GULAB C. GUPTA, J. ( 1 ) APPELLANT feels aggrieved by his conviction under section-3021. Re: and sentence of life imprisonment for the same, by judgment dated 25. 7. 1986 passed by Shri K. K. Verma, Sessions Judge, Balaghat in Sessions Trial No. 65/1986 and challenges legal validity thereof in this appeal filed u/s. 374 (2) Cr. P. C. ( 2 ) THE appellant is alleged to have caused murder of Inderchand by thrusting a knife into his stomach on 5. 2. 1986 at about 11. 30 P. M. at Balaghat, as a result of which he died at the hospital at about 1. 50 hours of 6. 2. 1986. Prosecution alleges that Dulichand (P. W. 4) was sleeping in his house and woke up by hearing the voice of Imkalabai, his niece, who was sleeping on the Parchhi and saw the appellant running away. The witness Dulichand chased him shouting Pakro Pakro. The deceased Inderchand, who was coming from opposite direction, tried to apprehend the appellant. The appellant in that process, thrust a knife on the stomach of Inderchand and caused the death. The deceased, while in the hospital, gave his dying declaration, as per Ex. P/13 and stated that he could not see the person stabbing him and could also not see as to what weapon was used for the purpose. The appellant was thereafter arrested and put on trial for offence, as aforesaid. Appellant's defence was that he was not involved and had been unnecessarily put on trial. The learned Sessions Judge, relying on evidence of Dulichand (P. W. 4), held that the appellant was properly identified by Dulichand at the time of incident. The learned Judge further held that identification had taken place subsequently and the appellant had been properly identified therein. That is how the appellant was held guilty and convicted and sentenced, as aforesaid. ( 3 ) THE submission of the learned counsel for the appellant is that the incident had taken place at about 11. 30 P. M. in the month of February, when there was no light and hence the question of proper identification of the appellant is of paramount importance. Relying on dying declaration (Ex. P/13), the learned Counsel urged that if there was sufficient light, there was no reason why the deceased would not have identified the appellant Evidence of Dulichand in this regards said to be wholly unreliable. Relying on dying declaration (Ex. P/13), the learned Counsel urged that if there was sufficient light, there was no reason why the deceased would not have identified the appellant Evidence of Dulichand in this regards said to be wholly unreliable. It is criticised on the ground that though Dulichand admits that he knew the appetents from before, he had not disclosed the appellantts name or identity without ant delay and not even in his case diary statement. As regards identification parade, it is said that the same is of no value, in view of the statement of Dulichand that he had seen the appellant in the Police Station. The learned Dy. Govt. Advocate has, however, supported the judgment of conviction and submitted that evidence of Dulichand (P. W. 4) and Vasudeo (P. W. 5), fully establishes the appellants identity. It is also submitted that as regards test identification parade, the same had become necessary because the appellant was not known by name to any of the witnesses. The fact that he was picked up from a group of about 60 persons also establishes his identity beyond doubt. It is further submitted that there is no enmity alleged by the appellant with the witnesses and, therefore, there is no reason to doubt the correctness of their statement. ( 4 ) IN view of peculiar facts and circumstances of the case, the question whether the appellants identity had been established, beyond reasonable doubt, is the only question requiring consideration of this Court. Before appreciating evidence adduced by the prosecution in this behalf, it deserves to be noticed that the incident had taken place at about 11. 30 in a February night. Dulichand (P. W. 4) is the eye - witness on whose evidence the learned Sessions Judge has placed reliance. According to him, he woke up on hearing the voice of his niece, Imkalabai. Imkalabai has not been examined. As soon as he came out into the Chhapri, he saw the appellant running away towards Shyam Talkies and chased him, shouting Pakdo-Pakdo. He further deposed that a bulb was on at the Parchhi and provided sufficient light for denigration. He also recognised that the appellant was wearing a black robe. In his cross-examination, the witness asserts that he had recognised the appellant in the light provided by the bulb at Chhapri. He further deposed that a bulb was on at the Parchhi and provided sufficient light for denigration. He also recognised that the appellant was wearing a black robe. In his cross-examination, the witness asserts that he had recognised the appellant in the light provided by the bulb at Chhapri. In his further cross- examination, he has stated that there was sufficient light on the street provided by electric bulbs. Now if this evidence be believable, there would be no difficulty in holding that the appellant was properly identified. The criticism of this evidence, however, is that the fact of light being in Parch his not contained in the case diary statement (Ex. D/1) and is, therefore, not believable. Case Diary statement A-A states that this witness, on hearing sound, woke up and came out in the Parchhi and saw a boy running