 is V. Ramkumar, a former judge of the Kerala bar, Kerala, and he was kind enough to see to our request. And as usual, in his own style, he has given us 15 broad questions, which would be taken up. And amongst us, we have Mr. S.K. Prem, Raj Menon, and Shyam Padman, and myself, who will be taking these questions in a serratum. And just as Ramkumar, it's the other way around where he will be answering them. It's a rare chance where the lawyers can ask the question and the judges answering that. And be that as it may, before we request Mr. S.K. Prem, a Prem Raj, to introduce the topic and just as Ramkumar, I would request Mr. Shyam Padman to say something on how we should maintain the social distancing, keep on wearing the masks, because that is essential during these COVID times. And then Mr. Prem will take over. What I can say with the advancement of science, the distance between the stars, distance between other things has become very, very shorter. But as we go along, the distance between the souls are getting extended, at least through these sort of platforms. Though social distancing is the norm as far as COVID virus is concerned, we have been connected inextricably, I'll say, because of these platforms like what we guys have, what we have back in Kerala, I mean, the Littles, where an academic platform has been playing the role of bringing the North, South, East, West, everything. The national integration is through knowledge sharing. With these words, I'll request Prem to do the honors. Well, now to introduce the topic and introduce just as Ramkumar, it's a very, very difficult process actually. Now, today's topic, topic I would first introduce. Today's topic is the test identification period, which you call as TIP, which is a process by which the identity of persons or even of things which are related to an offense, which is under investigation. Or even a trial could be established through a parade. And this test is used in the actual meaning of an examination in which the witness is to find out the person or the thing in that particular parade. It is held at the insert of the investigating agency, and it is having a two-fold purpose. The first is that it is to enable the witness to satisfy themselves, that the person or the thing whom they are suspecting is really the one which they have seen during the commission of the crime, that is the scene of the occurrence. And secondly, it is to satisfy that the investigating authorities, that the person or the thing whom they suspect is the one that the witness has actually seen. And this really strengthens the evidence of the prosecution which collaborates the dark identification, which alone is the substantive evidence. And there are various procedures and precautions which have to be taken for its conduct, and which will be dealt with by Justice Virankumar during his talk. And there are exceptional procedures also. TIP could also be conducted by using photographs or sketch. And even by the voice of a suspect, kindly imagine in case the identifying witness is blind. But of course, the evidentially value of the voice identification, it may be fragile. It may be fragile unless it is supported by the other attendant circumstances. And we know that TIP needs to be, it has to be conducted as soon as possible after the arrest. Anyhow, delay does not matter also. And now you have Section 54A of the CRPC, which provides for the identification, which has come to the statute book, I think during 2006. And it's first provided, so I think during 2013, if my memory doesn't fail me. And we have a beautiful ruling by His Excellency Justice Jeevai Chandrachur for a three-judge bench, Rajesh Elia Sarkarya's case to AR 2020 Supreme Court, 5561, in which he calls out the presidential principles of the TIP. And he says that it is governed by 162 CRPC and that it is relevant under Section 9 of the IPC. And regarding the evidentiary value, this just identification period is having a very weak piece of evidence. And the weight of the evidence that depends upon the reliability of the witness, and the value can vary depending upon the reliability of the witness. And now, coming to the speaker, Justice V. Ramkumar needs no introduction. Everyone among us knows him inside out. He is a great judge who always bore his great mark smile even during many watershed moments, which included even a content case, a politically motivated content case. And to be very frank, he is my hero judge. And with those words, I would start with the first question. Sir, can I? Thank you. Thank you, sir. Thank you, Prem. Now, my usual caveat and my usual articulation, don't consider me as an expert. I am only a facilitator who is interested in sharing his knowledge and experience to you. And in the hope of learning a lot of law from you as well. Now, I personally feel that any law is, any theoretical law is better understood when applied to concrete fact situations. That explains these questions. Now, you can read the first question, Mr. Prem. The first question is, the question of identification of an accused person falls under which among the following statutes? A, the Code of Criminal Procedure 1973. B, identification of prisoners act of 1963. C, Indian Evidence Act of 1872. And D, Indian Criminal Code of 1860. Can any of the viewers venture an answer? Advocates? Post in the chat also. So, they will be only posting on the chat because we have muted everyone. Oh, you have muted. You have silenced everyone. Okay. It is, there is a confusion. Some get confused that it, in view of the recent amendment to CRPC, some are confused that it falls under the Criminal Procedure Code, Code of Criminal Procedure. No, it falls under the Indian Evidence Act. Indian Evidence Act is the question of identification falls under the Indian Evidence Act. Now, second question. Sir, which provision of the above law governs the test identification period? Now that you have said that it's the Indian Evidence Act, yeah, there's a lot of post coming in section nine is being identified. Yes, correct. Yeah, they are absolutely right. Section nine of the Indian Evidence Act is the provision which governs test identification period, TIP. Then pass on to question number three. Sir, because, which aspect of the above section covers test identification period? Should I read the section? Okay, no problem. Facts necessary to explain or introduce relevant facts. Facts necessary to explain or introduce a fact in issue or relevant fact or which support or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of anything or person whose identity. Please, please, please emphasize that. Facts which establish the identity of anything or person. This aspect of section nine is covered by TIP, test identification period. Yes. Sir, this third question is also done. Yes. What are the usual modes of fixing? Yes, yes. Second and third were intermingled. What are the usual modes of fixing the identity of the persons? Yes, as rightly suggested by Mr. Prem Raj, usual modes of identity are site, one is site, test identification period is site, identification by site, then comes smell for identifying a person through smell. The police very often engage the sniffer dog and then fingerprints by comparing the chance prints with the specimen fingerprints. An expert may be able to say that these fingerprints belong to the accused or somebody else. Then footprints. Footprints, of course, though don't have that much accuracy as fingerprints, but still footprints are also used for comparison. Then comes hair by comparison of chance hair strands with the specimen hair strands by means of visual microscopic examination and then subjecting the strands to microtomy, microtome evaluation by determining the medullary index of the hair strand. Then comes the through personal belongings