JUDGMENT P.N.S. Chouhan, J. -- 1. Six persons were tried in S.T. No. 235 of 1990 of Bhopal Sessions Division on charges of committing murder of Bharat Singh and causing simple injuries to Jagdish (P.W.5) and Shankarlal (P.W. 1) on l7.5.1990 in front of Chandbad temple in Bhopal near the Jhuggi helonging to Shankarlal. Vide Judgment dated 10.10.1991 live accused were acquitted and appellant Pappu alias Sirajuddin was convicted u/s. 302 I.P.C. and sentenced to imprisonment for life which is under challenge in this appeal. 2. The appellant was running a Kirana shop near the Jhuggi of Shankar. On the date of incident, i.e., 17.5.1990, at about 7.00 p.m., the appellant alongwith acquitted accused Maniram and Suresh were dancing in front of the said kirana shop where a tape recorder was blaring. Shankarlal protested saying that gekjs ?kj esa cgw csfV;ka gSa A I His protest went unheeded. Then he went and called Vimlabai (P.W. 2) and her husband Santram (P.W. 6) from their nearby dairy. They too requested the dancers to stop their performance which annoyed the later who started uttering abuses and mounted assault. Bittu alias Nizamuddin dealt one blow with a wooden piece forming leg of a cot on the neck of Jagdish, maternal nephew of Shankarlal. When Shankarlal tried to intervene he was also assaulted. Then Bharat Singh, another maternal nephew of Shankarlal came to intervene and he was stabbed to death with a knife by the appellant. The incident was witnessed by Vimlabai, Santram and wife of the deceased, Deobati (P.W. 10). The deceased had brought his wife that very day for the first time after Gouna from village Chopra in Rajgarh district. After the murder the appellant and his associates made good their escape. Bharat Singh was removed to Hamidia Hospital. On receiving information police arrived in the hospital where Shankarlal lodged first information report recorded as Dehati Nalishi (Ex. P. 1) by Ramswaroop Sharma, A.S.I. (P.W. 12). On its basis formal first information report (Ex. P. 22) was recorded at Nishatpura police station and crime No. 211/90 u/s. 307/34 I.P.C. was registered. Town Inspector P.S. Chouksey (P.W. 14) took up investigation. Reaching the spot he prepared sketch map of the scene of occurrence (Ex. P. 7) which is in front of Jhuggi of Shankarlal. Bharatsingh succumbed to his injuries in the hospital. P. 22) was recorded at Nishatpura police station and crime No. 211/90 u/s. 307/34 I.P.C. was registered. Town Inspector P.S. Chouksey (P.W. 14) took up investigation. Reaching the spot he prepared sketch map of the scene of occurrence (Ex. P. 7) which is in front of Jhuggi of Shankarlal. Bharatsingh succumbed to his injuries in the hospital. On receiving intimation of his death the offence was converted u/s. 302 I.P.C. read with S. 34 I.P.C. Inquest was held vide Ex. P. 3 and requisition issued for post-mortem examination. Dr. B.P. Dubey (P.W. 11), vide autopsy report Ex. P. 20), found the following injuries on the body of Bharat Singh shown by diagram in Ex. P. 28 : "1. 3" linear abrasion on left upper arm 2. stab wound on left third space upper end 4.5 cm, lower end 6 cm, left to midline side 4 x 1.5 cm on cutting the 3rd rib. The wound had entered the upper lobe of lung piercing the pericardium upto right part of the heart. The injury was 9 cm deep echymosis was present and the pericardial cavity was found full of blood. 3. Stab wound 2.5 cm x 1 c.m. 14 c.m. below the left clavical hone and 12 c. m. on the left from the midline cutting the third pace. The injury had pierced 2 c.m. inside the upper lobe of left lung. Its depth was 4 c.m. and echymosis was present. 4. Stab wound 2 c.m. x 0.5 c.m. x 5 c.m. 4 c.m. above the anterior superior iliac spine. In the opinion of the Doctor, Bharat Singh died of shock and haemorrhage produced by stab wounds which were sufficient in the ordinary course of nature to cause death. Subsequently when the appellant was arrested on 18.5.1990, has confessional memorandum (Ex. P-12) was recorded which led to the recovery of the knife, seized vide Ex. P. 14. The same was sent to Dr. Dubey for examination and opinion. On 21.5.90 he examined it and opined vide Ex. P. 2 that the injuries found on Bharat Singh could have been caused by that knife. He has prepared a diagram thereof in his report. This knife alongwith other articles was sent for chemical examination but the Chemical Examiner, vide report Ex.P.-24, did not find any blood thereon. At the trial all the witnesses, excepting Deobati, turned hostile. P. 2 that the injuries found on Bharat Singh could have been caused by that knife. He has prepared a diagram thereof in his report. This knife alongwith other articles was sent for chemical examination but the Chemical Examiner, vide report Ex.P.