JUDGMENT : R.N. PRASAD, J. 1. These five appeals have been heard together, as they arise out of the same JUDGMENT :. Rai Mathura Prasad is the sole appellant in Criminal Appeal 520 of 1981. He died during the pendency of this appeal and as such this appeal stands abated. There is one appellant each in the other three criminal appeals. These three appellant have been convicted under section 302 read with section 34 of the Indian Penal Code (hereinafter referred to as the Code) and have been sentenced to undergo rigorous imprisonment for life. They have also been convicted under section 120-B of the Code and have been sentenced to undergo rigorous imprisonment for life. One of the accused persons of the case, namely, Surendra Singh, has been acquitted by the trial Court. The Government Appeal has been filed for enhancement of the sentence against the appellants and has been admitted only against Jittu Gope and Jai Lal Mahan, who are appellants in Criminal Appeal Nos. 581 & 582 of 1981 respectively, and has been dismissed as against others. 2. One Yogendra Singh, who was also a charge-sheeted accused in this case, could not be apprehended before 4.5.1981 and as such he was tried separately in Sessions Trial No. 648 of 1981 and was convicted under section 302 read with Section 34 of the Indian Penal Code. He has preferred Criminal Appeal No. 246 of 1983 against his conviction and sentence and his appeal is being disposed of separately. 3. The prosecution case is that in the night between 21/22.11.1979, the deceased, namely, Sardar Kartar Singh, had slept on a Chauki lying on the Varendah of his Garage, known as Arora Garage, in Mohalla Haziganj within Patna City Chowk Police Station, after locking the gate of the compound wall, which was about 7' high. At about 5.30 A.M. his Darban namely, P.W. 8 Milan Kumar Rai, who was also sleeping nearby inside a truck, went near the deceased and found him lying dead in a pool of blood having cut injuries on his forehead and neck. Then, he informed the driver of the deceased, namely, Arun Kumar Sinha (P.W. 9), who was living in the neighbourhood. This P.W. 9 also went near the deceased along with P.W. 8. There after P.W. 8 informed P.W. 20 Pritam Singh, who was brother of the deceased, about the incident. Then, he informed the driver of the deceased, namely, Arun Kumar Sinha (P.W. 9), who was living in the neighbourhood. This P.W. 9 also went near the deceased along with P.W. 8. There after P.W. 8 informed P.W. 20 Pritam Singh, who was brother of the deceased, about the incident. On hearing the news, Pritam Singh went to that Garage along with his on Sukhjeet Singh (P.W. 13). After seeing the deceased, Pritam Singh went to Chowk Police Station, which was half a mile away from the Garage, and submitted a written report there at 6.45 A.M. on 22.11.1979. The Officer-in-Charge of the Police Station, namely, Batuk Nath Tripathi (P.W. 23) registered a case and at once proceeded to the place of occurrence. 4. According to the prosecution case, the extension telephone, which was near the deceased, had started ringing when the informant Pritam Singh (P.W. 20) and his son Sukhjeet Singh (P.W. 13) were near the deceased before the informant proceeded to the police station for lodging the first information report. The informant, however, could not receive the call as the cord of the telephone was cut off. Similarly, the cord of the receiver of another extension telephone was also found cut off. So, at the instance of the informant, Sukhjeet Singh went to the main building for receiving the call as the main telephone was kept there. It has been stated by Sukhjeet Singh that it was one of the appellants, namely, Rai Mathura Prasad (since dead), who was making enquiry on telephone as to whether Kartar Singh had been murdered and as to whether his neck was cut. This witness replied in the affirmative. He has further stated that on his enquiry Rai Mathura Prasad disclosed his name also on telephone. This is said to be one of the chains in the link of the conspiracy. 5. In course of investigation two persons, namely, Amar Singh (P.W. 10) and Jagir Singh (P.W. 11) disclosed that they were sleeping on the top of the cabin of their respective trucks parked within the Garage of Surjan Singh, which was almost opposite to the Arora Garage, intervened by a 12 fit. wide lane. 5. In course of investigation two persons, namely, Amar Singh (P.W. 10) and Jagir Singh (P.W. 11) disclosed that they were sleeping on the top of the cabin of their respective trucks parked within the Garage of Surjan Singh, which was almost opposite to the Arora Garage, intervened by a 12 fit. wide lane. They claimed to have woken up on hearing some sound at about 2 A.M. and to have seen some six persons coming out of the Varendah of Arora Garage and going towards the north and then towards west and ultimately towards south. After the apprehension of the appellants, they were put on test identification parade. P.W. 10 identified appellant Bhograj and Jittu Gope at the test identification parade held on 13.2.1980 and appellant Jailal Mahto at the test identification parade held on 15.2.1980. P.W. 11 Jagir Singh identified appellant Bhograj and Jittu Gope at the test identification parade held on 3.7.1980 and appellant Jailal Mahto at the test identification parade held on 11.7.1980. The test identification parades at which P.W. 11 had identified Bhograj, Jittu and Jailal were evidently held after the submission of the charge-sheet in the case. These two witnesses had identified these persons amongst the six persons whom they had seen coming out from the Varendah of the Arora Garage in the night of the occurrence. 6. On 26.11.1979 the investigating officer conducted a search in the residence of appellant Jailal Mahto, which was located on the land of his master Rai Mathura Prasad, and seized a blood stained Dab (Material Ext. I) and a pair of rubber shoes, which were also stained with blood (Material Exts. II & III). These articles were sent for chemical examination to the Forensic Science Laboratory, Bihar, Patna, and the report of the Laboratory, which is Ext. 18, is that blood had been detected on these material exhibits. The Seriologist, however, reported that the origin and group of blood on these exhibits could not be determined, as blood had disintegrated. 7. Appellant Bhograj was arrested at 2 A.M. on 27.11.1979, from his residence within the campus of the factory of Surgical Cotton and Dressing Corporation, near Didarganj Check Post, where he was working. On 28.11.1979, Bhograj was produced before Sri Wahidul Hassan, Judicial Magistrate, 1st Class, Patna City, who recorded his judicial confession, in which be implicated all the accused persons including himself. On 28.11.1979, Bhograj was produced before Sri Wahidul Hassan, Judicial Magistrate, 1st Class, Patna City, who recorded his judicial confession, in which be implicated all the accused persons including himself. It appears from his statement that appellants Jittu Gope and Jailal Mahto were hired by Mathura Prasad for murdering the deceased Kartar Singh, and that they were co-conspirators of the crime. He further stated that he along with Jittu Gope, Jailal, Yogendra, Harendra, and Bikram went to the garage that night. Out of them, Yogendra had a revolver, Jailal a Dab and Jittu Gope a Fasuli in their hands. According to him, Jailal inflicted a Dab blow on the Kanpatti of the deceased and Jittu Gope cut his neck by means of a Fasuli. 8. The motive of this murder was the enmity between the deceased and Rai Mathura Prasad on account of dispute regarding the boundary of 16 kathas land sold by Rai Mathura Prasad to the deceased through various sale deeds executed by him in the name of different members of the family of the deceased. It is further stated that the deceased wanted to purchase the share of Madhuri Devi, who was the widow of the nephew of Rai Mathura Prasad which annoyed Rai Mathura Prasad, who called the deceased at his place on 17.11.1979 and rebuked him for entering into negotiation with her without his consent. It is aid that this altercation resulted in threat and counter threats by the two sides and this, according to the prosecution, was the main cause for them under. 9. The defence of the appellants was the plea of innocence and false implication. Appellant Bhograj retracted from his confession and he stated in his examination under section 313 of the Code of Criminal Procedure that he had stated as he was asked to state by the senior notice officer. 10. At the trial the prosecution examined 24 witnesses but none of them is an eye-witness to the murder. The prosecution case mainly rests on the judicial confession made by appellant Bhograj and the identification of the appellants by P.Ws. 10 and 11 as stated above, besides some circumstances to which reference has been made above. 11. 10. At the trial the prosecution examined 24 witnesses but none of them is an eye-witness to the murder. The prosecution case mainly rests on the judicial confession made by appellant Bhograj and the identification of the appellants by P.Ws. 10 and 11 as stated above, besides some circumstances to which reference has been made above. 11. The submission of the learned Counsel, who appeared on behalf of the appellants, was that the said judicial confession of Bhograj recorded by P.W. 21 is wholly inadmissible in evidence, and I find myself in agreement with this submission. It would be significant to point out that Bhograj was arrested from his residence at about 2 A.M. on 27.11.1979. In normal course he should have been produced before the Court on the same day i.e. on 27.11.1979, but it was not done and no explanation has been offered for the same. It seems that he was produced before the Sub-divisional Judicial Magistrate, Patna City, on 28.11.1979 with a request by the police to record his confession and also to give him on police remand for three days. The Sub-divisional Judicial Magistrate accepted both the requests of the investigating officer and at once passed an ORDER :giving Bhograj on police remand for three days. After passing this ORDER :the learned Sub-divisional Judicial Magistrate sent Bhograj to a Judicial Magistrate (P.W. 21) for recording his statement. The Judicial Magistrate (P.W. 21) recorded his statement under section 164 of the Code of Criminal Procedure on the same day. It, however, does not appear either from his evidence or from his judicial confession itself that Bhograj was given any time to reflect or think over the matter, even though he was produced from police custody on the same day and was to be given on police remand on the same day as per the ORDER :passed by the Sub-divisional Judicial Magistrate and in fact he was given on police remand for three days after the confession was recorded. In this connection it would be significant to refer to the following observations made by the Supreme Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab, AIR 1957 S.C. 637 :– "There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to he given to him before his statement is recorded." 12. Of course, as observed in the aforesaid decision, it is difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case and in one decision, AIR 1985 S.C. 823 , even three hour's time was considered sufficient by the Supreme Court, but that was in the peculiar circumstances of that case. The peculiarity of this case, however, is that no time at all was given to Bhograj to think over the matter. He was produced from the police custody and his statement was recorded and thereafter he was sent to police custody on police remand for three days. The learned trial court has refused to take any serious notice of this circumstance in view of the evidence of the Magistrate (P.W. 21) that Bhograj was not nervous when he made the statement. He was produced from the police custody and his statement was recorded and thereafter he was sent to police custody on police remand for three days. The learned trial court has refused to take any serious notice of this circumstance in view of the evidence of the Magistrate (P.W. 21) that Bhograj was not nervous when he made the statement. I do not quite see as to what the learned Magistrate meant to say by stating that he was not nervous and at any rate, his subject he impression about the accused being not nervous would not be sufficient to deviate from the well established cardinal principle that accused should be given some time to reflect over his desire to make a confession when he is produced from police custody. 13. Another infirmity in the recording of the judicial confession is that the learned Magistrate did not enquire from Bhograj as to why he wanted to make a confession. This question, in my opinion, is necessary for judging the voluntary character of the confession, but the learned Magistrate did not put any such question to him. 14. Still another infirmity which has been noticed by the learned trial court itself is that the confession is not in the form of question and answer, which is the mode prescribed by the Patna High Court. Of course, by itself and considered in isolation, this circumstance may not be of great importance, but, all the same, it betrays the knowledge of the Magistrate about the procedures to be adopted in such cases and the casual manner in which he has recorded the confession. In this connection it may further be stated that the confession shows that Bhograj was examined on solemn affirmation before he gave his statement. The learned Additional Sessions Judge has noticed this fact but has ignored it by stating that there is no evidence on the record to prove satisfactorily that in fact oath was administered to Bhograj before his confessional statement was recorded. I simply fail to understand as to what more evidence the learned Judge wanted when it is clearly mentioned at the top of the confession that this was the statement of Bhograj taken on solemn affirmation. I simply fail to understand as to what more evidence the learned Judge wanted when it is clearly mentioned at the top of the confession that this was the statement of Bhograj taken on solemn affirmation. In such a situation the apparent state would be deemed to be the real state and, indeed, there should be a presumption of correctness of the fact stated at the top of the confession. Indeed, it was for the prosecution to rebut this presumption, but the learned trial court has placed the onus reversely on the accused persons. It is really strange that he has entered into the realm of conjecture that the Magistrate has forgotten to pen through the relevant portion in the printed form, when the Magistrate himself has not stated anything like that in his evidence. Obviously, administration of oath to the accused while recording his confession is illegal for being contrary to the provisions of section 281 of the Code of Criminal Procedure and on this ground alone the confession has lost its evidentiary value and should be rejected outright. Reference may be made in this connection on the division Bench decision of the Karnataka High Court in the case of Philips vs. State of Karnataka, 1980 Cr. L.J. 171. 15. In any event, the cumulative effect of the infirmities and the circumstances pointed out above would be sufficient to render the alleged confession of Bhograj illegal and inadmissible in evidence. Indeed, the circumstances of the instant cases are more stronger than in the case of Devendra Prasad Tiwary vs. State of Uttar Pradesh, AIR 1978 S.C. 1544 . In that case the highest court of the land refused to take into consideration the alleged judicial confession for the following reasons. "It is also true that before a confessional statement made under S.164 of the Code of Criminal Procedure can be acted upon, it must be shown to be voluntary and free from police influence and that the confessional statement made by the appellant in the instant case cannot be taken into account, as it suffers from serious infirmities in that (1) there is no contemporaneous record to show that the appellant was actually kept in jail as ORDER :ed on 6.9.1974 by Shri R.P. Singh. Judicial Magistrate, Gorakhpur, (2) Shri S.P. Singh who recorded the so called confessional statement of the appellant, did not question him as to why he was making the confession and (3) there is also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock up even if he did not confess his guilt." In that case there was no positive evidence to show that the accused was sent back to police remand and there was also no evidence to show otherwise, but, still the court took notice of the fact that there was nothing to show that the learned Magistrate had told the appellant that he would not be remanded to the police lock up even if he did not confess his guilt. In the present case it is apparent from the ORDER :-sheet itself that Bhograj was sent back to police custody on police remand for three days immediately after he made the alleged confessional statement. Not only that, he was produced before the learned Magistrate on the same day from the police custody and his confession was recorded without giving him any time to reflect. Then, the Hon'ble Court also took serious notice of the fact that the accused was not questioned as to by he was making the confession. The present case seems to be fully covered by this decision, rather the infirmities found in the present case are more numerous and significant than those pointed out in this decision. In such a situation, there is no option but to reject the alleged judicial confession of Bhograj as being illegal and inadmissible. That being so this document has to be completely excluded from consideration. 