Prosecution Must Examine Magistrate Who Conducted Test Identification Parade As 'Witness' During Trial: Orissa High Court

The Orissa High Court has held that the prosecution must examine the Magistrate, who conducts the Test Identification Parade (TIP), as a 'prosecution witness' so as to ascertain the and identify any irregularity caused during such exercise.

Highlighting the importance of the testimony of the Magistrate for the cause of justice, the Single Judge Bench of Justice Sangam Kumar Sahoo held –

“Thus, it is undisputed that the Public Prosecutor has a duty to examine the Magistrate who conducts the T.I. parade so that the legal sanctity of the T.I. parade report can be ascertained during the trial. Non-examination of the Magistrate strikes a severe blow not only to the prosecution case but also to the cause of justice as irregularities, if any, committed in such T.I. parade cannot be canvassed and discussed by the trial Court in his absence from the witness box.”

Brief Background

The four appellants were charged and prosecuted under Section 395 (punishment for dacoity) of the IPC for allegedly causing assault to the informant and forcibly robbing him of cash worth Rs. 8000/-, two valuable mobile phones, a trolley suit case and some other valuable articles.

The police started investigation pursuant to the FIR filed by the informant and during the course of such investigation, one of the appellants confessed his guilt and disclosed the names of other appellants, who were involved in committing the offence.

Two of the appellants were taken on remand by the police and a prayer was made for conducting TIP of such appellants. The informant correctly identified both the appellants in such TIP.

The trial Court held the appellants guilty of the aforesaid offence taking into account the fact that the robbed articles were recovered from their possession. Besides that, the Court also gave due consideration to the identification made by the informant during the TIP.

Contentions of the Appellants

Appeal against the order of conviction was made basing upon the ground that only four persons were involved in the offence and therefore, the offence under Section 391, which is punishable under Section 395, is not made out as involvement of at least five persons is a sine qua non for invoking the Section.

It was further submitted that though some articles were recovered from the possession of the appellants but the same were not placed before the informant during the T.I. parade for identification.

It was also argued that as the Magistrate, who conducted the TIP, was not examined by the prosecution, the veracity of the parade comes into question and thus, benefit of doubt must be given to the appellants.

No Dacoity When Less Than Five Persons Are Involved

At the outset, the Court noted that the informant has informed about involvement of only four persons in the crime. It also reproduced the charge-head drawn by the trial Court wherein charge was framed against four persons under Section 395 of the IPC.

The Bench was of the considered opinion that without the involvement of at least five persons, charge under Section 395 could not have been framed and thus, held as follows:

“...since one of the essential ingredients of the offence under section 395 of the I.P.C. is that five or more persons must have conjointly committed or attempted to commit robbery, the framing of charge against the four appellants under section 395 of the I.P.C. by the learned trial Court, without any indication that they four along with others committed dacoity, the framing of charge so also the conviction of the appellants under section 395 of the I.P.C. is not sustainable in the eyes of law”

TIP Of Known Accused Persons

From the examination-in-chief of the informant, it came to the light that he previously knew two of the appellants. However, despite knowing them, he did not mention their names in the FIR.

The Court relied upon the judgment in Tukuna Rauta v. State of Odisha, wherein it was held that despite knowing the name of the accused, omission on the part of the informant to mention the same in the FIR affects the probabilities of the case and such omission is relevant under Section 11 of the Evidence Act in judging veracity of the prosecution case and also gives rise to the reasonable doubt that the appellant was not a participant in the crime.

Further, it was held that the requirement of conducting the TIP arises when the accused and witnesses/informant are not previously known to the accused/informant. If they are found to be known, then the entire objective behind such exercise goes in vain. The Court relied upon the observation made by the Apex Court in Dhananjay Shanker Shetty v. State of Maharashtra to this effect.

Compulsory Mandate To Examine TIP Magistrate

Justice Sahoo underlined that the prosecution skipped the TIP Magistrate from the list of prosecution witnesses and it did not offer any plausible explanation as to why he was not examined to prove the T.I.P. report.

“Mere marking of the T.I. parade report is not enough inasmuch as the person who conducted the T.I. parade could only highlight what precautions he took, what procedure he followed during such T.I. parade. Lapses, if any, on his part during the proceedings of the T.I. parade which strikes at the root of the identification evidence, can be brought out by the defence counsel in the cross-examination,” he observed.

The Court further clarified that if the Magistrate is dead or his attendance could not be procured during trial for any reason, the trial Court has to specifically mention the same in the order-sheet and thereafter the prosecution can adduce cogent evidence to prove such T.I. parade report.

Hence, taking into account the aforesaid lapses as well as lack of any other material evidence against the appellants, the Court deemed it just to acquit all the four appellants.

Case Title: Baikuntha Bhoi & Anr. v. State of Odisha & connected matters

Case No: CRLA No. 21 of 2012 & tagged cases

Date of Judgment: April 04, 2024

Counsel for the Appellants: Mr. Rashmi Ranjan Nayak, Advocate (Amicus Curiae)

Counsel for the State: Mr. Priyabrata Tripathy, Addl. Standing Counsel

Citation: 2024 LiveLaw (Ori) 25

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