JUDGMENT : Shree Chandrashekhar, J. The appellant has suffered Judgment of conviction under section 302/34 of the Penal Code, 1860 and order of sentence of R1 for life and a fine of Rs. 10,000/- for the said offence. The appellant was directed to pay Rs. 50,000/- by way of compensation to the wife of Mahadev Prasad Sahu, the deceased. However, the charges under section 17 of the Criminal Law (Amendment) Act and section 27 of the Arms Act have failed. 2. There was a period when a reign of terror was created by the Naxals, Maoists and other extremists in the State of Jharkhand MCC leader was acting like Maximilien de Robespierre of ha Terreur. That was the time when Mahadev Prasad Sahu was murdered. At around 10:00 AM on 16.05.2008 he left for Sisai but did not come back home in the night. Next day morning, Gandura Oraon and Chhedia Oraon who had accompanied him on 16.05.2008 came to his house and informed Ram Lakhan Prasad, his brother, that Uday Oraon and other extremists who had intercepted them on way to Sisai have killed Mahadev Prasad Sahu. In course of search dead body of Mahadev Prasad Sahu was found near Murli Talab on Bhandra-Semra road with several firearm injuries. There a motorcycle was found upturned and near his dead body empty cartridges were scattered. Mahadev Prasad Sahu was killed by MCC extremists because he was not paying extortion and in spite of previous warnings he did not stop work under MLA Fund. On the basis of fardbeyan of Ram Lakhan Prasad which was recorded at about 08:00 AM on 17.05.2008, Bhandra P.S. Case No. 18 of 2008 was registered under section 302/34 of the Penal Code, 1860, section 27 of the Arms Act and section 17(11) of the Criminal Law (Amendment) Act against the appellant and five unknown persons and after investigation a charge sheet was filed against the appellant. During trial the prosecution has examined nine witnesses; the informant is PW-7. Murari Prasad Sahu, PW-3 is a seizure witness; Parmnand Mahto PW-4 and Bhuneshwar Prasad Sao PW-9 are inquest witnesses and Ganga Ram Banra PW-6 and Umesh Kumar Thakur PW-8 are the Investigating Officers. 3. PW-1, Gandura Oraon was working under Mahadev Prasad Sahu. During trial the prosecution has examined nine witnesses; the informant is PW-7. Murari Prasad Sahu, PW-3 is a seizure witness; Parmnand Mahto PW-4 and Bhuneshwar Prasad Sao PW-9 are inquest witnesses and Ganga Ram Banra PW-6 and Umesh Kumar Thakur PW-8 are the Investigating Officers. 3. PW-1, Gandura Oraon was working under Mahadev Prasad Sahu. He has deposed in the Court that in the morning of 16.05.2008 he stalled for Sisai with Mahadev Prasad Sahu and Chhedia Oraon on a motorcycle. Near Semra-Patra six unknown persons stopped them, one amongst them who was dressed in army fatigues was carrying a gun. He disclosed his name Uday Oraon and on his direction other extremists started beating them. Uday Oraon accompanied by another extremist took away Mahadev Prasad Sahu on a motorcycle and others brought them to a Bagicha (orchard) and tied them to a tree. At around 03:00 AM, they came back and Uday Oraon told his friends that “work has been done” (kam ho gaya). On his direction they again thrashed them and then set them free. They reached Barhi in the morning and narrated the incident to Ram Lakhan Prasad Sahu, elder brother of Mahadev Prasad Sahu. They started search for Mahadev Prasad Sahu and in the meantime Ram Lakhan Prasad Sahu received a phone call that a dead bod)’ is lying near Murli Talab. There they found the dead body of Mahadev Prasad Sahu, a motorcycle and empty cartridges. He has seen fire-arm injuries on forehead, chest and leg of Mahadev Prasad Sahu. He has further stated that police arrived there, made enquiries from them and seized motorcycle, empty cartridges and a Parcha which was recovered from the pant pocket of the deceased. PW-2, Chhedia Oraon who was also accompanying Mahadev Prasad Sahu when he left home for Sisai along with Gandura Oraon has made similar statements in the Court. He has deposed that in the morning of 16.05.2008 he left for Sisai with Mahadev Prasad Sahu and Gandura Oraon via Sisai-Bhandra road and when they reached near Senha at around 10:00 AM six-seven armed-men intercepted them. One of the extremists who was carrying a rifle and wearing army fatigues declared that he was Uday Oraon, the area commander of MCC. He told them that on his orders they have been apprehended. One of the extremists who was carrying a rifle and wearing army fatigues declared that he was Uday Oraon, the area commander of MCC. He told them that on his orders they have been apprehended. He took away Mahadev Prasad Sahu on a motorcycle and other extremists tied them to a tree, about one kilometer inside the forest. At around 03:00 AM, Uday Oraon and the other one came back and told his associates that Mahadev Prasad Sahu was done to death. On instructions of Uday Oraon other extremists again assaulted them and then freed them. They reached village early morning and informed Ram Lakhan Prasad Sahu about the occurrence and in course of search they found the dead body of Mahadev Prasad Sahu near Murli Talab. He has seen fire-arm injuries on the head and chest of Mahadev Prasad Sahu, lot of blood on the ground and around the dead body a motorcycle and empty cartridges were scattered. He has stated that Mahadev Prasad Sahu was a contractor and he was working under him. PW-3, Murari Kumar Sahu is brother-in-law of Mahadev Prasad Sahu. In the morning of 17.05.2008 he got information about murder of Mahadev Prasad Sahu and reached Murli Talab. He has seen several firearm injuries on Mahadev Prasad Sahu and a motorcycle and empty cartridges lying there. In his presence from the pant pocket of Mahadev Prasad Sahu a Parcha on which a massage in the name of MCC Maobadi was written in red ink was recovered. He has identified his signature on seizure list which was marked as Ext.1 and photocopy of the Parcha was marked as ‘X’ for identification. In course of the investigation his statement was recorded by police and he has stated that Mahadcv Prasad Sahu when he left home on 16.05.2008 was accompanied by Gandura Oraon and Chhedia Oraon. PW-4, Parmnand Mahto is a co-villager. He has stated that in the morning of 17.05.2008 he was sitting with Ram Lakhan