What is Section 9 Test Identification Parade?

Section 9 deals with the relevancy of facts although they are not connected with the facts in the issue but are necessary to explain or introduce a fact in the issue or relevant fact. Generally, the collateral facts are not admissible. However, under Section 9, they are admissible if such collateral facts are directly connected with the facts in the issue. The Section 7 of the Act makes admissible facts which are necessary to explain or introduce relevant facts, such as place, name, date, the identity of parties, circumstances and relations of the parties.

Under Section 9 of the Act the following facts necessary to explain or introduce are relevant facts:

i) Facts introducing a fact in an issue or a relevant fact.

ii) Facts explaining facts in an issue or a relevant fact.

iii) Facts supporting or rebutting an inference suggested by a fact in an issue or relevant fact.

iv) Facts establishing the identity of any person or thing whose identity is relevant.

v) Facts fixing the time and place at which any fact in an issue or relevant fact happened.

vi) Facts which show the relation of parties by whom any fact in issue or relevant fact was transacted.

(1) Introductory facts:

Without introductory facts, it is practically impossible to jump directly to the main fact. To have an idea about the main facts, the Judge should be provided with some introductory matter to understand the real nature of the transaction. Facts which are introductory to a relevant fact are often of great help in supplying the missing links. Illustrations (a) and (b) under Section 9 of the Act are examples of the introductory fact.

(2) Explanatory facts:

There is some evidence which is considered separately from other evidence has no value. Similarly, the explanatory evidence is not relevant in itself. It is neither one of res gestae nor probative in any direct line of proof to the existence of act in issue or relevant fact. However, facts which explain any fact in an issue or relevant fact are admissible.

In Emperor v. Abdul Ghani Bahadur Bhai, the accused has stolen demand drafts from a Bank. He managed to cash one of the drafts. Meanwhile, the Bank received a telegram stating that two drafts have been stolen and indicated their numbers. When the accused submitted the second draft, the Bank clerk informed to the police and the accused was arrested. It was held that the telegram was relevant to explain the conduct of the clerk and therefore admissible.

(3) Facts which support or rebut an inference:

Facts which support or rebut an inference suggested by a fact in an issue or a relevant fact are provable under Section 9 of the Evidence Act though they are neither relevant as a fact in an issue nor as relevant facts individually.

(4) fACTS ESTABLISHING THE IDENTITY OF ANYTHING OR PERSON WHOSE IDENTITY IS RELEVANCE:

Facts which show the identity of anything or person whose identity is relevant is provable under Section 9 of the Evidence Act. In case of theft when the stolen property is recovered the identity of such property is required to be established. So also in the case of murder, the identity of the weapon with which the murder was committed is required to be established. Facts which prove the identity of these objects is provable under Section 9 of the act.

(5)facts which fix the time or place of facts in an issue or relevant facts:

Under Section 9 of the Evidence Act, facts which are necessary to fix the time and place of the occurrence are relevant. The fact of time or place becomes very important when the accused pleads alibi. To decide whether a person committed murder and the time of the murder is not known, the medical opinion is sought to fix the precise time of the death to prove that the accused was present near the deceased at the time of the murder. Then only his guilt would be proved beyond all reasonable doubt.

(6) Factors showing relations:

Facts showing the relationship of parties by whom such facts were transacted are relevant. To prove whether a contract was made under undue influence or on free consent, the facts showing that the relationship subsisting between the parties is of such a nature that one of them is in a position to dominate over the will of another is relevant.

Object of identification

Identification is the proof in a legal proceeding that a person, document, or other thing is that which it is alleged to be Identification is the evidence of identity.

Identification has an important place in criminal and civil cases. In all criminal cases, the two important points that are to be decided are whether the alleged offence was committed, if so, who committed the offence.

Identification would serve to prove that the accused was the offender. In civil cases the question of identity may arise e.g. in a case of adoption, the question may arise whether a particular person is the adopted son of a particular individual. The identification of property is to be done, to satisfy the Court that the particular property was the subject matter of the crime and to furnish evidence to corroborate the testimony of the witness.

