JUDGMENT Arun Kumar Goel, J. : This appeal has been filed by S/Shri Dev Raj, Ranjit Singh. Ravi Kumar and Ashok Chand (hereinafter referred to as the appellants). All the appellants have been convicted by the trial court for two months simple imprisonment under Section 186 I.P.C. and to pay a fine of Rs. 100/-each in default of payment whereof they have been directed to undergo simple imprisonment for one week each, and for two years rigorous imprisonment under Section 333 IP C as well as to pay a fine of Rs 500/- each in default of payment whereof, they have been directed to undergo further simple imprisonment for one month. 2. Appellants along with two other persons, namely, Purshotam Chand and Jagdish Chand were tried in the Court of Sessions Judge, Hamirpur on the charges that on 8-4-1988 at about 10.15 P.M. at bus stand Hamirpur, they being members of un-lawful assembly with the common object to deter and commit the violence against public servant, having voluntarily obstructed St. Narpat Ram in the discharge of his public functions besides having voluntarily given beatings to the said S.I. causing grievous hurt to him in order to deter him or preventing him from discharging his duties as a public servant Appellants were also charged for having criminally intimidated said S.I. as also having been members of un- lawful assembly, common object of which was to deter the aforesaid S.I. from discharging his lawful duties. This charge sheet was framed by the trial court against the present appellants on 21-4-1990. After conclusion of the trial the appellants were convicted to undergo different sentences having been found guilty on two counts i.e. under Sections 186 and 333 I:P.C. whereas their whereas two co-accused were acquitted The conviction and sentences imposed by the trial court have been questioned by the appellants in the present appeal. 3. Brief facts of this case as per prosecution case against all the persons are that on 8-4-1988 PVV-1 S.I. Narpat Ram was posted as S.I. in Police Station, Hamirpur Around 10 P.M. he received a telephonic message in the Police Station that one lady was sitting at the bus stand and number of persons had surrounded her, on receipt of such information, report No36 was recorded at Police Station. Hamirpur. Hamirpur. This S.I. Narpat Ram along with six constables went to bus stand, on reaching there they found that a lady had been surrounded by certain employees of H.R.T.C. He made enquiry from the lady who disclosed her name as Hukmi Devi wife of. Lachhman Dass belonging to village Jatehri the further enquired from her if any one has mis-behaved her and he advised this lady not to sit there as-breach of peace was apprehended. When the S.1. Narpat Ram asked Purshotam Chand and other H R T C employees as to why they are creating nuisance, according to prosecution he was assaulted by the HR.T.C. Employees namely Dev Raj. driver. Ravi Kumar, driver. Ashok Chand, Conductor and Ranjit Singh. Assistant. Bus Adda In-charge, and they tried to drag the former towards booking office which move was resisted by the S.I. In this tussle the file held by S.I. Narpat Ram fell down and his stick was also snatched by one of the accused, who also took his P-cap. Besides this, all the accused tore the right shoulder of his shirt and. removed the buttons thereof. Ranjit Singh is stated to have removed the route-board from the bus and attempted to hit the S.I., bit he escaped as he was pushed by one of the Home Guards. Surjit Singh constable, who was accompanying the S.I. observing the-situation getting tense, went to Police Station to bring the force. Ail the accused persons are stated to have given kick and first blows lo the police officials. In these circumstances, in order to save himself S.I. Narpat Rain went towards Police Assistance Room (which was located in the bus stand compound). At the time when the said S.I. reached near the main gate of the bus stand, he was followed by all the accused persons, who caught hold of him and felled him on the ground and thereafter gave him shoe beatings, resulting in causing injuries on his right hand as welt as on ribs of right side and back side and took him again near the booking office. By this time, police force had reached from Police Station when all the accused persons are stated to have run away, while fleeing they took away stick, cap and shoulder stars of the S.I. Then S.I. came to Police Station and reported the matter in the police station in his own hand vide Ext.P.A., where after he was medically examined and was also x-rayed. Torn bushirt of the uniform was taker into possession by the police vide Ex.PB. 4. In order to sustain the prosecution case, police examined as many as 13 witnesses, besides producing documentary evidence. After recording the statements of the accused persons under Section 313 Cr. P.C. as well as two defence witnesses the appellants came to be convicted. 