towards Shyam Talkies. The statement also contained that the boy was wearing black robe and was about 5 or 51/2 height. The statement does not mention that there was any light on the Parchhi. This Court would, however, not find the omission of any consequence. It is well known that while giving case diary statement, the witness is not cross- examined and, therefore, many details would not be available in such a statement. In the instant case, the witness has stated that he chased the appellant for about 100 ft. He has also described the dress and further volunteered that he would recognise him if he be brought before him again. If the witness had been asked as to how did he recognise in the dark night, he may have stated about the light. Under the circumstances, the omission would not be of much consequence. It was thereafter submitted that Dulichand had known the appellant from before the incident and if he had really recognised him, he would have given better particulars about him including the name or relationship and since this has not been done by him, while giving this case diary statement, his Court statement is not believable. It is true that in para-8 of his cross-examination, witness Dulichand had admitted that he knew the appellant from before the incident because he used to visit Jagannath, his relation. Jagannath lives near the house of the witness. It is true that in para-8 of his cross-examination, witness Dulichand had admitted that he knew the appellant from before the incident because he used to visit Jagannath, his relation. Jagannath lives near the house of the witness. According to him, he has told the police that the boy thrusting knife on the deceased was the same person, who was visiting Jagannath, but the said statement is not available in the case diary. The case diary statement does not mention anything about Jagannath. It also does not mention the relationship of the appellant with Jagannath. Can it for that reason be stated that the witness Dulichand was trying to falsely implicate the appellant in the matter? There is nothing in the cross-examination of the witness to indicate any previous enmity between the appellant and the witness. There is also nothing in the examination to infer any motive for the witness to falsely involve the appellant. The case diary statement does mention that he will be able tb recognize the assailant. The height and the dress of the appellant are also stated. A case diary statement is not supposed to be a substitute for Court statement. Court evidence and in the absence of cross-examination at that stage is not expected to contain all minute details. Section-161 Cr. P. C. under which such statements are recorded gives the discretion to the Investigating Officer to record the said statement. Such statements arc used only to contradict the witness u/s. 145 of the Evidence Act or impeach his credit u/s. 155 or to corroborate his court testimony u/s. 157 of the said Act. From the very nature ofthese statements, they are neither treated as evidence nor are they expected to be used as such. Under the circumstances, omissions of certain facts, in such a statement, could only be considered to ascertain whether the witness was giving the truthful testimony in the court and nothing more. When so considered, the aforesaid omission, in the opinion of this Court, would not be of much consequence, particularly when the size and dress of the appellant are described and the witness claimed to properly identify him, if brought before him again. Under the circumstances, this Court would not attach much importance to the aforesaid omission and hold that the witness Dulichand had identified the appellant at the time of incident. Under the circumstances, this Court would not attach much importance to the aforesaid omission and hold that the witness Dulichand had identified the appellant at the time of incident. Subsequent identification of the appellant in the parade held by Ganesh (P. W. 6) would provide weight to the court evidence of witness Duli Chand. Not only the evidence of Ganesh (P. W. 6), but also memo (Ex. P/li) clearly establish that the appellant was properly identified from a group of about 60 persons. It may be that this identification, being of a person already known, would not be of any value as a test identification parade, but it would be of sufficient importance for ascertaining the truthfulness of statement of Dulichand. . Evidence of Ganesh (P. W. 6) has, however, been criticised by the learned counsel for the appellant on the ground that he was a semi-literate person and had not held any such parade earlier. It was, therefore, submitted that he was bound to be under the influence of the Investigating Officer. The Court finds no justification for any assumption in this behalf. This Court cannot assume that the Investigating Officer was a dishonest person. Similarly, this Court would also not assume that a person belonging to a weaker section of the society and studied upto Class-V would always be under the influence of a Police Officer. If the appellant felt so, he should have brought out the atoresaid fact either in the cross-examination of this witness or otherwise. Ganesh (P. W. 6) was, of course, cross - examined from this point of view, but denied every such allegation. He also denied that the memo was written at the instance of any Police Officer. There