Judgment :- Koshy, J. Thirteen Persons were charge-sheeted for offences punishable under sections 143, 147, 148, 449, 324 and 302 read with section 149 of the Indian Penal Code. Original first accused was absconding and, therefore, case against him was split up and only 12 accused faced trial. Out of the accused faced trial, accused Nos.1, 3 and 12 were found not guilty and they were acquitted. Other accused Nos. 2 and 4 to 11 were found guilty of the offences punishable under sections 143, 147, 302 and 324 read with section 149 I.P.C. Accused Nos.4 and 10 were further found guilty of the offences punishable under section 148 I.P.C. All the nine accused who were found guilty were sentenced for life under section 302 read with 149 I.P.C. In addition, to the life imprisonment, they were also directed to pay a fine of Rs.15,000 each with a default sentence of rigorous imprisonment for one year except accused No.10 fine imposed on accused No.10 was Rs.30,000 with a default sentence of rigorous imprisonment for three years. There was a further direction that accused No.10 shall not be released from the prison unless he had served at least 20 years of imprisonment including the period already undergone by him in the custody. Accused Nos.2, 5 to 11 were sentenced for two years for the offences punishable under section 147 I.P.C. They and accused No.4 were sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000 with a default sentence of rigorous imprisonment for one year for the offences punishable under section 449 read with section 149 I.P.C. Accused No.10 was also sentenced for rigorous imprisonment one year for the above offence; but fine imposed on him was Rs.20,000, Accused Nos.2, 4 to 11 were sentenced of rigorous imprisonment for three years for offences punishable under section 324 read with section 149 I.P.C. Accused No.4 and 10 were further sentenced for the offences under section 148 I.P.C. for three years. There was also a direction to run the sentence concurrently. 2. P.Ws.1 and 2, namely son and wife of the deceased who were natural eyewitnesses tendered evidence in support of the prosecution. There was also a direction to run the sentence concurrently. 2. P.Ws.1 and 2, namely son and wife of the deceased who were natural eyewitnesses tendered evidence in support of the prosecution. The fact that the deceased, father of P.W.1 was brutally murdered by a group of people consisting of more than ten persons who trespassed into the house in the night with deadly weapons is not disputed. The only question really to be considered is the identity of the persons involved in the incident. Admittedly, neither P.W.1 nor P.W.2 have previous acquaintance with the accused except accused No.12. They deposed in court that accused No.12 was not among the crowd who attacked the deceased and his name was implicated as narrated by others. Hence, accused No.12 was acquitted by the Sessions Court. Neither P.W.1 nor P.W.2 identified accused Nos.1 and 3 during identification parade. They did not properly identified them in the court also. Hence, they were also acquitted. Reason for murder is political rivalry. The deceased was the Secretary of the Nadapuram Assembly Constituency of the B.J.P and accused were alleged to be the activists of Marxist party. It has come out in evidence that during the relevant tune there were intense rivalry between B.J.P workers and Marxist party workers and many crimes were registered during those days. Due to the group clash, many murders were also reported from the same locality. Main question to be considered in this appeal is whether the appellant/accused have participated in the unlawful assembly in the commission of the crime and whether their identification was proper. 3. P.W.1 is the son of the deceased. He was studying for final year degree. He deposed that his father was the Secretary of the Nadapurarn Assembly Constituency of BJP and he was employed as Headmaster in an LP School. He came back to the house at 6 O'clock on 29-6-1997. He was having cold and fever. Therefore, he went to bed at about 7 p.m. P.W.1 also deposed that the house was not an electrified one. It was a small house. He further deposed that he used to study till 11-30 p.m. and there was a lantern made of glass with 1-5 feet height in his room. A similar lamp was lighted in the Malayalam (verandah) as well as in the Malayalam (corridor). It was a small house. He further deposed that he used to study till 11-30 p.m. and there was a lantern made of glass with 1-5 feet height in his room. A similar lamp was lighted in the Malayalam (verandah) as well as in the Malayalam (corridor). He sleeps by 11.30 p.m. after going outside the house for urinating and after putting off the lamps. He used to go outside for urinating by 11-30 p.m. before he goes to sleep. On 29-6-1997, somebody called his father thrice as Bhaskaran Malayalam at 9 o'clock. He opened the door to the Malayalam and looked and he saw four persons. They stated that they came as instructed by Kunhikrishnan, Vanimel Medical Shop. By the time P.W.2, his mother, also came there. He further deposed that he can identify those four persons even though he was not aware of their names at that time. He identified them as accused Nos.4 to 6 and 10. He also stated that they were keeping their hands on their back. He told them that his father was not there. Then they left the house. Later, by 11 o'clock, again they came and called Bhaskaran Malayalam. P.W.2 was sleeping in the corridor. Then, they opened the window door of Malayalam. Then, they saw the four persons who came earlier along with another two, that is accused Nos.2 and 7. A-5 told them that they are BJP workers from Valayam. Police raid is being conducted there and, therefore, they should be given space for staying. He replied that father was not there and there is no space in the house for their stay. By that time, his father came from the bedroom and father asked P.W.1 to verify who are they. Then they gave six names of B.J.P. workers who are working in Valayam. Door was opened. Immediately after opening the door, A-2 asked for water for drinking. By the time about 50 persons were standing outside. He identified accused Nos.8, 9 and 11. He stated that fourth one was not present in court. Then, he further stated that two persons like accused Nos.1 and 3 were also there. But, he cannot definitely say that they were accused Nos.1 and 3. Accused No.11 shouted to kill him (Malayalam). Immediately, feeling something wrong, deceased turned to his left. He identified accused Nos.8, 9 and 11. He stated that fourth one was not present in court. Then, he further stated that two persons like accused Nos.1 and 3 were also there. But, he cannot definitely say that they were accused Nos.1 and 3. Accused No.11 shouted to kill him (Malayalam). Immediately, feeling something wrong, deceased turned to his left. At that time accused No.10 who was standing in front of the deceased inflicted a cut on the right side of the neck of the deceased with M.O.1 chopper with force. On getting the cut the deceased in a slanting position took steps backward and entered the corridor and fell on his back near the kitchen at the corridor. People outside the corridor tried to get inside. Immediately P.W.1 closed the door. While closing the door, accused No. 4 inflicted a blow on the hand of P.W. I with M.O.2 iron pipes. According to P.W.1, he stood by holding and pushing the door from inside with a fear to prevent their entry inside the corridor. P.Ws.1 and 2 cried aloud. On hearing their cry, P.W.4, C.Ws.5 and 7 who are brothers of P.W.2 and who are residing in the nearby house and two other neighbours, namely, C.W.6 and Asokan rushed to the spot. They called the name of P.W.1. Then P.W.1 opened the door. They took the deceased to the western road for taking him to the hospital. He came to know about the death of the deceased from the persons returned from the hospital. According to P.W.1, his father was murdered because of political enmity and the accused persons are Marxist party workers. He further deposed that there was threat towards the deceased from the part of Marxist workers even prior to the incident. According to P.W.1, on 30-6-1997 in the morning, he furnished Ext.P-1 first information statement to the police at the verandah of his house. He was not able to identify A-1 and A-3 in court clearly. He also stated that he had not seen accused No.12 at the time of occurrence and that he identified accused Nos.2 and 4 to 12 in the identification parade. 4. P.W. 2 is the wife of the deceased. She repeated the same story. He was not able to identify A-1 and A-3 in court clearly. He also stated that he had not seen accused No.12 at the time of occurrence and that he identified accused Nos.2 and 4 to 12 in the identification parade. 4. P.W. 2 is the wife of the deceased. She repeated the same story. She also identified that accused Nos.4, 5, 6 and 10 are the persons who were in the verandah who came at 9-00 p.m. with the light from the lantern and torch. She was not able to identify other persons who came at 11 O'clock. She also deposed that there was rain at that time. In cross-examination, main attempt was to discredit the identification and there was a suggestion and she had some illicit relationship with one Soman. But, that was denied by her and according to her it was a story spread by the Marxist to malign her. It is pertinent to note that no evidence of such relationship was produced by the defence. Brother of P.W. 2 is examined as P.W.4. He deposed that he is conducting an Ayurvedic medical shop. He came to the scene on hearing the cry after the incident. He could see about 40 persons running away from the courtyard of the house of the deceased. He chased some of the persons. He could identify accused Nos.2, 3, 4 and 6 among the said persons who were running away from the spot. He went to the house along with C.Ws.5, 6 and 7 and took the deceased to the hospital. Other witnesses examined were official witnesses. P.W.3 is the Judicial Magistrate of the First Class who conducted the test identification parade. The test identification parade was conducted on 20-8-1997. All the accused were apprehended during the first week of July 1997. They were produced before the Court twice before the test identification parade while remanding them. Test identification parade was conducted strictly in accordance with the rules. Ext.P-3 is the proceedings of P.W.3 regarding the test identification parade. Ongoing through the report, we see that the test identification parade was proper in all respects. In the first round, P.W.1 identified eight accused. They are accused Nos.2, 4, 6, 8, 9, 10 and 12 and absconding accused. He also identified four non-suspects as accused. Ext.P-3 is the proceedings of P.W.3 regarding the test identification parade. Ongoing through the report, we see that the test identification parade was proper in all respects. In the first round, P.W.1 identified eight accused. They are accused Nos.2, 4, 6, 8, 9, 10 and 12 and absconding accused. He also identified four non-suspects as accused. During the second round, he identified three more persons (A-5, A-7 and A-11) along with other accused whom he identified in the first round and further identified four non-suspects as accused. Thus, P.W.1 identified all accused except A-1 and A-3, but, he identified some non-suspects also as accused. P.W.2 identified accused Nos.4, 5, 10 and 12 in the first round. During second round, he identified only accused Nos.5, 10 and 12. Common identification was only with regard to accused Nos.5 and 10. Accused No.12 was not involved in the incident according to P.W.1 and P.W. 2. 