evidence of identity

8/11/2019 Evidence of Identity

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Evidence Act 1

EVIDENCE

OF

IDENTITY

SUBMITTED TO: SUBIMTTED BY:

Dr. Sabina Salim Harkiran Singh Brar

87/10

VIIth

Semester


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Evidence Act 2

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the

writing of this project.

My deepest thanks to my Law of Evidence Lecturer, Dr. Sabina Salim, the Guide of the project

for guiding me and correcting various documents of mine with attention and care. She has taken

pain to go through the project and make necessary corrections as and when needed.

I would also thank my Institution and my faculty members without whom this project would

have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.


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Evidence Act 3

INTRODUCTION

Relevant facts establishing the identity of a thing or person is discussed in section 9 of Indian

Evidence Act, 1872.

Identity of Person

Where the court has to know the identity of anything or any person, any fact which establishes

such identity is relevant. The identity of a person can be established by the evidence of persons

who know him. For example, in Bhibawati Devi v.Kumar Ramendra Narain Roy1, a person by

the name of the second Kumar of Bhowal remained unheard of for twelve years. The person whoappeared after all these years and who was the plaintiff in this case claimed himself to be the

second Kumar. It was held that the evidence of his mother identifying him as her son and of his

wife failing to identify him as husband and of persons who should have known him was relevant.

Apart from direct evidence, circumstances of the situation may also be relevant to prove an

identity. The Supreme Court has observed that the identification of the accused either at the test

identification parade or in the court is not a sine qua non for his conviction. The commission of

crime by a particular person can as well be proved by circumstantial evidence. In the words ofPHIPSON: When a party's identity with an ascertained person is in issue, It may be proved or

disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or

dissimilarity of personal characteristics, for example, age, height, size, complexion, voice,

handwriting, manner, dress, distinctive marks, faculties or peculiarities including blood group as

well as of residence, occupation, family relationship, education, travel, religion, knowledge of

particular people, places or facts and other details of personal history... In civil cases a party's

identity most frequently comes in question as having executed a particular document; and here

identity of name and handwriting alone will be sufficient.

Indeed, there is no restriction. Every fact which can help the court to establish the identity in

question is relevant. For example, a doctor was prosecuted for the murder of his wife. The body

1AIR 1942 Cal. 498.


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Evidence Act 4

of his wife, as discovered from his house, was mutilated beyond recognition. The fact that the

wife had been earlier operated upon her abdomen and that part having been recovered showed

marks of the operation, was relevant to establish her identity. In a charge of murdering his

daughter as a result of attempted sex with her, the voice of her father was heard by neighbors,

who then dismissed it as a routine affair. Their evidence as to voice was held to be sufficient to

identify the accused.

Photofits.- Similarly, the Supreme Court in Ram Lochan v. State of WestBengal2, held that the

superimposed photograph of the deceased over the skeleton of a human body (skull) recovered

from a tank was admissible to prove the fact that the skeleton was that of the deceased. It is

followed as to explain the basic principles: The question at issue in the case is identity of the

skeleton. The identity could be established by its physical or visual examination with reference

to any peculiar features in it which would mark it out as belonging to the person whose bones or

skeleton it is stated to be. Similarly, the size of the bones, their angularity or curvature, the

prominences or the recessions would be features which any examination and comparison might

serve to establish "the identity of a thing" within the meaning of S. 9. What we have in the

present case is a photograph of that skull. That the skull would be admissible in evidence for

establishing the identity of the deceased was not disputed and similarly a photograph of that

skull. That a photograph of the deceased was admissible in evidence to prove his facial features,

where these are facts in issue or relevant facts, is also beyond controversy. (What the witnesses

have done) is to combine these two. The outlines of the skull which is seen in the superimposed

photograph show the nasion prominences, the width of the jaw bones, and their shape, the

general contours of the cheek bones, the position of the eye cavity and the comparison of these

with the contours, etc., of the face of the deceased as seen in the photograph serve to prove that

the features found in the skull and the features in the bones of the face of the deceased are

identical or at least not dissimilar. It appears to us that such evidence would clearly be within S.