is, therefore, no justification for any criticism of this witness. There is also reason why this witness against whom nothing whatsoever is alleged by way of previous enmity, would be a party to punishing an otherwise innocent person. ( 5 ) IF evidence of Vasudeo (P. W. 5) is also considered in this context, it will establish the identity of the appellant without any doubt. Vasudeo is a businessman of the Mahalla in which the incident had taken place. There is nothing in his long cross-examination to indicate that the witness has any ill-will against the appellant. This witness had known the appellant by name from before and yet his case diary statement (Ex. Vasudeo is a businessman of the Mahalla in which the incident had taken place. There is nothing in his long cross-examination to indicate that the witness has any ill-will against the appellant. This witness had known the appellant by name from before and yet his case diary statement (Ex. D/2) does not contain the name of the appellant. The case diary statement, however, mentions all other details including the fact that the witness had talked to the appellant at the time of incident when he was running away. The criticism of this witness is based on the assumption that the case diary statements are fully and correctly recorded and, therefore, the truthfulness of the Court statement has to be adjudged on the basis of case diary statement. The reputation of the police being what it is, such an assumption would always not be possible. Such an assumption would not always be justified. The witness has in his cross-examination para3) asserted that he knew the appellant by name and had told the Investigating Officer about it. He was, however, not able to explain as to why in spite of it, his case diary statement does not mention the aforesaid fact. In his cross-examination (para-3) he has asserted that he made this statement to the Investigating Officer on the date of incident itself and yet it appears that the statement of this witness was recorded only on 7. 2. 1986, i. e. , the next date. In spite of it, the burden of proving all facts and circumstances to the satisfaction of the Court being on the prosecution, the discrepancy had to be explained by it. The fact that this witness had met the Investigating Officer in the night of the incident and informed him, is admitted by K. P. Tumrum (P. W. 13) in para-li of his cross-examination. In such a situation, his explanation that he would not record the statement of the witness on 6. 2. 1986 because of his preoccupation would not be readily accepted. Be that as it is, the non acceptance of explanation by Shri K. P. Tumrum (P. W. 13) would add weight to the court evidence of Vasudeo (P. W. 5 ). In such a situation, his explanation that he would not record the statement of the witness on 6. 2. 1986 because of his preoccupation would not be readily accepted. Be that as it is, the non acceptance of explanation by Shri K. P. Tumrum (P. W. 13) would add weight to the court evidence of Vasudeo (P. W. 5 ). If this was the only evidence, it may have been possible to hold the identification doubtful, but the evidence of Vasudeo, when read in the context of evidence of Dulichand (P. W. 4), as examined earlier, would add weight to the aforesaid evidence and make the identification of the appellant beyond reasonable doubt ( 6 ) THE next and important question, however, is whether the conviction of appellant u/s. 302 I. P. C. is legal and justified. The deceased had nothing whatsoever to do with the appellant. Even vice- versa is also correct. The appellant was running away to save himself from Dulichand (P. W. 4 ). It was only to avoid his being caught redhanded, which the deceased was trying, that the appellant committed the crime. The incident had happened more as a result of human instinct of self- defence. Evidence to kill or cause death, in such a situation, would not be in the mind of the accused. This would, in our opinion, bring the offence outside the purview of section-302 I. P. C. The proper section, under which the appellant would be convicted and punished, be section 304 (part1) I. P. C. Under the circumstances, the conviction of the appellant u/s. 302 I. P. C. is set-aside and he is instead convicted u/s. 304 (part-i) I. P. C. Considering all facts and circumstances of the case, a sentence of 10 years R. I. would meet the ends of justice. The sentence of life imprisonment imposed upon him, is, therefore, modified to a sentence of 10 years R. I. ( 7 ) IN view of the discussion aforesaid, the appeal partly succeeds and is allowed. The sentence of life imprisonment imposed upon him, is, therefore, modified to a sentence of 10 years R. I. ( 7 ) IN view of the discussion aforesaid, the appeal partly succeeds and is allowed. By setting aside conviction and sentence under section-302 I. P. C. The appellant is instead held guilty u/s. 304 (part-i) I. P. C. and sentenced to 10 years R. I. Since the appellant is on bail, as per order of this Court, he is directed to surrender before the C. J. M. , Balaghat on 29th April, 1994 to undergo his sentence, in accordance with law. The C. J. M. , Balaghat will, on failure of the appellant to surrender, as aforesaid, issue a non-bailable warrant of his arrest to procure his presence before him and send him to jail for undergoing sentence, in accordance with law. Appeal allowed accordingly. .