JUDGMENT S. Padmanabhan, J. 1. Appellants are the accused in Sessions Case No. 10 of 1987 on the file of the Additional Assistant Sessions Judge, Quilon. They were tried for offences punishable under S.323 & 307 read with S.34 of the Indian. Penal Code. The trial Judge convicted both of them under both the counts. For the offence under S.307 both were awarded rigorous imprisonment for eight years. The sentence for the offence under S.323 is rigorous imprisonment for six months. They were permitted to suffer the sentences concurrently. 2. On 21 4 1986 there was public examination for the Pre degree. PW 5, Principal, was Chief Examiner. He was late. PW1, a Senior professor, was in charge. First accused, a pre degree student, had to sit for the examination. He did not take his hail ticket which is necessary for entry into the hall. He, therefore. met PW1 in advance and sought entry without hall ticket. Not being sure of his identity, PW 1 wanted introduction and identification. First accused was unsatisfied and angry and he went away saying that he does not want to sit for examination. Shortly afterwards PW7, another student known to PW 1, informed PW1 about the identity of the first accused. PW1, therefore, sent word through PW 7 to the first accused that he could come and sit for the examination. PW 7 came back and informed that the first accused is not interested. He did not sit for the examination. 3. Second accused is a friend of the first accused. At about 2.20 on the same day when PW 1 was moving to the office, both the accused came and stopped him Second accused questioned PW 1 on his action in the morning in refusing entry to the first accused. When he was about to answer, second accused slapped him on his face. First accused took out a dagger and stabbed PW 1 on his chest. Both went away in bicycles. The attack was in furtherance of the common intention of the accused to murder PW 1 on account of the enmity. This is the prosecution case. 4. Prosecution examined 14 witnesses. Among them, PWs 1 to 4 are the occurrence witnesses. PWs 2, 3 and 4 are hostile. All of them have spoken to the incident, but they refused to identify the accused as the assailants. This is the prosecution case. 4. Prosecution examined 14 witnesses. Among them, PWs 1 to 4 are the occurrence witnesses. PWs 2, 3 and 4 are hostile. All of them have spoken to the incident, but they refused to identify the accused as the assailants. PWs 5 to 8 are persons who were not at the scene of occurrence when the incident took place. PW 6 identified the first accused as one of the two persons who went away from the scene of occurrence. PWs 7 and 8 did not support the prosecution to any extent. PW 5 has given evidence only on the basis of hear-say information except on the fact that the first accused did not sit for the examination that day. PW 10 is the doctor and Ext. P5 is the wound certificate issued by him. 5. Both accused were strangers to PW 1 when he was attached. There was no test identification parade during investigation. So far as second accused is concerned, the only identification is that made by PW 1 in Court. Regarding first accused also, mainly that is the position though something more is there. Therefore, the main argument was that identification of the accused cannot be taken as established. Reliance was placed on the decisions of the Supreme Court in Kannan and others v. State of Kerala ( AIR 1979 SC 1127 ) and Chonampara Chellappan v. State of Kerala (AIR 1979 S. C 1761). I am bound by what the Supreme Court said in those cases and I have no disagreement also with the propositions laid down. But principles laid down are closely connected with facts of cases decided. The facts of one case and the principles laid down therein may not suit the facts of another case. Both the above cases dealt with naxalite offenders connected with the Kuttiadi Police Station involving many persons. The nature and quality of the evidence of identification required in such cases cannot be adopted to the facts of the case in hand. Here what is involved is only identification of two persons. One was a student in the college where pw. 1 was working as Professor and he had an interview with him in the morning. At the time of incident also, PWl had sufficient opportunity to ascertain the features of both. 6. Here what is involved is only identification of two persons. One was a student in the college where pw. 1 was working as Professor and he had an interview with him in the morning. At the time of incident also, PWl had sufficient opportunity to ascertain the features of both. 6. Identification of the accused in a test identification parade is not a legal requirement as a condition precedent to identification in every crime. It involves only a rule of relevancy under S.9 of the Evidence Act. Therefore, it cannot be laid as a uniform rule of law applicable in all cases that whenever identity of an accused is in dispute in a criminal case, his identification in Court could be accepted only if it was preceded by identification in a test identification parade during investigation, if he was not known to the identifying witness earlier. That will depend upon the weight which the Court is inclined to give to the identification made by the witness in the box in the facts and circumstances of a given case. Whether or not there is a test identification parade the substantive evidence is only the identification made before court. Identification during investigation in a T.I.P, though done under the supervision of the Magistrate for its safety, is only a process in investigation. Its purpose and object is only to ascertain and verify whether investigation is moving in the correct line against the correct persons, especially when there is involvement of unknown or unidentified persons. Successful identification in a T. I. P is not an item of substantive evidence acceptable before court That is only a circumstance that could be taken into account as and aid in the assessment of the substantive evidence of identification in the witness box. Therefore, absence of test identification parade by itself is not a technical ground on which the Court must reject the identification by a witness even if it is otherwise found acceptable to Court. 