JUDGEMENT M. Murtaza Husain, J. :- Jagdeo Singh, Kali Bux Singh, Raj Bux Singh and Parmatma alias Lambardar appellants of Criminal Appeal No. 17 of 1978 stood their trial before the 1st Addl. District and Sessions Judge, Barabanki in Sessions Trial No. 359-A of 1974. Through his order dated 2-1-78, passed in that case, the learned Sessions Judge has convicted all of them under S. 302/34 I. P. C. He has sentenced Jagdeo Singh appellant to death for that offence, whereas the other three appellants have been sentenced to undergo life imprisonment. The connected Criminal Appeal No. 38 of 1978 has been submitted by Jagdeo Singh from jail. The learned Sessions Judge has also made the prescribed reference (No. 2 of 1978) for confirmation of Jagdeo Singh's death sentence. 2. Parmatma appellant is resident of village Chak Ambar Purwa hamlet of Birapur, P. S. Tikait Nagar in the district of Bara Banki whereas the other three appellants are residents of village Semaur which lies within the circle of the same police station. Ratipal Singh, who lost his life in the occurrence complained of, was also a resident of village Semaur. Smt. Chandrawati P. W. 1, who is the complainant of this case, is Ratipal Singh's widow whereas Smt. Saroj Kumari P. W. 3 is his daughter. Amar Bahadur P. W. 2 is the real brother of Smt. Chandrawati complainant. He belongs to village Dhamapur, which is ten miles away from Semaur. He was allegedly staying at the house of the deceased when the occurrence took place. Ratipal Singh was formerly employed in the Army. Later on he took up employment in the R. P. F. He was staying 5m Semaur for about 15 years prior to the occurrence. Jagdeo Singh appellant is real nephew of Ratipal Singh deceased. The other appellants are said to be Jagdeo Singh's helpers and friends. Raj Bux Singh appellant was the Pradhan of village Semaur at the time of occurrence. 3. The prosecution case is that there was bitter enmity amongst Ratipal Singh deceased and Jagdeo Singh appellant since before the occurrence. When Ratipal Singh was in service Jagdeo Singh was looking after his agricultural land. On return from service Ratipal Singh deprived him of the benefit which he was deriving from the property of Ratipal Singh. Jagdeo Singh then started living separately. When Ratipal Singh was in service Jagdeo Singh was looking after his agricultural land. On return from service Ratipal Singh deprived him of the benefit which he was deriving from the property of Ratipal Singh. Jagdeo Singh then started living separately. Later on Arhar crop of Jagdeo Singh was stolen by somebody and he lodged a report under S. 379 I. P. C. against the deceased and others. On 9-7-1973 Jagdeo Singh tried to assault the deceased with a Gandasa. A report (Ex. Ka-17) was lodged by Ratipal Singh against Jagdeo Singh and others with respect to that incident. The house of Jagdeo Singh in village Semaur was demolished by Ratipal Singh and then Jagdeo Singh shifted to his Sasural in Ballipur. About three weeks prior to the occurrence an armed dacoity was committed at Ratipal Singh's house wherein his son was injured and later on he succumbed to his injuries. In report, Ex. Ka-19, lodged by Ratipal Singh about that dacoity he had named Jagdeo Singh who was arrested in that connection and was bailed out. The prosecution contends that on account of these enmities Jagdeo Singh was looking for an opportunity to commit Ratipal Singh's murder. Ratipal Singh deceased owned a Mahuwa grove known as Mauhari which is to the west of the abadi of village Semaur. Mahuwa fruits of that grove were dropping for about a fortnight prior to the occurrence. One Ram Das was looking after that crop on Batai basis. Ratipal Singh used to go to that grove every morning to have his half share in the crop. At about 10 A. M. on 7-4-1974 Ratipal Singh was, as usual, going to the aforesaid grove. At a distance of about 100 paces to the west of the house of the deceased on his way to Mauhari there is the house of Smt. Piara Bhujain C. W. 1 which faces towards west. She is a widow and resides all alone at her house. As soon as the deceased reached near that house the four appellants suddenly appeared. Jagdeo Singh had a gun, Kali Bux Singh had hand-grenade, Raj Bux Singh had a pistol whereas Parmatma was armed with a gun. A hand-grenade was exploded by the appellants which blasted with usual sound. The deceased ran into the Barotha of Piara Bhujain's house. As soon as the deceased reached near that house the four appellants suddenly appeared. Jagdeo Singh had a gun, Kali Bux Singh had hand-grenade, Raj Bux Singh had a pistol whereas Parmatma was armed with a gun. A hand-grenade was exploded by the appellants which blasted with usual sound. The deceased ran into the Barotha of Piara Bhujain's house. The appellants followed him, assaulted and caused injuries to him in that Barotha by their arms. 4. When the deceased had left his house his widow Chandrawati, daughter Saroj Kumari, and, brother-in-law Amar Bahadur Singh were sitting in front of his house. They were alerted by hearing the aforesaid blasting sound and rushed towards Piara's house. They saw the appellants assaulting the deceased inside the Barotha of Piara's house. Three servants of the deceased, namely Jag Jiwan P. W. 4, Ram Sumiran C. W. 2 and Kishun also reached there. The complainant and other witnesses saw Jagdeo Singh taking out a knife from his pocket and cutting the nose of the deceased when he had fallen down injured. Thereafter the appellants ran away. When the complainant and other witnesses went inside the Barotha of Smt. Piara's house they found the deceased already dead. His blood was lying upon the ground. The complainant and others immediately shifted the dead body of Ratipal Singh to his house. 5. A written report of the occurrence was prepared by Smt. Saroj Kumari immediately upon complainant's dictation. It was sent to P. S. Tikaitnagar through the village Chaukidar who handed it over there at 12.30 o'clock in the noon. A case was registered against the appellants on the basis of that report which was successively investigated by S. I. Ram Pratap P. W. 8, S. I. Rameshwar Pathak P. W. 7 and S. I. Nagendra Bahadur, who simply submitted the charge-sheet. 6. Autopsy of the dead body of Ratipal Singh was held by Dr. R. C. Sharma Medical Officer, District Hospital, Barabanki. He found six ante-mortem external injuries upon Radial Singh's dead body. The first injury was a cut wound upon the nose of the deceased which had exposed the upper jaw bone. Four of the injuries of the deceased were firearm wounds. The first one was 13 x 8 cms. x chest cavity and shoulder joint deep on the left side of chest and shoulder. Charred, blackened and clotted blood was present in the wound. Four of the injuries of the deceased were firearm wounds. The first one was 13 x 8 cms. x chest cavity and shoulder joint deep on the left side of chest and shoulder. Charred, blackened and clotted blood was present in the wound. The second fire-arm wound was 7 cm. x 3 cm. and was chest cavity deep. It was in the middle of the chest and to the left of sternum. The other two firearm injuries were on the two thighs. Last injury of the deceased was a contused wound found upon the back of right elbow. 7. Upon internal examination second and third costal cartilages and ribs were found fractured on the left side. Clavicle and shoulder joint were involved in the first firearm wound noted above. Left lung was punctured. A number of gun shots with cartridge ends were recovered from lung cavity and tissues. The chest cavity had blood with firearm pieces in it. Dr. Sharma opined that Ratipal Singh had died due to shock and haemorrhage caused by firearm injuries which were, in the ordinary course of nature, sufficient to cause his death. 8. The investigating Officer recovered plain and blood-stained earth from the Barotha of Piara Bhujain's house and also remnants of an exploded hand-grenade from outside her house. Two percussion caps smeared in blood were also found stuck to the body of the deceased. All these articles were taken by the investigating officer into his custody. The appellants were ultimately charge-sheeted in due course. They denied the commission of the alleged crime and suggested that there was no dearth of the enemies of the deceased and he having been done to death by unknown assailants the appellants were falsely implicated due to enmity. No evidence was led by the appellants in their defence. 9. Besides formal evidence the prosecution examined Smt. Chandrawati P. W. 1, Amar Bahadur Singh P.W. 2, Smt. Saroj Kumari P. W. 3 and Jag Jiwan P. W. 4 to prove the occurrence and Mool Chand P. W. 5 to prove the alleged motive for the appellants to commit Ratipal Singh's murder. Jag Jiwan did not support the prosecution case and was declared hostile. Smt. Piara Bhujain and Ram Sumiran were examined by the learned Sessions Judge as C. Ws. They did not implicate the accused. Jag Jiwan did not support the prosecution case and was declared hostile. Smt. Piara Bhujain and Ram Sumiran were examined by the learned Sessions Judge as C. Ws. They did not implicate the accused. The learned Sessions Judge, however, found Smt Chandrawati, Amar Bahadur Singh and Smt. Saroj Kumari to be credible witnesses, and relying upon their testimony passed the order under appeal. 10. Before adverting to the merits of the case we may refer to the illegality committed by the learned Sessions Judge through exhibiting the post-mortem examination report under S. 294 Cr. P. C. (new) and treating it a valid substitute for the sworn testimony of the autopsy Surgeon viz. Dr. R. C. Sharma. A few other cases have also come to our notice wherein similar procedure was followed by other Sessions Judges. In one case we had postponed the hearing of the appeal and had directed the Sessions Judge concerned to record the statement of the autopsy Surgeon. In the present case we have ourselves examined Dr. R. C. Sharma. The exhibiting of a post-mortem examination under S. 294 Cr. P. C. (new) after dispensing with the recording of the statement of the autopsy Surgeon is, in our opinion, a clear illegality. We would, therefore, like to make our observations on the point for the guidance of Subordinate Courts. 