9 of the Evidence Act.

Where photographs of the accused persons were shown to the witnesses, their identification of

the accused in the court was held to be no good evidence. Where the accused is known to the

2AIR 1963 SC 1074.


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Evidence Act 5

witness who had opportunities at interacting with him and notice his distinctive features,

evidence of the identification of the accused by such witness in the court without participation in

TI Parade can be relied upon. This statement occurs in a decision of the Supreme Court in which

the evidence of identification in court by the rickshaw-puller who carried the accused to the

house of the deceased in night and that of a shopkeeper from whom the accused purchased an

adhesive tape which was used in the crime was held to be of no value because such witnesses

might not have noted the features of a particular passenger or customer. But identification

evidence of the two friends of the deceased who talked with the accused for 78 minutes was

held to be credible evidence. The Supreme Court observed in a case that even on a full dark night

there is never total darkness. Apart from seeing a person in light there can be other means to

identify a person, for example, through the shape of the body, clothes; gait, manner of walking,etc. Identification is possible by voice also. In this case, however, the temple light was on and the

witness must have had some good chance to see the assailants two of whom held the victim and

the third chopped off his neck, which must have taken quite sometime.

The Supreme Court attached importance to the fact that the accused were from the same village

and, naturally known to the prosecution witnesses and, therefore, could have recognized them in

the light of a lantern, though it was lying on the ground and could have cast only a dim light on

the faces of the assailants.

Where the deceased was issuing copies of voters list and caste certificates and it was a night

time, the Supreme Court said it could legitimately be inferred that there must have been some

source of-light which enabled him to perform his job, though no source of light, like a hurricane

lamp, was produced.

Photographs cannot be taken as evidence unless their negatives are also produced. The Court

followed a decision of the Privy Councils in which their Lordships observed that a photograph

by itself is not a proof of dimensions and relative proportions of the object depicted. The

photographer must also be examined.

If the witness, during the investigation, indicates his acquaintance with till features of the

accused, the same can be confirmed by showing him more than one photograph of the same


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Evidence Act 6

person when the accused is available for identification, his photographs should not be shown.

Photographs should also not be shown to witnesses who do not have acquaintance with physical

features or special characteristics of the accused.

Test Identification Parade. - The evidence of test identification parades is received under this

section. The utility of the evidence created by an identification parade was explained by the

Supreme Court in the case of Ramanathan v. State of Tamil Nadu3, it was said: Identification

parades have been in common use for a very long time for the object of placing suspect in a line-

up with other persons for identification. The purpose is to find out whether he is the perpetrator

of the crime. This is all the more necessary where the name of the offender is not mentioned by

those who claim to be eye-witnesses of the incident, but they claim that although they did not

know him earlier, they could recall his features in sufficient details and would also be able to

identify him if and when they happen to see him again. Such identification is in the interest of

both, the accused and the investigating agency. It enables the investigating officer to ascertain

whether the witnesses had really seen the perpetrator of the crime and test their capacity to

identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.

The line-up of the accused in a test identification parade is therefore a workable way of testing

the memory and veracity of the witnesses and has worked well in actual practice.

Examining the value of the identification parade in reference to the facts of the case, the learned

judge said: In the present case where there was satisfactory evidence to prove that at least two of

the witnesses emphatically claimed that they had noticed the culprit and had in fact described

him and claimed that they could identify him, the holding of a test identification parade was

absolutely necessary. The fact that such parade was held within two days of the arrest and was

supervised by a Judicial Magistrate with all the necessary precautions and arrangements, leaves

no room for doubt that the evidence was of considerable importance.

The purpose of TI parade is to test and strengthen trustworthiness of the evidence of the witness

in the court. The evidence generated by a TI parade is used for corroboration.

3AIR 1978 SC 1201.


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The Supreme Court went to the extent of laying down in State (Delhi Administration) v. V. C.

Shukla4, that the identification of the accused by thewitness for the first time in the court without

being tested by a prior testidentification parade was valueless. The Supreme Court also held that

where one of the witnesses failed to identify the accused at the identification parade,

identification by him of the accused in the Court was useless.' Where the eye-witness stated in

his F.l.R. that he could not identify the assailant, but evenso he identified him at the TI parade,

the Supreme Court held that suchidentification was farce evidence."