like ornaments, wristwatch, handbag, etc. And in one decision of the Supreme Court, they said women have a particular uncanny knack of identifying their personal belongings like ornaments, etc. This is attributed only to women, not to men. Then skull by the superimposition technique, skull identification of a person through superimposition technique of the skull, then voice. Supreme Raj already referred to that voice, that is why voice analysis. Then DNA profiling by comparison of the crime exhibits with properly collected samples of cells usually through blood. Then comes the blood sampling, blood comparison, comparison of the blood group, blood, etc. These are the usual modes which fall under section 9 for identifying persons or things. Yes, we now pass on to question number 5. Next question, can I just put one question? That is certain movies we used to see that a person is differentially abled. I mean Prem was eluding to that. He is blind, but definitely identify the sound spoken to at the crime scene or identify the other than the sniffer dog. Is it relevant, his evidence? The olfactory capacity of human beings to identify persons has not been at least employed in crime detection because sniffer dog is the best person for that. But there also Supreme God has observed that evidence is very frail because you can't put the sniffer dog in the box and cross-examine the dog. He is not available for cross-examination, therefore it is a very frail nature. But then these are all techniques which instruct the investigating agency to know for himself that he is proceeding on proper lines. He is proceeding in the right direction. It is only for that. They don't constitute substantive evidence. They only corroborate these substantive evidence subsequently given in court. Yes, great. Question number 5. In fact, this question that was considered by the Supreme God in the Pradhamskis to state of Orissa and even an identification of the voice from the smell, it can be possible if there is evidence to show that the witness was sufficiently acquainted with the accused in order to identify his or her voice or smell. But that evidence is very fragile. Absolutely. Even handwriting also similar. Person conversion with the handwriting of a person. He alone can say, oh yeah, this is his signature. This is his handwriting. Even he can be duped. Such a person can be duped. Sectionally, it is widely worded in the sense like, I mean, if you are able to substantiate it in the court of law, well and good. Yes. Question number 5. What is the purpose and relevance of test identification for him? Yes. Prem had already mentioned that. I will go to a constitutional bench ruling of the Supreme God in her not sing versus data mother position. AIR 1970 Supreme God 1619 where this of these observations are very opposite. During the investigation of a crime, the police has to hold identification parades for the purpose of enabling witnesses to identify the properties which are the subject matter of the offense or to identify the persons who are concerned therein. They have thus a twofold object. First to satisfy the investigating authorities that a certain person not previously known to the witnesses was involved in the commission of crime or a particular property was the subject matters crime. It is also designed designed to furnish evidence to corroborate the testimony, which the witness concerned 10 tenders before the court. Therefore, test identification parade is always resorted to only in those cases where the witness concedes that he has no previous acquaintance with the assailant or the accused. Supposing the witness was seeing the accused or the victim was seeing the accused for the first time at the time of occurrence, then that may be a situation where the investigating officer has to be doubly sure that he is proceeding on the proper lines. Therefore, he resorts to the test identification parade so that the witness can give him more inputs about the person he is trying to identify. Sir, on the proliferation of the social media, could this not be defeated by giving publicity regarding one photo showing him as the person or possible culprit. That is the possible danger. That is the danger to a successful TIP. Even in media, forget about social media. There are instances where the police officers without covering the face, masking the accused, parade them through the road and the media covering them. Papers may carry the photographs and maybe next day the accused may have to undergo a test identification parade and the witnesses who are to identify will have no difficulty to identify him because they have already seen him in the social and other media. That is one danger to this system. Anyway, it can't be, you can't escape. Yes. The question number six. The investigating officer contacts an investigation parade during the investigation. One second. Before that, there's one decision which I want to bring to your notice. That is a decision by Justice Anna Chandee way back in 1960. 1960 KLT 965, Chellapannair versus state of Kerala, where the Leonard judge had made this articulation. Human memory is fallible and it plays a lot of tricks with us after the lapse of considerable time when we attempt to remember strange persons whom we saw for the first time. And that too for a short while. So the evidence given by the witnesses from the witness box becomes trustworthy only when it is corroborated by a test identification parade conducted by a magistrate at the investigation stage. In cases of this nature, test identification parade of the suspects ought to be held at the earliest opportunity possible before a magistrate. You have two statements of law by Justice Anna Chandee who was probably the first woman judge, high court judge in India. Yes. Question number six. Yeah, Premji. Oh, Shyamji. Your turn, Shyam. Okay, I will read it then. The investigating officer contacts an identification parade during the investigation and relies on the same during the trial of the case. The written proceedings prepared by the investigating officer shows that the identification parade was conducted by the IO in a fair manner giving no room for attacking the procedure and that the victims are correctly identified accused persons. Can you not treat the evidence of the IO as a corroborated piece of evidence? He is an investigating officer. If he can investigate a major, a cognizable offense, even come like murder or rape, why not give trust to the investigating officer? He can conduct it full proof in a fair manner. That is what he did in this case. But then when he gets the confirmation regarding the identity, etc., either through science or by words, what is it that is he doing? He is getting a confirmation. He is the investigating officer. It will be a statement falling under section 161 and hit by section 162. In fact, way back in 1943, I'm sorry, 1940, 1936, a division bench of the Madras High Court in Guruswamy Tevan versus Emperor, 1936 MW1 criminal 25, held that the actor of a witness identifying a suspect to a police officer is not a statement and therefore it will not attract the ban under section 162 CRP. This decision was specifically overruled by the Supreme Court in Ram Kishan Mithan Lal Sharma versus Tato Bombay. A year 1955 Supreme Court, 104, where a different view taken by the Calcutta High Court in a year 1943 Calcutta, 1946-1944 was upheld and this Madras view was overruled and the Supreme Court said no, when a witness identifies the suspect to an investigating officer, however fair in a fair manner he conducts it. It is hit by the interdict under section 162 CRP. There's a beautiful judgment recently in 2017, Murugaswamy versus state represented by Inspector of Police, Coimbatore and that is 2017, 5CTC 561 rendered by the Chief Justice Madras Aikut and P. N. Prakash. Justice P. N. Prakash is the author of the judgment, beautiful judgment. They have given the historical background of the D.I. Parade and the way in which Madras Aikut decision, 36 Madras was overruled by the Supreme Court etc. But every one of you should read that decision. I can give you the CTC also, 2017, 5CTC 561. Investigating officer cannot bypass the process of test identification parade through the magistracy and cannot themselves undertake identification process. When the police show the accused to a witness and ask the witness whether he can identify the accused, the answers given by the witness or even by the accused at that time will be hit by section 162 CRPZ. Earlier in the judgment which I referred to by Justice Anna Chandi, the Leonard judge had taken the same view, Celepp and Noir versus the state of Kerala, 60 KLT 965. Then there is a beautiful decision by Justice U.L. Butt and TV Rammusion, authored by Justice U.L. Butt. Unfortunately, the full text of the judgment is not available. 1989, 2 KLT, short notes, 2 case number 3, beautiful judgment. In fact, KLT and many of the law journals have the nasty habit of not reporting long judgments. Long judgments, they don't report. They will only give it in short notes. In this case, even the name of the parties are not given. Names of the parties are not given. See, what KLT did? Okay, question number 7. The next question would be, if investigating police officer cannot conduct a test identification parade, who else can conduct the test identification parade, executive or judicial magistrate? Yes, there is some confusion as to whether a judicial executive magistrate can conduct the test identification parade itself is a judgment law. The TIPs are conducted under the supervision of the executive and judicial magistrates. In fact, in Yakub Abdul Razaak Memon versus state of Maharashtra, 2013, volume 13, SCC page 1, a special executive magistrate conducted the TIP. Likewise, in Raja versus state of Karnataka, year 2016, Zubringur 930, a Thasildar of Bangalore North conducted the TIP in that case. So, executive magistrates also can conduct TIP. Only thing is they have to do it in a foolproof and fair manner. Because this function cannot be interested to the police for the reason already stated. Whatever they do will be hit by section 162 CRPZ. And the judiciary by and large do not believe the police in proper conduct of TIP. Yes, then until the year 2006, when the two amendments, the two sections which Mr. Prem mentioned, that is section 54A and section 291A, which were introduced by the with effect from 2006, came into force. The procedure both in Kerala and Tamil Nadu, I do not know about the other state, was that for the conduct of test identification period, the police will move, the investigating police will move the chief judicial magistrate and request the chief judicial magistrate to requisition the services of a judicial magistrate. CJM will requisition the services of a judicial magistrate other than the jurisdictional magistrate for conducting the TIP. That was the procedure. Now, after the insertion of section 54A to the CRPC, the jurisdictional magistrate himself, when moved by the investigating police officer, can direct the accused to undergo a TIP in the manner to be suggested by the jurisdictional magistrate. Of course, he will not conduct it. He can either request the chief judicial magistrate or any other magistrate to conduct it, so that now the police need not go to the chief judicial magistrate directly and get a circumlocutory way of getting a magistrate for TIP. That procedure is, but unfortunately 54A only recognizes the executive magistrate. Judicial magistrates are not except when the person identifying is mentally or physically disabled. In a case where mentally or physically, the identifying witness is either mentally or physically disabled, then the proviso to section 54A, the TIP shall be conducted by the judicial magistrate. In all other cases, it can be by executive magistrate. And new section 291A renders a document purporting to be the report of identification under the hand of the executive magistrate, exempts him from being called as a witness. But such a benefit is not given to a judicial magistrate. That is according to me the failure of the legislature. They could have included the judicial magistrate also. So that here if and when the parties want the judicial magistrate or executive magistrate to be made available for cross-examination, they can summon. Otherwise, his report assets can be accepted by the court. We do it in civil cases, draw the 26th route and is it not? The commission report, etc. Yes. Yes, question number eight. What is the procedure to be followed while conducting a test identification? This is one on certain aspects on which there is a lot of confusion. In fact, we in Kerala are following the Madras procedure, Madras practice. So all covered by directions issued by the High Court and in the form of police orders. The procedure is what the magistrate should do. In fact, I can read some of the procedures. The selection for the parade of non-suspects of the same should be of the same religion status and who are unknown to the witnesses. Nowadays, I don't think persons of the same because you can't employ policemen as non-suspects to be paraded along with the suspects. Therefore, the usual scenario or usual venue for conducting TI parade is the jail prison, where prisoners are being mixed along with suspects as TI parade. And Madras, as per the Madras High Court procedure, at least nine non-suspects should be mixed with a suspect. And they should be so dressed up as to look like the suspect or should be looking almost identical so that there will be some confusion. In spite of that confusion, if the witness is able to identify the assailant, then the TI parade can be said to have successfully conducted. Then wherever possible, privacy should be secured for the parade away from public view. Then the names of total number of men assembled for the parade, including both suspects and non-suspects, should be recorded by the magistrate. It is desirable to exclude police officers. This was fixed long back. It was considered desirable. Nowadays, they are never included. Consistent with the safeguards against the escape of prisoners in custody, if jail officials are presented the parade, they should be kept in the view of the magistrate all the time. And they should not be allowed to access either to the witnesses who have to be summoned for identification or to the persons assembled at the parade. The witnesses who have been summoned for the parade should be kept out of the view of the parade. Each witness should be fetched by a person, pumed separately. And after his participation in the parade, that is identification is over, that witness should be segregated from the others. So who have yet to be summoned? So one witness who has already identified the suspect, either identified or not identified, then he has to be segregated. He should not be allowed to mix with the other witnesses to be summoned for identification, because for fear of information being passed on. The identification over that witness should be segregated from the others to have who have yet to be summoned. This precaution should exclude the possibility of signals or pre-arranged movements. It is desirable to change the order in which suspects have been placed at the parade before the arrival of the next witness. Supposing nine witnesses are paraded, the person standing third from the left is the suspect, others are non-suspect. Then after one witness identification process is over, if you before calling the next witness to change the order, so that even if some some signals or messages conveyed, that can go