IMPORTANT POINT
High Court was right in altering the conviction of Appellants from Section 304 Part I IPC to Section 302 IPC in the facts and circumstances of the case.

Headnote:(i) Criminal Trial-Identification Parade-Holding of second identification parade-Duly explained-Whether fatal to prosecution? (No).
       Held : The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 (in short the Code ) and the Indian Evidence Act, 1872 (in short the Evidence Act ). It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond the control and there is some delay, it cannot be said to be fatal to the prosecution. In the instant case, the factual scenario noted by the trial court reveals that all possible efforts were made to have test identification parade immediately after the arrest of the accused persons. The accused persons were arrested on 25.5.1993, were in police custody from 9.6.1993. On 16.6.1993, requisition was given to the Magistrate to hold the identification and first test was held on 26.6.1993 by the Magistrate. As PW-2 was not available, on request of police second test was held. Merely because the second test identification parade was held that cannot be a suspicious circumstance as prosecution has explained as to why that was necessitated. In view of the credible and cogent evidence of the eye-witnesses we do not find any substance in the plea that the testimony of the witnesses suffered from any infirmity. The appellants have already been held to be the authors of the crime. The Trial Court analysed evidence of the eye-witnesses in great detail. They have graphically described the incident. Incisive cross-examination has not brought any doubt on the truthfulness of their statements. High Court in appeal has also dealt with the acceptability of the evidence and found it to be flawless. (Paras 9 and 10)
       (ii) Nature of Offence-Culpable homicide to achieve robbery or murder-Trial Court convicting under Section 304 Part I IPC but High Court under Section 302-Difference and academic distinction explained (See paras 11 to 20 for broad guidelines)-Whether High Court was right in present case? (Yes)-Appeals dismissed-Case law reviewed (IPC 1860-Sections 299, 300, 302 and 304).
       Held : In the case at hand, the evidence of the witnesses was that the three appellants had indiscriminately stabbed the deceased, though their object was to rob deceased. As established by evidence of eye-witnesses the accused persons expected resistance and all the three were armed with knives. It cannot be said that they expected no resistance even if they intended to rob a huge sum of money. The intended object was to get the money. When there was expected resistance by the deceased, they went on giving stabs with the knives till the deceased lost his life and thereafter the cash and the demand drafts were snatched. It is the intention prevailing at the time of assaults, which determines the applicability of the relevant provisions. One of the factors which appears to have weighed with the trial court, and on which the reliance was placed to alter conviction to Section 304 Part I was the finding that the two injuries which were stated by the doctor PW8 to be sufficient to cause the death were possible by fall. A reading of the post-mortem report indicates that several injuries were stated by the doctor to be the cause of death and the two injuries noticed by the trial court were not the only ones. In fact, injury No. 5 i.e. stab injury was one of them. There were six stab wounds. The doctor stated injury Nos. 5, 7 and 11 and internal injuries 1 and 2 were sufficient to cause death in the normal course of nature. Much was made by the trial Court of the statement of PW-8 to the effect that cause of death could be stab wounds associated with head injury. It was, however, not noticed that the doctor clarified to the following effect: "The Stab wounds as well as the head injury are individually sufficient to cause death". The stab wounds came first and then the possible fall. Taking into account the totality of the circumstances the conviction recorded by the High Court under Section 302 IPC cannot be faulted. The appeals deserve dismissal, which we direct. (Paras 23 and 24)

JUDGMENT

Arijit Pasayat, J.-These four appeals relate to a common judgment passed by a Division Bench of the Andhra Pradesh High Court, whereby three appeals filed by the accused-appellants and one by the State were disposed of. While the accused-appellants challenged their conviction under Section 304 Part I read with Section 34 of the Indian Penal Code, 1860 (in short IPC ), State had taken the stand that accused-appellants should have been convicted under Section 302 read with Section 34 IPC and the two accused who had been acquitted by the trial court should have also been convicted. The appeals filed by the accused-appellants were dismissed and the appeal filed by the State was partially allowed by converting sentence to Section 302 IPC.

2. Prosecution version sans unnecessary details as unfolded during trial was as follows: Accused No.4 Babu Jani @ Majid Khan @ Majid was an ex-employee of Hazi Mohd. Yakub (hereinafter referred to as deceased ), who had five textile wholesale shops, which he was running along with his sons and grandsons. Accused Babu Jani joined hands with city dossier criminals, namely, Abdul Waheed Khan @ Waheed (accused No.1), Mohd. Haneef@ Haneef (accused No. 2) and Mohd. Khadeer @ Khadeer (accused No. 3); and hatched a plan with the aforesaid three accused persons and a friend of his namely, Aleem (accused No. 5). The object was to rob the deceased, and if necessary by liquidating him. Accused Babu Jani had the knowledge that the deceased used to go his house around 8.00 p.m. with the sale proceeds of the shops and the collections were more than rupees one lakh. In pursuance of the conspiracy, accused Babu Jani took the first three accused on 19.2.1993 and 20.2.1993 between 7 and 7.30 p.m., to point out the deceased and to acquaint them with his movements of a fixed nature. First attempt was made on 22.2.1993, but finding a lot of people around the spot, the intended objective could not be achieved. On the next day i.e. 23.2.1993 the fateful date of the incident, at about 7.30 p.m. after obtaining information from accused Babu Jani accused Nos.1 to 3 waited near house of the deceased on a stolen Chetak scooter and were armed with the knives. Accused No. 2 was having a plastic tin containing chilly powder water in his hands. At about 7.45 p.m. the deceased reached near his house in his Ambassador car driven by Mohd. Taher PW2. He was carrying cash of more than Rs. 2.32 lakhs and demand drafts of Rs. 1,60,000/- which were in his cloth bag. When the driver opened the rear right door of the car and went to collect the tiffin-carrier of the deceased from the left front door, accused Nos. 1 to 3 kept their scooter in motion and rushed to the deceased Hazi Mohd. Yakub and began stabbing him indiscriminately with their three knives, while accused No.2 tried to snatch the bag containing the cash and the demand drafts. There was street light and also light inside the car. When PW2 rushed to the rescue of the deceased, accused No. 2 threw chilly powder water on his face and he shouted for help. Further knife blows were given by the three accused persons till the deceased collapsed. Accused No.2 snatched away the cash bag from the hands of the deceased and all the three accused persons fled away on their scooter. Though PW2 and one Samad Khan (PW-4) chased the accused persons to some distance, they succeeded in fleeing away. Several other persons including Mohd. Idris Ali Khan, Mohd. Abdul Bari (PW-3) tried to come near the deceased, but they found him dead. The three accused Nos. 1 to 3 went to the house of accused Aleem at Boda Banda where accused Babu Jani was waiting for them. Aleem harboured accused Nos. 1 to 4 in his house and they shared the looted money but destroyed the demand drafts. Police on getting information reached at the spot and the First Information Report was lodged by Mohd. Iqbal (PW-1). Investigation was conducted and on completion thereof charge-sheet was filed.

3. While the first thr

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2002 Supreme(SC) 855

IMPORTANT POINTHigh Court was right in altering the conviction of Appellants from Section 304 Part I IPC to Section 302 IPC in the facts and circumstances of the case.

Cases Referred (5)

IMPORTANT POINT
High Court was right in altering the conviction of Appellants from Section 304 Part I IPC to Section 302 IPC in the facts and circumstances of the case.