Ordinarily, the person who is supposed to have identified the assailants at the test identification

parade must himself give evidence in regard to the identification. If he does not himself give

evidence and leaves it to the officer holding the identification parade to do so, the defense would

be deprived of an opportunity of cross-examination for the purpose of showing that the witness

had opportunity of seeing the accused before they were brought for identification. In any event,

the evidence in regard to the identification is at the most corroborative piece of evidence and

cannot remove the affirmities of the testimony itself.

In the case of an F.I.R. against unknown persons, the Supreme Court said that TI parade should

be held as early as possible. A conviction cannot be based on a vague identification.

Where accused already known to witness. - Where the accused was already well-known to the

witnesses, the Supreme Court observed that the holding of an identification parade would be

waste of public time." In a rape case, the victim woman was able to see clearly the outrager and

her relatives who apprehended him on her cries also became fully acquainted with his identity.

The Supreme Court said that a test identification parade was not necessary. But this depends

upon facts and circumstances of each case. In another case before the Supreme Court the rape

was committed at night in the room of the victim where there' was no light. The Court said that

even if it was accepted that the victim had a fleeing glimpse of the accused when they lighted a

torch in her room, it was not enough for image formation when there was no acquaintance with

the attackers earlier to the incident. It was incumbent on the prosecution to hold a TI parade.

Failure to do so was fatal to the prosecution case,

4AIR 1980 SC 1382.


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Photographs of the accused were shown to the child witnesses before the parade. The Supreme

Court held that this took away the effect of the test identification parade.

Identification of more than one accused in same parade. -Placing of the accused husband and

wife in the same parade was held to be contrary to the criminal manual issued by the High Court

concerned. Identification was accordingly held to be no good evidence.

Identification Parade, when Necessary.-As to when an identification parade may be necessary

was explained by the Supreme Court in JadunathSingh v. State of U.P5., It seems to us that it

has been clearly laid down by this court that the absence of test identification parade in all cases

is not fatal and if the accused person is well known by sight it would be waste of time to put him

up for identification. Of course, if the prosecution fails to hold an TI parade on the plea that thewitnesses already knew the accused well and it transpires in the course of the trial that the

witnesses did not know the accused previously, the prosecution would run the risk of losing its

case. It seems to us that if there is any doubt in the matter, the prosecution should hold an

identification parade."

This dictum was applied by the Delhi High Court to a case involving kidnapping and rape

holding that identification parade was necessary in view of the fact that the accused was not

named in the F.I.R., nor was known to the witnesses previously and that the prosecutrix

remained unconscious for 5 days after the alleged kidnapping.

Ordinarily, evidence cannot be given of the fact that the accused had been guilty of similar

offences, before or after the offence, of which he is being tried. But, there are some exceptions.

Those will be seen in connection with the evidence of similar facts under S. 15. Here it will be

sufficient to point out that evidence of similar facts shall be relevant when it is necessary to

establish the identity of a person. The other similar facts "identify him in his conduct just as a

man with a short leg may be identified with a limb; they are the part of the man's make-up.

TI parade when not necessary.- In a case of dacoity and murder, all the witnesses stated that

they had otherwise known the accused persons, they being not strangers to them. They clearly

identified them in the moonlight and lantern light. Holding TI parade was not necessary.

5AIR 1971 SC 363.


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Untrustworthy identification.-An incident of murder happened in court premises. The

informant eye-witness claimed to know the aggressor by name but did not mention the name in

the F.I.R. lodged immediately, nor identified him in the TI parade. A police witness who

identified him had seen him before when he was brought before the court. The third witness

identified him because of the scar on the face when no person with such scar was put up in the

line. It was a case of mob attack. The witnesses must have had very little time to see the

attackers. It was not necessary to support their substantive testimony with TI parade. Eight

suspects were there. Only two were put up in the parade. This was unfair in itself. A concurrent

finding of fact can be interfered with when it is arrived at mechanically.

