MUKESH SINGH versus THE STATE (NCT OF DELHI)
[2023] 11 S.C.R. 886, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Issues
[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 co-
accused, 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.]
898
SUPREME COURT REPORTS 
[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.]
900
SUPREME COURT REPORTS 
[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. Having heard the learned counsel appearing for the parties and 
having gone through the materials on record, the following questions fall 
for our 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?
905
(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?
(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?
Whether TIP violates the fundamental right of an accused under Article 
20(3) of the Constitution
23. Article 20(3) of the Constitution reads thus:-
“Article 20(3):-No person accused of any oﬀ ence shall be compelled 
to be a witness against himself.”
24. The true purport of clause (3) of Article 20 of the Constitution 
referred to above was laid down by this Court in the case of M.P. Sharma 
v. Satish Chandra, AIR 1954 SC 300.
Jagannadhadas J., delivering the 
judgment of the Court, observed:-
“Indeed, every positive volitional act, which furnishes evidence is 
testimony, and testimonial compulsion connotes coercion which 
procures the positive volitional evidentiary acts of the person, as 
opposed to the negative attitude of silence or submission on his part.”
25. We are conscious of the fact that M.P. Sharma (supra) referred 
to above came to be overruled in K.S. Puttaswamy v. Union of India, 
(2017) 10 SCC 1, to the extent that it had observed that privacy is not a 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
906
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
right guaranteed by the Indian Constitution. It was held in M.P. Sharma
(supra) that in absence of a provision like the Fourth Amendment to the U.S. 
Constitution, a right to privacy could not be read into the Indian Constitution. 
In the case on hand, we are not concerned with the right of privacy of an 
accused when it comes to putting him to TIP. What has been ruled in K.S. 
Puttaswamy (supra) in context of Article 21, is that an invasion of privacy 
must be fulﬁ lled on the basis of a law which stipulates a procedure which 
is fair, just and reasonable. 
26. 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. His compelled attendance at a test identiﬁ cation parade is 
comparatively remote to the ﬁ nal evidence and cannot be said by itself to 
furnish any positive volitional evidentiary act. [See : Peare Lal Show v. The 
State, AIR 1961 Cal 531]
27. In Peare Lal Show
(supra), Mitter, J. of the Calcutta High Court 
in his separate judgment observed thus:-
“5. True, we are to construe Article 20(3), but the language of Article 
20(3) is as to the material part tolidem verbis the 5th Amendment of 
the American Constitution. Dealing with the point, Holmes, J. in Holt 
v. United States, (1910) 218 US 245, observed:
“A question arose as to whether a blouse belonged to the prisoner. 
A witness testiﬁ ed that the prisoner put it on and it ﬁ tted him. 
It is objected that he did this under the same duress that made 
his statements inadmissible, and that it should be excluded for 
the same reasons. But the prohibition of compelling a man in a 
criminal court to be witness against himself is a prohibition of the 
use of physical or moral compulsion to extort communications 
from him, not an exclusion of his body as evidence when it may 
be material. The objection in principle would forbid a jury to
907
look at a prisoner and compare his features with a photograph in 
proof. Moreover, we need not consider how far a court would go 
in compelling a man to exhibit himself. For when he is exhibited, 
whether voluntarily or by order, and even if the order goes too 
far, the evidence, if material, is competent”.
6. In the same strain are to be found comments in Wigmore on Evidence, 
Volume VIII (3rd Edition), Section 2263 at page 363. The emphasis is 
upon the testimonial status of the accused and not upon any compulsion 
which might be a step in obtaining the ﬁ nal evidence against the man. 
Dealing with, this topic, Wigmore observed:
“Such, ﬁ nally, is the practical requirement that follows from 
the necessity of recognizing other unquestioned methods of 
procuring evidence: for if the privilege extended beyond these 
limits, and protected an accused otherwise than in his strictly 
testimonial status, — if, in other words, it created inviolability 
not only for his physical control of his own vocal utterances, but 
also for his physical control in whatever form exercised then it 
would be possible for a guilty person to shut himself up in his 
house, with all the tools and indicia of his crime, and defy the 
authority of the law to employ in evidence anything that might be 
obtained by forcibly overthrowing his possession and compelling 
the surrender of the evidential articles, a clear “reductio ad 
absurdum”.”
7. The foregoing principles were embodied in the judgement of
the 
Supreme Court in M.P. Sharma v. Satish Chandra, AIR 1954 SC 300, 
and the statement of the law set out earlier in this judgment furnishes, to 
my mind, the real test for determining whether any particular accused 
is compelled to be a witness against himself. As I have pointed out, the 
identiﬁ cation of an accused at a test identiﬁ cation parade by someone 
is not the accused’s own act. His mere attendance or the exhibition 
of his body cannot be regarded as furnishing any positive volitional 
evidentiary act. That being the position, the impugned order cannot 
be regarded as violative of Article 20(3) of the Constitution.”
[Emphasis supplied]
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
908
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
28. Bhattacharya, J. by his separate but concurring judgment observed 
thus:-
“10. InM.P. Sharma v. Satish Chandra, AIR 1954 SC 300, it is pointed 
out that the guarantee under Article 20(3) of the Constitution is 
available to the person against whom a ﬁ rst information report has 
been recorded. As was observed in Collector of Customs v. Calcutta 
Motor and Cycle Co., AIR 1958 Cal 682, no formal complaint is 
necessary and even if a person has been named as one who committed 
an oﬀ ence, particularly by oﬃ  cers who are competent to launch a 
prosecution against him, he has been accused of an oﬀ ence within 
the meaning of Article 20(3) and he can claim protection under 
that provision of law and, therefore, the extortion of any evidentiary 
material even at the stage of investigation, as in the present case, 
which may aid in the making out of a case against him may be within 
the meaning of condemnation of the Article. After the decision of the 
Supreme Court in Sharma’s case, referred to above, it cannot be said 
that the guarantee in Article 20(3) is conﬁ ned to the oral evidence of 
the accused. Their Lordships pointedly observed:
“We can see no reason to conﬁ ne the contents of the constitutional 
guarantee to this barely literal import. So to limit it would be 
to rob guarantee of its substantial purpose and to miss the 
substance for the sum as stated in certain decisions. A person 
can be a witness not merely by giving
oral evidence but also by 
producing documents or making intelligible gestures as in the 
case of a dumb witness or the like. To be a witness is nothing 
more than to furnish evidence and such evidence can be furnished 
through the lips or by production of a thing or of a document or 
any other means”.
11. The Magistrate has directed the production of the petitioner in a 
test identiﬁ cation parade. The petitioner has objected to this procedure. 
Consequently, there is an element of coercion and therefore no question 
of acquiescence arises. This kind of objection may be raised, in my 
opinion, by an accused person not only at the time of passing of such 
an order by a Magistrate orally or in writing, personally or through his 
lawyer, but also at the time of actual collection of his evidence which,
909
according to the accused, may be self-incriminatory in character. The 
objection of the petitioner is in time. There is, therefore, no technical 
bar.
14. Apart from the question of coercion as opposed to acquiescence 
the fundamental idea stressed is ‘positive volitional evidentiary act’. 
