2023 LiveLaw (SC) 703 : 2023 INSC 765

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
M.M. SUNDRESH; J., J.B. PARDIWALA; J.
CRIMINAL APPEAL NO. 1554 OF 2015; AUGUST 24, 2023
MUKESH SINGH versus THE STATE (NCT OF DELHI)
Constitution of India, 1950; Article 20(3) - Test Identification Parade - Conduct of
Test Identification Parade is not violative of Article 20(3) of the Constitution of India
- What is prohibited by Article 20(3) of the Constitution is procuring by compulsion
of the positive volitional evidentiary acts of an accused. It is true that an accused
may be said to be compelled to attend a test identification parade, but this
compulsion does not involve any positive volitional evidentiary act. His mere
attendance or the exhibition of his body at a test identification parade even though
compelled, does not result in any evidentiary act until he is identified by some other
agency. The identification of him by a witness is not his act, even though his body
is exhibited for the purpose. His compelled attendance at a test identification
parade is comparatively remote to the final evidence and cannot be said by itself to
furnish any positive volitional evidentiary act. (Para 26)
Code of Criminal Procedure, 1973; Section 54A - This Section is restricted to
identification of persons only. So, this Section has no application where the
question of identification of articles arises. (Para 33)
Code of Criminal Procedure, 1973; Section 54A - Test Identification Parade - An
accused is under an obligation to stand for identification parade. An accused
cannot resist subjecting himself to the TIP on the ground that he cannot be forced
or coerced for the same. If the coercion is sought to be imposed in getting from
accused evidence which cannot be procured save through positive volitional act
on his part, the constitutional 38 guarantee as enshrined under Article 20(3) of the
Constitution will step in to protect him. However, if that evidence can be procured
without any positive volitional evidentiary act on the part of the accused, Article
20(3) of the Constitution will have no application. The accused while subjecting
himself to the TIP does not produce any evidence or perform any evidentiary act -
The accused concerned may have a legitimate ground to resist facing the TIP
saying that the witnesses had a chance to see him either at the police station or in
the Court, as the case may be, however, on such ground alone he cannot refuse to
face the TIP. It is always open for the accused to raise any legal ground available to
him relating to the legitimacy of the TIP or the evidentiary value of the same in the
course of the trial. However, the accused cannot decline or refuse to join the TIP.
(Para 35)
Criminal Trial - Test Identification Parade - In a case where an accused himself
refused to participate in the TIP, it is not open to him to contend that the statement
of the eye witnesses made for the first time in Court, wherein they specifically point
towards him as a person who had taken part in the commission of the crime, should
not be relied upon. Such a plea is available provided the prosecution is itself
responsible for not holding a TIP. However, in a case where the accused himself
declines to participate in a TIP, the prosecution has no option but to proceed in a
normal manner like all other cases and rely upon the testimony of the witnesses,
which is recorded in Court during the course of the trial of the case.

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Indian Evidence Act, 1872; Section 8, 27 - The conduct of an accused is relevant, if
such conduct influences or influenced by any fact in issue or relevant fact. The
evidence of the circumstance, simpliciter, that the accused pointed out to the police
officer, the place where he had concealed the weapon of offence would be
admissible as conduct under Section 8 irrespective of the fact whether the
statement made by the accused contemporaneously with or antecedent to such
conduct falls within the purview of Section 27 of the Evidence Act or not. (Para 78)
For Appellant(s) Mr. Jayesh Gaurav, Adv. Ms. Nandini Rai, Adv. Ms. Diksha Ojha, Adv. Mr. Farrukh
Rasheed, AOR
For Respondent(s) Mr. Shreekant Neelappa Terdal, AOR
JUDGMENT
J.B. PARDIWALA, J. :
1. This appeal, by special leave, is at the instance of a convict accused and is directed
against the judgment and order dated 28.02.2014 passed by the High Court of Delhi in
Criminal Appeal No. 1246 of 2011 by which the High Court dismissed the appeal and
thereby affirmed the judgment and order of conviction dated 08.04.2011 and the order on
sentence of life imprisonment dated 27.04.2011 resply passed by the Additional Sessions
Judge-II (North West), Rohini, Delhi in the Sessions Case No. 998 of 2009 holding the
appellant convict herein guilty for the offences punishable under Sections 302, 392, 394
and 397 resply read with Section 34 of the Indian Penal Code (for short, ‘IPC’).
CASE OF THE PROSECUTION
2. The appellant convict along with three other coaccused was put to trial in the Court
of the Additional Sessions Judge-II (North West), Rohini, Delhi for the offences punishable
under Sections 392, 394, 397, 307, 302, 411 read with Section 34 of the IPC. On
16.08.2008 at about 3.30 in the early morning the PW-1, namely, Sushil Kumar (original
first informant and injured eye witness) along with his friend Pappu (deceased) and his
brother Pradeep Kumar, PW-4 were at the Azadpur Subzimandi. They were at the Azadpur
Subzimandi for the purpose of purchasing vegetables. After purchasing vegetables from
the D Block corner of the Azadpur Subzimandi, they proceeded towards the main gate.
When the PW 1 and his friend Pappu reached near the STD PCO at the D Block corner,
they were cornered by the four accused persons who were put to trial. These four accused
persons, according to the case of the prosecution, included the appellant herein also. Two
of the accused persons snatched away Rs. 14,800/- from the pocket of the PW 1. The two
accused persons who snatched away the money from the pocket of the PW 1 were
Sharwan Kumar and Pawan Kumar respectively. When the PW 1 resisted, the other two
accused persons armed with ice picks attacked him and his friend Pappu. The appellant
convict and co-accused Vijay alias Kalia are alleged to have caused injuries with their
respective ice picks on the body of the PW 1 as well as his friend Pappu (deceased). After
robbing and in the process of causing injuries, all the four accused ran away from the
place of occurrence. When the traffic of trucks at the market got eased, the PW-1 saw
Pappu (deceased) lying in an injured condition. Both received help from the PCR officials
and were taken to the BJRM hospital. Pappu ultimately succumbed to the injuries he
suffered and died at the hospital. The PW 1 was also admitted in the hospital.
3. The PW 1 lodged the First Information Report (FIR) No. 186 of 2008 on 16.08.2008
in connection with the incident as narrated above. The FIR No. 186 of 2008 dated
16.08.2008 reads thus:-
“F.I.R. N0.186/2008, DATED 16.08.08
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Statement of Sushil Kumar S/o Shri Ram Das R/o H. No.190, Mukesh Nagar, Shahadara Gali
No.3, near Badi Ramleela Ground, Delhi aged 42 years.
Stated that I reside at the above mentioned address with family and I am a retail vegetable seller
at nearby place of Metro Station. Today, on 16/8/08, I arrived for purchasing vrgetables at Azadpur
Sabzimandi along with my friend Pappu S/o Shri Shokaran Singh R/o H.No.199, Bholanath Nagar,
Near Railway Line, Sabzimandi Shahdara, Delhi. We purchased some vegetables from D Block
and we both were going towards main gate from D Block Azadpur Mandi. Then, at around 3-30
a.m., when, we both reached at D Block Corner main road Azadpur Mandi, then, four boys,
surrounded us and out of them, two boys, took out amount of Rs.14,800/- placed in my pocket. I
and my friend Pappu opposed it. The four boys began to fight with us and out of them, two boys,
by taking out some sharp weapon, attacked on the chest of Pappu and on my left hand and on
my chest and on our screaming, the four boys, snatched the amount from us and ran away from
the spot. The police personnel of PCR Van admitted us in BJRM Hospital. The four boys, having
common intention, have looted the amount from me and on raising objection by us, with intention
to kill us, while attacking by sharp object, have injured us. I will identify if four boys may come in
front of me. You have recorded my statement as per my saying. Read over and affirmed to be
correct. Hence, it is requested that legal action may kindly be taken against them.”
[Emphasis supplied]
4. Upon the FIR being registered as referred to above, the investigation started. On
17.08.2008 pursuant to the secret information, the three co-accused, namely, Vijay alias
Kalia, Pawan Kumar and Sharwan Kumar were arrested from the DDA park, South
Azadpur, Delhi. The appellant convict herein came to be arrested on 20.08.2008.
5. In the course of the investigation, the investigating officer decided to hold the Test
Identification Parade (TIP) of the accused persons. However, it is the case of the
prosecution that the appellant convict herein declined to participate in the TIP on the
ground that he was already shown to the witnesses in the police station.
6. It is also the case of the prosecution that after the arrest of the appellant convict, he
made a statement that he would be in a position to show the weapon of offence i.e. the
ice pick which he had placed in one corner of his house. The investigating officer is said
to have discovered the weapon of offence i.e. the ice pick at the instance of the appellant
convict herein.
7. Upon conclusion of the investigation, the charge sheet was filed for the offences
enumerated above. The case was committed to the Court of Sessions as the offences
were exclusively triable by the Court of Sessions. The appellant convict herein and the co-
accused pleaded not guilty to the charge framed by the trial court and claimed to be tried.
8. In the course of trial, the prosecution led the following oral evidence:-
Sr. No. Name of the Details of deposition
witness
PUBLIC WITNESSES/EYE WITNESSES
1. Sushil He is the eye witness to the incident and had also received injuries during
Kumar the incident. He has deposed on the following aspects:
(PW1) 1. That on 16.08.2008 he along with his friend namely Pappu came
to Azadpur Subzi Mandi to purchase vegetables.
2. That they had purchased some vegetable from the D Block of
Azadpur Subzi Mandi and were going towards the IN Gate/ Main gate and
at about 3.30 AM when they were near the STD PCO on the D Block
corner, they were encircled by four persons.