7. In many cases it may be possible to make correct identification of previously unknown accused even without a test identification parade. A person may have one or more rarely peculiar features with which he could be easily identified and distinguished from others. 7. In many cases it may be possible to make correct identification of previously unknown accused even without a test identification parade. A person may have one or more rarely peculiar features with which he could be easily identified and distinguished from others. These features may remain clearly in the memory and vision of an eye witness in spite of passage of time even though the opportunity for seeing him in action or otherwise may be little. That is all the more so when it is a memorable incident. In another case even without any such special or peculiar identifying features, one may be able to identify a previously not known accused on account of the time and opportunity to note a memorise his features and personality at the time of incident. The importance and interest of the incident to the witness is one reason why he should retain the identification in mind. There can be various reasons of that type which could enable a witness to identify a person. Whether in a test identification parade or in court, identification is only identification. But we cannot forget the fact that the first is earlier in point of time when memory is fresh and it involves identification of the culprits not seen after the incident from among a group of persons. That may have a better sanctity. In the box it is only a question of identifying a person who is in the dock as an accused By the time the witness might have also had opportunities of Seeing and identifying him even otherwise. All these aspects will have to enter the judicial mind to assess the identification. If after such assessment the identification in court is found free from doubt, nothing prevents acceptance of the same. Absence of a test identification parade by itself should not deter the court from accepting the identification The credibility and impartiality of the identifying witness, absence of reasons for false implication and circumstances indicating truth of the identification, should all enter the judicial mind in the assessment. 8. Though both accused were not previously known to PW1 personally, he was Professor in the college for many years and first accused was a student there for two years. It is only possible that he |might have atleast been seen earlier. 8. Though both accused were not previously known to PW1 personally, he was Professor in the college for many years and first accused was a student there for two years. It is only possible that he |might have atleast been seen earlier. Personal acquaintance with, all the students in a college when there are 3000 or 4000 students may not be possible. Further the first accused was with PW1 for a sufficient time that morning in connection with the incident which operated as motive. At the time of incident, he was seen a second time. On account of the earlier incident he had sufficient reason to note them both with care. Second accused attacked him only after questioning him. That also might have given added opportunity to note his features when there was no one else close by except himself and the two accused. There is no case that PW 1 had any reason for false implication. In such circumstances when PW 1 positively asserts identification of both and when there is no reason to suspect his veracity or integrity, his evidence on identification has only to be accepted. The trial Judge, who, had the opportunity of seeing him in action and watching his demeanour, found his identification acceptable. That is added reason for me to accept the same. 9. Though hostile, the evidence of PWs 2 and 3 offer material corroboration to PW 1. They are also teachers in the same college. They only refused to divulge the, identity of the accused saying that their back alone was seen. Both of them admitted the incident and the fact that the assailants went away together in bicycles. The assault on PW 1 by two persons was admitted by them and it is proved by medical evidence also. It is clear that they refused to speak to the identity of the accused only on account of fear of consequences since they have to continue in the college. 10. PW 4 is another teacher and occurrence witness who turned hostile, may be for the same reason. But he gave evidence that in the morning he saw and heard the conversation between PW 1 and the first accused regarding entry into the examination hall. To this extent, his evidence offers corroboration to PW 1. 