P. K. Bahri, J. ( 1 ) APPELLANT-JUGLAL Mehto has been convicted of an offenceof murder punishable under Section 302 read with Section 34 of the Indian Penalcode having caused the death of Rajinder Nath Malhotra and also has beenconvicted of offence punishable under Section 307 read with Section 34 of theindian Penal Code of having caused injuries to Smt. Mahindra Rani Malhotra withintent to cause her death, vide judgment dated 28/02/1989, of an Additionalsessions Judge and by the order of the even date, he has been sentenced to undergolife imprisonment and to pay a fine ofrs. 2,000. 00 and in default to undergo rigorousimprisonment for six months more for the first offence of murder and undergorigorous imprisonment for ten years and to pay a fine of Rs. 2,000. 00 and in defaultto undergo rigorous imprisonment for six months for the offence of attempt tomurder. He has filed this appeal challenging his convictions and sentences. ( 2 ). The co-accused, who was tried alongwith the appellant, namely. Ramparikrama has been acquitted. The third co-accused, namely, Musafir Ram wasdeclared as proclaimed offender and evidence against him has been recordedunder Section 299 of the Code of Criminal Procedure. ( 3 ). Smt. Mahindra Rani Malhotra, PW16, alongwith her husband Rajindernath Malhotra were living at the relevant time in house No. 23a, DDA Flats,munirka, New Delhi. Her husband had been working in the Reserve Bank of Indiaand had retired from the service about two years before the present occurrence andram Parikrama was working as a Peon in the Reserve Bank of India with him andwas visiting their place off and on as her husband used to render some financialassistance to Ram Parikrama, the nature of the financial dealings between Ramparikrama and the deceased Rajinder Nath Malhotra has not been brought outclearly in investigation. Most probably Smt. Mahindra Rani Malhotra, being ahouse wife, had perhaps not been apprised of the details of financial dealings beingindulged in between her husband and Ram Parikrama. ( 4 ). On 8/01/1985, one Ramesh Tanwar had on telephone intimated thepolice Control Room that two unknown persons had badly injured a couple at23/a, Munirka and had fled away. The Police Control Room had conveyed thismessage to Police Station Vasant Vihar which was recorded in Daily Diary at serialno. 8a at 11. ( 4 ). On 8/01/1985, one Ramesh Tanwar had on telephone intimated thepolice Control Room that two unknown persons had badly injured a couple at23/a, Munirka and had fled away. The Police Control Room had conveyed thismessage to Police Station Vasant Vihar which was recorded in Daily Diary at serialno. 8a at 11. 45 A. M. Shri Jai Narain PW17 being deputed to inquire into the matterhad reached the spot alongwith Constable Kamruddin and found the dead body ofrajinder Nath Malhotra lying in a pool of blood on the carpet in the drawing roomand learnt that Smt-Mahindra Rani Malhotra, who was injured in the occurrence,had been already removed to the Safdarjang Hospital and thus, leaving Constablekamruddin to guard the spot he reached the hospital and he moved the applicationex. PW17/a seeking the permission of the doctor to record the statement of thelady. The doctor declared the injured lady fit to make the statement and thus,smt. Mahindra Rani s statementwas recorded which is Ex. PW16/a on the basis ofwhich the FIR was registered. The Investigating Officer, after preparing the inquestpapers, had sent the dead body of Rajinder Nath Malhotra for post-mortem andhad lifted the blood and other material from the spot lying at different places andconverted the same into sealed parcel and prepared the recovery memos Exs. PW17/c to PW17/k in that respect. Dr. R. K. Sharma PW1o had conducted the postmortem of the dead body of Rajinder Nath Malhotra and he found four fatal incisedwounds on different parts of the body including the skull, neck and the mouth. Thedeath was due to shock as a result of multiple injuries and injuries 1 to 3 on vitalparts of the body were found sufficient to cause death in the ordinary course ofnature. The injuries were opined to have been caused by a sharp-edged weapon. ( 5 ). The lady had a sharp incised wound on the right side cheek and extendingto the neck involving the right ear and size of the said wound was 12 cms x 8 cmsx 2 cms and there were three other incised wounds on her right ear cervical regionand on the right thumb. She was discharged from the hospital only on 14/01/1985. The weapon of offence, which has been allegedly used, was "daranti" (asharp edged weapon in the shape of half moon used for cutting ). She was discharged from the hospital only on 14/01/1985. The weapon of offence, which has been allegedly used, was "daranti" (asharp edged weapon in the shape of half moon used for cutting ). In her statementto police which is the basis of the F. I. R. she had narrated about Ram Parikramabeing given financial help by her husband on some occasions and Ram Parikramavisiting her house for such financial help on a number of occasions and furtherdisclosed that Ram Parikrama had also started coming alongwith another shortstatured man aged about 30-35 years having weatish complexion and stout body,whose name she did not know. She also disclosed that on 7/01/1985, Ramparikrama had come accompanied with another man aged about 35-40 yearshaving sallow complexion, tali and thin, who spoke Bihari language and inquiredabout her husband who was not at that time present in the house and they had leftand on 8/01/1985, both the persons mentioned by her by their physicaldescriptions, as indicated above, came to the house at about 10 or 11 A. M. and hadstarted talking with her husband while sitting in the drawing room. Ram Parikrama had not come alongwith them. She found that they had teamt from theirhusband the various ingresses and out gresses of the house while she prepared thetea and served the same to her husband and the said two persons. Her daughter sson aged about one and a half years was also present in the drawing room at thattime and she had gone to the drawing room for bringing out the child but was askednot to enter the drawing room and the said two persons wanted her to open themain door so that they could go and when she was opening the door the person whowas tall and thin and was wearing a dhoti inflicted sickle blows on her neck and asshe warded off the third blow it struck on her hand and both the assailants thenopened the back door and made good their escape. She also mentioned that shortstatured man was speaking in Hindi and immediately she found her husband lyingdead in a pool of blood on the carpet in the drawing room. She also mentionedabout some dispute being there with Ram Kishore, her husband s younger brother,over partition of the property and she expressed suspicion that he might be at theback of this gruesome assault. She also mentionedabout some dispute being there with Ram Kishore, her husband s younger brother,over partition of the property and she expressed suspicion that he might be at theback of this gruesome assault. She made it clear that these two assailants had earliercome with Ram Parikrama. ( 6 ). On 9/01/1985, PW17, Sub Inspector accompanied by the SHO andother police officials had come to house No. 15/76-C and arrested appellant-Juglalmehto who had been earlier appreheded at that place by Head Constable Chanderpal and Constable Hari 0m. ( 7 ). On 8/01/1985, SI Sher Singh, who was working as ASI in Police Stationvasant Vihar, had under the directions of the Investigating Officer gone to thereserve Bank of India, Parliament Street and had joined Ram Parikrama coaccused for interrogation purposes and had learnt about Juglal Mehto-appellant,the co-accused, also working in the Reserve Bank of India and was found absentfrom duty since 7/01/1985. He took Ram Parikrama alongwith the Constableto the house of appellant-Juglal Mehto and Head Constable Chander Pal andconstable Hari 0m were put on duty for surveillance purposes for apprehendingjuglal Mehto-appellant. He had also gone in search of the other accused Musafirram but failed to arrest him and proceedings under Sections 82 and 83 of the Codeof Criminal Procedure were taken against Musafir Ram who was later on declaredproclaimed offender. ( 8 ). Sh. Brahm Dev Tyagi PW23, the then SHO of the Police Station Vasantvihar, had investigated the case and recorded the statements of different witnessesand had arrested the appellant and other accused-Ram Parikrama and certainletters were recovered from the house of the appellant which are Exs. P15 to P20which were taken into possession vide recovery memo Ex. P17/m. We need notrefer to the contents of the said letters because the Additional Sessions Judge forgood reasons had not relied upon the said documents. Even the contents of the saiddocuments were not sufficient to show that the appellant was involved in thecommission of this crime. A police remand of the appellant was taken for two daysand thereafter he was sent to judicial custody and an application Ex. PW19 /a wasmoved before the Metropolitan Magistrate for holding test identification parade ofthe appellant. The appellant had declined to participate in any test identificationparade on the pica that he had been already shown to the witnesses and hisphotograph and identity card had been seized by the police earlier. ( 9 ). PW19 /a wasmoved before the Metropolitan Magistrate for holding test identification parade ofthe appellant. The appellant had declined to participate in any test identificationparade on the pica that he had been already shown to the witnesses and hisphotograph and identity card had been seized by the police earlier. ( 9 ). In Court PW16 the star witness of the prosecution, whose presence at thetime of the occurrence was absolutely certain, had identified the appellant as theperson whose physical features she had given in the FIR as a person aged about 30-35 years, short statured, having wheatish complexion and stout body, who hadbeen visiting her house with Ram Pankrama earlier. The learned Additionalsessions Judge had believed the testimony of PW16 and had brought home theoffences to the appellant. He had acquitted Ram Pankrama as no evidence wasbrought before the Court showing his complicity in the commission of the murderof Rajinder Nath Malhotra and assault on PW16. ( 10 ). Before us, it is, indeed, not challenged that two persons had come to thehouse of PW16 and had caused the murder of Rajinder Nath Malhotra and had alsoattempted to murder PW16. The learned Counsel for the appellant, has, however,vehemently argued that it would not be safe to bring home the offence to theappellant on the solitary testimony of PW16 which is not corroborated by