New Delhi, Aug 12 (PTI) The Supreme Court has said that mere identification of an accused in the test identification parade cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating their recognition.

The finding by the apex court came while acquitting two persons for charges of dacoity on the ground that repeated TIPs were conducted to identify them.

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The top court said that there cannot be repeated Test Identification Parades (TIPs) till such time that the prosecution is successful in obtaining identification of the accused.

“We find it extremely disturbing that both the Trial Court and the High Court did not go into this aspect at all to satisfy themselves if any TIP had been proved to have been held at all and that too in accordance with the law,” the apex court said.

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A bench of Justices Navin Sinha and R Subhash Reddy said, “In the facts and circumstances of the case, we are unable to uphold the conviction of the appellants. The appeals are allowed and the appellants are directed to be released forthwith unless wanted in any other case”.

The bench said that it regrets to note that even the original seizure memo was not produced by the prosecution which speaks volumes about the nature of investigation done by the police.

“We cannot help but notice the very casual manner in which the police conducted the investigation by TIP supported by a claim of recovery to link the two events but failed miserably to establish either”, the bench said.

It added that a test identification parade under Section 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence for identification of the accused.

“The purpose of holding a test identification parade during the stage of investigation is only to ensure that the investigating agency prima facie was proceeding in the right direction where the accused may be unknown or there was a fleeting glance of the accused,” the top court said in its order passed on Wednesday.

It added that the FIR was registered against unknown persons and the case of the prosecution solely rests on identification in the TIP.

The bench said that acquittal of the appellants under section 412 of IPC (dishonestly receiving or retaining any stolen property) and arms Act by the trial court has attained finality as state of Uttarakhand never challenged it.

It said that there is no doubt the test identification parade was conducted within about a month of the occurrence of the incident of dacoity on August 28, 1992 and the prosecution witness who is said to have identified the accused, a son of the family was minor about 13 years of age at the time of occurrence of the alleged crime.

“Mere identification in the test identification parade therefore cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification,” it said, adding that the TIP being a part of the investigation has to be proved by the prosecution as having been held in accordance with law.

The bench said that the onus lies on the prosecution to establish that the TIP was held in accordance with law and it is only after the prosecution prima facie establishes a valid TIP having been held, the question of considering any objection to the same arises.

“If the prosecution has failed to establish that a TIP was properly held by examining the witnesses to the same, there is nothing for the accused to disprove,” it said. The top court noted that in the present case, a Magistrate is stated to have conducted the TIP but he was not examined and no explanation is forthcoming why the Magistrate was not examined.

“The only evidence available is that of PW-4 the Station House Officer that during the investigation the TIP was held in the District Jail, Nainital and he identified the proceedings in the Court,” the bench said.

It said that the identification of the proceedings is irrelevant as obviously the SHO could not have been present during the TIP and the parade cannot be said to have been proven to be held in accordance with law.

“If that were not enough, in the TIP, prosecution witness (PW)-1 who is the mother of PW-2, and both of them are stated to have been present in the house when the occurrence took place, did not identify any of the appellants. What we have before us is identification by a minor boy and that too in the 3rd and 4th rounds insofar as the present appellants are concerned,” the bench said.

It said that the nature of the TIP held is “completely non est in the law and the benefit has to go to the accused”. It noted that two other co-accused have already been acquitted by the court in separate proceedings.

According to prosecution, four accused were convicted for charges of dacoity and were sentenced to seven years.

A dacoity incident had taken place on August 28, 1992 at about 7.30 pm in the house of the complainant Hukumchand in Uttarakhand. Seven accused had allegedly intruded and looted cash and jewellery while the family was watching television along with a neighbour Rajendra, and fled away.

The FIR was lodged by Hukumchand at 8.30 pm and at about 10.30 pm in the night, the accused were stated to have been apprehended at the police check post travelling in a Maruti van.

(The above story is verified and authored by Press Trust of India (PTI) staff. PTI, India’s premier news agency, employs more than 400 journalists and 500 stringers to cover almost every district and small town in India.. The views appearing in the above post do not reflect the opinions of LatestLY)