Supreme Court of India

MUNSHI SINGH GAUTAM (D) AND ORS.versusSTATE OF M.P.

Citation: 2004 INSC 648
Decided: 16 November 2004
Disposal: Disposed off
Bench: ARIJIT PASAYAT

Holding

Lack of a test identification parade does not per se invalidate eyewitness evidence, and where medical evidence shows only simple injuries with death accelerated by alcohol, conviction under Section 304 Part II is appropriate, limiting liability to the accused whose participation is proved.

Summary

The case concerned the custodial death of Shambhu Tyagi after alleged police beating at Shahjahanabad police station, leading to the conviction of five police officers under Sections 304 Part I, 330 and 201 IPC. On appeal, the Supreme Court examined whether the lack of a test identification parade invalidated the eyewitness testimony of PW‑12 and PW‑14, and whether the medical evidence showing simple injuries and the effect of alcohol warranted a conviction under Section 304 Part II instead of Part I. The Court held that the absence of a test identification parade is not fatal where the witness’s testimony can be otherwise corroborated, and that the medical findings justified a conviction for culpable homicide not amounting to murder (304 Part II). Consequently, only the accused Guiab Singh Chaudhary was found guilty and his conviction upheld, while the remaining appellants were acquitted due to insufficient evidence. The appeal was disposed of, with bail bonds discharged for the acquitted appellants.

Issues considered

The absence of a test identification parade and its impact on the admissibility and weight of eyewitness testimony
Whether the evidence of PW‑12 and PW‑14 is sufficient to sustain convictions under Section 304 IPC
Whether the nature of injuries and medical findings require conviction under Section 304 Part II rather than Part I
Whether the prosecution has met the burden of proof beyond reasonable doubt in a custodial death case

Legislation cited

Code of Criminal Procedure, 1973s. 162, s. 313
Indian Evidence Act, 1872s. 9
Indian Penal Code, 1860s. 201, s. 304(Part I), s. 304(Part II), s. 330, s. 331

Subjects

custodial deathpolice tortureidentification paradeSection 304 IPCmedical evidenceevidentiary standardsconstitutional rightsArticle 21Section 330 IPC

Judgment

A MUNSHI SINGH GAUTAM (D) AND ORS.
v.
STATE OF M.P.

NOVEMBER 16, 2004

B [ARIJIT PASA YAT AND C.K. THAKKER, JJ.]

Penal Code, 1860--Section 304 Parts I and /I-Custodial death-Charge ..
againstfTVe police officials-Witnesses proving taking ofthe deceased to Police
C Station and his being beaten-Manipulation by the accused in order to remove
traces of crime-contradictions in the statement of witnesses and non-
corroboration of same by medical evidence-One of the lungs of deceased
T.B. affected-Combined effect of alcohol consumed by deceased and injuries
resulting in quicker death-Injuries simple in nature-313 Cr.P.C. statement
of.one of the accused supported by evidence of one witness belies defence
D version-Conviction by Courts below u!s 304 Part /-On appeal, held:
Accusations proved only in respect of one of the accused while not established
in respect of others-In view ofthe medical report conviction altered to Section
304 Part II-Custodial violence.

Criminal Trial-Test Identijication Parade-Nature, Object and effect
E ofon failure ofconducting-Held: The object is to test memory of the witness-
/I does not constitute substantive evidence-Holding of the test cannot be
claimed by accused as a matter of right-Failure to hold it would not make
the evidence ofidentification in Court inadmissible-However attaching weight
to it is a matter for the Courts offact-Code of Criminal Procedure, 1973-
F Section 162.

In connection with a theft, two persons including PW-12 were
brought to Police Station. On disclosure of name of artother person, he
was also brought to Police Station after midnight. In order to extort a
confession from him he was allegedly beaten, as a result of which he died.
G It was also alleg~d that the police officials, in order to remove the traces
of the crime, threw the dead body in a nala, and they forged the
Rajnomcha report by recording that they received an information that
some person was lying in the Nala bed and was intoxicated badly. After
pressure from public, the matter was investigated and charge-sheet was

H 1092
MUNSHI SINGH GAUTAM v. STATE OF M.P. 1093
filed against them. The accused denied the allegations. PW-14 was A
produced to prove that he had seen the accused persons taking the
deceased, but he stated in cross - examination that he did not know the
physical description of the accused as he had not seen them on the date of
occurrence. Evidence of PW-12 was full of unexplained contradictions,
he had not stated the names of the accused when he was examined by the B
police. The medical evidence ruled out the time of beating as claimed to
have been witnessed by PW-12. The injuries were confined to skin and
upper level of the body. The right lung was T.B. affected and the combined
effect of alchohol and the injuries resulted in quicker death. PW-11, a
doctor stated that the body of the deceased was brought to him by a police
constable and the accused 'G', who had told him that the deceased had C
come to the Police Station in a very bad state and with much difficulty he
had told his name and fell unconscious.

Trial Court convicted each of the accused for offences punishable
under Section 304 Part I, Sections 330 and 201 IPC and the conviction
was confirmed by High Court. During pendency of appeal before High D
Court, appeal against one of the accused was held abated due to his death.

In appeal to this Court, appellant accused contended that prosecution
case is not supported by the evidence of PWs 12 and 14; that their evidence
was belied by medical evidence; that their evidence could not have been
relied on in absence of test identification parade. E
Disposing of the appeal, the Court

HELD: 1.1. 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 F
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. 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 G
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
Cr.P.C. 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
H
1094 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A 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 allegation. If,
however, circumstances are beyond control and there is some delay, it
B cannot be said to be fatal to the prosecution. [1103-B-E]

1.2. The substantive evidence is the evidence of identification in
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
C 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
D 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. (1103-F-H]

1.3. Much evidentiary value cannot be attached to the identification
E of the accused in Court where identifying witness is a total stranger who
had just a fleeting glimpse of the person identified or who had no
particular reason to remember the person concerned, if the identification
is made for the first time in Court. [1105-H; 1106-A]

F Matru v. State of UP., [1971) 2 SCC 75; Jadunath Singh and Anr. v.
The State of Uttar Pradesh, (1970) 3 SCC 518; Ha;bhajan Singh v. State of
Jammu and Kashmir, (19751 4 SCC 480; Ram Nath Mahto v. State of Bihar,
[1996) 8 SCC 630; Suresh Chandra Bahri v. State of Bihar, (1996] 8 SCC '
630; State of Uttar Pradesh v. Boota Singh and Ors., [19791 1 SCC 31;
Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, (200011SCC358
G and Malkhansingh and Ors. v. State of MP., {2003) 5 SCC 746, relied on.

Santokh Singh v. lzhar Hussain, [1973) 2 SCC 406; Kanta Prashad v.
Delhi Administration, AIR (1958) SC 350; Vaikuntam Chandrappa and Ors
v. State of Andhra Pradesh, AIR (1960) SC 1340; Budhsen and Anr v. State
of UP., AIR (1970) SC 1321 and Rameshwar Singh v. State of Jammu and
H Kashmir AIR (1972) SC 102, referred to.
MUNSHI SINGH GAUTAM v. STATE OF M.P. 1095

2.1. Test identification parade would be of no consequence in view A
of evidence of PW-14 that he did not know physical description of the
accused-appellants as he had not seen them on the date of occurrence.
Evidence of PW-12 is full· of unexplained contradictions. Therefore, the
evidence of PW-12 and PW-14 are not sufficient to fasten guilt on the
accused persons. But one significant aspect can not be lost sight of. That B
is the role of one of the accused. His definite plea was that the deceased
was lying injured near the Nala and information to that effect was receive~
at the Police Station. But his statement before PW-11 was entirely
different. [1108-B, G, HI

Sahadevan alias Sagadevan v. State rep. By Inspector ofPolice, Chennai C
AIR (2003) SC 215, referred to.

2.2. In view of the statement of the accused made under Section 313
Cr.P.C. and the defence plea being at variance and the case being one of
custodial torture, accusations have been established so far as accused-
appellant 'G' is concerned. (1109-A] D
2.3. As per evidence of PW-16 the injuries were confined to the skin
and upper level of the body. Grievous injuries were not found on vital
parts of the body like head, liver, spleen, heart, lungs etc. The duration of
the injuries were widely variant. The right lung of the deceased was TB
affected. The combined effect of alcohol and the injuries shortened the E
period of death and resulted in a quicker death. That being so, G's
conviction in terms of Section 304 Part II IPC cannot be faulted with.
i1109-B-C]

2.4. So far as other accused-appellants are concerned, the prosecution
has not been able to bring home the accusations against them. 11109-DJ F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
919 of 1999.

From the Judgment and Order dated 21.7.99 of the Madhya Pradesh
High Court in Crl.A. No. 478 of 1993. G
Uday U. Lalit, Y.P. Singh, Chatanya Siddharth, Mu,kesh K. Sharma,
Mrs. Prakriti Pumima, D.K. Gupta and Debasis Misra with him for the
Appellant.

