Test Identification Parade – Identification in court at the time of trail – effects in other than rape cases – Apex court held that It   is   argued   that identification  made  in  court  is  sufficient.  Reliance  is   placed   on Malkhansingh where this Court has held  that  substantive  evidence  is  the evidence  of  identification  in  court.  The  test  identification  parade provides corroboration to the identification of  the  witness  in  court  if required and what weight must be attached to the evidence of  identification in court, is a matter for the court of fact to examine.   There  can  be  no dispute about this proposition.  But in Malkhansingh this Court was  dealing with a  case  of  gang  rape.   This  Court  noted  that  courts  below  had concurrently found the evidence of prosecutrix to  be  implicitly  reliable. This Court noted  that  the  appellants  raped  the  prosecutrix  one  after another.  She was threatened and intimidated.   All  this  must  have  taken time.  This Court noted that  it  was  not  a  case  where  the  identifying witness had only a fleeting glimpse of the appellants.  The prosecutrix  had a reason to remember the faces of the appellants as  they  had  committed  a heinous offence and put her to shame.  She had abundant opportunity to  note the appellants features and due to the traumatic  experience  the  faces  of

the appellants must have been imprinted in  her  memory  and  there  was  no chance of her making a mistake about their identity.   The  observations  of this Court will have to be read against the backdrop of these  facts.  Facts of this case are different.  The incident does not seem to have  lasted  for a long time.  The eye-witnesses were sitting outside the Satsang  hall.   It

cannot be said that they had sufficient opportunity to see the faces of  the accused who were on the run.  In such a case failure to hold  identification parade is a serious drawback in the prosecution case. =

Another significant aspect of this case is absence  of  identification

parade. 

Persons who were named in the FIR and others, who had witnessed  the

incident at different stages did  not  know  all  the  assailants  but  they

claimed that they  could  identify  the  assailants.   

But  the  prosecution

failed  to  hold  test   identification   parade.    

It   is   argued   that

identification  made  in  court  is  sufficient.  Reliance  is   placed   on

Malkhansingh where this Court has held  that  substantive  evidence  is  the

evidence  of  identification  in  court.   

The  test  identification  parade

provides corroboration to the identification of  the  witness  in  court  if

required and what weight must be attached to the evidence of  identification

in court, is a matter for the court of fact to examine.   There  can  be  no

dispute about this proposition.  But in Malkhansingh this Court was  dealing

with a  case  of  gang  rape.   This  Court  noted  that  courts  below  had

concurrently found the evidence of prosecutrix to  be  implicitly  reliable.

This Court noted  that  the  appellants  raped  the  prosecutrix  one  after

another.  She was threatened and intimidated.   All  this  must  have  taken

time.  This Court noted that  it  was  not  a  case  where  the  identifying

witness had only a fleeting glimpse of the appellants.  The prosecutrix  had

a reason to remember the faces of the appellants as  they  had  committed  a

heinous offence and put her to shame.  She had abundant opportunity to  note

the appellants features and due to the traumatic  experience  the  faces  of

the appellants must have been imprinted in  her  memory  and  there  was  no

chance of her making a mistake about their identity.   The  observations  of

this Court will have to be read against the backdrop of these  facts.  Facts

of this case are different.  The incident does not seem to have  lasted  for

a long time.  The eye-witnesses were sitting outside the Satsang  hall.   It

cannot be said that they had sufficient opportunity to see the faces of  the

accused who were on the run.  In such a case failure to hold  identification

parade is a serious drawback in the prosecution case.

23.   Having applied our mind to the evidence  on  record,  we  are  of  the

opinion that the prosecution has failed to prove its case beyond  reasonable

doubt.  We are mindful of the fact that this case involves two  murders  and

use of firearms. Crime is grave. But the  High  Court  has  scrutinized  the

evidence correctly in light of settled legal principles.   The  evidence  on

record creates some suspicion, but does not prove the offence to  the  hilt.

The accused are, therefore, entitled to benefit of doubt.   Besides,  as  we

have already noted the instant appeals challenge  the  order  of  acquittal.

We do not find the High Court’s judgment to be perverse.   The  High  Court,

in our opinion, was justified in interfering  with  the  conviction  of  the

accused.  The view taken by the High Court is  legally  unassailable  and  a

factually possible view. We, therefore, affirm it.

24.   In the result, the appeals are dismissed.

 

 

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41741- for full text – LAW FOR ALL