test identification parade research paper

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Rules and Principles of Identification under Criminal Justice System 

by Sarvesh Kumar Shahi*

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To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.

।. INTRODUCTION

“ The issue of identification is one for you to decide as a question of fact” . [1]

Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator [2] . Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries [3] .

The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial [4] .

Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade [5] .

In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows” [6] . There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.

II. MEANING OF IDENTIFICATION

‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity [7] . Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”. [8] The identity of a person can be established by the evidence of persons who know him [9] .

III. SIGNIFICANCE OF IDENTIFICATION EVIDENCE

Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R [10] , Mason, J. stated that:

“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”

The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned. [11] Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation. [12]

In another case [13] , where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.

IV. TURNBULL GUIDELINES ON IDENTIFICATION

In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull [14] laid down important guidelines Judges in trials that involve disputed identification evidence.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The  Judge should tell the jury that:

i. caution is required to avoid the risk of injustice;

ii. a witness who is honest may be wrong even if they are convinced they are right;

iii. a witness who is convincing may still be wrong;

iv. more than one witness may be wrong;

v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.

The  Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:

i. the length of time the accused was observed by the witness;

ii. the distance the witness was from the accused;

iii. the state of the light;

iv. the length of time elapsed between the original observation and the subsequent identification to the police.

V. IDENTIFICATION EVIDENCE UNDER INDIAN LAW

Section 9 of the  Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them [15] . As per Section 9, facts which establish the identity of accused are relevant [16] . This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section [17] .

Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts [18] .

Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court [19] held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”

VI. MODES OF IDENTIFICATION

In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:

(i) Test Identification Parade (popularly known as TIP)

One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades [20] . In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation [21] . The utility of the evidence created by an identification parade was explained by the Supreme Court in  Ramanthan v. State of Tamil Nadu [22] . The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”

(a) Procedure of TIP

A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.

The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary [23] .

To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire [24] .

(b) Value of TIP

Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial  Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused [25] .

Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the  same can be used only to corroborate the identification of accused by the witness in court [26] .

Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case [27] . As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P. , [28]   that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.

In a case [29] , where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.

Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact [30] .

(ii) Video Identification

In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems [31] . Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips [32] . In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.

The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience [33] .

(iii) Visual/Eyewitness Identification

An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness [34] .  Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high [35] .

In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”. [36] This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.

Eyewitness evidence is usually the main type of evidence on which convictions are based [37] . There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence [38] . In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.

The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.

Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades [39] . the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus [40] for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.

The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.

Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”. [41] ” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.” [42] This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes. [43]

Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.” [44] Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.

In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt [45] .

Thus, the appreciation of the evidence of eyewitness depends upon [46] :

– The accuracy of the witness’s original observation of the events which he described, and

– The correctness and extent of that he remember and his veracity.

(iv) Forensic Identification

When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed [47] or, more commonly, never even existed in the first place [48] . This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.

Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.” [49] In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications. [50]

In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence. [51]

(v) Voice Identification

Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw [52] , something:

In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued. [53]

With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused [54] .

It was recognised by New Zealand’s Court of Appeal in R v. Waipouri [55] ,   that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts [56] the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in  R v. Turnbull [57] .

Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice [58] .

In an Indian case [59] , where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case [60] , in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.

Recently, the Supreme Court in Dola  v. State of Odish a, [61] observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.

(vi) Previous Identification

Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification [62] , for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency [63] .

R v. Christie [64] , is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.

Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie , but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused [65] .

The Indian Supreme Court [66] observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.

VII. VALUE OF IDENTIFICATION EVIDENCE

A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine [67] .

In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court [68] .

VIII. CONCLUSION AND SUGGESTIONS

Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the  Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.

* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email:  [email protected]

[1] R v. Donnini, [1973] VR 67.

[2] . Gary L. Wells & Nancy K. Steblay, “Eyewitness Identification Reforms: Are Suggestiveness -Induced Hits and Guesses True Hits?”, Journal of Applied Psychology , 799, 835–844 (2011).

[3] . Heather L. Price, “Judicial Discussion of Eyewitness Identification Evidence” 49 CJBS 209–220 (2017).

[4] . S v. Mdlongwa , 2010 (2) SACR 419 (SCA).

[5] . Chris Taylor, Law Express Evidence , (Pearson, Chennai, 4th Edn., 2009).

[6] . The Royal Commision on Criminal Justice Report (“The Runciman Report”) (1993 London: HMSO)

Cmnd 2263, 2.

[7] . S.R. Myneni, Law of Evidence 84 (Asia Law House, Hyderabad, 3 rd   Edn., 2019).

[8] . Phipson, Phipson on Evidence (Sweet & Maxwell, Thomson Reuters, 17 th   Edn. 2015).

[9] . Dr. Avtar Singh, Principles of The Law of Evidence   66 (Central Law Publications, Allahabad, 22 nd   Edn., 2018).

[10] . (1981) 145 CLR 395 at 426.

[11] . Alan Taylor, Principles of Evidence , 139 (Cavendish Publishing Limited, London,  2 nd   Edn,. 2007).

[12] . Visveswaran v. State ,   (2003) 6 SCC 73

[13] . Shiv Murat Kol v. State of M.P .,  2018 SCC OnLine MP 336 .

[14] . [1977] QB 224 .

[15] . Monir, M. Textbook on the Law of Evidence 66 (Universal Law Publishing, Delhi, 11 th Edn,. 2018).

[16] . Ram Babu v. State of Uttar Pradesh ,  (2010) 5 SCC 63 .

[17] . Batuk Lal, The Law of Evidence 73 (Central Law Agency, Allahabad) 19th Edn., 2012).

[18] . Ashok K. Jain, Law of Evidence 44 (Ascent Publications, New Delhi,  6 th Edn,. 2015).

[19] . Deep Chand v. State of Rajasthan ,  (1962) 1 SCR 662.

[20] . Vepa P. Sarathi, Law of Evidence 56 (Eastern Book Company, Lucknow, 6 th Edn., 2008).

[21] . Gade Lakshmi Mangaraju v. State of A.P ., (2001) 6 SCC 205 .

[22] .  (1978) 3 SCC 86 at page 96 .

[23] . 2017 Cri LJ 5011.

[24] . Ibid.

[25] . Dana Yadav v. State of Bihar, (2002) 7 SCC 295 .

[26] .Ibid at page 301.

[27] . R. Shaji v. State of Kerala, (2013) 14 SCC 266 .

[28] .   (1970) 3 SCC 518 .

[29] .   (1999) 8 SCC 428 .

[30] . Malkhan Singh v. State of M.P. , (2003) 5 SCC 746 .

[31] . Swati Mehta, “Cyber Forensics and Admissibility of Digital Evidence” (2011) 5 SCC J-54 .

[32] . Amina Memon, “A Field Evaluation of the VIPER System: a New Technique for Eliciting Eyewitness Identification Evidence” 17 Psychology Crime & Law 711 (2011).

[33] . Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.

[34] . Vishnu Narayan Moger v. State of Karnataka, 1995 SCC OnLine Kar 291 .

[35] . Glanville Williams, Proof of Guilt 630 (Harvard Law Review , 3 rd Edn 1963).

[36] . Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also

Zuckerman, A.A.S., The Principles of Criminal Evidence (1989, Oxford: Clarendon).

[37] . Meintjes van der Walt L ” Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases” PER / PELJ 2016(19).

[38] . R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross [1960] Crim LR 127 (CCA).

[39] . Raymond Emson, Evidence 360 (Palgrave Macmillan, 2 nd Edn., 2004).

[40] .  (1993) 98 Cr App R 313 (CA).

[41] . Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes” 86 Neb. L. Rev . 515, 516 (2008).

[42] .  Suzannah B. Gambell, Comment, The Need to Revisit the Neil v. Biggers

Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189 (2006), at 190-91 [discussing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal? 4-1 (3rd Edn., 1997)].

[43] . Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev . 133 (2008).

[44] . Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).

[45] . Mian Sohail Ahmed v. State , (2019) SCC OnLine Pak SC 12 .

[46] . Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).

[47] . Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev . 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).

[48] . Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev . 899 (2002).

[49] . State v. Dubose , 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).

[50] . Calvin Ter Beek, “A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with Empirical Reality” 31 Law & Psychol. Rev . 21 (2007).

[51] . People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002).

[52] . Bethany K. Dumas, “Voice Identification in a Criminal Law Context, American Speech”, 65 Duke University Press, 341-348 1990).

[53] . Ray Bull, “Earwitness Testimony” 39 Med. Sci. Law 120-127 (1999).

[54] . Supra note 3.

[55] . [1993] 2 NZLR 410.

[56] .  [2000] Crim LR 183 (99/0458/X3).

[57] . [1976] 3 WLR 445 (R v. Hersey [1998] Crim LR 281 (CA), R v. Gummerson, [1999] Crim LR 680 (CA), R v. Chenia, [2003] 2 Cr App R 83 (CA)). .

[58] . Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty, [2003] 1 Cr App R 77 (NICA).

[59] . Inspector of Police v. Palanisamy ,   (2008) 14 SCC 495 .

