JUDGMENT 1. - This appeal is directed against the judgment passed by the learned Sessions Judge, Jodhpur By the judgment dated April 10, 1978 the learned Sessions Judge convicted the appellant for the offences under sections 302/34. 307/34, 436/34 and 429/34 of the Indian Penal Code and sentenced him to imprisonment for life on the first count and five years R.I. each for the remaining three counts with an order that all the sentences shall run concurrent. 2. Briefly stated, the facts of the case giving rise to this appeal are as under: About seven or eight years prior to the present incident, which took place on January 4, 1964, Mubarak Khan father of Umrao Khan, a suspect in the present case was murdered. Gafoor Khan (P.W. 1) was a suspect in the murder case of Mubarak Khan and had to face a trial. He was acquitted in the case. Umrao Khan hatched enmity with Gafoor Khan for that reason and he and his companions were in search of an opportunity to take revenge from Gafoor Khan Amria, brother of the appellant, another suspect in the present ease had been married in village Bucheti the residence of the appellant and Umraokhan For seven or eight years Umraokhan was absconding, but he with his companions at a number of items had gone to the village to wreck vengeance from Gafoor Khan and had committed dacoity at certain houses When Gafoor Khan knew about the activities of Umraokhan, he, out of fear started sleeping at the house of his father Farid Khan situate at a distance of about one mile from the village-Bucheti. There were two 'padwas' and one 'Pakki Sal' in the house of Farid Khan. 'Dhani' of Gafoor Khan was at a distance of 60-70 paradas' from the house of Farid Khan. On January 4, 1964 Gafoor 10an and his father Farid Khan left the house together. Farid Khan was going to he well to find out why his younger son Umar Din had not returned home in the previous night. The well was at a distance of 400 to 500 Panudas' from the Dhani', of the appellant. The appellant went to his 'Dhani', opened of the house and brought the utensil to milch the buffalow. When he was milching the buffalow, he heard the report of three gun shots. The well was at a distance of 400 to 500 Panudas' from the Dhani', of the appellant. The appellant went to his 'Dhani', opened of the house and brought the utensil to milch the buffalow. When he was milching the buffalow, he heard the report of three gun shots. Those shots hit the slabs affixed outside the 'jhumpa' of the appellant. The appellant stood up to find out who was firing the shots. He saw Umria. Amria, Subhana and on unknown person standing a' his field at a distance of 20 to 25 paundas' away. The unknown person is said to have lathi with him and the remaining three were armed with guns. The appellant went to his 'jhunapa' and took his muzzle loading gun and went to his father's 'Dhani'. The four miscreants came in front of him and fired the shots but none hit him By that time Farid Khan had also returned from the well. When he was at a distance of 60 paundas' from the 'Dhani' of the appellant. two shots hi; him in the joint field of Shera P.W. 2 and Gafoor Khan Gafoor Khan along with his muzzle loading gun went inside the 'sal' of his father. Ilam Din, brother-in-law of Gafoor Khan, whose house was nearby, also came out of the house and was asked by Garoor Khan to go inside the 'sal'. Ilam Din and Shera went inside the 'sal'. The miscreants continued firing the guns towards the 'sal'. Some of the shots hit the wall of the 'sal'. The mi creants set fire to the two 'padwas' of Farid Khen. They also set fire to the 'bada' for keeping grass. The t camels belonging to Farid Khan also sustained gun shots injuries and died. The she-goats of Farid Khan also died because of setting of the fire by the miscreants. On hearing about the incident, the police from Ram Chowki at a distance of about one mile rushed there and fired the gun shots towards the miscreants. The miscreants took to heals. Thereafter Gafoor Khan (P.W. 1), Shera (P.W 2) and Ilam Din came out of the 'sal' and found Farid Kan lying dead in the field. The articles lying in the 'padwas' were also found burnt. Gafoor Khan went to his 'Dhani' and found missing one cloth bad, one dagger, one golden nose-pin and currency notes worth one thousand rupees. Thereafter Gafoor Khan (P.W. 1), Shera (P.W 2) and Ilam Din came out of the 'sal' and found Farid Kan lying dead in the field. The articles lying in the 'padwas' were also found burnt. Gafoor Khan went to his 'Dhani' and found missing one cloth bad, one dagger, one golden nose-pin and currency notes worth one thousand rupees. Gafoor Khan went to Police Station, Kherapa and lodged the report Ex P 1. On the basis of that information, S H.O. Poonam Chand (P.W. 6) registered the case under sections 302 and 436 I.P.C. and left for village-Bucheti for investigation.He found the