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35. However, her husband Mangal (P.W.5) has stated regarding identification of gamchha and not Mangalsutra. Thus, it is clear that only Radha (P.W.4) is the witness who had identified the Mangalsutra.

36. From the plain reading of the evidence of Radha (P.W.4), it is clear that after the miscreants were arrested, the Mangalsutra was shown by the police to this witness and three months thereafter, the Test Identification Parade was conducted. Further, this witness has stated that at the time of identification, only one Mangalsutra was kept on the table. Although in the Test Identification Memo, Ex. P.8, it is mentioned that three more Mangalsutras of similar in design were mixed, but for the reasons best known to the prosecution, neither Devendra Kumar Rishishwar who had conducted Test Identification of Articles was examined nor his name was included in the Trial Programme, although he was cited as a witness in the charge sheet. Thus, except the evidence of Radha (P.W.4), there is no evidence with regard to identification of Mangalsutra and Radha (P.W.4) has stated that one Mangalsutra was kept on the table,which was identified by her. Thus, it is clear that the prosecution has failed to prove that more Mangalsutras of similar design were ever mixed for the purposes of identification. The Supreme Court in the case of Ashish Batham Vs. State of M.P. reported in (2002) 7 SCC 317 has held as under :

Effect of showing Mangalsutra by Police to the witness before holding of Test Identification of Article.

37. It is clear from the evidence of Radha (P.W.4), the Mangalsutra was shown to her by the police and three months thereafter, She had identified the Mangalsutra in the Test Identification Parade conducted by Tahsildar. Now the only question is that what is the effect of showing Mangalsutra, before holding of Test Identification Parade.

38. Identification of Article is a Relevant Fact, under Section 9 of Evidence Act. No specific procedure has been laid down for holding Test Identification Parade. Identification of Article by the Police cannot be said to be illegal, but the effect of identification by Police would be that the statement of the witness would be hit by Section 162 of Cr.P.C. and the Identification done by the police cannot be used as a corroborative piece of evidence. Identification proceedings conducted by any other person/officer will not be hit by Section 162 of Cr.P.C. Therefore, the presence of any police officer during the identification proceedings is unwarranted. Thus, the identification by the police does not have any evidentiary value. However, the act of police of showing the seized article to the witness much prior to holding of Test Identification Parade would make the identification proceedings untrustworthy, because the very purpose of holding Test Identification Parade during investigation is to find out as to whether the investigation is going on in right direction or not. Test Identification Parade conducted during investigation is not a substantive evidence, but at the most, it would be a corroborative piece of evidence. The Substantive evidence is the identification of article in the Court. The Supreme Court in the case of Rajesh Vs. State of Haryana reported in (2021) 1 SCC 118 has held as under :

40. Thus, the identification of Mangalsutra by Radha (P.W.4) during investigation cannot be used even for corroboration purposes. Effect of not getting the Mangalsutra identified in the Court.

41. A very important lacuna was left by the prosecution. The Mangalsutra was never produced before the Court and it was not got identified from the witness. As already pointed out, the identification of article and accused in the Court is a substantive evidence and the Test Identification conducted by the Police during investigation is merely a corroborative piece of evidence. In the present case, there is no substantive evidence with regard to identification of Mangalsutra by Radha (P.W.4).