Z. K. SAIYED, J. The appellant-original accused has filed this appeal, under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 27-3-1998 passed by the learned Additional City Sessions Judge, Court No. 10, Ahmedabad, in Sessions Case No. 39 of 1992, whereby the learned Additional Sessions Judge has held the appellant-original accused No. I guilty for the offence under Sec. 331 of I. P. Code and sentenced him to undergo rigorous imprisonment of 7 (seven) years and to pay a fine of Rs. 10,000/- in default to further undergo R.I. of one year. The learned Judge has ordered that fine, if recovered shall, in full, be paid towards the compensation to witness - Motiben Bababhai, mother of the deceased, after the period of appeal and if appeal is preferred, after disposal of the said appeal. The learned Judge has acquitted remaining original accused Nos. 2, 3, 4 and 5 from the charges levelled against them. The learned Judge has also acquitted all the accused, including the appellant, for the offence under Sec. 302 read with Sec. 34 of I. P. Code and for the offence under Sec. 201 read with Sec. 34 of I. P. Code. 2. The brief facts of the case of prosecution are that one Prahladbhai Bababhai was informed to have been involved in the theft of cement from the railway wagon whereby committed the offence under Sec. 317 of the R.P. (U.P.) Act, 1957. It is alleged that for the purpose of rounding up, all the accused have left the R. P. F. post and went to Girdharnagar area in Makubhai's Chawl, Ahmedabad. The accused was taking rest in his house. It is alleged that all the accused went to his house and dragged him out from his house, in presence of witness and taken him to the Railway track and started beating him severely, and thereafter, taken the deceased in a rickshaw to R.P.F. post, stationed at Ahmedabad Railway Station. It is the case of the prosecution that all the accused were having common intention to cause murder of deceased Prahladbhai and they had beaten him with iron pipe, hunter and stick and by giving fist and kick blows. It is the case of the prosecution that all the accused were having common intention to cause murder of deceased Prahladbhai and they had beaten him with iron pipe, hunter and stick and by giving fist and kick blows. It is alleged that all the accused beaten the deceased in furtherance of their common intention to extract confession to get information in detection of an offence which had been registered for the theft of cement, under Sec. 317 of the R. P. (U.P.) Act, 1957. It is alleged that because of the injuries the deceased had expired on the next day. Thereafter, on 6-4-1990, offence has been registered. It is the case of the prosecution that an attempt was made to destroy the evidence and the pant of the deceased, put on by him, had been changed at the time when panchnama was registered at R. P. F. post and such the complaint was lodged by Motiben Bababhai, mother of deceased. The offence came to be registered. 3. Investigation was carried out by the police. The statements of the complainant and other witnesses were recorded. Thereafter, after completion of investigation, the charge-sheet against the accused persons came to be submitted before the learned Magistrate's Court. As the offences were triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. To prove the case against the accused, the prosecution has examined 15 witnesses and also relied upon certain documents and at the end of trial, after recording the statement of the accused under Sec. 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge held the appellant-original accused No. 1 guilty of the offences under Sec. 331 of I. P. Code and awarded sentence as narrated hereinabove. However, the learned Judge has acquitted all the accused Nos. 1 to 5 for the offence under Sec. 302 read with Sec. 201 read with Sec. 34 of I. P. Code. The learned Judge has also acquitted original accused Nos. 2, 3, 4 and 5 for the offence under Sec. 331 read with Sec. 34 of I.P. Code, vide the impugned judgment and order. 5. 1 to 5 for the offence under Sec. 302 read with Sec. 201 read with Sec. 34 of I. P. Code. The learned Judge has also acquitted original accused Nos. 2, 3, 4 and 5 for the offence under Sec. 331 read with Sec. 34 of I.P. Code, vide the impugned judgment and order. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence, the appellants-accused have preferred this appeal. 6. Heard learned Advocate Mr. K.J. Shethna, appearing on behalf of the appellants-accused and learned A.P.P. Mr. H.L. Jani on behalf of the respondent-State. I have gone through the judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case. 7. It is pertinent to note that in the present case, five accused were arrested and the charge-sheet was filed against them. Out of five accused, the present appellant-accused No. 1 has been held guilty by the learned Additional Sessions Judge and he was convicted and remaining accused Nos. 2 to 5 have been acquitted by the Sessions Court. However, the State has not preferred any acquittal appeal challenging the said judgment of acquittal passed by the Sessions Court. 8. Learned Counsel Mr. Shethna for the appellant-original act used has read the charge and also narrated the facts of the case. He has first read (Exh. 49) entry in station diary and also read oral evidence of P. W. 2Dr. Prashant Mukundbhai Bhansali (Exh. 25) and contended that from the oral evidence of this witness, it appears that on 4-4-1990 this witness was Medical Officer at L. G. Hospital at Ahmedabad. He deposed that on that day he had examined one Prahladbhai Babubhai and gave treatment as an out-door patient. He has deposed that during his examination, he found one wound on right temporal region and another on his right hand between thumb and index finger. He also found swelling over his right hand and left foot and right foot and suspected dislocation of left ankle. This witness has referred the patient to the Surgical Registrar for examination. This witness has issued certificate of injury vide Exh. 26. Mr. Shethna has read the deposition of this witness (Exh. 25) and the Certificate (Exh. He also found swelling over his right hand and left foot and right foot and suspected dislocation of left ankle. This witness has referred the patient to the Surgical Registrar for examination. This witness has issued certificate of injury vide Exh. 26. Mr. Shethna has read the deposition of this witness (Exh. 25) and the Certificate (Exh. 26) and contended that the opinion of this witness shows that the injury which was found on the body of deceased Prahladbhai can be possible due to fall. He has contended that the evidence of Medical expert is required to be considered not in part, but as a whole. As per the evidence of Medical Officer, the injury is possible by fall on railway track and the learned Judge has not considered the said evidence in favour of the present appellant. Mr. Shethna has contended that when the possibility of receiving injury by a fall then it is the duty of the Court to consider the said aspect. He has contended that the original accused No. 1 (present appellant) has never caused any injury to the deceased and the said version gets support from the evidence of mother of the complainant. He has contended that the appellant cannot be convicted for the offence under Sec. 34 I. P. Code when; out of 6 accused, one had expired and others are accused. 