[60] . Mohan Singh v. State of Bihar ,   (2011) 9 SCC 272 .

[61] . (2018) 18 SCC 695

[62] . For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue, [1973] QB 678, CA. 295 (See Ch 10) .

[63] . R v. Burke and Kelly, (1847) 2 Cox CC.

[64] . [1914] AC 545 .

[65] . Rosamund Reay, Evidence 311 (Old Bailey Press, 3 rd Edn., 2001).

[66] . Dana Yadav v. State of Bihar, (2002) 7 SCC 295 .

[67] . Malkhan Singh v. State of M.P ., (2003) 5 SCC 746 .

[68] . Raju Manjhi v. State of Bihar , (2019) 12 SCC 784 .

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This is an interesting and very informative topic. I appreciate peeking family law firms that handle many family law issues such as divorce, child custody, alimony, and others. Thanks for sharing your ideas. Keep it up.

I’ve never heard that the criminal justice system has three key components, but you seem to be hinting that it’s similar to the federal government, which has three equal branches. However, if I had to divide the CJS into three main sections, I believe law enforcement, the District Attorney’s office, and correctional agencies would be the most likely candidates.

There is, in my opinion, one fundamental concept of the rationale for criminal law, particularly in communities that recognize the value of individuals to some extent.

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Identification Parade: Current Position And Issues In Malaysia

Much has been said regarding identification. Identification does not refer only to fingerprints. It covers other types of identification such as footprints, voice and identification parade. This paper only focuses on identification parade. Once a person is suspected of committing a crime, he or she may be caused to be made available for an identification parade. Identification is a line of people who stand next to each other while the victim or bystander tries to identify them as the person who has committed the crime Identification parade is usually carried out to test the trustworthiness of the evidence per se. This paper serves to set out briefly the principles and guidelines set down by case laws that should be followed and applied during an identification parade. This paper provides the current position of identification parade and also the evidentiary value of identification parade in the eyes of the court. Identification in Malaysia has been progressing. There is a new form of identification being applied together with the identification parade which is dock identification. However, there are few issues pertaining to identification parade that are identified in this paper which are the lack of knowledge in conducting identification parade, the principles enunciated in case laws are mere guidelines and the reliability of witness which would need redresses to overcome the issues. Keywords: Identification parade dock identification evidentiary value Malaysia

Introduction

Although advances in DNA profiling, eyewitness identification still plays an important in criminal cases. One of the ways where law enforcement agencies carry out identification is through identification parade. Identification parade is held where there is some doubt as to the identity of the persons who are alleged to have committed an offence. Identification parade is no doubt a very important part of the investigation for the court to determine the credibility of witnesses on the point of identification. There is no specific provision under the Evidence Act 1950 or Criminal Procedure Code in Malaysia with regard to identification parades. There are however numerous case laws that provide guidelines on identification evidence. Any infirmity or defectiveness in the conduct of identification parades will render the identification to be of little or no value ( PP v. Mohamed Majid, 1976 ).

Problem Statement

Identification parade has been used as a mechanism to identify suspect or suspects in Malaysia since many years ago. The witness identification in the parade is conducted before the trial and is always tendered as evidence in the courtroom. Court gives high probative value for proper identification. The issue arises with regard to identification parade is whether the Turnbull guideline is mandatory for the court to follow or whether the court can deviate from it? The issue also arises about the way to conduct proper identification parade in Malaysia as Turnbull only laid down the general principles of an identification parade. There are also some conflicting decisions on how to conduct proper identification parade in Malaysia including the issue of dock identification in the absence of identification parade. Other key issues which arises is the reliability of witness pertaining to the mental capacity to remember.

Research Questions

The research questions are as follow:

how identification parade is conducted in Malaysia?

How the courts in Malaysia admit the evidence of identification parade in Malaysia?

What is the evidentiary value of identification parade?

Whether the guidelines laid down in R v. Turnbull ( 1976 ) are mandatory to be followed?

How reliable is a witness in identifying during an identification parade?

Why enforcement agency is unable to carry out identification parade successfully?

Purpose of the Study

The research outlined three objectives to be achieved as follow:

to investigate how identification parade is conducted in Malaysia.

to identify the admissibility of evidence of identification parade in Malaysia.

to analyse the issues pertaining to identification parade in Malaysia.

Research Methods

The research is a pure legal research which employed qualitative design method to achieve the objectives of this research. The article used exploratory, explanatory and critical analysis methods to analyse the current position and issues pertaining to identification parade in Malaysia.

The research has few finding relating to identification parade in Malaysia.

Principle under R v. Turnbull (1976)

In R v. Turnbull ( 1976 ), Court of Appeal provided useful guidelines in regards to matter concerning identity. There is plethora of authorities that have followed the principles and guidelines set out in Turnbull. In Jaafar bin Ali v. PP ( 1998 ), Augustine Paul J referred to Criminal Evidence (3rd Edition) by Andrews and Hirst which rearranged the Turnbull guidelines into four issues as follows:

a) The requirement for the judge to caution the jury about the dangers of identification.

First, whenever a case or evidence against the accused depends wholly or substantially on the one or more identifications in which the accused alleges to be mistaken, the judge should warn and caution the jury before convicting upon relying the definitiveness of the identification. Further, the judge should warn of the chances that a mistaken witness could be believable. It is also prudent to note, that jury to be warned of the danger mistaken recognition of close relatives and friends which are sometimes made.

b) The requirement of the judge to guide the jury to look at different particular issues that may affect the quality or cogency of evidence before them.

Furthermore, the judge should guide the jury to look at intently the conditions of which the identification by each witness came to be made. To what extent the witness observed the accused? What was the distance? In what light? Was the observation or view blocked in any way, as for example by passing traffic or press of people? Did the witness see the perpetrator before? How frequent? If only occasionally, had he any special reasons in recalling the accused? How long had passed since the original observation until subsequent identification to the police? Was there any material disparity between the portrayal of the accused given by the witness to the police which was first seen by them and his actual appearance? …. Lastly, he should caution the jury of any specific shortcoming which had showed up in the identification evidence.

Each of these issues goes to the very nature of the identification evidence. If the quality is great and stays great at the end of the accused case, the risk of mistaken identification is reduced; but the poorer the quality, the higher the risk.

c) The question of when a jury may properly be permitted by the judge to convict the accused even in the absence of other supporting evidence.

In the judgement, when the nature of the identification is great, as when the identification is made after a long span of observation, or in a adequate conditions by a relative, a neighbour, a dear companion, a workmate and so forth, the jury can safely be left to access the value of the identifying evidence, even though there is no other evidence to corroborate it: provided always, however, that a sufficient caution has been given. Were court to decide contrary, injustice would happen.

When in the decision of the trial judge, the nature of the identifying evidence is bad, as for example when it depends solely on a transitory look or on a longer observation made in challenging conditions, the circumstances is altogether different. The judge should then acquit the accused unless there is other evidence which goes to corroborate the correctness of the identification.

d) The question of what other evidence may properly be regarded as capable of supporting an identification.

This supporting evidence may be corroboration in the sense counsels utilize the word, yet it require not be so if its impact is to ensure that there has been no mistake in the identification. For example, Y sees the perpetrator; he gets only a fleeting short lived look of the criminals face as he keeps running off, however he sees him going into a close by house. Later, he picks him out in the identity parade. If there was no more evidence than this, the poor natureof the identification would amount to acquittal; but this would be so if there was evidence that the house into which the accused was alleged by X to have run was his father’s.

Another case of other evidence not amounting to corroboration can be seen in the case of R v. Long ( 1973 ). The perpetrator was accused of robbery, had been recognised by three witness in different place on various events, but each had only a short opportunity for observation. Immediately after the robbery, the accused had left his home and could not be traced by the police. At some point later he was seen by them, he claimed to know who had done the robbery and offered hemp to find the perpetrator. At his trial, he put forward a plausible defence which the jury rejected.

The trial judge ought to recognize the jury the evidence which he adjudges is capable or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so. A jury, for instance, may believe that support for identification evidence could be found when in fact that the accused had not given evidence before them. An accused’s non-appearance from the witness-box cannot provide evidence of anything, and the judge should tell the jury so. But he would entitled to tell them that when accessing the quality of the identification evidence, they could take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself.

Care ought to be taken by the judge when giving directions to the jury about the corroboration for identification which may be considered from the fact that they have rejected an alibi. False alibis may be given for many reasons: an accused, who has only his own evidence to rely on, may fabricate an alibi and get some witness’s to support it because he fears that his own evidence will not be enough. Moreover, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only where the jury are satisfied that the sole reason for the for the creation of the alibi was to trick them and there is no other reasons for its being put forward, that fabrication can provide any support for identification evidence.

Process of identification parade.

The whole process of identification Parade is enumerated in Mallal’s Criminal Procedure Code ( Mallal’s Criminal Procedure, 2013 ). Identification parade must be carried out at the earliest opportunity and all available witnesses should be required to attend at the very first parade. The proper practise in England is that parade should be carried out by the police officer on duty in charge of the police station and not by the officer in charge of the investigation. The witnesses must be allowed to see the accused until the moment when everything is ready and they walk to pick him out, and they should not have been previously assisted by photographs or by any verbal or written description.