dead body of Farid Khan lying there having gun shots injuries. The she-goats and the household articles were found burnt. Two camels were also found dead. There were marks of gun shots on the house of Gafoor Khan also. 34 empty cartridges of 303 gun were found at the site which were taken in possession. The site inspection memo Ex. P. 2 and the site plan Ex. P. 17 were prepared, At a distance of five feet from the crops of Farid Khan, one empty cartridge of 303 gun was found which was taken in possession. The S.H.O. prepared the 'panchayatnama' of the dead body of Farid Khan and prepared the memos relating to the dead bodies of animals etc. Dr. P.R. Talukdar (P.W. 7), at the request of the police, went to the site and conducted the autopsy over the dead body of Farid Khan on January 5, 1964 and prepared the report Ex. P. 18. The Doctor noted the following injuries on the dead body:- 1. A gun shot wound 1/4" x 1/4" the entrance of bullet two and half inches near the right ear. Clotted bleeding from nose and mouth. 2. Exit wound 1" x 1" just below the left ear. 3. Entrance wound in abdomen 1/4" x ⅓" just below the left 12th rib along the mid clavicular line. 4. Exit wound 1, 1/4" in 3/4" posterially on lumber region towards right side. 5. Entrance wound 3/4" x 1/4" inches hypothelar eminence. 6. Exit wound 1/2" x 1/2" posterial of hypothelar eminence. The distance between the last entrance and exit wound was one inch. 3. On opening the dead body, the Doctor noted as under:- Right auxiliary bone, left lower mandable fractured. Thorax was healthy. 5. Entrance wound 3/4" x 1/4" inches hypothelar eminence. 6. Exit wound 1/2" x 1/2" posterial of hypothelar eminence. The distance between the last entrance and exit wound was one inch. 3. On opening the dead body, the Doctor noted as under:- Right auxiliary bone, left lower mandable fractured. Thorax was healthy. In abdomen there was 1,1/2 "x 1" laceration on lesser sac. Left laberal lob 1" x 1" found injured. Third, fourth right transverses of right lumber fractured. Clotted blood present. 4. In the opinion of the Doctor the cause of death was shock due to injuries on head and abdomen which might be caused by rifle-shots All the injuries were ante-mortem in nature. The three entrance wounds, without their corresponding exists were sufficient to cause death individually in the ordinary course of nature. The duration of death approximately was about 24 hours prior to the post-mortem examination. 5. During the course of investigation efforts were made for the arrest of Umrao Khan, Subhan Khan, Amaria and Kishore Singh, but none was traceable. Kishore Singh and Umrao Khan are said to have met their death in an encounter with the police on July 24, 1967 in the precincts of Umednagar. Chargesheet under section 511 I.P.C. was filed against Subhan Khan and Amaria. Amaria is said to have died in the 'Bombardment' at Jail. Subhan Khan was arrested by G.H. 2. On August 1.1976, in connection with an F.I.R. dated December 29. 1962 under section 458/380 I.P.C. and was obtained by the police for the Prosecution in the present case. 6. Charge-sheet against Subhan Khan was filed in the Court of Munsif and Judicial Magistrate, District Jodhpur on May 18, 1977. By the order June 28, 1977, the appellant was committed to the Court of Sessions Judge, Jodhpur to stand his trial. 7. The learned Sessions Judge charge-sheeted the appellant for the aforesaid offences and recorded his plea. He denied the indictments and claimed to be tried. Seven witnesses were examined from the prosecution side to substantiate its case. The appellant in his statement under section 313 of the Code of Criminal Procedure totally denied the allegations levelled against him. He stated that he and Gafoor Khan neither met ever nor had seen each other. He denied the indictments and claimed to be tried. Seven witnesses were examined from the prosecution side to substantiate its case. The appellant in his statement under section 313 of the Code of Criminal Procedure totally denied the allegations levelled against him. He stated that he and Gafoor Khan neither met ever nor had seen each other. He further deposed that his brother Amaria, being in the company of Umarao Khan, the witnesses were inimical to the appellant and that he had heard about Amaria and Umarao Khan committing the murder of Farid Khan That, he had gone to Gujarat and was living at Ahmedabad. He further stated that he could not say if his brother Amaria might be committing dacoity in his name. He also stated that Amaria had died in police encounter. Four witnesses were examined from the defence side to state that the appellant was living at Ahmedabad and that he had never gone to village-Bucheti. Raidhan Khan (D.W. 2), brother of the appellant, stated that there is great resembleness in his face and that of the appellant and Police bad initially apprehended him under a mistaken notion. 