JUDGMENT Prem Prakash, J. -Thanedar Singh, resident of village Kasanda, Police Circle Ajgain and Shy am Kishore alias Kallu of village Pure Nisf Pansari, Police Circle Makhi - District Unnao - were tried by the III Additional Sessions Judge, Unnao, upon the charge of murder read with S. 120-B Penal Code along with two others. Out of them Thanedar Singh and Shyam Kishore alias Kallu were found guilty of the offence under Section 302 Penal Code. Shyam Kishore alias Kallu died during the pendency of the appeal; hence his appeal abates. Upon the trial, Thanedar Singh was found to have fired gun shots on Raj Kishore Awasthi an Advocate of Unnao on 3-5-1978 at 9 p. m. in the vicinity of the main crossing of the city of Unnao, on the road which leads off from Kanpur to Lucknow. The injured succumbed to his injuries, immediately after. 2. Thanedar Singh has been awarded the extreme penalty of law. The usual reference for confirmation of death sentence is also before us. 3. A topographical account of the locality may be set down here. Around the crossing to its east and west there are a number of shops. The crossing on one side joins the Dhawan Road and on the other joins the road which leads off to the railway station. To the immediate north of the Dhawan Road at a distance of nine paces there was the sweetmeat shop of Krishna Kumar facing towards west and south adjacent to the shop of Krishna Kumar to the north was the shop of Mannoo Lal facing west. At a distance of 14 paces from the crossing towards east Janki Prasad used to sell Chaat at his 'Thela, it being the place to the immediate west of the shops of Krishna Kumar and Mannoo Lal. There was a letter box to the south of the shop of Mannoo Lal. To the south of the Dhawan Road there were the shops of Uma Shanker and Ram Bilas and to the immediate west of the Kanpur-Lucknow Road and next to the crossing there were the shops of Sushil Kumar, Suresh Chandra and Dinesh Kumar. The scene of occurrence was at a distance of 4 or 5 paces to the west of the latter box. The letter box was at a distance of 7 paces from the crossing at the Lucknow-Kanpur road. The scene of occurrence was at a distance of 4 or 5 paces to the west of the latter box. The letter box was at a distance of 7 paces from the crossing at the Lucknow-Kanpur road. The 'Thela of Janki Chatwala was at a distance of about nine paces to the east of the crossing. 4. Briefly stated the prosecution story as it was unfolded and accepted at the trial was this: The deceased was a practising lawyer at Unnao and was living with his brother Ram Kishore (P. W. 1) in Civil Lines, Unnao. On the fateful day the two brothers, as it was usual with them, came to the crossing in the course of their evening stroll, after having taken their meals. The deceased was at the crossing, at a distance of 4 or 5 paces to the west of the letter box. By his side were Raj Kishore Gupta (P. W. 6), Bhola Nath Yadav, Prakash Chandra Shukla, Surendra Bahadur Singh, Krishna Ballabh alias Bachcha and Sheo Narain. They were talking together. At that hour Ram Kishore (P. W. 1), the brother of the deceased, was taking Chaat at the Thela of Janki. Surendra Nath (P. W. 2) was also there. The electric lights had been off for some time on account of the frequent electricity trappings. By 9 p. m., the electricity supply had not been restored and the petromax light from the shops of the nearby shop-keepers was giving light to the area. At about 9 p. m., the two appellants, unknown to the informant from ( before, emerged from the side of the Dhawan Road; the accused Thanedar Singh was wearing pant and shirt and Shyam Kishore was putting on Kurta and Paijama. They paused at a distance of about three paces from the place where the deceased was standing. Within a couple of minutes and upon the exhortation of Shyam Kishore, Thanedar Singh whipped out his country made pistol and fired shots on Raj Kishore Awasthi which felled him down. Thereafter, the two accused ran away via Dhawan Road. In spite of chase given by several persons and the traffic constable they escaped away uncaught. While escaping away they were turning their faces backward. The victim was profusely bleeding. He was immediately taken to the District Hospital where he was declared dead by the Medical Officer. 5. Thereafter, the two accused ran away via Dhawan Road. In spite of chase given by several persons and the traffic constable they escaped away uncaught. While escaping away they were turning their faces backward. The victim was profusely bleeding. He was immediately taken to the District Hospital where he was declared dead by the Medical Officer. 5. Ram Kishore Awasthi (P.W. 1) wrote the report which he made over at the police station Kotwali at 10 p.m., the distance between the police station and the hospital being four furlongs. The check report was prepared by Babu Ram H. C. (P. W. 10) and the investigation of the case was taken over by Sub-Inspector Chaudhary (P. W. 9). He interrogated Ram Kishore Awasthi at the police station and rushed to the scene of occurrence reaching there at 10.50 p. m. He found blood at a distance of 5 or 6 paces from the letter box; he inspected the site and prepared the site plan Ex. Ka. 14. Next morning, he Performed the inquest on the dead body at the District Hospital and sent it to the mortuary for post mortem examination. 