16. Another serious error committed by the learned Additional Sessions Judge is that he has treated the confession of Bhograj as substantive evidence against the co-accused persons also. In fact, he has not at all cared to deal with the case of non-confessing accused separately and has simply dealt with the confession and the circumstances relied on by the prosecution and has jumped to the conclusion that those materials are sufficient to prove the charges against all the accused persons. In fact, he has not at all cared to deal with the case of non-confessing accused separately and has simply dealt with the confession and the circumstances relied on by the prosecution and has jumped to the conclusion that those materials are sufficient to prove the charges against all the accused persons. It is now too late in the day to apprise the learned Additional Sessions Judge that the confession of a co-accused is not substantive evidence against non-confessing accused persons. This position of law has been repeatedly reiterated by the Supreme Court and finally in the case of Haricharan Kurmi vs. State of Bihar, 1964 BLJR 510 = AIR 1964 S.C. 1184 the Supreme Court observed that:– "In dealing with a criminal case where the prosecution relies upon the confession of one accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right." Their Lordships concluded by saying that:– "As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisdiction assists the accused person and compels the Court to tender the verdict that the charge is not proved against him, and he is entitled to the benefit of doubt." It is really strange that the learned Additional Sessions Judge seems to be completely ignorant about this legal position even in 1981 when he delivered the impugned JUDGMENT :. In view of this legal position, it was only fit and proper for him to consider the case of non-confessing accused persons separately from that of the confessing accused and to find out if other materials on the record were sufficient to idea him to the conclusion regarding their guilt as well, and then only he could press the confession into service in ORDER :to receive assurance to the conclusion of the guilt of other accused persons which the judicial mind was about to reach on the other evidence. If the judicial confession is excluded from consideration so far as the non-confessing accused persons are concerned, there would remain very little evidence in the nature of circumstances which are quite insufficient to lead the judicial mind to the conclusion of guilt so far these accused persons are concerned. We will revert to these circumstances later on. 17. The other item of evidence, which has been relied upon by the learned Additional Sessions Judge against these appellants is that they were seen by P.Ws. 10 and 11 coming cut of the Varendah, where the deceased was aleeping at about 2 A.M. in that fateful night. Both the witnesses claim to identify by face those 5-6 persons whom they had seen that night and, accordingly, the appellants were put on test identification parades. As said above, P.W. 10 identified appellant Bhograj and Jittu Gope at the test identification parade held on 13.2.1980 and appellant Jailal at the test identification parade held on 15.2.1980. P.W. 11 Jagir Singh is said to have identified the appellants Bhograj and Jittu Gope at the test identification parade held on 3.7.1980 and appellant Jailal at the test identification parade held on 11.7.1980, I shall consider the value of the test identification parades later on. Presently, I would consider whether the story told by these witnesses is natural, and convincing. 18. On consideration of all aspects of the matter I feel that the story told by P.Ws. Presently, I would consider whether the story told by these witnesses is natural, and convincing. 18. On consideration of all aspects of the matter I feel that the story told by P.Ws. 10 and 11 appears to be more fanciful than real, which would be evident from the following circumstances:– (1) Taking into account the natural human conduct it does not appear quite probable that these two witnesses would be sleeping at the top of the cabin of their respective trucks in the night between 21/22.11.1981, which was evidently a winter night and neither of them possessed sufficient bedding and clothes to protect them from cold. Indeed, it was absolutely unnecessary for P.W. 11 to sleep at the top of the cabin, as, admittedly, his rear cabin, which was meant for sleeping, was lying empty. It has been suggested by the learned Counsel for the appellants that these witnesses claim to have slept on the top of the cabin which was about 10' high only to make them competent witnesses, as the compound wall of the Arora Garage was 7' high and the Varendah in question could not be visible from inside the cabin of the truck. It cannot be said that this suggestion is devoid of any substance. (2) Both these witnesses have claimed to have woke up at one and the same time on hearing some sound and to have seen the movement of the culprits while giving out of the Varendah of Arora Garage. P.W. 11 has not at all given out as to what that sound was and the description of the sound given by P.W. 10 is unbelievable, According to P.W. 10 this sound was like that of clash between two objects or that of striking some object, He however added that he used to here such sound daily. The pertinent question, however, in this connection is whether such sound could be a natural sound at that hour of the night when the Garage as not operating and its gate was closed. Evidently no sound was expected in the process of murder of the deceased in which only sharp cutting weapons were used. The pertinent question, however, in this connection is whether such sound could be a natural sound at that hour of the night when the Garage as not operating and its gate was closed. Evidently no sound was expected in the process of murder of the deceased in which only sharp cutting weapons were used. It is really surprising as to how these two witnesses could hear any sound at all at that hour, which would be sufficient for waking them up from slumber, more so, when they were at a distance of more than 50 steps from the scene of the occurrence. (3) Still more surprising is the reaction of the two witnesses after seeing those persons coming out of the Varendah. According to P.W. 11 one of these persons had a meat cutting Dab in his hand and the other a revolver like thing, P.W. 10 had told the police that besides Dab and revolver, he had also seen a dagger in the hand of one of those culprits although he tried to conceal the revolver and dagger in his evidence in Court. According to both these witnesses, those 5-6 persons were going slowly, but both of them told the Magistrate conducting the test identification parade (P.W. 22) that those culprits were fleeing when they had seen them (vide T.I. Charts-Exts. 10. 10/1, 10/3 and 10/4), Even after seeing those culprits fleeing away with those deadly weapons in their hands, neither of the two witnesses tried to raise any alarm. Indeed, they did not talk amongst themselves also although they had seen each other sitting at that time. Surprisingly enough, neither of them even tried to see as to where they were going and how they crossed the compound wall of Arora Garage. P.W. 10 had admitted that he got terrified on seeing them and hence went to sleep immediately after seeing them. Had he been terror-stricken, he was expected to be vigilant and would have tried to see as to where those persons were going and what for they were moving. It may be noted that the witness was at a safe place and could have no fear of harm from them. Had he been terror-stricken, he was expected to be vigilant and would have tried to see as to where those persons were going and what for they were moving. It may be noted that the witness was at a safe place and could have no fear of harm from them. The statement of these witnesses they did not take any special notice of those persons, as they thought that they would be workers of the Garage is simply ridiculous, as they have admitted that the Garage was not working at that hour and the gate of the Garage was closed. P.W. 10 has himself admitted that he had never seen people in the Garage till that hour of the night. Then at least three of those persons were armed with deadly weapons. In this background, they were expected to get startled to see those persons coming out of the Varendah of the Garage with revolver, Dab and dagger in their hands. Indeed, the workers of the Garage were not expected to come out of the Garage at that hour of the night, more so, with these weapons in their hands. This was all the more so, as those persons were fleeing away, as stated by these two witnesses in the T.I. chart (Exts. 10, 10/1, 10/3 and 10/4). The statement of P.W. 11 that there was no sign of any haste, worry perplexion or any abnormality on the face of those persons makes the position still more confusing, as a murderer cannot become so normal only a few moments after committing the murder. Then, these two witnesses did not even try to tell what they had seen during the night immediately after waking up at about 5:20 A.M. According to their own admission, they went to the tea stall for taking tea and told this story only at of after 7 A.M. when they saw people weeping in the Arora Garage. 19. Thus, it is apparent that the reaction of these two witnesses after seeing those six persons in that position was not that of an average human being. Ordinarily one would have expected them to watch those culprits and raise alarm at once. They should have at least talked amongst themselves about the same, but this was also not done. 19. Thus, it is apparent that the reaction of these two witnesses after seeing those six persons in that position was not that of an average human being. Ordinarily one would have expected them to watch those culprits and raise alarm at once. They should have at least talked amongst themselves about the same, but this was also not done. All these go to indicate that in all probability they did not see anything at all and this is why they went leisurely to the tea shop after waking up unmindful of what had happened that light. It is true that neither of these two witnesses had any animosity with any of the appellants nor they were interested in the prosecution, but this circumstance alone would not lend credibility to their evidence, when the circumstances set forth above are sufficient to shake their credibility. That being so, their claim of identification of those persons during that night has to be looked at with caution. 