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Saroop Singh And Another v. The State .

Punjab & Haryana High Court

May 29, 1963

Judgment

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Judgment Summary — D.K. Mahajan, J. (with Dua, J. agreeing)

Factual and Procedural Background

The appellants, Sarup Singh and Salwant Singh, motor drivers and residents of Inder Puri, Delhi, were convicted by the Additional Sessions Judge, Delhi, under Section 302/34 Indian Penal Code and sentenced to death.

The prosecution case, as recited in the opinion, is that on the evening of 21 December 1962 (about 5:45 p.m.) the deceased, Hukam Chand, was standing in front of his office on Gurdwara Road. His son Chander Mohan (PW 7) and Har Kishan Lal (PW 5) were present. The accused, one armed with a kirpan and the other with a scythe, allegedly attacked Hukam Chand, inflicting injuries to his head and neck. The accused ran away; an alarm was raised by Ratan Lal (PW 1). A Flying Squad was called and removed Hukam Chand to Irwin Hospital, where he died at 8:30 p.m. without regaining consciousness.

The accused were arrested the same night between 8 and 9 p.m. A disclosure statement (Exhibit P.G) by Salwant Singh pointed out the place where the kirpan and scythe were hidden; those weapons were recovered (Exhibit P.I). Twenty-five prosecution witnesses were examined at trial; no defence evidence was led. The Additional Sessions Judge convicted the accused and sentenced them to death. The accused appealed (Criminal Appeal No. 17-D of 1964) and the matter was before the court for confirmation of the death sentence under Section 374 CrPC.

Legal Issues Presented

Whether the statement of Ratan Lal, on the basis of which Exhibit P.C/1 was recorded, can be treated as a first information report (FIR) within the meaning of Section 154 CrPC, in light of an earlier telephonic message (Exhibit P.U) and Section 131 CrPC.
Whether the testimony of the eye-witnesses (Har Kishan Lal PW 5 and Chander Mohan PW 7) is reliable and sufficient to support conviction for murder under Section 302/34 IPC.
Whether the recovery and disclosure evidence (Exhibit P.G and Exhibit P.I) is reliable and corroborative of the prosecution case.
Whether the injuries sustained by the deceased could have been inflicted by a single assailant (challenge that two accused could not have caused injuries all on one side), and whether medical evidence supports or negates that argument.
Whether the conviction and the sentence of death should be upheld on the material on record.

Arguments of the Parties

Appellants' Arguments

The learned counsel argued that the police had received a telephonic message and that the statement of Ratan Lal, recorded after the telephone message, was recorded in the course of investigation and therefore could not be the FIR; the learned Additional Sessions Judge had treated it as such and this was disputed.
It was urged that the eye-witnesses were not present at the spot and had falsely implicated the accused — in particular an allegation of enmity involving one Niranjan Singh was raised as a motive for false implication.
The credibility of Har Kishan Lal (PW 5) was attacked as a chance witness whose conduct (for example not immediately informing police/family) was suspicious.
The credibility of Chander Mohan (PW 7) was challenged on the ground that he would have accompanied his injured father to hospital rather than remain to give statements; contradictions between witnesses were also relied upon.
It was contended that the accused had been shown in advance to witnesses (via driving licences with photographs) and therefore refused to participate in an identification parade; this was raised to cast doubt on identification procedures.
Finally, it was argued that the injuries being on the right side indicated that only one person could have inflicted them, making it improbable that two accused jointly committed the murder.