Identification of person through Test Identification Parade

One of the methods of establishing the identity of the accused is a ‘test identification parade. An identification parade is a parade conducted in order to test if a witness is able to identify the accused.

The identification parade is to test the veracity of the witness on the question of his capacity of identifying several persons made to stand in a queue, as unknown persons whom the witness had seen at the time of occurrence.

Test identification is designed to furnish evidence to corroborate the evidence that the witness concerned tenders before the Court. When the eyewitness cannot give the name of the offender but claims that he can identify the offender if he is shown to him, it is all the memory necessary to hold a test identification.

Test Identification during the investigation:

The test identification parades are held by the police, during their investigation. They are held for the purpose of enabling the witnesses to identify the properties which are the subject matter of the offence and to identify the persons who are concerned in the offences, or to identify the persons are concerned in the offences.

Test identification is meant for the purpose of helping the investigation with an assurance that their progress with the investigation into the offence is proceeding along the right lines. However, it does not constitute substantive evidence according to law, without proof of those facts recorded. The record of test identification can be used either for corroboration or for contradiction.

The evidence at the trial of a witness who identified the accused before the police is admissible by way of corroboration. when the witness fails to identify the accused in court, though the accused was identified in the test identification, no conviction can be based on the test identification.

Identification of property

Identification of property is usually the recognition of the property by its owner. The owner knows his/her own articles and when he/she sees them, he/she picks them out. He/she is well acquainted with all the peculiarities of the articles. Even though there may be no distinction marks, an owner can very frequently be trusted to pick out his/her own articles.

Identification of the victim’s body

In State of W.B. v. Mir Mohammad Omar, it has been held that where the dead body of the victim was identified by the sister and the nephew of the deceased, it was immaterial that the doctors had varying opinions about the age of the victim and circumcision.

In Shankar Mahto v. the State of Bihari has been held that where the daughter of the deceased identified her mother’s dead body by face, ears, and teeth as well and not by the tattoo only when the body was recovered, the identification was made by the daughter could not be disbelieved. The dead body can be identified with the help of identification marks, birthmarks, the details of clothes, jewellery, any such items, watch, shoes etc. of the deceased.

The tailor identification marks on the clothes of the deceased, the train ticket, bus ticket, cinema ticket, driving licence etc. found in the dresses of the deceased will help to identify the dead body. Agar

Who can hold the identification parade

Any person can conduct a test identification, but Magistrates are preferred. The Magistrate’s identification memo is a record of his statement eta which the identifier expressly or impliedly made before him.

The statement is a formal statement of the identifier and it is used normally for contracting him under Section 145 or Section 155 of the Evidence Act, and also for corroborating him under Section 157 of the Evidence Act. If it was made before the police, it would be hit by Section 162 Cr.P.C. and would not be admissible for purpose of corroboration.

Circumstances of invalidity of Test Identification Parades

In the following circumstances, the evidence of a witness in the test identification becomes invalid.

Most of the crimes are committed in darkness and in secluded places. In such cases, light becomes a matter of crucial importance to see the accused at the time of the offence. Hence if the light was not sufficient in the dark nights to clearly identify the persons the culprits may be wielding torch lights for their guidance and when these torch lights are flashed in different directions there is the possibility of some of them being caught in the beacons of torch lights.

2) The eye-sight of the identifier has to be taken into consideration before the Court relies on the evidence of the identifier. Where the vision of the identifier is not normal, doubts would arise whether the identifier has properly marked the features of the suspect.

Where the identifier claims to have seen the accused from a distance he must not be short-sighted. Where he has seen the accused from close quarters he must not be long-sighted. Where he claims to have seen the accused in the night he must not be night blinded and where he claims to have noted some colour he must not be colour blinded. The witness should not be in the state of cataract at the time of the commission of a crime and at the same time at the time of the test identification parade and when he appears as the eye-witness.