wrong. It is desirable to change the order in which suspects have to be placed at the before they arrive at the next witness. The pumed deputed to fetch each witness should be kept out of the view of the parade and proceedings. Police personnel should not be used for this purpose. So every witness is summoned through a pune of the magistrate and after that the pune is segregated, but he does not mix with the others and pass on some useful information to the next witnesses. Before a witness is called upon to identify the suspect, the witness should be asked whether he admits prior acquaintance with any suspect whom he proposes to identify and that fact should be recorded because this identification is paraded or is conducted only in cases where the witness did not have any previous acquaintance with the assailant. But supposing the witness admits to the magistrate, I know this person, I know him, though I don't know him by the name, I know him, he is residing near my house, he is my neighbour. So such thing, then that will have to be recorded by the magistrate. Any objection by any suspect to any point in the proceedings should be recorded. Supposing the accused says, one of the suspects says, there is some unfairness in the proceedings. He will have to, he can say that, he can tell the magistrate, the magistrate will have to record that. So this is recorded by a police or whether it will be hit by 162. Mind you, that is why police investigating officers are excluded from TI parade. Where a subject wears any conspicuous garment, the magistrate conducting the parade should, if possible, either arrange or similar wear to others or induce the suspected person to remove the conspicuous garment. There are some accused persons deliberately wear some, either he grows a beard or he wears some special garment so that it may be, he may be thinking that he is so special, but that may help the witness to identify him. Therefore, the either the magistrate will have to ask the non-suspects also to wear similar garments or the magistrate will have to ask him to remove that garment, special garment, which is wearing to note detection, special detection. There are a lot, a volume of rules prescribed by the vice judges and passed on to the police manual so that it can be done full proof and in a fair manner. This is the procedure to be followed by every magistrate. Now, after the amendment of rule 54, insertion of section 54A, etc., now the trial magistrate or trial court itself can direct the accused, the arrested accused to undergo the TI parade and the procedure also the court can prescribe, but I hope that they will not prescribe a non-magistrate to conduct the TI parade because the procedure is not, the modalities are not laid down in section 54A, but going, reading section 291A, it is clear that they had in mind only the executive magistrate, not even the judicial magistrate. Yes. And some, so you may note, note to some rulings on this point regarding the manner of conducting TI parade, how, how fair it should be, how full proof it should be. 1989 took LT short notes to case number three, which I already referred to, Justice UL Butt and TV Ramachan, authored by Justice UL Butt. That's a beautiful decision, but unfortunately full text is not available. We have only the short notes. Then Chandarsingh versus State of UP, A.R. 1973, Supreme Court 1200, three judges. There where the accused was a bearded man with a tape in neck. The five other persons who were paraded were not similarly bearded and the TIP was therefore held to be a farce. Again A.R. 1973 Supreme Court, 337 is another decision where also there was no homogeneous mix of the suspects and non-suspects. The, in fact, after the judge, after the judgment of the Dushan Benj in, in Murugasamy case by the Dushan Benj, authored by Justice P. N. Prakash, all central presence in Tamil Nadu have a special TI parade room with one-sided visible glass, glass partition so that the witness can see the accused, but the accused cannot see the witness. Yes. Question number nine. Because we go to question number nine regarding this procedure which is to be followed in contacting a TIP. No, that is A and B. No, before we go to question nine, question eight, which we do. Okay. Okay. Okay. Beautiful ruling by Justice Ram Kumar along with Justice Pappanabhan Nair in the Jayakrishnan master murder case, which of course was markedly reversed later, but not on this aspect. And the citation is 2005 volume 3 KLT 1075. That deals with almost, I think nine or ten procedures are laid down in that particular thing. And going to the ninth question, sir. A and B are the only two eyewitnesses to an occurrence. Both of them had no previous acquaintance with the accused. Both of them had only a fleeting glimpse of the accused, whom they were seeing for the first time during the occurrence. The fate of the case hinges upon their identification of the accused. When A was examined before the court, he correctly identified the accused, but he was unable to identify the accused during the TI parade. B was given up by the prosecution, but the magistrate who conducted the TI parade was examined by the prosecution. The magistrate with reference to the memorandum, which he had prepared at the time of the TIP, gave evidence to the effect that B was able to correctly identify the accused during the just identification parade. If the court were to equate the accused, is it justifiable? If so, give reasons. See, this question and the next question will give you the full substance of the principle of a identification parade, the relevance, the substantive nature and the corroborative nature of the identification parade and the substantive nature of the evidence given in the court. See, this is a case where both A and B are two witnesses who are eyewitnesses to the occurrence. Both of them had seen the... Do we take the 10th question also then if you are saying the answer would be together? Not necessary. The answer to this may not apply to the answer to the next. Once you understand both these problems, once you understand both these problems, the principle of identification parade, the nature of their evidence, the admissibility, evidentiary value, probative worth, etc. will be clear. It's a case where there were two eyewitnesses, A and B. Now, both did not have any previous acquaintance with the accused. Both of them were seeing the accused for the first time at the time of occurrence. They had only a fleeting glimpse. That is only a very casual glimpse of the accused. That is insufficient for them to remember the features of the accused, assailants. Now, during the trial, A correctly identified the accused in dock identification. Identification in court is the substantive evidence. Identification in court is the substantive evidence. He correctly identified. In the case of B, prosecution had given up B, but the magistrate... But in the case of A, even though he correctly identified the assailants in court without any hesitation, during test identification parade, he was not able to correctly identify. The magistrate who conducted the TIP brought his memorandum and he said that A was unable to identify the assailant. But mind you, the substantive evidence is the evidence in court. Then in the case of B, prosecution gave up B. But magistrate who conducted the TIP very credibly deposed, with reference to his memorandum, that B had correctly identified the assailant during TIP parade. This is the evidence before the court. The magistrate, supposing he acquitted the accused, both the accused. Can you find fault with him? This question was devised by me for the sake of judicial officers in the Kerala Judicial Academy. This question and the next question. They will give you the in and out of TIP parade. Now this is a case where