B. K. SHARMA, J. Criminal Appeal No. 1752 of 1979 has been preferred by Shobran accused-appellant and Criminal Appeal No. 1822 of 1979 has been preferred by Rajvir Singh accused-appellant against their conviction by Sri R. K. Gupta, the then Sessions Judge, Muzaffat-nagar by his order dated 29-5-1979 in S. T. No. 307/1978 - State v. Rajvir Singh and Shobran Singh, for the offence under Section 302/34, I. P. C. for committing the murder of Dhanvir and sentencing them to imprisonment for life. Both the appeals have been heard together and being disposed of by this common judgment. 2. The information in this case was Meharban Singh PW 6 Dhanvij deceased was his son-in-law. Rajvir PW 7 was the husband of the sister of Dhanvir deceased. Ndeharban Singh, informant was resident of village Mehalki P. S. Jansath, District Muzaffarnagar. Dhanvir deceased used to live in the informants village for the last eight years before the said occurrence in his adjoining house. Rajvir PW 7 was resident of village Rahwati P. S. Hastinapur, District Meerut. Shobran Singh, accused-appellant was resident of village Mahalki, Rajvir Singh accused-appellant (not to be confused with the Rajvir PW 7, was also resident of village Rahwali P. S. Hastinapur, District Meerut. 3. Rajvir PW 7 was resident of village Rahwati P. S. Hastinapur, District Meerut. Shobran Singh, accused-appellant was resident of village Mahalki, Rajvir Singh accused-appellant (not to be confused with the Rajvir PW 7, was also resident of village Rahwali P. S. Hastinapur, District Meerut. 3. The prosecution story was that Mehraban Singh had settled the marriage of his younger daughter with Vijendra son of Muni Narain of village Ranwali and in the settlement of this marriage, Rajvir Singh accused-appellant and Shobran Singh accused-appellant had the prominant hand, that Dhauvir Singh deceased subsequently told him that there is defect in a foot of the boy (Vijendra) whereupon, he (the informant) broke the engagement, that due to this break of engagement Shobran Singh and Rajvir Singh accused persons got annoyed and came several times before the present murder to put pressure on the deceased to maintain the engagement but the deceased did not agree ; that Shobran Singh aud Rajvir Singh accused, appellants had come for this purpose one day prior to the occurrence and had gone away offering threats to the deceased that they would see ; that Rajvir PW 7 had come to the village Mehalki four days prior to the occurrence, that Shobran Singh and Rajvir Singh accused persons and Jagdish (third accused in the prosecution story who was not tried with them) came to village Mehalki, that on 30-5-1978 Rajvir PW 7 and Dhanvir deceased started on cycle for village Tikola at about 3 p. m. that they came to Meeraour where on the bus stand Hosh Rhoi and Chet Ram witnesses met them, that then all the four proceeded on cycle towards Tikola at 4 p. m. , that they were in the way at 5 p. m. , that two motor cycles came there from behind and overtook them and their drivers stopped the motor-cycles infront of them, that Rajvir Singh accused-appellant was on one motor cycle and Jagdish co-accused was driving the other motor cycle on which Shobran Singh accused-appellant was sitting behind, that Shobran Singh accused-appellant brought down the deceased from his cycle, took out Tamancha from his phent and inflicted three fire-arm injuries on his body retorting, "tujhe. RISTA CHHURANE KA MAJA CHKHATE HAIN" and threatened Rajvir PW 7 and others with death if they went ahead, that the accused-appellants and their companion Jagdish ran away riding on their motor cycles, that the deceased Dhanvir died at the spot that Rajvir PW 7 came to village Mehalki and narrated the occurrence to Meharban Singh informant whereupon. Meharban Singh PW 6 went to the police station and dictated his F. I. R. (Exb. Ka-7) to the clerk constable the same day at 7. 30 p. m. and registered a case against the accused-appellants and Jagdish co-accused under Section 302, I. P. C. 4. The investigation was taken up by S. O. Anand Prakash Vaishya. He reached the spot. The inquest proceedings were taken and the usual investigation followed. Later on Rajvir Singh accused-appellant surrendered and was put up for identification. In the identification proceedings, Hosh Ram PW 8 correctly identified Rajvir Singh accused and did not make any mistake. After concluding the investigation the I. O. submitted the charge-sheet against the present accused-appellant and the co- accused Jagdish. 