Uncorroborated dock identification without TIP and withholding the material identifying witness cannot sustain conviction.

On 15 September 2018, the SHO of Mufassil Police Station, Munger, allegedly received secret information that the appellant, an accused in another case, was storing a large quantity of ammunition at his house.

A police raiding party proceeded to the appellant’s village and allegedly saw a person emerge from the appellant’s house and flee.

During the chase, the person allegedly threw a black polythene bag containing 122 bullets and cartridges of different calibres, including ammunition said to relate to AK-47, SLR and INSAS rifles.

The person escaped and was allegedly identified as the appellant by a local police chowkidar, Brijnandan Paswan.

However, the chowkidar was neither examined at trial nor was his statement recorded under Section 161 Cr.P.C.

The appellant was charged under Sections 25(1-A), 25(1-AA), 25(1-B)(a), 26(1) and 35 of the Arms Act.

The trial court convicted him under Sections 25(1-A), 25(1-B)(a) and 26(1) of the Arms Act and imposed concurrent sentences, including eight years’ imprisonment under Section 25(1-A).

Whether the prosecution proved beyond reasonable doubt that the person who emerged from the appellant’s house and threw the bag containing ammunition was the appellant?

Whether the first-time identification of the appellant in court, in the absence of a Test Identification Parade and prior acquaintance of the police witnesses with him, could safely be relied upon?

Whether the prosecution’s failure to examine Brijnandan Paswan, the alleged identifying witness, warranted an adverse inference under Section 114(g) of the Indian Evidence Act, 1872?

Whether the contradictions regarding the distance between the appellant’s house and the place of recovery, and the failure to establish exclusive possession or occupancy of the house, materially weakened the prosecution case?

The Court applied Section 60 of the Indian Evidence Act, 1872, requiring oral evidence of a fact capable of being seen to come from a person who actually saw it.

It applied Section 114(g) of the Evidence Act, under which the court may draw an adverse inference where a material witness who could clarify an essential part of the prosecution case is withheld without satisfactory explanation.

The Court relied on P. Sasikumar v. State, (2024) 8 SCC 600, and Nazim v. State of Uttarakhand, 2025 SCC OnLine SC 2117, for the principle that although dock identification is substantive evidence and a Test Identification Parade is only an investigative step, courts must exercise great caution where the accused was a stranger to the witnesses and no TIP was conducted; in such circumstances, dock identification may be insufficient to establish identity beyond reasonable doubt.

It also relied on Govindaraju @ Govinda v. State, (2012) 4 SCC 722, and Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, concerning the adverse inference arising from non-examination of a material witness.

The prosecution bore the overall burden of proving the appellant’s identity and guilt beyond reasonable doubt.

The Court accepted that the police witnesses consistently described the raid, the escape of a person from the vicinity of the appellant’s house, and the recovery of ammunition from the polythene bag.

However, the witnesses who identified the appellant in court were not previously acquainted with him, and their identification was based either on a fleeting observation while the person was fleeing or on the alleged identification by Brijnandan Paswan.

Since no TIP was conducted, the first-time dock identification could not be treated as reliable without strong corroboration.

The chowkidar was the only person whom the prosecution claimed knew the appellant and identified him at the spot.

His non-examination, coupled with the failure even to record his statement under Section 161 Cr.P.C., left the central question of identity unsupported and justified an adverse inference under Section 114(g) of the Evidence Act.

The prosecution evidence also materially conflicted regarding the distance between the appellant’s house and the recovery site—variously stated as approximately 10 metres, 100 metres and 200–250 metres—and the investigation did not establish who occupied the house or whether it was in the appellant’s exclusive possession.

Consequently, proof of recovery did not establish that the appellant was the person who possessed or threw the ammunition.

The Court therefore found it unnecessary to sustain the conviction on the basis of the alleged nature of the ammunition when the prosecution had failed at the threshold to prove the appellant’s identity as the offender.

The conviction dated 30 September 2024 and the sentence order dated 19 October 2024 were accordingly set aside.

The appeal was allowed, and the appellant was directed to be released forthwith unless required in any other case.

The trial court records were ordered to be transmitted for compliance.