A's identification in court is absolutely worthless because when his memory was fresh, when his memory was fresh, he could not identify the accused during TIP parade. TIP parade is conducted during investigation. He was unable to identify. In the case of B, there is no substantive evidence. He has not mounted the witness box. We have only the hearsay testimony of the magistrate who conducted the TIP parade by saying that he correctly identified. So this is a case where court will be justified in acquitting the accused because for want of substantive evidence. He got the principle. If all of you got the principle, we will pass on to the next question. The next question is also an illustrative one. At about 1950, while the housewife and her daughter are watching the TV in the house, the two accused persons gained entry into the house through the back door and suddenly bounced upon the mother and daughter. They threatened the mother and daughter with dire consequences if they raised any alarm. The accused asked the mother and daughter to remove the ornaments and have it over to them. When they refused, they were tied down to a pillar and the mouth was gagged. The accused then forcibly snatched the jewelry worn by the mother and daughter. They threatened the mother and daughter to kill them in case they complained to the police. The accused were total strangers to the mother and daughter who had no previous acquaintance at all with the accused. Person to the FIR registered at the instance of the mother. The police commenced investigation, arrested the accused persons and charged sheeted them. No test identification parade was conducted by the police. Both the mother and daughter during trial correctly identified the accused. It is argued by the defense that their dog identification of the accused for the first time is absolutely valueless. Now in the former question I forgot to give you the citation. There is a case which went from Kerala, Kannon versus state of Kerala. Here 1979 Supreme Court 1127 where the Supreme Court held that dog identification for the first time in court without there being any correct test identification parade by a witness who had no previous acquaintance with the accused is absolutely valueless. That is why A who had no previous acquaintance and who though correctly identified in court was not able to correctly identify the accused when the memory was fresh during TI parade. In the case of B there is not even substantive evidence in the form of evidence before court. Likewise here, here also both the mother and daughter had no previous acquaintance with the assailants. But no TI parade was conducted by the police in spite of the fact that they had no previous acquaintance with the assailants. The question is whether a conviction can be safely recorded. This is an exception to the earlier principle that if earlier case they had only a fleeting glimpse, a lightning glance of the assailants so that they could not remember the identifying features. But this is not such a case. Here both the mother and daughter had sufficient exposure to the features of the accused because they asked them to remove their ornaments. They refused. Then they were tried down to a pillar. Then their mouths were gagged. All this time they were watching the assailants. So they had sufficient opportunity to interact with the assailants. Therefore not to stand in the fact that they had no previous acquaintance with the accused since they had sufficient interaction and sufficient exposure and opportunity to study their features. That makes all the difference. Therefore even though the police did not conduct a test identification parade, the identification of these assailants by the mother and daughter in court can be given full credit. That is you may refer to Roni Elias, Ronald James Alvarez versus Teto Maharashtra. Here 1998 Supreme Court, 1251. Again Damu Maharashtra. Teto Maharashtra versus Damu. Here 2000 Supreme Court, 1691. Again in that Shraddhananda case, Swami Shraddhananda alias Murli Manohar Misra versus Teto Karnataka. Here 2007 Supreme Court, 2531. If the assailants, if the witnesses or the victims had sufficient interaction with the accused in such a manner that they had sufficient exposure to the features of the assailants, then the fact that no TI parade was conducted is of no consequence. So these two questions will give you the substance of the identification under section 9. In fact, one recent decision of the Supreme Court in year 2020 Supreme Court, 556. I am sorry, year 2020 Supreme Court, 254. Raja versus Teto of Inspectorate by Inspector Police. There by Uday Ullalith. They say that even if the witnesses are not able to say the identifying features of the assailants, that is of no consequence. It is not necessary that they should either mention in the FIR or in the earlier 161 statement that these are the features. Then only a TI parade can be successfully conducted. No. Even if they don't say that, the TI parade conducted will be unassailable. In fact, when Mr. Prem gave me his 2020 citation, I thought that this was the citation you were referring to, but that is something else, it is not. There again, the exclusivity of seeing the these two persons alone in the dock, will it not reduce the credibility than the other one? This is only corroborative evidence. Mind you, the identification in court is substantive evidence, but the test identification parade is only corroborative evidence. When the witness correctly identifies the assailants in court, then it corroborates their earlier test identification identification, identification during TIP. But then supposing they were not able to identify during TIP, which happened in Kanan versus Teto Kerala, their identification for the first time in court without there being a proper test identification, correct? Test identification will be absolutely valueless. There are other rulings of Supreme Court also taking the same view. Dock identification for the first time, of course, mind you, this is also subject to these riders. The witness should not have any previous acquaintance with the accused prior to the occurrence. Acute should be a stranger on the date of occurrence. And no TI parade was conducted. And witness is identifying for the first time in court. That may be. Otherwise, of course, that danger is always there, Mr. Shyam. They are able to mingle with the crowd. Instead, they are placed in a separate place as accused. That is there. Even otherwise, there are instances where policemen, in fact, supposing there are two accused persons, the witness may not be knowing, supposing he is a false witness. He may not be knowing who is A1, who is A2. And what are the acts done by A1? What are the acts done by A2? In such case also, police may tutor him. See, there is some, I am getting the, some echo. Mr. Vigas, the police may tutor him and he may ask tutor by the police, he may correctly identify A1 and A2. All these dangers are there. Because it's this. Question 11. Sir, is it, is not evidence of test stratification paid a piece of substantive evidence? Yes, we already answered that. Test stratification parade is never a piece of substantive evidence. It's only a corroborative piece of evidence. Substantive evidence is the evidence of the witness given in court while giving evidence during trial. So, you may refer to a year 1994 Supreme Court, 2420 Suresh Chandra Bahari v. Tato Beghar, which decision is also important in the case of section 27 recovery, where the Supreme Court held that no public witness need be there for 27 recovery. There is a wrong notion among the policemen and also among the lawyer community and judges also that unless there are two, at least two witnesses to witness the section 27 recovery, it cannot be proved. Because we all know