5. The post mortem examination on the deadbody of the Deceased was performed by Dr. P. Sharma on 31-5-1978 at District Hospital Muzaffarnagar at 4 p. m. 6. The ocular testimony in this case was given by Rajvir PW 7, Hosh Ram PW 8 and Chet Ram PW 9. Rest of the prosecution evidence was formal in nature. In the defence, the accused-persons had examined three witnesses, Satyapal, Tejraj and Har Saran. Out of them, Satyapal and Har Saran gave evidence of alibi. 7. The learned Sessions Judge believed the prosecution story and convicted and sentenced both the accused as aforesaid hence these appeals. 8. Now it is amply established that it was a case of homicide of Dhanvir whoever might have been the assailant or assailants. There were two gun shot wounds of entry on the post part of left parietal region corresponding to which there were two gun shot wounds of exit on the right temporal region. There was another wound of entry below the left clavicle and there was its exit wound also on the right side back of chest. The skull was found fractured, the members, brain, left lung, pleura and bronchi were lacerated. The parietal and temporal bones were found fractured. Obviously, the injuries inflicted were, sufficient to cause death in the ordinary course of nature. The skull was found fractured, the members, brain, left lung, pleura and bronchi were lacerated. The parietal and temporal bones were found fractured. Obviously, the injuries inflicted were, sufficient to cause death in the ordinary course of nature. 9. The place of occurrence was fixed by the evidence of the I. O. who found the deadbody of the deceased lying in the jungle of village Putthi Ibrahimpur, P. S. Meerapur by the road side. The scene of occurrence was 3 Kms. from the police station. The I. O. had found blood at the spot near the deadbody of the deceased. The defence also does not dispute the place of occurrence. 10. According to the prosecution evidence, the occurrence took place at 5 p. m. According to the defence, the occurrence had taken place at 2 of 2. 30 p. m. witness Tejram DW 2 gave this time of occurrence claiming that he heard sound of fire and when he came to the spot where the dead body of the deceased was lying, he saw there blood. He has his chak in village Meerapur. The defence has extracted from Rajvir PW 7 in his cross-examination that in villages most of the people take their lunch at 12. 00 noon and the defence also extracted from the Autopsy Surgeon Dr. P. Sharma, PW 1 that the deceased would have taken food two to three hours prior to his death and that the death of the deceased would have been instantaneous. The defence also pointed out that the post mortem revealed the presence of semi-digested food material in the stomach (4. 55 oz.) The small and large intestines were half full. It has been argued by the defence with some justification that the occurrence would have taken place at 2. 30 p. m. or 3 p. m. on the date and not at 5 p. m. as claimed by the prosecution. 11. The prosecution story is that of a chance meeting of the deceased (and his companions) and accused-party on the road. According to Rajvir PW 7, the programme for going to Tikola was settled in village Mahalki on the date of occurrence in the morning. Shobran Singh, accused-appellant was no doubt a resident of the same village but there is nothing to show that this programme had been settled in his presence or in his hearing. According to Rajvir PW 7, the programme for going to Tikola was settled in village Mahalki on the date of occurrence in the morning. Shobran Singh, accused-appellant was no doubt a resident of the same village but there is nothing to show that this programme had been settled in his presence or in his hearing. There was also nothing on record to indicate that the accused party came to know or had opportunity to know about the programe of the deceased and Rajvir PW 7 of going to Tikola on the date of occurrence from Mehalki. Moreover, as the prosecution story reveals, they did not go straightway to Tikola but first reached Meerapur bus stand and from there started with the other witnesses Hosh Ram, PW 8 Chet Ram PW 9 and other Chet Ram in that direction. There is nothing in the evidence to show or even suggests that the accused party was chasing the deceased on the day in his way. So in all probability, it was a case of chance meeting between the deceased and the assailant or assailants and in these circumstances, it is all the more necessary that a cautious scrutiny be made of the ocular testimony about such an occurrence. 