Supreme Court of India
MUKESH SINGHversusTHE STATE (NCT OF DELHI)
- Citation
- 2023 INSC 765
- Decided
- 24 August 2023
- Disposal
- Dismissed
- Bench
- M M SUNDRESH
Holding
Section 54A CrPC imposes a duty on the accused to stand for a test identification parade, attendance does not contravene Article 20(3), and the trial court’s conviction based on eyewitness identification and corroborative circumstantial evidence is upheld.
Summary
The appellant Mukesh Singh was convicted of murder, robbery and related offences based primarily on the identification of the injured eyewitness Sushil Kumar, who identified him in court after the accused had refused to attend a test identification parade (TIP). The accused argued that his refusal to participate in the TIP, on the ground that he had already been shown to the witnesses, violated Article 20(3) and that the identification should be excluded. The Supreme Court held that attendance at a TIP does not constitute a positive volitional evidentiary act and therefore does not breach Article 20(3); Section 54A obliges the accused to stand for identification. The Court also ruled that refusal to attend a TIP does not preclude reliance on the eyewitness testimony, and the discovery of the weapon and money from the accused’s house is admissible as conduct under Section 8 of the Evidence Act. Consequently, the conviction and life sentence were upheld and the appeal dismissed.
Issues considered
- Whether the High Court erred in upholding the conviction and sentence of the trial court.
- Whether an accused may refuse to attend a test identification parade on the ground that he was already shown to witnesses.
- Whether attendance at a TIP violates the accused’s right against self‑incrimination under Article 20(3) of the Constitution.
- To what extent an adverse inference may be drawn against an accused for refusing to participate in a TIP.
- Whether the evidence of identification in court, without a prior TIP, is admissible and can be relied upon.
- What is the true scope and effect of Section 54A of the Criminal Procedure Code.
Legislation cited
- Code of Criminal Procedure, 1973s. 162, s. 27, s. 313, s. 54A, s. 8
- Indian Evidence Act, 1872s. 8, s. 9
- Indian Penal Code, 1860s. 302, s. 307, s. 34, s. 392, s. 394, s. 397, s. 411
Subjects
test identification paradeSection 54A CrPCArticle 20(3) right against self‑incriminationadverse inferenceeyewitness identificationcircumstantial evidenceweapon discoverylife imprisonment
Judgment
[2023] 11 S.C.R. 886 : 2023 INSC 765
CASE DETAILS
MUKESH SINGH
v.
THE STATE (NCT OF DELHI)
(Criminal Appeal No. 1554 of 2015)
AUGUST 24, 2023
[M. M. SUNDRESH AND J. B. PARDIWALA, JJ.]
HEADNOTES
Issues for 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?;
886
MUKESH SINGH v. THE STATE (NCT OF DELHI) 887
(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?
Test Identification Parade – 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:
Held: The accused while subjecting himself to the TIP 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 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 value of the same in the course of the trial –
However, the accused cannot decline or refuse to join the TIP. [Para 35]
Test Identification Parade – Whether TIP violates the fundamental
right of an accused under Article 20(3) of the Constitution.
Held: 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 – 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. [Paras 26 and 35]
888 SUPREME COURT REPORTS [2023] 11 S.C.R.
Test Identification Parade – The test identification parade provides
corroboration to the identification of the witness in court:
Held: 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. [Para 48]
Test Identification Parade – Where an accused himself refused to
participate in the TIP:
Held: 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. [Para 70]
Code of Criminal Procedure, 1973 – s.54A – Test Identification
Parade – Obligation u/s. 54A CrPC:
Held: The introduction of Section 54A in the CrPC, 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. [Para 35]
MUKESH SINGH v. THE STATE (NCT OF DELHI) 889
Test Identification Parade – Importance and Evidentiary value
of TIP:
Held: 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. [Para 37]
Test Identification Parade – Object of:
Held: 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 – 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. [Paras 40 and 41]
Penal Code, 1860 – Trial Court convicted appellant-convict u/
ss. 302, 392, 394, 397 and sentenced him imprisonment for life – High
Court affirmed the conviction and sentence – Propriety:
Held: Appellant-convict stated 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 to hold him guilty
for the alleged crime – However, the State stated that is not a sufficient or
a good ground to discard the substantive evidence of identification before
the Trial Court – Although the appellant convict in his further statement
recorded u/s. 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 was laid for offering such an explanation – 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
890 SUPREME COURT REPORTS [2023] 11 S.C.R.
identified for the first time before the Trial Court, would not be a reason to
discard the evidence of the witness – Further, 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 – In the instant case, the PW-1 in his first statement had categorically
stated that he can identify assailants, if brought before him and while giving
statements he had identified all four assailants in the Court and their roles in
the crime – Besides that, when the appellant was arrested, he is said to have
made a disclosure statement – The statement was one relating to the weapon
of offence i.e. ice pick which was ultimately discovered from his house – 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 u/s. 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 s.27 of the
Evidence Act or not – There was no infirmity in 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. [Paras 69, 70, 76 and 78]
LIST OF CITATIONS AND OTHER REFERENCES
Rajesh v. State of Haryana (2021) 1 SCC 118; Munshi Singh Gautam
(D) & Ors. v. State of M.P. (2005) 9 SCC 631 : [2004] 5 Suppl. SCR 1092;
Ramanbhai Naranbhai Patel v. State of Gujarat (2000) 1 SCC 358 : [1999]
5 Suppl. SCR 41; Malkhansingh v. State of M.P. (2003) 5 SCC 746 : [2003]
1 Suppl. SCR 443; Munna v. State (NCT of Delhi) (2003) 10 SCC 599 :
[2003] 2 Suppl. SCR 1048 – relied on.