11. Section 294 is a new provision contained in the Cr. P. C. of (1974). It provides for the admission in evidence of certain documents without formal proof. It requires each party to produce a list of documents and requires the opposite party to admit or deny the genuineness of all or any of those documents. Where the genuineness of any document is not disputed, such document can be read in evidence without proof of the signature of the person by whom it purports to be signed. The Court can, however, in its discretion, require such signature to be proved. A bare reading of the aforesaid section would reveal that it contemplates reading in evidence, upon admission about genuineness by the opposite party, only such documents which, when formally proved, speak for themselves. It does not refer to a document which, even if exhibited, cannot be read in evidence as a substantive piece. 12. A bare reading of the aforesaid section would reveal that it contemplates reading in evidence, upon admission about genuineness by the opposite party, only such documents which, when formally proved, speak for themselves. It does not refer to a document which, even if exhibited, cannot be read in evidence as a substantive piece. 12. The notes of port-mortem examination, popularly known as post-mortem examination report, are nothing but a contemporaneous record prepared by a Medical Officer, while performing the post-mortem examination of a dead body. It summarises the salient features observed by the medical man in the course of autopsy on which features he bases his own opinion as to the cause of death. Post-mortem report by itself proves nothing as it is not a substantive piece of evidence. It is only a previous statement of the doctor based on his examination of the dead body. It is the statement of the doctor made in Court which alone is the substantive evidence. The post-mortem report can be used to corroborate the statement of the doctor concerned under S. 157 of the Evidence Act. The doctor can also use it to refresh his memory under S. 159 of the Evidence Act or it can be used to contradict his statement in the witness box under S. 145 of the Evidence Act. If the doctor is dead or is not available for examination in Court under the circumstances mentioned in S. 32 of the Evidence Act, the post-mortem examination report is admissible under cl. (2) of S. 32 of the Evidence Act. There is a string of decisions of different courts laying down the above noted propositions of law. 13. In Bechan Prasad v. Jhuri, (AIR 1936 All 363) : (37 Cri LJ 424), a letter written by lady doctor containing her opinion about the age of the person concerned was held inadmissible in evidence in the absence of the sworn testimony of the doctor concerned. 14. In Mohan Singh v. Emperor, (AIR 1925 All 413): (26 Cri LJ 551) and in the State v. Rakshpal Singh, (AIR 1953 All 520) : (1953 Cri LJ 1240) post-mortem and injury reports prepared by doctors, who were already dead, were held admissible under S. 32 (2) of the Evidence Act. 15. 14. In Mohan Singh v. Emperor, (AIR 1925 All 413): (26 Cri LJ 551) and in the State v. Rakshpal Singh, (AIR 1953 All 520) : (1953 Cri LJ 1240) post-mortem and injury reports prepared by doctors, who were already dead, were held admissible under S. 32 (2) of the Evidence Act. 15. In Rangappa Goundan v. Emperor ((1936) 37 Cri LJ 471): (AIR 1936 Mad 426) it was held that a post-mortem report is not evidence and can only be used by the witness who conducted the post-mortem enquiry as an aid to his memory. 16. In Teja Singh v. State, (1951-52 Cri LJ 33) : (AIR 1951 Pepsu 1) it has been laid down that it is the doctor's statement in Court, and not his postmortem report, which is substantive evidence, and the report can only be used by the doctor under S. 159, Evidence Act, for refreshing his memory while under examination, provided he had prepared it at the time of holding the post-mortem or soon thereafter. 17. In Loku Basappa Pujari v. State (1960 Cri LJ 1327) : ( AIR 1960 Bom 461 ), Hadi Kirsani v. State (1966 Cri LJ 45) : ( AIR 1966 Ori 21 ), and State v. Jawan Singh (1971 Cri LJ 1656) (Raj) also it has been laid down that a post-mortem report by itself is not a substantive piece of evidence and before it can be used to corroborate the doctor concerned, there must be deposition of the doctor in the witness-box, and he may refresh his memory under S. 159 of the Evidence Act by that report or may be contradicted under S. 145 of the Evidence Act. 18. In the face of this legal position] exhibiting of post-mortem report under S. 294 Cr. P. C. (new) is not permissible and even if such an exhibiting has been done the report itself cannot be used as a substantive piece of evidence until and unless the doctor concerned has been examined in Court. 