SHRI NARAIN Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against an order dated 11-6- 79 passed by Additional Sessions Judge, Mirzapur, confirming the conviction and sentence recorded against the applicant (Shri Narain) in a case under Section 326 IPC.

(2.) THE applicant is a Panda in the temple of Asthabhuji Devi which lies in the circle of P. S. Vindhyachal, district Mirzapur. As Panda he used to cater to the needs of the pilgrims and also helped them in doing Puja at the temple. On 3-10-73, at about 9 A. M., Beni P. W. 1, Rameshwar Prasad P. W. 2, Ram Kishore P. W. 3 and Ramdin P. W. 4 came from Banda to offer Puja at the temple. It is said that at that time the applicant was present in the temple and he conducted these persons to the place where the deity was installed for Puja. While offering Puja. Beni P. W. 1 broke a coconut fruit as an offering to the deity. THE applicant asked him to pay him Rs. 1.25 P. as Dakshina. Beni refused to oblige him and continued with his Puja. THE prosecution case is that the applicant lost his temper, took out a sword and struck Beni with it causing him a grievous cut injury on his right wrist. People present there chased the applicant, but he managed to escape. Someone present in the temple told Beni the name and parentage of the person who had assaulted him. Beni got a report written out mentioning therein the name of the applicant as ,the person who had assaulted him. THEreafter the usual investigation followed and eventually the applicant was sent up to stand his trial under Sec. 326 IPC.

(3.) I have heard the learned counsel for the applicant at sufficient length and after doing so I am firmly of the view that this revision must be allowed. I find that the courts below have not appreciated the evidence adduced in this case in a proper manner with the result that they fell in error and passed a wholly wrong order of conviction against the applicant. Admittedly, neither Beni, P. W. 1 nor the other two witnesses, Rameshwar Prasad P. W. 2 and Ram Kishore P. W. 3, knew the applicant from before. In other words, the applicant was a stranger to them. They saw him in Court at the time of trial and stated that he was the person who had caused sword injury to Beni P. W. 1. Their evidence, to my mind, is not such which should have been implicitly relied upon by the courts below. Where a witness, identifies an accused who is not known to htm in Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observations. The idea of holding test identification parade under Sec.9 of the Evidence Act is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen once. If no test identification is held,, then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. As no test identification of the applicant had been held in this case, no importance should have been attached to the evidence of the witnesses made in Court. If their evidence is thrown over-board, there is no other evidence in this case to connect the applicant with the crime in question. Further, one will find that the person who had told the name of the applicant to the complainant after the incident, has mot been examined by the prosecution. The prosecution has, given no convincing explanation as to why that person was withheld from the Court. Obviously, he was withheld by the prosecution with an oblique motive. For (sic) we know, he may have taken the name of the applicant because of enmity. Further, it will appear that the police is not well disposed of towards the applicant. It was at the instance of the constable posted at the temple that the report in this case had been prepared. All this goes to make the prosecution case against the applicant open to great suspicion and doubt.