Identification of accused in Court: Procedure.

If the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence.

Evidence Act; Section 8 and 9:

“Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.”

It was further held:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code 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. 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. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

It was further held that “the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath”.

[Source: Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1]

“In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time”

[Source: Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562]

“Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

[Source: Jana Yadav vs. State of Bihar, (2002) 7 SCC 295]

It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible.

[Source: Rabindra Kumar Pal @ Dara Singh v. Republic Of India, Sup. Ct. on 11 Jan. 2011]

 

Medical examination of rape victim

DNA Test in Rape cases

Police directed to invariably resort to DNA test which is most important investigative tool to prove the offence or innocence

It has been seen that in number of cases relating to rape, the most powerful investigative tool which is available to the police is the DNA test which is seldom being resorted to.

The DNA report can either confirm or exclude the involvement of the accused. The police is directed that in every case under Section 376 of I.P.C.:-

(a) under which the doctor preparing the MLC of the prosecutrix prepares vaginal slides and clothing of the prosecutrix, which upon test by the FSL confirms the presence of human sperm then such slides must then be sent for DNA verification with the blood sample of the suspect.
(b) where the prosecutrix is rendered pregnant on account of the rape and if birth takes place, then a DNA verification be sought to ascertain paternity of the child which will again either confirm or exclude the suspect. If the foetus is aborted, then the tissue sample of the foetus be tested along with the sample of the suspect to see if they match, and
(c) in the event of the death of the prosecutrix during pregnancy, then also procedure enunciated in (b) to be followed.

[Source: Raja Burman @ Rahu vs The State Of Madhya Pradesh, MP High Court on 4 May, 2016]