6. Thereafter, on that very day the investigation was taken over by S.I. Kesho Ram Misra (P. W. 11). He interrogated Surendra Nath Shukla (P. W. 2), Raj Kishore Gupta (P. W. 6) Prakash Chand and others. He saw the petromax of Uma Shanker and Janki Chatwala and found them in working order. He also saw the petromax which were burning on the nearby shops. The interrogation of Chandrika Prasad (P. W. 7) revealed the presence of the two appellants and others along with Kiran in the Punjab Hindu Hotel at about 8.30 p. m. on that day. The Hotel is at a distance of about one furlong from the main crossing. In spite of search the culprits were not traceable and it was on 10-5-1978 at 12.30 p. m. that Thanedar Singh was apprehended near the gate of Collect-orate. He was sent to the jail with a veiled face and as the evidence was tendered none had an opportunity to see his face from the time of his arrest until his admission in jail. Evidence was also led to the effect that after his admission in the jail and until the test identification none had had an opportunity to mark his face. Evidence was also led to the effect that after his admission in the jail and until the test identification none had had an opportunity to mark his face. After doing the necessary investigation the charge sheet for the prosecution of the appellants and others was submitted. 7. We shall turn to the proceedings of identification held in the District Jail, Unnao, under the supervision of Sri B.S. Chauhan, Executive Magistrate (P. W. 3) on 30-6-1978 in the subsequent (part). It is sufficient to mention it here that Thanedar Singh was correctly identified and without any mistake by Ram Kishore Awasthi, Surendra Nath Shukla, Prakash Chand, Sheo Narain and Ram Kishore Gupta, Janki Prasad Thelewala disclaimed to have marked the features of those who committed the murder. 8. The autopsy on the deceased was performed by Dr. C.P. Singh (P.W. 4) of the District Hospital, Unnao at 10.30 a. m. on 4th May, 1978. Six gun shot wounds chest cavity deep of 1.5" x 1.5" diameter, circular in an area of 2" x 1" on the left side back middle part 2" outer to the middle line. Margins were inverted. Skin in an area of 2" x 2" was scorched and tattooed. It was the wound of entrance. Stomach contained undigested food. Six pellets were found inside the chest. Pleura had been ruptured. Pericardium was punctured on the posterior and front sides. In the opinion of Dr. Singh death was due to shock and hemorrhage as a result of gun shot injury which coincided in duration with the time of the occurrence. 9. The plea of the accused was of an absolute denial of his guilt. He acknowledged that he was arrested on 10th May at about 12.30 p. m. but he stated to have been arrested near the Sessions Court. He denied that the witnesses had identified him at the test identification. He made a sweeping allegation that it was incorrect that he was kept with a veiled face from the time of his arrest until his appearance at the test identification parade. In answer to question No. 24 he stated: ''This is incorrect that I was wearing at that time Kurta and Paijama". Again he said that when he was taken to jail he was putting on a Kurta and Paijama. In answer to question No. 24 he stated: ''This is incorrect that I was wearing at that time Kurta and Paijama". Again he said that when he was taken to jail he was putting on a Kurta and Paijama. He said that he had been falsely implicated by the police and that the witnesses were deposing falsely under the influence of the police. As regards the witnesses who claimed to have identified him at the parade and in the court he stated that they had been knowing him from before. In his defence he produced Ex. Kha. 4 the copy of the order sheet dated 10-5-1978 of the Court of Judicial Magistrate in a case under Section 392/411, Indian Penal Code, against him and others; on that date since the Presiding Officer was on leave the case was adjourned to 7th June. It was the date when the accused had come to the court and was going back towards Nirala Park when he was arrested by the Sub-Inspector. Ex Kha 1 is the copy of the order sheet dated 31-5-1978 of the Court of Sessions Judge, Unnao in Sessions Trial No, 177 of 1977 State v. Mukut Behari - in which accused Thanedar Singh was also a co-accused. Sub-Inspector Misra (P. W. 11) who investigated the case stated in cross-examination that by then he had not come to know that Thanedar Singh was to appear in a case in the Court of Session on 31st May. 10. At the trial the prosecution examined besides tendering formal evidence, a number of avowed eye witnesses; they being Ram Kishore Awasthy (P. W. 1) Surendra Nath Shukla (P. W. 2) and Ram Kishore Gupta (P. W. 6) who had correctly identified the appellant Thanedar Singh without making any mistake at the parade and at the trial. The circumstantial evidence of Chandrika Prasad (P. W. 7) did not, however, prevail with the learned Sessions Judge in the determination of the guilt of the two appellants. In his finding the evidence fell far short of proving the alleged conspiracy to murder the deceased. The circumstantial evidence of Chandrika Prasad (P. W. 7) did not, however, prevail with the learned Sessions Judge in the determination of the guilt of the two appellants. In his finding the evidence fell far short of proving the alleged conspiracy to murder the deceased. Finding that there was sufficient light available at the spot which was given by the burning petromax at the nearby shops that in the light the witnesses had had sufficient opportunity to mark the features of the culprits who were unknown men and who had no opportunity to see the faces of the culprits after their arrest and until the time they were produced at the test identification in the District Jail, Unnao, held under the supervision of a First Class Magistrate, who had taken all the necessary precautions to eliminate chances of mistaken or dishonest identification, the trial court found that Thanedar Singh was the actual perpetrator of the crime. He was the person who fired gun shots at the deceased which resulted in his death soon after in the hospital. Accordingly, he was convicted and sentenced for the offence under Section 302 Penal Code simpliciter. 11. The time and the venue of the occurrence was not seriously disputed by the accused at the trial. It is also proved that the scene of occurrence was not a desolate place; it being situate near the main crossing. In the vicinity there were a number of shops of sweetmeat vendors. The accused does not challenge the claim of the prosecution that the shops were open, despite the fact that electric lights were off. It ordinarily stands to reason that the sweetmeat vendors or other shop-keepers would be using some light. In this case the Investigating Officer saw the petromax lanterns, which were burning at that hour. This being so, there is no escape from the conclusion that the light shed by the burning petromax lanterns must have illumined the area, and in particular, the place near the crossing which could enable those standing near the letter box and taking Chaat at the Thela of Janki Prasad, to recognise the culprits. 12. Counsel for the appellant Thanedar Singh has assailed the identity evidence on two main grounds, first, the evidence does not eliminate the probability of the accused being shown to witnesses on 10-5-1978 and on 31-5-1978 in the courts of the Magistrate/Sessions Judge. 12. Counsel for the appellant Thanedar Singh has assailed the identity evidence on two main grounds, first, the evidence does not eliminate the probability of the accused being shown to witnesses on 10-5-1978 and on 31-5-1978 in the courts of the Magistrate/Sessions Judge. He has submitted that the evidence does not show that the accused was taken Ba-purdah from the jail on 31-5-1978, and that he was kept with a veiled face throughout until his return to the jail on that day. Further, it has been contended that the hulia of the accused appellant Thanedar Singh, who is a man of tall stature, was not specifically given out by the informant in the first information report or by the witnesses in the course of investigation rendering his participation in the crime doubtful; also the veracity of the ocular testimony was attacked on the ground that the corroborative evidence alleged to have been furnished by the conduct of the witnesses at the test identification should not commend to belief, it being too good upon which no reliance can be placed. 13. Pausing here and before we consider the correctness or otherwise of the points canvassed by the learned counsel we may note that we examined Sri K. M. Srivastava the then Assistant Jailor, Unnao Jail, under Section 311, Cr. P. C. to inform ourselves whether the accused was sent with a veiled face on 31-5-1978 to the Court of Session. Sri Srivastava very frankly conceded that there is no such entry found in the Gate Book although on other dates when under-trials were taken out and if they were in Ba-purdah condition an entry is found in the register. In the under-trials Admission Register of 11th May it is mentioned that the appellant was admitted to jail with a covered face. The statement of Sri Srivastava being thus of no avail to the prosecution, an endeavour was made to fill in the gap by tendering the affidavit of Ram Charitra Misra, who was also examined by us as C. W. 2. In the affidavit he had sworn that he had taken the appellant with covered face from the jail on 31st May to the Court of Session and had brought him back to the jail in that very condition. But his cross-examination demonstrated that he was drawing upon his memory with no record to refresh it. In the affidavit he had sworn that he had taken the appellant with covered face from the jail on 31st May to the Court of Session and had brought him back to the jail in that very condition. But his cross-examination demonstrated that he was drawing upon his memory with no record to refresh it. He was constrained to admit in his cross-examination that he did not remember any other under-trial, who was taken by him Ba-purdah to the court from jail on any particular day. Naturally, such a thing to remember after so many days is too much to expect from a witness in the absence of any record to substantiate it. In our opinion the affidavit sworn by Ram Charitra Misra is a waste paper document upon which no reliance whatsoever can be placed. Notwithstanding this we have yet to examine the plea of the accused that he was shown to the witnesses on 31st May when he happened to be there to attend the Sessions Trial pending against him. 14. Neither at the parade nor in his statement under Section 313, Cr. P. C. the accused had taken the plea that the witnesses were present in the court room or outside it on 31st May or that he was shown to the witnesses on that day when he was being taken from the jail to the court and back. It is true that the accused is not bound to prove the fact by affirmative evidence. It is enough if from the evidence adduced by him or from the facts which transpire from the prosecution evidence a reasonable probability could be spelt out as to the truth of his contention. Whatever he says cannot be mechanically accepted as being true without probing into the probability of its being true. The plea of the accused has to be tested on the anvil of probabilities. We may do no better than to refer to the following observations of the Supreme Court in Ramanathan v. The State of Tamil Nadu, ( AIR 1978 SC 1204 ). Hon'ble Mr. The plea of the accused has to be tested on the anvil of probabilities. We may do no better than to refer to the following observations of the Supreme Court in Ramanathan v. The State of Tamil Nadu, ( AIR 1978 SC 1204 ). Hon'ble Mr. Justice Shinghal speaking for the Court observed on page 1211: "The line up of the suspect in a test identification parade is therefore a writable way of testing the memory and veracity of witnesses in such cases.The appellant knew about that evidence from the date the parade was held and if he wanted to demolish it, it was for him to do so by effective cross-examination of the witnesses or by examining his own witnesses in rebuttal. As the appellant has not succeeded in doing so, it is futile to contend that this important piece of evidence should be rejected merely because the prosecution had not led any evidence to prove that the appellant was kept Ba-purdah." 15. The Supreme Court referred with approval to the decision of the Rajasthan High Court in State of Hajjaslhan v. Ranjita Ladhuram, ( AIR 1962 Raj 78 ) where the Full Bench held '(1) It is not necessary that entry should be made in the various police records of the precautions that -were taken for keeping the accused persons Ba-purdah while under police custody. (2) It is also not necessary to specify in the warrant of commitment of the accused when he is sent to judicial custody that he is to be kept Ba-purdah till the identification parade takes place, nor it is necessary to specify the precautions that the jail authorities are to take for keeping the accused Ba-purdah and (3) it is also not necessary that entries should be made in the jail records for keeping the accused Ba-purdah while he is in the judicial lock up." 16. The doubt that used to be entertained as to the quality of the identification evidence has been dispelled by the Supreme Court in State of U. P. v. Boota Singh, ( AIR 1978 SC 1770 ) : (1978 All LJ 1156). As handed down in that case the evidence of identification is not in general a very weak type of evidence. As handed down in that case the evidence of identification is not in general a very weak type of evidence. If the witness correctly identifies the accused at the parade held by a Magistrate after observing all the necessary formalities and taking the necessary precautions the evidence can be believed unless the witness suffered from some other infirmity. 17. In the light of the above rule we turn to the conflict of the witnesses at the parade and the statement made by the accused to the Magistrate at the parade. When the names of the witnesses were read over to the accused he declared that they had been knowing him from before and that he and Prakash Chand Shukla were students of R. S. S. Intermediate College. Neither did he state that he had been shown to the witnesses at P. S. Kotwali, in the Court compound on the day of his arrest or in the Court or outside it on 31st May, nor did he say that he was shown to the witnesses on the way from the jail to the Court. If he was known to the witnesses it was not necessary for the investigation to show him to the witnesses at various occasions. Even at the test identification three of the witnesses who appeared at the parade did not pick him out which militates against the probability of his having been shown to the witnesses after his arrest. Here we may also refer to the application made by the accused to the Chief Judicial Magistrate on 24th May wherein he prayed for providing an armed guard to escort him to the Court on the date of remand and further for taking adequate precautions to ensure that he is not shown to witnesses again while he is brought from jail to the Court. In that application he alleged that he had been shown lo the witnesses at the police station. The Chief Judicial Magistrate directed the Superintendent of Police, Unnao, to