The main legal point established in the judgment is the importance of reliable identification evidence, the conduct of test identification parades, and the requirement of clear and cogent evidence to establish common intention.

Headnote:
Identification - Criminal Law - Indian Penal Code - Sections 323, 302, and 34 - Test identification parade, identification evidence, and common intention - The court discussed the importance of test identification parades, the reliability of identification evidence, and the requirement of clear and cogent evidence to establish common intention. The court emphasized the need for fair opportunity for observation, reasonable time for identification, reliable power of observation, credibility of witnesses, and the satisfaction of the court on the acceptability of identification. The judgment also highlighted the conduct of identification parades, the role of the Magistrate, and the relevancy of identification under the Evidence Act.
Fact of the Case:

The appellants were on pilgrimage to Sabarimala and were involved in a violent incident resulting in the death of a shop owner. They were tried for offences under Sections 323 and 302 with the aid of S. 34 of the I.P.C. The main contention was the lack of identification or defect in identification of the assailants, and the disputed proof of common intention.
Finding of the Court:

The court found that the evidence of identification, though with some contradictions and discrepancies, supported the prosecution's version of the joint attack and the murderous attack. The court emphasized the importance of test identification parades and the corroborative role of identification evidence before the court. It also highlighted the need for clear and cogent evidence to establish common intention.
Issues: The main issues revolved around the identification of the assailants, the proof of common intention, and the reliability of identification evidence.
Ratio Decidendi: The court emphasized the importance of fair opportunity for observation, reasonable time for identification, reliable power of observation, credibility of witnesses, and the satisfaction of the court on the acceptability of identification. It also highlighted the conduct of identification parades, the role of the Magistrate, and the relevancy of identification under the Evidence Act.
Final Decision: The appeal was partly allowed, setting aside the conviction and sentence for the offence under Section 302 read with S. 34 of the I.P.C. for accused 2, 3, and 4, and acquitting them of that charge. The conviction and sentence for the offence under Section 323 read with S. 34 were upheld. The appeal against the first accused was dismissed, confirming the convictions and sentences for both offences. If accused 2, 3, and 4 have served out their term of imprisonment, they will immediately be set at liberty.

Judgment :-

PADMANABHAN, J.

Along with others, the four appellants were on pilgrimage to Sabarimala. At Erumeli, two of them (accused 3 and 4) picked up quarrels with some other pilgrims in front of the tea shop of PW 2 by about midnight on 7-12-1985 and received some beatings. When the fourth accused fell down, the third accused went and brought accused 1 and 2. Suspecting PW 2 to be one of the assailants, all the four jointly assaulted him. Deceased Rajan, an adjacent shop owner, rushed to the scene, probably on a peaceful errand to prevent the attack. First accused took out MO 1 knife from his loins and stabbed Rajan twice resulting in injuries. When PW 2 escaped and ran away, the other three also joined hands in attacking Rajan. He was pulled down. Then the first accused inflicted the fatal stab on his right chest when he attempted to rise up. He walked to his shop and then fell dead. On these allegations, the four appellants were tried in Sessions Case No. 22 of 1986 before the Sessions Judge, Kottayam for offences punishable under Sections 323 and 302 with the aid of S. 34 of the I.P.C. Common murderous intention was found. Each one was sentenced to imprisonment for life and rigorous imprisonment for one year, permitting the sentences to be suffered concurrently.

2. PWs 1, 2, 3 and 5 are the occurrence witnesses. Appellants were utter strangers to them. A test identification parade was conducted under the supervision of the Magistrate, examined as PW 8. Ext. P4 is the proceeding. Though PW 2 identified all the accused in the parade and PW 5 identified accused 1, 3 and 4 and PW 1 could identify only accused 3 and 4 and PW 3 identified accused 2 and 3 alone. Lack of identification or defect in identification was the main contention. The incident is also alleged to have taken place in a different manner involving other persons and injuries to the accused also. Proof of common intention was also disputed.

3. The fact that PW 2 and Rajan sustained injuries at the time and place alleged by the prosecution and Rajan succumbed to the injuries is beyond dispute. Evidence of PWs. 1, 2, 3 and 5 when taken along with Ext. P5 post-mortem certificate and Ext. P6 wound certificate prepared by PW 9, amply prove these facts. The injury sustained by the deceased is fatal involving the heart and lungs. It is evidently an intentional and forcible stab on a vital part of the body and the intention was nothing short of murder.

4. We were not impressed by the argument the prosecution did not succeed in establishing the identity of the assailants. It is true that the assailants were not previously known to the occurrence witnesses. But we need not go into the controversy whether in such cases the substantive evidence of identification before court could be accepted only if it was preceded by identification in a test identification parade during investigation. The matter is covered by decisions. In this case, a test identification was already conducted. The question therefore is only how far the test identification parade and the identification therein could be used for corroborative purposes of as aid in the appreciation of the substantive evidence of identification before court. We said so because the test identification parade itself was the subject of serious comments.

5. It is true that there is some little positive contradictions on minor details including sequence of events and also contradictions by omissions on such minor details between the occurrence witnesses. But these contradictions and discrepancies have not in any way affected the basis prosecution version regarding the joint attack by all the four accused against PW 2 and the murderous attack by the first accused against deceased Rajan. If at all it has affected anything it is only regarding the murderous common intention. Further the witnesses have only seen different portions of the attack. PW 2 alone has been the incident from the inception. He had no occasion to see the last

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