Accused Cannot Refuse To Join Test Identification Parade: Apex Court Rejects Argument That It Violates Article 20(3) Of Constitution
The Supreme Court in a case involving murder with the help of ice sticks has upheld the conviction of a man. It has said that the accused cannot refuse to join the Test Identification Parade (TIP) and rejected the argument that TIP violates the fundamental right of an accused under Article 20(3) of the Constitution.
The Court was dealing with a criminal appeal filed by the accused against the judgment of the Delhi High Court by which it dismissed the appeal and affirmed the order of conviction passed by the Trial Court holding the accused guilty for the offences punishable under Sections 302, 392, 394, and 397 read with Section 34 of the Indian Penal Code (IPC).
The two-Judge Bench of Justice M.M. Sundresh and Justice J.B. Pardiwala held, “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. … 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.”
The Bench noted that before the investigating authorities send up a case to the court, they must be satisfied that the persons arrested by them are the persons accused of having committed the crime.
Advocate Jayesh Gaurav appeared for the appellant/convict while Additional Solicitor General K.M. Nataraj appeared for the respondent/State.
Factual Background -
The appellant along with three other co-accused was put to trial in the Court of the Additional Sessions Judge-II for the offences punishable under Sections 392, 394, 397, 307, 302, and 411 read with Section 34 of the IPC. In 2008, during early morning, the first informant (injured eye witness) along with his friend (deceased) and brother were at a subzimandi for purchasing vegetables. When they proceeded towards the main gate after the purchase and reached near the STD PCO, the four accused persons cornered them.
Two of the accused persons snatched away Rs. 14,800/- from the pocket of the first informant and when he resisted, the other two accused armed with ice picks attacked him and his friend (deceased). The accused ran away from the place of occurrence and when the traffic of trucks at the market got eased, the first informant saw his friend lying in an injured condition who was then admitted in the hospital, but he died over there. During the investigation, the officer decided to hold TIP of the accused persons but the appellant refused the same. The appellant being aggrieved by the decision of the High Court which upheld his conviction was, therefore, before the Supreme Court.
The Apex Court in view of the facts and circumstances of the case observed, “During the investigation of a crime committed by persons unknown to the witnesses, the persons arrested on suspicion of their complicity in the crime have got to be confronted by the investigating authority with the witnesses so that they can find out whether they are the persons who committed the crime or not. … 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.”
The Court said that as per the settled law, 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.
“It will be too much for us to say that the PW 1 was able to identify the accused convict for the first time before the Trial Court only because the PW 1 had an opportunity to have a look at him on 15.09.2008 at the Rohini Court Complex. As observed above, the PW 1 could be said to have had more than a fair glimpse of the assailants at the time of the incident and on the strength of the same, the PW 1 identified the appellant convict as one of the assailants”, further said the Court.
The Court also observed that although the appellant in his further statement recorded under Section 313 CrPC stated that he had refused to participate in the TIP as the eye witnesses had already seen him, yet except a bald assertion, no other foundation has been laid for offering such an explanation.
“It is true that the explanation that the accused may offer when the Court confronts him with the incriminating materials in his further statement has to be tested on preponderance of probability and not on proof beyond reasonable doubt. However, even while testing the answer on preponderance of probability some foundation has to be laid for such explanation to be accepted. A mere bald assertion is not sufficient”, held the Court.
The Court, however, noted that even if the evidence of discovery is discarded on the ground that no independent witnesses were present at the time of discovery, still the fact that the appellant led the police party to his house and handed over the ice pick used at the time of the assault, would be reflective of his conduct.
“By virtue of Section 8 of the Evidence Act, the conduct of an accused is relevant, if such conduct influences or influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where he had concealed the weapon of offence i.e. ice pick, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the appellant convict contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. Even if we hold that the discovery statement made by the appellant convict referred to above is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8 of the Evidence Act”, further held the Court.
The Court concluded that the appellant was guilty of his act but considered the fact that he hailed from a very poor family and was undergoing sentence for more than 16 years. Hence, it granted liberty to him to file representation to the competent authority for his premature release.
Accordingly, the Supreme Court dismissed the appeal and upheld the conviction of the appellant.
Cause Title- Mukesh Singh v. The State (NCT of Delhi) (Neutral Citation: 2023 INSC 765)