The court upheld the trial court's conviction for murder and attempt to murder, affirming that the injuries inflicted were sufficient to cause death and established intent among the accused.

CAV JUDGMENT

(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)

Crl.A.No.691/2022 is filed by accused No.1 and Crl.A.No.724/2022 is filed by accused Nos.2 and 3. All the three accused faced trial in S.C.No.192/2019 before LVI Additional City Civil and Sessions Judge, Bengaluru (CCH-57) in relation to an incident that occurred in the intervening night of 18/19.10.2018.

2. The name of the deceased is Jagdeep Singh who was working as a chef at Conrad hotel. PW1, PW2, PW4 and Jagdeep Singh were all residing in a rented room at Mathikere, Bengaluru. PW5-Nidhi and PW6-Nisha were the students of hotel management course and were undergoing training in the hotel where Jagdeep Singh was working. PW4 was also working in the same hotel. On 18.10.2018 at 10.30pm when PW4 was about to leave the hotel after finishing his work, PW5 and PW6 told him that they would like to meet Jagdeep Singh and have dinner with him. Therefore PW4 brought PW5 and PW6 with him, and standing on the road in front of the building where they were living, he made a telephone call to Jagdeep Singh and said that PW5 and PW6 wanted to have dinner with him, and also asked him to bring the key of the motorcycle of PW1. Accordingly Jagdeep Singh brought the key, and all of them decided to have dinner in a nearby restaurant. PW5 and PW6 left that place on the motorcycle as Jagdeep Singh and PW4 had booked for a cab. The time then was 12.15am. As the motorbike moved forward for some distance, they saw three persons coming in front of them. They went to the place where Jagdeep Singh and PW5 were standing and started altercating with them. They were all drunk. Suddenly one person took a knife and inflicted injury on the neck of Jagdeep Singh. PW4 returned to that place in his motorbike hearing the shoutings. As he interfered, two others inflicted injuries on his head by assaulting with beer bottle and a stone. Jagdeep Singh was bleeding. Therefore PW4 took him on his motorcycle to go to hospital. On the way Jagdeep Singh fell down from the motorbike. Thereafter he was taken to hospital in an auto rickshaw. Ultimately Jagdeep Singh succumbed to injuries. When PW4 was in the hospital his statement was taken by the police at 5.30pm on 19.10.2018. FIR was registered and then charge sheet was filed against all the three accused after investigation.

3. After conclusion of trial, the trial court held accused No.1 guilty of offence punishable under Section 302 of IPC and sentenced him to life imprisonment with fine of Rs.30,000/-, and convicted accused Nos.2 and 3 for the offence under Section 307 read with Section 34 of IPC and sentenced each of them to rigorous imprisonment for ten years and fine of Rs.15,000/-. To arrive at this conclusion the trial court has fully placed reliance on the testimonies of PW1, PW4, PW5 and PW6.

4. Sri Prasanna Rao R, learned counsel for the appellant in Crl.A.No.724/2022 argued that PWs.4, 5 and 6 are the main witnesses, but their evidence is not worth reliable because they cannot be treated as eye witnesses to the incident. Though the prosecution case is that the deceased and PWs.4, 5 and 6 wanted to go to a hotel for dinner and the incident occurred when they were together, they cannot be called witnesses, at the best they were withnesses who do not become witnesses to the incident. His further line of argument was that since the incident is said to have taken place during night time, identification of the accused in properly conducted test identification parade (‘TIP’ for short) was necessary. When TIP was held, person having similar physical traits and features with that of the accused were not made to stand with him. Memoranda of TIP also do not contain signatures of the witnesses. Therefore for these reasons, the identification of the accused in the TIP cannot be held to be sufficient. The investigating officer could have collected CCTV footages of the incident. For all these reasons, even if PW4, PW5 and PW6 can be considered as witnesses to incide