# CASE DETAILS MUKESH SINGH v. THE STATE (NCT OF DELHI)

- **Citation:** 2023 INSC 765
- **Court:** Supreme Court of India
- **Decided:** 2023-08-24
- **Case number:** Criminal Appeal No. 1554 of 2015
- **Bench:** M. M. Sundresh, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-mukesh-singh-v-the-state-nct-of-delhi-36380
- **Pages:** 51

## Headnote

Issues for consideration:
(i) Whether the High Court committed any error in dismissing the
appeal fi led by the appellant convict and thereby affi rming the judgment and
order of conviction and sentence passed by the Trial Court for the alleged
off ences?;
(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 offi cer may propose to hold in the course of investigation
on the ground that no person accused of any off ence 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 identifi cation before the Trial Court without any
corroboration to such identifi cation?;
(v) What is the true purport of Section 54A of the CrPC?;
886
887
(vi) Whether the Courts below were justifi ed in placing reliance on the
discovery of weapon of off ence and the currency notes from the residence
of the appellant convict as one of the incriminating circumstances against
the appellant convict?
Test Identifi cation 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 Identifi cation 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 identifi cation parade, but this compulsion does not involve any positive
volitional evidentiary act - His mere attendance or the exhibition of his
body at a test identifi cation parade even though compelled, does not result
in any evidentiary act until he is identifi ed by some other agency - The
identifi cation 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]
MUKESH SINGH v. THE STATE (NCT OF DELHI)
888
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Test Identifi cation Parade - The test identifi cation parade provides
corroboration to the identifi cation of the witness in