9. Mr. Shethna has read the judgment and order of Sessions Court, more particularly, Paras 17 and 19, and contended that from the oral evidence of defence witness, examined by the appellant-accused before the learned Judge, and looking to the evidence of defence witness, it is clearly established that the prosecution has failed to prove its case beyond reasonable doubt. He has read the charge and contended that as per the case of prosecution, six persons are shown as accused and from the contents of charge no substantial charge is framed against the present appellant-accused. He has also contended that when the doubt is already created then the learned Judge cannot convict the present appellant. He has read the oral evidence of the witnesses and contended that looking to the identification parade, the case against the appellant-accused is not proved by the prosecution beyond reasonable doubt. Mr. He has also contended that when the doubt is already created then the learned Judge cannot convict the present appellant. He has read the oral evidence of the witnesses and contended that looking to the identification parade, the case against the appellant-accused is not proved by the prosecution beyond reasonable doubt. Mr. Shethna has also read the oral evidence of P. W. 10 - mother of the deceased and contended that the evidence of mother of deceased is not reliable, trustworthy and acceptable. He has read the complaint, more particularly, Para 2 and contended that none of the accused have been identified by the complainant and the complainant has also not identified others in the Court and during the identification parade also. Mr. Shethna has contended that when the identification of the appellant is not established and proved then the present appellant cannot be convicted for the offence alleged against him. 10. Mr. Shethna has read Para 14 of the judgment of the trial Court and contended that it is self-conflicting findings of the learned Judge. Mr. Shethna has read the contents of evidence regarding mole and other signing for the first time and even during investigation also it was not explained. He has also contended that the said conduct creates doubt and when sufficient ' doubt is created then the benefit of doubt is required to be given to the appellant. 11. Mr. Shethna has read the charge as well as the fact of the case and contended that the alleged incident took place on 4-4-1990 and the identification parade was held on 21-4-1990 at 2-20 hours i. e. after 17 days of alleged incident, and therefore, it has no value in the eyes of law. He has also read further evidence and contended that at the time when the identification parade was held, the present appellant-accused was in lockup, and therefore, the oral evidence of complainant, regarding identification parade, creates doubt. Mr. Shethna has also read the pane/mama of identification parade and contended that the dummies, who were called by the maker of identification parade, is not as per the direction of the Hon'ble Supreme Court. He has read the name of dummies, their age, etc. and contended that when the dummies are not chosen by the Executive Magistrate, then the panchnama of T. I. parade has no value and it creates some doubt. He has read the name of dummies, their age, etc. and contended that when the dummies are not chosen by the Executive Magistrate, then the panchnama of T. I. parade has no value and it creates some doubt. He has also read the oral evidence of complainant and contended that the name of P.S.I. is not explained by the complainant. He has contended that the deceased was arrested in some other offence. He has contended that the appellant was P.S.I. and how he was identified by the mother of deceased? He has also contended that T. I. parade was held at a belated stage, and therefore, delay caused in holding the T. I. parade creates some doubt. Mr. Shethna has contended that when the T. I. parade creates some doubt then the question of identification parade automatically is washed out, and therefore, the judgment and order of the trial Court is not proper and as per the provision of Law. 12. Mr. Shethna has contended that from the oral evidence of mother of the complainant, alleged incident was seen by her just at a distance within 15 steps. In her evidence, there are material contradictions. He has contended that characteristic of the evidence is also required to be considered and from the cross-examination it is established beyond reasonable doubt that the oral evidence of mother of the complainant is not trustworthy, reliable and acceptable. He has also read the oral evidence of Dr. Bhise, who has done the post-mortem and contended that the same is also creating some doubt. He has read the date and time of incident and contended that the alleged offence took place on 4-4-1990 at noon time then how Dr. Bhise, maker of post-mortem can say the age of injury. Even in his cross-examination also no reason is given, and therefore, his evidence creates sufficient doubt, and therefore, the said witness is not reliable witness. 13. Mr. Shethna has also read the evidence of P.W. 3-Ramanbhai (Exh. 27), who alleged to have witnessed the incident. He has contended that looking to the cross-examination of this witness in Para 3, the alleged incident is not proved and the evidence of this witness also creates some doubt. He has contended that the complainant has deposed that when the deceased was beaten by the present appellant and others, she was shouting "they have killed my son, save him". He has contended that looking to the cross-examination of this witness in Para 3, the alleged incident is not proved and the evidence of this witness also creates some doubt. He has contended that the complainant has deposed that when the deceased was beaten by the present appellant and others, she was shouting "they have killed my son, save him". However, she has not taken any steps in connection with the said offence committed by the present appellant and others. He has also read the oral evidence of P. W. 5- Mahendrabhai (Exh. 29) and contended that from the evidence of this witness, the prosecution has failed to prove its case beyond reasonable doubt. He has also read the contents of yadi and