IMPORTANT POINT
No reliance can be placed on the test identification memo in the absence of the evidenced position of the Magistrate, conducting the lest identification.

JUDGMENT

R.A. Misra, J. - This appeal arises out of the judgment and order dated 2nd of February, 1979, by Sri S.K. Saxena, VIII Additional Sessions Judge, Meerut, convicting the appellant Nooru of the charge under Section 395 of the Indian Penal Code and sentencing him to undergo R.I. for a period of five years.

2. According to the prosecution story a gang of about 8-10 dacoits committed dacoity in the house of Daya Chand (P.W. 1) on the night between 23rd and 24th of April, 1977 at about 1 A.M. Daya Chand and other residents of the village saw the faces and features of the dacoits in the light available to them. The dacoits made good their escape alongwith the booty after committing dacoity. Daya Chand lodged the report on 24.4.1971 at 8 A.M. naming five persons and claiming to have identified the rest. The. Investigating Officer arrested the appellant Nooru on the night of 7th and 8th of May, 1977 at about 1 A.M. and kept him baparda till lodging him in the district jail. The appellant was put-up for identification in the district jail of Meerut on 30th of May, 1977. Five witnesses, to wit, Daya Chand (P.W. 1), Janam Singh (P.W. 4), Shashi Pal (P.W. 2), Baljeet Singh (not produced) and Phool Singh (not produced) correctly identified him without committing any mistake. The Investigating Officer submitted charge sheet after completing the investigation. The appellant was put-up for tria1. He pleaded not guilty.

3. The prosecution examined five witnesses, namely, Daya Chand (P.W. 1), Shashi Pal (P.W. 2), Naubat Lal (P.W. 3). Janam Singh (P.W. 4), Narendra Singh (P.W. 5) and six other formal witnesses. The learned Judge on a consideration of the entire evidence arrived at a conclusion that the charge under Section 395 I.P.C. was proved beyond doubt against him. He consequently convicted and sentenced him. Hence this appeal.

4. The only evidence to implicate the accused-appellant in this crime is that of identification. According to the witnesses of fact he was not known to them from before. They saw him for the first time while committing the dacoity and thereafter in the jail at the time of identification. Ext. Ka-14 is the identification' memo. The Magistrate, who conducted the test-identification of Nooru has not been produced by the prosecution. The accused appellant or his counsel have not admitted the genuineness of the document. The document has not been proved by any witness. Obviously it has, under these circumstances, been wrongly admitted in evidence, exhibited and taken-into consideration for the purposes of conviction. It was the duty of the prosecution to produce the Magistrate, who conducted the identification proceeding to prove that he has taken all necessary precautions to ensure that the test is fair and can be relied upon for the purposes of conviction. The test Identification memo is not a substantive piece of evidence. It may be used by the prosecution for corroborating the Magistrate, when he enters the witness-box to prove that he has taken all necessary precautions and that the result of the test is fair and reliable. He has also to prove as to what has been the result of the test. The deposition of a Magistrate so recorded is a substantive piece of evidence, which gets corroboration from the memo, prepared by him when the test was held. In the instant case, however, the test identification-memo has neither been proved nor has its genuineness been admitted by the accused and his counsel. The learned Sessions Judge has, thus, grievously erred in placing reliance on the test identification-memo in the absence of the evidence deposition of the

Magistrate, conducting the test identification. It is not possible to hold that the prosecution has proved beyond doubt that the learned Magistrate bas taken all necessary precautions for holding of a fair test as required by Jaw and that the witnesses have correctly identified the accused appellant Nooru. There being no other evidence except that of identification t