any otherevidence. The learned Counsel has taken us through the whole of the record andhas pointed out certain discrepancies in the testimony of PW16 which according toher should lead this Court to hold that PW16 is not a wholly reliable witness. Shehas also criticised the investigation of this case as the Investigating Officer had nottaken any prompt steps to get held the test identification parade in respect of theappellant. She has argued that identity of the appellant as the culprit for the firsttime by PW16 in Court should not be relied upon. ( 11 ). Shehas also criticised the investigation of this case as the Investigating Officer had nottaken any prompt steps to get held the test identification parade in respect of theappellant. She has argued that identity of the appellant as the culprit for the firsttime by PW16 in Court should not be relied upon. ( 11 ). On the other hand, the learned Counsel for the State has vehementlyargued that PW16 has been injured in the occurrence by the assailants and she wasvery much aware about the identity of the appellant as one of the culprits inasmuchas this culprit had been visiting the house alongwith Ram Parikrama on earlieroccasions and thus, although she did not know the appellant by name at that timebut had an opportunity to know the appellant positively because of his frequentvisits to the house alongwith Ram Parikrama and there is no reason to doubt hertestimony in Court that in fact the appellant was one of the assailants whoaccompanied the absconding accused for murdering her husband and for attemptto murder her. She has urged that PW16 has given a straight forward testimony incourt and apart from some innocuous omissions in her police statement nothinghas been brought out in cross-examination to show that she is not a wholly reliablewitness. She has urged that she had no reason to falsely implicate the appellant andlet go scot free the real assailants of her husband. ( 12 ). Coming to the version given by PW16 incourt,we find that she had by andlarge narrated the facts as had been given by her in the FIR and she particularlyidentified the appellant as one of the assailants. ( 12 ). Coming to the version given by PW16 incourt,we find that she had by andlarge narrated the facts as had been given by her in the FIR and she particularlyidentified the appellant as one of the assailants. She has deposed that this appellanthas visited her house alongwith Ram Parikrama on a couple of occasions earlierand one day earlier to the occurrence Ram Parikrama alongwith the other culprithad visited her house and wanted to meet her husband who was not available atthat time and they had told her that they would be coming again on the followingday in the morning to meet her husband and on the following day she had told herhusband not to leave the house as the said persons were coming to meet him andthen she saw both the persons coming in the morning and having talked with herhusband and she deposed that it was not the appellant who gave her injuries butthe other person, whose physical features she had given in the FIR, who had giventhe injuries to her. It is because the other culprit, who was found to be one Musafirram, had the weapon of offence with which ghastly murder of her husband tookplace and with which she was assaulted and which the culprit had taken away and as that culprit could not be apprehended, so the said weapon of offence could notbe recovered. If she wanted to falsely implicate the appellant in Court, she couldhave easily assigned the major role to the appellant of carrying the weapon andassaulting her but in a truthful manner she disclosed in the Court that it was theother culprit who assaulted her and not the appellant although she had seen someblood on the hands of the appellant when he was leaving the house. It appears thatthe appellant had left the house ahead of the other culprit and the other culpritmusafir Ram had assaulted PW16 with the said weapon. The assault on herhusband was not witnessed by her and she found her husband dead the momentthe two assailants had left the house. ( 13 ). It appears thatthe appellant had left the house ahead of the other culprit and the other culpritmusafir Ram had assaulted PW16 with the said weapon. The assault on herhusband was not witnessed by her and she found her husband dead the momentthe two assailants had left the house. ( 13 ). It has been urged by the learned Counsel for the appellant that in herstatement to the police, PW16 has not mentioned that hands of the appellant wereblood stained when he was leaving the house and that she also had not mentionedin the FIR that the appellant was also an employee of the Reserve Bank of India. Wedo not think that these omissions in the FIR go to the root of the matter and wouldshow, in any manner, any deliberate attempt on the part of PW16 to give anyembellishment to her version of the occurrence. An FIR is not repository of all thefacts pertaining to a particular case. At the time she narrated the facts to the policeshe was in a traumatic condition. She had been inflicted injuries and her husbandhad been murdered and she was in the hospital and in her such mental state ofaffairs it could not be expected that every details of the occurrence should benarrated by her in her first statement to the police. ( 14 ). We have gone through the testimony of PW16 