M. Murtaza Husain, J.
1. Ram Bahadur appellant has been convicted Under Section 302 I. P. C. by the 1st Civil and Sessions Judge, Aligarh, through his order dated 22-2-1972. The learned Judge has sentenced the appellant to undergo life imprisonment for that offence.
2. There is a village in the district of Aligarh known as Purdil Nagar. It lies within the circle of Police Station Sikandra Rao and is at a distance of about two miles from that thana. The said village appears to be a big one as there is an Intermediate College in that village which College is also a recognised centre for the High School examinations conducted by the U. P. Board of High School and Intermediate Education. There is a dharamshala in that village which belongs to one Sri Ghan Shiam Das. Its building is double storeyed. There are rooms in both the floors of that building. There are tin sheds on three sides in the ground floor in front of the rooms which exist in that floor. The building is electrified. The High School examination of 1971 was going on when the occurrence of the case under appeal took place. Students belonging to adjoining village had come to Purdil Nagar for taking up their examination at that centre and some of those students including Madho Singh PW 7, Rajbir Singh PW 8, Kishan Lal PW. 9, Ram Gopal PW. 10, Satish Chandra PW. 12 and Sarvesh Kumar PW. 17 were staying in different rooms of the dharamshala.
3. The prosecution case is that just out of fun the students occupying different rooms of the dharamshala used to throw brick-bats upon the tin sheds which exist in front of the rooms of Dharamshala whereby noise was created and the students, who used to remain busy with their studies felt disturbed. An incident of brick-bat throwing had taken place at about 7 P.M. on 14-4-1971 but nothing untoward happened at that time. After about on hour of that incident, i. e. at about 8 P. M. the students, who were occupying the first floor rooms of the dharamshala, threw some brickbats upon the tin sheds of the ground floor whereupon the students, who were occupying the ground floor rooms, raised objection. Ram Bahadur appellenl had come to coach arithmetic to Sarvesh Kumar PW. 17 as his examination of that subject was to be held next morning. This Sarvesh Kumar was occupying a room of the first floor and Ram Bahadur appellant was in that very room when objection was raised against brick-bat throwing at about 8 P. M. by the students occupying the ground floor rooms. Ram Bahadur came down from the first floor to the ground floor and told the students occupying the ground floor rooms that brick-bat throwing would continue and anybody who objected to it would be beaten. Madho Singh PW. 7 then asked Kishan Lal PW. 9 to go to the house of one Subhash and to bring with him the students of village Gopi who were staying at that house so that they could ask the students occupying the first floor rooms of the dharamshala not to disturb their studies by throwing brick-bats. Kishan Lal went to the house of Subhash but the students of village Gopi refused to come with him as they were busy with their studies. When Kishan Lal was returning from the house of Subhash he met Subhash and told him that he had gone to his house to bring the students of Gopi so that throwing of brick-bats resulting in the disturbance of the studies of the students occupying the ground floor rooms of the dharamshala could be stopped. At that time Subhash deceased resident of village Jarera was accompanying Subhash of Purdilnagar. Both those Subhashs asked Kishan Lal to go back to Dharamshala and they promised to come there at about 9 P.M. After some time both of them went to dharamshala. Subhash deceased was then holding a cane, whose broken pieces are Ex. 4. Both of them called out the students occupying the first floor rooms of the dharamshala and asked as to who was causing disturbance to the studies of the boys occupying the ground floor rooms. Ram Bahadur appellant then appeared at the balcony of the first floor and asserted that it was he who was throwing brick-bats. The two Subhashs then went upstairs. They caught hold of Ram Bahadur appellant and brought him to fee ground floor where the deceased gave him a few canes. Some other students also came down from She first floor and Ram Bahadur was rescued. He them went upstairs and again came down with a knife in his hand. By that time both Subhashs had reached the outer door of the dharamshala. Ram Bahadur attacked Subhash deceased by means of a knife and caused injuries to him. Thereafter Ram Bahadur ran to the first floor. The deceased pursued him upto the staircase and fell down. He ultimately succumbed to his injuries.
