K.D. SHARMA, C.J. — This is an appeal filed by Punja, Mogji, Kheema and Sawji against the judgment of the Additional Sessions Judge, Dungarpur, dated March 2, 1977. by which each appellant was convicted under sections 147, 307/149, 323/149 and 363, I.P.C. and sentenced to undergo rigorous imprisonment for one year on the first count, on the second to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo rigorous imprisonment for six months, on the third count to undergo rigorous imprisonment for six months and on the fourth to suffer rigorous imprisonment for six months. All the substantive sentences of imprisonment awarded on the four counts were ordered to run concurrently in the case of each appellant. It will not be out of place to mention that during the pendency of the appeal, Sawji appellant expired on April 6, 1977. Hence, the appeal filed by him abated on his death. 2. The prosecution case against the remaining three appellants was as follows:- 3. Punja appellants brother Pema was murdered and a criminal case was registered by the police at police station, Ganeshpur, about the offence of murder. Head Constable Shanker Lal accompanied by Constables Moti Singh, Suresh, Karan Singh and Labh Shanker came to village Kathri Khurd where the deceased used to live, and started investigation into the case of murder. After some investigation, they were carrying Pemas wife Mst. Sukhi and one Taju to the police station from village Kathri Khurd for further investigation Alongwith the Head Constable and the Constables, there were other persons, namely Moga, Shanker and Kachra. When the police party came out of the village and reached near a hillock, along with Taju and Pemas wife, Mst. Sukhi and other above mentioned persons about 600 or 700 persons of village Torania and Morayee came there having armed themselves with lathis, swords dharia, bows and arrows and gun. They had come to kill Mst. Sukhi and Taju Shanker Lal, Head Constable, asked these persons not to take law into their hands, but they turned deaf-ears to his advice and attacked Sukhi and Taju with the weapons in their hands. As a result of beating administered to Sukhi and Taju, Sukhi fell down unconscious and her baby aged about 1 1/2 years fell from her lap and was lifted up by some person. As a result of beating administered to Sukhi and Taju, Sukhi fell down unconscious and her baby aged about 1 1/2 years fell from her lap and was lifted up by some person. Taju, however, tried to run away but somebody struck a blow on his head with a sword, as a result of which he fell down when another person fired a shot from his gun at his left thigh. The miscreants disappeared from there as they thought that Taju had died Shanker Lal and other Constables brought the two injured to Ganeshpur and from Ganeshpur they carried them to Dungarpur Hospital in a bus for treatment of their injuries. Shanker Lal, Head Constable came back to police station Ganeshpur, on May 29, 1975 and lodged a report of this incident with the police on the basis of which a criminal case under sections 148, 353, 363 and 307/149, I.P.C. was registered. The police made usual investigation into the matter and after collecting necessary evidence filed a charge-sheet against 21 accused including the 3 appellants in the court of the Munsiff and Judicial Magistrate, Dungarpur, under sections 307,148, 149, 353 and 363, I.P.C. The learned Judicial Magistrate, upon finding a prima-facie case exclusively triable by the court of Sessions, committed 21 accused including the present appellants to the court of the Additional Sessions Judge, Dungarpur, for trial for the aforesaid offences. The learned Sessions Judge tried all the accused persons for the above mentioned charges and found Punja, Mogji, Sawji and Kheemaji accused only guilty under secs. 147, 307/149, 323/149 and 363, I.P.C. The other accused were acquitted by him of all the charges framed against them, Punja, Mogji and Sawji were also acquitted of the charges under sections 148, 326/149 and 325/149, I.P.C. The learned Addl. Sessions Judge, accordingly convicted and sentenced the appellants, in the manner stated above. Aggrieved by their convictions and sentences, the 3 appellants, Punja, Mogji and Kheema have preferred this appeal. 4. I have carefully gone through the record of the trial court and heard Mr. P.R. Chaudhary learned counsel for the appellants and Mr. D.S. Shishodia and Mr. M.C. Bhati, Public Prosecutor. Firstly, it has been contended on behalf of the appellants that the Addl. Sessions Judge committed an error in recording the conviction of the three appellants on the evidence adduced in the case from the side of the prosecution. P.R. Chaudhary learned counsel for the appellants and Mr. D.S. Shishodia and Mr. M.C. Bhati, Public Prosecutor. Firstly, it has been contended on behalf of the appellants that the Addl. Sessions Judge committed an error in recording the conviction of the three appellants on the evidence adduced in the case from the side of the prosecution. It was further urged that the three appellants were not known to the witnesses prior to the alleged occurrence and, therefore, an identification parade was held wherein the three appellants alongwith other accused were put up for identification but the prosecution could not prove those previous identification proceedings by summoning the Magistrate, who conducted the identification parade, to give evidence in the case. In short, the contention put forward by the learned counsel for the appellants is that the evidence of identification of the appellants for the first time in the trial court is inherently weak, because it is not supported by an earlier test identification. The Public Prosecutor, on the other hand, urged that the eye-witnesses have correctly identified the three appellants in the court and the trial Judge believed the substantive evidence as to the identity of the appellants and so the entire prosecution case cannot be thrown out merely on the ground that the Magistrate, who conducted the test parade, has not been examined at the trial to prove test parade memo prepared by him. 5. I have considered the rival contentions mentioned above. In my opinion the prosecution could not lead satisfactory evidence to prove participation of these three appellants