Guest Post: Flawed Vision — Rethinking Eyewitness Identification in Indian Criminal Trials

(This is a guest post by Viraj Thakur)

How much weight should a 7-year-old memory carry in a murder trial? Courts in India have often answered: enough to convict.

On 29 July 2025, dealing with a case concerning the Godhra Riots of 2002, the Gujarat High Court (“HC”) in Sachinbhai v. State of Gujarat had the opportunity to elucidate on the law surrounding Test Identification Parades (“TIPs”) i.e. identification of suspects by eyewitnesses, outside of court, and Dock Identifications (“DIs”) i.e. the identification of suspects in court by eyewitnesses. While the HC, on facts, rightly refused to rely on identification in my opinion, it failed to engage with foundational issues: how time, stress, and suggestibility undermine visual memory, despite scientific consensus on these. This gap between evidence law and memory research poses a direct threat to fair trial rights for an accused, who may be convicted solely on the basis of a DI.

 

I argue that the effect of delays on eyewitness memory and the impact injuries/weapons have on accuracy of eyewitness identification are overlooked by courts, by referring to key precedents on TIPs. Consequently, I argue that courts must actively bear in mind that the standard to admit DI without a TIP ought to be very high. While courts do occasionally recognise this, a more well-reasoned rationale coupled with scientific evidence may make for a fairer process.

Introduction to TIPs and DIs

TIP is an eyewitness identification out of court made relevant under Section 7 of the Bharatiya Sakshya Adhiniyam (“BSA”). It is relevant for purposes of corroborating substantive evidence of eyewitness identification in court i.e. DIs (Daya Singh v. State of Haryana, ¶ 11). A TIP in particular is primarily meant to help investigators check if they are on the right track regarding the accused’s identity (Dana Yadav v. State of Bihar, ¶ 37). They are ordinarily held at the instance of the investigating officer (Dana Yadav, ¶ 5) and the accused has no right to ask for a TIP to be held, though courts may grant TIPs on an application if they believe it prudent to do so (ibid, ¶ 14). However, DIs have low probative value if uncorroborated, unless DI is of “sterling quality,” especially when the accused is a stranger to the witness (Sachinbhai, ¶ 44).

Reconsidering Time and Anxiety in Assessing Eyewitness Identification Reliability

Time elapsed between the crime and the identification and consequent memory decay

It is well-established that delays can affect the reliability of eyewitness identification. The delay may arise in holding the TIP or in the DI ultimately held in court. In Raja v. State, it was held that the impact of delays is a fact-based inquiry (¶ 14). However, if it can be demonstrated that a witness has an “enduring impress” of the identity of the suspect, then DI, even seven years after the crime, can be considered reliable (Daya Singh, ¶ 14). This “impress” often arises from sustained interaction or noticing distinctive features of the accused (¶ 23). However, if the testimony is unreliable or the suspect had changed their appearance, even a two-year delay would be fatal (¶ 25).

However, I argue that the theory of “enduring impress” overlooks the impact delays have on eyewitness memory.

 

Memory research shows that recollections fade and distort over time, unlike video recordings.[i] The greater the time between the crime and identification, greater the chance of false identification (ibid, pp. 23). As Gambell argues, repeated questioning, multiple recounts of the event, and multiple identifications, lead to changes in the memory of an eyewitness. Eyewitnesses may add details under the assumption that this “must have happened” (pp. 190-1). This is done by the eyewitness simply to make sense of the event and to avoid appearing as untrustworthy.

 

Consequently, given that verbal and pictorial information tend to be forgotten as time passes[ii] and that recollections of physical attributes (such as age, hair colour, complexion, height, etc.) are usually inaccurate (pp. 298-9), it is clear that delays have an adverse impact on the reliability of eyewitness identifications.

 

This becomes especially concerning given that with time, eyewitnesses grow more susceptible to suggestive cues – whether from police, environment, or internal bias – making delayed identifications less reliable (pp. 323-4).

 

This suggestiveness may be inherent in the process, such as in DIs, wherein only one person is shown to the eyewitness for identification. This is suggestive because the identity of the police suspect is inherently obvious, if there is only one “option” for an eyewitness to choose from (Perry v. New Hampshire Amicus Brief, pp. 24).

 

Suggestiveness may also arise due to the actions (subconscious or conscious) of the police, who may present the suspects differently from the fillers. For instance, in Tahir Mohammed v. State of MP, the suspects were put up with fetters connected by rods, while the fillers in the line-up were unfettered (¶ 8). Or, in case of TIPs, police personnel may indicate their approval / disapproval of a particular identification by the eyewitness through verbal or non-verbal cues (pp. 273).