This is distinct from ‘negative attitude of silence or submission’. It 
is clear that the Supreme Court did not lay down only the negative 
principle of silence or acquiescence. What stands out prominently 
in the judgment is ‘a positive volitional evidentiary act’. 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, 
the Constitutional guarantee will step in to protect him. This was the 
view of this Court in the case of Farid Ahmed v. The State, AIR 1960 
Cal 32, in connection with a case in which the Magistrate allowed an 
investigating oﬃ  cer to take specimen writing and signatures of the 
accused. But 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. In so far as the above ratio 
decidendi laid down by the Supreme Court was not kept in view fully 
in Bhaluka Behara v. The State, AIR 1957 Orissa 172; Brij Bhusan 
v. The State, AIR 1957 Madh Pra 106; Nazir Singh v. The State, AIR 
1959 Madh Pra 411, or Sailendra Nath v. The State, AIR 1955 Cal 
247, or Ram Swarup v.
The State, AIR 1958 Cal 119, we would with 
due deference dissent from the views in these decisions. In Bhaluka 
Behara v. The State, the Orissa High Court seems to have been of 
the opinion that any direction asking the accused to give his thumb 
impression would amount to asking him to furnish evidence which is 
prohibited under Article 20(3). In this case, however, there was no 
element of coercion or compulsion and no objection had been raised by 
the accused persons at the time of taking the thumb impression. In Brij 
Bhusan v. The State, the Madhya Pradesh High Court held that Section 
5 of the Madhya Bharat Identiﬁ cation of Prisoners Act, in so far as it 
conferred powers on the Magistrate to direct an accused person to give 
his thumb impression, specimen writing and signature for comparison 
to be used against him in a trial, was repugnant to Article 20(3) of the 
Constitution and was, therefore, void. In Sailendra Nath v. The State 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
910
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
and Ram Swarup v. The State it was pointed out that taking specimen 
writing did not oﬀ end Article 20(3) of the Constitution, — a view that 
was dissented from in Farid Ahmed v. The State. 
18. It will appear from People v. Swallow, 165 New York Supp. 915, that 
the rule against self-incrimination is not violated when the accused is 
compelled to exhibit himself or part of his body to the court or to allow 
a record of his ﬁ nger prints to be taken. In State v. Ah Chuey, (1879) 
33 Am Re 530, the Court held that an order directing the accused to 
exhibit certain tattoo marks On his person would not amount to an 
infringement of the rule against self-incrimination.
19. Negativing the contention that taking of ﬁ nger prints is a violation 
of the privilege against self-incrimination, Willis in Constitutional 
Law of the United States (1936 Edition, page 522) observed inter alia:
“The accused does not exercise a volition or give oral testimony. 
He is passive. He is not giving testimony about his body, but is 
giving his body”. Speaking of inspection of bodily features by 
the Tribunal or by witnesses, Wigmore in Evidence, Vol. VIII, 
page 375, Section 2265 comments that what is obtained from the 
accused by such action is not testimony about his body but his 
body itself. This aspect, I cannot help repeating, was also stressed 
by Holmes, J. in the case of (1910) 218 US 245 by observing:
“But the prohibition of compelling a man in a
criminal court 
to be witness against himself is a prohibition of use of physical 
or moral compulsion to extort communications from him, not 
an exclusion of his body as evidence when it may be material”.
20. If, as we ﬁ nd, taking of thumb impression is not violative of Article 
20(3), with greater force the reasons set out above mutatis mutandis 
will be applicable to a case directing the production of the accused 
in a test identiﬁ cation parade, apart from such consideration as 
interposition of a magisterial order. It is not the accused who is called 
upon to testify against himself but somebody else on seeing him and 
others now in the parade may have something to say later on. The 
accused 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
911
limited extent, when he walks to the place where the test identiﬁ cation 
parade is to be held, as has been urged by Mr. Dutt, but certainly it is 
not his evidentiary act. The view that we take in the instant case is in 
full accord with the test of positive volitional evidentiary act laid down 
by the Supreme Court in the case of M.P. Sharma v. Satish Chandra, 
AIR 1954 SC 300.”
[Emphasis supplied]
SECTION 54A OF THE CODE OF CRIMINAL PROCEDURE, 
1973
29. In the aforesaid context, we shall now look into Section 54A of 
the CrPC. Section 54A reads thus:-
“Section 54A. Identiﬁ cation of person arrested.- Where a person is 
arrested on a charge of committing an oﬀ ence and his identiﬁ cation by 
any other person or persons is considered necessary for the purpose 
of investigation of such oﬀ ence, the Court, having jurisdiction may, 
on the request of the oﬃ  cer in charge of a police station, direct the 
person so arrested to subject himself to identiﬁ cation by any person 
or persons in such manner as the Court may deem ﬁ t.
Provided that, if the person identifying the person arrested is 
mentally or physically disabled, such process of identiﬁ cation shall 
take place under the supervision of a Judicial Magistrate who shall 
take appropriate steps to ensure that such person identiﬁ es the person 
arrested using methods that person is comfortable with:
Provided further that if the person identifying the person arrested 
is mentally or physically disabled, the identiﬁ
cation process shall be 
videographed.”
30. The newly inserted Section 54A provides for the identiﬁ cation 
of the arrested person where it is considered necessary for the purpose of 
investigation by the oﬃ  cer-in-charge of a police station. The said Section 
empowers the court, on the request of the oﬃ  cer-in-charge of a police station, 
to direct for placing the accused at test identiﬁ cation parade for identiﬁ cation 
by any person or persons in such manner as the court may deem ﬁ t. It is 
provided in the “objects and reasons”:-
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
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SUPREME COURT REPORTS 
[2023] 11 S.C.R.
“This clause seeks to insert a new section 54A to empower the Court 
to direct speciﬁ cally the holding of the identiﬁ cation of the arrested 
person at the request of the prosecution.”
31. First Proviso: Identiﬁ er mentally or physically disabled.-
When the person identifying the suspect is mentally or physically disabled, 
the process of identiﬁ cation must be under the supervision of a Judicial 
Magistrate. This mandatory requirement of law has been incorporated 
in the statute by the amending Act 13 of 2013 w.e.f. 03.02.2013. It is the 
duty of the Magistrate supervising TIP to take appropriate steps to ensure 
that such identiﬁ er identiﬁ es the suspect using methods to which he was 
comfortable with. The Magistrate cannot discharge his duty lightly or in a 
slip-shod manner. 
32. Second Proviso : Identiﬁ cation when suspect is mentally or 
physically disabled. - The second proviso to Section 54A has been inserted 
in the statute by the amending Act 13 of 2013 w.e.f. 03.02.2013. It relates to 
identiﬁ cation of a suspect who is mentally or physically disabled. It appears 
that the requirements speciﬁ ed in the ﬁ rst proviso are not attracted for the 
second proviso. But it is obligatory that the process of identiﬁ cation of the 
person arrested shall have to be videographed. Unless this requirement is 
complied with, the identiﬁ cation shall fall to the ground and no reliance can 
be placed on it at any stage of the trial.
33. This Section is restricted to identiﬁ cation of persons only. So this 
Section has no application where the question of identiﬁ cation of articles 
arises. TIP is part of investigation and the investigation of a case is to be 
conducted by the investigating agency and it is their statutory prerogatives. 
There was no statutory provision authorizing the accused to pray for placing 
him in the test parade. Some High Courts approved this right, while some 
other High Courts took a contrary view. In State of Uttar Pradesh v. 
Rajju, AIR 1971 SC 708, this Court observed, “If the accused felt that the 
witnesses would not be able to identify them-they should have requested for 
an identiﬁ cation parade.” This observation indirectly approves the right to 
ask for test parade by the accused. In another case, the accused voluntarily 
accepted the risk of being identiﬁ ed in a parade but he was denied that 
opportunity. This Court observed that this was an important point in his 
favour - Shri Ram v. State of U.P., (1975) 3 SCC 495.
