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2017 DIGILAW 776 (CAL)

Amirul S. K. v. State of West Bengal

2017-09-14

AMITABHA CHATTERJEE, RAKESH TIWARI

body2017
JUDGMENT : Amitabha Chatterjee, J. 1. Both the Criminal Appeal No. 302 of 2008 and Criminal Appeal No. 352 of 2008 are taken up together for hearing as those appeals arose out of self-same judgment of conviction and order of sentence dated 29.1.2008/30.1.2008 passed by the learned Additional Sessions Judge, 3rd First Track Court, Berhampore, Murshidabad in Sessions Case No. 321/2007 convicting them under section 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for 3 years for the offence under section 302/34 of the Indian Penal Code. The prosecution Case to put in brief is that the de-facto complainant Ambika Paul aged about 15 years daughter of Naren Paul, of village Chandpur Kutipara, P.S. Nawda, District Murshidabad lodged a written complaint before the O.C. Nawda police station Nawda District Murshidabad to the effect that on the night of 27.6.2006/28.6.2006 after eating the de-facto complainant along with her brothers and sisters and with their parents were sleeping at varanda of their house. About 12:30 to 1:00 hrs. six persons young aged came and opened their mosquito curtain. Out of them one person pulled her elder sister and another was pulling her by holding her hands. They raised hue and cry, then her elder brother Santi Gopal aged about 17 years asked them about the reason for the same. Then another person told him to shut up, otherwise he would shoot him. Thereafter, that person shot her elder brother from his pistol. Her brother went to the varanda and he was deeply injured in his chest and oozing blood. After sometime passed her elder brother Santi Gopal died. On hearing their hue and cry some adjacent neighbors came there and they told them about the incident that miscreants came there to outrage modesty of their two sisters and they were pulling them by holding their hands. She would be able to identify them. 2. On the basis of such written complaint the Nawda P.S. G.D. Entry No. 981 Case No. 83 of 2006 dated 28.6.2006 under section 448/354/302/34 of the Indian Penal Code read with section 25/27 Arms Act was registered. She would be able to identify them. 2. On the basis of such written complaint the Nawda P.S. G.D. Entry No. 981 Case No. 83 of 2006 dated 28.6.2006 under section 448/354/302/34 of the Indian Penal Code read with section 25/27 Arms Act was registered. That Case was investigated into and on completion of investigation charge-sheet was submitted under section 448/354/302/34 of the Indian Penal Code read with section 25/27 Arms Act against the present two appellants namely 1. Amirul Sk. @ Amanul @ Amanulla 2. Billal Mondal along with 3. Khaira Sk., @ kaimuddin Sk. and Osman Sk. Thereafter the Case was placed for trial before the Learned Additional Sessions Judge, 3rd, First Track Court Berhampur which framed charge under section 302/34 of the Indian Penal Code against the present two appellants and two others. After conclusion of the trial the learned Additional Sessions Judge held both the appellants Amirul Sk. @ Amanul @ Amanulla 2. Billal mondal guilty and convicted them as aforesaid. While the rest accused persons namely Khaira Sk, @ kaimudding Sk. and Qsman Sk. Were acquitted from the charges levelled against them. 3. The learned Counsel for the appellant Amirul Sk. @ Amanul @ Amanulla while advancing his argument drew our attention to the following loopholes in the judgment of conviction. a. The de-facto complainant Ambika Pau, 1 the P.W. 2 Narendranath Paul father of the victim and P.W.3 Adarinin Paul were declared hostile by the prosecution. b. the appellants were not named in the FLR. c. there is no evidence of recovery of the offending weapon and the offending weapon was not produced before the Court at the time of trial. d. the FSL Report of the pellets alleged to have been recovered from the body of the victim are not exhibited in the Court during the course of trial. e. examination of the appellant under section 313 of the Criminal Proceedings is defective as incriminating materials were not placed by the witness is doubtful. 4. The Learned Counsel for the appellant Billal Sk. Submitted that the only allegation deferred against this appellant is that he was identified in the T.I. Parade. e. examination of the appellant under section 313 of the Criminal Proceedings is defective as incriminating materials were not placed by the witness is doubtful. 