Evidence Law

Malkhansingh v. State of Madhya Pradesh

(2003) 5 SCC 746

Facts

The prosecutrix was a 28-year-old tribal woman working as an assistant teacher in an isolated area.
She was attacked and gang-raped by three men in broad daylight.
The accused were strangers to her before the occurrence.
The incident was not momentary:
the men confronted her;
threatened her;
successively assaulted her;
remained close to her for a considerable period.
Because of shame, fear, threats and her isolated circumstances, there was some delay in reporting the offence.
No test identification parade was conducted during investigation.
At the trial, the prosecutrix identified the accused in court.
The defence argued that:
the accused were strangers;
identification for the first time in court was inherently weak;
absence of a prior TIP made the dock identification unreliable;
conviction could not rest upon that identification.

Whether failure to hold a test identification parade makes court identification inadmissible.
Whether first-time identification in court could be relied upon in the particular circumstances.
Whether corroboration was indispensable before accepting the prosecutrix’s identification.

Identity evidence is relevant under Section 9 of the Evidence Act, corresponding to Section 7 BSA.
Identification in court is substantive evidence.
A test identification parade is:
part of investigation;
ordinarily corroborative;
a test of the witness’s memory;
not a statutory condition for admissibility.
An accused has no absolute right to demand a TIP.
As a matter of prudence, first-time court identification of a stranger is ordinarily treated cautiously.
However, the absence of a parade is not fatal where the witness:
had prolonged opportunity to observe;
saw the offender in adequate light;
experienced circumstances creating a lasting impression;
gives natural, consistent and trustworthy evidence.
The need for corroboration depends upon the quality of the substantive testimony, not upon an inflexible legal formula.

The Court distinguished the case from one involving a fleeting glimpse of an unknown offender.
The assault took place in daylight.
The prosecutrix remained physically close to each accused for a substantial period.
She had repeated opportunities to see:
their faces;
physical features;
manner of speaking;
conduct during the attack.
The extreme and traumatic nature of the occurrence made it likely that their appearances would remain imprinted in her memory.
The Court found no motive for her to select three innocent strangers and falsely attribute such a humiliating incident to them.
Her testimony was natural and substantially consistent.
The reporting delay was explained by:
social stigma;
fear of the assailants;
her vulnerable and isolated position.
That delay did not show that her identification had been manufactured.
The Court accepted that holding a prompt TIP would have been desirable and would have provided additional assurance.
However, an investigative omission cannot automatically erase reliable substantive evidence given in court.
The Court warned against converting a rule of prudence into an inflexible rule of law.
The central inquiry remained whether the witness’s opportunity and testimony generated confidence.
In this case, the courts below had carefully assessed her demeanour and evidence and found her trustworthy.
The absence of a TIP therefore affected the weight to be considered, but did not make the identification inadmissible or insufficient.

The Supreme Court held that the prosecutrix’s identification in court was reliable despite the absence of a prior test identification parade.
A TIP is not substantive evidence and is not an indispensable legal requirement in every case.
Because the prosecutrix had prolonged, close and daylight observation of the accused during a traumatic event, her memory and court identification could safely be relied upon.
The convictions were upheld and the appeals were dismissed.