913
34. This provision for giving directions by the Court as to the manner in 
which test parade is to be conducted may be viewed as treating the Court as 
part of the investigating agency. Without having any provision like Section 
54A there has been so long no diﬃ  culty in holding test identiﬁ cation parades. 
There are plenty of judicial pronouncements to show the safeguards to be 
followed while holding identiﬁ cation parade. 
35. Thus we are of the view that after the introduction of Section 
54A in the CrPC referred to above, 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. As explained very 
succinctly by the learned Judges of the Calcutta High Court as above, 
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. 
36. Thus, our aforesaid discussion answers two of the six questions 
framed by us i.e. (i) whether an accused can decline to submit himself to 
the TIP on the ground that the same is violative of Article 20(3) of the 
Constitution and (ii) the true purport of any order that the Magistrate may 
pass in exercise of powers under Section 54A of the CrPC directing any 
person to subject himself or herself to the TIP.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
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SUPREME COURT REPORTS 
[2023] 11 S.C.R.
IMPORTANCE AND EVIDENTIARY VALUE OF TIP
37. 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.
38. The identiﬁ cation has by itself no independent value. As stated 
by Viscount Haldane L. C. in Rex v. Christie, (1914) A. C. 545 (551) (E):- 
“its relevancy is to show that the witness “was able to identify at the 
time and to exclude the idea that the identiﬁ cation of the prisoner in 
the dock was an afterthought or a mistake.” 
39. Lord Moulton (with whom Viscount Haldane L. J. agreed) said 
at page 558 : 
“Identiﬁ cation is an act of the mind, and the primary evidence of what 
was passing in the mind of a man is his own testimony, where it can 
be obtained.” 
40. 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 ﬁ nd out whether they are the persons who 
committed the crime or not. 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. 
41. 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.
915
42. Phipson writes in his Law of Evidence, Edn. 8, p. 392:-
“In criminal cases it is improper to identify the accused only when in 
the dock; the police should place him, beforehand, with others, and 
ask the witness to pick him out.”
43. A three-Judge Bench of this Court in the case of Rajesh v. State of 
Haryana, (2021) 1 SCC 118, had the occasion to consider (i) the purpose 
of conducting a TIP, (ii) the source of the authority of the investigator to do 
so, (iii) the manner in which these proceedings should be conducted, (iv) 
the weight to be ascribed to identiﬁ cation in the course of a TIP, and (v) 
the circumstances in which an adverse inference can be drawn against the 
accused who refuses to undergo the process. After due consideration of the 
aforesaid, this Court summarised the principles as follows:-
“43.1 The purpose of conducting a TIP is that persons who claim 
to have seen the oﬀ ender at the time of the occurrence identify them 
from amongst the other individuals without tutoring or aid from any 
source. An identiﬁ cation parade, in other words, tests the memory of 
the witnesses, in order for the prosecution to determine whether any 
or all of them can be cited as eyewitness to the crime. 
43.2 There is no speciﬁ c provision either in CrPC or the Evidence 
Act, 1872 (“the Evidence Act”) which lends statutory authority to 
an identiﬁ cation parade. Identiﬁ cation parades belong to the stage 
of the investigation of crime and there is no provision which
compels 
the investigating agency to hold or confers a right on the accused to 
claim a TIP. 
43.3 Identification parades are governed in that context by the 
provision of Section 162 CrPC. 
43.4 A TIP should ordinarily be conducted soon after the arrest of the 
accused, so as to preclude a possibility of the accused being shown to 
the witnesses before it is held. 
43.5 The identiﬁ cation of the accused in court constitutes substantive 
evidence. 
43.6 Facts which establish the identity of the accused person are treated 
to be relevant under Section 9 of the Evidence Act.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
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SUPREME COURT REPORTS 
[2023] 11 S.C.R.
43.7 A TIP may lend corroboration to the identiﬁ cation of the witness 
in court, if so required. 
43.8 As a rule of prudence, the court would, generally speaking, look 
for corroboration of the witness’ identiﬁ cation of the accused in court, 
in the form of earlier identiﬁ cation proceedings. The rule of prudence is 
subject to the exception when the court considers it safe to rely upon the 
evidence of a particular witness without such, or other corroboration.
43.9 Since a TIP does not constitute substantive evidence, the failure 
to hold it does not ipso facto make the evidence of identiﬁ cation 
inadmissible.
43.10 The weight that is attached to such identiﬁ cation is a matter to 
be determined by the court in the circumstances of that particular case.
43.11 Identiﬁ cation of the accused in a TIP or in court is not essential 
in every case where guilt is established on the basis of circumstances 
which lend assurance to the nature and the quality of the evidence. 
43.12 The court of fact may, in the context and circumstances of each 
case, determine whether an adverse inference should be drawn against 
the accused for refusing to participate in a TIP. However, the court 
would look for corroborating material of a substantial nature before 
it enters a ﬁ nding in regard to the guilt of the accused.”
44. In the very same judgment referred to above, this Court observed 
as under:-
“46. … In this backdrop, the contention of the
appellants that the 
refusal to undergo a TIP is borne out by the fact that Sandeep and 
Rajesh were known to each other prior to the occurrence and that 
PW 4, who is a prime eyewitness, had seen Rajesh when he would 
attend the court during the course of the hearings, cannot be brushed 
aside. Consequently, in a case, such as the present, the Court would be 
circumspect about drawing an adverse inference from the facts, as they 
have emerged. In any event, as we have noticed, the identiﬁ cation in 
the course of a TIP is intended to lend assurance to the identity of the 
accused. The ﬁ nding of guilt cannot be based purely on the refusal of 
the accused to undergo an identiﬁ cation parade. In the present case,
917
we have already indicated that the presence of the alleged eyewitnesses 
PW 4 and PW 5 at the scene of the occurrence is seriously in doubt. 
The ballistics evidence connecting the empty cartridges and the bullets 
recovered from the body of the deceased with an alleged weapon of 
oﬀ ence is contradictory and suﬀ ers from serious inﬁ rmities. Hence, 
in this backdrop, a refusal to undergo a TIP assumes secondary 
importance, if at all, and cannot survive independently in the absence 
of it being a substantive piece of evidence.” 
[Emphasis supplied]
45. In Munshi Singh Gautam (D) & Ors. v. State of M.P., reported 
in (2005) 9 SCC 631, this Court observed as under:-
“16. … The whole idea of a test identiﬁ cation parade is that witnesses 
who claim to have seen the culprits at the time of occurrence are to 
identify them from the midst of other persons without any aid or any 
other source. The test is done to check upon their veracity. In other 
words, the main object of holding an identiﬁ cation parade, during the 
investigation stage, is to test the memory of the witnesses based upon 
ﬁ rst impression and also to enable the prosecution to decide whether 
all or any of them could be cited as eyewitnesses of the crime. The 
identiﬁ cation proceedings are in the nature of tests and signiﬁ cantly, 
therefore, there is no provision for it in the Code and the Evidence Act. 
It is desirable that a test identiﬁ cation parade should be conducted 
as soon as after the arrest of
the accused. This becomes necessary to 
eliminate the possibility of the accused being shown to the witnesses 
prior to the test identiﬁ cation parade. This is a very common plea 
of the accused and, therefore, the prosecution has to be cautious to 
ensure that there is no scope for making such an allegation. If, however, 
circumstances are beyond control and there is some delay, it cannot 
be said to be fatal to the prosecution.