5. In support of the present appeal, Shri Anup Chitkara, learned counsel for the appellants has urged that there is no proper identification of the accused on the basis whereof it can be conclusively held that it is they alone who are guilty of having committed the offences for which they have been punished. In support of his this submission, it was pointed out that. there is no evidence on record to show as to how and in what manner PW-1 SI Narpat Ram was able to name all the appellants together with the two other persons since acquitted. According to him there was no material to show that either all the six accused persons were previously so well known to him or he had any cause to know them It was further pointed out that no test identification parade was held to pin point the identity of the accused persons which was necessary. While controverting this submission. Shri. M.L. Chauhan, learned Assistant Advocate General urged that all the accused persons have been properly identified as well as connected with the commission of the offences alleged against the appellants for which they have been convicted by the trial court But he was unable to explain as to how PW-1 S.L could firstly name and then pin pointed those persons when there is no legal evidence to show that he knew all them previously. In fact after the occurrence, the appellants were identified for the first time in court Further, it is not in dispute that the incident had taken place at night time and the purpose of visit by SI along with six constables was that a lady had been surrounded by certain persons at bus stand. In these circumstances,, it was for the prosecution to have explained as to how the injured S.I. PW-1 Narpat Ram was in a position to identify and pin point all the accused persons, more especially when he admits in his cross- examination that there were so many passengers on the bus stand, though he has stated that he knew the accused persons previously how and since when nothing had been stated by him.. He had named one persons Parkash Chand though actual person was Jagdish Chand. In fact, this part of the statement of the witness cannot be accepted without his having explained anything about his personally knowing the accused persons. 6. Som Dutt PW-2 is a home guard who had pushed PW-1 S.I. Narpat Ram aside, this witness has not named the appellants and has not said anything in that behalf. PW-5 Parkash Chand was declared hostile. This witness was working on night duty at bus stand, Hamirpur. According to this witness when he found many persons having gathered at the platform of the bus stand and he was apprehending that there may not be breach of peace, he informed police station, Hamirpur on phone. PW-10 is Bir Singh who is also a Home - guard and he has stated that he found S.I. Narpat Ram being beaten by Purshotam, Ranjit Singh, driver, Dev Raj, Ashok, Conductor and Ravi, driver within the bus-stand premises, but when he was asked to identify them in cross-examination, he could identify only Ravi, driver and none else. 7. When the evidence of PW-1 S.I. Narpat Ram, PW-2 Som Dutt, Home Guard constable and PW-10 Bir Singh, Home guard are read together, it cannot be said with certainty that the prosecution has been able to pin point all the accused persons being guilty of having either intimidated or obstructed the police official PW-1 from discharging his public duties and for having caused grievous hurt to him with an intention to deter the said police official from dis-charging his public duties. It was necessary for the police to have got test identification parade of all the accused persons conducted immediately after their arrest. So far statement of PW-1 S.I. Narpat Ram is concerned, it cannot be accepted on its face value and so far the statements of other two persons PW-2 and PW-10 arc concerned, their statements are not enough to pin point the identity of the appellants as well as their other two co-accused since acquitted to be the "persons responsible for commission of the offences for which all of them had been convicted by the trial court Identifying the accused persons for, the first time in court loses significance and completely weakens the case of the prosecution. If any authority is required in this behalf, a reference can be made to the observations made in Slate (Delhi Admn.) v.VC. Shukla & anr.. AIR 1980 S.C. 1382. .Relevant observations are extracted below: "23.................The possibility that the witness committed some mistake in identifying cannot be ruled out: Moreover, the identification of Tripathi by the witness for the first time in the Court without being tested by a prior test identification parade was valuables..." 8. In view of the above discussion, it is held that the prosecution has miserably failed to establish the identity of the appellants as persons who were responsible for having caused grievous hurt to PW-1 Narpat Rant and having further obstructed him from discharging his public functions as members of unlawful assembly with common object to deter said PW-1 Narpat Ram or being responsible for causing violence against the said public servant as also having criminally intimidated the said public servant. 9. Next contention raised by Sh. Anup Chitkara is that PW-9 Hukmi Devi is stated to be the lady surrounded by number of persons and to know this fact PW-1 is stated to have gone to the bus stand along with police constables but PW-9 has not identified any of the appellants, besides this, she has stated in court that her statement was recorded, but the same has not been produced on record; what happened to it where it has gone has not been explained. This statement assumes significance because it is not suggested by the prosecution to this witness during the course of trial that no such statement was recorded by the police on 8-4- 1988. This statement assumes significance because it is not suggested by the prosecution to this witness during the course of trial that no such statement was recorded by the police on 8-4- 1988. In these circumstances it would be just to draw adverse inference for non-production of such statement of PW-9 and it is held accordingly. 