DARGA AND ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Both these revision petitions raise, for consideration, the question as to whether in a case where a witness claims to know the accused from before, the accused is entitled to ask for a test identification to establish that the claim of the witness that he/she knows the accused from before is not true and that the witness does not know the accused from before and, therefore, could not have identified the accused at the time of the occurrence.

(2.) In criminal revision No. 232/1982, the petitioners are Darga, Pomaram and Dhanaram. They are being prosecuted in respect of charges under sections 148, 302/149, 302/34 and 460 I.P.C. before the Additional Sessions Judge, Sirohi, in connection with an incident which is alleged to have taken place on the night intervening Jan. 2, and 3, 1980; in village Bijova at the house of the Kenaram wherein six persons viz. Lakbaram, Mst Kakku, Pakaram, Mst. Aski, Amra and Darga were killed. In the said case after investigation the police filed the challan against the petitioners in the court of Munsif and Judicial Magistrate, Desuri, and the petitioners have been committed for trial to the court of Sessions and the Additional Sessions Judge, Sirohi, has framed the charges in respect of the offences stated above on February 11, 1981. The case of the prosecution is than Kum. Sukali, aged 11 years, who was sleeping in the house when the incident had taken place, had seen petitioners Daya and Dhanaram passing by her bed soon after the incident. On March 19, 1982, an application was submitted on behalf of the petitioners before the Additional Sessions Judge, whereby it was prayed that Kum. Sukali, the alleged eyewitness, has falsely named the petitioners and that she neither knows the petitioners from before nor can she identify them. In the application aforesaid the petitioners prayed that identification proceeding may he held for the identification of the petitioners by the said witness and till the identification proceedings were held, the petitioners should not be taken out from the Jail. The aforesaid application was rejected by the Additional Sessions Judge by bis order dated June 2, 1982. Being aggrieved by the aforesaid order,the petitioners have filed the revision before this Court under sections 397 and 401 Cr. P. C.

(3.) In Criminal Revision No. 241/1982 the petitioners are Madan Singh, Yashpal Singh, Narpatsingh, Paniya and Gena.The aforesaid petitioners, alongwith six others, are being prosecuted in respect of offences under sections 302, 147, 148 and 149 I. P. C. in connection with an incident which is alleged to have taken place on Nov. 22, 1980, at about 5.15 p.m. in village Sevtalab. In the said incident two persons namely, Harilal and Kapura were killed. After completing the investigation, the police has filed the challan against the accused persons in the court of Munsif and Judicial Magistrate, First Class, Desuri, and the accused persons have been committed for trial to the court of Sessions and the matter is pending before the Additional Sessions Judge, Sirohi. While the matter was pending before the Additional Sessions Judge, Sirohi, the petitioners in this revision petition moved an application dated March 3, 1982, before the Additional Sessions Judge, Sirohi where it was stated that the witnesses have falsely named the petitioners as being present at the time of the petitioners as being present at the time of occurence and that the witnesses neither know the petitioners from before nor can they identify them. By the application aforesaid, the petitioners prayed that identification proceedings may be held for having the petitioners identified by the witnesses and till the said identification proceeding are held, the petitioners should not be removed from Jail. The said application was also dismissed by the Additional Sessions Judge, Sirohi, by his order dated March 2, 1982, and being aggrieved by the aforesaid order the said petitioners have filed this revision petition.