17. It is trite to say that the substantive evidence is the evidence of 
identiﬁ cation in court. Apart from the clear provisions of Section 9 
of the Evidence Act, the position in law is well settled by a catena 
of decisions of this Court. The facts, which establish the identity of 
the accused persons, are relevant under Section 9 of the Evidence 
Act. As a general rule, the substantive evidence of a witness is 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
918
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
the statement made in court. The evidence of mere identiﬁ cation 
of the accused person at the trial for the ﬁ rst time is from its very 
nature inherently of a weak character. The purpose of a prior test 
identiﬁ cation, therefore, is to test and strengthen the trustworthiness 
of that evidence. It is, accordingly, considered a safe rule of 
prudence to generally look for corroboration of the sworn testimony 
of witnesses in court as to the identity of the accused who are 
strangers to them, in the form of earlier identiﬁ cation proceedings. 
This rule of prudence, however, is subject to exceptions, when, for 
example, the court is impressed by a particular witness on whose 
testimony it can safely rely, without such or other corroboration. 
The identiﬁ cation parades belong to the stage of investigation, and 
there is no provision in the Code which obliges the investigating 
agency to hold or confers a right upon the accused to claim a test 
identiﬁ cation parade. They do not constitute substantive evidence 
and these parades are essentially governed by Section 162 of the 
Code. Failure to hold a test identiﬁ cation parade would not make 
inadmissible the evidence of identiﬁ cation in court. The weight 
to be attached to such identiﬁ cation should be a matter for the 
courts of fact. In appropriate cases it may accept the evidence of 
identiﬁ cation even without insisting on corroboration. …”
46. In Ramanbhai Naranbhai Patel v.
State of Gujarat, (2000) 1 SCC 
358, after considering the earlier decisions this, Court observed:- (SCC p. 
369, para 20)
“20. It becomes at once clear that the aforesaid observations were 
made in the light of the peculiar facts and circumstances wherein the 
police is said to have given the names of the accused to the witnesses. 
Under these circumstances, identiﬁ cation of such a named accused only 
in the Court when the accused was not known earlier to the witness 
had to be treated as valueless. The said decision, in turn, relied upon 
an earlier decision of this Court in the case of State (Delhi Admn.) v. 
V.C. Shukla [(1980) 2 SCC 665 : 1980 SCC (Cri) 561 : AIR 1980 SC 
1382] wherein also Fazal Ali, J., speaking for a three-Judge Bench 
made similar observations in this regard. In that case the evidence 
of the witness in the Court and his identifying the accused only in
919
the Court without previous identiﬁ cation parade was found to be a 
valueless exercise. The observations made therein were conﬁ ned to 
the nature of the evidence deposed to by the said eyewitnesses. It, 
therefore, cannot be held, as tried to be submitted by learned counsel 
for the appellants, that in the absence of a test identiﬁ cation parade, 
the evidence of an eyewitness identifying the accused would become 
inadmissible or totally useless; whether the evidence deserves any 
credence or not would always depend on the facts and circumstances 
of each case. It is, of course, true as submitted by learned counsel 
for the appellants that the later decisions of this Court in the case of 
Rajesh Govind Jagesha v. State of Maharashtra [(1999) 8 SCC 428 : 
1999 SCC (Cri) 1452 : AIR 2000 SC 160] and State of H.P. v. Lekh Raj 
[(2000) 1 SCC 247 : 2000 SCC (Cri) 147 : AIR 1999 SC 3916] had not 
considered the aforesaid three-Judge Bench decisions of this Court. 
However, in our view, the ratio of the aforesaid later decisions of this 
Court cannot be said to be running counter to what is decided by the 
earlier three-Judge Bench judgments on the facts and circumstances 
examined by the Court while rendering these decisions. But even 
assuming as submitted by learned counsel for the appellants that the 
evidence of these two injured witnesses i.e. Bhogilal Ranchhodbhai and 
Karsanbhai Vallabhbhai identifying the accused in the Court may be 
treated to be of no assistance to
the prosecution, the fact remains that 
these eyewitnesses were seriously injured and they could have easily 
seen the faces of the persons assaulting them and their appearance 
and identity would well remain imprinted in their minds especially 
when they were assaulted in broad daylight. They could not be said 
to be interested in roping in innocent persons by shielding the real 
accused who had assaulted them.”
[Emphasis supplied]
47. In Malkhansingh v. State of M.P., (2003) 5 SCC 746, a three-Judge 
Bench of this Court considered the evidentiary value of the identiﬁ cation of 
the appellant in that case by the prosecutrix in the Court without holding a 
TIP in the course of the investigation. It was argued before the Court that the 
identiﬁ cation in Court not preceded by a TIP is of no evidentiary value. On 
the other hand, it was argued on behalf of the prosecution that the substantive 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
920
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
evidence is the evidence of identiﬁ cation in Court and, therefore, the value 
to be attached to such identiﬁ cation depends on facts and circumstances of 
each case. The Court ultimately answered as under:-
“7. It is trite to say that the substantive evidence is the evidence of 
identiﬁ cation in court. Apart from the clear provisions of Section 9 
of the Evidence Act, the position in law is well settled by a catena 
of decisions of this Court. The facts, which establish the identity of 
the accused persons, are relevant under Section 9 of the Evidence 
Act. As a general rule, the substantive evidence of a witness is 
the statement made in court. The evidence of mere identiﬁ cation 
of the accused person at the trial for the ﬁ rst time is from its very 
nature inherently of a weak character. The purpose of a prior test 
identiﬁ cation, therefore, is to test and strengthen the trustworthiness 
of that evidence. It is accordingly considered a safe rule of prudence 
to generally look for corroboration of the sworn testimony of 
witnesses in court as to the identity of the accused who are strangers 
to them, in the form of earlier identiﬁ cation proceedings. This 
rule of prudence, however, is subject to exceptions, when, for 
example, the court is impressed by a particular witness on whose 
testimony it can safely rely, without such or other corroboration. 
The identiﬁ cation parades belong to the stage of investigation, 
and there
is no provision in the Code of Criminal Procedure which 
obliges the investigating agency to hold, or confers a right upon 
the accused to claim a test identiﬁ cation parade. They do not 
constitute substantive evidence and these parades are essentially 
governed by Section 162 of the Code of Criminal Procedure. Failure 
to hold a test identiﬁ cation parade would not make inadmissible 
the evidence of identiﬁ cation in court. The weight to be attached 
to such identiﬁ cation should be a matter for the courts of fact. In 
appropriate cases it may accept the evidence of identiﬁ cation even 
without insisting on corroboration.” 
[Emphasis supplied]
48. 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.
921
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. 
49. In Prem Singh v. State of Haryana, (2011) 9 SCC 689, a two-Judge 
Bench of this Court expressed conﬂ icting opinion, H.S. Bedi, J. observed 
in para 19 as under:-
“19. … It must be borne in mind that it is impossible for an accused 
to prove by positive evidence that he had been shown to a witness 
prior to the identiﬁ cation parade but if suspicion can be raised by the 
defence that this could have happened, no adverse inference can be 
drawn against the accused in such a case.”