8. The learned Sessions Judge placed reliance on the testimony of Gafoor Khan and Shera regarding the indentification of the appellant and his sharing the common intention with the other miscreants in committing the murder of the Farid Khan and causing damage to his animal & property. In view of these findings, the learned Sessions Judge convicted and sentenced the appellant for the aforesaid offence and passed the judgment under appeal. 9. We heard Mr M.C. Bhandari, learned counsel for the appellant and Mr. M.C. Bhati, learned Public Prosecutor for the State and carefully examined the record of the case. 10. It has been strenuously contended by the learned counsel for the appellant that the prosecution case rests on the testimony of two witnesses viz. Gafoor Khan (P.W.I) and Shera (P.W.2) only and their statements too are not wholly reliable. According to the learned counsel claim of these two witnesses for their knowing the appellant prior to the incident and then identifying him at the time of the occurrence should not have been accepted by the Court in the absence of any test identification parade. Gafoor Khan (P.W.I) and Shera (P.W.2) only and their statements too are not wholly reliable. According to the learned counsel claim of these two witnesses for their knowing the appellant prior to the incident and then identifying him at the time of the occurrence should not have been accepted by the Court in the absence of any test identification parade. The second ground of attack on the findings of the learned trial Judge is that, when the prosecution itself has come with a case that the intention of the miscreants was to commit the murder of Gafoor Khan and the learned trail Judge has also concluded that initially there was no common intention to commit the murder of Farid Khan, there could not be any justification for applying Section 34 1 P.C. regarding the murder of Farid Khan According to the learned counsel, the circumstances do not indicate that there was any community of brains of the miscreants at the spot for committing the murder of Farid Khan and killing his animal and damaging his property. 11. At the very outset we may observe that the prosecution case rests on the testimony of Gafoor Khan and Shera, sons of the deceased Farid Khan. 12. It is upon the statements of these two witnesses that the learned trial Judge has concluded that the appellant was known to them prior to the occurrence and for that reason they could identify him at the time of the occurrence. 13. For these reasons, the learned trial Court did not agree with the contention of the defence that a test identification parade was required. 14. Gafoor Khan (P.W. 1) and Shera (P.W. 2) have claimed to have identified the appellant Subhan Khan at the time of the incident because they had seen him in the village Bucheti a few times prior to the occurrence within a span of about ten year'. It has been stated by these two witnesses that Amaria, brother of the appellant was married in village Bucheti and as the appellant used to visit the house of his in laws and the witnesses had the occasion to see him. Subhan Khan was resident of village Richdi of Tehsil Pachpadra and not of Bucheti. According to the witness, he had seen Subhan Khan five or six times prior to the occurrence. Subhan Khan was resident of village Richdi of Tehsil Pachpadra and not of Bucheti. According to the witness, he had seen Subhan Khan five or six times prior to the occurrence. He could not say as to within the span of bow many years he had seen the appellant. 15. So far as Amaria being married in village-Bucheti is concerned, there is no dispute. Raidhan (D.W. 2), another brother of the Appellant and Amaria has also admitted this fact. It has come on record that Amaria was mostly living in village Buchti. Gafoof Khan has stated that he has not seen Subhan Khan in the house of Amaria. The reason given by him is that he was not visiting that house. Gafoor Khan has also admitted that he never had exchange of wishes with Subhan Khan. While giving the details of his seeing the appellant prior to the occurrence, the witness stated that he had seen Subhan Khan when he was 15-20 years of age and at that time he had no growth of beard According to the witness at the time of the occurrence Subhan Khan was about 35 sears of age. The witness could not say whether at that time he was keeping beard or not. 16. Shera (P.W. 2t has stated that he had seen Subhan Khan two or three times prior to the incident. That he had seen him for the first time ten years prior to the occurrence, second time four years prior to the incident and third time, two years prior to the incident. That, he had met Subhan Khan on all those three occasions at village Bucheti. According to the witness Subhan Khan's brother had married in the family of Nawab and the witness