in the commission of the crime. Taju, injured (PW 5) clearly stated in his deposition that he did not know the names of those persons who had beaten him. He further admitted that he could not identify the assailants out of 600 or 800 persons who had gathered there and attacked him. When specifically questioned, he expressed his inability to say whether any of the accused persons present in the trial court were his assailants Similar is the evidence of Wala PW 6, Kachra PW 7 claimed to have recognised Punja appellant only. The names of the rest of the persons he did not know. Likewise, Shanker Lal PW 8 stated in his deposition that Punja and Kheemaji were known to him. The names of the rest of the persons he did not know. Likewise, Shanker Lal PW 8 stated in his deposition that Punja and Kheemaji were known to him. He was cross-examined in the trial court and was confronted with the statement Ex.D 4 wherein he did not mention the names of Moga and Kheemaji as assailants and wherein he did not claim to have seen Punja striking a blow on the head of Taju and Moga firing a shot from his gun at him (Taju) When confronted with his above statement Ex. D.4, which he gave before the police in the course of investigation he could not say why these material facts were not written therein Hence, no value can be attached to his evidence. 6. Now remains the evidence of Shanker Lal PW 1, Labh Shankar PW 2 and Karan Singh PW 3. These three witnesses also professed to have eye-witnessed the occurrence. Karan Singh claimed to have known Punja, Kheemaji, Moga, Rupa and Sawji. His evidence is that Moga appellant fired a shot from his gun at Taju, which hit the latters leg and Punja and Kheemaji instigated the other accused to kill Taju. The evidence of this witness is not reliable at all. In his cross-examination, he was confronted with portion A to B of his police statement Ex. D.2, wherein he did not state that Moga had fired a shot at Taju. He was further confronted with and contradicted by his police statement Ex. D.2, wherein he omitted to mention the names of Sawji, Moga and Rupa as assailants. He could not afford any reasonable explanation for the referred to above material contradiction and omission in his previous statement before the police. Apart from this, he further admitted in bis cross-examination that all the appellants including the three appellants were brought to the police station after their arrests in his presence and in the presence of other witnesses, namely, Labh Shankar, Moti Singh, Suresh and Shankar Lal and that the accused were kept in confinement inside the police station. From his above admission, it can be gathered that there was an opportunity for the eye-witnesses to see the accused including the three appellants when the latter were brought to the police station and kept therein in confinement. Likewise, the evidence of Shankar Lal and Labh Shankar PW 1 and PW 2 suffered from serious infirmities. From his above admission, it can be gathered that there was an opportunity for the eye-witnesses to see the accused including the three appellants when the latter were brought to the police station and kept therein in confinement. Likewise, the evidence of Shankar Lal and Labh Shankar PW 1 and PW 2 suffered from serious infirmities. Labh Shankar PW 2 admitted in his cross-examination that apart from Punja and Kheemaji, he did not identify any other accused at the spot. He further claimed to have identified Punja and Kheemaji in a test identification parade held in Salumbar Jail, and thereafter in the trial court, but as stated earlier, the prosecution could not examine the Magistrate, who conducted the identification parade and in the absence of the evidence of the Magistrate, no value can be attached to the previous identification proceedings Apart from this, Labh Shanker did not say in his deposition that Punja and Kheemaji were responsible in inflicting any injury to Sukhi or Taju. The evidence of Shankar Lal PW 1 also is of no help to the prosecution because Shankar Lal had, in examination in-chief, claimed to have seen Punja striking a blow wish a sword on the head of Taju, as a result of which Taju fell down, but in his cross-examination he was confronted with portion C to D of his first information report, wherein he did not mention that Punja had struck a blow with his sword on the head of Taju When confronted with the above portion his first information report Ex. P. 1. Shankar Lal gave a fantastic reply by stating that me sword blow was no doubt inflicted by Punja on the head of Taju, but while writing the report Ex.P. 1 he forgot to mention his name. Shankar Lal was further confronted with and contradicted by portion A to B of his police statement Ex. D. 1 also wherein he did not mention the name of Punja as assailant of Taju. Consequently, it is not established by the prosecution beyond reasonable doubt that the three appellants participated in the attack on Mst. Sukhi and Taju at the alleged time and place. D. 1 also wherein he did not mention the name of Punja as assailant of Taju. Consequently, it is not established by the prosecution beyond reasonable doubt that the three appellants participated in the attack on Mst. Sukhi and Taju at the alleged time and place. Criminal liability cannot be saddled on the three appellants merely because of the eye-witnesses claimed to have seen them at the spot amongst 600 or 800 persons It is all the more surprising that the prosecution could not produce the Doctor who examined the injuries of Mst. Sukhi and Taju. If the Doctor was not available his signatures could be easily proved by calling persons in the court who were well acquainted with his hand writing and signatures, but this has not been done for reasons best known to the prosecution The trial Judge, in my opinion, went wrong in convicting the three appellants on the basis of highly discrepant and unsatisfactory evidence led by the prosecution 7. The result of the above discussion is that the appeal filed by Punja, Mogji and Kheemaji is accepted, their convictions and sentences under section 147, 307/149, 323/149 and 363, I.P.C. are set aside and they are acquitted of the aforesaid offences. The appellants are on bail. They need not surrender to their bail bonds, which are hereby cancelled.