Judgment 1. This appeal is filed by two accused who are convicted and sentenced for different offences by the learned 3rd Additional Sessions Judge, Ahmednagar in Sessions Case No. 7 of 1988 on 15.4.1988. Appellant no. 1-Khalilkhan Bismillakhan is convicted of offences punishable under Sections 302, 324, 201 of the Indian Penal Code and sentenced to suffer imprisonment for life, rigorous imprisonment for 3 years and rigorous imprisonment for 2 years respectively for the said offences. Appellant no.2-Mohommad Kayamuddin is convicted of offences punishable under Sections 326 r/w 34 and under Sections 324 r/w 34 of the Indian Penal Code and sentenced under Sections 326 r/w 34 of the Indian Penal to suffer rigorous imprisonment for 3 and 1/2 years and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for one month and for offence under Sections 324 r/w 34 of the Indian Penal Code to suffer rigorous imprisonment for 2 years. Substantive sentences were directed to run concurrently. The appellants were acquitted of offence punishable under Sections 307 r/w 34 of the Indian Penal Code. The appellant no.2 was acquitted of offence punishable under Sections 302 r/w 34 of the Indian Penal Code. 2. Facts relevant for decision of this case are that on 18.10.1987 at about 11.15 p.m. at Yamuna Sadan, Burudgaon road, Ahmednagar both appellants went to the house of deceased Imtiyaz Shaikh who was working as Upper Divisional Clerk in A.C.Centre and School of Army at Ahmednagar. At that time deceased Imtiyaz was sleeping with his wife Nasrinbanu (pw6) and their minor son of two years. The appellants rang the door bell and deceased Imtiyaz and Nasrinbanu got up. Imtiyaz went and opened the door. Appellant no.1-Khalilkhan who was armed with knife, gave blows with it on the person of deceased Imtiyaz. At that time Nasrinbanu (pw6) went to intervene, but appellant no.2-Mohammad Kayamuddin gagged her mouth. Appellant no.1-Khalilkhan put his foot on her leg and gave knife blow on her thigh. As many as 19 blows were given on the person of Imtiyaz Shaikh, as a result, Imtiyaz died on the spot. After giving blows both the appellants ran away. 3. It is case of the prosecution that both the appellants were also serving in A.C.Centre and School of Army at Ahmednagar. Appellant no.1-Khalilkhan had love affair with Kuljeetkaur (pw4). As many as 19 blows were given on the person of Imtiyaz Shaikh, as a result, Imtiyaz died on the spot. After giving blows both the appellants ran away. 3. It is case of the prosecution that both the appellants were also serving in A.C.Centre and School of Army at Ahmednagar. Appellant no.1-Khalilkhan had love affair with Kuljeetkaur (pw4). They married, but appellant no.1-Khalilkhan was suspecting that deceased Imtiyaz had illicit relations with Kuljeetkaur (pw4). The marriage of appellant no.1-Khalilkhan had taken place on 9.6.1987, however, they could not pull on together. On 30.9.1987 both Kuljeetkaur (pw4) and appellant no. 1 purchased a stamp paper. A divorce deed was written on the stamp paper on 1.10.1987, but it was executed on 15.10.1987. The incident of murder of deceased Imtiyaz had taken place on 18.10.1987. 4. The only eye-witness to the incident is Nasrinbanu (pw6)-the widow of deceased Imtiyaz. She raised shouts, but it appears that no neighbour was bold enough to come out in time and catch hold of the culprits. Admittedly Nasrinbanu (pw6) was not knowing the assailants prior to the incident. So, the test identification parade was arranged. It was held by Yusufkhan Pathan (pw7)-Special Judicial Magistrate in Sub-Jail, Ahmednagar on 28.11.1987. It was explained by prosecution that as per the custom, Nasrinbanu (pw6) who immediately on the next day of incident was taken to the place of her parental house, was not to leave her house for a period of 40 days which was period of mourning, 5. Immediately after the incident when culprits had run away, neighbour Eknath Shinde (pw5) came and saw Nasrinbanu (pw6) weeping at the door of her house and Imtiyaz in pool of blood. So he along with another neighbour went to a hotel and informed police on telephone. Immediately police rushed to the spot of incident. P.S.I.-Shejul (pw17) took over investigation. He drew inquest panchanama as there was tube light in the living room where incident had occurred. The dead body was sent for post-mortem. Nasrinbanu (pw6) who was injured was also sent to the Civil Hospital. P.S.I. Shejul (pw17) recorded complaint of Nasrinbanu (pw6) at the hospital and crime was registered. In the morning, police called Kuljeetkaur (pw4) for interrogation. It is case of the prosecution that accused no.1-Khalilkhan was also arrested early in the morning. The dead body was sent for post-mortem. Nasrinbanu (pw6) who was injured was also sent to the Civil Hospital. P.S.I. Shejul (pw17) recorded complaint of Nasrinbanu (pw6) at the hospital and crime was registered. In the morning, police called Kuljeetkaur (pw4) for interrogation. It is case of the prosecution that accused no.1-Khalilkhan was also arrested early in the morning. It is case of the accused that he went to police station when he came to know that Kuljeetkaur (pw4) had been called by police. Accused no. 1 was immediately arrested. In the morning when police drew spot panchanama, they found one handkerchief and a blood stained knife which was used in the crime just below the staircase. The premises where deceased Imtiyaz Shaikh was residing with Nasrinbanu (pw6) was part of building which was two storied. There are four blocks on ground floor and four blocks on the first floor. There was staircase on the front side of the building and the block taken on rent by deceased Imtiyaz Shaikh was described as fourth block while counting from the side of staircase. 