The absence of a test identification parade is not fatal in all cases, and the evidence of identification in court remains crucial.

THOMAS, J.

This is a case in which the story of a murder committed in a cinema theatre at Kalamassery has been told by the prosecution. The nub of the story is that the gate keepers of the theatre had to pay heavily for thwarting the attempts made by two ticket less cinema goers to gate crash into the auditorium of the theatre, as one of them lost his life and the other was mauled brutally. Six persons were arraigned before the Sessions Court for the offences and five of them were convicted of different offences and sentenced to different terms of imprisonment including murder. Separate appeals have been filed by them.

2. The scene of occurrence was "Preethi" theatre at Kalamassery. Time was around 10.30 p.m. on 4-12-1986. The occurrence commenced like this : When the second show of the cinema started two persons (2nd and 6th accused) made a bid to get into the auditorium without tickets. The gateman (P.W. 3) resisted the attempts and there ensued a scuffle between them. Three other employees of the theatre (P.Ws. 1, 2 and the deceased Moosa) on seeing it, rushed to the rescue of their colleague. Both sides went at hammer and tongs and eventually the two bumpkins were overpowered. Hence they retreated from the scene and went out of the theatre compound. But it was only an interval during the occurrence.

3. A little later, accused 2 and 6 came back with three more persons which caused recrudescence of the attack. Accused 1, 3 and 5 were the new arrivals with accused 2 and 6. All the five jointly made a blits on P.W. 2 and P.W. 3 and also the deceased by beating them with hands. The victims resisted the attack and it turned into a tussle. Then another person (A4) who came out of the auditorium joined the assailants. At that stage 1st accused collected a knife from 3rd accused. Sensing the danger ahead P.W. 2 ran into the reserved class of the auditorium. But A1 chased him and intercepted him and stabbed him on the chest as well as neck. A1 came out of the auditorium and dashed into the ticket-counter wherein deceased Moosa had, by then, taken shelter and stabbed him also two or three times. As the victims were vanguished the assailants left the place.

4. Both the injured were removed to the city hospital, but the deceased reached there dead. P.W. 2 was subjected to an emergent surgery and despite very serious injuries sustained by him, he survived as he was not destined to die.

5. None of the accused disputed that P.W. 2 and the deceased sustained injuries at the time and place suggested by the prosecution. But they all denied having involved themselves in the incident. Learned Sessions Judge found that all the accused (expect A4) formed themselves into an unlawful assembly with the common object of murdering the deceased and his colleagues in retaliation and in prosecution thereof they trespassed into the theatre compound and attacked the victims in the manner narrated above.

6. The main argument raised by Shri M. N. Sukumaran Nayar, senior counsel, is that prosecution failed to establish the identity of the accused. Alternatively he contended that the evidence, even if accepted in toto, is insufficient to establish any common object for the accused to cause injuries to any person.

7. It is unfortunate that the Public Prosecutor who conducted the case in the trial court did not ascertain from two important eye witnesses (P.Ws. 3 and 4 who remained loyal to the prosecution) whether the man who stabbed with the knife was any one of the accused arrayed in the court. Nor did those two witnesses identify any of the accused in court. In fact, no attempt, whatsoever, was made by the Public Prosecutor to elicit answers from P.W. 3 and P.W. 4 regarding that aspect. We felt that in such circumstances there is nothing wrong if the Sessions Judge elicits such facts from the witnesses. After all it is only a formal evidence, but absence of such a formal evidence in criminal cases has serious consequences. No such answer was elic