Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has summarised the principles relating to conduct of a Test Identification Parade (TIP) and has held that

“… the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

The Court was hearing a case where two men were convicted for killing a final year LLB student of Maharishi Dayanand University, Rohtak under Section 302 read with Section 34 of the India Penal Code and have been sentenced to imprisonment for life. The appellants had refused to undergo a TIP and it was contended that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP.


Test Identification Parade: Principles summarised


  1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification 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;
  2. There is no specific provision either in the CrPC or the Indian Evidence Act, 1872 which lends statutory authority to an identification parade. Identification 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;
  3. Identification parades are governed in that context by the provision of Section 162 of the CrPC;
  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;
  5. The identification of the accused in court constitutes substantive evidence;
  6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act;
  7. A TIP may lend corroboration to the identification of the witness in court, if so required;
  8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ identification of the accused in court, in the form of earlier identification 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;
  9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible;
  10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case;
  11. Identification 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; and
  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 finding in regard to the guilt of the accused.

Examination of ballistics expert – When not necessary


The failure of the prosecution in a given case, to examine a ballistics expert has to be assessed bearing in mind the overall context of the nature of the evidence which is available. When direct evidence of an unimpeachable character is available and the nature of injuries is consistent with the direct evidence, the examination of a ballistics expert need not be insisted upon as a condition to the prosecution proving its case. On the other hand, where direct evidence is not available or there is doubt in regard to the nature of that evidence, the failure to examine the ballistic examiner would assume significance.


Discussion and ruling on facts


Scrutinising the evidence in the present case, the Court noticed the following aspects:

  • PW4, deceased’s father, in the course of his cross examination stated that the deceased had been facing trial in 2-3 cases and that he was a surety for his son. He claimed to be ignorant of the fact that the deceased was a coaccused with one of the appellants Rajesh, under Sections 454 and 380 of the, inspite of being the deceased’s surety in the same.
  • Similarly, PW5, deceased’s brother, during the course of his cross-examination, professed that he did not know whether the deceased was the co-accused with Rajesh. But he later deposed that, that he and his father PW4 used to go to court when Sandeep and Rajesh were being produced on various dates of hearing.

The Court, hence, noticed that 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 PW4, who is a prime eye-witness, 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, the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade. 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.”

Further noticing that the prosecution has failed to establish its case beyond reasonable doubt, the Court acquitted the appellants, giving them the benefit of doubt. The appellants have already undergone over 12 years of imprisonment. The Court, hence, directed that they shall be released and their bail bonds be cancelled unless they are wanted in connection with any other case.

[Rajesh v. State of Haryana,  2020 SCC OnLine SC 900, decided on 03.11.2020]


*Justice DY Chandrachud has penned the judgment 

Case BriefsHigh Courts

Punjab and Haryana High Court: On failure of the plaintiff to appear in the witness box and produce the record, a Single Judge Bench comprising of Anil Kshetrapal, J. dismissed his claim for recovery of money from the defendants by setting aside the judgment and order of the Courts below which allowed the claim of the plaintiff.

The plaintiff submitted that he placed an order with the defendants for the purchase of steel ingots and he gave an advance of Rs 2,00,000 for the same. The petitioner alleged that the said material had not been supplied to them. They, therefore, claimed recovery of the amount with interest. The defendants submitted that they had supplied the ingots to the plaintiff and they produced invoice and receipts of the same in evidence. However, the courts below decreed the suit in favour of the plaintiff. The defendants filed the instant appeals against the decision of the courts below.

After considering the entire record, the High Court observed that, “It is well settled that the plaintiff has to stand on his own legs.” The plaintiff was required to appear in the witness box and produce the record in their possession that would prove that the defendants did not supply the ingots for which an advance was paid by the plaintiff. However, the plaintiff failed to do so, which gave rise to an adverse inference against their claim. On the other hand, the material produced by the defendants proved that they had supplied ingots to the petitioner which was duly received by them. The Court held that in the instant case, the plaintiff failed to stand on their own legs. Therefore, the appeal filed by the defendants were allowed and the judgment of the courts below decreeing the suit of the petitioner were set aside. [Garg Concast Ltd. v. Satnam Singh, 2018 SCC OnLine P&H 570, order dated 1-3-2018]

Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Ajay Rastogi, CJ, dismissed a revision petition filed against the order of the trial Judge whereby he refused the application filed by the petitioner-plaintiff for seeking expert opinion to prove medical negligence against the respondent-defendant.

