IMPORTANT POINTS
1. It cannot be said that in the absence of test identification parade, the evidence of eyewitness identifying the accused would become inadmissible or totally useless, whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case.
2. In criminal appeal by SLP concurrent findings of facts by lower Courts cannot be assailed by making an effort to get into the entire evidence reappreciated as if appeal is a third appeal on facts.

Headnote:(i) Criminal Appeal by SLP-Scope of jurisdiction-Concurrent findings of fact by lower Courts cannot be assailed by making an effort to get entire evidence re-appreciated as if a third appeal on fact.
       Held : As this appeal arises under Article 136 of the Constitution of India, judgments of the Sessions Court as well as the High Court wherein concurrent findings of fact had been reached by both the Courts on appreciation of evidence of the injured eyewitnesses as well as other eyewitnesses, cannot be assailed by making an effort to get the entire evidence re-appreciated as if this is a third appeal on facts. We have to see whether the findings of fact reached by the High Court agreeing with the appreciation of evidence by the Sessions Court suffer from any patent error of law or have resulted in miscarriage of justice which can call for our interference in this appeal. (Paras 8 & 10)
       We have also carefully considered the impugned judgment of the High Court and have found that the conclusions to which the High Court reached against the appellants is well sustained on evidence on record and calls for no interference. It could not be demonstrated by learned counsel for the appellants that the concurrent findings of fact reached by the Sessions Court and the High Court on prosecution evidence suffered from any manifest illegality or perversity or had resulted into any grave failure of justice. Once this conclusion is reached, the appeal would be liable to fail. (Para 12)
       (ii) Criminal trial-Appreciation of evidence-Evidence of Investigating Officer-Allegation of lack of bona fide of Investigating Officer because he removed injured to hospital first, then started investigation very late and not recorded names of accused at the earliest possible - Allegations baseless-Injuries sustained by victim very serious-Nothing unusual in anxiety of Investigating Officer to first remove injured to hospital to save life instead of going into meticulous details - Investigation cannot be branded as malafide. (Para 15)
       (iii) Criminal trial-Appreciation of evidence-Evidence of eyewitnesses-Absence of test identification parade-Cannot make evidence totally inadmissible or useless-Credence of evidence would depend upon facts and circumstances. (Para 20)
       (iv) Test Identification Parade-Non-conduction of-Whether fatal so as make evidence of eyewitnesses totally inadmissible-Held : No.
       It cannot be said that in the absence of test identification parade, the evidence of eyewitness identifying the accused would become inadmissible or totally useless whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. (Para 20)
       (v) Indian Evidence Act, 1872-Section 32-Dying declaration-Statement of injured recorded by Investigating Officer at hospital as FIR-Injured succumbing to injuries -FIR treated as dying declaration.

JUDGMENT

S.B. Majmudar, J. -The appellants in this appeal, on grant of special leave under Article 136 of the Constitution of India, are original Accused Nos. 1 to 4 and 6 who were convicted for the offences under Sections 302, 307, 326, 324, 323 342, 452 read with Section 149 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for life by the Additional Sessions Judge, Surat. The said decision was upheld by the High Court in criminal appeal, which has resulted in the present apeal.

2. In all there were eight accused sent up for trial before the learned Sessions Judge. The Sessions Court, however, acquitted Accused Nos. 5, 7 and 8. Appeal against their acquittal came to be dismissed by the High Court by the very same judgment. Their acquittal has not been further challenged before us by the State of Gujarat. Hence, in this appeal, we are concerned with the conviction and sentence of only the present appellants i.e. Accused Nos. 1 to 4 and 6. For the sake of convenience in the later part of the judgment, we will refer to the appellants as Accused Nos. 1, 2, 3, 4 and 6 while considering their respective roles in the incident in question.

Background Facts :

3. The prosecution case in short is that an incident occurred on 25.12.1987 at 9.30 A.M. in Varachha road area of the City of Surat in the State of Gujarat. It is the case of the prosecution that the present appellants and three others, who, as aforesaid, were acquitted, being in all eight accused, along with five to six other persons came on motorcycles and scooters armed with weapons like knife, gupti, hockey stick etc. That in the first place Accused Nos. 3, 4 and 6 came on a motorcycle to the premises known as Satyam Press where one Nitin, the brother of the deceased Ramanbhai Mohanbhai was standing and inside the Press one of its worker by name Bhogilal Ranchhodbhai was present. Accused No. 4 had a gupti and he chased Nitin for about 30 to 40 paces and as Nitin managed to escape, Accused No. 4 came back to the Press. In the mean time, Accused Nos. 3 and 6 were alleged to have climbed the steps and entered the Press and had started belabouring Bhogilal Ranchhodbhai and at the same time dragged him in. Accused No. 4, on return, joined them and all the three used their respective weapons and seriously injured Bhogilal Ranchhodbhai. Thereafter, they came out, but by then, Accused Nos. 1 and 2 had also come on the scene. Accused No. 1 was armed with a hockey stick and Accused No. 2 had an axe with him. At the time when Press incident was in progress, two events took place in quick succession. One was the intervention of a pan-stall holder Karsanbhai Vallabhbhai, when he started going towards the Press and tried to reason out with the assailants of Bhogilal Ranchhodbhai saying that the latter was a mere labourer or a worker in the Press and he should not be harmed in any manner. Being enraged by this intervention, Accused Nos. 1 and 2 pounced upon Karsanbhai Vallabhbhai with their weapons and caused him injuries. The second event is that by this very time deceased Ramanbhai Mohanbhai came out of his residence, which is quite nearby. Ramanbhai happens to be the elder brother of Nitinbhai, the owner of the press, and Ramanbhai was interrupted by Accused Nos. 1 and 2. Accused No. 1 is said to have given blows with the hockey stick to Ramanbhai and thereafter Ramanbhai turned back and rushed into his house to get shelter. Accused Nos. 3, 4 and 6 thereupon followed Ramanbhai Mohanbhai inside his house. He was inflicted fatal blows by these persons in his bedroom. Ramanbhai Mohanbhai s wife Niruben was an eyewitness to this assault on her husband.

4. It is the further case of the prosecution that at the time when the first part of the incident relating to Press took place and when Karsanbhai Vallabhbhai was injured, one more brother of Ramanbhai Mohanbhai i.e. Dhirubhai Mohanbhai, who was sitting on the stone platform near his house which is in near vicinity, a

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1999 Supreme(SC) 1394

Cases Referred (5)