JUDGMENT 1. - This is an appeal by Siraj and 10 others against the judgment of the Additional Sessions Judge, Kota dated October 29, 1975, by which each appellant was convicted under section 448, 323 read with section 149, I.P.C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default of payment of fine to further suffer rigorous imprisonment for one month on the first and the second count and on the third to undergo rigorous imprisonment for eight months and to pay a fine of Rs. 1000/-, in default of payment of fine to further suffer rigorous imprisonment for one month. 2. The incident that led to the prosecution of the 11 appellants may be briefly stated as follows:- 3. One Ramesh Lal, In charge, Police Station, Kaithun made a first information report to Shri Kalyan Singh, Station House Officer, Kaithun on January 29, 1975 at 7 p.m. It was alleged in the report that the 11 appellants along with Ghasi, Hamir, Chittar, Pabu, Zahur, Shakur and Kaum, co-accused, who have been acquitted by the trial Judge of all the charges, framed against them, formed an unlawful assembly with the common object to murder Keshar Singh, Madan Mohan, Gajanand, Onkarlal and others and in prosecution of the said common object on the unlawful assembly, Nayyar, Mohamad Shakarwala and Munna made a concerted attack on Keshar Singh, Constable, and caused injuries to bis body with lathis on January 29, 1975, inside the premises of Kaithun Government Middle School and forcibly snatched away cartridges from the possession of Ram Narayan, Constable, and thereafter all the appellants and the co-accused inflicted serious injuries on the leg of Madan Mohan alias Ram Gopal and caused simple injuries to Ram Narayan, Gaja Nand and Onkar Lal while they were discharging their duties as public servant. It is further alleged that Munna, Nayyar and Siraj appellants visited the Head Master, Government Middle School, Kaithun on January 29, 1975, prior to the occurrence and complained to him that students of the school were being unnecessarily harassed by school teachers in the premises of the school, by police officers in the town. They further asked the Head Master to close the school. Shri Mukatbeharilal, Head Master, wanted to know the facts. So he called for Ramesh Lal, Sub Inspector of Police Station, Kaithun, through his son. They further asked the Head Master to close the school. Shri Mukatbeharilal, Head Master, wanted to know the facts. So he called for Ramesh Lal, Sub Inspector of Police Station, Kaithun, through his son. Ramesh Lal along with Vijai Singh and Shanker Lal met the Head Master in the school at about 12 p.m. and apprised the latter of all the material facts. Ramesh Lal explained to the Head Master that guardians of some students were called for by him at the Police, Station a day prior to the occurrence for investigation in some cases and the guardians were not harassed at all. The explanation given by Ramesh Lal was not accepted by Munna, Nayyar and Siraj appellant sand some students who instigated the students, rang up the bell of the school and to assemble in the premises. Accordingly, some students rang up the bell of the school as a result of which students came out of their classes and assambled within the precincts of the school building. A good number of villagers also came there and pelted stones at Ramesh Lal and Mukatbeharilal Head Master, who was standing there. Ramesh Lal saw that the crowd had become unruly. So he sent a message to the In charge, Police Station. Kaithun, to send police force. Meanwhile the mischief mongers swelled in number and started pelting stones at Ramesh Lal and other persons who ran inside the rooms of the school for shelter. As a result of the stone throwing Onkar Lal and Madan Mohan received injuries on their persons. The doors and the window of the school were also damaged. Keshar Singh, Gaja Nand, Ram Narain, Ram Nath and Sarwan Singh Police Constables entered the school premises having rifles and lathis with them and soon reached the place where Ramesh Lal was hiding himself but they could not escape unhurt and received multiple injuries at the hand of some miscreants. The miscreants made an attempt to murder