has met Subhan Khan there. The witness at the first instance stated that he was not visiting the house of the in-laws of the Subhan Khan's brother but in the next breath, he stated that he used to go there and had a talk with Subhan Khan at the house of Nawab seven or eight years prior to the incident. The witness could not tell the age of Subhan Khan at that time was but has stated he was a young man. The witness could not tell the age of Subhan Khan at that time was but has stated he was a young man. It is pertinent to note that whereas Gafoor Khan has denied to have visited the house of the in laws of Amaria, Shera has stated that his brother also used to go to the house of the in-laws of Subhan Khan's brother. The witness admited that even seven or eight years prior to the occurrence, he had a talk with Subhan Khan, Gafoor Khan was not with him at that time. 17. On the face of it, it may appear that the two witnesses had occasion to see Subhan Khan prior to the occurrence & it could have been possible for them to identify him amongst the miscreants. But on careful scrutiny of their evidence it can be deduced that they did not have such an occasion to see the appellant so as to identify him at a glimpse at the time of the occurrence. So far as Gafoor Kban is concerned, he has claimed to have seen Subhan Khan casually in village Bucheti, a few times prior to the occurrence. He however does not state about any talk with him. 18. The important question for consideration is as to whether a person seeing some strange a few times, within a span of ten years, passing on the road could have such an idea of him as to identify him in an incident like the present one when where was gun fire from the side of the miscreants and the witnesses were under a terror. Gafoor Khan had no occasion to talk with or even to wish him The witness could not even state as to whether at the time of the occurrence Subhan Khan was keeing beard or not. It is important to note that Gafoor Khan has gone to this extent that the assailant had fired the shots at his father with barrels contacting his body. If he could see all that, then it could also be expected of him to give the details of the features of the assailants and also the fact whether Subhan Khan was having beard or not at that time. This witness could also not say as to who actually were the persons who had fired the shots at his father from such a close range. 19. This witness could also not say as to who actually were the persons who had fired the shots at his father from such a close range. 19. Age of Shera at the time of the statement at the trial on August 29, 1977 was 35 years. The incident relates to the year 1964 about 131/2 years prior to the statement of the witness. The witness might have been about 21 years of age at the time of the occurrence. The witness has claimed to have seen Subhan Khan for the first time ten years prior to the occurrence. If it was so then the age if the witness at the time might be 10-11 years.Whether a boy of such a tender age could be in a position to have an idea about a stranger seen by him on the road. The witness has stated that he had an occasion to have a talk with Subhan Khan at the house of Nawab seven or eight years prior to the occurrence. Whether a boy of 12-13 years could be in a position to recollect any talk with any stranger at the house of a person not related to him, is a matter requiring serious consideration. The witness has initially stated about his brother was not visiting the house of Nawa. But it so appears that in order to strengthen his point that he was visiting his house, he in the next breath improved and changed the version to the effect that his brother also used to go to the house of the in-laws of Subhan Khan's brother. It is noteworthy that like Gafoor Khan this witness has also stated that when he has seen Subhan Khan in the village he was not having beard. On being questioned about the date of the occurrence, the witness stated that he did not know whether Subhan Khan has having beard at the time or not. Shera has also not given any description about the features of the miscreants. 20. From the careful examination of the statements of these two witnesses,it cannot be concluded that they had subhan occasion to see Subhan Khan, a stranger to them, so as to recollect his features and point out that he was one of the miscreants. 21. Shera has also not given any description about the features of the miscreants. 20. From the careful examination of the statements of these two witnesses,it cannot be concluded that they had subhan occasion to see Subhan Khan, a stranger to them, so as to recollect his features and point out that he was one of the miscreants. 21. Assuming for the sake of arguments that the two witnesses had an occassion to see Subhan Khan in the village prior to the occurrence still the pertinent question would be whether they could be in a position to identify him at the time of the incident. We have already observed above that both the witnesses bad not given features of the appellant, nor could they say whether he was having beard at that time or not. Both the witnesses have stated about three persons firing the shots at Gafoor Khan and then Gafoor Khan going to his 'Dhani'. Gafoor Khan has further stated that he brought his muzzle loading gun from his 'Dhani' and then went inside the 'Sal' for protecution. Gafoor Khan has stated that when his father was bring shot he was at a distance of 50-60 'paundas' from him. He could not say who had fired the shots towards his father. Shera P.W. 2) has deposed that Umaria and Subhan Khan two persons went near his father and fired the shots at him and his father fell down. According to Gafoor Khan the assailants had fired the shots at his father Farid Khan by touching the barrels to his body. This contention has been belied by Shera, If Gafoor Khan was in such a position so as to see the assailants firing the shots by contracting the barrels of the guns to the body of Farid Khan then it could have also been possible for him to identify those assailants of at least to note their features. The witness has admitted that he could not say who where those assailants. While narrating the story about the miscreants firing the shots towards himself the witness has stated that he was saved because the bullets did not hit him. He had admitted that he was not in a position to see the bullets because they fell on the ground and dust was blowing up. While narrating the story about the miscreants firing the shots towards himself the witness has stated that he was saved because the bullets did not hit him. He had admitted that he was not in a position to see the bullets because they fell on the ground and dust was blowing up. According to the witness about 200-300 shoots were fired and police had collected 400-500 empty certridges of the guns of the dacoits. If it was so, then there must have been a cloud of dust blowing up because of the bullets falling on the ground and it could not have been possible for either Gafoor Khan or Shera to see clearly the faces of the miscreants, while the witnesses were entering the 'sal'. 22. These two witnesses have claimed to be in a position to see the miscreants firing the shots after their entering the 'sal'. Regarding the source of seeing there are two versions One is that, it was from a wide line (Ted) in one of the leaves of the shutter that they were seeing what was happening outside. Another version is that they had not completely closed the doors rather had shut it in a way so as to leave a gap between the two leaves and through it they were seeing what was happening out. There are contradictions in the statements of these witnesses regarding the two facts in their statement in the police and those at the trial. Apart from it, whatever be the source of seeing what was happening out, it cannot be believed that the witnesses were in position to identify the miscreants standing at a distance, specially when there must have been cloud of dust in between the witnesses and the assailants because of the bullets falling on the ground. The fact of the dust blowing up as noted above has been stated by Gafoor Khan (P.W. 1). 23. Mr. Bhandari, strenuously contended that in the given circumstances of the case a test identification parade was a must and the failure of the prosecution to put the appellant in a test identification parade seriously weakens the testimony of the two witnesses. To substantiate his contention, the learned counsel referred to the principle enunciated in the case of Bhurgiri and another v. The State, ILR (1954) IV Raj. To substantiate his contention, the learned counsel referred to the principle enunciated in the case of Bhurgiri and another v. The State, ILR (1954) IV Raj. 476 wherein their Lordships have been pleased to discuss the evidentiary value of the statement of witness in court regarding identity of stranger accused. Taking the proposition of law to be correct that the substantive evidence of a witness regarding identity of the accused is that which he gives in the Court and the identification proceeding held during the course of investigation have value only for corroborating the statement of witnesses in Court their Lordships were at the same time pleased to propound that the safe rule is that the sworn testimony of witnesses in the court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding. 24. Another case referred to by the learned counsel for the appellant is Rameshwar Singh v. State of Jammu and Kashmir, AIR 1972 S.C. 102 wherein the necessity of a test identification parade is emphasised in the interest of justice and fair play both to the accused and the prosecution in a case where the accused is not previously known to the witness identifying him. 25. Mr Bhati, learned Public Prosecutor emphatically urged that in the present case the accused was not a stranger to the witnesses and, therefore, there was no necessity of holding any identification parade. He stressed that if the accused had a case that the witnesses would not be able to identify him he should have requested for an identification parade. To substantiate his argument. Mr. Bhati referred to the case of State of Uttar Pradesh v. Rajju and others, 1971 SCC (Cri.) 263 , wherein it was urged before the trial Court by the accused that as no identification parade had been held in the case, it cannot be stated that accused were the persons who were actually arrested at the spot. There is much difference between the identification of the person arrested at the spot by those present there and the identification of the miscreants by the witnesses seeing them from a distance in the turmoil of firing in quick succession. 26. There is much difference between the identification of the person arrested at the spot by those present there and the identification of the miscreants by the witnesses seeing them from a distance in the turmoil of firing in quick succession. 26. The importance of a test identification parade at the investigation stage for the accused, not previously known to the witnesses cannot be over emphasized. The necessity of holding a test identification parade becomes all the more necessary when only one accused is put to trial. The reason is that it is not difficult for a witness to point out the single person standing in the deck even if he might be stranger. It would not require any brain exercise by the witnesses. If the witness claims to be acquainted with the accused prior to the occurrence, there appears to be no necessity for identification parade. 27. Keeping this principal in view when we turn to the case on hand we find that the two witnesses have claimed to be acquainted with the face of the appellant prior to the occurrence. But that does not end the matter. The question would further arise as to whether their testimony to that effect is believable. While discussing the evidence of Gafoor Khan (P.W. 1) and Shera (P.W. 2) regarding their having seen Subhan Khan a few times in the village while coming to the house of the in-laws of Amaria, we had opined that it could not have been possible for the witnesses to identify the faces of a person having casual glimpse of him three or four times in a long span of a period of about ten years. We decline to place reliance on the statement of Shera on that point also for the reason that he must have been a boy of 10-11 years of age only when he claims to have had a talk with the appellant. 28. The test identification parade was all the more important because of the gap of about 131/2 years between the occurrence and the trial and the witnesses having no occasion to see the appellant during all that period. 28. The test identification parade was all the more important because of the gap of about 131/2 years between the occurrence and the trial and the witnesses having no occasion to see the appellant during all that period. It is desirable that the prosecution should arrange for test identification parade in cases of the type when the evidence is not forthcoming and circumstances not apparent to convince to the hilt that the witnesses could not have failed to identify the man from amongst the miscreants. 29. The learned Public Prosecutor has laboured much to convince that Gafoor Khan could not have committed any mistake in identifying Subhan Khan as he had mentioned his name as one of the accused in the FIR mentioning the name of the accused may in certain cases, when the informant happens to be an eye-witness does of course strength the prosecution case that the informant was knowing the accused by name and was certain that he was there at the time of the commission of the crime. However, mentioning the name of a person in the FIR would not fully establish the case about the identity of the Person if the defence succeeds to prove that the name was mentioned not because of the informant being certain about that person being the accused rather has done so only on the basis of suspicion or enmity. 30. Mr. Bhandari has vehemently contended that Gafoor Khan has mentioned the name of Subhan Khan in the FIR only because of his suspicion about him. He strengthened his contention by the omission of the reason in the FIR for the witness being acquainted with Subhan Khan. 31. Mr. Bhati tried to meet out this argument by submitting that though Gafoor Khan has stated in the FIR about his seeing the accused in the village coming to the house of the in laws of his brother Amaira prior to the occurrence, still he has stated that previously he had come to know that Umaria and Subhan Khan were trying to kill him and having known that, he had lodged the report against them in the police. 