Evidence Of TIP Inadmissible If Suspects Were Shown To Witnesses Before Identification : Supreme Court

The Supreme Court observed that evidence of Test Identification Parade (TIP) is inadmissible If the suspects were shown to the witnesses before the identification.

Even a TIP conducted in the presence of a police officer is inadmissible, the bench of Justices BR Gavai and PS Narasimha observed.

In this case, the High Court of Kerala upheld the conviction of the accused under Sections 143, 147, 148 of the Indian Penal Code, and Sections 3(2)(e) of Prevention of Damages to Public Property Act, 1984, read with Section 149 of the IPC. The conviction was mostly based on the evidence of TIP. The accused were allegedly involved in a violent protest against the Kerala Government decision to delink predegree courses from colleges and start plus ­two courses at the school level. The protesters had become violent and caused damage to as many as 81 buses belonging to the Kerala State Road Transport Corporation leading to the death of a bus conductor with KSRTC.

In the appeal before the Apex Court assailing concurrent conviction, the appellants questioned the (i) the credibility of the eyewitnesses who participated in the TIP to identify the accused; (ii) delay in conducting the TIP; and (iii) legality of the TIP and the presence of the IO during the conduct of TIP.

In its judgment allowing the appeal, the bench first discussed the law regarding Test Identification Parade (TIP):

Threefold object of conducting TIP

The object of conducting a TIP is threefold. First, to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Third, to test the witnesses' memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime. (Para 25)

Not a substantive piece of evidence

TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. The evidence of a TIP is admissible under Section 9 of the Indian Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained. (Para 26)

TIP to be held without avoidable and unreasonable delay after the arrest of the accused.

It is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that a TIP is held without avoidable and unreasonable delay after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses before 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 an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. But reasons should be given as to why there was a delay. (Para 27)

TIP after accused is shown to witnesses

In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form, i.e., physically, through photographs or via media (newspapers, television etc…), the evidence of the TIP is not admissible as a valid piece of evidence ..

If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra ). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 .

Healthy ratio between suspects and non­suspects during a TIP

It is significant to maintain a healthy ratio between suspects and non­suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine ­qua ­non that the non­suspects should be of the same age­group and should also have similar physical features (size, weight, color, beard, scars, marks, bodily injuries etc.) to that of the suspects. The concerned officer overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality.

Prosecution to prove that a TIP was conducted in a fair manner 

It is for the prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before conducting the TIP. Thus, the burden is not on the defence. Instead, it is on the prosecution.

Reappreciating the evidence on record, the bench observed that in this case the witnesses had the opportunity of seeing the accused before the conduct of the TIP. As the only evidence for convicting the appellants is the evidence of the eyewitnesses in the TIP, and when the TIP is vitiated, the conviction cannot be upheld, the court said. While allowing the appeal, the court said :

We are of the opinion that the conduct of the TIP, coupled with the hovering presence of the police during the conduct of the TIP vitiated the entire process.

Case details

Gireesan Nair vs State of Kerala | 2022 LiveLaw (SC) 955 | CrA 1864­-1865 OF 2010 | 11 Nov 2022 | Justices BR Gavai and PS Narasimha

For Appellant(s) Ms. Sonia Mathur, Sr. Adv. Mr. Vinay Navare, Sr. Adv. Ms. Bina Madhavan, Adv. Mr. S. Udaya Kumar Sagar, Adv. Mr. Lakshay Saini, Adv. Mr. Katubadi Ismail, Adv. Mr. Nachiketa Joshi, Adv. Ms. Ankita Chaudhary, Adv. Ms. Archana Pathak, Adv. Mr. Santosh Kumar, Adv. Mr. Praneet Pranav, Adv. Mr. Suyash Pande, Adv. Mr. Kiron S. Bhattathru, Adv. Mr. Amit Sharma, Adv. Mr. Simarjeet Singh Saluja, Adv. Ms. Himadri Haksar, Adv. M/S. Lawyer S Knit & Co, AOR

For Respondent(s) Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Mrs. Ashly Harshad, Adv.

Headnotes

Criminal Trial - Test Identification Parade (TIP) - If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless. (Para 29)

Code of Criminal Procedure, 1973 ; Section 162 -  Even a TIP conducted in the presence of a police officer is inadmissible. (Para 29, 44)

Indian Evidence Act, 1872; Section 9 - The evidence of a TIP is admissible under Section 9 of the Indian Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained. (Para 26)

Criminal Investigation - Test Identification Parade - Threefold object of conducting TIP - Necessary to eliminate the possibility of the accused being shown to the witnesses before the test identification parade -TIP to be held without avoidable and unreasonable delay after the arrest of the accused - Healthy ratio between suspects and non­suspects during a TIP - TIP is not just an empty formality. (Para 25 - 31)

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