12. Now while appreciating ocular evidence in a murder trial, there are two principal considerations to be kept in mind, one is whether the presence of the witness at or near the scene of occurrence in such a situation as to be able to see and identity the assailants was probable, and the second consideration was whether there was anything improbable or unnatural in the testimony of the eye-witness. In this regard the circumstances and probabilities inherent in the situation and the inconsistencies elicited at the trial during cross-examination of prosecution witnesses or otherwise will have a material bearing on the weight to be attached to the testimony of each eye-witness. 13. In the present case, the occurrence having taken place at a road in jungle it may be said with some justification that only companions of the deceased or the passers-by could be witnesses of the occurrence. However, in such circumstances it is equally probable that there was nobody around when the occurrence took place on the road in jungle. So a cautious scrutiny of the ocular evidence of the prosecution is called for. 14. However, in such circumstances it is equally probable that there was nobody around when the occurrence took place on the road in jungle. So a cautious scrutiny of the ocular evidence of the prosecution is called for. 14. Dhanvir deceased was living in village Mehalki but Rajvir PW 7 as stated above was resident of Ranwali P. S. Hastinapur, District Meerut and in the ordinary course, he should be living at his village Ranwali. He claimed that he had come to Mehalki village four days earliest and staying there with Dhanvir deceased. In view of the relationship, he could have visited the deceased but he has not disclosed any particular occasion for visiting Dhanvir deceased and staying there during the four days preceding the date of occurrence. 15 The witness Rajvir PW 7 claimed that on the date of occurrence, he and the deceased. proceeded for Tikola. Since the deadbody of the deceased was found at the scene of occurrence, it is obvious that the deceased did go there somehow or the other but if this witness the accompanying him he must have stated at the trial in the ordinary course as to what for they were going on that road. It may be kept in mi ad here that Meharban informant PW 6 did not claim to be accompanying the deceased at the time of occurrence. In his F. I. R. Meharban Singh claimed that in the afternoon deceased Dhanvir and Rajvir PW 7 went by cycle in their relationship to meet Deep Chandra in village Tikoli but at the trial he did not say in his examination-in-chief that they were going to meet Deep Chandra in relationship. He said that they had gone to meet their Khandani. Cross-examined, he stated that the deceased and Rajvir PW 7 both had told him that they were going to the place of Chikkan in village Tikoli. He has further stated that Deep Chandra is brother of deceased and Chikkan is his younger paternal uncle. He, however, admitted that they did not tell him as to what for they were going to meet him. Rajvir PW 7 did not say anywhere in his testimony as to whose place they were going and for what work. The names of Deep Chandra and Chikkan are conspicuous by their absence in his testimony. He, however, admitted that they did not tell him as to what for they were going to meet him. Rajvir PW 7 did not say anywhere in his testimony as to whose place they were going and for what work. The names of Deep Chandra and Chikkan are conspicuous by their absence in his testimony. He claimed that they had stated at 3 p. m. and in the F. I. R. Meharban informant mentioned about their start in the afternoon but at the trial Meharban PW 6 has stated that they had left for Tilili at about 12 noon. 16. Another circumstance creating doubt on the story about his accompanying with the deceased at the scene of occurrence and having seen the occurrence that even though he was no other than husband of the sister of the deceased, he did not go to the police station to lodge the F. I, R. but instead claimed to have gone to Meharban, father-in-law of the deceased and to have informed him about what had happened. It is also significant to find from his own showing that even after meeting Meharban informant, he did not accompany Meharban informant to the police station. Instead in the prosecution story, his not going to the police station with or without Meharban informant is sought to be explained by narration in the F. I. R. by Meharban informant that he (informant) had himself directed this witness to return to the scene of occurrence where the dead body was lying. The assailants having run away from the spot on motor cycle as per prosecution story, the possibility of their returning to the scene of occurrence and taking away or temparing with the dead body of the deceased was remote. Moreover, as per prosecution story, there were others also who had seen the occurrence and were presence there. As noted above, he was husband of the real sister of the deceased and yet he has stated in his evidence that after the occurrence, he started for Mehalki (the place of Meharban informant) and he came to Meerapur and then went to Mehalki by kaccha Rasta. The police station itself was situated in Meerapur and thus if fell in his way yet he did not go to the police station to lodge the F. I. R. He claimed that he had gone to Meharban and informed him about the occurrence. The police station itself was situated in Meerapur and thus if fell in his way yet he did not go to the police station to lodge the F. I. R. He claimed that he had gone to Meharban and informed him about the occurrence. Asked the reason for not going to the police station to lodge the F. I. R. he replied, "aur NA MUJHE REPORT THANE MEN KARNE SE MATLAB THA. MERA KAM TO SIRF DHANVIR KE SASUR KO ITTELA KARNA THA. IS LIYE MAIN THANEY NAHIN GAYA. " This is highly unnatural conduct on his part. Then he has stated in his evidence that after narrated the occurrence to Meharban informant neither he asked Meharban to accompany with him (Rajvir PW 7) on his cycle to lodge the F. I. R. nor Meharban informant asked to carry him to the police station Meerapur on cycle early as the F. I. R. was to be lodged at once. Again it was unnatural conduct. The G. D. entry about the registration of the case at the police station does not mention this witness Rajvir PW 7 or indeed anybody else as accompanying the informant. It is also noteworthy that Rajvir PW 7 was not a witness in the Panchayatnama prepared by the I. O. Rajvir PW 7 admitted that he did not also ask Hosh Ram and Chet Ram eye-witnesses (at the scene of occurrence) that one of the two should go to the police station to lodge the F. I. R. (while he was going to Meharban informant in the village Mehalki to inform him about the occurrence ). This again is unnatural conduct on his part. It may also be kept in mind that he is not an injured in the occurrence. Asked as to whether the deceased had taken his food before they proceeded on cycle for Tilila, he pleaded ignorance and gave a long explanation to justify his ignorance. He said that the deceased had gone to plough his field and before he could return from the field he (Rajvir PW 7) had gone to the place of the deceaseds father-in-law Meharban informant and so he could not say whether the deceased had taken his food before both of them started for Tikola. This is yet another circumstance leading to the same inference. This is yet another circumstance leading to the same inference. Apparently, Rajvir PW 7 did not lodge the F. I R. himself and also did not accompany Meharban Dormant with the police station for lodging the F. I. R. because he had not seen the occurrence and had not even reached in the village of the informant till the time when the F. I. R. was actually lodged at the police station. 1. Rajvir PW 7 claimed that he and the deceased met Hosh Ram PW 8 and Chet Ram PW 9 and another Chet Ram witness (not examined) at the tea shop at the bus stand of Meerapur and from there all of them proceeded on cycles. As noted earlier, Rajvir PW 7 claimed that he and the deceased were going to village Tikola but Hosh Ram PW 8 did not make any mention in his evidence of going to Tikola nor Chet Ram PW 9 made any mention of going to Tikola with Rajvir PW 7 and The deceased Hosh Ram PW 8 and Chet Ram PW 9 both claimed that all of them started for Putthi and the occurrence took place when they were still one or one and half furlongs before Putthi. 18. In the F I R. there is mention of Hosh Ram P W 8 and Chet Ram PW 9 and another Chet Ram (not examined) going on cycle for their respective works. In the statement of Rajvir PW 7, there is no mention that Hosh Ram PW8, Chet Ram PW 9 and the other Chet Ram were going to Putthi. There is only a mention that after they met at the tea at the bus stand at Meerapur they started on cycle towards Tiloka the record Tikola has been mentioned as Rikola or Rikoh at different places in the evidence. 19. Hosh Ram PW 8 claimed in his examination-in-chief that he (Chet Ram PW 9 and other Chet Ram) had to go the Putthi and an of them started on cycle for Putthi. He did not stay in his examination-in- chief as to what for they were going to village Putthi. Cross-examined, he has stated that they were going to village Putthi for purchasing she-bufallow. He claimed that after reaching Meerapur at 11. He did not stay in his examination-in- chief as to what for they were going to village Putthi. Cross-examined, he has stated that they were going to village Putthi for purchasing she-bufallow. He claimed that after reaching Meerapur at 11. 