Identification of an accused in the court by a witness who has seen him for the first time during the crime is a weak piece of evidence, especially when there is a large time gap between the dates of the incident and recording of his evidence, the Supreme Court has said. The observation came on an appeal filed by four people convicted under Section 55(a) of the Kerala Abkari Act for transporting spirits.
The allegation of the prosecution was that the four people transported a total quantity of 6,090 litres of spirits in 174 plastic cans in a truck with fake registration number plates and without authorisation. The apex court discarded the testimony of a witness as he had said that he was not able to identify any persons whom he had seen 11 years back.
However, he had identified the two accused though he had seen them for the first time more than 11 years back on the date of the incident.
"The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence," a bench of Justices Ajay Rastogi and Abhay S Oka said.
The apex court said in such a case, test identification parade (process to identify accused) may make the identification of the accused by the witness before the Court trustworthy. The top court in its order dated October 22 said it is well settled that the test identification parade is a part of investigation and it is not substantive evidence.
However, the absence of test identification parade may not be ipso facto sufficient to discard the testimony of a witness who has identified the accused in the Court, the bench said. In a given case, there may be otherwise sufficient corroboration to the testimony of the witness, it said.
"In some cases, the Court may be impressed with testimony of the prosecution witnesses which is of sterling quality. In such cases, the testimony of such a witness can be believed. In the present case, PW13 (witness) accepted that he is not able to identify any persons whom he had seen 11 years back.
"However, he asserted that he can identify the accused Nos. 2 and 4 though he had seen them for the first time more than 11 years back on the date of the incident. Therefore, in the facts of the case, the evidence of PW13 as regards the identification of the accused Nos. 2 and 4 in the Court cannot be accepted," the bench said.
The top court said that it is very difficult to believe that the witness who was not knowing the accused Nos. 2 and 4 prior to the incident could identify them in the Court after a lapse of 11 years and the same is the case with all the official witnesses.
"The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful," the bench said while acquitting the accused.