The High Court dismissed the appeal preferred by the appellant herein and the said Udayakumar.
The learned Trial Judge by a judgment and order dated 17.09.1996 held the appellant guilty of companymission of the offence of murder of John Basha punishable under Section 302 IPC and companyvicted Udayakumar for companymitting an offence punishable under Section 307 IPC acquitted the other three accused persons.
PW 3 Usman Ali was allegedly stabbed by Udayakumar.
When they cried for help, the appellant allegedly picked up a stone and dropped it on the head of the deceased.
It has further been accepted that whereas the Accused No.
Prior thereto or immediately thereafter, the appellant and the said Udayakumar was number put on test identification parade.
Appellant allegedly shouted that they were the persons who had thrown the bomb at the RSS office and started stabbing the deceased indiscriminately.
He was number even cross examined.
They were, however, acquitted of other charges.
Their names were also disclosed therein as Udayakumar and Ravi.
John Basha deceased and Usman Ali PW 3, the injured , were walking ahead of them.
Out of the five accused persons, who number only were charged for companymission of the said offences, but also for hatching a companyspiracy against the minority companymunity, were put to trial.
Saleem PW 4 and one Mubarak were behind them.
In the said purported test identification parade, whereas PW 1 and PW 3 purported to have identified the appellant, PW 2 and PW 4 companyld number identify even Accused No.
No mark of identification of the accused was also disclosed therein.
1 was short in stature, the appellant was tall.
Appellant and the said Udayakumar thereafter allegedly ran away from the place of occurrence.
He in his deposition stated that in the fourth page of the newspaper, two photographs were published showing the persons companynected with Tirupur murder case.
A First Information Report was lodged against unknown.
PW 4 even companyld number say whether he had seen the appellant and the said Udayakumar prior to the date of occurrence.
Objections were taken by the accused that their photographs had been taken in the police station.
He was returning back to his house accompanied by one Rasheed PW 2 from the mosque.
They were put on test identification parade only on 24.08.1993.
When the deceased, PW 2 and PW 3 turned towards a lane which was on the eastern side of the house of PW 2, the appellant and Udayakumar were seen companying from the opposite direction.
The age of the persons who had been selected for test identification parade had number been numbered by the Magistrate, who companyducted the test identification parade.
But still then according to him their faces were known.
He companyld number even recollect as to whether he had stated about the said identification mark to anybody else.
Photograph of the deceased which had been published in Tamil daily Dinakaran was proved by one King Kong, who examined himself as DW 1.
On or about 14.08.1993, i.e. after five days, the appellant was arrested.
The High Court by a curious process of reasoning opined that as the DW 1 did number whisper a word that the photographs published in the newspaper were those of the photographs of the appellant and the said Udayakumar and as he had number been asked to identify them in companyrt, his evidence was number admissible in law.
The said publication was made in a Tamil daily Dinakaran on 16.08.1993.
He pursuant to the summons issued to him had brought with him a companyy of the newspaper dated 16.08.1993.
On 09.0 8.1993, at about 05.30 a.m., he was going to a mosque for offering the morning prayers.
B. SINHA, J CRIMINAL APPEAL NO.
The said Udayakumar was also arrested.
Their photographs were published in a local daily with the caption that they were the persons who were the accused of causing murder of John Basha and injury to PW 3.
