IMPORTANT POINTS
1. Unexplained delay in conducting test identification parade and non-inclusion of persons resembling accussed named in FIR, in test identification parade would be fatal to prosecution entailing benefit of doubt to accused.
2. No pre-meditation or previous meeting of mind is necessary for the applicability of Section 34 of the IPC. The existence of common intnetion can be inferred from the attending circumstances of the case and the conduct of the parties.
3. Motive in a criminal case based upon ocular testimony of witnesses is not at all relevant.

Headnote:(i) Identification parade-Delay in conducting test identification parade-Delay unexplained non-availability of a particular magistrate not a ground for delay-Failure to associate one or two persons having resemblance with persons named in FIR-Test identification parade not conducted properly-Test identification parade suffered from unexplained delay-Accused entitled to benefit of doubt.
       In cases where a person is alleged to have committed the offence and is not previously known to the witnesses, it is obligatory on the part of the investigating agency to hold identification parade for the purposes of enabling the witnesses to identify the person alleged to have committed the offence. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaing leaving no doubt in the mind of the court regarding his involvement. Such a parade may not be necessary in a case where the accused person is arrested on the spot immediately after the occurrence. The evidence of identifying the accused person at the Trial, for the first time, is from its very nature, inherently of a week character. The test identification is considered as a safe rule of prudence for corroboration. Though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for corroboration purposes in order to believe or not the involvement of the person brought before the Court for the commission of the crime. The holding of identification parade being a rule of prudence is required to be followed strictly in accordance with the settled position of law and expeditiously. The delay, if any, has to be explained satisfactorily by the prosecution. (Para 4)
       In the instant case the admitted position is that in the FIR lodged, the name of Accused No. 2 has not been mentioned. It is also not disputed that the identification parade was held on 13.2.1993, much after the said accused had been remanded to custody. There is no explanation as to why the test identification parade was held after an unexplained delay. The Accused No. 2 was arrested on 20.1.1993 but the identification parade was held on 13.2.1993. It is also not disputed that at the time of identification parade, the appellant was not having beard and long hairs as mentioned at the time of lodging of FIR. It is also not disputed that no person with beard and long hairs was included in the parade. The witnesses are alleged to have identified the accused No. 2 at the first sight despite the fact that he had removed the long hairs and beard. What prevented the Magistrate rom associating one or two persons having resemblance with the persons named in the FIR is a mystry shrouded with doubts and not cleared by the prosecution. The possibility of the witnesses having seen the said accused between the date of arrest and the test identification parade cannot be ruled out. (Para 3)
       The explanation for delay in holding the identification parade offered by the prosecution in the instant case is not trustworty. The non-availability of a Magistrate in a city like Bombay for over a period of five weeks from the date of the arrest of Accused Nos. 1 and 2 and three weeks from the arrest of Accused Nos. 3 and 4 cannot be accepted. It is not denied that scores of Magistrates are available in the city of Bombay and that the investigating agency was not obliged to get the parade concluded from a specified Magistrate. It was not for the defence to prove that the parade held was suffering from the legal infirmities because, admittedly, the onus of proof in criminal case never shifts as the accused is presumed to be innocent till proved otherwise, beyond all reasonable doubts, by the prosecution. Looking into the attending circumstances and the totality of the evidence produced in the Court, as the test identification parade regarding Accused No. 2 was not conducted properly and suffered from unexplained delay, he is entitled to the benefit of doubt. (Paras 4 & 5)
       (ii) Indian Penal Code 1860-Sections 302 r/w Section 34-Appeal against conviction-Eyewitness proved case of prosecution-Convicts plea that motive for crime not proved and therefore conviction not possible-Untenable -Motive in a criminal case based on upon ocular testimony of witnesses is not at all relevant.
        Motive in a criminal case based upon ocular testimony of witnesses is not at all relevant. Where the direct evidence regarding the commission of offence is worthy or credence and can be believed, the question of motive becomes, more or less, academic `Motive may be relevant in a case based upon circumstantial evidence only, being one of the circumstance. (Para 6)
       (iii) Indian Penal Code, 1860-Sections 34 and 149-Distinction between common intention and common object.
       Section 34 of the IPC in holding the appellants guilty of the crime. Section 34 and Section 149 of the IPC are distinct and distinguishable. No pre-meditation or previous meeting of mind is necessary for the applicability of Section 34 of the IPC. The existence of common intnetion can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purposes of common intnetion even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Para 7)