Prosecution's Position (as reflected in the opinion)

The prosecution relied on the testimony of two eye-witnesses (PW 5 and PW 7) and the first information report (Exhibit P.C/1) based on Ratan Lal's statement; Ratan Lal was examined but declared hostile at trial.
It emphasized prompt arrests within a short time after the occurrence and the recovery of the weapons pursuant to the disclosure (Exhibit P.G → Exhibit P.I), with chemical examination showing human blood stains on the weapons.
The prosecution pointed to the accused's refusal to participate in the identification parade as suggestive that they feared identification by the eye-witnesses.
The prosecution also relied on the medical evidence to counter the single-assailant argument.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shakti Rai v. State, Cr. A. No. 80-D of 1961 (Dated 29-6-1962, Punjab Bench)	Consideration of whether telephonic messages can amount to a first information report; examined a similar telephonic message and related argument.	The Bench cited Shakti Rai as an instance where a similar telephonic message was considered; the opinion refers to the approach in that case on sufficiency of telephone/telegram detail to amount to FIR.
Gurusami Naidu v. Villis Guruswami Naidu, AIR 1951 Mad 812	That whether particular information amounts to an FIR is essentially a question of fact depending on circumstances of each case.	The court relied on this principle to note that telegrams/telephone messages could, in some circumstances with sufficient detail, constitute FIRs; but emphasized fact-specific inquiry.
Chiramel Varied Devassikutty v. State, AIR 1953 Trav-Co. 275	Authority cited for the proposition that telephonic or telegraphic messages cannot be treated as first information reports.	The court referred to this decision as part of a line of cases holding that telephonic/telegraphic messages are generally not FIRs and expressed respectful agreement with that rule.
Meherali Lalji v. Emperor, AIR 1931 Sind 13	Support for the rule that telephonic/telegraphic messages cannot be treated as FIRs.	The court cited it among older decisions laying down the rule that telephonic/telegraphic messages generally cannot be treated as FIRs.
Public Prosecutor v. Chidambram, AIR 1928 Mad 791	Another precedent supporting the rule regarding telephonic/telegraphic messages and FIR status.	The opinion referenced this case as part of the authority that telephonic/telegraphic messages cannot be treated as FIRs.
Kachi Hazara v. Seraj Khan, AIR 1935 Cal 403	Also cited for the principle that telephonic/telegraphic messages are not FIRs.	Used with the other precedents to support the general rule the court accepted regarding telephonic/telegraphic messages.
State of Bombay v. Rusy Mistry, AIR 1960 SC 391	That the first information report is not substantive evidence but may be used to corroborate or contradict evidence of the informant or to impeach his credit.	The court relied on this statement of principle in discussing the evidentiary role of the first information report (Exhibit P.C/1) in corroborating or impeaching testimonial evidence.

Court's Reasoning and Analysis

The court's analysis proceeds in the following sequence, grounded in the record and the authorities cited in the opinion.