in every detail and we findthat she has given out the straight forward truthful version of the occurrence as ittook place. There is no earthly reason for disbelieving her testimony whichimplicates the appellant in this occurrence. ( 15 ). It has been urged that the Investigating Officer had not taken steps forgetting the test identification held of the appellant promptly soon after theappellant was arrested. So, it is urged that the possibility that the appellant mighthave been shown to PW16 when the appellant was in police remand for two dayscannot be overlooked. It is true that where the identity of the appellant is notknown to the eye witness ft is incumbent upon the Investigating Officer to get suchsuspect identified from eye witness in a test identification parade which not onlyensures that the eye witness s memory regarding the identity of the appellant istested but also ensures that the investigation is proceeding on the right track andthe person arrested is the real culprit. But mere fact that the test identificationparade has not been held promptly would not lead to an inference that theprosecution version should be disbelieved particularly when eye witness hadoccasion to see the assailant a number of times prior to the occurrence. As a matterof fact when PW16 has clearly mentioned in the FIR that one of the assailants, whosephysical features she had given, had been visiting the house earlier, the question ofholding any test identification parade in respect of the said person would have beenfutile because the defence could have easily urged that such test identificationparade is farce because the eye witness already claims to have known the saidperson earlier, may be not by name. ( 16 ). But in the present case we find that the police remand of the appellant was taken for two days and PW16 was confined to the hospital at that time and there isnot even a suggestion given either to PW16 or to the Investigating Officer in cross-examination that during the said period of two days the appellant has been shownto PW16. PW16 after being discharged from the hospital on 14/01/1985,possibly would not have been so well to participate in the test identification paradeimmediately, so mere fact that the Investigating Officer had moved the applicationiafter about twenty days for getting held the test identification parade in the presentcircumstances is not fatal to the prosecution case. It must be remembered that nosuggestion has been given either to the Investigation Officer or W 16 that till theapplication for holding test identification parade was moved, the appellant hasbeen shown to PW16. In the application seeking holding of test identificationparade it has been mentioned that since the date of the arrest of the appellant, theappellant had been asked to keep himself in muffled face as he was to be put for testidentification parade. No suggestion has been given to the Investigating Officerthat the appellant was not being kept in muffled face during the period he remainedin police custody and that any effort has been made by the Investigating Officer tobring PW16 to the Jail as long as the appellant remained in judicial custody till thedate of the moving of the application for holding test identification parade. So,mere fact that the appellant later on thought it fit not to participate in testidentification parade does not mean that appellant had any valid reasons fordeclining to participate in such a parade. So,mere fact that the appellant later on thought it fit not to participate in testidentification parade does not mean that appellant had any valid reasons fordeclining to participate in such a parade. We have not been able to agree with thecontention of the learned Counsel for the appellant that the appellant must havebeen shown to PW16 before the application was moved for holding the testidentification parade. The plea taken by the appellant, that his photograph hadbeen seized by the Investigating Officer and that photograph must have beenshown to PW16, is not established by material on the record, rather no question wasput to the Investigating Officer that any such photograph had been seized duringthe investigation by the police. So, the refusal of the appellant to participate in thetest identification parade leads us to hold that the appellantwas having some guiltymind and was apprehenssive that would be correct identified as one of theassailants by PW16 if such a parade had been held. ( 17 ). The Apex Court in a recentjudgment given in the case of Suraj Pal v. Stateof Wary ana, JT 1994 (7) SC 352, has reiterated the law with regard to holding of testidentification parade as follows: "that being so, in the very nature of things, the identification parade in suchcases serves the dual purpose. It enables the investigating agency to ascertainthe correctness or otherwise of the claim of those witnesses who claimed tohave seen the offender of the crime as well as their capacity to identify himand on the other hand it saves the suspect from the sudden risk of beingidentified in the dock by such witnesses during the course of the trial. Thispractice of test identification as a mode of identifying an unknown personcharged of an offence is an age old method and it has worked well for the pastseveral decades as a satisfactory mode and a well founded method of criminaljurisprudence. It may also