JUDGMENT : 1. The appellant stands convicted under sections 304-Part II of the Indian Penal Code and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1000/- and in default, to suffer R.I. for 3 months. The corresponding judgment passed on 16-3-1994 by Fourth Additional Sessions Judge, Jabalpur in S.T. No. 226/87 is the subject-matter of challenge in this appeal. The appellant was jointly tried with co-accused Subodh, Paras and Dalchand upon the charges of the offences punishable under sections 341, 294, 506-B and 302/302 read with 34 of the Indian Penal Code. By that judgment only, the co-accused were acquitted of all the charges whereas the appellant was also not found guilty in respect of the other charges. Admittedly, the State has not preferred any appeal against the order of acquittal. 2. Prosecution story, in short, may be narrated as under - (i) The first informant Sushila Trivedi (PW4) is the Mausi (aunt) of Ajay (since deceased). At the relevant point of time, she was residing in Sangam Colony at Jabalpur and her brothers namely Premshankar (PW3), Ramashankar and Krapashankar Shukla, the father of Anjula Shukla (PW7), were living in village Bhedaghat. (ii) To greet her brothers on the festive occasion of Bhaidooj (the second day as per lunar calendar after the festival of Holi) falling on 17-3-1987, Sushila had gone to their house on a scooter driven by Ajay. In their return trip, Anjula also joined them. At about 8.30 p.m., as they reached near Pisanhari Ki Madiya, two unacquainted lads followed them on a Luna moped and started teasing the ladies by making indecent taunts. On being objected to, the miscreants, while hurling abuses, intercepted the scooter by overtaking and after parking the moped in front of the scooter, they started beating Ajay and one of them, wearing a red coloured bush-shirt, pierced a pointed object into left thigh of Ajay. Sustaining the injury, Ajay fell down and was rendered unconscious. Although, he was immediately taken to the Medical College Hospital yet, his life could not be saved. Sustaining the injury, Ajay fell down and was rendered unconscious. Although, he was immediately taken to the Medical College Hospital yet, his life could not be saved. (iii) It was upon the FIR (Ex.P-5) lodged by Sushila at 8.45 p.m., that a case under sections 341, 294, 506 and 307 of the Indian Penal Code was registered at P.S. Garha against the unidentified assailants and consequent upon the death of Ajay, it was converted into a case under section 302 of the Indian Penal Code. (iv) During investigation, the appellant was apprehended on 19-3-1987 and at his instance, the weapon of offence, which was in the shape of a Barmi (Gimlet) and bloodstained red shirt were recovered. Co-accused Subodh, Paras and Dalchand were also arrested. (v) At the test identification parade conducted by Executive Magistrate M.S. Patel (PW9), both Sushila and Anjula identified the appellant as the person who had caused the injury that ultimately proved fatal to Ajay. (vi) After due investigation, charge-sheet in respect of the offences punishable under sections 294, 341, 506, 307 and 302 read with 34 of the Indian Penal Code was submitted in the Court of CJM, Jabalpur, who committed the case to the Court of Session for trial. 3. The appellant denied the charges and pleaded false implication at the instance of police. According to him, immediately after his arrest, Sushila and Anjula were made to identify him as the assailant at the police station only. Veracity of the evidence relating to Test Identification Parade was also questioned inter alia on the ground of his physical 40% disability in the left leg. 4. To bring home the charges, the prosecution examined 11 witnesses in all including Sushila, Anjula and Kailash Prasad as the eyewitnesses to the incident. In defence, as many as 6 witnesses including the medical experts who had occasion to treat the appellant during the period from 18-5-1979 to 30-5-1979 at the Medical College Hospital were summoned. 5. Upon a critical appraisal of the entire evidence on record, learned trial Judge, for the reasons assigned in the impugned judgment, concluded that the guilt of the appellant in causing death of Ajay was proved beyond a reasonable doubt. 5. Upon a critical appraisal of the entire evidence on record, learned trial Judge, for the reasons assigned in the impugned judgment, concluded that the guilt of the appellant in causing death of Ajay was proved beyond a reasonable doubt. However, observing that in absence of necessary intention, it was not possible to convict the appellant for the offence of murder, he proceeded to convict the appellant for the offence of culpable homicide not amounting to murder and sentenced him as indicated hereinabove. 6. Legality and propriety of the conviction have been assailed on the following grounds - (i) The FIR (Ex.P-5) was not recorded at the time it is said to have been scribed, (ii) The statements of eyewitnesses were materially inconsistent to each other, (iii) As disclosed in the FIR, the person causing injury to Ajay was not previously known to the first informant Sushila (PW4) and the eyewitness named therein viz. Anjula (PW7) and their evidence regarding identification of the appellant as the author of the injury was not reliable in view of - (a) absence of details, in the FIR, of the physical feature of the appellant, who is a handicapped person. (b) delay in holding test identification parade and evidence suggesting that even before that the appellant was shown to eyewitnesses. (c) non-mixing of similarly handicapped persons with the appellant in the test identification parade. In response, learned Dy. Govt. Adv., while making reference to the incriminating pieces of evidence, has contended that the conviction was fully justified. 7. In order to appreciate the merits of the rival contentions in the right perspective, it is necessary to first advert to the medical evidence available on record. 