 

Suggestiveness may even arise due to the psychology of the eyewitness – the desire to bring a criminal to justice, to exact vengeance upon them, or to find a scapegoat (pp. 367). It may arise due to the behaviour of the suspect themselves. Suspects are incentivised not to stand out and therefore may appear to be most anxious, standing further apart from the rest of the group, or receiving the most “looks” from the others in the lineup (pp. 319). Hence, the greater the delay, the more susceptible the eyewitness to suggestive cues.This further compromises the reliability of their identification.

 

Therefore, convicting a suspect based on a DI seven to eight years later, as in Daya Singh, is arguably incorrect. It would be a conviction based on unreliable evidence.

Stress & Anxiety due to Weapons and Injuries

The SC has held that eyewitnesses being injured would allow them an opportunity to observe a suspect, therefore overcoming problems posed by delays.[iii] In other words, being injured is a relevant factor in holding that a particular eyewitness had an “enduring impress” of the accused. In Pargan Singh v. State of Punjab, it was held that being in a near-death experience and sustaining injuries would mean seeing the suspect for merely 90 seconds would make for a sufficiently reliable DI, even with a delay of 7½ years (¶ 17). The SC specifically noted that “[t]he testimony of an injured witness requires a higher degree of credibility” (ibid, ¶ 19).

 

This goes against well-established evidence to the contrary. If a weapon is used to threaten / injure the eyewitness in committing a crime, most of the eyewitnesses’ attention is focused on the weapon and not the suspect (pp. 276). Stress and anxiety adversely affect the ability of a witness to recall, narrowing their attention – not the other way round (pp. 694). This becomes all the more concerning when “various factors that affect eyewitness accuracy often interact to compound the risk of mistaken identification” (Commonwealth of Pennsylvania v. Walker Amicus Brief, pp. 18). Therefore, in Pargan Singh and Daya Singh, delays coupled with injured eyewitnesses ought to render eyewitness identification, whether through TIPs or DIs, extremely unreliable – to the point, I suggest, that the results of such identification ought to be disregarded.

Conclusion

I have argued that Indian courts often overestimate the reliability of eyewitness identification. Long delays, and high-stress circumstances – especially where weapons or injuries are involved – distort memory. Scientific research suggests that such identifications are prone to error, yet courts continue to rely on them without adequate safeguards. Courts must adopt stricter evidentiary standards for visual identification – particularly DIs – or risk legitimising wrongful convictions based on flawed memory and implicit bias.

 

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[i] Arne Trunkell, Reliability of Evidence (Beckman 1972) 21.

[ii] Jessica Lee, ‘No Exigency, No Consent: Protecting Innocent Suspects from the Consequences of Non-Exigent Show-Ups’ (2005) 36 Columbia Human Rights Law Review 755, 759-60.

[iii] See Dana Yadav [8]; Raja [22].

Interesting Criminal Law Nuggets from the Online Gaming Ban

With the world's largest, albeit not most deliberative, democracy having decided to pass more laws by way of the famous ancient Greek and Roman tradition of simply 'shouting' in the past session of Parliament, a new law is soon making way to the statute book. This is the 'Promotion and Regulation of Online Gaming' Act [The Bill can be accessed here]. The new law divides online gaming as a sector consisting of three categories — online money games, online social games, and e-sports — and it metes out differing treatment to each of these categories. It aims to regulate 'e-sports' and 'online social games', and prohibit 'online money games'.

The money involved in the sector, and the fact that a major company from the sector was the shirt sponsor of the Indian Cricket Team, has meant that it has attracted far more discussion than most laws get. The theme of these conversations is largely about whether it is good 'policy' to ban things, etc. — stuff that is not really the domain of this Blog. More interesting is the looming federalism battle on sports at large, as a result of not only this law but the National Sports Governance Act (another law passed in this session). By these two laws, the union government is staking a much greater claim than historically recognised in the regulation of sport. One wonders whether, and for how long, the states will stay quiet. 

And, of course, the most interesting will be how the big players in this giant sector go about engaging in that most famous of Indian entrepreneurial sports — regulatory capture. The Online Gaming Act proposes to create a new regulator which will, seemingly, have some wriggle room on applying the law to the facts of each game, and decide which games are beyond the pale. In other words, the law is only the first step in what is going to be a much longer dance between the government and this sector. 

In all this, what made the new law of interest for this Blog was its interplay with criminal law. The bright and gold lettering of Section 9 with jail time and fines of up to 1 Crore, and most importantly the ominous, and entirely expected move in Section 10 to confer upon police powers to arrest anyone found breaking the law without warrant, has meant that most big players have temporarily ceased operations but no word about the small ones. Law school teachers should take note and add this as an example in their classes on the principles behind criminal law-making and explaining the deterrence theory, which has long suggested that deterrence does not work in general, but certainly deters the more thinking kind of person. The slide can be updated when regulatory capture in the sector is complete to show that deterrence only works till the thinking kind of person has found a way around the locked front door to enter from the back. 

The new law gives not only to the professors, but also the practitioners here. Criminal lawyers should take note of Section 16 which, according to me, has introduced a massive shift in how the law on arrest, search, seizure, has worked thus far. I've extracted it below and emphasised on the relevant parts:

16. (1) Notwithstanding anything contained in the Bharatiya Nagarik Suraksha Sanhita, 2023, any officer authorised under section 15 may enter any place, whether physical or digital, and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act. 

(2) Where any person is arrested under sub-section (1) by an officer other than a police officer as referred to in sub-section (1), such officer shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in the case or before the officer-in-charge of a police station. 

(3) The provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall, subject to the provisions of this section, apply, so far as may be, in relation to any entry, search or arrest made under this section. 

Explanation.—For the purposes of this section, “any place” shall include any premises, building, vehicle, computer resource, virtual digital space, electronic records or electronic storage device and the officer may, if necessary, gain access to such computer resource, virtual digital space, electronic records or electronic storage device by overriding any access control or security code, where such code thereof is not available

Before you ask, the significant change for me is not the enticing prospect of arresting digital avatars from the metaverse. Rather, its about the search and seizure power For the first time the text of the law has gone and specifically recognised that the virtual / digital plane is a different manifestation of space than the physical one. This is hugely significant, and let me explain how and why. 

Thus far, the general criminal procedure law codified in CRPC 1973 and the new BNSS 2023 recognised the ability to seize items including electronic devices, but did not contain any language to deal with what comes next — i.e., searching inside a device. The text of the provisions conferring power to search were still operating on the physical, tangible plane, and talking about searching places. Absence of any clear legal regime for opening and searching devices meant that there was a basis to challenge the police forcing you to open your phone and trawling through its contents. Mind you, it didn't matter much given the obvious imbalance between nice legal argument and the brute force of a baton, but at least there was a case to be made. With Section 16, this gap in the law is being fixed, by conferring a clear and unambiguous legal basis for police invasion of digital devices. 

Having such a clear and unambiguous recognition of duality between the physical and the digital realm in this special law creates a problem for the general law of search powers, where the language is still rooted to purely physical spaces. One could perhaps argue, by using Section 16, that the general power on search cannot permit invasion of digital devices in the manner that police currently engage in with remarkable alacrity. 

Bye bye legal argument? Well, perhaps not. 

Guest Post: Expert Certificates, BSA, and Electronic Evidence

(This is a guest post by Mohamed Thahir Sulaiman) 

The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal sought to clarify the legal position on the admissibility of electronic evidence by reverting to the interpretation adopted in Anvar P.V. v. P.K. Basheer, thereby reiterating the certificate mandated under Section 65B(4) as being sine qua non for its admissibility. However, despite its intention to restore clarity and consistency, this decision was criticized on inception, particularly on the court’s omission to clarify an issue hovering since its Sonu v. State of Haryana decision: Whether the production of certificate is an issue of mode of proof, or an issue of inherent inadmissibility. This issue is brought back into the limelight by a recent decision of the Kerala High Court in Alukas Jewelerry v. Anil (17.07.2025), where the court reiterated that the absence of certification is “only a curable defect,” and that an objection to its absence “relates only to a mode of proof issue.”

In this context, this post argues that introduction of expert certificate in the Bharatiya Sakshya Adhiniyam (BSA), 2023, further compounds this existing ambiguity surrounding the nature of certificate, forcing us to revisit the question: Whether the mandatory requirement of certificate as per Khotkar is still justified? I first highlight the internal tension within the post-Khotkar framework regarding the legal nature of the 65B certificate; secondly, I analyse the addition of expert certification under Section 63(4) of the BSA; and thirdly, highlight how this addition compounds the existing tension regarding the nature of the certificate. 