JUDGMENT

Sethi, J.-The appellants herein along with Santosh @ Sandeep @ Shanu were tried for the commission of offences punishable under Section 302, 504 read with Section 34 IPC by the Sessions Judge, Thane. They were alleged to ave committed the murder of Joy Kutty on 2.1.1993 at about 4.45 p.m. in a locality of Mumbai known as Vashi. They were convicted and sentenced to suffer imprisonment for life the commission of offences under Section 302 read with Section 34 IPC. The appeal filed by all the accused persons was dismissed by the High Court vide the judgment impugned in these appeals. All the accused persons excepting accused Santosh @ Sandeep @ Shanu have preferred these appeals alleging that the courts below have not appreciated the evidence properly in the case and that no case for conviction was made out against them. The prosecution witnesses were alleged to be interested and chance witnesses and were alleged to have not seen the occurrence. It is further contended that appellant Rajesh Govind Jagesh, Accused No. 2 before the Trial Court could not be convicted as he was not properly identified at the identification Parade which is stated to have been held in violation of settled principles of law and after a prolonged unexplained delay.

2. The case of the prosecution is that on 30th December, 1992 at about 9 p.m., the complainant Mandip Singh Johal, his cousin brother Surinder Singh and cousin sister Sarita @ Rita were retuning to their homes from the market in Sector 6 and 7, Harish Govind Jagesha, Accused No. 3, Sharif Anwar Saiyyad, Accused No. 1 along with thei two companions started teasing Rita by indulging in whistling. Surinder Singh looked at the aforesaid persons angrily. The said persons had beaten the complainant and Surinder Singh with fists. Sarita @ Rita lodged a complaint at Vashi Police Station on 1.1.1993 but the culprits could not be arrested despite efforts made by the police. On 2.1.1993, the complainant, his friends Joy Kutty, Dinesh Panchal, Harprit Singh Randhava, Kishore, Surinder Singh and Sarita @ Rita had gone to Win-win Hotel. On return, they left Rita at the house and at about 4.40 p.m. when they were passing from row house G and R in Sector 7 towards the market, Accused Nos. 1 and 3 along with their two companions came from behind, abused and attacked Joy Kutty with weapons like swords, chopper and gupti. Being apprehesive to the safety of their lives all except Joy Kutti ran from the place of occurrence. They reached Auto Rickshaw stand in Sector 6 and when they saw that Joy Kutty was running towards Sterling Hospital by the Highway from Octroi Naka. All of them lifted Joy Kutty and brought him to the Sterling Hospital. As no doctor was available in the hospital, Joy Kutty was taken to Lakshadip Hospital where, after examining, the doctors declared Joy Kutty as dead. The complaint Exhibit 18 was lodged by Mandip Singh Johal with B.A. Kadam, PSI at about 5.30 p.m. After registering the offence bearing No. 2/93, the PSI rushed to Lakshadip Hospital and conducted an inquest panchanama on the deed body of the deceased. At the instance of Accused No. 2 a sword (Article No. 9) was attached as per Exhibit 59 and Panchanama Exhibit 59A on 4.1.1993. Blood stained clothes of the accused Nos. 1 and 2 were seized on the same day. A sword and chopper (Articles 16 and 17) were attached as per Memorandum Exhibit 43 and panchanama Exhibit 44 at the instance of Accused No. 2 on 7.1.1993. Accused No. 3, namely, Harish Govind Jagesha and Accused No. 4 Santosh were arrested on 20.1.1993. On 23.1.1993 a knife and two shirts were recovered from the house of Accused No. 4 at his instance vide Memorandum Exhibit 61 and Panchanama 61-A. After the charges were framed against the accused persons under Sections 302, 504 read with Section 34 IPC they pleaded not guilty an claimed to be tried. On appreciation of evidence, the Trial Court held that the prosecution had proved that the death of Joy Kutty on 2.1.1993

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1999 Supreme(SC) 1302

Cases Referred (4)