R.P. Gupta, Sekher Kumar and Ms. Kamakshi S. Mehlwal with him for H
1096 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A the Respondents.
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. "If you once forfeit the confidence of our
fellow citizens you can never regain their respect and esteem. It is true that
B you can fool all the people some of the time, and some of the people all the
time, but you cannot fool all the people all the time", said Abraham Lincoln.
This Court in RaghubirSingh v. State of Haryana, AIR ( 1980) SC 1087 and
Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr.,
[2003] 7 sec 749, took note of these immortal observations while deprecating
C custodial torture by the police.

Custodial violence, torture and abuse of police power are not peculiar
to this country, but it is widespread. It has been the concern of international
community because the problem is universal and the challenge is almost
global. The Universal Declaration of Human Rights in 1948 which marked
D the emergence of a worldwide trend of protection and guar.mtee of certain
basic human rights stipulates in Article 5 that "No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment". Despite
this pious declaration, the crime continues unabated, though every civilized
nation shows its concern and makes efforts for its eradication.

E If it is assuming alarming proportions, now a days, all around it is
merely on account of the devilish devices adopted by those at the helm of
affairs who proclaim from roof tops to be the defenders of democracy and
protectors of peoples' rights and yet do not hesitate to condescend behind the
screen to let loose their men in uniform to settle personal scores, feigning
ignorance of what happens and pretending to be peace loving puritans and
F saviours of citizens' rights.

Article 21 which is one of the luminary provisions in the Constitution
of India, 1950 (in short the 'Constitution') and is a part of the scheme for
fundamental rights occupies a place of pride in the Constitution. The Article
G mandates that no person shall he deprived -of his life and personal liberty
except according to the procedure established by law. This sacred and cherished
right i.e. personal liberty has an important role to play in the life of every
citizen. Life or personal liberty includes a right to live with human dignity.
There is an inbuilt guarantee against torture or assault by the State or its
functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short
H the 'Code') deals with the powers of arrest of persons and the safeguards
MUNSHI SINGH GAUTAM v. STATE OF M.P. [PASAYAT,J.] 1097

required to be followed by the police to protect the interest of the arrested A
person. Articles 20(3) and 22 of the Constitution further manifest the
constitutional protection extended to every citizen and the guarantees held
out for making life meaningful and not a mere animal existence. It is, therefore,
difficult to comprehend how torture and custodial violence can be permitted
to defy the rights flowing from the Constitution. The dehumanizing torture, B
assault and death in custody which have assumed alarming proportions raise
serious questions about the credibility of rule of law and administration of
criminal justice system. The community rightly gets disturbed. The cry for
justice becomes louder and warrants immediate remedial measures. This Court
has in a large number of cases expressed concern at the atrocities perpetuated
by the protectors of law. Justice Brandies's observation which have become C
classic are in following immortal words:

"Government as the omnipotent and omnipresent teacher teaches
the whole people by its example, if the Government becomes a law
breaker, it breeds contempt for law, it invites every man to become
a law into himself'. (in (1928) 277 U.S. 438, quoted in (1961) 367 D
U.S. 643 at 659).

The diabolic recurrence of police torture resulting in a terrible scare in
the minds of common citizens that their lives and liberty are under a new and
unwarranted peril because guardians of law destroy the human rights by
custodial violence and torture and invariably resulting in death. The E
vulnerability of human rights assumes a traumatic torture when functionaries
of the State whose paramount duty is to protect the citizens and ,,ot to
commit gruesome offences against them, in reality perpetrate them. The
concern which was shown in Raghubir Singh 's case (supra) more than two
decades back seems to have fallen to leaf ears and the situation does not seem F
to be showing any noticeable change. The anguish expressed in Gauri Shanker
Sharma v. State of U.P., AIR (1990) SC 709, Bhagwan Singh and Anr. v.
State of Punjab, [ 1992] 3 SCC 249, Smt. Nilabati Behera @ Lalita Behera
v. State of Orissa and Ors., AIR (1993) SC 1960, Pratul Kumar Sinha v.
State of Bihar and Anr. [1994] Supp. 3 SCC 100, Kewal Pati (Smt.) v. State
of U.P. and Ors., [ 1995] 3 SCC 600, Inder Singh v. State of Punjab and Ors., G
[1995] (3) SCC 702), State of M.P. v. Shyamsunder Trivedi and Ors., [1995]
4 SCC 262 and by now celebrated decision in Shri D.K. Basu v. State of West
Bengal, JT ( 1997) 1 SC 1 seems to have caused not even any softening
"' attitude to the inhuman approach in dealing with persons in custody.

