Judgment A.K. Singh, J.-In Sessions Case No. 6/94 (68/84) State vs. Ajayab Singh, the appellant was tried for offences punishable under Section 302 read with Section 34, IPC and Section 27 of the Indian Arms Act. 2. Learned District and Sessions Judge, Hanumangarh convicted the appellant under Section 302 read with Section 34, IPC and sentenced him to life imprisonment and to pay a fine of Rs. 100/-and to undergo rigorous imprisonment for one month for default in payment of fine. The appellant was acquitted of the offence punishable under Section 27 of the Indian Arms Act. 3. Feeling aggrieved by the aforesaid Judgment of the learned District and Sessions Judge, Hanumangarh the appellant has filed this appeal. 4. The prosecution case in short is that about three months before the lodging of the FIR on 28-5-1983 deceased Darshan Muni went to village Lilawali from Dhani Bakhtawarsinghwali. He set up a small hut there and started his worship. Deceased Darshan Muni was the disciple of Gun Kehar Das who was living in Makhe, Police Station, Mansa. Before his death deceased Darshan Muni was visited by a woman whose name was Surjeet Kaur alias Manjeet Kaur on three occasions. On every occasion she was accompanied by three persons and a driver. One of them was a Sikh aged about 35 years who accompanied her on all the three occasions when she went to village Lilawali to see the deceased. The remaining two persons who used to accompany Surjeet Kaur alias Manjeet Kaur did not accompany her on all the three occasions and on every occasion two diferent -persons accompanied her. Surjeet Kaur alias Manjeet Kaur used to enquire from the deceased as to how much time would be taken by him for completing his worship. The deceased used to sit near the fine for worship from 12 AM to 2 PM On 28-5-1983 at about 1.30 PM some one gave a telephonic information to the SHO of Police Station, Sangaria that in village Lilawali a Saint whose, name was Darshan Muni was murdered by three Sardars belonging to Punjab. On receiving this information the SHO Gopalram (PW. 10) started from the Police Station after making entry in the Roznamcha. On reaching village Lilawali he went to the hut of deceased Darshan Muni and there he recorded the statement of Makhan Das, a disciple of deceased. On receiving this information the SHO Gopalram (PW. 10) started from the Police Station after making entry in the Roznamcha. On reaching village Lilawali he went to the hut of deceased Darshan Muni and there he recorded the statement of Makhan Das, a disciple of deceased. The statement given by Makhan Das was used as a first information report on the basis of which the investigation was started. Makhan Das handed over a paper on which there was a writing in Punjabi language to the SHO and told that the paper was thrown by the assailants at the spot. The SHO took in custody that paper and sealed it, prepared the site . plan and the panchanama of the dead body of Darshan Muni and took samples of earth stained with blood as well as of earth not stained with blood from the scene of occurrence. He recovered 12 empties of cartridges and a bullet from the scene of occurrence and also recovered bloodstained Phawda made of wood and a gunny bag and two pieces of cloth which were stained with blood. He examined some witnesses at the spot, deputed one constable for protecting the dead body of deceased Darshan Muni and started the search of the assailants. At about 9 PM he again went to the scene of occurrence where Om Prakash, Constable submitted before him the FIR Exhibit-P- 1 on which there was a note that a case had been registered at the police station. Photographs of the scene of occurrence were taken and post mortem examination was conducted on the next day and usual investigation was conducted. It appears that on account of fear persons who could have given relevant information to the police were hesitating in coming out for giving information and in consequence the SHO of the Police Station, Sangaria could not know as to who the assailants were. On 29-7-1984 the investigation of Criminal Case No. 96 was entrusted to Bheem Singh. After completing the investigation he submitted a report under Section 173, CrPC on 29-7-1984. One Labhsingh who was alleged to be involved in the commission of offence relating to FIR No. 96 was confined in Jail, he was brought from Bhatinda Jail for interrogation and an identification parade was held before the Judicial Magistrate, Sangaria on 9-8-1984 and the said Labhsingh was identified by the witnesses. One Labhsingh who was alleged to be involved in the commission of offence relating to FIR No. 96 was confined in Jail, he was brought from Bhatinda Jail for interrogation and an identification parade was held before the Judicial Magistrate, Sangaria