Prasad Sahu near his house. Chhedia Oraon and Gandura Oraon came there and informed them that Mahadev Prasad Sahu has been killed by MCC extremists. Thereafter he along with Ram Lakhan Prasad Sahu, Bhuneshwar Sao and others had gone near Murli Talab where they found the dead body of Mahadev Prasad Sahu. Chhedia Oraon and Gandura Oraon came there and informed them that Mahadev Prasad Sahu has been killed by MCC extremists. Thereafter he along with Ram Lakhan Prasad Sahu, Bhuneshwar Sao and others had gone near Murli Talab where they found the dead body of Mahadev Prasad Sahu. He has seen firearm injuries on different parts of his body and in his presence a Parcha bearing name of MCC extremist Uday Nath Oraon was recovered from the pant pocket of Mahadev Prasad Sahu. He has stated that he has put his signature on inquest report and the dead body was taken by police for post-mortem to Sadar Hospital, Lohardaga. He has identified the Parcha which was recovered from the pant pocket of Mahadev Prasad Sahu. PW-7. the informant is elder brother of the deceased. He has deposed in the Court that on 16.05.2008 PW-1 and PW-2 came to his house around 06:00-07:00 AM and left on a motorcycle with his brother for Sisai but when they did not come back home he started searching them. Next day morning at about 07:00 AM, PW-1 and PW-2 came to his house and informed him that near Semra-Patra they were apprehended by six armed-men and one amongst them who was dressed in army fatigues declared that he was Uday Oraon, the area commander of MCC. On his instructions the others extremists assaulted them and took them inside Patra forest. Uday Oraon was scolding Mahadev Prasad Sahu that he was warned to stop work of MLA Fund but he did not listen to his orders and therefore today he would not be spared. He has further stated that PW-1 and PW-2 had informed him that other extremists who had confined them were talking amongst themselves and from their conversation also they could know that the person who had taken away Mahadev Prasad Sahu was Uday Oraon. PW-9 was present at Murli Talab when inquest was conducted by police. He has seen fire-arm injuries on the deceased and stated that at Murli Talab he came to know that Uday Oraon has murdered Mahadev Prasad Sahu. He has admitted that he has not seen the occurrence and whatever he has stated about Uday Oraon committing murder of Mahadev Prasad Sahu is on the basis of what he had heard about the occurrence. He has admitted that he has not seen the occurrence and whatever he has stated about Uday Oraon committing murder of Mahadev Prasad Sahu is on the basis of what he had heard about the occurrence. PW-8 is the main Investigating Officer of this case and PW-6 is the second investigating officer who has taken the appellant on remand in this case from Sisai (Gumla) P.S Case No. 165 of 2008. 4. Gandura Oraon PW-1 and Chhedia Oraon PW-2 are star witnesses for the prosecution and they have been projected as eye-witness, but no one has seen the appellant committing murder of Mahadev Prasad Sahu. PW-1 and PW-2 have identified the appellant in Court more than seven years after the occurrence through video conferencing and they have admitted during their cross-examination that the appellant was not known to them. The other witnesses who have identified the appellant in Court have also admitted that the appellant was not known to them and they have seen his photograph in the newspaper. 5. In the aforesaid background facts, Mr. A.K. Kashyap, the learned Senior counsel for the appellant has contended that without a Test Identification Parade conviction of the appellant on the basis of his identification by the prosecution witnesses for the first time in Court and that too through video-conferencing after about seven years of occurrence and without framing a charge under section 364 IPC is improper and illegal. 6. Identification of an accused in a TIP is not necessary in every case. There may be a case in which there is no direct evidence available and the prosecution rests its case on circumstantial evidence. Under section 9 of the Indian Evidence Act the facts establishing identity of an accused are relevant however identification of a person in TIP is a primary but not substantive evidence. The reason is that TIP is conducted during investigation and not in the Court during trial. The TIP chart and the identification evidence during TIP are tendered in evidence by the prosecution, the Magistrate who has conducted TIP proves these documents and the witnesses also depose in the Court that they have identified the accused in TIP, still, it is not substantive evidence because whatever evidence is collected and statements recorded during the investigation are not substantive evidence. The Magistrate and the witnesses depose in the Court a fact that TIP was conducted and the accused was identified in TIP and except to that extent nothing about TIP is admissible in evidence. This can be used as a piece of corroborative evidence and this alone cannot be the basis to record conviction in a case. In Matru alias Girish Chandra v. The State of Uttar Pradesh, (1971) 2 SCC 75 the Hon'ble Supreme Court has held that identification test is primarily meant for the purpose of helping the investigating agency with an assurance that their investigation of an offence is proceeding on the right lines and in Malkhansingh v. State of M.P., (2003) 5 SCC 746 it has been held that there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold TIP or confers right upon the accused to claim TIP. In Ronny v. State of Maharashtra, (1998) 3 SCC 625 the Hon'ble Supreme Court has observed that purpose of holding a TIP is to test observation, grasp, memory and capacity of a witness to recapitulate what he has seen earlier and to strengthen trustworthiness of the evidence on identification of an accused in the Court. 