KRISHNA KAHAR Vs. EMPEROR

JUDGEMENT

(1.) This is a rule calling upon the District Magistrate of the 24 - Parganas to show cause why the conviction of and sentence passed upon the petitioner should not be set aside. The petitioner was convicted under Section 379, I.P.C., for having stolen a necklace from a small girl, who is prosecution witness No. 1. An appeal by the petitioner against his conviction was dismissed by a First Class Magistrate. The rule is confined to three grounds which are as follows : (1) that the trial has been vitiated by the admission of inadmissible evidence, namely the identification, before the investigating officer which forms the main basis of the judgments of both the Courts; (2) for that the trial is vitiated by the admission of testimony on oath or otherwise of little children who themselves admitted that they did not know the difference between truth and falsehood; (3) for that in view of the age and antecedents of the petitioner the sentence is much too severe. The case for the prosecution may be briefly stated: On 10 November, 1938, at about 3 P.M., two children, P.W. 1, Amina Dassi, a girl of 5, and her cousin Amia, a boy of 7, were returning home after having purchased some sweets at a shop in the village. As they were passing along the side of a tank, the accused suddenly appeared and snatched away a gold necklace from the neck of P.W. 1. The prosecution alleged that both the children recognized the accused at this time and also when he was running away. The theft was witnessed also by P.W. 4, who chased the accused but failed to catch him. It is further alleged that another witness, P.W. 7, saw P.W. 4 in the act of chasing the accused. Shortly after the occurrence P.W. 4 and P.W. 3 who is the father of P.W. 2 and the uncle of P.W. 1, came across the petitioner near the police station to which they were (proceeding for the purpose of lodging an information. They took him to the police station and charged him with the offence. His person was searched but the necklace was not found. During the course of the investigation the investigating officer held a test identification parade at which the two children, P.Ws. 1 and 2, picked out the petitioner from a number of other persons. The argument advanced before us in support of this rule is thus presented the case for the prosecution rests on the evidence of the two children, P.Ws. 1 and 2, and of P.W. 4. In accepting the evidence of the children the Courts below have relied strongly upon the result of the test identification parade just referred to. It is contended that the evidence of this test identification is inadmissible, and further that the evidence of the children should have been expunged, because they were not competent to testify as witnesses within the meaning of Section 118, Evidence Act. Mr. Roy Chaudhury, on behalf of the petitioner, has argued that if the evidence of the test identification and the testimony which the children bore, are excluded, the evidence which remains is totally insufficient to support the conviction. It is pointed out that the only remaining evidence consists of the testimony of P.W. 4 which, according to the prosecution, was corroborated by the testimony of P.W. 7.

(2.) Now in regard to the test identification parade held by the investigating officer, it is not disputed that it was conducted during the investigation of the case under Chap. 14, Criminal P.C. It is contended 4hat the statements made by P.Ws. 1 and 2 to the investigating officer at the time when they picked out the accused as the person who had stolen the necklace are hit by the prohibition contained in Section 162 of the Code. Reference has been made in this connexion to a number of cases. In Krishna Chandra V/s. Emperor , it has been very clearly laid down that the evidence of a test identification held by the police in course of investigation, that is to say, a statement expressed or implied, made to the police by way of identifying the accused is inadmissible in law in view of the provisions of Section 162, Criminal P.C. In Harendra Nath V/s. Emperor , it was held that a number of statements made to the investigating officer by witnesses at a time when they were purporting to identify an accused person by pointing him out were wrongly admitted in evidence. In Keramat Mandal V/s. Emperor (1926) 13 A.I.R. Cal. 320, it would appear that during the investigation one of the witnesses accompanied the investigating officer to certain places which she pointed out to him. At p. 526 of the report there occurs this observation: The statements that were made by the witness to the police officer and the fact of pointing out the places to him ought to have been kept back from the jury, as such facts were not brought out in evidence on behalf of the defence as provided by Section 162 of the Code.

(3.) Apart from other objections of a general nature to the practice of permitting test identifications to be conducted by police officers, we have no doubt that in the facts of the present case the identification of the petitioner by P.Ws. 1 and 2 before the investigating officer amounted to statements which are rendered inadmissible by the provisions of Section 162 of the Code. The second branch of the contention advanced on behalf of the petitioner relates to the competency of the two children as witnesses. Section 118, Evidence Act is in these terms: All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.