Does Section 165 of the Evidence Act empower a Court to ensure a witness's identification of the accused is placed on record?
Coram: Justice Sandeep Mehta · Justice Manmohan
Yes. Section 165 of the Evidence Act, 1872 and Section 311 of the Code confer wide powers on the Court to elicit material necessary for the truth; a Court is not a mere recording machine and must take a participatory role in the trial.
Indian Evidence Act, 1872 — s.165 — Code of Criminal Procedure, 1973 — s.311 — Indian Penal Code, 1860 — s.376 — Test identification parade — Dock identification — Evidence — Test identification parade — Corroborative, not substantive — Held: Test identification proceedings held during investigation are corroborative, not substantive; the substantive proof of identity is the witness's identification in Court. Failure to obtain the victim's dock identification is a fatal omission where the accused was not named in the FIR. (¶41, 44) Indian Evidence Act, 1872 — s.165 — Code of Criminal Procedure, 1973 — s.311 — Court's duty to elicit truth — Held further: Section 165 of the Evidence Act and Section 311 of the Code confer wide powers on the Court to elicit material evidence; a Court is not a mere recording machine. Conviction set aside; appellant acquitted after nine years in custody. (¶46, 58, 59)
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