50. Gyan Sudha Misra, J. while disagreeing with H.S. Bedi, J. took 
the view that it is not open to accused to refuse to participate in the TIP. The 
learned Judge observed in para 27 as under:-
“27. In my considered view, it was not open to the accused to refuse 
to participate in the TI parade nor was it a correct legal approach for 
the prosecution to accept refusal of the accused to participate in the 
test identiﬁ cation parade. If the appellant-accused had reason to do 
so, specially on the plea that he had been shown to the eyewitnesses 
in advance, the value and admissibility of the evidence of TI parade 
could have been assailed by the defence at the stage of trial in order 
to demolish the value of the test identiﬁ cation parade. But merely 
on account of the objection of the accused, he could not
have been 
permitted to decline from participating in the test identiﬁ cation parade 
from which adverse inference can surely be drawn against him at least 
in order to corroborate the prosecution case.”
[Emphasis supplied]
51. Ultimately, the matter was heard by a three-Judge Bench in the case 
titled Prem Singh v. State of Haryana, (2013) 14 SCC 88, and the appeal 
ﬁ led by the convict was allowed. However, we do not ﬁ nd any discussion 
in the said judgment as regards the issue whether the accused can refuse to 
participate in the TIP. This Court on its own looked into the entire evidence 
and ultimately acquitted the appellant accused. 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
922
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
52. In Munna v. State (NCT of Delhi), (2003) 10 SCC 599, this Court 
took the view that if an accused himself refused to participate in the TIP, 
then it is not open to him to contend that the statement of the witnesses 
made for the ﬁ rst time should not be relied upon. The Court held as under:-
“10. In a case where an accused himself refuses to participate in a 
test identiﬁ cation parade, it is not open to him to contend that the 
statement of the eyewitnesses 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. This plea is 
available provided the prosecution is itself responsible for not holding a 
test identiﬁ cation parade. However, in a case where the accused himself 
declines to participate in a test identiﬁ cation parade, 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.”
[Emphasis supplied]
It is relevant to note that in the aforesaid decision, the accused in his 
statement under Section 313 CrPC had not stated that he had been shown 
to the witnesses at the police station. In the case on hand, it is the case of 
the appellant convict that he along with other co-accused was shown to 
the witnesses not only prior to the conduct of the TIP but even before
the 
identiﬁ cation in the Court.
53. In Ravindra Laxman Mahadik v. State of Maharashtra, 1997 
CriLJ 3833, in a case involving Section 395 of the CrPC, it was opined:-
“10. I ﬁ nd merit in Mr. Mooman’s submission that it would not be safe 
to accept the identiﬁ cation evidence of Manda Sahani. Manda Sahani 
in her examination-in-chief stated that on the place of the incident, 
there was no light. In her cross-examination (para 6) she stated that 
it was dark at the place of the incident but, slight light was emanating 
from the building situate on the shore. The distance between the 
building and the place where Manda Sahani and her husband were 
looted has not been unfolded in the evidence. The learned trial Judge 
has observed that the evidence of Vinod Sahani is that the incident
923
took place at a distance of about 100 ft from the Gandhi statue, where 
the meeting was held. What he wanted to convey was that hence there 
must have been light at the place of incident. In my view, on the face 
of the deﬁ nite statement of Manda that it was dark as there was only 
slight light, and bearing in mind that the incident took place at 9.30 
p.m. in the month of February, 1992, it would not be safe to conclude 
that there was suﬃ  cient light on the place of the incident enabling 
Manda Sahani to identify the appellant.” 
54. In Kanan & Ors. v. State of Kerala, AIR 1979 SC 1127, this 
Court held:-
“…It is well settled that where a witness Identiﬁ es an accused who 
is not known to him in the Court for the ﬁ rst time, his evidence is 
absolutely valueless unless there has been a previous T. I. parade to 
test his powers of observations. The Idea of holding T. I. parade under 
Section 9 of the Evidence Act is to test the veracity of the witness on 
the question of his capability to identify an unknown person whom 
the witness may have seen only once. If no T. I. parade is held then 
it will be wholly unsafe to rely on his bare testimony regarding the 
identiﬁ cation of an accused for the ﬁ rst time in Court. …” 
[Emphasis supplied]
55. In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi),
(2010) 6 SCC 1, this Court noticed the importance of TIP and logic behind 
it. It is the practice not borne out of procedure but out of prudence. In this 
case, this
Court has exhaustively examined the entire case law on the subject. 
It was observed:-
“254. Even a TIP before a Magistrate is otherwise hit by Section 
162 of the Code. Therefore to say that a photo identiﬁ cation is hit by 
Section 162 is wrong. It is not a substantive piece of evidence. It is 
only by virtue of Section 9 of the Evidence Act that the same i.e. the 
act of identiﬁ cation becomes admissible in court. The logic behind 
TIP, which will include photo identiﬁ cation lies in the fact that it is 
only an aid to investigation, where an accused is not known to the 
witnesses, the IO conducts a TIP to ensure that he has got the right 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
924
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
person as an accused. The practice is not borne out of procedure, 
but out of prudence. At best it can be brought under Section 8 of the 
Evidence Act, as evidence of conduct of a witness in photo identifying 
the accused in the presence of an IO or the Magistrate, during the 
course of an investigation.”
56. This Court has further referred to its earlier decisions which state:-
“256. The law as it stands today is set out in the following decisions 
of this Court which are reproduced as hereinunder:
Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC 631 : 2005 
SCC (Cri) 1269] : (SCC pp. 642-45, paras 16-17 & 19)
“16. As was observed by this Court in Matru v. State of U.P. 
[(1971) 2 SCC 75 : 1971 SCC (Cri) 391] identiﬁ cation tests 
do not constitute substantive evidence. They are primarily 
meant for the purpose of helping the investigating agency 
with an assurance that their progress with the investigation 
into the offence is proceeding on the right lines. The 
identiﬁ cation can only be used as corroborative of the 
statement in court. (See Santokh Singh v. Izhar Hussain 
[(1973) 2 SCC 406 : 1973 SCC (Cri) 828]) The necessity 
for holding an identiﬁ cation parade can arise only when 
the accused are not previously known to the witnesses. The 
whole idea of a test identiﬁ cation parade is that witnesses 
who claim to have seen the culprits at the time of occurrence 
are to identify them from the midst of other persons without
any aid or any other source. The test is done to check upon 
their veracity. In other words, the main object of holding 
an identiﬁ cation parade, during the investigation stage, 
is to test the memory of the witnesses based upon ﬁ rst 
impression and also to enable the prosecution to decide 
whether all or any of them could be cited as eyewitnesses of 
the crime. The identiﬁ cation proceedings are in the nature 
of tests and signiﬁ cantly, therefore, there is no provision 
for it in the Code and the Evidence Act. It is desirable that 
a test identiﬁ cation parade should be conducted as soon
925
as after the arrest of the accused. This becomes necessary 
to eliminate the possibility of the accused being shown 
to the witnesses prior to the test identiﬁ cation parade. 
This is a very common plea of the accused and, therefore, 
the prosecution has to be cautious to ensure that there 
is no scope for making such an allegation. If, however, 
circumstances are beyond control and there is some delay, 
it cannot be said to be fatal to the prosecution.
