In a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eye-witnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon. This plea is available provided the prosecution is itself responsible for not holding a test identification parade. However, in a case where the accused himself declines to participate in a test identification parade, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in Court during the course of the trial of the case.
The effect of not holding a prior test identification parade has been recently examined in considerable detail by a three-Judge Bench in Malkhansingh and others vs. State of Madhya Pradesh, JT 2003 (5) SC 323 and after review of practically all the earlier decisions, it has been held as under :
“It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of S. 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under S.9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally took for corroboration of the sworn testimony of witnesses in Court as to the identify of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact.
It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.
The substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine.”
It may be pointed out that in the above noted case, it was the prosecution which did not hold a prior test identification parade and for this lapse the accused were not responsible in any manner as they had never declined to attend or participate in a test identification parade. However, on the finding that the prosecutrix appeared to be a witness on whom implicit reliance could be placed and there was no reason why she should falsely identify the appellants as a perpetrator of the crime if they had not actually committed the offence, coupled with other circumstances of the case, the accused were convicted and sentenced under S. 376, I.P.C. What this authority holds is that there is no strait-jacket formula that in a case where the accused is not named in the F.I.R. or in statement under S. 161, Cr. P.C. or is not otherwise known from before, the testimony of a witness for the first time in Court, without a prior test identification parade, becomes valueless. The testimony of such a witness has to be judged like that of any other witness having regard to the facts and circumstances of the case and also keeping in view the fact that prior identification proceedings had not been held.[AIR 2003 SC 3805 : (2003) 2 Suppl. SCR 1048 : JT 2003 (7) SC 361 : (2003) 6 SCALE 698 : (2003) CriLJ SC 4440]