4. Rajbir PW. 8 saw the beginning of the quarrel and ran away. He informed Sikandra Rao Police by phone that knifing was being done amongst some boys at the dharamshala. Constable Mohd. Afaq PW. 5 and two other constables were then sent to the dharamshala where they reached at about midnight. They found the outer door of the dharamshala closed. They did not find any person in the dharamshala though a dead body was found lying upon the staircase. Manohar Lal PW. 16 was with Rajbir when message was conveyed by him to the Police on phone. He also went to the place of occurrence and ultimately lodged a report of the occurrence at the Police Station at 1.30 A. M. Sub-Inspector Nasirul Haq PW 18 took over investigation of the case. He reached the dharamshala at about 2.30 A. M. in the night of occurrence. Identity of the dead body of Subhash of Jarera was disclosed to him by Shahil Kumar PW.. 15. After holding the inquest the dead body was sent for post mortem examination which was held by Dr. J. S. Pawar PW. 1 on 16-4-1971. He found 10 ante mortem injuries upon the dead body, two of which were punctured wounds--one in front of the chest and the other on the right side of the abdomen. The remaining ante mortem injuries were abrasions and multiple abrasions. Upon internal examination sternum, pericardium and left auricle of the heart were found punctured under the external punctured wound which was. upon the chest of the deceased. In the opinion of Dr. Pawar the deceased had died as a result of shock and haemorrhage caused by the punctured wound on his chest which had damaged the heart and was directly responsible for putting an end to the life of the deceased. After conclusion of investigation the appellant was charge-sheeted
5. The appellant pleaded not guilty to the charge framed against him and denied the alleged commission of murder of Subhash deceased by him. He further pleaded that Subhash was killed by unknown assailant and the appellant was falsely implicated for his murder through the manoeuvrings of some persons of his village who were bearing enrnity against him.
6. The learned Sessions Judge believe the prosecution evidence and convicted and sentenced the appellant.
7. There can hardly be any doubt. about the fact that Subhash deceased was killed sometimes at about 11 O' clock in the night of 14/ 15-4-1971 through assault by a sharp-edged and pointed weapon like a knife whereby he received two injuries, one on his chest and the other on his abdomen, and the injury received by him at Ms chest was responsible for putting an end to his life. These facts stand established by the statement of Dr. J. S. Pawar PW. 1 and the post mortem examination report prepared by him. The dead body of Subhash was recovered by the investigating officer from the staircase of the dharamshala of occurrence. Blood was also found lying there. On that account the place of occurrence pleaded by the prosecution can also not be doubted. The only point requiring our consideration in this appeal is whether or not the prosecution has succeeded in establishing that murder of Subhash was committed by the appellant.
8. The prosecution examined Madho Singh P. W. 7, Rajbir P. W. 8, Kishan Lal P. W. 9, Ram Gopal P. W. 10, Satish Chandra P. W. 12 and Sarvesh Kumar P. W. 17 to prove the commission of the alleged crime by the appellant. Sarvesh Kumar P. W. 17 did not support the prosecution case. He donied the visit of Ram Bahadur appellant to the dharamshala in the evening of the day of occurrence for coaching him. He further stated that the incident of brick-bat throwing took place only at 7. P. M. At about 9 P. M. he heard that a quarrel was going on at the dharamshala. Ha then went away from the dharamshala, He was declared hostile by the prosecution. There is nothing in his cross-examination done on behalf of the prosecution to indicate that he had colluded with the appellant. The fact, however, remains that his testimony does not support the prosecution for proving appellant's guilt, Rajbir P. W. 8 has also not stated about the assault of the deceased by the appellant. All that he stated was that when trouble started he ran away and informed the police by telephone. The remaining four witnesses, namely, Madho Singh P. W. 7, Kishan Lal P. W. 9, Ram Gopal P. W. 10 and Satish Chandra P. W. 12 stated that at first Subhash deceased and his companion Subhash of Purdil-Nagar brought down the appellant from the first floor to the ground floor and he was beaten by the deceased by a cane and thereafter the deceased went upstairs, brought a knife from there, and, assaulted the deceased whereby the deceased was injured. The appellant then again ran away to the first floor. He was followed by the deceased but the deceased fell down upon the staircase and died. Out of these witnesses Madho Singh and Kishan Lal were staying in a room of the ground floor of the dharamshala at the time of occurrence whereas the other two were staying in a rooms of the first floor. The learned Sessions Judge has believed these witnesses ; but in our opinion there is a serious infiirmity in their testimony whereby they cannot be safely relied upon.
