No 'Inflexible Rule' Of Holding Test Identification Parade In Every Case To Rely Upon Identification Made By Witness: Kerala High Court

A division bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian observed:

“There is no inflexible rule that, in order to rely upon an identification made by a witness, there must invariably, be a test identification parade. If the accused is already acquainted with the witnesses, identification for the first time in the dock would be sufficient. Likewise, if the witness had sufficient opportunity to see the accused, at the time of the incident, and the court is satisfied about the credibility of such identification, the absence of a test identification parade would not, by itself, render the evidence unreliable”.

The court further said that an identification made in a test identification parade would only serve to lend assurance and corroboration to the identification made before the court.

"However, as already mentioned, there is no abstract or universal rule that every identification made before the court must necessarily be corroborated by an earlier identification parade," the court emphasized.

The order was passed in a case concerning the murder of one Mariyadas and the assault of his wife who was left in a vegetative state in a house invasion in 2016. The trial court had convicted the accused persons for murder. It had sentenced the first accused to death, and the second accused to life imprisonment. The High Court was hearing the death sentence reference made by the trial court along with the appeals filed by the convicts.

The appellants argued that the testimony of PW-11 the milkman, who claimed to have seen the accused near the crime scene, was unreliable without a prior test identification parade.

The appellants also contended that the recoveries of weapons and clothes were invalid since the confession statements were improperly recorded, especially in the case of the Tamil-speaking second accused, whose disclosure was written in Malayalam.

The Court held that non-recording of a verbatim written statement does not by itself vitiate the recovery, provided the investigating officer's testimony establishes that material objects were discovered in consequence of information supplied by the accused. Relying on Suresh Chandra Bahri v. State of Bihar (1995) the Bench reaffirmed that oral testimony of the officer, coupled with proof of recovery, suffices to invoke Section 27.

“It is trite that for the purposes of invoking Section 27 of the Evidence Act against an accused, it is not necessary that the relevant portion of the disclosure statement must be recorded in writing. It is sufficient that the statement given by the accused, is deposed to by the Investigating Officer during his evidence along with a further deposition by him to the effect that recoveries were in fact effected based on such information obtained from the accused.”

Referring to A N Venkatesh & Anr v State of Karnataka (2005) the Court further observed that even if technical requirements under Section 27 were unmet, the conduct of the accused in retrieving and handing over incriminating objects remains admissible under Section 8 of the Evidence Act.

The Court also relied on illustration (a) to Section 114, observing that possession of stolen goods soon after the incident permits the presumption that the possessor was involved in the crime, unless satisfactorily explained.Relying on Mohan Lal v. Ajit Singh (AIR 1978 SC 1183) and Ronny v. State of Maharashtra (AIR 1998 SC 1251), the Bench concluded that recovery of the victim's gold ornaments from the first accused shortly after the murder strengthened the inference of guilt.

The Court relied Supreme Court judgments on modification of sentence by a constitutional court and quoted the report of the Committee on Reforms of Criminal Justice System, 2003 wherein it was observed that “punishment must be severe enough to act as a deterrent but not too severe to be brutal. Similarly, punishments should be moderate enough to be human but cannot be too moderate to be ineffective”.

The Court thus modified the death sentence of the first accused to life sentence while confirming the conviction of the first and second accused and upheld the judgment of the trial Court.

Case Title: State of Kerala v Anil Kumar @ Kolusu Babu and connected cases

Case No: DSR 3/ 2019 and connected cases

Citation: 2025 LiveLaw (Ker) 652

Counsel for Petitioner: Ambika Devi (Spl. PP), Sheeba Thomas (PP)

Counsel for Respondent/ Appellant: Rajatha P, J R Prem Navaz, Sumeen S