19. Coming to the merits of the case, the learned counsel for the appellants has not disputed before us that murder of Ratipal Singh was committed inside the Barotha (Portico) of Smt. Piara Bhujain's house sometime in the morning of the day of occurrence through firing of gun-shots at him. 19. Coming to the merits of the case, the learned counsel for the appellants has not disputed before us that murder of Ratipal Singh was committed inside the Barotha (Portico) of Smt. Piara Bhujain's house sometime in the morning of the day of occurrence through firing of gun-shots at him. The alleged cutting of nose of the deceased by the assailants is disputed on behalf of the defence. The suggestion of the defence is that the cut mark found by Dr. R. C. Sharma upon the nose of the deceased might have been caused through some sharp-edged splinter of the blasted hand-grenade or through the falling of the deceased upon some implement which might have been in the Barotha of Smt. Piara as she had her furnace or Bhar in that very Barotha. The statement of Dr. R. C. Sharma recorded by us, coupled with the postmortem examination report prepared by him, proves the factum of Ratipal Singh's murder through firing of gunshots. The recovery of blood-stained earth and other articles by the investigating officer from inside and outside the Barotha of Smt. Piara Bhujain fixes the place of occurrence. We have, therefore, no doubt in our mind that Ratipal Singh was done to death sometime in the morning of the day of occurrence through firearm injuries received by him inside the Barotha of Smt. Piara Bhujain. 20. So far as the testimony of the three eye witnesses is concerned the contention of the learned counsel for the appellants is that Amar Bahadur Singh P. W. 2 was not at complainant's house at the time of occurrence and he appears to have been called by his sister sometime thereafter. Regarding Chandrawati and Saroj Kumari P. Ws. the contention of the learned counsel is that they could not reach the place of occurrence well in time to see the occurrence. It has been further argued that the house of Smt. Piara Bhujain is in the midst of the village Abadi. There are a large number of houses near about her house. If Chandrawati and Saroj Kumari could be attracted from their house to see the assault on the deceased, there is no reason why the residents of those houses were not attracted. There are a large number of houses near about her house. If Chandrawati and Saroj Kumari could be attracted from their house to see the assault on the deceased, there is no reason why the residents of those houses were not attracted. Lastly it has been pointed out that the very circumstance that only three close relations of the deceased and three of his servants are named as eyewitnesses in the F.I.R. and no other neighbour of Smt. Piara Bhujain's house is named therein, indicates that all is not well with the prosecution case. After considering these arguments in the light of the circumstances of the case we find force therein. 21. The presence of Amar Bahadur Singh P. W. 2 at the house of the deceased, when the occurrence took place, is highly improbable. He resides about 10 miles away from Semaur. Chandrawati and Saroj Kumari P. Ws. have stated that Amar Bahadur Singh was staying at their house since an armed dacoity was committed there about three weeks prior to the present occurrence. Amar Bahadur Singh, in his turn, stated that he had come to the house of his brother-in-law only five or six days before the occurrence. Chandrawati has stated that when she heard the sound of a shot she, Saroj Kumari and Amar Bahadur Singh were at the door of her house. Amar Bahadur Singh and Saroj Kumari have, on the other hand, stated that Amar Bahadur Singh was then inside the house. Apart from these contradictions one very important circumstance which belies Amar Bahadur Singh's presence at Semaur at the time of occurrence is that if he was really there and had witnessed the occurrence, he ought to have gone to the police station to lodge the report. It is highly improbable that in his presence Chandrawati would get a written report prepared by her daughter Saroj Kumari. 22. The learned Sessions Judge appears to have been too much influenced by the circumstance that the F.I.R. of the occurrence was a prompt one, and because Amar Bahadur Singh was named therein so his presence at the time of occurrence could not be doubted. We have perused the F.I.R. and other papers prepared by the police, including the inquest report. We are definitely of the opinion that written report was not prepared in the village at the time when Chandrawati and Saroj Kumari alleged its preparation. We have perused the F.I.R. and other papers prepared by the police, including the inquest report. We are definitely of the opinion that written report was not prepared in the village at the time when Chandrawati and Saroj Kumari alleged its preparation. We are further of the opinion that the present case was not registered at the time when the police claims its registration, nor the dead body of Ratipal Singh was sent to the mortuary from the village when it is said to have been despatched. 