S. I. JAFRI, J. ( 1 ) APPELLANTS Sita Ram, Chhatanka alias Galli residents of Hathras, District Aligarh have filed this appeal against their conviction under section 302 read with section 34 IPC, and under Section 394 IPC, and sentence of life imprisonment and two years R. I. under the afore mentioned sections of the penal Code respectively recorded by Shri B. P. Singh. IV Addi. Sessions Judge, Aligarh by his judgment and order dated 31. 5. 1977. ( 2 ) THE case of the prosecution is that the complainant Dhanpatlal P. W. 1 and Rishi Ram were the real brothers and they carried on the business of sale and purchase of Ghee in the town of Hathras under the Style of AGYA RAM RISHI RAM. Two persons have lost their lives in the present case i. e. Rishi Ram and his Munim Madanlal. It is also said that the deceased Madan Lal and co-accused Rajendra (acquitted by the Trial Court) were the Munims of the aforesaid Firm of the complainant namely AGYA RAM RISHI RAM. The deceased Rishi Ram used to live alongwith his brother Dhanpat Lal and his father Agya Ram in a building situated in Mohalla Madho Garhi, Hathras and they had common business. Their shop was situated in the same building on the ground floor and they used to live on the upper story of the said building. ( 3 ) THE aforesaid Firm, had an extensive business of Ghee and it was supplied to various shop keepers of Delhi on cash and even on Credit and the deceased Rishi Ram and his Munim Madanlal used to go to Delhi every week for realisation of money from the customers at Delhi to whom the Film used to supply Ghee on credit. Both the deceased Rishi Ram and Madan Lal in every week used to go to Delhi by Bus in the morning at about 5. 30 P. M. from Hathras and they also used to return from Delhi to Hathras the same day in the evening by Mathura Agra - Lucknow Express. ( 4 ) THE prosecution case is that on 1. 8. 1975. Rishi Ram and Madanlal went to Delhi from Hathras by the morning Bus at about 5. 30 A. M. and they returned to Hathras Railway Station by Mathura Agra -Lucknow Express from Delhi the same night at 8. ( 4 ) THE prosecution case is that on 1. 8. 1975. Rishi Ram and Madanlal went to Delhi from Hathras by the morning Bus at about 5. 30 A. M. and they returned to Hathras Railway Station by Mathura Agra -Lucknow Express from Delhi the same night at 8. 40 P. M. and the deceased Rishi Ram alongwith his Munim Madanlal proceeded to his aforesaid house on a Rickshaw and it was about 9 P. M. , the complainant Dhanpatlal was sitting on a cot outside his shop and was waiting for the return of Rishi Ram and Madanlal from Delhi and, then, the complainant sighted a Rickshaw coming from the East near the old Railway line at about 9 or 9. 15 P. M. and recognised that his brother Rishi Ram and Munim Madanlal were coming on the said Rickshaw and at the same time, he had also noticed that four miscreants had surrounded the said Rickshaw where upon suspecting foul intention of the miscreants, he raised an alarm and rushed towards the Rickshaw alongwith P. W. 3 Idu Khan, Chowkidar Chhote Khan, Bhagat Ram, P. W. 2 Girdhari Lal aud Mahavir to save Rishi Ram and Madan lal, from the miscreants but in the meantime, one out of the four miscreants fired upon Madanlal by dragging him from the Rickshaw and Madanlal fell down from the Rickshaw after receiving the injuries and the miscreants had snatched the bag of Madanlal, while Rishi. Ram deceased who was also carrying bag with him jumped from the Rickshaw and wanted to escape towards the west and he had hardly gone upto 10 or 15 paces from the Rickshaw when he was also assaulted with knife by the miscreants and he also fell down on receiving the injuries. Though the complainant and the aforesaid witnesses had simultaneously reached the scene of occurrence but the miscreants had made good their escape from the place of occurrence with the bag of Madanlal. The complainant and the witnesses gave a chase upto 20 or 25 paces but the appellants could not be apprehended. The complainant Dhaopat Lal and the witnesses returned back to the place of occurrence where Rishi Ram and Madanlal were lying on the ground and they found both of them dead. The complainant and the witnesses gave a chase upto 20 or 25 paces but the appellants could not be apprehended. The complainant Dhaopat Lal and the witnesses returned back to the place of occurrence where Rishi Ram and Madanlal were lying on the ground and they found both of them dead. Rishi Rams bag was found under his dead body which was subsequently taken into possession by Agya Ram, the father of the deceased Rishi Ram. The occurrence was witnessed in the light of torch flashed by Dhanpat Lal and also in the electric light which was coming to the place of occurrence from the gates of various buildings near the place of occurrence and the witnesses had seen the faces of the miscreants in the light of the torch flashed by Dhanpat lal and also in the light of the electricity. According to the witnesses, the miscreants were four in number who had committed the crime. ( 5 ) AFTER the occurrence, P. W. 1 Dhanpat Lal proceeded to Police Station Kotwali Hathras there he dictated his report to P. W. 6 Gajrat Singh, Head Constable at 9. 