P. SASIKUMARversusTHE STATE REP. BY THE INSPECTOR OF POLICE

                  [2024] 7 S.C.R. 87 : 2024 INSC 474

                           P. Sasikumar
                                  v.
              The State Rep. by the Inspector of Police
                     (Criminal Appeal No. 1473 of 2024)
                                  08 July 2024
           [Sudhanshu Dhulia* and Prasanna B. Varale, JJ.]

                            Issue for Consideration
       High Court, if justified in upholding the conviction of the appellant
       u/s. 302/34 as well as u/ss. 449, 404 and 201 r/w 302 IPC, in
       absence of test identification parade, where accused is a stranger
       to a witness and the trial court accepted the dock identification
       by such a witness.

                                   Headnotes†
       Evidence – Test identification parade – Relevance – Non-
       conduct of Test Identification Parade-TIP, effect on prosecution
       case – On facts, in a brutal murder of a teenager girl allegedly
       by the main accused and co-accused, conviction and sentence
       u/s. 302/34, ss. 449, 404 and 201 r/w 302 IPC – Appeal by the
       co-accused, wherein the High Court upheld the conviction and
       sentence, in absence of TIP, where accused is a stranger to
       a witness and there was dock identification made by witness
       in court during trial – Correctness:
       Held: In cases where accused is a stranger to a witness and there
       has been no TIP, the trial court should be very cautious while
       accepting the dock identification by such a witness – On facts, TIP
       was not conducted – All the prosecution witnesses who identified
       the accused in the court were not known to the appellant – They
       had not seen the appellant prior to the said incident – He was a
       stranger to both of them – More importantly, both of them have
       seen the appellant on the date of the crime and that too from
       a distance while he was wearing a monkey cap which majorly
       covers the face – Under these circumstances, TIP had become
       necessary particularly when both the accused, who are alleged to
       have committed this murder were arrested within two days – No
       explanation whatsoever has been given by the prosecution and
       the Investigating Officer as to why TIP was not conducted – High

* Author
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      Court also recorded this flaw in the investigation – Not conducting
      a TIP was a fatal flaw in the police investigation and in the absence
      of TIP, the dock identification of the appellant will always remain
      doubtful – Doubt always belongs to the accused – Prosecution
      has not been able to prove the identity of the appellant beyond a
      reasonable doubt – Not conducting TIP is fatal for the prosecution –
      Identification of the accused before the court ought to have been
      corroborated by the previous TIP which was not done – Thus, the
      identity of the appellant is in doubt – Appellant could not have
      been convicted on the basis of a very doubtful evidence as to
      the appellant’s identity – Impugned order of the High Court set
      aside – Penal Code, 1860 – s. 302/34, s. 449, 404 and 201 r/w
      302. [Paras 10, 11, 12, 13, 15, 16]
      Evidence – Test identification parade – Relevance of:
      Held: Test identification parade-TIP is only a part of Police
      investigation – Identification in TIP of an accused is not a substantive
      piece of evidence – Substantive piece of evidence, or what can
      be called evidence is only dock identification that is identification
      made by witness in Court during trial – In cases where accused is a
      stranger to a witness and there has been no TIP, the trial court should
      be very cautious while accepting the dock identification by such a
      witness – In a given case, TIP may not be necessary – Non-conduct
      of a TIP may not prejudice the case of the prosecution or affect the
      identification of the accused – It would all depend upon the facts of
      the case – It is possible that the evidence of prosecution witness
      who has identified the accused in a court is of a sterling nature,
      thus TIP may not be necessary – It is the task of the investigation
      team to see the relevance of a TIP in a given case. [Paras 12, 13]

                                Case Law Cited
      Kunjumon v. State of Kerala [2012] 9 SCR 1032 : (2012) 13 SCC
      750; Rajesh v. State of Haryana [2020] 14 SCR 1 : (2021) 1 SCC
      118; Ravi Kapur v. State of Rajasthan [2012] 10 SCR 229 : (2012)
      9 SCC 284; Malkhansingh and Ors. v. State of Madhya Pradesh
      [2003] Supp. 1 SCR 443 : (2003) 5 SCC 7462; Jayan v. State of
      Kerala (2021) 20 SCC 38; Amrik Singh v. State of Punjab [2022]
      7 SCR 451 : (2022) 9 SCC 402 – referred to.