Identification in Court.- Where the child witness told the police in his statement under Section

161, Cr.P.C. that about three persons were involved in the incident, even so no test identification

parade was held, the court said that the mere dock identification of the accused by the child in

the court, could not be accepted with certainty as reliable identification.

Identification of the accused by an eye-witness in the court has been held to be substantive

evidence. The identification through a parade is primary evidence but not substantive evidence.

The same can be used to corroborate the identification of the accused in the Court. Identification

for the first time in the Court without any corroborative evidence should not form the basis of

conviction unless there are exceptional circumstances to justify it.

The fact of wrong identification by the witness in the Court has no significance if the prosecution

case stands proved by other evidence: The Court said that there could be a variety of reasons for

failure to Identify, i.e., the witness might have been won over, or might have lost memory

because he had seen the accused at the spot some eight years ago," The purpose of TI Parade is

to check the memory of the eye-witness and also to enable the prosecution to decide who can be

cited as an eye-witness. The yara.de should be held as early as possible after arrest of the

accused. Identification in the court is weak evidence. Test identification parade strengthens such

evidence. TI parade is a part of investigation proceedings governed by Section 162, Cr. P.c.

Holding such parade is not obligatory. A failure to hold it does not render the evidence of

identification in the court inadmissible.


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The injured eye-witness identified the accused in the court. TI parade could not be held because

of refusal by the accused to participate. The Supreme Court held that rejection of evidence of the

eye-witness in the court without assigning any reasons was not proper.

TI parade has to be held by the police for the conduct of its investigation. It cannot be demanded

by the accused. Non-holding of TI parade does not render identification in court inadmissible.

Identification for the first time in court cannot form the basis of conviction. It is only

corroborative evidence.

Identification on video recording. - The relevancy of identification of the suspect by a witness

who was not present at the scene of the crime, but knew the suspect and recognized him on video

recording depends upon whether the witness needed for this purpose special skills andexperience.

Identification by voice.- The witnesses were not closely acquainted with the accused. They

claimed to have identified him from his short replies such evidence was held to be unreliable." In

a charge of conspiracy for murder, the voice of the accused was recognized by the witness as he

demanded money and he was already acquainted with the voice from earlier time. The evidence

was held to be relevant.

Identification of articles belonging to deceased.- The evidence of a witness that he identified

certain articles belonging to the deceased was not accepted because he was not able to say that he

had seen the deceased using those articles for long.

Identity of things

A case before the Supreme Court arose out of murder and robbery. The police recovered robbed

articles which comprised valuable sarees and ornaments. A lady of the house was called and she

identified them in the Court as articles belonging to the deceased. The question was about the

admissibility of the evidence. The argument against admissibility was that clothes like sarees and

ornaments, like chain and bangles were of such common use that it could not be said that they

belonged to a particular family. Here is what the Supreme Court said : "It is a matter of common

knowledge that ladies have an uncanny sense of identifying their own belongings, particularly


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articles of personal use in the family. That apart, the description of the silk sarees in question that

they were expensive sarees with distinctive designs, was another important index to

identification. There is no merit in the contention that the testimony of these witnesses as regards

the identity of the seized articles to be stolen property cannot be relied upon for want of prior test

identification. There is no such legal requirement."

Where the witnesses who identified articles in question during investigation were not produced

before the court, it was held that their' evidence remained only a hearsay and could not be used

as corrobor.mve evidence.' The ornaments of the deceased lady victim were identified by her two

sons during the test identification parade. Her daughter also participated in the identification but

was not cross-examined. It was contended that identification of ornaments as those of the

deceased was very fragile evidence. The Supreme Court rejected the contention. The Court,

however, agreed that a female kin of the deceased would have been in a better position than a

male kin to identify the jewellery or ornaments worn by a woman. The Court said that non-

examination of the daughter of the deceased need not be taken as a serious flaw which could

virtually affects the prosecution evidence regarding the identification of the ornaments.


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BIBLIOGRAPHY

Dr. Singh Avatar, Principles of the Law of Evidence, 20 th Ed. 2013, Central Law

Publications, Allahabad.

evidence of identity

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