17. It is trite to say that the substantive evidence is the 
evidence of identiﬁ cation in court. Apart from the clear 
provisions of Section 9 of the Evidence Act, the position in 
law is well settled by a catena of decisions of this Court. The 
facts, which establish the identity of the accused persons, 
are relevant under Section 9 of the Evidence Act. As a 
general rule, the substantive evidence of a witness is the 
statement made in court. The evidence of mere identiﬁ cation 
of the accused person at the trial for the ﬁ rst time is from its 
very nature inherently of a weak character. The purpose of 
a prior test identiﬁ cation, therefore, is to test and strengthen 
the trustworthiness of that evidence. It is, accordingly, 
considered a safe rule of prudence to generally look for 
corroboration of the sworn testimony of witnesses in court 
as to the identity of the accused who are strangers to them, 
in the form of earlier identiﬁ cation proceedings. This rule 
of prudence, however, is subject to exceptions, when,
for 
example, the court is impressed by a particular witness on 
whose testimony it can safely rely, without such or other 
corroboration. The identiﬁ cation parades belong to the 
stage of investigation, and there is no provision in the Code 
which obliges the investigating agency to hold or confers 
a right upon the accused to claim a test identiﬁ cation 
parade. They do not constitute substantive evidence and 
these parades are essentially governed by Section 162 of the 
Code. Failure to hold a test identiﬁ cation parade would not 
make inadmissible the evidence of identiﬁ cation in court. 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]

926
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
The weight to be attached to such identiﬁ cation should be 
a matter for the courts of fact. In appropriate cases it may 
accept the evidence of identiﬁ cation even without insisting 
on corroboration. (See Kanta Prashad v. Delhi Admn. [AIR 
1958 SC 350:1958 Cri LJ 698], Vaikuntam Chandrappa 
v. State of A.P. [AIR 1960 SC 1340:1960 Cri LJ 1681], 
Budhsen v. State of U.P. [(1970) 2 SCC 128:1970 SCC 
(Cri) 343] and Rameshwar Singh v. State of J&K [(1971) 
2 SCC 715 : 1971 Cri LJ 638] )
× 
× 
× 
×
19. In Harbajan Singh v. State of J&K [(1975) 4 SCC 480 : 
1975 SCC (Cri) 545] , though a test identiﬁ cation parade was 
not held, this Court upheld the conviction on the basis of the 
identiﬁ cation in court corroborated by other circumstantial 
evidence. In that case it was found that the appellant and one 
Gurmukh Singh were absent at the time of roll call and when 
they were arrested on the night of 16-12-1971 their riﬂ es smelt 
of fresh gunpowder and that the empty cartridge case which 
was found at the scene of oﬀ ence bore distinctive markings 
showing that the bullet which killed the deceased was ﬁ red 
from the riﬂ e of the appellant. Noticing these circumstances 
this Court held : (SCC p. 481, para 4)
‘4. In view of this corroborative evidence we find no 
substance in the argument urged on behalf of the appellant 
that the investigating officer ought to have held an 
identiﬁ cation parade and that the failure of Munshi Ram 
to mention the names of the two accused to the neighbours 
who came to the scene immediately after the occurrence 
shows that his story cannot be true. As observed by this 
Court in Jadunath Singh v. State of U.P. [(1970) 3 SCC 518 
: 1971 SCC (Cri) 124] absence of test identiﬁ cation is not 
necessarily fatal. The fact that Munshi Ram did not disclose 
the names of the two accused to the villagers only shows that 
the accused were not previously known to him and the story 
that the accused referred to each other by their respective
927
names during the course of the incident contains an element 
of exaggeration. The case does not rest on the evidence of 
Munshi Ram alone and the corroborative circumstances to 
which we have referred to above lend enough assurance to 
the implication of the appellant.’ “
57. Applying the aforesaid principles of law as discernable from the 
various decisions referred to above, we may now proceed to look into the 
evidence on record so as to consider whether the conviction of the appellant 
convict for the alleged oﬀ ence is sustainable or not. 
EVALUATION OF EVIDENCE OF IDENTITY OF THE 
APPELLANT CONVICT
58. On 18.08.2008, an application was moved for conducting test-
identiﬁ cation parade of the co-accused persons, Vijay alias Kalia, Pawan 
Kumar, and Sharwan Kumar, to be identiﬁ ed by PW 4, before the MM, 
Shri Prashant Kumar who adjourned it for 20.08.08 and marked the same 
to MM, Shri Rajesh Kumar Goel i.e., PW 16 herein. 
59. On 20.08.2008, the PW 16 conducted the TIP in respect of co-
accused Vijay and Pawan Kumar, who were identiﬁ ed by PW 4.
60. On 30.08.2008, upon instructions of the IO, the PW 11 SI Kishan 
Lal, moved an application before the MM, Shri Prashant Kumar for ﬁ xing 
the TIP of the appellant convict along with co-accused Vijay, Pawan Kumar 
and Sharwan Kumar. The same was adjourned to 01.09.2008 and marked 
to PW 16.
61. On 01.09.2008, the TIP of the appellant convict along with co-
accused Vijay and Pawan Kumar was ﬁ xed for 02.09.2008, whereas
TIP of 
Sharwan Kumar was ﬁ xed for 03.09.2008.
62. On 02.09.2008 the MM/PW-16 conducted the TIP proceedings 
where co-accused Vijay and Pawan Kumar were to be identiﬁ ed by PW 1 
and the appellant convict was to be identiﬁ ed by PW 4. In the said TIP, all 
the accused persons refused to participate.
63. On 03.09.2008, PW 16 conducted TIP of co-accused Sharwan 
Kumar, to be identiﬁ ed by PW 1 and PW 4 resply wherein, the co-accused 
Sharwan Kumar refused to participate.
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
928
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
CHART OF THE TIPs CONDUCTED
S. 
No.
Date
TIP 
Conducted for
To be 
Identiﬁ ed 
by
Particulars
1.
20.08.08
(i) Vijay @ Kalia
(ii) Pawan Kumar
PW4
TIP conducted and PW4 identiﬁ ed 
the accused. (Ex.PW4/B) & (Ex.
PW4/C)
2.
02.09.08
(i) Vijay @ Kalia
(ii) Pawan Kumar
PW1
Both Refused TIP.
(Ex.PW8/B – Vijay @ Kalia)
(Ex.PW8/C – Pawan)
3.
02.09.08
(iii) Mukesh Singh 
(Appellant)
PW4
Refused TIP
(Ex.PW8/A – Mukesh)
(Appellant)
4.
03.09.08
(iv) Sharwan Kumar
PW1 & 
PW4
Refused TIP
(Ex.PW8/E – Sharwan)
64. Remarkably, while the co-accused; Vijay and Pawan Kumar 
initially participated in the TIP on 20.08.2008, but thereafter all the accused 
persons including the appellant convict herein refused to participate in the 
TIP. In their further statements recorded under Section 313 of the CrPC, 
all of them gave the explanation that they refused to participate as they had 
already been shown to the witnesses in the police station. Moreover, it is 
the speciﬁ c case of the appellant convict herein, that he refused the TIP as 
he was to be identiﬁ ed by PW4 who was a got up witness.
65. Later, on 15.09.2008, the PW 1 and PW 4 who had gone to 
meet the police oﬃ  cials at the Rohini Court complex, identiﬁ ed all the 
accused persons, who were produced before the Metropolitan Magistrate 
in connection with the present case.
66. The PW 1 Sushil Kumar in his examination in chief has stated thus:-
“I had identiﬁ ed the accused persons on 15.9.2008 in
the Rohini 
Court Complex, when the accused persons were produced in the 
same Court.”