that section 27 is in the evidence act, the proviso to section 25 and 26. The law does not say that there should be independent witnesses. It is all made by the investigating officer as a, as a contemporary, contemporaneous document so that he might have conducted so many investigations during his lifetime, during his career. So, it may not be humanly possible for any officer to recollect the facts of each and every case investigated by him. Therefore, to have credibility to, to place the facts on record, he may have a contemporaneous mahasar or panchenama. That is not the requirement of law. It's only a contemporaneous document to show what all things he did. So, so that when after, after days or days or even weeks or months or years he is testifying before court, he can refresh his memory by looking into the panchenama or the case theory. That this, this 94 Supreme Court decision is also relevant in that aspect. Then AR 1990, 99 Supreme Court 3916, that it is what is substantive evidence is the evidence in court, not TIP. TIP is only corroborative piece. AR 1990, 96 Supreme Court 2511. AR 2007, Supreme Court 676. There are any number of decisions, including the decision which Mr. Prem Raj referred to. Yes, question number 12. Question number 12 is that the police failed to conduct the TIP in spite of a demand by the accused, even though the accused was already known to the eyewitnesses, including the victim. Is not the failure by the police page? First and foremost, the accused does not have any right to dictate terms to the investigating agency. He has no right to be heard. He has no right of audience during investigation. Even in the matter of change of investigating agency, he has no right to be heard, because he is yet to be summoned. That is why in 200 examination, we noted the other day, when the sound statement of the accused and the witness of the complainant and the witnesses are being recorded. Even if the accused happens to be present in court, he has no right to participate in the proceeding because he is yet to be summoned. Likewise, during investigation, he is not summoned. Therefore, he cannot participate. He cannot dictate terms to the investigating officer. Therefore, even if the accused wants the TIP to be conducted, the investigating officer need not conduct it if he is otherwise satisfied that the witness had sufficient exposure to the features of the accused. There were previous, they had previous acquaintance prior to the occurrence. A year 1998 Supreme Court 192. A year 1998 Supreme Court 192. Again A year 2002 Supreme Court 2787. 2787. Question 13. My question is a natural corollary of what this frame asks. I will put in this manner. A doctrine of self-incrimination, everything might be included. Can an adverse inference be drawn against the accused for his refusal to submit to this identification period? I refuse. Why? Why should he fight Sai? Why should he fight Sai to a TIP being conducted? If he is not the assailant, if he is not the culprit, the witness will not identify him. Why should he fight Sai? That shows he has something to hide. He has got something to hide. Therefore, in a case where he unjustifiably refuses to undergo TIP, court may be justified in drawing an adverse inference against him. Manu Sharma v. state in. Pardon? Right to remain silent. It's writing heavily, that's why the background says. The right to remain silent is available to the accused. Can it be connected with this one? He can be silent. For TIP, he need only silently stand there. He need only silently stand there. It does not violate his right to silence. Sir, but Manu Sharma was considered in the latest judgment of just Jeevai Chandrachur. It is a pre-judged scheme. That is Rajesh Sarkari v. state of Haryana, AER 2020 Supreme Court 5, it is a 5561. The Supreme Court rules out the finding of guilt that cannot be based solely on the refusal of the accused to undergo that TIP. He can refuse. Yes, certainly. Certainly. See, adverse inference is not for finding him guilty. That may be one of the circumstances which the court may consider. Take into account for while convicting the accused. Supposing there are other adverse circumstances against him. This circumstance also may point towards his guilt. Why did he fight shy and refuse to undergo TIP? That's all. That is merely from refusal, like abscondence, as in the case of abscondence. Abscondence is not a ground for straight away convicting him. Abscondence may be one of the circumstances after the occurrence of an accused person absconding. That may be one of the circumstances which may go towards finding him guilty. That is not the sole circumstance. Yes, AER 2010 Supreme Court, 2352. Question number 14. There again immediate contact after the occurrence. That is the absconding. Of course. Of course. I may have a fear. I may engender a fear that unnecessarily police are going to. Because I was the only person here. So police may unnecessarily harass me. Why leave the place? Or a person who is having witnessed a crime, a dastardly crime, a heinous crime committed in front of him. He may vanish. That is what the Supreme Court just is a Chinapretty had articulated. I think it is 1984 Supreme Court also. Which is at citation. Prem may be knowing. Some stay rooted. Some stay rooted at the spot. Some become speechless. Seeing a ghastly crime being committed. Some stay rooted to the spot. Some remain speechless. Some slowly sculpts away from that spin and goes as far as possible. Or some even counter-attack. Some go to the rescue of the victim. Some even go and not only rescue the victim. May even counter-attack the assailant. These are all observations made by Chinapretty. I don't remember the citation. I think it is 80s. No, no. Not Sony. Ram... I don't remember the citation right now. Beautiful observation. Again, I think in the same decision just as Chinapretty said, if murder takes place in a brothel, prostitutes are the most natural witnesses. If murder takes place in a residential house, inmates of the house are the most natural witnesses. You can't dub them as unnatural or interested witnesses. Likewise, if murder takes place on a public road, passes by, they may be chance witnesses. Passes by are the most natural witnesses. Beautiful exposition of the law by justice Chinapretty. Same decision. I don't remember. I think 84 or so. I don't know. Or 9. I don't remember. Yes. Question 14. In a case where other persons with the same striking features as those of the accused were not mixed up during the test identification plate, can it be said that the identification of the accused is unreliable? It was held to be unreliable and unfair. I have already given the citation AR 1973 Supreme Court 1200. Again AR 1973 Supreme Court 337. Some particular features of the accused of the suspect should be there, should be at least planned in the case of non-suspects also so that all look alike, creating a confusion in the mind of the witness. But I still don't understand why confuse the witness. We have a round of persons who have got nothing to do with the crime at all. None of the accused or 100% different persons. That is what is happening in TI period. 