The identification of the accused in the Court by the injured eye-witness was sufficient to sustain the conviction, dismissing the appeal.

ORDER :

The appellant is challenging his conviction recorded for the offences committed under Section 302 read with Section 34 of the Indian Penal Code (IPC) as well as under Section 307 read with Section 34 I.P.C. Since the appellant is convicted under Section 302 I.P.C. as well, he has been sentenced to undergo life imprisonment. The said conviction and sentence passed by the Trial Court has been upheld by the High Court vide impugned judgment dated 28.01.2013.

2. It may not be necessary to state the facts in detail as the arguments which are made by the learned counsel for the appellant are confined to the validity of Test Identification Parade (TIP) which was conducted by the Trial Court and submission was that since the said TIP is legally unsustainable, the entire case of the prosecution, as a result thereof would collapse. Therefore, we are taking note of only those facts which are necessary in dealing with the aforesaid arguments of the appellant.

3. The appellant was charged for the aforesaid offences alongwith co-accused Shakil and Tahib. Shakil died during the trial of the case. Therefore, trial against him stood abated. Both the appellant and Tahib have been convicted. It appears that Tahib has not challenged the judgment of the High Court. The charge against these accused persons was of committing the murder of one Mr. Amit Kumar Sundriyal and attempt to kill Mr. Ramesh Chand Sundriyal, who was the complainant and had appeared in the witness box as PW-1. The following discussion is relevant :-

"2. Homicidal death of Amit s/o Ramesh Chand Sundariyal (PW-1) is virtually undisputed and is proved beyond doubt from the testimony of PW-1, who was present with Amit in their medical store/shop at F-3/4, Dayalpur Extension, Main Road, Karawal Nagar, Delhi at about 10.45 p.m. on 21st August, 2006. Amit was fired at by a person, who had tried to enter the shop. PW-1 has deposed that the shot had hit on the shoulder of Amit. PW-1 rushed towards the person, who had fired the shot, to overpower him. PW-1 was fired at and got injured when shot hit his right hand. Thereupon, Amit rushed to save him and at that time Amit was hit by another shot. The assailants fired another shot which touched PW-1 "s abdomen and then probably hit his son.

3. The injuries suffered by PW-1 and the deceased have been proved by Dr. Devender Kumar (PW-22), who had prepared the MLC (Ex.PW 22/A) of PW-1 dated 28th August, 2006. MLC records that PW-1 had alleged history of gunshot injuries. On local examination, he found an entry wound on ventral and an exit wound on the medially near the right hand wrist. Abrasion on the epigastric region was also found. After examining the wound, one Dr. Sumit Chakravarti had recorded that as per the surgical record, the nature of injury was "simple". Dr. R.P. Singh on 21st August, 2007 after examining the X-ray had opined that the injury was "grevious". The patient, i.e., PW-1 was admitted into the hospital as per the MLC.

4. Shakil was arrested in December, 2006. He made a disclosure statement implicating the appellant as well on the basis of which the appellant was also arrested in May, 2007. After the arrest of the appellant, his photograph was published in the newspaper and the same was seen by the complainant(PW-1). The appellant was, thereafter, put to TIP after few days where PW-1 identified the appellant.

5. On the aforesaid fact, arguments of the learned counsel for the appellant is that once the photograph of the appellant had been published in the newspaper and PW-1 had seen the said photograph, there was no purpose for conducting TIP and, therefore, the identification of the appellant in such TIP by PW-1 would be a no consequence. In support of these arguments, the learned counsel for the appellant has relied upon two judgments of this Court in Mullagiri Vajram and Others v. State of Andhra Pradesh; AIR 1993 SC 1243 and in Binod Bihari Singh v. Union of India; AIR 1993 SC 1245. In nutshell, the submission is that