argued that over-writing made in the said yadi creates some doubt and it is proved beyond reasonable doubt that from the over-writing made in the yadi, it creates some doubt, and therefore, it is concocted document. Mr. Shethna has also contended that during identification parade, the appellant was not covered with any mask and he was shown to the witness. He has also read further evidence of panchnama of identification parade and oral evidence of witness and contended that during the identification parade, the present appellant was in "kurta and payjama" and he was not advised to change his dress to show difference between the dummies, who were called by the maker of identification parade and the appellant was never advised or suggested the present appellant to change his dress "kurta and payjama". He has conter;ded that from the evidence of prosecution witnesses, it is not proved that who caused grievous injury to the deceased and when the role of accused is not proved then the appellantaccused No. 1 could not be held guilty by the learned Judge. 14. Mr. Shethna has read the ingredients of Sec. 331 of I. P. Code and contended that looking to the ingredients of Sec. 331 of I. P. Code the prosecution could not establish the case against the appellant beyond reasonable doubt. He has contended that the alleged incident has occurred on 6th April, 1990 and the learned Judge has pronounced the judgment 27th March, 1998 and today we are in 2011, that means, after about 21 years, it would not be desirable to send the appellant behind the bars. He has contended that the alleged incident has occurred on 6th April, 1990 and the learned Judge has pronounced the judgment 27th March, 1998 and today we are in 2011, that means, after about 21 years, it would not be desirable to send the appellant behind the bars. Therefore, the judgment and order passed by the learned Judge is required to be quashed and set aside and the appellant be acquitted from the charges levelled against him. 15. Mr. Shethna has relied upon the decision of the Hon'ble Apex Court in the case of Somappa Vamanappa Madar v. State of Mysore, reported in 1980 (1) SCC 479 , more particularly Para 13 of the said decision, which reads as under : "13. The learned Counsel challenged the identification parade held by P.W. 31 Taluka Magistrate, as being unreliable. The trial, Court was of the view that it cannot be said from the evidence on record that the witnesses had no opportunity to see the accused till they identified them in the identification parade held in the jail. There is no evidence worth the name adduced by the prosecution to show that precautions were taken, and if at all any precaution was taken to see that the witnesses either did not see the accused or they had no opportunity to see them before the identification parade. The learned Counsel was justified in his comment that the second accused was arrested a few days earlier and that he was in police custody and that he was produced before the Magistrate for remand and that there is nothing in the panchnama prepared by the Taluka Magistrate to show that either he questioned the accused if he was shown to the witnesses or he himself questioned the witnesses if they had seen the accused. The High Court rejected the evidence regarding identification of A-3. Considering all the circumstances we think much reliance cannot be placed on the identification parade regarding the establishment of the identity of the third accused. But, so far as A-1 and A-2 are concerned it is clear that both of them were apprehended and the witnesses had ample opportunity to note their features at that time and identify them. The proceedings in the identification parade discloses that A-2 was identified by most of the eyewitnesses. But, so far as A-1 and A-2 are concerned it is clear that both of them were apprehended and the witnesses had ample opportunity to note their features at that time and identify them. The proceedings in the identification parade discloses that A-2 was identified by most of the eyewitnesses. Because of some defence in proceedings relating to the identification parade, we will not be justified in rejecting the evidence of the witnesses regarding participation of A-2." In the present case, it is not the case that during the production of the accused before the learned Magistrate, the learned Magistrate has not made any question to the witnesses whether they have seen the accused or not and when such defence is not taken, the question of identification cannot create any doubt. 16. Mr. Shethna has then relied upon the decision in the case of Ravi @ Ravichandran v. State Represented by Inspector of Police, reported in 2007 (15) SCC 372. In the said decision, it is observed by the Hon'ble Apex 'Court that: "..:.... T.I. parade is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. In the said decision, it is observed by the Hon'ble Apex 'Court that: "..:.... T.I. parade is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. In the present case, photographs of appellant-accused taken in police station were published in a local daily with caption that they were the accused in Tirupur murder case - age of the persons who had been selected for test identification parade had not been noted by the Magistrate, who conducted test identification parade - Besides, no person having similar scar mark on his hand as that of appellant was put on Test Identification parade - P. W. 2, who had come to identify after the first witness was sent to the same place where P. W. 1 was sent immediately after the test identification parade - Chance of their disclosure about the appellant to P. W.3 and others could not be ruled out - Publication was made on 16-8-1993, while T.I. parade held on 24-8-1993 - Held, purported Test Identification parade which was held ten days thereafter, loses all significance, in the aforementioned fact situation - Moreover, witnesses were not very sure as to whether they had seen the appellant before - Had the accused been known, their identity would have been disclosed in F.I.R. - In a case of this nature, it was incumbent upon prosecution to arrange a Test Identification parade - such Test Identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper - Conviction cannot be based on a vague identification - Impugned judgment unsustainable, and hence, set aside. " I have gone through the decision cited by Mr. Shethna. In my opinion, this decision of Hon'ble Apex Court will not be applicable to the facts of the present case. 17. Mr. Shethna has also relied upon the decision of the Hon'ble Apex Court in the case of Musheer Khan Alias Badshahkhan v. State of Madhya Pradesh, reported in 2010 (2) SCC 748 . Mr. Shethna has mainly relied upon Paras 19 to 21 and 27 to 32 of the said decision. 