Rameshlal by catching hold of his body, but Ramesh Lal took rifle from Sarwan Singh and fired in the air to scare away the crowd. The crowd dispersed on account of shots fired in the air and Ramesh Lal made good his escape from there. The miscreants made an attempt to murder Rameshlal by catching hold of his body, but Ramesh Lal took rifle from Sarwan Singh and fired in the air to scare away the crowd. The crowd dispersed on account of shots fired in the air and Ramesh Lal made good his escape from there. He reached the police station, Kaithun at about 3 p.m. and made a first information report of the incident to the Station House Officer on the basis of which a criminal case was registered and usual investigation was taken up by the police. In the course of investigation, the appellants and other co-accused, who have been acquitted by the trial Judge, were arrested and challaned in the court of the Munsiff and Judicial Magistrate, First Class, Kota, under sections 307, 395, 325, 332, 353, 148 and 448, I.P.C. The Munsiff and Judicial Magistrate, upon finding a prima-facie case, exclusively triable by the court of Session, committed all the appellants and the co-accused to the court of the Sessions Judge, Kota, for trial under sections 307, 395, 3 32, 448, 325 and 149, I.P.C. It appears that the Sessions Judge transferred the case to the court of the Additional Sessions Judge, Kota, for trial in accordance with law. The Additional Sessions Judge charge-sheeted each accused under sections 448, 307/149, 395/149, 332, 353,325, 323/149 and 148, I.P.C. and proceeded to hold the trial because the accused pleaded not guilty to the charges and claimed to be tried. The Additional Sessions Judge concluded the trial and found the 11 appellants only guilty of the offences punishable under sections 441, 448, 148 and 323 read with section 149, I.P.C. Accordingly, he convicted them of the said offences and sentenced them in the manner indicated above. Aggrieved by their convictions and sentences, the appellants have preferred this appeal. 4. I have carefully perused the record and and heard Mr. V.S. Dave, learning counsel for the appellants and Mr. S.B. Mathur, Public Prosecutor, for the State. Aggrieved by their convictions and sentences, the appellants have preferred this appeal. 4. I have carefully perused the record and and heard Mr. V.S. Dave, learning counsel for the appellants and Mr. S.B. Mathur, Public Prosecutor, for the State. Firstly, it has been contended on behalf of the appellants that the appellants were unknown to the eye-witnesses prior to the occurrence and before the evidence of those witnesses could be accepted as sufficient to establish the guilt of the appellants, it was necessary to seek for good corroborative evidence in support of the evidence of identification in court and such corroborative evidence could usually be the evidence of the test identification which was lacking in this case. It was further urged that in the absence of the test-identification proceedings the more statement of the eye-witnesses that the appellants were the real culprits, should not have been believed at all. The Public Prosecutor, on the other hand, urged that non-holding of a test identification parade cannot be the ground to vitiate the trial, because failure to hold a test identification parade does not render in admissible the evidence of identification in court. According to his submission, the trial court believed the evidence of identification and court in convicted the appellants on its basis and so it is not open for the appellants to contend that the credibility of the eye-witnesses on the point and identification was adversely affected by non-holding of a test identification parade by the prosecution. 