ISRANI, J. - (1.) THIS Criminal Appeal has been filed against the judgement dated April 27,1979, passed by the learned Additional Sessions Judge, Alwar (Court No. 2), in Sessions Case No. 8/78, by which accused-appellants have been convicted under section 302 read with section 34 and section 323, IPC and sentenced to life imprisonment and a fine of Rs. 500/ -. On failure to deposit the amount of fine, they are liable to undergo three months further RI. Briefly stated, the story of prosecution is that on October 4, 1978, at about 5/5. 30 p. m. , deceased Shitab, alongwith Chitru (P. W. 2), went in bus from Kishangarh to Bhindusi. From there, the deceased, along with Chitru (P. W. 2) and Majhla (P. W. 3), proceeded towards Banjal Hera. When they reached on the way, near Nao Gaon, accused-appellants Jalli and Aasu attacked the deceased with lathies. Jalli, with a view to kill the deceased, caused grievous and simple injuries to the deceased, on account of which, Shitab died on the spot. Chitru (P. W. 2) when tried to save the deceased, both the appellants gave beating to him also with lathies. Mala Singh (P. W. ll) had also travelled by the same bus, in which deceased had travelled. He also got down at the same place from the bus and was going little ahead of the deceased. Mala Singh (P. W. ll), on hearing noise, came on the spot and gave information of the incident to Subekhan, brother of the deceased. On hearing this information, Subekhan took a tractor from Bagu (P. W. 12) and went to the spot, where he found Meghraj, Ratti Ram and Kishora, who were looking after Shitab. Shitab was put into tractor and they started for taking him to hospital at Tijara, but he died on the way itself. An FIR was lodged on the same day, at 9. 30 p. m. , by Subekhan, brother of the deceased.
(2.) IT is submitted by Mr. R. K. Mathur, learned counsel, that eye-witnesses Tej Bhan (P. W. 4), Anand Prakash @ Dr. Nand (P. W. 7), Mamman (P. W. 8), Sohan Lal (P. W. 9) and Nebh Raj (P. W. 10) were declared hostile. The trial court has placed reliance on the testimony of Mala Singh (P. W. ll), Subekhan (P. W. I), who is brother of the deceased, Bhagu (P. W. 12), Dr. Suresh Kumar Sharma (P. W. 13) and Chaturbhujpal (P. W. 14) Investigating Officer. From the statements of the witnesses, who have been declared hostile, it can be said that Chitru (P. W. 2) and Majhla (P. W. 3) were not present at the time of occurrence and could not see real assailants, on account of darkness and distance. IT is further submitted that Chitru (P. W. 2) and Majhla (P. W. 3), who are said to be eye-witnesses, admittedly, did not know the accused- appellant earlier than the time of occurrence. These witnesses have, for the first time, identified the appellants in Court, but no test identification parade was held, for this purpose. Therefore, their testimony, regarding presence of appellants, at the time of occurrence, cannot be relied upon. IT is also submitted that Jahaj (D. W. I) was cited as an eye-witness in the list of prosecution witness, but was not examined, admittedly, because he was not prepared to the line of the prosecution. He has been examined as DW 1 and has stated that Chitru (P. W. 2) and Majhla (P. W. 3) were not present at the time of occurrence. Mr. Sharma, learned Public Prosecutor, has emphasised that Chitru (P. W. 2) is an injured witness and his testimony is completely reliable. IT is also contended that it was not necessary to hold test identification parade as the names of the accused-appellants were mentioned by those, who were present at the time of incident. Therefore, Chitru (P. W. 2) and Majhla (P. W. 3) came to know the names of these appellants at that very time. We have heard the arguments raised on behalf of both the parties and also gone through the statements and documents on record. It may be pointed out that FIR (Ex. P. /l) was registered at the instance of Subekhan (P. W. I), on the basis of information received from Mala Singh (P. W. ll ). In this FIR, names of Fajri and Nazri were also mentioned alongwith the appellants, who were said to have caused injuries to the deceased. Presence of Dr. Ratti Ram has also been shown in the charge-sheet, but this witness has not been examined. Sube Khan (P. W. I) has stated in his statement that he was at home when at about 6 p. m. , Mala Singh (P. W. ll) came and informed him regarding the occurrence. Thereupon, he asked Bhagu to take his tractor alongwith him. He has stated that he lodged a written report at police station, which is Ex. P. /l. He states that Mala Singh had informed him that appellants, Fajri and Nazri had given beating to the deceased. He has stated that deceased had dispute with appellants due to land. However, the names of Dr. Nand does not appear in Ex. P. /l. He further states that there was no dispute with Aasu, but the family is same. Mala Singh (P. W. ll) has stated in examination-in- chief that when he reached half way, Sube Khan (P. W. I) met him. In cross-examination, he admits that he did not mention the names of Fajri and Nazri to Sube Khan (P. W. I ). He further stated that his statement under Section 161, Cr. P. C, was recorded, after lapse of eight days and no explanation has been given by the prosecution, regarding this delay. He admits that in his police statement (Ex. D/4), he did not state that witnesses Sohanlal (P. W. 9) and Nebh Raj (P. W. 10) told him that the appellants Jalli and Aasu were the real assailants. He is also not able to give the exact time of incident, even though he was wearing a wrist watch. Thus, the contradictions between the statements of these two witnesses are apparent. Sube Khan (P. W. I) has clearly stated that he was at home when Mala Singh (P. W. 11) informed him about the incident, but Mala Singh (P. W. 11) has stated that Sube Khan (P. W. 1) met him on the way, where he narrated the story to him, as was told by Nebh Raj (P. W. 10) and Sohanlal (P. W. 9 ). Mala Singh (P. W. ll) has stated that he never told Sube Khan, regarding names of Fajri and Nazri, which were mentioned, at the instance of Sube Khan (P. W. I) in the FIR. This shows that Sube Khan (P. W. I) wanted to entangle the other family members also, since there was a sort of enmity between the two families. Apart from this, the source of information of Mala Singh (P. W. ll) were eye witnesses Nebh Raj (P. W. 10) and Sohan Lal (P. W. 9), who have been declared hostile. These witnesses have not referred the names of accused-appellants as actual assailants. Therefore, keeping in view the evidence, as discussed above, the statement of Mala Singh (P. W. ll) does not help the prosecution and so also that of Sube Khan (P. W. I ). Chitru (P. W. 2) and Majhla (P. W. 3) are eye-witnesses, who support the case of the prosecution. Chitru (P. W. 2) has stated that he was coming along-with Shitab and one another person. On the way, he stopped to urinate, therefore, Shitab was walking some distance ahead of him. He saw a person, who was waiting on the way gave its blow with "jeli" on the back of Shitab. Thereafter, another person came running from the field and gave him lathi blows. In the Court, he identified both the accused and stated that appellant Aasu had "jeli" in his hand and Jalli had lathi in his hand. At that time, harvesting of crop was in progress, and some of them shouted that Aasu and Jalli don't beat him. In cross-examination, he has denied several portions of his police statement marked Ex. D/2. He admitted that he came to know the names of both the accused-appellants only at that time, on account of people shouting in their names. He further stated that he did not tell the names of accused-appellants to Attar Singh (P. W. 6 ). He also says that he did not give information of this incident to any-one, since the matter had become known to everybody. Thus, it is clear from his statement that he did not know previously any of the accused-appellants. Majhla (P. W. 3) is another eye-witness. He did not disclose the names of any of the persons, who were shouting by taking names of the appellants. He has admitted in the statement that Jahaj (D. W. I) was also present at the place of occurrence. He has also admitted that soon after the occurrence, he went to the house of Attar Singh (P. W. 6) and stayed for the entire night. Therefore, it is significant that even though soon after the incident, he went to stay at night in the house of Attar Singh (P. W. 6), he did not disclose the names of appellants to him. It may also be mentioned that Attar Singh (P. W. 6) has stated in his statement that Chitru (P. W. 2) came to his house at about 9 p. m. and when he enquired from PW 2 as to who were the appellants, he told him that he could not identify them, on account of darkness. Therefore, the testimony of PW 2 Chitru clearly became doubtful as he was expected to disclose the identity of the appellants to PW 6 Attar Singh, in whose house he stayed the whole night soon after the incident. Majhla (P. W. 3) has also identified the appellants only at the time when his statement was recorded in Court. He has stated that appellant Aasu gave a blow to Shitab with "jeli" on his back. Therefore, appellant Jalli also gave him blow with lathi. In his cross- examination, he has admitted that (he) did not know the names of the accused-appellants, but their names were mentioned by persons, who were standing at the time of incident. He stated that at that time, it was dark. The statements of both these witnesses do not inspire confidence. Moreover, they have identified the accused-appellants only when their statements were recorded in Court and admittedly, no test identification parade was held. Therefore, identifying the accused-appellants by these two witnesses cannot be relied upon and conviction cannot be sustained on evidence of such witnesses. We are fortified in our view by the decision of the Apex Court in Mohd. Abdul Hafeez vs. State of Andhra Pradesh (1 ). This was a case of rebuttal, in which no test identification parade was held, even though the victim of the offence did not know the accused persons and the accused person was convicted on the basis of identification in Court by the victim, where his statement was recorded, after about four months of the incident. It was held that the conviction cannot be sustained on such evidence. Same view was taken by the Apex Court in Mohanlal Gangaram Gehani vs. State of Maharashtra (2), in which it was held that a testimony of a witness who identified the accused for the first time in Court, without knowing him before, in absence of any T. I. Parade, was value-less and unreliable. Dr. Nand (P. W. 7), Mamman (P. W. 8), Sohanlal (P. W. 9) and Nebh Raj (P. W. 10), who were eye-witnesses, were declared hostile. Jahaj was also cited as eye-witness, but was not produced by the prosecution. He was, therefore, examined as D. W. I. He has stated that while he was working in the field of Chaman, Chatru shouted from the field of Khem Chand. He, therefore, went to him. Chatru told him that two persons were beating him, but they had run away. He could not identify them, since it was dark. Thereafter, Chitru went away. Majhla (P. W. 3) was standing at some distance, who also went away. He further states that when he came back, he heard shouts from the side of Naogaon and he ran towards that place, where he found that Shitab was lying. He made him sit and enquired from him, who had given him beating, whereupon Shitab told him that two enemies had given him beating. He enquired from him the names of those persons, whereupon Shitab stated that he could not recognise them. Shitab told him to inform his sons. He further states that he informed Mala Singh, who brought tractor. He also states that Kishora, Tej Bhan (P. W. 4) and Nebhraj (P. W. 10) and Dr. Nand (P. W. 7) were also present. In cross- examination, he has stated that when he reached Shitab, no-one else was present at that time. This witness was cited as an eye-witness by the prosecution itself and there is no reason to disbelieve and discard his testimony, which has with-stood the test of cross-examination, merely because he has been examined as a defense witness. From the evidence disclosed above, we are of the considered opinion that the accused-appellants deserve to be given the benefit of doubt. Accordingly, the appeal is allowed and the conviction and sentence of the appellants are set aside. The appellants are on bail, they need not surrender to their bail bonds. Their bail bonds stand discharged. (7) Appeal allowed as above. . ;