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 That two of the accused persons snatched Rs.14,800/- from his pocket.
He has identified the accused Sharwan Kumar and Pawan to be the
persons who had snatched money from him.
4. That when he resisted, two of the other accused persons who were
armed with Ice pricks started attacking him and Pappu. He has identified
the accused Vijay @ Kalia to be the person, who stabbed him and has
also identified accused Mukesh as the person who was armed with ice
prick.
5. That the accused persons Vijay and Mukesh caused injuries with
the aid of ice picks on the person of Pappu and also to him on the left side
of chest and abdomen in three places and also on his right hand.
6. That after snatching money the accused persons ran away.
7. That he had been gheroed by the accused persons, when he
entrapped in the traffic of trucks and when he moved out of the traffic he
saw that his companion Pappu was also lying in an injured condition on
the road on which he called up PCR from his mobile phone bearing
number 9210415252 and requested the public to take them to hospital.
8. That they were taken to a private nursing home but the guard at
the Nursing Home did not let them enter the same on the pretext of police
case and in the meantime, PCR officials reached there and took them to
BJRM Hospital.
9. He has proved having given his statement to the police in BJRM
Hospital which is Ex.PW1/A.
10. That the denomination of currency note was Ten currency notes of
Rs.1000/-, Nine currency notes of Rs.500/- and Three currency notes of
Rs.100/- each.
11. That he had identified the accused persons on 15.09.2008 in the
Rohini court Complex when the accused persons had produced in the
some court.
12. That his blood stained clothes were seized at the hospital which
he identified in the court i.e. a white shirt with cuts on the left chest side
which is Ex.P1 and a vest bearing a cut corresponding to the cut in the
shirt which is Ex.P2.
13. That within a month of the occurrence he was again called at the
hospital when his blood sample was taken by the doctor.
2. Pradeep He is the brother of deceased Pappu and also the alleged eye witness to
Kumar the incident. He has deposed on the following lines:
(PW4) 1. That on 16.08.2008 he along with his brother Pappu and one
Sushil came to Azadpur Subzi Mandi for purchasing vegetable at around
3.00 a.m. and Pappu and Sushil went towards D Block for purchasing
vegetables whereas he went towards onion shed.
That at around 3.30 AM he saw that four boys had surrounded his brother
Pappu and friend Sushil and one of them had taken out the purse of his
brother from his pocket and when his brother objected then the accused
Mukesh and Vijay (whom the witness has correctly identified in the court
by pointing out towards them but not by name), gave ice prick blow on
various parts of his body and the other two accused who had surrounded
his brother and Sushil had taken out the money.
3. He has identified the accused Pawan and Sarwan correctly by
pointing out towards them in the court.
4. That accused gave ice prick blow to Sushil and Pappu on which
he raised alarm and thereafter all the four accused ran away towards D

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 Block on which somebody informed the police on No.100 and police
came there and took his brother and Sushil to BJRM Hospital.
5. That he went to his house to inform about the incident and later on
he came back at the spot when he came to know that his brother has
already expired.
6. That deceased Pappu was having black colour purse and used to
keep one small diary and some telephone diary, voter I card etc.
7. That after postmortem examination dead body of his brother was
received vide receipt which is Ex.PW4/A.
That later on he identified the accused Pawan and Vijay in the judicial
test Identification Parade in Rohini jail. He has proved his statement
recorded during the Test identification Parade of accused Pawan and
Vijay which are Ex.PW4/B and Ex.PW4/C respectively.
9. That subsequently he was again called in Tihar jail for the test
Identification Parade of other two accused but they refused to participate
in the same and thereafter he had not identified them anywhere before
the police.
10. Some leading questions were put to the witness Pradeep by the
Ld. Addl. PP for the State wherein he has admitted that on 15.09.2008 he
had come to court complex Rohini and outside the court of Ld. MM Shri
Prashant Kumar he had identified accused Sharvan and Mukesh also
besides accused Pawan and Vijay to the investigating officer being the
said four persons who were involved in the incident.
That in the incident accused Sharvan had blocked the way of his brother
and Sushil and Mukesh had attacked them with ice prick.
MEDICAL EVIDENCE/WITNESSES
3. Dr. Gopal This witness has proved that on 16.08.2008 one patient Sushil S/o
(PW3) Ramdass aged 42 years, male was brought to the BJRM hospital with
the alleged history of physical assault and was examined by Dr. Nadeem
Sr. Resident under his supervision. He has proved the MLC of injured
Sushil which is Ex.PW3/A.
He has also proved that on the same day one patient Pappu S/o Sobran
Singh, aged 45 years male was also brought to hospital with the alleged
history of physical assault and was also examined by Dr. Nadeem under
his supervision vide MLC which is Ex.PW3/C.
4. Dr. R.P. This witness has proved having conducted the postmortem examination
Singh on the dead body of deceased Pappu on 16.8.2008 which report is
(PW12) Ex.PW12/A. He has also proved that the cause of death in this case was
shock due to cardiac temponade as a result of injuries to great vessels
produced by pointed stabbing object and the Injury no.2 is ante-mortem
and sufficient to cause death in ordinary course of nature and time since
death is about eight hours.
He has also proved that on 22.10.2008 on an application moved before
him by Inspector Ram Chander, he gave his opinion that the injuries
mentioned in the postmortem report no. 822/08 dated 16.8.2008 on the
body of Pappu S/o Shobha Ram are possible by the weapons produced
before him or by similar such type of weapons, which opinion is
Ex.PW12/B. He has proved that the sketch prepared by him which are
Ex.PW12/C & PW12/D.
He has correctly identified the ice pricks examined by him which are Ex.P-
4 and Ex.P-5.

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5. Dr. Rohit This witness has proved the death certificate of Pappu issued by BJRM
Kumar hospital which is Ex.PW15/A and Death Summary which is Ex.PW15/B
(PW15)

POLICE/OFFICIAL WITNESSES (Proving Investigations)

6. HC He is a formal witness being the Duty Officer who has proved having
Raghubir received the rukka on the intervening night of 15/16.08.2008 at around 6
Singh AM which was brought by ASI Surender and sent by SI Arvind Pratap
(PW2) Singh, on the basis of which rukka he got an FIR no.186/08, under
Section 394/ 397/307/34 IPC registered by dictating it to the computer
operator, print out of which FIR is Ex.PW2/A. He has also proved having
made an endorsement on the rukka which is Ex.PW2/B and having
recorded the DD No.31A copy of which is Ex.PW2/C.
7. HC He is also a formal witness being the photographer who has proved
Mahender having taken seven photographs of the place of incident on the direction
(PW5) of the investigating officer the negatives of which are Ex.PW5/A (1 to 7)
and the corresponding positive photographs are Ex.PW5/B (1 to 7).
8. SI Satpal This witness is the Crime Team Incharge who has proved having
Singh inspected the spot of incident on 16.08.2008 and having prepared his
(PW6) report which is Ex.PW16/A which he handed over to the Investigating
Officer.
9. HC Prahlad He is the formal witness being the MHCM who has proved having
Singh received the various case properties from the Investigating Officer and
(PW7) later on sent same to FSL. He has placed on record the photocopies of
the various entries in Register No. 19 and the RC which are Ex.PW7/A to
Ex.PW7/J. He has proved that the sealed pullanda remained intact during
his custody and he did not interfere with the same nor allowed anyone to
interfere with it.
10. SI Manohar He is the Draftsman who has proved having prepared the scaled site plan
Lal (PW8) of the spot of incident which site plan is Ex.PW8/A.
11. Ct. Rakesh He is a formal witness who has proved that on 27.10.2008 he took six
(PW9) sealed pullandas and four sample seals along with FSL Form for
depositing in FSL Rohini vide RC No.83/21/08. He has proved that the
sealed pullanda remained intact during his custody and he did not interfere
with the same nor allowed anyone to interfere with it.
12. SI Arvind He is the initial investigating officer who has proved the following
Pratap Singh documents:
(PW10) Ex.PW10/A DD No. 29A
Ex.PW10/B Rukka prepared by him
Ex.PW10/C Seizure of pullanda containing
the clothes of injured Sushil.
Ex.PW10/D Arrest memo of accused Vijay @
Kalia
Ex.PW10/E Arrest memo of accused Pawan
Ex.PW10/F Arrest memo of accused Sharwan
Ex.PW10/G Personal search memo of
accused Vijay
Ex.PW10/H Personal search memo of accused
Pawan

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 Ex.PW10/J Personal search memo of accused
Sharwan
Ex.PW10/K Disclosure statement of accused
Vijay
Ex.PW10/L Disclosure statement of accused
Pawan
Ex.PW10/M Disclosure statement of accused
Sharwan
Ex.PW10/N Pointing out memo
Ex.PW10/O Seizure of Purse along with its
belonging got recovered by the
accused Vijay @ Kalia
Ex.PW10/P Sketch of the ice prick got
recovered by the accused Vijay @
Kalia
Ex.PW10/Q Seizure of the ice prick
Ex.PW10/R Arrest memo of accused Mukesh
Ex.PW10/S Personal search memo of
accused Mukesh
Ex.PW10/T Disclosure statement of accused
Mukesh
Ex.PW10/U Pointing out memo
Ex.PW10/V Seizure of currency notes
recovered by the accused Mukesh

Ex.PW10/W Sketch of the ice prick got

recovered by the accused Mukesh

Ex.PW10/X Seizure of ice prick got recovered

by the accused Mukesh

13. SI Kishan This witness has proved having got conducted the Test Identification
Lal (PW11) Parade of the accused persons during which they have refused to
participate. He has also proved having got the witness Sushil Kumar
medically examined in BJRM Hospital and the seizure of blood samples of
the accused vide memo Ex.PW11/A.
14. Inspector He is the subsequent investigating officer who has proved the various
R.C. investigation proceedings conducted by him. Apart from the document
Sangwan proved by SI Arvind Pratap he has proved the following documents:
(PW13)

Ex.PW13/A-1 to A- Photographs of the spot

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Ex.PW13/B Site plan
Ex.PW13/C Brief Facts
Ex.PW13/D Form 25.35

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 Ex.PW13/E & Dead body identification
Ex.PW13/F statement of Pradeep and
Bhagwati
Ex.PW13/G Request for postmortem
Ex.PW13/H Seizure of pullanda
containing clothes of the
deceased
Ex.PW13/J Application for seeking
subsequent opinion Ex.PX
FSL result (not disputed by
the Ld. counsels for the
accused persons)
15. HC He was the PCR van Incharge and has deposed that:
Kanwarpal 1. In the intervening night of 15/16.8.2008 at about 3:50 am they
(PW14) received the information that two persons have been stabbed at gate no.2
Azadpur Mandi.
2. Thereafter he along with staff reached gate no.2 Azadpur Mandi
from where he came to know that the incident had taken place at DBlock
Corner near STD booth and thereafter, they reached there and found two
persons namely Sushil Kumar and Pappu in injured conditions.
3. They took the injured to BJRM Hospital and got them admitted there
for treatment.