45 P. M. who prepared the Chik report, a copy of which is Ex. ka. 1 The Head Constable also registered a case in the General Diary of the Police Station under Section 302/394 IPC. against the four unknown persons. Copy of the said G. D. entry is Ex. ka. 4. ( 6 ) P. W. 17 K. P. Gautam, Station House Officer of Police Station Kotwali Hathras was present at the Police Station when the aforesaid case was registered at 9. 45 P. M. whereupon he took the investigation of the case in his own hands and immediately left for the place of occurrence and there he found the dead body of Rishi Ram and Madanlal lying on the ground and on his direction, P. W. 15 Vijai Pal Singh, Sub Inspector of Police Station Kotwali Hathras conducted the inquest proceedings on the body of the two deceased. The Inquest Report of Madanlal is EX. ka. 11 while that of Rishi Ram is Ex. ka. 13. The Sub Inspector also recovered various articles including two Railway Tickets from the person of the two deceased and prepared recovery memo regarding the above mentioned articles Ex. ka. 7 and ka. 8. The Inquest Report of Madanlal is EX. ka. 11 while that of Rishi Ram is Ex. ka. 13. The Sub Inspector also recovered various articles including two Railway Tickets from the person of the two deceased and prepared recovery memo regarding the above mentioned articles Ex. ka. 7 and ka. 8. He also took: the samples of the blood stained and plain earth from the place of occurrence and prepared recovery memo Ex. ka. 9. He also sent the body of the deceased in sealed covers with the relevant papers through constables Chhote Khan P. W. 4 and Naushad for post mortem examination to Aligarh. The Sub Inspector Vijai Pal Singh had also noted in the inquest report Ex. ka. 11 that the deceased Madanlal was wearing KAMEEZ, PAYAJAMA and BANIYAN. ( 7 ) DOCTOR J. S. Pan war P. W. 5 conducted autopsy on the dead bodies of Madanlal and Rishi Ram. Post Mortem report of Madanlal is Ex. ka. 2. He found the following Ante-mortem injuries on his person. 1. Gun shot wound of entry 1/211 X 1/211 chest cavity and abdominal cavity deep, on the right side of the chest. There was no charring or balckening upon the wound. The edges were bruised. A bullet was found just under the skin on left side of the chest over the fifth rib. 2. Abrasion 1/511 X 14ii on the right forearm on the backside, 2, 1/211 below the elbow. 3. Abrasion 1 X 1/211 on the left temple. According to the Doctor J. S. Panwar, the death of Madanlal deceased was caused due to shock and internal haemorrhage. Doctor J. S. Panwar also on post mortem examination, found the following Ante-mortem injuries on the dead body of Rishi Ram deceased. The Post Mortem Report is EX. ka. 3. 1. Incised wound 1 X 1/211 on the right side of the chest, 2 above the right nipple. Tapering outwards. The wound was chest cavity deep. 2. Abrasion 3 x 1/211 on left forehead. 3. Abrasion 2 x 1 on left temple. 4. Abrasion 1/2 x 1/2 on right knee. According to the opinion of Doctor, the death was caused due to shock and haemorrhagh. Tapering outwards. The wound was chest cavity deep. 2. Abrasion 3 x 1/211 on left forehead. 3. Abrasion 2 x 1 on left temple. 4. Abrasion 1/2 x 1/2 on right knee. According to the opinion of Doctor, the death was caused due to shock and haemorrhagh. Doctor J. S. Pan war P. W. 5 after completing the Post Mortem Examination of the deceased Madanlal had handed over one Kameez, one Baniyan, one Payajama one Under wear and one pair 9/14/2006 of shoes found on the dead body of Madanlal deceased in a sealed cover to the accompanying Constables of Police Station Hathras Kotwali who had produced the dead body of Madanlal before him. Doctor J. S. Panwar had made a note of these articles in the Post Mortem Report Ex. ka. 2. ( 8 ) THE Investigating Officer P. W. 17 J. P. Gautam after directing Vijai Pal Singh S. I. to carry out the inquest proceedings of the two deceased, sent Police Force in search of the accused persons and he also left the place of occurrence in search of them and returned to the place of occurrence at about 12. 