On the FIR issue: The court examined whether the telephonic message (Exhibit P.U) amounted to a first information report under Section 154 CrPC, and whether Ratan Lal's statement (the basis of Exhibit P.C/1) was recorded during investigation and thus could not be the FIR. The telephonic message was quoted (naming Ram Sarup Sharma as the informant by telephone, stating two men had run away after injuring Lala Hukam Chand and requesting police), and the court held that such a telephonic message could not be treated as an FIR in the present instance because (i) it did not disclose the identity of the assailants; (ii) it was not given by an eye-witness; and (iii) it was hearsay. The court referred to prior authorities and agreed generally with the rule that telephonic or telegraphic messages cannot ordinarily be treated as FIRs, while acknowledging that in some fact-specific circumstances (where sufficient identifying detail is present) a telegram or telephone message could amount to an FIR (Gurusami Naidu and the approach in Shakti Rai).
The court observed that the learned Additional Sessions Judge was in error in ruling out Exhibit P.C/1 (Ratan Lal's statement) from consideration "altogether" — indicating the appellate bench found that the sessions judge had been too strict in excluding that material as not constituting an FIR or otherwise excluding its evidentiary value.
On the credibility of eye-witnesses: The court carefully reviewed the testimony of Har Kishan Lal (PW 5) and Chander Mohan (PW 7). It rejected the appellants' submissions that these witnesses were not present, were chance witnesses, or had motives to falsely implicate the accused. The court noted the short interval between occurrence and arrest (which supported that the identity of the accused was known), the lack of evidence of enmity involving Niranjan Singh beyond bare assertion, the divergence in witness testimony (which militated against a tutored story), and the human reaction to a ghastly scene (explaining certain conduct of Chander Mohan). On balance, the court found no reason to discard their testimony and accepted them as credible eyewitnesses.
On recovery and disclosure evidence: The court recited that Salwant Singh made a disclosure (Exhibit P.G) identifying a location where a kirpan and a scythe were hidden; those weapons were recovered (Exhibit P.I) in the presence of witnesses (Bishan Singh and Dr. Baldev Das). The chemical examiner reported human blood stains on the weapons (although the quantity was insufficient to fix grouping). The court accepted the testimony of the recovery witnesses and considered this evidence to heavily weigh against Salwant Singh and to corroborate the eyewitness testimony.
On identification parade and related conduct: The court found evidence that the accused refused to participate in an identification parade. The appellants asserted pre-exposure of photographs (driving licences) at the time of arrest; the record contained positive evidence that no driving licences were taken into possession at arrest and that the accused kept their faces muffled when taken out. The court inferred that the refusal to participate in the parade supported the conclusion that the accused feared identification by witnesses; the court observed that if Ratan Lal had been won over earlier the accused would likely have participated, but he had been won over later, indicating the refusal to parade was not innocuous.
On the single-assailant argument: The appellants argued that injuries being on the right side meant only one assailant could have caused them. The court rejected this as speculative, noting that different weapons were used and that such conjecture was not compelling; it also held that the medical evidence did not sustain the single-assailant theory.
Conclusion of analysis: Considering eyewitness testimony, recovery evidence, the proximity in time between the incident and arrests, and the medical evidence, the court concluded that the charge of murder was established against both accused. The court therefore found that the Additional Sessions Judge was correct in convicting under Section 302/34 IPC and sentencing them to death.

Holding and Implications

Holding:

The appeal is dismissed. The conviction under Section 302/34 Indian Penal Code is upheld, and the death sentences imposed by the Additional Sessions Judge are confirmed.

Implications and direct effects:

The direct legal effect is that the appellants' convictions and death sentences remain in force as confirmed by the court.
The court reiterated established principles concerning the evidentiary status of telephonic or telegraphic messages in relation to first information reports: generally such messages are not to be treated as FIRs unless, on the facts of a case, they disclose sufficient identifying detail. The court expressed agreement with prior authorities on this point, but also criticized the trial judge for wholly excluding Exhibit P.C/1 from consideration.
The opinion does not purport to create a new broad precedent beyond its fact-specific holdings; it applies existing authorities and affirms the conviction on the basis of the totality of eyewitness, recovery and medical evidence in the record.

Notes: The summary above is confined to the material contained in the provided opinion. Portions of the source contained textual lacunae (represented in the source by "???"); no additional facts have been inferred beyond what the opinion itself states.

Show all summary ...

D.K Mahajan, J.:— Sarup Singh and Salwant Singh motor drivers and residents of Inder Puri Delhi, Acre convicted under S. 302, Indian Penal Code, and sentenced to death by the Additional Sessions Judge Delhi.

2. The prosecution case is that Hukam Chand deceased owned a number of taxi cars he had an office at Gurdwara Road on the evening of the 21st December, 1962 he was standing in front his office on the footpath ??? his ???. The time of the day was 545 ???. His son Chander Mohan PW 7 was in the verandah of the office along with one Harkishan Lal PW who had come there for the purpose of making telephone call Sarup Singh accused armed with a kirpan and Salwant Singh armed with scythe (drant) came from the side of the street No. 66 ??? started inflicting injuries on the head and neck Elukam Chand Hukam Chand tell down on receiving the injuries. The accused ran was wards the street No. 66 from where they had come an alarm was raised by Ratan Lal PW 1 an employee of the deceased. Ram Sarup Sharma PW 6, an astrologer, who has his office on the first floor of No. 2239, Gurdwara Road, on hearing the commotion rang up the Flying Squad informing them that there was some dispute (Jhagra) going on down-stairs. It is also the prosecution case that Ratan Lal chased the accused but without success Having failed to catch the accused, he came to the office of Ram Sarup PW and requested him to inform the police Ram Sarup rang up the local police informing them that two persons had killed Hukam Chand and had run away Within five minutes of the telephone call the Flying Squad came and removed Hukam Chand to the Irwin Hospital who was then bleeding profusely.

