Eyewitnesses knowing accused prior must identify in dock; absence fatal to conviction.

O R D E R

The petitioner is the accused in C.C No.382/1999 on the files of the Judicial First Class Magistrate Court-I, Pathanamthitta. He was convicted by the learned Magistrate under Section 326 I.P.C and sentenced to undergo rigorous imprisonment for one year. In the appeal, the Additional Sessions Court, (Adhoc) Fast Track-II, Pathanamthitta confirmed the aforesaid conviction and sentence. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision petition.

2. Heard the learned counsel for the revision petitioner, and the learned Public Prosecutor representing the State of Kerala.

3. The prosecution case is that on 05.04.1999 at about 10:30 a.m, the petitioner inflicted blows upon PW2 with a spring stick causing multiple injuries including fracture of right hand ring finger. Though the final report filed by the S.I of Police, Aranmula before the learned Magistrate contained the offence under Section 379 I.P.C as well, the Trial court found that the aforesaid offence was not brought out from the evidence on record.

4. The courts below placed heavy reliance on the evidence tendered by PW2 to PW4 to arrive at the conclusion that the petitioner had inflicted voluntary grievous hurt upon PW2 by hitting him with a spring stick. However, the courts below omitted to take note of the fact that the aforesaid witnesses did not tender any statement identifying the petitioner herein, as the offender who mounted physical assault upon PW2, when examined before the Trial court. In other words, the failure of the prosecution to have dock identification of the accused, has been ignored by the courts below while proceeding with the conviction and sentence.

5. In Tukesh Singh v. State of Chattisgarh [2025 KHC

6479], the Hon’ble Supreme Court has held that, in a case where the eye witnesses knew the accused before the incident, they must identify the accused in dock as the same accused whom they had seen committing the crime. It was further observed thereunder that, unless the eye witnesses identify the accused present in Court, it cannot be said that the guilt of the accused has been proved based on the testimony of those witnesses. The relevant paragraph in the judgment of the Hon’ble Supreme Court is extracted hereunder: “21.In a case where there are eyewitnesses, one situation can be that the eyewitness knew the accused before the incident. The eyewitnesses must identify the accused sitting in the dock as the same accused whom they had seen committing the crime. Another situation can be that the eyewitness did not know the accused before the incident. In the normal course, in case of the second situation, it is necessary to hold a Test Identification Parade. If it is not held and if the evidence of the eyewitness is recorded after a few years, the identification of such an accused by the eyewitness in the Court becomes vulnerable. Identification of the accused sitting in the Court by the eyewitness is of utmost importance. For example, if an eyewitness states in his deposition that “he had seen A, B and C killing X and he knew A, B and C”. Such a statement in the examination-in-chief is not sufficient to link the same to the accused. The eyewitness must identify the accused A, B and C in the Court. Unless this is done, the prosecution cannot establish that the accused are the same persons who are named by the eyewitness in his deposition. If an eyewitness states that “he had seen one accused assaulting the deceased with a sword, another accused assaulting the deceased with a stick and another accused holding the deceased to enable other accused to assault the deceased.” In such a case, the eyewitness must identify the accused in the open Court who, according to him, had assaulted the accus