30 A. M. the same night. Thereafter, the investigating officer recorded the statements of P. W. 1 Dhanpat lal, P. W. 3 Idu Khan, P. W. 2 Girdhari lal and others and he also inspected the scene of occurrence and prepared the site plan Ex. ka. 24. ( 9 ) P. W. 17 J. P. Gautam Investigating Officer remained busy in search of the miscreants and ultimately 011 19. 8. 1974, he got information through the Mukhbir that the appellant Sita Ram was involved in the murder of the two deceased and he was present at the bridge of P0 pia Canal and therefore, P. W. 17 J. P. Gautam started for Popia Canal bridge alongwith the Mukhbir and the police party and on reaching there and on the pointing out of the Informer; the appellant Sita Ram alongwith two of his companions i. e. appellant Chhitanku alias Gullu and Padam were apprehended at some distance from the bridge after a hot chase and beating at about 9 P. M. the same night. The Investigating Officer J. P. Gautam after the arrest of the appellants immediately covered their faces and brought the said accused to the Police Station Kotwali Hathras Baparda and put them behind the Look-up of the Police station Baparda the same night. Investigating Officer after interrogation of the appellants had also come to know about the involvement of Rajendra and Brij Narain in the occurrence. ( 10 ) P. W. 17 J. P. Gautam next morning had taken out the appellants Sita Ram and Chhitanku Baparda at 8. 15 A. M. on 20. 8 1974 from the Look up of the Police station Kotwali Hathras as the appellants had told the Investigating officer to point out some articles belonging to the deceased which were lootted in the occurrence. The Investigating officer alongwith two accused persons proceeded towards Mohalla Ramayanpur. He also took the witnesses Darshan Lal and Mast Ram with him on the way and both the appellants Sita Ram and Chhitanku led the Investigating Officer and the Police party including two witnesses in the Jungle of Ramayanpura at the well of Atak Mulla and there, the appellants told the Investigating Officer that they had thrown the looted property of the deceased in the aforementioned well. Consequently, Investigating Officer J. P. Gautam sent for Kanta and rope and Kanta and rope was brought at the aforesaid well. Appellant Sita Ram had thrown the Kanta inside the well to take out the looted property from the well and it was noticed inside the well that the appellant Sita Ram could take out an old bag with the help of Kanta upto the level of water of the well but the articles contained in that bag had slipped away in the water because the bag had given way outside the water level. Thereafter, the appellant Chhitanku had dropped down Kanta with the rope inside the well and he could pull out a Potli from the well with the help of Kanta and in that Potli one Chadar, one Kammeez, one Payajama, one Baniyan, one Torch and one Plastic bag containing some written papers, one wrapper of Luc Soap, one Lugdi of Luc soap and two pieces of brick and one knife were found. Investigating Officer J. P. Gautam sealed the aforesaid articles in a bundle and prepared Memo Ex. ka. Investigating Officer J. P. Gautam sealed the aforesaid articles in a bundle and prepared Memo Ex. ka. 26 and, therefore, the Investigating Officer brought the two accused Baparda back at the Police Station Kotwali and locked them inside the Hawalat of the Police station Baparda and also deposited the sealed bundle in the Malkhana of the Police station. The Investigating Officer had also prepared site plan Ex. ka. 27 of Attak Mullah well. ( 11 ) THE Investigating Officer had sent the three appellants to Aligarh Baparda on 20. 8. 1974 through constable Lalji Singh P. W. 13 alongwith constables Ranvir Singh and Sheesh ram the same day after taking them out from the Lock up of Police station Kotwali Hathras Baparda with a letter of request to the Magistrate concerned requesting him to grant 3 days police remand for the appellant Sita Ram. Lalji Singh P. W. 13 escorted the three appellants Baparda from Police Kotwali Hathras to Collectorate Aligarh alongwith constables Ramir Singh and Sheesh Ram and had produced the Baparda before the Chief Judicial Magistrate Aligarh the same day and obtained remands from the Magistrate for 3 days for accused Sita Ram for keeping him in Police custody. Constable Lalji also got the jail warrants for appellants Chhitanku and Padam from the Magistrate concerned and deposited them in the District Jail Aligarh Baparda the same day. Lalji Singh alongwith accompanying constables also produced Sita Ram before the Medical Officer in the Sadar Hospital Aligarh for medical examination and after his examination by the Doctor, the constables got the appellant Sita Ram lodged inside the Hawalat of Police station Civil lines, Baparda had 6. 