Source: Supreme Court

Why in News?

A bench of Justices BR Gavai and Prashant Kumar Mishra noted that the incriminating circumstances should be of a conclusive nature, and they should exclude every possible hypothesis so as to prove the guilt of accused beyond reasonable doubt.

• The Apex Court gave the observation in the matter of Kamal v. State (NCT) of Delhi.

Background

• The prosecution’s case was that the brother of deceased found him dead, lying on a cot in his house, and filed First Information Report (FIR) expressing his suspicion on accused.
• The case of prosecution mainly relied on the circumstantial evidence proved by testimony of Prosecution Witness – 20 (PW) and PW-21.
• PW-21 gave several contradictory statements with regard to the identification of the accused.
• The PW-21 admitted he had seen the accused outside the deceased's house.
• In examination-in-chief he said that he was called by police at deceased's house on 16 September 2009 and police had told him that these accused had committed the murder of deceased.
• He again turned hostile during cross-examination and said he first saw the accused at the police station on 12 September 2009.
• The doubt on the witness's testimony arose as he had already seen the accused before the Test Identification Parade (TIP).

Court’s Observations

• The Court said it is a primary principle that the accused must be and not merely may be guilty before a Court can convict him.
• The Court further observed that if the accused are already shown to the witnesses in the Police Station, then the sanctity of TIP before the court is doubtful.

Test Identification Parade (TIP)

• The TIP is one of the methods of establishing the identity under Section 9 of the Indian Evidence Act, 1872 (IEA).
• Section 54A of the Code of Criminal Procedure, 1973 (CrPC) also provides a situation for identification of a person arrested.
  • Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence a TIP may be conducted.
• This is based on the idea of testing the veracity of a witness.
• A witness’s capability to identify from among several unknown people a person whom the witness had seen in the context of an offence is tested in the process.
• Identification parades shall be conducted and recorded by a Judicial Magistrate at the Jail as far as possible.
  • Even if a witness makes a mistake, it should be recorded.
• If it is conducted in the presence of police officer, it amounts to a statement within the meaning of Section 162 CrPC and becomes inadmissible evidence.
  • It cannot be then used for the purpose of corroboration.

Types of Identification Parade

Identification parades are held in criminal cases to identify:

• the persons living or dead known or unknown
• articles including firearms
• handwriting, photographs, finger and footprints

Circumstantial Evidence

• Evidence under Section 3 of the IEA is:
  • all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
  • all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
• Evidence in India is classified into two broad headers, Direct Evidence, and Indirect Evidence that is Circumstantial Evidence.
  • Direct Evidence are those which conclusively proves the fact whereas Circumstantial Evidence are chain of circumstances used to prove a fact.
• It marks its origin from the Roman system of law where it was used as a significant factor for the investigation of a case.
• It based on the principle that “Men may tell lies, but circumstances do not”.
• The five golden principles with regard to conviction based upon circumstantial evidence are very well crystalized in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984).