take precautions to ensure that the prisoner is brought with a covered face from the jail. If the prisoner was shown to the witnesses on 31st May, he would not have maintained silence in disclosing it at the parade. Instead, he attacked the veracity of the witnesses on the ground that they were known to him from before. If the prisoner was shown to the witnesses on 31st May, he would not have maintained silence in disclosing it at the parade. Instead, he attacked the veracity of the witnesses on the ground that they were known to him from before. The conduct of the accused cannot be brushed aside in adjudging the truthfulness of his contention more so when the parade had taken place much after 31st May. The Magistrate, (P. W. 3) stated on sworn testimony that whatever was declared by the accused was noted down in column No. 1 of the memo of identification, and that in the parade ten similar under-trials had been mixed. The Hulia of the suspect was neither given by the witnesses nor did he ask for it. The suspect Thanedar Singh, as told by the witness, had changed his position during the parade. That anything was omitted in reducing to writing by the Magistrate is not the case of the appellant; that any extraneous aid was given to the witnesses at the time or during the parade has not been suggested at the stand. This being so, when the test identification has been conducted with all the necessary precautions taken by the Magistrate, and when no extraneous aid was given to the witnesses before or at the time of the parade, the plea of the accused that his identification at the parade was in all probability due to his having been shown to the witnesses should be rejected as being devoid of merit. Here are the witnesses who were not under the influence of the police to become interested in foisting a false case upon the accused. 18. We may turn to the question whether or not the power of observation and recollection of the concerned witnesses can be relied upon in the present case. The test identification was held on 30th June; the appellant was arrested on 10th May. There was no delay in holding the test parade. The F. I. R. sets out the names of Surendra Nath Shukla and of Ram Kishore Awasthi who were taking chaat at the thela of Janki as also those of Ram Kishore Gupta, Surendra Bahadur Singh and others who along with the deceased were walking together, to the north-east of the letter box. The F. I. R. sets out the names of Surendra Nath Shukla and of Ram Kishore Awasthi who were taking chaat at the thela of Janki as also those of Ram Kishore Gupta, Surendra Bahadur Singh and others who along with the deceased were walking together, to the north-east of the letter box. At the thela of Janki a petromax lantern was burning and there were also burning petromax lanterns at the shops to the west of the main crossing. Evidence would have it that the deceased and others were talking together at a distance of about 6 paces to the west of the letter box. Raj Kishore was facing west and Ram Kishore Gupta (P. W. 6) was to the south-east of Raj Kishore; his companions were there within an orbit of two or three paces. The thela of Janki was at a distance of about 12 paces to the north-east of the letter box when the accused along with one another arrived there. The informant and Surendra Nath were taking chaat at the thela of Janki. They were then at a distance or 7 or 8 paces to the north of the appellant who had fired shots. It would thus appear that the witnesses were in close proximity of the assailants and their victim. It is also in evidence that chase was given to the assailants who were turning their faces backwards during the course of their escape. The witnesses had had full opportunity to mark the features of culprits in the illumination shed by the burning petromax lanterns and also when they were effecting their escape. The presence of these witnesses, as we have already said, was disclosed in the: F. I. R. which was lodged immediately after the occurrence. In these premises, the trial Court was justified in accepting the identity evidence. 19. Counsel for the appellant has, in his endeavour to nullify the evidentiary value of the test identification invited our attention to the statements made by the witnesses at the parade which, in his submission, detract from the value of the test. In these premises, the trial Court was justified in accepting the identity evidence. 19. Counsel for the appellant has, in his endeavour to nullify the evidentiary value of the test identification invited our attention to the statements made by the witnesses at the parade which, in his submission, detract from the value of the test. At the parade of Thanedar Singh, Ram Kishore (P. W. 1) had stated: "I had seen him commit murder at the crossing"; Surendra Nath (P. W. 8) had stated: "I had seen him commit the murder at the crossing";' and Ram Kishore (P. W. 6) had stated: "I had seen him firing gun shots at Awasthi". At the parade of Shyam Kishore, Ram Kishore had stated: "I had seen him at the scene of occurrence while holding Raj Kishore Awasthi"; Surendra Nath had stated "I had seen the badmash while committing the murder of Raj Kishore Awasthi"; and Ram Kishore had stated: "I had seen the badmash firing the gun shot at Raj Kishore Awasthi." 