25 P. M. the same day according to the direction given by J. P. Gautam who had met the constables in the Court compound. ( 12 ) P. W. 17 J. P. Gautam again came to Aligarh on 22. 8. 1974 and had taken out the appellant Sita Ram Baparda from the Lock up of Civil Lines Aligarh and went alongwith him to Mathura and then to Gokul and during the night the Investigating Officer stayed in a Gau Shahla outside the town of Gokul alongwith the appellant Sita Ram who remained Baparda through-out and the next morning on 23. 8. 8. 1974 when the Investigating officer could not recover anything at the instance of Sita Ram to appellant, he brought back the appellant Sita Ram to Aligarh Baparda and admitted him in the district Aligarh the same day Baparda. ( 13 ) THE Investigating Officer submitted his report for holding identification proceedings of the appellants and also of the recovered articles at the instance of appellants Sita Ram and Chhitanka and during the said proceedings P. W. 9 Smt. Sheela Devi, wife of the deceased Madanlal had correctly identified one while colour torn bag, one Chadar one White Kameez one Baniyan, one torch and she did not commit any mistake in the identification of the said property The learned Magistrate also prepared the identification memo, which is Ex. ka. 31. ( 14 ) THE Investigating Officer P. W. 17 and P. W. 13 Lalji Singh constable have stated in their evidence before the Trial Court that faces of these three appellants remained covered throughout from the time of their arrest till their lodging in the District Jail Aligarh. They have also stated that the appellants remained throughout Baparda. ( 15 ) IDENTIFICATION proceedings of appellants, Sita Ram, Chhitanka alias Gullu and Padam took place in the District Jail Aligarh on 28. 9. 1974. It was conducted by a First Class Magistrate. The identification memo prepared by the Magistrate is Ex. ka. 34. The investigating agency sent P. W. 1 Dhanpat Lal, his father Agya Ram, P. W. 3 Idu Khan, Chhote Khan, P. W. 2 Girdhari Lal, Nathi lal and Muqid for identifying the appellants in jail and out of them P. W. 1 Dhanpatlal P. W. 1 Idu Khan, Chhote Khan and Agya Ram, father of P. W. 1 Dhanpatlal had correctly identified all the three appellants without committing any mistake whereas P. W. 2 Girdharilal and Nathulal had correctly identified appellants Sita Ram and Padim but had committed one mistake each in the parade of Chitanka appellant. P. W. Muqid had correctly identified Chhitanka and Padam appellants without committing any mistake. ( 16 ) AS the genuineness of the identification memo Ex. ka. 32 was admitted by the counsel for the appellant before the Trial Court, so the formal proof of the identification memo was dispensed with by the prosecution and the said identification memo prepared by the Magistrate was tendered in evidence and was marked as Ex. ( 16 ) AS the genuineness of the identification memo Ex. ka. 32 was admitted by the counsel for the appellant before the Trial Court, so the formal proof of the identification memo was dispensed with by the prosecution and the said identification memo prepared by the Magistrate was tendered in evidence and was marked as Ex. ka. 32. ( 17 ) THE Investigating Officer P. W. 17 J. P. Gautam submitted charge-sheet Ex. ka. 28 against the appellants on 15. 10. 1974. Accused Rajendra (acquitted) was arrested on 30. 10. 1974 and he was sent to Jail the same day and the Investigating Officer also submitted charge sheet Ex. ka. 29 against him on 19. 1. 1975. ( 18 ) THE appellants pleaded not guilty to the charges framed against them and stated that they were falsely implicated on account of enmity and they were shown to the witnesses after their arrest at the police station Kotwali Hathras. ( 19 ) WE have heard Sri Mohan Chand, the learned Counsel for the appellants and the learned Govt. Advocate for the State at a great length and we are of the view that the appeal must be allowed as the prosecution has failed to prove charges framed against the appellants beyond all reasonable doubt. ( 20 ) THE prosecution examined 25 witnesses in support of its case and out of them P. W. 1 Dhanpatlal, P. W. 2 Girdharilal and P. W. 3 are the witnesses of the occurrence. They have stated that they had identified the appellants at the Test Identification proceedings, in Jail. They have also stated that they did not know the appellants from before the occurrence. The evidence against the appellants rests on the identification by the aforesaid three witnesses namely Dhanpat Lal, Girdharilal and Idu Khan. ( 21 ) BEFORE dealing with their evidence regarding the identification of appellants by the aforesaid witnesses, it would be proper to consider the evidence of recovery of the articles belonging to deceased Madanlal which were