Introduction:

In this significant criminal appeal, the Kerala High Court re-examined the reliability of eyewitness identification and reaffirmed that while non-conduct of a Test Identification Parade (TIP) by itself does not automatically vitiate a prosecution, when combined with other serious infirmities in witness testimony, it can render the identification of accused persons unsafe and legally unreliable. The appeal was filed by Manden Babinesh and six other accused persons, who had been convicted by the trial court for offences under Sections 302, 143, 147, 148 and 149 of the Indian Penal Code and sentenced to life imprisonment, while five other accused had already been acquitted by the trial court. The prosecution case was that the first accused had earlier quarreled with the deceased at a food stall near a cinema theatre, and later on the same day, the first accused along with others allegedly formed an unlawful assembly and attacked the deceased and his friend when they exited the theatre after watching a movie, resulting in the deceased sustaining fatal injuries and later dying in hospital. The conviction was primarily based on the testimonies of three prosecution witnesses who were projected as eyewitnesses. The Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian was therefore required to assess not only whether the death was homicidal, but more importantly, whether the prosecution had established beyond reasonable doubt the identity of the persons who committed the crime, particularly in the absence of a Test Identification Parade and in light of multiple inconsistencies in witness statements.

Arguments:

On behalf of the appellants, it was contended that the entire conviction rested on shaky eyewitness testimony that suffered from serious omissions, contradictions and improvements, making it unsafe to sustain a conviction for murder and allied offences. Senior counsel argued that the prosecution witnesses had failed to consistently identify the accused and that their statements before the court were materially different from what they had stated during investigation. It was pointed out that crucial facts, including the identity of the first accused and details of the alleged altercation, were omitted from the First Information Statement, which is supposed to be the earliest and most reliable version of the incident. The defence further argued that no Test Identification Parade was conducted, despite the fact that several years had passed between the incident and the recording of evidence, thereby making dock identification highly unreliable. It was also submitted that one of the so-called eyewitnesses did not even go to the hospital where his close friend was taken after the attack, which was inconsistent with natural human conduct. Another witness, according to the defence, had improved his version during trial by adding details about weapons and injuries that were not mentioned earlier. The defence stressed that in a case based purely on eyewitness identification, procedural safeguards like TIP become crucial when witnesses had only fleeting opportunity to see the assailants. On the other hand, the State argued that minor contradictions should not be given undue importance and that the trial court had correctly accepted the testimony of the eyewitnesses. The Public Prosecutor contended that the occurrence of the incident, the presence of witnesses, and the homicidal nature of death were clearly proved, and that the accused had sufficient motive arising from the earlier altercation. It was further argued that law is well settled that TIP is not substantive evidence and that dock identification can be relied upon even in the absence of a prior test identification parade. According to the State, the trial court had properly appreciated the evidence and there was no reason for the High Court to interfere with the findings of guilt.

Court’s Judgment:

The Division Bench first addressed the nature of the death and agreed with the trial court that the injuries described in the wound certificate clearly established that the deceased had died due to homicidal violence and that the case was one of culpable homicide amounting to murder. However, the Court sharply diverged from the trial court on the question of identity of the assailants. The Bench observed that the trial court had mechanically accepted the prosecution version and brushed aside serious defence objections without proper scrutiny. Analysing the testimony of the first eyewitness, who claimed to have been with the deceased during both the earlier altercation and the subsequent attack, the Court found that his statement before the court contained major omissions when compared with his First Information Statement, including omission of the identity of the first accused and crucial details of the incident. The Court held that such omissions, when proved, are not minor but strike at the root of the prosecution case and seriously affect the credibility of the witness. Turning to the second eyewitness, who claimed to be a close friend of the deceased and to have watched the same movie, the Court found his conduct highly unnatural since he did not go to the hospital immediately after the incident. Further, his testimony regarding the weapons used and the manner of assault was found to be an improvement over his earlier statement to the police, which raised serious doubts about truthfulness. With respect to the third prosecution witness, the Court noted that he was unable to identify the accused in court, thereby completely weakening the prosecution’s attempt to establish identity. The Court also took serious note of the long delay between the incident in 2009 and the recording of evidence in 2018, which further impaired the reliability of dock identification. In this background, the Court examined the legal significance of non-conduct of Test Identification Parade and referred to the Supreme Court judgment in Vinod alias Nasmulla v. State of Chhattisgarh, reiterating that TIP is not substantive evidence and that its absence alone does not invalidate dock identification. However, the Bench clarified that when dock identification itself is doubtful, a properly conducted TIP could have provided corroborative assurance. The Court therefore held that the absence of TIP, when taken together with serious contradictions, omissions, unnatural conduct of witnesses, inability of one witness to identify the accused, and long delay in trial, rendered the eyewitness testimony suspect and unworthy of acceptance. The Court concluded that the prosecution had failed to establish beyond reasonable doubt that the appellants were the perpetrators of the crime, and that conviction based on such infirm evidence would amount to miscarriage of justice. Accordingly, the appeal was allowed, the conviction and sentence were set aside, and all appellants were acquitted and directed to be released forthwith, if not required in any other case, thereby reaffirming the principle that suspicion, however strong, cannot take the place of proof in criminal trials.