6. After arrest of accused no.1 he showed willingness to produce his shoes and socks which he had concealed in his trunk. Accordingly memorandum was prepared in presence of panchas. Accused no.1-Khalilkhan led police and panchas to his barrack and opened the trunk and produced blood stained shoes and socks which were attached under panchanama. It is also prosecution case that accused had washed his clothes in the morning and that was seen by Radhakrishna Nayyar (pw12). As per prosecution, on the interrogation of accused no.1, the name of accused no.2 was also disclosed. So his clothes, socks and shoes were attached under panchanama. The attached articles were sent to the Chemical Analyser and it is prosecution case that the socks and shoes of appellant no.1-Khalilkhan bore blood stains of same group as that of the deceased Imtiyaz. It is also prosecution case that appellant no.1-Khalilkhan was having injuries caused during incident and he was examined by doctor. 7. The appellants have admitted several circumstances and have given their own explanations. Appellant no.1 has also filed detailed written statement which is at Exh. 94. The learned Additional Sessions Judge rejected the defence of the accused and explanations given by them and relied upon the prosecution case and passed the order of conviction and sentence as aforesaid. 8. 7. The appellants have admitted several circumstances and have given their own explanations. Appellant no.1 has also filed detailed written statement which is at Exh. 94. The learned Additional Sessions Judge rejected the defence of the accused and explanations given by them and relied upon the prosecution case and passed the order of conviction and sentence as aforesaid. 8. The main plank of the appellants defence is that there was no sufficient light at the house of deceased Imtiyaz and as such sole witness Nasrinbanu (pw6) had no sufficient opportunity to see, remember and identify both the appellants and the test identification parade is mere farce. It is also alleged that police had taken photographs of both the appellants and they were shown to Nasrinbanu (pw6). It is also alleged that appellants were shown to Nasrinbanu (pw6) when they were brought to Court earlier for remand and also at the time of test identification parade from one of the adjoining terraces. It is also alleged that the panch to the test identification parade was knowing the appellants and he must have shown the appellants to Nasrinbanu (pw6). 9. Nasrinbanu (pw6) in her statement at Exh.25 has stated that their block no. 4 was consisting of three rooms. The first room was being used as living room, the second room was being used as bed room and the third room was used as kitchen. There is one door and one window in between the living room and the bed room. The size of the window is 3 x 2 and 1/2 ft. and a night lamp was fixed to that window, so that there would be light in both, the bed room and and the living room. The night lamp was of ziro power bulb. In living room there is one switch of the electric bulb of 40 Watt fixed in Veranda just in front of the block. Thus, according to Nasrinbanu (pw6) there was light sufficient to identify both the appellants and she did see them properly and identified them. 10. According to Nasrinbanu (pw6) on 18.10.1987 upto and therefore as soon as the said period was over, the test identification parade was held and both the appellants were identified. 11.00 p.m. they watched T.V. programmes in the living room and then they slept in the living room. Within 10 to 15 minutes they heard sound of call bell. 10. According to Nasrinbanu (pw6) on 18.10.1987 upto and therefore as soon as the said period was over, the test identification parade was held and both the appellants were identified. 11.00 p.m. they watched T.V. programmes in the living room and then they slept in the living room. Within 10 to 15 minutes they heard sound of call bell. So Nasrinbanu awoke, went near the bed room. Her husband Imtiyaz also awoke. He switched on the button of light which was fixed in the veranda and opened the main door. Immediately two persons entered the room. One of them started giving blows with knife on the chest of her husband. Nasrinbanu (pw6) went to rescue her husband, but another person came and gagged her mouth. The person who had inflicted knife blows on her husband, kept his foot on her leg and gave knife blow on the left thigh of Nasrinbanu (pw6). Then they went away. She further stated that the person who gave knife blow to her and her husband was wearing white T-shirt and blue colour pant and blue and white colour canvas shoes. The person who gagged her mouth was wearing buff colour check shirt and white pant. She saw the said persons in the light which was in the veranda as well as in the light that was in between living room and bed room. The said persons were in the room for 2 to 3 minutes. After the said persons ran away from the room she raised shouts, and neighbours gathered there and she told the incident to them. Thereafter police came and she was removed to the Hospital. In the hospital her complaint Exh.36 was recorded. 11. It is argued before us that in the first information report nowhere she mentioned that at the relevant time there was zero power bulb in the room. Witness volunteered that at that time her condition was not proper. Then she also said that she did not state about it when her statement was recorded at Solapur, but she again explained that nobody asked her about the same. It is pointed out by the learned Additional Public Prosecutor that the question was mixed and did not refer to specific light i.e. whether to light was in the veranda or in the room. It is pointed out by the learned Additional Public Prosecutor that the question was mixed and did not refer to specific light i.e. whether to light was in the veranda or in the room. Secondly it is also brought on record that there was omission in the complaint, in as much as it is not stated that after Imtiyaz awoke he switched on light button of the bulb in veranda and then opened the door. It is also stated that the said thing was not mentioned even in the statement which was recorded subsequently. In the complaint it is stated that after putting off the lights they slept, but the complainant said that that sentence refers to tube light. So it is argued before us that the theory regarding night lamp and light in veranda is after thought and false. However, if we consider the complaint lodged by Nasrinbanu (pw6) which was registered at 1.25 p.m. at Ahmednagar city police station, it