The judgment establishes the importance of admissible evidence and the competency of witnesses in criminal cases, emphasizing the application of legal provisions such as Section 162 of the Criminal P.C. and Section 118 of the Evidence Act.

JUDGMENT

Khundkar, J. - This is a rule calling upon the District Magistrate of the 24 - Parganas to show cause why the conviction of and sentence passed upon the petitioner should not be set aside. The petitioner was convicted u/s 379, I.P.C., for having stolen a necklace from a small girl, who is prosecution witness No. 1. An appeal by the petitioner against his conviction was dismissed by a First Class Magistrate. The rule is confined to three grounds which are as follows : (1) that the trial has been vitiated by the admission of inadmissible evidence, namely the identification, before the investigating officer which forms the main basis of the judgments of both the Courts; (2) for that the trial is vitiated by the admission of testimony on oath or otherwise of little children who themselves admitted that they did not know the difference between truth and falsehood; (3) for that in view of the age and antecedents of the petitioner the sentence is much too severe. The case for the prosecution may be briefly stated:

On 10th November, 1938, at about 3 P.M., two children, P.W. 1, Amina Dassi, a girl of 5, and her cousin Amia, a boy of 7, were returning home after having purchased some sweets at a shop in the village. As they were passing along the side of a tank, the accused suddenly appeared and snatched away a gold necklace from the neck of P.W. 1. The prosecution alleged that both the children recognized the accused at this time and also when he was running away. The theft was witnessed also by P.W. 4, who chased the accused but failed to catch him. It is further alleged that another witness, P.W. 7, saw P.W. 4 in the act of chasing the accused. Shortly after the occurrence P.W. 4 and P.W. 3 who is the father of P.W. 2 and the uncle of P.W. 1, came across the petitioner near the police station to which they were (proceeding for the purpose of lodging an information. They took him to the police station and charged him with the offence. His person was searched but the necklace was not found. During the course of the investigation the investigating officer held a test identification parade at which the two children, P.Ws. 1 and 2, picked out the petitioner from a number of other persons. The argument advanced before us in support of this rule is thus presented the case for the prosecution rests on the evidence of the two children, P.Ws. 1 and 2, and of P.W. 4. In accepting the evidence of the children the Courts below have relied strongly upon the result of the test identification parade just referred to. It is contended that the evidence of this test identification is inadmissible, and further that the evidence of the children should have been expunged, because they were not competent to testify as witnesses within the meaning of Section 118, Evidence Act. Mr. Roy Chaudhury, on behalf of the petitioner, has argued that if the evidence of the test identification and the testimony which the children bore, are excluded, the evidence which remains is totally insufficient to support the conviction. It is pointed out that the only remaining evidence consists of the testimony of P.W. 4 which, according to the prosecution, was corroborated by the testimony of P.W. 7.

2. Now in regard to the test identification parade held by the investigating officer, it is not disputed that it was conducted during the investigation of the case under Chap. 14, Criminal P.C. It is contended 4hat the statements made by P.Ws. 1 and 2 to the investigating officer at the time when they picked out the accused as the person who had stolen the necklace are hit by the prohibition contained in Section 162 of the Code. Reference has been made in this connexion to a number of cases. In Krishna Chandra Dhenki Vs. Emperor, AIR 1935 Cal 311 , it has been very clearly laid down that the evidence of a test identification 'held by the police in course of investigation, that is to say, a statement expressed or implied, made to the police by way of identifying the accused i