The substantive evidence of a witness is the statement made in court, and the purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence.

SANJIV KHANNA, J.

1. Vikram (son of Mange Lal) and Gopal, in these connected appeals, impugn common judgment dated 24.2.2000 convicting them under Sections 396 of the Indian Penal Code, 1860 (IPC, for short) for dacoity and murder of Kishan Miglani and Usha Miglani in the intervening night of 15th and 16th September, 1996 at G-85, Vikas Puri, Delhi. The appellants have also been convicted under Section 412 IPC for possessing stolen property. By order on sentence dated 6.3.2000, the two appellants have been sentenced to undergo imprisonment for life for the offence under Section 396 IPC and rigorous imprisonment for a period of seven years for the offence under Section 412 IPC. The punishments would run concurrently and Section 428 of Code of Criminal Procedure, 1973 (Cr. P.C. for short) would apply.

2. The impugned judgment also convicts Rajmal and Bikram (son of Bhagirath), who were similarly sentenced. However, the said Rajmal and Bikram (son of Bhagirath) have expired and the appeals filed by them have abated.

3. The appellants do not dispute that Usha Miglani and Kishan Miglani had suffered homicidal death in the intervening night between 15th and 16th September, 1996 at their residence G-85, Vikas Puri, Delhi. The said factum has been proved beyond doubt and debate. Before referring to the ocular evidence of Diksha (PW-4), we would begin with the testimony of Dr. Reena Garg (PW-1) who had proved the MLCs (Ex.PW-1/A and Ex.PW-1/B) in the handwriting of Dr. Naresh. The said Dr. Naresh had left the services of DDU Hospital and his whereabouts were unknown. The MLCs recorded at 5.45 and 5.46 AM on 16.9.1996 mention that Kishan Miglani and Usha Miglani were brought dead to the said hospital. Dr. L.K. Barua (PW-2), who had conducted post-mortem on the two dead bodies, in his reports Ex.PW-2/A and Ex.PW-2/B and his ocular testimony, has referred to the lacerated wounds, abrasions, contusions and defused contusions etc. PW-2 has opined that Kishan Miglani had suffered fracture of right zygomatic bone, that the left side soft tissues of the neck contained full black (sic. blood) clot and the left jaw bone was fractured. The second and third cervical vertebras of Kishan Miglani were fractured with contusion of the spinal cord. The death, he opined, was due to spinal shock as a result of injuries to the neck, associated with other injuries. Usha Miglani had suffered lacerated wound on the lateral aspect of left side forehead with the left eye ball coming out and lacerated wound between the left eye and tragus of the left ear. Usha Miglani had bruises on the lateral aspect of the left eye and back of the left arm. On internal examination, PW-2 observed that left temporal bone extending up to middle crania fossa was fractured. The brain showed generalized subdural haemorrhage. Orbital plate of left frontal bone was also fractured. These injuries were ante-mortem. The injury to the head was sufficient to cause death in the ordinary course of nature. The death was due to coma resulting from this injury.

4. On the question that there was forced intrusion and robbery in House No. G-85, Vikas Puri, Delhi in which Kishan Miglani and Usha Miglani had suffered homicidal death, we have the testimony of their daughter Diksha (PW-4), who was about 11 years of age when her deposition was recorded in the Court on 30.4.1998. Thus, Diksha (PW-4) was about 9 years of age on the date of occurrence i.e. the intervening night of 15th and 16th September, 1996. The trial court judge, before recording her testimony, had asked preliminary questions for ascertaining and verifying whether Diksha (PW-4) was capable of logically answering questions put to her. PW-4 has deposed that on the fateful night, she had slept in the bedroom with her parents and her younger brother aged about five years. At about 3 A.M., PW-4 woke up upon hearing her mother’s scream and cry. PW-2 saw that someone was beating her father with a balli like weapon in his hand. Ther