JUDGMENT - VISHNU SAHAI, J. :---The appellants aggrieved by the judgment and order dated 23-12-1981 passed in Sessions Case No. 149 of 1981 by the 5th Additional Sessions Judge, Thane convicting and sentencing them to undergo 7 years R.I. under section 307 read with 34 I.P.C. have come up in appeal before us. Since both these appeals arise out of a common incident they are being disposed off by a common judgment. 2.In short the prosecution case runs as under : The victim Dattatraya Ganpat Gaikwad P.W. 1 at the time of the incident was attached as a Constable to Hill Lines Police Station. On 20th November 1980 at about 11.30 p.m. after finishing his duty he came to Hill Lines Police Station. There he changed his clothes. As he intended to go to his village Karjat he started going to Ambernath Railway Station. At about midnight he reached No. 5 bus stand. The bus was scheduled to come there between 12 to 12.30. Excepting him there was no one. There was tube light in the street. After about 5 to 10 minutes of his arrival a rickshaw came there and in the same were sitting three persons, including the appellants. One of them enquired from him as to where he was going. He told him that he was going to Ambernath Railway Station. The said person said that he would reach him there. On that he replied that he would go by bus. Then the appellant Kisan Shivaldas Jethani abused him, caught hold of his shirt and started giving him fist blows on his abdomen. Appellant Jaikisan Uttamchand Jethani assaulted him with a gupti, on his face, chest and abdomen. As a consequence of the assault his clothes were torn and blood started oozing out. In the meantime a State Transport bus arrived and seeing the same the appellants went aside. After the passengers had alighted from the bus the victim hurriedly boarded the bus. It is alleged that the conductor and the driver of the S.T. bus had also recognised the faces of the appellants. The victim asked the conductor of the S.T. bus to take him to Hill Lines Police Station. When he woke up he found that he was in Central Hospital, Ulhasnagar. It is alleged that the conductor and the driver of the S.T. bus had also recognised the faces of the appellants. The victim asked the conductor of the S.T. bus to take him to Hill Lines Police Station. When he woke up he found that he was in Central Hospital, Ulhasnagar. 3.The F.I.R. of the incident was lodged by the bus conductor Bhaskar Govind Tambhe, P.W. 3 at 1.15 a.m. at Hill Lines Police Station. A case under section 326/34 I.P.C. was registered against unknown persons on its basis. 4.The injuries of the victim Dattatraya Ganpat were medically examined at 1.15 a.m. at Central Hospital, Ulhasnagar by Dr. Jamnis P.W. 10. He found that the victim had suffered in all 13 incised wounds, which were distributed on various parts of his body. The doctor found three small perforations in the middle of the ileum. He stated that but for immediate medical treatment the injuries of the victim could have proved fatal and they were sufficient to cause his death. 5.During the course of investigation both the appellants were arrested. Appellant Jaikisan Uttamchand Shivaldas was arrested on 23-11-1980 and appellant Kishan Shivaldas Jethani was arrested on 24-11-80. Since they were unknown to the witnesses on the request of the prosecution they were put up for test identification. The test identification was conducted on 16-12-1990 by Madhav Bhikaji Ahire, P.W. 4 , Executive Magistrate, Ulhasnagar, in the office of the Tahsildar, Ulhasnagar. At the test identification both the appellants were identified by the victim Gaikwad P.W. 1 and the bus conductor Bhaskar Tambhe P.W. 3. During investigation some recoveries were also made at the instance of appellant Jaikisan Uttamchand Jethani but as the same have been disbelieved by the learned trial Judge for the reasons contained in paragraphs 39, 40 and 41 of the judgment, we do not propose referring to them in detail. After the usual investigation the appellants were charge-sheeted in the instant case. The case was committed to the Court of Sessions in the usual manner. In the trial Court the appellants were charged under section 307 read with 34 I.P.C. and in the alternative under section 326 read with 34 I.P.C. They pleaded not guilty to the said charges and claimed to be tried. 6.In the trial Court apart from tendering some documentary evidence prosecution examined as many as 11 witnesses. In defence no witness was examined. 6.In the trial Court apart from tendering some documentary evidence prosecution examined as many as 11 witnesses. In defence no witness was examined. The learned trial judge accepted the identification evidence and convicted and sentenced the appellants in the manner stated above. 7.We have heard Mr. S.C. Kotwal for the appellants and Mr. D.T. Palekar, A.P.P. for State. We have also perused the depositions of the witnesses, the material exhibits and the impugned judgment. We are firmly of the opinion that there is substance in this appeal and the same deserves to be allowed. 8.The learned A.P.P. does not dispute that the solitary item of evidence on which the conviction of the appellants is founded is their identification at the test parade by the victim Dattatraya Gaikwad P.W. 1 and Bhaskar Tambhe P.W. 3; the latter being the conductor of the bus. It is well settled that the evidence of identification can only be accepted as a basis for recording / sustaining conviction if it can be established that in between the period of arrest and prior to the identification the accused persons were not shown to the identifying witnesses. See A.I.R. 1961 Allahabad p. 153 (Asharfi and another v. The State )1, (Para 35). In the instant case we find that there is evidence to the converse. P.W. 3 Bhaskar Tambhe the bus conductor in his cross examination has admitted that prior to the identification he, the informant Police Constable Gaikwad and the driver were made to sit in a hotel on Gandhi Road. He further admitted that two persons were brought from Kalyan who were in custody of police and were shown to them as the persons who were to be identified. He also admitted that since they were shown to him he identified them. In view of this admission by P.W. 3 Bhaskar Tambhe in his cross examination the identification evidence appears to us to be a big farce. In our view no reliance can be placed on the same. We are surprised that despite this the learned trial Judge has chosen to convict the appellants resulting in their filing appeals in this Court way back as 1981 and the sword of democles hanging on their heads for a period of 16 years. 9.Pursuant to the above discussion this appeal is allowed. We are surprised that despite this the learned trial Judge has chosen to convict the appellants resulting in their filing appeals in this Court way back as 1981 and the sword of democles hanging on their heads for a period of 16 years. 9.Pursuant to the above discussion this appeal is allowed. The convictions and sentences of the appellants under section 307 read with 34 I.P.C. are set aside. They are acquitted of the said offence. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. Appeal allowed.