Introduction:
In State of Kerala v. Anil Kumar @ Kolusu Babu and connected cases (DSR 3/2019 and connected cases; 2025 LiveLaw (Ker) 652), the Kerala High Court comprising Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian delivered a significant judgment reiterating that there is no rigid or universal rule mandating the conduct of a Test Identification Parade (TIP) in every criminal case. The case arose from the gruesome 2016 house invasion and murder of one Mariyadas and the brutal assault of his wife, who was left in a vegetative state. While the trial court had convicted the accused, awarding a death sentence to the first accused and life imprisonment to the second, the High Court was called upon to decide the death sentence reference and the appeals filed by the convicts. The appellants primarily questioned the reliability of witness identification without a prior TIP and challenged the legality of the recoveries made under Section 27 of the Evidence Act. The Bench’s detailed ruling not only reaffirmed long-established principles of evidence but also underscored the delicate balance between deterrence and humanity in sentencing, ultimately modifying the death penalty to life imprisonment.
Arguments of the Appellants:
The defense, representing the convicts, structured their arguments around two central issues: the reliability of the witness identification and the legality of recoveries made from the accused. They first contended that the testimony of PW-11, a milkman who claimed to have seen the accused near the crime scene, could not be relied upon in the absence of a Test Identification Parade. The appellants argued that TIP serves as a crucial investigative step to rule out the possibility of mistaken identity and that its absence cast serious doubt on the credibility of the prosecution’s case. They maintained that the alleged identification of the accused for the first time in court, without prior corroboration through a TIP, was insufficient and potentially unsafe to form the basis of conviction in a capital case.
The defense further questioned the validity of the recoveries of incriminating materials such as weapons and clothes allegedly linked to the crime. They asserted that the recovery process was vitiated by procedural irregularities, particularly highlighting that the confession statement of the second accused—a Tamil speaker—had been recorded in Malayalam. According to them, this linguistic discrepancy rendered the confession and subsequent recovery unreliable. They argued that the Investigating Officer had failed to maintain the sanctity of Section 27 of the Indian Evidence Act, 1872, which governs the admissibility of information leading to discovery of material objects.
Moreover, the defense emphasized that the alleged recoveries lacked independent corroboration and were based solely on the oral testimony of the police officers. They cited precedents where courts have insisted upon strict compliance with procedural safeguards to ensure fairness and prevent false implication. The appellants also claimed that the possession of certain items attributed to them could not be conclusively linked to the crime, suggesting that the prosecution’s case was built upon conjecture and assumptions rather than concrete evidence. They urged the High Court to overturn the convictions and set aside the extreme punishment imposed by the trial court, pointing to potential lapses in the investigative process and procedural infirmities in evidence collection.
Arguments of the Prosecution:
The prosecution, represented by Special Public Prosecutor Ambika Devi and Public Prosecutor Sheeba Thomas, defended the trial court’s findings and urged the High Court to uphold the convictions. It was argued that the identification of the accused by PW-11, the milkman, was both credible and trustworthy despite the absence of a Test Identification Parade. The prosecution submitted that there is no inflexible rule mandating the conduct of TIP in every case, especially when the accused are already known to the witnesses or when the witnesses had sufficient opportunity to observe the accused at the time of the incident. In this case, PW-11 had seen the accused in close proximity and under circumstances that allowed for clear recognition.
To reinforce this position, the prosecution cited established judicial precedents asserting that a Test Identification Parade merely provides corroboration to the evidence of identification made before the court and that the absence of a TIP does not automatically render such evidence unreliable. The prosecutors pointed out that the court is empowered to assess the credibility of dock identification based on the demeanor, consistency, and clarity of the witness’s testimony.
On the issue of recovery, the prosecution maintained that procedural lapses, if any, did not invalidate the recoveries made under Section 27 of the Evidence Act. Relying on Suresh Chandra Bahri v. State of Bihar (1995), the prosecution argued that it is not essential for the confession statement to be recorded verbatim in writing, as long as the investigating officer can credibly testify that recoveries were made pursuant to information supplied by the accused. The prosecution contended that the oral testimony of the officer, coupled with the recovery of incriminating objects such as the victim’s gold ornaments and blood-stained clothes, sufficiently established the link between the accused and the crime.