23. Smt. Chandrawati has stated that written report was prepared by Saroj Kumari on her dictation before the arrival of the Chaukidar. It is said that Amar Bahadur Singh was sent to call the Chaukidar and before he brought him the written report was as follows : - 24. The above averments of the F.I.R. speak that it was prepared when Chaukidar had already arrived and the first informant was definite that she would send the report to the police station through none else but the Chaukidar. It is difficult to understand how Chandrawati could be definite about the arrival of Chaukidar and sending of the report through him when he had not already arrived and Amar Bahadur Singh had gone in his search to another village namely Birapur. In our opinion the above averments of the F.I.R. afford intrinsic evidence about its preparation sometime later on. 25. The inquest report prepared by the investigating officer is on record as Ex. Ka-3. In this document the crime number of the present case is not mentioned. On the other hand crime number of that case is noted which was being investigated by the investigating officer when he received papers of the present case. In the third line of the contents of inquest report even the general diary entry number of that report is not noted at which the present case was registered. Blank space is left for it. The time of the report (12.30 noon) also appears to have been inserted in that line by a different ink. The distance of the police station from the place of occurrence mentioned in the F. I. R. is 6 kms., while that mentioned in the inquest report is three miles. Blank space is left for it. The time of the report (12.30 noon) also appears to have been inserted in that line by a different ink. The distance of the police station from the place of occurrence mentioned in the F. I. R. is 6 kms., while that mentioned in the inquest report is three miles. If the F.I.R. had already been prepared and its copy was available to the officer who held inquest, there could not be that discrepancy of distance in the two documents. Above all, even the name of the first informant is not mentioned in the prescribed column of the inquest report. The public prosecutor, who conducted this case in the trial Court ought to have noticed the above shortcomings in police papers and in the interest of justice and fair play he ought to have sought clarification thereof from the investigating officer when he was in the witness-box. The learned counsel, who was defending the appellants in the Court below, could also seek that clarification even if the learned prosecutor had omitted to do it. The learned Sessions Judge, who tried the case under appeal, also does not appear to have perused the police papers carefully either during the trial of the case or while preparing the file for dictating judgment, otherwise he could seek clarification about the above noted infirmities in police papers from the investigating officer even by recalling him in the witness-box, if necessary. In spite of the fact that none concerned with the prosecution, defence and trial of the case sought clarification about the above noted infirmities in police papers from the investigating officer, we do not think that we are precluded from drawing reasonable inferences there from. 26. The time of despatch of the dead body from the village is also a relevant factor in the present case. According to the inquest report and the statement of the investigating officer the dead body was despatched from the village at 4 p.m. on 7-4-74. Both Amar Bahadur Singh and Saroj Kumari have stated that the dead body of Ratipal Singh was despatched from the village in the morning of 8-4-74. Amar Bahadur Singh more definitely stated that the hearse car, whereby the dead body was despatched, could be available in the night of 7/8-4-1974. Both Amar Bahadur Singh and Saroj Kumari have stated that the dead body of Ratipal Singh was despatched from the village in the morning of 8-4-74. Amar Bahadur Singh more definitely stated that the hearse car, whereby the dead body was despatched, could be available in the night of 7/8-4-1974. It was parked by the driver at some distance from the village and the dead body was despatched on it next morning. The endorsement upon Chalan, Ex. Ka-12, shows that the dead body had reached the mortuary at 10.45 a.m. on 8-4-74. That time fits in the above noted admissions of Amar Bahadur Singh and Saroj Kumari P. Ws. It is thus obvious that wrong time of the despatch of the dead body is mentioned in the inquest report. The delay in the despatch of the dead body and the clumsy attempt made by the investigating agency in concealing that delay by noting a wrong time about the despatch of the dead body from the village can lead us to the only inference that the F.I.R. was not lodged when it purports to have been lodged, and it was prepared subsequently and was ante-timed. That being so, the existence of Amar Bahadur Singh's name in the so-called prompt F.I.R. can be no guarantee of the fact that he had really seen the occurrence. 27. Amar Bahadur Singh P. W. 2 is a close relation of the deceased and the complainant. He could be easily prevailed upon by the prosecution to support its case. The other two witnesses namely Chandrawati and Saroj Kumari are also closely related to the deceased and their statements will have to be subjected to close scrutiny. The suggestion of the three eye-witnesses that they were sitting outside the house of the deceased when sound of a shot was heard by them is improbable. 10.30 a.m. is the time when ladies are busy with household work. There seems to be no reason why the two ladies, Chandrawati and Saroj Kumari, were sitting outside at that time. If Amar Bahadur Singh was really there, he ought to have accompanied his brother-in-law for going to Mahuwari. He could not keep sitting idle at his door. It is again improbable that by just hearing the sound of a shot at a distance of 150 paces from the house of the deceased the three eye-witnesses started running away in that direction. He could not keep sitting idle at his door. It is again improbable that by just hearing the sound of a shot at a distance of 150 paces from the house of the deceased the three eye-witnesses started running away in that direction. The entire occurrence was a matter of one or two minutes. We do not think that these witnesses could reach the Barotha of Smt. Piara Bhujain well in time to see the assault of the deceased. That is perhaps why Chandrawati at first stated that she saw the assault of the deceased by all the appellants inside the Barotha but later on deposed that when she reached that Barotha the deceased was lying on the ground and Jagdeo Singh was cutting his nose. Learned Government Advocate suggested to me that at least this part of the testimony of Smt. Chandrawati should be believed because the doctor found a cut wound upon the nose of the deceased. When presence of Chandrawati at the scene of occurrence well in time is doubtful, and it is clear that she had falsely stated about the time of the lodging of the F.I.R. and she also falsely introduced Amar Bahadur Singh P. W. 2 as a witness of the occurrence, we do not think that we can safely believe her only about the cutting of the nose of the deceased by Jagdeo Singh appellant. 28. There are indications in the prosecution evidence to the effect that most probably the deceased was done to death by unknown persons and the appellants have been falsely implicated due to enmity. Smt. Piara C. W. 1 was the best witness to see the assailants as the occurrence took place in her own Barotha. She did not support the prosecution case. Jag Jiwan P. W. 4, who is a servant of the deceased, also did not implicate the appellants. The other available servant of the deceased, who is said to have witnessed the occurrence, namely Ram Sumiran C. W. 2, also did not implicate the accused. It is important to note that both Jag Jiwan P. W. 4 and Ram Sumiran C. W. 2 had stated even before the investigating officer under Sec. 161, Cr. P. C. that five or six unknown persons had done the deceased to death and were seen running away by them. It is important to note that both Jag Jiwan P. W. 4 and Ram Sumiran C. W. 2 had stated even before the investigating officer under Sec. 161, Cr. P. C. that five or six unknown persons had done the deceased to death and were seen running away by them. The learned Sessions Judge has held that investigation of the present case was done in a bona fide manner by S.-I. Ram Pratap P. W. 8 though taints crept into it when investigation was taken over by S.-I. Rameshwar Pathak P. W. 7. The statements of Jag Jiwan and Ram Sumiran were recorded by S.-I. Ram Pratap and not by S.-I. Rameshwar Pathak. It means that even at the stage of investigation, which according to the learned trial Judge was done in a bona fide manner, these witnesses stated that the deceased was done to death by five or six unknown persons. They were then in the service of the deceased and there was no reason for them to support the defence. 29. One very important circumstance which indicates that the assailants of the deceased were unknown persons is that identification memos. Exs. Kha-6 and Kha-7 and injury report, Ex. Kha-8 filed by the defence indicate that one Rameshwar became available to the investigating agency on the very next day of occurrence. There were gunshot wounds on his person. He and two others, namely Yusuf and Ibrahim were put up for identification at Bara Banki Jail on 17-5-1974 and 2-8-74. Ram Sumiran C. W. 2 and Jag Jiwan P. W. 4 participated in the identification proceedings. They stated before the Magistrate, who held those proceedings, that they had come to identify the murderers of Ratipal Singh. They were unable to identify the suspects. If only the appellants were the murderers of the deceased, there appears to be no reason why those unknown suspects were rounded up by the investigating agency and were put up for identification. Even if it was done by the police mischievously Jag Jiwan and Ram Sumiran could state before the Magistrate, who held that identification, that only known persons had committed murder of the deceased and they could not identify any known persons as the possible assassins of the deceased. The very fact that those two persons took part in the test-identification of unknown suspects indicates that there were unknown persons who had murdered the deceased. The very fact that those two persons took part in the test-identification of unknown suspects indicates that there were unknown persons who had murdered the deceased. The learned Sessions Judge has held that because the deceased had earlier moved applications to higher authorities against S.-I. Rameshwar Pathak and Tikaitnagar police so that S.-I. had deliberately damaged the prosecution case by arresting Rameshwar, Yusuf and Ibrahim and putting them up for test-identification. The learned Judge did not disbelieve the injuries of Rameshwar entered in memo Ex. Ka-8. It shows that substantial gun shot injuries were received by Rameshwar. It is difficult to understand how the investigating agency got help of Rameshwar in injured condition and connected him with the present case. It is not possible to hold that Rameshwar got firearm injuries inflicted on his person to oblige the police. The deceased was an ex-army and Railway Protection Force employee. The material on record shows that he had given cause of annoyance to so many persons. He might have moved applications against S.-I. Pathak and other police officials of Tikaitnagar as they refused to oblige him in some matter. That fact cannot lead us to the inference that S.-I. Pathak deliberately damaged the prosecution case on account of the ill-will amongst him and the deceased and put up Rameshwar, Yusuf and Ibrahim for identification to damage the prosecution case, which case had already assumed a definite shape by the time investigation had come into the hands of S.-I. Pathak. 30. We, therefore, do not agree with the learned trial Judge in his finding to the effect that unknown persons were put up at test-identification parade through any malicious design of S.-I. Rameswar Pathak. Putting up of those suspects for identification by the investigating agency, the participation of Jag Jiwan and Ram Sumiran in those proceedings, and, the statements of those two witnesses recorded by Sub-Inspector Ram Pratap under S. 161, Cr. P. C., before S.-I. Rameshwar Pathak appeared on the scene, clearly indicate that the deceased had been done to death by unknown assailants and not by the present appellants. P. C., before S.-I. Rameshwar Pathak appeared on the scene, clearly indicate that the deceased had been done to death by unknown assailants and not by the present appellants. The statement of Mool Chand P. W. 5 read with the statement of Smt. Chandrawati, complainant, undoubtedly proves bad blood amongst Jagdeo Singh appellant and the deceased, but motive alone, however strong it might be, cannot be made the basis of conviction of an accused person unless it receives corroboration from other sources. Those sources are practically nil in the present case because the statements of the three eye-witnesses about appellants' participation in the occurrence complained of cannot be believed for reasons already given above. Their statements about the assault of the deceased by means of hand-grenade do not find support by the medical evidence because out of the four firearm injuries found by Dr. Sharma on Ratipal's body none was a blasting wound which is the characteristic feature of an injury caused by a hand-grenade. The investigating officer found remnants of hand-grenade only outside the house of Smt. Piara Bhujain and not inside the Barotha. If any hand-grenade was blasted inside the Barotha remnants thereof ought to have been found there. 31. There are undisputedly a large number of houses in the vicinity of the house of Smt. Piara Bhujain. The failure of the prosecution to find any independent witness, out of the residents of those houses, to support its case is a circumstance which indicates that most probably no independent resident of the village was prepared to support the prosecution story because it was a concocted one. 32. Under the circumstances we are of the opinion that the learned Sessions Judge was not justified in convicting the appellants on the basis of the material which was placed before him. We consequently allow these appeals, and set aside the conviction and sentence of the four appellants ordered by the Court below. Capital sentence Reference No. 2 of 1978 made by the Sessions Judge for confirmation of Jagdeo Singh's death sentence is rejected. Jagdeo Singh appellant is in jail. He shall be set at liberty forthwith unless required in connection with some other case. The remaining appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed.