The prosecution must establish the identity of the accused beyond reasonable doubt, especially when the accused is not known to the witnesses.

JUDGMENT :

Deepak Gupta, J. (Oral)

This appeal by the State is directed against the judgment dated 29.01.1996, delivered by the learned Additional Sessions Judge, Sirmaur at Nahan in Sessions Trial No. 15-N/7 of 1994, whereby the accused has been acquitted of having committed an offence punishable under Section 333 of the Indian Penal Code.

2. The prosecution case, in brief, is that on 6th September, 1993, at about 2:30 p.m., a bus bearing No. HR-02-1791 came to the Nahan Bus Stand. Injured Harnam Singh (PW-1) was the Conductor of the bus. As soon as he got down from the bus, one Sudhir Gorkha gave a signal to the accused and the accused dealt blows with an iron rod on the face of the injured Harnam Singh. Due to the injuries caused in this attack, the injured Harnam Singh lost the sight of his left eye. This incident was witnessed by PW-8 Basant Singh and PW-3 Kulbhushan, Booking Clerk of the Bus Stand, Nahan. The injured was first taken to the District Hospital, Nahan. Since his left eye was damaged, he was referred to P.G.I., Chandigarh. After taking treatment at P.G.I., Chandigarh, the injured of his own accord went to Philodelphia Hospital, Ambala for further treatment, but his eye sight could not be saved. The report was lodged by PW-8 Basant Singh at the Police Station, Nahan, on the basis of which, F.I.R. in question was lodged. During investigation, it was found that the person, who had caused the injuries, was accused Kamal Narain and, therefore, he was charged with having committed the offence aforesaid.

3. At the out-set, we may note that Sudhir Gorkha, who was identified on the first day itself, was neither apprehended nor challaned by the Police. A case has been made out only against accused Kamal Narain. He has been acquitted by the learned trial court, mainly on the ground that the identity of the person who attacked the injured has not been proved.

4. The injured Harnam Singh (PW-1) while deposing in court, has clearly stated that he did not know the accused. He, however, knew Sudhir Gorkha slightly. According to him, the blows were given by the accused. He further stated that he came to know about the identity of the accused for the first time in the Hospital at Ambala.

5. PW-8 Basant Singh has also clearly stated that the identity of the accused was not known to him and that even the injured Harnam Singh did not tell the name of the accused. According to him, the injured had named Sudhir Gorkha. In the F.I.R. Ex. -PF, Basant Singh (PW-8) had got recorded the fact that the blows of the rod were given by Sudhir Gorkha, but in court, he stated that in fact he did not know any of the two accused and since some people were shouting the name of Sudhir Gorkha, he assumed that the blows had been given by Sudhir Gorkha. Even if we accept this explanation of PW-8, this does not establish the identity of the accused since the witness admittedly did not know the accused.

6. As far as PW-3 is concerned, he reached after the incident had already happened and saw the accused running from the spot. In cross-examination, he stated that he had never seen the accused prior to the incident. In a case like the present one where the accused was not known to the injured or the other witnesses, it was incumbent upon the prosecution to have conducted a test identification parade. It is only in this manner that the identity of the accused could be established. No proper and legal test identification parade was conducted in the present case. Therefore, the identity of the accused as the person has not been established beyond reasonable doubt.

7. Another reason to doubt the identification of the accused was that the prosecution has not stated how the name of the accused came to be known to the Police. According to PW-9, Investigating Officer, he was told the name of the accused by injured Harnam Singh (PW-1) on 06.11.1996 itself. This cannot be true since Harnam Singh (PW-1) and Basant Singh (PW-8) clearly stated that they did not know the ide