- (1.) THIS is an appeal by the accused Jodh Singh against the judgment of the Assistant Sessions Judge, Jaisalmer, dated the 7th of June, 1955, where he has been sentenced to seven years' rigorous imprisonment and a fine of Rs. 101/ -. In default of payment of fine, he has been further sentenced to six months' rigorous imprisonment.
(2.) THE prosecution story was that on the 2nd of June 1952 at about 7 or 8 p. m. five dacoits came to the house of one Kirta at his dhani near the village Khara. THE dacoits were armed with lathis and guns. It is said that they belaboured Kirta, his wife Mst. Momal and his nephew Bharmalia. Bharmalia tried to run away, whereupon one of the accused fired at him with the result that he was injured in his left arm. THE report of the occurrence was made at the police station Phaloodi on the next day. After investigation the police challaned only one accused namely, Jodh Singh under secs. 395 and 397 of the Indian Penal Code. THE Sub-Divisional Magistrate, Phalodi, committed him to the court of the Sessions Judge, Jodhpur. THE trial was, however, conducted in the court of the Assistant Sessions Judge, Jaisalmer. It may be observed here that although the learned Assistant Sessions Judge has sentenced the accused, he has not mentioned the section of the Indian Penal Code under which he has been convicted. It however appears from his judgment that he has found the prosecution story to be proved. Learned counsel for the appellant has urged that the trial court has committed a grave error in convicting the appellant even though there is no evidence worth the name against him. I have gone through the record of the case and it appears that so far as the fact of dacoity at Kirta's house is concerned, it is certainly proved beyond doubt by his statement as also that of his wife Mst. Momal and his nephew Bharmalia. The question for determination however is whether the appellant had taken any part in the crime. It appears that no stolen property has been recovered from the possession of the appellant. The only evidence against him is that of identification by Kirta and Mst. Momal in the court. It appears from the record of the trial court as also from the judgment that the appellant was put up for identification by the said two witness Kirta and Bharmalia before a Magistrate but both of them failed to identify him at that time. It is strange that the learned Assistant Sessions Judge has relied on the statement of Mst Momal even though two other witnesses had failed to recognise the appellant at an earlier identification parade. Mst. Momal was not taken to the first identification parade and her mere statement in the court that she recognised the appellant as one of the dacoits could not be sufficient for convicting the appellant. In the case of Bhurgiri vs. The State (1) it was observed that ''the sworn testimony of witnesses in the court as to the identity of strangers, generally speaking, requires corroboration which should be in the from of an earlier identification proceeding. " It was certainly observed that it was not impossible for a court, if it was satisfied from the evidence of a particular witness that it could safely rely upon it even without the precaution of an earlier identification proceeding But the learned Assistant Sessions Judge has given no reasons in the present case as to how he thought Mst, Momal to be such a reliable witness that he could base the conviction of the appellant only on her statement without the necessity of an earlier identification. When two persons, namely Kirta and Bharmalia were sent at the earlier parade for identifying the appellant it was the duty of the prosecution to send Mst. Momal also at that time. The prosecution did not send her on the ground that she was heavy with child at that time. But, then she should have been asked to identify the accused as soon as she was able to do so. It is very easy for any person to point out any accused in the trial court. It is only an earlier identification by that witness which can serve as a guarantee for the truth of the statement. In the present case, that guarantee was not only missing but on the other hand, the prosecution evidence was further weakened because of the failure of two witnesses to identify the appellant in the parade. Under the circumstances, no reliance can be placed on the statement of Mst. Momal. It has been remarked by the learned Assistant Sessions Judge that when Bharmalia was trying to run away, one of the dacoits had asked Jodha to catch hold of him. In the first instance, it cannot be said that this statement of Mst. Momal is correct because if Jodha were named by one of the dacoits his name should have been mentioned in the first information report. It is, however, clear from the first information report that not a single dacoit was named therein. Moreover, there can be several persons of the name of Jodha and it cannot be said that it was the appellant and no other Jodha who was in the company of the dacoits. It may be further mentioned that Bharmalia again failed to identify the appellant in the court Under the circumstances there is really no evidence worth the name left against the appellant and his conviction under sec. 395 was altogether unjustified. 5. The appeal is allowed, the conviction of the appellant under secs. 395 and 397 is set aside and he is acquitted of both the charges. He shall be released forthwith, if not required in any other case. .;