7. Normally, if a witness identifies the accused in the Court for the first time and that too after a long time the probative value of such evidence is diminished and therefore it is considered not safe to rely on such a piece of evidence, but, if testimony of a witness does not suffer from inherent improbability or inconsistency and it is shown that he had an opportunity to observe the conduct and characteristic features of an accused then identification of the accused by such a witness is accepted by the Court even without corroboration. It is now well-settled that necessity of TIP to corroborate identification of an unknown accused in the Court is a rule of prudence and not an absolute rule. This rule of prudence is however subject to exceptions, such as, where the witness had a chance to interact with the accused or where the witness had an opportunity to observe distinctive features of the accused. The law on the subject has been elucidated in “Malkhansingh“2 wherein the Hon'ble Supreme Court has held as under: “16. This rule of prudence is however subject to exceptions, such as, where the witness had a chance to interact with the accused or where the witness had an opportunity to observe distinctive features of the accused. The law on the subject has been elucidated in “Malkhansingh“2 wherein the Hon'ble Supreme Court has held as under: “16. It is well settled that the substantive evidence is the evidence of identification in cowl and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and. therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic-experience, the faces of the appellants must have got imprinted in her memory and there was no chance of her making a mistake about their identity.………..” 8. The appellant was a known criminal and before this incident he had escaped from jail. Mis photograph was published in the newspaper and subsequently he was arrested in Sisai (Gumla) P.S Case No. 165 of 2008. The appellant was a known criminal and before this incident he had escaped from jail. Mis photograph was published in the newspaper and subsequently he was arrested in Sisai (Gumla) P.S Case No. 165 of 2008. PW-3, PW-4, PW-7 and PW-9 have deposed in the Court that they have seen his photograph in the newspaper and PW-7 and PW-9 have stated that when he had escaped from jail his photograph was published in the newspaper. They have identified the appellant during their examination in the Court through Video-Conferencing. The defence during cross-examination of PW-9 has challenged his claim that he can identify the appellant and it was elicited from him that he has seen his photograph published in the newspaper and there is no challenge to the claim of PW-3, PW-4 and PW-7 that they know the appellant because they have seen his photograph in the newspaper. While this is an admitted position, identification of the appellant by PW-3, PW-4, PW-7 and PW-9 as the person who was an escaped accused and whose photograph was published in the newspaper has been proved as a fact by the prosecution. PW-1 and PW-2 are the victims themselves. They have stated in the Court that one of the extremists who had apprehended them on Bhandra-Semra road was Uday Oraon and he had declared himself as the area commander of MCC. In his cross-examination, PW-2 has stated that he had no previous acquaintance with Uday Oraon but he has said that Uday Oraon belongs to village-Toto. This has also come on record that other extremists were talking amongst themselves and they were referring about Uday Oraon. The appellant came back at around 03:00 AM and said that Mahadev Prasad Sahu has been killed. PW-1 and PW-2 have seen the appellant closely and they had sufficient time to observe his distinctive features. The fear, anxiety and trauma which they had undergone during the entire episode must have left an everlasting imprint in their mind and that was the reason that they have described the incident consistently. They have categorically stated in the Court that picture of the person which appeared on the screen during their examination in the Court through Video-Conferencing was of the person who was in army fatigues and who had identified himself as Uday Oraon. They have categorically stated in the Court that picture of the person which appeared on the screen during their examination in the Court through Video-Conferencing was of the person who was in army fatigues and who had identified himself as Uday Oraon. In this context this is also relevant that it was the appellant who declared that Mahadev Prasad Sahu has been killed and on his direction PW-1 and PW-2 were confined and tied to a tree and beaten by the extremists. A witness may forget a name or confuse the name of an accused in a group of persons but if he identifies an accused by face as the person whom he has seen at the scene of crime and he has good reasons not superfluous to remember him then the identification of an accused first time in the Court by such a witness even without the aid of TIP would be trustworthy and can be acted upon by the Court to hold him guilt). In order to demolish the claim of an eye-witness that he has seen the accused at the place of occurrence the defence must challenge and demonstrate with a reasonable degree of probability that the witness was not present there or that the incident had happened so fast and quick or in such a manner that the witness could not have seen the person(s) involved in the crime. The prosecution evidence that PW-1 and PW-2 were with Mahadeo Prasad Sahu when they were apprehended by the extremists has remained unscathed and the defense has failed to bring out such evidence in the cross-examination of the prosecution witnesses or by tendering evidence on its own which may create a doubt on presence of PW-1 and PW-2 at the first place of occurrence. There is no doubt on identification of the appellant by them in the Court. The failure to hold TIP and lapse of seven years in the meantime when the prosecution witnesses have identified him in the Court would pale into insignificance in the face of sterling quality of evidence rendered by PW-1 and PW-2. There is no doubt on identification of the appellant by them in the Court. The failure to hold TIP and lapse of seven years in the meantime when the prosecution witnesses have identified him in the Court would pale into insignificance in the face of sterling quality of evidence rendered by PW-1 and PW-2. In Sidhartha Vashisht alias Mann Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 the Hon'ble Supreme Court has referred to previous judgments including the one in Malkhansingh's case and held that even if there is no previous Test Identification Test the Court may appreciate dock identification as being above board and more than conclusive. In Jaykumar v. State of Kerala, (2011) 15 SCC 279 the witnesses claimed that they have seen the accused unknown to them in torch light and identified him in the dock after about seven years of the occurrence. The Hon'ble Supreme Court has rejected the contention that in absence of TIP dock identification after seven years was not sufficient to hold the accused guilty. 9. The evidence of PW-3, PW-4 and PW-9 and identification of the appellant by PW-1 and PW-2 would complete the chain and conclusively establish identity of the appellant, the escaped accused, who has participated in the occurrence. 10. There is something more in the prosecution evidence to establish identity of the person who was involved in the occurrence. PW-6 and PW-8 who are the investigating officers have identified the appellant during their examination in the Court through Video-Conferencing. The have a reason to identify the appellant. The appellant at the time of this occurrence was an escaped accused and PW-6 has taken him on remand from another case. Identification of the appellant in the Court by PW-3. PW-4. PW-7 and PW-9 as the one whose photograph was published in the newspaper as an escaped accused and his identification by PW-6 and PW-8 who had opportunity to see him would confirm that the appellant is Uday Oraon. Now, identification of the appellant by PW-1 and PW-2 as the person who was involved in the entire episode and whose photograph they have also seen in the newspaper would establish that the person who was an escaped accused is the one who has actively participated in the occurrence and his name is Uday Oraon. 11. Now, identification of the appellant by PW-1 and PW-2 as the person who was involved in the entire episode and whose photograph they have also seen in the newspaper would establish that the person who was an escaped accused is the one who has actively participated in the occurrence and his name is Uday Oraon. 11. Another feature of this ease is that during trial the prosecution has produced sufficient materials to corroborate PW-1 and PW-2 on material aspects of the case. PW-3 has stated that the area commander of MCC Uday Oraon and his associates were involved in murder of Mahadev Prasad. He received information about the incident at about 08:00-09 : 00 AM and within 15-20 minutes he reached Murli Talab. On preparation of seizure list he has asserted that it was prepared in his presence and that after reading seizure list carefully he has signed it. A suggestion by the defence that Mahadev Prasad Sahu and his elder brother Lakhan Sahu have criminal history has been denied by him. He has explained the reason why few things he was not able to state in the Court - he was shocked. PW-4 has stated that Murli Talab was not far away from house of the informant and within 5-7 minutes alter he reached there police had arrived. On recovery of Parcha he has stated that it was shown by the police to him and several other persons have also read it. PVV-7 is not an eye-witness and his testimony is based on the information given to him by PW-1 and PW-2. He has stated that on 17.05.2008 at the time of search PW-1, PW-2, PW-3, PW-4 and PW-9 and several other persons were with him and they found the dead body of Mahadev Prasad Sahu at Murli Talab. He has proved his fardbeyan and stated that PW-1 and PW-2 have also signed the faadbeyan in his presence. The police seized eight 9 mm empty cartridges, a motorcycle and Parcha written in red ink. He has identified his signature on the seizure-memo. He has stated that his brother was getting threats for extortion from Uday Oraon. He has seen fire-arm injuries on his brother. The police seized eight 9 mm empty cartridges, a motorcycle and Parcha written in red ink. He has identified his signature on the seizure-memo. He has stated that his brother was getting threats for extortion from Uday Oraon. He has seen fire-arm injuries on his brother. In his cross-examination he has affirmed that PW-1 and PW-2 were working with his brother and they gave him information about the occurrence in the morning of 17.05.2008 and thereafter he had informed Senha P.S. about the incident. He has admitted that he did not inform Bhandra P.S but has explained that contact number of Bhandra P.S was not with him. 12. PW-8 is the first Investigating Officer of this case. On 17.05.2008 in the morning he received an information that a dead body was found lying on Bhandra-Semra road near Vlurli Talab. He proceeded from the police station with PW-6 and armed police party to verify the information. At Murli Talab he has found the dead body of Mahadev Prasad Sahu and near his dead body a motorcycle bearing no. JH 08 A 6014 and eight empty 9 mm cartridges were scattered. He has recovered a Parcha in left pocket of the pant of the deceased. The informant was present there. He has recorded his fardbeyan on the spot and PW-1 and PW-2 put their signature on the fardbeyan which was marked as Ext.5/3. He has prepared inquest report in presence of PW-4 and PW-9 and seizure memo was prepared by PW-6 in presence of PW-3 and PW-7. PW-6 is the second investigating officer of this case. He has deposed in the Court that he took the appellant on remand from Sisai (Gumla) P.S Case No. 165 of 2008 which was registered on 20.11.2008 under section 386, 414 r/w 34 IPC, section 25 (l-B)a/26/35 of the Arms Act, section 13 UTA Act and section 17 of C.L.A Act. He has sent empty cartridges for forensic examination under the orders of the Court and received report which was prepared by Suresh Prasad Rai. He has identified requisition for the forensic examination and the report as well as his own signature and signature of Suresh Prasad Rai which were marked during the trial. He has stated that a formal First Information Report and seizure-list were prepared by him and he has identified signature of both the witnesses on the seizure-list. He has identified requisition for the forensic examination and the report as well as his own signature and signature of Suresh Prasad Rai which were marked during the trial. He has stated that a formal First Information Report and seizure-list were prepared by him and he has identified signature of both the witnesses