9 persons who had nothing to do with the crime are paraded along with the sole accused. We will have two rounds. First round, nobody who has got nothing to do with the crime. And the witness will be compelled to at least identify one. No, there is no compulsion. Witnesses are merely asked. Please find out whether the culprit is there among these 10 persons. That's all. Yes. Question 15. The last question. It's a very long question. All because it's all covered by a decided case of the High Court of Kerala. So it's a long question. But very interesting question. Very interesting question of law also. Who will read it? We are heading towards evening. So we will ask Shant to read it. Me. Oh my God. I pray we will be doing that. Okay. I'll do the, I mean. A 11 year old boy was employed as a domestic servant by a government nurse. One day, a gold necklace of the nurse was found missing. Suspecting the boy, she took him to the police station and reported the matter. She went back to her house, leaving the boy at the mercy of the police. After some time, a detailed search in the house, the necklace was found out. The nurse went back to the police station and conveyed the said information. The boy was released to her custody. But by then the boy had been brutally tortured by four police constable while the boy was in the police station. On coming to know of the incident, the boy's mother came and took him first to the hospital and then to the judicial magistrate. The magistrate took cognizance of the offenses revealed. The boy told the magistrate that he can identify the four policemen by the face and he does not know the names except one whose name was referred to by the companion policeman. A petition was filed on behalf of the complainant to conduct a test identification parade before the memory of the boy fails. The magistrate allowed the petition and got the concurrence of the Chief Judicial Magistrate also. After ascertaining the names of the policemen who were on duty on the faithful day, the magistrate asked 15 of them to appear before him for a test identification parade on a specified date. One of the said policemen challenges the set order before the High Court under section 482 CRPC. Will he succeed? See, a 11 year old boy, he was employed by a nurse. A necklace was found missing. The boy was suspected. He was taken to the police station. Matt was reported. Then she had probably the policemen might have advised her to make a further search. Then leaving the boy there, the nurse went home. She made a further search and the necklace was found out. Then she returned and reported the matter. The boy was released to her. She found that the boy had been brutally manhandled by four police constables while he was in the station. Then the next day the mother, boy's mother came to know of this. She took the boy and took him to the hospital, got him treated and a medical certificate was also obtained. Then with the medical certificate, she went to the magistrate and filed a large complaint. They cannot complain to the police because offenders are policemen. Therefore, she lodged a private complaint. What the magistrate did was the magistrate said that TIP is a matter during investigation. This is not a situation where investigation is in progress. Therefore, I am sorry. The magistrate ascertained the policemen who were on duty on that day and asked 15 of them to appear before him to conduct for the purpose of the ATI parade. One of the 15 policemen challenged that order before the high court. These are the facts of a reported decision. Venugopalan vs. Prakashan, 1985 KLT 615, where many of us used to feel that the high court should not have left the boy in the lurch. Ultimately, the high court said the magistrate was not exercising power during investigation. Therefore, he could not have done this. Of course, technically speaking, the learner judges Padmanabhan, who was one of the finest judges of the high court, our state, our country, but in fact, he took the services of Amicus Curie also. The directorial of prosecution, Mr. M. B. Kurup, was the Amicus Curie. What happened was, the learner judge said, if the magistrate were to conduct a TIP parade, he will disable himself from conducting the inquiry further because he will be in the position of a complainant. Therefore, what actually he should have done is to inform the chief duties of the magistrate and requisition the services of another magistrate for conducting a TIP parade. Of course, 54A was not there. But then still, the magistrate was not helpless. But the high court said, because I have sympathies for the boy, but unfortunately what the magistrate did was wrong because the magistrate could not have conducted a TIP parade by himself. Therefore, in the meanwhile, the directorial of prosecution offered that in case a complaint is given to the crime branch police, higher police officers will conduct an investigation. And there was a disciplinary action being taken against the four police constables. According to that, the learner just allowed the 482 petition. This was a very tragic case. But unfortunately, this is a case where justice is a prisoner of law. It is just like the other session we had in Lettuce. Presidents are supposed to do low for the state of the country, not to just somehow or other settle that matter. Justice revisions. Sir, the other decision I got, it is Rana Pratap v. State of Haryana. Rana Pratap, correct, correct, correct, correct. AR-1983, Supreme Court, 680. Okay, Rana Pratap, Rana Pratap. Rana Pratap. Beautiful observation by Chinna Pratap. Supreme Court, 680. 83. Citation, I was posting on the chat. Yeah. 83, Supreme Court, 680. AR-80. Beautiful observations. Because you don't dub a witness as interested witness, chance witness. After all, the witness is a member of the household exhibit. When the occurrence takes place inside the house, they are the natural witnesses. Likewise, clean example, clear example, when an occurrence takes place in a brothel, prostitutes and paramedics are the most natural witnesses. Beautiful exposition of law. You don't dub them as unreliable or interested witnesses. With that, I think we have covered all the every aspect of test identification period. We can throw the session for questions. For the best of my knowledge, ability and capacity, I will answer some questions. Because? Yeah, I am just checking it out as to whether any question has come on the YouTube. The, you can just unmute. There is a senior public prosecutor of the High Court. I do get briefs. Name, name. Briefs. I haven't seen him. What I can do is I will unmute everyone but allow everyone to be unmuted. But actually, one should only unmute himself who wants to ask a question. Otherwise, there will be a lot of buzzing. He was my prosecutor once upon a time. We have unmuted everyone. Briefs. We have allowed everyone, but anyone who wants to ask a question can unmute. Briefs, sir, you can unmute. Briefs, you can put the question. No question, Prem. Let's say it better. Is it so? That 2047 has raised their hand. I don't know the name. 2047, if he wants to ask a question, he can unmute. Unmute and yes, put the question. 2047 would need the password. That's why you would have logged through that. I will just check it out because on the YouTube, we don't have. I will check it out on the Facebook. Yes, this is 40. This is by Satpashi Paul on Facebook. It says for the safeguard of witnesses and victims, is it possible to make a test identification in the virtual mode? Virtual mode. How do you ascertain that all safeguards have been complied with? You do not know whether the person's paraded. There is any police intervention behind the person's paraded. You can't see. There are unseen actions, unseen powers behind that. Unless you personally verify, that is why the magistrates, the judicial magistrate, especially the magistrates, whether executive or judicial, they are employed for doing this because they will, without any fear or favor, they will do it in a fair, foolproof and fair manner. Sir, a question has come up. Whether an accused has got legal right to question the veracity of the stratification? Yes, he can do it during the trial, during the trial. He can say that a particular police constable had interfered and I had made a mention to the magistrate. Magistrates either did not record that or recorded and said that it is not, that is not true. All those things