20. Counsel has urged that the prosecution story, as it was narrated at the trial, was that Thanedar Singh was the person who actually fired gun shots; the statement of Ram Kishore Gupta that he had seen both the culprits when they fired gun shots should adversely affect his claim that he had marked the features of the two culprits, it being not the case of the prosecution that both of them had fired gun shots. Similar attack has been made upon the reliability of Ram Kishore Awasthi and Surendra Nath because the murder in fact was committed by one of the assailants and not both of them. 21. Learned Government Advocate has on the contrary advanced a twofold submission first, that since the attention of the witnesses was not invited during the course of their cross-examination to the alleged inconsistency, as is required under S. 145, Indian Evidence Act, the prior statement cannot be availed of by the accused to discredit the witnesses. Secondly, the statements given at the parade, if read in their entirety would not amount to a material contradiction affecting the value of the test. 22. This brings us to the true nature of a test identification. Secondly, the statements given at the parade, if read in their entirety would not amount to a material contradiction affecting the value of the test. 22. This brings us to the true nature of a test identification. On this point there was a conflict between the views of several High Courts, but the conflict was resolved by the Supreme Court in Ram Kishan v. State of Bombay ( AIR 1955 SC 104 ) where at page 114 Mr. Justice Bhagwati, speaking for the Court, observed: "It is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject-matter of the offence or the persons identified were concerned in the offence. This statement may be express or implied. The identifier may point out by his finger or touch the property or the person identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified was the subject-matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person.... The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of S. 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial." (emphasis supplied by us). 23. In Asharfi v. State ( AIR 1961 All 153 : (1960 All LJ 595)) a Bench of the Allahabad High Court, speaking through James, J., held: "Any person can conduct a test identification, but Magistrates are preferred. His identification memo is a record of the statement which the identifier expressly or impliedly made before him. 23. In Asharfi v. State ( AIR 1961 All 153 : (1960 All LJ 595)) a Bench of the Allahabad High Court, speaking through James, J., held: "Any person can conduct a test identification, but Magistrates are preferred. His identification memo is a record of the statement which the identifier expressly or impliedly made before him. The statement is a formal statement of the identifier and in Court is usable not only for contradicting him under Section 145 or 155 of the Evidence Act but for corroborating him under S. 157 identification memo is admissible in evidence under S. 80 of the Evidence Act." 24. Identification is an act of the mind and the primary evidence of what was passing in the mind of a man is his testimony in the Court where it can be obtained. The entire statement of the witness as a part of the act of identification or as explanatory of it is admissible in evidence. The statement made at the parade and recorded by the Magistrate in column No. 10 was so closely connected with the act of identification that it has to be admitted as the part of the very act of identification itself. Where the question for determination is whether the witness had had the power of observation and recollection, any circumstance or fact bearing on it would be relevant when the identity of the suspect is in issue. The evidence of identification is subject to the definition of the word "proved" contained in S. 3 and must satisfy the test provided by that section. If the accompanying statement made at the time of identification renders improbable the fact of recognition of the accused at the occurrence, it then cannot be excluded in the process of the determination of the guilt of the accused. The purpose is to tender the statement as evidence of the witnesss state of mind, that is to say, the statement will be in issue or relevant for a reason quite apart from its truth or falsity. Evidence is relevant if it is logically probative or dis-probative of some matter which requires proof. Relevant evidence is evidence which makes the matter, which requires proof, more or less probable. Such evidence, therefore, is admissible. Evidence is relevant if it is logically probative or dis-probative of some matter which requires proof. Relevant evidence is evidence which makes the matter, which requires proof, more or less probable. Such evidence, therefore, is admissible. That such evidence was not put to the witness at the trial should not in any manner affect the admissibility of such evidence, because the act of identification, at the parade as a whole is usable as corroborative evidence. Corroboration is nothing other than evidence which confirms or supports or strengthens other evidence. It is, in short, evidence which renders other evidence more probable. In fact, supporting i evidence helps to determine the truth of the matter. While evaluating the results at the test as corroborative evidence it would be unfair to the accused to exclude material which may be construed in his favour. 