not establish, by examination of witnesses to the T.I.P., and the Magistrate entrusted therewith, it cannot be said that it was conducted per law. [See: Umesh Chandra (supra).]
38.5 There is no hard and fast Rule about delay in conducting T.I.P. being fatal to the case of the prosecution. In certain cases, relatively small delay has been considered fatal yet in others, a delay of as much as 40 days is not fatal. [See: Raja v. State MANU/SC/1717/2019 : 2019:INSC:1346 : (2020) 15 SCC 562.]
38.6 The prosecution must establish that prior to the test identification parade being conducted, the witness had no opportunity to see the Accused. In other words, the Accused must be kept 'baparda'. [See: Gireesan Nair v. State of Kerala MANU/SC/1486/2022 : 2022:INSC:1199 : (2023) 1 SCC 180; and Budhsen v. State of U.P. MANU/SC/0103/1970 : 1970:INSC:131 : (1970) 2 SCC 128.]
38.7 If the above has not been ensured, the evidence of the T.I.P. becomes inadmissible. It has also been held that if, prior to the T.I.P. the witness has the opportunity to see even the photograph of the Accused person, such process becomes inconsequential. [See: Maya Kaur Baldevsingh Sardar v. State of Maharashtra MANU/SC/7994/2007 : 2007:INSC:1014 : (2007) 12 SCC 654; C. Muniappan v. State of T.N. MANU/SC/0655/2010 : 2010:INSC:553 : (2010) 9 SCC 567; and Sk. Umar Ahmed Shaikh v. State of Maharashtra MANU/SC/1025/1998 : 1998:INSC:202 : (1998) 5 SCC 103.]
38.8 Dock identification by the informant, even in the absence of T.I.P., can be accepted, but generally, as a matter of prudence, a witness's identification of an Accused in Court is sought to be corroborated by the identification by the former of the latter in previously conducted identification proceedings [Rajesh v. State of Haryana MANU/SC/0818/2020 : 2020:INSC:628 : (2021) 1 SCC 118; and Mukesh v. State (NCT of Delhi) MANU/SC/0575/2017 : 2017:INSC:448 : (2017) 6 SCC 1.]
38.9 Considering the facts and circumstances of the case at hand, it is open for the Court to draw an adverse inference against the witness, should they put forth a refusal to participate in the identification proceedings. [See: Mohd. Anwar v. State (NCT of Delhi) MANU/SC/0602/2020 : 2020:INSC:496 : (2020) 7 SCC 391.]
39. It is plain as day that the above principles were not observed in the present case. We are constrained to record our astonishment as to how the Courts below considered the identification proceedings as a circumstance accruing against the Appellant-convict. It is undoubted that PW-50, in his testimony, gives sufficient detail as to the procedure followed in conducting the T.I.P., and on that count, no assault can be made thereon, however, as the preceding paragraph establishes, there are other equally crucial factors. It is a matter of record that PW-5 (the witness who participated in the T.I.P.), in his testimony, stated that about a week after he gave information to the concerned police about the incident of 14th May, 2011, he saw the Appellant- convict at the said police station. Most importantly, as has come on record, the police officials had informed him about the Appellant-convict committing the crime. As held by Budhsen (supra) as far back as the year 1970, by Suryamoorthy v. Govindaswamy MANU/SC/0591/1989 : (1989) 3 SCC 24 in 1989, Suresh Chandra Bahri v. State of Bihar MANU/SC/0500/1994 : 1994:INSC:246 : 1995 Supp. (1) SCC 80 in 1995, Mulla v. State of U.P MANU/SC/0091/2010 : 2010:INSC:89 : (2010) 3 SCC 508 in 2010, i.e., well before the judgment of the learned Trial Court was pronounced, that if the said witness had the opportunity to see the Accused, in any form, after the incident the subject matter of testimony, but prior to the identification proceedings, it would render the same to be ineffective. Then, in our view, the courts below committed an error of elephantine proportions in considering these proceedings as forming one of the chains of circumstances against the Appellant-convict.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1672 of 2019
Decided On: 15.07.2025
Kattavellai Vs. State of Tamilnadu
Hon'ble Judges/Coram:
Vikram Nath, Sanjay Karol and Sandeep Mehta, JJ.
Author: Sanjay Karol, J.
Citation: 2025 INSC 845, MANU/SC/0917/2025.
Read full judgment here: Click here.
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