4. The Learned Counsel for the appellant Billal Sk. Submitted that the only allegation deferred against this appellant is that he was identified in the T.I. Parade. Both the P.W. 1 and the P.W.6 namely Ambika Paul and Eti Paul who identified this appellant during the TI Parade were declared hostile and this convict was not identified either by P.W.1 or by P.W.6 during the course of trial in the Court room. 5. The learned counsel for the appellant Amirul Sk. @ Amanul @ Amanulla emphatically contended that the conviction cannot be sustained and the appellants are entitled to an order of acquittal by setting aside the impugned judgment and order. The learned counsel for the appellant Amirul Sk. @ Amanul @ Amanulla relied on the decision reported in (2014) 2 SCC(Cri) 417, (2014) 4 SCC 747 , (2016) 3 SCC 108 , (2013) 12 SCC 406 either, the learned counsel for the convict Billal Mondal @ Billal Sk. @ Billal Sk. Mondal relied on the decision reported in 2003 SCC(Cri) 1247, (2010) 2 SCC 748 . 6. Ms. Rituparna De Ghosh Learned Counsel for the state on the other hand, whole heartedly supported the impugned judgment and order of conviction. According to her, the loopholes highlighted by the Learned Counsels for the appellants lose significance in view of the fact that the facts and circumstances of the Case is based on the direct evidence of the witnesses. The learned counsel for the state submitted that it is true that the appellants are not named in FIR. But it is a settled principle of law that the FIR is not an encyclopedia. Not only that, but also non mentioning of the name of the convicts is sufficiently examined by the de-facto complainant. It is also urged by the learned counsel for the state that the convict Billal Mondal @ Billal Sk. @ Billal Sk. Mondal was identified in the test identification parade but he was not identified in course of trial in the Court room was due to the fact that this appellant was not present in the Court room at the relevant point of time. @ Billal Sk. Mondal was identified in the test identification parade but he was not identified in course of trial in the Court room was due to the fact that this appellant was not present in the Court room at the relevant point of time. It is submitted by the Learned Counsel for the state that the P.W.1, P.W.3 and P.W.8 are the witnesses to the inquest report and they also proved "the prosecution Case to the hilt. The sketch map also supports the prosecution Case as it appears from there that the dead body was lying outside the verandah of the premises of the de-facto complainant. It is further submitted by the learned counsel for the state that although the FSL Report regarding recovery of the pellets which were recovered from the dead body of the victim was not exhibited in the court but that is not fatal to the prosecution Case in view of the evidence of the autopsy surgeon who corroborated the ocular evidence of the witnesses. Lastly it is pointed out by the learned counsel for the state that there is no legal bar to record the conviction of the appellants since some of the witnesses including the de-facto complainant were declared hostile by the prosecution. She submitted that it is a settled principle of law that the entire evidence of a witness who is declared hostile cannot be discarded in Toto. The portion of the evidence for the hostile witness which corroborate the prosecution Case must be relied on. In support of her contention the Learned Counsel relied on a decision reported in 2014 (4) SCC 747 she submitted further that non-production of the offending weapon in Court does not hit the merit of the prosecution Case specially when the defence failed to show that any prejudice has been caused to them. Therefore, the appellants have no escape for the crime perpetrated by them and the Learned Trial Court has rightly convicted them under section 302/34 of the Indian Penal Code and passed the appropriate sentence which should be maintained. Ms. Rituparna De Ghosh Learned Counsel for the state finally insisted upon dismissal of the appeal. 7. Therefore, the appellants have no escape for the crime perpetrated by them and the Learned Trial Court has rightly convicted them under section 302/34 of the Indian Penal Code and passed the appropriate sentence which should be maintained. Ms. Rituparna De Ghosh Learned Counsel for the state finally insisted upon dismissal of the appeal. 7. Having regard to the conflicting assertions advanced by the Learned Counsels for the appellants and the learned Counsel for the State in the light of the rulings placed, we find that the prosecution Case is entirely based on the eye-witnesses account of assault and direct evidence to the alleged incident of murder of the victim Santi Gopal Paul. 8. The Hon'ble Supreme Court in several judgments held that the evidence of a hostile witness could not be totally rejected, if given in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the Case of the prosecution or defence may be accepted. The following are some of the judgments rendered by the Hon'ble Apex Court in this regard. 