Non-Conduct Of Test Identification Parade Not Fatal If Accused Is Duly Identified By Victim, Eyewitness: Kerala High Court Upholds POCSO Conviction

The Kerala High Court has held that the failure to conduct a Test Identification Parade becomes entirely redundant when the accused is directly identified by the victim of a sexual assault as well as by an eyewitness who has known the assailant since childhood.

It was observed that in offences of such a nature, the solitary, reliable evidence of the victim is fully sufficient to establish identity and sustain a conviction, rendering any arguments regarding improper identification devoid of merit.

The Court made these observations while dismissing a criminal appeal filed by an accused who was convicted under the POCSO Act and sentenced to twenty years of rigorous imprisonment for criminal trespass, kidnapping, and aggravated penetrative sexual assault of a minor.

The Bench of Justice A Badharudeen observed, "Even though it is argued by the learned counsel for the appellant/accused that no test identification was conducted and various decisions on the points were highlighted, the ratio laid down in the said decisions has no application in the present case, where the accused was duly identified by the victim of the sexual assault as well as by a witness who was well familiar with the accused from his childhood. Therefore, the contention regarding improper identification of the accused as the assailant is found to be devoid of any merits and is repelled as baseless argument."

Advocate P. Mohamed Sabah appeared for the Appellant/Accused, while Senior Public Prosecutor Vipin Narayan A appeared for the State.

Brief Facts of the Case

The case of the prosecution arose out of an incident where the accused criminally trespassed upon the courtyard of the residential house of the minor victim during the evening hours. The accused then kidnapped the minor victim, taking her towards the backside of her house, and subjected her to an aggravated form of sexual assault. Following the completion of pre-trial formalities, the Special Court under the POCSO Act tried the matter. The prosecution examined sixteen witnesses and marked nineteen documents, while no evidence was adduced by the defence.

Upon appreciation of the evidence, the trial court found the accused guilty of criminal trespass, kidnapping, and aggravated penetrative sexual assault under the relevant sections of the Indian Penal Code and the Protection of Children from Sexual Offences Act. The accused was accordingly convicted and sentenced to various terms of rigorous imprisonment, including a maximum term of twenty years, with sentences ordered to run concurrently. Aggrieved by the said conviction, the appellant-accused preferred the present criminal appeal.

Contentions of the Appellant-Accused

It was contended that the incident was not witnessed by anyone and the victim could not properly see the face of the assailant due to insufficient light at the place of occurrence. Since the accused was not previously known to the witness, the failure to conduct a Test Identification Parade rendered the first-time identification in court completely valueless and weak.

It was argued that the sketch of the accused was secondary evidence and was legally inadmissible. It was neither admitted through its author nor through the witness, and the prosecution failed to lay any foundation for the reception of secondary evidence or explain the non-production of the primary evidence. It was urged that there were material omissions and variations in the deposition of the eyewitness, which were duly proved through the investigating officers, thereby casting serious doubts on his credibility. The appellant contended that the trial court failed to conduct a preliminary voir-dire test before recording the evidence of the minor victim to ascertain her competency to understand the questions and depose before the court.

Contentions of the Prosecution

The State countered that the case involved an aggravated form of sexual assault where the victim directly suffered sexual molestation at the hands of the accused. Therefore, the victim was fully capable of identifying the assailant, rendering the requirement of a Test Identification Parade entirely redundant. It was argued that the sole testimony of the minor victim was sufficient, credible, and cogent enough to sustain the conviction, even if the evidence of the eyewitness was kept aside.

It was submitted that all the contentions raised by the appellant were feeble and untenable in the eyes of law, and since the prosecution had proved its case beyond all reasonable doubt, the conviction did not warrant any interference.

Observations of the Court

The Court observed that before recording the testimony of the minor victim (PW1), the learned Special Judge put eight preliminary questions to her regarding her personal details, family, and educational background. On receiving rational answers, the trial court appropriately satisfied itself as to her mental capacity and capability to depose about the incident. Consequently, the Court held that a proper preliminary examination (voir dire) was indeed conducted, and the appellant's contention that the child witness was incompetent failed at the threshold.

The Court noted that the minor victim gave a consistent, cogent, and categorical account of the incident. She explicitly deposed how the accused lured her to the backyard under a false pretext and subjected her to an aggravated form of sexual assault. The Court observed that she had clearly identified the face of the accused at the initial moment when she opened the front door, and her testimony remained unshaken during cross-examination. It was held that in offences of this nature, the solitary, reliable evidence of the victim is fully sufficient to establish the identity of the assailant and sustain a conviction.

The Court found that an eyewitness had seen the accused running away from the property behind the victim's house immediately after the occurrence. Since PW6 categorically testified that the accused was a resident of his native place and known to him since childhood, the identity of the appellant stood fully established.

The Court observed, "In fact, even in the absence of the evidence given by PW6, who happened to see the accused while the victim was taken outside by the accused. PW1, the victim, who saw the accused in front of her house on opening the door, clearly identified him, after the accused taken her on the backside of the house and was subjected to an aggravated form of sexual assault, as deposed by her. In fact, in such a case, the identification of the accused as the person who committed the sexual overt acts against the victim is well proved by the solitary evidence of PW1/victim."

The Court took into account the medical evidence tendered by the Assistant Professor of Government Medical College (PW10), who noticed physical abrasions on the private parts of the victim, which were consistent with the allegations of sexual assault. Furthermore, the age of the victim was legally established as under twelve years at the time of the offence through the birth certificate issued by the Municipality, the genuineness of which was rightly accepted by the trial court. The potency certificate also confirmed that there was nothing to suggest that the accused was incapable of performing sexual acts.

Regarding the challenge to the admissibility of the sketch, the Court observed that the document had no bearing on the merits of the case. Since the actual identity of the accused was directly and robustly proven through the oral testimonies of the victim and the eyewitness, any purported irregularity regarding the secondary nature or marking of the investigative sketch was of no significance and stood rejected.

On a holistic re-appreciation of the entire evidence on record, the Court held that the prosecution successfully established the ingredients of criminal trespass, kidnapping, and aggravated penetrative sexual assault beyond all reasonable doubt.

Finding no illegality or perversity in the findings of the Special Court, the High Court confirmed the conviction and concluded that the quantum of sentence imposed was commensurate with the gravity of the offences, thereby dismissing the appeal.

Cause Title: Ayoob v. State of Kerala [Neutral Citation:2026:KER:34958]

Appearances:

Appellant: Advocate P.Mohamed Sabah, Advocate Libin Stanley, Advocate Saipooja, Advocate Sadik Ismayil, Advocate R.Gayathri, Advocate M.Mahin Hamza, Advocate Alwin Joseph.

State: Senior Public Prosecutor Vipin Narayan.A

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