Test Identification Parade Necessary When Accused Are Strangers To Witnesses: HP High Court Acquits Accused After 13 Yrs
The Himachal Pradesh High Court has acquitted multiple accused in a case of assault after 13 years, holding that when the accused are strangers to a witness, a test identification parade is necessary. It was held that failure to establish the identity goes to the root of the matter, as it raises a possibility that the accused was wrongly identified.
Justice Sushil Kukreja held, “A bare perusal of the statement of these witnesses i.e. PW-1 to PW-3 so examined by the prosecution is clearly indicative of the fact that some of the accused persons were stranger to the said witnesses and in these circumstances test identification parade was necessary in order to ascertain the identity of the accused persons. Failure to establish the identity of the accused goes to the root of the matter as such the possibility of mistaken identity cannot be ruled out.”
Background Facts:
On 08.04.2008, the then Rent Controller of Wakf Board, Himachal Pradesh, made a complaint against the accused that he, along with others, was quarrelling with him and the other officials in Kutub Masjid, located in the Sabzi Mandi area of Shimla, Himachal Pradesh.
The complainant submitted that he, along with some other officials, went to the mosque to close a staircase inside the Masjid, following an official order issued by the Chief Executive Officer of the Wakf Board.
He alleged that while they were fixing the plywood to close the stairs, the main accused Liyakat Ali, who was then the President of the local Hawkers' Union, arrived at the mosque with several other men, who are the co-accused in this case. As alleged by the complainant, the group started thrashing him and the other officials. The complainant further submitted that he and the other officials suffered various injuries.
Based on the complaint, the police registered an FIR and, after completion of the investigation, filed a charge sheet before the Trial Court. The Trial Court convicted all the accused for rioting under Section 147 IPC and for voluntarily causing grievous hurt to deter a public servant from duty under Section 333 read with Section 149 IPC.
Aggrieved, the accused filed an appeal before the High Court.
Findings:
The Court observed that the complainant in his statement had named only five persons. The remaining accused were not named in the First Information Report, and the complainant also admitted that no test identification parade was conducted by the police. He identified the accused persons for the first time in the Court.
The Court remarked that from the statement of witnesses, it is clear that some of the accused persons were strangers to the witnesses and in such circumstances test identification parade is necessary in order to ascertain the identity of the accused persons. It stated that failure to establish the identity of the accused goes to the root of the matter, as such, the possibility of mistaken identity cannot be ruled out.
In Dana Yadav @ Dahu v. State of Bihar, the Supreme Court held that “Ordinarily, if an accused is not named in the first Information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police. ”
Therefore, the Court held that when no test identification parade is held, and the accused is identified for the first time in Court, it should not be the sole basis for conviction unless supported by other evidence.
So, when there was no specific allegation against some accused in the FIR, then obviously it was the duty of the prosecution to prove its case beyond a reasonable doubt by leading evidence of identification before the court that the accused persons gave beatings to the complainant party.
However, it was the duty of the prosecution to prove its case beyond a reasonable doubt by leading evidence of identification before the Court that the accused persons assaulted the complainant.
The Court remarked that despite the incident occurring inside a busy mosque located in a populated area, no independent witness was examined.
Thus, the Court concluded that there is a serious lapse in the investigation and set aside the judgment of conviction passed by the trial court.
Case Name: Liyakat Ali v/s State of HP
Case No.: Cr. Appeal No.67 of 2010, a/w Cr. Appeals No.72,84 to 88,90 to 94 & 98 of 2010
Date of Decision: 20.06.2025
For the appellant(s): Mr. N.S. Chandel, Sr. Advocate, with Ms. Shwetima Dogra, Advocate.
For the respondent: Mr. Pawan Kumar Nadda, Additional Advocate General.