M.P. Sharma v. Satish Chandra AIR 1954 SC 300 : [1954] SCR 1077;
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569;
State of Uttar Pradesh v. Rajju AIR 1971 SC 708; Shri Ram v. State of U.P.
(1975) 3 SCC 495 : [1975] 2 SCR 622; Prem Singh v. State of Haryana
(2011) 9 SCC 689 : [2011] 13 SCR 949; Prem Singh v. State of Haryana
(2013) 14 SCC 88 : [2013] 10 SCR 51; Kanan & Ors. v. State of Kerala
AIR 1979 SC 1127; Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103 – referred to.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 891
Peare Lal Show v. The State AIR 1961 Cal 531; Ravindra Laxman
Mahadik v. State of Maharashtra 1997 CriLJ 3833 – referred to.
Rex v. Christie, (1914) A. C. 545 (551); John R. Manson, Commissioner
of Correction of Connecticut v. Nowell A. Brathwaite 432 u.s. 98 (1977);
William S. NEIL, Warden v. Archie Nathaniel Biggers 409 u.s. 188 (1972)
– referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1554 of 2015.
From the Judgment and Order dated 28.02.2014 of the High Court of
Delhi at New Delhi in CRLA No. 1246 of 2011.
Appearances:
Jayesh Gaurav, Ms. Nandini Rai, Ms. Diksha Ojha, Farrukh Rasheed,
Advs. for the Appellant.
K. M. Nataraj, ASG, Alabhaya Dhamija, Sharath Nambiar, Shailesh
Madiyal, Dr. N. Visakamurthy, Shreekant Neelappa Terdal, Advs. for the
Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
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’).
892 SUPREME COURT REPORTS [2023] 11 S.C.R.
CASE OF THE PROSECUTION
2. The appellant convict along with three other co-accused 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
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.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 893
[J. B. PARDIWALA, J.]
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
894 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 witness Details of deposition
PUBLIC WITNESSES/EYE WITNESSES
1. Sushil Kumar He is the eye witness to the incident and had also
(PW1) received injuries during the incident. He has deposed
on the following aspects:
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.
3. 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.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 895
[J. B. PARDIWALA, J.]
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 Kumar He is the brother of deceased Pappu and also the
(PW4) alleged eye witness to the incident. He has deposed on
the following lines:
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.
2. 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
896 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 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.
8. 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.
11.That in the incident accused Sharvan had blocked the
way of his brother and Sushil and Mukesh had attacked
them with ice prick.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 897
[J. B. PARDIWALA, J.]
MEDICAL EVIDENCE/WITNESSES
3. Dr. Gopal (PW3) This witness has proved that on 16.08.2008 one patient
Sushil S/o 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. Singh This witness has proved having conducted the
(PW12) postmortem examination on the dead body of deceased
Pappu on 16.8.2008 which report is 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.
5. Dr. Rohit Kumar This witness has proved the death certificate of Pappu
(PW15) issued by BJRM hospital which is Ex.PW15/A and Death
Summary which is Ex.PW15/B
POLICE/OFFICIAL WITNESSES (Proving Investigations)
6. HC Raghubir Singh He is a formal witness being the Duty Officer who has
(PW2) proved having received the rukka on the intervening
night of 15/16.08.2008 at around 6 AM which was
brought by ASI Surender and sent by SI Arvind Pratap
Singh, on the basis of which rukka he got an FIR
898 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 Mahender He is also a formal witness being the photographer who
(PW5) has proved having taken seven photographs of the place
of incident on the direction 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 Singh This witness is the Crime Team Incharge who has proved
(PW6) having inspected the spot of incident on 16.08.2008 and
having prepared his report which is Ex.PW16/A which
he handed over to the Investigating Officer.
9. HC Prahlad Singh He is the formal witness being the MHCM who has
(PW7) proved having received the various case properties
from the Investigating Officer and 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 Lal He is the Draftsman who has proved having prepared
(PW8) the scaled site plan of the spot of incident which site
plan is Ex.PW8/A.
11. Ct. Rakesh (PW9) He is a formal witness who has proved that on
27.10.2008 he took six 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 Pratap Singh He is the initial investigating officer who has proved the
(PW10) following documents:
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.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 899
[J. B. PARDIWALA, J.]
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
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 Lal This witness has proved having got conducted the Test
(PW11) Identification 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.
900 SUPREME COURT REPORTS [2023] 11 S.C.R.
14. Inspector R.C. He is the subsequent investigating officer who has
Sangwan (PW13) proved the various investigation proceedings conducted
by him. Apart from the document proved by SI Arvind
Pratap he has proved the following documents:
Ex.PW13/A-1 Photographs of the spot
to A-7
Ex.PW13/B Site plan
Ex.PW13/C Brief Facts
Ex.PW13/D Form 25.35
Ex.PW13/E & Dead body identification statement
Ex.PW13/F 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 Kanwarpal He was the PCR van Incharge and has deposed that:
(PW14) 1. In the intervening night of 15/16.8.2008 at about 3:50
am they 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 D-Block 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. S h . Raj esh Ku m a r This witness has proved having conducted the Test, Ld.
Goel, ACMM Identification Parade proceedings of accused
Ld. ACMM persons namely Sharwan 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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 901
[J. B. PARDIWALA, J.]
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 Env el op e s containing t he Te s t
& Identification Parade proceedings
Ex.PW16/D
Ex.PW16/E Application moved by the investigating
& PW16/F officer for conducting Test Identification
Parade
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
902 SUPREME COURT REPORTS [2023] 11 S.C.R.
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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 903
[J. B. PARDIWALA, J.]
incident. However, both the Trial Court and 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
904 SUPREME COURT REPORTS [2023] 11 S.C.R.
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.
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?
MUKESH SINGH v. THE STATE (NCT OF DELHI) 905
[J. B. PARDIWALA, J.]
(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
906 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 907
[J. B. PARDIWALA, J.]
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]
908 SUPREME COURT REPORTS [2023] 11 S.C.R.
28. Bhattacharya, J. by his separate but concurring judgment observed
thus:-
“10. InM.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 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,
MUKESH SINGH v. THE STATE (NCT OF DELHI) 909
[J. B. PARDIWALA, J.]
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
910 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 self-incrimination 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 self-incrimination.
19. Negativing the contention that taking of finger prints is a violation
of the privilege against self-incrimination, 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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 911
[J. B. PARDIWALA, J.]
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-in-charge 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”:-
912 SUPREME COURT REPORTS [2023] 11 S.C.R.
“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 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.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 913
[J. B. PARDIWALA, J.]
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 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.
914 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 ‘identifi cation’ 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.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 915
[J. B. PARDIWALA, J.]
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 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.
916 SUPREME COURT REPORTS [2023] 11 S.C.R.
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,
MUKESH SINGH v. THE STATE (NCT OF DELHI) 917
[J. B. PARDIWALA, J.]
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:-
“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
918 SUPREME COURT REPORTS [2023] 11 S.C.R.
the statement made in court. The evidence of mere identifi cation
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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 919
[J. B. PARDIWALA, J.]
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 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
920 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 identifi cation
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 identifi cation 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 identifi cation parade would not make inadmissible
the evidence of identification in court. The weight to be attached
to such identifi cation should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of identifi cation 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.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 921
[J. B. PARDIWALA, J.]
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.”
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.
922 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 examination-in-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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 923
[J. B. PARDIWALA, J.]
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 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
924 SUPREME COURT REPORTS [2023] 11 S.C.R.
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
identifi cation 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 identifi cation 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 identifi cation parade should be conducted as soon
MUKESH SINGH v. THE STATE (NCT OF DELHI) 925
[J. B. PARDIWALA, J.]
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 identifi cation 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.
926 SUPREME COURT REPORTS [2023] 11 S.C.R.
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] )
× × × ×
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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 927
[J. B. PARDIWALA, J.]
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.
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.
928 SUPREME COURT REPORTS [2023] 11 S.C.R.
CHART OF THE TIPs CONDUCTED
S. Date TIP To be Particulars
No. Conducted for Identified
by
1. 20.08.08 (i) Vijay @ Kalia PW4 TIP conducted and PW4 identified
(ii) Pawan Kumar the accused. (Ex.PW4/B) & (Ex.
PW4/C)
2. 02.09.08 (i) Vijay @ Kalia PW1 Both Refused TIP.
(ii) Pawan Kumar (Ex.PW8/B – Vijay @ Kalia)
(Ex.PW8/C – Pawan)
3. 02.09.08 (iii) Mukesh Singh PW4 Refused TIP
(Appellant) (Ex.PW8/A – Mukesh)
(Appellant)
4. 03.09.08 (iv) Sharwan Kumar PW1 & Refused TIP
PW4 (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:-
MUKESH SINGH v. THE STATE (NCT OF DELHI) 929
[J. B. PARDIWALA, J.]
“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 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
930 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 identifi cation 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 specifi cally 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. It will be
too much for us to say that the PW 1 was able to identify the accused
convict for the fi rst 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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 931
[J. B. PARDIWALA, J.]
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 PW-1 that there was
932 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 933
[J. B. PARDIWALA, J.]
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
934 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 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
MUKESH SINGH v. THE STATE (NCT OF DELHI) 935
[J. B. PARDIWALA, J.]
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
936 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 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.
Headnotes prepared by: Appeal dismissed.
Ankit Gyan
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