recovered from the well of Atak Mulla at the instance of the appellants Sita Ram and Chhitanka, in the presence of P. W. 17 J. P. Gautam, P. W. 7 Darshanlal and P. W. 8 Mast Ram. ( 22 ) P. W. 7 Darshan Lal and P. W. 8 Mast Ram are the witnesses of recovery of the aforesaid articles which were taken out with the help of Kanta by the appellants Sita Ram and Chhitanka from the well, Both the witnesses have stated that about two years back, they had accompanied P. W. 17 J. P. Gautam, Investigating Officer to the well of Atak Mulla alongwith appellants Sita Ram and Chhitanka and the appellants Sita Ram had pulled out a bag with the help of Kanta from the aforesaid well and the appellant Chhitanka had taken out with the help of Kanta a Potli and when the Potli was opened by P. W. 17 J. P. Gautam, S. I, one Kameez, One Payama, One Baniyan, one Torch and, one knife were found therein. P. W. 17 J. P. Gautam had sealed the aforesaid articles in a cover and also prepared recovery memo which was signed by them. ( 23 ) P. W. 17 J. P. Gautam has stated before the Trial Court that the looted articles of Madanlal deceased were taken out by the appellants Sita Ram and Chhitanka from the well of Atak Mullah. It may be noted that the recovered article, namely, Kameez, Payama, Baniyan were correctly identified by P. W. 9 Smt. Sheela Devi widow of Madanlal deceased before the Trial Court as belonging to her husband Madanlal. In cross examination, she has stated that the Kameez, Payama and Baniyan which were identified by her were the some clothes which her husband bad worn on his person when he had left for Delhi in the morning on the day of occurrence and she had also seen the same clothes on the dead body of her husband at the place of occurrence. Smt. Sheela Devi has not been declared hostile by the prosecution. Therefore, it is absolutely clear that the Investigating Officer P. W. 17 J. P. Gautam planted and fabricated the evidence of discovery of articles from the well of Atak Mullah at the instance of appellants Ram and Chhitanka in leaque with P. W. 7. Darshan Lal and P. W. 8 Mast Ram. Thus, it is abundantly clear that P. W. 17 J. P. Gautam 5. 1. Darshan Lal and P. W. 8 Mast Ram. Thus, it is abundantly clear that P. W. 17 J. P. Gautam 5. 1. in order to falsely implicate the appellant Sita Ram and Chhitanka in this case, has created false evidence against the appellants Sita Ram and Chhitanka to the effect that the appellants had taken out the clothes and other articles belonging to deceased Madan Lal from the well in the presence of recovery witnesses P. W. 7 Darshanlal and P. W. 8 Mast Ram. The learned Sessions Judge while dealing with the evidence of discovery of articles belonging to Madanlal deceased at the instance of appellants Sita Ram and Chhitanka from the well of Atak Mullah, had observed that the evidence of Smt. Sheela Devi P. W. 9 had rendered the identification of these articles unreliable and had concluded that the prosecution had failed to prove that the clothes and articles belonging to deceased Madanlal were recovered at the instance of appellants Sita Ram and Chhitanka. It may further be noted that P. W. 15 Vijai Pal Sub- Inspector who had prepared the inquest report Ex. ka. 11 on the dead body of deceased Madanlal had found that the deceased Madanlal was having one Kameez, one Pajama and one Baniyan on his corpse and he had noted these clothes in his inquest report Ex. ka. 11. Moreover P. W. 5 Doctor J. S. Panwar had also found above mentioned clothes on the dead body of the deceased Madanlal on post mortem examination and a mention of these clothes is also found in the post mortem report Ex. ka. 2 with the remark that one Kameez, one Payjama one Under-wear and one pair of shoes were returned to the accompanying constables in a sealed Cover i. e. through P. W. 4 Constable Chhuttan Khan and Constable Noshad of Police Station Kotwali Hathras who had taken the dead bodies of deceased Madan Lal and Rishi Kumar from the place of occurrence for post mortem examination. Moreover, the prosecution did not exhibit the clothes of deceased Madan Lal, which were sent to Police Station Kotwali Hathras by P. W. 5 Dr. J. S. Panwar, through P. W. 4 Chhuttan Khan constable. Moreover, the prosecution did not exhibit the clothes of deceased Madan Lal, which were sent to Police Station Kotwali Hathras by P. W. 5 Dr. J. S. Panwar, through P. W. 4 Chhuttan Khan constable. ( 24 ) FROM the evidence of P. W. 15 Vijai Pal Singh and P. W. 5, Doctor J. S. Parmar, it is established that the deceased Madan Lal had worn one Kameez, one Payjama and one Baniyan on his person. Therefore, P. W. 9 Smt. Sheela Devi, wife of Madanlal had spoken the truth when she stated before the Court