9. In Sat Pal vs. Delhi Administration the Supreme Court while considering the scope of section 154 of the Indian Evidence Act, held, that when a witness is examined and contradicted with the leave of the Court by the party calling him, his evidence cannot as a matter of law, be discarded as a whole. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering evidence of the witness as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given Case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited, the judge should as a matter of prudence, discard his evidence in toto. 10. If in a given Case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited, the judge should as a matter of prudence, discard his evidence in toto. 10. In Rabindra Kumar Dey vs. State of Orissa, the Hon'ble Supreme Court while considering section 154 of the Indian Evidence Act held that whenever a witness called by a party in sought to be cross-examined, the Court must exercise its discretion judiciously. Section 154 of the Indian Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the Court to cross-examine them. 11. In Syed Akbar vs. State of Karnataka the Supreme Court held that declaring a witness hostile is no ground by itself to reject his testimony in toto. His testimony not shaken on material points in cross-examination cannot be brushed aside. 12. In State of U.P. vs. Ramesh Prasad Mishra the Supreme Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the Case of the prosecution or defence may be accepted. 13. In Balu Sonba Sinde vs. State of Maharashtra, reported in 2003 SCC (Crl) 112. The Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. 14. In Bhagatram vs. State of MP, 1990 CrLJ 2407 (MP) a Division Bench of the MP High Court held as follows: The declaration of a witness as hostile one, has not the effect of quashing away his entire evidence and acceptable portions can be acted upon. 15. In Prafulla Kumar Sarkar vs. emperor, AIR 1931 Cal 401 (FB) a full bench of the Calcutta High Court held as follows: The evidence of a hostile witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of the party calling the witness, not is it to be rejected so far as it is in favour of the Opposite Party. It is not also to be rejected so far as it is in favour of the party calling the witness, not is it to be rejected so far as it is in favour of the Opposite Party. The whole of the evidence so far as it affects both parties favourably or unfavourably must go to the Jury for what it is worth. 16. In Khujji vs. State of MP, 1991 SCC (CR) 916 the supreme Court held as follows: The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. 17. The above legal position makes it clear that the evidence of a prosecution witness who turned hostile need not be totally rejected and it can be accepted to the extent his version is found to be dependable. The accused may also take advantage of such portion of the evidence of the hostile witness which is contradictory to the prosecution version. 18. After anxious consideration of the submissions made by the Learned Counsel for the appellant and the learned counsel for the state we are inclined to apply the principle laid down by the Supreme Court in the decisions mentioned above, and concur with the view expressed by the Full bench of the Calcutta High Court in Prafulla Kumar vs. Emperor, AIR 1931 Cal 401 (Full Bench) in this regard. 19. Let us now consider the Case in hand. From the evidence of P.W. 1 Ambika Paul it is evident that on 28.6.2006 at about 1:00 A.M. (Night) they were sleeping in the verandah and thereafter some miscreants entered into their house. One of them was Amanul Sk. Then her parents asked him why they had come thereafter those persons started to pull her and her elder sister Eti Paul by holding their hands. When her father raised hue and cry those miscreants left their house her elder brother came out and at that time Amanul fired at her elder brother and the said elder brother told that Amanul assaulted him. Her elder brother died in that place. This witness identified two persons out of those miscreants in jail. When her father raised hue and cry those miscreants left their house her elder brother came out and at that time Amanul fired at her elder brother and the said elder brother told that Amanul assaulted him. Her elder brother died in that place. This witness identified two persons out of those miscreants in jail. Out of those two identified persons one was present in the Court that is Amanul Sk. This witness also proved the FIR and the same has been marked as Exhibit-L. She also proved her signature in the inquest report (Exhibit-2) and in the Seizure list (Exhibit-3) this witness was declared as hostile. 