9. The appellant was not named by Rajbir P. W. 8 as an assailant of the deceased when he informed Sikandra Rao Police about the occurrence. All that he informed on phone was that some boys were indulging in knifing (chakubazi) at the dharamshala. Even in the first informal ion report lodged at the Police Station by Manohar Lal at 1.30 O' clock in the night of occurrence the appellant is not named as the assailant of the deceased. On the other hand it is mentioned therein that some boys had indulged in quarrel and one boy had lost his life in that quarrel. Thus in both the informations conveyed to the Police the name of the appellant does not figure. According to the investigating officer, namely, Nasirul Haq PW 18 the name of the appellant was not revealed to the investigating agency till 10 A. M. on the next day of the occurrence, i. e. 15-4-1971. All the four witnesses, who implicated the appellant at the trial, conceded in their statements that they did not know the appellant since before the occurrence. Madho Singh P. W. 7 admitted in his cross examination that he had stated before the investigating officer that one boy, who was an outsider, had come to coach Servesh at the dharamshala and his name wa disclosed as Ram Bahadur of Ummiapur. He stated in the witness box that the appellant was visiting dharamahala since before 14-4-l971 also but Ram Gopal P. W. 10 and Satish Chandra P. W. 12' very clearly stated that the appellant was seen at the dharamshala only in the evening of 14-4-1971. It is thus clear that Madho Singh P. W. 7 could not have an opportunity of seeing and knowing the appellant since before the occurrence. Kishan Lal P. W. 9 has also admitted in the witness box that he had stated before the investigating officer that on 14-4-1971 a boy, who was an outsider, had come to the dharamshala to coach Sarveah and his name was disclosed to be Ram Bahadur. Ram Gopal P. W. 10 admitted in Ms examination-in-chief that he did not know that boy since before who had come for coaching Sarvesh. Similarly Satish Chandra P. W. 10 conceded during his cross-examination that he had never seen the appellant prior to 14-4-1971 and he did not know him since before that date. Thus all the four eye witnesses, who named the appellant as the murderer of the deceased, did not know the appellant since before the occurrence. In this state of affairs the duty of the investigating agency was to arrange a test parade of the appellant obviously because the object of holding test identification parades is two-fold, namely, (1) to satisfy the investigating authorities that a certain person, not previously known to the witnesses, was involved in the commission of the crime and the investigation was proceeding on correct lines, and (2) to furnish evidence to corroborate the testimony which the witnesses concerned tender before the court at the trial. Mere naming of the appellant by Madho Singh, Kishan Lal, Ram Gopal and Satish Chandra P. Ws. before the investigating officer Under Section 161 Cr. P. C. cannot be of any avail to the prosecution obviously because the statement made by a witness during the course of investigation cannot be used for any purpose other than that laid down by Section 162 Cr. P. C. It cannot be used as a substantive piece of evidence to corroborate the prosecution evidence given at the trial. It could be used only for contradicting the statements of the witnesses examined in the trial court. When the four eye-witnesses did not know the appellant since before it was the duty of the investigating agency to arrange a test identification of the appellant. Had the witnesses succeeded in picking up the appellant at that parade corroborative evidence for lending support to their statements made at the trial could be available. In Ramesh-war Singh v. State of J. & K. : 1972CriLJ15 the eye-witnesses, who named the accused at the trial, did not know him since before. No test identification was held at the investigation stage. The witnesses had undoubtedly named the accused in their statements Under Section 161 Cr. P. C. It was laid down by their Lordships of the Supreme Court that in the absence of any test identification parade and excluding from consideration the. statements made Under Section 161 Cr. P. C. the statements made by the witnesses at the trial, when they did not know the accused since before the occurrence, could not be relied upon for sustaining the conviction of the accused ordered by the courts below. The observations made by their Lordships in that authority fully apply to the facts of the present case. Here too the witnesses, who named the appellant as the murderer of the deceased at the trial, did not know him since before. No test identification was held. The naming of the appellant by the witnesses in their statements before the investigating officer cannot be relied upon as a substantive piece of evidence for corroborating their statements subsequently made at the trial. When the investigating officer reached the place of occurrence at about 2.30 O' clock in the night of occurrence there was nobody in the dharamshala. Even the lights of the Dharamshala were offand were disconnected from the tube well whereby current was supplied to the dharamshala. It appears that suddenly the students, who were occupying different rooms of the dharamshala, came to blows with each other when trouble started on account of throwing of brick bats. The identity of the person who stabbed the deceased remained shrouded in mystery and the appellant was falsely implicated as the murderer of the deceased when the police arrived at the scene of occurrence and the enemies of the appellant came in contact with it. In our opinion the statements of Madho Singh, Kishan Lal, Ram Gopal and Satish Chandra about the commission of the murder of the deceased by the appellant, when they did not know him since before the occurrence, cannot be safely relied upon as the investigating agency failed to get a test identification of the appellant arranged. We, therefore, find it absolutely unsafe to sustain the conviction of the appellant which has been ordered by the court below.
10. This appeal is consequently allowed and the conviction and sentence of the appellant ordered by the trial court are set aside. The appellant is on bail. He need not surrender, His bail bonds are discharged.