IMPORTANT POINT
There is no inflexible rule that if identification parade is delayed then it would be difficult for the eye witnesses to remember the facial expressions of the accused.

JUDGMENT

S.N. Variava, J.-This Appeal s against a Judgment dated 22nd November, 1994.

2. Briefly stated the facts are as follows:

On 11th June, 1978 one Manoj Kumar (P.W.2) was returning to his home. At that time he was way laid by Chaman (the Appellant in Criminal Appeal Nos. 934-936 of 1995, which Appeals have been dismissed today by a separate Judgment) and four other persons way laid him and assaulted him with iron bars, knives and Dandas. On hearing his cries his younger brother Sanjay rushed forward to protect him and embraced Manoj in order to save his life. The younger brother was only 10 years old at that time. Even on seeing that 10 years old boy has embraced Manoj the assailants did not stop but continued to inflict knife and Danda blows even on the young boy of 10 years. On hearing the cries of Manoj and Sanjay, their father Shri Sidheswar Dwivedi, mother Smt. Kaushalya Dwivedi and sister Sangeeta rushed to save them. They were also assaulted. Thereafter other people of the public came there and the assailants ran away.

3. A complaint was lodged by the father Shri Sidheswar Dwivedi. In the first information report he named Chaman as having first attacked along with certain unknown persons. He thereafter named certain other persons who were supposed to have come there and helped the assailants after he reached the spot. On the basis of this complaint an investigation was made by the police. Eight accused were put up for trial. As Sanjay had died the changes were under Sections 302, 323, 325 read with 149 and Section 148 of the Indian Penal Code.

4. The prosecution examined a number of witnesses of whom P.W.1, was the father, P.W.2, was Manoj and P.W.4, was the mother. They were eye-witnesses who narrated the incident and identified Chaman and the Appellant. In spite of detailed cross examination their testimony could not be shaken. Their evidence was corroborated by the evidence of the Doctor who disclosed that Sanjay had died a homicidal death and that Manoj, his father and the mother had also received injuries.

5. After trial six persons were acquitted by the trial Court. Chaman and the Appellant were convicted by the trial Court under Sections 325 read with 149 I.P.C. for which a sentence of 4 years was imposed. They were also convicted under Sections 324 read with 149 I.P.C. and a sentence of 2 years was imposed. For offence under Sections 323 read with 149 I.P.C. a sentence of 6 months was imposed. For offence under Section 148 I.P.C. a sentence of 1 year was imposed. All the sentences were directed to run concurrently.

6. The Appellant (as well as Chaman) filed two criminal Appeals in the High Court. The State also preferred an Appeal against the acquittal under Sections 302 read with 149 and against the acquittal of other 6 persons. The High Court heard all these Appeals together and disposed off the same by the impugned judgment. The High Court has confirmed the finding of the trial Court that the prosecution had proved its case beyond a reasonable doubt as against Chaman and the Appellant. It has also confirmed the conviction under Sections 325 read with 149, 324 read with 149, 323 read with 149 and 148 of the Indian Penal Code. But the High Court has concluded, and in our view rightly, that an offence was made out under Sections 304 Part II read with 149 I.P.C. and sentenced both Chaman and the Appellant to 5 years rigorous imprisonment. Hence this Appeal.

7. Mr. Tripurari Ray has submitted that both the trial Court and the High Court have erred in convicting the Appellant. He submitted that in the FIR the Appellant has not been named. He submitted that the scribe of the FIR was one Mr. Umesh Kumar Dixit who was the nephew of the complainant. He submitted that Umesh Kumar Dixit was a class-mate of the Appellant and he knew the Appellant. He submitted that as Umesh Kumar Dixit knew the Appellant he would have named the Appellant in the written complaint if the Appellant had actually been present at that time. He