Kerala High Court: Identification Of Accused In Court By Witness Is Substantive Evidence, Mandatory Even If They Personally Know Each Other

The Kerala High Court while setting aside conviction of three men for criminal trespass and mischief by fire has held that identification of accused in court by witness is substantive evidence.

The Court was considering an Appeal challenging the conviction and sentence imposed under Sections 448 and 436 r/w 34 of the Indian Penal Code.

The single judge bench of Justice Johnson John observed, "The identification of an accused in court by the witness is the substantive evidence and 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 and it is obligatory for the court to record in the deposition that the witness had identified the accused in the dock...."

The Appellant was represented by Advocate S. Rajeev while the Respondent was represented by Public Prosecutor Hasnamol N.S.

Facts of the Case

As per the prosecution case, in 2000, at about 1 p.m., Accused Nos. 2 to 4 along with Accused Nos. 1 and 5, 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 ₹25,000/- to the de facto complainant and it was alleged that Accused Nos. 2 to 4 helped the first Accused to set fire to the house

Accused Nos. 1 and 5 were absconding and hence, charge was framed for the offences under Sections 448 and 436 r/w 34 of the IPC against Accused Nos. 2 to 4. The Trial Court found them guilty and they were sentenced to undergo rigorous imprisonment for 5 years each and to pay a fine of ₹5,000/- each for offence under Section 436 r/w 34 of the IPC and in default of payment of fine, to undergo rigorous imprisonment for six months and they are also sentenced to undergo rigorous imprisonment for one year each for offence under Section 448 r/w 34 of the IPC.

Counsel for the Appellants argued that PWs 2 and 3, the occurrence witnesses examined by the prosecution, have no case that they witnessed any overt act from the side of the Appellants and the circumstantial evidence relied on by the prosecution is not of a conclusive nature and tendency to fully establish the guilt of the Counsel for the Appellants argued that PWs 2 and 3, the occurrence witnesses examined by the prosecution, have no case that they witnessed any overt act from the side of the Appellants and the circumstantial evidence relied on by the prosecution is not of a conclusive nature and tendency to fully establish the guilt of the Appellants.

Reasoning By Court

The Court at the outset noted that 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.

Noting that identification of accused in court by witness is substantive evidence, it observed, "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 pointed out that it is clear from the evidence of PWs 2 and 3 in cross examination that they have not witnessed any overt acts from the side of the accused persons at the time of occurrence and therefore, the main question to be considered is as to whether the evidence of PWs 2 and 3 that they saw the Appellants near to the place of occurrence at the time of occurrence is sufficient to record a conviction for the offence under Section 436 of the IPC.

Further, referring to Supreme Court's decision in Chellappa v. State, (2020) and Balu v. State (UT of Pondicherry) (2016), the Court observed, "It is well settled that the question as to whether there was any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case and that the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted."

The Court concluded that it is of the opinion that the Appellants are entitled to be acquitted as the benefit of doubt weighs in their favour.

The Appeal was accordingly allowed.

Cause Title: Sivan, S/O. Gopalan vs. State C.I. of Police (2025:KER:70780)

Appearances:

Appellant- Advocate S. Rajeev, Advocate V. Vinay, Advocate M.S. Aneer, Advocate Sarath K.P., Advocate Prerith Philip Joseph, Advocate Anil Kumar C.R., Advocate K.S. Kiran Krishnan 

Respondent- Public Prosecutor Hasnamol N.S. 

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