Test Identification Parade would lose evidentiary value if witness not produced during trial: Supreme Court

New Delhi: The Supreme Court on Friday said a test identification parade report (TIP) would lose its evidentiary value, if the witness who identified the accused, is not produced during the trial.

Acquitting an accused in a 1993 case related to committing dacoity in a moving bus, a bench of Justices P S Narasimha and Manoj Misra said, though the test identification parade was carried out in the case with the aid of driver, cleaner and conductor of the bus, none of them were examined as a witness during trial.

"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 allowed the appeal filed by Vinod alias Nasmulla and set aside the High Court judgment of 2018 and trial court's decision of 1999, holding him guilty. The bench said, the court, in such cases, 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.

Out of eight alleged to be in involved in the incident near Sarguja, in Ambikapur in Raipur-bound bus, the court noted only two accused were put on trial and one was already stood acquitted by the sessions judge.

In its judgment, the court emphasised the 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 court pointed out.

The court further said the rationale behind the 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.

"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," the bench said.

In the case, the court rejected dock identification of the accused by a police personnel, who was alleged to be travelling in the bus.

"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," the bench said.

The court found absolute absence of corroborative evidence of recovery of any looted article either from, or at the instance of, the appellant.

The bench also doubted the veracity of the prosecution version about arrest of the appellant at 3 am with a loaded countrymade pistol within hours of the incident from bushes by a policeman who went to answer the nature's call, saying "such a prosecution story is too convenient to be acceptable as true".