can be said. He can. After all, it is only corroborated evidence, not substantive evidence. Very, very, very, having very little value. Why the right of the investigating officer to conduct the test identification by rating 6? He is excluded. What is the question? Why the right of identification, investigating officer to conduct test identification by rating 6 is the question by advocate Yogi. That is already answered. When the investigating officer conducts a TI parade, any act of identification, either in the form of gestures or statements, they are all done during the police hour investigation. No statement made to a police officer conducting investigation under Chapter 12 can be used. That is the total embargo under Section 162, one CRPC. It was overlooking that in 1936, Dushanpethi of the Madrasa Code took that view, because act of identification is not statement. That is what the Madrasa Code said. The Supreme Court said no. Act of identification also amounts to a statement, which falls under Section 162. Yes. Somebody has mentioned that there are criminal rules of practice, at least in Andhra Pradesh, which contemplates the procedure how to conduct it, Rule 32. Yes. Every state has got a procedure. We in Kerala were following the Tamil Nadu procedure. This is by Priyanka. Victim knows the accused persons. Still, test identification of the parade was conducted, but test identification parade was conducted by a senior clerk of the executive magistrate. On the basis of this defective test identification parade, accused was acquitted. Was the court right in acquitting knowing that the test identification was not required in the first place? That may not be the only evidence. That may not be the only circumstance. That may be an additional circumstance. I told you, the TI parade cannot be the sole material on which a conviction or acquittal can be recorded. It cannot form the sole basis for a conviction or acquittal. This is by Murgusen. Whether the public prosecutor can conduct the test identification parade in his office or not due to COVID-19? Let him try that. And see the consequences. This Anil Kumar's question, Mr. Premraj can take it. He is a biased person. He is interested in a conviction. So, how can he fairly conduct a TI parade? So, that principle that nobody can be a player as well as a referee in the same match. Exactly. Now, another question is that, in a murder case, eyewitness seen the accused for the first time while the incident happened. In this case, TIP was not done. What is the value of that witness? Already answered, Tanan was the state of Kerala. And if during the occurrence that they had sufficient exposure, sufficient interaction, then failure to conduct a TIP may not be fatal. May not be fatal. All depends on the length of the duration of the occurrence, the opportunity of the witnesses to see the accused and identify his features, etc. It all depends on that. Not merely the failure of the TI parade. Even if the witness may be a second witness, there can be a valid conviction without a TI parade provided they had sufficient exposure to the features of the accused. Yes. Sir, is accused administered oath when he appears as a defense witness? Even when he appears as a defense witness. Definitely, he has to be a pre-15. You mean pre-15? When he is appearing as a defense witness, he has to be administered oath. He voluntarily mounts the witness box as a defense witness. So, he has to be administered oath. Raise the hand. Can you unmute and put the question? We have allowed everyone who wants to get unmuted. Question is, but meanwhile, Ganesh says, is it the mandate to touch the accused while identifying the accused person or identifying or pointing out from a distance? What is the requirement? He can either say the person standing, the third from the right, or the fourth from the right, or the second from the left, either way, or he can go near him and touch him. It's all within the description of the magistrate. Because the magistrate will have to record he correctly identified or he did not correctly identify. That memorandum he has to prepare. Therefore, he will have to be satisfied whether the identification is correct or not. So, this is a question R.T. has posted, Prakash, can magistrate rely on a local S.H.O. to arrange non-suspects when the test identification trade is not held at jail? Held in jail. Nothing wrong. Only thing is, the police will be having some bias, prejudice, etc. Because if non-suspects are not available in jail, somebody will have to be fetched. Nothing wrong. In fact, there have been cases where police were asked to secure non-suspects with similar physical things and identical features, etc. Nothing wrong. But ordinarily, they will not be asked. But nothing wrong. Even in the jail, the investigating officer is requested to arrange the non-suspects. Nothing wrong. Because the actual act of identification takes place before the magistrate. And the police should not be allowed to have an interview with the identifying witness. Questions are over. I will ask Mr. Shyam to propose a vote of thanks. Mr. Shyam? Yeah, yeah. What else can I say? No, not like that. It was a forensic tweet, I'd say, to all the censors satiating all our requirements as far as the test identification period is concerned. Like Ramkumar sir used to say, he is a civilized criminal or a criminal. I used to say the other way around. Like, basically he was a criminal but I'm civilized because I'm dealing only with civil cases. But attending his classes and knowing him at close proximity along with Premraj and the entire team, I got a fascination nowadays and I think I'm becoming a criminal back again. I think, I don't know, for the good or the worse, either way. Today, the interaction was good. The questions were so formulated and articulated that all the facets and nuances of a specific area was able to be covered. This is what exactly what these webinars are meant to me. Instead of saying something so general that end of the day, everybody claps and go home and there is nothing to be taken home. But the speciality of this is Ramkumar sir's class is that once the class is over or the session is over, you are clear about at least that facet of no that has been dealt with. That is what is required. And thank you Vikas for posting this wonderful program and thank you this is Ramkumar sir for being part and parcel of this national webinar and Prem for taking all those Christians along with me. I'd like to thank each and every one of you being part of this endeavor or this I'd say the platform wherein we interact transcending boundaries, transcending almost everything else wherein only academics and academic pursuits matters. Thank you. Thank you very much. So I can only thank not only the participants who are watching us live on the Facebook as well as YouTube and on this platform and the cherry on the top of the cake would be I will say Mr. Prem Raj Menon and Shyam Patman who helped us to facilitate the reading of the questions and as usual just Ramkumar in his own style gave the answers in a very simple manner and what like Mr. Shyam has said that after hearing him your facet switch or what you can say the cobwebs in the mind are actually that's clear and we only hope like what he clears it out the COVID fear also is cleared in the same manner and thank you friends for connecting us and we are all thankful to just Ramkumar who always helps us to improve our knowledge in his own style and words for short the manner in which he explains. Thank you everyone stay safe, stay blessed and namaskar and tomorrow we will connect a very simple topic because a lot of people said that we since we are preparing for the judicial exams or one has to do effective English communication so do stay connected with us.