JUDGMENT V. K. Mehrotra, J. 1. THE two appellants were police constables attached to Police Station Alapur in District Budaun and the incident in which Shanker Lal lost his life took place on November 22, 1977 in which Munna Lal also received, gun shot injuries. Both of them have been convicted under Sec. 302 IPC read with Sec. 34 IPC and sentenced to undergo imprisonment for life apart from being convicted under Sec. 307 IPC read with Sec. 34 IPC and Sec. 394 IPC as well as Sec. 397 IPC and sentenced to (undergo rigorous imprisonment for seven years on each of the two counts. 2. THE case of the prosecution is that these two appellants who were on Gasht and Idd duty and had been deputed with one rifle (musket) and 50 cartridges (rounds) each for the purpose aocosted Shanker Lai and Munna Lal at about 5 P. M. on the road near the culvert of village Simaria while those two persons were going back to village Mai Buchan after making purchases at Budaun. Munna Lal was married to the daughter of one Budhpal of village Mai Buchan. He was in military service and was on leave at that time. He had made purchases at Budaun for his wife, daughter and father-in-law. Shanker Lal was known to him and had accompanied Munna Lal to Budaun. THE appellants are said to have abused these two persons and to have forcibly snatched from them a sum of Rs. 1500/-which was being carried by Munna Lal in his pocket as well as the articles purchased by the latter. They are then said to have asked these persons to go away. As they proceeded a few steps, the appellants are said to have challenged them both to become alert. THE allegation further is that when the two persons turned towards the appellants both of them fired two shots each with their respective rifles towards Munna Lal and Shanker Lal. Munna Lal was struck on the face by one of these shots while the other missed him. He ran towards village Mai Buchan. Shanker Lal fell down on being hit by the shot and died on the spot. THE appellants are said to have gone away from the scene of the incident with the sum of Rs. 1500/-but leaving behind other articles which they had snatched from the victims earlier. He ran towards village Mai Buchan. Shanker Lal fell down on being hit by the shot and died on the spot. THE appellants are said to have gone away from the scene of the incident with the sum of Rs. 1500/-but leaving behind other articles which they had snatched from the victims earlier. Budhpal, the father-in-law of Manna Lal, Loki Ram, the father of Shanker Lal and some other persons arrived at the scene of the incident after learning about it. They took Munna Lal in a bullock-cart to Police Station Kotwali, Budaun where he lodged written report about the incident at 7.45 (?) the same day. In this report, he described the, miscreants as two policemen. He was sent to the District Hospital, Budaun for medical examination. This examination was done by Dr. N. P. Singh (PW 5) at 8. 30 p. m. and revealed that Munna Lal had sustained the following injuries : 3. THE requisite papers were sent from Police Station Kotwali to Police Station Alapur the same day on the basis whereof a case was registered at that Police Station. Investigation followed and was made by PW 11 Rajvir Singh who was the Station Officer at police Statical Alapur. He was present at the Police Station when the case was registered. He proceeded to the scene of the incident where he took the necessary steps and sent the dead body of Shanker Lal for its post mortem examination which was made by PW 4 Dr. Hamidullah. THE following ante mortem injuries were found on it: 4. DEATH of Shanker Lal, according to the doctor, was due to shock and haemorrhage on account of these injuries which could have been caused about one day earlier. The post mortem examination was made at 3.15 P. M. on November 23, 1977. Station Officer Rajvir Singh found the two appellants at the brick-kiln of Krishna Swarup in village Rasoolpur. He interrogated them and recovered from each a rifle and 48 cartridges instead of 50 cartridges. He arrested them both and made them Baparda on the spot in which condition they were taken to Police Station Kotwali and eventually to the District Jail. After he had investigated the case for sometime, the Superintendent of Police, Budaun entrusted its investigation to PW 10 Mahendra Singh Rathore, Deputy Superintendent of Police. He arrested them both and made them Baparda on the spot in which condition they were taken to Police Station Kotwali and eventually to the District Jail. After he had investigated the case for sometime, the Superintendent of Police, Budaun entrusted its investigation to PW 10 Mahendra Singh Rathore, Deputy Superintendent of Police. During the course of investigation, Sri Rathore made a report for putting up the two appellants for identification. The identification proceedings took place in the District Jail, Budaun on December 16, 1977 by the then Executive Magistrate Sri D. S. Nath. During these proceedings, the injured witness Munna Lal could not correctly identify either of the two appellants. He committed one mistake each in the Parades relating to the two appellants. 