16. Sh. Rajesh This witness has proved having conducted the Test, Ld. ACMM
Kumar Goel, Identification Parade proceedings of accused persons namely Sharwan
Ld. ACMM Kumar, Vijay @ Kalia and Pawan Kumar and Mukesh. He has proved the
following documents:
Ex.PW8/A Test Identification Parade of
accused Mukesh

Ex.PW8/B Test Identification Parade of

accused Vijay @ Kalia
Ex.PW8/C Test Identification Parade of
accused Pawan
Ex.PW16/A Application of the investigating
officer for obtaining copies of the
proceedings
Ex.PW8/E Test Identification parade of
accused Sharwan
Ex.PW16/B Application of the investigating
officer for obtaining the copies of
the proceedings
Ex.PW16/C Envelopes containing the Test
& Identification Parade proceedings
Ex.PW16/D
Ex.PW16/E Application moved by the
& PW16/F investigating officer for conducting
Test Identification Parade

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9. Upon conclusion of the recording of evidence, the further statement of the appellant
convict under Section 313 of the Code of Criminal Procedure, 1973 (CrPC) was recorded
in which the appellant convict stated that he had refused for the TIP as he was already
shown to the witnesses by the police. He further stated that he was innocent and had been
falsely implicated in the case. He was picked up from the house of his in-laws and was
detained in the police station for three days. He stated that he had no idea about the case.
10. Upon appreciation of the oral as well as documentary evidence on record, the Trial
Court came to the conclusion that the appellant convict herein and the co-accused,
namely, Vijay alias Kalia were guilty of the offences punishable under Sections 302, 392,
394 and 397 resply read with Section 34 of the IPC, whereas the other two co-accused,
namely, Pawan Kumar and Sharwan Kumar were held guilty of the offence punishable
under Section 392 read with Section 34 of the IPC.
11. The order of sentence as awarded to the appellant convict herein by the Trial Court
is reproduced as under:-
“The convict Mukesh Singh is sentenced to Rigorous Imprisonment for life and fine for a sum of
Rs.25,000/- for the offence under Section 397 read with 302 Indian Penal Code. In default of
payment of fine the convict shall further undergo Simple Imprisonment for a period of three
months. The total fine of Rs.25,000/-, if recovered, shall be given to the family of the deceased
Pappu as compensation under Section 357 Cr.P.C. Further the convict is sentenced to Rigorous
Imprisonment for a period of Five years and fine of Rs. 2,000/- for the offence under Section 392
read with Section 394 Indian Penal Code. In default of payment of fine the convict shall further
undergo Simple Imprisonment for a period of one week.”
12. The appellant convict being aggrieved by the judgment of conviction and order on
sentence passed by the Trial Court went in appeal before the High Court of Delhi. The
High Court upon re-appreciation of the entire evidence on record, dismissed the appeal
and thereby affirmed the judgment of conviction and order on sentence passed by the Trial
Court.
13. In such circumstances referred to above, the appellant is here before this Court with
the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT
14. Mr. Jayesh Gaurav, the learned counsel appearing for the appellant convict
vehemently submitted that the Courts below committed a serious error in holding that the
prosecution was successful in establishing its case against the appellant convict beyond
reasonable doubt. He submitted that the conviction of the appellant convict is essentially
based on the evidence of the PW 1 – Sushil Kumar. According to the learned counsel,
there is no other evidence on record to connect the appellant convict with the alleged
crime.
15. The learned counsel laid much stress on the fact that the case of the prosecution is
one of robbery and murder. The time of the alleged incident is early in the morning at 3.30.
He argued that although the incident occurred at a vegetable market, yet there were no
sufficient lights in that area to enable the assailants to easily identify or to put it in other
words, the PW 1 as an injured eye witness must not have had the occasion to even have
a bare glimpse of the appellant.
16. It was argued that the investigating officer had arranged a TIP but the appellant
convict had declined to participate in the same as he had already been shown to the
witnesses in the police station. He further submitted that the PW 4, namely, Pradeep
Kumar also claims to be an eye witness to the incident. However, both the Trial Court and
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the High Court disbelieved his oral evidence as his presence at the place of occurrence
was found to be doubtful. Therefore, according to the learned counsel, the entire case
hinges on the evidence of a solitary eye witness i.e. PW 1 Sushil Kumar. He argued that
PW 1 Sushil Kumar identified the appellant convict herein and other three co-accused for
the first time before the Trial Court. This identification for the first time before the Trial
Court could not have been relied upon being a weak piece of evidence to hold the
appellant convict guilty of the offences charged with.
17. The learned counsel vehemently submitted that the Courts below ought not to have
drawn any adverse inference against the appellant convict for not having participated in
the TIP. According to the learned counsel, the TIP is a part of the police investigation and
the accused cannot be compelled to submit himself to the TIP, more particularly if the case
of the accused is that he was already shown to the witness before the TIP could be
undertaken. In other words, the submission of the learned counsel is that if the
identification of the appellant convict for the first time before the Trial Court is eschewed
from consideration, then there is no other evidence to connect him with the alleged act.
The learned counsel submitted that the prosecution seeks to rely upon the discovery of
the weapon of offence i.e. the ice pick and an amount of Rs. 7,000/- of the denomination
of one thousand from the house of the appellant convict, but it is not a discovery in the
eye of law as the same is not in conformity with Section 27 of the Evidence Act, 1872 (for
short, ‘the Evidence Act’).
18. In such circumstances referred to above, the learned counsel prayed that there
being merit in his appeal, the same may be allowed and the appellant convict be acquitted
of all the charges.
SUBMISSIONS ON BEHALF OF THE STATE (NCT OF DELHI)
19. On the other hand, this appeal was vehemently opposed by Mr. K.M. Nataraj, the
learned Additional Solicitor General appearing for the State (NCT of Delhi). He submitted
that no error, not to speak of any error of law, could be said to have been committed by
the Courts below in holding the appellant convict guilty of the offences he was charged
with. The learned ASG submitted that the Courts below were justified in drawing adverse
inference against the appellant convict for having declined to participate in the TIP. It was
argued that once having declined to participate in the TIP, the accused thereafter cannot
object or say anything against as regards the evidentiary value of the identification by the
eye witnesses of the accused persons before the Trial Court. He further argued that the
identification of the accused by the eye witnesses before the Trial Court constitutes
substantive evidence and, if TIP is carried out in the course of the investigation, then the
proceedings of such TIP would corroborate the substantive evidence of identification
before the Court. The learned ASG submitted that the Courts below have believed and
found the identification of the accused appellant for the first time before the Trial Court,
absolutely reliable and trustworthy. This being a question of fact, the same may not be
disturbed by this Court in exercise of its jurisdiction under Article 136 of the Constitution.
20. The learned ASG further submitted that over and above the evidence of
identification, there is evidence of discovery of the currency notes of Rs. 7,000/- of the
denomination of one thousand as well as the weapon of offence i.e. the ice pick from the
house of the appellant convict. This, according to the learned Additional Solicitor General,
is one additional incriminating circumstance against the appellant convict pointing towards
his guilt.
21. In such circumstances referred to above, the learned ASG prayed that there being
no merit in this appeal, the same may be dismissed.
10
ANALYSIS
22. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions fall for our consideration:-
(i) Whether the High Court committed any error in dismissing the appeal filed by the
appellant convict and thereby affirming the judgment and order of conviction and sentence
passed by the Trial Court for the alleged offences?
(ii) Whether an accused can decline to participate in the TIP on the ground that he was
already shown to the eye witnesses prior to the conduct of the TIP and in such
circumstances, the TIP would be nothing short of creating evidence against him?
(iii) Can an accused decline to participate in the TIP that the investigating officer may
propose to hold in the course of investigation on the ground that no person accused of
any offence shall be compelled to be a witness against himself? To put it in other words,
can an accused decline to subject himself to the TIP on the ground that the same violates
his fundamental right under Article 20(3) of the Constitution?
(iv) To what extent the Court can draw an adverse inference against the accused for
having refused to participate in the TIP? Whether by virtue of drawing such adverse
inference, is it open for the Court to accept the substantive evidence of identification before
the Trial Court without any corroboration to such identification?
(v) What is the true purport of Section 54A of the CrPC?
(vi) Whether the Courts below were justified in placing reliance on the discovery of
weapon of offence and the currency notes from the residence of the appellant convict as
one of the incriminating circumstances against the appellant convict?
Whether TIP violates the fundamental right of an accused under Article 20(3) of
the Constitution
23. Article 20(3) of the Constitution reads thus:-
“Article 20(3):─No person accused of any offence shall be compelled to be a witness against
himself.”
24. The true purport of clause (3) of Article 20 of the Constitution referred to above was
laid down by this Court in the case of M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
Jagannadhadas J., delivering the judgment of the Court, observed:-
“Indeed, every positive volitional act, which furnishes evidence is testimony, and testimonial
compulsion connotes coercion which procures the positive volitional evidentiary acts of the
person, as opposed to the negative attitude of silence or submission on his part.”
25. We are conscious of the fact that M.P. Sharma (supra) referred to above came to
be overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, to the extent that
it had observed that privacy is not a right guaranteed by the Indian Constitution. It was
held in M.P. Sharma (supra) that in absence of a provision like the Fourth Amendment to
the U.S. Constitution, a right to privacy could not be read into the Indian Constitution. In
the case on hand, we are not concerned with the right of privacy of an accused when it
comes to putting him to TIP. What has been ruled in K.S. Puttaswamy (supra) in context
of Article 21, is that an invasion of privacy must be fulfilled on the basis of a law which
stipulates a procedure which is fair, just and reasonable.
26. What is prohibited by Article 20(3) of the Constitution is procuring by compulsion of
the positive volitional evidentiary acts of an accused. It is true that an accused may be

