Holding

Test identification parades are not substantive evidence but may be used as corroborative evidence, and a Section 27 confession is admissible only to the extent it distinctly leads to the discovered fact; the appellant’s challenges were rejected.

Summary

The case arose from a robbery‑murder where the victim’s shop‑assistant (PW‑1) and other eyewitnesses identified four accused persons, including the appellant, after a test identification parade (TIP) and a confession obtained under Section 27 of the Evidence Act. The appellant challenged the conviction on three grounds: that the TIP had no evidentiary value, that the Section 27 confession was inadmissible because the fact discovered was from an open space, and that PW‑1, being a relative of the deceased, should be excluded as a biased witness. The Supreme Court held that a TIP is not substantive evidence but may be used as corroborative evidence under Section 9 of the Evidence Act, and that failure to hold a TIP does not render identification evidence inadmissible. It further clarified that Section 27 admits only the portion of information that "distinctly" leads to the discovery of a fact, and that the open‑space discovery in this case satisfied the statutory requirements. The Court also ruled that a witness’s relationship to the victim does not automatically disqualify his testimony; such evidence must be assessed with caution. Consequently, the convictions were upheld and the appeal dismissed.

Issues considered

The evidentiary value of identification through a test identification parade under Section 9 of the Evidence Act and Section 162 CrPC.
The admissibility of a confession under Section 27 of the Evidence Act when the fact discovered is from an open space.
Whether a witness related to the deceased should be excluded as biased under the Evidence Act.

Legislation cited

Arms Act, 1950s. 27, s. 3, s. 5
Code of Criminal Procedure, 1973s. 162
Indian Evidence Act, 1872s. 27, s. 3, s. 9

Subjects

test identification paradeidentification evidenceSection 27 Evidence Actconfession admissibilitywitness biascorroborationCrPC Section 162IPC offencesArms Act

Judgment

...
'
. ~
AMITSINGH BHIKAMSING THAKUR
v.
STATE OF MAHARASHTRA
A

JANUARY 5, 2007

[DR. ARIJIT PASA YAT AND LOKESHWAR SINGH PANTA, JJ.] B

Evidence Act, 1872:

s.3-Testimony of relative-Evidentiary value of-Held, can be relied
upon-However evidence of such witness to be assessed with caution. C
s.9-Test Identification Parade-Object of-Held, is to test the memory
of witnesses based upon first impression-It is desirable that TIP is
conducted soon after arrest of the accused-However, if circumstances are
beyond control, delay to hold TIP not fatal to prosecution-Code of
D
Criminal Procedure, 1973-Section 162.

s.27-Requirements of-Elucidated.

Words and Phrases-"Fact discovered"-Meaning of
E
PWl used to work with the deceased in his shop. According to the
prosecution, on the fateful night when PWl and the deceased were returning
home after closing shop, the four accused persons approached them and
demanded the cash bag being carried by the deceased. The threat was
followed by firing of bullet at the deceased on his chest from close range.
F
The assailants thereafter fled on a motorcycle which had been stolen hours
earlier from a parking area. The Trial Court primarily relying upon the
evidence of PWl and two other witnesses convicted all the four accused
under ss.396, 506, 341, 379 r/w. s.120-B, IPC. High Court upheld the
conviction of Appellant-accused and one co-accused while acquitting the
remaining two accused. G

In appeal to this Court the conviction of Appellant was challenged on
various grounds viz. (1) that identification of the accused through a test
identification parade had no legal value; (2) that the so caJled confession
had no evidentiary value since it was extracted under duress and also H
191
19'2 SUPREME COURT REPORTS [2007] 1 S.C.R.

A because discovery in terms of Section 27 of the Evidence Act had been made
from an open space. It was further contended that PWl was related to the
deceased and hence his evidence should be rejected.

Dismissing the appeal, the Court
i
B HELD: 1.1. Identification 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 identification can only be used
as corroborative of the statement in court. [Para 14] [199-E] r
c
1.2. The necessity for holding an identification parade can arise only
when the accused are not previously known to the witnesses. The whole idea
of a test identification 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 \
D upon their veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to test the memory _,_
-~
of the witnesses based upon first impression and also to enable the
prosecution to decide whether all or any of them could be cited as
eyewitnesses of the crime. The identification proceedings are in the nature
E of tests and significantly, therefore, there is no provision for it in CrPC,
1973 and the Indian Evidence Act, 1872. It is desirable that a test
identification 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 identification parade. This
is a very common plea of the accused and, therefore, the prosecution has
F
to be cautious to ensure that there is no scope for making such allegation. -+
If, however, circumstances are beyond control and there is some delay, it
cannot be said to be fatal to the prosecution. [Para 14] [199-F-H, 200-A-B)

1.3. The (acts, which establish the identity of the accused persons, are
G 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 identification of the accused person at the trial for the
first time is from its very nature inherently of a weak character. The -+-
purpose of a prior test identification, therefore, is to test and strengthen
H the trustworthiness of that evidence. It is accordingly considered a safe
·-1
AMITSINGH BHIKAMSING THAKUR v. STATE 193

.... 1 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
A
to them, in the form of earlier identification 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 identification parades belong to
the stage of investigation, and there is no provision in the Code which
B
obliges the investigating agency to hold or confers a right upon the accused
\ to claim, a test identification parade. They do not constitute substantive
evidence and these parades are essentially governed by Section 162 of the
Code. Failure to hold a test identification parade would not make inadmissible
the evidence of identification in Court. (Para 151 (200-C-FJ c
1.4. No doubt much evidentiary value cannot be attached to the
identification of the accused in Court where identifying witness is a total
stranger who had just a fleeting glimpse of the person identified or who had
no particular reason to remember the person concerned, ifthe identification
D
is made for the first time in Court. fPara 191 (202-F]
~
. Matru v. State of U.P (1971) 2 SCC 75; Santokh Singh v. Izhar
Hussain, (1973) 2 SCC 406; Kanta Prashad v. Delhi Administration, AIR
(19581 SC 350; Vaikuntam Chandrappa and Others v. State of Andhra
Pradesh, AIR fl 9601 SC 1340; Budhsen and Another v. State of U.P., AIR E
(1970] SC 1321 and Rameshwar Singh v. State ofJammu and Kashmir, AIR
[1972] SC 102, relied on.

Jadunath Singh and Another v. The State of Uttar Pradesh, [1970] 3
SCC 518; Parkash Chand Sogani v. The State of Rajasthan, (Criminal
..., . F
Appeal No. 92of1956 decided on January 15, 1957; Harbhajan Singh v.
State ofJammu and Kashmir, (1975] 4 SCC 480; Ram Nath Mahto v. State
of Bihar, [1996] 8 SCC 630; Suresh Chandra Bahri v. State of Bihar,
[1995] Supp 1 SCC 80; State of Uttar Pradesh v. Boota Singh and Others,
[1979] 1 SCC 31; Ramanbhai Naranbhai Patel and Others v. State of
Gujarat, [2000] 1 SCC 358 and Malkhansingh and Others v. State of MP. G
[2003) 5 sec 746, referred to.

2.1. So far as the discovery under Section 27 of the Evidence Act is
concerned it appears to be from open space. (Para 25] (205-A]
H
1--

194 SUPREME COURT REPORTS [2007] 1 S.C.R.
_,_.
A 2.2. The expression "provided that" in Section 27 of the Evidence Act
together with the phrase "whether it amounts to a confession or not" show
I
.....
that the Section is in the nature of an exception to the preceding provisions
particularly Sections 25 and 26. It is not necessary in this case to consider
if this Section qualifies, to any extent, Section 24, also. It will be seen that
the first condition necessary for bringing this Section into operation is the
B discovery of a fact, albeit a relevant fact, in consequence of the information
received from a person accused of an offence. The second is that the
discovery of such fact must be deposed to. The third is that at the time of >-
the receipt of the information the accused must be in police custody. The
last but the most important condition is that only "so much of the
c information" as relates distinctly to the fact thereby discovered is admissible.
The rest of the information has to be excluded. The word "distinctly" means
"directly", "indubitably", "strictly", "unmistakably". The word has been
advisedly used to limit and define the scope of the probable information. The
phrase "distinctly" relates "to the fact thereby discovered" and is the
linchpin of the provision. This phrase refers to that part of the information
D
supplied by the accused which is the direct and immediate cause of the
discovery. The reason behind this partial lifting of the ban against
confessions and statements made to the police, is that if a fact is actually
.. -f

discovered in consequence of information given by the accused, it affords
some guarantee of truth of that part, and that part only, of the information
E which was the clear, immediate and proximate cause of the discovery. No
such guarantee or assurance attaches to the rest of the statement which
may be indirectly or remotely related to the fact discovered.
(Para 29) [206-R-F)

2.3. The expression "fact discovered" in Section 27 includes not only
F the physical object produced, but also the place from which it is produced -· -+-

and the knowledge of the accused as to this. [Para 30) [206-G]

2.4. The various requirements of Section 27 can be summed up as
follows:
G (1) The fact of which evidence is sought to be given must be relevant
to the issue. It must be borne in mind that the provision has nothing to
do with question of relevancy. The relevancy of the fact discovered must be
established according to the prescriptions relating to relevancy of other ---
evidence connecting it with the crime in order to make the fact discovered ~
H admissible.
~
I

AMITSINGH BHIKAMSil'1G THAKUR v. STATE 195

(2) The fact must have been discovered. A
(3) The discovery must have been in consequence of some information
received from the accused and not by accused's own act.

(4) The persons giving the information must be accused of any
offence. B

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of information received
from an accused in custody must be deposed to. C

{7) Thereupon only that portion of the information which relates
distinctly or strictly to the fact discovered can be proved. The rest is
inadmissible. [Para 31) [207-A-E)

2.5. It can seldom happen that information leading to the discovery of
D
a fact forms the foundation of the prosecution case. It is one link in the
"
... chain of proof and the other links must be forged in the manner allowed
by law. [Para 32) [207-F)

Udai Bhan v. State of Uttar Pradesh, AIR (1962) SC 1116 and K. E
Chinnaswamy Reddy v. State of Andhra Pradesh and Another, (1962) SC
1788; Mohammed Inayuttillah v. The State of Maharashtra, AIR (1976) SC
483 and Prabhu v. State of Uttar Pradesh, AIR (1963) SC 1113, relied on.

Anter Singh v. State of Rajasthan, [2004] 10 SCC 657 and Pulukuri F
Kotayya v. Emperor, AIR (1947) PC 67, referred to.

3. When the evidence of PWl and the identifications made at the Test
Identification Parade and discovery in terms of Section 27 are considered,
conclusions of the Trial Court, so far as affirmed by the High Court, do
not suffer from any infirmity. The plea of the appellant that PW 1 was G
related to the deceased and therefore his evidence should be rejected, is
clearly without substance. Relationship would not result in the mechanical
rejection of the testimony of the witnesses. Settled norms of appreciation
of evidence required that the evidence of such witnesses is to be assessed
with caution. In the instant case the Trial Court has analysed the evidence H
196 SUPREME COURT REPORTS (2007] l S.C.R.

A with care and caution and the High Court has also done so. Above being
the position the plea relating to alleged interestedness of the witnesses has
also no substance. (Para 33) (207-G-H, 208-A-B)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 13 of
2007.
B
From the Final Judgment and Order dated 5.8.2005 of the High Court
of Judicature of Bombay, Bench at Aurangabad in Cr!. A. No. 289/200 l.

Shekhar Prit Jha, Bipin Kumar Jha and A.K. Tiwari Advs. for the
C Appellant.

V.N. Raghupathy Adv. for the Respondent.

The Judgment of the Court was delivered by

D DR. ARIJIT PASAYAT, J.: Leave granted.

2. Appellant calls in question legality of the judgment rendered by a
Division Bench of the Bombay High Court Aurangabad Bench. By the
impugned judgment, the High Court dismissed four appeals which arose out
E of a common decision against them. All four accused before the High Court
were tried by learned Additional Sessions Judge, Ahmad Nagar. Learned
trial judge had held all the four accused persons to be guilty of offences
punishable under Sections 396, 506, 341, 379 read with Section 120B of the
Indian Penal Code, 1860 (in short the 'IPC') and sentenced each of them to
suffer life imprisonment and to pay a fine ofRs.3,000 with default stipulation
F
in respect of conviction relatable to Section 396 IPC read with Section 120B
IPC. Learned trial judge was of the view that offence relatable to Sections
506 and 341 IPC is covered by the main offence and no separate sentence
was required to be passed. So far as offence relatable to Section 379 read
with Section 120B IPC is concerned, each of the accused persons was
G sentenced to suffer two years rigorous imprisonment and a fine of Rs. I 000
with default stipulation. Accused No. 4 i.e. present appellant alone was
found guilty of offence punishable under Section 5 read with Section 27 of
the Arms Act, 1950 ( in short the 'Arms Act') and was further sentenced
to undergo 5 years rigorous imprisonment and to pay a fine ofRs.3,000 with
H default stipulation. It was also recorded that offence under Section 3 read
AMITSINGH BHIKAMSINGTHAKUR v. STATE [PASAYAT, J.) 197

with Section 25(1-B) of the Arms Act is covered under Section 5 read with A
- Section 27 of the said Act and therefore, no separate sentence was passed.

3. Challenge to the judgment before the High Court in the four appeals
did not yield any relief.

4. The accusations filtering out unnecessary details which led to the B
trial of the four accused persons are essentially as follows:

5. The incident in question took place on 1.5 .1999 at about 8.15 p.m.
Complainant Abhijit Dhone (PW-1) is an eye witness of the same and
therefore, criminal law was set into motion by the complaint lodged by said C
Abhijit at Topkhana Police Station, Ahmed Nagar, on the same day at about
9 p.m. Complainant Abhijit was working with the victim Santoshkumar
Kirjichand Bakliwal (hereinafter described as 'deceased') in his shop of gold
and silver situated at Ganj Bazaar, Ahmednagar, since about 15 to 20 days
prior to the incident. His working hours started around 9 a.m. He alongwith D
his master Santoshkumar used to come to the shop and used to have break
in the afternoon. The shop used to be closed at about 8 p.m. and the two
used to return home some times by rickshaw and some times on feet. It was
the routine of Santoshkumar to bring home the daily earnings in a chocolate
coloured cloth bag at the end of every day.
E
6. On 1.5.1999 at the end of the day at about 8 p.m. Santoshkumar
collected the daily earnings in the chocolate coloured bag. The master and
complainant closed the shop and started home on feet. At about 8.15 p.m.
they were walking in front of hospital of Dr. Deshpande, which is near the
residence of the master. A vehicle overtook them and halted by going littk
F
ahead. The pillion rider jumped from the vehicle, approached the complainant
and his master and demanded the money bag. The master gripped the bag
with more firmness. The offender again angrily demanded the bag in
threatening language. The threat was followed by the offender drawing out
a pistol, which was kept underneath his shirt and near his stomach. He
aimed the pistol at the master. Even upon complainant trying to see the G
registration number of the vehicle, he was threatened by the offender and
a bullet was fired at the master at his chest from a close distance. The
assailant immediate jumped on the M-80 motorcycle and the motorcycle fled
away in the direction of Kothla Bus stand.
H
198 SUPREME COURT REPORTS (2007] 1 S.C.R.

A 7. Inspite of bullet injury to the chest, the deceased ran towards
residence, but dashed against the window and fell down. His relative Sanju
came out from the hosue and took him to the hospital of Dr. Deshpande.
As Dr. Deshpande was not available in the hospital, he was shifted to civil
hospital. At this juncture, complainant waited at the residence of the master.

B 8. In the complaint, complainant stated that he is not able to give the
registration number of motorcycle, but the person who fired at his master
was slim of about 5ft. height, w"ho had combed his hair to his right side and .}-_
had no grown beard or mustache. He was wearing white shirt and black pant
and he was of mild black complexion. The driver of the M-80 motorcycle
•
C was also of mild black complexion and had worn chocolate coloured shirt
and black pant. The complainant has specifically recoded that if these two
persons are shown to him he would be in a position to identify them.

9. The complaint was investigated and charge-sheet filed in the Court
of Judicial Magistrate, Ahmed Nagar, was registered as RTC No.242of1999
D
and on committal by order dated 21.8.1999, it was registered as Sessions
Case No. 150/1999.
-4
+
10. There is another story in relation to the vehicle used in the
commission of above referred offence, which comes out through evidence
E of Sk. Lalan (PW-6). He is owner of Bajaj M 80 motorcycle registration
Nu.MH- l 6/G-5308. According to Sk. Lalan that was stolen on 1.5.1999 some
time between I 0 A.M. to 5.30 p.m. from the location where it was parked.
A complainant was registered by Sk. Lalan. According to said complaint,
on 1.5 .1999 at about IO a.m., he came to his shop in Ganj bazar area on said
F Bajaj M-80 motorcycle and he parked it in front of residence ofVijay Verma.
He removed the plug cap of the same. He worked in the shop upto 5.30 p.m.
and thereafter came to the location where motorcade was parked for the
purpose of going to residence. The vehicle was missing and enquiries to
people in the vicinity yielded no results. Being convinced that vehicle was
stolen, he reported the matter to Kotwali Police Station on 2.5.1999 at 2.45
G hours, which was registered as Crime No. 118/1999 u/s 379 IPC.

11. Investigation of this complaint by Sk. Lalan culminated into filing
of chargesheet in the Court ofCJM, Ahmed Nagar, on 28.6.1999. The same
was registered as RTC No. 194/1999. This case was also committed to the
H Court of Sessions on 7.2.2000, whereafter it was registered as Sessions Case
AMITSINGHBHIKAMSINGTHAKURv. STATE[PASAYAT,J.] 199

No. 18/2000 and ultimately it was amalgamated with Sessions Case No. 150/ A
1999. The two Sessions Cases were so tried after amalgamation only after
amending the charge. This was because theft of the vehicle was taken as
part and parcel of the conspiracy, since the vehicle is used ultimately for
committing the main offence i.e. threatening the complainant to deliver the
cash bag and shooting at him as he did do so.
B
12. The trial court mainly relied on the evidence of PWs.l and 10 and
PW 3. PW 10 Mangala Chintamani is the wife of accused No. 1 i.e. Balu
Ranganath Chintamani. It is to be noted that the High Court directed
acquittal of A 2 (Vitthal Ramayya Madur) and A 3 (lntakhab Alam Abdul
Salam Sain) but dismissed the appeal so far as the accused Nos. I and 4 are C
concerned. The present appeal has been filed by only A4 (Amitsing
Bhikamsingh Thakur).

13. Primary stand of learned counsel for the appellant is that the so
called confession has no evidentiary value it was extracted under dur.ess. D
The discovery was made from an open space and therefore the confession
cannot be of any consequence. Also identification of the accused through
a test identification parade has no legal value.

14. As was observed by this Court in Matru v. State of UP., [1971]
2 sec 75 identification tests do not constitute substantive evidence. They E
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 identification can only be used as
corroborative of the statement in court. (See Santokh Singh v. Izhar
Hussain, [1973] 2 SCC 406. The necessity for holding an identification F
parade can arise only when the accused are not previously known to the
witnesses. The whole idea of a test identification 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 identification parade, during the investigation stage, is G
to test the memory of the witnesses based upon first impression and also
to enable the prosecution to decide whether all or any of them could be cited
as eyewitnesses of the crime. The identification proceedings are in the
nature of tests and significantly, therefore, there is no provision for it in the
Code of Criminal Procedure, 1973 (in short the 'Code') and the Indian H
200 SUPREME COURT REPORTS [2007] l S.C.R.

A Evidence Act, 1872 (in short the 'Evidence Act'). It is desirable that a test -\.-

identification 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 identification 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 allegation. If,
B however, circumstances are beyond control and there is some delay, it
cannot be said to be fatal to the prosecution.

15. It is trite to say that the substantive evidence is the evidence of
identification in Court. Apart from the clear provisions of Section 9 of the
C 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 identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character. The purpose of
D
a prior test identification, 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 identification proceedings. This rule of prudence,
E 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 identification 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 ta claim,
F a test identification parade. They do not constitute substantive evidence
and these parades are essentially governed by Section 162 of the Code.
Failure to hold a test identification parade would not make inadmissible the
evidence of identification in Court. The weight to be attached to such
identification should be a matter for the Courts of fact. In appropriate cases
· it may accept the evidence of identification even without insisting on
G corroboration. (See Kanta Prashad v. Delhi Administration, AIR ( 1958) SC
350, Vaikuntam Chandrappa and Others v. State of Andhra Pradesh, AIR
[1960] SC 1J40, Budhsen and Another v. State ofU.P., AIR (1970) SC 1321
and Rameshwar Singh v. State of Jammu and Kashmir, AIR (1972) SC 102.

H 16. In Jadunath Singh and Another v. The State of Uttar Pradesh,
_:(
AMITSINGHBHIKAMSINGTHAKURv. STATE[PASAYAT,J.] 201

[1970] 3 sec 518, the submission that absence of test identification parade A
1 in all cases is fatal, was repelled by this Court after exhaustive considerations
of the authorities on the subject. That was a case where the witnesses had
seen the accused over a period of time. The High Court had found that the
witnesses were independent witnesses having no affinity with deceased and
entertained no animosity towards the appellant. They had claimed to have
known the appellants for the last 6-7 years as they had been frequently B
visiting the town of Bewar. This Court noticed the observations in an earlier
..... unreported decision of this Court in Parkash Chand Sogani v. The State
.-l
ofRajasthan (Criminal Appeal No. 92of1956 decided on January 15, 1957),
" wherein it was observed :-
c
"It is also the defence case that Shiv Lal did not know the
appellant. But on a reading of the evidence of P.W. 7 it seems to
us clear that Shiv Lal knew the appellant by sight. Though he made
a mistake about his name by referring to him as Kailash Chandra,
it was within the knowledge of Shiv Lal that the appellant was a
D
brother of Manak Chand and he identified him as such. These
circumstances are quite enough to show that the absence of the
.. )
identification parade would not vitiate the evidence. A person who
is well-known by sight as the brother of Manak Chand, even before
the commission of the occurrence, need not be put before an
identification parade in order to be marked out. We do not think E
that there is any justification for the contention that the absence
of the identification parade or a mistake made as to his name, would
be necessarily fatal to the prosecution case in the circumstances."

17. The Court concluded:
F
"It seems to us that it has been clearly laid down by this Court, in
Parkash Chand Sogani v. The State of Rajasthan (supra) AIR (Cri
LJ), that the absence of test identification in all cases is not fatal
and if the accused person is well-known by sight it would be waste
of time to put him up for identification. Of course if the prosecution G
fails to hold an identification on the plea that the witnesses already
knew the accused well and it transpires in the course of the trial
that the witnesses did not know the accused previously, the
prosecution would run the risk of losing its case."
H
202 SUPREME COURT REPORTS [2007] I S.C.R.

A 18. In Harbhajan Singh v. State ofJa;mnu and Kashmir, [1975] 4 SCC
480), though a test identification parade was not held, this Court upheld the ·
conviction on the basis of the identification 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 16th December, 1971 their rifles smelt of fresh
B gunpowder and that the empty cartridge case which was found at the scene
of offence bore distinctive markings showing that the bullet which killed the
deceased was fired from the rifle of the appellant. Noticing these
circumstances this Court held:-
-
c "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 identification 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
occunence shows. that his story cannot be true. As observed by
D
this Court in Jadunath Singh v. State of UP., AIR ( 1971) SC 363
absence of test identification is not necessarily fatal. The fact that
Munshi Ram did not disclose the names of the two accused to the
villages only shows that the accused were not previously known
to him and the story that the accused referred to each other by their
E respective 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."
F
19. It is no doubt true that much evidentiary value cannot be attached
to the identification of the accused in Court where identifying witness is a
total stranger who had just a fleeting glimpse of the person identified or who
had no particular reason to· remember the person concerned, if the
identification is made for the first time in Court.
G
20. In Ram Nath Mahto v. State of Bihar, [1996] 8 SCC 630 this Court
upheld the conviction of the appellant even when the witness while
deposing in Court did not identify the accused out of fear, though he had
identified him in the test identification parade. This Court noticed the
H observations of the trial Judge who had recorded his remarks about the
AMITSINGHBHIKAMSINGTHAKURv. STATE[PASAYAT,J.] 203

1 demeanor that the witness perhaps was afraid of the accused as he was A
trembling at the stare of Ram Nath - accused. This Court also relied upon
the evidence of the Magistrate, PW-7 who had conducted the test
identification parade in which the witness had identified the appellant. This
Court found, that in the circumstances if the Courts below had convicted
the appellant, there was no reason to interfere.

... L
21. In Suresh Chandra Bahri v. State of Bihar, [1995] Supp I SCC 80,
B

this Court held that it is well settled that substantive evidence of the witness
~·
is his evidence in the Court but when the accused person is not previously
known to the witness concerned then identification of the accused by the
witness soon after his arrest is of great importance because it furnishes an c
assurance that the investigation is proceeding on right lines in addition to
furnishing corroboration of the evidence to be given by the witness later in
Court at the trial. From this point of view it is a matter of great importance,
both for the investigating agency and for the accused and a fortiori for the
proper administration of justice that such identification is held without
D
avoidable and unreasonable delay after the arrest of the accused. It is in
'
• adopting this course alone that justice and fair play can be assured both to
the accused as well as to the prosecution. Thereafter this Court observed:-

"But the position may be different when the accused or a culprit
who stands trial had been seen not once but for quite a number of E
times at different point of time and places which fact may do away
with the necessity of a Tl parade."

22. In State of Uttar Pradesh v. Boota Singh and Others, ·[l9'.79] I SCC
31, this Court observed that the evidence of identification becomes stronger
"+- F
if the witness has an opportunity of seeing the accused not for a few
minutes but for some length of time, in broad daylight, when he would be
able to note the features of the accused more carefully than on seeing the
.!' accused in a dark night for a few minutes .

23. In Ramanbhai Naranbhai Patel and Others v. State of Gujarat, G
[2000] 1 SCC 358 after considering the earlier decisions this Court observed:-
.....
-'I "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 H
204 SUPREME COURT REPORTS [2007] I S.C.R.
-'-
A witnesses. Under these circumstances, identification of such a I

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 V.C. Shukla v. State, AIR (1980) SC 1382 wherein also Fazal
Ali, J. speaking for a three-Judge Bench made similar observations
B in this regard. In that case the evidence of the witness in the Court
and his identifying the accused only in the Court without previous
.---
...._
identification parade was found to be a valueless exercise. The ,,.
observations made therein were confined to the nature of the
evidence deposed to by the said eye-witnesses. It, therefore,
c cannot be held, as tried to be submitted by learned Counsel for the
appellants, that in the absence of a test identification parade, the
evidence nf an eye-witness 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
D
for the appellants that the later decisions of this Court in the case
,_
of RajeshGovind Jagesha v. State of Maharashtra, AIR [2000] SC ~·

160 and State of H.P. v. Lekh Raj, 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
E 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.
F 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 eye-witnesses were
seriously injured and they could have easily seen the faces of the
persons assaulting them and their appearance and identity would
well within imprinted in their minds especially when they were
G 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."
-r-.

24. These aspects were highlighted in Malkhansingh and Others v.
H State of MP., [2003] 5 SCC 746.
AMITSINGHBHIKAMSINGTHAKURv. STATE[PASAYAT,J.] 205

25. So far as the discovery under Section 27 of the Evidence Act is A
concerned it appears to be from open space. In that contest the observations
of this Court in Anter Singh v. State ofRajasthan, (2004] IO SCC 657 need
to be noted.

26. The scope and ambit of Section 27 of the Evidence Act were
illuminatingly stated in Pulukuri Kotayya v. Emperor, AIR (1947) PC 67 in
B
the following words, which have become locus classicus:

It is fallacious to treat the 'fact discovered' within the section as
equivalent to the object produced; the fact discovered embraces
the place from which the object is produced and the knowledge of c
the accused as to this and the information given must relate
distinctly to this fact. Infonnation as to past user or the past
history, of the object produced is not related to its discovery
in the setting in which it is discovered. Information supplied by
a person in custody that 'I will produce a knife concealed in
the roof of my house' does not lead to the discovery of a
D
knife; knives were discovered many years ago. It leads to
the discovery of the fact that a knife is concealed in the house
of the information to his knowledge, and if the knife is proved
to have been used in the commission of the offence, the
fact discovered is very relevant. But if to the statement the words E
be added 'with which stabbed A.', these words are inadmissible
since they do not related to the discovery of the knife in the house
of the informant." (p. 77)

27. The aforesaid position was again highlighted in Prabhu v. State of F
Uttar Pradesh, AIR (1963) SC 1113.

28. Although the interpretation and scope of Section 27 has been the
subject of several authoritative pronouncements, its application to concrete
cases in the background events proved therein is not always free from
difficulty. It will, therefore, be worthwhile at the outset, to have a short and G
swift glance at Section 27 and be reminded of its requirements. The Section
says :.

"Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any H
206 SUPREME COURT REPORTS (2007] I S.C.R.

A offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered may be proved."

29. The expression "provided that" together with the phrase "whether
it amounts to a confession or not" show that the section is in the nature
B of an exception to the preceding provisions paiticularly Section 25 and 26.
It is not necessary in this case to consider if this Section qualifies, to any
extent, Section 24, also. It will be seen that the first condition necessary for
bringing this Section into operation is the discovery of a fact, albeit a
relevant fact, in consequence of the information received from a person
c accused of an offence. The second is that the discovery of such fact must
.__
be deposed to. The third is that at the time of the receipt of the information I

the accused must be in police custody. The last but th~_most important
condition is that only "so much of the information" as relates distinctly to
the fact thereby discovered is admissible. The rest of the information has
D to be excluded. The word "distinctly" means "directly", "indubitably",
"strictly", "unmistakably". The word has been advisedly used to limit and
define the scope of the provable infommtion. The phrase "distinctly" relates
"to the fact thereby discovered" and is the linchpin of the provision. This
.
phrase refers to that part of the information supplied by the accused which
is the direct and immediate cause of the discovery. The reason behind this
E partial lifting of the ban against confessions and statements made to the
police, is that if a fact is actually discovered in consequence of information
given by the accused, it affords some guarantee of truth of that part, and
that part only, of the information which was the clear, immediate and
proximate cause of the discovery. No such guarantee or assurance attaches
F to the rest of the statement which may be indirectly or remotely related to
the fact discovered. (See Mohammed Inayuttillah v. The State of
Maharashtra, AIR (1976) SC 483).

30. At one time it was held that the expression "fact discovered" in the
G section is restricted to a physical or material fact which can be perceived by
the senses, and that it does not include a mental fact, now it is fairly settled
that the expression "fact discovered" includes not only the physical object
produced, but also the place from which it is produced and the knowledge
of the accused as to this, as noted in Palukuri Kotayya's case (supra) and
in Udai Bhan v. State of Uttar Pradesh, AIR (1962) SC 1116.
H
AMITSINGH BHIKAMSING THAKUR v. STATE (PASAYAT, J.] 207

31. The various requirements of the Section can be summed up as A
follows:

(I) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the provision has
nothing to do with question of relevancy. The relevancy of the fact
discovered must be established according to the prescriptions relating to B
relevancy of other evidence connecting it with the crime in order to make
the fact discovered admissible .
•
(2) The fact must have been discovered.
c
(3) The discovery must have been in consequence of some
infonnation received from the accused and not by accused's own act.

(4) The persons giving the infonnation must be accused of any
offence.
D
(5) He must be in the custody of a police officer.

(6) The discovery ofa fact in consequence of information received
from an accused in custody must be deposed to.
E
(7) Thereupon only that portion of the infonnation which relates
distinctly or strictly to the fact discovered can be proved. The rest is
.. inadmissible .
f
32. As observed in Palukuri Kotayya 's case (supra) it can seldom F
~ happen that information leading to the discovery of a fact forms the
foundation of the prosecution case: It is one link in the chain of proof and
the other links must be forged in manner allowed by law. To similar effect
was the view expressed in K. Chinnaswamy Reddy v. State of Andhra
Pradesh and Another, ( 1962) SC 1788.
G
33. When the evidence of PW! and the identifications made at the Test
Identification Parade and discovery in terms of Section 27 are considered,
conclusions of the trial court, so far as affirmed by the High Court, do not
suffer from any infirmity. At this juncture it is to be noted that learned
counsel for the appellant has submitted that PW I was related to the H
208 SUPREME COURT REPORTS [2007] I S.C.R.

A deceased and therefore his evidence should be rejected. The plea is clearly t
without substance. Relationship would not result in the mechanical rejection .-..._
of the testimony of the witnesses. Settled nonns of appreciation of evidence
required that the evidence of such witnesses is to be assessed with caution.
In the instant case the trial court has analysed the evidence with care and
caution and the High Court has also done so.
B
J'-
34. Above being the position the plea relating to alleged interestedness
of the witnesses has also no substance. Looked at from any angle the
appeal is sans merit, deserves dismissal which we direct.

C B.B.B. Appeal dismissed.

:,f-

•
!j.

~

~-