5. SEVERAL witnesses were examined by the prosecution in support of its case at the trial. They included PW 1 Munna Lal, PW 2 Bhola Nath and PW 3 Sawanti each of wham claimed to be an eye-witness of the incident. The appellants denied their participation in the crime and attributed their false implication in the case to some quarrel with an ill-will of the Station Officer, PW 11 Rajvir Singh Mallick. The trial Judge did not consider the testimony of the latter two witnesses reliable. To quote the words of the learned Judge, "............it can very well be said that these two P.Ws. Bhola Nath and Sawanti were not actually present at or near the place of occurrence and they did not see the occurrence; and that their evidence has been fabricated for the purpose of the case. The learned counsel for the accused has rightly claimed so............" He, however, came to the conclusion that the guilt of the appellants was fully established. For doing so, he placed reliance upon the fact that PW 1 Munna Lal had correctly identified the two appellants as the culprits during his testimony in court which alone, according to him, was substantive evidence and which stood corroborated by some other circumstances including the fact that the appellants did not come back to Police Station Alapur after being deputed on Gast duty and Idd duty and were found in possession only of 48 cartridges each with their rifles at the time of their arrest near the brick-kiln of Ram Swarup by Station Officer Rajvir Singh and Sub-Inspector Mahadeo Prasad at 4 A. M. on November 23, 1977. The medical evidence in regard to the injuries found on the person of both of the deceased and of Munna Lal, according to the trial Judge, corroborated the prosecution case. He, consequently, convicted and sentenced the two appellants as aforesaid. 6. IT has been argued on behalf of the appellants by their learned counsel that there is no legal evidence in proof of the guilt of the two appellants and their conviction cannot, therefore, be sustained. We find substance in the submission. There can be no doubt that Shanker Lal lost his life due to gun shot injuries sustained by him at about 5 P. M. on November 22, 1977 and that Munna Lal also sustained gun shot injuries at about that time. There is also no doubt that property belonging to these two persons was robbed at about the same time. The question, however, is whether the two appellants were responsible for it. The trial Judge, in our opinion, rightly discarded the testimony of PW 2 Bhola Nath and PW 3 Sawanti who had been produced by the prosecution in support of its case. That leaves us with the testimony of PW 1 Munna Lal alone as an eye-witness of the incident. Admittedly, Munna Lal did not know the two appellants from before,, He described the miscreants in the first information report as two policemen whose names and addresses were not known. He could not identify the two appellants in the test identification parade because, according to him, at that time, the appellants were not dressed up in the uniform of police. This, in our opinion, by itself is not a sufficient reason for ignoring the fact that Munna Lal failed to identify the two appellants as the culprits in the test identification parade. This, in our opinion, by itself is not a sufficient reason for ignoring the fact that Munna Lal failed to identify the two appellants as the culprits in the test identification parade. He does not appear to be a good identifying witness because in both the parades relating to the two appellants, he committed one mistake each, The learned trial Judge was right when he observed in his judgment under appeal that it was unsafe to rely upon the evidence of a witness given in court if he has not identified the accused at the time of identification parade but fell in error in taking the view that "if the evidence of such a witness is strongly supported by the other facts and evidence on the record, and is found correct, and he gives valid and satisfactory explanation for not identifying the accused, at the time of identification proceedings, there appears nothing wrong or illegal in accepting his evidence." When the evidence of a witness during which he identifies an assailant in Court is given long after the incident, as in the present case where the incident took place in November, 1977 and the statement of Munna Lal was recorded in November, 1978, the only safeguard to ensure whether the evidence of identification was reliable is to find out whether the witness was a good identifying witness and had identified the culprit at a (time when there was no opportunity for him to become aware of his identity at the test identification parade. True it is that the substantive piece of evidence is that of identification held at the trial yet courts of law have, as a rule of caution, accepted that evidence only when it is corroborated by correct identification by the witness at an earlier test identification parade. We are, therefore,, not inclined to agree with the trial Judge that in a case like the present, it would not be wrong to rely upon the evidence of PW 1 Munna Lal in regard to the identity of the two appellants as the miscreants even though they had not been correctly identified by the witness at the test identification parade. 7. 7. THE fact that the two appellants were arrested near the brick-kiln of Ram Swarup and that at the time of their arrest the cartridges found in their possession fell short of the number of cartridges entrusted to them when they were deputed on Gast duty cannot, in our opinion, be held to be sufficient to link the two appellants with the crime. Moreso, when, admittedly, no recovery was made of any fired cartridge at or near the scene of the incident, the shortage of cartridges with the two appellants and the fact that they did not report back at the Police Station and were (actually arrested near the brick kiln may give rise to a strong suspicion against them. It would, however, not be sufficient to fasten the guilt upon them conclusively. THE prosecution has not led evidence to connect the injuries found on the person of the victims with any cartridge which may have been fired from the two rifles with which the two appellants had proceeded for their Gast duty. THE pallets found during the post mortem examination of the body of deceased Shanker Lal, according to the testimony of PW 4 Dr. Hamidullah were not of a bullet fired from a rifle. 8. IN the result, we are unable to endorse the decision of the trial Judge or to uphold the conviction of the two appellants. We allow the appeal and set aside the conviction of the appellants and the sentence awarded to them. The appellants are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed.