Identification Of Accused In Court Is Substantive Evidence, Mandatory Even If Witness Personally Knows Accused: Kerala High Court

The Kerala High Court has set aside the conviction of three men for criminal trespass and mischief by fire, noting that the trial court while recording the deposition of prosecution witnesses did not record that the witnesses had identified the men in court nor did the prosecutor pose questions to the witnesses for identification. 

It was alleged that the accused, in furtherance of their common intention, trespassed into the courtyard of the house of the de facto complainant in Vattappara and the first accused set fire to the house thereby causing loss of Rs. 25,000/- to the de facto complainant.

Justice Johnson John, delivered the judgment in a criminal appeal against judgment Additional Sessions Judge (Adhoc)- II Thodupuzha which convicted the accused for the offence under Section 448(Punishment for house-trespass) and 436 (Mischief by fire or explosive substance with intent to destroy house r/w 34 (Acts done by several persons in furtherance of common intention) of IPC. 

The counsel for the convicts argued that the prosecution has not adduced any evidence to prove the ownership or possession of the property to bring home the charge of trespass. It was also argued that a "proper dock identification" of accused Nos. 2 to 4 by prosecution witnesses (PWs) 2 and 3 was not conducted and thus the accused are entitled to benefit of reasonable doubt.

The court observed that the identification of an accused in court by the witness is the "substantive evidence". It emphasized that even if the witness and the accused are persons known to each other it is obligatory for the witness to identify the accused in court by pointing out that the person referred to by him in the evidence is the person who is standing in the dock.

The court further reiterated that it is "obligatory for the court to record in the deposition that the witness had identified the accused in the dock".

It thereafter said, "In this case, the presiding Judge has omitted to do so, while recording the deposition of PWs 2 and 3 and there was no attempt on the part of the prosecutor to put appropriate questions to PWs 2 and 3 for the said purpose. The trial court has not recorded in the deposition of PWs 2 and 3 that the said witnesses have identified accused Nos. 2 to 4 in the dock". 

The Court emphasized that the prosecution must prove unlawful entry into property in possession of another in order to sustain a charge of criminal trespass. Relying on the Division Bench decision in Anilkumar v. State of Kerala (2024 KHC 223), the Court reiterated that possession, and not ownership, is the determining factor in criminal trespass.

“It is well settled that to bring home the charge of trespass, the prosecution has to establish that there has been unlawful entry upon a property which is in the possession of another and that such unlawful entry was with an intent to commit an offence.” the court observed

The appellants argued that the prosecution has not adduced any evidence to prove the ownership or possession of the property to bring the charge of trespass. 

The court observed that it was not possible to substantiate the ingredients of criminal trespass in the absence of evidence regarding ownership or possession of the property.

“The Investigating Officer, when examined as PW6, admitted in cross examination that he has not collected any document to show the ownership of the house. According to PW6, there was no Panchayath number for the house. PW6 would say that the property is in the name of Thankamma, the mother of PWs 2 and 3. It is pertinent to note that PW1 has admitted in cross examination that there is no voters list, ration card or identity card to show that he was residing in the said house. In the absence of evidence regarding ownership or possession of the property, it is not possible to substantiate the ingredients of criminal trespass.” it observed.

The Court noted that the prosecution's case was based solely on circumstantial evidence. While witnesses (PWs 2 and 3) testified that they saw the accused near the scene, they did not witness any overt act of setting fire. The Court stated that while evaluating circumstantial evidence, the chain of events must be established clearly and completely to rule out any reasonable likelihood of innocence of the accused.

Relying on Devi Lal v State of Rajasthan (2019) and Sujit Biswas v State of Assam (2013) , the court observed that:

“The mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it “must be true” and not “may be true”

The Court thus acquitted the appellants stating that the benefit of doubt weighs in their favour.

Case Title: Sivan and Others v State 

Citation: 2025 LiveLaw (Ker) 597

Case No: Crl. Appeal 1788/ 2007

Counsel for Appellant: S Rajeev, V Vinay, M S Aneer, Sarath K P, Prerith Philip Joseph, Anilkumar C R, K S Kiran Krishnan

Counsel for Respondent: Hasnamol N S (PP)

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