HEMANT GUPTA, J.

(1.) This order shall dispose of aforesaid criminal appeals, arising out of judgment/order dated 23.4.2002, convicting the accused-appellants for the offences punishable under Sections 302/34 IPC and sentencing them to undergo imprisonment for life and to pay a fine of Rs.1000/- each. In default of payment of fine, the accused were to further undergo rigorous imprisonment for a period of six months.

(2.) The prosecution case was set in motion on the statement of ASI Kashmir Singh, which is to the effect that on 11.5.1999, he alongwith other police officials while checking vehicles at a picket (naka) at Chowk Maqboolpura, heard noise Mar Ditta Mar Ditta from the side of Guru Ram Dass Dental Hospital, Amritsar. Thereafter, he rushed to that side. LC Kulbir Singh was also present alongwith the other police officials. He saw Jagdish Singh son of Swaran Singh resident of Gali No.1, Maqboolpura, who is known to him and another person, who was Mulla Fashion slim body, wearing pant shirt, were quarreling with unknown rickshaw puller by the side of metalled road. Jagdish Singh caught hold of that rickshaw puller from neck. The other person gave blow of dagger in left flank of rickshaw puller. On seeing the police party, both persons ran away to katcha path by the side of drainage. The accused were chased by him and other co- officials, but the accused escaped due to darkness of night. The entire occurrence was seen in the light of street light. The rickshaw puller was bleeding in the left flank. His body was smeared in blood and he was unconscious. Rickshaw was standing nearby. After arranging the conveyance, the injured has been sent to Emergency of Guru Nanak Dev Hospital.

(3.) The said information was sent to the Police Station at 11.05 PM, on the basis whereof FIR No.72 dated 11.5.1999 was lodged. The special report was received by the Magistrate of the concerned area at 10.00 AM next day i.e. 12.5.1999. Both the accused were arrested 12.5.1999 and were made to stand trial after completion of investigation. The post-mortem examination was conducted on 12.5.1999. As per post-mortem report (Ex.PE), one incised wound was found on the left lateral chest wall and the cause of death was injury on left lung and heart (vital organ), which was sufficient to cause death in the ordinary course of nature. To prove its case, the prosecution examined ASI Kashmir Singh as PW-5, LC Kulbir Singh as PW-6 and Investigating Officer Jasdip Singh as PW-8 apart from other witnesses. After going through the evidence on record, the learned trial Court returned a finding that the prosecution has been able to prove the guilt of the present appellants beyond a reasonable doubt and sentenced them for life imprisonment, as mentioned above.

(4.) ASI Kashmir Singh (PW-5) has deposed in the manner as stated in his statement, which led to FIR (Ex.PC). He has deposed that accused Jagdish Singh was known to him as he was earlier prosecuted in a case under Excise Act. Accused Manjit Singh took out a dagger from his dub and gave a blow with it to the rickshaw puller. In his cross- examination, he has deposed that he has chased the accused upto a distance of 50/60 feet, but they managed to escape and he did not fire from any weapon. He has also deposed that the investigation was taken over by the SHO at 12.30 AM at night time and both the accused were arrested from the house of accused Jagdish Singh. He denied the suggestion that he has not witnessed any occurrence.

(5.) LC Kulbir Singh (PW-6) in his statement has deposed that he knew Jagdish Singh accused, as he was involved in a Excise case. He saw from a distance that Jagdish Singh caught hold of a rickshaw puller from his neck and accused Manjit Singh gave dagger blow to that rickshaw puller. In his cross-examination, he has admitted that he has not joined any identification parade. A perusal of the such evidence and cross-examination conducted on such witnesses, support the prosecution case in its entirety. Apart from the eye-witness account by examining ASI Kashmir Singh (PW-5) and LC Kulbir Singh (PW-6), the prosecution has also produced Ex.PM, disclosure statement, whereby accused Manjit Singh has led to recovery of shirt, blood stained vest and dagger in the bushes in between street Nos.4 and 5 of Maqboolpura. In pursuance of such statement, blood stained dagger, a shirt flowery terrycot and one blood stained vest were recovered. Similarly , Ex.PL is the disclosure statement of accused Jagdish Singh in respect of recovery of one blood stained shirt of white colour. As per the report of the Chemical Examiner Ex.PN, all the contents received, were found to be blood stained.

