MALKHAN SINGH AND ORS. versus STATE OF MADHYA PRADESH

Citation: [2003] SUPP. 1 S.C.R. 443 · Decided: 08-07-2003 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Dismissed

Judgment (excerpt)

MALKHAN SINGH AND ORS. 
A 
v. 
STA TE OF MADHYA PRADESH 
JULY 8, 2003 
[N.SANTOSH HEGDE, ASHOK BHAN AND B.P. SINGH, JJ.] 
B 
Penal Code, 1860-Sections 376 (2)(G) and 506-Gang rape and 
criminal intimidation-Conviction-Justification of-Held: Evidence of 
prosecutrix reliable, delay in lodging FIR explained and supported by C 
substantial evidence and also medical evidence supporting the prosecution 
case-Conviction of accused on basis of their identification by prosecutrix 
in court not requiring further corroboration-Hence, conviction of accused 
by courts below confirmed-Evidence Act, 1872 section 9-Criminal 
Procedure Code, 1973 section 154. 
Criminal Trial-Test Identification Parade-Failure to hold-
Evidentiary Value-Held: Test identification parade does not constitute 
substantive evidence-Substantive evidence is the identification in court and 
test identification parade provides corroboration to the identification of the 
witnesses in court, if required-Thus, failure to hold test identification parade 
D 
will not make evidence of identification in court inadmissible-Evidence Act, E 
1872-Section 9. 
Criminal Procedure Code, I 973-Section I 54-First Information 
Report-Delay of ten days in lodging-Prosecution case-Credibility a/-
Held: When delay is explained and supported by substantial evidence it does F 
not discredit the prosecution case. 
According to the prosecution, appellants-accused gang raped and 
criminally intimidated a tribal woman-school teacher in broad daylight. 
Prosecutrix lodged the complaint ten days later. Appellants were charged for 
offences under section 3(l)(x) of the Scheduled Caste and Scheduled Tribes G 
(Prevention of Atrocities) Act, 1989 and section 376 (2)(G) and section 506 
IPC. Appellants were put up for trial. Prosecutrix identified appellants as three 
persons who had subjected her to sexual assault and criminal intimidation. 
However, no test identification parade was conducted and also the prosecution 
did not examine its witnesses to whom the prosecutrix had narrated the 
H 
443 
444 
SUPREME COURT REPORTS [2003] SUPP. 1 S.C.R. 
A incident. Trial Court convicted the appellants under Section 376 (2)(G) and 
Section 506 Part II IPC. High Court confirmed the conviction. Hence the 
present appeal. 
B 
Appellants-accused contended that the identification in court not 
preceded by a test identification parade is of no evidentiary value. 
Respondent contended that the substantive evidence is the evidence of 
identification in court and, therefore, the value to be attached to such 
identification must depend on facts and circumstances of each case; and that 
no general rule could be laid that such identification in the court is of no 
C value. 
Dismissing the appeals, the Court 
HELD: I.I. As a general rule, the substantive evidence ofa witness is 
the statement made in court. The evidence of mere identification of the accused 
D 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 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 
E 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. 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 
F identification is made for the first time in court. (449-F, G; 451-H; 452-AI 
1.2. The identification parades belong to the stage of investigation, and 
there is no provision in Cr.P.C., which obliges the investigating agency to 
hold, or confer a right upon the accused to claim, a test identification parade. 
G These parades are essentially governed by section 162 Cr.P.C. They do not 
constitute substantive evidence. The substantive evidence is the evidence of 
identification in court and the test identification parade provides corroboration 
to the identification of the witness in court, if required. Failure to hold a test 
identifi

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