ORDER K. Jayachandra Reddy, J. - In both these appeals the appellant is Prem alias Santosh. He along with three others were tried not offences punishable under Sections 395. 397.400 and 302 read with 34. I.P.C. During the trial Mahadeo (A1) managed to escape and absconded. The trial Court, however, convicted the remaining three accused including the appellant for the offences for which they were charged to various terms of imprisonments including life imprisonment. The appellant Prem alias Santosh filed Criminal Appeal No. 256 of 1992 and the State filed Criminal Appeal NO. 262 of 1992 for enhancement of the sentence to one of death. The other two accused Tejasingh and Kallu filed Criminal Appeal No. 51 of 1989 and the State filed Criminal Appeal No. 111 of 1989 for enhancement of the sentence to one of death. During the pendency of the appeals before the High Court Tejasingh and Kallu escaped from the jail custody. Therefore, the High Court considered the case of the appellant and while confirming his convictions allowed the appeal by the State and enhanced the sentence to one of death. These two appeals are filed against the common judgment of the High Court. The prosecution case is as follows: On the morning of 21.4.1984, P.W. 1 Shankar found three injured persons lying near the bridge on Wani-Warora highway. He informed the police who reached the scene of occurrence and they found two of them dead and P.W. 37 lying injured. P.W. 37 was removed to the hospital. The other two dead bodies were sent for post-mortem examination and the doctor, who conducted the post-mortem, opined that they received fatal injuries on various parts of their bodies and died. The case rested on circumstantial evidence and according to the prosecution the appellant and the other three accused belonged to a gang of dacoits and having planned to commit dacoity on the highway they attacked three persons and inflicted fatal injuries on two of them. The prosecution relied on the evidence of P.Ws. 1,2,37,54,69 and 71. Except P.W. 37 other witnesses only deposed about some prior movements of the accused. Except some branches of Gulmohar tree which are alleged to have been used as a weapon, no other articles were recovered and it may be mentioned that only a branch of Gulmohar tree (Article 53) was recovered from the appellant. The accused pleaded not guilty. Except P.W. 37 other witnesses only deposed about some prior movements of the accused. Except some branches of Gulmohar tree which are alleged to have been used as a weapon, no other articles were recovered and it may be mentioned that only a branch of Gulmohar tree (Article 53) was recovered from the appellant. The accused pleaded not guilty. The High Court, however, relying mainly on the evidence of P.W. 37 Nandlal, convicted the accused-appellant, and also allowed the State Appeal and accordingly enhanced the sentence to one of death. In paragraph 16 of the judgment, the High Court summed up thus: "Taking into account the chain of events, it is clear that even before the incident, in question, accused No. 4 Prem was associated with accused Nos. 1, 2 and 3 69 Gautam has seen them together at Hinganghat. P.W. 37 Nandlal has also seen accused No. 4 Prem with accused Nos. 1,2 and 3 at the time of incident. As discussed earlier, even after the incident they were together forming a gang and they operated with a common mission and their action was concerted. Taking these aspects into account coupled with presence of accused No. 4 Prem as deposed by P.W. 37 Nandlal and other incriminating circumstances as discussed, we hold that appellant-accused No. 4 Prem along with accused Nos. 1, 2 and 3 was involved in the incident leading to homicidal death of Ramesh Mohitkar and Madhukar Girl. He has, therefore, rightly been held guilty for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The learned Additional Sessions Judge has discussed this aspect in para (25) of the impugned judgment. The reasoning and findings as recorded are just and proper and do not suffer from any illegality. The appeal as presented by appellant-accused No. 4 Prem is, therefore, liable to be dismissed." It can be seen that P.W. 69s evidence only was to the effect that the appellant was seen with Accused Nos. 1, 2 and 3 earlier and we do not know at what at what point of time they were together. Then there remains the solitary testimony of P.W. 37 alone. P.W. 37, Nandlal, at the relevant time, was working as a Dumper Operator. On 20.4.1984 after completing his duty by 8 P.M. he was returning on a Luna along with P.W. 57 Uttam Ldi. Then there remains the solitary testimony of P.W. 37 alone. P.W. 37, Nandlal, at the relevant time, was working as a Dumper Operator. On 20.4.1984 after completing his duty by 8 P.M. he was returning on a Luna along with P.W. 57 Uttam Ldi. He parted the company of P.W. 57 at a place known as Patiala. At about 9 P.M. he proceeded towards his home at Warora. He deposed that the head light of his Luna was working that day. When he came near a bridge from where Warora is about one kilometer he saw four persons standing at the bridge. He had seen these persons with the help of the headlight of his Luna from a distance of about 15 to 20 feet. One of the four-persons gave him a signal to stop the Luna by raising his hand. He lowered the speed. One of the four persons was armed with a pipe. He dealt a blow on his temporal bone and he fell down and became unconscious. He did not see what was happened. In the cross-examination, he was questioned with reference to his statement before the Police. He was told by the counsel for the defence that he did not state before the Police that the headlight of Luna was in working order and he saw four persons from a distance of 15 to 20 feet and in respect of some other details. The question was objected to by the Public Prosecutor but the court recorded answers subject to the objection and strangely in the answer P.W. 37 stated that he cannot assign any reason why Police had not written it. He has, however, further admitted his statement before police that it was a dark night and he could not identify the assailants and could not see their faces properly. The witness, however, voluntarily added that due to the fear of the accused persons they had not told the names to the police. These admissions strike at the root of the evidence. It may also be noted that in the Chief Examination he stated that he had not known the names of A-1, A-2 and he only saw A-3 and A-4 (namely the appellant) prior to the incident one or two times with A-1 thereby admitting that he did not even know the name of A-4. It may also be noted that in the Chief Examination he stated that he had not known the names of A-1, A-2 and he only saw A-3 and A-4 (namely the appellant) prior to the incident one or two times with A-1 thereby admitting that he did not even know the name of A-4. That apart this witness was examined after two months by the Police. No test identification parade was held. In any event his admission, that he stated before the Police and it was a dark night and he could not identify anybody, is very significant and completely destroys his evidence. Except P.W. 37s evidence, there is no other evidence to connect the appellant with the crime and this position is not disputed by the learned counsel Mr. S.M. Jadhav, appearing for the State. The trial Court, no doubt, has relied on the circumstance that a branch of Gulmohar tree recovered at the instance of A-4 was blood stained and part of it was also recovered from other accused, and therefore association could be among them. This is to say the least is remote possibility which in any event cannot connect the appellant with the crime. The evidence adduced by the prosecution is wholly insufficient to connect the appellant with the crime. In the result the convictions and sentences awarded by the Courts below against the appellant are set aside. The appellant is in jail. He shall be released. These appeals are allowed accordingly. Appeal allowed. For Citation : 1994 SCC (Crl.) 1138