(6.) Mr. Goraya, learned counsel for the appellants has vehemently argued that Manjit Singh has been falsely implicated, as his name has not been disclosed in the FIR. It has not come in the evidence that appellant Manjit Singh is a Mulla Fashion person i.e. who has supporting a beard as a Mohammedan. No identification parade was held, therefore, naming of accused in the Court, is not sufficient to connect the appellant Manjit Singh with the crime. He relies upon a judgment reported as Kanan and others Vs. State of Kerala, AIR 1979 Supreme Court 1127, to contend that since Manjit Singh was not known to the witnesses earlier, therefore, his identification in the Court for the first time does not prove the involvement in the crime. Alternatively, he argued that deceased Ramu is said to have received single injury and such injury is caused on account of sudden provocation and, therefore, it is a culpable homicide not amounting to murder. Therefore, the conviction of the appellants for an offence punishable under Section 302 IPC is not sustainable. It is also argued that the identity of Manjit Singh is not proved, whereas the allegation against Jagdish Singh is only of catching hold of the deceased and in these circumstances, false involvement of the appellants cannot be ruled out. Thus, the prosecution has failed to prove charges beyond a reasonable doubt against the appellants.

(7.) We do not find any merit in the argument raised by the learned counsel for the appellants. ASI Kashmir Singh (PW-5) and LC Kulbir Singh (PW-6) have categorically identified Manjit Singh, as the accused, who gave dagger blow to the deceased, when appearing as a witness. As a matter of fact, both the accused were arrested next day i.e. 12.5.1999 from the house of accused Jagdish Singh. No cross-examination was directed in respect of identity of Manjit Singh by ASI Kashmir Singh (PW-5) and LC Kulbir Singh (PW-6). Once the eye-witnesses in Court on oath have deposed the fatal blow having been inflicted by Manjit Singh, the argument that there was no identification parade, looses its significance. The statements of the witnesses have to be examined in each case to return a finding regarding failure of the prosecution case for not holding test identification parade.

(8.) In Dana Yadav @ Dahu and others Vs. State of Bihar (2002) 7 Supreme Court Cases 295, [LQ/SC/2002/955] the Honble Supreme Court has held that an eye-witness can identify an accused in the Court. It is in the nature of substantive evidence. As a matter of prudence, such evidence may require corroboration. But it cannot be said that the identification in the Court is not admissible in evidence. It was further held that rule of corroboration has exceptions and such exceptions were delineated in the latter part of the judgment. It was held to the following effect :

"5. .. It is well settled that identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged offence or the persons who are alleged to have been involved in the offence. Such tests or parades, in ordinary course, belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding on right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits..

6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in Court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. "

(9.) Still later, in Hem Singh @ Hemu Vs. State of Haryana, (2009) 6 Supreme Court Cases 748, [LQ/SC/2009/1163] the Court held that the failure to hold the test identification parade, is not a infirmity in the case set up by the prosecution, as the accused can be identified by a witness in the Court as well. In Kanans case (supra), the witness has deposed that he knew the accused by face and yet named them while identifying them in court. In the facts of the present case, ASI Kashmir Singh (PW-5) and LC Kulbir Singh (PW-6) have identified both the accused in the Court and have consistently deposed that the fatal blow was inflicted by appellant Manjit Singh. Said part of the testimony has not been disputed in the cross-examination. Therefore, mere fact that the test identification parade was not held will be of no consequence when the identity of the accused was not disputed by the appellants before the trial Court.

(10.) However, there is no evidence that there was any pre- determined mind of the accused/appellants in a sudden fight in the heat of passion for the commission of crime. The dispute on street seems to have arisen suddenly, without any pre- mediated and in any calculated manner. Therefore, the conviction of the appellants of an offence committing culpable homicide amounting to murder cannot be said to be justified. It is a case of commission of offence of culpable homicide not amounting to murder falling under Exception 4 of Section 300 of the Indian Penal Code and is punishable under Section 304 Part-II of the Code. The appellants are convicted accordingly.

(11.) Learned counsel for the appellants points out that though the sentence upon appellant Manjit Singh was suspended on 2.5.2008, but in the absence of requisite bail bonds, he could not be released on bail. Since the appellants were in custody during trial as well as during the pendency of the appeal, therefore, we modify the sentence imposed upon the appellants as to that of already undergone. The appellants shall be set at liberty forthwith, if not required in any other case.