2023 Supreme(SC) 789

SUPREME COURT OF INDIA
M.M. Sundresh, J.B. Pardiwala, JJ.
Mukesh Singh – Appellant
Vs.
The State (NCT of Delhi) – Respondent
Criminal Appeal No. 1554 of 2015
Decided on : 24-08-2023

IMPORTANT POINTS
(1) Test Identification Parade – Accused cannot resist subjecting himself to TIP on the ground that he cannot be forced or coerced for the same.
(2) Evidence of mere identification of accused person at trial for first time is from its very nature inherently of a weak character – Purpose of a prior test identification is to test and strengthen trustworthiness of that evidence.

Headnote:

(A) Constitution of India – Article 20(3) – Right against self-incrimination – Test Identification Parade – What is prohibited by Article 20(3) of Constitution is procuring by compulsion of positive volitional evidentiary acts of an accused – 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 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 – 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 final evidence and cannot be said by itself to furnish any positive volitional evidentiary act. (Para 26)

(B) Criminal Procedure Code, 1973 – Section 54A – Constitution of India – Article 20(3) – Identification of person arrested – Test Identification Parade – Accused cannot resist subjecting himself to TIP on the ground that he cannot be forced or coerced for the same – 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, constitutional guarantee as enshrined under Article 20(3) of Constitution will step in to protect him – However, if that evidence can be procured without any positive volitional evidentiary act on part of accused, Article 20(3) of Constitution will have no application – Accused while subjecting himself to TIP does not produce any evidence or perform any evidentiary act – It is always open for accused to raise any legal ground available to him relating to legitimacy of TIP or evidentiary value of the same in course of trial – However, accused cannot decline or refuse to join TIP. (Para 35)

(C) Criminal Law – Test Identification Parade – Evidentiary value – Substantive evidence is evidence of identification in court – Test identification parade provides corroboration to identification of witness in court, if required – However, what weight must be attached to evidence of identification in court, which is not preceded by a test identification parade, is a matter for courts of fact to examine – As a general rule, substantive evidence of a witness is statement made in court – Evidence of mere identification of accused person at trial for first time is from its very nature inherently of a weak character – Purpose of a prior test identification is to test and strengthen trustworthiness of that evidence. (Paras 47 and 48)

(D) Indian Penal Code, 1860 – Sections 302, 392, 394 and 397 respectively read with Section 34 – Criminal Procedure Code, 1973 – Section 313 – Indian Evidence Act, 1872 – Sections 8 and 27 – Murder and robbery – Life imprisonment – Refusal to participate in TIP – Explanation that accused may offer when Court confronts him with 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 – Even if evidence of discovery on the ground that no independent witnesses were present at the time of discovery is discarded, still fact that appellant herein led police party to his house and handed over ice pick used at the time of assault, would be reflective of his conduct – Discovery statement made by appellant convict is not admissible under Section 27 of Evidence Act, still it is relevant under Section 8 of Evidence Act – Line of reasoning adopted by Trial Court as well as by High Court in holding appellant convict guilty of alleged crime upheld. (Paras 75, 78, 79 and 80)

Facts of the case:

Present appeal, by special leave, is at instance of a convict accused and is directed against judgment and order dated 28.02.2014 passed by High Court of Delhi in Criminal Appeal No. 1246 of 2011 by which High Court dismissed appeal and thereby affirmed judgment and order of conviction dated 08.04.2011 and order on sentence of life imprisonment dated 27.04.2011 respectively passed by Additional Sessions Judge-II (North West), Rohini, Delhi in Sessions Case No. 998 of 2009 holding the appellant convict herein guilty for offences punishable under Sections 302, 392, 394 and 397 respectively read with Section 34 of Indian Penal Code.

Findings of Court:

If any such representation is preferred by 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 policy prevailing at the time of commission of offence as regards remission within a period of two months from the date of receipt of such representation and further communicate the same to appellant in writing without fail.

Result : Appeal dismissed.