20. P.W.2. Narendra Nath Paul father of the victim has stated in his evidence that Santi Gopal Paul is his son. On 12th of 1st Asharat about 12:30 to 12:45 Hrs.(night) they were sleeping in the Verandah with his daughter, wife and son. At that time he found that some persons were flashing torch. Then he asked them and they told that they were men of police. Thereafter he heard the shout of his daughters and thereafter he heard the sound of firing. During night he cannot see anything. Then he heard the crying of his wife stating that her son had been murdered. He heard from the mouth of his daughters that Amanul shot at his son. This witness was also declared hostile. 21. P.W.3. Adarini Paul has stated that Santi Gopal Paul was her only son. On the fateful night of the incident they were sleeping in the verandah of their house then two persons entered into their verandah and one person was standing in the outside of their verandah. Then they started to pull mosquito net of her daughters and started to pull P.W.6. Eti Paul and P.W.1. Ambika Paul and they raised hue and cry. Hearing hue and cry they started to ran away there from. Her son woke up and he was shot on the verandah. At that time she found Amanul firing towards her son in the light of Hariken. This witness was also declared hostile. 22. P.W.6. Eti Paul has stated that Santi Gopal Paul was her brother. Her brother was murdered about one year and one moth back. She further deposed that Santi Gopal Paul was murdered by Amanulla. At that time she found Amanul firing towards her son in the light of Hariken. This witness was also declared hostile. 22. P.W.6. Eti Paul has stated that Santi Gopal Paul was her brother. Her brother was murdered about one year and one moth back. She further deposed that Santi Gopal Paul was murdered by Amanulla. From the unimpeachable evidence of P.W.6 who is none but the sister of the deceased it becomes unmistakably established that on that particular date at about midnight she, her sister Ambika Paul her mother, brother and her children were sleeping on the verandah of their house. Thereafter Amanullah pulled her hand and she woke up. Her father asked him about their identity and Amanullah told that he is a man of police. When her brother came Amanullah fired at him and her brother died on the spot. It is deposed by the P.W.6 that Amanullah came to kidnap her sister and on being resisted he murdered her brother. This witness identified Amanullah in the court and the witness started to cry and pointed out her finger towards Amanullah stating that this person murdered her brother. 23. P.W.7. Taspasi Pal has stated that Santi Gopal Paul was her elder brother. He had expired about one year and one month back. Her brother was murdered by shooting. Amanullah murdered him by firing at about 1:00 A.M. she saw Amanul to murder her brother. This witness also identified Amanullah in the Court. 24. On close scrutiny of the evidence of the P.W.1, Ambika Paul the de-facto complainant, it appears that on 28.6.2006 at about 01:00 A.M.(Night) they were sleeping. Thereafter some miscreants entered into their hose and one of them was Amanul Sk. They flashed torch light. Then her parents asked them why they had come. Thereafter those persons started to pull her and her elder sister Eti Paul by holding their hands. Her elder brother also came out from the house and at that time Amanullah fired at her elder brother and her elder brother died in that place. She identified two persons out of those miscreants in the jail. 25. This witness lodged the FIR and she was also examined by I.O. during investigation. As regards her evidence there is nothing to disbelieve her. She identified two persons out of those miscreants in the jail. 25. This witness lodged the FIR and she was also examined by I.O. during investigation. As regards her evidence there is nothing to disbelieve her. Though she was declared hostile but as the evidence deposed in the Court were previously stated by her to the I.O. during investigation is reliable under section 154 of the Evidence Act. As regards the point of identification of the convicts she stated that she identified two persons during T.I. Parade and from the evidence of P.W. 13 Bikash Lama Judicial Magistrate attached to 3rd Court, Berhampore in his presence the T.I. Parade was he Learned From the T.I. Parade report it appears that this P.W. 1 identified accused Amanullah Sk. and Billal Mondal. Though the report of T.I. Parade is not a substantive piece of evidence when the witness stated specifically that she identified two persons which is corroborated from the report of the T.I. Parade there is nothing to disbelieve this witness. 