Rajesh @ Sarkari vs The State of Haryana, 2020

The appellants Rajesh alias Sarkari and Ajay Hooda have been convicted, together with a coaccused for an offence under Section 302 read with Section 34 of the Indian Penal Code and have been sentenced to imprisonment for life.

The Sessions Court, by its judgment dated 12 June 2012, concluded that there was a ring of truth to the case of the prosecution and that the appellants were guilty of the offence of having committed the murder of Sandeep.

The appellants and the co-accused Pehlad were, following their conviction under Section 302 read with Section 34 of the IPC, sentenced to imprisonment for life.

Aggrieved by the judgment of the Sessions Court, all the three accused filed appeals in the High Court of Punjab and Haryana. By a judgment dated 17 January 2019, the High Court dismissed the appeals.

• Whether any or all of them can be cited as eye-witness to the crime?
• Whether the testimony of witness is relevant as a TIP?   

In this case, The court said that-

“the identification in the course of a Test Identification Parade is intended to offer certainty to the accused’s identity”. The reluctance of the accused to participate in an identification parade cannot be used solely to establish guilt. In this case, the appellants or accused, Rajesh Sarkari and Ajay Hooda, were convicted of a crime primarily under Section 302 of the Indian Penal Code, together with a co–accused, Pehlad Singh alias Harpal, and were sentenced to life imprisonment. The charge was that the complainant’s son, Sandeep, was murdered by shooting rounds at him. The accused, enraged, filed appeals, and additional facts were revealed in this particular appeal. The prosecution’s depositions had numerous contradictions, which were clearly visible.

The topic of Test Identification Parade was addressed in the second section of the judgments. An adverse inference should be drawn against the appellants for refusing to submit themselves to a Test Identification Parade, the prosecution argued. The appellants stated that the deceased’s refusal to undergo Test Identification Parade stemmed from the fact that the deceased and the accused knew each other prior to the incident.

Taking all of the factors into account, the Apex Court concluded that “identifying during a Test Identification Parade is designed to offer assurance to the accused’s identity”. The reluctance of the accused to participate in an identification parade cannot be used solely to establish guilt. As a result, a refusal to participate in a Test Identification Parade is of minor value, if at all, and cannot stand alone in the absence of being a substantive or key piece of evidence.

The SC laid down 12 provisions governing the test identification parade. An adverse inference from refusal to undergo TIP can be obtained only when direct evidence to establish the guilt of the accused does not exist. In all other situations, the performance of a TIP is not mandatory. Identification of the accused through TIP is a relevant fact under the Indian Evidence Act, and the statements made through TIP are governed by Section 162 of the same Act. A TIP must also be done immediately after the arrest of the accused. 

1. The test identification parade is performed to test the memory and establish the credibility of the witnesses. It is done to determine whether the witnesses can identify the accused without external aid for the prosecution to identify whether any or all of them could be stated as eyewitnesses to the crime.
2. TIP is not statutorily mandated. No provision in either the Cr.PC or the Evidence Act explicitly provides statutory authority for a Test Identification Procedure. The accused and investigating agency can neither be forced to undergo nor perform TIP respectively.
3. Identification parades shall be governed by Section 162, CrPC. Section 162 contains some rules surrounding the statements given by witnesses.
4. For accuracy, the TIP must be done soon after the arrest of the accused. This would prevent the witness from seeing the accused before the TIP.
5. The identification of the accused by the witness is considered substantive evidence.
6. Facts establishing the identity of the accused are a part of Section 9 of the Indian Evidence Act and hence should be treated as relevant.
7. A TIP may help confirm the identity of the accused if required.
8. Generally, the court should look for corroborating evidence for the witness’s identification of the accused, but, in cases where the court is completely satisfied with the evidence of the accused, corroboration is not required.
9. The failure to hold a TIP does not necessarily question the credibility of the accused.
10. The importance of identification differs on a case-to-case basis and must be determined by the court based on the circumstances.
11. Identification of the accused is not required in cases where circumstances are enough to establish the guilt of the accused.
12. The lower courts, depending on the available evidence and circumstances of each case, may obtain an adverse inference from the refusal of the accused to participate in the TIP.