S. Padmanabhan, J.
1. Along with others, the four appellants were on pilgrimage to Sabarimala. At Erumeli, two of them (accused 3 and 4) picked up quarrels with some other pilgrims in front of the tea shop of PW 2 by about midnight on 7-12-1985 and received some beatings. When the fourth accused fell down, the third accused went and brought accused 1 and 2. Suspecting PW 2 to be one of the assailants, all the four jointly assaulted him. Deceased Rajan, an adjacent shop owner, rushed to the scene, probably on a peaceful errand to prevent the attack. First accused took out MO 1 knife from his loins and stabbed Rajan twice resulting in injuries. When PW 2 escaped and ran away, the other three also joined hands in attacking Rajan. He was pulled down. Then the first accused inflicted the fatal stab on his right chest when he attempted to rise up. He walked to his shop and then fell dead. On these allegations, the four appellants were tried in Sessions Case No. 22 of 1986 before the Sessions Judge, Kottayam for offences punishable under Sections 323 and 302 with the aid of Section 34 of the I.P.C. Common murderous intention was found Each one was sentenced to imprisonment for life and rigorous imprisonment for one year, permitting the sentences to be suffered concurrently.
2. PWs 1, 2, 3 and 5 are the occurrence witnesses. Appellants were utter strangers to them. A test identification parade was conducted under the supervision of the Magistrate, examined as PWS. Ext. P4 is the proceeding. Though PW 2 identified all the accused in the parade and PW 5 identified accused 1, 3 and 4, PW 1 could identify only accused 3 and 4 and PW 3 identified accused 2 and 3 alone. Lack of identification or defect in identification was the main contention. The incident is also alleged to have taken place in a different manner involving other persons and injuries to the accused also. Proof of common intention was also disputed
3. The fact that PW 2 and Rajan sustained injuries at the time and place alleged by the prosecution and Rajan succumbed to the injuries is beyond dispute. Evidence of PWs 1, 2, 3 and 5 when taken along with Ext P5 post-mortem certificate and Ext. P6 wound certificate prepared by PW 9, amply prove these facts. The injury sustained by the deceased is fatal involving the heart and lungs. It is evidently an intentional and forcible stab on a vital part of the body and the intention was nothing short of murder.
4. We were not impressed by the argument that prosecution did not succeed in establishing the identity of the assailants. It is true that the assailants were not previously known to the occurrence witnesses. But we need not go into the controversy whether in such cases the substantive evidence of identification before court could be accepted only if it was preceded by identification in a test identification parade during investigation. The matter is covered by decisions. In this case, a test identification was already conducted. The question therefore is only how far the test identification parade and the identification therein could be used for corroborative purposes or as aid in the appreciation of the substantive evidence of identification before court. We said so because the test identification parade itself was the subject of serious comments.
5. It is true that there is some little positive contradictions on minor details including sequence of events and also contradictions by omissions on such minor details between the occurrence witnesses. But these contradictions and discrepancies have not in any way affected the basic prosecution version regarding the joint attack by all the four accused against PW 2 and the murderous attack by the first accused against deceased flajan. If at all it has affected anything it is only regarding the murderous common intention. Further the witnesses have only seen different portions of the attack. PW 2 alone has seen the incident from the inception. He had no occasion to see the last fatal stab because before that he ran away. He identified all the four in the test identification parade as well as in court. PW 1 came only on hearing the cry. Even thereafter he was absent for a moment when he went away to call the brother of PW 2. PW 3 also came only after hearing the cry. Thereafter she was present throughout PW 5 was there only just before the arrival of the deceased because he went away to telephone the police. Therefore, for that reason also evidence cannot be alike in all respects and discrepancies and contradictions cannot affect their veracity. So also, the injuries sustained by the accused will not indicate that the incident took place in a different manner. The evidence is that they sustained injuries and their jeep was damaged in a mob attack after the incident by pelting stones. For that a case was registered and investigated, but it was closed as undetected.
