Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 1190

SUPREME COURT OF INDIA
NAVIN SINHA, R. SUBHASH REDDY, JJ.
Umesh Chandra & Ors. - Appellants
Versus
State of Uttarakhand - Respondent
Criminal Appeal No. 801 of 2021 (Arising out of S.L.P.(Crl.) No. 4399 of 2019)
With
Babbi Sharma @ L.N. Sharma - Appellant
Versus
State of Uttarakhand - Respondent
Criminal Appeal No. 802 of 2021 (Arising out of S.L.P.(Crl.) No. 6145 of 2019)
Decided On : 11-08-2021

Advocates appeared:
For the Petitioner: Ms. Vibha Datta Makhija, Sr. Adv., Mr. Bhagwant Singh, Adv., Mr. Mansimran Singh, Adv., Ms. Vishakha Ahuja, Adv., Mr. Praveen Gaur, Adv., Mr. Karan Mamgain, Adv., Mr. Kashish Aneja, Adv., Ms. Shaiyra Khanna, Adv., Mr. Prithvi Pal, AOR, Mr. Deepanshu Matya, Adv., Ms. Tusharika Sharma, Adv., Ms. Manju Jetley, AOR.
For the Respondent: Dr. Rajiv Nanda, AOR.

IMPORTANT POINT
The validity of the test identification parade and the requirement for the prosecution to establish that the TIP was held in accordance with the law.

Headnote:
Identification - Criminal Law - IPC Sections 395, 397 - Evidence Act Section 9 - TIP - [IPC Sections 395, 397, Evidence Act Section 9] - The court discussed the validity of the test identification parade (TIP) and emphasized that TIP is not substantive evidence but only corroborative. It highlighted that the prosecution must establish that the TIP was held in accordance with the law and that repeated TIPs nullify the identification. The court found the TIP in this case to be non est in the law and criticized the casual manner of investigation by the police.
Fact of the Case:
A dacoity took place in the house of the informant Hukumchand. The appellants were apprehended and convicted based on the TIP. The primary witnesses were the wife and son of Hukumchand.
Finding of the Court:
The court found the TIP to be invalid and the identification by a minor boy in the TIP to be unreliable. It criticized the casual manner of investigation by the police and the failure to produce the original seizure memo.
Issues: Validity of the test identification parade, reliability of the identification by a minor in the TIP, failure to produce original seizure memo, casual manner of police investigation.
Ratio Decidendi: The court emphasized that TIP is not substantive evidence but only corroborative and must be held in accordance with the law. It highlighted that the prosecution's failure to establish a valid TIP and the unreliability of the identification by a minor in the TIP led to the acquittal of the appellants.
Final Decision: The appeals were allowed, and the appellants were directed to be released forthwith unless wanted in any other case.

Judgement Key Points

Key Points: - The validity of test identification parade (TIP) must be proven to have been held in accordance with law; TIP is not substantive evidence but corroborative (!) (!) . - Prosecution failed to establish that the TIP was conducted properly; Magistrate conducted TIP but not examined, and no explanation for absence of examination; TIP details and proceedings not properly proven (!) . - Repeated TIPs and identification by a minor (PW-2, about 13 years old) undermine reliability; TIP held in a manner that is non est in law; acquittals under Section 412 IPC and Arms Act affirmed due to invalid TIP (!) (!) (!) . - Original seizure memo not produced; casual police investigation and lack of corroborating substantive evidence led to acquittals; TIP cannot sole basis for conviction (!) (!) . - Court held that TIP is not substantive evidence and upheld that the appellants be released; appeals allowed (!) . - The case notes that identification by PW-2 in later rounds does not salvage integrity of TIP; reliance on TIP with minor identification is unreliable (!) (!) . - There is a finding of "non est in the law" TIP and condemnation of the police investigation’s casual nature (!) (!) . - The decision references similar concern as in Iqbal and Another v. State of Uttar Pradesh (2015) 6 SCC 623 (!) . - Final outcome: appeals allowed; appellants released forthwith unless needed in other cases (!) . - The FIR was registered against unknown persons; primary witnesses were PW-1 (mother) and PW-2 (son) (!) .

Question 1?

Question 2?

Question 3?

ORDER :

1. Leave granted.

2. The four appellants stand convicted under Sections 395 and 397, IPC having been sentenced to seven years with a default stipulation.

3. A dacoity took place on 28.08.1992 at about 7.30 p.m. in the house of the informant Hukumchand. Seven accused intruded and looted cash and jewelry while the family was watching television along with a neighbour Rajendra, and fled away. The FIR was lodged by Hukumchand at 8.30 p.m. At about 10.30 p.m. in the night, the appellants are stated to have been apprehended at the police check post travelling in a Maruti van. They are stated to have confessed having committed dacoity at the house of Hukumchand and to have looted cash and jewelry which were recovered from them along with weapons on their person. During the pendency of the trial the informant Hukumchand and Rajendra have been deceased. The primary witnesses are PW-1, the wife of Hukumchand and PW-2 the son of Hukumchand who was about 13 years of age at the time of occurrence.

4. The appellants are stated to have been identified in a test identification parade (TIP) and on the basis of which their conviction has followed. The recovery not having been proved as the original seizure memo was never produced, they have been acquitted of the charge under Section 412, IPC. The appellants have also been acquitted of the charge under the Arms Act. The acquittals have attained finality as it was not questioned by any.

5. Ms. Vibha Datta Makhija, learned Senior Counsel appearing for one of the appellants, submitted that conviction based on the TIP is unsustainable as no TIP has been proved to have been held in accordance with law. Repeated TIPs have been held only after which the appellants are stated to have been identified. PW-1 did not identify any of the appellants. PW-2 is stated to have identified the appellants in the third or fourth round. Repeated TIP parades nullify the whole identification. The appellants have been acquitted of the charge under Section 412 IPC. The TIP being only corroborative evidence, in absence of any substantive evidence connecting them to the crime, the conviction is not sustainable. One other accused has been acquitted by the Trial Court itself for lack of identification. Two others who were tried separately have also been acquitted.

6. Mr. D.S. Matya, learned counsel for other appellants, submitted that in the trial of two acquitted accused PW-2 turned hostile denying identification of the recovered items or the accused in the TIP, stating that his signature was obtained on it by the police. It was also contended that some of the accused were shown to the witnesses even before the TIP thus vitiating the same.

7. Dr. Rajiv Nanda, learned counsel for the State relied on the TIP to sustain the conviction. PW-2 identified the appellants in the TIP as also in the dock. Acknowledging that acquittal under Section 412 IPC has not been questioned, it was submitted that it would not be very relevant once the identification of the appellants stood established in the TIP which was held properly after covering the face of the accused relying on the evidence of the police officer PW-3 as also certain observations in the Trial Court judgment.

8. We have considered the submissions on behalf of the parties. The FIR was registered against unknown persons. The case of the prosecution solely rests on identification in the TIP. The acquittal of the appellants under Section 412, IPC and Arms Act has attained finality. No doubt the test identification parade was conducted within about a month of the occurrence. It has also to be kept in mind that PW-2 was a minor aged about 13 years at the time of occurrence.

9. A test identification parade under Section 9 of the Evidence Act 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 only to ensure that the investigating agency prima facie was procee

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