10. PW 4 is another teacher and occurrence witness who turned hostile, may be for the same reason. But he gave evidence that in the morning he saw and heard the conversation between PW 1 and the first accused regarding entry into the examination hall. To this extent, his evidence offers corroboration to PW 1. But the counsel opposed acceptability of this version as it is a contradiction by omission in his statement under S.161 recorded during investigation. Since such an argument was advanced against the evidence of some other witnesses also, I think that the legal position has to be considered. Subject to that there is no reason to reject that part of the evidence of PW 4 even though he is hostile. 11. Explanation to S.162 (2) of the Code of Criminal Procedure says that ah omission to state a fact or circumstance in the statement referred to in Sub section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in a particular context shall be a question of fact. The statement of a witness under S.161 is recorded by the police officer by "examining him orally". The statements may be answers to such oral examination. In that oral examination, he may be putting questions which he think relevant according to his information. The prosecutor or the defence counsel who studies the case critically after getting all the informations may try to elicit some other answers which may not be there in the statement under S.161. Such a statement under S.161 need not be an encyclopaedia of everything that the witness knows about the case . Any and every omission in it will not become a contradiction for the purpose of discrediting the witness. The question is whether the omission is on a vital aspect which the witness was normally bound or expected" to disclose even without a question along with the other answers and whether the new version given in box on a vital aspect militates against what he already said and operates as an embellishment. That is a question of fact to be decided in each case. The alleged omission in the evidence of PW 4 cannot be treated as a contradiction. That is a question of fact to be decided in each case. The alleged omission in the evidence of PW 4 cannot be treated as a contradiction. That is a matter on which even corroboration to the evidence of PW 1 is not necessary. 12. The fact that first accused was a student who had to appear for the Pre degree examination on that day, but he did not sit for the examination is amply established by the evidence of the Principal, examined as PW5. That is also an item of corroboration to the evidence of PW 1. I do not find any merit in the argument that the prosecution had to produce and prove the records in the custody of PW 5 in order to establish that first accused abandoned the examination. That is only an incidental aspect on which even the first accused has not stated when questioned under S.313 that he sat for the examination that day. 13. PW.6, a Lower Division Clerk in the college, claims to know the first accused personally as the recipient of stipend as he is dealing with that section. There is no reason to disbelieve him Ha has not seen the actual incident. He only heard the cry of PW 1, saw 1he assailants leaving, and chased them for some distance and noticed that one of them is the first accused. He was attempted to be discredited only on the ground that his version of chasing the assailants is a contradiction by omission. My answer is what I have earlier said. 14. Prosecution seems to have a case that first accused had a talk with PW 7 during which he expressed his intention to do away with PW 1 because of his refusal to admit entry in the examination hall. PW 7 is said to have conveyed the information to PW 8, a Peon, who in turn informed PW 1. These versions are not there in Ext. P1. PWs 7 and 8 are both hostile and they did not support the prosecution in any of these aspects. Regarding the omission in Ext. P1 the maximum that could be said is that the new version is an embellishment. That will not in any way affect the basic version regarding the incident which is amply proved. 15. P1. PWs 7 and 8 are both hostile and they did not support the prosecution in any of these aspects. Regarding the omission in Ext. P1 the maximum that could be said is that the new version is an embellishment. That will not in any way affect the basic version regarding the incident which is amply proved. 15. Delay in the F. I. R. reaching Court also appears to be a contention which is more fanciful than real. It is true that under S.157 the F.I.R. has to be sent by. the Magistrate forthwith. Any laches will have to be viewed with disfavour. If any concoction or embellishment as or possibly could be traced to the delay, it could he viewed seriously also. That is a document which contains the earliest version of the incident. In order to have that sanctity it must have the assurance of being prepared at the time it purports. The best way of enabling that sanctity is by sending it to the Magistrate forthwith. But normally some delays are possible even though it is something which has to be avoided. The police officer registering a case is doing his official duty. He may have other duties also to attend. He may entrust it to the responsible person in the police station to forward it to the Magistrate. Due to some reason that officer might have been, responsible for some delay. While agreeing with the learned counsel in his arguments based on Sevi and another v. State of Tamil Nadu and another ( AIR 1981 SC 1230 ) and Ishwar Singh v. State of Uttar Pradesh (A.I R.1976 SC 2423), I would add that a mere delay by itself without anything more, if there is plausible explanation or the circumstances indicating that the delay is not purposeful and no embellishment