K.T. Thomas, J.
1. 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 ticketless 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 (2n 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 (except 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 elicited from those witnesses by the Sessions Judge also.
8. However, both P.Ws. 3 and 4 supported the prosecution story without formally identifying the assailants and deposed to the person who chased P.W. 2 into the auditorium with the drawn knife came out with blood on the knife and he stabbed the deceased who took shelter inside the ticket counter. We have no reason to disbelieve their evidence, although prosecution could not establish through them that it was A1 who did such acts.
9. P.W. 1 did not know any of the accused by name except A6 when he gave first information statement. But in court, he identified A1 and other accused. P.W. 2 also identified all the accused. Both of them spoke to the occurrence with its sequences as per the prosecution version, Shri, M.N. Sukumaran Nayar pointed out four blemishes in the identification evidence spoken to by P.W. 1 and P.W.2. First is that no Test Identification parade was held and hence their evidence is worthless. Second is that the police supplied the names of the accused to those two witnesses and this has affected the credibility of their evidence. Third is that they had the opportunity to see the photograph of the accused published in the newspapers and this would vitiate the identification evidence. Fourth is that neither P.W. 1 nor P.W. 2 could mention any special mark or feature of the person who inflicted stab injuries and hence it is not safe to act on their evidence regarding identification.
10. Learned counsel invited our attention to the observations of Hidayathulla, J. (as he then was) in L. Choraria v. State of Maharashtra, 0065/1967 : 1968CriLJ1124 that 'showing a photograph prior to the identification makes the identification worthless'. He also cited the decision in Mohanlal v. State of Maharashtra : [1982]3SCR277 in which the evidence of one eye witness was treated as valueless since no test identification parade was held by the investigating officer.
11. If the idea of conducting a test identification parade is to test the ability of a witness to identify a particular person, then photograph of the suspect should not be shown to him in advance. Otherwise the parade becomes only a farce. But that is different from the Press publishing photos of the accused in newspapers. It is not the work of the investigating agency, but the exercise of journalistic calibre. Investigating agency has, normally, no control over such journalistic adventures. Hence such publication cannot be prevented by the police in a society where freedom of press is guaranteed. It has become very usual that in sensational criminal cases newspapers would display enthusiasm to publish photos of different facets including photos of the accused. It is not necessary that witnesses should see such photos in the newspapers. Even if a witness happens to see the photo of a particular accused in a newspaper we are not inclined to sideline his evidence regarding identification on that score alone. It must be remembered that Kerala is a State where there is preliferation of newspapers. How can a witness be made responsible if newspapers publish the photoghraphs of the accused? If we are to lay down a proposition that identification evidence of a witness is liable to be thrown overboard in cases where newspapers published the photo of the accused, a good number of witnesses in Kerala would be exposed to the peril of being disbelieved on account of the journalistic adventure and high density of print media in this state. Of course, it is open to the court to decide whether a witnesses evidence regarding identification was really influenced by such publication.
12. A Division Bench of this court (U.L. Bhat, J. (as he then was) and Balakrishnan, J.) in Appu v. State (1990) 1 Ker LT (SN) 15 observed that 'at any rate, the mere fact that a witness might have accidentally seen photographs of accused in newspapers, particularly in the absence of evidence regarding captions or descriptions given in newspapers, cannot lead to rejection of identification of accused made by witnesses.'
13. We did not find anything from the judgment in Mohanlal's case (1982 Cri LJ 630 (2) (SC) (cited supra) as laying down a principle of law that eye witnesses' testimony deserves outright rejection in all cases where test identification parade was not conducted. A Division Bench has considered in detail the decisions on the subject and the implications of not holding a test identification parade Chandran v. State of Kerala (1987) 1 Ker LT 391 : (1986 Cri LJ 1865). Legal position on that aspect cannot be better stated than what Bhat, J. (as he then was) has observed therein. The relevant portion reads thus: 'Substantive evidence of identification of an accused is the evidence given and identification made by a witness in Court. If an accused is known to a witness it would be a futile exercise to put him up for identification. If, however, an accused is not previously known to a witness, the investigating agency has to consider whether test identification parade should be arranged. Such a step has dual significance. It furnishes to the investigating agency an assurance that the investigation is proceeding on correct lines. It also furnishes corroboration of the evidence to be given by the witness in Court at the trial stage.... Successful identification parade renders it safe for the court to act upon the identification made in Court. However, it cannot be said that absence of test identification parade is fatal in all cases. Assurance could be available from other sources and circumstances.
14. If the police officer has revealed to a witness names of the assailants whom the witness pointed out or described to the police no impropriety can be imputed to the police on account of it. That cannot affect the evidence of identification because the witness is identifying the accused in court by looking at him although the witness came to know of his name in the meanwhile. We are, therefore, not impressed by the said argument.
15. It is true that P.W. 1 or 2 could not point out any special identification mark of the accused. Nobody has a case that any of the accused has any special feature to be observed. Persons possessing special identification features are far and few between - one is able to remember another man's face not always because of any special mark or features. The image of an assailant or a thief or a burgler can leave the impression in the mind of the viewer or the victim which can remain in the mind without fading out for a reasonable period. There are untranslatable factors by which such retention is possible. The viewer need not count or notice any special mark or feature for retaining the image of the assailant in his mind. Hence we are not disposed to reject the testimony of P.W. 1 and P.W. 2 merely because they did not enumerate the features or marks of the accused.
16. The evidence of P.W. 1 and P.W. 2 is corroborated by the evidence of P.Ws. 3 and 4. That part of their testimony relating to the occurrence remains unshaken though they did not identify the assailants in court. P.Ws. 6, 7 and 8 have also corroborated the said identification evidence. P.W. 6 said that while he was seeing the cinema he saw A1 chasing P.W. 2 inside the auditorium and he could see the face of A1 in the light focussed on the screen. P.W. 8 was treated as hostile since he failed to identify the other accused. But he has clearly identified A1 as the person who ran out of the theatre. P.W. 7 is of course the brother of the deceased. Though he did not see the occurrence he said that he saw A1 among the persons who left the place on a scooter. We have considered their evidence in all its aspects and we do not come across any reason to disbelieve them.
17. Prosecution has thus proved beyond reasonable doubt that the appellants went together to the theatre and beat P. Ws. 2 and 3 and the deceased. Prosecution further proved that it was A1 who stabbed P.W. 2 and the deceased. While we have no doubt that the conviction and sentence passed by the trial court on A1 regarding various offences are liable to be confirmed, the common object of the unlawful assembly cannot be said to be anything beyond beating the victims. There is no factual justification to draw the inference that common object of the assembly was anything more than that. A1 played the more aggravated role on his own as he felt doing so perhaps during the development of the occurrence.
18. In the result the appeals are disposed of as under:
Regarding accused 2, 3, 5 and 6 we confirm the conviction and sentence passed on them by the trial court as for offences under Sections 143, 147, 323 and 447 of the IPC (It is deemed that for the offence Under Section 447 the maximum provided by law has been imposed on each of them). But we set aside their conviction and sentence as for the other offences. Since those accused (A2, A3, A5 and A6) have been in jail for more than the period covered by the sentence imposed on them for the said offences, we direct the jail authorities to release them forthwith unless they are required in any other case, their appeals are hence partly allowed. However, we confirm the conviction and sentence passed on A1 as for all the offences found against him by the trial court and dismiss his Crl. A. No. 384/89.