3) Other circumstances of invalidity of the test identification parades

i) if the identifier is in stirred minds, for excitement, fear or terror.

ii) if the witness was in a drunken position at the time of the offence;.

iii)if the witness saw only the back side of the accused and did not see the face or any part of the front side body of the accused.

iv) if the culprits or dacoits or terrorists use bombs and other ammunition.

v) if the suspect was already shown to the witness before the identification parade.

vi) if the precautionary steps such as bringing the accused by covering faces have not been taken by the officer conducting the identification parade.

vii) if not conducted by an authorised person or Court.

viii) if the identification parade is conducted by three out of four accused.

ix) where there are more offenders and a single eye-witness who cannot identify the features of all the offenders within a short span of time.

x) if the accused persons muffled their faces in order to screen their identity by appearance.

xi) if the photograph of the accused was shown to the identifying witness.

Test Identification Parade and the Article 20(3) of the Constitution

Article 20(3) of the Constitution of India states that no person accused of any offence shall be compelled to be a witness against himself. At times of identification, it may be necessary to expose parts of the body, in which case the question would arise whether a person suspected of an offence
can be compelled to expose his body and whether the right of the suspect under the Constitution would be violative.

In State of Bombay v. Kathikalu, [AIR 1961 SC 1808], it has been held that exposing parts of the body for purpose of identification does not offend Article 20(3) of the Constitution of India.

Methods of identification

1) Personal characteristics and physical features:

When a party’s identity is in issue it may be proved or disproved presumptively by similarity or dissimilarity of personal characteristics e.g., age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts and other details of personal history.

2) Identification by gait, speech and voice:

It is not safe to rely on the identification of a person by his voice alone. Similarly, it is not possible to recognise a person without mistake by gait. In some cases, it had been held that in certain circumstances the identification by voice is reliable. In Kripal Singh v. the State of U.P., [AIR 1965 SC 712], the Supreme Court accepted the testimony based on gait and voice as the accused was related to the witness.

3) Identification by fingerprints, foot-prints, handwriting and palmprints:

The identity of finger marks is the strongest evidence of the identity of a person and such evidence is admissible. Evidence of tracker is admissible if proved that the footprints in question are identical with the footprints of the accused. Expert reports of handwriting can be used to identify the writings of documents.

4) Photographs and video films:

A photograph or film of a crime actually being committed is admissible.

5) Sketches and photofits:

Where a witness takes part in the composition of a sketch or a photofit picture of a suspect the resulting use is admissible for the prosecution.

6) DNA evidence:

This evidence involves a comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person.

7) Identification by sniffer dogs:

In Gade Lakshmi Mangraju v. the State of A.P., [2001 Cr.L.J. 3317 (SC)]; (AIR 2001 SC 2677) it has been held that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminal. Police dogs are engaged in these acts by virtue of instincts and also by the training imparted to them. The Criminal Courts need not, therefore, bother much about the evidence-based sniffer dogs.

Value of Test Identification

The evidence of test identification is not substantive evidence and the Court may not act on the basis of such evidence. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down. The question of identity arises when the accused are not known.

Where the witnesses identified the accused both in the test identification and in Court, their evidence can safely be accepted. A witness should be judged by the Court on the strength of what he himself has seen and not on what he was told.

It is the duty of the prosecution to establish beyond any doubt that the witnesses who identify the accused at the identification parade had seen him at the time of occurrence, that they did not know him before, and did not see him at any time after the occurrence and prior to the identification parade. After the accused were properly identified by the witnesses in the course of the test identification parade, the witnesses would have been named in the FIR). Then the identification was upheld.

Identification in Court

Identification for the first time during trial is inherent of a very weak character which loses much of value without a prior test identification parade. Identification for the first time in the Court cannot be relied upon in the absence of corroboration; however, in exceptional circumstances, it can form the basis of conviction. Where the accused was identified for the first time in the Court and there was no other evidence against him, no conviction could be based on such identification.

In Malkhan Singh v. the State of M.P., [AIR 2003 SC 2669] it has been held that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification in the Court if required and in the instant case the evidence of identification by the prosecutrix, the victim of rape in Court was found to be reliable, therefore there was no need of its corroboration by the evidence of identification in the test identification parade.