is clear that the complainant has stated so many things which clearly indicate that there was sufficient visibility to identify the culprits. In the complaint, it is mentioned that as soon as those persons entered and one of them gave a blow with a sharp weapon to her husband, her husband shouted and fell near bed. When she started raising shouts, another person gagged her mouth and fell her down. Then she was put down with leg and there were shoes in the legs. She could also see that blow was given with sharp weapon. One of the persons was wearing buff coloured shirt which was inserted in the pant. Another person had white shirt and she had seen them while going away in the light which was outside. At the end of her statement she has also stated that since she had seen the culprits in the light in veranda, she would be in a position to identify them if shown to her. It is said that the said last line was added subsequently, but that will have to be seen in the light of the earlier statements in same paragraph in which she has specifically stated that she had seen both culprits in the outside light. So it cannot be said that there was no visibility. It is said that the said last line was added subsequently, but that will have to be seen in the light of the earlier statements in same paragraph in which she has specifically stated that she had seen both culprits in the outside light. So it cannot be said that there was no visibility. Moreover the couple had 2 year old child and it is common experience that whenever such a child is there in the house, at least a night lamp is put on by parents. 12. We get corroboration to the evidence of Nasrinbanu (pw6) regarding availability of light from evidence of neighbour Eknath Shinde (pw5) examined at Exh.24. He stated that there were two electric lights in the passage, one in front of room no.2 and another in front of room no. 4. The point in front of room no. was just below the roof and it was operated from inside room no.4. For last 10 years deceased was residing in room no. 4 and he was residing in room no. 3. He also stated that the electric light which was in the house of deceased as well as in front of passage of the room of the deceased were on and as such he could see that wife of deceased had sustained bleeding injury. It is true that there is omission regarding the source of light in his statement before police. It is also brought on record that he did not state before police that at the relevant time the electric light in the veranda was on. Witness voluntarily stated he was not asked about it. It is also stated that there was omission about the electric points in front of room nos. 2 and 4 in veranda. It may be noted that the complainant or witness would generally speak about main incident and unless their attention is specifically drawn, they are not likely to tell about source of light and other minute details. We are not prepared to disbelieve Nasrinbanu (pw6) and Eknath Sinde (pw5) whose statements were immediately recorded by police. In fact the complaint lodged by Nasrinbanu (pw6) was recorded within almost two hours and as such her statement that she had seen culprits in the light of veranda can be safely believed. 13. Then there is evidence in the form of spot panchanama Exh.52. In fact the complaint lodged by Nasrinbanu (pw6) was recorded within almost two hours and as such her statement that she had seen culprits in the light of veranda can be safely believed. 13. Then there is evidence in the form of spot panchanama Exh.52. It is mentioned therein that in veranda on first floor there is bulb in working condition. It is also stated that there was yellow colour bulb which was in drawing room which was also on and it was situated between bed room and drawing room. The said panchanama was drawn at 8.30 to 9.30 a.m. on 19.10.1987. So it was drawn at the earliest moment. 14. Shaikh Rais (pw9) who is brother of Nasrinbanu (pw6) is another witness. He also stated that in the gallery there is one light just in front of the main door of their block and same can be operated from inside room. The bulb is somewhat below slab and light of it is shed inside living room. He also stated about the other electric bulb which was in front of room no. 2. 15. Much was tried to be made of admission of Eknath Shinde (pw5) that after the incident landlord had fixed an electric point in front of his room facing to compound, that was on projected portion of the gallery, but statement is very clear and there is no reason for any confusion. This witness has also stated that when he asked about culprits, Nasrinbanu (pw6) gave him description of the clothes worn by the culprits. This witness was also confronted with the statement before police and it was brought on record that he has not stated about the electric bulb in veranda being operated from living room or that it was fixed at the height of 2 ft. below slab and that there was another bulb in front of room no.2. The statement of this witness was recorded by police after about 3 weeks. 16. The complaint was lodged within 2 hours of the incident. Nasrinbanu (pw6)’s husband was killed in her presence in a brutal attack and she herself was also injured. The complaint throws light on circumstances which show that Nasrinbanu had opportunity to see culprits as they had come very near to her as one had gagged her mouth and another who assaulted her husband had also assaulted her with same knife. Nasrinbanu (pw6)’s husband was killed in her presence in a brutal attack and she herself was also injured. The complaint throws light on circumstances which show that Nasrinbanu had opportunity to see culprits as they had come very near to her as one had gagged her mouth and another who assaulted her husband had also assaulted her with same knife. So she had seen culprits from very close distance. The incident was such that it would cause great impact on her mind. In the complaint sufficient details are given to show that there was visibility and Nasrinbanu (pw6) had sufficient opportunity to see and note features of culprits. If a person describes what she had seen - obviously due to some source of light and visibility, then omission to tell details of source of light loses all significance. 