17. Mr. Shethna has also relied upon the decision of the Hon'ble Apex Court in the case of Musheer Khan Alias Badshahkhan v. State of Madhya Pradesh, reported in 2010 (2) SCC 748 . Mr. Shethna has mainly relied upon Paras 19 to 21 and 27 to 32 of the said decision. Looking to the facts of the present case, the decision cited by Mr. Shethna would not be applicable in the present case. 18. Mr. Shethna has then relied upon the decision in the case of State of Goa v. Sanjay Thakran, reported in 2007 (3) SCC 755 , more particularly Paras 23 to 25 of said decision, in which the Hon'ble Supreme Court has observed that "Evidence Act, 1872 - Sec. 9 - Test Identification parade Irregularity in - Dummy accused put in T. I. parade were not of similar age as that of accused - Held, it created a serious doubt regarding the fairness of test identification". After going through the observation of Hon'ble Apex Court, Mr. Shethna has contended that in the present case when sufficient doubt is created regarding fairness of identification parade, then the prosecution has failed to prove its case beyond reasonable doubt. In my opinion, the said decision would not be applicable to the facts of the present case. 19. Mr. Shethna has also relied upon the decision of the Hon'ble Apex Court in the case of Vijayan v. State of Kerala, reported in 1999 SCC (Cri.) 378. The said decision, cited by Mr. Shethna, in my opinion, would not be applicable to the facts of the present case. After going through the above observations of the Hon'ble Apex Court, Mr. Shethna, learned Counsel has finally argued that in this case the prosecution has not proved the role of present appellant and his presence at the scene of offence. He has also contended that the T.I. parade also creates some doubt. During the identification the dummies kept in T.I. parade were not of a similar age as that of accused and they are also not of same height and status in appearance as that of the appellant. He, therefore, contended that the learned. Judge has committed serious error in holding the appellant-original accused No. 1 guilty and wrongly convicted the appellant-accused. During the identification the dummies kept in T.I. parade were not of a similar age as that of accused and they are also not of same height and status in appearance as that of the appellant. He, therefore, contended that the learned. Judge has committed serious error in holding the appellant-original accused No. 1 guilty and wrongly convicted the appellant-accused. He has also contended that the State has also not challenged the judgment and order of acquittal passed in favour of other remaining accused. He, therefore, contended that looking to the facts and evidence on the record and looking to the fact that the alleged incident was occurred in 1990 and now in 2011 i.e. it will not be appropriate to send the accused in jail, and therefore, the appellant-accused may be given benefit of doubt and he may be acquitted. He has contended that looking to the facts and circumstances and looking to the evidence on record, the prosecution has failed to establish its case beyond reasonable doubt, and therefore, the judgment and order of conviction and sentence passed by the trial Court is required to be quashed and se~ aside. He has also contended that the sentence imposed by the learned Judge is very harsh. He has contended that the appellant is a Government servant and since 1990 the case against the appellant is pending, and therefore, some leniency may be shown towards the appellant. 20. Learned A. P. P. has supported the judgment and order passed by the Sessions Court and contended that looking to the seriousness of offence no interference of this Court is called for. He has also gone through the evidence of prosecution witness as well as the witnesses examined on behalf of defence and contended that even from the oral evidence of defence witnesses, the presence of appellant at the scene of offence is proved beyond reasonable doubt. He has contended that from the oral evidence of Medical expert, on 4-4-1990 at 8-00 p.m., the deceased Prahladbhai was admitted in the hospital and it is also admitted position that he died on the next day i.e. on 5-4-1990. He has contended that from the oral evidence of Medical expert, on 4-4-1990 at 8-00 p.m., the deceased Prahladbhai was admitted in the hospital and it is also admitted position that he died on the next day i.e. on 5-4-1990. He has contended that the dead body of deceased Prahladbhai was sent for post-mol1em on 6-4-1990 at 9-00 a. m. and the postmol1em was carried out at 10-30 a.m. on that day which was completed at 1.20 p.m. He has read the internal as well as external injuries received by the deceased and also gone through the medical evidence and contended that looking to the post-mortem report, the injuries received by the deceased were possible by hard, blunt and linear objects and such injuries are not possible by falling down. He has also read the evidence of P. W. 2 - Dr. Prashant Mukundbhai Bhansali (Exh. 25) and contended that in his crossexamination also, this witness has deposed that swelling on the right hand, left foot and right foot is not possible by falling on the railway track. He has read the oral as well as documentary evidence of the witnesses and contended that the muddamal articles were recovered after very long time, and therefore, blood marks on the muddamal sticks could not have been found. He has contended that though the deceased had received serious injuries, he was not admitted as an indoor patient, but he was given treatment as an outdoor patient. He has contended that from the medical expert's opinion the injuries are not possible by the fall which shows that the deceased was beaten by the appellant and was caused serious injuries. He has contended that on account of presence of R.P.F. officer, out of which one of the officers was involved in the commission of offence, though the deceased has received 20 injuries, only "4" injuries have been shown on the person of deceased. 