67. The PW 11 SI Kishan Lal who at the relevant time was posted 
as Sub-Inspector in the Adarsh Nagar Police Station in his examination in 
chief as stated thus:-
929
“On 15.9.2008 I alongwith SHO Ram Chander came to the court and 
there we met PWs Sushil and Pradeep and they had identiﬁ ed all the 
four accused who were produced in the court for taking the judicial 
custody. PWs pointed out towards the accused Pawan and Sharwan 
that they had surrounded Sushil and Pappu and they pointed out 
towards accused Mukesh and Vijay and told that Mukesh had taken 
out the money from the pocket of Sushil and Vijay had taken out money 
from Pappu and they had attacked on them with ice picks on 16.8.2008. 
IO recorded their statements.”
68. Thus, from the oral evidence of the PW 1 and the PW 11, it is 
evident that the PW 1 (injured eye witness) had the opportunity to see the 
accused persons when they were present at the Rohini Court Complex. 
When the PW 11 says that the witnesses were able to identify all the four 
accused at the time when they were produced in the court for taking them 
into judicial custody, the same should be understood as conveying that as an 
investigating oﬃ  cer, he took a chance to get the accused persons identiﬁ ed 
through the witnesses. Indisputably, it was not a regular identiﬁ cation in 
accordance with law. 
69. The appellant convict argues that the only substantive evidence 
against him is in the form of his identiﬁ cation by the PW 1 before the Trial 
Court. He says that there is no question of drawing any adverse inference 
against him for refusing to participate in the TIP because from day one, he 
had been
saying that the witnesses had seen the accused persons. He further 
says 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 worth the name to hold him guilty for the alleged 
crime. On the other hand, the State says that although the witnesses had a 
chance to see the accused persons on 15.09.2008 when they were present 
at the Rohini Court Complex, but that, by itself, is not a suﬃ  cient or a good 
ground to discard the substantive evidence of identiﬁ cation before the Trial 
Court. The State wants us to draw adverse inference against the appellant 
convict as he had refused to participate in the TIP and at the same time also 
wants us to accept the identiﬁ cation of the appellant by the PW 1 before 
the Trial Court. The State further says that the PW 1 being an injured eye 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
930
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
witness had an opportunity of having more than a fair glimpse of the four 
accused persons including the appellant convict and, therefore, irrespective 
of the fact that the PW 1 had an opportunity to see the appellant convict on 
15.09.2008 at the Rohini Court Complex, the identiﬁ cation before the Trial 
Court should be accepted. 
70. The evidence of PW 1 Sushil Kumar regarding the occurrence 
that took place on 16.08.2008 early in the morning at 3.30 is fully 
supported by the medical evidence on record. The PW 1 along with the 
deceased was immediately taken for medical attention. The deceased was 
found to have suﬀ ered multiple injuries in the form of punctured wounds 
caused by a sharp pointed weapon. The PW 1 was also found to have 
suﬀ ered two injuries and one of those was in the form of a punctured 
wound in the chest caused by a sharp pointed weapon. Considering the 
nature of injuries suﬀ ered by the PW 1 and the deceased and the fact that 
the PW 1 and the deceased were cornered by the accused persons and 
further that they were robbed of their money, the entire incident could 
certainly have aﬀ orded suﬃ  cient time and opportunity to the PW 1 to 
recall and identify the assailants including the appellant convict herein. 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 identiﬁ ed for the ﬁ rst time
before the Trial Court, would not 
be a reason to discard the evidence of the witness. As held by this Court 
in the case of Munna (supra), that 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. It will be 
too much for us to say that the PW 1 was able to identify the accused 
convict for the ﬁ rst 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
931
more than a fair glimpse of the assailants at the time of the incident and 
on the strength of the same, the PW 1 identiﬁ ed the appellant convict 
as one of the assailants. 
71. We deem it appropriate to refer to the factors which are to be 
considered for in-Court identiﬁ cation and were relied by the American 
Supreme Court in John R. MANSON, Commissioner of Correction of 
Connecticut v. Nowell A. BRATHWAITE reported in 432 U.S. 98 (1977), 
where while referring to its earlier decision in William S. NEIL, Warden v. 
Archie Nathaniel BIGGERS, reported in 409 U.S. 188 (1972), it held that 
reliability is the linchpin in determining the admissibility of identiﬁ cation 
testimony and the factors to be considered are: the opportunity of the 
witness to view the criminal at the time of the crime; the witness’ degree 
of attention; the accuracy of his prior description of the criminal; the level 
of certainty demonstrated at the confrontation, and the time between the 
crime and the confrontation.
72. In the aforesaid context, we should also look at the line of reasoning 
assigned by the High Court. In para 37 of the impugned judgment, the High 
Court took into consideration the site plan Ex. PW-8/A. The site plan was 
looked into to ascertain whether there was suﬃ  cient light at the place of the 
occurrence or not. In this regard, the High Court held as under:-
“37. One of the contentions raised by counsel for the appellant Vijay 
was that there were no suﬃ  cient lights
at the place of incident and this 
is apparent from the fact that in the site plan proved on record as Ex. 
PW8/A, existence of any such lights have not been shown. Contention 
of learned counsel for the appellant was that in the absence of any 
light being there PW-1 could not have seen any of the assailants, and 
later recognised them as being the actual perpetrators of the crime. 
This contention raised by counsel for the appellant Vijay Kumar is 
devoid of any merit as PW-1 in his testimony categorically stated that 
there was suﬃ  cient street light with yellow colour lamps being lit 
around to see the faces of the assailants. PW-1 also deposed that the 
accused persons had not covered their faces at the time of occurrence. 
In his cross-examination he denied the suggestion that it was pitch 
dark at the spot of occurrence or that he could not have seen any of 
the assailants. With such clear stand taken by PW-1 that there was 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
932
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
suﬃ  cient street light to see the faces of the assailants, we ﬁ nd no merit 
in the said contention raised by counsel for the appellant Vijay. Even 
otherwise in the scaled site plan proved on record as Exhibit PW-8/A 
at point C, D and E the position of lights as were existing at the site 
have been duly shown.” 
[Emphasis supplied] 
73. In para 41 of the impugned judgment, the High Court has discussed 
about the identity of the accused persons. Para 41 reads thus:-
“41. Learned counsel for the appellant laid much emphasis on 
the contention that the prosecution has utterly failed to prove the 
involvement of these appellants in the commission of the said crime 
through any cogent and clinching evidence. As per the counsel for 
appellant, PW-1 failed to give description of these assailants to the 
police in his ﬁ rst statement and he could recognise the assailants 
only at the time of his deposition in court after these assailants were 
shown to him by the police. Counsel also justiﬁ ed the refusal of the 
appellants to participate in the Test Identiﬁ cation Parade conducted 
on 02.09.08 because of they being already shown to PW-1 by the 
police. This contention raised by counsel for the appellant lacks any 
merit. There can be no dispute that one of the important task of the 
investigation is to apprehend the real and actual culprit of the crime. 
