The reliability of witness identification in court and the necessity of a test identification parade to establish the guilt of the accused.

Abdul Gafoor, J.

Six persons were charge sheeted for the offence punishable under Secs.143, 147, 148 and 449.302 read with Sec.149 I.P.C. Sec.149 was incorporated because of the involvement of accused 5 and 6. On the basis of the evidence available the learned Add1. Sessions Judge, Palakkad found nothing on record for the involvement of accused 5 and 6 and they were acquitted. But the learned trial judge found that accused. 1 to 4, appellants before us, were guilty of the offences punishable under Sec.443 and 302 IPC and convicted and sentenced them to undergo rigorous imprisonment for two years for the former offence and to undergo life imprisonment for the latter offence. It was also found that they had common intention to commit such offence. So the punishment was also taking into account Sec.34 IPC.

2. On reading the judgment, it is also seen that the main defense taken by the accused was that none of the witnesses had properly identified any of the accused to implicate them in the alleged incident. It was also contended that there was also no proper recovery to connect the accused with the weapon alleged to be used to inflict the injuries on the deceased.

3. The prosecution case was as follows:

4. The deceased Balakrishnan was a watchman attached to Geetha Theatre at Kulapully. After the second show on 7.2.1996 he was in the canteen chatting with PW1. an employee in the said canteen. It was at 12.30 a.m. At that time the accused persons arrived in a jeep to the theatre. Four among them, the appellants before us came down to the canteen and asked the deceased whether he got a money purse. He answered in the negative. The deceased was asked to come out of the canteen. The deceased came out. At that time accused No. 3 with M.O.4 stabbed the deceased Balakrishnan. Deceased Balakrishnan on receipt of the stab injury ran outside the compound of the theatre and went to a saw mill on the opposite side. The accused persons ran behind the deceased and accused No.4 inflicted a cut injury with M.O.1 sword on the deceased. He fell down and succumbed to injuries. The witnesses of this case cited by the prosecution were PW1 to PW23, PW1 was the first informant as well. He had given Ext.P1 F1 statement to PW13, the sub inspector of police at about 2.30 a.m on the date of incident and pursuant to Ext.P1.Cirme No.41/1998 was registered and the assailants were indicated as persons who could be identified by sight. None was named by PW1 while giving F1 statement nor any description of the assailants had been given to the police. Based on this PW10 conducted the investigation and arrested the accused, recovered MO.1 and 4 and Ext.P10 charge was laid against the accused.

5. The learned Add1. Sessions Judge had on appreciation of the evidence on record negativing the contentions of the defence convicted and sentenced the appellants/accused 1 to 4, mainly relying on the evidence of PW1 to PW3 who are alleged to have seen the incident of A4 and A3 inflicting the injuries, as mentioned above in the mercury light on the side of a road. It was an important junction, where there was sufficient light. There were enough vehicles parked and different shops functioning there. As all the witnesses had identified the accused in Court as seen by them on the date of occurrence in the mercury light available at the place of occurrence. It was found by the learned trial judge that the guilt had been proved beyond doubt as regards accused 1 to 4. Accordingly the conviction and sentence.

6. It is contended in this appeal that the identity of the accused/appellants had not been proved by the prosecution. As deposed by PW1 to PW3, none of them had seen any of the accused, at any time, before the date of occurrence, namely 7.2.1996. All these three witnesses are unanimous on that point. PW1 had also not seen them at any point even thereafter. He identified them in the court. But according to PW2 and PW3 they had seen the accused in the police station, after t