26. The evidence of P.W.2 Narendra Nath Paul to the effect that the incident took place at about 12:30 to 12:45 Hrs. while they were sleeping in the verandah of the house is reliable. P.W. 3 Adarini Paul the mother of the victim stated in her evidence that she found Amanulla to shot firing towards her son in the light of Hariken. Though this witness was declared hostile; we find no bar to discard the evidence of this witness because her entire evidence corroborates part of the statement recorded by the 1.0. during investigation. 27. The P.W.6 Eti Paul stated clearly that Amanullah came to kidnap her sister and having been resisted Amanullah murdered her brother. This witness has not been declared hostile and no suitable question was put to this witness to contradict her with reference to her previous statement made before the I.O. during investigation. Therefore, her evidence is totally reliable. The evidence of P.W.7 Tapashi Paul is also fully reliable for the same ground. 28. The P.W. 11 Dr. N.K. Saha stated that on 28.6.2006 he was attached to Berhampore N.G. Hospital as M.a. on that date he held postmortem examination over the dead body of Santi Gopal Paul in connection with Nawda P.S. UD Case No. 3/2000 dead 28.6.2006. On examination he found rigor mortis was present. External wound over left lateral end of the clavicle. N.K. Saha stated that on 28.6.2006 he was attached to Berhampore N.G. Hospital as M.a. on that date he held postmortem examination over the dead body of Santi Gopal Paul in connection with Nawda P.S. UD Case No. 3/2000 dead 28.6.2006. On examination he found rigor mortis was present. External wound over left lateral end of the clavicle. The clavicle was fractured by gun pellets. Gun pellets were seen over the wound of left lung. In his opinion, cause of death was gunshot injury causing left lung injury, due to hemorrhagic shock and the injury is anti-mortem in nature. The Doctor proves his report and it is marked as Exhihit-6. We do not find any reason to disbelieve the evidence of this P.W. 11. 29. The P.W. 13 Bikash Lama the Judicial Magistrate attached to 3rd Court Berhampore stated in his evidence that on 12.7.2007 as per order of the Learned CJM Murshidabad he went to Berhampur Central Jail in holding T.I. Parade in connection with Nawda P.S. Case No. 83/2006. The suspected persons namely, Amanullah Sk. and Billal mondal were produced. Ambika Paul and Eti Paul were the two witnesses. Both the witnesses identified the suspected persons. The P.W. 13 has proved his report to the T.I. Parade report which is marked as Exhibit-9 in the instant Case. We also do not find any reason to disbelieve the evidence of P.W. 13 which is fully reliable one. 30. So far as the deposition for P.W.4 HG 442 Pasupati Das and P.W.5 ASI Kumkum Paul the recording officer who receive the written complaint from the P.W.1 Ambika Paul and started Nawda P.S. Case No. 83/2006 dated 28.6.2006 are concerned we found nothing to disbelieve them. 31. From the evidence of P.W. 11 the Doctor as well as from exhibit 6 the post-mortem report, it is crystal clear that Santi Gopal Paul had died and his death was caused from gunshot injury sustained on the date and time of the incident. So the prosecution has been able to prove that the victim Santi Gopal Paul had expired due to gunshot injury. So the prosecution has been able to prove that the victim Santi Gopal Paul had expired due to gunshot injury. From the evident of the P.W. 1, P.W.2 P.W.3 and P.W.6 it is clearly established that on 27/28.6.2006 when the family members of the de-facto complainant including the victim were sleeping in the verandah of the house at about 01:00 A.M. (Night) the miscreants entered into their house and started to pull the hands of the P.W. 1 and P.W.6 and when her brother tried to resist the miscreants he was shot dead by those miscreants. From the evidence of P.W.3, P.W.6 and P.W.7 it is established that Amanullah Sk. and some other persons caused the death of Santi Gopal Paul and there is no doubt about it. The evidence of P.W. 1 Ambika Paul is also corroborated by the evidence of P.W.3, P.W.6 and P.W.7 as regards the fact that Amanullah Sk. had murdered her brother Santi Gopal Paul. The P.W.1 has specifically stated that she identified during T.I. Parade