8. Incidentally, the Autopsy Surgeon Dr. B. M. Shrivastava (PW8) is the medical expert, who had occasion to examine Ajay before admitting him to Medical College Hospital for treatment. According to him, he had noticed an incised (stab) wound measuring 1 cm x ½ cm, depth of which was not ascertainable, on left side of pubis symphysis and also found that Ajay though conscious, getting fainting attacks. The corresponding report (Ex.P-10) was also tendered in evidence. According to him, he had noticed an incised (stab) wound measuring 1 cm x ½ cm, depth of which was not ascertainable, on left side of pubis symphysis and also found that Ajay though conscious, getting fainting attacks. The corresponding report (Ex.P-10) was also tendered in evidence. His findings at the post-mortem examination, as recorded in the report (Ex.P-9), may be reproduced as under - "Body pale, stab wound on left pubis region, 1 cm x ½ cm x depth as follows, it was 1" lateral to midline, piercing skin, muscle soft tissue, cutting bladder over postero-superiorly, tearing peritoneum posteriorly entering abdomen to right of midline, cutting small intestine partially, entered retro-peritonial cavity, retroperitoneal cavity was full of clotted thick blood which was more than 3 litres, soft tissue, drenched dark clotted blood vessel were injured in retro-peritonial space, partially making vent into external iliac vein". In his opinion, cause of Ajay's death was haemorrhagic shock caused by injury to bladder intestine and external iliac vein (large vessel). In the cross-examination, no dispute was raised as to the cause of death as ascertained by the autopsy surgeon. 9. Now, the question that arises for consideration is as to whether the injury was caused by the appellant only ? 10. Sushila (PW4) substantially reiterated the facts as recorded in the FIR (Ex.P-5) at her instance only. She clearly deposed that the appellant, wearing a red coloured bush-shirt, was one amongst the boys who, on a moped, had started following the scooter on which she & Anjula were sitting as pillion riders and also teasing them by making indecent comments from a place situated near Dhanvantari Nagar. According to her, - Ajay, who was driving the scooter, had to stop it for resuming supply of petrol from the reserve fuel thereof and, at this point of time only, the moped was parked in front of the scooter and the appellant, while hurling abuses, had beaten Ajay whereas his companions called the other accused persons from a nearby shop, wherein business in the name of Sahyogi Tent House was being carried out, and all of them assaulted Ajay and in the course of the joint assault, the appellant struck with a long pointed instrument at left thigh of Ajay who, while crying "Mausi Mausi", rushed to her and fell into her lap. Sushila was cross-examined at length with reference to the recitals of the FIR (Ex.P-5) and contents of the case diary statement (Ex.D-1) scribed by SHO Om Prakash Saxena (PW11) but nothing significant could be brought in her cross-examination as to the incriminating assertions as against the appellant. 11. The evidence of Sushila drew ample support from the eyewitness account given by Anjula Shukla (PW7). However, learned Senior Counsel has pointed out two glaring discrepancies in their evidence - (i) As per statement of Sushila, the weapon of offence was provided to the appellant by one of the co-accused, who had come to the spot on being called by the driver of the moped whereas Anjula, after corroborating the statement of Sushila in the chief examination, refuted the same in the cross-examination. (ii) In Para 6 of her statement, Sushila clearly admitted that it was the moped driver who had dealt the blow with the pointed object on the thigh of Ajay whereas according to Anjula, the injury was inflicted by the pillion rider. In addition, he has also highlighted the fact that evidence of Sushila and Anjula as to involvement of all the co-accused in causing death of Ajay was discarded in view of serious infirmities in respect of respective roles played by each one of them. However, fact of the matter is that they, being blood relations of the deceased, were not likely to spare the real assailant and implicate an innocent person. Their presence at the spot was also corroborated by Kailash Prasad Barman (PW10) who had rendered necessary assistance in taking the injured Ajay to Medical College Hospital. He further claimed to have advised Sushila to lodge a report at the police station. As per his statement, on hearing commotion, while taking meals in his house situated near Pisanhari ki Madiya, he rushed to the spot and found that the brother of a young girl who was addressing their companion as 'Mausi' was lying in an injured and unconscious condition near the culvert on the road leading to Bhedaghat and the bystanders were saying that son of Munim of the Madiya had caused the injury. Moreover, he was not cross-examined in respect of these constituent incidents of the transaction, that were relevant under section 6 of the Evidence Act as res gestae. Moreover, he was not cross-examined in respect of these constituent incidents of the transaction, that were relevant under section 6 of the Evidence Act as res gestae. His evidence could not be rejected on the ground that he was declared hostile by the prosecution (See Bhagwan Singh vs. State of Haryana, AIR 1976 SC 202 ). As the corresponding contents of the FIR (Ex.P-5) were also in conformity with his evidence, it was not possible to hold that the FIR was ante-timed. 