20. Indeed, it is difficult to accept the claim of P.Ws. 10 and 11 that they had seen the culprits coming out of the Varendah of Arora Garage very vividly, when they admittedly did not give any particular or description of any of the appellants to any witness including the investigating officer. The omission on their part to give any particular of those persons assumes importance, in view of the admission of these witnesses that all the four accused persons whom they had identified had moustaches on their faces and one of them was lean and thin and had a black complexion. Indeed, none of them could state as to which of the appellants had which weapon in his hand. In any event, according to their admission before the Magistrate (P.W. 22), the culprits were fleeing away when they had seen them. In such a situation they could have at best only a fleeting glimpse of those persons within the short period they had seen them, more so, from a distance of more than 50 yards during night hours. It is obvious that they had seen them only for few moments as they had simply seen them coming out of the Varendah and had not seen them even crossing the compound wall. Neither of them had even told the police that they had seen them going towards south. It is obvious that they had seen them only for few moments as they had simply seen them coming out of the Varendah and had not seen them even crossing the compound wall. Neither of them had even told the police that they had seen them going towards south. It needs no saying that in such circumstances the possibility of a mistake in identification cannot be ruled out. 21. Much also can be said against the test identification parades held in respect of the appellants. Undisputedly, all the appellants were arrested within a week of the occurrence from their respective places, but they were not put on test identification parade immediately after their arrest. The first test identification parade was held only on 13.2.1980 i.e., after more than 2½ months of the arrest of the appellants when P.W. 10 was called to identify them. No explanation, whatsoever, has been given for this delay. It may be mentioned here that P.W. 10 was all along at Patna during the entire period. It would also be significant to point out that the two appellants namely, Jittu Gope and Bhograj, also were put on T.I. parade at 4 P.M. on that day by the Judicial Magistrate (P.W. 22), was earlier produced from city Sub-Jail on that date before the Sub-divisional Judicial Magistrate. There is the admission of P.W. 10 that he was taken to the court on that date by the I.O. for identification. In such a situation the possibility of these two appellants having been shown to the witness in the court premises sometime before the T.I. parade cannot be ruled out. The second test identification parade in respect of P.W. 10, as stated above, was held on 15.2.1980 i.e. two days thereafter. In the absence of any explanation in lodging of T.I. parades at such long delay by itself affects the value of the two test identification parades to some extent. This view finds support from the following observations of the highest Court of the land in the case of Hasib vs. The State of Bihar, 1972 Criminal Law Journal 233 = AIR 1972 S.C. 283 :– "Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding if right lines. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapse of time." 21. Almost similar view has been expressed by their Lordships of the Supreme Court in the case of Wakil Singh & other vs. State of Bihar, 1981 BBCJ S.C. 138, in the following words:– "The High Court also ignored the fact that the identification was made at T.I. parade about 3½ months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness." 22. So far as the test identification parade held in respect of P.W. 11 is concerned, an explanation has been offered by the witness himself and this is that he had gone away to Punjab only a few days after the occurrence and returned from there after four months. It has been stated on behalf of the prosecution that the investigating officer tried to get the test identification parade held after his return from Punjab but the same was refused on 8.4.1980 by the learned Sub-divisional Judicial Magistrate, as the investigation had already been completed and charge-sheet had already been submitted on 18.2.1980. Subsequently a revision was filed against the ORDER :of the learned Sub-divisional Judicial Magistrate, which was allowed and then only the test identification parades could be held. It is really difficult to accept this explanation of offered by the prosecution as the investigating agency had the full address of the witness with it and if it so liked, it could have secured his presence within a very short period, but no attempt was made to secure his attendance from Punjab. In fact, he was taken for the test identification parade only when he himself came down to Patna. The first petition for holding T.I. parade for him was filed on 8.4.1980 and that also by the informant and this was rejected by the learned Sub-divisional Judicial Magistrate. In fact, he was taken for the test identification parade only when he himself came down to Patna. The first petition for holding T.I. parade for him was filed on 8.4.1980 and that also by the informant and this was rejected by the learned Sub-divisional Judicial Magistrate. Subsequently, on 17.4.1980 a petition with the same prayer was made on behalf of the State which also met with the same fate. Whatever may be the cause of