3. Soon after the local police also arrived. The police recorded the statement of Ratan Lal P.W and sent it to the police station for purposes of registration of the case. Thereafter the statement of Chander Mohan PW 7 was recorded. The spot was inspected and rough sketch of the spot Exhibit PY, was prepared. Various articles belonging to the deceased along with the blood-stained earth were removed and taken into custody (vide recovery memo Exhibit PE) Hukam Chand died in the hospital at 8.30 p.m without regaining consciousness. The accused persons were arrested from their houses the same night between 8 and 9 p.m by Mehar Singh, Police Inspector PW 18. The case was investigated by Sub Inspect of Vidya Sagar of Karol Bagh Police Station, PW 25.

4. One of the accused persons, namely, Salwant Singh made a statement, on interrogation, to the police, which is Exhibit P.G This statement reads thus:

“I and Samp Singh threw one big kirpan and one scythe on the Ridge Road one furlong away towards Cantt from Circle of Pusa Road, beyond metalled road in the West in the bushes underneath the stones. I can point out that place.”

5. In pursuance of this statement, the kirpan and the scythe were recovered in the presence of Bishan Singh and Dr. Baldev Das from the place pointed out by the accused Salwant Singh the recovery memo is Exhibit PI. The disclosure statement was also made in the presence of the aforesaid witnesses.

6. The accused were charged under S. 302/34 Indian Penal Code and were tried as they pleaded not guilty to the charge.

7. At the trial, the prosecution examined as many as 25 witnesses no evidence was examined in defence the learned Additional Sessions Judge, after taking into consideration the evidence led in the case, believed the testimony of the eye-witnesses and found the accused guilty under S. 302/34, Indian Penal Code and sentenced them to death. As already stated, the accused have filed Criminal Appeal No. 17-D of 1964 and the matter has been placed before us for confirmation of the death sentence under Section 374 of the Cr PC.

8. The prosecution story is supported by the testimony of two eye-witnesses, Har Kishan Lal PW 5 and Chander Mohan PW 7. Chander Mohan is the son of the deceased. The third eyewitness, whose statement formed the basis of the first information report, is Ratan Lal, PW 4, who had been won over and was declared hostile. He was cross-examined by the Public Prosecutor he has completely gone back from his statement, which as already stated, formed the basis of the first information report.

9. Before dealing with the prosecution evidence and the various contentions advanced by the learned counsel for the accused persons, it will be proper to settle the question, whether the statement of Ratan Lal on the basis of which the first information report, Exhibit P.C/l was recorded can be treated as the first information report or not? The learned Additional Sessions judge has held that this statement cannot be treated as the first information report. The reason given for this finding is that the police had received a telephonic message to the effect that Hukam Chand had been injured by two persons who had run away and that Hukam Chand was lying at the spot it is on the basis of this message that the police came to the spot and anything done by the police thereafter would be in the course of investigation. The statement of Ratan Lal therefore, on the basis of which Exhibit PC/1 was recorded having been recorded during the course of investigation cannot be treated as the first information report. In this connection, reliance is placed on Section 131 of the Cr PC we are however, clearly of the view that this finding is wholly erroneous. The telephonic message, which is, exhibit P.U, reads thus:

“Ram Sarup Sharma, resident of No. 2239, Gurdwara Road, Karol Bagh, Delhi, gave an in formation on telephone that two men had run away after injuring Lala Hukam Chand with a sword, near Sethi Tent House, Gurdwara Road in front of the Oriental Bank and that police may be sent immediately hence on receipt of the telephone a report was entered in the roznamcha.”