H
1098 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A Rarely in cases of police torture or custodial death, direct ocular evidence
of the complicity of the police personnel alone who can only explain the
circumstances in which a person in their custody had died. Bound as they are
by the ties of brotherhood, it is not unknown that the police personnel prefer
to remain silent and more often than not even pervert the truth to save their
B colleagues and the present case is an apt illustration as to how one after the
other police witnesses feigned ignorance about the whole matter.

The exaggerated adherence to and insistence upon the establishment of
proof beyond every reasonable doubt by the prosecution, at times even when
the prosecuting agencies are themselves fixed in the dock, ignoring the ground
C realities, the fact-situation and the peculiar circumstances of a given case, as
in the present case, often results in miscarriage of justice and makes the
justice delivery system suspect and vulnerable. In the ultimate analysis the
society suffers and a criminal gets encouraged. Tortures in police custody,
which of late are on the increase, receive encouragement by this type of an
unrealistic approach at times of the courts as well because it reinforces the
D belief in the mind of the police that no harm would come to them if one
prisoner dies in the lock-up because there would hardly be any evidence
available to the prosecution to directly implicate them with the torture. The
courts must not lose sight of the fact that death in police custody is perhaps
one of the worst kind of crimes in a civilized society, governed by the rule
E of law and poses a serious threat to an orderly civilized society. Torture in
custody flouts the basic rights of the citizens recognized by the Indian
Constitution and is an affront to human dignity. Police excesses and the mal-
treatment of detainees/under-trial prisoners or suspects tarnishes the image of
any civilised nation and encourages the men in 'Khaki' to consider themselves
to be above the law and sometimes even to become law unto themselves.
F Unless stern measures are taken to check the malady of the very fence eating
the crops, the foundations of the criminal justice delivery system would be
shaken and the civilization itself would risk the consequence of heading,
towards total decay resulting in anarchy and authoritarianism reminiscent of
barbarism. The courts must, therefore, deal with such cases in a realistic
manner and with the sensitivity which they deserve, otherwise the common
G man may tend to gradually lose faith in the efficacy of the system of judiciary
itself, which if it happens will be a sad day, for any one to reckon with.

Though Sections 330 and 331 of the Indian Penal Code, 1860 (for short
the 'IPC') make punishable those persons who cause hurt for the purpose of
H extorting the confession by making the offence punishable with sentence up
MUNSHI SINGH GAUTAM v. STATEOFM.P. [PASAYAT,J.] 1099

to l 0 years of imprisonment, but the convictions, as experience shows from A
track record have been very few compared to the considerable increase of

-
such onslaught because the atrocities within the precincts of the police station
are often left without much traces or any ocular or other direct evidence to
prove as to who the offenders are. Disturbed by this situation the Law
Commission in its l 13th Report recommended amendments to the Indian
Evidence Act, 1872 (in short the 'Evidence Ac~') so as to provide that in the B
prosecution of a police officer for an alleged offence of having caused bodily

-
injuries to a person while in police custody, if there is evidence that the
injury was caused during the period when the person was in the police custody,
the court may presume that the injury was caused by the police officer having
the custody of that person during that period unless the police officer proves C
to the contrary. The onus to prove the contrary must be discharged by the
police official concerned. Keeping in view the dehumanizing aspect of the
crime, the flagrant violation of the fundamental rights of the victim of the
crime and the growing rise in the crimes of this type, where only a few come
to light and others don't, the Government and the legislature must give.serious
thought to the recommendation of the Law Commission and bring about D
appropriate changes in the law not only to curb the custodial crime but also
to see that the custodial crime does not go unpunished. The courts are also
required to have a change in their outlook approach, appreciation and attitude,
particularly in cases involving custodial crimes and they should exhibit more
sensitivity and adopt a realistic rather than a narrow technical approach, E
while dealing with the cases of custodial crime so that as far as possible
within their powers, the truth is found and guilty should not escape so that
the victim of the crime has the satisfaction that ultimately the majesty of law
has prevailed.

But at the same time there seems to be disturbing trend of increase in F
cases where false accusations of custodial torture are made, trying to take
advantage of the serious concern shown and the stem attitude reflected by the
courts while dealing with custodial violence. It needs to be carefully examined
whether the allegations of custodial violence are genuine or are sham attempts
to gain undeserved benefit masquerading as victims of custodial violence. G
The case in hand is unique case in the sense that complainant filed a complaint
alleging custodial torture while the accused alleged false implication because
of oblique motives.