25. We are reminded of the observations of the House of Lords in The King v. Christie ((1914) AC 545) where at page 564 Lord Reading emphasised the desirability, in certain circumstances, in criminal cases to relax the strict application of the law of evidence : "The principles of the law of evidence are the same whether applied at civil or criminal trials, but they are not enforced with the same rigidity against a person accused of a criminal offence as against a party to a civil action. There are exceptions to the law regulating the admissibility of evidence which apply only to criminal trials, and which have acquired their force by the constant and invariable practice of judges when presiding at criminal trials. They are rules of prudence and discretion, and have become so integral a part of the administration of the criminal law as almost to have acquired the full force of law. A familiar instance of such a practice is to be found in the direction of Judges to Juries strongly warning them not to act upon the evidence of an accomplice unless it is corroborated." 26. Thus, taking the view that the entire statement was the part and parcel of the act of identification at the parade, its value for purposes of corroboration has to be judged taking it as a whole. The rule of prudence would require to exclude the otherwise admissible evidence of corroboration, if the Court, in a particular case, is satisfied that it is not trustworthy. The rule of prudence would require to exclude the otherwise admissible evidence of corroboration, if the Court, in a particular case, is satisfied that it is not trustworthy. In that view, the omission to invite the attention of the witness to the particular statement made at the test would not preclude the accused from contending that the alleged recognition at the parade does not support the identity evidence adduced at the trial. We note that the prosecution had itself brought on record the statements recorded in Column 10 of the identification memos through the testimony of the Magistrate who had held the parade. 27. Now, as to the weight, which counsel for the accused desires to give to the statements, they, in our opinion would not reflect adversely, both inferentially and intrinsically, upon the claim of the witnesses that they had recognised the suspect at the scene of the occurrence. In the act of murder, according to the prosecution, one was exhorting his companion who had shot at the victim. If, therefore, Ram Kishore and Surendra Nath stated that they has seen the appellant commit the act of murder, their claim at the trial that the appellant had fired the gun shots cannot be rejected on the ground of mistaken identity. Likewise, Ram Kishores statements made at the parade are not in conflict with what he stated at the trial: At the parade of Thanedar Singh he stated that he had seen him firing gun shots at the victim which statement was reproduced by him at the trial. As regards Shyam Kishore he had stated that when the gun shots were fired, he had seen him at the spot. The two statements did not suffer from any inconsistency. Nor is his evidence at the trial inconsistent with what he had communicated in the act of identification. For these reasons, we must hold that there is no convincing material on the basis of which it could be held that the witnesses were unable to mark the features of the appellant. 28. Now, as to the question of sentence, it is amply clear that it was a motiveless crime. It is also not proved that the appellant was a hired assassin. The crime, was, no doubt, brutal, but the necessity for imposition of death penalty must relate not to the crime as such but to the criminal. 28. Now, as to the question of sentence, it is amply clear that it was a motiveless crime. It is also not proved that the appellant was a hired assassin. The crime, was, no doubt, brutal, but the necessity for imposition of death penalty must relate not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. S. 302 of the Penal Code read with S. 354 (3) of the Cr. P. C. demands special reasons for awarding the graver sentence. And in the present case there is no such special reason to award the death penalty, because it has not been shown that the accused appellant is a person beyond rehabilitation within a reasonable period or that his remaining at large would be detrimental to societal existence: (See Dalbir Singh v. State of Punjab, AIR 1979 SC 1384 at page 1389). 29. In the result, the conviction of the appellant Thanedar Singh under S. 302, Penal Code is maintained. The sentence of death awarded to him is set aside; the reference is rejected; and the sentence of death is reduced to one of imprisonment for life. He is in jail. He is to serve out his sentence.