two miscreants and from the T.I. Parade report it appears that these witness identified accused Amanullah Sk. and Billal Mondal. So from the evidence of P.W.1, P.W.3, P.W.6 and P.W.7 it is proved that accused Amanullah Sk. and Billal Mondal along with others came to the house of victim and accused Amanullah Sk. Murdered Santi Gopal Paul. So the prosecution Case to the effect that the death of Santi Gopal Paul was caused inconsequence of the act of convict Amanullah Sk. and Billal Mondal along with other miscreants has been proved to the hilt. 32. The learned Counsel for the appellant Amanullah Sk. also advanced an argument to the effect that the P.W.1 Ambika Paul who happens to be the de-facto complainant of the Case did not mention the name of any miscreants at the time of lodging the FIR. But, from the materials available on record it appears that the P.W.1 herself as well as other witnesses have stated the name of the miscreants at the time of their evidence before the Learned Court below. Not only that but also non-mentioning of the name of the miscreants has been sufficiently explained by the P.W.1 as she deposed to the effect that there are only two Hindu families in their village and the other families belong to Muslim community. Not only that but also non-mentioning of the name of the miscreants has been sufficiently explained by the P.W.1 as she deposed to the effect that there are only two Hindu families in their village and the other families belong to Muslim community. The FIR maker also stated before the I.O. that she could not disclose the names of the miscreants as they could be murdered on the disclosure of their names. Accordingly, we are of the opinion that the explanation given by P.W. 1 is sufficient for non-mentioning of the name of the miscreants in the FIR. More so both the P.W.1 and P.W.6 have identified the miscreants the appellants Amanullah Sk. and Billal Mondal during the course of test identification parade. Therefore, we do hold that the fact of non-mentioning the name of the miscreants in the FIR is not fatal to the prosecution Case. 33. The learned Advocate for the appellant also submitted that the offending weapon was not recovered and produced before the Court nor the FSL report was exhibited at the time of trial. In this respect we are of the opinion that this is a fault on the part of the investigating agency. This Case is based on the direct evidence of the prosecution witnesses and in such Case the evidence is required to be scrutinised having regard to the background of the entire Case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in views that defective investigation need not necessarily result in the acquittal. In defective investigation the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of a defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the Case of prosecution when it is otherwise proved. In this connection reliance should be placed upon the decision reported in AIR (2003) SC 2471. 34. The Learned Counsel for the appellant Billal Sk. argued that his client (Billal Sk) was not identified by the prosecution witnesses at the time of trial. Although the appellant Billal Sk. was identified during the course of T.I. Parade but non-identification of the accused during the course of trial is fatal to the prosecution Case. Because the identification test is not substantive of evidence. argued that his client (Billal Sk) was not identified by the prosecution witnesses at the time of trial. Although the appellant Billal Sk. was identified during the course of T.I. Parade but non-identification of the accused during the course of trial is fatal to the prosecution Case. Because the identification test is not substantive of evidence. In this connection the Learned Advocate cited one decision reported in (2010) 2 SCC 748 where in the Hon'ble Apex Court of out country held that "It may be pointed out that the identification test is not substantive evidence. Such test are meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines." 35. It is also held by the Hon'ble Court that test identification parade is not substantive evidence but it can only be used in corroboration of the statement in Court. 