1. These are connected appeals preferred against the convictions and sentences by the learned Sessions Judge of Madurai Division, in Sessions Case No. 151 of 1958.
2. The facts are : P.W. 4 is the wife of accused 1 and the sister of P.W. 5, the husband of P.W. 3. P.W. 4 and accused 1 lived as husband and wife for six months of one year in P.W. 5's house eking out their livelihood as agricultural labourers. This married life proved unhappy. They separated. Accused 1 went back to his village and P.W. 4 continued to live with P.W. 5. There was a subsequent Panchayat to reconcile the couple and this failed.'
3. On Friday, 10th May, 1957, at about 11 A.M. accused 1 accompanied by accused 2 and 3 came to P.W. 5's place and in the presence of P.W. 6 wanted P.W. 5 to send back P.W. 4 with accused. P.W. 5 promised to do so after the inauspicious days (Dog Days) were over. Accused 2 insisted on P.W. 5 sending P.W. 4 with accused 1 forthwith. P.W. 6 interceded and advised that it would be more proper if the parents-in-law of P.W. 4 came and took P.W. 4 to the village of accused 1. Accused 1 to 3 left the place.
4. This tragic occurrence took place on the night of 10th May, 1957. P.W. 5 had left his house to attend Veerapandi Mariamman festival. His wife P.W. 3, and his sister P.W. 4 remained in the house. At about 9 P.M. P.W. 4 alone was inside P.W. 5's house. P.W. 3 was standing at the threshold of the opposite door neighbour P.W. 7. Then P.W. 3 noticed accused 1 to 3 entering P.W. 5's house. Then she heard the cries of P.W. 4 that they were attempting to stab her. P.W. 3 raised an alarm. Accused 1 to 3 rushed out of P.W. 5's house. P.W. 1, the next door neighbour, who was taking his food in his house, came out on hearing the cries of P. Ws. 3 and 4 and noticed accused 1 to 3 running away from P.W. 5's house armed with knives in single file. P.W. 1 chased and caught hold of accused 3 who apparently lagged behind the others. Accused 3 freed himself by stabbing P.W. 1 on his right wrist. P.W. 1 cried out. P.W. 2 attracted by the cries of P.W. 1, while he was returning from a betel-nut shop, tried to stop accused 2. Accused 2 stabbed P.W. 2 and made good his escape. P.W. 2 sustained a bleeding injury on his right thumb and a scratch on his left thigh. P.W. 2's shirt M.O. 3 and dhoti M.O. 4 were got torn in his vain attempt to restrain accused 2. Then Bapuchami the deceased, a resident of the same street, who had also been attracted by these cries came there and attempted to stop accused 1 by catching hold of his legs from behind. Accused 1 stabbed Bapuchami repeatedly on his back with a knife. Accused 2 and 3 are also stated to have stabbed Bapuchami on his back in turn. Bapuchami let go the legs of accused 1 and fell down. The accused made good their escape with their weapons. Then as to what happened, the following is the summary of the evidence.
5. P.Ws. 1 and 2 went near Bapuchami. A crowd gathered. P.Ws. 7 and 10 who came there questioned Bapuchami separately and the latter told them that accused 1and his two men had stabbed him and run away. P.W. 10 questioned P.Ws. 1 and 2also. As Bapuchami had by then become dazed and weak, P.W. 10 recorded a statement Exhibit P-1 from P.W. 1. Thereafter P.Ws. 1 and 10 went and reported the occurrence to the village Munsif at Odaipatti, a mile away. The Village Munsif P.W. 11 received Exhibit P-1 from P.Ws. 1 and 10 at 11 P.M. He ascertained from them that Exhibit P-i had been written by P.W. 10 to the dictation of P. W. 1. He asked P.W. 10 to make an endorsement to that effect on Exhibit P-1. Then accompanied by his Talayari and P.Ws. 1 and 10, P.W. 11 came to the scene. The three injured persons, viz., P.Ws. 1 and 2 and Bapuchami, were taken to the Chinna-manur Police Station by the Talayari who handed over P.W. 1's statement Exhibit P-i and the Village Munsif's report to the Head Constable P.W. 14. After a case was registered, the injured persons were sent to the hospital where the doctor examined them and issued the wound certificates Exhibits P-22 to P-24. On P.W1 there were two incised wounds on his right wrist, while on P.W. 2 there was one incised wound on his right thumb. On Bapuchami there were five incised wounds on the back. P.W. 16, the Sub-Inspector of Police, Chinnamanur, came to the hospital at 3-15 A.M. and took up investigation. He examined Bapuchami and P.Ws. 1 and 2. The statement of Bapuchami recorded by the Sub-Inspector is Exhibit P-20. As the condition of Bapuchami was serious, the Police, at the suggestion of the doctor, sent for the local Sub-Registrar, P.W. 9, who recorded the statement Exhibit P-n from Bapuchami at 4-40 A.M. Thereafter Bapuchami was sent along, with the Constable P.W. 13 to the Uthamapalayam Hospital for further treatment. On the way, about two furlongs from Chinnamanur, Bapuchami thed.
