State of Kerala v. XXX and XXX

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943** **CRL.MC NO. 2949 OF 2021** **SC 1576/2019 OF ADDITIONAL SESSIONS COURT - V, THIRUVANANTHAPURAM CRIME 1576/2019 OIF NEDUMANGAD POLICE STATION** ## **PETITIONER** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR SRI.C.K.SURESH Sr.PP ## **RESPONDENT/S:** 1 XXX 2 XXX BY ADV RAMESH .P **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD 23.11.2021, THE COURT ON 30.11.2021 DELIVERED THE FOLLOWING:** Cr.M.C.No.2949/2021 2 ## **ORDER** Dated : 30[th] November, 2021 1. Crl.M.C has been filed against the order dated 13.4.2021 passed by the Additional Sessions Court-V, Thiruvananthapuram in S.C.1576/2019 while examining PW35 charge witness No.19 rejecting the request of the Public Prosecutor to direct the accused persons to come near the witness box for proper identification. 2. According to the learned Senior Government Pleader and Public Prosecutor, the witness expressed his inability to see the face of the accused at such a distance in the box in the court room because of his vision problem. The Sessions Judge initially allowed the request of the prosecution and directed the accused persons to come near the witness box and subsequently disallowed the said request based on the objection raised by the defence counsel. So the prime duty cast upon the prosecution to prove the identity of the accused person in the above case has been shut down. It is the burden of the prosecution to prove the case without any iota of doubt and that has been curtailed by the illegal procedure adopted by the Sessions Judge. Cr.M.C.No.2949/2021 3 3. Notice was issued to the respondents/accused and the accused appeared through counsel. Heard both sides. 4. Crl.M.C has been filed against an order passed during the course of examination of PW35 whereby the learned Sessions Judge refused the permission initially given to identify the accused persons by directing accused Nos.1 and 2 to stand within the distance of one feet in front of witness. Learned counsel for the accused persons opposed the procedure and thereafter the court disallowed the prayer of the learned Additional Public Prosecutor finding that the Prosecutor had opportunity to make the witness to identify during chief examination. 5. The learned Public Prosecutor relied on **Mohammed v. State of Kerala (2003 (1) KLJ 46 = 2002 KHC 969), Vayalali Girishan and Others v. State of Kerala (2016 (1) KLD 536 = 2016 KHC 204)** , **Rafeeque v. Sub Inspector of Police, Kunnamkulam police station and Another (2020 (4) KLT 188 = 2020 (3) KHC 715)** as well as **Girishkumar @ Girishan v. State of Kerala (Crl.A.1456/2005 dated 30.11.2020),** and **Sadasivan @ Para v. State of Kerala and Another (Crl.A.1461 of 2005 dated 30.6.2020)** to contend that identification of the accused is very much Cr.M.C.No.2949/2021 4 necessary in a criminal trial and specific endorsement by Judge that accused was identified by the witness or that answer to identification pointed towards the accused or some other indication towards the accused must be there in the deposition and the absence of proper identification of the accused is a lacuna in prosecution case. 6. In **Mohammed's** case, it has been held that specific endorsement by Judge that accused in the dock was identified by witness or that answer to identification pointed towards the accused or some other indication towards the accused must have been made in the depositions. 7. In **Vayalali Girishan's** case, it has been held that merely recording the rank number of the accused in the charge without making any effort to certify the same in the deposition that the person referred by witness as one of the members of the unlawful assembly is the person standing in the dock is necessary and in the absence of the same, it cannot be said that witness was referring to a particular accused whose name finds a place in the charge or to some other person and hence it was held that there was no proper identification of the accused. That was a case charged under Section 302, 143, 147, 148, 324 IPC r/w Section 27(1) of the Cr.M.C.No.2949/2021 5 Arms Act. 8. In **Rafeeque,** it has been held that substantive evidence to prove the identity of an offender is the statement of the witness in the court identifying the accused in the court as the offender or the person who committed the act. The identity of the offender cannot be proved merely on the basis that name of the accused is mentioned in the documents prepared by the detecting officer. 9. **Crl.A.1456/2005 dated 30.11.2020** was a case charged under Sections 143, 147, 148, 341 and 307 r/w 149 IPC, wherein it has been held that it is the fundamental duty of the prosecution to prove the identity of the accused in court and simply because the witness deposed that accused is there in the dock is not enough. 10. In **Crl.A.1461 of 2005** also, it has been held that it is the duty of the prosecution to identify the accused by the witnesses from the dock at the time of trial. 11. So it is a well settled position of law that identification of the accused before the court by the witness is very important and it is the fundamental duty of the prosecution to prove the identity of the accused before the court. In the absence of the same, the benefit of doubt in that regard Cr.M.C.No.2949/2021 6 would definitely go to the accused. 12. So refusal on the part of the learned Sessions Judge in not permitting the witness to identify the accused is per se illegal. It has been recorded in the deposition that prosecution had opportunity during chief examination to identify the accused persons. During chief examination, there is clear statement that witness identified accused Nos.1 and 2. But during cross-examination it has been brought out that he has got problem in his vision and even if spectacles are worn, he can not see more and he would specifically state that he has problem in vision at a long distance and further categorically stated during cross-examination that the face of the accused persons standing in the dock are not clear to him from the witness box. So though there was identification of accused Nos.1 and 2 by the witness in chief examination, it was brought out during cross-examination that his vision is blurred or he has got problem in seeing objects standing at distance and further he categorically stated that the face of the accused persons are not clear to him. So it is the bounden duty of the prosecution to make proper identification of the accused persons by the witness. At the same time, I do not think that the procedure adopted by the learned Sessions Cr.M.C.No.2949/2021 7 Judge initially by calling the accused persons from the dock to a distance of one feet away from the witness box is proper. The witness ought to have been permitted to get down from the witness box and move towards the dock where the accused persons are standing and gave him opportunity to identify the accused persons. Thereafter he has to get into the box and swear again and continue the examination. Denial of that opportunity to the prosecution by the learned Sessions Judge definitely is an abuse of process of court since it is the burden of the prosecution to prove the identity of the accused persons and hence it is liable to be set aside. 13. In the result, Crl.M.C allowed. The learned Sessions Judge is directed to recall PW35 for the sole purpose of identification of the accused persons by the witness. Sd/- ## **M.R.ANITHA, Judge** Mrcs/26.11 Cr.M.C.No.2949/2021 8 ## **APPENDIX OF CRL.MC 2949/2021** PETITIONER ANNEXURE Annexure I TRUE COPY OF THE FINAL CHARGE IN CRIME NO. 1048/2019 OF NEDUMANGAD POLICE STATION. Annexure II TRUE COPY OF THE CERTIFIED COPY OF THE DEPOSITION OF PW35 RAJENDRAN RECORDED BY THE LEARNED TRIAL COURT CONTAINING THE ORDER UNDER CHALLENGE MADE THEREON IN PARA 19 AND 20 DATED 13/04/2021.