11
said to be compelled to attend a test identification parade, but this compulsion does not
involve any positive volitional evidentiary act. His mere attendance or the exhibition of his
body at a test identification parade even though compelled, does not result in any
evidentiary act until he is identified by some other agency. The identification of him by a
witness is not his act, even though his body is exhibited for the purpose. His compelled
attendance at a test identification parade is comparatively remote to the final evidence
and cannot be said by itself to furnish any positive volitional evidentiary act. [See : Peare
Lal Show v. The State, AIR 1961 Cal 531]
27. In Peare Lal Show (supra), Mitter, J. of the Calcutta High Court in his separate
judgment observed thus:-
“5. True, we are to construe Article 20(3), but the language of Article 20(3) is as to the material
part tolidem verbis the 5th Amendment of the American Constitution. Dealing with the point,
Holmes, J. in Holt v. United States, (1910) 218 US 245, observed:
“A question arose as to whether a blouse belonged to the prisoner. A witness testified that the
prisoner put it on and it fitted him. It is objected that he did this under the same duress that made
his statements inadmissible, and that it should be excluded for the same reasons. But the
prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of
the use of physical or moral compulsion to extort communications from him, not an exclusion of
his body as evidence when it may be material. The objection in principle would forbid a jury to
look at a prisoner and compare his features with a photograph in proof. Moreover, we need not
consider how far a court would go in compelling a man to exhibit himself. For when he is exhibited,
whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is
competent”.
6. In the same strain are to be found comments in Wigmore on Evidence, Volume VIII (3rd
Edition), Section 2263 at page 363. The emphasis is upon the testimonial status of the accused
and not upon any compulsion which might be a step in obtaining the final evidence against the
man. Dealing with, this topic, Wigmore observed:
“Such, finally, is the practical requirement that follows from the necessity of recognizing other
unquestioned methods of procuring evidence: for if the privilege extended beyond these limits,
and protected an accused otherwise than in his strictly testimonial status, -- if, in other words, it
created inviolability not only for his physical control of his own vocal utterances, but also for his
physical control in whatever form exercised then it would be possible for a guilty person to shut
himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law
to employ in evidence anything that might be obtained by forcibly overthrowing his possession
and compelling the surrender of the evidential articles, a clear “reductio ad absurdum”.”
7. The foregoing principles were embodied in the judgement of the Supreme Court in M.P.
Sharma v. Satish Chandra, AIR 1954 SC 300, and the statement of the law set out earlier in this
judgment furnishes, to my mind, the real test for determining whether any particular accused is
compelled to be a witness against himself. As I have pointed out, the identification of an accused
at a test identification parade by someone is not the accused's own act. His mere attendance or
the exhibition of his body cannot be regarded as furnishing any positive volitional evidentiary act.
That being the position, the impugned order cannot be regarded as violative of Article 20(3) of the
Constitution.”
[Emphasis supplied]
28. Bhattacharya, J. by his separate but concurring judgment observed thus:-
“10. In M.P. Sharma v. Satish Chandra, AIR 1954 SC 300, it is pointed out that the guarantee
under Article 20(3) of the Constitution is available to the person against whom a first information
report has been recorded. As was observed in Collector of Customs v. Calcutta Motor and Cycle
Co., AIR 1958 Cal 682, no formal complaint is necessary and even if a person has been named

12
as one who committed an offence, particularly by officers who are competent to launch a
prosecution against him, he has been accused of an offence within the meaning of Article 20(3)
and he can claim protection under that provision of law and, therefore, the extortion of any
evidentiary material even at the stage of investigation, as in the present case, which may aid in
the making out of a case against him may be within the meaning of condemnation of the Article.
After the decision of the Supreme Court in Sharma's case, referred to above, it cannot be said
that the guarantee in Article 20(3) is confined to the oral evidence of the accused. Their Lordships
pointedly observed:
“We can see no reason to confine the contents of the constitutional guarantee to this barely literal
import. So to limit it would be to rob guarantee of its substantial purpose and to miss the substance
for the sum as stated in certain decisions. A person can be a witness not merely by giving oral
evidence but also by producing documents or making intelligible gestures as in the case of a
dumb witness or the like. To be a witness is nothing more than to furnish evidence and such
evidence can be furnished through the lips or by production of a thing or of a document or any
other means”.
11. The Magistrate has directed the production of the petitioner in a test identification parade. The
petitioner has objected to this procedure. Consequently, there is an element of coercion and
therefore no question of acquiescence arises. This kind of objection may be raised, in my opinion,
by an accused person not only at the time of passing of such an order by a Magistrate orally or in
writing, personally or through his lawyer, but also at the time of actual collection of his evidence
which, according to the accused, may be self-incriminatory in character. The objection of the
petitioner is in time. There is, therefore, no technical bar.
14. Apart from the question of coercion as opposed to acquiescence the fundamental idea
stressed is ‘positive volitional evidentiary act’. This is distinct from ‘negative attitude of silence or
submission’. It is clear that the Supreme Court did not lay down only the negative principle of
silence or acquiescence. What stands out prominently in the judgment is ‘a positive volitional
evidentiary act’. If coercion is sought to be imposed in getting from an accused evidence which
cannot be procured save through positive volitional act on his part, the Constitutional guarantee
will step in to protect him. This was the view of this Court in the case of Farid Ahmed v. The State,
AIR 1960 Cal 32, in connection with a case in which the Magistrate allowed an investigating officer
to take specimen writing and signatures of the accused. But if that evidence can be procured
without any positive volitional evidentiary act on the part of the accused, Article 20(3) of the
Constitution will have no application. In so far as the above ratio decidendi laid down by the
Supreme Court was not kept in view fully in Bhaluka Behara v. The State, AIR 1957 Orissa 172;
Brij Bhusan v. The State, AIR 1957 Madh Pra 106; Nazir Singh v. The State, AIR 1959 Madh Pra
411, or Sailendra Nath v. The State, AIR 1955 Cal 247, or Ram Swarup v. The State, AIR 1958
Cal 119, we would with due deference dissent from the views in these decisions. In Bhaluka
Behara v. The State, the Orissa High Court seems to have been of the opinion that any direction
asking the accused to give his thumb impression would amount to asking him to furnish evidence
which is prohibited under Article 20(3). In this case, however, there was no element of coercion
or compulsion and no objection had been raised by the accused persons at the time of taking the
thumb impression. In Brij Bhusan v. The State, the Madhya Pradesh High Court held that Section
5 of the Madhya Bharat Identification of Prisoners Act, in so far as it conferred powers on the
Magistrate to direct an accused person to give his thumb impression, specimen writing and
signature for comparison to be used against him in a trial, was repugnant to Article 20(3) of the
Constitution and was, therefore, void. In Sailendra Nath v. The State and Ram Swarup v. The
State it was pointed out that taking specimen writing did not offend Article 20(3) of the Constitution,
-- a view that was dissented from in Farid Ahmed v. The State.
18. It will appear from People v. Swallow, 165 New York Supp. 915, that the rule against
selfincrimination is not violated when the accused is compelled to exhibit himself or part of his
body to the court or to allow a record of his finger prints to be taken. In State v. Ah Chuey, (1879)
33 Am Re 530, the Court held that an order directing the accused to exhibit certain tattoo marks
On his person would not amount to an infringement of the rule against selfincrimination.
13
19. Negativing the contention that taking of finger prints is a violation of the privilege against
selfincrimination, Willis in Constitutional Law of the United States (1936 Edition, page 522)
observed inter alia:
“The accused does not exercise a volition or give oral testimony. He is passive. He is not giving
testimony about his body, but is giving his body". Speaking of inspection of bodily features by the
Tribunal or by witnesses, Wigmore in Evidence, Vol. VIII, page 375, Section 2265 comments that
what is obtained from the accused by such action is not testimony about his body but his body
itself. This aspect, I cannot help repeating, was also stressed by Holmes, J. in the case of (1910)
218 US 245 by observing:
“But the prohibition of compelling a man in a criminal court to be witness against himself is a
prohibition of use of physical or moral compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material”.
20. If, as we find, taking of thumb impression is not violative of Article 20(3), with greater force
the reasons set out above mutatis mutandis will be applicable to a case directing the production
of the accused in a test identification parade, apart from such consideration as interposition of a
magisterial order. It is not the accused who is called upon to testify against himself but somebody
else on seeing him and others now in the parade may have something to say later on. The
accused does not produce any evidence or perform any evidentiary act. It may be a positive act
and even a volitional act, but only to a limited extent, when he walks to the place where the test
identification parade is to be held, as has been urged by Mr. Dutt, but certainly it is not his
evidentiary act. The view that we take in the instant case is in full accord with the test of positive
volitional evidentiary act laid down by the Supreme Court in the case of M.P. Sharma v. Satish
Chandra, AIR 1954 SC 300.”
[Emphasis supplied]
SECTION 54A OF THE CODE OF CRIMINAL PROCEDURE, 1973
29. In the aforesaid context, we shall now look into Section 54A of the CrPC. Section
54A reads thus:-
“Section 54A. Identification of person arrested.─ Where a person is arrested on a charge of
committing an offence and his identification by any other person or persons is considered
necessary for the purpose of investigation of such offence, the Court, having jurisdiction may, on
the request of the officer in charge of a police station, direct the person so arrested to subject
himself to identification by any person or persons in such manner as the Court may deem fit.
Provided that, if the person identifying the person arrested is mentally or physically disabled, such
process of identification shall take place under the supervision of a Judicial Magistrate who shall
take appropriate steps to ensure that such person identifies the person arrested using methods
that person is comfortable with:
Provided further that if the person identifying the person arrested is mentally or physically
disabled, the identification process shall be videographed.”
30. The newly inserted Section 54A provides for the identification of the arrested person
where it is considered necessary for the purpose of investigation by the officer-incharge
of a police station. The said Section empowers the court, on the request of the officer-in-
charge of a police station, to direct for placing the accused at test identification parade for
identification by any person or persons in such manner as the court may deem fit. It is
provided in the “objects and reasons”:-
“This clause seeks to insert a new section 54A to empower the Court to direct specifically the
holding of the identification of the arrested person at the request of the prosecution.”
31. First Proviso: Identifier mentally or physically disabled. ─ When the person
identifying the suspect is mentally or physically disabled, the process of identification must
14
be under the supervision of a Judicial Magistrate. This mandatory requirement of law has
been incorporated in the statute by the amending Act 13 of 2013 w.e.f. 03.02.2013. It is
the duty of the Magistrate supervising TIP to take appropriate steps to ensure that such
identifier identifies the suspect using methods to which he was comfortable with. The
Magistrate cannot discharge his duty lightly or in a slip-shod manner.
32. Second Proviso: Identification when suspect is mentally or physically
disabled. ─ The second proviso to Section 54A has been inserted in the statute by the
amending Act 13 of 2013 w.e.f. 03.02.2013. It relates to identification of a suspect who is
mentally or physically disabled. It appears that the requirements specified in the first
proviso are not attracted for the second proviso. But it is obligatory that the process of
identification of the person arrested shall have to be videographed. Unless this
requirement is complied with, the identification shall fall to the ground and no reliance can
be placed on it at any stage of the trial.
33. This Section is restricted to identification of persons only. So this Section has no
application where the question of identification of articles arises. TIP is part of investigation
and the investigation of a case is to be conducted by the investigating agency and it is
their statutory prerogatives. There was no statutory provision authorizing the accused to
pray for placing him in the test parade. Some High Courts approved this right, while some
other High Courts took a contrary view. In State of Uttar Pradesh v. Rajju, AIR 1971 SC
708, this Court observed, “If the accused felt that the witnesses would not be able to
identify them─they should have requested for an identification parade.” This observation
indirectly approves the right to ask for test parade by the accused. In another case, the
accused voluntarily accepted the risk of being identified in a parade but he was denied
that opportunity. This Court observed that this was an important point in his favour ─ Shri
Ram v. State of U.P., (1975) 3 SCC 495.
34. This provision for giving directions by the Court as to the manner in which test
parade is to be conducted may be viewed as treating the Court as part of the investigating
agency. Without having any provision like Section 54A there has been so long no difficulty
in holding test identification parades. There are plenty of judicial pronouncements to show
the safeguards to be followed while holding identification parade.
35. Thus we are of the view that after the introduction of Section 54A in the CrPC
referred to above, an accused is under an obligation to stand for identification parade. An
accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced
or coerced for the same. If the coercion is sought to be imposed in getting from an accused
evidence which cannot be procured save through positive volitional act on his part, the
constitutional guarantee as enshrined under Article 20(3) of the Constitution will step in to
protect him. However, if that evidence can be procured without any positive volitional
evidentiary act on the part of the accused, Article 20(3) of the Constitution will have no
application. The accused while subjecting himself to the TIP does not produce any
evidence or perform any evidentiary act. As explained very succinctly by the learned
Judges of the Calcutta High Court as above, it may be a positive act and even a volitional
act, but only to a limited extent, when the accused is brought to the place where the TIP
is to be held. It is certainly not his evidentiary act. The accused concerned may have a
legitimate ground to resist facing the TIP saying that the witnesses had a chance to see
him either at the police station or in the Court, as the case may be, however, on such
ground alone he cannot refuse to face the TIP. It is always open for the accused to raise
any legal ground available to him relating to the legitimacy of the TIP or the evidentiary