32. The purpose of the FIR is to set the investigating agency into motion. Its importance cannot be over-emphasized. 32. The purpose of the FIR is to set the investigating agency into motion. Its importance cannot be over-emphasized. It being the first version, provides a check for any improvement or embellishment by its maker subsequently at the trial, However it not being a substantive piece of evidence can only be used for a limited purpose either to confront of contradict the maker at the trial. Despite that when the Public Prosecutor has highly emphasised upon the presence of the name of the appellants in the FIR, Mr. Bhandari has levelled criticism against that argument stating that on a number of occasions Gafoor Khan has named Subhan Khan as a miscreants without his seeing him as mentioned in the FIR. Be it as it may, by the evidence at the trial prosecution could not substantiate is case that Subhan Khan was amongst the miscreants at the time of the crime. We have already discussed in the detail the statements of the witnesses regarding their acquaintence and possibility of their identifying the appellant at the site. 33. If Gafoor Khan and Shera would have been witnesses of sterling worth and their statements would have been wholly reliable, we would have attached weight to what they had stated overlooking he minor discrepencies here and there as we would just point out, but the witnesses are not wholly reliable and had tried to change or improve upon their police statements and the FIR lodged by Gafoor Khan. 34. Taking the statement of Gafoor Khan first, there is difference in the FIR and statement in the Court regarding the description of the clothes which the miscreants were putting on. In his deposition at the trial he has professed to be an eye witness to the firing of the shots to his father and he succumbing to those injuries. At portion A to B of the FIR to which his attention was drawn he has stated about I am Din telling him about the dacoit killing his father by gun shots. The witness admitted to have stated so but tried to explain it in the manner that he became style about the fact on Ilam Din informing him about It. The witness admitted to have stated so but tried to explain it in the manner that he became style about the fact on Ilam Din informing him about It. In the FIR at portion G to H, Gafoor Khan has stated about his hearing the utterance " vk;ks js vk;ks js " by his father and then knowing about his father being killed by Umrao Khan and his companions. The witness in his deposition at the Court has denied to have heard any such utterance made by his father. In his enthusiasm for naming Subhan Khan and to establish that he could identify him. Gafoor Khan has stated at the trial that it was Subhan Khan who had fired shots at the camel. In the FIR Ex P. 1 and in his police statement Ex. D. 1, this fact does not find place, rather it has been mentioned that his father had two camels which were also shot dead by the dacoit. On attention of the witness being drawn to this material omission in the previous statements, he only stated that he had narrated so there also. 35. Coming to the statements of Shera, it is pertinent to note that in his statement at the trial he has professed to have seen Subhan Khan and Umaria firing the shot at Farid Khan but has not stated so in his police statement. The witness could not explain why this fact does not find place in his police statement. Similarly, about the sequence of Gafoor Khan and Shera entering the 'sal' there is discrepency in the statements of Shera before the police and at the trial. In Ex D 2, he has stated about his entering the 'sal' first and then Gafoor Khan's coming there. The witness in the deposition in the Court has stated about Gafoor Khan coming from in front and asking the witness to enter the 'sal'. This discrepency regarding the fact as to that who went inside the 'sal' first would not have mattered much, but for the reason that on it depended the possibility of the witnesses seeing what was happening outside and then their closing the door. Shera has stated at the trial that when Ilam Din entered the 'sal' be & his brother Gafoor Khan were already there. Shera has stated at the trial that when Ilam Din entered the 'sal' be & his brother Gafoor Khan were already there. That, after Ilamdin entering the 'sal', the door was not closed rather the leaves were closed in the way so as to leave a gap in between them. Attention of the witness was drawn to his police statement where he has stated about the door being closed after Ilam Din in entering the 'sal' and the witness admitted to have stated so. The two witnesses have not only given inconsistent statements before the police and at the trial but have also contradicted each other