The accused should be put together with a number of person, which is not less than 10 for one accused, 15 if two and so on. He should be allowed to stand wherever among these people, who stand in a row, and he may change his position for each identification parade being conducted. The officer in charge of the identification should ask the accused if he has any objection to any of the persons present of to the arrangements made, and he should previously have been asked if he wished to have his solicitor, family member or friend present. Every effort should be made to make the parade a fair one and to see that the accused admits that it is so. The place selected for the parade should be well lighted. A suspect may be invited to walk or move in any way likely to be distinctive.

The line up of persons in the identification parade should be of similar character. It is a settled practise for the police to parade persons of similar height, built and ages and the same nationality of the suspect of to identify the suspect ( R v. Dickman, 1910 ; R v. Bundy, R 272). When the accused had brown eyes and the person with such brown eyes had not been mixed in the parade the evidence of the identification had to be rejected ( Chander v. S A, 1973 ). When the accused is a bearded man, with a tape on his neck waited with the witnesses outside the magistrate’s court and among five other persons in the parade none was similarly bearded the evidence had to be rejected ( Yeshwant v. S A, 1973 ).

The witness should be brought in one by one, and are usually directed to touch the person they identify. Each witness having succeeded or failed, as the case may be, should be taken out by a different door and kept apart from the witnesses who are to come. If the identifying witnesses were waiting outside when the persons were called in for identification parade and the identifying witnesses identified the accused, the identification was unfair ( Gobardhan v. R A, 1932 ). Every circumstance connected with the identification, the names of the witnesses and their decisions, must be carefully noted by the officer in charge who must record the proceedings as fully and fairly and carefully.

Further, in Poovananeswaran a/l Sellan & Anor v. PP ( 2016 ), the issue arose was whether the identification parade conducted to identify the appellant was defective. The appellants claimed that the identification parade was defective because both of them were identified in only one identification parade. The High Court of Shah Alam, in this case, held that where there is more than one accused, the identification parade for all the accused should be done separately as mentioned in the case of PP v. Jamal & Anor (2006). The identification must be absolutely independent ( PP v. Aling bin Ayun, 1970 ). In a parade, there should not be any disparity of ages among the persons in the parade ( Chan Sin v. PP, 1949 ). They do not have to look similar ( Thirumalai Kumar v. PP, 1977 ) or wearing the same attire ( Lee Tiaw Chwee v. PP, 1998 ). In the event, there are two accused, a separate identification parade must be carried out ( PP v. Chan Choon Keong & Ors, 1989 ).

Evidentiary value of identification parade.

In S.C. Bahri ( 1994 ), the court addresses the value of identification where the Supreme Court observed thus:

“It is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after arrest is of great importance because it furnishes on assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view, it is matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without available and unreasonable delay after arrest of the accused and that all the necessary precautions and safeguards were effectively taken so the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned also who was a stranger to the accused because in that event the chances of his memory fading away are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is in adopting this course that justice and fair play can be assured both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of test identification parade.”

In Rameshkumar Soni v. State of Madhya Pradesh (1997), the court stated that:

“The evidence of identity must be thoroughly scrutinised, giving benefit of all doubt to the accused; but if after a through scrutiny there appears to be nothing on record to suspect the testimony of the identification witnesses, the Court ought not to feel shy of basing a conviction on such evidence alone, because of the bare possibility that there could be honest though mistaken identification.”

The value of identification parade was explained in ST Shinde v. State of Marashtra (1974) as follows:

“The evidence at test identification is admissible under section 9 of the Evidence Act, it is, at best supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification or the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, had no independent value.”

Where accused is already known to the witnesses, identification parade shall not be held ( PP v. Sarjeet Singh, 1994 ). If a witness do not know the accused before the occurrence and no proper and fair identification parade is held after the necessary precaution and safeguards are taken, a test parade was held to test his power of identification and the witness was also shown the accused by the police before he identified the accused at the identification parade and later in court, his evidence becomes valueless ( Mohanlal Gangaram Gehori v. State of Maharashtra, 1982 ); PP v. Ayavoo Subramaniam, 2004). If the manner of holding identification parade throws suspicion on police, the evidence is not entitled to any weight ( Bhandari v. R A, 1940 ). Technical breaches of identification parade may not vitiate the evidence per se, unless the prejudicial effect overrides its probative force.

Current application and issues of identification parade in Malaysia.

In Malaysia, Turnbull principles are being applied with certain modification on the fact that it will be the judge that will assess the quality of witness identification. The most recent decision where identification parade was carried out is Asis Lako v. PP ( 2017 ). It is now a common practise now that after an identification parade is conducted, that dock identification is later carried out in court. Dock identification for the first time has been accepted in the case of Basah bin Bakhtiar @ Johan v. Public Prosecutor ( 2016 ). In the case of Goh Kooi Pheng v. PP (2013) court said when identification parade is carried out is unfair manner to the accused, the subsequent identification was of little value and or significance to the court.

In the case of PP v. Dharma Raj Ballurajah & Anor ( 2016 ), a quarrel took place between the deceased and the defendants. The witness had seen of the defendants threw a punch to the deceased and a knife was thrown. Two police officers managed to detain and charged them for murder under section 302 of the Penal Code. Identification parade was conducted where the witness identified them. However, the identification parade was improperly conducted and was unfair to the third appellant therefore the court was of the view that the dock identification of both the accused in this case is therefore rendered of little value of significance. However, in the cases of R v. Cartwright (1914) and Jaafar bin Ali v. Public Prosecutor (1999), the court stated that it is improper to identify a suspect for the first time only when he is in dock where he is a complete stranger to the witness meaning that the very first identification should be carried out through an identification parade and then the following identification can be carried out in the courtroom. This was further agreed in the case of Magendran Mohan v. PP ( 2011 ).

The first issue relating to identification parade in Malaysia is whether the Turnbull guidelines are mandatory to be followed by the trial judge or is it a mere guideline. In the case of Mohammad Yazri Minhat v. PP ( 2003 ), where in the Court of Appeal remarked as follows:

“Now the English case of Turnbull did not lay down any proposition of law embodied in concrete. As all members of the criminal bar are aware, the several propositions in Turnbull are known as the “Turnbull guidelines”. And that is what they really are. They are just guidelines and each case depends on its own facts. What was said in Turnbull does not amount to inflexible rules with no exceptions whatsoever.”

The above proposition was agreed in the case of Mohamas Yazri v. PP ( 2003 ).There are other cases like Ahmad Nazari bin Abdul Majid v. PP (2009) and PP v. Joachim Selvanathan & Ors (2009) which agreed that Turnbull directions are only directions.

The second issue is relating to the reliability of the witness or victim himself. The fragility of memories continues to misidentification even though the court is practising the Turnbull guidelines. There are three stages. The first stage is acquisition, where an event is originally observed or information is taken in. The second stage is retention where memory is stored and the third stage is retrieval where memory is recalled.

Retention is the time between an event and recollection. It is very important especially during identification parade to identify the perpetrator of a criminal offence. Once encoded in memory, the memory will not remain intact and would fade over time and changes taking place. It is something of common sense. The retention stage is a great danger because that memory will become contaminated by new or other information. Faces are complicated, we have not one face but thousands of different faces. It is a common and know fact that people fail to recognise someone they know or mistaken one person to another. There is also delay of days or several weeks before and identification parade is conducted. As memory fades over time, there is the likelihood that witness accuracy will also be in decline.

The third issue is the lack of knowledge of the enforcement officers to conduct an identification parade. This is well in the High Court case of Public Prosecutor v. Dharma Raj Ballurajah & Anor ( 2016 ), the conduct of the identification parades suffers from infirmities that do not assist the prosecution in proving positively, the identification of the accused persons. There were two accused persons involved and thus the proper way was to put them separately for identification purpose with not less than nine or ten persons ( PP v. Chan Choo Keong & Ors, 1989 ). Yet, no separate parade was held for each accused and only 11 participants were involved in the parade line up including both accused. Besides that, all witnesses were kept in the same holding room during the identification parade, and at the conclusion of the identification, each witness had returned to the holding room. This leaves open the possibility of the opportunity of the witnesses to discuss the case and inform the other witnesses of the position of the suspects in the line up, given the fact that they remained in their position unchanged throughout the exercise.

Although it has been established that it is the duty of the officer conducting the parade to look for participants who are of similar age, stature and appearance as the accused person ( PP v. Pasupathy Kanagasaby, 2001 ), there are still instances in which the officer failed to follow this procedure. In the recent case of Public Prosecutor v. Tay Ee Hung ( 2016 ), there was a serious flaw in the way the identification parade was conducted. First, the eyewitnesses were shown with the photography of the accused when they were briefed by the police officer before the parade was conducted which led to the positive identification of the accused. Second, the age of the participants in identification line up was either too young or too old compared to the age of the accused. Further, the accused was the only one bald and wearing different clothing as he was in police custody. The interesting part of the case is that PW10, Inspector Alis bin Nen who conducted the parade admitted that the ideal age and height of the participants should be more or less the same with the accused, but curiously, the flaw was still persistent.