12. It is relevant to note that Anjula's evidence did not suffer from any taint. She categorically stated that driver of the moped was wearing a white T-shirt whereas the appellant, who was sitting as pillion rider was clad in a red coloured bush-shirt. Both Anjula and Sushila had remained consistent on the point that amongst the boys who pursued them on a Luna moped, the one wearing red bush-shirt was responsible for causing death of Ajay. 13. Executive Magistrate M.S. Patel (PW9) testified that the appellant was individually identified by Sushila (PW4) and Anjula (PW7). The recitals of corresponding memo (Ex.P-1) further reflect that on 28-4-1987 i.e. nearly 41 days after the incident in question, the appellant was identified by his face only. 14. Learned Senior Counsel, while inviting attention to the decision of the Apex Court in Soni vs. State of U. P., (1982) 3 SCC 368 (1), has contended that lapse of 42 days from the date of the arrest of the appellant was sufficient to throw grave doubt on his identification. Reference has also been made to the pronouncement in Subhash vs. State of U. P., AIR 1987 SC 1222 wherein conviction based on identification in the parade held after delay of 4 months was set aside observing that the witnesses had not given any description of the accused either in their FIR or in their statements during investigation. However, as explained by the Supreme Court in Brij Mohan vs. State of Rajasthan AIR 1994 SC 739 , no time limit can be fixed for holding TI parade. Accordingly, the Court is only required to find out whether the witness had sufficient opportunity to see the features of the appellant and had not been shown to him before the parade. Accordingly, the Court is only required to find out whether the witness had sufficient opportunity to see the features of the appellant and had not been shown to him before the parade. Although Abhay Pyasi (DW1) and Vinod Kumar (DW2) came forward to support the defence that the appellant was shown to Sushila and Anjula at the police station yet, in absence of corresponding complaint to any higher authorities of police, their evidence was rightly ignored as unconvincing. 15. The testimony of Dr. H.K.T. Raja (DW5), Dr. R.H. Balchandani (DW6) and Dr. Ravi Tandekar (DW7) was sufficient to prove that the appellant had remained admitted to the Medical College Hospital for treatment of injuries in the form of fractures in both the bones of left leg during the period from 18-5-1979 to 30-5-1979. In his statement on oath recorded on 4-3-1994, Dr. R. H. Balchandani clearly opined that the appellant still suffered from equinus deformity in his left leg that made him identifiable by such a distinctive feature amongst a group of persons. In the light of the expert evidence, too much stress has been laid on the fact that the appellant, being a handicapped person, could easily be identified by the abnormality in gait. However, as explained by Sushila as well as Anjula, none of them had any occasion to notice the disability of the appellant, who was wearing a full pant. According to them, they had identified the appellant by his face only. The FIR (Ex.P-5) also did not contain the description of the assailant as a person with deformity in his leg. In such a situation, non-mixing of similarly handicapped persons with him in the Test Identification Parade did not assume any significance. 16. In this way, none of the contentions raised against evidentiary value of the TI parade is reasonably acceptable. This apart, Test Identification Parade, not being a substantive evidence, cannot be used to corroborate statement of identifying witness, in the Court that constitutes a substantive testimony. It is well settled that evidence as to identification of the accused for the first time in the Court is also not totally irrelevant and inadmissible. This apart, Test Identification Parade, not being a substantive evidence, cannot be used to corroborate statement of identifying witness, in the Court that constitutes a substantive testimony. It is well settled that evidence as to identification of the accused for the first time in the Court is also not totally irrelevant and inadmissible. Law on the subject was explained by the Apex Court in Budhsen vs. State of U.P., AIR 1970 SC 1321 in the following words - "Facts which establish the identity of an accused person are relevant under section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration." 17. Looking at the circumstances leading to infliction of the injury that was found fatal to Ajay on the festive day of Bhaidooj, neither his cousin nor Mausi was expected to forget face of the person who had subjected them to such a traumatic and unforgettable experience and, therefore, the face of the author of the injury could easily be treated to have been imprinted in their mind. In this view of the matter, their assertion that appellant had inflicted the thigh injury by means of a long pointed instrument was worthy of credence. 18. In this view of the matter, their assertion that appellant had inflicted the thigh injury by means of a long pointed instrument was worthy of credence. 18. Thus, in the light of overwhelming evidence establishing identity of appellant as the person who had caused Ajay's death, his conviction in question deserves to be maintained as well merited. 19. This brings me to the question of sentence. At the relevant point of time, the appellant was aged about 24 years. Thereafter, a considerable period of more than 22 years has already elapsed and, in the meanwhile, the appellant has suffered imprisonment for a period of nearly 2 years and 4 months. Taking into consideration the social impact of the crime and other relevant circumstances of the case, interests of justice would be met if the term of custodial sentence for the offence punishable under section 304-Part II of the Indian Penal Code is reduced to 5 years. 20. Consequently, the appeal is allowed in part. The impugned conviction of the appellant is hereby affirmed. However, the term of consequent custodial sentence is reduced from 10 years to 5 years. 21. Appellant is on bail. He is directed to surrender to his bail bonds before trial Court on or before 15-10-2009 for being committed to the custody for undergoing remaining part of the sentence.