Holding

The conviction cannot be sustained because the prosecution failed to prove guilt beyond reasonable doubt, as the TIP was inadmissible without witness testimony and the sole dock identification and arrest evidence were unreliable.

Summary

The appellant Vinod @ Nasmulla was convicted under IPC sections 395 and 397 and Arms Act section 25 for a dacoity involving a bus robbery on 28 September 1993. The prosecution's case rested on a dock identification by a police constable (PW‑9) and the alleged recovery of a country‑made pistol at the time of his arrest, while the driver, conductor and cleaner who participated in the test identification parade (TIP) were not examined. The Supreme Court held that a TIP is merely corroborative and loses evidentiary value if the identifying witnesses are not produced in court, rendering the TIP report inadmissible. The sole dock identification by PW‑9 was deemed unreliable because the witness did not partake in the TIP and his credibility was questionable. Additionally, the manner of arrest and the link between the recovered pistol and the crime were found doubtful, with no looted articles recovered. Consequently, the prosecution failed to prove guilt beyond reasonable doubt, leading the Court to set aside the convictions and acquit the appellant.

Issues considered

Whether the conviction under IPC sections 395, 397 and Arms Act section 25 is justified in view of the evidentiary deficiencies.
Whether a Test Identification Parade (TIP) can be treated as substantive evidence when the identifying witnesses are not examined at trial.
Whether the dock identification by a police witness without corroboration is reliable enough to sustain a conviction.
Whether the manner of arrest and the recovery of the pistol are credible and sufficient to prove the offence.
Whether the prosecution proved the appellant's guilt beyond reasonable doubt.

Legislation cited

Subjects

DacoityBus robberyDock identificationTest Identification Parade (TIP)Evidence reliabilityArms ActIPC sections 395, 397Reasonable doubtArrest procedure

Judgment

[2025] 3 S.C.R. 80 : 2025 INSC 220

Vinod @ Nasmulla
v.
The State of Chhattisgarh
(Criminal Appeal No. 1931 of 2019)
14 February 2025
[Pamidighantam Sri Narasimha and Manoj Misra,* JJ.]

Issue for Consideration
Whether the conviction of the appellant under Section 395 read
with Section 397 of the Penal Code, 1860 and Section 25 of the
Arms Act, 1959 is justified.

Headnotes†
Penal Code, 1860 – ss.395, 397 – Arms Act, 1959 – s.25 – Case
of the prosecution that the appellant participated in the dacoity
where a bus carrying passengers was looted by eight armed
men – However, only two including the appellant were tried –
Appellant convicted, co-accused acquitted – Conviction of the
appellant upheld by High Court – Challenge to:
Held: Neither the FIR nor the statements of eyewitnesses named
the appellant or any other accused – Though the TIP for identifying
the appellant was conducted and the appellant was identified
by two out of three witnesses, but those three witnesses were
not examined during trial – Thus, the TIP report, which could
be used to either contradict or corroborate the witnesses is of
no evidentiary value – Best evidence such as that of the driver,
conductor and cleaner of the Bus, who all participated in the TIP
was withheld without giving good reason – The dock identification
by a solitary witness (PW-9), that too a police personnel fails to
inspire confidence to sustain conviction of the appellant particularly,
in absence of corroborative evidence of recovery of any looted
article either from, or at the instance of the appellant – Manner
in which the arrest was effected is also doubtful – Guilt of the
appellant not proved beyond reasonable doubt – Judgments of
the trial court and High Court set aside – Appellant entitled to
benefit of doubt, acquitted. [Paras 11, 15, 17, 24, 25]

* Author
[2025] 3 S.C.R. 81

Vinod @ Nasmulla v. The State of Chhattisgarh

Evidence Act, 1872 – s.9 – Test Identification Parade (TIP) not
substantive evidence but only corroborative – Purpose of TIP,
enumerated – Non-examination of witness who identified the
accused in TIP – Effect:
Held: Once the person who identifies the accused during the TIP
is not produced as a witness during trial, the TIP is of no use to
sustain an identification by some other witness – If the witness
who identified a person or an article in the TIP is not examined
during trial, the TIP report which may be useful to corroborate or
contradict him would lose its evidentiary value for the purposes of
identification – Unless the witness enters the witness box and is
cross-examined it can not be ascertained as to on what basis he
identified the person or the article – Because it is quite possible
that before the TIP is conducted the accused may be shown to
the witness or the witness may be tutored to identify the accused.
[Para 15]

Case Law Cited
Rameshwar Singh v. State of Jammu and Kashmir [1972] 1 SCR
627 : (1971) 2 SCC 715; Hari Nath and Another v. State of U.P.,
[1988] 1 SCR 848 : (1988) 1 SCC 14 – referred to.