17. Learned Additional Public Prosecutor rightly argued that the first information report is not an encyclopedia, particularly mental condition of injured will have to be taken into account when questions were asked regarding minute details and omissions were brought on record. 18. So far as visibility is concerned, it is a question of fact in each case. It is not that merely because there is no very bright light, benefit of doubt should go to accused. The question is whether there was sufficient light in the sense that there was adequate visibility and opportunity for witness to see and note features of culprit. 19. In the case of Gurmeet Singh vs State of U.P. ( AIR 2005 SC 3611 ), the incident had taken place on a moon-lit night in family house of accused when all deceased were sleeping. The presence of eye-witnesses who were surviving members of the family was natural. It is also held that identification at night of accused was credible since accused was member of the family, night was moon-lit and the accused remained on the scene for long time. In view of corroborative other evidence, the ocular evidence was believed and the accused was convicted. 20. Similarly, in the case of Nathuni Yadhav vs State of Bihar and another ( AIR 1997 SC 1808 ), murder was committed in moonless night. The assault was on roofless terrace. Assailants were not strangers to inmates of tragedy bound house. Eye witnesses were well acquainted with physiognomy of each of assailants. 20. Similarly, in the case of Nathuni Yadhav vs State of Bihar and another ( AIR 1997 SC 1808 ), murder was committed in moonless night. The assault was on roofless terrace. Assailants were not strangers to inmates of tragedy bound house. Eye witnesses were well acquainted with physiognomy of each of assailants. Further neighbours rushed to the scene and deposed that the victims had mentioned names of accused stating them to be assailants who shot at victims. It was observed in para 8 that it cannot be assumed that it would not have been possible for victim to see the assailants or that there was possibility for making a wrong identification of killers. In that case the proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. 21. In Kalika Tiwari and others vs State of Bihar ( AIR 1997 SC 2186 ), dacoity was committed in a village. Only source of light at place of occurrence was an earthen lamp. Identification of dacoits in such light was held not a problem for villagers. The relevant observations from para 16 are as follows : " The visibility capacity of urban people who are acclimatised to fluorescent lights of incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. Their visibility is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. A similar view has been adopted by this Court in Macchi Singh v. State of Punjab, AIR 1983 SC 957 . For that reason we are not impressed by the argument that the light from earthen lamps would not have been sufficient for those witnesses to identify the assailants. " In our opinion, evidence of Nasrinbanu (pw6) regarding availability of light both inside and outside the house is reliable and trustworthy. We hold that she had sufficient opportunity to see and note the features of assailants from close distance. 22. " In our opinion, evidence of Nasrinbanu (pw6) regarding availability of light both inside and outside the house is reliable and trustworthy. We hold that she had sufficient opportunity to see and note the features of assailants from close distance. 22. So far as first information report is concerned, law does not require the first information report to contain all the minute facts and circumstances that the informant might know. The first information report is lodged with a view to setting the investigative process in motion and not for the purpose of setting down on paper all known facts and circumstances about the incident. Moreover, the mental and physical condition of Nasrinbanu (pw6) will have to be considered when minute details are expected. 23. In the case of Podda Narayana and others vs State of Andhra Pradesh ( AIR 1975 SC 1252 ), it is observed in para 9 that in that case shorn of minutest detail the broad picture presented by the prosecution was undoubtedly revealed in the F.I.R. which was lodged very soon after the occurrence. Their Lordships observed that in their opinion it is neither customary nor necessary to mention every minute detail in the F.I.R. 24. In this case, accused no.1 in his statement under Section 313 of the Criminal Procedure Code specifically admitted that Nasrinbanu (pw6) was called in the Sub-jail and there was identification parade in which 10 to 12 persons were made to stand in line and he was correctly identified. Appellant no.2 also admitted this position and the relevant questions and answers are at Sr. Nos. 28 and 29. It is say of the appellants that their photographs were taken and shown by police. Learned Additional Sessions Judge observed that no such complaint was ever made by these literate accused persons to any authority. 25. Moreover, if we consider the evidence of Nasrinbanu (pw6) and her brother Shaikh Rais (pw9), it is clear that Nasrinbanu left for Solapur on 19.10.1987 itself and remained admitted in a Clinic for 7 days. Thereafter she was to observe mourning for 40 days and as per custom prevailing in muslim community, a widow could not leave house for 40 days. We find statement to that effect in para 4 of the statement of Nasrinbanu (pw6) at Exh. 25. We also get corroboration from Shaikh Rais (pw9) in para 5 to that effect. Thereafter she was to observe mourning for 40 days and as per custom prevailing in muslim community, a widow could not leave house for 40 days. We find statement to that effect in para 4 of the statement of Nasrinbanu (pw6) at Exh. 25. We also get corroboration from Shaikh Rais (pw9) in para 5 to that effect. P.S.I. Shejul (pw17) also stated about it. 26. In letter Exh.28 addressed to the Special Judicial Magistrate, Y.M.Pathan by P.S.I. Shejul, it is specifically mentioned that due to custom in muslims to observe mourning for 40 days, Nasrinbanu (pw6) was not in a position to attend the test identification parade prior to 24.11.1987. Request was made by P.S.I. to fix suitable date and time of test identification parade so that Nasrinbanu (pw6) may be kept present on that date. The test identification parade was held on 28.11.1987 and Nasrinbanu (pw6) and her brother Shaikh Rais (pw9) stated that they came to Ahmednagar on 28.11.1987. In para 5 Nasrinbanu (pw6) has stated that they left Solapur on the night of 27.11.1987 and went to Ahmednagar on 28.11.1987 and waited near red tank outside Sub-jail with her brother. Evidence of Pathan (pw7) and evidence of Nasrinbanu show that thereafter Special Judicial Magistrate Shri Pathan came there. He saw a lady and a man waiting there. He asked who were there and whether they had come from Solapur. He also disclosed his identity and thereafter Nasrinbanu stated that they were invited and, therefore, they have come. Thereafter test identification parade was held. So it is clear that for 40 days Nasrinbanu was outside Ahmednagar and there was no occasion for police to show her either of the appellants. It is nowhere case that prior to coming to Sub-jail there was any such occasion as both the appellants were in jail since their arrest till the test identification parade was held. 27. The evidence of Pathan (pw7) who held test identification parade clearly indicate that he had taken all necessary precautions and it was a fair test identification parade. Learned advocate drew our attention to suggestions that there was possibility of showing appellants from adjoining terrace or when the appellants were taken for remand in the mean time and that photographs were also taken and shown. All the suggestions are denied by prosecution witnesses. Learned advocate drew our attention to suggestions that there was possibility of showing appellants from adjoining terrace or when the appellants were taken for remand in the mean time and that photographs were also taken and shown. All the suggestions are denied by prosecution witnesses. On our careful scrutiny of evidence we do not find any merit in said defence, which in our opinion, is after thought. We are in agreement with the learned Additional Sessions Judge that test identification parade was fair, proper and suffers from no material irregularity, impropriety or infirmity. 28. In the case of Vaikuntam Chandrappa and others vs State of Andhra Pradesh ( AIR 1960 SC 1340 ), in para the law on test identification parade is laid down as follows : " It is also true that the substantive evidence is the statement in court; but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding. 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. " In the present case, the reason given for holding test identification parade after 40 days is just and satisfactory. In fact it was on 40th day. Learned Additional Public Prosecutor Shri Kaldate cited the case of Budhsen and another vs State of U.P. ( AIR 1970 SC 1321 ), in which the same law, as stated above, is laid down. 29. The Special Judicial Magistrate Pathan has explained that after he made the persons to stand in line, he had given option to both the appellants to change their position in the line as per their will and they may even change their clothes. Inspite of this, Nasrinbanu (pw6) has identified both the appellants. It is observed in the case of Budhsen (supra) that the purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of evidence in Court. Inspite of this, Nasrinbanu (pw6) has identified both the appellants. It is observed in the case of Budhsen (supra) that the purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of evidence in Court. 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. 30. Learned advocate for the appellants has cited some authorities on the point of test identification parade. The first is Shaikh Umar Ahmed Shaikh and another vs State of Maharashtra (1998 AIR SCW 1736). In that case, the accused were already shown to the witnesses and, therefore, identification of accused by said witnesses in Court was held to be meaningless. As para 8 shows, the designated Court had recorded a finding that there was strong possibility that suspects were shown to the witnesses. There was no such possibility in the present case. 31. The next case cited is Balu Shravan Ahire vs State of Maharashtra ( 2001 (2) Mh.L.J. 76 ). In that case also the Court felt that there was possibility of showing appellant-accused to the witnesses before test identification parade and since that possibility was not ruled out the evidence of identification was discarded. So that was a conclusion in the facts and circumstances of the said case. 32. Similarly in State of Madhya Pradesh vs Chamru @ Bhagwandas (2007 CRI.L.J.3509), photograph of accused was shown to the child witnesses before parade. It is held that that takes away the effect of test identification parade. We are not satisfied that in this case Nasrinbanu (pw6) was shown any photograph of the appellants. Mere suggestions by the defence cannot take place of proof. Mere apprehension of the accused or his statement under Section 313 of the Criminal Procedure Code without anything more cannot be relied upon to discard the test identification parade. 33. In the case of State of Rajasthan vs Netrapal and Others (2007 CRI.L.J.1783), the night of offence was dark night. The evidence as to presence of electricity at the house of complainant was inconsistent. 33. In the case of State of Rajasthan vs Netrapal and Others (2007 CRI.L.J.1783), the night of offence was dark night. The evidence as to presence of electricity at the house of complainant was inconsistent. Presence of electric bulb was not shown in site plan. The evidence of witnesses that they identified the accused was not reliable. Even evidence of test identification parade and recovery of articles was doubtful. So in the facts of that case the accused were given benefit of doubt. 34. In our opinion, the abovesaid authorities cited by the learned advocate for the appellants are not applicable to the facts of the present case. 35. In this case evidence of panch witness Mukund Buja (pw14) who is examined at Exh.55 is said to be doubtful, because he has acted as panch in another test identification parade held by Special Judicial Magistrate Pathan. It is also said that he is a stock panch. Even if we keep aside his statement, still evidence of the Special Judicial Magistrate Pathan (pw7), Nasrinbanu (pw6) and the documents prepared at the time of test identification parade are reliable. Thus in our opinion, the evidence regarding identification of both the appellants by Nasrinbanu (pw6) as culprits who committed the crime, is trustworthy and reliable. 36. The prosecution examined Radhakrishna Nayyar (pw12) at Exh. 49. He was a colleague of appellant no.1. He was examined to prove the offence under Section 201 of the Indian Penal Code by appellant no.1 i.e. for proving that the appellant washed his blood stained clothes on the next day morning at 7.00 a.m. This witness stated that on 18.10.1987 at 10.00 p.m. he gave okay report to his superiors. He was residing with 20 to 25 military persons in a barrack. He further stated that appellant no.1 was in same barrack. The lights were switched off at 10.30 p.m. However, appellant no. 1 Khalilkhan and other military men were chitchatting till 12.00 mid night. At 5.30 a.m. he got up and found appellant on his cot. The witness was examined to show that appellant had washed his clothes on the next day morning. But he stated something for which he was not examined by the prosecution and, therefore, permission was granted to the learned Public Prosecutor to put questions in the nature of cross-examination to this witness. Thus, this witness was declared hostile. The witness was examined to show that appellant had washed his clothes on the next day morning. But he stated something for which he was not examined by the prosecution and, therefore, permission was granted to the learned Public Prosecutor to put questions in the nature of cross-examination to this witness. Thus, this witness was declared hostile. Then he admitted that there are separate military police and it is their duty to see whether any military man goes to city without permission. He also admitted that some time military men go in the city without permission and, therefore, checking is done. Thus, it is argued before us by learned Additional Public Prosecutor that this part of admission of witness Radhakrishna (pw12) shows that there were instances of military persons leaving their barracks and going to the city and as such military police are there in order to check the same. This witness was also suggested that he was deposing falsely that he was chitchatting with appellant no. 1 and others till 12.30 mid night. He was confronted with his statement before police recorded on 20.10.1987, in which he stated that he went to bed at 10.30 p.m. and got up at 5.30 a.m.. So his statement that he was chitchatting with appellant no. 1 and others till 12.30 p.m. was an improvement. Contradiction to that effect was duly proved. He denied that he had seen appellant no. washing his clothes at 7.00 a.m. Portion marked ’B’ to that effect was confronted. He was also confronted with his statement before police that his barrack and the barrack of the appellant are near each other. Thus as per the statement of this witness before police his barrack and the barrack of appellant no. 1 were different and not the same and his statement that he gave okay report and Khalilkhan was in the same barrack is false. He admitted that he has good relations with appellant no. 1. It was suggested that he was deposing falsely. 37. Learned advocate for the appellants cited the case of Radha Mohan Singh @ Lal Saheb & Ors. vs State of U.P. (2006 AIR SCW 421). In that case it is observed that evidence of hostile witness cannot be rejected in toto merely because prosecution chose to treat him as hostile and cross-examined him. 37. Learned advocate for the appellants cited the case of Radha Mohan Singh @ Lal Saheb & Ors. vs State of U.P. (2006 AIR SCW 421). In that case it is observed that evidence of hostile witness cannot be rejected in toto merely because prosecution chose to treat him as hostile and cross-examined him. His evidence can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. It is argued that the statement of Radhakrishna (pw12) that appellant no. 1 was chitchatting with him till mid night be accepted. In our opinion, considering the total testimony of Radhakrishna (pw12) he is won over by appellants and deposing falsely and so cannot be trusted. 38. So far as motive is concerned, prosecution examined three witnesses. Main witness is Kuljeetkaur (pw4). She was working as Steno in G.S.Branch, H.Q. A.C. Centre and School, Ahmednagar since 1979. She was knowing deceased Imtiyaz who was working as U.D.C. in Education Branch. She was also knowing appellant no. 1 who was her husband working in same office. Kuljeetkaur (pw4) and appellant no. 1 married on 9.6.1987. After marriage she was residing with her parents and appellant no. 1 was residing in military barrack. According to Kuljeetkaur (pw4) relations between appellant no. 1 and deceased Imtiyaz were normal and official. There were certain disputes between them on account of official work. So far as this part is concerned, appellant no. 1 in his statement under Section 313 of the Criminal Procedure Code has admitted while answering questions nos. 6 and 7 that there were some disputes between him and deceased Imtiyaz till 1986, however, thereafter there was no dispute. 39. There is one letter at Exh. 36 addressed by deceased Imtiyaz to the Commandant, Headquarters, A.C.Centre and School, Ahmednagar dated 22.10.1986, in which it is stated that at 1110 hours on 22.10.1986 while speaking on telephone appellant no. 1 Khalilkhan had been rude to him and has used words, which can be translated as, "I will teach you a lesson, if not here, in city" and for giving such threat deceased Imtiyaz has made complaint. There is reference to earlier instance when deceased Imtiyaz was attending tele duty accompanied by Kuljeetkaur (pw4) and at that time appellant no. 1 had entered the tele room and raised quarrel with him. Ramjit Singh and Rahim Sabu were the witnesses. There is reference to earlier instance when deceased Imtiyaz was attending tele duty accompanied by Kuljeetkaur (pw4) and at that time appellant no. 1 had entered the tele room and raised quarrel with him. Ramjit Singh and Rahim Sabu were the witnesses. It is further stated that deceased Imtiyaz was afraid due to threats and felt that there was danger to his life. This letter was proved by Bajirao Jadhav (pw8) and he asked deceased regarding the said application and the deceased told him that previously he was in love with Kuljeetkaur and whenever he used to go to office he used to meet Kuljeetkaur and on that account appellant no. 1 Khalilkhan used to hate him and so he has placed application before their boss. So, according to the prosecution the application Exh. 36 given by deceased Imtiyaz to his superior on 22.10.1986 shows the background. There is no reason to disbelieve said deposition of Bajirao Jadhav (pw8). 40. However, it is further stated that the said dispute was settled amicably and thereafter document Exh.41 came into existence which is signed by Imtiyaz Shaikh in which it is stated as follows : " There is no any dispute with Dfr/clk K.Khan, AC and myself and I have no concerned with his private life. However, I will touch all matters with him on the official my application dated 22 Oct. submitted earliest will return to me." Similarly, at Exh.42 the present appellant no.1 has given in writing regarding said dispute with Imtiyaz as follows : " 2. I am also taking back my words whatever I told him on telephone on 22 Oct. 1986. 3. However I will touch with him on official matter only. " 41. Kuljeetkaur (pw4) was declared hostile as she had not told the entire truth according to the prosecution. It was suggested in cross-examination to Kuljeetkaur (pw4) that appellant no. 1 was knowing that she had love affair with deceased Imtiyaz and on that account there was quarrel between appellant no. 1 and deceased Imtiyaz. She also denied that appellant no. 1 had suspected her chastity. She stated that she has not stated the said portion marked ’B’ before police. However, P.S.I. Shejul (pw17) has proved said portion marked ’B’ at Exh.79 as stated by Kuljeetkaur (pw4). 1 and deceased Imtiyaz. She also denied that appellant no. 1 had suspected her chastity. She stated that she has not stated the said portion marked ’B’ before police. However, P.S.I. Shejul (pw17) has proved said portion marked ’B’ at Exh.79 as stated by Kuljeetkaur (pw4). Though Kuljeetkaur has denied said portion having stated to police during her deposition in Court, in the evidence of P.S.I. Shejul he proved the said portion marked ’B’ (which is given Exh.79 subsequently). Portion marked ’A’ is to the effect that, Kuljeetkaur had relations with deceased Shaikh Imtiyaz from 1980. So in this case, though Kuljeetkaur (pw4) has denied the motive alleged by the prosecution with which she was confronted, her earlier statement before police proved at Exh. 78 cannot be ignored. 42. It was suggested to Nasrinbanu (pw6) in her cross-examination and to her brother Shaikh Rais (pw9) that deceased has cheated people by giving false promises of sending them to Dubai and of giving employment and that one Washerman had also come to house of deceased who was demanding Rs.500/- for 15 days from Imtiyaz. Evidence of P.S.I. Shejul shows that he has interrogated said Washerman. So far as other suggestions are concerned, those are not admitted by any witness. So there is no basis to believe that deceased Imtiyaz has any other enemy. 43. Certain dates are worth considering at this stage. Marriage of appellant no. 1 Khalilkhan and Kuljeetkaur (pw4) was performed on 9.6.1987. On 30.9.1987 both went and purchased a stamp paper for securing divorce. Said divorce-deed was written on 1.10.1987, but it was not executed on that day. Admittedly divorce-deed was executed on 15.10.1987. There is statement to that effect of Kuljeetkaur (pw4) in her deposition at Exh.23. Appellant no.1 Khalilkhan in his statement under Section 313 of the Criminal Procedure Code has also specifically admitted said facts while answering question nos. 2 to 4 and 6 and 7. 44. It has also come in the evidence of Radhakrishna Nayyar (pw12) that 18.10.1987 was last day of duty of appellant no. 1 and thereafter he was to be relieved as he had to go to join new posting at the place of transfer. We find reference to the order of transfer in document Exh. 44. Exh. 43 is leave application of 40 days and Exh. 44 is letter of posting at Jodhpur on transfer. While answering question nos. 1 and thereafter he was to be relieved as he had to go to join new posting at the place of transfer. We find reference to the order of transfer in document Exh. 44. Exh. 43 is leave application of 40 days and Exh. 44 is letter of posting at Jodhpur on transfer. While answering question nos. 49 and 50 appellant no. 1 Khalilkhan had admitted that he had filed application for leave Exh.43 and he also received transfer order Exh. 44. 45. So from above circumstances, it is clear that it must be appellant no. 1 Khalilkhan who must have attacked deceased Imtiyaz due to suspicion regarding relations between Kuljeetkaur (pw4) and deceased Imtiyaz. Before he was leaving Ahmednagar he wanted to settle scores regarding old dispute with deceased Imtiyaz. There is reason to believe that appellant no.1 Khalilkhan was holding deceased Imtiyaz responsible for his broken marriage. That is clear from sequence of events. On 9.6.1987 there was marriage between appellant no.1 and Kuljeetkaur (pw4). On 30.9.1987 both purchased a stamp paper. On 15.10.1987 divorce took place between them. The incident occurred on 18.10.1987 i.e 3 days after divorce. So, if we consider the totality of the circumstances, in our opinion, the motive is obvious in spite of Kuljeetkaur (pw4) turning hostile to prosecution. It is case of appellant no.1 that he of his own rushed to police station in the morning of 19.10.1987 when he learnt that Kuljeetkaur was taken to the police station. His rushing to the police station even after divorce shows that he was afraid that Kuljeetkaur would spill the beans. In fact police arrested him as soon as he was in the police station. 46. Learned Additional Public Prosecutor cited the case of Pandurang Gopal Khade & Ors. vs State of Maharashtra (2005 ALL MR (Cri) 1891) to show that when presence of witnesses is natural and their testimony is reliable and trustworthy, such testimony cannot be discarded merely because the witnesses are closely related to the deceased. He also argued that motive even if not sufficiently explained, that itself cannot be the reason to reverse the finding given by the trial Court based on material placed on the record. 47. There is one more circumstance appearing on record and it is that appellant no. 1 sustained injuries. Dr. He also argued that motive even if not sufficiently explained, that itself cannot be the reason to reverse the finding given by the trial Court based on material placed on the record. 47. There is one more circumstance appearing on record and it is that appellant no. 1 sustained injuries. Dr. Pathak (pw15) has examined appellant no.1 Khalilkhan on 21.10.1987 at 12.15 p.m. and found following injuries : "1. Linear abrasion 3 c.m. long on left side of forehead, showing scabs. 2. Faint abrasion 1 c.m. x 1 c.m. left upper lateral chest. 3. Linear abrasion 2 c.m. on right thaner eminence laterally. 4. Abrasion left index finger on proximal phylanges 1 c.m. long ventrally. " The injuries were simple caused within 36 hours and could have been caused by hard and blunt object. Dr. Pathak (pw15) proved medical certificate Exh. 62 to that effect. Appellant no. 1 stated that on 17.10.1987 while playing Kabbaddi he had sustained said injuries. But learned Sessions Judge rejected the said explanation given under Section 313 of the Criminal Procedure Code saying that no foundation was laid for said explanation and the time is more closer to the incident in question. 48. There is one more clinching piece of evidence which goes to the root of the matter. During evidence of P.S.I. Shejul (pw17) and in the evidence of panch Mukund (pw14), it is brought on record that accused no. 1 while he was in police custody, gave statement that he would produce his shoes and socks from his barrack. Memorandum to that effect was prepared. Thereafter accused no. 1 Khalilkhan led police and panchas to his barrack and produced shoes and socks having blood stains from one black colour steel box and same were attached. Those were identified as articles 14 and 15. Memorandum and seizure panchanamas are at Exhs. 59 and 57 respectively. Similarly blue colour pant, white T-shirt and bicycle were attached at the instance of accused no. 1 though they were not discovered and same were attached under panchanama Exh. 58. Those are articles 16 to 18. Similarly, appellant no. 2 also produced his clothes as well as shoes and socks which were articles 19 to 22. 49. The clothes of deceased, the blood stained articles found at the spot, clothes of Nasrinbanu (pw6) and other articles including knife attached were sent to the Chemical Analyser with letter Exh. 58. Those are articles 16 to 18. Similarly, appellant no. 2 also produced his clothes as well as shoes and socks which were articles 19 to 22. 49. The clothes of deceased, the blood stained articles found at the spot, clothes of Nasrinbanu (pw6) and other articles including knife attached were sent to the Chemical Analyser with letter Exh. 69 and the reports of the Chemical Analyser are at Ex. 70 and 71. It is clear that the pair of shoes and socks of appellant no. 1 Khalilkhan were blood stained and they bore human blood. No blood was found on the clothes of appellants which are articles nos. 17 to 20. Blood stain was found on the shoes of appellant no. 2 but not on the pair of socks. Exh. 71 shows that the blood found on the knife, handkerchief found on the spot, clothes of the deceased and the blood found on the pair of shoes and socks of appellant no. 1 were all of ’O’ group. 50. So considering the totality of the circumstances we find evidence of the eye witness reliable and trustworthy. We also find that there was motive. The evidence of blood stains on the shoes and socks of appellant no. 1 corroborate prosecution case further. It is case of the prosecution that appellant no. 1 has washed clothes worn by him at the time of the incident on the next day morning at 7.00 a.m. 51. It is argued before us by Mrs.Jadhav, learned counsel for the appellants that appeal is pending for almost 19-20 years and, therefore, appellants should be acquitted. The law on the subject is very clear. Such long pendency does not absolve the appellants of the crime committed by them. Nor that can be a consideration for acquittal of the appellants. At most such circumstance can be considered while awarding punishment. However, in this case, so far as appellant no. 1 is concerned, minimum punishment of life imprisonment is awarded for the offence of murder committed by him. So far as appellant no. 2 is concerned, though trial Court acquitted him of offence punishable under Sections 302 r/w 34 of the Indian Penal Code, in the facts and circumstances of the case, we 52. Considering the totality of the circumstances, in our opinion, the prosecution has proved its case. So far as appellant no. 2 is concerned, though trial Court acquitted him of offence punishable under Sections 302 r/w 34 of the Indian Penal Code, in the facts and circumstances of the case, we 52. Considering the totality of the circumstances, in our opinion, the prosecution has proved its case. The learned Additional Sessions Judge has properly appreciated entire evidence correctly and in proper perspective. We agree with the finding of facts recorded by him. In the circumstances the appeal has no merit and the same is dismissed. Appellants to surrender to their bail for undergoing remaining terms of sentence have reservation regarding the same. However, in this case there is no appeal by the State against the said acquittal. Learned counsel for the appellants, after pronouncement of the judgment, makes a request for granting four weeks time to appellant no.2 to surrender, as his children are taking education. We are not inclined to grant time. The request, therefore, stands rejected.