6. On the local doctor informing P.W. 16 of Bapuchami's death, the latter went to the spot on the road-side and held inquest. The dead body was then sent through. P.W. 13 to the Uthamapalayam Hospital where P.W. 17, the Medical Officer, conducted autopsy. He found five stab injuries on the back of the deceased which had injured the left lung, left diaphragm and left kidney, and had brought about death on account of shock and hemorrhage.
7. In the course of the investigation P.W. 16 made enquiries in the village of accused 1 and on 20th July, 1957, the description of accused 2 and 3, who were not known to the P.Ws. before and who are the residents of another village, Kanjampatti, were ascertained and they were looked for. They were absconding. Accused 1 surrendered before the District Magistrate, Madurai, on 26th July, 1957. Accused 2 was arrested by P.W. 15 near Narayanathevanpatti on 2nd August, 1958 and accused' 3 was arrested by P.W. 15 at Solaivanpatti on 25th August, 1958.
8. Inasmuch as accused 2 and 3 were not known to the P.Ws. before, identification parades were held by the Sub-Magistrate of Periakulam, P.W. 8, at which P.Ws. 1 to 3, 5 and 6 identified accused 2 and 3. The final charge-sheet against the three accused was filed on 6th September, 1958, about 16 months after the occurrence.
9. The case for the accused was as follows : Accused 1 stated that he and his wife, Kamuthayee, have been continuously living together only in Nagalapuram and that the prosecution case concocted by P.W. 5 was false. Accused 2 and 3, denied knowledge of the occurrence.
10. No witnesses were examined on behalf of the accused.
11. The learned Sessions Judge found all the three accused guilty under Section 302 read with Section 34, Indian Penal Code and sentenced them to imprisonment for life. He also convicted accused 2 and 3 under Section 324, Indian Penal Code and sentenced them to rigorous imprisonment for six months each, which sentences were made to merge with the imprisonment for life.
12. On a review of the entire circumstances of the case, we have come to the conclusion that the prosecution has affirmatively and satisfactorily proved the case against accused 1 under Section 302, Indian Penal Code and that the prosecution has not brought home the offences for which accused 2 and 3 have been convicted, to them beyond reasonable doubt. We shall set out our reasons in two parts.
13. Accused 1 had a motive to commit the offence, because when he was running away after creating the galatta in the house of P.W. 5, he has been caught hold of by the deceased and in order to free himself he has repeatedly stabbed the deceased on his back and succeeded in freeing himself. Otherwise, he had no motive to commit the offence, since Bapuchami was a stranger so far as accused 1'S quarrel with his wife, and which was the reason for accused 1 coming to the house of P.W. 5 that night, was concerned. The stabbing of the deceased by accused 1 has been witnessed by P.Ws. 1, 2, 6, 7 and 10. P.Ws. 1 and 2 are independent, disinterested witnesses who are not related to or otherwise interested in either party. P.W. 3 saw accused 1 running away armed with a knife. The deceased Bapuchami within a few minutes after the occurrence had told P.Ws. 7 and 10 that it was accused 1 who stabbed him. P.W. 1 in his report Exhibit P-i has mentioned this accused 1 by name as the assailant of Bapuchami. Bapuchami himself has mentioned in his dying declarations Exhibits P-20 and P-11 that accused 1 stabbed him. Accused 1 is not a stranger to Bapuchami. He is the husband of P.W. 4 and the brother-in-law of P.W. 5. As such he is known to the villagers. There is no motive for Bapuchami to falsely implicate accused 1. Accused 1 immethately after the commission of the offence was absconding. He surrendered before the District Magistrate of Madurai, on 26th July, 1957. The net result of this analysis is that the learned Sessions Judge was fully justified in holding, so far as accused 1 is concerned, that there is sufficient and in fact overwhelming evidence, disinterested and impartial, to establish that it was he (accused) who stabbed repeatedly Bapuchami on his back.
