Unreliable Eyewitness Testimony, No Test Identification Parade: Kerala High Court Sets Aside Life Conviction After 7 Yrs

The Kerala High Court recently passed a judgment holding that non-conduct of test identification parade taken along with other vitiating factors would render as suspect the testimony of eyewitnesses.

The Division Bench consisting of Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian observed:

“Although it is trite that an identification in a TI parade is not substantive evidence and that the non-holding of a TI parade will not vitiate a dock identification [Vinod alias Nasmulla v. State of Chattisgarh – [(2025) 4 SCC 312], considering the fact that the dock identification of the accused by the witnesses above was not free from doubt, a TI Parade would have proved useful to corroborate the dock identification done by PW1 and PW5 in the instant case. For our part, we are of the view that the non-conduct of a TI Parade, taken together with the other vitiating factors discussed above with regard to the conduct of the aforementioned witnesses, rendered their testimony as eye-witnesses to the incident suspect and unworthy of acceptance vis-a-vis the identification of the accused.”

The appeal before the bench was preferred by seven persons, who were convicted of Sections 302, 143, 147, 148 and 149 Indian Penal Code and sentenced to life imprisonment. Five of the accused in the case were acquitted by the trial court.

The prosecution had alleged that the 1^st accused and the deceased had an altercation at a food stall next to cinema theatre and later, on the same day, the 1^st accused along with others formed an unlawful assembly, committed rioting and attacked deceased and his friend when they came out of the theatre after watching a movie. As a result of the injuries, the deceased died in the hospital at which he was taken to after the attack.

While considering the appeal, the Court first examined whether the death of the deceased was a homicide. Looking at the wound certificate, it agreed with the trial court that the cause of death was homicidal and that this was a case of culpable homicide amounting to murder.

However, the Court did not agree with the trial court with respect to the identity of the persons responsible for the crime. It noted that the trial court relied entirely on the testimonies of three prosecution witnesses and mechanically brushed aside the defence's objection as inconsequential.

The Court noted that the statement given in evidence by the prosecution witness, who stated that he was with the deceased at the time of the altercation and the subsequent attack, have been shown to be omitted from the First Information Statement given by him, including the identity of the 1^st accused. These omissions, the Court felt, were fatal and when considered with other proved contradiction, affects the credibility of his testimony.

The Court also rendered as unacceptable the testimony of another prosecution witness, who claimed to be a friend of the deceased and stated that he also came out from the same theatre watching the same show. It remarked that in the cross examination of the afore witness, he admitted to have not gone to the hospital where his friend was taken immediately after the incident. Moreover, his testimony regarding the weapons alleged to be used by the accused and the nature of injuries inflicted were improvements from the earlier statement given to the investigating agency.

Next, looking at the deposition by another prosecution witness, who had stated to have been present at the crime, the Court noticed that he was not able to identify the accused in court.

The Court further remarked that there is doubt regarding the two witnesses' identification of the accused since a consideration period of time passed since the incident in 2009 and the letting in of the prosecution evidence in 2018.

Considering all these factors along with the fact that no test-identification parade was conducted in the case, the Court felt that the witness statements could not be relied upon. It thus allowed the appeal, acquitted the appellants and set them at liberty.

Case No: Crl. A. No. 16 of 2025

Case Title: Manden Babinesh and Ors. v. State of Kerala

Citation: 2026 LiveLaw (Ker) 25

Counsel for the appellants: P. Vijaya Bhanu (Sr.), Vishnu Prasad Nair, P.M. Rafiq, M. Revikrishnan, V.C. Sarath, Vipin Narayan, Thomas J. Anakkallunkal, Ajeesh K. Sasi, Pooja Pankaj, Sruthy N. Bhat

Counsel for the respondent: T.R. Renjith – Public Prosecutor

Click to Read/Download Judgment