-24, did not find any blood thereon. At the trial all the witnesses, excepting Deobati, turned hostile. Placing reliance on her testimony the impugned conviction was recorded. 3. Appellant's learned counsel argued that Deobati had come to her husband's materal uncle's place for the first time on the date of the incident and was not acquainted with the appellant from before. In such circumstances, it was necessary for the prosecution to have arranged a test identification to test her power of observation. In absence of such an exercise, appellant's identification by her for the first time in the Court was absolutely valueless. Reliance was placed on Kanan and others v. State of Kerala ( AIR 1979 SC 1127 ), State (Delhi Admn.) v. V.C. Shukla and another ( AIR 1980 SC 1362 ) and Mohanlal Gangaram Gohani v. State of Maharashtra ( AIR 1982 SC 839 ). Kanan's case (supra) was one of criminal conspiracy leading to Nexallites attack on a police station. The evidence on criminal conspiracy was not found reliable. No member of the raided police station or staff was able to identify the miscreants. One witness testified that he had identified the appellants running away near the scene of occurrence. His evidence was found full of serious infirmities. In that context, the Court observed: "It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under S. 9 of the Evidence Act is to test the varacity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. The idea of holding T.I. parade under S. 9 of the Evidence Act is to test the varacity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court." Court's observation touching appreciation of evidence are not to be viewed out of context and, therefore, it is not possible to read in Kanan's case any principle of universal application that in absence of test identification evidence of a witness who did not know the accused previously and identified him for the first time in the Court cannot be relied upon. The law on this point has been laid in Budhsep and another v. State of U.P. ( AIR 1970 SC 1321 ) cited by the learned Dy. A.G. thus: "Facts which establish the identity of an accused person are relevant under Sec. 9. As a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bonafides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings in their legal effect amount simply to this; that certain persons are brought to jailor some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by section 162, Cr.P.C. " 4. The exception to the general rule that if the witness did not know the accused from before generally there ought to be a prior test identification mentioned in Budhson's case (supra) has been reiterated in Vaikuntam Chandrappa and others v. State of Andhra Pradesh (AIR 196() SC 1340) relied on by appellant's learned counsel in these words: "There may be exception to this rule where the Court is satisfied that the evidence of a particular witness is such that it can safely rely on it without the precaution of an earlier identification proceeding." 5. The question is whether Deobati's evidence can be treated as an exception to the said rule as admittedly no test identification proceeding was held in this case? 6. Appellant's learned counsel stressed the need for keeping at bay the sentiments aroused by the fact that Deobati was widowed as a result of this murder in assessing her evidence and cited Chandran alias Surandran and another v. State of Kerala ( AIR 1990 SC 2148 ) wherein quoting the following excerpt' 'Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime..." from Dator Singh v. The State of Punjab ( AIR 1974 SC 1193 ) the Court observed: "The fact that these two murders which are cruel and revolting had been perpetrated in a very shocking nature should not be allowed in any way to influence the mind of the Court while examining the alleged involvement of the appellants." 7. There may be justification for the anxiety of the learned counsel in this behalf. There may be justification for the anxiety of the learned counsel in this behalf. We are fully conscious of our onerous and sacred obligation for the cause of justice which demands objectivity shorn of any sentimental sway as a first condition. 