12 July 2022 12:00 PM GMT
Clarifying an important aspect regarding Test Identification Parade (TIP), the Supreme Court on Monday held that it would not be prudent to convict an accused solely on the basis of their identification for the first time in court. A Division Bench comprising of Justices MR Shah and Aniruddha Bose held that, "Even applying the law laid down by this Court in the aforesaid decisions...
Clarifying an important aspect regarding Test Identification Parade (TIP), the Supreme Court on Monday held that it would not be prudent to convict an accused solely on the basis of their identification for the first time in court.
A Division Bench comprising of Justices MR Shah and Aniruddha Bose held that,
"Even applying the law laid down by this Court in the aforesaid decisions and looking to the facts narrated hereinabove, we are of the opinion that it would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court."
The court was hearing two appeal petitions moved by accused persons, Amrik Singh and Subhash Chander, who were convicted for offences punishable under Section 302 (Punishment for murder) read with Section 34 (Acts done by several persons in furtherance of common intention) and Section 392 (Punishment for robbery) of the Indian Penal Code, 1892.
The deceased Gian Chand, his father Munshi Ram along with the complainant, Des Raj (PW1) were proceeding from the office of Subregistrar District Fazilka. While returning to their village, three people tried stopping them. When the complainant did not stop the vehicle, co-accused Subhash Chander temporarily blinded him by throwing red chilli powder. Afterwhich, the accused tried to snatch the complainant's scooter. Amid the scuffle, the present appellant, Amrik Singh shot the deceased in the chest.
The complainant saw that the assailants had taken away the scooter and Gian Chand was lying unconscious with blood oozing out of his chest.
It is the prosecution's case that the motive of the appellants was to steal an amount of Rs.5 lakhs, which was in the dicky of the scooter.
After the cross examination of the prosecution witnesses , examination and further examination of the accused under Section 313 of the Code of criminal procedure, the trial court was inclined to convict them for the said offences.
Mainly relying upon the deposition of PW1 – original complainant and on the recovery of Rs.1 lakh from the place suggested by the accused, the Trial Court held the accused guilty for the offences punishable under Sections 302/34 and 392 IPC and sentenced them to undergo life imprisonment for having committed the murder of deceased Gian Chand.
The accused then approached the Punjab and Haryana High Court, which in turn, dismissed their appeals and confirmed the trial court's sentence. This prompted them to move the Supreme Court.
Arguments of parties
Roohina Dua, counsel appearing for the accused, submitted that both the Trial Court as well as the High Court had committed serious errors in convicting the accused persons. It was brought to light that they were convicted on the deposition of PW1 – original complainant – informant and the identification of the accused in the Court by PW1.
However, prior to the identification in court, there was no Test Identification Parade conducted to identify the accused. Such non conduct of the TIP is fatal to the case of the prosecution more particularly when PW1 is the original complainant who did not disclose any description of the accused before the investigation officer and even in the FIR.
In the light of the said facts, the accused cannot be convicted on the basis of the identification of the accused by PW1 in the Court for the first time and on the basis of the recovery of Rs.1 lakh each from the accused. Adding on, it was contended that in the absence of any cogent evidence on the identification of the accused and failure on the part of the prosecution to prove the identification of the accused beyond doubt, to convict them solely on the basis of the identification of the accused by PW1 for the first time in the Court is not warranted.
Moreover, the factum of Rs.5 lakhs being carried in the scooter by the complainant and the deceased has not been established and proved. Therefore, the recovery of Rs.1 lakh each from the accused becomes insignificant, Dua contended. Owing to these submissions, the court was urged to set aside the sentence.
Countering these submissions, the State pointed out that in the present case when PW1 had identified the accused in the Courtroom and that not conducting the TIP would not vitiate the trial and the prosecution's case.
Solidifying the argument, Advocate Richa Kapoor appearing for the State argued that the TIP is conducted only for the Investigating Officer to make sure that the investigation is going in the right direction, against the real culprit.
The absence of TIP may not ipsofacto be sufficient to discard the testimony of a witness who has identified the accused in the Court. In a given case, if the Court comes to the conclusion that the testimony of the prosecution witness, especially of an eyewitness is of sterling quality, and trustworthy, the same can be accepted with regard to identification of the accused in court and conviction can be sustained without any doubt upon the said testimony.
What the Court held
The primarily noted that the appellants have been convicted mainly on two grounds:
"Thus, the conviction of the accused in the present case is solely on the identification of the accused by PW1 in the court room. Prior thereto no TIP has been conducted by the Investigating Agency", the court noted.
To connect the accused for having conducted the evidence of loot of Rs.5 lakhs, primarily the prosecution was required to establish and prove the person from whom the amount was looted. Thereafter the prosecution is required to establish and prove that the amount which is recovered from the accused is the very amount which the complainant/the person from whom the amount is looted, the court highlighted, while adding that the same was not done in the present case.
Pertinently, what is to be noted is that when no TIP has been conducted, does the FIR or the version of the eyewitnesses disclose the identity of the accused, the court explained.
"It may be true that as per the settled position of law the FIR cannot be encyclopedia. However, at the same time when no TIP was conducted the first version of the complainant reflected in the FIR would play an important role. It is required to be considered whether in the FIR and/or in the first version the eyewitness either disclosed the identity and/or description of the accused on the basis of which he can recollect at the time of deposition and identify the accused for the first time in the Courtroom?"
After perusing the contents of the FIR in the instant case, the court pointed out that all that was mentioned is that the accused were three young persons out of which two were clean shaven and the other was a Sikh, aged between 30 and 32 years. No further description had been given by the complainant – PW1.
"Nothing has been mentioned in his first statement that he had seen the accused earlier and that he will be able to identify the accused. The aforesaid was not disclosed in the FIR. Even in the cross examination as admitted by PW1 he did not disclose any description of the accused."
The Bench also highlighted that there were certain contradictions between the first statement of the complainant (recorded in the form of FIR) and in the deposition before the Court.
Therefore, based on the above facts, the court was of the view that conducting TIP was necessary. Since, it was not conducted, it is not safe to convict the accused solely on their identification by PW1 for the first time in the Court.
Referring to the Malkhansingh and Ors. Vs. State of Madhya Pradesh case, the court said that the weightage that is to be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine.
Based on these observations, the court set aside the judgment passed by the Trial Court and the High Court convicting the appellants.
Amrik Singh vs State of Punjab | 2022 LiveLaw (SC) 582 | CrA 992-993 OF 2012 | 11 July 2022
Coram: Justices MR Shah and BV Nagarathna
Counsel: Adv Roohina Dua for appellant, Adv Richa Kapoor for State
Criminal Trial - Test Identification Parade - When no TIP was conducted the first version of the complainant reflected in the FIR would play an important role - It is required to be considered whether in the FIR and/or in the first version the eye witness either disclosed the identity and/or description of the accused on the basis of which he can recollect at the time of deposition and identify the accused for the first time in the Court Room - It would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court. (Para 6.2- 6.7)
Click here to Read/Download Judgment