on 9-8-1984 and the said Labhsingh was identified by the witnesses. The charge-sheet was submitted by the police against Labhsingh on the basis of the statement of Brijlal. Appellant Ajayab Singh was arrested on 2-5-1984 by Shri Ganga Charan, Dy. Superintendent of Police, Sangaria as he was suspected to be involved in the murder of Darshan Muni. On 14-5-1984 an application was moved by the police for taking the hand-writing of the appellant and in the presence of the Magistrate the appellant’s hand-writing was taken and verified so that the same may be compared with the hand-writing used for writing that paper which was recovered from the scene of occurrence. On 15-5-1984 an identification parade was held in Sub-Jail, Hanumangarh for identifying the appellant. After completing the investigation the police submitted a report under Section 173,CrPC in the Court of Munsif and Judicial Magistrate, Sangaria against two persons Ajayab Singh (appellant) and one other person, namely Labhsingh. The appellant as well as Labhsingh were committed to the Court of Additional Sessions Judge No. 1, Hanumangarh who framed the charges against both of them under Section 302 read with Section 34, IPC and Section 27 of the Indian Arms Act. The appellant and co-accused Labhsingh pleaded not guilty to the charges. The prosecution examined Makhan Das PW. 1, Kartar Singh PW. 2, Jawahar Singh PW. 3, Brij Lal PW. 4, Balbir Singh PW. 5, Ganga Charan PW. 6, Om Prakash PW. 7, Mohanlal PW. 8, Dr. Suresh Chandra PW. 9, Gopala RamPW. 10, Bheemsingh PW. 11, Mahesh Singh PW. 12 and Bajrang Singh PW. 13 in support of its case. Co-accused Labhsingh died during the trial. Proceedings against him were dropped. The appellant was examined under Section 313, CrPC He denied the accusation and relating to his identification parade he stated that 15 days he was kept in Jail where his photographs were taken and prior to his identification before the Magistrate he was shown to the witnesses and in the village Lilawali also he was taken by the police. The appellant was examined under Section 313, CrPC He denied the accusation and relating to his identification parade he stated that 15 days he was kept in Jail where his photographs were taken and prior to his identification before the Magistrate he was shown to the witnesses and in the village Lilawali also he was taken by the police. The learned District and Sessions Judge, Hanumangarh framed two questions/points for determination:- (1) Whether the accused opened fire at Darshan Muni with the intention of causing his death on 28-5-1983 at 12.45 PM and caused his death. (2) Whether the accused possessed a sten-gun (fire arm) illegally with the object of using the same for illegal purposes. 5. During the investigation, the fire arm with which the fatal bullets were fired could not be recovered by the police. None of the witnesses named the appellant during their examination under Section 161, CrPC and during their examination in Court because the assailants were not known to them. The appellant was not arrested from, the spot. The only evidence connecting the appellant with the murder of Darshan Muni was in the form of oral evidence of Makhan Das PW. 1, Kartar Singh PW. 2 and Balbir Singh PW. 5 wh oidentified the appellant during the identification parade held in Sub-Jail, Hanumangarh on 15-5-1984 in the presence of Munsif and Judicial Magistrate, Sangaria. The learned District and Sessions Judge, Hanumangarh held that the oral statements of the 4bove named three witnesses were reliable and the test identification parade in which the appellant was identified by them was trustworthy and, therefore, it was established beyond all reasonable doubt that the appellant Ajayab Singh was one of the three assailants who opened fire at Darshan Muni with the intention of causing his death and caused his death. 6. Learned counsel for the appellant has submitted that the evidence of the above named three witnesses is not reliable and the test identification parade is not sufficient to prove that the appellant Ajayab Singh was one of the three assailants who caused the death of Darshan Muni. It is, therefore, prayed that the conviction as well as sentence imposed on the appellant is set aside and the appellant be acquitted. 7. It is, therefore, prayed that the conviction as well as sentence imposed on the appellant is set aside and the appellant be acquitted. 