D.P. Gupta, J.
1. This appeal has been preferred by Kailashraj, who was convicted for an offence under Section 326 I.P.C. by the Sessions Judge, Udaipur by his order dated August 6, 1974 and was sentenced to undergo one year's rigorous imprisonment and a fine of Rs. 25/- for the aforesaid offence & in default of payment of fine to further undergo 1 month's rigorous imprisonment.
2. According to the prosecution case, on February 28, 1972, which was the 'Holi day' Kailashraj and Mahendrasingh accused and Madanlal and Mithulal and several other persons had gone to Ashoka Picture Cinema Hall at Udaypur for seing the picture 'Gopi', which was being exhibited in that Hall on the aforesaid day. A quarrel took place between them out-side the ticket window and in the scuffle Kailashraj halleged to have stabbed Madanlal with a knife, while Mahendrasingh is said to have stabbed Mithulal. Both the insured persons, Madanlal and Mithulal were removed to the General Hospital, Udaypur and the First Information Report was lodged. Madanlal could not give the name of his assailant but he described his assailant as a person wearing a yellow bush shirt and yellow trouser. The injuries on the body of Madanlal were examined by Dr. S.S. Baxi, who found a stab wound with clean cut margins, spindle shaped, 1' x 1/2' x 3/4' deep, on the left side of the chest. The aforesaid injury was caused by a sharp and was grievious according to the view of Dr. S.S. Baxi, who found that the pleura was cut. Dr. S.S. Baxi reffered the case to Dr. Ratanlal, who was a radiologist and he found that there was some haziness in the left costo phrenic angel, which meant that there may be a collection of some fluid and blood in between the layers of pluera, inside of the ribs and diaphram.
3. Madanlal PW. 4, identified the accused Kailashraj in the court as the person who had etabbed him in the chest. But he could not identify Kailash Raj in the identification parad held during the investigation of the case. Madanlal Pw. 4 stated that he received a stab wound at the hands of some body out-side the cinema Hall, When asudden quarrel had taken place between two sections of the public in a scramble for purchasing tickets for the Cinema show. Thus, it cannot be said with certainty that Madanlal properly identified the accused Kailashraj as his assailant at the time of the incident. Two other eye-witnesses, who have been examined by the Prosecution are Babulal PW 5 and Rewachand PW 8. Babulal PW 5 stated that he had gone to see the picture on that day and there was a sudden quarrel between the accused persons Mahendrasingh & Kailashraj on the one side & Harijans on the other side on the question of purchasing of cinema tickets and Kailashraj accused caused injuries to Madamlal Harijan with a knife, while another boy coused injuries to Mithulal. Rewachand P.W. 8 also gave an identical statement. Although both these witnesses identified the accused Kailashraj in the court but they were called to identify him at the identification parade. Another Prosecution witness P.W. 9 Jagdish was declared hostile.
4. Learned Sessions Judge reling upon the evidence of P.W. 4 Madanlal P.W. 5 Babulal and P.W. 8 Rewachand convicted the accused Kailashraj for an offence punishable under Section 26 I.P.C., as he came to. the conclusion that the prosecution has satisfactorily established that the accused Kailashraj gave a knife blow to Madanlal. The name of the accused is not mentioned in the First Information Report. PW 4 Madanlal, who is alleged to have been stabbed by the accused Kailashraj, has not been able to identify the accused Kailashraj as his assailant in the identification parade, which was held on March 15, 1972. As a matter of fact, Madanlal identified a wrong person, as his assailant in the identification parade and as such the identification of the accused in the court by Madanlal is not of much avail. There is no doubt, as it appears from the prosecution evidence, that there was too much rush for cinema tickets at the Ashoka Picture Hall on February 28, 1972, which was the day of Holi Festival. It is also in evidence that a sudden quarrel took place over the question of purchasing of cinema tickets between the two sections of the public. Accorciig to the defence story, Mithulal, Madanlal and Rewachand started beating Mahendrasingh accused, while Kailashraj came to rescue him and in the melee the knife of Mithulal struck the stomach of Madanlal. The injury reports of Neelkanth, DW 1, and Jaswantkumar, DW 2, have also been produced, although ihey have not been proved. Merely because the accused Kailashraj admitted in his statement that he was present and he tried to rescue Mahendrasingh, it cannot be interfered that he caused a knife blow to Madanlal. The learned Sessions Judge has tried to make out a case against the accused on the basis that the defence version that knife blow, which Mithulal was going to inflict on Mahendrasingh had fallen on the stomach of Madanlal, could not be believed. I am unable to agree with the view taken by the learned Sessions judge that looking to the evidence of the prosecution and the probability of the case Kailashraj took a knife and stabbed Madanlal, while the prosecution witness for some of them gave beating to Mahendra Singh, jaswantkumar and Neelkantha. According to the learned Sessions Judge, there was a sudden quarrel resulting in a free fight. But it is difficult to hold that the accused Kailashraj was the author of the injuries caused to Madanlal merely on the identification of the accused by the three prosecution witnesses in the court, particularly in view of the fact that neither the name of Kailashraj accused appears in the First Information Report nor the injured Madanlal was able to identify him as his assailant at the time of the identification parade held soon after the occurrence. In such circumstances, it cannot be held that the prosecution has been able to establish firmly that the accused Kailashraj gave a knife injury to Madanlal and in my view Kailashraj accused is emitted to be given benefit of doubt, as the identity of the accused, who inflected the knife injury to Madanlal is not satisfactorily established from the prosecution evidence.
5. In the result, the appeal is allowed and the order of the learned Sessions Judge, Udaipur dated August 6, 1974 convicting the accused Kailash Raj of an offence punishable under Section 326 I.P.C. is set aside and Kailash Raj is given benefit of doubt. The accused is on bail and be need not surrender to his bail bonds.