It is the duty of the police, when a crime is reported, to collect evidence
to be placed during trial to arrive at the truth. That certainly would not H
1100 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A include torturing a person, be he an accused or a witness to extract information.
The duty should be done within four comers of law. Law enforcers can not
take law into their hands in the name of collecting evidence.

Facts of the present case as unfolded by prosecution during trial are as
follows:
B
On the night intervening 19th and 20th June, 1984 to extort a confession
from one Shambhu Tyagi (hereinafter referred to as the 'deceased'), he was
brought to the police station where he was beaten as a result of which he died
and thereafter to remove the traces of the crime and conceal the acts, the dead
body was thrown near a Nala. The accused persons, five in number, who
C were police officers of Police Station, Shahjahanabad, Bhopal thus committed
offences punishable under Sections 330, 302 and 20 I IPC. In relation to a
scooter theft, Mahesh Sharma and Rajkumar Sharma (PW-12) were brought
to Police Station, Shahjahanabad. As name of deceased was disclosed by
these persons, around 1.30 A.M. (after mid-night) the accused persons went
D to the house of deceased from where he was brought to the Police Station.
When the deceased was brought Jawahar (PW-14) had seen the accused
persons. Thereafter to extort confession the deceased was badly beaten as a
result of which he died. These accused-police officers forged the Rojnamacha
report to conceal the crime by recording that they received an information
that some person was lying in the Nala bed and the said person was intoxicated
E badly. As the witnesses and public at large raised hues and cries, the then
Supdt. of Police, Bhopal wrote a letter to the District Magistrate and also sent
a letter to the Inspector General of Police for getting the matter investigated
through some independent agency. On basis of said letters, the District
Magistrate got the matter enquired through the C.l.D. Police. Statements
F were recorded; the medical reports were obtained; documents were seized;
panchnamas were prepared; and on completion of the investigation, the charge-
sheet was filed in the concerned court. Each of the accused persons denied
allegations. The trial was conducted by learned II Additional Sessions Judge,
Bhopal. 1:he Trial Court after recording the evidence and hearing the parties
found each of the accused persons guilty and sentenced them. The trial Court
G convicted each of the accused persons for offences punishable under Sections
304 Part I, 330 and 20 I of the Indian Penal Code, 1860 (in short the 'IPC')
sentencing each to undergo RI for 7 years, 3 years and 2 years respectively.
All the sentences were directed to run concurrently. Being aggrieved by the
said judgment, conviction and sentence, the accused appellants have filed
H appeal before the High Court.
MUNSHI SINGH GAUTAM v. STATE OF M.P. [PASAYAT, J.] 1101

The appellants filed appeals before the Madhya Pradesh High Court. A
By the impugned judgment the High Court dismissed the appeals. During
pendency of the present appeal before this Court, accused no. I Munshi Singh
Gautam expired and by order dated 2.10.2004 the appeal was held to have
abated so far as he is concerned.

In support of the appeal, Mr. Uday U. Lalit, learned senior counsel B
submitted that the prosecution version as unfolded is not supported by any
cogent and credible evidence. The prosecution version mainly rests on the
evidence of Rajkumar (PW-12) and Jawahar (PW-14). While the latter's
version has been relied :.ipon by the prosecution to contend that he had
witnessed the deceased being taken away by the police officers, PW-12 on C
the other hand claimed to have witnessed beatings given by the accused
persons to the deceased. It is pointed out that the medical evidence tendered
by Dr. D.K. Satpathy (PW-16) clearly rules out time of beatings as claimed
to have been witnessed by Raj Kumar (PW-12). His evidence is clearly to the
effect that the deceased was suffering from T.B. and one lung was totally
damaged. Taking into account the quantity of liquor found in his stomach, D
the time of death was fixed about 4 hours before post-mortem which started
around 1.00 p.m. on 20.6.1984. His evidence is also to the effect that all the
injuries were not of the same time; some were about 4 hours old and the
others were 12 hours old and some were one or two days old. Raj Kumar
(PW-12) is a liar as is evident from his testimony. He has given different E
version as to when he was arrested. Though he claimed that he was also
beaten along with one Mahesh who was not examined, he did not make any
grievance before the Magistrate when he was produced after his arrest. He
gave varying dates so far his date of arrest is concerned. At one place it was
stated to be 20.6.1984 whereas on another place it was stated to be 23.6.1984.
Though he claimed that he was aware of the names of the accused persons, F
he did not mention it in his statement given during investigation. No
explanation has been offered for it. He was not acquainted with the accused
persons. Similarly, Jawahar (PW-14) claimed to have seen the accused persons.
He identified them for the first time in Court. In his cross-examination he
had accepted that he did not give the physical description of the accused G
persons. He clearly admitted that he could not have given the description
because he had not seen them on the date of alleged date of occurrence.
Therefore, the Courts below in the absence of any test identification parade
should not have placed reliance on their evidence. In any event, when Jawahar
(P"N-14) accepted that he had not seen the accused persons the test
identification parade would not have also improved the situation. He had H
1102 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A categorically stated that the deceased was wearing a janghia when he was
taken by the police. Doctor (PW-16) who conducted the post-mortem found
that the deceased was fully dressed with pant and shirt. Therefore, it was
submitted that the conviction as recorded by the Trial Court and affirmed by
the High Court is unsustainable.

B In response, Mr. R.P. Gupta, learned counsel appearing for the
respondent-State submitted that as is well-known, in case of custodial death,
it is very difficult to have flawless evidence. The evidence of Rajkumar (PW-
12) is cogent and credible as found by the Courts below. Even though there
are some minor flaws here and there, they do not affect credibility of the
C prosecution version. Evidence of Jawahar (PW-14) has been corroborated by
the evidence of other witnesses. The medical evidence which is hypothetical
in nature should not be given undue importance by-passing eye-witness's
version. Merely because Mahesh has not been examined that does not render
the prosecution version vulnerable as claimed by the accused-appellants. It is
pointed out that in order to hide actual state of affairs a thoroughly
D misconceived plea that police received information about somebody lying
injured near Nata was made out. This plea is also falsified when the evidence (

of doctor is noted. Dr. K.N. Agarwalla (PW-11) has categorically stated that
the body of the deceased was brought to the hospital around 8.15 a.m. by one
police constable Shiv Prasad No.238 of Shahjahanabad Police Station and
E accused Guiab Singh Chaudhary. They told him that the deceased had. come
to the police station in a very bad stage and with much difficulty he had told
his name and thereafter fallen down unconscious. It was further stated that
they took him to the emergency ward, where he was declared dead. In the
examination under Section 313 of the Code the accused-appellant Guiab
Singh Chaudhary has taken the similar stand. This is clearly falsified by the
F defence version and evidence that police officers had gone to the spot on
hearing that somebody was lying injured there. Therefore, it was submitted
that the Trial Court and the High Court were justified in finding the accused-
appellants guilty.

The evidence of Rajkumar (PW-12) and Jawahar (PW-14) relate to
G separate facets of the incident. The latter speaks about the accused-appellants
having taken the deceased along with them after mid-night of 19th June,
1984. Rajkumar (PW-12) spoke of the assaults made inside the police station.
Admittedly there was no test identification parade.

As was observed by this Court in Matru v. State of UP., (1971] 2 SCC
H
MUNSHI SINGH GAUTAM v. STATEOFM.P. [PASAYAT,J.] 1103
- f
75 identification tests do not constitute substantive evidence. They are primarily A
meant for the purpose of helping the investigating agency with an assurance
that their progress with the investigation into the offence is proceeding on the
right lines. The identification can only be used as corroborative of the statement
in court. (See Santokh Singh v. lzhar Hussain, [1973] 2 SCC 406). 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 B
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 c
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 D
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 allegation. If,
however, circumstances are beyond control and there is some delay, it cannot
be said to be fatal to the prosecution. E
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 F
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 G
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 H
1104 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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
B Courts of fact. In appropriate cases it may accept the evidence of identification
even without insisting on corroboration. (See Kanta Prashad v: Delhi
Administration, AIR (1958) SC 350, Vaikuntam Chandrappa and Ors. v.
State of Andhra Pradesh, AIR (1960) SC 1340, Budhsen and Anr. v. State
of UP., AIR (1970) SC 1321 and Rameshwar Singh v. State of Jammu and
C Kashmir, AIR (1972) SC 102.

In Jadunath Singh and Anr v. The State of Uttar Pradesh, (1970) 3
sec 518), the submission that absence .of test identification parade in all
cases is fatal, was repelled by this Court after exhaustive considerations of
the authorities on the subject. That was a case where the witnesses had seen
D the accused over a period of time. The High Court had found that the witnesses
were independent witnesses having no affinity with deceased and entertained
no animosity towards the appellant. They had claimed to have known the
appellants for the last 6-7 years as they had been frequently visiting the town
of Bewar. This Court noticed the observations in an earlier unreported decision
E of this Court in Parkash Chand Sogani v. The State of Rajasthan, (Criminal
Appeal No. 92 of 1956 decided on January 15, 1957), wherein it was
observed:-