List of Acts
Penal Code, 1860; Arms Act, 1959; Evidence Act, 1872.

List of Keywords
Dacoity; Bus carrying passengers; Loot; Dock identification; No
recovery of looted article; Test Identification Parade (TIP); No
corroborative evidence; Guilt not proved beyond reasonable
doubt; Substantive evidence; TIP report; Evidentiary value; Manner
of arrest doubtful; Driver; Conductor; Cleaner of the Bus; Best
evidence withheld.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1931 of 2019
From the Judgment and Order dated 03.01.2018 of the High Court
of Chhattisgarh at Bilaspur in CRLA No. 3014 of 1999
82 [2025] 3 S.C.R.

Digital Supreme Court Reports

Appearances for Parties
Manish Kumar Gupta, Mrs. Sangita Gupta, Sharad Prakash Pandey,
Advs. for the Appellant.
Apoorv Shukla, Puneet Chahar, Ms. Prabhleen A. Shukla,
Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Manoj Misra, J.
1. This appeal impugns the judgment and order of the High Court of
Chhattisgarh, Bilaspur1 dated 03.01.2018 passed in Criminal Appeal
No.3014 of 1999 whereby the appeal of the appellant against the
judgment and order of the Sessions Judge, (Surgujha) Ambikapur
(then in Madhya Pradesh) dated 26.10.1999, passed in Sessions Trial
No.292 of 1994, has been dismissed and conviction of the appellant
under Section 395 read with Section 397 of the Indian Penal Code,
18602 and Section 25 of the Arms Act, 19593 has been upheld.
2. The appellant Vinod @ Nasmulla and Mohd. Kalam Ansari were jointly
tried by the Court of Session, (Surguja), Ambikapur (now in the State
of Chhattisgarh). Mohd. Kalam Ansari was acquitted whereas the
appellant was convicted under Section 395 read with Section 397 of
the IPC and Section 25 (1)(b) of the Arms Act. Under Section 395
read with Section 397 of the IPC he was sentenced to seven years
rigorous imprisonment along with fine of Rs.2,000/-, coupled with
a default sentence of eight months; and for the offence punishable
under Section 25(1) (b) (a) of the Arms Act, he was sentenced to one
and a half years of rigorous imprisonment along with fine of Rs.500/-,
coupled with a default sentence of three months. All sentences were
to run concurrently.

Prosecution Case
3. The prosecution case in brief is that while Bus bearing registration No.
U.P. 42-A 5406 of Adarsh Transport Bus Service was going to Raipur

1 “The High Court”
2 “IPC”
3 Arms Act
[2025] 3 S.C.R. 83

Vinod @ Nasmulla v. The State of Chhattisgarh

in the night of 28.09.1993, at about 11:30 p.m., one person, who was
sitting behind the driver, put a country-made pistol on the temple of
the driver and ordered him to stop the bus. When the bus stopped
four persons already travelling in the bus and four other persons,
who boarded the bus from where it had stopped, inter alia, started
beating the passengers and robbed them of their belongings. A shot
was also fired at one of the passengers who sustained injuries. The
culprits thereafter escaped with looted articles. The driver took the
bus to the Police Station, Ambikapur where First Information Report
(FIR) was lodged at about 12:20 a.m. on 29.09.1993. Whereafter the
police swung into action, barricades were put to ensure that culprits
do not escape and, ultimately, it is claimed, in the night of 29.09.1993
itself, Khemraj Singh (PW-5) arrested the appellant, at about 3:00
a.m., carrying a country-made pistol, which had five cartridges, two
live and three empty. On 30.09.1993, the appellant was put to test
identification parade (for short TIP) wherein he was identified by the
bus driver Ram Sajeevan Sharma (not examined) and Khalasi Ainul
Khan (not examined). The other person, who was also there in the
bus, namely, Kamal Singh (the Conductor of the bus), though was
asked to identify the accused, failed to identify him. Based on the
alleged confessional statement made during investigation, Mohd.
Kalam Ansari was arrested and put to trial along with the appellant.