in material particulars. For example Gafoor Khan has stated about the firing of the shots to his father by miscreants by bringing the barrels of the gun in contact with his body, whereas Shera has specifically denied this fact. According to Shera p for to sustaining the gun shot injury, Farid Khan had asked the miscreants as to why they were firing the shots and the witnesses had heard this when he reached running outside the 'sal'. If Gafoor Khan was also in such a close range to his farther as Shera, he could have also heard so but he has not stated about his fattier taking any thing to the assaillants at the time. 36. It is petinent to note that the distance between the 'sal' and the dacoit stated by Shera was 40-50 'pounds'. It is not believable that this terror stricken witness being inside the 'sal' with closed door, or at the most, as the prosecution case is seeing the occurrence from the slight gap in between the two leaves, could have identified any body from amongst the four persons when three persons are said to be firing in quick succession from such a long distance. 37. When the two eye-witnesses to the occurrence giving this type of statements have not given the description of the features or the appellant and there was no test identification parade, prudence requires some independent corroboration to their version, specially when trial had taken place after about 131/2 years of the occurrence. 38. Ilam Din had died prior to the trial. When the two eye-witnesses to the occurrence giving this type of statements have not given the description of the features or the appellant and there was no test identification parade, prudence requires some independent corroboration to their version, specially when trial had taken place after about 131/2 years of the occurrence. 38. Ilam Din had died prior to the trial. His wife Smt. Khatoon (P.W. 4) daughter of Farid Khan, whose house was only at a distance of 20-25 'paunds' away from the 'dhani' of her father has been examined as an eye witnesses to the occurrence. She has denied to have identification any of the miscreants and for that reason prosecution disowned her. Thus, this witness does not help the prosecution so far as identity of the appellant is concerned, and therefore, there is no corroboration to the evidence of Gafoor Khan and Shera. 39. Before parting with this point it may also be noted that prosecution has not examined the Investigating Officer who arrested the accused nor is there any material to show where and in what condition he was kept after his arrest. In the charge-sheet of course it is mentioned that he was arrested by G R.P on August 1. 1976 in another case. Where was he kept prior to his being obtained in the present case by the police and prior to the common-comment of the trial is not known The learned counsel for the appellant has, therefore, built up the argument that possibility of the witnesses having seen the accused during that period and identifying him in the court cannot be ruled out. 40. From the above discussion, we are inclined to hold that prosecution could not establish beyond reasonable doubt that appellant Subhan Khan was there amongst the miscreants and the two witnesses viz. Gafoor Khan and Shera could identify him at the time of the incident. 41. The next point raised by the learned counsel is that as the prosecution case is that Gafoor Khan was the target of the miscreants and the trial court has also given the finding that initially there was no common intention to kill Farid Khan, then there was no justification in pressing Section 34 I.P.C. into service so far as the murder of Farid Khan and subsequent act of setting fire to his 'dhani' and killing his animal were concerned. The position of law is that even in cases where there may not be common intention to commit a particular crime at the first instance, still it may develop at the spur of the moment. it will depend upon the facts and circumstances of a given case as to whether there is material to in fer that there was community of brains of the assailants for doing a particular act in a particular way so as to attract the provisions of Section 34 of the Indian Penal Code and hold each of them vicariously liable for the act of another. 42. We have arrived at the conclusion that prosecution could not establish beyond reasonable doubt that Subhan Khan was amongst the miscreants and could be identified by Gafoor Khan and Shera. The prosecution case fails on that ground. 43. We therefore, do not consider it necessary to enter into any discussion regarding this second point raised by the learned counsel for the appellant. 44. Consequently, the appeal filed by Subhen Khan is allowed and he is acquitted of the charges levelled against him. He is in custody. He shall be set forth to liberty at once, in case not required in any other case.Appeal allowed. *******