Justice P.S. Narasimha, Justice Manoj Misra, Supreme Court
TIP Report Would Lose Its Evidentiary Value If Witness Identifying Person Or Article Is Not Examined During Trial: SC
|The appeal before the Apex Court was filed against the judgment of the Chhattisgarh High Court confirming the conviction of the appellant under the Indian Penal Code, 1860 and Arms Act, 1959.
The Supreme Court observed that a test identification parade under Section 9 of the Evidence Act, 1872 is only corroborative evidence and if the witness who identified a person or an article in the TIP is not examined during trial, the TIP report which may be useful to corroborate or contradict him would lose its evidentiary value for the purpose of identification.
The appeal before the Apex Court was filed against the judgment of the Chhattisgarh High Court confirming the conviction of the appellant under Section 395 read with Section 397 of the Indian Penal Code, 1860 and Section 25 of the Arms Act, 1959.
The Division Bench comprising Justice Pamidighantam Sri Narasimha and Justice Manoj Misra said, “...unless the witness enters the witness box and submits himself for crossexamination how can it be ascertained as to on what basis he identified the person or the article. Because it is quite possible that before the TIP is conducted the accused may be shown to the witness or the witness may be tutored to identify the accused.”
AOR Manish Kumar Gupta represented the Appellant while AOR Apoorv Shukla represented the Respondent.
Factual Background
The incident dates back to the year 1993 when one person sitting behind the driver in a Transport Bus put a country-made pistol on the temple of the driver and ordered him to stop the bus. When the bus stopped, 8 men started beating the passengers and robbed them of their belongings. A shot was also fired at one of the passengers who sustained injuries. The culprits thereafter escaped with looted articles. The driver took the bus to the Police Station where an FIR was lodged. The appellant was thereafter arrested. He was carrying a countrymade pistol, which had five cartridges, two live and three empty. He was put to the test identification parade (TIP) wherein he was identified by the bus driver and the conductor.
The Trial Court held that the factum of dacoity was duly proved and held the appellant guilty. However, the co-accused was acquitted. The appellant preferred an appeal before the High Court, though without success. Aggrieved by the dismissal of the appeal, the appellant approached the Apex Court.
Reasoning
The Bench noticed that the running bus, carrying 35 passengers, was looted by about eight armed men but only two including the appellant were put to trial. No looted article of any kind was stated to have been recovered either from, or at the instance of, the appellant or the other accused. The country-made pistol stated to have been recovered from the appellant at the time of arrest was not connected to any empty cartridge or bullet, that might have been found at the spot or extracted from the person injured. Neither the FIR nor the statements of eyewitnesses recorded under Section 161 CrPC named the appellant or for that matter any other accused.
On the law relating to the evidentiary value of the TIP conducted during investigation, the Bench held that a test identification parade under Section 9 of the Evidence Act, 1872 is not substantive evidence in a criminal prosecution but is only corroborative evidence.The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identity.
Referring to the judgment in Rameshwar Singh v. State of Jammu and Kashmir (1971), the Bench said, “Thus, if the witness who identified a person or an article in the TIP is not examined during trial, the TIP report which may be useful to corroborate or contradict him would lose its evidentiary value for the purposes of identification…Be that as it may, once the person who identifies the accused during the TIP is not produced as a witness during trial, the TIP is of no use to sustain an identification by some other witness.”
In the instant case, though it was proved by PW-7 (i.e., the Naib Tehsildar who executed the TIP) that the TIP for identifying the appellant was conducted and the appellant was identified by two out of three witnesses, those three witnesses who participated in the TIP of the appellant were not examined during trial. “Thus, the TIP report, which could have been used to either contradict or corroborate those witnesses, is of no evidentiary value”, it said.
The Bench was of the view that how the arrest had been effected was doubtful. In the present matter there was neither recovery of any looted article from the appellant or at his instance, nor the country-made pistol was linked to any empty cartridge recovered from the Bus or the scene of crime. There was also no injury report to substantiate that the appellant offered resistance before he was apprehended. The seizure memo too was prepared about nine hours after the appellant was allegedly arrested. The Bench also highlighted that the country-made pistol produced during the trial did not match the description of the seized weapon in the seizure memo and this fact was casually brushed aside by the Trial Court by observing that it may be due to rusting.
Thus, concluding that the prosecution failed to prove the guilt beyond a reasonable doubt, the Bench allowed the appeal, set aside the impugned orders and acquitted the appellant.
Cause Title: Vinod @ Nasmulla v. The State of Chhattisgarh (Neutral Citation: 2025 INSC 220)
Appearance:
Appellants: AOR Manish Kumar Gupta, Advocates Sangita Gupta, Sharad Prakash Pandey, Adv.
Respondents:AOR Apoorv Shukla, Advocates Puneet Chahar, Prabhleen A. Shukla