"It is also the defence case that Shiv Lal did not know the appellant.
But on a reading of the evidence of P. W. 7 it seems to us clear that
Shiv Lal knew the appellant by sight. Though he made a mistake
F
about his name by referring to him as Kailash Chandra, it was within
the knowledge of Shiv Lal that the appellant was a brother of Manak '(

Chand and he identified him as such. These circumstances are quite
enough to show that the absence of the identification parade would
not vitiate the evidence. A person who is well-known by sight as the
G brother of Manak Chand, even before the commission of the
occurrence, need not be put before an identification parade in order
to be marked out. We do not think that there is any justification for
the contention that the absence of the identification parade or a mistake
made as to his name, w0uld be necessarily fatal to the prosecution
case in the circumstances."
H
MUNSHI SINGH GAUTAM v. STATEOFM.P. [PASAYAT,J.] 1105

The Court concluded: A
"It seems to us that it has been clearly laid down by this Court, in
Parkash Chand Sogani v. The State of Rajasthan (supra) (AIR Cri
LJ), that the absence of test identification in all cases is not fatal and
if the accused person is well-known by sight it would be waste of
time to put him up for identification. Of course if the prosecution B
fails to hold an identification on the plea that the witnesses already
knew the accused well and it transpires in the course of the trial that
the witnesses did not know the accused previously, the prosecution
would run the risk of losing its case."

In Harbhajan Singh v. State of Jammu and Kashmir, [1975] 4 SCC C
480, 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 I 6th December, I 97 I their rifles smelt of fresh D
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:-

"In view of this corroborative evidence we find no substance in the E
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., AIR (1971) SC 363 absence of test F
identification is not necessarily fatal. The fact that Munshi Ram did
not disclose the names of the two accused to the villages only shows
that the accused were not previously known to him and the story that
the accused referred to each other by their respective names during
the course of the incident contains an element of exaggeration. The G
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."

It is no doubt true that much evidentiary value cannot be attached to the
identification of the accused in Court where identifying witness is a total H
1106 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A stranger who had just a fleeting glimpse of the person identified or who had
no particular reason to remember the person concerned, if the identification
is made for the first time in Court.

In Ram Nath Mahto v. State of Bihar, [1996] 8 SCC 630 this Court 1
upheld the conviction of the appellant even when the witness while deposing
B in Court did not identify the accused out of fear, though he had identified
him in the test identification parade. This Court noticed the observations of
the trial Judge who had recorded his remarks about the demeanour that the
witness perhaps was afraid of the accused as he was trembling at the stare of 'I
Ram Nath -accused. This Court also relied upon the evidence of the Magistrate,
'•
c PW-7 who had conducted the test identification parade in which the witness
had identified the appellant. This Court found, that in the circumstances ifthe
Courts below had convicted the appellant, there was no reason to interfere.

In Suresh Chandra Bahri v. State of Bihar, [ 1995] Supp 1 SCC 80, this ..
Court held that it is well settled that substantive evidence of the witness is
D his evidence in the Court but when the accused person is not previously
known to the· witness concerned then identification of the accused by the
witness soon after his arrest is of great importance because it furnishes an r
assurance that the investigation is proceeding on right lines in addition to
furnishing corroboration of the evidence to be given by the witness later in
Court at the trial. From this point of view it is a matter of great importance,
E both for the investigating agency and for the accused and a fortiori for the
proper administration of justice that such identification is held without
avoidable and unreasonable delay after the arrest of the accused. It is in
adopting this course alone that justice and fair play can be assured both to
the accused as well as to the prosecution. Thereafter this Court observed:-
F "But the position may be different when the accused or a culprit who
stands trial had been seen not once but for quite a number of times
at different point of time and places which fact may do away with the
necessity of a TI parade."

In State of Uttar Pradesh v. Boota Singh and Ors., [1979] 1 SCC 31,
G
this Court observed that the evidence of identification becomes stronger if
the witness has an opportunity of seeing the accused not for a few minutes ....
but for some length of time, in broad daylight, when he would be able to note
the features of the accused more carefully than on seeing the accused in a
dark night for a few minutes.
H <
'!
MUNSHI SINGH GAUTAM v. STATEOFM.P. (PASAYAT,J.] 1107
' j In Ramanbhai Naranbhai Patel and Ors v. State of Gujarat, [2000] I A
SCC 358 after considering the earlier decisions this Court observed:-