Other latest cases that the Court held the identification parade as defective are in the case of Poovaneswaran a/l Sellan & Anor v. Pendakwa Raya ( 2016 ) in which the victim identified both the appellants in one single identification, and similarly in the case of Public Prosecutor v. Nazariman Bujang & Anor ( 2016 ) in which the learned Session Court Judge, learned counsel for the respondent and even the learned DPP, had conceded that the identification parade that was arranged by the police was unsatisfactory.

It is evident that identification parade is part and parcel of a criminal investigation. The guidelines provided in the case of R v. Turnbull ( 1976 ) is still being applied in Malaysian courts today. Dock identification is being applied together with identification parade to support the reliability of an identification. However, there is still some important issues that needs to be addressed such as the reliability of the witness in an identification parade, officers carrying identification parade has very little knowledge or guidelines to be followed when carrying out identification parade and also since precedent shows that guidelines provided in R v. Turnbull ( 1976 ) are merely guidelines, whether the court can deviate or is it still mandatory guidelines for the court to follow.

Acknowledgments

The research is funded by Universiti Kebangsaan Malaysia (UKM) via research grant: GGPM-2016-036.

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Cite this article as:

Rajamanickam, R., & Kung, K. B. (2018). Identification Parade: Current Position And Issues In Malaysia. In N. Nadiah Ahmad, N. Raida Abd Rahman, E. Esa, F. Hanim Abdul Rauf, & W. Farhah (Eds.), Interdisciplinary Sustainability Perspectives: Engaging Enviromental, Cultural, Economic and Social Concerns, vol 44. European Proceedings of Social and Behavioural Sciences (pp. 893-902). Future Academy. https://doi.org/10.15405/epsbs.2018.07.02.94

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Proof of the Identification Parade

21 Pages Posted: 3 Apr 2009

Chanakya National Law University

Date Written: April 2, 2009

The idea of Identification parade is to test the veracity of the witness in the question of his capacity to identify, from among several persons made to stand in a queue, an unknown person whom the witness had seen at the time of occurrence. In cases where the identity of the accused is not known to the eye-witness, it is essential for the investigating officer to get such suspect identified from eye-witness in a test identification parade, which has mainly two works - a) Ensures that investigation is proceeding on a right track, b) Ensures that the eye-witness's memory regarding the identity of the appellant. Further, there are certain principles with must be followed while conducting the identification parade. The establishment of these principles can be done examining the witnesses who conducted the identification parade i.e. they must be put to the cross examination by a magistrate. Further, if the manner of holding the identification parade throws suspicion on police, then the TI parade would not have any evidentiary value. It is also true that the presence of police officer and the public prosecutor at the place of the identification parade would not vitiate it, when there was no prejudice against the accused. The parade should be held by a magistrate or any officer who is not a police officer because the police should not take part in the identification parade. It can also be held by the panch (Ordinary person). Police can make arrangement for conducting identification parade but it must be done in the presence of the Panch or a magistrate as it does not come in the purview of sec. 162 of Code of Criminal Procedure, 1973.

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Test Identification Parade

• Criminal Law Blogs CRPC Evidence Act Subject-wise Law Notes
• Aishwarya Agrawal
• October 28, 2023

The primary purpose of a test identification parade is to determine whether the suspect is the actual perpetrator.

The concept behind conducting these identification procedures is to allow witnesses who assert they saw the culprits during the incident to pick them out from a group of other individuals without assistance from any external sources.

What is Test Identification Parade?

A test identification parade, is a procedure commonly used in criminal cases to identify the accused in a court of law. Witnesses play a crucial role in this process as it’s their responsibility to recognise the accused among a group of individuals presented in the parade.

The main purpose of this procedure is to assess whether the witness can accurately identify the accused from a group of people. This helps establish the witness’s reliability in identifying an unknown person in relation to the context of the crime.

Law enforcement frequently employs this method to verify the witness’s credibility, especially in cases where the witness has never encountered the accused except at the crime scene.

Purpose of Test Identification Parade

In the case of Ramkishan vs Bombay State [AIR 1955 SC 104], it was established that, during the investigation of a crime, the police are required to conduct identification parades. These parades serve the purpose of enabling witnesses to identify either the properties that are the focus of the offence or the individuals involved in the crime.

A test identification parade has the following key dimensions:

• It aims to assure the investigating authorities that a specific person, previously unknown to the witnesses, may have been involved in the commission of the crime or that a particular property was linked to the offence.
• It is also designed to provide evidence that supports and corroborates the testimony given by the concerned witness in a court of law.
• Additionally, it serves the interests of the accused by helping to eliminate the possibility of false implication.

Law Governing the Test Identification Parade

Section 9 of the Indian Evidence Act, 1872 and Section 54A of the Code of Criminal Procedure, 1973 , govern the procedure and legality of the Test Identification Parade.

Section 9 of the Evidence Act allows for the admissibility of the identification of the correct accused and related properties as relevant facts in a court of law. However, it does not make it mandatory for the accused to participate in the Test Identification Parade conducted by the investigating officer. This means that the accused cannot be compelled to take part in the identification process.

To address this issue, Section 54A of the Code of Criminal Procedure, 1973, comes into play. This section states that if the identification of an accused by a witness is deemed necessary for the investigation of an offence for which the accused has been arrested, the court with jurisdiction may, upon the request of the officer in charge of a police station, direct the arrested accused to undergo identification by one or more witnesses in a manner deemed appropriate by the court. In other words, the court has the authority to require the accused to participate in a Test Identification Parade.

It’s important to note that when the police conduct the test identification, they are bound by the provisions of Sections 161 and 162 of the Criminal Procedure Code (Cr.P.C). This is because the act of identifying by bodily gestures is considered equivalent to making statements to the police, as established in the Ramkishan case [AIR 1955 SC 104]. However, this restriction does not apply when a Magistrate conducts the test identification proceedings.

When Test Identification is Necessary?

Test Identification is necessary in cases where the victim or witness did not know the accused before the occurrence. In such situations, conducting a Test Identification Parade helps in the process of identifying the perpetrator.

When Test Identification is Not Necessary?

Conversely, Test Identification is not necessary when the accused is well known to the witnesses. If the witnesses are already familiar with the accused, there may be no need for a formal identification parade. It’s worth noting that Test Identification Parades are not always essential and their necessity can vary based on the circumstances of the case.

Evidentiary Value of Test Identification Parade

Indeed, Test Identification is generally considered not to be a substantive piece of evidence in legal proceedings. This is based on the following key points:

(a) The witness is required to identify the accused once again in court. The identification made during a Test Identification Parade is essentially a preliminary or pre-trial identification and must be reiterated during the trial.

(b) The evidence obtained from a Test Identification Parade is admissible under Section 9 of the Indian Evidence Act, but it can only be used to corroborate the substantive evidence presented by witnesses in court regarding the identification of the accused. In other words, the primary value of the Test Identification Parade lies in supporting and strengthening the witness’s testimony during the trial.

The earlier identification made by the witnesses during the Test Identification Parade is not considered to have independent value. It is the testimony and identification made by the witness in the court that holds substantive value.

These principles are supported by legal precedents, such as the case of Sampat Tatyada Shinde vs State of Maharashtra (AIR 1974 SC 791) and certain guidelines issued by the Hon’ble Calcutta High Court in Harbal Sheikh vs State (1991 Cr.L.J. 1258(1263)). In summary, Test Identification Parades serve as a tool to reinforce the reliability of witness identification but are not, on their own, considered substantive evidence.

Practical Steps for Conducting Test Identification Parades

Here are the practical steps for conducting Test Identification Parades:

• Verify Jurisdiction: Start by verifying if there are any reciprocal arrangements or circulars issued by the Honorable District Court regarding the jurisdiction to conduct test identification parade for that particular Police Station.
• Issue Summons: Issue summons to the witnesses, requiring their presence at the test identification parade.
• Coordinate with Jail Authorities: Address a letter to the jail authorities to make the necessary arrangements for the test identification parade, including securing the suspects.
• Seek Permission: Address a letter to the Honorable I ADJ (Additional District Judge) seeking permission to conduct the test identification parade and leave the headquarters for this purpose.
• Sec.161 Cr.P.C Statements: Insist on the filing of Section 161 Cr.P.C statements from the investigating officer along with a requisition for the test identification parade.
• Gather Personnel : Take a stenographer, if possible, equipped with a typewriter and an attender to assist with the proceedings.
• Record Statements: At the jail, record the statements of the witnesses separately. Also, record the statements of the suspects.
• Select Participants: Choose non-suspects for the lineup as well.
• Choose a Suitable Location: Select a suitable location with enough space to keep the witness who makes the identification separate from the other witnesses.
• Remove Unnecessary Personnel: Send away jail personnel or any additional police officers who are not directly involved in the proceedings.
• Consider Distinguishing Features: If there are distinguishing features among the suspects, select non-suspects who have similar features.
• Suspects’ Choice: Inform the suspects that they can choose their own positions within the lineup and can change their positions or dress if they wish. Note any changes in their position or dress immediately in the proceedings.
• Documentation: Get the proceedings typed in the jail itself.
• Transmit Records to Court: After completing the test identification parade, transmit the records to the concerned court for further legal processing.