the delay in holding the T.I. parades, the fact remains that the chances of the memory of the identifying witness fading away by reason of long lapse of time cannot be lost sight of, as test identification parades were held after mere than seven months of the incident. This delay assumes greater importance in the background of the witness (P.W. 11) not giving any particular of any of the accused persons even though they had special peculiarities as stated above. Then, the witness had only fleeting glimpse of those persons for a very short period from a distance of over 50 yards. In this background, the observations quoted above from the decision in the case of Wakil Singh (supra) are fully attracted in the present case. 23. In view of the discussions made above it would not be safe to act on the identification of the appellants by these two witnesses. 24. Some circumstances have also been placed on behalf of the prosecution mainly for proving the charge of conspiracy. The first circumstance relied on by the prosecution is that when the telephone bell rang soon after the arrival of the informant and his son (P.W. 13) at the place of occurrence the latter received the call from the main connection as the cord of the receiver of the two extensions had been cut off by the culprits. When he lifted the telephone receiver, he heard an enquiry being made as to whether Kartar Singh was murdered and whether his neck was cut to which the witness replied in the affirmative. The witness has further testified that he could identify the voice of the person who was making there enquiry and felt that it was Rai Mathura Prasad and indeed, on his enquiry, the reply came that it was Rai Mathura Prasad. The learned Additional Sessions Judge has considered this circumstance as an important link in the chain of conspiracy. The witness has further testified that he could identify the voice of the person who was making there enquiry and felt that it was Rai Mathura Prasad and indeed, on his enquiry, the reply came that it was Rai Mathura Prasad. The learned Additional Sessions Judge has considered this circumstance as an important link in the chain of conspiracy. Not only that he accepted the story told by P.W. 13, but also went to the extent of making a conjecture that the murderers might have gone to Rai Mathura Prasad for demanding the promised money and Rai Mathura Prasad wanted to confirm their statement before making the payment. To my mind, this story told by P.W. 13 in this regard is only a figment or imagination. No conspirator to the murder would disclose his name so easily to the son of the informant. Indeed, no conspirator would make such an enquiry and in such detail about the manner of murder and that also so soon after the murder, specially when, according to the prosecution story itself, he was highly inimical towards the deceased. I am really amazed at the fight of imagination of the learned Additional Sessions Judge who could imagine without any evidence that probably Rai Mathura Prasad was making such an enquiry to confirm about the murder before making payment to the murderers. Such a conduct of Rai Mathura Prasad is entirely against the natural human conduct and behaviour and also against natural probabilities. I am, therefore, not prepared to place any reliance on this circumstance. 25. The next circumstance relied on by the learned Additional Sessions Judge is the recovery of a pair of blood stained shoes and the blood stained Dab from the house of appellant Jailal in the night of 26.11.1979 by the investigating officer in presence of P.W. 6 Surjan Singh. The stains of blood on the shoes was on the sale which could be possible only by walking on the blood stained floor. In the instant case there is absolutely no evidence to indicate that these shoes fitted the foot of appellant Jailal Mahto or any other accused of the case. In fact, these shoes were badly torn, which is evident from the seizure list (Ext. 14/1) and it is not easily believable that any one would have used it at the time of murder. In fact, these shoes were badly torn, which is evident from the seizure list (Ext. 14/1) and it is not easily believable that any one would have used it at the time of murder. It is surprising as to why the investigating officer did not try to see as to whether the shoes fitted in the foot of Jailal Mahto or any other appellant. So far as Dab is concerned, it was admittedly meant for cutting meat and the presence of blood therein is not quite surprising. This is all the more so, as, according to the Seriologist the origin or group of the blood could not be detected, as blood had disintegrated. When the human blood was not proved to have been found on the Dab, this circumstance cannot be of much help to the prosecution. I have already made my comment regarding the shoes. It may be added that in their case also the origin and group of the blood could not be detected by Seriologist. Not only that, the seizure list itself is not above suspicion. The investigating officer (P.W. 23) has stated that he had conducted the search on 26.11.1979, but the date given on this seizure list is 27.11.1979. The investigating officer has tried to explain the discrepancy by saying that this is a slip of pen. Be that as it may, the manner in which the writing has been done on this exhibit would give an indication that the signatures of the witnesses were taken before the writing was done. Of course, an explanation has been given in this regard also by the investigating officer, but, this is hardly acceptable, as a mere look at this document shows that it is not a genuine document. So, this seizure can also be of no value to the prosecution. 