on the seizure-list. He has confirmed that a motorcycle, empty cartridges and a Parcha were recovered at the place of occurrence. He has stated that the material objects were deposited in sealed condition in the Court Malkhana in compliance of the Court's order. The material objects which were kept in a small bag were produced in the Court and marked as material exhibits. The learned Sessions Judge has recorded during his examination that Bhandra P.S. Case No. 18 of 2008 was written on the bag and empty cartridges and the empty cartridges bear initial signature of PW-6. A Parcha was taken out from the said bag and the learned Sessions Judge has recorded that the Parcha bears signature of two witnesses. The original Parcha was marked as material object-11 (with objection). A small bag sealed with Markin cloth was also taken out from the bag and it was found that two pellets as mentioned in the post-mortem report were kept there. The pellets were marked as material object-III (with objection). 13. The aforesaid evidences produced by the prosecution leave no manner of doubt on veracity of the prosecution case however the defense has sought to challenge it on the basis of the statements made by the prosecution witnesses during cross-examination. The attempt by the defence to challenge prosecution story is primarily based on weaving together minor abrasions in evidence of the prosecution witnesses but that is not how a contradiction is proved. A contradiction can be proved by recourse to the procedure prescribed under section 145 of the Evidence Act and that is brought out in the testimony of a witness with reference to his previous statement. The inconsistencies in the evidence of two witnesses do not amount to contradiction - that may be a ground to reject their testimony or the prosecution story. The inconsistencies in the evidence of two witnesses do not amount to contradiction - that may be a ground to reject their testimony or the prosecution story. The controversies on distance between the place of occurrence and police station, how Bhandra police reached the place of occurrence if information was given to Senha P.S by the informant and conduct of PW-1 and PW-2 in not informing the police or any villager while coming to house of the informant would not create any doubt on complicity of the appellant in the crime. The minor inconsistencies in testimony of PW-1 and PW-2 are quite understandable. They were surrounded by several armed persons, they were tied and assaulted by them, and after few hours they were told that Mahadev Prasad Sahu has been killed. They came back Barhi in the early hours and gave information about the incident to brother of Mahadev Prasad Sahu. The entire episode must have been a traumatic experience for them and therefore there may be some omission or discrepancy in their testimony. Every witness cannot say each and every detail of the occurrence with exactitude and ocular evidence of two witnesses can never be the same; a parrot like testimony is seen by the Courts with suspicion. Some details in the testimony of a witness may be left out also for the reason that the witness might have thought such details insignificant. No witness is expected to recapitulate all the events that had happened on the fateful day with mathematical precision. 14. The place of occurrence was a lonely place near forest. Therefore even though the incident has happened at around 10:00 AM it is not surprising that it was not seen by any passerby. In his cross-examination PW-1 has stated that the place near Semra where the extremists apprehended him was not a freeway. This has also come in the evidence of PW-1 that the place where dead body of Mahadev Prasad Sahu was found near Murli Talab is adjacent to the forest. They have reiterated in their cross-examination that the extremists assaulted them with butt of a gun. Though they were not examined by a doctor to prove the injuries suffered by them, there is no reason to disbelieve their evidence that they were apprehended, taken inside the forest and assaulted by the extremists. They have reiterated in their cross-examination that the extremists assaulted them with butt of a gun. Though they were not examined by a doctor to prove the injuries suffered by them, there is no reason to disbelieve their evidence that they were apprehended, taken inside the forest and assaulted by the extremists. The defense has not shown any enmity with PW-1 and PW-2 and on their own they have admitted that they had no past acquaintance with the appellant and they have seen his photograph in the newspaper. There is no exaggeration in their testimony and the minor inconsistency and omission which have been over-stretched by the defence are natural. In Molu v. State of Haryana, (1976) 4 SCC 362 the Hon'ble Supreme Court has indicated the course to be adopted by the Court, in a criminal trial, thus: “10……the court should make every effort to disengage the truth from the falsehood and to sift the grain from the chaff rather than take the easy course of rejecting the entire prosecution case merely because there are some embellishments.” 15. The plea raised on behalf of the appellant that his photograph was published in the newspaper and that was the reason PW-1 and PW-2 have identified him in the Court is without any substance. From the records it appears that photograph of the appellant was published in the newspaper in connection to another case. In Raja v. State by Inspector of Police, (2020) 15 SCC 562 : AIR 2020 SC 254 the witnesses accepted that they had seen the accused in police custody and their photographs had appeared in the newspaper. The Hon'ble Supreme Court has observed that what is important is identification in the Court and if such identification is otherwise found truthful and reliable such evidence can be relied upon by the Court. 