Karnataka HC: Test Identification Parade Tests the Memory of the Witnesses

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On 6.05.2021, the Karnataka High Court had allowed an appeal of criminal nature in part relating to the subject of homicidal death. The accused persons were charged under Sections 143, 147, 148, 447, 448, and 302 of IPC. They had appealed for dismissal of the imputed order passed by the learned trial court.

Facts of the Case

The criminal appeal was filed under Section 374(2) of CrPc praying to set aside the judgment given by the Additional District and Sessions Judge in 2016 of conviction and sentencing the accused under sections 143, 147, 148, 447, 448, and 302 of IPC. There was enmity between the accused and the deceased, therefore, he along with ten other people had conspired against the deceased. He had also formed an unlawful assembly intending to cause death and criminally trespassed the house of the deceased assaulting him with talwars and iron rod. All the eleven accused pleaded not guilty and claimed to be tried. In the trial court, they were convicted and therefore appealed in front of the higher court. 

Arguments by the Appellants

The learned counsel of the Appellants contended that the sentence passed by the trial court was mistaken and “cannot be sustained”. While mentioning the series of lacuna in the evidence submitted in the trial court, the counsel had submitted that the court ought to have provided the benefit of the doubt to the accused. Further, he had also submitted that the deceased was rowdy and had committed various heinous offenses. Therefore, there was a possibility of somebody involved in the homicide of the deceased other than the accused. Additionally, it was contended that the scope of appeal filed by the State was extremely limited. In support of the arguments made, the counsel had referred to the case of Mohd. Iqbal M Shaik V. State of Maharashtra (1998) 4 SCC 494. 

Arguments by the Respondent

The State of Karnataka, the Respondents, submitted that in the complaint it was specifically mentioned that the accused no. 1 to 6 were involved in the homicide of the deceased. The learned counsel of the Respondent contended that the Investigating Officer found the weapons at the instance of the accused. Further, it was pointed out that there is sufficient evidence against the accused as the sketches produced depicted the involvement of a certain accused person. The post-mortem report was submitted and the use of the recovered weapons was highlighted.

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Furthermore, it was contended that the evidence of the prosecution witness and documents produced depicted that the accused person was involved in a homicidal death. To support the submitted arguments, reliance was taken on the case of Balwan Singh V. State of Chattisgarh, AIR 2019 SC 3714. 

Court’s Observation

The Karnataka High Court had observed that the points of consideration include: Whether the trial court’s conviction of the accused is justified? After hearing the learned counsels of both parties and various prosecution witnesses, the two-judge bench was of the view that there was enmity between the deceased and the accused no. 1, due to land and financial disputes. Further, it was observed that the learned trial court did not consider all aspects as no Test Identification Parade was conducted, no clarity on which accused used the weapon, and no proper identification of the accused. Thus, the court was of the view that the prosecution had failed to prove beyond doubt the involvement of all the accused persons. 

Court’s Order

After considering the oral and documentary evidence, the two-judge bench had allowed the criminal appeal in part. The impugned order of conviction of Accused 1 was confirmed while it was ordered that Accused 3 and 8 should be set at liberty. 

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