These steps are essential to ensure that the Test Identification Parade is conducted accurately and in accordance with legal procedures. Proper documentation and adherence to protocols are crucial to maintain the integrity of the identification process in a legal context.

Precautions to be Taken While Conducting Test Identification

Test Identification Parades are subject to specific considerations and guidelines to ensure their reliability and effectiveness in legal proceedings. Here are some important points related to test identification parade:

Special Peculiarities

Test identification parade may lose its value if the person being identified has distinct characteristics or peculiarities that set them apart from others in the lineup. Magistrates conducting test identification parade should personally ensure that any visible marks or characteristics on the accused, which could aid in their identification, are covered and then mix the accused with others who share similar marks. Failing to take these precautions can discredit the identification evidence. [Dana Yadav vs State of Bihar – 2002 (2) ALD (Crl.) 729 SC; 2004 (2) ALD (Crl.) 83]

Test Identification Parade for Properties

There are specific guidelines for conducting test identification parades related to properties. According to Rule 35 of A.P. Criminal Rules of Practice, test identification for properties should be conducted in the Court of the Magistrate where the properties are stored.

Use of Statements during Test Identification Parade

Statements made by witnesses during test identification parade, conducted under Section 164 of the Cr.P.C., have no substantive value. They can be used for the purpose of corroborating (under Section 157) or contradicting (under Sections 145 and 155) the Indian Evidence Act.

Omission to State Description of Culprits in FIR

If the First Information Report (FIR) does not contain a description of the culprits, test identification may not be as useful. The accuracy and reliability of test identification parade can be affected in such cases. [Manepalli Anjaneyulu vs State- 1999 Cr.L.J.4375 (D.B)]

Conducting the identification process promptly is essential. An early opportunity to identify the accused tends to minimise the chances of the witness’s memory fading due to a long lapse of time. This helps maintain the reliability of the identification.

Exception for Test Identification Parade

Exceptionally, Test Identification Parades may not be necessary in certain situations and this exception has been clarified by various judgments from the Supreme Court of India:

In State of H.P. v. Prem Chand, the Supreme Court held that a test identification parade is not required when the witness already knows the accused and can identify them in the court of law. If there is a pre-existing familiarity with the accused, a formal test identification parade may not be essential.

The Supreme Court in Ramesh Kumar v. State of Punjab reaffirmed the principle established in the Prem Chand case, emphasising that test identification parade is unnecessary when the witness is already acquainted with and can identify the accused in the courtroom.

In the case of State of A.P. v. V.K. Venkata Reddy, the Supreme Court ruled that the testimony of a witness in a court of law holds the substantive value and the identification of the accused in the test identification parade serves only to confirm the testimony presented in court.

The Supreme Court in Dana Yadav v. State of Bihar reiterated its position, emphasising that the primary purpose of test identification parade is to provide corroboration for the court identification of the accused. Test Identification Parade is viewed as a supporting mechanism for the identification made during the trial.

Landmark Judgments on Test Identification Parade

The Supreme Court of India has issued several significant rulings regarding Test Identification Parades, further clarifying the legal framework and procedures:

Hare Kishan Singh v. State of Bihar

The Supreme Court held that when a witness has failed to identify the accused at the test identification parade, the court identification of the accused by the witness becomes unreliable. In such cases, the court identification may be considered useless and it can weaken the prosecution’s case.

Kishore Prabhakar Sawant v. State of Maharashtra

The Supreme Court ruled that when the accused is apprehended red-handed at the crime scene, there is no need for a Test Identification Parade. In such instances, the circumstances of the arrest provide sufficient evidence.

Kiwan Prakash Pandurang Mokash v. State of Maharashtra

The Supreme Court held that if the accused refuses to participate in a Test Identification Parade, an adverse inference of guilt can be drawn against the accused under Section 54A of the Criminal Procedure Code, 1973.

Suraj Pal Singh v. State of Haryana

The Supreme Court clarified that the accused cannot be compelled to participate in a Test Identification Parade. If the accused chooses not to undergo the test identification parade, they do so at their own risk.

State of Maharashtra v. Suresh

The Supreme Court emphasised that Test Identification Parades are primarily held for the benefit of the investigation, rather than being conducted solely for court purposes. Test Identification Parade serves as a tool to assist in establishing the identity of the accused.

These judgments provide essential guidance on various aspects of Test Identification Parades, including their reliability, necessity and the consequences of the accused’s participation or non-participation in the test identification parade. They contribute to the legal framework and understanding of test identification parade in Indian jurisprudence.

A Test Identification Parade is a legal procedure used to verify the accuracy of a witness’s identification of a suspect in a criminal investigation. During this, a group of individuals, including the suspect (referred to as the accused), is presented to the witness. The witness is then asked to identify the person they believe to be the perpetrator.

Test Identification Parades are typically conducted by law enforcement under the guidance of a magistrate. The primary goal is to determine whether the witness can correctly identify the accused without any external influence. The witness’s identification during this may serve to corroborate their testimony in court but is not considered substantive evidence on its own.

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• Criminal Law
• Criminal Procedure Code
• Evidential Value
• Test Identification Parade

Understanding Test Identification Parade

This article is written by Abhishek Sahu.

Table of Contents

What is Test Identification Parade and its Purpose?

It is a process that is mostly used in criminal cases to identify the accused before the court. The role of the witness is very important in the test identification parade because it is the responsibility of the witness to identify the accused through the parade. 

The idea of this process is to check whether the witness can identify the accused among the various several individuals. This will establish the fidelity of the witness in identifying an unknown person related to the context of the offense.

Law enforcement often uses this mechanism to establish the credibility of the witness and it is mostly used in cases where the witness has never seen the accused except on the crime scene. [1]

Law governing the Test Identification Parade

Section 9 of the Indian Evidence Act, 1872 and Section 54A of the Code of Criminal Procedure, 1973 deal with the procedure and the legality of the Test Identification Parade.

Section 9 of the Evidence Act makes the test of identification of proper accused and properties admissible and relevant facts in a court of Law, but this act does not make it obligatory for the accused to present for the Test Identification Parade by the investigating officer. [2]

The problem of Section 9 of the Evidence Act is tackled in Section 54A of the Code of Criminal Procedure, 1973. This section says that when the identification of an accused by the witness is considered necessary for investigation of such offense in which the accused is arrested, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the accused so arrested to subject himself to identification by witness or witnesses in such manner as the Court may deem fit. [3]

Procedure to Follow

For identification of accused by parade.

• As mentioned above Witness plays an important role in the Test Identification Parade when the witness informs the Officer in Charge that he can identify the accused or other persons connected with the offense then the officer in charge will arrange for the Test Identification Parade.
• Officer In-charge should ask the following questions to the witness to create nearly the same environment in which the witness has seen the accused and should mention it in the case diary. These questions are:
• Accused description.
• the extent of prevailing light at the time of the offence (daylight, moonlight, flashing of torches, burning kerosene, electric or gas lights, etc).
• details of opportunities of seeing the accused at the time of the offense; anything outstanding in the features or conduct of the accused which impressed him (identifier).
• distance from which he saw the accused.
• the extent of time during which he saw the accused.
• Officer in charge or any other police officer should be expunged from the real Test Identification Parade.
• The judicial Magistrate shall commence the Test Identification Parade.
• If Judicial Magistrate is not available then arrange for two or more respectable members of the society. But these Officer in charge has to make sure that these people don’t have any link to the accused or any witness.
• An identification parade should be commenced immediately after the arrest of the accused without any delay.
• If a case has more than one accused and only one or few accused got arrested then the identification parade of the arrested accused shall be arranged don’t postpone the parade. And as the remaining accused got arrested Identification parade should be arranged for them as well.
• Inform the accused person that he/she will be put up for the Identification Parade.
• Witnesses or Witnesses should be kept out of the sight of the accused. And make sure that witness and people standing for the parade has no mode of any communication or signals.
• Accused should be mingled with the different look-alike in the ratio of 1:5 or 1:10 and they all should stand in a line.
• In the case of many witnesses, they should be call one by one and asked to point out the accused if any.
• There should be a complete record of the proceeding even the mistake committed by the witness or the witnesses in identifying the accused. 
• Care should be taken that the two-witness won’t mingle with each other. Especially if identification is already done by one witness and another witness is still yet to go for identification. This will beat the whole purpose of the Identification Parade.
• If officials doubt that witnesses had talked to each other then they have to reshuffle the whole parade and the accused is made to take different positions.
• If the accused has any objection while the parade it should be well recorded.
• After the Test Identification Parade is over a duly sign certificate must be given by the Magistrate who has conducted the Parade.
• Because identification is done in jail jailor should be informed about the Identification Parade on the admission of the suspect.
• And clear instruction should be given to the jailor to not change the appearance of the admitted accused or his clothes before the identification parade.
• If the witness is injured then the officer should take written permission from the concerned medical authority before bringing the witness for the Test Identification Parade to identify the assailant.
• If permission is given by the medical authority, then the officer should arrange the transport of the witness immediately. 
• If the witness is not fit and cannot be taken to the nearest court, police station, or jail then the Identification Parade can be organized on the premises of the hospital.
• If the witness is declared unfit to be present at the Identification Parade, then the Officer In-charge should wait until the medical authority gives the proper certificate that the witness is fit for the identification parade.
• And if the witness can’t attain the parade and identify his assailant because he is unwell then the officer in charge should submit the evidence which suffices the reason why the parade can’t be held. [4]

Identification of accused by Photograph

• A witness can be asked to identify the accused from the photograph when the accused is not in custody. 
• Every police station has a photographic record of the history sheeters. These photographs can be shown to the witness for identification.
• A bunch of photographs should be shown to the witness among which there is the real photograph of the accused. And the witness should be asked to identify the accused from among these photographs.
• It should also be ensured that the photograph of the accused does not become public through media or some other channels.
• But after the accused is arrested regular identification parade should also be held. [5]

Test Identification of the Property

• In criminal cases sometimes identification of the object used in the crime becomes necessary, for this purpose Identification of Property is done.
• When a witness claim that he can identify the properties connected with the case under investigation Police Officer In charge of the case should ask the following questions:
• Description of the property.
• If it has any unique identification mark.
• If the witness has seen this property earlier under any circumstances.
• If the witness has handled the property earlier.
• Or any other relevant circumstances.
• An object which does not have any special Identification Mark has more evidential value than the object that bears Special Identification Mark.
• Find out whether or not bargaining struck at the time of the purchase.
• Reason- The purchase of the property at the lower or the higher price from the market value on that particular day without any bargain will share some light on the nature of the transaction and the intention of the buyer or seller.
• The date, Time, and Place of such purchase should be mentioned and registered in the dairy.
• Reason- The date will help in establishing the timeline between the time of purchase and the time of theft. And the time and place will help in finding whether the transaction was bonafide or not.
• Officer in charge should make a clear record of the following thing in the case diary:
• the nature of the article
• age of the seller,
• his status in life
• his social group,
• age of the receiver,
• his status in life.
• Reason- These circumstances will help to find that the transaction was honest or dishonest. If a normal person makes a sale of a valuable article like jewels which is not even worn by anyone in his social group also then this looks suspicious on the part of the seller. If a young person makes a sale of something really valuable then it’s suspicious too.
• It should be mention clearly in the case diary by the officer in charge of the places search to find the stolen property and how it was recovered. Evidence that the stolen property was buried underground or was concealed in the walls or secreted in back yards or houses, etc., will help to establish the nature of the property. 

Process after Test Identification Parade is finished

• After the Identification Parade of person or property is over it should be verified and ensured by the investigation officer that the proceeding of the parade matches the details recorded by him/her in the case diary.
• The Investigating Officer should remember that the Magistrate who recorded the Identification Parade of the accused person is cited as a witness in the memo of evidence to speak about the conduct of the Identification Parade and to mark the report of the parade. [6]

Evidential Value of Test Identification Parade

Identification of the accused by the witness in the Test Identification Parade is a shred of primary evidence but not substantive evidence it is used to support the identification of the accused by the witness in a court of law. On the other hand, if the witness identifies the accused in the court of the law, then it is substantive evidence. 

Interestingly if the Test Identification Parade is not held earlier and the witness identifies the accused for the first time in the court of law then the Identification Parade is no longer required if the court found it trustworthy.

The general rule is that the witness identifying the accused in the court alone is not the basis of the conviction of the accused unless it is ratified by the previous Test Identification Parade. But there are some exceptions to this rule.

Exception for Test Identification Parade

Supreme Court in the case of State of H.P. v. Prem Chand held that Test Identification Parade is not necessary when the witness already knew the accused and identify the accused in the court of law.

This judgment was again upheld by the Apex Court in the case of Ramesh Kumar v. State of Punjab where it again clarifies that the Test Identification Parade is not necessary when the witness already knew the accused.

Supreme Court in the case of State of A.P. v. v.K. Venkata Reddy held that the testimony of a witness in the court of law is the substantive testimony and identification of an accused in the Test Identification Parade is only the confirmatory of the testimony made before the court. 

Supreme Court in the case of Dana Yadav V. State of Bihar upheld its decision and again made it clear that the sole purpose of TIP is to lend corroboration to the court identification of the accused. [7]

Landmark judgments on Test Identification Parade

Supreme Court in the case of Hare Kishan Singh V. State of Bihar [8] held that the Court identification of the accused by the witness is useless when the witness has already failed to identify the accused at the Test Identification Parade.

Supreme Court in the case of Kishore Prabhakar Sawant V. State of Maharashtra [9] held that if the accused is caught red-handed from the Crime Scene, then no question of Test Identification Parade arises.

The Supreme Court, in the case of,  Kiwan Prakash Pandurang Mokash V. State of Maharashtra [10] held that if the accused refuses to appear for Test Identification Parade, then an adverse inference of guilt can be drawn against him under Section 54A of the Criminal Procedure Code, 1973.

Supreme Court in the case of Suraj Pal Singh V. State of Haryana [11] held that the accused can’t be compelled to line up for Test Identification Parade and if the accused refuses to submit himself for Test Identification Parade, he does so at his own risk.

Supreme Court in the case of State of Maharashtra V. Suresh [12] said that the Test Identification Parade is done for the benefit of the investigation they are not primarily held for the court.

Test Identification Parade might not be substantive evidence but it plays a very vital role in the investigation. It helps the investigating officer to ascertain that the investigation is going in the right direction and help me to tailor the course of further investigation.

Like any other law or test this test also has its disadvantages like some critics say that human memory can be easily manipulated and everyone has their way to analyze the scene. So, witness identifying the accused might not always be accurate and it affects the course of the investigation and also interrupt the process of justice.

This can be improved by implementing strict and clear guidelines for the investigation officers which will be fair for both the accused and the witness. Improved process will help the court in delivering the just judgment.

• Smt. L.Devi Rathna Kumari, Judicial Magistrate of I Class, Spl. Mobile Court, Srikakulam, 

     TEST IDENTIFICATION PARADE, District Court (Nov. 13, 2017, 11:59 AM), 

      https://districts.ecourts.gov.in/sites/default/files/mct.pdf

• India Evidence Act, 1872, No. 01, Act of Parliament, 1872(India).
• The Code of Criminal Procedure, 1973, No. 02, Act of Parliament, 1974(India).
• Sri G. Prabhakar, Addl. Judicial Magistrate of First Class, Nandigama, CONDUCT OF TEST IDENTIFICATION PARADES FOR SUSPECTS AND PROPERTY RECOVERED DURING INVESTIGATION, District Court, https://districts.ecourts.gov.in/sites/default/files/Third%20Topic_1.pdf

       https://districts.ecourts.gov.in/sites/default/files/mct.pdf

• HARE KISHAN SINGH V. STATE OF BIHAR, AIR 1988 SC 863.
• KISHORE PRABHAKAR SAWANT V. STATE OF MAHARASHTRA, (1999) 2 SCC 45.
• KIWAN PRAKASH PANDURANG MOKASH V. STATE OF MAHARASHTRA, ILR 1974 BOM 337.
• SURAJ PAL V. STATE OF HARYANA, (1995) 2 SCC 64.
• STATE OF MAHARASHTRA v.SURESH, (2000) 1 SCC 471.

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Test Identification Parade: A Critical Analysis In India Practice

• Author(s): Asia Pacific Law & Policy Review
• Publication Date: February 21, 2020
• Tags: Code of Criminal Procedure , Dasthagir Sab v State of Karnataka , Indian Evidence Act , Test Identification Parade , TI Parade

Contents of this Post

Written by Aakash Sai Gundu* & Pranav Sai Tirunagiri**

*3rd Year BBA LLB Student, Symbiosis Law School, Hyderabad

**3rd Year BBA LLB Law Student

Test identification parade is used as a means to examine the truthfulness of the witness and his ability to identify unknown persons. The test is generally not necessary to identify the accused if all the witness knows the accused and can recognise the accused in moonlight and lantern. [i] Test identification parade is a useful tool in the investigation and with the right procedure it can be accepted as evidence in the court of law as corroborative, the purpose is primarily to test and strengthen the existing substantial evidence of the witness in court. If the witness cannot name the accused and can only identify him on the basis of his physical appearance then the Test cannot be taken into consideration as held in the case of Ahmad bin Salam v State of Andhra Pradesh [ii] , In this case, the witness could recognise the person who attacked the deceased while they were all lined up.

The corroborative value of test identification parade is absolute and its use of test of identification parade as substantial evidence is obsolete, the test identification has only corroborative value as evidence. As explained more detailed manner in the cases section of the paper, in the case of State of Himachal Pradesh vs Lekh raj it was mentioned that “Test identification is considered a safe principle of judiciousness for authentication of the sworn testimony of various evidentiary value people appearing as witnesses in court with regards to the character of the accused. There may anyway be special cases to this general principle when for instance the court is intrigued by a specific observer on whose testimony it can securely depend without such or other corroboration.” [iii]

PROVISIONS OF THE INDIAN EVIDENCE ACT AND THE CODE OF CRIMINAL PROCEDURE

Indian Evidence Act Section 9 allows the identification of the accused as well as the proofs admissible in the courtroom though there is the absence of compulsory process of sending the suspected for identification parade, in order to facilitate such process, section 54a of Code of Criminal Procedure granted the process to send the suspected for test identification parade.

