Non-Conduct Of Test Identification Parade Fatal When Witnesses Not Familiar With Accused: Kerala High Court

Justice A Badharudeen added that when the witness is not familiar with the accused, a test identification parade corroborates the testimony of the witnesses. 

“It is true that if a witness, who doesn't know the accused at the time of occurrence, had an occasion to see the accused, not as a fleeting glance so as to imprint his face and body structures on his mind with certainly and thereafter identifies the accused at the dock, there is no reason to hold that his testimony in the matter of identification could not be relied on for want of corroboration, by way of test identification parade. But the situation is different when the witness identifies the accused, who is not familiar to him, at the dock and he did not give statement before the police regarding the identity of the accused and the manner in which such identification was imprinted in his mind with certainty, in such cases corroboration by test identification parade should have been resorted to and in such cases, non conduct of test identification parade (TIP) is fatal.”

The allegation was that the petitioner was driving the tanker lorry in a rash and negligent manner which dashed against a scooter. This resulted in the loss of life of the driver and the pillion rider suffered serious injuries. The petitioner was subsequently convicted by the Magistrate Court and Sessions Court for driving in a rash and negligent manner and endangering human life. Challenging the conviction, he approached the High Court.

The petitioner submitted that the conviction was based on the statements of witnesses identifying the petitioner as the driver of the alleged tanker lorry. It was submitted that such statements were not given before the police and were only given before the trial court for the first time. It was also contended that the police did not conduct an identification parade, and the witnesses identified the petitioner for the first time at the dock during the trial without having any previous familiarity with him.

On the other hand, the respondents submitted that the evidence of the witnesses were consistent. It was submitted that the witnesses have identified the petitioner as the person driving the lorry rashly and causing the accident. It was also averred that CrPC does not provide that a test identification parade by the police was mandatory.

The Court relied upon the Apex Court decisions in Malkhansingh & Ors. v State of Madhya Pradesh (2003) and Amrikh Singh v State of Punjab (2022) to reiterate that identification of the accused for the first time during trial, in cases of direct evidence was weak evidence.

The Court noted that if the evidence given by a witness was wholly reliable, failure to hold a test identification parade will not make it inadmissible evidence. The court held that the identification of the witnesses in Court was substantive evidence and test identification parade provides corroboration to the identification of the witness in court, if required. It noted that in appropriate cases, the Court may accept the evidence of identification even without insisting on corroboration.

On the other hand, Court cautioned by stating that much evidentiary value cannot be given to the testimony of witnesses who were seeing the accused for the first time or only had a glimpse of him, and a prior test identification parade was not conducted. It stated that when the accused was a stranger, a prior test identification parade was conducted to test, strengthen and corroborate the testimony of the witnesses who were identifying the accused for the first time at the dock. This was imperative when the witnesses have no familiarity with the accused or when the accused was a stranger, the Court observed thus:

“Thus test identification parade (TIP) is safe rule of prudence generally to 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.”

In the facts of the matter, Court stated that the identity of the petitioner as the driver of the tanker lorry was seriously disputed because the incident took place at night at a place where sufficient light was not there. Justice Badharudeen examined the statements of the witnesses and found that statements given to the police during the investigation and the statements given in the Court during the trial were contradictory. When the witnesses were omitting important facts or giving contradictory statements, the court observed thus:

“In such cases, non-conduct of test identification parade (TIP), to be held as fatal and the conviction based solely on identification of the accused by the occurrence witness/witnesses for the first time in court is not sufficient.”

The Court found the statements of the witnesses unreliable because, without any prior familiarity with the petitioner and without a test identification parade, they identified the petitioner at the dock for the first time during the trial. It was also observed that the witnesses had not given any statements to police regarding seeing the petitioner at the scene of the accident.

The Bench further found that the witnesses gave an improved statement at the trial regarding seeing and identifying the petitioner at the scene of occurrence. Thus, Court held that the afore statements of the witnesses identifying the petitioner at the scene of an accident cannot be relied upon without corroboration by test identification parade.

Finding that there was no other substantive evidence against the petitioner, the Court acquitted him.

Case title: Pauly v State of Kerala

Citation: 2023 LiveLaw (Ker) 402

Case number: Crl Rev Pet. No. 36 of 2016

Counsel for the petitioner: Senior Advocate S Sreekumar, Advocates P Martine M A Mohammed Siraj, P Prijith and Thomas P Kuruvilla

Counsel for the respondent: Public Prosecutor M P Prasanth