that the Kameez, Payjama and Baniyan which she had identified before the Court, were the same which her husband had worn when he had left for Delhi on the day of occurrence and she had also seen the same clothes on the dead body of her husband at the Place of occurrence. As stated above, Smt. Sheela Devi was not declared hostile by the prosecution and therefore, her testimony remained unchallenged the prosecution. ( 25 ) AS shown above, the conduct of P. W. 17, J. P. Gautam Investigating officer is highly condemnable. He is a slur on the Police Department and on account of his conduct as shown above, the confidence of the people is shaken regarding the fair investigation by the Police and it has brought about a bad name to the entire Police force of U. P. Sri ]. P. Gautam deserves to be very seriously dealt with by the department. w that he may not repeat the same performance in investigation in future. ( 26 ) WHEN it has been established beyond any reasonable doubt that J. P. Gautam, Investigating Officer had fabricated false evidence in this case with reference to the cloths of the deceased Madanlal against appellants Sita Ram and Chhitanka, the entire investigation in this case has become highly suspicious and as such even the evidence of identification of the three appellants by the eye-witnesses, becomes highly suspicious. P. W. 17 J. P. Gautam, investigating Officer who had fabricated evidence regarding the recovery of clothes of deceased Madanlal at the instance of appellants Sita Ram and Chhitanka, could have very well got all the three appellants them to the witnesses at the Police Station Kotwali Bathras after their arrest. P. W. 17 J. P. Gautam, investigating Officer who had fabricated evidence regarding the recovery of clothes of deceased Madanlal at the instance of appellants Sita Ram and Chhitanka, could have very well got all the three appellants them to the witnesses at the Police Station Kotwali Bathras after their arrest. Once the investigation in the case has been shown to be tainted, then, it will not be at all safe to place any reliance on the evidence of identification against the appellants by the witnesses. ( 27 ) AS far as the evidence of identification in this case is concerned, tile complainant Dhaopat Lal P. W. 1 had correctly identified the three appellants Sita Ram, Chhitanka and Padam without committing any mistake in the Test Identification Parade in the District Jail Aligarh on 20. 9. 1974. Dhanpatlal P. W. 1 has stated that he had seen the three appellants for the first time in his life among the miscreants who had killed his brother Rishi Ram and Madanlal Munim at the place of occurrence and he had also seen them for the second time during the identification parade in Jail. He had also stated that he had seen the appellants in the light of the torch and also in the electric light illuminating near the place of occurrence. Other eye-witness is P. W. 3 Idu Khan. He has also correctly identified all the three appellants without committing any mistake. He is a neighbour of complainant Dhanpatlal and he had stated that he had seen the appellants at the time of occurrence in the electric light available at the scene of occurrence. He also stated that he did not know the appellants from before the occurrence. The last witness of occurrence produced before the Trial Court is P. W. 2 Girdhari Lal who had also stated that he had seen the appellants at the place of occurrence in the light of electricity. P. W. Girdhari Lal had correctly identified appellant Sita Ram and Padam in the test identification Parade but committed one mistake in the identification of accused Chhitanka. In this way, he could pick up two persons correctly while committed one mistake in the identification of 3rd accused. As there parades were held at the same time in the District Jail Aligarh on 20. 9. In this way, he could pick up two persons correctly while committed one mistake in the identification of 3rd accused. As there parades were held at the same time in the District Jail Aligarh on 20. 9. 