10. This message cannot be held to be first information report within the meaning of Section 154 of the Cr PC. This report does not disclose the identity of the assailants. It was not lodged by an eye-witness though it was pursuant to Ratan Lal's request. In any case, it is a cryptic message conveyed by a person who admittedly is not an eye-witness and thus is purely hearsay. In Shakti Rai v. State, Cr. A. No. 80-D of 1961 D/- 29-6-1962 (Punj) Capoor and Gurdev Singh, JJ. had an occasion to consider a similar report and a similar argument. This argument was disposed of by the Bench as follows:

“The correct view appears to be that whether a particular information amounts to first information report or not, is essentially a question of fact depending upon the circumstances of each case Gurusami Naidu v. Villis Guruswami Naidu, AIR 1951 Mad 812. It would probably not be correct to say that a telegram or a telephone message received in the police-station, within the jurisdiction of which a certain offence has been committed, can in no case, be treated as the first information report, if in the telephone or telegram sufficient details such as the names of the informant, the victim and the culprits and the manner of the commission of the offence, are stated, and investigation starts thereon. In such cases the requirements of Section 154 of the Cr PC would appear to be substantially complied with. The telephone message in the present case (Exhibit P.W 43.A) is, however, very exiguous. Neither the name of the victim nor the names of the culprits are given and the man who has purported to send the message does not claim to he an eye-witness.”

11. It is no doubt true that the learned Judges ruled out the telephonic message in the case with which they were doing principally on the ground that there was a fundamental objection in treating that report as a first Information report because it was not given to the office-in-charge of the police-station which was one of the essential requirements of Section 154 of the Cr PC. However, the decisions in Chiramel Varied Devassikutty v. State, AIR 1953 Trav-Co. 275; Meherali Lalji v. Emperor, AIR 1931 Sind 13; Public Prosecutor v. Chidambram, AIR 1928 Mad 791 and Kachi Hazara v. Seraj Khan, AIR 1935 Cal 403 clearly lay down that telephonic or telegraphic messages cannot be treated as first information reports. We are in respectful agreement with the rule laid down to the aforesaid decisions. No case to the contrary has keen brought to our notice by the learned counsel for the appellants. It must, therefore be held that the learned Additional Sessions Judge was in error 11 ruling out Exhibit P.C/1 from consideration altogether it is no doubt true that “the first information report is not substantive evidence, but can only be used to corroborate or contradict the evidence of the informant given in Court or to impeach his credit.” See the State of Bombay v. Rusy Mistry, AIR 1960 SC 391.

12. We have gone through the testimony of the eye-witnesses. In our view, there is no reason to discard the same. It is significant that the accused persons were arrested within almost two ??? of the occurrence. This could only be done if the identity of the accused persons was known. There is no reason why the eye-witnesses should have implicated the accused persons and the eyewitnesses. A suggestion has been made that the accused had enmity with one Niranjan Singh driver of the deceased and it is at the instance of Niranjan Singh that they have been implicated.

13. There is no reason why the eye-witnesses should have named the accused persons at the instance of Niranjan Singh. No evidence was examined by the accused persons to show that Niranjan Singh was inimical to them. Barring the bare assertion of the accused persons, no material has been placed on the record to show the alleged enmity. The time between the occurrence and the arrest of the accused is so short that in the very nature of things it would not be possible for any confabulations to be held for the purposes of falsely implicating any persons against whom there could be any suspicion for assaulting the deceased the flying-squad arrived at the spot within a few minutes of the occurrence and was followed very shortly be the local police. The presence of the eye-witnesses at the spot at the time of occurrence is amply proved from the evidence on record. If a false case was being hatched out, most of the loopholes which are now being pointed out would have been plugged. If the eye-witnesses were not present at the spot, they would have placed before the Court a tutored version of the story, but there is so much divergence in their testimony that one has to rule out this possibility. We are fully convinced that the eye-witnesses were present at the spot and saw the occurrence there is no reason to disbelieve their testimony.

