SHISHPAL @ SHISHU versus THE STATE (NCT OF DELHI)

Citation: [2022] 12 S.C.R. 275 · Decided: 11-07-2022 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SHISHPAL @ SHISHU
v.
THE STATE (NCT OF DELHI)
(Criminal Appeal No. 1053 of 2015)
JULY 11, 2022
[ABHAY S. OKA AND M. M. SUNDRESH, JJ.]
Penal Code, 1860 – ss.302, 34 – Murder – Victim-deceased
and PW4 were standing in the queue before the liquor store – A2
(not before the Supreme Court) attacked the victim by knife while
appellants-accused caught hold of victim – All accused dragged
the victim from the queue of liquor and committed the offence u/s
302 r/w s.34 of IPC – Trial Court held them guilty of the offence
charged and the same was confirmed by the High Court – Out of
three accused two (A1 and A3) have presented the appeal – Held:
Both Courts below have made reliance upon the non-cooporation
on the part of the accused to undergo the test identification parade
by drawing an adverse inference – However, the prosecution witness
had already been exposed to the accused in the police station,
furthermore, test identification parade is only a part of investigation
and not much role can be attributed to it – Prosecution does not
have adequate material to fasten the liability as per s.34 of IPC on
the accused persons – Version of prosecution may not be correct
and thus cannot be relied on fully – Prosecution failed to establish
the case beyond reasonable doubt – Conviction set aside.
Allowing the appeals, the Court
HELD: This Court is unable to come to the conclusion that
the conviction rendered by both the Courts can be sustained in
the eye of law. Both the Courts made reliance upon the non-
cooperation on the part of the accused to undergo the test
identification parade by drawing an adverse inference.
Unfortunately, the evidence available on record was not looked
into as the witnesses had already been exposed to the accused in
the police station. After all, the test identification parade is only a
part of an investigation, and therefore, nothing more can be
attached to it. It is the duty of the prosecution to prove its case
[2022] 12 S.C.R. 275
275
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
beyond reasonable doubt. Both the Courts have fixed the onus
on the accused. The High Court after seriously doubting the
evidence of PW1 should have extended the benefit of doubt as
the evidence of PW3 ought not to have been accepted for the
reasons stated above. The evidence as deposed by the
prosecution witnesses itself would demonstrate that the version
of the prosecution may not be correct. If the reasoning of the
High Court is accepted, even then, the offence under Section
302 IPC may not be made out. However, this Court does not
wish to go into the said issue as this Court believes that the
prosecution has not been able to sustain the charge as against
these appellants, framed under Section 302 read with Section 34
IPC. There has to be adequate material to fasten the appellants
on  the basis of constructive liability as Section 34 IPC is nothing
but a rule of evidence. [Para 14][286-F-H; 287-A-C]
Tarseem Kumar v. Delhi Admn. (1994) 3 Supp SCC 367;
Rajesh Yadav and Anr. v. State of Uttar Pradesh 2022
SCC OnLine SC 150; Vadivelu Thevar v. State of
Madras [1957] SCR 981; Jasdeep Singh Alias Jassu v.
State of Punjab (2022) 2 SCC 545 – relied on.
Case Law Reference
[1957] SCR 981
relied on
Para 7
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1053 of 2015.
From the Judgment and Order dated 28.05.2014 of the High Court
of Delhi at New Delhi in Criminal Appeal No. 768 of 2011.
With
Criminal Appeal No. 81 of 2018.
Siddharth Yadav, Avinash Sharma, Mrs. K. Sarada Devi, Advs.
for the Appellant.
Jayant K. Sud, ASG, Ms. Neela Kedar Gokhale, Rajan Kumar
Chourasia, Kartik J., Randeep Sachdeva, Rajeev Wassan, Rajat Nair,
Gurmeet Singh Makker, B. V. Balaram Das, Advs. for the Respondent.
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The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
1. These two appeals have been filed by A1 and A3 respectively
to overturn the conviction sentencing them for life for the offence
punishable under Section 302 read with Section 34 of the Indian Penal
Code, 1860 (for short ‘IPC’) by the learned Additional Sessions Judge
(East) FTC: E-Court, Karkardooma Court, Delhi, as confirmed by the
Division Bench of the High Court of Delhi. Of the three accused
convicted, only two are before us. The overt act attributed as against
these two accused on the basis of Section 34 IPC being identical, we
deem it appropriate to pass a common order.
2. On 10.01.2010 at about 8.00 pm, the deceased and PW4 were

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