                                   List of Acts
      Penal code, 1860; Code of Criminal Procedure, 1973.
[2024] 7 S.C.R.                                                        89

       P. Sasikumar v. The State Rep. by the Inspector of Police


                           List of Keywords
     Test identification parade; Dock identification by witness; Non-
     conduct of Test Identification Parade; Police investigation.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1473
     of 2024
     From the Judgment and Order dated 12.01.2017 of the High Court
     of Judicature at Madras in CRLA No. 574 of 2016
                        Appearances for Parties
     Jayanth Muth Raj, Sr. Adv., C. K. Sasi, Mrs. Malavika Jayanth, Ms.
     Anupriya, Advs. for the Appellant.
     V. Krishnamurthy, Sr. A.A.G., D. Kumanan, Mrs. Deepa. S, Sheikh
     F. Kalia, Ms. Richa Vishwakarma, Advs. for the Respondent.
                Judgment / Order of the Supreme Court

                               Judgment
     Sudhanshu Dhulia, J.
1.   The appellant before us has challenged the order dated 12.01.2017
     of the High Court of Madras which has upheld the conviction of the
     appellant under Section 302 read with Section 34 of the Indian Penal
     Code (hereinafter referred to as ‘IPC’) as well as under Section(s)
     449, 404 and 201 r/w 302 IPC. He has been, inter alia, sentenced
     for life imprisonment under Section 302 IPC.
2.   It was a brutal murder of a 14-year-old girl committed inside her
     house on the night of 13.11.2014, allegedly by two accused, one
     of them being the present appellant before this Court. There is no
     direct evidence of the crime although there is both ocular as well
     as forensic evidence placed by the prosecution to prove the murder
     of the 14-year-old girl, at the hands of the present appellant and
     another accused, who is accused no.1 and also the main accused.
     The present accused is accused no.2.
3.   The case of the prosecution is largely based on circumstantial
     evidence. FIR No.408/2014 was lodged on 13.11.2014 at police
     station Alagapuram by PW-1 Durairaj, who is the father of the
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      deceased. The complainant states that he is working as a Manager
      at JSP Granite Company at Salem, Tamil Nadu and he has two
      daughters. The elder daughter h a d studied engineering from
      Mahendra Engineering College and is now working in L&T Company,
      Chennai. His younger daughter was studying in the 8th standard
      in a local school in Salem. His wife is working as an accountant in
      a private company. On 13.11.2014 his wife had gone to Chennai
      to meet their elder daughter as she was not well. The younger
      daughter (deceased) was alone in the house. That day he had called
      his younger daughter about 2-3 times, in order to remind her to
      receive her tiffin but she did not answer his call. He had then made
      up his mind to return to his house early. When he was climbing the
      stairs of his house at about 07:15 p.m., after parking his scooter,
      he saw a person aged about 25 years, walking down the stairs.
      This man had a helmet in his hand, which he immediately wore on
      seeing the complainant. He found the door of his house open and
      his daughter was bleeding profusely from her neck. Meanwhile,
      neighbors had gathered on hearing his cries and they informed him
      that two persons had come to his house who had brutally killed his
      daughter. The deceased was still alive was rushed to the hospital
      where she was declared dead.
4.    The post mortem was conducted on the body of the deceased
      by Dr. K. Gokularamanan (PW-14) at 10:30 a.m. next day on
      14.11.2014 and the following antemortem injuries were found on
      the deceased –
           “1. A well extended broad cut injury on the front side of
           neck and on both sides extending up to the upper side of
           Thyroid ligament bone measuring a depth of 14 x 6 up to
           the depth of the bone and the neck spinal bone present in
           the underside of injury, Adams apple, muscles and blood
           vessels were seen on the edges of the injury and blood
           outflow was seen in the surrounding areas.
           2. On the right hand side of the aforesaid injury a cut injury
           on the lower and outer side was seen which extended up
           to the backside of neck measuring 12 x 4 depths in the
           muscles and blood outflow was seen in the surrounding
           areas. No other injuries were seen on the external parts
           of the body.”
[2024] 7 S.C.R.                                                         91