be noted that the substantive evidence of identifyingwitness is his evidence made in the Court but in cases where the accusedperson is not known to the witnesses from before who claimed to have seenthe incident, in that event identification of the accused at the earliest possibleopportunity after the occurrence by such witnesses is of vital importance witha view to avoid the chance of his memory fading away by the time ne isexamined in the Court after some lapse of time. " ( 18 ). In the said case also the accused had refused to participate in the testidentification parade for no good reason and the Supreme Court held that thisrefusal made by the accused was on his own risk for which he cannot be heard tosay that in the absence of test parade, dock identification was not proper andshould not be accepted if it was otherwise found to be reliable. ( 19 ). In Ramanathan v. The State of Tamil Nadu, AIR 1978 SC 1204 , a plea wastaken by the accused that he was not kept in muffled face before holding of the testidentification parade. The Supreme Court found that the accused had not led anyevidence to show this fact and had not cross-examined the important witness of theprosecution in this regard. So, it was held that if the accused wanted to demolishthe prosecution piece of evidence regarding the test identification parade it was forhim to do so by effective cross-examination of the witness and /or by examining hisown witnesses in rebuttal as the accused in that case had not succeeded in doing so,it was held that it was futile to contend by him that this important piece of evidenceproduced by the prosecution should be rejected merely because the prosecutionhad not led any evidence to prove that the appellant was kept baparda (in muffledface ). ( 20 ). Similarly, in the present case, the appellant has not succeeded in showingthat he was not kept in muffled face till the application was moved for holding thetest identification parade. ( 21 ). It has been urged that prosecution had tried to make embellishment in thecase by examining PW12 Satish Puri, who had taken PW16 to the hospital, inmaking him to depose that name of the appellant was disdosed to him by PW16. We do not see that this effort of the prosecution to embellish the case reflectsadversely on otherwise truthful statement of PW16. PW16 even in Court hasdeposed that she did not know the name of the appellant at the time of theoccurrence and it is only later on she learnt the name of the appellant. So, nothingturns on this contention of the learned Counsel for the appellant. ( 22 ). PW16 even in Court hasdeposed that she did not know the name of the appellant at the time of theoccurrence and it is only later on she learnt the name of the appellant. So, nothingturns on this contention of the learned Counsel for the appellant. ( 22 ). Then reference is made to the statement of PW1i Smt Shashi Madan,married daughter of PW16, who frankly did not identify the appellant as the personvisiting the said house of her mother as she claimed she had not an opportunity toclosely look at the physical features of the person visiting her father and thus, shecould not identify the appellant May be in police statement with which she wasconfronted she had mentioned about her capacity to identify the person visiting thehouse of her father but in Court she had not stuck to that statement but that wouldnot mean that testimony of PW16, which is otherwise straight forward and truthful,should be discarded because of some lapse on the part of the Investigating Officeror PW1i having second thoughts about the statement given by her to the police. ( 23 ). Be that as it may, we entirely agree with the assessment of the evidencemade by the leamed Additional Sessions Judge for coming to the conclusion thatpw16 is a wholly truthful and reliable witness and it has been established beyondshadow of reasonable doubt that the appellant was one of the assailant who had caused the murder of Rajinder Nath Malhotra. We, thus, maintain the convictionof the appellant for the offence punishable under Section 302 read with Section 34of the Indian Penal Code. However, we find that the appellant could not have beenconvicted of an offence punishable under Section 307 read with Section 34 of theindian Penal Code for attempt to murder of PW16 because it was the assailant whois proclaimed offender who had caused the injuries on the person of PW16 whenhe was making good his escape from the house whereas the appellant had alreadyleft the house ahead of him. So, the appellant could not have shared the commonintention with the other assailant for causing the injuries to PW16. ( 24 ). So, the appellant could not have shared the commonintention with the other assailant for causing the injuries to PW16. ( 24 ). In view of the above discussion, we partly allow the appeal and set-asidethe conviction and sentences of the appellant for the offence punishable undersection 307 read with Section 34 of the Indian Penal Code while we dismiss theappeal with regard to his conviction for the offence punishable under Section 302read with Section 34 of the Indian Penal Code and the sentences awarded in respectof the said offence. So, in nutshell the conviction of the appellant under Section 302read with Section 34 of the Indian Penal Code and the sentences awarded in respect of the said offence are maintained.