7. Learned Public Prosecutor has supported the Judgment of the learned District and Sessions Judge, Hanumangarh and submitted that the evidence produced by the prosecution during the trial has sufficiently proved beyond reasonable doubt that the appellant was one of the three assailants and he has rightly been convicted and sentenced under Section 302 read with Section 34, IPC. 8. It is not disputed that the deceased Darshan Muni died on account of the injuries which were found on his dead body during the post mortem examination. It is also not disputed that the fatal injuries of Darshan Muni were caused with fire arm and recovery of empties and a bullet from the scene of occurrence by the SHO who reached the spot after receiving the telephonic information is also not disputed. 9. Makhan Das PW. 1 has supported the prosecution story. According to his statement, he was a disciple of deceased Darshan Muni and used to live with him and serve him. His version is that Darshan Muni went to village Lilawali about 21/2 months before the alleged occurrence and a woman went to village Lilawali thrice in order to meet Darshan Muni. She used to be accompanied by three persons and her name was Manjeet Kaur as told by Darshan Muni. She was also known as Surjeet Kaur. The three persons who used to accompany her had beard. One of them accompanied heron all the three occasions and the remaining two companions did not accompany her on all the three occasions. She changed her two companions every time. Regarding the occurrence Makhan Das PW. 1 has deposed that at about 12 to 1 PM he along with Kartarsingh and Balbirsingh was sitting near Darshan Muni at that time three persons went there, two were armed with pistols, one was armed with sten-gun, they opened fire at the Saint and in consequence the Saint died. Makhan Das PW. 1 identified the appellant in the Court and stated that he was the person who accompanied the woman (Manjeet Kaur alias Surjeet Kaur) on all the three occasions to the village Lilawali. Makhan Das further added that as soon as the Saint received the bullet he himself escaped. Makhan Das PW. Makhan Das PW. 1 identified the appellant in the Court and stated that he was the person who accompanied the woman (Manjeet Kaur alias Surjeet Kaur) on all the three occasions to the village Lilawali. Makhan Das further added that as soon as the Saint received the bullet he himself escaped. Makhan Das PW. 1 further added that he did not witness the occurrence. He was, therefore, declared hostile by the prosecution. He admitted that he identified Ajay ab Singh during the test identification parade. He admitted that one of the two accused persons handed over a letter to Kartar Singh and that the two accused persons present at the time of examination in the Court belonging to the party of the assailants and both were armed with pistols. During the cross-examination Makhan Das PW. 1 admitted that the identification parade was held about one year after the alleged occurrence but he denied that the appellant and his co-accused were shown before the identification parade. 10. Makhandas PW. 1, Kartar Singh PW. 2 and Balbir Singh PW. 5 are also eye-witnesses of the alleged occurrence. According to them the appellant and Labhsingh and another person went to the place where Darshan Muni was sitting, one of them was armed with a sten gun and one was armed with pistol, they opened fire at the Saint and after the occurrence they left a chit of paper at the spot and all the three then left the place of occurrence. He deposed that fire was opened at the Saint twice and 12 to 13 rounds were fired. He further stated that a woman used to visit the Saint, she used to come on a car on every occasion she was accompanied by three persons and the appellant accompanied her on all the three occasions. Kartar Singh added that he identified the appellant in Jail in the presence of the Magistrate. In his cross-examination Kartar Singh PW. 2 revealed that the appellant came on foot and after the occurrence they went on foot. Kartar Singh PW. 2 is a witness who identified the appellant Ajayab Singh in Jail in an identification parade as well as in Court. In his cross-examination Kartar Singh PW. 2 revealed that the appellant came on foot and after the occurrence they went on foot. Kartar Singh PW. 2 is a witness who identified the appellant Ajayab Singh in Jail in an identification parade as well as in Court. He is the only witness whose testimony has been relied upon by the learned Sessions Judge for arriving at the conclusion that the appellant was one of the three assailants who killed Darshan Muni by opening fire at him. 11. Learned counsel for the appellant has submitted that the testimony of Makhan Das PW. 1, Kartar Singh PW. 2 and Balbir Singh PW. s in so far as they have identified the appellant is unreliable. It is submitted by the learned counsel for the appellant that the test identification parade was held more than one year after the occurrence, that the appellant was not kept Baparda after his arrest and before the holding of test identification parade, that the manner in which the appellant was arrested in this case is not only highly questionable but it suggests that the appellant was arrested by the Investigating Officer only with a view to falsely implicate him in this case. 12. Learned Public Prosecutor has, however, supported the findings of the learned Sessions Judge. 13. We have given our anxious consideration to the submissions made by the learned counsel appearing for the parties and gave due consideration to the facts and circumstances of the case. In the first information report the name of the appellant has not been disclosed. The appellant is alleged to have accompanied the woman i.e. Surjeet Kaur alias Manjeet Kaur on three occasions before the murder of Darshan Muni. But nobody appears to have made any effort to know the names and whereabouts of the persons who accompanied Surjeet Kaur alias Manjeet Kaur. Particulars about the appearance of the assailants were not given in the first information report. The firearms which were used for opening fire at the deceased have not been recovered by the police and we fail to understand as to how in the absence of any clue the appellant was arrested. Particulars about the appearance of the assailants were not given in the first information report. The firearms which were used for opening fire at the deceased have not been recovered by the police and we fail to understand as to how in the absence of any clue the appellant was arrested. In cases of this kind for the purposes of removing doubt about the circusmtances in which the investigation is conducted, it was necessary for the Investigating Officer to point out as to what prompted him to make arrest of the appellant or to point out the circumstances which led him to infer that the appellant was on the assailants. In the present case, the Investigating Officer has not cared to point out as to why he arrested the appellant in connection with the murder of Darshan Muni. In these circumstances, the submission of the learned counsel for the appellant that the appellant was arrested without any justification and with the mala fide intention of implicating him falsely in this case cannot be repelled. 14. Ganga Charan PW. 6 in his examination-in-chief stated that after the arrest of the appellant he was directed to keep himself Baparda. 15. ShriMahesh Singh PW. 12 who is a Judicial Magistrate in whose presence the test identification parade was conducted. During his cross-examination, he has stated that on 17-5-1984 he passed the order for remanding the appellant to judicial custody. That order is Exhibit-D-3 and while remanding the appellant to judicial custody no direction to keep him Baparda was given Þfn-17-5-84 ds eSus vtk;cflag eqyfte dks fjek.M fd;k Fkk ;g ckr lgh gS fd fn-17-5-84 ds esjs fjek.M ,th Mh&3 nsrs oDr eqyfte vtk;cflag dks okijnk j[kus dh fgnk;r ugh nh x; h gSß Shri Mahesh Singh PW. 12 has further admitted that at the time of identification parade the appellant had stated that he had been shown to the witnesses and a note about this statement has been given in Exhibit-P-24 which is the memo of identification proceedings. The appellant was arrested on 2-5-1984. He remained in police custody from 2-5-1984 to 17-5-1984. On 17-5-1984 he was remanded to judicial custody. On 11-5-1984 the appellant was ordered to be kept in Jail “Baparda” and identification parade was held on 15-5-1984. Thus, from 2-5-1984 to 11-5-1984 the appellant remained in police custody and during this period he could be shown to the witnesses. He remained in police custody from 2-5-1984 to 17-5-1984. On 17-5-1984 he was remanded to judicial custody. On 11-5-1984 the appellant was ordered to be kept in Jail “Baparda” and identification parade was held on 15-5-1984. Thus, from 2-5-1984 to 11-5-1984 the appellant remained in police custody and during this period he could be shown to the witnesses. In these circumstances, it cannot be ruled out that the appellant might have been shown to the witnesses at the time of arrest or during the period in custody before holding the test identification parade. Besides, the fact that the identification parade was held after more than one year renders the testimony of Makhan Das, PW. 1, Kartar Singh PW. 2 and Balbir Singh PW. 5 highly doubtful. We therefore, do not find it safe to hold that the prosecution has proved that the appellant was one of the three assailants who caused the death of Darshan Muni by opening fire at him. 16. There is no other evidence to connect the appellant with the crime. 17. In these circumstances, the appeal deserves to be allowed. The conviction as well as sentence awarded to the appellant under Section 302, IPC read with Section 34, IPC by the learned Sessions Judge. Hunumangarh is hereby set aside. The appellant shall be released forthwith from custody unless he is required in any other case.