14. The learned advocate Mr. Kumaramangalam urged that when three persons have participated in the stabbing of Bapuchami and it cannot be said that it was the stab of accused 1 which caused the fatal injury, he (accused 1) could not be convicted for an offence under Section 302, Indian Penal Code, but only for the lesser offence under Section 324 or 326, Indian Penal Code. We are unable to accept this contention for two reasons. This is not a case like Pandurang v. Stale of Hyderabad : 1955CriLJ572 . In that case five persons were alleged to have attacked the deceased with lethal weapons like axes and sticks. One Tukia struck the deceased on the cheek and the medical evidence showed that the blow could have caused the death. Another accused Pandurang hit the deceased on the head which resulted in two injuries. The medical opinion in regard to those injuries was that they would not have resulted in the death. After those blows were inflicted, the deceased fell down and one Bhilia hit the deceased on the neck which resulted in his death. The Supreme Court held that Bhilia was guilty of murder under Section 302, Indian Penal Code. As regards Tukia they took the view that the injury inflicted by him on the cheek was a fatal one, and convicted him under Section 302, Indian Penal Code. In Pandurang's case : 1955CriLJ572 a constructive liability was sought to be fastened for the offence of murder but that was negatived. But in the instant case the facts are different. The evidence clearly shows that even before accused 2 and 3 ran up to Bapuchami, accused 1 had stabbed 2 or 3 times on the back of the deceased. The evidence is that it was a bright moonlight night. The witnesses who saw the stabbing were at close quarters. The evidence of the doctor shows that this stabbing must have brought about internal injuries and that all the internal injuries could have been caused by a single stab if the blade of the knife was long enough and the cut sufficiently forcible and that the injuries could have been caused even if the victim had been standing, as it happened when accused 1 stabbed Bapuchami. Therefore, on the short ground that the repeated stabbing on the back of the deceased by accused 1 could alone account for the fatal termination, accused 1 would be plainly guilty of the offence of murder without invoking Section 34, Indian Penal Code.
15. The question then arises as to the scope of Section 34, Indian Penal Code, in a case of this nature. Section 34, Indian Penal Code, runs as follows:
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for the act in the same manner as if it were done by him alone.
This section requires that there must be general intention shared by all the persons concerned in the offence, that is to say, when several persons unite with a common purpose to do any criminal offence, all those who assist in the accomplishment of the object would be equally guilty. Therefore, the foundation of the constructive liability is the common intention animating the accused to the doing of the criminal act, and the doing of such act in furtherance of such intention. It follows therefore, that common intention is an intention to commit a crime actually committed and every one of the accused should have participated in that intention. In Barendra Kumar Gosh v. Emperor (1924) 48 M.L.J. 534 : L.R. 52 IndAp 40 : I.L.R. (1924) Cal. 197, Lord Sumner stated at page 211 thus:
Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for ' that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it.
The Privy Council pointed out that the object of the section was to punish participants by making one man answerable for what another did, provided what was done in furtherance of a common intention, and observed thus at page 217:
In other words, 'a criminal act' means that unity of criminal behaviour, which results in some thing, for which an individual would be punishable, if it were all done by himself alone, that I is, in a criminal offence.