resulted thereby, will not be sufficient to reject the prosecution case. 16. In this case, on the date of incident at 4 PM itself the first information statement was recorded from the hospital on getting information. That is within 1oss than two hours of the incident. Case was registered at 6PM. The claim of the hospital witnesses that they were questioned on that day itself does not appear to be correct. The investigating officer says that the witnesses were questioned and documents were prepared the next day. That seems to be correct. That is within 1oss than two hours of the incident. Case was registered at 6PM. The claim of the hospital witnesses that they were questioned on that day itself does not appear to be correct. The investigating officer says that the witnesses were questioned and documents were prepared the next day. That seems to be correct. These documents and the F. I. R. were initialled by the Magistrate only on 23-4-1986. Sometimes it is possible that papers received after office hours on a day will be initialled by the Magistrate only on the next day when he comes to Court even though what S.157 says is that it must be forwarded to the Magistrate and not to the court. Anyhow, in this case, there is absolutely nothing to show that the delay of one day is in any way material. None of the alleged new developments are there in Ext.P1. That itself is sufficient assurance that there was no embellishment. I do not think that there is any force in the contention that the delay is of serious consequence in this case. 17. It is true that second accused had personally nothing to do with PW1. But he is a friend of the 1st accused. He could have joined only at the behest of the first accused. Common intention is alleged and S.34 is there. Common intention involves prior concert in the form of prior meeting of mind which could in many cases be proved only by circumstances including conduct, actions and declarations Prior concert and joint action by presence and participation connected by circumstances indicating that presence and participation in action . was in furtherance of the common intention entertained previously is sufficient. "In furtherance of the common intention" is the connecting link between the common intention formed earlier and participation in action that followed. That connecting link must also be established to attract S.34. That is only a matter for inference in many cases. In this case, both the accused came together and left together after the incident. Presence and participation were joint. The question asked by the second accused to PW 1 before launching the attack and the subsequent attack indicates that after the morning incident, both the accused met together and chalked out a plan. The attack was in furtherance of that plan is therefore clear. Presence and participation were joint. The question asked by the second accused to PW 1 before launching the attack and the subsequent attack indicates that after the morning incident, both the accused met together and chalked out a plan. The attack was in furtherance of that plan is therefore clear. Common intention, presence and participation and the connecting link are thus established. 18. What exactly was the common intention is also a matter that to be established before conviction on its basis. In this case. I do not think that it is possible to find that common intention was to commit murder. Second accused was unarmed and he gave only a slap on the face. First accused gave only one stab which is not a serious one, An offence under S.307 or common intention for that purpose is not traceable. PW 10 alone was examined among the doctors. His evidence shows that Dr. Karunakaran, who treated him, alone could give the seriousness of the injury. Though PW 10 said that the injury could have caused death by affecting the lungs if inflicted during inspiration, he opined that the injury as it is only simple. The discharge certificate has not been produced and proved In these circumstances, common intention beyond committing offences under S.323 and 324 I. P. C. cannot be inferred. 19. On the date of incident, the first accused was aged 17 and the second accused was aged 16. Now they are respectively aged 19 and 18. Learned counsel for the appellant made a request that the mandatory injunction contained in S.6 of the Probation of Offenders Act may be taken into account before exercising the sentencing discretion. That aspect requires consideration after getting a report from the District Probation Officer. The criminal appeal is, therefore, allowed and the conviction ordered by the Assistant Sessions Judge for the offence under S.307 and S.307 with the aid of S.34 and the sentence awarded for both the offences are set aside. Instead the first accused is convicted for an offence punishable under S.324 and he is also convicted for the offence under S.323 with the aid of S.34. Second accused is convicted for the offence under S.323 and with the aid of S.34, he is also convicted for the offence under S.324. The case is sent back to the trial court for exercising the sentencing discretion. Second accused is convicted for the offence under S.323 and with the aid of S.34, he is also convicted for the offence under S.324. The case is sent back to the trial court for exercising the sentencing discretion. The request made by the counsel will be taken into account in the matter of exercising the sentencing discretion. A report from the District Probation Officer will be called for and considered before that discretion is exercised.