Judgment H.N. Kapoor, J. 1. THIS appeal has been filed by Madhusudan against the order and judgment dated 27-8-1975 of Sessions Judge, Tehri Garhwal, in Sessions Trial No. 30 of 1969 (Ld), convicting him under section 326 IPC and 324 IPC and sentencing him to four years' rigorous imprisonment and two years' rigorous imprisonment respectively on each count. Both the sentences have been made to run concurrently. 2. THE prosecution story briefly stated is as follows: Lakhi Ram (PW 2), injured and informant, had gone on 2-10-1968 to see Ram Leela which was held at Kotdwara district Garhwal. He himself is a resident of Tehri. His another friend Bhola Singh PW 1 (injured), resident of Tehri, too had gone to see Ram Leela. Manohari Lal PW 4 who was also resident of Tehri, too was at the Ram Leela ground. He was resident of Tehri but had his work-shop at Kotdwara. At about 1 a.m. Lakhi Ram found that a boy named Santosh was being beaten by several students including Madhusudan appellant. THE assailants were unarmed at that time. He and Mohan Singh intervened and asked those boys as to why so many of them were beating a boy who was alone. At this the appellant abused Mohan Singh hurling dirty abuses and said that they would cut him to pieces and throw his body in the canal. Bhola Singh (PW 1), who too was there, asked them not to speak in that tone. THE appellant then atonce caught hold of Bhola Singh by the neck. Lakhi Ram (PW 2) intervened to save Bhola Singh. THE appellant then struck Lakhi Ram with fists as a result of which he fell down. THE appellant then atonce, took out a Khukhri (big knife) and struck Bhola Singh on his waist. When Lakhi Ram rushed in support of Bhola Singh, he fell down and then the appellant gave a blow with that knife to Lakhi Ram as well on his hip. THE appellant then ran away. Manohari Lal had chased him but he could not be apprehended. One Ravindra Singh too was present along with the boys at that time. Jagmohan Singh Rawat also saw the entire occurrence. These persons, however, have not been examined. Lakhi Ram and Bhola Singh both were atonce removed to the Government Male Hospital, Kotdwara, where their injuries were examined by Dr. One Ravindra Singh too was present along with the boys at that time. Jagmohan Singh Rawat also saw the entire occurrence. These persons, however, have not been examined. Lakhi Ram and Bhola Singh both were atonce removed to the Government Male Hospital, Kotdwara, where their injuries were examined by Dr. Kishori Gupta PW 5, at 1.40 a.m., and 1.50 a.m. They were taken to the hospital by Manohari LaL THE doctor found the following injury on the person of Lakhi Ram :- Incised wound 3" x 2" x 4" cutting the femur bone through and through left side at the level of junction of upper 1/3 and lower 2/3 outer side of left thigh. THE injury was fresh and was caused by some sharp weapon It was grievous and X-ray of left thigh was advised. THE injury report is Ex. Ka-2. THE doctor found the following injuries on the person of Bhola Singh :- 1. Incised wound horizontal 2" x 1/4" x 1/4" over back lower portion. 2. Incised wound horizontal 1-1/2" x 1/4" over back lower portion. Both the injuries ere fresh and caused by some sharp weapon and they were grievous. It appears that X-ray was taken of the injury of Lakhi Ram injured by Dr. Ram Murti Sharma (PW 6) on 18-11-1968 and his injury alone was found to be grievous while the injuries of Bhola Singh were not proved to be grievous. 3. LAKHI Ram got the first information report written by one Ganesh (not examined) and sent it to Police Station Kotdwara through Manohari Lal (PW 4). It was received there at 2.40 a. m. on 3-10-1968 i.e. on the same night between 2-10-1968 and 3-10-1968. Head Moharrir Prem Dutt (PW 3) prepared the chick report Ex. Ka-2 on the basis of that first information report. A case under section 324 IPC was registered against Madhusudan. Sub-Inspector Narain Singh (PW 8) was entrusted with the investigation of this case. On 3-10-1968 he interrogated Bhola Singh, Shanti Prasad, LAKHI Ram, Manohari Lal, Jagmohan Singh and others. He inspected the site and prepared the site-plan Ex-Ka. 9. He also found blood lying there and took into possession blood-stained and ordinary earth and prepared recovery memo Ex. Ka-10 in respect of the same. After completing the investigation he submitted charge-sheet to the appellant on 15-12- 1968. 4. He inspected the site and prepared the site-plan Ex-Ka. 9. He also found blood lying there and took into possession blood-stained and ordinary earth and prepared recovery memo Ex. Ka-10 in respect of the same. After completing the investigation he submitted charge-sheet to the appellant on 15-12- 1968. 4. THE appellant Madhusudan was duly tried, after having been committed to the court of sessions. He denied tie prosecution allegations and stated that he was not even present at the time of occurrence and at that time he was at Dehradun where he was studying. He examined Prem Dutt Sharma (DW 1) in support of this plea of alibi. In support of its case the prosecution examined Bhola Singh (PW 1) Lakhi Ram (PW 2) Manohari Lal (PW 4) and Shanti Prasad (PW 7) as eye witnesses of the occurrence. Bhola Singh and Lakhi Ram are injured witnesses. They and Manohari Lal admittedly were close friends. Shanti Prasad admittedly was an employee of Lakhi Ram at that time. Lakhi Ram was also related to him as an uncle. He is not mentioned in the first information report. There can be no doubt that such an occurrence did take place at the time and place as alleged by the prosecution. It has been fully proved by the madical evidence that Bhola Singh and Lakhi Ram had received injuries at that time. 5. THE point to be considered is whether the appellant was that person who had inflicted these injuries. THE suggestion made in the cross-examination of Bhola Singh is that he, Lakhi Ram and Manohari Lal were creating rowdism under the influence of liquor and somebody in the crowd beat them and disappeared. This suggestion was denied. All these four witnesses, have, however, stated that they did not know Madhusudan from before and they saw him for the first time after the occurrence in the court of the Magistrate during the enquiry. Bhola Singh at first stated that he did not know the name of the appellant from before but he knew him by face as he had seen him before. When he was confronted with his statement made in the court of the committing Magistrate, he admitted that that statement was correct and be had never seen Madhusudan before the occurrence. Bhola Singh at first stated that he did not know the name of the appellant from before but he knew him by face as he had seen him before. When he was confronted with his statement made in the court of the committing Magistrate, he admitted that that statement was correct and be had never seen Madhusudan before the occurrence. Lakhi Ram who got Madhusudan named tin the first information report stated that he did not remember as to who had given the name of Madhusudan to him. He did not remember whether Manohari Singh, Bhola Singh, Jagmoban Singh, Meharban Singh or Ravindra Singh had given the name of Madhusudan to him or not. Dinesh, who is the scribe of the first information report, too has not been examined. THE boy Santosh who was said] to have been beaten earlier too has not been examined. THE investigating officer stated that he tried to find out his whereabouts but he could not be found out. He however, stated that he did not consider it necessary to interrogate Ravindra Singh Bisht although he was named in the first information report. After interrogating the witnesses it must have become clear to the investigating officer that the witnesses themselves did not know the appellant from before. It was therefore, the duty of the investigating officer to put up the appellant Madhusudan for test identification. It would have been a different matter if he was known even to one of the witnesses who was present there and who has been examined. In that case it might have been necessary to put him up for test identification only in case he claimed such test identification. In my opinion, in the present case there is a serious lacuna that the appellant had not been put up for test identification while he was not known to any of the witnesses examined in this case from before. la this connection I may refer to the Supreme Court case of Rameshwar Singh v. State of Jammu and Kashmir, 1972 AWR 247 and the case of Kanan v. State of Kerala, AIR 1979 SC 1127 . In both these cases it was held that it was necessary that the accused should be put for test identification when he was not known Ho the witnesses from before. In both these cases it was held that it was necessary that the accused should be put for test identification when he was not known Ho the witnesses from before. It is true that it does not appear that the accused was named in the first information report in those cases, but in my opinion it would not make much difference and the same principle will apply even when the accused was named in the first information report but was not known to the witnesses from before. I have already observed above that it would have been a different matter even if one of the witnesses was examined who knew the accused from before and at whose instance he was named in the first information report. In that case his evidence would have been a substantive evidence while the evidence of the other witnesses might have been used for the purpose of corroboration. 6. ON behalf of the defence a suggestion was also made that the appellant was implicated in this case at the instance of constable Prem Dutt. It is in evidence that some constables were posted at the Ram Leela ground for maintaining law and order. It is not possible to believe that the constable or constables, who were posted there, did not arrive soon after the occurrence. The police station is only at a distance of 500 yards from the Ram Leela ground. Lakhi Ram has stated that the occurrence had taken place in the night and he got the report written in the day. He did not remember whether he got it written in the afternoon or in the evening. He stated that he got the report written at the hospital. If it was so, it would throw a. great doubt on the first information report having been actually taken down at.2.40 a. m., on 3-10-1968. According to Head Moharrir Prem Dutt the next entry in the general diary was made at 10.20 a. m., on 3-10-1968. The possibility is thus not ruled out that the first information report was ante-timed. If the investigating agency could go to the extent of showing the first information report ante-timed, it could also go to the extent of getting the name of Madhusudan introduced in the first information report. The possibility is thus not ruled out that the first information report was ante-timed. If the investigating agency could go to the extent of showing the first information report ante-timed, it could also go to the extent of getting the name of Madhusudan introduced in the first information report. After considering the entire evidence on the record and the circumstances of the case, I am not satisfied that the prosecution has succeeded in proving its case against the appellant Madhusudan beyond all reasonable doubts. He is, therefore, entitled to be given the benefit of doubt. 7. IN the result, the appeal is allowed, the conviction and sentence of Madhusudan appellant are set aside and he is acquitted of the offence with which he was charged. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Appeal allowed.