Analyzing evidentiary value of corroborative evidences: Test Identification Parade & Expert Opinion

Introduction

Evidence is anything that is presented in order to support an assertion, the term evidence is defined under section 3 of the Indian Evidence Act, 1872. All admissible evidences do not have the same evidentiary value attached to it. Evidences play the most important role in proving the guilt or innocence of a person and therefore, courts have the authority and the duty to exercise prudence while examining evidences and decide the weightage to give to various classification of evidences. Corroborative evidences are important to string together a narrative along with the substantial evidences in order to be able to put up a bigger picture in front of the court. All of them however, do not have the same evidentiary value.

Expert evidence

As a principle rule, opinions are not admissible as evidence in the court of law in India. Only the opinion of a judge is relevant as it plays a role in the determinacy of the ruling of the case. However, opinion of a third person as an admissible evidence finds a place as an admissible evidence under S.45-50 of the Indian Evidence Act as opinions from an expert. It is based on the understanding that a judge cannot be expected to be knowledgeable in all different kinds of fields. In such circumstances, opinions from an expert who has training or superior knowledge in those technical subjects[1] are allowed to assist the judge.

The measure or degree of qualification that a person requires to be called an expert is not envisaged by the statue. It can be anybody from an academician, a scientist, and doctor etc. to even somebody who only has a prior knowledge on the subject matter[2]. The court must use its discretion to determine if the person indeed is an expert.

The popularly accepted position is that opinion of experts cannot be accepted without corroboration, as expert can’t claim that their opinion is absolutely correct since it depends to a large extent on the materials given and the questions asked to him[3]. It cannot be the sole basis of conviction nor can expert evidence be given precedence over substantive evidence[4]. The court is not bound by expert testimony, which to a large extent is advisory in nature[5]. Judges have the authority to arrive at their own conclusions after adducing evidences presented by both sides as well as cross examinations.  In some cases, judges have said that even when the expert has given a testimony of something, unless it is backed up by facts and research, it cannot be an admissible evidence simply because it is the opinion of an expert[6].

However, this stance of the necessity of corroborating expert evidence, has had some opposing views as well. In a case where there was a requirement of testimony from a handwriting expert, the court went on to consider if expert evidence can be the sole basis for conviction[7]. In this case the lordships went on to say that there is no explicit statutory provision stating that an expert evidence must always be corroborated. However, because of the imperfect nature of science and acting in prudence and to secure the ends of justice such opinions of expert must be admitted with caution. This includes looking at the evidence or date/statistics on which the expert opinion is based on. The discretion is on the court to decide whether or not to admit the opinion of the expert as evidence. Therefore, in cases where the facts and opinions stated by the expert is convincing and there is no discrepancy created either by cross-examination by the other side or is conflicting with any other relevant evidence, the uncorroborated evidence may be admitted[8].

Similarly, in another case, placing reliance on the Murari Lal case, the court reiterated that fact that just because the courts have a duty to act prudently and therefore, often times the judges insist on taking a holistic look at the evidences to consider whether expert evidence might be admitted or not. If the expert opinion is found to be trustworthy and credible, conviction can be solely based on that report[9].  “To say that corroboration is sine quo non for accepting or acting on the opinion of experts is to impose a restriction which law does not warrant”[10]. There is thus no set rules regarding this and no objection might be accepted on the sole ground that the expert opinion provided is not corroborated with other evidences. It is completely the discretion of the judge to decide whether the person can be considered as an expert in the first place[11]

An expert opinion can be produced in court by either party in India. Even the court can in their own accord, ask an expert for their opinion. However, whether court appointed or not, the popular position of evidentiary weightage of expert evidence does not change from what has been discussed above. The goal should be to exercise prudence, not see expert opinion’s evidentiary value in black and white terms.

Test Identification Parade

Test identification parade is a technique mainly used by the police in the investigation stage to ascertain the identity of the accused in cases where the victim is unaware of the identity of the offender[12]. It is also used to test the veracity of the witness’ memory of the accused and provide additional evidence as to the validity of the identity of the accused. Evidence of a test identification parade conducted (henceforth referred to as T.I.P) even though admissible under S.9 of the evidence act as facts necessary to establish the identity of a person, is approached with a great deal of caution and is generally not accepted as a substantial evidence. It only has corroborative value in terms of its evidentiary value.

As a general rule, the witness has to identify the accused in court under oath, in front of the judge. The weight that is to be attached to such witness testimony in court is a matter of discretion exercised by the court. It is however possible that by the time there comes the opportunity to the witness to be able to identify the accused in court, substantial time would have passed by. This time gap could reasonable be argued to affect the veracity of the testimony of the witness in court. This would not have been the question if the accused was known from beforehand. To strengthen the testimony of the witness identifying the accused person in court, test identification parade is used as evidence to corroborate the witness’ statement identifying the accused. The idea is to not wrongly vex an innocent person for a wrong he hasn’t done. However, because there is no statutory requirement for conducting a T.I.P, there is no adverse effect of not conducting one[13]. In these cases, other corroborative evidences may be presented to support the identification of the accused by the witness’ in court. Therefore, the nature of T.I.P as evidence is inherently corroborative in nature. Depending on the situation and the level of trustworthiness that a witness is able to display, sometimes just their testimony is enough and needs no corroboration[14], whereas on the other hand, T.I.P evidence is almost never taken as an independent evidence.

Since the identification of accused by a witness is dependent on their memory, it is only right that the parade should be held at the earliest possible instance as it is reflective of the credibility of the witness account. However, there is no fixed time period within which a T.I.P should be conducted for it to be considered as a valid evidence, because it would not be prudent to do so. It would only result as being an advantage to those criminals whose arrests are delayed for various reasons. Resulting in the failure of T.I.P, not because of unreliable memory of the witness(s) but because of end of stipulated time period[15]. There have been instances where there has been significant delay in conducting a T.I.P. If there is a satisfactory reasoning given behind the delay, such as the unavailability of a magistrate to record the proceedings of the parade, despite due diligence displayed by the investigating offer to conduct the T.I.P at the earliest, the court has condoned the delay and admitted it as evidence[16].

Test identification cannot be conducted without the presence of a magistrate. There is an express bar under S. 162 of CrPC for the inadmissibility of statements given to the police and therefore, the police cannot be present when the TI parade is going on. They must leave after making the necessary arrangements. For a T.I.P to be conducted, the police must be certain that the person identifying has some kind of prior information. This idea was summed up in a case where it was held that “The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity.”[17]

While it is usually requested by the prosecution for strengthening their case of proving the involvement of the accused in the crime, the accused can also ask for the test identification parade to be conducted to dispute his identity and in turn, involvement in the crime. This is not a right of the accused but rather a recourse given by the judge as a matter or prudence. The SC has also clarified that in absence of other supportive evidences, mere refusal to undergo T.I.P by the accused cannot be a ground of establishing guilt[18].

How the T.I.P is conducted also plays an important role in its admissibility. Inconsistencies with the rules of how they are supposed to be conducted according to, can be easily challenged by the other party, usually the defendants and the evidence might lose all its value.

Conclusion

The evidence of expert opinion- although still prone to human error, holds greater credibility than T.I.P evidence. Judges are expected to exercise prudence in every step of the trial. It is time that they recognise that asking for opinions of experts is a step in exercising this prudence. Especially medical expertise is usually based on research and experiments over a long time, can be taken into account as substantive evidence. The proposition here is not to get influenced by expert opinions and base judgements solely on their testimony. Since it is still an opinion from a third person. But instead, the idea is to consider the perspective of another experienced individual who, whether due to previous experience, knowledge or research have valuable viewpoints to present a different perspective, leading to effective adjudication. Expert testimonies as evidence is important and there must be an increase in the number of cases where experts are consulted with. However, the evidentiary value of such an opinion must be determined on a case to case basis- it cannot be a black and white rule. Several things influence the value placed on expert evidence. The court must look at the qualifications of the expert and the manner in which they present their findings through research, backed up with facts and statistics etc. Not all expert testimonies should be considered as having the same weightage. Even though in practice, the courts have given a wider interpretation to the subjects where expert opinions might be required, the same must be included in the statute itself, otherwise it presents a very narrow basis of application.  Additionally, perhaps a court appointed expert would be a better choice for there would exist no question of bias, as might be in case of a party appointed one. There have also been views proposing for greater codification of rules related to expert evidence for reducing uncertainly and not relying on the discretion of the judges. However, this will greatly narrow the merits and scope of using expert opinions. Since, the evidentiary value of such opinions is not substantial, we should let the court exercise wide discretionary powers. It is neither possible, nor desirable to draft statutory provisions or set precedence in a case which would be all and end all regarding expert evidence.

Even though highly important in the process of investigation for the ascertainment of identity of the accused, the current judicial opinion on T.I.P evidence is justified- not entirely invalid but is not mandatory at the same time. T.I.P cannot be considered as substantial evidence is because of the nature of the evidence. It is argued that the credibility of the test is highly circumstantial and varies from case to case basis. Depending on the level of trauma experienced, either a person can forget everything or remember everything vividly. Therefore, a person’s mental state, perception etc. all play a vital role in the value that can be added to the test identification parade. All of these things are highly individualised and cannot be taken at face value without relying on other strong evidences. As discussed above, T.I.P is never considered as an independent evidence unlike in the case of expert evidence, even though the popular position is something else, there have been judgements where judges were of the opinion that trustworthy experts can be uncorroborated. T.I.P is a practice which has been around for a long time and has stood test of its time.

So yes in terms of evidence, they are peas of the same pod (non-primary evidence), however, to give an stereotypical analogy, expert evidence is like the more trustworthy and mature child, with experience (secretly more loved by the parents) and T.I.P evidence is the sibling to expert evidence who can never be trusted alone or there will be chances of disaster.  Both are gems of the corroborative evidence family but what they bring to the table is has different reviews. 


[1] Art, foreign law, science, fingerprinting, handwriting as mentioned in S.45 of the Evidence Act, 1872

[2] Section 47 of the Indian Evidence Act states that opinion as to the identification of the handwriting of a person, can be given by any person who has been acquainted with it before. This is perhaps a very loose idea of who an expert is.

[3] The State (Delhi Administration) v. Pali Ram AIR 1979 SC 14

[4] Chennadi Jalapathi Reddy v. Baddam Paratapa Reddy (2019) 14 SCC 220

[5] Malay Kumar Ganguly v Dr. Sukumar Mukherjee (2009) 9 SCC 221

[6] State of Maharashtra v Damu (2000) 6 SCC 269

[7] Padum Kumar v. state of U.P (2020) 3 SCC 35

[8] Murari Lal v. State of M.P 1980 AIR 531

[9] Gopal Mohan K. v. Govind Nair 2014 SCC OnLine Ker 1819

[10] Kerala v. Vijayan @ Ranjan

[11] Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors (2009) 9 SCC 709

[12] State of Maharashtra v. Suresh (2000) 1 SCC 471

[13] Raju Manjhi v State of Bihar 2018 SCC Online SC 778

[14] Malkhansingh v. state of M.P (2003) 5 SCC 746

[15] Raja v. State by inspector of police with Govindraj and ors v. State by the inspector of police. Singarapattai police station, Krishnagiri District <https://main.sci.gov.in/supremecourt/2017/39313/39313_2017_6_1501_19107_Judgement_10-Dec-2019.pdf> accessed 7 Dec, 2020

[16] Sharma v. State of Maharashtra AIR 1997 SC 1593

[17]Munshi Singh Gautam v. State of M.P (2005) 9 SCC 631

[18] Rajesh and anr v. State of Haryana 2020 SCC OnLine SC 900

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