8. Appellant's learned counsel cited the following excerpts from Field's Law of Evidence 10th Edition in support his proposition that Deobati' s evidence of appellant's identification as the assailant of her husband is subject to grave doubt and in absence of reliable corroboration thereof is not sufficient to sustain the conviction: "But of all evidence of fact, evidence about the identil1cation of a stranger is perhaps the most elusive, and the Courts arc generally agreed that the evidence of identification of a stranger based on a personal impression, even if the veracity of the witness is above board, should be approached with considerable caution, because a veriety of conditions must be fulfilled before evidence based on the impression can become worthy of credence." xxxx " 12. Evidence of identification and its value -- Courts are mindful of the fact that eye-witnesses are fallible, and there are many cases in law reports which tell us of miscarriage of justice due to faulty recollection and identification by eye-witnesses. (See the case of Adolf Beck and the observations of Sir Benn Collins, the Master of the Rolls, in the Beck Report that- "Evidence of identify is perhaps of all classes of evidence the least to be relied upon and therefore unless supported by other facts are unsafe basis for the verdict of the jury.") This branch of proof is often times described as "notorious delicate" and the distrust of the English Court is probably based on the proved instance of miscarriage of justice through honest mistake in identification in the case, of Adolf Beck." Abstract justice is not the domain of the fallible mortals. A cautious approach is not to be equated with a morbid obsession for likely error which may result in Hamletonion dilemma and coax the Judges mind to rush for the too attractive soft option of 'benefit of doubt' where the facts and circumstances do not warrant such a course. A cautious approach is not to be equated with a morbid obsession for likely error which may result in Hamletonion dilemma and coax the Judges mind to rush for the too attractive soft option of 'benefit of doubt' where the facts and circumstances do not warrant such a course. As observed by the Supreme Court in State of U.P. v. Krishna Gopal and another ( AIR 1988 SC 2154 ) 'Forensic probability must, in the last analysis, rest on a robust common sense and, ultin1.ltely, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uniformed legitimation of trivialities would make a mockery of administration of criminal justice.' 9. We were led through the evidence of Deobati (PW-10). She has stated that she came along with her husband to the house of Shankarlal (PW -1) in Nishatpura Bhopal for the first time on 17.5.90, i.e., the day of incident from her parents village Chopda. As per her a quarrel took place in front of the house of her maternal father-in-law Shankarlal (PW -1) as she had objected to the dancing of boys to the tune of a blaring tape-recorder in front of his house, in course whereof Pappu (the appellant) assaulted her husband with a knife. Seeing this she swooned for a while and regaining consciousness accompanied her injured husband Bharat along with others in an Auto-rickshwa to the hospital. Her husband had received injuries on the chest where a towel was wrapped. He soaked in blood. She stayed at Bhopal the following day and- she left for her in-law' s place wherefrom she came for her evidence in the trial. She has admitted that there were many people between her on the spot where the quarrel took place. She denied the suggestion that on this account she could not see the assailant. In para-12 she has stated: ^^;g lgh gS fd eSa pksV yxrs le; vius ifr dks ns[k jgh Fkh Fkh fdarq eSaus ;g ugha ns[kk Fkk fd mudks pksVsa dgka yxh FkhA** In the following paragraph refuting the suggestion that she was naming Pappu as the assailant at the instance of the police she asserted that she had seen her husband being assaulted by Pappu with a knife. During cross-examination, she has stated that she is nut aware as to when the police party arrived. She is unable to recollect if she gave any statement to the police. She has denied the suggestion of the incident having taken place in darkness and has asserted that there was electric light at the scene of occurrence. Centends the learned counsel for the appellant that in fact there was no light at the scene of accurrence as deposed to by Shankarlal (PW -1) in para-11 of his statement and; therefore, the learned trial Judge ought to have held the claim of Deobati to have identified the assailant doubtful for want of adequate light. Shankarlal testified to his objecting to the disco-dance of the appellant and his two companions to the tune of a blaring tape-recorder, but denied that the deceased was assaulted in his presence and that he had lodged the report in the police station. The trial Judge permitted his cross-examination by the prosecution, in course whereof F.I.R. (Ex. P-1) was read over to him and he admitted that the same was lodged by him. Understandably as this witness had turned hostile he subsequently denied the incriminating portions of Ex. P-1 and went to the extent of saying that the scene of incident was shrouded in darkness. There is thus no doubt that this witness is hiding the truth and trying as best as possible to shield the offender. On the other hand, we find evidence of Deobati natural and truthful. We, therefore, hold that the learned trial Judge was justified in rejecting the aforesaid evidence of Shankarlal on the absence of light at the scene of occurrence as a conscious lie and to have accepted the testimony of Deobati in this behalf. 