A case was filed by the plaintiff against the defendants (doctors) alleging medical negligence against them. The defendants filed written statements and thereafter, an application was moved by the plaintiff for referring the matter for expert opinion from the doctors of AIIMS or Christian Medical College, Vellore. The trial Judge, without allowing the said application, directed the matter to be listed for cross-examination. The plaintiff filed the instant revision against Order of the trial Judge. The High Court observed that the plaintiff moved the said application on the ground that the experts belonged to the same fraternity as that of the defendant doctors and therefore nobody would come forward against them; thus direction was sought from the Court to summon for expert opinion. The Court held that the plaintiff drew her own impression that no expert would opine on the matter. Her suspicion was without any foundation. The Court held that the defendants, who were professionals, were discharging legal duty to the public and no inference could be perceived by the Court on basis of plaintiff’s mere perception. Accordingly, the instant petition was dismissed. [Prabati Das v. State of Tripura, 2018 SCC OnLine Tri 60, order dated 3-5-2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, Amitava Roy and AM Khanwilkar, JJ held that a public servant facing charge of criminal misconduct, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, of pecuniary resources or property disproportionate to his known sources of income.

The bench held that the primary burden to bring home the charge of criminal misconduct is indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence.

In the case where the appellant had challenged the Madhya Pradesh High Court’s order convicted him under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 by drawing adverse inference without any conclusive proof, the Court, setting aside his conviction, said that the appellant must be given a benefit of doubt. The Court said that the prosecution, to succeed in a criminal trial, has to pitch its case beyond all reasonable doubt and lodge it in the realm of “must be true” category and not rest contended by leaving it in the domain of “may be true”. [Vasant Rao Guhe v. State of Madhya Pradesh, 2017 SCC OnLine SC 893, decided on 09.08.2017]

Case BriefsSupreme Court

Supreme Court: The Bench of P.C. Ghose and R.F. Nariman, JJ held that any person can be directed to give his finger prints or foot-prints for corroboration of evidence but the same cannot be considered as violation of the protection guaranteed under Article 20(3) of the Constitution of India. The Court however, added that non-compliance of such direction of the Court may lead to adverse inference, nevertheless, the same cannot be entertained as the sole basis of conviction.

In the present case, where a man was accused of killing his father-in-law, mother-in-law, their daughters and a pet dog, the State had appealed against the order of the Allahabad High Court where the co-accused was acquitted on the ground that adverse inference cannot be drawn by the Court on refusal to give specimen palm impression in spite of the order of the Court.

Prosecution had contended that human blood was found on the weapon of murder and clothes of both the accused and since comparison of finger-prints and foot-prints were not clear, the Trial Court directed both the accused to give fresh foot-prints and finger-prints. The counsel appearing for the co-accused contended that drawing adverse inference against the co-accused due to his refusal to give specimen palm impression was not justified as earlier palm impression report came in negative and application moved by the co-accused praying for sending footprints and fingerprints to some other laboratory was rejected by the Trial Court.

Upholding the decision of the High Court, the Court said that the basic foundation of the prosecution had crumbled down in this case by not connecting the co-accused with the incident in question. And when basic foundation in criminal cases is so collapsed, the circumstantial evidence becomes inconsequential. In such circumstances, it is difficult for the Court to hold that a judgment of conviction could be founded on the sole circumstance that recovery of weapon and other articles have been made. [State of U.P. v. Sunil, 2017 SCC OnLine SC 520, decided on 02.05.2017]

High Courts

Himachal Pradesh High Court: In an appeal concerning ownership of land by a sale deed, T.S. Chauhan, J, relying on previous judgments of the Supreme Court, High Courts and Privy Councils, reiterated the fact that if a party to a case, who could enunciate the real facts, abstains from entering the witness box, an adverse inference could be drawn against such party according to Section 114 of the Evidence Act, 1872. In the present case one of the defendants had made two sales of the same property, one in 1987 and the other in 2000, and filed a written oath supporting the second sale but he did not appear in the witness box. The Court considered the second sale deed as a fraud and said that the non-appearance of the witness demolishes the case of the appellants and thus dismissed the appeal.Neeraj v. Raj Kumari, RSA No. 163 of 2014, decided on 22 April, 2014

To read the full judgment, click here