Ambiguity in Jurisprudence

To understand the tension regarding the nature of the certificate requirement for electronic evidence, it is necessary to trace its origins in the decision of Sonu v. State of Haryana.

While the Court had unambiguously held in Anvar P.V. that a certificate under Section 65B(4) of the IEA was mandatory for the admission of electronic records, this position was soon critiqued as being overly rigid and impractical, considering the procedural burdens already facing trial courts. As a result, subsequent decisions in Tomaso Bruno v. State of U.P. and Shafhi Mohammad v. State of Himachal Pradesh diluted the certificate requirement, departing from Anvar’s strict standard.

It was in this context that the Court in Sonu, while holding that the certificate was not necessary in the interests of justice for trials concluded prior to the Anvar ruling, drew a categorical distinction between mode of proof and inherent inadmissibility as objections to any evidence, observing that the requirement of the certificate pertained solely to the issue of mode of proof in respect of the underlying electronic evidence which was sought to be proved. This observation is significant as while the Court in Anvar, though not articulated in this language, held that the electronic evidence is in itself inadmissible without the certificate, the Court in Sonu took the position that the electronic evidence is admissible, and that a certificate should be treated merely as a procedural requirement relating to its mode of proof, rather than a substantive condition for admissibility of the underlying electronic evidence.

Given this context, even while the Court in Khotkar reaffirmed the mandatory requirement of the certificate, expressly overruling its previous decisions in Tomaso Bruno and Shafhi Mohammad, its decision was criticized for not explicitly overruling Sonu, nor clarifying as what is the nature of the certificate. While it could be argued that Khotkar, a three-judge bench, had implicitly overruled the division bench decision in Sonu, this interpretation was negated due to the three-judge bench decision Sundar @ Sundar v. State, which upheld Sonu as good law and reiterated its holding that the certificate is a matter of mode of proof, not of inherent admissibility.

As a result, the current judicial position on the admissibility of electronic evidence consists of two contradictory positions, held by two co-equal benches; While Khotkar maintains that a certificate is a sine qua non, making electronic evidence in itself inadmissible by its absence, Sundar upholds the view that electronic evidence is admissible, treating the 65-B certificate merely as a procedural requirement of mode of proof.

By failing to address this ambiguity in Khotkar, this tension has persisted and is evident even five years later in the Kerala High Court’s decision. While this tension may appear subtle, its true implications become clear with the introduction of the BSA in 2023.

Here Comes the BSA

Section 63 of the BSA has altered the law on electronic evidence, with a major change being found in the newly added schedule, which prescribes the format of the certificate. While this is largely a positive development, considering that there was lack of clarity as to what a certificate must contain under Section 65B(4) IEA, this change also complicates the law on admissibility with Section 63(4) BSA requiring the certificate to be filled both by the Party and an ‘Expert’ as provided in Part B of the certificate.  

This addition raises two critical questions: Firstly, who exactly constitutes the "expert" as found in Section 63(4)? Neither Section 63 nor the accompanying Schedule defines who is an ‘expert’ forfilling the certificate, nor is there any clarification found in the new provisions elsewhere in the BSA.

When reading the BSA collectively, however, it is seen that the only reference to an expert in the context of electronic evidence appears in Section 39(2), the Explanation to which states that the "Examiner of Electronic Evidence" notified under Section 79A of the Information Technology Act (IT Act), 2000, shall be deemed to be an expert.

Using this as an aid in interpreting the definition of “expert” in Section 63 BSA, two readings become possible. The first suggests that the Examiner of Electronic Evidence is one among several “experts” who can fill the certificate, and that other individuals are not precluded from doing so. However, this reading would be inconsistent with the larger scheme of Section 39, where sub-section (2) has specifically defined who would qualify to be an expert for electronic evidence, unlike in sub-section (1), where the term “expert” is remained undefined for general cases. This leads us to the second reading, which construes “expert” in Section 63 as referring exclusively to the Examiner of Electronic Evidence.

However, this reading is deeply problematic for two reasons. First, it may not necessarily reflect legislative intent, given that Section 39(2) of the BSA is a verbatim reproduction of Section 45A of the IEA, and it is known that the BSA’s replication of earlier IEA provisions is has not always been made consistent with the changes relating to electronic evidence (for instance, Section 15 of the BSA reproduces Section 17 of the IEA verbatim, failing to acknowledge BSA’s inclusion of electronic evidence within the definition of ‘document’). Second, the Examiner of Electronic Evidence is to be notified by the central government individually as per Section 79A of the IT Act, as can be seen by past notifications, and it is simply impossible for every electronic evidence to be certified exclusively by such government-notified experts.