15
value of the same in the course of the trial. However, the accused cannot decline or refuse
to join the TIP.
36. Thus, our aforesaid discussion answers two of the six questions framed by us i.e.
(i) whether an accused can decline to submit himself to the TIP on the ground that the
same is violative of Article 20(3) of the Constitution and (ii) the true purport of any order
that the Magistrate may pass in exercise of powers under Section 54A of the CrPC
directing any person to subject himself or herself to the TIP.
IMPORTANCE AND EVIDENTIARY VALUE OF TIP
37. Facts which establish the identity of any person or thing whose identity is relevant
are, by virtue of Section 9 of the Evidence Act, always relevant. The term ‘identification’
means proving that a person, subject or article before the Court is the very same that he
or it is alleged, charged or reputed to be. Identification is almost always a matter of opinion
or belief.
38. The identification has by itself no independent value. As stated by Viscount Haldane
L. C. in Rex v. Christie, (1914) A. C. 545 (551) (E):-
“its relevancy is to show that the witness “was able to identify at the time and to exclude the idea
that the identification of the prisoner in the dock was an afterthought or a mistake.”
39. Lord Moulton (with whom Viscount Haldane L. J. agreed) said at page 558 :
“Identification is an act of the mind, and the primary evidence of what was passing in the mind of
a man is his own testimony, where it can be obtained.”
40. During the investigation of a crime committed by persons unknown to the witnesses,
the persons arrested on suspicion of their complicity in the crime have got to be confronted
by the investigating authority with the witnesses so that they can find out whether they are
the persons who committed the crime or not. Before the investigating authorities send up
a case to Court, they must be satisfied that the persons arrested by them are the persons
accused of having committed the crime.
41. If they were known to the witnesses, the witnesses would have given their names
and that would have established their identity, but when they were not known, their identity
could be established only if the witnesses on seeing them say that they are the offenders.
Since it would be very easy for a witness who has little regard for truth, to say that the
person arrested on suspicion was the offender, he is confronted with the suspect mixed
with innocent men. If he picks him out, that would add to the credibility of his statement
that he was the offender. This is the primary object of identification proceeding.
42. Phipson writes in his Law of Evidence, Edn. 8, p. 392:-
“In criminal cases it is improper to identify the accused only when in the dock; the police should
place him, beforehand, with others, and ask the witness to pick him out.”
43. A three-Judge Bench of this Court in the case of Rajesh v. State of Haryana, (2021)
1 SCC 118, had the occasion to consider (i) the purpose of conducting a TIP, (ii) the source
of the authority of the investigator to do so, (iii) the manner in which these proceedings
should be conducted, (iv) the weight to be ascribed to identification in the course of a TIP,
and (v) the circumstances in which an adverse inference can be drawn against the
accused who refuses to undergo the process. After due consideration of the aforesaid,
this Court summarised the principles as follows:-
“43.1 The purpose of conducting a TIP is that persons who claim to have seen the offender at the
time of the occurrence identify them from amongst the other individuals without tutoring or aid
from any source. An identification parade, in other words, tests the memory of the witnesses, in
16
order for the prosecution to determine whether any or all of them can be cited as eyewitness to
the crime.
43.2 There is no specific provision either in CrPC or the Evidence Act, 1872 (“the Evidence Act”)
which lends statutory authority to an identification parade. Identification parades belong to the
stage of the investigation of crime and there is no provision which compels the investigating
agency to hold or confers a right on the accused to claim a TIP.
43.3 Identification parades are governed in that context by the provision of Section 162 CrPC.
43.4 A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude
a possibility of the accused being shown to the witnesses before it is held.
43.5 The identification of the accused in court constitutes substantive evidence.
43.6 Facts which establish the identity of the accused person are treated to be relevant under
Section 9 of the Evidence Act.
43.7 A TIP may lend corroboration to the identification of the witness in court, if so required.
43.8 As a rule of prudence, the court would, generally speaking, look for corroboration of the
witness’ identification of the accused in court, in the form of earlier identification proceedings. The
rule of prudence is subject to the exception when the court considers it safe to rely upon the
evidence of a particular witness without such, or other corroboration.
43.9 Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto
make the evidence of identification inadmissible.
43.10 The weight that is attached to such identification is a matter to be determined by the court
in the circumstances of that particular case.
43.11 Identification of the accused in a TIP or in court is not essential in every case where guilt is
established on the basis of circumstances which lend assurance to the nature and the quality of
the evidence.
43.12 The court of fact may, in the context and circumstances of each case, determine whether
an adverse inference should be drawn against the accused for refusing to participate in a TIP.
However, the court would look for corroborating material of a substantial nature before it enters a
finding in regard to the guilt of the accused.”
44. In the very same judgment referred to above, this Court observed as under:-
“46. … In this backdrop, the contention of the appellants that the refusal to undergo a TIP is borne
out by the fact that Sandeep and Rajesh were known to each other prior to the occurrence and
that PW 4, who is a prime eyewitness, had seen Rajesh when he would attend the court during
the course of the hearings, cannot be brushed aside. Consequently, in a case, such as the
present, the Court would be circumspect about drawing an adverse inference from the facts, as
they have emerged. In any event, as we have noticed, the identification in the course of a TIP is
intended to lend assurance to the identity of the accused. The finding of guilt cannot be based
purely on the refusal of the accused to undergo an identification parade. In the present case, we
have already indicated that the presence of the alleged eyewitnesses PW 4 and PW 5 at the
scene of the occurrence is seriously in doubt. The ballistics evidence connecting the empty
cartridges and the bullets recovered from the body of the deceased with an alleged weapon of
offence is contradictory and suffers from serious infirmities. Hence, in this backdrop, a refusal to
undergo a TIP assumes secondary importance, if at all, and cannot survive independently in the
absence of it being a substantive piece of evidence.”
[Emphasis supplied]
45. In Munshi Singh Gautam (D) & Ors. v. State of M.P., reported in (2005) 9 SCC
631, this Court observed as under:-

17
“16. … The whole idea of a test identification parade is that witnesses who claim to have seen
the culprits at the time of occurrence are to identify them from the midst of other persons without
any aid or any other source. The test is done to check upon their veracity. In other words, the
main object of holding an identification parade, during the investigation stage, is to test the
memory of the witnesses based upon first impression and also to enable the prosecution to decide
whether all or any of them could be cited as eyewitnesses of the crime. The identification
proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the
Code and the Evidence Act. It is desirable that a test identification parade should be conducted
as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of
the accused being shown to the witnesses prior to the test identification parade. This is a very
common plea of the accused and, therefore, the prosecution has to be cautious to ensure that
there is no scope for making such an allegation. If, however, circumstances are beyond control
and there is some delay, it cannot be said to be fatal to the prosecution.
17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart
from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a
catena of decisions of this Court. The facts, which establish the identity of the accused persons,
are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of
a witness is the statement made in court. The evidence of mere identification of the accused
person at the trial for the first time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that
evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration
of the sworn testimony of witnesses in court as to the identity of the accused who are strangers
to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject
to exceptions, when, for example, the court is impressed by a particular witness on whose
testimony it can safely rely, without such or other corroboration. The identification parades belong
to the stage of investigation, and there is no provision in the Code which obliges the investigating
agency to hold or confers a right upon the accused to claim a test identification parade. They do
not constitute substantive evidence and these parades are essentially governed by Section 162
of the Code. Failure to hold a test identification parade would not make inadmissible the evidence
of identification in court. The weight to be attached to such identification should be a matter for
the courts of fact. In appropriate cases it may accept the evidence of identification even without
insisting on corroboration. …”
46. In Ramanbhai Naranbhai Patel v. State of Gujarat, (2000) 1 SCC 358, after
considering the earlier decisions this, Court observed:- (SCC p. 369, para 20)
“20. It becomes at once clear that the aforesaid observations were made in the light of the peculiar
facts and circumstances wherein the police is said to have given the names of the accused to the
witnesses. Under these circumstances, identification of such a named accused only in the Court
when the accused was not known earlier to the witness had to be treated as valueless. The said
decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) v.
V.C. Shukla [(1980) 2 SCC 665 : 1980 SCC (Cri) 561 : AIR 1980 SC 1382] wherein also Fazal
Ali, J., speaking for a three-Judge Bench made similar observations in this regard. In that case
the evidence of the witness in the Court and his identifying the accused only in the Court without
previous identification parade was found to be a valueless exercise. The observations made
therein were confined to the nature of the evidence deposed to by the said eyewitnesses. It,
therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in
the absence of a test identification parade, the evidence of an eyewitness identifying the accused
would become inadmissible or totally useless; whether the evidence deserves any credence or
not would always depend on the facts and circumstances of each case. It is, of course, true as
submitted by learned counsel for the appellants that the later decisions of this Court in the case
of Rajesh Govind Jagesha v. State of Maharashtra [(1999) 8 SCC 428 : 1999 SCC (Cri) 1452 :
AIR 2000 SC 160] and State of H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri) 147 : AIR
1999 SC 3916] had not considered the aforesaid three-Judge Bench decisions of this Court.
However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be
18
running counter to what is decided by the earlier three-Judge Bench judgments on the facts and
circumstances examined by the Court while rendering these decisions. But even assuming as
submitted by learned counsel for the appellants that the evidence of these two injured witnesses
i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may
be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses
were seriously injured and they could have easily seen the faces of the persons assaulting them
and their appearance and identity would well remain imprinted in their minds especially when they
were assaulted in broad daylight. They could not be said to be interested in roping in innocent
persons by shielding the real accused who had assaulted them.”
[Emphasis supplied]
47. In Malkhansingh v. State of M.P., (2003) 5 SCC 746, a three-Judge Bench of this
Court considered the evidentiary value of the identification of the appellant in that case by
the prosecutrix in the Court without holding a TIP in the course of the investigation. It was
argued before the Court that the identification in Court not preceded by a TIP is of no
evidentiary value. On the other hand, it was argued on behalf of the prosecution that the
substantive evidence is the evidence of identification in Court and, therefore, the value to
be attached to such identification depends on facts and circumstances of each case. The
Court ultimately answered as under:-
“7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart
from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a
catena of decisions of this Court. The facts, which establish the identity of the accused persons,
are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of
a witness is the statement made in court. The evidence of mere identification of the accused
person at the trial for the first time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that
evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration
of the sworn testimony of witnesses in court as to the identity of the accused who are strangers
to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject
to exceptions, when, for example, the court is impressed by a particular witness on whose
testimony it can safely rely, without such or other corroboration. The identification parades belong
to the stage of investigation, and there is no provision in the Code of Criminal Procedure which
obliges the investigating agency to hold, or confers a right upon the accused to claim a test
identification parade. They do not constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the evidence of identification in court. The
weight to be attached to such identification should be a matter for the courts of fact. In appropriate
cases it may accept the evidence of identification even without insisting on corroboration.”
[Emphasis supplied]
48. It is well settled that the substantive evidence is the evidence of identification in
court and the test identification parade provides corroboration to the identification of the
witness in court, if required. However, what weight must be attached to the evidence of
identification in court, which is not preceded by a test identification parade, is a matter for
the courts of fact to examine.
49. In Prem Singh v. State of Haryana, (2011) 9 SCC 689, a two-Judge Bench of this
Court expressed conflicting opinion, H.S. Bedi, J. observed in para 19 as under:-
“19. … It must be borne in mind that it is impossible for an accused to prove by positive evidence
that he had been shown to a witness prior to the identification parade but if suspicion can be
raised by the defence that this could have happened, no adverse inference can be drawn against
the accused in such a case.”

19
50. Gyan Sudha Misra, J. while disagreeing with H.S. Bedi, J. took the view that it is not
open to accused to refuse to participate in the TIP. The learned Judge observed in para
27 as under:-
“27. In my considered view, it was not open to the accused to refuse to participate in the TI parade
nor was it a correct legal approach for the prosecution to accept refusal of the accused to
participate in the test identification parade. If the appellant-accused had reason to do so, specially
on the plea that he had been shown to the eyewitnesses in advance, the value and admissibility
of the evidence of TI parade could have been assailed by the defence at the stage of trial in order
to demolish the value of the test identification parade. But merely on account of the objection of
the accused, he could not have been permitted to decline from participating in the test
identification parade from which adverse inference can surely be drawn against him at least in
order to corroborate the prosecution case.”
[Emphasis supplied]
51. Ultimately, the matter was heard by a three-Judge Bench in the case titled Prem
Singh v. State of Haryana, (2013) 14 SCC 88, and the appeal filed by the convict was
allowed. However, we do not find any discussion in the said judgment as regards the issue
whether the accused can refuse to participate in the TIP. This Court on its own looked into
the entire evidence and ultimately acquitted the appellant accused.
52. In Munna v. State (NCT of Delhi), (2003) 10 SCC 599, this Court took the view that
if an accused himself refused to participate in the TIP, then it is not open to him to contend
that the statement of the witnesses made for the first time should not be relied upon. The
Court held as under:-
“10. In a case where an accused himself refuses to participate in a test identification parade, it is
not open to him to contend that the statement of the eyewitnesses made for the first time in court,
wherein they specifically point towards him as a person who had taken part in the commission of
the crime, should not be relied upon. This plea is available provided the prosecution is itself
responsible for not holding a test identification parade. However, in a case where the accused
himself declines to participate in a test identification parade, the prosecution has no option but to
proceed in a normal manner like all other cases and rely upon the testimony of the witnesses,
which is recorded in court during the course of the trial of the case.”
[Emphasis supplied]
It is relevant to note that in the aforesaid decision, the accused in his statement
under Section 313 CrPC had not stated that he had been shown to the witnesses at the
police station. In the case on hand, it is the case of the appellant convict that he along with
other co-accused was shown to the witnesses not only prior to the conduct of the TIP but
even before the identification in the Court.
53. In Ravindra Laxman Mahadik v. State of Maharashtra, 1997 CriLJ 3833, in a
case involving Section 395 of the CrPC, it was opined:-
“10. I find merit in Mr. Mooman's submission that it would not be safe to accept the identification
evidence of Manda Sahani. Manda Sahani in her examinationin-chief stated that on the place of
the incident, there was no light. In her cross-examination (para 6) she stated that it was dark at
the place of the incident but, slight light was emanating from the building situate on the shore.
The distance between the building and the place where Manda Sahani and her husband were
looted has not been unfolded in the evidence. The learned trial Judge has observed that the
evidence of Vinod Sahani is that the incident took place at a distance of about 100 ft from the
Gandhi statue, where the meeting was held. What he wanted to convey was that hence there
must have been light at the place of incident. In my view, on the face of the definite statement of
Manda that it was dark as there was only slight light, and bearing in mind that the incident took

20
place at 9.30 p.m. in the month of February, 1992, it would not be safe to conclude that there was
sufficient light on the place of the incident enabling Manda Sahani to identify the appellant.”
54. In Kanan & Ors. v. State of Kerala, AIR 1979 SC 1127, this Court held:-
“…It is well settled that where a witness Identifies an accused who is not known to him in the
Court for the first time, his evidence is absolutely valueless unless there has been a previous T.
I. parade to test his powers of observations. The Idea of holding T. I. parade under Section 9 of
the Evidence Act is to test the veracity of the witness on the question of his capability to identify
an unknown person whom the witness may have seen only once. If no T. I. parade is held then it
will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for
the first time in Court. …”
[Emphasis supplied]
55. In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1,
this Court noticed the importance of TIP and logic behind it. It is the practice not borne out
of procedure but out of prudence. In this case, this Court has exhaustively examined the
entire case law on the subject. It was observed:-
“254. Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to
say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of
evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of
identification becomes admissible in court. The logic behind TIP, which will include photo
identification lies in the fact that it is only an aid to investigation, where an accused is not known
to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused.
The practice is not borne out of procedure, but out of prudence. At best it can be brought under
Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused
in the presence of an IO or the Magistrate, during the course of an investigation.”
56. This Court has further referred to its earlier decisions which state:-
“256. The law as it stands today is set out in the following decisions of this Court which are
reproduced as hereinunder:
Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC 631 : 2005 SCC (Cri) 1269] : (SCC pp. 642-
45, paras 16-17 & 19)
“16. As was observed by this Court in Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri)
391] identification tests do not constitute substantive evidence. They are primarily meant for the
purpose of helping the investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on the right lines. The identification can only be used
as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain [(1973) 2 SCC
406 : 1973 SCC (Cri) 828]) The necessity for holding an identification parade can arise only when
the accused are not previously known to the witnesses. The whole idea of a test identification
parade is that witnesses who claim to have seen the culprits at the time of occurrence are to
identify them from the midst of other persons without any aid or any other source. The test is done
to check upon their veracity. In other words, the main object of holding an identification parade,
during the investigation stage, is to test the memory of the witnesses based upon first impression
and also to enable the prosecution to decide whether all or any of them could be cited as
eyewitnesses of the crime. The identification proceedings are in the nature of tests and
significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable
that a test identification parade should be conducted as soon as after the arrest of the accused.
This becomes necessary to eliminate the possibility of the accused being shown to the witnesses
prior to the test identification parade. This is a very common plea of the accused and, therefore,
the prosecution has to be cautious to ensure that there is no scope for making such an allegation.
If, however, circumstances are beyond control and there is some delay, it cannot be said to be
fatal to the prosecution.

