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Issues for consideration:(i) Whether the High Court committed any error in dismissing theappeal fi led by the appellant convict and thereby affi rming the judgment andorder of conviction and sentence passed by the Trial Court for the allegedoff ences?;(ii) Whether an accused can decline to participate in the TIP on theground that he was already shown to the eye witnesses prior to the conductof the TIP and in such circumstances, the TIP would be nothing short ofcreating evidence against him?;(iii) Can an accused decline to participate in the TIP that theinvestigating offi cer may propose to hold in the course of investigationon the ground that no person accused of any off ence shall be compelledto be a witness against himself? To put it in other words, can an accuseddecline to subject himself to the TIP on the ground that the same violateshis fundamental right under Article 20(3) of the Constitution?;(iv) To what extent the Court can draw an adverse inference againstthe accused for having refused to participate in the TIP? Whether by virtueof drawing such adverse inference, is it open for the Court to accept thesubstantive evidence of identifi cation before the Trial Court without anycorroboration to such identifi cation?;(v) What is the true purport of Section 54A of the CrPC?; (vi) Whether the Courts below were justifi ed in placing reliance on thediscovery of weapon of off ence and the currency notes from the residenceof the appellant convict as one of the incriminating circumstances againstthe appellant convict?Test Identifi cation Parade – Whether an accused can decline toparticipate in the TIP on the ground that he was already shown to theeye witnesses prior to the conduct of the TIP:Held: The accused while subjecting himself to the TIP does notproduce any evidence or perform any evidentiary act – It may be a positiveact and even a volitional act, but only to a limited extent, when the accusedis brought to the place where the TIP is to be held – It is certainly not hisevidentiary act – The accused concerned may have a legitimate ground toresist facing the TIP saying that the witnesses had a chance to see him eitherat the police station or in the Court, as the case may be, however, on suchground alone he cannot refuse to face the TIP – It is always open for theaccused to raise any legal ground available to him relating to the legitimacyof 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 fundamentalright of an accused under Article 20(3) of the Constitution.Held: What is prohibited by Article 20(3) of the Constitution isprocuring by compulsion of the positive volitional evidentiary acts of anaccused – It is true that an accused may be said to be compelled to attend atest identifi cation parade, but this compulsion does not involve any positivevolitional evidentiary act – His mere attendance or the exhibition of hisbody at a test identifi cation parade even though compelled, does not resultin any evidentiary act until he is identifi ed by some other agency – Theidentifi cation of him by a witness is not his act, even though his body isexhibited for the purpose – If the coercion is sought to be imposed in gettingfrom an accused evidence which cannot be procured save through positivevolitional act on his part, the constitutional guarantee as enshrined underArticle 20(3) of the Constitution will step in to protect him – However, ifthat evidence can be procured without any positive volitional evidentiaryact on the part of the accused, Article 20(3) of the Constitution will haveno application. [Paras 26 and 35] Test Identifi cation Parade – The test identifi cation parade providescorroboration to the identifi cation of the witness in court:Held: It is well settled that the substantive evidence is the evidenceof identification in court and the test identification parade providescorroboration to the identifi cation of the witness in court, if required –However, what weight must be attached to the evidence of identifi cation incourt, which is not preceded by a test identifi cation parade, is a matter forthe courts of fact to examine. [Para 48]Test Identifi cation Parade – Where an accused himself refused toparticipate in the TIP:Held: In a case where an accused himself refused to participate in theTIP, it is not open to him to contend that the statement of the eye witnessesmade for the fi rst time in Court, wherein they specifi cally point towards himas a person who had taken part in the commission of the crime, should notbe relied upon – Such a plea is available provided the prosecution is itselfresponsible for not holding a TIP – However, in a case where the accusedhimself declines to participate in a TIP, the prosecution has no option but toproceed in a normal manner like all other cases and rely upon the testimonyof the witnesses, which is recorded in Court during the course of the trialof the case. [Para 70]Code of Criminal Procedure, 1973 – s.54A – Test Identifi cationParade – Obligation u/s. 54A CrPC:Held: The introduction of Section 54A in the CrPC, an accused isunder an obligation to stand for identifi cation parade – An accused cannotresist subjecting himself to the TIP on the ground that he cannot be forcedor coerced for the same – If the coercion is sought to be imposed in gettingfrom an accused evidence which cannot be procured save through positivevolitional act on his part, the constitutional guarantee as enshrined underArticle 20(3) of the Constitution will step in to protect him – However, ifthat evidence can be procured without any positive volitional evidentiaryact on the part of the accused, Article 20(3) of the Constitution will haveno application – The accused while subjecting himself to the TIP does notproduce any evidence or perform any evidentiary act. [Para 35] Test Identifi cation Parade – Importance and Evidentiary valueof TIP:Held: Facts which establish the identity of any person or thing whoseidentity is relevant are, by virtue of Section 9 of the Evidence Act, alwaysrelevant – The term ‘identifi cation’ means proving that a person, subjector article before the Court is the very same that he or it is alleged, chargedor reputed to be – Identifi cation is almost always a matter of opinion orbelief. [Para 37]Test Identifi cation Parade – Object of:Held: Before the investigating authorities send up a case to Court, theymust be satisfi ed that the persons arrested by them are the persons accusedof having committed the crime – If they were known to the witnesses, thewitnesses would have given their names and that would have established theiridentity, but when they were not known, their identity could be establishedonly if the witnesses on seeing them say that they are the off enders – Sinceit would be very easy for a witness who has little regard for truth, to say thatthe person arrested on suspicion was the off ender, he is confronted with thesuspect mixed with innocent men – If he picks him out, that would add tothe credibility of his statement that he was the off ender – This is the primaryobject 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 – HighCourt affirmed the conviction and sentence – Propriety:Held: Appellant-convict stated that the PW-1 was in a position toidentify him for the fi rst time before the Trial Court only because he had theopportunity to see him on 15.09.2008 – In such circumstances, it is arguedon behalf of the appellant convict that there is no evidence to hold him guiltyfor the alleged crime – However, the State stated that is not a suffi cient ora good ground to discard the substantive evidence of identifi cation beforethe Trial Court – Although the appellant convict in his further statementrecorded u/s. 313 CrPC stated that he had refused to participate in the TIPas the eye witnesses had already seen him, yet except a bald assertion, noother foundation was laid for offering such an explanation – It is a longsettled law that if a witness is trustworthy and reliable, the mere fact thatno identifi cation parade could be conducted and the appellant convict was identifi ed for the fi rst time before the Trial Court, would not be a reason todiscard the evidence of the witness – Further, in a case where the accusedhimself declines to participate in a TIP, the prosecution has no option but toproceed in a normal manner like all other cases and rely upon the testimonyof the witnesses, which is recorded in Court during the course of the trial ofthe case – In the instant case, the PW-1 in his fi rst statement had categoricallystated that he can identify assailants, if brought before him and while givingstatements he had identifi ed all four assailants in the Court and their roles inthe crime – Besides that, when the appellant was arrested, he is said to havemade a disclosure statement – The statement was one relating to the weaponof off ence i.e. ice pick which was ultimately discovered from his house – Theevidence of the circumstance, simpliciter, that the accused pointed out tothe police offi cer, the place where he had concealed the weapon of off encei.e. ice pick, would be admissible as conduct u/s. 8 irrespective of the factwhether the statement made by the appellant convict contemporaneouslywith or antecedent to such conduct falls within the purview of s.27 of theEvidence Act or not – There was no infirmity in the line of reasoning adoptedby the Trial Court as well as by the High Court in holding the appellantconvict guilty of the alleged crime. [Paras 69, 70, 76 and 78] |