14. We now proceed to examine the various contentions raised by the learned counsel for the appellants for the suggestion that the eye-witnesses were not present at the spot, that no one saw the occurrence and that the accused persons had been falsely named as the assailants.

15. PW 5 Harkishan Lal's testimony has been attacked principally on the grounds that he is a chance witness; that he came from his school direct to the place of occurrence and did not go home; that even if his story is believed that he had an engagement with his sister's husband at 3.80 p.m and in spite of the fact that the sister's husband did not turn up at that time he went to ring at the telephone when the telephone was out of order, that the attack was made within ten minutes of the arrival of the witness; that his conduct in not informing the police or the family members of the deceased is also indicative of the fact that he is not present at the time of the occurrence. He is, it is being urged, a ??? of the deceased and would have immediately and to the police-station and lodged is report, rata, in any case, would have at least, informed the family members of the deceased.

16. These considerations are act such as would enable us to definitely hold that this witness is not telling the truth. Human affair and human reactions are very complex. Different people react differently to the same situation. The son of the deceased was present at the spot. It could not, therefore, be expected that this witness should do all that the son would hove done in the natural course of things.

17. While dealing with the testimony of a witness, one has to closely examine if there is any reason for the witness to make a false statement. He is a highly educated person and is employed in the noble profession of teaching. It is highly inconceivable that a man of his status would perjure himself and try to implicate innocent persons. The mere fact that he had good relations with the deceased is no ground to hold that he will go out of his way and try to implicate innocent persons there is no reason to reject his explanation given on oath, why and how he happened to be at the spot all these considerations were placed before the learned Additional Sessions Judge and were rejected by him he has accepted the testimony of this witness and we do not see any reason to reject it this witness had not tried to prevaricate and has made a straightforward statement ??? five of the fact whether his statement would out and out support the prosecution case or not.

18. With regard to the testimony of Chandiri Mohan PW 7 the argument of the learned counsel for the appellant is the same, namely, that lie was not present at the time of the occurrence. The reasons for this suggestion are—

1. That Chander Mohan was bound to go 0 the hospital with his deceased father and would not stay at the spot to make the statement to the police;

2. that the basis for the first information re port would have been the statement of Chander Mohan and not that of Ratan Lal. Ratan Lal was only picked up because Chander Mohan was not at the spot;

3 that there were some contradictions between the statement of Chander Mohan and those of Vidya Sagar and Harikishan Lal; and

4. that Chander Mohan never sent my information to his other family members.

19. The same reasons apply to the acceptance of the testimony of Chander Mohan as haw been mentioned by us in the case of the testimony of Harikishan Lal the police had arrived of the spot at the time when the deceased was being removed to the hospital. The Sub-Inspector of Police wanted to record the testimony of the eye-witnesses and it would, therefore, be natural for Chander Mohan to stay on, particularly when he was asked by the Sub-Inspector of Police to stay on it ts also in evidence that the other family members of Chander Mohan had arrived at the hospital though there is no evidence as to who informed them of the occurrence. As soon as Chander Mohan's statement was recorded by the Sub-Inspector, he proceeded to the hospital. More-Over, there is no point in the first information report being not recorded on the basis of the testimony of Chander Mohan.

20. If the police were out to conduct a false case they could have done so but they did not, the reasons being that the telepohnic message was sent at the instance of Ratan Lal. It was Ratan Lal who had not only seen the accused persons but had also named them it appears, therefore, that the Sub-Inspector thought it proper to record the statement of Ratan Lal first and to make it the basis of the first information report. Ratan Lal has been won over. There can be no two opinions about this and he has deliberately made a false statement in Court but the fact remains that his statement, which is the basis of the first information report, clearly mentions that the accused persons, Sarup Singh and Salwant Singh, were the assailants and this statement being the first information report can be pressed into service for corroborating the testimony of Chander Mohan and Harkishan Lal in this report, it is mentioned that the other two eye-witnesses were Chander Mohan and Harkishan Lal Moreover, we are in agreement with the observation of the learned Additional Sessions Judge that Chander Mohan seems to have lost nerve at the sight of this ghastly tragedy and, therefore, his conduct must be judged in the light of this patent circumstance.