5. P.W.5 is the doctor who conducted post-mortem. Ext P-5 is the post-mortem certificate wherein the following antemortern injuries were noticed: "External Injuries-14 cm. long incised wound started from I cm. below middle of mandible extending laterally to the back of the neck 4 cm. below the mastoid process on right side involving the muscles 4 cm. deep and 3 cm. wide mylo hyoid and hypoglasses muscles exposed. Following structures are cut: Submandibular gland, anterior belly of digastric muscles, intermediate tendon of digastric anterior part of sternomastoid. External carotid artery and its branches, fascial and submental. artery are cut, fascial vain, lingual vain, internal jugular vain, post auricular vain are cut and depth upto cervical vertebra." Opinion as the cause of death was due to shock and Haemorrhage. The doctor further stated that the injury noted in the post-mortem certificate is necessarily fatal and the injury can be caused by M.O.1 or similar weapons. 6. P.W.6 prepared the plan. P.W.7 Sub Inspector of Police who was in charge recorded the first information statement at 8-00 p.m. He deposed that he did not ask. P.W.1 whether he remember any identification marks of the accused. He deposed that he did not recover the weapons because he thought that it is the duty of the investigating officer. He answered as follows: Malayalam P.W.8 was the Circle Inspector of Police. He conducted the inquest. Ext, P-7 is the inquest report. P.W.1 whether he remember any identification marks of the accused. He deposed that he did not recover the weapons because he thought that it is the duty of the investigating officer. He answered as follows: Malayalam P.W.8 was the Circle Inspector of Police. He conducted the inquest. Ext, P-7 is the inquest report. P.W. 8 deposed that contents of the entire report was not written by him. But somebody else have added it. P.W.9 was the Sub Inspector of Police of Perambra during the relevant time. He prepared the scene mahazar Ext.P-4 regarding recovery of M.Os.1, 2, 5, 6 etc. from the place of occurrence. He further stated that while preparing Ext. P-4, it was stated to him by some persons that they saw the accused and he asked them to tell to the investigating officer. Malayalam P.W.10 Assistant Sub inspector of Police registered the crime and P.W.11 Circle Inspector of Police filed final report. P.W.11 was the main Investigating Officer. 7. It is well-settled law that merely because P.Ws.1, 2 and 4 are relatives, their depositions cannot be discarded. The incident happened in the night in the house of the deceased. Only wife and son who were living with him was available at that time. They are natural witnesses and normally they will not make a Use allegation so that the real accused will escape as held by the Apex Court in State of Rajasthan v. Kalki and another A.I.R. 1981 S.C. 1390 Sewa Kumar v. State of Punjab 1997 Crl. L.J. 1833 (S.C.) and Dalip Singh v. State of Punjab A.I.R. 1953 S.C. 679. At the same time, their evidence has to be viewed cautiously with great care. Sharad Birdhichand Sarda v. State of Maharashtra A.I.R. 1984 S.C. 1622, Vaikuntam Chandrappa and others v. State of A.P. A.I.R. 1960 S.C. 1340 and Anil Sharma and others v. State of Jharkhand (2004) 5 S.C.C. 679. There were disputes between Marxist group and B.J.P. group. Deceased was a B.J.P. activist and an officer bearer. the incident happened in the night. P.W.1 was studying. Perhaps, there was light in his room. The lantern was not taken into custody. There was heavy rain also during the time as deposed by the witnesses. The crowd was standing outside. There was a large crowd of more than 40 persons. P.Ws.1 and 2 had no previous acquaintance with the accused. P.W.1 was studying. Perhaps, there was light in his room. The lantern was not taken into custody. There was heavy rain also during the time as deposed by the witnesses. The crowd was standing outside. There was a large crowd of more than 40 persons. P.Ws.1 and 2 had no previous acquaintance with the accused. There is no chance that they identified the entire 40 persons with tile fight from kerosene lamp in the room. State of U. P. v. Jageshwar and others A.I.R. 1983 S.C. 349 and Joseph v. State of Kerala (2003) 11 S.C.C. 223. Even according them, they have not identified the entire people. When witnesses have no previous acquaintance with the accused and seen the accused only at the time of commission of offence, test identification parade is necessary. V.C. Shukla v. State (Delhi Administration) (1980) 2 S.C.C. 665. Here, test identification parade was conducted. It is true that P.W.1 identified all the accused in the court. But, he was doubtful regarding accused Nos.1 and 3 in court. He also stated that accused No.12 was not there at the time of incident and his name was added as told by others. He was examined in the court after about five years of the