1974, the result of the identification of Girdhari Lal comes to only 6o0!o and: therefore, P. W. Girdharilal cannot be termed as a good witness of identification. The trial Court had rightly ignored his evidence altogether, while deciding the case, Moreover Girdharilal is a chance witness a she reside, one mile away from the scene of occurrence and the Sessions Judge had given good reasons in holding that Girdharilal was not a reliable witness. ( 28 ) THE Trial Court has convicted the appellants on the basis of the evidence of P. W. 1 Dhanpat Lal and P. W. Idu Khan. For placing reliance on the statements of the aforesaid witnesses, it has to be determined whether there was sufficient light at the Place of occurrence to enable the witnesses to identify the accused. Both these witnesses Dhanpatlal and Idu Khan alleged that the were electric bulbs and tubes outside the house, of Diianpatlal P. W. 1 and Ram Gopal Mills, on the gate of Jha Lady Hospital and also on the gate of Bhagat Shyam and Company and the street light in front of Manohar Mills. P. W. 1 Dhanpatlal also stated that he had flashed his torch at the time of occurrence which had helped him to identify the miscreants P. W. 16 Amar Singh, Head constable P. W. Kotwati Hathras who had recorded the FIR. dictated by P. W. 1 Dhanpatlal, did not prepare any recovery memo of the alleged torch of Dhanpatlal. Moreover, neither P. W. 16 Amar Singh Head Constable, nor P. W. 17 ]. P. Gautam Investigating Officer had stated before the Trial Court that they had seen the alleged torch of Dhanpatlal at any time either at the Police Station Kotwali Hathras when the case was registered or at the place of occurrence. Even the alleged torch of Dhanpatlal was not produced by Dhanpat Lal before the Trial Court. Therefore, it is highly doubtful that P. W. 1 Dhanpatlal had possessed a torch as alleged by him at the time of occurrence. ( 29 ) P. W. 3 Idu Khan stated that he had seen the accused/appellants in the electric light at the scene of occurrence. Therefore, it is highly doubtful that P. W. 1 Dhanpatlal had possessed a torch as alleged by him at the time of occurrence. ( 29 ) P. W. 3 Idu Khan stated that he had seen the accused/appellants in the electric light at the scene of occurrence. As stated earlier, both the witnesses Dhanpatlal and Idu Khan stated that electric bulbs and Tubes were illuminated outside the house of Dhanpatlal, at the gate of Ram Gopal Mills, at the gate of Jha Lady Hospital, and at the gate of Bhagat Shyam and Co. and also on the street poles in front of Manohar Mills were illuminated. In this connection, it may be noted that P. W. 17 J. P. Gautam who had inspected the scene of occurrence about one hour after the occurrence the same night, did not mention electric bulbs or tubes outside the Dhanpatlals house, Ram Gopal mills. Bhagat Shyam and Co. Manohar Mills in his inspection Note in the case diary as admitted by P. W. 17 J. P. Gautam. Even in the site plan Ex. ka. 24 of the place of occurrence, which was prepared by the Investigating officer, no light was shown on the aforesaid buildings. Moreover, another circumstance which clearly be lies the existence of electric light at the place of occurrence is found mentioned in the Panchyatnama Ex. ka. 11 which was conducted on the dead body of the deceased Madanlal and in the other Panchyatnama Ex. ka. 16 which was conducted on the dead body of Rishi Ram by P. W. 5 Vijai Pal Singh. It may further be noted that the inquest on the dead body of Madanlal was done at 10. 10 P. M. on 1. 8. 1974 while the inquest on the dead body of deceased Rishi Ram was done at 11. 10 p. m. on 1. 8. 1974 and P. W. 5 Vijai Pal Singh S. I. while preparing the aforesaid inquest report Ex. ka. 11 and Ex. ka. 13 had clearly mentioned in both the inquest reports that he had arranged for a petromax in order to avail light at the place of occurrence. The actual words in both the inquest reports run as under by P. W. 6 Vijai Pal Singh. Roshani ke Liye Petrormax Jalwayee Gayee. Therefore, it is quite clear that at 10. ka. 13 had clearly mentioned in both the inquest reports that he had arranged for a petromax in order to avail light at the place of occurrence. The actual words in both the inquest reports run as under by P. W. 6 Vijai Pal Singh. Roshani ke Liye Petrormax Jalwayee Gayee. Therefore, it is quite clear that at 10. 10 p. m. when the inquest of the dead body of Madanlal commenced, petromax was sent for at the place of occurrence for getting light and therefore, the statements of the two witnesses that there was light around the scene of occurrence on the gates of the buildings near about is absolutely incorrect and no reliance can be placed on their testimony that there was sufficient light at the scene of occurrence to enable them to identify the appellants and, therefore, we hold that no reliance can be placed on the evidence of identification given by the witnesses Dhanpatlal and Idu Khan. ( 30 ) THERE is one more circumstance on the record which has also rendered the evidence of identification by these witnesses unworthy of reliance. The complainant Dhanpatlal has mentioned in his report that the occurrence was witnessed besides him by Girdharilal, Idu Khan, Chhote Khan, Bhagat Ram and many other persons Dhanpat Lal complainant did not mention the name of his father Agya Ram in the FIR. as one of the