26. Thirdly, P.W. 12 Waryam Singh has stated that he was getting an iron gate fitted through his Mechanic on 21.12.1979 in the land purchased by the deceased from Rai Mathura Prasad, on his behalf. While doing so, at about 5 P.M. he saw Rai Mathura Prasad talking to 4-6 persons at a distance of 50 yards from him. He has further stated that after talking to them Rai Mathura Prasad left the place on Rickshaw. While doing so, at about 5 P.M. he saw Rai Mathura Prasad talking to 4-6 persons at a distance of 50 yards from him. He has further stated that after talking to them Rai Mathura Prasad left the place on Rickshaw. I wonder how this can be a circumstance against Rai Mathura Prasad or any of the appellants when none excepting Rai Mathura Prasad was identified and the witness could not hear what they were talking. If really Rai Mathura Prasad had to talk anything incriminating with those persons, he would have called them to his house, which was close by and would not have talked such things in the open, more so, in the presence of the persons who were working on behalf of the deceased. 27. Another circumstance relied upon by the prosecution and accepted by the learned Additional Sessions Judge is that P.W. 14 Himmat Singh had seen some 5-7 persons coming to the residence of Jailal in the evening for 5 to 6 days continuously before the occurrence and participating in food and drink there after which they used to go away. Out of them he had identified only one, namely, Bhograj, besides Jailal. Then, he has further stated that on the fateful night of the occurrence he saw those 5 to 7 persons going to the residence of Jailal and also saw them going away after three to four hours. In my opinion, this witness does not appear to be a reliable witness at all. Admittedly, he is a servant of the deceased. He has claimed to have acted as Darban on the purchased land of the deceased for two months this prior to the occurrence and in that process he had claimed to have seen the above things. It has not been explained as to why he was working there as Darban when there was nothing to be watched there. Of course, he has stated that he was watching the Garage, but no Garage was actually there. In fact, on his own admission he did not work thereafter the occurrence and started working in the Arora Garage where he used to work prior to those two months. Apart from it, the presence of 5 to 6 persons in the house of Jailal would not be sufficient to connect the appellants with the crime in question when there is no other link to connect them. Apart from it, the presence of 5 to 6 persons in the house of Jailal would not be sufficient to connect the appellants with the crime in question when there is no other link to connect them. I have already stated above that the claim of P.Ws. 10 and 11 about identifying the appellants in the night of occurrence is not acceptable at all. 28. The last circumstance placed by the prosecution is the enmity between the deceased and Rai Mathura Prasad over the purchase of land. It is said that on 17.11.1979 i.e. four days prior to the occurrence there was exchange of hot words between the deceased and Rai Mathura Prasad and they had given threats and counter threats. Even, if this story of enmity is accepted at its face value, it cannot provide a strong motive for Rai Mathura Prasad for entering into a conspiracy for the murder of the deceased and for hiring the appellants on the promise to pay Rs. 4,000/- for committing such a brutal murder. Such enmity over land dispute is a common feature in this part of the country and, indeed, such threats and counter threats are also not unusual and ordinarily they do not provide such a strong motive for committing such a ghastly murder. Indeed, the enmity in the present case is an ordinary enmity, which, in ordinary circumstances could not provide a strong motive to get such a crime accomplished by hired Goondas. 29. To sum up, the judicial confession of Bhograj cannot be taken into consideration and the identification of the appellants (other than Rai Mathura Prasad) by the two witnesses, to wit, P.Ws. 10 and 11 has to be rejected for the reasons given above. Then, the circumstances relied upon by the prosecution as also by the trial court, apart from being unconvincing as discussed above, cannot be sufficient to lead us to the only conclusion that the appellants had entered into a conspiracy to murder the deceased and that they had committed the murder of the deceased. Thus, there is no legal evidence against any of the appellants for holding any of them guilty on any count and as such all of them are entitled to acquittal. 30. Thus, there is no legal evidence against any of the appellants for holding any of them guilty on any count and as such all of them are entitled to acquittal. 30. For the reasons given above, tile conviction of the appellants of all these criminal appeals on either of the two charges for which they have been convicted cannot be sustained and the ORDER :of their conviction and sentence is accordingly set aside. That being so, Criminal Appeal Nos. 581, 582 and 594 of 1981 are allowed and the appellants thereof lire acquitted of the charges for which they have been convicted. These appellants, who are on bail, are discharged from their bail bonds. As said above, Criminal Appeal No. 520 of 1981 in which Rai Mathura Prasad is the sole appellant stands abated consequent upon his death. In view of the decision arrived at, Government Appeal No. 68 of 1981 has got to be dismissed and is, accordingly, dismissed, as the question of enhancement of sentence does not arise at all.