Supreme Court: Under which circumstances Test identification Parade of accused becomes unreliable?

 Circumstance Six: Test Identification Parade

38. The investigating authorities conducted a test identification parade - asking PW-5 to identify the Appellant- convict from a long line of habitual offenders. He did so thrice. This has been taken as another circumstance against the convict Appellant. Before proceeding to the merits of this circumstance, let us appreciate the law on this point.

38.1 No provision of law casts an obligation upon the investigating authorities to conduct a test identification parade. If it is conducted, the provision that governs is Section 162, Code of Criminal Procedure [See: Munshi Singh Gautam v. State of M.P.   MANU/SC/0964/2004 : 2004:INSC:648 : (2005) 9 SCC 631; Malkhansingh v. State of M.P.   MANU/SC/0445/2003 : 2003:INSC:308 : (2003) 5 SCC 746; Visveswaran v. State   MANU/SC/0352/2003 : 2003:INSC:262 : (2003) 6 SCC 73; and Ashok Debbarma v. State of Tripura   MANU/SC/0168/2014 : 2014:INSC:167 : (2014) 4 SCC 747.]

38.2 The onus to show that the T.I.P. has been conducted in accordance with law lies on the prosecution, and only after this burden stands prima facie discharged, does the question of considering objections in this regard arise. [See: Umesh Chandra v. State of Uttarakhand   MANU/SC/1412/2021 : (2021) 17 SCC 616.]

38.3 It is not a substantive piece of evidence. Its only purpose is for the investigating authorities to analyse the correctness, or lack thereof, of the direction in which they are steering the investigation. [See: Hari Nath v. State of U.P.   MANU/SC/0229/1987 : 1987:INSC:315 : (1988) 1 SCC 14; and Iqbal v. State of U.P.   MANU/SC/0559/2015 : 2015:INSC:387 : (2015) 6 SCC 623]

38.4 If the prosecution does not establish, by examination of witnesses to the T.I.P., and the Magistrate entrusted therewith, it cannot be said that it was conducted per law. [See: Umesh Chandra (supra).]

38.5 There is no hard and fast Rule about delay in conducting T.I.P. being fatal to the case of the prosecution. In certain cases, relatively small delay has been considered fatal yet in others, a delay of as much as 40 days is not fatal. [See: Raja v. State   MANU/SC/1717/2019 : 2019:INSC:1346 : (2020) 15 SCC 562.]

38.6 The prosecution must establish that prior to the test identification parade being conducted, the witness had no opportunity to see the Accused. In other words, the Accused must be kept 'baparda'. [See: Gireesan Nair v. State of Kerala   MANU/SC/1486/2022 : 2022:INSC:1199 : (2023) 1 SCC 180; and Budhsen v. State of U.P.   MANU/SC/0103/1970 : 1970:INSC:131 : (1970) 2 SCC 128.]

38.7 If the above has not been ensured, the evidence of the T.I.P. becomes inadmissible. It has also been held that if, prior to the T.I.P. the witness has the opportunity to see even the photograph of the Accused person, such process becomes inconsequential. [See: Maya Kaur Baldevsingh Sardar v. State of Maharashtra   MANU/SC/7994/2007 : 2007:INSC:1014 : (2007) 12 SCC 654; C. Muniappan v. State of T.N.   MANU/SC/0655/2010 : 2010:INSC:553 : (2010) 9 SCC 567; and Sk. Umar Ahmed Shaikh v. State of Maharashtra   MANU/SC/1025/1998 : 1998:INSC:202 : (1998) 5 SCC 103.]

38.8 Dock identification by the informant, even in the absence of T.I.P., can be accepted, but generally, as a matter of prudence, a witness's identification of an Accused in Court is sought to be corroborated by the identification by the former of the latter in previously conducted identification proceedings [Rajesh v. State of Haryana   MANU/SC/0818/2020 : 2020:INSC:628 : (2021) 1 SCC 118; and Mukesh v. State (NCT of Delhi)   MANU/SC/0575/2017 : 2017:INSC:448 : (2017) 6 SCC 1.]

38.9 Considering the facts and circumstances of the case at hand, it is open for the Court to draw an adverse inference against the witness, should they put forth a refusal to participate in the identification proceedings. [See: Mohd. Anwar v. State (NCT of Delhi)   MANU/SC/0602/2020 : 2020:INSC:496 : (2020) 7 SCC 391.]

39. It is plain as day that the above principles were not observed in the present case. We are constrained to record our astonishment as to how the Courts below considered the identification proceedings as a circumstance accruing against the Appellant-convict. It is undoubted that PW-50, in his testimony, gives sufficient detail as to the procedure followed in conducting the T.I.P., and on that count, no assault can be made thereon, however, as the preceding paragraph establishes, there are other equally crucial factors. It is a matter of record that PW-5 (the witness who participated in the T.I.P.), in his testimony, stated that about a week after he gave information to the concerned police about the incident of 14th May, 2011, he saw the Appellant- convict at the said police station. Most importantly, as has come on record, the police officials had informed him about the Appellant-convict committing the crime. As held by Budhsen (supra) as far back as the year 1970, by Suryamoorthy v. Govindaswamy   MANU/SC/0591/1989 : (1989) 3 SCC 24 in 1989, Suresh Chandra Bahri v. State of Bihar   MANU/SC/0500/1994 : 1994:INSC:246 : 1995 Supp. (1) SCC 80 in 1995, Mulla v. State of U.P   MANU/SC/0091/2010 : 2010:INSC:89 : (2010) 3 SCC 508 in 2010, i.e., well before the judgment of the learned Trial Court was pronounced, that if the said witness had the opportunity to see the Accused, in any form, after the incident the subject matter of testimony, but prior to the identification proceedings, it would render the same to be ineffective. Then, in our view, the courts below committed an error of elephantine proportions in considering these proceedings as forming one of the chains of circumstances against the Appellant-convict.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1672 of 2019 

Decided On: 15.07.2025

Kattavellai Vs. State of Tamilnadu

Hon'ble Judges/Coram:

Vikram Nath, Sanjay Karol and Sandeep Mehta, JJ.

Author: Sanjay Karol, J.

Citation: 2025 INSC 845, MANU/SC/0917/2025.

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Supreme Court: Whether the court can rely on recovery of articles of Victim as per statement of accused U/S 27 of Evidence Act if relatives of victim have not testified that those articles were belonging to Victim?

 In the preceding paragraph, we have considered the law laid down by this Court on that issue. Let us now consider the circumstances in which the recovery was made from the locations as disclosed. It cannot be questioned that such recovery would be relevant since the Appellant-convict could have affected the recovery only if he had specific knowledge of the location. This, however, in our view, is not sufficient to take the recovery of the objects as a circumstance against the Appellant convict. This we say for the reason that the objects recovered also have to be verified and tested. Now, this was not done. His statement is said to have led to the recovery of - (i) a sickle, (ii) a jute bag, (iii) a green coloured lungi, (iv) a blue colour checked shirt, and (v) a red and yellow colour striped towel from his house. {Para 26} 

27. How any and/or all of these articles related to the alleged murder of two victims and rape of one of them is undemonstrated from the record. None of the relatives of either D1 or D2 have testified to any of these belongings being that of the victims.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1672 of 2019 

Decided On: 15.07.2025

Kattavellai Vs. State of Tamilnadu

Hon'ble Judges/Coram:

Vikram Nath, Sanjay Karol and Sandeep Mehta, JJ.

Author: Sanjay Karol, J.

Citation: 2025 INSC 845, MANU/SC/0917/2025.

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Supreme Court explains the law relating to last seen theory

 Circumstance Two: Last Seen Theory

15. The next circumstance that is to consider is the last seen theory. It is well established that this is a weak piece of evidence and cannot be the sole basis of conviction.7 We may further refer to certain judgments that expand upon the application of this theory.

15.1 In Ravasaheb v. State of Karnataka   MANU/SC/0248/2023 : 2023:INSC:238 : (2023) 5 SCC 391, a three Judge Bench (which included two of us, Nath and Karol JJ.) observed thus:

29. On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the Accused, proximity of time to the recovery of the body of the deceased, etc. The Accused is bound to give an explanation Under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established - pleading securely to the conviction of the Accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. [Satpal v. State of Haryana [Satpal v. State of Haryana,   MANU/SC/0492/2018 : 2018:INSC:436 : (2018) 6 SCC 610] and Ram Gopal v. State of M.P. [Ram Gopal v. State of M.P.,   MANU/SC/0139/2023 : 2023:INSC:133 : (2023) 5 SCC 534]]

[See also: Sanjay v. State of U.P.   MANU/SC/0312/2025 : 2025:INSC:317]

15.2 The application of Section 106 of the Indian Evidence Act, 1872, doesn't absolve the prosecution of its duty to establish its case against the Accused, beyond reasonable doubt. [See: Sawal Das v. State of Bihar   MANU/SC/0201/1974 : 1974:INSC:4 : (1974) 4 SCC 193 and Shivaji Chintappa Patil v. State of Maharashtra   MANU/SC/0136/2021 : 2021:INSC:136 : (2021) 5 SCC 626]

15.3 In applying the last-seen theory, Courts should keep in mind the totality of the circumstances, or the case put forward by the prosecution. In other words, also to be seen is, what preceded and followed the Accused person being last seen with the deceased. [See: Surajdeo Mahto v. State of Bihar   MANU/SC/0505/2021 : 2021:INSC:379 : (2022) 11 SCC 800]

15.4 In Veerendra v. State of M.P.   MANU/SC/0641/2022 : 2022:INSC:565 : (2022) 8 SCC 668, referring to Nizam (supra) it was observed that when the time between the 'last seen' and the 'time of occurrence' is significant, conviction thereon would not be advisable or sustainable.

15.5 The converse of the above is that the theory comes into play "where the time gap between the point of time when the Accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of the crime becomes impossible." [See: Bodhraj v. State of J&K MANU/SC/1463/2002 : (2002) 8 SCC 45, State of U.P. v. Shyam Behari   MANU/SC/1093/2009 : 2009:INSC:432 : (2009) 15 SCC 548 and Sambhubhai Raisangbhai Padhiyar v. State of Gujarat MANU/SC/1349/2024 : 2024:INSC:987 : (2025) 2 SCC 399]

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1672 of 2019 

Decided On: 15.07.2025

Kattavellai Vs. State of Tamilnadu

Hon'ble Judges/Coram:

Vikram Nath, Sanjay Karol and Sandeep Mehta, JJ.

Author: Sanjay Karol, J.

Citation: 2025 INSC 845, MANU/SC/0917/2025.

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Supreme Court Guidelines Regarding procedure to be followed regarding DNA evidence from the point of collection to the logical end, i.e., conviction or acquittal of the Accused,

 This lack of a common procedure to be followed, is concerning. As such, we issue the following directions which shall be followed henceforth, in all cases where DNA Evidence is involved:

1. The collection of DNA samples once made after due care and compliance of all necessary procedure including swift and appropriate packaging including a) FIR number and date; b) Section and the statute involved therein; c) details of I.O., Police station; and d) requisite serial number shall be duly documented. The document recording the collection shall have the signatures and designations of the medical professional present, the investigating officer and independent witnesses. Here only we may clarify that the absence of independent witnesses shall not be taken to be compromising to the collection of such evidence, but the efforts made to join such witnesses and the eventual inability to do so shall be duly put down in record.

2. The Investigating Officer shall be responsible for the transportation of the DNA evidence to the concerned police station or the hospital concerned, as the case may be. He shall also be responsible for ensuring that the samples so taken reach the concerned forensic science laboratory with dispatch and in any case not later than 48- hours from the time of collection. Should any extraneous circumstance present itself and the 48-hours timeline cannot be complied with, the reason for the delay shall be duly recorded in the case diary. Throughout, the requisite efforts be made to preserve the samples as per the requirement corresponding to the nature of the sample taken.

3. In the time that the DNA samples are stored pending trial appeal etc., no package shall be opened, altered or resealed without express authorisation of the Trial Court acting upon a statement of a duly qualified and experienced medical professional to the effect that the same shall not have a negative impact on the sanctity of the evidence and with the Court being assured that such a step is necessary for proper and just outcome of the Investigation/Trial.

4. Right from the point of collection to the logical end, i.e., conviction or acquittal of the Accused, a Chain of Custody Register shall be maintained wherein each and every movement of the evidence shall be recorded with counter sign at each end thereof stating also the reason therefor. This Chain of Custody Register shall necessarily be appended as part of the Trial Court record. Failure to maintain the same shall render the I.O. responsible for explaining such lapse.

The Directors General of Police of all the States shall prepare sample forms of the Chain of Custody Register and all other documentation directed above and ensure its dispatch to all districts with necessary instruction as may be required. {Para 44}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1672 of 2019 

Decided On: 15.07.2025

Kattavellai Vs. State of Tamilnadu

Hon'ble Judges/Coram:

Vikram Nath, Sanjay Karol and Sandeep Mehta, JJ.

Author: Sanjay Karol, J.

Citation: 2025 INSC 845, MANU/SC/0917/2025.

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