Supreme Court acquits murder convict after 8 years' jail; cites absence of Test Identification Parade

The Supreme Court recently reiterated that trial court should be cautious in accepting dock identification by a witness in absence of Test Identification Parade (TIP), especially when the accused is stranger to the witness [P Sasikumar vs The State Represented by the inspector general of Police].The bench of Justice Sudhanshu Dhulia and Justice Prasanna B Varale made the observation while acquitting a man accused of murdering a 14-year-old girl in 2014."We are afraid the High Court has gone completely wrong in believing the testimony of PW-5 as to the identification of the appellant. In cases where accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness," the Court said while relying on the decision in Kunjumon v. State of Kerala..The Court ordered immediate release of the accused lodged in jail 8 years ago."We hold that the identity of the present appellant is in doubt. The appellant could not have been convicted on the basis of a very doubtful evidence as to the appellant’s identity. The appeal is allowed and the impugned order of the High Court dated 12.01.2017 is hereby set aside," it said in the order.In 2014, the father of the victim had found the victim bleeding profusely from her neck. The neighbours informed him that two persons had come to his house and brutally killed his daughter. The victim was rushed to the hospital but was declared dead.The police later arrested two accused. Both of them were convicted by the trial court. One of them, P Sasikumar then moved an appeal before the Madras High Court. Having faced dismissal there, Sasikumar then approached the top court..The entire case against Sasikumar revolved around witness statements which claimed to have seen him wearing a “green colored monkey cap”. One particular witness (prosecution witness 5/ pw 5) had identified the two accused when they were in the custody of the Police."This so-called identification, on which much reliance has been placed by the prosecution, was made by PW-5 in the hospital by way of a statement to the police, and it can only be read as a statement under Section 162 of the Criminal Procedure Code which can only be used for the limited purpose as provided under Section 162 of the CrPC itself," the top court observed..The Court said all the prosecution witnesses who identified Sasikumar before the trial court were not known to him. It also noted that TIP was not conducted by the police.Both the witnesses had seen the accused on the date of the crime while he was wearing a “green colour monkey cap”, the Court noted."Now, as one is familiar a monkey cap covers the entire face, chin and cheek of a person, leaving only his eyes and nose and part of forehead exposed. These two witnesses (PW-1 and PW-5), had seen the appellant wearing a monkey cap and that too from a distance. Under these circumstances, TIP had become necessary particularly when both the accused, who are alleged to have committed this murder were arrested within two days," it added..The Court observed that it was settled law that TIP is only a part of police investigation and not a substantive piece of evidence. "The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in Court during trial," it added.The Court also observed that lack of TIP in a given case may prove fatal for the prosecution. It is the task of the investigation team to see the relevance of a TIP in a given case, it added..In the present case, the Court noted that High Court had rightly dismissed the evidence of one of the witnesses since accused was stranger to him. Disagreeing with the view taken by the High Court regarding the other witness, the Court said,"However, the High Court has believed the testimony of PW-5 who has identified accused no.2 under similar circumstances! The appellant was also stranger to PW-5 and PW-5 had also seen the accused i.e., the present appellant for the first time on that fateful day i.e. on 13.11.2014 while he was wearing a green colour monkey cap. The only reason assigned for believing the testimony of PW-5 is that he is after all an independent witness and has no grudge to falsely implicate the appellant.".The Court concluded that the lack of TIP in the case was a fatal flow in the police investigation and in absence of the same, the dock identification of the accused will always remain doubtful. "Doubt always belongs to the accused. The prosecution has not been able to prove the identity of the present appellant i.e. A-2 beyond a reasonable doubt," it said while allowing the appeal against conviction..[Read Judgment]