The Supreme Court has said that test identification parade is a part of police investigation and is not a substantive piece of evidence but not conducting it in a given case can prove fatal to the prosecution, as it acquitted a man in a murder case, holding that his identity remained doubtful.
A bench of Justices Sudhanshu Dhulia and Prasanna B Varale allowed an appeal filed by P Sasikumar in a case related to the killing of a 14-year-old at her house.
There was no eye witness to the offence and the case was largely based on circumstantial evidence.
The prosecution alleged when the elder sister of the deceased was studying in engineering college, accused no 1 (Yugadhithan), studying in the same college, was totally infatuated with her and used to stalk her. After college, when she got employed at Chennai, he also reached her workplace. He threatened her that if she did not reciprocate his feelings, he would kill her entire family.
On the date of the incident on November 13, 2014, the victim, a student of class VIII, was alone at her home in Salem in Tamil Nadu. As she did not answer the telephone call of his father, he rushed back home from his office. While climbing up the stairs, he saw a 25-year-old man coming out of his house with a black helmet. As soon as he saw the complainant father, he wore the helmet and ran away. The girl, profusely bleeding, was taken to a hospital where she was declared dead.
Two days after the incident, the police arrested the two accused.
Two witnesses including the complainant said they saw the appellant, accused no 2, while he was wearing a green coloured monkey cap. The court noted that TIP was necessary as two witnesses claimed to have identified him even though he was wearing a monkey cap.
The bench found the prosecution has given no explanation whatsoever as to why TIP was not conducted in this case before a Magistrate as it ought to have been done.
In fact, the High Court has recorded this flaw in the investigation at more than one place in its judgment, the court noted.
“It is well settled that TIP is only a part of police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in court during trial,” the bench said.
In the case, the bench said the High Court had gone completely wrong in believing the testimony of an independent witness as to the identification of the appellant.
“In cases where accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness,” the bench said, citing Kunjumon Vs State of Kerala (2012).
After considering the peculiar facts of the present case, the bench said it was of the opinion that not conducting a TIP in this case was a fatal flaw in the police investigation and in the absence of TIP in the present case the dock identification of the present appellant will always remain doubtful. “Doubt always belongs to the accused. The prosecution has not been able to prove the identity of the present appellant i.e. A-2 beyond a reasonable doubt,” the bench said.
The court also pointed out that the relevance of a TIP, is well-settled. It depends on the facts of the case. In a given case, TIP may not be necessary. The non-conduct of a TIP may not prejudice the case of the prosecution or affect the identification of the accused. It would all depend upon the facts of the case.
“It is the task of the investigation team to see the relevance of a TIP in a given case. Not conducting TIP may prove fatal for the prosecution as we are afraid it will be in the present case,” the bench said.
The court thus held that the identity of the present appellant was in doubt. The appellant could not have been convicted based on a piece of very doubtful evidence as to his identity.
The court ordered forthwith the release of the appellant who had been in jail for eight years.
The bench, however, made it clear that this decision of acquittal was based on the evidence, or lack thereof, which the prosecution had against accused no 2 i.e. the present appellant, which will have no bearing on the case of accused no 1, who had not challenged his conviction and sentence before the High Court.
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