Absence of test identification parade not ground to disregard identification of accused in court: Kerala High Court

The Kerala High Court on Tuesday held that the identification of the accused in court cannot be disregarded only because a test identification parade was not conducted. [Sabu @ Eetty Sabu v State of Kerala & Ors.].Justice Bechu Kurian Thomas clarified that if the witness gives trustworthy and reliable evidence, the court can accept the testimony of the witness regarding the identity of the accused even in the absence of a test identification parade..Justice Thomas explained that recognizing the accused in the court constitutes substantive evidence and that the conduct of a test identification parade is only a rule of prudence to corroborate the identification of the accused by the victim especially when the parties are strangers. .“The identification of an accused in the witness box is the substantive evidence. The acceptability of such an identification depends upon the trustworthiness and reliability of the evidence of the witnesses. If the testimony of the eyewitness relating to the identity of the accused inspires confidence in the mind of the court, the absence of a test identification parade by itself will not denigrate the identification of the accused in court. The object of a test identification parade is to test and ascertain the trustworthiness of the evidence regarding the identification of the accused," the Court said..The Court was considering an appeal challenging the conviction of a man for the offences under Sections 394 (voluntarily causing hurt in committing robbery) and 450 (house trespass in order to commit an offense punishable with life) of the Indian Penal Code (IPC), 1860..The appellant had been accused of breaking into a house with the intention to commit theft in 2015. During the process, he was stated to have injured three residents in the house by using a deadly weapon.The three inmates of the house appeared as eyewitnesses in this case. A sessions court sentenced the appellant-accused to 10 years' imprisonment for the offence under Sections 394, IPC and 5 years' imprisonment for the offence under Section 450, IPC. The appellant was also ordered to pay a fine. This order was challenged by the appellant before the High Court. .The counsel for the appellant highlighted no test identification parade was conducted in this case. She argued that such a procedure is necessary since the witnesses had no previous acquaintance with the accused and had identified the accused in the court only after a lapse of 4 years.However, the Public Prosecutor countered that the evidence submitted by the three eyewitnesses was categoric and that their identification of the accused left no room for any doubt.The Court agreed with the prosecution's stance, observing that:"... if the ocular evidence and the identification of the accused by the witnesses in court are impressive, nothing restricts the court from relying upon the said identification, as recognising the accused in court is the substantive evidence, while test identification parade is not an evidence of that character.".In this case, the Court found that the eyewitness was reliable and could be relied upon even in the absence of a test identification parade. The Court noted that the witnesses had seen the accused in close quarters after switching on the light and that one of the witnesses had even caught hold of the accused. The Court also pointed out that one of the injured eyewitnesses had identified the accused a day after the incident while still in the hospital."This Court is of the view that the absence of a test identification parade does not erode the reliability of the identification of the accused by the witnesses in this case," the judge, therefore, concluded. .The Court ultimately affirmed the conviction of the appellant as well as the imprisonment sentence imposed on him by the trial court. The Court observed that no leniency can be shown to the accused in view of the injuries he inflicted on the eyewitnesses. .The appellant was represented by advocates P Mohamed Sabah, Libin Stanley and Saipooja. The State was represented by Public Prosecutor CN Prabhakaran..[Read Judgment]