D. L. MEHTA, J. - (1.) THIS criminal appeal is directed against judgment dated 30. 1. 1980 of the Sessions Judge, Jhalawar whereby appellant, Sultania has been convicted for the offence under Section 302, IPC, and sentenced to undergo life imprisonment.
(2.) BRIEFLY stated the facts of the case are that on 4. 04. 1979 at about 8 a. m. an oral report was lodged by Ram Singh to Hari Singh Solanki, Station House Officer of Camp Kali Talai with the assertions that, on the intervening night of 3rd and 4. 04. 1979, Narsingh Lal Dangi (PW 9) informed the villagers that somebody has broken into his house; thereupon, the villagers who were reciting sacred songs in the praise of God in the mid-night, were to the house of Narsingh Lal but nobody was found there, so, all returned back to their respective house that, however after a few seconds, Madan Singh heard hue and cry from northern side of the village and he armed with 'jeli' went towards that side duly followed by Bajranga and Moti, and that, they saw some miscreants upon one of them, Madan Singh inflicted a jeli blow on the hand, but at that time, other miscreants fired gun which hit Madan Singh thereby Mandan Singh sustained injury and died due to that injury. None of the miscreants were caught by the villagers. On the basis of the aforesaid information, a case was registered for the offences under Sections 302/34, 457/511 IPC, at police station Raipur (Jhalawar ). Investigation commenced. Appellant, Sultania, is said to have been arrested on June 7, 1979, and put to identification parade wherein he was identified by three of the witnesses. After completion of the investigation, challan was filed. Learned trial Court framed charges under Section 302/34, 447, and 511, IPC against all the accused persons including appellant, Sultana. Accused persons denied the charges and claimed to be tried- 17 witnesses were examined on behalf of the prosecution. Sher Singh (Pw 1) was examined in defence. After hearing the parties; learned trial Court acquitted two of the co-accused but convicted the present appellant and sentenced as indicated above, acquitting him for the offences under Section 457/511, IPC. Hence this appeal. Undisputedly, the only evidence against appellant, Sultania is of identification parade on the basis of which he has been convicted by the learned trial Court. Learned counsel for the appellant contended that at the time of the identification parade, none of the witnesses identified the appellant showing any overt act against him and that was the reason that no charge under Section 302, IPC simplicitor was framed against the appellant and the charge was framed under Section 302 with the aid of Section 34, IPC. Learned counsel further submitted that at the time of trial, the witnesses while identifying the appellant in court alleged that he was the person who fired gun which hit the deceased. On the basis of this testimony, learned trial Court was not justified in convicting the appellant, learned counsel added. Learned counsel for the appellant then urged that the appellant remained in custody long before the date of his arrest and he was got identified by the witnesses at the police station and after that, his arrest was wrongly shown on 7. 6. 1979. That apart, learned counsel contended that in the description of the accused's facial feature,it has been stated that the appellant had small pox marks and these marks were not observed by the learned Magistrate who conducted the identification parade, thereby the Magistrate did not take any precautions so as to rule out wrong identification inasmuch as in the identification memo nothing has been stated about precautions taken for small pox marks.
(3.) LEARNED Public Prosecutor, on the other hand, contended that the appellant has been identified by three eye witnesses of the prosecution side and, therefore, learned trial Court was justified in convicting the appellant. We have heard and considered the rival contention of the parties. Admittedly, the appellant was not known to the witnesses and was stranger for them. Holding of test identification parade serves two fold object, firstly it is meant to satisfy the investigating authority before sending up the case for trial to court that the person arrested but not preriously known to the witnessses, was one of those who committed the crims, and secondly, it is to satisfy the court that the accused was the real offender. ;