Section 54A allows the person suspected to be sent for test identification parade when the appropriate court has the right to send the person to be a subject of test identification parade by directing the person itself or the police officer to take the procedure required.

Article 20(3) of the Indian Constitution which is about no person should be compelled to be a witness against himself is not violated with test identification parade, it doesn’t mean appearing for test identification parade is giving testimony.

EVIDENTIARY VALUE:

The parade conducted at the investigation cannot be considered as important substantial evidence and also conviction can be founded on the sole reason of test identification parade, the witness identification in the court is required in order to convict. And the same person identifying in the parade if identified in court as well, it doesn’t really change any extra value.

THE NECESSITY OF HOLDING OF TEST IDENTIFICATION PARADE- WHETHER NECESSARY OR NOT:

When Required : Test Identification is usually required when the dispute arises as to that of the identity of the accused, which is required in situations where the victim never saw the accused inn life before the incident. When the act of crime was done to the victim, usually, sometimes, victims can see the criminal, identify him at a later stage with various mechanisms as body structure, height, etc, so if they reasonably saw the person who committed the crime and says to the investigating officer they can identify the person, then in such cases test identification parade is conducted. And the parade should be held closest as possible whenever possible that too in front of a magistrate. [iv]

When Not Required : Test identification is not required when both witness and accused know each other as they reside in the same place. The reason for test identification is to support and examine the genuinely of that evidence. It is in a way assumed to be a safe rule of authenticity to normally look for corroboration of the testimony of a witness in court to recognise the identity of the accused strangers to them in the form of earlier identification proceedings. This rule of authenticity is identified with exceptions.

For example , if the court finds any other evidence where the court can safely rely on and in doing so the investigation can be side-tracked while no party has the right to question or initiate test identification parade. Test identification parade is not to be considered as substantial evidence as laid down under sec162 of the act and non-performance in doing so wouldn’t affect the admissibility of evidence in court. In a few cases, however, it can be admissible even without corroboration. The aforementioned understanding of the purpose and value of the test identification parade was given by the supreme court in the case of Heera v state of Rajasthan. [v]

PROCEDURE AND PRECAUTIONS OF HOLDING TEST IDENTIFICATION PARADE:

Procedures : It is the right thing to do to hold the parade as soon as possible, so that the victim doesn’t forget the details, as soon as the suspect is arrested the parade has to be conducted. The magistrate should be the one along with police when a test identification parade is being conducted. The identifier should be able to identify both in test identification parade as well as the court, as parade identifying is not considered substantial evidence as per law. Also, the important aspects to remember are that the accused should not be knowing the witness or victim before committing a crime, FIR has to be given with all aspects remembered, victim or identifier must have seen the person for some time as in order to identify him later on and in also well-lighted area.

Precautions : The police should leave the place to let the identifier identify the person, after they make the necessary arrangements, Except for the magistrate and identifier, no police should be in the place. The important aspect is a similar person such as the accused must be kept along with the accused in a test identification parade at the possible ratio of one isto five and a maximum of one isto ten. Witnesses are not allowed to be during a parade and to be kept far away from the place of taking place of the test identification parade. Accused has to change positions after each witness identifying is done. \

THE TEST OF CREDIBILITY:

The credibility of the identification done by the identifier a regards to the test identification parade, the credibility varies from circumstance to circumstance and case to case. The time, severity of the incident acts done by the criminal, such traumatic experiences when done, it registers a permanent scar in the mind of the victim or identifier, that they remember the person who did the act clearly. Even time of the day when the act was committed, place of occurrence, no of people involved, everything comes in to play. If done during the day time in an open place, it can be that there was enough lighting for the victim to clearly identify the person, similarly, whether the persons covered their faces, etc all comes into consideration.

In instances where the persons covered their faces and other parts, the identification is not deemed suitable as the identifier cant identify the person, as well as instances where a very huge gap between commission of act and test identification parade, it is court view that it decides whether parade to be held or not depending on circumstances of the case. In the case of Ramanbhai Naranbhai Patel vs State of Gujarat [vi] , the act of assault was done in broad daylight, the court said that when happened in broad daylight, it could that eyewitnesses easily remember and identify the person who committed the act, so conviction was appraised on the basis of identification through Test Identification Parade.

DELAY AND IRREGULARITY IN HOLDING TEST IDENTIFICATION PARADE:

The procedure laid down is that the parade must be conducted as soon as the accused is in custody, but sometimes due to unsatisfiable reasons, non-availability of the identifier, and maybe sometimes magistrate. In such a case of Muralilal Jivaram Sharma vs. State of Maharashtra [vii] the officer who is investigating the case kept writing to the magistrate, the delay as 2 months, the magistrate was not available due to court duties, yet the parade held was valid and considered. But the truth is a delay in the time of conducting the test identification parade diminishes the authenticity or truthfulness. Irregularity in holding also is not correct except reasons are accepted by the court. The test identification parade when necessary should be held as soon as possible.

CRITICAL ANALYSIS OF TEN CASES DECIDED BY THE SUPREME COURT

Raju manjhi v. state of bihar [viii].

The judgment of this landmark case was delivered by Honorable Mr Justice N. V. Ramana and Honorable MR. Justice Mohan M. Shantanagoudar. The lower court from which was appealed was from the High Court of Patna. The facts are that on a night in the 1999 year, almost ten to twelve people aged between twenty and twenty-six years robbed into the house of Kamdeo Singh and stole items from there, the complaint was registered, and an investigation was started by the police. Injured were sent to hospital after places of injury was noted. Many witnesses were examined, it was argued the lower courts followed the filmy type of story and continued investigation. During test identification parade, any identification was not done by the witnesses, it doesn’t mean prosecution case against accused is in a false way The identification test is conducted just in order to help the investigation officer in a better way and no other purpose. The identification parade goes to the stage of the investigation. There is nothing mentioned in the CrPC which accommodates the investigating agency to hold or gives a right to the accused to demand a parade. They are not considered substantive evidence and these parades are essentially governed by Section 162 of the CrPC. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The decision in matters as to such identification should be a matter for the Courts to decide. [ix]

Rajesh Govind Jogesh   v .  State of Maharashtra [x]

The appellants have been accused of committing offences under section302,504 read with 34 of IPC. They have been accused to have committed the murder of the deceased joy Kutty in Mumbai, Vashi. The appellants were convicted under sec 302 and sec 34 of the IPC by the sessions judge. The appellants preferred an appeal in the high court and the high court rejected the appeal, one of the appellants contended with the judgment saying that his identification was not proper as it was ultra vires the established procedure in identifying the convicts.

The appellants have allegedly attacked Joy Kutty with swords and choppers and the respondents saw him running along the highway after the attack had happened they admitted him in a hospital where he was declared dead the sessions court has established that it is a case of murder as swords and chopper prove so, The high court upheld the sessions court decision.

One of the appellant Rajesh Govind Jogesh has claimed constantly that he was not connected to the crime in any manner beyond all reasonable doubts, he has argued that his identification parade was held beyond the time period and no person with the resemblance of the aforementioned appellant was included in the parade and thus furthering that the test identification as not valid. The appellant no 2 did not resemble the features the like long hair and beard e.tc.

Issue before the Court

Whether the test identification parade held was valid pertaining to Rajesh Govind Jogesh as the parade was held with unreasonable delay and he did not match the description given by the appellants in the F.I.R.

The accused were charged due to section 302 and section 34. Of the IPC and the High court has rejected the appeal as the evidence regarding the weapons used and the evidence collected was proving the guilt of all the accused the high court upheld the decision of the trial court describing that test identification parade can, in this case, be used as evidence for all the accused members.

In this case, the High court has given this consideration based on the facts that though there was a delay in the test identification parade the evidence containing the blood scrapes of the weapons and the identification parade of all the accused proved the guilt and common intention of all the members involved in the crime and the counsels argument that the person was not identified acc. to the description cannot be accepted as the all the other evidence prove otherwise that the accused are guilty beyond reasonable doubt.

Decision of the Court

In the light of events established by both the courts the clarity regarding the test identification parade’s acceptability has been revised for the case as a special one since the case involved proving common object of all the accused, it had taken the liberty of accepting the parades evidence as it was unexpectedly beyond a reasonable time. Making the test identification parade’s important even though it was unexpectedly delayed.

State of A. P. v. Dr M. V. Ramana Reddy [xi]

The appellants were accused of murdering a politician, trade union worker who was sleeping on the terrace of his house. The deceased was sleeping with the respondent who was his daughter, at 3:00 in the night the respondent was held against her bed while the accused were stabbing the deceased and after they’ve finished they tried stabbing the respondent and the respondent escaped while they were stabbing her and as a result, she inflicted injury on her finger. She rushed down to her home informing her mother and neighbours about the incident and the neighbours had called the police. The police have taken up the investigation and the police put up 19 accused before the trial in the sessions court the court then accordingly testing the evidence convicted 3 appellants for murder u/s 302, 148 and 324 of the IPC and sentenced all the three to life imprisonment for the murder of Ram Subba Reddy. The convicted persons appealed to the high court, the high court acquitted them and so they filed to the supreme court under special leave petition.