Further invoking A.N. Venkatesh & Anr. v. State of Karnataka (2005), the prosecution asserted that even if the strict requirements of Section 27 were not fulfilled, the conduct of the accused in leading the police to the place of recovery and handing over incriminating articles was itself admissible under Section 8 of the Evidence Act as evidence of subsequent conduct. Additionally, the prosecution referred to illustration (a) of Section 114 of the Evidence Act, which allows courts to presume that a person found in possession of stolen goods soon after the incident is either the thief or has received the goods knowing them to be stolen, unless satisfactorily explained.
In view of the above, the prosecution argued that the recovery of the victim’s gold ornaments from the first accused soon after the murder strongly corroborated the prosecution case and justified the inference of guilt. On the issue of sentencing, the prosecution highlighted the brutal nature of the crime but left the matter of quantum of punishment to the court’s discretion.
Court’s Judgment:
After carefully evaluating the rival submissions and examining the evidence on record, the Division Bench of the Kerala High Court delivered a detailed judgment reaffirming several key principles of criminal jurisprudence. The court first addressed the issue of identification and clarified that there is no rigid or universal requirement mandating a Test Identification Parade in every case. The Bench observed that while TIP serves as a useful investigative tool to strengthen the prosecution’s case, its absence does not necessarily vitiate the trial if other credible evidence supports the identification.
The court noted, “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.” It further explained that if the witness had sufficient opportunity to observe the accused during the incident and the court is satisfied about the reliability of such identification, the absence of a TIP does not render the testimony unreliable. The Bench emphasized that identification made before the court is substantive evidence, while that made during a TIP is merely corroborative. Thus, a credible and confident dock identification can, in appropriate cases, suffice for establishing identity.
Moving to the question of recoveries, the court held that the non-recording of a disclosure statement in writing does not invalidate the recovery under Section 27 of the Indian Evidence Act. The court relied on Suresh Chandra Bahri v. State of Bihar (1995) to reiterate that oral testimony of the investigating officer, if found credible, is adequate to prove that recoveries were made in consequence of information provided by the accused. The Bench further relied on A.N. Venkatesh v. State of Karnataka (2005) to hold that even if the technical requirements of Section 27 were not fulfilled, the conduct of the accused in leading the police to recover the incriminating materials is admissible under Section 8 as relevant evidence of conduct.
Addressing the appellants’ objection that the disclosure statement of the Tamil-speaking second accused was recorded in Malayalam, the court held that such a technical irregularity, in the absence of prejudice or misrepresentation, does not affect the evidentiary value of the recovery. What mattered, the court observed, was whether the investigating officer’s testimony convincingly established that the material objects were discovered as a result of information furnished by the accused.
The Bench also invoked illustration (a) to Section 114 of the Evidence Act to draw a presumption against the accused found in possession of stolen goods shortly after the crime. Relying on Mohan Lal v. Ajit Singh (AIR 1978 SC 1183) and Ronny v. State of Maharashtra (AIR 1998 SC 1251), the court observed that the possession of the victim’s gold ornaments by the first accused soon after the murder strongly pointed towards his participation in the crime, thereby corroborating the prosecution’s narrative.
On the issue of sentencing, the High Court referred to Supreme Court judgments that permit constitutional courts to modify sentences where warranted by mitigating circumstances. The court also cited the 2003 Report of the Committee on Reforms of the Criminal Justice System, which recommended that punishment must be proportionate—severe enough to deter but not so extreme as to be brutal, and moderate enough to remain humane yet not so lenient as to be ineffective.
Applying these principles, the Bench found that while the first accused’s culpability was fully established, the case did not fall within the “rarest of rare” category warranting the death penalty. Consequently, the High Court modified the death sentence awarded to the first accused into life imprisonment, while affirming the conviction of both accused. The court underscored that justice must not only punish but also preserve the balance between deterrence, fairness, and humanity.
In conclusion, the Kerala High Court upheld the conviction of both accused but commuted the death sentence of the first accused to life imprisonment. The judgment stands as an important reaffirmation of the principle that procedural imperfections do not outweigh substantive justice when evidence is credible and compelling.