Prosecution Evidence
4. Though a number of witnesses were examined by the prosecution
but eye witnesses (i.e., passengers in the Bus) examined were only
three, namely, PW-6, PW-9 and PW-12. However, none of them had
participated in the TIP of the appellant. PW-6, PW-9 and PW-12
proved commission of dacoity whereas PW-9 identified the appellant
in Court, during the course of the trial, as the one, amongst those
dacoits, who had put the gun on the temple of the driver. PW-5 was
witness of appellant’s arrest and recovery of country-made pistol.
PW-7 (i.e., the Naib Tehsildar), who executed the TIP of the appellant,
proved the TIP and PW-8 (i.e., the Additional Tehsildar) proved the
TIP of Mohd. Kalam Ansari.

Trial Court Finding
5. The trial court, inter alia, held that the factum of dacoity is duly proved;
PW-9 identified the appellant as one of the dacoits who committed
the crime; PW-5 proved recovery of country-made pistol from the
84 [2025] 3 S.C.R.

Digital Supreme Court Reports

appellant and, therefore, the appellant is liable to be convicted. The
trial court, however, acquitted co-accused Mohd. Kalam Ansari.

High Court Finding
6. Aggrieved by the judgment and order of conviction, the appellant
preferred appeal before the High Court, though without success.
Aggrieved by dismissal of the appeal, the appellant is before us.
7. We have heard the learned counsel for the appellant; the learned
counsel representing the State of Chhattisgarh; and have perused
the records.

Submissions on behalf of Appellant
8. The submission of the learned counsel for the appellant is as follows:
(i) The prosecution has withheld the best evidence, namely, the
driver of the bus at whom the gun was pointed and who allegedly
identified the appellant in the TIP. Besides that, neither the
conductor nor the Khalasi (i.e., the Cleaner), who participated
in the TIP, was examined by the prosecution.
(ii) PW-9 is a police personnel whose presence in the Bus at the
time of dacoity is doubtful because, firstly, his papers relating
to his movement were not brought on record and, secondly,
if he was present, there was no reason not to use him for
identification during the TIP. Even if it is assumed that he was
travelling in the Bus, his non-participation in the TIP renders
him unreliable, more so, because in his testimony he admits
that he had seen the appellant earlier.
(iii) No stolen/ looted article was recovered either from the
possession of the appellant or at his pointing out.
(iv) The country-made pistol alleged to have been recovered is not
linked to the gun shots that were allegedly fired with the aid of
any forensic evidence.
(v) The manner in which the appellant is stated to have been
arrested by PW-5 at 3.00 a.m. in the night does not inspire
confidence. Moreover, if the appellant was carrying a loaded
pistol, why he would not use it to effect his escape, particularly,
when PW-5 was alone and attending nature’s call.
[2025] 3 S.C.R. 85

Vinod @ Nasmulla v. The State of Chhattisgarh

9. Based on the above submissions, the learned counsel for the appellant
submitted that the trial court as well as the High Court has accepted
the testimony of the prosecution witnesses without testing it on the
anvil of probability, therefore, the judgment and order of conviction
deserves to be set-aside.

Submissions on behalf of State
10. Per contra, the learned counsel for the State submitted that the
factum of dacoity is proved beyond doubt; PW-9 has identified
the appellant as the culprit who pointed the gun at the driver to
ensure that the bus stopped; there is nothing to indicate as to why
PW-9 would falsely implicate the appellant; the TIP was promptly
conducted; PW-7, the Naib Tehsildar, in whose presence the TIP
was conducted, has proved that in the said parade the appellant
was identified; PW-5 proved that in the night of the incident, the
appellant was arrested while he was carrying a country-made pistol;
and the forensic examination of the pistol reveals that it was in a
working condition with live cartridges. These evidences, inter alia,
duly proved the involvement of the appellant in the commission of
crime and therefore, the order of conviction and sentence is based
on proper appreciation of the evidence on record and does not
call for interference in exercise of power under Article 136 of the
Constitution of India.

Analysis
11. Before analysing the rival submissions, it would be useful to cull out
facts as regards which there is no dispute. These are:
(i) The incident for which the prosecution was launched is of dacoity
where a running bus, carrying 35 passengers, was looted by
about eight armed men in the night of 28.09.1993. However,
only two including the appellant were put to trial.
(ii) No looted article of any kind is stated to have been recovered
either from, or at the instance of, the appellant or the other
accused. The country-made pistol stated to have been recovered
from the appellant at the time of arrest is not connected to any
empty cartridge, or bullet, that might have been found at the
spot or extracted from the person injured.
86 [2025] 3 S.C.R.