36. Recently in Amitsingh Bhikamsingh Thakur vs. state of Maharashtra this Court held on a consideration of various Cases on the subject that the identification proceedings are in the nature of tests and there is no procedure either in Cr.P.C. 1973 or in the Evidence Act, 1872 for holding such tests. The main object of holding such tests during investigation is to check the memory of witnesses based upon first impression and to enable the prosecution to decide whether these witnesses could be cited as eyewitnesses of the crime. It has also been held that the evidence of the identification of the accused for the first time is inherently weak in character and the Court has held that the evidence in test identification parade does not constitute substantive evidence and these parades are governed by (2010) 2 SCC 748 section 162 of the Code of Criminal Procedure and the weight to be attached to such identification is a matter for the Courts." 37. We have already mentioned that the instant case is based on the ocular evidence of the prosecution witnesses, It is true that at the time of trial the accused Billal Sk. was not identified by the prosecution witnesses. The P.W.1 during her examination-in-chief stated that she identified two persons out of these miscreants in jail, Out of those two identified persons one is present today (at the date of her examination) she also stated that Amanul Sk. was not identified by the prosecution witnesses. The P.W.1 during her examination-in-chief stated that she identified two persons out of these miscreants in jail, Out of those two identified persons one is present today (at the date of her examination) she also stated that Amanul Sk. is present today in this Court, The P.W.6 another witness stated in her evidence that Amanullah is present in this Court. The witness started to cry and pointed out her finger address Amanullah stating that this very person murdered her brother, From the evidence of the P.W.1 as well as the P.W.6 it could be deduced that at the time of their examination in the Court the appellant Amanullah was present in the Court room and on that very moment the other appellant Billal Sk. remained absent. Therefore, non-identification of the appellant Billal Sk. in the Court room itself could not be just to acquit this appellant particularly when, the Case is otherwise proved by the prosecution by adducing direct evidence in the Court. 38. The learned Court for the accused Amirul Sk. @ Amanulla lastly argued that in the instant case, the examination of the accused under section 313 of the Cr.P.C. is defective. On careful scrutiny of the examination of the accused under section 313 Cr.P.C. We do not find any merit in such contention raised by the learned Counsel, The Hon'ble Apex Court of our country in State of M.P. vs. Ramesh, (2011) 4 SCC 786 , held as under:- "The statement of the accused made under section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement IS not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under section 313 Cr.P.C. cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315 Cr. PC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required." 39. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required." 39. In view of the decision of the Hon'ble Apex Court of our country cited above and also on going through the statements of the accused recorded under section 313 Cr. PC, in the instant case we find that the incriminating material were placed to the accused/appellants and they replied that those incriminating materials transpired in evidence are lie. The accused/appellants also declined to adduce any evidence on their behalf. 40. Having regard to the entire facts and circumstances of the present case particularly; i. The evidence of PW - 2 and PW-3 even though they turned hostile but we find that they had spoken about the crux of the prosecution case with regard to the role of the appellant in firing the fatal shot. ii. The unimpeachable evidence of the two sisters of the deceased namely PW-6 and PW-7. iii. The identification of the appellants by PW-6 and PW - 7 before PW-13. iv. The evidence of the Medical Officer PW-11 which corroborated the ocular version of the prosecution and the opinion of the doctor indicates that the death of the victim was caused due to the effect of those injury which are ante-mortem and homicidal in nature and when the defence did not make any cross-examination to the doctor on his opinion so as to rule out the factum of homicidal death of the deceased or to any other cause of death. We are of the view that the prosecution case is proved to the hilt. The learned Trial Court rightly held both the accused guilty of the offences. We have no hesitation to hold that there is hardly any scope for interference on that score. 41. Both the appeals fails and are hereby dismissed. 42. Let a copy of this judgment be also sent along with the Lower Court 43. Records to the learned Trial Court. Urgent photostat certified copy will be given to the parties if applied for after compliance of necessary formalities. Rakesh Tiwari, J. : I agree.