10. Appellant's learned counsel criticised the evidence of Smt. Deobati on the ground that if she could forget arrival of the police and her giving statement to the Investigating Officer, her claim that she remembers the features of her husband's assailant whom she did not know prior to the incident must be held doubtful. Then it was streassed that she has not identified the appellant in the Court also. Deobati had seen the appellant dancing in front of her house before the quarrel took place. Then she saw him inflicting the fatal knife blows on her husband. Then it was streassed that she has not identified the appellant in the Court also. Deobati had seen the appellant dancing in front of her house before the quarrel took place. Then she saw him inflicting the fatal knife blows on her husband. Till the assault the situation was normal and her observation of the assailant and his companions was in a cool frame of mind to make the features of her husband's assailant indelible in her memory as the contours of evil destiny responsible for shattering her life's dream. Her assertion that she fainted momentarily as a result of this shock is also quite natural considering the impact of the incident on her life. She has not resorted to any embellishment in her evidence. She did not identify all the accused persons during the trial. She could identify only the appellant and one of his companion, namely, Suresh, but she named only the appellant and identified Suresh by pointing at him in the dock. No question was put to her during cross-examination as to how she came to know the name of the appellant and, therefore, appellant's identification by her by naming him is not liable to be viewed with suspicion. We thus find no substance in the argument that she has not identified the appellant in the Court. In the facts and circumstances of the case, the assertion on the part of Deobati that she is unable to recall if she had given any statement to the police after its arrival is to be viewed as a factor which makes her a wholly truthful witness. Had she been a lier it was inconceivable that she would have admitted this fact. We, therefore•, do not agree that simply because she is confused about her statement being recorded by the police, her assertions that it was the appellant who fatally assaulted her husband should also be doubted. 11. Different considerations arise where the incident had taken place in an atmosphere of terror and surprise as in the case of robbery and dacoity. In such cases, the witnesses do not get the opportunity of seeing the miscreants in a cool frame of mind and for any considerable length of time. 11. Different considerations arise where the incident had taken place in an atmosphere of terror and surprise as in the case of robbery and dacoity. In such cases, the witnesses do not get the opportunity of seeing the miscreants in a cool frame of mind and for any considerable length of time. Therefore, in such cases, where the witness had a fleeting view of the miscreants in a state of shock resulting from terror unless their evidence is tested by a prior test identification proceeding for obvious reasons prudence will require calling for corroboration from some independent source to accept such evidence to base the conviction on. The present case is entirely different. Deobati had a clear view of the appellant when he was dancing in front of the house before the starting of the quarrel. Thereafter she saw him while assaulting her/husband. As such. there was no question of her making a mistake as to the identity of her husband's assailant. The F.I.R. (Ex. P-1) promptly lodged by Shankarlal, stands fully proved by A.S.I. Ramswaroop (PW-12). Even Shankarlal a hostile witness had to admit that he lodged the same. Therefore. ignoring his manoeuvre to disown the incriminating part thereof we hold that Ex. P.-l is a duly proved document which exposes the falsity of Shankarlal's assertion that he did not state the incriminating portions of Ex. P-1 and lends assurance as to the identity of the appellant as the person who dealt the fatal blows on Bharat. Hasib v. The State of Bihar ( AIR 1972 SC 283 ), Mohd. Abdul Hafees v. State of Andhra Pradesh (AIR 1983 SC 3{)7) and Wakil Singh and others v. State of Bihar ( AIR 1981 SC 1392 ) cited by the appellant's learned counsel are all cases of robbery and dacoity and, therefore, distinguishable on facts. 12. On a careful appraisal of Deobati's evidence we find the same wholly truthful which should be considered as an exception to the general rule referred to in Budhmen' s case (supra). 13. In result, we uphold appellant's conviction and sentence as aforesaid and dismiss this appeal.