incident. P.W.1 did not identify accused Nos.1 and 3 and identified non-suspects also. Relying on the observations of the Apex Court in Vaikuntam Chandrappa's case (supra), it was argued that since he had made mistakes, there was no proper identification at all. Even honest and convince witnesses can make mistakes in identification. But a hard and fast rule cannot be laid down. P.W.1 was not able to identify A-1 and A-3 at the time of test identification parade. P.W.2 identified only A-5, A-10 and A-12. It is true that the test identification parade ought to have been conducted immediately on the apprehension of the accused. Even though all the accused were apprehended in the first week of July, 1997, test identification parade was conducted only on 20-8-1997. Being a political murder, there was ample time for discussion. Test identification parade ought to have been conducted without delay as held by the Apex Court in Shabad Puna Reddy and others v. State of A.P. A.I.R. 1997 S.C. 3087 But, merely because of delay, test identification parade cannot be discarded. Being a political murder, there was ample time for discussion. Test identification parade ought to have been conducted without delay as held by the Apex Court in Shabad Puna Reddy and others v. State of A.P. A.I.R. 1997 S.C. 3087 But, merely because of delay, test identification parade cannot be discarded. P.Ws.1 and 2 deposed that before test identification parade the accused were not shown to them and they did not see them till they were produced before the court also. It is true that there was unlawful assembly consisting of more than ten persons. They came with weapons to attack the deceased and they trespassed into the house and in fulfilling the object of the unlawful assembly, they inflicted serious injuries on the deceased. Even though P.W.1 was also stated to be injured, no medical certificate was produced. It was only a beat by a stick while he was closing the door. It is very difficult to believe that he has seen that person beating the deceased in the night. We have already stated that the test identification parade was conducted according to the rules. P.Ws.1 and 2 commonly identified only accused Nos.5 and 10. Accused Nos.5 and 10 were included as first five persons who came to the house and enquired about the deceased. In fact, accused No.5 told them that they are B.J.P. workers coming from Valayarn and police raid was going on there and, therefore, they came there for shelter. He was got identified as one who came in the second time also. Accused No.10 caused fatal injuries to the deceased. Wife and son of the deceased were seeing the incident. They will never forget the incident Therefore, presence of accused Nos.5 and 10 cannot be disputed at all. It was also argued that there were many defects in the investigation. As contended by the public prosecutor, murder was committed due to political rivalry. Accused were Marxist party workers. Government in the State was headed by Marxist party members (CPI-M). That may be the reason in the above defect. Not taking the lantern into custody, P.W.7 and P.W.8 failed to note the clue said to have been given to them regarding the accused are certainly defects in investigation. Accused were Marxist party workers. Government in the State was headed by Marxist party members (CPI-M). That may be the reason in the above defect. Not taking the lantern into custody, P.W.7 and P.W.8 failed to note the clue said to have been given to them regarding the accused are certainly defects in investigation. As held by the Apex Court in State of Karnataka v. Yarappa Reddy 1998 (3) K.L.T. 456 (S.C.) and Bikau Pandey and others v. State of Bihar A.I.R. 2004 S.C. 997 criminal justice cannot be made the casualty for the errors committed by the Investigating Officer. It is the totality of evidence that counts. There is conclusive evidence against A-5 and A-10. In the above circumstances we are of the opinion that benefit of doubt can be given to other accused as they were not properly identified. But, accused Nos.5 and 10 are clearly identified as members of that unlawful assembly and in furtherance of the common object they along with others murdered the deceased. Therefore, conviction of accused Nos.5 and 10 under sections 143, 147, 148, 449 and 302 I.P.C. read with section 149 I.P.C. are confirmed. The conviction and sentence of accused Nos.5 and 10 on all counts except under section 324 I.P.C. are confirmed. In paragraph 109 of the Judgment there is a special direction that accused No.10 shall not be released until he suffers 20 years of rigorous imprisonment. We are of the opinion that there are no such special circumstances. He was convicted for life. Unless that is remitted or commuted, he has to undergo imprisonment till the end of his life. Remission or commutation of punishment can be done only as per law and there are no special circumstances to say that the above power can be exercised only after accused No.10 undergoes 20 years of imprisonment. So, the said direction with regard to accused No.10 regarding 20 years of imprisonment is set aside. But for that, conviction and sentence of accused Nos.5 and 10 imposed by the Sessions Court under sections 143, 147, 148, 449 and 302 read with section 149 I.P.C are confirmed. By giving the benefit of doubt especially regarding the identification, accused Nos.2, 4, 6, 7, 8, 9 and 11 are acquitted. Their conviction and sentence are set aside. They should be set free forthwith, if they are not required in any other case.