It is therefore clear that there would be no liability by reason of Section 34 except in a case where there was a common intention to commit the particular offence which resulted. A similar intention would not be enough to bring the case within the meaning of the section. Suppose several persons, each acting independently of the others, intend to commit a crime and all of them choose the same moment and commit the crime which each of them intended separately. There would be no common intention in such a case. Each of them would be liable for his act, but not vicariously for the act of another or other. To constitute a common intention, a community of intention is necessary. In Mahbub Shah v. The King Emperor , the Privy Council laid down that Section 34 enacted a principle of joint liability in the doing of a criminal act, that the essence of that liability was to be found in the existence of a common intention animating the accused leading to the doing of criminal act in furtherance of such intention and that to invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all. On that principle it was held that common intention within the meaning of the section implied a pre-arranged plan and to convict the accused of an offence, it should be proved that the criminal act was done in concert and pursuant to the pre-arranged plan. Their Lordships of the Privy Council held that the inference of common intention should never be reached unless it was a necessary inference from the circumstances of the case. The Privy Council, however, pointed out that although it might be difficult or if not impossible to procure direct evidence to prove the intention of an individual, and in most cases it had to be inferred from his act or conduct or other relevant circumstances of the case, the inference of common intention within the meaning of Section 34, Indian Penal Code, should never be reached unless it was a necessary inference deducible from the circumstances. Mr. Kumaramangalam, the learned advocate for the accused, put before us an appropriate illustration in regard to this matter. He instanced the case of two persons inflicting without pre-concert, at the same time, injuries on a person, the injury inflicted by one of whom being simple and the injury inflicted by the other resulting in the death of the person. There is no doubt that in such a case the intentions are different and the first of them could not be charged with the constructive liability for the murder, and he would be guilty of causing only simple hurt, while the other accused would be guilty of the offence of murder. If, however, in that illustration there was a pre-arranged plan to kill the person, the fact that the first of them inflicted only a simple injury would make no difference in the guilt between the first and second accused. The second would be guilty of murder, while the first will be constructively liable for the act of the second. In Pandurang v. State of Hyderabad : 1955CriLJ572 . Bose, J., summarised the position thus:
Now in the case of Section 34 we think it is well established that a common intention pre supposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of common intention of all of them, Mahbub Shah v. Emperor . Accordingly, there must have been a prior meeting of minds, several persons can simultaneously attack a man and each can have the same intention namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have common intention required by the section, because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case Barendra Kumar Gosh v. Emperor (1924) 48 M.L.J. 543 : I.L.R. (1924) Cal. 197 L.R. 52 IndAp 40 and Mahbub Shah v. King Emperor . As their Lordships say in the latter case, 'the partition which divides their bounds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice.'
16. Bearing these principles in mind if we examine the facts of this case, there cannot be the slightest doubt that this accused 1 as well as two other persons who had come armed to commit an offence in the house of P.W. 5 were surprised in the attack and had to break out and make good their escape. They were sought to be prevented by a number of persons and there has been a meeting of the minds of all these three persons together to the extent of doing away with the persons restraining them and effect their escape at all costs. That is why when accused 1 had stabbed Bapuchami repeatedly on the back and had not completely succeeded in freeing himself, the other two persons joined accused 1 and contributed their own stabbings which resulted in Bapuchami let go accused 1. All the three made good their escape with their weapons and remained at liberty for some time. Therefore, this accused 1 would also be guilty under Section 302 read with Section 34, Indian Penal Code. His conviction is correct and the sentence is appropriate. Both are confirmed and the appeal of accused 1, C.A. No. 81 of 1959, is dismissed.
17. In regard to accused 2 and 3, the evidence against them is identification by P.Ws. 1 to 3, 5 and 6 and their pointing out these accused as two of the three culprits at the identification parade held by P.W. 8 on 6th August, 1958.
18. Identification (Latin : idem, the same) means the process of establishing the identity of a person, or, in other words, the determination of his individuality, by proving that he is the man he purports to be, or, if he is pretending to be some one else, the man he really is, or in case of dispute, that he is the man he is alleged to be.
19. The evaluation of identification evidence is perhaps one of the most difficult problems which confront a Judge when we remember the extent of human fallibility and the fragility of memory and the tricks played by our senses. It can cause us no surprise that in England and America it has been found that the major sources of miscarriage of justice are due to wrong identification. Dwight Mccarty's American Classic, Psychology for the Lawyer (New York Prenlice Hall In C. 1929) in Chapter VII, p. 2051 foil.) and Prof. Glanville Willams in Proof of Guilt (Hamlyn Lectures) at page 83 and foil.,' identification evidence 'have expounded the manifold inaccuracies of recall. Therefore identification evidence should be examined with great care.
20. In criminal cases identification parades have to be held to establish the identity of the culprit. Identification parades are held not for the purpose of giving defence advocates material to work upon, but in order to satisfy investigating officers of the bona fides of the P.Ws. and that they are on the right track. State v. Ghulam : AIR1951All475 .
21. The result of the identification parade conducted at the stage of investigation is not a piece of substantive evidence and cannot be the basis of a conviction by itself. The evidence against the accused must be the evidence given by the identifying witness in the witness-box. It, however, provides a very good piece of corroborative evidence and greatly enhances the credibility of the evidence of identification given in Court. In fact, mere evidence of identification in Court in the absence of a prior identification test is of very little consequences. The mere fact that a person is in the dock as an accused is likely to influence the mind of a witness and make him think that the person in the dock is the person he had seen committing the crime and thus reduce the evidentiary value of the identification evidence given in Court Shiam Lal v. Rex (1953) Crl.L.J. 367; (See also Prof. Glanville Williams 'Proof of Guilt' supra). Although the accused may have no right to claim an identification parade, if the prosecution turns down his request for identification, it runs the risk of the veracity of the eye-witnesses being challenged on that ground Lajja Ram v. State : AIR1955All671 .
22. The whole idea of a test identification parade is to see if the witness who claims to have seen the accused at the time of the occurrence can identify him from amongst others without the aid from any other source. If he can, then it becomes more or less certain that the evidence of identification as deposed to by the witness is genuine. Before the evidence of identification given in Court can be accepted as sufficient to establish the identity of an unknown accused, it is necessary to see that there is some good corroborative evidence in support of the evidence of identification in Court. And such corroborative evidence usually comes from the evidence of the test identification where the witness picks up the accused from amongst a number of persons with whom he is mixed up. True, the evidence of the witness having identified the accused at a test identification parade has no substantive value, but is very important corroboration of his testimony in Court Pravash Kumar v. The King 52 Cri.L.J. 819. Thus, in the absence of test identification proceedings the mere ipse dixit of the witness that the accused was one of the culprits could not be believed at all Birey Singh v. State 1953 Cri.L.J. 1817.
23. So, where the culprits are unknown to the witnesses but the witnesses say in course of their examination by the investigating officer that they would be able to recognise some of the criminals, if shown, a test identification parade of the suspects ought to be held at the earliest possible opportunity whenever possible before a Magistrate. In Awadh Singh v. The State 1945, Cri.L.J. 1546 it was held that non holding of a test-identification parade, though may not be a ground to vitiate the trial, is undoubtedly a very important feature in considering the credibility of the witnesses on the point of identification.
24. It need hardly be said that evidence of identification whether of the accused or of the recovered properties, before a Police Officer amounts to a statement within the meaning of Section 182 of the Code of Criminal Procedure and as such becomes inadmissible in evidence, Ram Krishnan v. State of Bombay (1955) S.C.J. 129 : 1955 Crl.L.J. 196. See also In re Venkata Subbiah : AIR1955AP161 , and Santa Singh v. State of Punjab : 1976CriLJ1875 .
25. The suspect should be mixed up with a fairly large number of persons of similar status and dress and the witnesses should be called one by one so that identification by one witness may be conducted out of the sight and hearing of other witnesses. The proportion of outsiders to be mixed with the persons to be identified must be sufficiently large to eliminate the chance of the accused being picked up by chance. Where, therefore, six suspects were mixed up with only seven outsiders, it was held that the chances were all in favour of the witnesses picking up the accused in view of their number being almost equal to the number of outsiders and as such the Court would not rely much on this sort of an identification parade Bhagu Ranchhod v. State 1955 Crl.L.J. 31. It should also be remembered that if too large a number of persons is mixed with the suspects, there might be a danger of putting too much strain on a witness's ability to pick up a suspect. In such a case he will get easily bewildered. Where the proportion of suspects to under-trials bore the ratio of 5:1, it was held that the identification parade was a fair one Dal Chand v. State 1953 Cr.L.J. 356, Ranjha v. State 1952, Cri.L.J. 15 State v. Wahid Bax 1953 Cri.L.J. 705. In Satya Narain v. State 1953 Cri.L.J. 848. Desai, J., has, however, held that this proportion should at least be 9:1.
26. It has been held in a number of cases that the value of a test identification parade is much less if it is held a considerable period after the arrest of the accused Debi v. State 1953 Cri.L.J. 447, Kasim Razvi v. State of Hyderabad 52 Cri.L.J. 1123. So also is the case if the test identification parade is held long after the occurrence. Where, therefore, the test identification, was held fifteen months after the occurrence, the evidence of identification was looked at with an eye of suspicion.
Human memory is fallible. It is sometimes difficult to identify a person not very well known whom one sees with a rather different appearance about fifteen months later after the crime has occurred, Davrao Singh v. State 1952 Cri.L.J. 492.
27. Test identification parade should be arranged early, at any rate, before the accused goes on bail Hazara Singh v. State 52 Cri.L.J. 492, Ganga Singh v. State : AIR1956All122 . In fact Courts ought to refuse bail if an identification parade is going to be and ought to be held. So, not only the test identification parade has to be arranged at the earliest possible opportunity but bail will have to be opposed strenuously until the test identification parade is finished.
28. As regards the actual conduct of the identification proceedings, the following hints or precautions should be noted or observed : (1) selection for parade of only non-suspects of the same religion. (2) Securing of privacy from view at parade. (3) Exclusion of every one, especially the Police from the proceedings. (4) Seclusion till the completion of the proceedings of each witness finished with from others whose evidence has to be taken yet. This precaution should exclude possibility of prearranged signals like touching the ear, or cough, etc., when the identifying witness reaches the culprit in the parade. We may point out here that the value of the identification parade is very much depreciated as regards sub-jails where cells are directly visible to the public. Secondly, the Police guard may not unoften be privy to surreptitious identification beforehand of suspects by the witnesses. Thirdly, suspects when being exercised or taken to the latrine or kitchen run the risk of being pointed out beforehand to the identifying witnesses. In such cases a searching examination of the identifying witnesses as regards the time of their arrival, the place where they stayed, their visits to the Police, etc., may prove useful. (5) Changing the place or places of persons to be identified at discretion before arrival of each witness. (6) Definite information is required in cases where witness admits prior acquaintance or meeting with any subject he identifies. (7) Recording any well-founded objection by any suspect to any point in the proceedings.
29. In Abdul Munim Khan v. State of Hyderabad , it has been held that the desirability of exercising a most careful scrutiny about identification parades cannot be overemphasised. It is the duty of the Magistrate conducting the test identification parade to see that all precautions are taken in the matter of satisfying himself that the witnesses had no opportunity to see the accused before. Even the omission to observe a minor necessary procedure, at the time of holding the identification parade would detract from its value. The proceedings should be conducted in such a way as not to leave any room or loophole to create the slightest suspicion in the mind of the Court. The Officer, conducting the test identification parade, should, therefore, exercise the utmost scrutiny and vigilance at the time of the test identification parade. See also Samsunder Singh v. State 1953 Crl.L.J. 1452. It has been held in Madan Singh v. State 1953 Cri.L.J. 100.
If the evidence of identification is satisfactory and leaves no doubt that the witnesses who claim to have identified the accused must have done so, there is no reason why conviction should not be recorded merely on the strength of that evidence.
30. Bearing these principles in mind, see the illuminating discussion in Chief Justice Munir's 'Principles and Digest of the Law of Evidence,' IV edn. (1956) : 'Evidentiary Function of Identification Tests and Evidentiary Value of Identification Tests' and Justice V.B. Raju, I.C.S., 'Evidence Act,' pages 49 to 57. If we examine the facts of this case, we find that the evidence of identification cannot be safely made the basis for resting the conviction. Accused 2 and 3 were persons unknown to these witnesses before the occurrence. Though there was bright moonlight, these witnesses had the opportunity of seeing these fleeing strangers for a very short time. These accused persons also had no distinctive appearances or infirmities which would fix their features indelibly upon the minds of these witnesses. The first information report and the dying declaration do not contain even a description of the two assailants now materialising as accuseds and 3. These accused have been absconding and the identification parade had been held practically 15 months after the date of occurrence. In these circumstances, it would be unsafe to rest the conviction of accused 2 and 3 upon the identification evidence.
31. The net result of this analysis is that the convictions and sentences in regard to accused 2 and 3 have got to be set aside and are hereby set aside. They are acquitted and set at liberty. C.A. Nos. 82 and 83 of 1959 are allowed.