Gyandera Kumar, J. - (1.) The Applicant was convicted. Under Sec. 392 IPC and was sentenced to undergo two years rigorous imprisonment. His appeal was also dismissed by the Sessions Judge, Aligarh; hence this revision.
(2.) The Applicant was not known to the eye witnesses and the case wholly depended on the result of the identification proceedings held in the case. Apart from the Applicant one other accused was also subjected to the test identification. Only three witnesses were brought to identify the two accused. Debi Das and Kedar Singh identified one man correctly and each of them committed one mistake. However Ram Khilari identified both the accused correctly. The learned Sessions Judge was of the opinion that the result of the identification, being one correct without any error and the other two being 50 per cent correct and 50 per cent incorrect, was sufficient to entail the conviction of the Applicant. I am afraid the view taken by the Sessions Judge cannot form a satisfactory basis for conviction of the Applicant. In Emperor v/s. Debi Charan alias Debi Prasad and Ors., 1942 AWR 293 a Division Bench of this Court was concerned with a similar question in which there were several accused. Out of them, Debi Charan accused of that case was identified by three witnesses, namely, Balua, Ram Sahai and Gopal. Balua had made two correct identifications and had committed three mistakes; Ram Sahai three correct and two wrong, while Gopal four correct and one wrong. In this state of identification proceedings the Division Bench did not consider the evidence of Balua and Ram Sahai as satisfactory; and although there was no defect in the identification evidence of Gopal, yet the Bench did not consider it safe to base the conviction of Debi Charan on his evidence alone. Another accused Prem Shanker of that case was identified by Ram Sahai and Raghunandan. Ram Sahai had correctly identified three persons but had made two mistakes. His evidence was also considered to be poor Raghunandan, who had made four correct and one incorrect identifications was considered as a good witness. But his solitary evidence was not considered to be sufficient for the conviction of Prem Shanker.
(3.) Applying the principle of the above ruling to the present case the testimony of PWs Devi Dass and Kedar Singh cannot be considered to be good against the Applicant. It would also not be safe to maintain the conviction of the Applicant on the solitary evidence of PW Ram Khilari, though he could be considered as good witness against him.;