16. Asimilar plea was dealt with by the Hon'ble Supreme Court in “Manu Sharma”4 on the following reasoning: “252. It is also contended by the defence that since the photographs were shown to the witnesses this circumstance renders the whole evidence of identification in court as inadmissible. For this, it was pointed out that photo identification or TIP before the Magistrate, are all aides in investigation and do not form substantive evidence. Substantive evidence is the evidence of the witness in the court on oath, which can never be rendered inadmissible on this count. For this, it was pointed out that photo identification or TIP before the Magistrate, are all aides in investigation and do not form substantive evidence. Substantive evidence is the evidence of the witness in the court on oath, which can never be rendered inadmissible on this count. It is further pointed out that photo identification is not hit by Section 162 CrPC as adverted to by the defence as the photographs have not been signed by the witnesses. ………………………………………………………………….. 253. In the present case prosecution docs not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time. It must be horne in mind that the appellant is not a proclaimed offender and we are not considering the eventuality in which he would be so proclaimed. So the observations made in Kartar Singh in a different context is of no avail to the appellant.” 17. The learned Senior counsel for the appellant has relied on the following judgments : (i) Hem Singh alias Hemu v. State of Haryana; (2009) 6 SCC 748 (ii) Vijayan v. State of Kerala, (1999) 3 SCC 54 ; (iii) State of Himachal Pradesh v. Lekh Raj, (2000) 1 SCC 247 ; and (iv) Simon v. State of Karnataka, (2004) 2 SCC 694 . 18. In “Vijayan the accused persons had gone to house of the deceased and one of them had fired two shots at him from revolver. One of the witnesses who had opened the door identified the accused in the dock. The photograph of the accused was shown to the witness and published in all local newspapers before TIP. Another witness claimed that he has seen the accused fleeing away. One of the witnesses who had opened the door identified the accused in the dock. The photograph of the accused was shown to the witness and published in all local newspapers before TIP. Another witness claimed that he has seen the accused fleeing away. It was held that it is highly impossible for a person to remember face of the accused and that too after about five years of the occurrence. In “Simon” it has been held that mere failure to hold a TIP would not make inadmissible evidence of identification in the Court and what weight is to be attached to such identification is a matter for the Courts of fact to examine and in appropriate cases the Court may accept evidence of identification even without insisting on corroboration. In “Lekh Raj” the prosecutrix admitted in the Court that she has seen one of the accused persons only on the date of occurrence; he was not known to her and : she did not know her name. The Hon'ble Supreme Court has observed that how his name has surfaced as the accused person has remained a mystery which the prosecution had failed to explain properly and sufficiently. In “Hem Singh” the incident had taken place in an isolated area. On a dark night one known accused was allegedly calling four unknown accused persons by their name during a gun battle. Hern Singh was not known to the police officer and at the time of incident he was not found involved in any other case. The Hon'ble Supreme Court has observed that in a pitched gun-battle which lasted for only five to six minutes close to midnight and that too at a considerable distance it was most unlikely that the witnesses could have identified him. 19. In the aforesaid judgments the Hon'ble Supreme Court has applied the well-settled rules of evidence and these cases turn on their own facts. 20. Identification of the appellant by the prosecution witnesses through Video-Conferencing has been challenged on the ground that it does not fit in anywhere in the established procedures during the trial and violates right of an accused of fair trial. 21. 20. Identification of the appellant by the prosecution witnesses through Video-Conferencing has been challenged on the ground that it does not fit in anywhere in the established procedures during the trial and violates right of an accused of fair trial. 21. Oliver Wendell Holmes Jr., an American Jurist and a Judge of Supreme Court of the United States has observed that: “a word is not a crystal, transparent and unchanged, it is the skin of the living thought and may vary greatly in colour and content according to the circumstances and time in which it is used.” The significant advancement in the field of science and technology has provided convenient and effective tools for the investigation and trial in a criminal case. The use of new tools and technologies such as Video-Recording, Video-Conferencing and DNA Test has been emphasized and approved by the Hon'ble Supreme Court in several cases. In Kalyan Chandra Sarkar v. Rajesh Ranan a Pappu Vaclav, (2005) 3 SCC 284 and Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 trial through Video-Conferencing was ordered. In Sujay Mitra v. State of West Bengal, (2015) 16 SCC 615 evidence of a foreign national was permitted through Video-Conferencing; she was the prosecutrix. In Mohd. Azmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 evidence of Pat Williams was recorded through audio-video linkage while he was sitting in the office of FBI at Los Angeles. Jeoffrey Maron, another witness, who was working as a Special Agent of FBI identified Paul Orphanides as FBI Agent of Los Angeles Office and he, in turn, identified Pat Williams in the Court. 22. The present day judicial approach on ‘ongoing statute’ can be traced in exhortation of Ford Thring, a great Victorian draftsman of 19th century, who has said that; “An Act of Parliament should be deemed to be always speaking”. In “R. v. Ireland”, [1998] A.C. 147 the House of Fords has observed that the Courts must interpret and apply a Statute of any vintage to the world as it exists today. The expression “bodily harm” in a Victorian Statute defining “assault” was held by the House of Fords to cover “psychiatry injuries”. In “R. v. Ireland”, [1998] A.C. 147 the House of Fords has observed that the Courts must interpret and apply a Statute of any vintage to the world as it exists today. The expression “bodily harm” in a Victorian Statute defining “assault” was held by the House of Fords to cover “psychiatry injuries”. The Courts have turned to creative interpretations to achieve a balance between the age old and rigid laws on the one hand and the advance technology, on the other [refer, State of Punjab v. Amritsar Beverage Industry, (2006) 7 SCC 607 ]. 