Test identification parade not mandatory if witnesses identify accused at scene and trial; circumstantial evidence suffices for conviction under IPC 435/34.

O R D E R

The concurrent verdicts of the Judicial First Class Magistrate Court-II, Cherthala and the Additional Sessions Court (Fast Track)-II, Alappuzha in C.C No.210/2001 and Crl.A No.6/2006 respectively, convicting and sentencing the petitioners to rigorous imprisonment for two years and fine Rs.2000/- each, for the commission of offence under Section 435 r/w Section 34 I.P.C, are under challenge in this revision petition.

2. The prosecution case is that, at about 12:30 hrs in the midnight of 04.03.2001, the petitioners (accused Nos.2 and 3), along with the first accused, set ablaze the autorickshaw belonging to PW10, which was parked in the residential premises of PW1 in Ward No.13 of Aroor Panchayat. The enmity of the petitioners and the first accused with PW2, the driver of that autorickshaw, is said to be the motive for the commission of the aforesaid offence.

3. Before the Trial Court, the prosecution examined 11 witnesses as PW1 to PW11, and marked two documents as Exts.P1 and P2. It is by relying on the aforesaid evidence that the learned Magistrate arrived at the conclusion that the prosecution has successfully established the offence under Section 435 r/w Section 34 I.P.C charged against the petitioners. The Appellate Court concurred with the aforesaid findings of the Trial Court and dismissed the appeal. Aggrieved by the above concurrent verdicts of the Courts below, the petitioners are here before this Court with this revision petition.

4. Heard the learned counsel for the revision petitioners, and the learned Public Prosecutor representing the State of Kerala.

5. It is true that there were no eye witnesses, who had the occasion to see the act of the petitioners and the first accused setting the autorickshaw parked at the residential premises of PW1, to fire. However, the Courts below placed heavy reliance on the circumstantial evidence, which pointed to the one and only conclusion about the act of the petitioners and the first accused, setting ablaze the aforesaid autorickshaw.

6. The Trial Court as well as the Appellate Court relied on the evidence of PW2 and PW9 to come to the conclusion that the first accused nurtured enmity with PW2. In addition to the aforesaid evidence, the evidence tendered by PW3 to PW7 was relied on by the Courts below to come to the finding that the accused were found at the scene of crime in and around the time of occurrence, and that shortly after the incident in the midnight of 03.03.2001, the accused were found fleeing from the scene of crime. PW3 and PW4 had spotted the first accused with a plastic can in his hand at that time. All those witnesses have identified the accused during trial. It is by relying on the aforesaid evidence adduced by the prosecution that the Courts below came to the finding that the prosecution successfully established the commission of the offence under Section 435 I.P.C r/w Section 34 I.P.C by the petitioners herein and the first accused. The concurrent findings in the above regard are not liable to be unsettled in exercise of the revisional powers of this Court.

7. The learned counsel for the petitioners argued that in the absence of a test identification parade, the Courts below ought not have relied on the evidence of PW3 to PW7. I find no merit in the aforesaid argument of the learned defence counsel. The conduct of test identification cannot be termed as an inevitable requirement in all cases where the identification of the accused has got great relevancy.

It is to be noted that test identification parade forms part of the process of investigation to enab