Digital Supreme Court Reports

(iii) Neither the FIR nor the statements of eyewitnesses recorded
under Section 161 CrPC name the appellant or for that matter
any other accused.
(iv) Though the TIP was carried out with the aid of Driver, Khalasi
(i.e., the Cleaner) and Conductor of the Bus, none of them was
examined as a witness during trial.
(v) PW-9 is the only witness who identified the appellant on the
dock as one of the dacoits who participated in the dacoity.
(vi) PW-5 is the only witness of arrest of the appellant in the night
of 29.09.1993.
12. From the facts culled out above, there are just two pieces of evidence
against the appellant, namely, (a) dock identification by PW-9;
and (b) arrest of the appellant that night with a country-made pistol
by PW-5. We shall deal with each of them separately.

Dock Identification by PW-9 not reliable
13. Before we proceed to test the reliability of the dock identification by
PW-9, it would be apposite to examine the evidentiary value of the
TIP conducted during investigation to identify the appellant.
14. A test identification parade under Section 9 of the Evidence Act,
18724 is not substantive evidence in a criminal prosecution but is only
corroborative evidence. The purpose of holding a test identification
parade during the stage of investigation is, firstly, to ensure that the
investigating agency is proceeding in the right direction where the
accused is unknown and, secondly, to serve as a corroborative piece
of evidence when the witness identifies the accused during trial.5 The
evidence of identification merely corroborates and strengthens the
oral testimony in court which alone is the primary and substantive
evidence as to identity.6 In Rameshwar Singh v. State of Jammu and

4 Section 9.- Facts necessary to explain or introduce relevant facts. - Facts necessary to explain or
introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in
issue or relevant fact, or which establish the identity of anything or person whose identity is relevant,
or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation
of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that
purpose.
5 Umesh Chandra v. State of Uttarakhand, (2021) 17 SCC 616, (paragraph 9); Iqbal and Another v. State
of Uttar Pradesh, (2015) 6 SCC 623 (paragraph 15)
6 Hari Nath and Another v. State of U.P., (1988) 1 SCC 14 (paragraph 19),
[2025] 3 S.C.R. 87

Vinod @ Nasmulla v. The State of Chhattisgarh

Kashmir,7 a three-Judge Bench of this Court succinctly summarized
the evidentiary value of the TIP as under:
“6……. The identification during police investigation
……. is not substantive evidence in law and it can only
be used for corroborating or contradicting evidence of the
witness concerned as given in Court. The identification
proceedings …… must be so conducted that evidence
with regard to them when given at the trial, enables the
court safely to form appropriate judicial opinion about
its evidentiary value for the purpose of corroborating or
contradicting the statement in Court of the identifying
witness.”
Thus, if the witness who identified a person or an article in the TIP
is not examined during trial, the TIP report which may be useful to
corroborate or contradict him would lose its evidentiary value for
the purposes of identification. The rationale behind the aforesaid
legal principle is that unless the witness enters the witness box and
submits himself for cross-examination how can it be ascertained as
to on what basis he identified the person or the article. Because it
is quite possible that before the TIP is conducted the accused may
be shown to the witness or the witness may be tutored to identify
the accused. Be that as it may, once the person who identifies the
accused during the TIP is not produced as a witness during trial, the
TIP is of no use to sustain an identification by some other witness.
15. In the instant case, though it was proved by PW-7 (i.e., the Naib
Tehsildar who executed the TIP) that the TIP for identifying the
appellant was conducted and the appellant was identified by two out
of three witnesses, those three witnesses who participated in the TIP
of the appellant were not examined during trial. Thus, the TIP report,
which could have been used to either contradict or corroborate those
witnesses, is of no evidentiary value. Hence, the only substantive
evidence on record of the case in respect of identification of the
appellant is the dock identification by PW-9.
16. The dock identification by PW-9 does not inspire our confidence for
the following reasons:

7 (1971) 2 SCC 715
88 [2025] 3 S.C.R.

