Mukesh Singh vs The State (NCT of Delhi)

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]

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] 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 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. 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.

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