Despite these problems, a plain reading of BSA, absent any judicial or legislative clarifications to the contrary, clearly provides that Section 63 certificate must be filled by an Examiner of Electronic Evidence. The fact that such interpretation seems consistent with larger statutory language, regardless of whether it was intended or how illogical it may be, highlights a crucial drafting error in the BSA. Thus, when assuming thus question to be answered according to the second reading, we see that the BSA introduces a significant procedural barrier that hampers admission of electronic evidence.

The second question that now arises is: What is the purpose of the expert certificate in the first place? The rationale behind relying on expert opinion in Section 39 is to aid the court in forming an informed, independent assessment on technical matters. However, in the 63 BSA certificate and its format given in the Schedule to the Act, Part A (to be filled by the party) and Part B (to be filled by the expert) contain the same set of information. It is thus unclear how Part B adds anything of value, when all the expert certificate does is merely replicate the information already provided in Part A. As a result, addition of Part B seems more like a procedural formality, rather than anything adding substantive value.

Additionally, if an expert certificate is already to be provided during admission stage itself, does this not make Section 39(2) itself redundant—why would the court need to refer to expert opinion on electronic evidence when the same is already certified in Part B of the certificate? 

Adding to the Ambiguity

Given this development, one must now reconsider the nature of the Section 63(4) certificate given that it is now to be filled by both the party and an expert.

Intuitively, this additional requirement may appear to reaffirm the Khotkar position: by rendering the expert certificate mandatory, it seems to strengthen the stringent requirement for a certificate as a precondition for the admission of electronic evidence. Such reading would thus align with the Anvar–Khotkar line of reasoning that courts must establish the evidence to be original and unaltered, with Part B of the certificate serving merely as an added safeguard. As per this interpretation, the certificate continues to be a sine qua non for admissibility.

On the other hand, one must remember that the entire point of expert opinion under the IEA had been a mode of proof issue; the opinion of experts under Section 45A of IEA was not mandatory for admission of electronic evidence and was simply to aid the court in assessing its admissibility when doubt arises. Thus, if this conventional purpose of requiring expert opinion still prevails, the expert opinion should also be deemed to be merely a mode of proof issue. This reading then relates back to the Sonu-Sundar line of interpretation.

These competing interpretations just go to show how the BSA has again complicated the issue of the nature of certificate even further. As discussed earlier, while this ambiguity had been lingering even in the post-Khotkar period, the law on electronic evidence was still settled to the extent that a certificate was absolutely mandatory. Such legislative additions, without addressing these pre-existing concerns, have aggravated this underlying tension, resulting in a new set of questions that courts must now resolve: What is the precise legal nature of the expert certificate under the BSA? Is it logically sustainable for Part A to be necessary for admission, while Part B is not? And more broadly, when the statutory content and structure of the certificate have been substantively altered, can the pre-BSA jurisprudence mandating its production for admissibility still validly apply?

Resolving these questions can now no longer be deemed to be a mere academic exercise, as it existed after Khotkar. If Part B of the certificate is interpreted as a mandatory precondition for admissibility, the requirement may significantly hinder the conduct of trials, delaying proceedings and obstructing access to justice. A more balanced approach, treating the certificate, particularly the expert portion, as a matter of mode of proof, would align better with principles of procedural fairness. However, as matters currently stands, there is still no clarity either from the judiciary or legislature regarding this ambiguity. 

Moving Forward

When one sees how much confusion a legislative action, such as the addition of just two words to a provision, can cause, one cannot help but recall Justice Ramasubramanian’s concurring opinion in Khotkar. As he rightly observes, while other jurisdictions in the world have adapted to the technological developments and “fine-tuned their legislations” accordingly, India’s ambiguous legislative drafting has led to considerable “judicial turmoil.”

Given that this understanding was eloquently articulated in 2020, the enactment of BSA served as a golden opportunity for the government to undertake meaningful reform in order to align the law governing electronic evidence with other jurisdictions. Rather, the government strangely, has reproduced the same IEA provisions with the addition of the vaguely defined requirement of an ‘expert’ certificate.

Considering how the ambiguity introduced by the 2000 amendment led to extreme swings in judicial interpretations, from Navjot Sandhu to Anvar, it is reasonable to foresee a similar judicial turmoil ensuing in the coming years from the simple addition of “and expert” in Section 63(4).