       P. Sasikumar v. The State Rep. by the Inspector of Police


     According to the postmortem report, the cause of death was shock
     due to the antemortem injuries on the neck and profuse bleeding
     and the time of death was 12-18 hours prior to the post mortem.
5.   Meanwhile the FIR was registered as Case Crime No.408/2014.
     The two accused were apprehended by the Police on 15.11.2014,
     at about 10 p.m.
6.   Recoveries were made during the investigation on their pointing out
     which is as follows :-
     From the pointing out of accused No. 1 :-
     A black colour Pulsar Vehicle without registration number, a black
     colour helmet, a black colour cell phone with broken glass, a knife
     with a maroon handle and a checkered blood-stained shirt were
     recovered.
     From pointing out of accused No. 2 i.e. present appellant :-
     A dark green monkey cap, a Samsung Galaxy Pro Cell Phone, a
     blood-stained elephant-coloured jeans and a white/green shirt were
     recovered.
7.   At this juncture, we must also record that although there are two
     accused in the case and, both were charged for the above offences
     and faced the trial and were convicted by the Trial Court under Section
     302 read with Section 34 IPC apart from other offences such as 449,
     404 and 201 r/w 302 IPC, yet there is no record, before this Court of
     any appeal being filed before the High Court by accused no. 1 who
     also stands convicted and sentenced for the same offences like the
     present appellant. This is also mentioned by the High Court while
     deciding the appeal that they have before them only the criminal
     appeal of accused No. 2 i.e. the present appellant- Sasikumar, and
     the court is not aware of any Criminal Appeal being filed by accused
     no.1 – Yugadhithan. Before us, thus, is only accused no. 2. Accused
     no.1, who is the main accused inasmuch as it was accused no.1
     against whom the prosecution additionally has a case of motive to
     commit this murder.
8.   The prosecution case is that when Harini (PW2)-the elder sister
     of the deceased was a student in Mahendra Engineering College,
     accused no. 1 (Yugadhithan) was also studying in the same college
     and was totally infatuated by her. His feelings were never reciprocated
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      by the elder sister of the deceased. It is because of this reason
      that he was enraged and had even started stalking the elder sister
      of the deceased. He had even reached her present place of work
      L&T Company at Chennai, causing much anxiety to her. PW2 had
      also complained against accused no. 1 to the principal of Mahendra
      Engineering College earlier stating that he had been harassing her.
      The prosecution case further, is that accused no. 1 had threatened the
      elder sister of the deceased warning her that if she does reciprocate
      his feelings, he would kill her entire family.
9.    But the one who is before us today and whose conviction stands
      confirmed by the High Court is not accused No.1 but accused no.2.
      The entire question before us here is of identification of accused no.
      2. From all available evidences which the prosecution has placed
      before the Trial Court, inter alia, in the form of PW-1 and PW-5 have
      stated that accused No.2 i.e., the present appellant was seen by
      them wearing a “green colored monkey cap”. When this accused
      had entered the premises, when he knocked the door of the house
      of the deceased, when he was coming down from the stairs along
      with accused no.1 and at all other relevant times the witnesses who
      have seen and identified the accused no.2 i.e., the present appellant,
      had seen the appellant for the first time on 13.11.2014 while he was
      wearing a green colored monkey cap. None of them had seen him
      earlier. PW-5 who is the closest witness in this case states as under :-
           “…I know Duraiaj. It could be 6.30 hours in the evening
           on 13.11.2014. At that time I was taking good water in
           balcony at that time a person went wearing monkey cap.
           Another person went wearing a helmet. The time could be
           6.35, 640 hrs in the evening. They both knocked the door
           of Tejashree house and went inside the house. They both
           were found talking inside in a sofa. They are the present
           accused. They were asking phone number with Tejashree
           for that Tejashree has told them that father has gone out
           and he has to come. Both the accused and Tejashree were
           found to be talking. After taking water I went to my home.
           I informed my house by around 7.00 hrs in the evening
           that I am going to super market. Later I came back by 7
           .25 hrs at that time Sun News was under broadcast when
           I parked my vehicle and climbed stairs Durairaj came
           behind me. When I placed the articles in home within 5
[2024] 7 S.C.R.                                                          93

