While ruling on a very significant legal topic pertaining to the test identification parade, the Kerala High Court has in a remarkable, robust, rational and recent judgment titled Sabu @ Eetty Sabu v State of Kerala in Crl.A. No. 690 of 2020 and cited in 2023 LiveLaw (Ker) 111 that was pronounced finally on February 28, 2023 held in no uncertain terms that the absence of a test identification parade, does not necessarily invalidate identification of an accused in court. It must be mentioned here that the matter pertains to a man booked under Sections 394 (Voluntarily causing hurt in committing robbery) and 450 (house trespass in order to commit an offence punishable with life) of the IPC for breaking into a house and injuring three persons in an attempt to commit theft. The Kerala High Court while affirming the decision of the Sessions Judge noted very clearly and cogently that the identification of the accused in this case was reliable and that the lack of test identification parade would not put its veracity into question.

At the very outset, this learned, laudable, landmark and latest judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Bechu Kurian Thomas sets the ball in motion by first and foremost putting forth in para 1 that:
When an attempt to commit theft is prevented by a witness who gets injured in the process, will the offence of robbery lie? Can the identification of the accused in court after four years of the incident be relied upon in the absence of a test identification parade? These questions have been raised for consideration by Adv. Sai Pooja in this appeal challenging the conviction and sentence of the appellant for the offences under sections 394 and 450 of the Indian Penal Code, 1860 (for short ‘IPC’).

As we see, the Bench discloses in para 2 that:
Prosecution alleges that on 10.09.2015 at about 01.00 am, the accused intruded into the house of PW1 after breaking open the window grills with the intention to commit theft and in the said process, voluntarily caused hurt to PW1 and his wife and daughter by using a deadly weapon and thereby committed the offences alleged.

To put things in perspective, the Bench then envisages in para 3 that:
The crime was registered based on the statement given by PW1. The three main witnesses i.e., PW1 to PW3, were not only eyewitnesses but had also been injured in the alleged attempt of the accused to commit theft. After attacking and seriously injuring the three inmates of the house, the accused escaped. However, within hours, he was apprehended by the police. To prove its case, the prosecution examined PW1 to PW9 and marked exhibits P1 to P11, apart from material objects MO1 to MO5. Though the defence did not adduce any evidence, exhibits D1 and D2 were marked.

As it turned out, the Bench then reveals in para 4 that:
After analysing the prosecution case, the learned Sessions Judge found the accused guilty and sentenced him to undergo imprisonment for 10 years under section 394 IPC and imprisonment for 5 years under section 450 IPC, apart from fine of Rs.25,000/- each, under both the above sections.

While elaborating on the sequence of events, the Bench then mentions in para 8 that:
PW1 to PW3 are the eyewitnesses and the injured. PW1 and PW2 have, in unmistakable terms, deposed that on noticing the presence of a stranger inside their bedroom at night, PW2 switched on the lights and both saw the accused under the said light. It has further come out in evidence that when PW1 caught hold of the accused, he was attacked and serious injuries were inflicted on him and when PW2 intervened, the accused turned his ire against her and she was also seriously wounded. PW3 mentions in her evidence that hearing the hue and cry of her parents, she came out of her room and saw the accused assaulting her parents and in a bid to flee the scene, the accused did not spare her from the attack and she too suffered injuries.

To be sure, the Bench then states in para 9 that:
PW1 to PW3 had unhesitatingly identified the accused in court. All three of them, in emphatic terms, identified the accused and stated that he was the one who had criminally trespassed into their house and attempted to commit theft and also inflicted serious injuries on them. PW1 had given identifying features of the accused while giving his first information statement. On the next day of the incident itself, the accused was arrested and brought in front of PW1, who identified him while at the hospital. Therefore, I find no reason to disbelieve the deposition of PW1 to PW3.

Most significantly, the Bench then minces just no words absolutely to mandate distinctly in para 10 holding that:
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. Test identification parade is only a rule of prudence. It is intended to be a measure of corroboration of the identification of the accused by the witnesses in court, especially when the accused are strangers.

However, 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. As held by the Supreme Court in Dana Yadav alias Dahu and Others v. State of Bihar [(2002) 7 SCC 295], the previous identification in a test identification parade is a check valve to the evidence of identification in a court of an accused by a witness and it is only a rule of prudence and not law. Reference to the decision in State of H.P. v. Lekh Raj and Another [(2000) 1 SCC 247] is also appropriate in this context.

While citing the relevant case laws, the Bench then points out in para 11 that, In the decision referred to by the learned counsel for the appellant in Raju alias Rajendra v. State of Maharashtra [(1998) 1 SCC 169], the identification of one of the accused in court was not accepted in the absence of a test identification parade. However, in the said decision, the said witnesses had never mentioned to any person earlier that they had either seen the incident or the accused. There is a factual distinction with the present case, especially since the injured witnesses who had occasion to see the accused at close quarters, had identified the accused.

In the decision in Rameshwar Singh v. State of Jammu and Kashmir [(1971) 2 SCC 715], the Supreme Court had observed that the identification during police investigation is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witnesses concerned as given in court and that the identification procedure must be conducted so that evidence concerning them, when given at the trial, enables the court to safely form an appropriate judicial opinion about its evidentiary value to corroborate or contradict the statement in the court of the identifying witness. The said decision though observes the importance of a test identification parade, it is mentioned that ultimately the procedure is required to enable the court to form a safe opinion.

Most rationally, the Bench then holds in para 12 that:
In the instant case, the evidence of PW1 to PW3 identifying the accused in court is inspiring and totally reliable for four reasons:

1. PW1 had identified the accused on the next day of the incident itself,
2. All three witnesses had occasion to see the accused at close quarters that too under the lights
3. PW1 even caught hold of the accused in front of PW2, and
4. one of the witnesses had given identifying features of the accused to the police while giving the First Information Statement.

In view of the above discussion, 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.

Be it noted, the Bench notes in para 19 that:
In the instant case, the witness had deposed that the accused had broken the window of the house and entered inside in the middle of the night wearing only an underwear and was searching inside the house with a lighter in order to commit theft. A perusal of the evidence adduced by the prosecution clearly establishes the offence of robbery committed by the accused punishable under section 394 IPC since injuries were inflicted upon PW1 to PW3. Therefore, I am satisfied that the accused has committed the offences under section 394 as well as under section 450 IPC.

What’s more, the Bench then hastens to add in para 20 that:
As regards the sentence of imprisonment imposed upon the accused, considering that injuries were inflicted upon three persons and that too one of the injuries inflicted is on the neck of PW1, I am of the view that no leniency can be shown to the accused.

Finally and as a corollary, the Bench concludes by holding in para 21 that:
In the above circumstances, I find no merit in this appeal. The finding of guilt of the accused and the sentence of imprisonment and fine imposed upon the accused under sections 450 and 394 of the IPC are affirmed. The appeal fails and is dismissed.

To conclude, we thus see that the Kerala High Court has made it unambiguously clear that the test identification parade is only a rule of prudence which the courts ruling in similar such cases must always definitely remember. It was also made clear by the Kerala High Court that the absence of test identification parade does not necessarily vitiate the identification of the accused in the Court. So definitely it is a no-brainer that all the courts must definitely pay heed to what the Kerala High Court has held in this leading case so clearly, cogently and convincingly in this leading case. No denying it.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh