Samaru and Others vs State of U.P.and Others

P. K. Jain, J.—Heard Sri S. T. Siddiqui, learned Counsel for the revisionists and the learned AGA

The revision is being finally disposed of at the admission stage since the learned Counsel has filed copies of relevant documents with an affidavit filed alongwith the revision.

The trial Court convicted the revisionists under Sections 147, 353 and 323, IPC and the appellate Court dismissed the appeal and maintained the judgment and order of the trial Court and passed the order of conviction and sentence.

Both the judgments and orders of the Courts below are challenged mainly on the ground that four witnesses of fact were examined by the prosecution out of whom PW 3 Lallu Yadav had turned hostile and his evidence was not relied upon by the trial Court as well as by the appellate Court. Besides this, the other three witnesses of fact examined by the prosecution are P.W 1 Sharda Prasad, P.W 3 H.C.S.P. Srivastava and P.W. 6 N. C. Jiut Lal. These witnesses have admitted in their crossexamination that they did not know (he accused persons from before. They have also admitted that theyhad seen the accused persons for the first time at the time of the incident and their names were told to them by the witnesses present at the scene of occurrence. The contention of the learned Counsel for the revisionists is that the identity of the revisionists had not been fixed since independent witness had turned hostile and the other three witnesses did not know the accused from before the incident and no test identification parade was held by the prosecution. Learned Counsel has filed copies of the statements of these witnesses which are Annexures 2, 3 and 4 to the affidavit filed alongwith the revision. Both the Courts below have not considered this aspect of the matter. Once it is admitted to the witnesses that they did not know the accused persons from before the incident and they had seen the accused persons for the first time at the time of the incident, it was the duty of the Investigating Agency to have put the accused persons test identification parade which has not been done in the instant case. Without test identification the evidence of the witnesses of identification of accused persons for the first time in the dock becomes suspicious and cannot be believed. Both the Courts below have, therefore, committed error in relying upon the testimony of the prosecution witnesses.

Consequently, the revision deserves to be allowed and is hereby allowed. The judgments and orders of both the Courts below are set aside. The revisionists are given benefit of doubt and are hereby acquitted.

Revision allowed.