IMPORTANT POINT
Failure to hold a test identification parade would not make evidence of identification inadmissible in Court but weight to be attached would be a matter of facts.

Headnote:(i) Indian Penal Code, 1860-Sections 330, 302 and 201-Custodial death-Deceased was brought to police station in relation to a scooter theft case-To extort confession, deceased was badly beaten as a result he died and his body was disposed of in Nalabed-Conviction of five appellants by trial Court u/s 304 Part II, 330 and 201 IPC and conviction maintained by High Court in appeal-PW 14 had seen accused police officials taking away deceased from his house in the night, PW 12 claimed to have witnessed beating given by accused to deceased-No test identification parade was held-Failure to hold T.I.P. would not make inadmissible the evidence of identification in Court but weight to be attached would be a matter of fact-T.I.P. would have been of no consequence qua PW 14 who admitted he had not seen accused appellants-Evidence of PW 12 though had seen appellants when he too was assaulted by them in police station but his evidence was full of unexplained contradictions-Evidence was not sufficient to fasten guilt on accused-False stand taken by one of the accused during trial-Effect-Accusation would be considered established-His conviction u/s 304 Part II IPC and sentence of 7 years imprisonment could not be faulted with. (Paras 11, 15, 26, 27 to 29)
       (ii) Constitution of India-Articles 20(3) and 21-Criminal Law-Custodial torture and custodial death-Courts to deal such cases in a realistic manner and with sensitivity-Law Commission recommendation providing for presumption unless police officer proved to contrary-Government to give serious thought to the recommendation and bring about appropriate changes in law. (Paras 4 and 8)
       (iii) Evidence Act, 1872-Section 9-Identification Parade-Test identification do not constitute substantive evidence-Test is done to check upon veracity of witness where accused was not known to witness-It is desirable that T.I.P. should be conducted as soon after arrest of accused-This rule of prudence is subject to exception-Failure to hold T.I.P. would not make evidence of identification inadmissible in Court though weight to be attached to such identification would be a matter of fact.
       Held : The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. (Para 16)
       The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (Para 17)

JUDGMENT

Arijit Pasayat, J.-"If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", said Abraham Lincolin. This Court in Raghubir Singh v. State of Haryana (AIR 1980 SC 1087) and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Another (2003(7) SCC 749), took note of these immortal observations while deprecating custodial torture by the police.

2. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It had been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.

3. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens rights.

4. Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the Constitution ) and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the Code ) deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandies s observation which have become classic are in following immortal words:

"Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself". (in (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643 at 659).

5. The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The

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2004 Supreme(SC) 1416

IMPORTANT POINTFailure to hold a test identification parade would not make evidence of identification inadmissible in Court but weight to be attached would be a matter of facts.

Cases Referred (24)

IMPORTANT POINT
Failure to hold a test identification parade would not make evidence of identification inadmissible in Court but weight to be attached would be a matter of facts.