S.K. Ghose, J.
1. The petitioner in this Rule has been convicted under Section 379/511, I.P.C., and sentenced to undergo rigorous imprisonment for six months. The Rule was issued on the ground that the evidence of the so called test identification held by the police in course of the investigation was inadmissible in law in view of the provisions of Section 162, Criminal P.C. I may say that in this Court there is no appearance for the Crown although an explanation is submitted by the trial Magistrate. The prosecution case is that the petitioner in this case tried to pull out a churi from the hand of a girl of ten as she was returning home. She cried out and the man ran away and the present petitioner was apprehended afterwards. The question is one of identification. The only evidence on the point is that of the girl and she is sought to be corroborated by the fact that at the thana she was shown one Probhat whom she did not identify, but that subsequently she identified the petitioner at a test identification which was also held by the police. The learned Magistrate in his explanation says that hardly any value has been placed on this so called test identification. But it is clear from the judgment of the learned Judge that this test identification has been relied on by the Magistrate as corroborative evidence. Whatever it be, the statement, expressed or implied, which the girl must have made by way of identifying the petitioner at the thana, is hit by the provisions of Section 162, Criminal P.C. This proposition, as Mr. Bhattacharya for the petitioner has pointed out, is not without authority and he has referred to the cases of Nagina v. Emperor 1921 All 215, Harendra Nath v. Emperor 1925 Cal 161 and Keramat Mondal v. Emperor 1926 Cal 320. There is no other evidence against the petitioner. On the contrary, evidence appears to have been given to the effect that he is well off and the learned Judge rejected it saying that
the contention leads to the absurd theory that rich men can do no wrong.
2. We think that this conviction cannot be sustained. The petitioner is acquitted and directed to be set at liberty. He will be discharged from his bail bond.
3. I agree that this Rule must be made absolute. It seems clear that the statement made by the complainant to the investigating officer to the effect that the petitioner was the person who had attempted to rob her was inadmissible in evidence in view of the provisions of Section 162, Criminal P.C. In the course of his argument Mr Bhattacharya referred to the case reported in Nagina v. Emperor 1921 All 215 and I desire to say that, as at present advised and with all respect to the learned Judge who decided that case, I should not be prepared to say that the evidence of a test identification is only admissible under Sections 155 and 157, Evidence Act. It is not necessary to decide that point in disposing of this Rule and it may therefore be left open.