21. Keeping in view all the considerations placed before us by the learned counsel for the accused appellants, we are clearly of the view that there is no reason whatever to reject the testimony of the eye-witnesses. The contradictions, as a matter of fact, show that the eye-witnesses are telling the truth, and they are not tutored witnesses. As already stated, there is no reason why these respectable and educated persons would implicate innocent persons merely to satisfy the whim of Niranjan Singh, particularly when they had no close affinity to and were not under any oblige lion to Niranjan Singh.

22. This brings us to the consideration of the recovery evidence. The disclosure statement, Exhibit PJ., was made in the presence of Dr. Baldev Das and Bishan Singh, who have been examined as PW 9 and PW 8 respectively this statement led to the recovery of the weapons of assault. The report of the Chemical examiner is that these weapons were stained with human blood the quantity of the human blood was not enough enable the chemical examiner to fix its grouping, but the fact remains that they were stained with human blood. The testimony of the aforesaid witnesses has been accepted by the learned Additional Sessions Judge and we see no reason to reject the same the main criticism levelled against them is that they are stock witnesses of the police an that they are chance witnesses.

23. There is not much substance in this criticism. After going through their testimony we are of the view that the learned Additional Sessions Judge was perfectly justified in accepting their testimony. This evidence certainly goes heavily against Salwant Singh accused it also corroborates the testimony of eye-witnesses. There is no such statement by Sarup Singh. So far as he is concerned, his complicity in the crime is fully borne out by the testimony of the eye-witnesses.

24. There is yet another fact which cannot be lost sight of that is, that the accused persons refused to participate in the identification parade. The ground on which they refused to participate was that they had been shown to the witnesses previously and that at the time when the were arrested their driving licences were taken by the police. The driving licences, it is alleged, had the photographs of the accused persons and those photographs must have been shown by the police to the witnesses there is positive evidence on the record that at the time of the arrest and the search no driving licences were taken into possession, it is also in evidence that the accused were told that an identification parade would be held and that they should muffle their faces the accused, whenever they were taken out kept their faces muffled there is no reason to reject this evidence.

25. In this situation, it is, therefore, obvious that the accused persons refused to participate in the identification parade because they had the apprehension that the eye-witnesses would have identified them particularly Ratan Lal who seems to have been won over after the date fixed for the identification parade if Ratan Lal had been won over earlier the accused persons would have readily agreed to the identification parade Because in that event Ratan Lal would have positively state that the accused persons were not the assailant this conclusion is irresistible if the testimony it Ratan Lal is read as a whole he has tried his best to help the accused persons therefore the conduct of the accused in not participation in the identification parade does give rise to the inference that it they had participated in the parade they would have been identified by the eve-witnesses.

26. The only other argument which was vehemently urged — and which remains to be examined — was to the effect that the injuries were inflicted by one person the argument is that all the injuries are on the right side and two persons could not have inflicted the injuries on one side of the body it is argued that if there were two persons assaulting, there would be injuries on two different sides of the victim, because it is unlikely that both the accused would have assaulted from one side. This argument cannot be accepted the first instance., for the reason that the injuries sire by two types of weapons and secondly, because the argument is purely conjectural that injuries could not have been inflicted by two person from the same side Moreover, the medical evident also negatives this argument.

27. After giving the matter oui careful consideration we are clearly of the view that the charge of murder has been brought home to the accused persons and that the learned Additional Sessions judge was right in convicting them under Section 302/34 Indian Penal Code and in sen fencing them to death we accordingly reject the appeal uphold the decision of the learned Additional Sessions Judge and confirm the sentence of death.

28. Dua, J.:— I agree.

IH/V.B.B

29. Appeal dismissed.