Finding Of Guilt Cannot Be Based Purely On Refusal To Undergo Identification Parade: SC Acquits Murder Accused [Read Judgment]

The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade, the Supreme Court has observed while acquitting murder accused who already underwent over 12 years of imprisonment.

Rajesh alias Sarkari and Ajay Hooda were convicted by the Trial Court under Section 302 read with Section 34 of the India Penal Code  and were sentenced to imprisonment for life. They were accused of murdering a law student by firing shots at him.

Reappreciating the evidence on record, the Apex Court bench headed by Justice DY Chandrachud observed that the ballistics evidence connecting the empty cartridges and the bullets recovered from the body of the deceased with an alleged weapon of offence is contradictory and suffers from serious infirmities. Regarding the eye witness testimony, the bench, also comprising Justices Indu Malhotra and Indira Banerjee, said that there is a grave element of doubt as to whether they were witnesses at the scene of occurrence. 

The Court observed that the failure of the prosecution in a given case, to examine a ballistics expert has to be assessed bearing in mind the overall context of the nature of the evidence which is available. "When direct evidence of an unimpeachable character is available and the nature of injuries is consistent with the direct evidence, the examination of a ballistics expert need not be insisted upon as a condition to the prosecution proving its case.", the bench said. The prosecution cited a ballistics examiner as a witness and yet, did not lead his evidence, the bench noted. 

At this juncture, the prosecution contended that an adverse inference should be drawn against the accused for refusing to submit themselves to a TIP. To address this argument, the bench summarized the principles regarding TIP:

(i) The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime; (ii) There is no specific provision either in the CrPC or the Indian Evidence Act, 187218 which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP; (iii) Identification parades are governed in that context by the provision of Section 162 of the CrPC;(iv) A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held; (v) The identification of the accused in court constitutes substantive evidence; (vi) Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act; (vii) A TIP may lend corroboration to the identification of the witness in court, if so required; (viii) As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration; (ix) Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible; (x) The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case; (xi) Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence; and (xii) The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.

While acquitting the accused, the bench, applied the above principles, and observed:

"Consequently, in a case, such as the present, the Court would be circumspect about drawing an adverse inference from the facts, as they have emerged. In any event, as we have noticed, the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade. In the present case, we have already indicated the presence of the alleged eyewitnesses PW4 and PW5 at the scene of the occurrence is seriously in doubt. The ballistics evidence connecting the empty cartridges and the bullets recovered from the body of the deceased with an alleged weapon of offence is contradictory and suffers from serious infirmities. Hence, in this backdrop, a refusal to undergo a TIP assumes secondary importance, if at all, and cannot survive independently in the absence of it being a substantive piece of evidence."

Case: Rajesh @ Sarkari vs. State of Haryana [Criminal Appeal No. 1648 of 2019] 
Coram: Justices DY Chandrachud, Indu Malhotra and Indira Banerjee
Counsel: Sr. Adv Rakesh Khanna and Adv Deepak Thukral

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