       P. Sasikumar v. The State Rep. by the Inspector of Police


           minutes I heard the sound of Durairaj. Immediately I went
           to Durairaj House. After tearing the cloth he was shouting
           from the place where his daughter was lying. I told Durairaj
           that 2 person came and went half an hour prior to that. I
           told Durairaj that they both kept Tejashree sitting and was
           talking with her. Immediately call was made to ambulance…”
     PW-5 is said to have identified the accused later when both the
     accused were apprehended by the police and were in the hospital.
     In other words, while these two accused persons were in the custody
     of the police this particular witness PW-5 was taken to the hospital
     where he had identified the two accused. This so-called identification,
     on which much reliance has been placed by the prosecution, was
     made by PW-5 in the hospital by way of a statement to the police,
     and it can only be read as a statement under Section 162 of the
     Criminal Procedure Code which can only be used for the limited
     purpose as provided under Section 162 of the CrPC itself.
     The case of the prosecution is that both the accused were
     apprehended on 15.11.2014 near the Salem-Coimbatore bye pass
     fly over. The recovery of incriminating material such as motor bike,
     weapon, the monkey cap, helmet, clothes etc. were made on the
     same day. In other words, when the accused were in judicial custody,
     there is nothing on record to suggest that the investigating officer or
     the investigating team had taken any permission from the Magistrate
     for the release of the accused for these recoveries. These recoveries
     therefore, have no relevance. At this juncture, we must reiterate that
     our observation in this case and our finding and conclusions are
     based only on the evidences and the material which is available
     against the present appellant, it should not be construed in any
     manner as a finding or a comment on the case of accused no. 1
     who is not before us and evidently against whom the prosecution
     has some more material, including motive. There is also no motive
     against the present appellant. In fact, the Pulsar bike which has
     been recovered on pointing out of accused no.1 does not belong to
     the appellant but was purchased by a person named ‘Satish’ from
     the showroom and this person ‘Satish’ has never been questioned
     by the police or produced as a prosecution witness during the trial.
10. The admitted position in this case is that the test identification
    parade (hereinafter referred to as ‘TIP’) was not conducted. All the
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      prosecution witnesses who identified the accused in the Court such
      as PW-1 and PW-5 were not known to the present appellant i.e.,
      accused no.2. They had not seen the present appellant prior to the
      said incident. He was a stranger to both of them. More importantly,
      both of them have seen the appellant/accused No. 2 on the date
      of the crime while he was wearing a “green colour monkey cap”!
11. Now, as one is familiar a monkey cap covers the entire face, chin
    and cheek of a person, leaving only his eyes and nose and part of
    forehead exposed. These two witnesses (PW-1 and PW-5), had seen
    the appellant wearing a monkey cap and that too from a distance.
    Under these circumstances, TIP had become necessary particularly
    when both the accused, who are alleged to have committed this
    murder were arrested within two days. The incident is of about 7:00
    pm on 13.11.2014 and both of them were arrested at around 10
    pm on 15.11.2014. The case of the prosecution is that while they
    were being arrested, they received injuries as they tried to escape
    and consequently, they were taken to the Hospital for treatment. It
    was in the hospital, that PW-1 i.e. father of the deceased and the
    complainant and PW-5 were taken by the Investigating Officer who
    are said to have identified the two accused as the one who had
    committed the crime. No explanation whatsoever has been given by
    the prosecution as to why TIP was not conducted in this case before
    a Magistrate as it ought to have been done. In fact, the High Court
    has recorded this flaw in the investigation at more than one place
    in its judgment. It has again observed that the Investigating Officer
    (PW-24) was before the Court and in spite of being questioned as to
    what the reasons were for not holding TIP in this case, no satisfactory
    reply was given by him.
12. It is well settled that TIP is only a part of Police investigation. The
    identification in TIP of an accused is not a substantive piece of
    evidence. The substantive piece of evidence, or what can be called
    evidence is only dock identification that is identification made by
    witness in Court during trial. This identification has been made in Court
    by PW-1 and PW-5. The High Court rightly dismisses the identification
    made by PW-1 for the reason that the appellant i.e., accused no.2
    was a stranger to PW-1 and PW-1 had seen the appellant for the
    first time when he was wearing a monkey cap, and in the absence
    of TIP to admit the identification by PW-1 made for the first time in
    the Court was not proper. However, the High Court has believed the
[2024] 7 S.C.R.                                                        95