23. Section 273 of the Code of Criminal Procedure provides that all evidence taken in the course of trial or other proceeding shall be taken in the presence of the accused or when his personal attendance is dispensed with in the presence of his pleader subject to the exceptions provided therein. In “State of Maharashtra v. Dr. Praful B. Desai”, (2003) 4 SCC 601 the Hon'ble Supreme Court has held that section 273 does not show that actual physical presence of the accused is mandatory rather it contemplates constructive presence of the accused inasmuch as when personal attendance of the accused is dispensed with evidence can be recorded in presence of his pleader. It has been held that electronic records under subsection 2 to section 3 of the Evidence Act include Video-Conferencing and therefore Video-Conferencing satisfies the object under section 273. The Hon'ble Supreme Court has made the following significant observations: “19. In virtual reality one can be made to feel cold when one is sitting in a hot room, one can be made to hear the sound of ocean when one is sitting in the mountains, one can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing on one sofa etc. Video-Conferencing has nothing to do with virtual reality. Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear event, taking place far away as they are actually taking place………………This is not virtual reality, it is actual reality One is actually seeing and hearing what is happening. Video-Conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e in your presence. Video-Conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e in your presence. In fact he/she is present before you on a screen. Except for touching, one can see, hear and observe as if the party is in the same room……… 20. Recording of evidence by Video-conferencing also satisfies the object of providing, in section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by Video-Conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by Video-Conferencing has to be on some conditions” 24. During the trial no objection was raised by the appellant when the witnesses were examined through Video-Conferencing. He has participated in the proceedings and failed to show any prejudice much less substantial prejudice caused to him due to his identification by the prosecution witnesses through Video-Conferencing. 25. The conviction of the appellant has been attacked also on the ground that a charge under section 364 IPC was not framed. Mr. A. K. Kashyap, the learned Senior counsel for the appellant would contend that conviction of the appellant under section 302 IPC must fail for no one has seen the appellant committing murder of Mahadev Prasad Sahu. 26. The conviction of the appellant has been attacked also on the ground that a charge under section 364 IPC was not framed. Mr. A. K. Kashyap, the learned Senior counsel for the appellant would contend that conviction of the appellant under section 302 IPC must fail for no one has seen the appellant committing murder of Mahadev Prasad Sahu. 26. Section 461 Cr.P.C provides the instances of irregularities during the trial which would vitiate the proceedings and section 460 narrates the instances of irregularities which do not vitiate the proceedings. The relevant provision, however, is section 464 which provides that no finding of sentence or order by a Court of competent jurisdiction shall be deemed invalid merely for the reason that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has, in fact, occasioned thereby. The offence under section 302 IPC is a major offence compared to section 364 IPC. The case of the prosecution is that Mahadev Prasad Sahu was taken away by the appellant and one of the extremists in the night of 16.05.2008 and in the morning of 17.05.2008 his dead body was found near Murli Talab. The appellant who has failed to offer a satisfactory and acceptable explanation in his examination under section 313 Cr.P.C to what has happened to Mahadev Prasad Sahu after he was lastly seen in his company has been convicted under section 302 IPC not only because he has failed to discharge the burden under section 106 of the Evidence Act. There are independent corroborative evidences on the basis of which the prosecution has succeeded in discharging the initial burden to prove its case. Section 364 IPC provides that if a person is abducted in order that he may be murdered or may be so disposed of as to be put in danger of being murdered the person who abducts has committed the offence and section 362 IPC provides that whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. The facts which are required to constitute the offence under section 364 IPC have been taken out by the prosecution from the witnesses in presence of the appellant and moreover he has not shown any prejudice caused to him because a charge under section 364 IPC was not framed during the trial. Therefore, I hold that omission in framing a charge under section 364 IPC has not occasioned any failure of justice. 27. In a criminal trial the prosecution can prove a fact by leading circumstantial evidence and it is not necessary that every fact in a case must be proved by direct evidence. 28. Mahadev Prasad Sahu was lastly seen in company of the appellant and one of his associates. PW-1 and PW-2 have stated that the appellant drove out Mahadev Prasad Sahu on a motorcycle inside the forest and at about 3:30 AM they came back and declared that Mahadev Prasad Sahu has been killed. No one has seen how Mahadev Prasad Sahu was killed but intention of the appellant and other extremists can be gathered from their overt acts, the manner of occurrence and other attending circumstances. 29. In a criminal trial burden of proof is normally on the prosecution to prove guilt of the accused but there is atleast one exception that indicates that this general rule is not in absolute terms. In “State of W.B. v. Mir Mohammad Omar”, (2000) 8 SCC 382 the Hon'ble Supreme Court has observed that if the traditional rules relating to burden of proof cast on the prosecution is taken to its extremes the society would be a casualty. The discussion on facts in “Mir Mohammad” in the context of section 106 of the Indian Evidence Act proceeds on the following lines: “39. In the present case, the facts which the prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustained fatal injuries and the proximity of the place within which the dead body was found are enough to draw an inference that victim's death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts, the inference would stand undisturbed.” 30. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts, the inference would stand undisturbed.” 30. In “Sucha Singh v. State of Punjab”, (2001) 4 SCC 375 the assailants took away two sons of Diwan Singh from his house in the night and thereafter they did not come back home. The Hon'ble Supreme Court has held that the abductors alone could tell the Court as to what happened to the deceased after they were abducted and if such information is withheld from the Court there is even justification for drawing an inference that the abductors are the murderers of the deceased. 31. In the night when six armed persons forcibly detained Mahadev Prasad Sahu and his companions there cannot be any doubt regarding their intention to commit crime. The appellant declared himself before them as the area commander of MCC, a banned organization. They were dressed in military fatigues, armed with deadly weapon, tied PW-1 and PW-2 to a tree and assaulted them. They were threatening Mahadev Prasad Sahu and took him inside the jungle and thereafter Mahadev Prasad Sahu was not seen by anybody; his dead body was recovered soon thereafter. On such evidence silence of the appellant during his examination under section 313 Cr.PC would provide an additional incriminating material against him. 32. In Navameethakrishncm v. The State By Inspector of Police, (2018) 16 SCC 161 the Hon'ble Supreme Court has held that: “it is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed”. In Rajender v. State (NCI of Delhi), (2019) 10 SCC 623 the Hon'ble Supreme Court has reiterated the same principles; thus: “12.2.4…….. Thus, if a person is last seen with the deceased. he must offer an explanation as to how and when he parted company 16 with the deceased. In Rajender v. State (NCI of Delhi), (2019) 10 SCC 623 the Hon'ble Supreme Court has reiterated the same principles; thus: “12.2.4…….. Thus, if a person is last seen with the deceased. he must offer an explanation as to how and when he parted company 16 with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him. such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.” 33. The medical evidence would disclose that Mahadev Prasad Sahu has suffered a homicidal death due to fire-arm injuries. PW-3, PW-4, PW-6 and PW-7 have seen several fire-arm injuries on Mahadev Prasad Sahu and PW-5 has confirmed that Mahadev Prasad Sahu has died due to fire-arm injuries. PW-5, Dr. Noren Mundu who has conducted post-mortem examination on 17.05.2008 at 01:20 PM has found abrasions, bruises and multiple firearm injuries on the person of Mahadev Prasad Sahu. The entry wounds of firearm were found below left clavicle (collar bone), above left medial of clavicle, above left lateral of clavicle, below medial of right clavicle, right lateral to xiphisternum (lowest part of sternum), medial of upper right forearm and just below the right eye. On dissection two pellets were recovered. He has observed fracture of Ist and 2nd rib, left clavicle manubrium joint and 3rd rib (left). Left chamber of heart and lungs were lacerated and liver, spleen and kidneys were pale and rigor mortis was present all over the four limbs. On dissection two pellets were recovered. He has observed fracture of Ist and 2nd rib, left clavicle manubrium joint and 3rd rib (left). Left chamber of heart and lungs were lacerated and liver, spleen and kidneys were pale and rigor mortis was present all over the four limbs. The death was caused due to shock and hemorrhage and in his opinion the time elapsed since death was within twelve hours. 34. The observations of PW-5 supports prosecution story that Mahadev Prasad Sahu was murdered sometime in the intervening night of 16th/17th May 2008. 35. There is some evidence also on motive for the crime. Generally motive is considered a weak piece of evidence and in a case in which the prosecution has produced direct evidence it is not always necessary to prove motive. PW-1 and PW-2 do not say directly anything about the motive except scolding of deceased by the appellant with re Terence to a work and PW-7 has also said about demand of extortion which is corroborated to some extent by their evidence. And, except a vague suggestion which is common in every criminal trial the defence has not shown anything on motive to falsely implicate the appellant in this case. PW-3 and PW-7 who are close relatives of Mahadev Prasad Sahu and PW-1 and PW-2 who were closely associated with him would not falsely implicate the appellant and shield the real culprit. Normally, it is not a tendency of the witnesses to falsely depose and the Courts would believe their testimony unless something substantial on the basis of past enmity is shown to the Court. Shortly after the occurrence a First information Report was lodged in which the appellant has been named as an accused and therefore it is difficult to see any possibility of false implication of the appellant, it is not-shown that the investigating officers had animus against the appellant and there is no reason to think that they have falsely implicated the appellant in this case. 36. In view of the aforesaid discussions, 1 find that the prosecution has proved complicity of the appellant in murder of Mahadev Prasad Sahu and his conviction in Sessions Trial No. 105 of 2009 is well founded. 37. Criminal Appeal (D.B.) No. 1338 of 2018 is dismissed. 38. Let the lower-court records be sent to the Court concerned forthwith. 39. 36. In view of the aforesaid discussions, 1 find that the prosecution has proved complicity of the appellant in murder of Mahadev Prasad Sahu and his conviction in Sessions Trial No. 105 of 2009 is well founded. 37. Criminal Appeal (D.B.) No. 1338 of 2018 is dismissed. 38. Let the lower-court records be sent to the Court concerned forthwith. 39. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX. Ratnaker Bhengra, J.: - I Agree.