Digital Supreme Court Reports

(a) PW-9 is a police personnel posted at police station Prem
Nagar. During cross-examination, on being questioned about
his movement papers, he could not provide a satisfactory
explanation for his movement in that bus.
(b) As per the investigating officer, PW-9’s statement was recorded
on the same day the FIR was registered. The appellant was also
arrested that very night within few hours of the incident. Yet,
PW-9 was not used for identifying the accused during the TIP.
His non-participation in the TIP, seriously dents his credibility.
(c) PW-9 in his deposition stated that he had seen the appellant
earlier on more than one occasion. If that was so, there was
all the more reason for the investigating officer to use him in
the TIP. More so, when, as a police personnel, he was under
the control of the prosecution.
17. Besides that, when you withhold the best evidence such as that of
the driver, conductor and cleaner of the Bus, who all participated
in the TIP, without giving good reason as to why they were not
produced or summoned, the dock identification by a solitary witness,
that too a police personnel, fails to inspire our confidence to sustain
conviction of the appellant for the offence punishable under Section
395 read with Section 397 of the IPC, particularly, in absence of
corroborative evidence of recovery of any looted article either from,
or at the instance of, the appellant.

Manner in which arrest has been effected is doubtful
18. As regards the manner in which the appellant is stated to have
been arrested, prosecution case rests on the testimony of PW-5.
PW-5 is a police constable. According to him, while he was going
to attend nature’s call on 29.09.1993, at around 3:00 a.m., he saw
the appellant hiding in the bushes near a public pond, probably to
evade arrest, as the police had been on the look-out for the dacoits.
PW-5 says that the appellant tried to escape by threatening to use
his country made pistol, but he managed to overpower and arrest
the appellant; and later he along with the pistol was handed over to
the police station in-charge.
19. The prosecution evidence indicates that country-made pistol had
two live cartridges and three empty cartridges.
[2025] 3 S.C.R. 89

Vinod @ Nasmulla v. The State of Chhattisgarh

20. The appellant had denied the factum of arrest in the manner alleged
and had also produced defence witnesses, but neither the trial court
nor the High Court discussed the defence evidence.
21. Ordinarily, if a person is carrying a loaded weapon, he would use the
same to evade arrest unless the person is completely outnumbered.
Here, the appellant is stated to have been arrested by PW-5, who was
single and about to attend nature’s call. Moreover, there is no injury
on either side to suggest that resistance was offered at the time of
arrest. Such a prosecution story is too convenient to be acceptable
as true. More so, when it had support from police witnesses only.
Therefore, the court should have been circumspect so as to look
for corroborative pieces of evidence. This we say so, because it is
not uncommon for the police to be under pressure to quickly resolve
a case having implications on public order and therefore, look for
soft targets.
22. Here, there is neither recovery of any looted article from the appellant
or at his instance, nor the country-made pistol was linked to any
empty cartridge recovered from the Bus or the scene of crime. There
is also no injury report to substantiate that the appellant offered
resistance before he was apprehended. In absence of any such
corroborative evidence, it would be too naive on our part to accept
the prosecution story regarding the manner in which the appellant
is stated to have been arrested.
23. Besides above, from paragraph 34 of the trial court judgment, we
could notice that the seizure memo (Exb. P/11) of country made
pistol, etc. was prepared at 11:45 hours on 29.09.1993, which is
about nine hours after the appellant was allegedly arrested. Such a
long delay in producing the seized articles at the police station for
preparing seizure memo, in absence of cogent explanation, dents the
credibility of prosecution story regarding the arrest of the appellant
at about 3 a.m. on 29.09.1993.
24. Once we doubt the manner in which the appellant is stated to have
been arrested, the recovery of country-made pistol alleged to have
been made at the time of arrest falls to the ground. Besides that,
from paragraphs 33 and 34 of the trial court judgment, it appears
that the country made pistol produced during trial did not match
with the description of the seized weapon in the seizure memo. This
discrepancy was casually brushed aside by observing that it may be
90 [2025] 3 S.C.R.

Digital Supreme Court Reports

due to rusting. That apart, the seized article(s) were sent for forensic
examination on 22.06.1994, as would appear from paragraph 34 of
the trial court judgment. All these circumstances, taken cumulatively,
seriously dent the credibility of the prosecution case qua recovery
of country made pistol from the appellant at 3 a.m. in the night of
29.09.1993.
25. In the light of the analysis above, we are of the view that the
prosecution has failed to prove the guilt beyond reasonable doubt.
The appellant is therefore, entitled to the benefit of doubt. The appeal
is allowed. The judgment and order of the trial court and the High
Court are hereby set-aside. The appellant is acquitted of the charge
for which he was tried. The appellant is reported to be on bail. He
need not surrender. His bail bond is discharged.
26. Let a copy of this order be sent to the concerned court.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Divya Pandey