"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 B
only in the Court when the accused was not known earlier to the
witness had to be treated as valueless. The said decision, in tum,
relied upon an earlier decision of this Court in the case of State
(Delhi Admn.) v. V. C. Shukla, AIR (1980) SC 1382 wherein also
Fazal Ali, J. speaking for a three-Judge Bench made similar C
observations in this regard. In that case the evidence of the witness
in the Court and his identifying the accused only in the Court without
previous identification parade was found to be a valueless exercise.
The observations made therein were confined to the nature of the
evidence deposed to by the said eye-witnesses. It, therefore, cannot
be held, as tried to be submitted by learned Counsel for the appellants, D
that in the absence of a test identification parade, the evidence of an
eye-witness 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 E
that the later decisions of this Court in the case of Rajesh Govind
Jagesha v. State of Maharashtra, AIR (2000) SC 160 and State of
H.P. v. Lekh Raj, 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- F
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 G
of no assistance to the prosecution, the fact remains that these eye-
witnesses were seriously injured and they could have easily seen the
faces of the persons assaulting them and their appearance and identity
would well within 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 H
1108 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A who had assaulted them." ' .

These aspects were recently highlighted in Malkhansingh and Ors. v.
State of MP., [2003] 5 SCC 746.

Test identification. parade would be of no consequence in view of
B Jawahar's (PW-14) evidence that he did not know physical description of the
accused-appellants as he had not seen them on the date of occurrence. What
remains is the evidence of Rajkumar (PW-12).

It was contended that the police officers had assaulted the witness (PW-
12) for a pretty long time and physical appearance and special features had
C been imprinted in the mind of the witness and merely because no test
identification parade was held that is of no consequence. This plea has to be
examined in the light of evidence of Rajkumar (PW-12). His evidence is full
of unexplained contradictions. At one place he says he was arrested on 20th
June, 1984, at another place he says he was arrested on 23rd June, 1984. He
D claimed that from 20th June till 22nd June, 1984 he was in police custody.
In cross-examination it was accepted that it was not so because he was taken
to U.P. on 21st and 22nd June, 1984. In another vital improvement in his
statement, he claimed that he knew the names of all the accused persons by
20th June, 1984 itself. Significantly, the names of accused persons are not
stated by him when he was examined by the police. No explanation has been
E offered as to why he did not tell the names. This witness claimed that he had
suffered severed injuries. He admitted that he had not made any grievance to
the Magistrate before whom he was produced aftevhis arrest. He also accepted
that the alleged injuries were not bleeding. But' his statement was that the
blood on the floor was cleaned by the accused persons. It is further stated that
F the police took his signatures when his statement was recorded for the first
time. Ext. D-3 was recorded on 26.6.1984 by which time he claimed to have
known the names of all the accused persons. Ext. D-3 did not contain any
signature. Therefore, the evidence of PW-12 and PW-14 are not sufficient to
fasten guilt on the accused persons. But one significant aspect can not be lost
sig~t of. That is the role of accused B.S. Chaudhury. His definite plea .was
G that the deceased was lying injured near the Nala and information to that
effect was received at the police station. But his statement before Dr. K.N.
Agarwal (PW-I) was entirely different. The effect of a false stand being
taken in case of custodial death was considered by this Court in Sahadevan
alias Sagadevan v. State rep. by Inspector of Police, Chennai AIR (2003) SC
H 21s.
MUNSHI SINGH GAUTAM v. STATEOFM.P. [PASAYAT,J.] 1109

The plea that the deceased had come to the police station in a severe A
condition and after telling his name has collapsed gets falsified by the
categorical statement made by the accused in his statement under Section 313
of the Code to the effect that on receiving information where the deceased
was lying unconscious in injured state. In this view of the matter, the case
being one of custodial torture, accusations have been established so far as B
accused-appellant Guiab Singh alias Guiab Singh Chaudhury is concerned.

The residual question is what is the offence committed by him. The
evidence of Dr. D.K. Satpathy (PW-16) is very relevant to decide the question,
He found that .the injuries were confined to the skin and upper level of the
body. Grievous injuries were not found on vital parts of the body like head, C
liver, spleen, heart, lungs etc. The duration of the injuries were widely variant.
The right lung of the deceased was TB affected. The combined effect of
alcohol and the injuries shortened the period of death and resulted in a quicker
death. That being so, the conviction in terms of Section 304 Part II IPC
cannot be faulted. His appeal fails and is dismissed. He shall surrender to
custody to serve remainder of his sentence. So far as other accused-appellants D
Bahadur Singh, Pooran Singh and Dhanraj Dubey are concerned, the
prosecution has not been able to bring home the accusations. Therefore, their
appeals deserve to be allowed which we direct. Their bail-bonds are discharged.

The appeal is accordingly disposed of.

K.K.T. Appeal disposed of.

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