Identification Of Accused In Court After Huge Gap By Witness Who Has Seen Accused For First Time During Incident, Is Weak Evidence: Supreme Court

A two-judge Bench of the Supreme Court has observed that the identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence, is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence.

The Court did not believe the testimony of a witness who saw and identified the accused after the lapse of 11 years in Court and termed it as a weak piece of evidence. The Court held that in such a case, TI Parade may make the identification of the accused by the witness before the Court trustworthy.

The court also said that the TI Parade is a part of the investigation and it is not substantive evidence.

The Bench of Justice Ajay Rastogi and Justice AS Oka ruled these while setting aside convictions imposed upon three persons who had faced prosecution for transporting spirit without permission. The three were convicted for three years under Section 55(a) of the Kerala Abkari Act.

The Bench observed, "It is well settled that TI Parade is a part of investigation and it is not substantive evidence. The question of holding TI Parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, T.I Parade may make the identification of the accused by the witness before the Court trustworthy. However, the absence of TI Parade may not be ipso facto sufficient to discard the testimony of a witness who has identified the accused in the Court."

However, the Bench did not believe the testimony given by a witness identifying the accused after a lapse of 11 years.

"In a given case, there may be otherwise sufficient corroboration to the testimony of the witness. In some cases, the Court may be impressed with testimony of the prosecution witnesses which is of a sterling quality. In such cases, the testimony of such a witness can be believed. In the present case, PW13 accepted that he is not able to identify any persons whom he had seen 11 years back. However, he asserted that he can identify the accused Nos.2 and 4 though he had seen them for the first time more than 11 years back on the date of the incident. Therefore, in the facts of the case, the evidence of PW13 as regards the identification of the accused Nos.2 and 4 in the Court cannot be accepted."

In this case, the police had apprehended three persons including the driver of a truck in which spirit was being transported, while one person, who was present in the truck could not be traced by the police. The truck was fitted with a fake number plate as per prosecution. On confession by the driver (accused no-2) about ownership of the truck and goods, the police had arrested the alleged owner (accused no-1) of the truck. The Trial Court convicted the accused and the conviction was confirmed by the High Court of Kerala.

The Counsel for the accused submitted that the ownership of the truck has not been proved beyond doubt as the previous owner (PW-3) did not support the prosecution version. The photocopy of the RC book was not produced before the court. Therefore the ownership is not established. It was argued regarding testimony given by an independent witness (PW-3) identifying the accused no-2 that it can't be believed after the lapse of almost 12 years as the prosecution did not conduct the TI Parade during the investigation.

Counsel for the respondent State submitted that the identification of the accused No.2 by the prosecution witnesses in the Court cannot be disbelieved only on the ground that TI Parade was not conducted. He submitted that PW13 is an independent witness whose version has not been shaken in the cross-examination. It was submitted that considering the quality of evidence of PW13 which is supported by the evidence of PW6, the Court rightly imposed conviction.

He further submitted that PW3 issued a reply to the notice served upon him by the investigation officer stating that he sold the said truck to the accused No.1 at the cost of Rupees 1,50,000/- in the year 1999. Though PW3 did not support the prosecution in the trial, his reply to the notice was marked as an exhibit, which proves that the ownership of the truck vested in the accused No.1 at the relevant time, as per the prosecution.

After hearing the parties, the Bench held that the prosecution could not establish the ownership of the truck and the identity of the truck has become doubtful as no investigation was carried out to ascertain the ownership of the truck.

"A very shocking aspect of the case is that the prosecution did not even produce the record of the RTO in respect of the registration of the truck. Though the chassis and engine number of the truck were recorded in the mahazar, no investigation was carried out to ascertain the correct registration number of the offending truck. Thus, the identity of the truck itself becomes doubtful. The most relevant evidence of the record of RTO showing the name of the registered owner was withheld by the prosecution. There is no documentary evidence placed on record to show that the accused No. 1 was the owner of the offending truck at the relevant time."

The Bench further observed that, "It is very difficult to believe that PW13 who was not knowing the accused Nos.2 and 4 prior to the incident could identify them in the Court after a lapse of 11 years. That is also the case with all the official witnesses. The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful."

Parties: Jayan Vs State of Kerala