5. I have given my earnest consideration to the rival contentions mentioned above. At the outset, I may observe that where culprits are not known to the eye-witnesses, a test identification parade of the suspects has to be held at the earliest before a Magistrate. Absence of a test identification parade may not vitiate the trial, but it is no doubt an important factor in assessing the credibility of the witnesses on the point of identification. In the instant case, Mukatbeharilal P.W. 1 failed to identify any of the appellants in the trial court, although he named Usman and Munna to be the persons who had approached him and made a complaint against the teachers and the Station House Officer regarding misbehaviour with the students. He clearly admitted in his deposition at the trial that he was unable to identify any of the two persons, viz., Usman and Munna in the court. He clearly admitted in his deposition at the trial that he was unable to identify any of the two persons, viz., Usman and Munna in the court. Likewise, he further clearly expressed his inability to identify any accused in the court. His admission is quoted below in vernacular;- " HkhM+ esa bu eqyfteku esa ls dksbZ gksxk rks ugha igpku ldrkA " Hence, his evidence regarding identification of the appellants is of no value. Similar is the evidence of Mohan Lal PW. 2, who stated in clear and definite terms that he could not identify any accused and he could not say that any accused was present in the crowd, His admission is as follows:- " eSa gkftj vfHk;qDrx.k dks ugha igpku ldrkA os HkhM+ esa gksaxs rks ugha dg ldrkA " Onkarlal, P.W. 3, also failed to recognise any accused in the trial court. He merely stated that two or three persons, whom he did not know, had come along with the Head Master and thereafter school boys and the members of the public assembled there and started pelting stones at the police, Keshar Singh, P.W. 4 no doubt stated at the trial that Munna, Nayyar, and Mehmood Shakkarwalla had beaten him with lathis. He identified the aforesaid accused persons in the court. He further stated that apart from from these persons 7 or 8 other accused, viz., Ghasi, Ibrahim, Kaddus, Rashul, Siraj, Chhota and Zahur also were there having lathis and Gandasas in their hands. In his cross-examination this witness clearly admitted that he did not personally know Nayyar, Munna and Shakkarwala appellants. From his statement it is evident that the accused were unknown to him, because he identified them only in the court by touching their bodies with his hands. Ramesh Lal P.W. 5 named Mahmud Shakkarwala, Kaddus, Chand, Ibrahim, Hamid and Abdul Aziz alias Machhar to be the miscreants along with 30 or 35 persons who had pelted stones at him and his police party. But in his cross-examination he admitted that Siraj, Machhar, Chand, Ibrahim, Hamid and Amir were personally not known to him prior to the occurrence. He claimed to have known Mehmud Shakkarwala only, because he ran a shop of sugar. But in his cross-examination he admitted that Siraj, Machhar, Chand, Ibrahim, Hamid and Amir were personally not known to him prior to the occurrence. He claimed to have known Mehmud Shakkarwala only, because he ran a shop of sugar. His evidence relating to identification of Mehmud Shakkarwala is of no value, because in his cross-examination he further admitted that about 400/503 person had assembled there having armed themselves with lathis, Gandasas and Dharias and had started pelting stones. But he could not tell the names of the persons who has pelted stones. His admission is quoted below in extense:- " ml oDr /kwy gekjs ij mNkyh xbZ FkhA yM+ds dk uke ;kn ugha bUgha yksxksa esa ls FksA /kwy mNkyus ls ge dejs esa pys x;s FksA ge tc dejs esa pys x;s os iRFkj tk jgs FksA gSM ekLVj lkgc dejs esa Fks rc rd fdrus iRFkj vk;s Fks dg ugha ldrkA Qsdus okyksa ds uke ugha crk ldrk ---------------- esjs lekus dsnkjflag ds iRFkj yxk FkkA tc ge dejs ls ckgj vk;s rc yxk FkkA ydfM+;ka Hkh yxh gqbZ FkhA fdl&fdl us iRFkj Qsads ugha crk ldrkA ydfM+;ka dgkWa dgkWa ij dslj flag ds ekjh ugha crk ldrkA jkeujk;u ds rhu pkj pksVsa vk;h Fkh iRFkj dh fdruh Fkh ykBh dh fdruh Fkha ugha crk ldrkA " In this manner, the evidence of Ramesh Lal does not inspire confidence regarding identity of the miscreants. Likewise Ramnarain, P.W. 7, for the first time identified Nayyar, Mehcmud, Munna, Shiraj and Rassul accused only in the court by touching their bodi with his hand. In his cross-examination Ram Narain admitted as follows:- " bu vknfe;ksa ls esjk dksbZ O;fDrxr dke ugha iM+k %& " He, however, asserted that these persons who were known to him prior to the occurrence, because he frequently used to see them moving to and fro before their eyes. He was further confronted with and contradicted by his previous statement Ex.D. 2 which he gave before the police and wherein he did not state that Nayyar had beaten Keshar Singh. Another eye-witness is Gajan and PW. 8. He also Identified Siraj, Munna, Nayyar, Mechhar, Hamid. Amir, Rasul, Kaddus and Chand in the trial court to be the miscreants, but he admitted in his cross-examination that these persons were not personally known to him. Another eye-witness is Gajan and PW. 8. He also Identified Siraj, Munna, Nayyar, Mechhar, Hamid. Amir, Rasul, Kaddus and Chand in the trial court to be the miscreants, but he admitted in his cross-examination that these persons were not personally known to him. His admission is in the following words:- " eq>s pkj ikap efgus gks x;s Fks O;fDrxr eqykdkr ugha FkhA ;s yksx vkrs tkrs Fks oks budks tkurk Fkk------------ vHkh eSaus vCnqy vtht] vehj] jlwy ds gkFk yxk;s gSaA ;s yksx D;k dke djrs gSa ugha dg ldrkA cdk;k yksx D;k dke djrs gSa ugha irkA " Brij Ballabh, PW. 10 expressed his inability to identify any accused. He definitely stated in his deposition at the trial that he could not identify any miscreants because there was a crowd. In his cross-examination he further admitted that he knew the accused, but he could not see them in the crowd. Likewise, P.W. 11 Madan Mohan alias Ram Gopal has admitted in his deposition that he could not identify the accused persons. He merely stated that they were Muslim. Vijay Singh, P.W. 12, no doubt named Munna, Nayyar, Chotta Setha and Siraj, Kaddus, Ayub, Kamru and Amru to be the miscreants who shouted slogans and pelted stones at the police, but he made the following admission in his cross-examination:- " fdldk iRFkj dgkWa yxk Fkk /;ku ugha gS& dgkA tc fd fdokM+ VwV x;s os iRFkj vUnj vkus yxs rc ckgj vk;sA igys cjkens esa dSls vk;k /;ku ugha jgkA HkhM+ tc ihNs gVh rc eSa ckgj vk;kA rc dslj flag] ljoj flag] jke ukFk ds pksV yxh gqbZ FkhA HkhM+ ckmaMjh ds ckgj fudy xbZ FkhA dslj flag ds xM+lk ls fdrus ckj fd;k irk ugha jgkA eSaus rks pksVsa gh ns[kh Fkh eSa djhc 1 ?k.Vk Hkj rd dejs esa jgk FkkA dslj flag jkeukFk dh ekjihV fdl txg gqbZ ugha dg ldrkA iRFkj Qsadus okys 100&150 rks gksxk ghA " Hence, upon close and careful scrutiny of the evidence of the aforesaid eyewitnesses, it is evident that the eye-witnesses identified the appellants only when they were in the dock. The Investigating agency should have placed the appellants before hand with others and asked the eye-witnesses to pick them up. The Investigating agency should have placed the appellants before hand with others and asked the eye-witnesses to pick them up. The prosecution could not afford any reasonable explanation for non-holding a prior test identification parade in this case for corroboration of the sworn testimony of the eye-witnesses in court as to the identity of the appellants who were not previously known to them. Consequently, it would be unsafe to act on the mere evidence of identification of the appellants in court when, as indicated above, the appellants were strangers to the eye-witnesses at the time of occurrence. Apart from this, most of the eye-witnesses admitted in their depositions at the trial that there was a huge crowd at the time of occurrence and they could not identify the appellants in that crowd. The evidence led by the prosecution is highly discrepant and unsatisfactory as to tho identity of the appellants and it is highly risky to base convictions of the appellants on it. The trial Judge did not consider this aspect of the case and committed an error in holding that the prosecution has proved its case beyond reasonable doubt against the appellants. 6. The result of the above discussion is that I accept the appeal filed by Siraj, Munna, Nayyar, Mehmud alias Mohomad Shakkarwala, Kaddus, Ibrahim, Rasul, Chand, Chhota, Abdul Aziz and Hamid, set aside their convictions under sections 448, 148 and 323 read with section 149, I.P.C. and acquit them of the aforesaid charges. All the appellants are on bail. They need not surrender to their bail bonds which are hereby cancelled.Appeal accepted. *******