witnesses who had seen the miscreants but curiously enough Agya Ram was sent to Jail to identify the accused persons by P. W. 17 J. P, Gautam Investigation officer and Agya Ram had correctly identified all the three appellants without committing any mistake. If Agya Ram, father of Dhanpatlal P. W. 1 had really seen the miscreants at the place of occurrence, his name must have figured in the FIR. lodged by his son complainant Dhanpatlal and therefore, we hold that Agya Ram had correctly identified the three appellants in Jail as the appellants were shown to him by the Investigating Agency after their arrest which helped him to identify the appellants correctly during Identification proceedings. Though prosecution did not examine Agya Ram before the Trial Court but his cent percent performance during the identification proceedings, correctly identifying all the appellants had also rendered the evidence of identification by Dhanpatlal and Idu Khan highly unreliable and unworthy of credence. Though prosecution did not examine Agya Ram before the Trial Court but his cent percent performance during the identification proceedings, correctly identifying all the appellants had also rendered the evidence of identification by Dhanpatlal and Idu Khan highly unreliable and unworthy of credence. ( 31 ) HAVING considered all the facts and circumstances of the case, we come to the irresistible conclusion that in this case the appellants were falsely implicated by J. P. Gautam B. W. 17 Investigating Officer. The conduct of Investigating officer was highly deplorable and condemnable as he went to the extent of planting the clothes of the deceased in the well of Atak Mullah and got the same clothes taken out from the said well at the instance of appellants Sita Ram and Chhitanka. Moreover, there are very strong Circumstances on the record as shown above which also go to show that the appellants were shown to the prosecution witnesses after their arrest by the Investigating Officer J. P. Gautam which had enabled them to identify the appellants correctly inside the Jail during test identification parade. Therefore, the investigation conducted by J. P. Gautam. P. W. 17 if tainted and not above-board and no reliance can be placed on the evidence of identification in this case. ( 32 ) BEFORE parting with the case, we feel that a copy of this judgment be sent to the Director General of Police U. P. for taking appropriate action against P. W. 17 J. P. Gautam investigating officer whose conduct during investigation has been found to be not above board, by Dhanpatlal and Idu Khan highly unreliable and unworthy of credence. Having considered all the facts and circumstances of the case, we come to the irresistible conclusion that in this case the appellants were falsely implicated by J. P. Gautam P. W. 17 Investigating Officer. The conduct of Investigating officer was highly deplourable and condemnable as he went to the extent of planting the clothes of the deceased in the well of Atak Mullah and got the same clothes taken out from the said well at the instance of appellants Sita Ram and Chhitanka. The conduct of Investigating officer was highly deplourable and condemnable as he went to the extent of planting the clothes of the deceased in the well of Atak Mullah and got the same clothes taken out from the said well at the instance of appellants Sita Ram and Chhitanka. Moreover, there are very strong circumstances on the record as shown above which also go to show that the appellants were shown to the prosecution witnesses after their arrest by the Investigating Officer J. P. Gautam which had enabled them to identify the appellants correctly inside the Jail during test identification parade. Therefore, the investigation conducted by J. P. Gautam, P. W. 17 is tainted and not above-board and no reliance can be placed on the evidence of identification in this case. ( 33 ) BEFORE parting with the case, we feel that a copy of this judgment be sent to the Director General of Police U. P. for taking appropriate action against P. W. 17 J. P. Gautam Investigating Officer whose conduct during investigation has been found to be not aboveboard. ( 34 ) WE further observe that once the conduct of the Investigating Officer is found not above board, the Court should not at all hesitate to censure his conduct so that the Investigating Officer may not get encouragement to fabricate evidence against the accused in subsequent investigation conducted by him. ( 35 ) IN the result, we allow the appeal and set aside the conviction and sentences recorded by the Sessions Judge against the appellants. The appellants are on bail. They need not surrender and their bonds are discharged. Convicts set at liberty .