Whether the acquittal given by the High court is acceptable as the reasons specified, I delivering the judgment was ambiguous.

The accused were accused and charged under section 302,324 and 148 of the IPC

Court’s Reasoning

The high court in this matter has referred to the following reasons in giving the judgement the high court has specified that the test identification parade taken by the prosecution was taken 5. Days later of the scheduled date. The high court also pointed out to the doubt whether the respondent was present on the terrace during the occurrence of the event, the supreme court in this case established that the respondent was present on the terrace while the event had occurred and hence her test identification parade is acceptable as evidence.

This judgement was one of its kind where the high court’s decision was ambiguous and the test identification delayed can be accepted and the judge gave a clear insight that if the test identification has been delayed it cannot consider it as evidence

Heera and Anr v. State of Ra jasthan [xii]

In this case, all major judgments related to test identification parade are referred by the court in order to give the decision for the case. It was that 7-armed people came and hit members working at a petrol station at 2 am in the morning, threw stones due to which glass broke, and due to the stone, they woke up. They beat the people with lathis and robbed 12000 rupees from them, even when the neighbour came to see what was happening, he was also a tacked with lathis. Recovery was made of items as per section 27 etc. was admissible, Test identification parade was conducted by a civil judge and magistrate, the necessary terms of conducting a parade was told by the court, the court said something like test identification parade is only tested and has no place for provision in court or evidence. Accused were identified, all requisite procedure was adhered to and the appeal was dismissed as there was nothing wrong in the judgement of the lower court, and identification parade is right in the case.

Kanta Prasad v. Delhi Administration

In the case of Kanta Prasad, it was about the topic of appraisal of evidence on Test Identification Parade, the court aid that, maybe identification parade was not conducted, but it doesn’t mean because of such non conducting of an identification parade, doesn’t they can’t be witness in court identifying the same person. The persons accused were known to everyone except the people identifying them, they were known to police as well, it must have been conducted for the persons who did not know them to identify them through test identification parade but such test identification parade was not conducted, but the identification was court was allowed even though no such test identification was done before the magistrate The Court said unless exceptional grounds are there for the case to be re-assessed but on this matter, it is not required. [xiii]

Awadh Singh v. State [xiv]

In this case, the appellants owned a land growing pynes across a river, on the day of occurrence the respondents were a mob they entered the pyne and told the appellant to continue the digging but the appellant stood up to his right and stopped the digging the angry mob started assaulting on the appellant causing injuries and the appellants representatives. FIR was lodged later that day and the case was registered the magistrate of the court held that test identification parade has to be held and directed the local police officer to do so the police officer sent a letter stating the magistrate is inclined to the accused because the test identification proves it. The magistrate then held that the test identification parade is in no way in. an inclination to the accused as the appellant and the respondents were strangers till the day of occurrence and has held that in this case test identification parade was vital as the appellant has seen the respondents and this can be used as a witness. IN this case, the court held the importance of test identification parade as the only way the accused were to be identified is by the victims who were assaulted.

Dastagir Sab and another v. State of Karnataka [xv]

In this case, the appellant was living in a village and the respondents came to her house three times asking for water, cycle pump the appellant said she had no cycle pump and sent them. on the same day at 12:30 the appellant went out to wash clothes and the respondents nabbed he put a cloth in her mouth and committed rape the girl couldn’t alert others as she had a cloth in her mouth. The appellant managed to remove the cloth and started crying and the respondents fled the scene her father came running, the appellants father called in before the panchayat raj, and allegedly wanted to hold a test identification parade the same has been referred to the court where the court held that test identification parade, in this case, cannot be used as substantial evidence referring to Malkhan Singh v State of Punjab case. The appeal lied in the SC where the court declared that her identification parade can be genuinely accepted in identifying the accused as she was the only witness to her case and since the appellant had the time to see the offenders her identification parade can be accepted as evidence.

State of U.P. v. Girija Shankar Mishra [xvi]

In this case, the respondents and the appellants were husband and wife the husband is a politician and the wife is a social worker the respondent had an illicit affair with a police officer and both the husband and wife knew about it one day while the appellants were sitting in their house the assailants with rifles came running seeing this the appellants ran inside the house and the assailants killed three people the appellant managed to escape and filed a fir on the assailants and she has claimed that the respondent has conspired with the assailants the court held that there should be test identification parade for the appellant to identify the assailants but there was an unreasonable delay in holding the test identification parade but still the court has considered the identification even if it was late under a  special circumstance and here, in this case, the respondent had political power and the court considered that he could manipulate the investigation, and therefore the court held the test identification parade and identified the assailants and accepted the appellants witness in the case.

State of Maharashtra v. Suresh [xvii]

In this case, the appellants daughter who was four years old was kidnapped from the appellants house and was raped and killed and was thrown in a farm the appellants father upon the deceased absence went searching for the deceased after she was kidnapped not finding her he lodged a fir in the police station the police investigated the case and found the deceased in a farm nearby the post mortem revealed that the girl was sexually assaulted and that she had bruises on her face which meant she was kidnapped, the doctors also concluded that the person who had committed the offence would have bruised his sexual parts after examining the respondent had bruises on his sexual organs, to corroborate to the case a shopkeeper has seen the man with a crying girl on the day of occurrence and his test identification was held to be valid as he was a witness to the case connecting all the evidence the high court has convicted the accused under section 302 of IPC for life imprisonment. The father also portrayed suspicion on the accused to the police and this is a case which gives value to test identification as corroborative evidence.

Mohd. Jamil v. State of Madhya Pradesh [xviii]

In this case, the appellant was married to the accused and the appellant had a sister, the accused on several occasions tried to assault the deceased, but the deceased was gratifying the accused and consoling him after a few years the appellant divorced the accused and the accused after the next year came to the place of work of the deceased was a nurse in a hospital and shot her with a kattha (Indian made pistol) in the head there were two witness who could identify the accused. the witness then held an identification test and has identified the accused but there was a dilemma as to whether the identification parade can be accepted as substantive evidence and in this case, the court held that the accused shot the deceased in broad daylight and he remains the only evidence in the case and referring to the case of Dasthagir Sab v State of Karnataka the court held that the identification test is valid evidence against the accused. [xix]

CONCLUSION AND SUGGESTIONS

A test such as Test Identification Parade is very much necessary and it makes sure to direct the investigation to the righteous way. Test identification parade maybe just corroborative evidence, which is along with actual evidence when submitted in the court. Though the two-judge bench in the case of Raju Manjhi v.  State of Bihar [xx] opined that Test Identification parade is no way substantial evidence but it just to be considered for the investigation agency for them to drive in the right way to apprehend the victims is just to help the investigation agency and no way about subnarial evidence. [xxi] To summarize the part, test identification helps for the investigation agencies and not evidence in court. The magistrate mostly due to their duty as well as the police in making arrangements for the test identification parade, but if misidentified by the identifier, the entire investigation is side-tracked, and there are reasonable chances the investigation may not be solved, this is the drawback to test identification parade. It can be said that recommendations to police officers regarding the parade that the specific course of action to the investigators must be clearly explained and police not involved during the time of test identification parade happening. [xxii] The government should increase more features for conducting test identification parade, it is done in normal places, but it should have tinted windows, so those main persons can see what’s happening instead of just magistrate, etc. Over the 100’s of years, a test identification parade was active in India, and it really helps investigation faster and solving the cases sooner.

[i]   Lal Batuk, Law of Evidence Central Law Agency, Allahabad, (2010)

[ii] 1999 AIR (SC) 1617

[iii] Cr. Appeal No. 381 of 2011. In High Court of Himachal Pradesh, Quoted by Justice Tarlok Singh Chauhan and Justice Chander Bhusan Barowalia.

[iv] Biray Singh vs. State, 1953 Crl.L.J., 1817 (Allahabad

[v] AIR 2007 SC 2425

[vi] 1999 AIR SCW 4770

[vii] AIR 1997 SC 1593

[viii] 2018 SCC Online SC 778

[ix] https://blog.scconline.com/post/2018/08/03/test-identification-parade-not-obligatory-failure-does-not-make-evidence-of-identification-inadmissible-in-court-sc/

[x] AIR 2000 SC 160

[xi] (1991) AIR SC P.2154

[xii] AIR 2007 SC 2425

[xiii] AIR 1958 SC 350

[xiv] 1954 Crl.L.J., 1546 (Patna)

[xv] (2004) 3 SCC 106

[xvi] 1985 Cri L.J. NOC 79 (Del) (DB)

[xvii] (2000) 1 SCC 471

[xviii] 2005 Cri. L.J. 1470

[xix] (2004) 3 SCC 106

[xx] 2018 SCC Online SC 778

[xxi] Anand, Ravi, Proof of the Identification Parade (April 2, 2009). Available at SSRN.

[xxii] Chiwinga Augustino, “Analysis and Effectiveness of Identification Parade in the Administration of Justice in Tanzania”.

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Test Identification Parade. {Indian Evidence Act 1872

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