21. Mr. Jani, learned A.P.P. has read the contents of entry No. 47 made in the station diary and contended that from the said document it is proved that the deceased was in police custody of present appellant. He has read the oral evidence of P.W. 14-Parasnath Amirsing (Exh. 48) and contended that the said entry in the station diary was made by this witness. He has read the oral evidence of P.W. 14-Parasnath Amirsing (Exh. 48) and contended that the said entry in the station diary was made by this witness. From the evidence of this witness, it appears that on the day of incident, at 7-00 p.m. P.S.I. Sanjaysinh and others have brought the deceased Prahladbhai and noting for the same was done by the appellant-original accused No.1. He has contended that it is an admitted position that deceased was brought from his house at 1-30 in the mid-night and his custody was shown at 7-00 p.m. He has read the oral evidence of P.W. 9-Dr. Bhise (Exh. 36) and from his evidence it clearly appears that the injuries were received by the deceased within 48 hours. Mr. Jani has also read the oral evidence of Defence Witness No.3 (Exh. 65) and also read the contents of Exh. 63 and contended that the appellant has tried to establish concocted story. He has contended that in the arrest panchnama, the arrest of the deceased is not drawn. He has read Sec. 8 of the Evidence Act and contended that the conduct of the accused creates sufficient doubt. He has contended that from the defence version also it clearly appears that the defence has never made any attempt to show that F.I.R. was registered against the deceased. He has fairly admitted that even without any F.I.R. the police has right to investigate any offence. Mr. Jani has also read the evidence of defence witness Prataprao Govindrao Deshmukh (Exh. 66) and contended that from the evidence of this witness it appears that on 4-4-1990 at 8-00 p.m. he received the information that theft of cement bags was committed on Ahmedabad to Sabarmati Railway line, in which name of Prahl ad (deceased) was disclosed, and therefore, he has directed the accused No. 1 to arrest the deceased - accused at noon on that day. How it is possible? Therefore, the conduct of defence witness creates some doubt. 22. Mr. Jani has relied upon a decision of Hon'ble Apex Court in the case of Mullu v. State of U. P., reported in.20lO (2) GLH 471 (SC) : 2010 (3) SCC 508 and contended that the Hon'ble Apex Court has considered the question of identification. How it is possible? Therefore, the conduct of defence witness creates some doubt. 22. Mr. Jani has relied upon a decision of Hon'ble Apex Court in the case of Mullu v. State of U. P., reported in.20lO (2) GLH 471 (SC) : 2010 (3) SCC 508 and contended that the Hon'ble Apex Court has considered the question of identification. Head Note "A" of the decision of Hon'ble Apex Court reads as under : "(A) Criminal laws - Evidence Act, 1872 - Sec. 9 - Identification parade - Evidence of Test Identification parade belongs to the stage of investigation by police - The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial - The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in Cr.P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial - Identification made in Court for the first time can be used as corroborative evidence - Delay in conducting identification parade - Not fatal. " Mr. Jani has, therefore, contended that in view of above observation of the Hon'ble Supreme Court, delay in conducting Identification parade would not be fatal to the case of prosecution. 23. Mr. Jani has also relied upon a decision in the case of Mahabir v. State of Delhi, reported in 2008 (2) GLH 538 (SC) : AIR 2008 SC 2343 . In the said decision the Hon'ble Apex Court has observed, as under: "Criminal Laws - Test Identification - Evidence Act, 1872 - Sec. 9 - Indian Penal Code, 1860 - Sec. 34, Sec. 302, Sec. 394 - Evidence of Test Identification Parade - Not substantive evidence - The substantive evidence is identification in Court - However, after arrest of accused, it is desirable to hold Test Identification Parade as early as possible Identification at trial for the first time is a weak evidence - Case-law discussed." 24. Mr. Jani has contended that the deceased was arrested on 4-4-1990 and the present appellant was arrested on 19-4-1990, i.e. after 15 days. T.I. parade was held on 21-4-1990, that means, the T.I. parade was conducted within two days after the arrest of the appellant, and therefore, no delay is caused for holding T.I. parade. Mr. Jani has contended that the deceased was arrested on 4-4-1990 and the present appellant was arrested on 19-4-1990, i.e. after 15 days. T.I. parade was held on 21-4-1990, that means, the T.I. parade was conducted within two days after the arrest of the appellant, and therefore, no delay is caused for holding T.I. parade. He has, therefore, contended that the prosecution has proved its case beyond reasonable doubt. The role of the present appellant in the alleged incident is also proved beyond reasonable doubt. He has read the judgment and order of the trial Court and contended that the learned Judge has properly considered the oral as well as documentary evidence, and therefore, no interference is called for and the judgment and order of the trial Court is required to be confirmed. 25. I have gone through the judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. 26. From the perusal of entry made in the station diary (Exh. 49), which is on the record, it clearly appears that all the accused had gone to the place of deceased Prahlad and had taken him to R.P.F. post. From the contents of Exh. 49 the entry is very clear and the same has been made by the accused No. 1 - present appellant in his own hand-writing. I have also perused the cross-examination of the witness and I have not found any sufficient explanation regarding the entry made by the present appellant in station diary. I have also perused the evidence of four material witnesses who are examined by the prosecution and from their oral evidence, they have visualized from which the present assailant had been clearly identified by mother of deceased even during the Test Identification parade also. I have not found any sufficient reason to say that the oral evidence of the mother of the deceased can be discarded vis-a-vis other circumstantial evidence. I have also perused the cross-examination of the mother of the deceased in which she has categorically established that how she had identified the present appellant. She has also categorically deposed that she had found one mole on the face, near the nose of the appellant and on that basis she has identified him. I have also perused the cross-examination of the mother of the deceased in which she has categorically established that how she had identified the present appellant. She has also categorically deposed that she had found one mole on the face, near the nose of the appellant and on that basis she has identified him. Even in cross-examination also the defence could not be able to establish that the prosecution has not proved the identification of the present appellant. 27. From the deposition of medical expert P. W. 9 - Dr. Ravindra Bhise (Exh. 36), who has conducted the post-mortem examination of deceased Prahladbhai, he has categorically deposed in his deposition that as many as 20 external injuries and as many as 7 internal injuries were found on the body of deceased. In the opinion of this witness, all the injuries were possible by beating the person with hard and blunt substance. As per the opinion of Medical Expert, .the cause of death is due to shock as a result of the injuries sustained. The injuries are caused by hard, blunt and linear objects. Shoe print type injuries are found on the body. He has opined that the death has occurred within 48 hours of the post-mortem examination. I have also verified the theory of defence in which the defence has stated that the deceased had fallen down on the railway track and received injuries. I have verified the evidence, and in my opinion, the theory of defence can be easily discarded that due to fall on railway track only, 20 external injuries have been caused which is not possible. I have also perused Exh. 63 panchnama regarding physical condition of deceased in which the defence has tried to establish that due to the fear of arrest the deceased started running and he fell on the railway track and sustained the injuries. The story is not believable, but it seems that to save the skin of the appellant and others, such type of story is put up in the panchnama. 28. I have also perused the deposition of P. W. 2 "C" Dr. Prashant Bhansali (Exh. 25). On the day of incident, he was Casualty Medical Officer in L. G. Hospital, at Ahmedabad. As per deposition of this witness, at about 8-00 p.m. deceased Prahlad was brought before him and he had examined. 28. I have also perused the deposition of P. W. 2 "C" Dr. Prashant Bhansali (Exh. 25). On the day of incident, he was Casualty Medical Officer in L. G. Hospital, at Ahmedabad. As per deposition of this witness, at about 8-00 p.m. deceased Prahlad was brought before him and he had examined. He has found one wound on right temporal region and another wound was found on his right hand between thumb and index finger. Swelling was found over his right hand and left foot and right foot. This witness had suspected dislocation of left ankle. The deceased was referred to surgical ward and as per his opinion, the said injuries can be possible by muddamal lathi. I have perused the case papers also. In cross-examination of this witness, he has categorically deposed that so far as head injury is concerned, it is the only injury which can be possible by fall, but swelling is not possible by falling on the railway track. He has deposed in his cross-examination that whether such injuries are possible by stick or not has never been asked by the Investigating Officer. In his re-examination by the learned A. P. P. he has categorically deposed that injuries are not possible by one fall on the railway track. 29. The prosecution has also examined P.W. 6 - Dr. Bina Kiritkumar Kothari (Exh. 30). She has deposed that on 5-4-1990 she had examined the deceased. She has deposed that at the time when she examined, Prahladbhai was dead. She has also issued Certificate Exh. 31. From the perusal of the papers, it clearly appears that Prahladbhai had expired when he was examined by this witness at 11-05, and therefore, the story put forward by the defence is not believable. 30. Dr. Bhise (Exh. 36) had performed post-mortem of the deceased. In column No. 17 he has given the details of the wounds which were found on the body of deceased Prahladbhai. He found in all 20 external injuries on the body of deceased, viz. Stitched wound was found on left frontal region about 6 cms. above the left eye-brow, stitched wound on right parietal region, stitched wound on right hand on the dorsal aspect of first web. He had also found contusion and abrasions on the body which were found in horse-shoe shaped. Semi-lunar contusion on front of right side of chest was also found. above the left eye-brow, stitched wound on right parietal region, stitched wound on right hand on the dorsal aspect of first web. He had also found contusion and abrasions on the body which were found in horse-shoe shaped. Semi-lunar contusion on front of right side of chest was also found. Diffused swelling was found on the lower part of the forearm. In Para 3 of his deposition Dr. Bhise has stated that some internal injuries were caused due to external injuries which are narrated in column No. 17. Internal injuries are narrated in Column No. 19 and lastly, he has opined that all those above injuries were sufficient in ordinary course of nature to cause the death. It is also stated by him that death may have been occurred within 48 hours of the post-mortem examination. It is also stated by him that external injuries Nos. 8, 9, 10, 11, 12 and 18 were possible by muddamal which is shown to him in the Court. External injuries Nos. 5, 19, 20 and 1 to 3 and 6 and 7 can be caused by hard and blunt substance or by coming into contact with hard and blunt substance or fall. In cross-examination, it is made clear by him that the age of injury can be determined from the colour of wounds. 31. I have also considered the deposition of (i) Rameshbhai Ganeshbhai (Exh. 27), Jadiben Ramabhai (Exh. 28), and Mahendrabhai Dhulabhai (Exh. 29), who were present at the time when the incident took place. All the witnesses have deposed that it was noon hours at about 1-30 and during their presence at the place of offence, about 5 to 6 police men came, who were from Railway police. The witnesses have categorically stated that some were having pipes, lathi and one was having hunter with him. They have taken Prahladbhai from his house to the Railway track and beaten Prahladbhai. I have also considered the deposition of (i) Rakeshkumar Ramswarup (Exh. 32), (ii) Jaipal Narayandas (Exh. 34) and (iii) Bharatbhai Keshavlal (Exh. 46) who alleged to have present during the preparation of different panchnama. Exh. 47 is the panchnama of scene of offence, Exh. 33 is the panchnama of R.P.F. post and Exh. 35 is the panchnama of recovery of weapons. Witness Motiben (Exh. 32), (ii) Jaipal Narayandas (Exh. 34) and (iii) Bharatbhai Keshavlal (Exh. 46) who alleged to have present during the preparation of different panchnama. Exh. 47 is the panchnama of scene of offence, Exh. 33 is the panchnama of R.P.F. post and Exh. 35 is the panchnama of recovery of weapons. Witness Motiben (Exh. 38), mother of deceased, has deposed' that at 1-30 noon 5 R.P.F. personnel had come to her house and had taken Prahladbhai for inquiry of theft of cement bags from railway godown and after reaching the railway line, passing through Girdharnagar area, all the accused had started beating Prahladbhai. She has deposed that she had immediately went to the track where the accused No. 1 told her that "why she had given birth to such a child". This witness has clearly identified the accused in the Court. At the same time, she has identified three other persons in the Court, but the same is a misidentification. She has categorically deposed that 5 persons have come to her house and out of which one was having revolver with him, other three were having sticks and pipes with them and one was having wire hunter. She has deposed that on the next day one police van came to her house and taken her along with them under the pretext that she is called at Kalupur Office and then she was taken to the hospital where the dead body of her son was identified by her. She has stated that she had given complaint in writing, which was drafted by one Advocate, which is on record at Exh. 39. 