Important Points
1. Where even before the Test Identification Parade photograph of the accused got printed in local news papers and further the witnesses were shown the photograph, the Test Identification Parade is nothing but a force and same has to be discarded.
2. As a matter of prudence it is highly unsafe to accept the identification of accused in Court many years after the occurrence when the Test Identification Parade made shortly after the occurrence has not been accepted.
3. Though direct evidence to establish conspiracy is not possible, there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy.

Headnote:Indian Penal Code, 1860-Section 302-Murder-Appeal against acquittal-Accused No. 1 allegedly shot dead victim in conspiracy with accused No. 2 - Motive business rivalry-No eyewitness-Circumstantial evidence-Maid servant (P.W. 3) of victim claimed to have seen accused No. 1 when he gave a call to bell shortly before gun shot -Test Identification Parade-Not believable-Photo of accused printed by news papers even before T.I. parade-Photo also shown to P.W. 3-Identification in Court many years after occurrence-Highly unsafe to accept when T.I. parade shortly after occurrence discarded -P.W. 9’s evidence and identification in T.I. also driver unreliable-Evidence of P.W. 2 auto rikshaw unreliable-P.W. 4 who claimed to have seen accused No. 1 also not reliable-Nothing to connect bullets allegedly recovered from house of accused and that recovered from body of deceased-Dying declaration does not name accused-Circumstances not established-Sessions Court justified in acquitting accused-High Court not correct in reversing acquittal. (Paras 6 to 12)
       (ii) Criminal Trial - Identification of accused in Court-Unsafe to accept when Test Identification Parade has not been accepted.
       Held : As a matter of prudence it is highly unsafe to accept the identification of accused in Court many years after the occurrence when the Test Identification Parade made shortly after the occurrence has not been accepted. (Para 6)
       (iii) Test Identification Parade-Reliability of - Photo of accused printed by news papers before T.I. parade - Photo of accused also shown to witnesses-Identification by witnesses cannot be accepted-T.I. nothing but a force and cannot be relied upon. (Paras 6 to 9)
       (iv) Indian Penal Code, 1860-Section 120B-Criminal conspiracy -Proof of-Direct evidence though not possible there must be some material from which it would be reasonable to establish alleged conspiracy and act done pursuant thereto.
       Held : To bring home the charge of conspiracy within the ambit of Section 120B of the Indian Penal Code it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy. (Para 11)

`Judgment

Pattanaik, J.-These two appeals are directed against the judgment and order of Kerala High Court dated 21.10.1991 in Criminal Appeal No. 370 of 1986. Vijayan @ Rajan appellant in Criminal Appeal No. 43 of 1992 alongwith Sadanandan-appellant in Criminal Appeal No. 753 of 1991 were tried in the Court of Session Judge Ernakulam for having committed the offence under Sections 120B, 109, 447, 302 and 201 read with Section 34 of the Indian Penal Code and also under Sections 35 and 25 of the Indian Arms Act for the murder of Majeendran by means of a revolver. The learned Sessions Judge acquitted both the accused persons. On an appeal being carried by the State, the High Court by the impugned judgment has set aside the order of acquittal passed by the learned Sessions Judge and convicted Vijayan of the charge under Section 302 IPC and Sadanandan of the charge under Section 302 read with 120B(1) of the Indian Penal Code and sentenced each of them to imprisonment for life and hence these two appeals.

2. The prosecution case is that the two appellants entered into a criminal conspiracy to cause death of Majeendran who was residing in the city of Cochin. Pursuant to the said conspiracy and being instigated by accused Sadanandan, Vijayan went to the house of Majeendran at 6.00 a.m. on 9.10.1981 and fired two shots at him from a revolver. One of the said shot hit the chest of Majeendran and immediately after firing Vijayan left the place. Majeendran was then first taken to the hospital by some of the neighbours and then to the Medical Trust Hospital where he succumbed to the injuries at about 7.10 a.m. The motive alleged by the prosecution was that Sadanandan was a rising abkari contractor and P.W. 50 who was uncle of Sadanandan was giving financial help to him. Deceased Majeendran was in business and had received finances from said P.W. 50. Sadanandan was perturbed on account of this, thinking that his uncle would no more render the same financial help for his business and as such he conspired with Vijayan and gave him a revolver and instigated him to punish Majeendran which he did on the fateful day during the early hours. Sadanandan was arrested on 27.10.1981. Vijayan surrendered before the Chief Judicial Magistrate, Ernakulam on 4.7.84. Though the prosecution examined as may as 70 witnesses and exhibited 110 documents to bring home the charge against the accused persons but there is no eye witness to the said occurrence. The prosecution, however, relied upon the circumstantial evidence. The learned Sessions Judge examined each of the circumstance which the prosecution relied upon and ultimately came to the conclusion that the circumstances those established do not complete the chain for bringing home the charges against the accused persons and accordingly acquitted both the appellant of all charges levelled against them. The High Court by the impugned judgment, however, re-appreciated the circumstantial evidence and being of the conclusion that the circumstances those established complete the chain pointing the guilt of the accused recorded the conviction of the two appellants.

3. Mr. Lalit, learned senior counsel appearing for the appellant Vijayan submitted that the High Court committed serious error in relying upon the evidence of P.W. 3 to come to the conclusion that she saw accused Vijayan on the early hours of the date of occurrence and reliance upon such circumstance is wholly unsustainable. Mr. Lalit also submitted that a bare reading of the judgment of the High Court would indicate that the Court was persuaded to come to a conclusion that the prosecution has been able to prove its case beyond reasonable doubt because of the sensation it created in the locality rather than on a proper appreciation of the evidence on record. Mr. Lalit also submitted that the learned Sessions Judge having discussed each of the circumstance sought to be established by the prosecution and having given good reasons for not accepting t

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