Judgment

GOSWAMI, J. :- The day, April 4, 1966, broke ominously for Lala Barhi (deceased) who used to render physical training and swimming lessons to young boys. One such boy, Sabir Hanfi (P. W. 9), aged about 18 years, went to the house of Lala Barhi (hereinafter, Lala) at Purani Bazar, in the town of Muzaffarpur. Lala was then asleep. Sabir Hanfi woke him up and they both went to the Ashram Ghat (known also as Balu Ghat) on the bank of the Gandak river. There when Lala was cleansing his teeth and washing his face, the appellant Rajendra Prasad (hereinafter to be described as the accused) came there with four or five persons. It is said that the accused had some differences with Lala over some money which he had given to him to assault somebody which Lala failed to accomplish. As his companions were keeping Lala engaged in talk, the accused thrust a dagger on the back of Lala who then called Sabir Hanfi. Lala, himself a robust young man, rushed towards the accused who took to his heels with his companions. Lala fell down rushing forward a space of about forty yards and breathed his last. Sabir Hanfi and others also ran behind Lala to his aid.

2. Although thirteen witnesses were examined by the prosecution only four of them were eye-witnesses to the occurrence. They are Ram Pukar Sah (P. W. 1), Parmeshwar Prasad (P. W. 4), Lachman Prasad (P. W. 10) and Sabir Hanfi (P. W. 9). The Sessions Judge disbelieved all the eye-witnesses and acquitted the accused. On the other hand the High Court relied on the evidence of P. W. 9 as being corroborated by P. Ws. 1 and 10. The High Court, therefore, set aside the acquittal and convicted the accused under Section 302, Indian Penal Code, and sentenced him to rigorous imprisonment for life. Hence this appeal under Section 2 (a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

3. P. W. 4 who lodged the first information report without naming any accused and who did not know the accused before the occurrence could not even identify him at the Test Identification Parade which was held on September 29, 1966. The evidence of p. W. 4 is, therefore, of no significance. The case, therefore, depended upon the evidence of recognition of the accused while running from the place of occurrence by P. Ws. 1, 10 and the direct testimony of P. W. 9 who knew the accused from before. The accused was known only to Sabir Hanfi (P. W. 9) by name. The other two witnesses did not know the accused from before and saw him only while running away followed by twenty or twentyfive other persons.

4. The evidence of P. Ws. 1 and 10, which we have carefully perused, go to show that they did not know the accused from before. They, however, identified the accused in the Test Identification Parade held on September 29, 1966, nearly six months after the occurrence. There is no reason why the Test Parade was delayed so long when the accused had surrendered on June 17, 1966. As stated earlier, the trial Court which had opportunity to see these witnesses disbelieved them by giving certain reasons. For example, according to the Sessions Judge, these two witnesses has the opportunity to know the accused from before and, therefore, their identification in the Test Identification Parade was not considered of much significance. He further observed that these witnesses saw the accused at the time when he was running away from the place of occurrence and, therefore, "it is highly improbable that they would be able to retain the impression of the assailant of Lala Barhi in their mind for so many months". The High Court, on the other hand, held that identification by P. Ws. 1 and 10 was reliable. Thus when two courts, have come to a different conclusion on the same evidence, we had ourselves to go through the entire evidence carefully in order to see whether the appreciation of the evidence by the Sessions Judge was so unreasonable and unrealistic as to entitle the High Court to interfere with the same.

5. P. W. 1 is the f