10. In the context of the present case, the behaviour and conduct of the police personnel as well as home guards besides that of S.I. Narpat Ram assumes significance. It has come in the statement of PW-1 that six constables had accompanied the said PW-1 when they came to bus stand at about 10 P.M. Besides this, it is also the admitted case of the prosecution that there is police post in the compound of the bus stand near the main gate and is shown to be located at point D of the site map. In the ordinary course of things, there would be some police official(s) stationed there. Besides these persons, it has come in evidence that three home guards, two of whom have appeared as P.Ws. In case the PW-1 was being either beaten up or manhandled as claimed by him, the police constables as well as home guards who were there on the spot, would not ordinarily be silent spectators and-there is nothing on record as to what they did in order to either ward off the appellants or to save the said PW-1 when he is stated to be manhandled by all the accused persons. Thus there is no explanation on the part of prosecution as to why those persons did not come to rescue of PW-1. As a corollary to this it further leads to two situation cither the police officials were hot there and thus entry made in the report No.36 is not correctly entered or the incident had not taken place in the manner alleged and thus the investigating agency as withheld the material facts. Above all. no explanation has been given by the prosecution for inaction of the constables who had accompanied PW-I when he was being beaten up, although they accompanied this PW-1 as per report No.36. This makes the entire prosecution case highly doubtful. , 11. Above all. no explanation has been given by the prosecution for inaction of the constables who had accompanied PW-I when he was being beaten up, although they accompanied this PW-1 as per report No.36. This makes the entire prosecution case highly doubtful. , 11. Similarly, it has come on record that lady PW-9 was left at bus stand by her Nandoi, besides there were number of other persons and dhaba was also there at the bus stand, but no attempt was made by the investigating. Officer to join any independent witness and Prem Chand independent witness had not been examined at all.- This clearly shows that the investigating. agency was over zxcalous to get someone fixed up in this case because S.I of the Police had been given beatings and manhandled by some persons at the-bus stand. 12. On the other hand, there are statements of Karam Chand DW-1 and Suresh Katoch DW-2. DW-1 is Record Keeper of H.R.T.C.,. who has stated that Ashok Kumar appellant was on duty and had left for Bijhar -Ropria at 6.15 P.M. on 8-4-1988 which place is at a distance of 30-35 KMS from Hamirpur and the bus was to stay at night at that place. Further, Ravi kumar driver had gone to Awha Devi at 5.45 P.M. on 8-4-1988 and the bus was to stay at Awha Devi for the night. There is no cross-examination directed against DW-1 to the effect that either the officials named by him did not attend their duties for which they had been deputed or there being possibility of their having come back from the aforesaid distance (s) and after commission of the offences they had gone back again, in these circumstance: there is no reason to discard the statement of this witness. 13. Needless to reiterate that it is well settled rule of criminal jurisprudence that onus is of proving everything essential to the establishment of charge is upon the prosecution and the evidence that is proved in support of its case by prosecution must be of such a nature so as to exclude to a moral certainty every doubt of guilt of the accused and in the matter of doubt it is safer to acquit rather than to condemn, because for it is between that several guilty persons should escape than that one innocent person should suffer. Above all the hypothesis of delinquency should be consistent with all the facts proved. Not only this, but even under the law of evidence Section 101 of the Evidence Act it is the legal obligation of the prosecution to prove and establish its case beyond reasonable doubt, whereas on other hand, the obligation of the accused under Section 105 of the said Act is only to show by a preponderance of probability that his case may be true. Meaning thereby that whereas on one hand the prosecution has to show that its case is positively true, the duty of defence is only to show that its case may be true. Further, in criminal jurisprudence, it is well settled by now that the burden on an accused of proving a fact for rebutting a statutory presumption of innocence in his defence is not as heavy as on the prosecution to prove its. case beyond reasonable doubt. By applying all these tests to the facts of the present case as well as to the evidence produced by the prosecution, it is evident that the prosecution has miserably failed to bring home the guilt against the appellants and on this ground also the appeal must succeed. Another aspect of this case is that FIR in this case was lodged but was sent late to Illaqa Magistrate and no explanation has comeforth as to why the a lay occurred and why it was not sent forthwith to the said Magistrate This also gives strength to the case of the defence. 14. An attemp was made by Sh. Anup Chitkara to take benefit of hews items Ex.DA. But he was not permitted to raise this plea since the said item had not been proved in accordance with law. 15. From whatever angle the case of the prosecution may be viewed, fact remains that it has failed to establish its case beyond any reasonable doubt and the trial court has fallen into error while convicting and sentencing the appellants for different offences as detailed in this judgment and thus this appeal deserves to be allowed and it is held accordingly. Consequently the judgment of conviction and sentence imposed by the trial court against the appellants is quashed and set aside, their bail bonds are discharged and line if deposited is ordered to be refunded to them.