32. Witness Hasambhai Dawoodbhai (Exh. 22), who was the Executive Magistrate, had held the Test Identification parade on 21-4-1990. He has deposed that yadi was sent to him by the Investigating Officer on 16-4-1990. This witness has given all the details as to how the Identification parade was held by him. Panchnama (Exh. 24) was also prepared. This witness has deposed that he had called the complainant Motiben and in his presence she had identified the accused persons. Other witnesses could not identify any of the accused. Witness Gambhirsinh Surajpalsinh has been examined at Exh. 40. Panchnama (Exh. 24) was also prepared. This witness has deposed that he had called the complainant Motiben and in his presence she had identified the accused persons. Other witnesses could not identify any of the accused. Witness Gambhirsinh Surajpalsinh has been examined at Exh. 40. He has deposed that he was on duty as Rakshak on 5-4-1990 from 10 a.m. to 6-00 p.m. He has deposed that accused No.1 has directed him to take one person i.e. Prahladbhai to the hospital. He has stated that. Prahladbhai was in R.P.F. custody. He has deposed that nothing has been found by him except that Prahladbhai was movementless. He has deposed that at about 10-40 hours on the same day the doctor has informed him that Prahladbhai had expired. It is pertinent to note that in all 20 injures were found on the person of deceased, however, this witness is having an audacity to say that nothing was found by him on the person of the accused. It is nothing but an outcome of Khakhi relationship. 33. I have also gone through the evidence of defence witnesses, examined on behalf of defence. D.W. 1-Sadasinh Narayansinh (Exh. 62) is the Inspector of R.P.F. post at Ahmedabad. He was summoned to come with the file of C.R. No.5 of 1990 of R.P.F. post, Ahmedabad. He has produced one panchnama (Exh. 63), which was prepared on 4-4-1990 in between 19-15 to 19-45 hours. Though, this witness has stated certain things, but, it is clear from the record that the said panchnama was prepared by accused No. 1 himself. D.W. 2-Mafabhai Jivabhai has admitted that panchnama (Exh. 65) was prepared in his presence. This witness was doing cobbler work just near the Railway station. He has deposed that the panchnama was prepared in his presence and deceased Prahladbhai told him that he had fallen on the Railway track when R.P.F. personnels were chasing him. D.W. 3-Prataprao C. Desmukh (Exh. 65) has deposed that on 4-4-1990 he was serving as Inspector on the R.P.F. post at Ahmedabad. At about 8-00 hours in the evening he came to know that theft of cement has been committed and the name of Prahladbhai has been disclosed as one of the accused. He had instructed the accused No. 1 to inquire into the matter. 65) has deposed that on 4-4-1990 he was serving as Inspector on the R.P.F. post at Ahmedabad. At about 8-00 hours in the evening he came to know that theft of cement has been committed and the name of Prahladbhai has been disclosed as one of the accused. He had instructed the accused No. 1 to inquire into the matter. At the time when the theft was committed, none was present, but thereafter, immediately he went to the place where the theft is said to have been committed. He has stated that the name of Prahladbhai was disclosed as one of the accused, residing near Girdharnagar Jhupadpatti. He has stated that he had gone to the area where he had not seen any of the R.P.F. personnel. It is stated by him that at about 7-00 in the evening accused No.1 had come with Prahladbhai at R.P.F. post, where he had inquired from the deceased that how he sustained injuries for which he had replied that he had fallen down on the railway track. Accused No.1 was instructed to send Prahladbhai for treatment and panchnama was prepared. He has also referred the panchnama (Exh. 63). He has deposed that he was informed by Parasnath (Exh. 48) that Prahladbhai (deceased) was feeling better. On the next date, after he returned from Baroda at his office, at that time, he came to know that Prahladbhai, who was in custody, had expired. He had inquired into the matter and had asked some questions to Assistant Sub-Inspector Harbansinh, Rakshak - Ramswaroop and Maheshpal. He had not recorded the statement of those persons as police case was already lodged. This witness has categorically deposed that he is not knowing whether the death of Prahladbhai has been registered in the post diary or not. He has also not stated that what was the result of inquiry which he had made. D.W. 4-Ramswarup Gokulchand (Exh. 66) has stated that he was on duty during night hours along with one Rakshak Maheshpal. He has stated that as there was no facility of water supply in the computer building, therefore, he had been to the post for taking water and at that time he had seen Prahladbhai shouting loudly and asking for water and at that time Rakshak Vijaysinh was in-charge of this deceased and he was giving lathi blows to the deceased. He has stated that as there was no facility of water supply in the computer building, therefore, he had been to the post for taking water and at that time he had seen Prahladbhai shouting loudly and asking for water and at that time Rakshak Vijaysinh was in-charge of this deceased and he was giving lathi blows to the deceased. This witness has deposed that he has requested Vijaysinh not to give him lathi blows and then he returned back and informed Maheshpal regarding this fact. He has clearly identified the said person being deceased Prahladbhai. 