LexGEORGE AND OTHERS versus STATE OF KEARLA AND ANR .
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GEORGE AND OTHERS A v. ..-....; STATE OF KEARLA AND ANR . -..... MARCH 18, 1998 [M.K. MUKHERJEE AND SYED SHAH MOHAMMED QUADRI, JJ.] B _..._ Indian Penal Code, 1860-Sections 302, 449, 34-Trial Court'sfinding acquitting appellants-accused-Rejecting existence of the burning lamp and disbelieving PW 3, mother of the deceased having seen the appellants in that c light-High Court revusing-He/d : Trial Court's finding patently wrong- Based on non-consideration of material evidence-PWs 4 and 7, nextdoor neighbours categorically stating they had seen the burning lamp at the spot-High Court rightly reversed the acquittal-Conviction of appellant No. 1 upheld as his identity as well as motive jit!ly established-Others given benefit of doubt-Their conviction set aside. D ~ Evidence Act, 1872-Sections 9, 32-Test Identification Parade- ~· Omission to hold-Effect on admissibility of evidence of identification in court by a witness whom the accused did not know earlier-Though not fatal, can not be relied upon unless sufficiently corroborated-Identification of appellant No. I by PW 3, corroborated by dying declaration naming the E appellant-Admissible-But identification of the other appellants for the first time in the court not corroborated by any Test Identification Parade or dying declaration-Not admissible-Their conviction set aside. =.( Criminal Procedure Code, 1973-Sections 174, 162, 154, and 164- Inquest Report-Can not be used to contradict the prosecution witness to F -~ }- whom the deceased made dying declaration-Statements admissible only to the extent of what the Investigating officer saw and found-The rest would be hit by Section 162-FIR-First Informant turning hostile-Can not be used to corroborate the informant or to discredit other prosecution witnesses before whom deceased made dying declaration-Statements recorded under G Sec. 164 Cr. P. C.-Can not be used as substantive evidence. • -...( According to the prosecution, appellant No. I, who was enraged by a news item reported by the deceased in a local newspaper about his nefarious activities, trespassed into his house along with others :it about 11 PM on May 28, 1990 with an intention to kill him. Appellant Nos. 2 and 3 dealt blows H 303 304 SUPREME COURT REPORTS [1998] 2 S.C.R. A upon him with strick and iron rod and appellant No. l stabbed him with knife. The mother of the deceased saw the appellants in the light of the burning lamp and the deceased also told her that appellant No. l had stabbed him. PW 4, a next door neighbour, who immediately rushed to the stop saw the deceased lying in a pool of blood in the light of the burning lamp and heard the dying B declaration along with other neighbours. The deceased succumbed to his injuries on the very night. P. W. I, another neighbour, who also heard the dying declaration, lodged an FIR in the police station the next morning mentioning the name of appellant No. I as one of the assailants. A case was registered against appellant No. I and C three others and investigation started. After the usual investigation, appellants along with four others were put up for trial before the Additional Sessions Judge under Sections 143, 147, 148, 449 and 302 read with Section 149 IPC. PW 3 identified the appellants in the Court and also deposed about the dying declaration which D was corroborated by PW 4. But the trial court, relying on PW I the first informant, who turned hostile, disbelieved the evidence of PWs 3 and 4 as also the dying declaration and acquitted the appellants of all the charges. "-\ - Against the acquittal, the State filed an appeal and the mother of the deceased filed a revision petition. The High Court issued a suo motu Rule calling upon the acquitted persons to show cause as to way their acquittal should not be E set aside. Ultimately by a common judgment the High Court set aside the acquittal of the three appellants and convicted them under Sec•ions 302 read with 34 and 449 IPC, while affirming the acquittal of others. Hence these appeals. F Partly allowing the appeals, this Court HELD : I. The High Court has rightly discarded the reasonings of the trial court for rejecting the evidence of PW 3, the mother of the deceased, the sole eye witness, that she had seen the appellants assaulting her son in that light of the burning lamp, which was corroborated by the evidence of G PWs 4 and 7, the next door neighbours. Neither of them was cross-ex
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