6. The objects and purposes of test identification parades are mainly two fold. (i) For the investigating officer to satisfy himself that investigation against previously not known and unidentified persons is moving in the correct line and to assure him that the prosecution witnesses are honest; and (ii) To furnish material to corroborate the substantive evidence of identification before court and to act as an aid in the assessment of that evidence. Identification in test identification parade is not substantive evidence. Substantive evidence is only the identification before court When the witness, who identified the accused in the test identification parade, is not examined before court, no purpose will be served by examining the Magistrate or somebody else to prove that there was identification.
7. Although in assessing the evidence of identification it is not possible or desirable to lay down any hard and fast rules, certain guiding principles could be stated/One is the basic principle of criminal law that a fact or circumstance should be proved before it is relied on against an accused. The evidence of identification is no exception to the definition of the word 'proved' in Section 3 of the Evidence Act The court should approach the evidence of identification with the reasonable doubts of an intelligent person and accept it only if those doubts are removed In order to remove these doubts, the touch stones to be adopted could be (i) fair, if not good opportunity of the witness for observation, (ii) reasonable time within which . the identification was made, (iii) reliable power of observation of the witness, (iv) his credibility, and (v) the fact whether the witness got any opportunity to identify the accused after arrest The crucial requirement is the satisfaction of the court on the acceptability of the identification Anwar v. State : AIR1961All50 .
8. If identification parade was not properly and regularly conducted, it cannot operate, as reliable corroboration regarding identification in court Yeshwant v. State of Maharashtra : [1973]1SCR291 . Though any person can conduct a test identification parade, Magistrates are preferred because of the assurance of regularity Asharfi v. State 0043/1961 : AIR1961All153 . His identification memo is a record of the statement which the identifier expressly or impliedly made before him. It is a former statement of the identifier. In court it is usable not only for contradiction Under Sections 145 or 155, but also for corroboration Under Section 157 of the Evidence Act. It is subject to the exception that if it was before the police it would be hit by Section 162 of the Cr. P.C. and therefore inadmissible for corroboration. If the person holding the identification is a competent Magistrate, Section 164 of the Cr. P.C. applies and his identification memo is admissible Under Section 80 of the Evidence Act without proof for what it is worth.
9. Relevancy of identification is Under Section 9 of the Evidence Act. Conduct of the parade is not governed by any statutory provision or guideline. Several judicial pronouncements have laid down various standards regarding the manner and - method of observing formalities in the conduct of the identification parade Satya Narain v. State : AIR1953All385 Vaikuntam Chandrappa v. State of Andhra Pradesh : AIR1960SC1340 ; Anwar's case : AIR1961All50 ; Asharfi's case 0043/1961 : AIR1961All153 ; Yeshwant's case : [1973]1SCR291 and Chander Singh v. State of U.P. : 1973CriLJ926 are some of them). Those decisions also dealt with the number of suspects and non suspects to be mixed-up and the other precautions to be taken to ensure correctness of identification. Even though it may not be possible to fix any definite standard or pattern in all these aspects, it may be always safer to have more number of non suspects of identical description mixed up with the suspects to the extent possible in order to avoid mistakes and frauds. It may be advisable to have similar persons. If a suspect is having any prominent or noteworthy marks, on the basis of which he could be identified by a verbal description even by a person who has not seen him earlier, it may be desirable to cover those marks by slips of paper without detriment to himself being recognised by other general features. In such a case, it may also be desirable to have non suspects also with identical slips of paper so that by the slips of paper, identification is not made possible. It may not be proper to accept the identification of a witness who makes many mistakes. All these guidelines are subject to the satisfaction of the court on the facts of each case. They are not technical grounds to reject identification. Identification should not turn out to be mere farce. It has to be remembered that it is a process which aids in the real culprit being found out. The possibility of any extraneous help reacting the witness to make an identification which is not otherwise possible of him will have to be ruled out.
10. We said so because an argument came that the first accused had a scar on his forehead with which he could have been easily identified. PW 8, who conducted the test identification parade, was, therefore, found fault with for not providing identical non suspects and for not pasting paper slips for all. We are not very much convinced of this argument. There is absolutely no evidence or circumstance indicating that identification of the first accused was on the basis of any such identification mark and not by the observation at the time of occurrence. PWs. 2 and 5 are the persons who identified him. We are fully convinced of the correctness of their identification. Though PWs 1 to 3 did not identify him in the test identification parade and for that reason their identification of him in court cannot be accepted, when considered in the light of the evidence of PWs 2 and 5, the identity of the person mentioned by them as the one who inflicted the stab injuries could be safely fixed up as the first accused. The evidence of all these witnesses when considered together, unequivocally indicate that stabs were inflicted by the first accused alone and nobody else. The identification of the other accused was, in our opinion rightly, not seriously disputed.
11. We were not able to find any merit in the argument that non examination of CW 5 Kumaran Nair, who saw the incident and identified all the assailants, will amount to suppression of evidence which must meet with adverse consequences. Prosecution has the right to pick and choose witnesses. All occurrence witnesses need not be examined. Especially when CW 5 was one who went on pilgrimage to Sabarimla in the company of the appellants, there is nothing wrong in giving him up suspecting that he may turn hostile. Commission of an offence punishable Under Section 323 in furtherance of the common intention and with the presence and participation of all the four accused and commission of murder by the first accused are thus proved beyond doubt.
12. The only remaining question is whether murder was also in furtherance of the common intention of all. It can happen that when some persons act in concert to commit a minor offence, they may during the commission come to an understanding to commit a major offence as well. But development of such an understanding must appear from their conduct or from some other incriminating evidence. The-conduct or other evidence must be such as not to leave any room for doubt regarding the developed common intention. Before fastening vicarious liability, the criminal court must satisfy itself as to the prior meeting of minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. Mere accompanying cannot infer common intention. Existence or otherwise of common intention depends upon facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit Otherwise, there must be some other clear and cogent incriminating piece of evidence. When such materials are absent, the companions cannot be justifiably held guilty of every offence committed by the principal offender. Evidence regarding development of the common intention to commit an offence graver than the one originally designed, during execution of the original plan, should be clear and cogent Dharam Pal v. State of Haryana : 1978CriLJ1538 .
13. Even the common intention to assault PW2 was entertained only on the spot just before the attack. By no stretch of imagination, it could be thought they anticipated the arrival of Rajan and concerted to murder him. Accused 2 to 4 were unarmed. PW 1 is silent regarding anything done by them against the deceased though he was present when the deceased was done to death. PW 5 also did not implicate them. PW 2 and 3 also had no case that accused 2 to 4 did anything against the deceased till PW 2 escaped from their grip and ran away. While the overt acts attributed by PW2 against them are beating and fisting the deceased, what PW 3 said was only that they pulled him down enabling the first accused to inflict the third stab. We are not convinced of this part of the evidence and we do not think it safe to attribute murderous common intention. Therefore, interference in appeal need be only against the conviction and sentence as against accused 2 to 4 for murder with the aid of Section 34.
Criminal appeal is, therefore, allowed in part. For the offence punishable Under Section 302 read with Section 34 of the I.P.C, the conviction entered by the Sessions Judge against accused 2, 3 and 4 and the sentence of imprisonment for life awarded to them are set aside and they are acquitted of that charge. But the conviction of accused 2, 3 and 4 for the offence Under Section 323 read with Section 34 and the sentence of rigorous imprisonment for one year awarded to each of them will stand. The criminal appeal as against the first accused is dismissed in toto confirming the convictions and sentence! for both the offences. If accused 2, 3 and 4 have served out their term of imprisonment, they will immediately be set at liberty.