The Investigation which is carried out by the Investigating Oﬃ  cer and 
his team
should be judicious, fair, independent, transparent, totally 
uninﬂ uenced by any extraneous factors. There should not be undue and 
undesirable delay in the investigation of any crime as any slackness 
in the investigation can always prove fatal. The entire pursuit of any 
criminal trial is to see that no innocent man is punished and no guilty 
man goes scot free. PW-1, in his very ﬁ rst statement categorically 
stated that he can recognise all the four assailants if brought before 
him. While giving his statement in court, he could easily identify all 
these four assailants who were present in the court. He speciﬁ cally 
pointed out to the two accused persons who had snatched money from 
his pocket and the other two who were armed with ice pricks and started 
attacking him and the deceased Pappu. In his cross-examination, he 
also stated that the person who stabbed him was dark in complexion
933
and had a cut mark on his face. It would be therefore seen that right 
from the ﬁ rst statement, the stand of PW-1 had been that he can identify 
the assailants and in fact he had identiﬁ ed them when they were also 
present at the time of his deposition in court. The refusal of these 
assailants to participate in the test identiﬁ cation parade proceedings 
thus goes against them. The trial court is correct in taking a view that 
the onus shifted on the accused persons to prove on record that their 
photographs were shown to PW-1 prior to the holding of the said test 
identiﬁ cation parade. PW-1 is quite candid in stating in his court 
deposition that he had seen these assailants on 15th September 2008 
when they were produced in a court at Rohini Courts Complex. In this 
background, it is diﬃ  cult to accept the argument of counsel for the 
appellant that the prosecution had failed to establish the identity of 
these assailants who committed the said crime.”
[Emphasis supplied]
74. In para 42, the High Court elaborated further the issue of 
identiﬁ cation. Para 42 reads thus:-
“42. Learned counsel for the appellant – Mukesh was quite emphatic 
in his contention that PW-1 in his cross examination admitted the fact 
that he had clearly seen the face of one assailant, who stabbed him 
and this deposition of PW-1 clearly meant that he was stabbed by 
the assailant to whom he described as person with dark complexion 
having a cut mark on his face and therefore, Mukesh had no
role in the 
commission of the said crime. The court has to take an overall view 
of the entire testimony of a witness, which includes his examination in 
chief as well as his cross examination. PW-1 while giving his evidence 
in examination in chief, had clearly identiﬁ ed all the four accused 
persons being the assailants who were involved in the said incident 
and in cross examination he merely said that he had clearly seen the 
face of only one assailant who stabbed him. The said statement of 
PW-1 in his cross examination can lead to only one inference that so 
far as the face of one assailant was concerned, he could see him with 
more clarity, but that would not mean that he did not see the faces of 
the other assailants or he was not in a position to identify the other 
assailants, may be with the help of their other descriptions including 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
934
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
their height, gait and manner of walking, etc. We also cannot subscribe 
to the said contention raised by counsel for these appellants as we 
ﬁ nd no reason for PW-1 to implicate these persons to save the actual 
culprits of the said crime. We thus ﬁ nd no force in the above contention 
raised by counsel for the appellant.”
[Emphasis supplied]
75. Although the appellant convict 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 oﬀ ering such an explanation. It is true 
that the explanation that the accused may oﬀ er 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 suﬃ  cient.
76. The matter does not rest over here. There is something more 
against the appellant convict. It appears that the appellant was arrested on 
20.08.2008. At the time of his arrest, he is said to have made a disclosure 
statement recorded in Ex. PW10/A. The statement was one relating to the 
weapon of oﬀ ence i.e. ice pick which was ultimately discovered from his 
house. The proceedings recorded
in regard to the actual discovery of the 
ice pick is in the form of Ex. PW10/V. The statement is said to have been 
made by the appellant convict before the PW 10 SI Arvind Pratap Singh 
which led to the discovery of the fact i.e. the discovery of the ice pick. The 
PW 10 in his examination in chief has deposed as under:-
“On 20-8-2008 in the evening I along with Inspt. Ram Chander and Ct. 
Baljit proceeded for investigation and when we reached at Out Gate, 
Azadpur Mandi then informer met us there and he told that the fourth 
accused wanted in this case is present behind the onion shed near 
Mall Godown, if raided he can be apprehended. On this information 
IO asked 4-5 public persons to join the investigation but none agreed 
and went away without telling their names and addresses. Thereafter, 
we along with secret informer reached behind the inion shed near 
Railway Track, Mall Godown and from there at the pointing out the
935
secret informer we apprehended accused Mukesh Singh, whose name 
came to know after inquiry and who is present in the court today. He 
was interrogated and arrested vide memo Ex. PW10/R and his personal 
search was conducted vide Ex. PW10/S both bearing my signatures 
at point A and he made disclosure statement Ex. PW10/T bearing my 
signatures at point A. The accused was kept in muﬄ  ed face. Thereafter 
accused took us at the spot i.e. D block corner Azadpur Mandi, 
Opposite STD PCO Shop and pointed out the place of occurrence 
vide pointing out memo Ex. PW10/U bearing my signatures at point 
A. Thereafter accused took us at his house i.e. H.No. 101, Ravi Dass 
Colony, Sarai Peepal Thala & he took us in a room at the ground ﬂ oor 
and taken out Rs. 7,000/- from an iron box and one ice pick (SUA) 
and handed over to Inspt. Ram Chander and told that this sum of Rs. 
7,000/- is remaining amount out of looted amount of Rs. 14,800/-. 
He also informed that the ice pick was the same with which he had 
inﬂ icted injury to the victim. Rs. 7,000/- consists of seven currency 
notes of Rs.1000 denomination. The same were put into an envelope 
and sealed with the seal of RCS and seized vide memo Ex. PW10/V 
bearing my signatures at point A. IO prepared the sketch of the ‘Sua’ 
and measured the same. It was found to be having length of 22.5 cm, 
the length of the prick was 12 cm and the length of the handle was 
10.5 cm. The sketch is Ex. PW10/W bearing my signatures at point 
A.
The same was put into pullanda and sealed with the seal of RCS 
and seized vide memo Ex.PW10/X bearing my signatures at point A. 
Seal after use was handed over to Ct. Baljit and after completing the 
investigation accused was brought to PS and accused were sent to 
lockup and case property was deposited in the malkhana.” 
[Emphasis supplied]
77. Thus the aforesaid is one additional circumstance pointing towards 
the guilt of the appellant and at the same time lending credence to the 
substantive evidence of his identiﬁ cation by PW 1 before the Trial Court. 
78. Even if we have to discard the evidence of discovery on the ground 
that no independent witnesses were present at the time of discovery, still the 
fact that the appellant herein led the police party to his house and handed 
over the ice pick used at the time of the assault, would be reﬂ ective of his 
MUKESH SINGH v. THE STATE (NCT OF DELHI) 
[J. B. PARDIWALA, J.]
936
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
conduct. By virtue of Section 8 of the Evidence Act, the conduct of an 
accused is relevant, if such conduct inﬂ uences or inﬂ uenced by any fact in 
issue or relevant fact. 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 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.
79. In the overall view of the matter, we have reached to the conclusion 
that it is diﬃ  cult for us to say that the prosecution has not been able to 
establish its case against the appellant convict beyond a reasonable doubt. 
We are convinced with 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.
80. In the result, this appeal fails and is hereby dismissed.
81. In the course of the hearing of this appeal, it was brought to the 
notice of this Court that the appellant hails from a very poor family and 
is undergoing sentence past more than sixteen
years. In other words, he 
has been in jail for the past sixteen years. We grant liberty to the appellant 
herein to ﬁ le a representation addressed to the competent authority of the 
State (NCT of Delhi) for premature release. If any such representation is 
preferred by the 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 the policy prevailing at the 
time of commission of the oﬀ ence as regards remission within a period 
of two months from the date of receipt of such representation and further 
communicate the same to the appellant in writing without fail. 
Headnotes prepared by:  
Appeal dismissed.
Ankit Gyan