        P. Sasikumar v. The State Rep. by the Inspector of Police


     testimony of PW-5 who has identified accused no.2 under similar
     circumstances! The appellant was also stranger to PW-5 and PW-5
     had also seen the accused i.e., the present appellant for the first
     time on that fateful day i.e. on 13.11.2014 while he was wearing a
     green colour monkey cap. The only reason assigned for believing
     the testimony of PW-5 is that he is after all an independent witness
     and has no grudge to falsely implicate the appellant. This is the
     entire reasoning. We are afraid the High Court has gone completely
     wrong in believing the testimony of PW-5 as to the identification of
     the appellant. In cases where accused is a stranger to a witness and
     there has been no TIP, the trial court should be very cautious while
     accepting the dock identification by such a witness (See: Kunjumon
     v. State of Kerala (2012) 13 SCC 750).
13. After considering the peculiar facts of the present case, we are of the
    opinion that not conducting a TIP in this case was a fatal flaw in the
    police investigation and in the absence of TIP in the present case
    the dock identification of the present appellant will always remain
    doubtful. Doubt always belongs to the accused. The prosecution has
    not been able to prove the identity of the present appellant i.e. A-2
    beyond a reasonable doubt.
     The relevance of a TIP, is well-settled. It depends on the fact of a
     case. In a given case, TIP may not be necessary. The non conduct
     of a TIP may not prejudice the case of the prosecution or affect the
     identification of the accused. It would all depend upon the facts of
     the case. It is possible that the evidence of prosecution witness who
     has identified the accused in a court is of a sterling nature, as held
     by this Court in the case of Rajesh v. State of Haryana (2021) 1
     SCC 118 and therefore TIP may not be necessary. It is the task
     of the investigation team to see the relevance of a TIP in a given
     case. Not conducting TIP in a given case may prove fatal for the
     prosecution as we are afraid it will be in the present case.
14. The relevance of TIP has been explained by this Court in a number
    of cases (Please see: Ravi Kapur v. State of Rajasthan (2012) 9
    SCC 284 1, Malkhansingh and Ors. v. State of Madhya Pradesh
    (2003) 5 SCC 746 2).


1   Para 35
2   Para 16
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15. In the facts of the present case, the identification of the accused
    before the court ought to have been corroborated by the previous
    TIP which has not been done. The emphasis of TIP in a given case
    is of vital importance as has been shown by this Court in recent two
    cases of Jayan v. State of Kerala (2021) 20 SCC 38 and Amrik
    Singh v. State of Punjab (2022) 9 SCC 402. In Jayan (supra), this
    Court disbelieved the dock identification of the accused therein by a
    witness and while doing so, this Court discussed the aspect of TIP
    in the following words:
              “It is well settled that TI parade is a part of investigation
              and it is not a substantive evidence. The question of
              holding TI parade arises when the accused is not known
              to the witness earlier. The identification by a witness of
              the accused in the Court who has for the first time seen
              the accused in the incident of offence is a weak piece
              of evidence especially when there is a large time gap
              between the date of the incident and the date of recording
              of his evidence. In such a case, TI parade may make the
              identification of the accused by the witness before the
              Court trustworthy….”                              (Para 18)
16. Under these circumstances, we hold that the identity of the present
    appellant is in doubt. The appellant could not have been convicted
    on the basis of a very doubtful evidence as to the appellant’s identity.
    The appeal is allowed and the impugned order of the High Court
    dated 12.01.2017 is hereby set aside. The appellant has been in
    jail for about 8 years as we have been told at the Bar, he shall be
    released forthwith unless he is required in some other case. We
    make it absolutely clear that this decision of acquittal is based on
    the evidence, or lack thereof, which the prosecution has against
    accused no. 2 i.e. the present appellant. This will absolutely have
    no bearing on the case of accused no.1.

      Result of the case: Appeal allowed.



      †
          Headnotes prepared by: Nidhi Jain