21
17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart
from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a
catena of decisions of this Court. The facts, which establish the identity of the accused persons,
are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of
a witness is the statement made in court. The evidence of mere identification of the accused
person at the trial for the first time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that
evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration
of the sworn testimony of witnesses in court as to the identity of the accused who are strangers
to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject
to exceptions, when, for example, the court is impressed by a particular witness on whose
testimony it can safely rely, without such or other corroboration. The identification parades belong
to the stage of investigation, and there is no provision in the Code which obliges the investigating
agency to hold or confers a right upon the accused to claim a test identification parade. They do
not constitute substantive evidence and these parades are essentially governed by Section 162
of the Code. Failure to hold a test identification parade would not make inadmissible the evidence
of identification in court. The weight to be attached to such identification should be a matter for
the courts of fact. In appropriate cases it may accept the evidence of identification even without
insisting on corroboration. (See Kanta Prashad v. Delhi Admn. [AIR 1958 SC 350:1958 Cri LJ
698], Vaikuntam Chandrappa v. State of A.P. [AIR 1960 SC 1340:1960 Cri LJ 1681], Budhsen v.
State of U.P. [(1970) 2 SCC 128:1970 SCC (Cri) 343] and Rameshwar Singh v. State of J&K
[(1971) 2 SCC 715 : 1971 Cri LJ 638] )
xxxx
19. In Harbajan Singh v. State of J&K [(1975) 4 SCC 480 : 1975 SCC (Cri) 545] , though a test
identification parade was not held, this Court upheld the conviction on the basis of the
identification in court corroborated by other circumstantial evidence. In that case it was found that
the appellant and one Gurmukh Singh were absent at the time of roll call and when they were
arrested on the night of 16-12-1971 their rifles smelt of fresh gunpowder and that the empty
cartridge case which was found at the scene of offence bore distinctive markings showing that
the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these
circumstances this Court held : (SCC p. 481, para 4)
‘4. In view of this corroborative evidence we find no substance in the argument urged on behalf
of the appellant that the investigating officer ought to have held an identification parade and that
the failure of Munshi Ram to mention the names of the two accused to the neighbours who came
to the scene immediately after the occurrence shows that his story cannot be true. As observed
by this Court in Jadunath Singh v. State of U.P. [(1970) 3 SCC 518 : 1971 SCC (Cri) 124] absence
of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names
of the two accused to the villagers only shows that the accused were not previously known to him
and the story that the accused referred to each other by their respective names during the course
of the incident contains an element of exaggeration. The case does not rest on the evidence of
Munshi Ram alone and the corroborative circumstances to which we have referred to above lend
enough assurance to the implication of the appellant.’ ”
57. Applying the aforesaid principles of law as discernable from the various decisions
referred to above, we may now proceed to look into the evidence on record so as to
consider whether the conviction of the appellant convict for the alleged offence is
sustainable or not.
EVALUATION OF EVIDENCE OF IDENTITY OF THE APPELLANT CONVICT
58. On 18.08.2008, an application was moved for conducting test-identification parade
of the co-accused persons, Vijay alias Kalia, Pawan Kumar, and Sharwan Kumar, to be
identified by PW 4, before the MM, Shri Prashant Kumar who adjourned it for 20.08.08
and marked the same to MM, Shri Rajesh Kumar Goel i.e., PW 16 herein.
22
59. On 20.08.2008, the PW 16 conducted the TIP in respect of co-accused Vijay and
Pawan Kumar, who were identified by PW 4.
60. On 30.08.2008, upon instructions of the IO, the PW 11 SI Kishan Lal, moved an
application before the MM, Shri Prashant Kumar for fixing the TIP of the appellant convict
along with co-accused Vijay, Pawan Kumar and Sharwan Kumar. The same was
adjourned to 01.09.2008 and marked to PW 16.
61. On 01.09.2008, the TIP of the appellant convict along with co-accused Vijay and
Pawan Kumar was fixed for 02.09.2008, whereas TIP of Sharwan Kumar was fixed for
03.09.2008.
62. On 02.09.2008 the MM/PW-16 conducted the TIP proceedings where co-accused
Vijay and Pawan Kumar were to be identified by PW 1 and the appellant convict was to
be identified by PW 4. In the said TIP, all the accused persons refused to participate.
63. On 03.09.2008, PW 16 conducted TIP of co-accused Sharwan Kumar, to be
identified by PW 1 and PW 4 resply wherein, the co-accused Sharwan Kumar refused to
participate.
CHART OF THE TIPs CONDUCTED
S. No. Date TIP Conducted for To be Particulars
Identified by
1. 20.08.08 (i) Vijay @ Kalia PW4 TIP conducted and PW4
(ii) Pawan Kumar identified the accused.
(Ex.PW4/B) & (Ex.PW4/C)
2. 02.09.08 (i) Vijay @ Kalia PW1 Both Refused TIP. (Ex.PW8/B –
(ii) Pawan Kumar Vijay @ Kalia) (Ex.PW8/C –
Pawan)
3. 02.09.08 (iii) Mukesh Singh (Appellant) PW4 Refused TIP (Ex.PW8/A –
Mukesh) (Appellant)
4. 03.09.08 (iv) Sharwan Kumar PW1 & PW4 Refused TIP (Ex.PW8/E–
Sharwan)
64. Remarkably, while the co-accused; Vijay and Pawan Kumar initially participated in
the TIP on 20.08.2008, but thereafter all the accused persons including the appellant
convict herein refused to participate in the TIP. In their further statements recorded under
Section 313 of the CrPC, all of them gave the explanation that they refused to participate
as they had already been shown to the witnesses in the police station. Moreover, it is the
specific case of the appellant convict herein, that he refused the TIP as he was to be
identified by PW4 who was a got up witness.
65. Later, on 15.09.2008, the PW 1 and PW 4 who had gone to meet the police officials
at the Rohini Court complex, identified all the accused persons, who were produced before
the Metropolitan Magistrate in connection with the present case.
66. The PW 1 Sushil Kumar in his examination in chief has stated thus:-
“I had identified the accused persons on 15.9.2008 in the Rohini Court Complex, when the
accused persons were produced in the same Court.”
67. The PW 11 SI Kishan Lal who at the relevant time was posted as Sub-Inspector in
the Adarsh Nagar Police Station in his examination in chief as stated thus:-
“On 15.9.2008 I alongwith SHO Ram Chander came to the court and there we met PWs Sushil
and Pradeep and they had identified all the four accused who were produced in the court for
23
taking the judicial custody. PWs pointed out towards the accused Pawan and Sharwan that they
had surrounded Sushil and Pappu and they pointed out towards accused Mukesh and Vijay and
told that Mukesh had taken out the money from the pocket of Sushil and Vijay had taken out
money from Pappu and they had attacked on them with ice picks on 16.8.2008. IO recorded their
statements.”
68. Thus, from the oral evidence of the PW 1 and the PW 11, it is evident that the PW
1 (injured eye witness) had the opportunity to see the accused persons when they were
present at the Rohini Court Complex. When the PW 11 says that the witnesses were able
to identify all the four accused at the time when they were produced in the court for taking
them into judicial custody, the same should be understood as conveying that as an
investigating officer, he took a chance to get the accused persons identified through the
witnesses. Indisputably, it was not a regular identification in accordance with law.
69. The appellant convict argues that the only substantive evidence against him is in
the form of his identification by the PW 1 before the Trial Court. He says that there is no
question of drawing any adverse inference against him for refusing to participate in the
TIP because from day one, he had been saying that the witnesses had seen the accused
persons. He further says that the PW 1 was in a position to identify him for the first time
before the Trial Court only because he had the opportunity to see him on 15.09.2008. In
such circumstances, it is argued on behalf of the appellant convict that there is no
evidence worth the name to hold him guilty for the alleged crime. On the other hand, the
State says that although the witnesses had a chance to see the accused persons on
15.09.2008 when they were present at the Rohini Court Complex, but that, by itself, is not
a sufficient or a good ground to discard the substantive evidence of identification before
the Trial Court. The State wants us to draw adverse inference against the appellant convict
as he had refused to participate in the TIP and at the same time also wants us to accept
the identification of the appellant by the PW 1 before the Trial Court. The State further
says that the PW 1 being an injured eye witness had an opportunity of having more than
a fair glimpse of the four accused persons including the appellant convict and, therefore,
irrespective of the fact that the PW 1 had an opportunity to see the appellant convict on
15.09.2008 at the Rohini Court Complex, the identification before the Trial Court should
be accepted.
70. The evidence of PW 1 Sushil Kumar regarding the occurrence that took place on
16.08.2008 early in the morning at 3.30 is fully supported by the medical evidence on
record. The PW 1 along with the deceased was immediately taken for medical attention.
The deceased was found to have suffered multiple injuries in the form of punctured
wounds caused by a sharp pointed weapon. The PW 1 was also found to have suffered
two injuries and one of those was in the form of a punctured wound in the chest caused
by a sharp pointed weapon. Considering the nature of injuries suffered by the PW 1 and
the deceased and the fact that the PW 1 and the deceased were cornered by the accused
persons and further that they were robbed of their money, the entire incident could
certainly have afforded sufficient time and opportunity to the PW 1 to recall and identify
the assailants including the appellant convict herein. It is a long settled law that if a witness
is trustworthy and reliable, the mere fact that no identification parade could be conducted
and the appellant convict was identified for the first time before the Trial Court, would not
be a reason to discard the evidence of the witness. As held by this Court in the case of
Munna (supra), that in a case where an accused himself refused to participate in the TIP,
it is not open to him to contend that the statement of the eye witnesses made for the first
time in Court, wherein they specifically point towards him as a person who had taken part
in the commission of the crime, should not be relied upon. Such a plea is available
24
provided the prosecution is itself responsible for not holding a TIP. However, in a case
where the accused himself declines to participate in a TIP, the prosecution has no option
but to proceed in a normal manner like all other cases and rely upon the testimony of the
witnesses, which is recorded in Court during the course of the trial of the case. It will be
too much for us to say that the PW 1 was able to identify the accused convict for the first
time before the Trial Court only because the PW 1 had an opportunity to have a look at
him on 15.09.2008 at the Rohini Court Complex. As observed above, the PW 1 could be
said to have had more than a fair glimpse of the assailants at the time of the incident and
on the strength of the same, the PW 1 identified the appellant convict as one of the
assailants.
71. We deem it appropriate to refer to the factors which are to be considered for in-
Court identification and were relied by the American Supreme Court in John R. MANSON,
Commissioner of Correction of Connecticut v. Nowell A. BRATHWAITE reported in
432 U.S. 98 (1977), where while referring to its earlier decision in William S. NEIL,
Warden v. Archie Nathaniel BIGGERS, reported in 409 U.S. 188 (1972), it held that
reliability is the linchpin in determining the admissibility of identification testimony and the
factors to be considered are: the opportunity of the witness to view the criminal at the time
of the crime; the witness’ degree of attention; the accuracy of his prior description of the
criminal; the level of certainty demonstrated at the confrontation, and the time between
the crime and the confrontation.
72. In the aforesaid context, we should also look at the line of reasoning assigned by
the High Court. In para 37 of the impugned judgment, the High Court took into
consideration the site plan Ex. PW-8/A. The site plan was looked into to ascertain whether
there was sufficient light at the place of the occurrence or not. In this regard, the High
Court held as under:-
“37. One of the contentions raised by counsel for the appellant Vijay was that there were no
sufficient lights at the place of incident and this is apparent from the fact that in the site plan
proved on record as Ex. PW8/A, existence of any such lights have not been shown. Contention
of learned counsel for the appellant was that in the absence of any light being there PW-1 could
not have seen any of the assailants, and later recognised them as being the actual perpetrators
of the crime. This contention raised by counsel for the appellant Vijay Kumar is devoid of any
merit as PW-1 in his testimony categorically stated that there was sufficient street light with yellow
colour lamps being lit around to see the faces of the assailants. PW-1 also deposed that the
accused persons had not covered their faces at the time of occurrence. In his cross-examination
he denied the suggestion that it was pitch dark at the spot of occurrence or that he could not have
seen any of the assailants. With such clear stand taken by PW1 that there was sufficient street
light to see the faces of the assailants, we find no merit in the said contention raised by counsel
for the appellant Vijay. Even otherwise in the scaled site plan proved on record as Exhibit PW-8/A
at point C, D and E the position of lights as were existing at the site have been duly shown.”
[Emphasis supplied]
73. In para 41 of the impugned judgment, the High Court has discussed about the
identity of the accused persons. Para 41 reads thus:-
“41. Learned counsel for the appellant laid much emphasis on the contention that the prosecution
has utterly failed to prove the involvement of these appellants in the commission of the said crime
through any cogent and clinching evidence. As per the counsel for appellant, PW-1 failed to give
description of these assailants to the police in his first statement and he could recognise the
assailants only at the time of his deposition in court after these assailants were shown to him by
the police. Counsel also justified the refusal of the appellants to participate in the Test
Identification Parade conducted on 02.09.08 because of they being already shown to PW-1 by