34. It is evident from the record that panchnama (Exh. 63) was prepared on that day in the evening and no injuries were shown in the panchnama.. Witness Gambhirsinh Surajpal (Exh. 40) has stated that at the time when he took Prahladbhai to the hospital in the morning hours on 5-4-1990, he was found movementless and inactive, hut, it is not stated by him that he was dead at that time. Dr. Bina Kothari (Exh. 30) has categorically stated that on 5-4-1990 at 11-00 a.m. she found Prahladbhai as dead. Witness Gambhirsinh (Exh. 40), who had accompanied the deceased for medical treatment has stated that Prahladbhai was alive at the time when he took him in the custody for taking him to the L. G. Hospital and Dr. Kothari has stated that she has found Prahladbhai as dead. If the deposition of Gambhirsinh is considered then it can be said that Prahladbhai might have expired on the way to L.G. Hospital from R.P.F. post. If at all it was so, then also the panchnama was not prepared at the time when he was sent to the Hospital for treatment. At that time, nobody had noticed any injuries on the person of deceased, which were 20 in numbers. Therefore, it is clearly established that the witnesses have tried to suppress the fact from the Court. It is nothing, but, an attempt to shield the superior officers and brother Rakshak from the clutches of law. It is nowhere stated by witness Gambhirsinh that Prahlad had expired on the way to L. G. Hospital. It means that at the time when Prahlad was taken to the Hospital, he had already expired and it can be said that it was a custodial death. It is nowhere stated by witness Gambhirsinh that Prahlad had expired on the way to L. G. Hospital. It means that at the time when Prahlad was taken to the Hospital, he had already expired and it can be said that it was a custodial death. Injuries were caused to the deceased in between 1-30 p.m. on 4-4-1990 to 11-00 a.m. of the day when the death was committed in the custody only. 35. From the contents of panchnama (Exh. 63) which was prepared in the evening, no injuries have been shown in the said panchnama. As per the deposition of witness Gambhirsinh (Exh. 40), at the time when he took Prahlad in the hospital in the morning hours on 5-4-1990, he was found idle and inactive, but, it is not stated by him that Prahl ad was dead at that time. From the oral evidence of Dr. Bina Kothari (Exh. 30) Prahlad was declared' dead on 5-4-1990 at 11-00 a.m. Witness Gambhirshinh who has accompanied, the deceased for medical treatment to the L.G. Hospital, and as per evidence of this witness when he took Prahladbhai from the custody to L.G. Hospital, he was alive. However, when Prahladbhai was taken to the Hospital, as per the evidence of Dr. Kothari, she found Prahladbhai as "dead". It is, therefore, proved beyond reasonable doubt that Prahladbhai had expired on the way to the L.G. Hospital from R.P.F. post. 36. As per evidence of P. W. 14- Parasnath (Exh. 48), it clearly appears that at the time when deceased Prahl ad was produced before this witness in R.P.F. post, all the four accused were present there along with accused No. 1, and the entry was made in the diary by accused No. 1. This is sufficient to establish the involvement of the accused in the alleged crime. 37. I have also perused the judgment and order of the trial Court. In Paras 9 to 19 of the judgment, the learned Judge has considered the evidence of prosecution as well as defence witnesses, their cross-examination as well as the probable defence made by the present appellant-accused. 38. The atrocities within the precincts of police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are. 38. The atrocities within the precincts of police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this situation, the Law Commission in its 113th report recommended amendments to the Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the Police official concerned. Keeping in view the dehumanizing aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, the Government and the Legislature must give serious thought to the recommendation of the Law Commission and bring about appropriate charges in the law not only to curb the custodial crime, but also to see that the custodial crime does not go unpunished. The Courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the case of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed. 39. Learned Counsel Mr. Shethna for the appellant has contended that the prosecution has not examined the material witnesses, but from the perusal of papers, I have not found any substance in the contention of Mr. Shethna. The prosecution has examined material witnesses to prove its case beyond reasonable doubt. Therefore, the argument of learned Counsel Mr. Shethna that when the material witnesses are not examined then the case of prosecution would fatal, is not believable. 40. Shethna. The prosecution has examined material witnesses to prove its case beyond reasonable doubt. Therefore, the argument of learned Counsel Mr. Shethna that when the material witnesses are not examined then the case of prosecution would fatal, is not believable. 40. The Hon'b1e Apex Court in a recent decision in the case of Prakash Kadam v. Ramprasad Vishwanath Gupta, in Criminal Appeal Nos. 1174-1178 of 2011 (arising out of S.L.P. (Cri.) Nos. 3865-69 of 2011), decided on 13th May, 2011 (re90rted in 2011 AIR SCW 3113), has categorically held in Paras 2S and 26 of the said decision, as under : "25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake encounters are nothing, but cold-blooded, brutal murder by persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties. " "26. We warn policemen that they will not be excused for committing murder in the name of encounter on the pretext that they were carrying out the orders of their superior officers or politicians, however, high. In the Nuremburg trials the Nazi war criminals took the plea that 'orders are orders', nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake encounter, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The' 'encounter' philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of 'encounter' and get away with it should know that the gallows await them." 41. In view of above observation of the Hon'ble Apex Court, in my opinion, the contention of Mr. Shethna that the sentence is very harsh is not acceptable. The trial Court has rightly held the accused guilty of the offence for which he has been convicted and also the sentence awarded is just and adequate, and hence, no interference is called for. Shethna that the sentence is very harsh is not acceptable. The trial Court has rightly held the accused guilty of the offence for which he has been convicted and also the sentence awarded is just and adequate, and hence, no interference is called for. I am in full agreement with the findings given and reasons assigned by the learned Additional Sessions Judge and there are no cogent and convincing reasons to take different view than the view taken by the learned Additional Sessions Judge. Hence, Appeal requires to be dismissed. 42. Accordingly, this appeal is dismissed. The judgment and order dated 27-3-1998 passed by the learned Additional Sessions Judge, Court No. 10, Ahmedabad, in Sessions Case No. 39 of 1992, holding the appellant-original accused No.1 guilty for the offence punishable under Sec. 331 of I.P. Code is hereby confirmed. If the appellant-accused No. 1 is on bail, his' bail-bonds stand cancelled and he is directed to surrender before the trial Court within six weeks from the date of receipt of writ of this order to serve the sentence awarded to him, failing which the trial Court is directed to issue non-bailable warrants against the accused to effect his arrest. R. & P. to be sent back to the trial Court. Appeal dismissed.