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[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 fi led by the appellant convict and thereby affi rming the judgment and
order of conviction and sentence passed by the Trial Court for the alleged
off ences?;
(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 offi cer may propose to hold in the course of investigation
on the ground that no person accused of any off ence 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 identifi cation before the Trial Court without any
corroboration to such identifi cation?;
(v) What is the true purport of Section 54A of the CrPC?;
886
887
(vi) Whether the Courts below were justifi ed in placing reliance on the
discovery of weapon of off ence and the currency notes from the residence
of the appellant convict as one of the incriminating circumstances against
the appellant convict?
Test Identifi cation 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 Identifi cation 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 identifi cation parade, but this compulsion does not involve any positive
volitional evidentiary act - His mere attendance or the exhibition of his
body at a test identifi cation parade even though compelled, does not result
in any evidentiary act until he is identifi ed by some other agency - The
identifi cation 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]
MUKESH SINGH v. THE STATE (NCT OF DELHI)
888
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Test Identifi cation Parade - The test identifi cation parade provides
corroboration to the identifi cation 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 identifi cation of the witness in court, if required -
However, what weight must be attached to the evidence of identifi cation in
court, which is not preceded by a test identifi cation parade, is a matter for
the courts of fact to examine. [Para 48]
Test Identifi cation 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 fi rst 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. [Para 70]
Code of Criminal Procedure, 1973 - s.54A - Test Identifi cation
Parade - Obligation u/s. 54A CrPC:
Held: The introduction of Section 54A in the CrPC, an accused is
under an obligation to stand for identifi cation 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]
889
Test Identifi cation 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 '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 - Identifi cation is almost always a matter of opinion or
belief. [Para 37]
Test Identifi cation Parade - Object of:
Held: Before the investigating authorities send up a case to Court, they
must be satisfi ed 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 off enders - 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 off ender, 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 off ender - This is the primary
object of identifi cation 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 affi rmed the conviction and sentence - Propriety:
Held: Appellant-convict stated that the PW-1 was in a position to
identify him for the fi rst 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 suffi cient or
a good ground to discard the substantive evidence of identifi cation 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 off ering such an explanation - 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
MUKESH SINGH v. THE STATE (NCT OF DELHI)
890
SUPREME COURT REPORTS
[2023] 11 S.C.R.
identifi ed for the fi rst 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 fi rst statement had categorically
stated that he can identify assailants, if brought before him and while giving
statements he had identifi ed 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 off ence 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 offi cer, the place where he had concealed the weapon of off ence
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 infi rmity 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.
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 affi rmed 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 off ences punishable under
Sections 302, 392, 394 and 397 resply read with Section 34 of the Indian
Penal Code (for short, 'IPC').
MUKESH SINGH v. THE STATE (NCT OF DELHI)
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 off ences 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
fi rst 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 traffi c of trucks at the
market got eased, the PW-1 saw Pappu (deceased) lying in an injured
condition. Both received help from the PCR offi cials and were taken to the
BJRM hospital. Pappu ultimately succumbed to the injuries he suff ered
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.
893
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 fi ght 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 affi rmed 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 coaccused, 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 offi cer decided to
hold the Test Identifi cation 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 off ence i.e. the ice pick which he had placed in one
MUKESH SINGH v. THE STATE (NCT OF DELHI)
[J. B. PARDIWALA, J.]
894
SUPREME COURT REPORTS
[2023] 11 S.C.R.
corner of his house. The investigating offi cer is said to have discovered
the weapon of off ence 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
(PW1)
He is the eye witness to the incident and had also
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 identifi ed 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 identifi ed the accused
Vijay @ Kalia to be the person, who stabbed him and
has also identifi ed 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.
895
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 traffi c of trucks and when
he moved out of the traffi c 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 offi cials 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 identifi ed 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
(PW4)
He is the brother of deceased Pappu and also the
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
MUKESH SINGH v. THE STATE (NCT OF DELHI)
[J. B. PARDIWALA, J.]
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 identifi ed 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 identifi ed 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 identifi ed the accused Pawan and
Vijay in the judicial test Identifi cation Parade in Rohini
jail. He has proved his statement recorded during the
Test identifi cation 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 Identifi cation Parade of other two accused
but they refused to participate in the same and thereafter
he had not identifi ed 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 identifi ed accused Sharvan and
Mukesh also besides accused Pawan and Vijay to the
investigating offi cer 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.
897
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
(PW12)
This witness has proved having conducted the
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 suffi cient 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 identifi ed the ice pricks examined by
him which are Ex.P-4 and Ex.P-5.
5.
Dr. Rohit Kumar
(PW15)
This witness has proved the death certifi cate of Pappu
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
(PW2)
He is a formal witness being the Duty Offi cer who has
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
MUKESH SINGH v. THE STATE (NCT OF DELHI)
[J. B. PARDIWALA, J.]
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[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
(PW5)
He is also a formal witness being the photographer who
has proved having taken seven photographs of the place
of incident on the direction of the investigating offi cer
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
(PW6)
This witness is the Crime Team Incharge who has proved
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 Offi cer.
9.
HC Prahlad Singh
(PW7)
He is the formal witness being the MHCM who has
proved having received the various case properties
from the Investigating Offi cer 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
(PW8)
He is the Draftsman who has proved having prepared
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
(PW10)
He is the initial investigating offi cer who has proved the
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.
899
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
(PW11)
This witness has proved having got conducted the Test
Identifi cation 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.
MUKESH SINGH v. THE STATE (NCT OF DELHI)
[J. B. PARDIWALA, J.]
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[2023] 11 S.C.R.
14.
Inspector R.C.
Sangwan (PW13)
He is the subsequent investigating offi cer who has
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
to A-7
Photographs of the spot
Ex.PW13/B
Site plan
Ex.PW13/C
Brief Facts
Ex.PW13/D
Form 25.35
Ex.PW13/E &
Ex.PW13/F
Dead body identifi cation statement
of Pradeep and Bhagwati
Ex.PW13/G
Request for postmortem
Ex.PW13/H
Seizure of pullanda containing
clothes of the deceased
Ex.PW13/J
Application for seeking subsequent
opinion Ex.PX FSL result (not
disputed by the Ld. counsels for
the accused persons)
15.
HC Kanwarpal
(PW14)
He was the PCR van Incharge and has deposed that:
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.
Sh. Rajesh Kumar
Goel,
Ld. ACMM
This witness has proved having conducted the Test, Ld.
ACMM Identifi cation Parade proceedings of accused
persons namely Sharwan Kumar, Vijay @ Kalia and
Pawan Kumar and Mukesh. He has proved the following
documents:
Ex.PW8/A
Test Identifi cation Parade of accused
Mukesh
Ex.PW8/B
Test Identifi cation Parade of accused
Vijay @ Kalia
901
Ex.PW8/C
Test Identifi cation Parade of accused
Pawan
Ex.PW16/A Application of the investigating offi cer
for obtaining copies of the proceedings
Ex.PW8/E
Test Identifi cation parade of accused
Sharwan
Ex.PW16/B Application of the investigating
offi cer for obtaining the copies of the
proceedings
Ex.PW16/C
&
Ex.PW16/D
Envelopes containing the Test
Identifi cation Parade proceedings
Ex.PW16/E
& PW16/F
Application moved by the investigating
offi cer for conducting Test Identifi cation
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
off ences 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 off ence 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 fi ne for a sum of Rs.25,000/- for the off ence under Section
397 read with 302 Indian Penal Code. In default of payment of fi ne
the convict shall further undergo Simple Imprisonment for a period of
MUKESH SINGH v. THE STATE (NCT OF DELHI)
[J. B. PARDIWALA, J.]
902
SUPREME COURT REPORTS
[2023] 11 S.C.R.
three months. The total fi ne 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 fi ne of Rs. 2,000/- for the off ence under
Section 392 read with Section 394 Indian Penal Code. In default of
payment of fi ne 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 affi rmed
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 suffi cient 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 offi cer 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
903
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 identifi ed the appellant convict herein
and other three co-accused for the fi rst time before the Trial Court. This
identifi cation for the fi rst 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 off ences 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 identifi cation of the appellant convict for the fi rst 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 off ence 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 off ences he was charged with. The learned
ASG submitted that the Courts below were justifi ed in drawing adverse
inference against the appellant convict for having declined to participate in
MUKESH SINGH v. THE STATE (NCT OF DELHI)
[J. B. PARDIWALA, J.]
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 identifi cation by the eye witnesses of the accused
persons before the Trial Court. He further argued that the identifi cation 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
identifi cation before the Court. The learned ASG submitted that the Courts
below have believed and found the identifi cation of the accused appellant
for the fi rst 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 identifi cation, 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 off ence 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.