25
the police. This contention raised by counsel for the appellant lacks any merit. There can be no
dispute that one of the important task of the investigation is to apprehend the real and actual
culprit of the crime. The Investigation which is carried out by the Investigating Officer and his team
should be judicious, fair, independent, transparent, totally uninfluenced by any extraneous factors.
There should not be undue and undesirable delay in the investigation of any crime as any
slackness in the investigation can always prove fatal. The entire pursuit of any criminal trial is to
see that no innocent man is punished and no guilty man goes scot free. PW-1, in his very first
statement categorically stated that he can recognise all the four assailants if brought before him.
While giving his statement in court, he could easily identify all these four assailants who were
present in the court. He specifically pointed out to the two accused persons who had snatched
money from his pocket and the other two who were armed with ice pricks and started attacking
him and the deceased Pappu. In his cross-examination, he also stated that the person who
stabbed him was dark in complexion and had a cut mark on his face. It would be therefore seen
that right from the first statement, the stand of PW-1 had been that he can identify the assailants
and in fact he had identified them when they were also present at the time of his deposition in
court. The refusal of these assailants to participate in the test identification parade proceedings
thus goes against them. The trial court is correct in taking a view that the onus shifted on the
accused persons to prove on record that their photographs were shown to PW-1 prior to the
holding of the said test identification parade. PW-1 is quite candid in stating in his court deposition
that he had seen these assailants on 15th September 2008 when they were produced in a court
at Rohini Courts Complex. In this background, it is difficult to accept the argument of counsel for
the appellant that the prosecution had failed to establish the identity of these assailants who
committed the said crime.”
[Emphasis supplied]
74. In para 42, the High Court elaborated further the issue of identification. Para 42
reads thus:-
“42. Learned counsel for the appellant – Mukesh was quite emphatic in his contention that PW-1
in his cross examination admitted the fact that he had clearly seen the face of one assailant, who
stabbed him and this deposition of PW-1 clearly meant that he was stabbed by the assailant to
whom he described as person with dark complexion having a cut mark on his face and therefore,
Mukesh had no role in the commission of the said crime. The court has to take an overall view of
the entire testimony of a witness, which includes his examination in chief as well as his cross
examination. PW-1 while giving his evidence in examination in chief, had clearly identified all the
four accused persons being the assailants who were involved in the said incident and in cross
examination he merely said that he had clearly seen the face of only one assailant who stabbed
him. The said statement of PW-1 in his cross examination can lead to only one inference that so
far as the face of one assailant was concerned, he could see him with more clarity, but that would
not mean that he did not see the faces of the other assailants or he was not in a position to identify
the other assailants, may be with the help of their other descriptions including their height, gait
and manner of walking, etc. We also cannot subscribe to the said contention raised by counsel
for these appellants as we find no reason for PW-1 to implicate these persons to save the actual
culprits of the said crime. We thus find no force in the above contention raised by counsel for the
appellant.”
[Emphasis supplied]
75. Although the appellant convict in his further statement recorded under Section 313
CrPC stated that he had refused to participate in the TIP as the eye witnesses had already
seen him, yet except a bald assertion, no other foundation has been laid for offering such
an explanation. It is true that the explanation that the accused may offer when the Court
confronts him with the incriminating materials in his further statement has to be tested on
preponderance of probability and not on proof beyond reasonable doubt. However, even

26
while testing the answer on preponderance of probability some foundation has to be laid
for such explanation to be accepted. A mere bald assertion is not sufficient.
76. The matter does not rest over here. There is something more against the appellant
convict. It appears that the appellant was arrested on 20.08.2008. At the time of his arrest,
he is said to have made a disclosure statement recorded in Ex. PW10/A. The statement
was one relating to the weapon of offence i.e. ice pick which was ultimately discovered
from his house. The proceedings recorded in regard to the actual discovery of the ice pick
is in the form of Ex. PW10/V. The statement is said to have been made by the appellant
convict before the PW 10 SI Arvind Pratap Singh which led to the discovery of the fact i.e.
the discovery of the ice pick. The PW 10 in his examination in chief has deposed as under:-
“On 20-8-2008 in the evening I along with Inspt. Ram Chander and Ct. Baljit proceeded for
investigation and when we reached at Out Gate, Azadpur Mandi then informer met us there and
he told that the fourth accused wanted in this case is present behind the onion shed near Mall
Godown, if raided he can be apprehended. On this information IO asked 4-5 public persons to
join the investigation but none agreed and went away without telling their names and addresses.
Thereafter, we along with secret informer reached behind the inion shed near Railway Track, Mall
Godown and from there at the pointing out the secret informer we apprehended accused Mukesh
Singh, whose name came to know after inquiry and who is present in the court today. He was
interrogated and arrested vide memo Ex. PW10/R and his personal search was conducted vide
Ex. PW10/S both bearing my signatures at point A and he made disclosure statement Ex. PW10/T
bearing my signatures at point A. The accused was kept in muffled face. Thereafter accused took
us at the spot i.e. D block corner Azadpur Mandi, Opposite STD PCO Shop and pointed out the
place of occurrence vide pointing out memo Ex. PW10/U bearing my signatures at point A.
Thereafter accused took us at his house i.e. H.No. 101, Ravi Dass Colony, Sarai Peepal Thala &
he took us in a room at the ground floor and taken out Rs. 7,000/- from an iron box and one ice
pick (SUA) and handed over to Inspt. Ram Chander and told that this sum of Rs. 7,000/- is
remaining amount out of looted amount of Rs. 14,800/-. He also informed that the ice pick was
the same with which he had inflicted injury to the victim. Rs. 7,000/- consists of seven currency
notes of Rs.1000 denomination. The same were put into an envelope and sealed with the seal of
RCS and seized vide memo Ex. PW10/V bearing my signatures at point A. IO prepared the sketch
of the ‘Sua’ and measured the same. It was found to be having length of 22.5 cm, the length of
the prick was 12 cm and the length of the handle was 10.5 cm. The sketch is Ex. PW10/W bearing
my signatures at point A. The same was put into pullanda and sealed with the seal of RCS and
seized vide memo Ex.PW10/X bearing my signatures at point A. Seal after use was handed over
to Ct. Baljit and after completing the investigation accused was brought to PS and accused were
sent to lockup and case property was deposited in the malkhana.”
[Emphasis supplied]
77. Thus the aforesaid is one additional circumstance pointing towards the guilt of the
appellant and at the same time lending credence to the substantive evidence of his
identification by PW 1 before the Trial Court.
78. Even if we have to discard the evidence of discovery on the ground that no
independent witnesses were present at the time of discovery, still the fact that the
appellant herein led the police party to his house and handed over the ice pick used at the
time of the assault, would be reflective of his conduct. By virtue of Section 8 of the
Evidence Act, the conduct of an accused is relevant, if such conduct influences or
influenced by any fact in issue or relevant fact. The evidence of the circumstance,
simpliciter, that the accused pointed out to the police officer, the place where he had
concealed the weapon of offence i.e. ice pick, would be admissible as conduct under
Section 8 irrespective of the fact whether the statement made by the appellant convict
contemporaneously with or antecedent to such conduct falls within the purview of Section
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27 of the Evidence Act or not. Even if we hold that the discovery statement made by the
appellant convict referred to above is not admissible under Section 27 of the Evidence
Act, still it is relevant under Section 8 of the Evidence Act.
79. In the overall view of the matter, we have reached to the conclusion that it is difficult
for us to say that the prosecution has not been able to establish its case against the
appellant convict beyond a reasonable doubt. We are convinced with the line of reasoning
adopted by the Trial Court as well as by the High Court in holding the appellant convict
guilty of the alleged crime.
80. In the result, this appeal fails and is hereby dismissed.
81. In the course of the hearing of this appeal, it was brought to the notice of this Court
that the appellant hails from a very poor family and is undergoing sentence past more than
sixteen years. In other words, he has been in jail for the past sixteen years. We grant
liberty to the appellant herein to file a representation addressed to the competent authority
of the State (NCT of Delhi) for premature release. If any such representation is preferred
by the appellant herein, then the competent authority shall at the earliest process the same
and take an appropriate decision in accordance with law, more particularly in accordance
with the policy prevailing at the time of commission of the offence as regards remission
within a period of two months from the date of receipt of such representation and further
communicate the same to the appellant in writing without fail.

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