30 a m. they saw she-bufallow at Meerapur and when no she-bufallow was approved as the price demanded was excessive, they started for Putthi. He stated that he purchased she-bufallow 15 days after the date of occurrence. He further stated that he had told the I. O. that it was he who needed she-bufallow. He could not give any explanation for its absence in his statement recorded by the I. O. in the case diary. From his statement it comes out that his case was that it was he who wanted to purchase she-bufallow and not his two campanions (Chet Ram PW 9 Another Chet Ram ). Chet Ram PW 9 claimed in his testimony that they had staged from the village Meerapur for purchasing she-bufallow and saw she bufallow at Meerapuf but they could not get one then Hosh Ram PW 8 said that his nephew lives in Putthi and deals in she-bufallows and he (his nephew) would get purchased the she-bufallow and that on this they came to the bus stand where the deceased and Rajvir PW 7 came there and took tea and then proceeded for Putthi on cycle. Cross-examined this witness stated that he was engaged in the business of sale and purchase of cattle. He further stated that he purchased she-bufallow one month after the date of occurrence. Now if we take the statements of these two witnesses together, it will be seen that Hosh Ram PW 8 claimed that it was he who wanted to purchase a she-bufallow and he did not make any mention that his companion Chet Ram PW 9 saw any she-bufallow for purchase and was going to Putthi for purchasing a she-bufallow. He also nowhere said that he suggested to Chet Ram PW 9 that his nephew lived in Putthi and dealt in she-bufallow and he would get a she-bufallow purchased to him (Chet Ram PW 9 ). Further Chet Ram PW 9 does not say that Hosh Ram PW 8 wanted to purchase a she- bufallow and had seen she-bufallows at Meerapur for purchase and did not find suitable one at a suitable price. Further Chet Ram PW 9 does not say that Hosh Ram PW 8 wanted to purchase a she- bufallow and had seen she-bufallows at Meerapur for purchase and did not find suitable one at a suitable price. It will thus appear that both of them have falsely tried to show that they had a genuine purpose for going to Putthi and for this reason, they joined Rajvir PW 7 and the deceased for going together and that consequently their presence at the scene of occurrence was doubtful. 20. Learned A. G. A. has placed reliance on the circumstance that the I. O. has testified to his having interrogated Rajvir PW 7 and the other eye-witnesses as well on the date of occurrence itself. One may also place on record the circumstance that in the Panchayatnama, the police officer making it had stated that he had started (sie) making it at 8 p. m. and had finished it at 9 p. m. However, the challan lash (Exb. Ka. 5) indicated that even though the time of dispatch of the sealed body for the headquarter was 9 p. m. on the date of occurrence (30-5-1978), the arrival of the deadbody at the mortuary was on the next day i. e. , 31-5-1978 at 12. 30 p. m. The corpse carrier constable 2849 Saranvir Singh PW 5 has not tried to explain in his testimony as to why this much time was taken for reaching at the Police Lines Muzaffarnagar. So as the things are nothing revolves on the circumstance that the I. O. claims to have recorded the statement of the witnesses on the date of occurrence itself. He has not stated the actual time on which he had recorded their statements. 21. We have noted earlier that the prosecution story about Rajvir PW 7 coming in the house of the deceased and going with him to the scene of occurrence and seeing the occurrence and his going to the informant to give information about the occurrence was extremely doubtful. The evidence of Hosh Ram PW 8 and Chet Ram PW 9 of their accompanying the deceased and Rajvir PW 7 in the scene of occurrence is also equally doubtful. Both of them are chance witnesses who claimed to have joined the deceased and Rajvir PW 7 at the bus stand Meerapur and accompanied them upto scene of occurrence. The evidence of Hosh Ram PW 8 and Chet Ram PW 9 of their accompanying the deceased and Rajvir PW 7 in the scene of occurrence is also equally doubtful. Both of them are chance witnesses who claimed to have joined the deceased and Rajvir PW 7 at the bus stand Meerapur and accompanied them upto scene of occurrence. As noted earlier, none of them the informant to the police station and none of them was a witness of the inquest report. 22. While Rajvir PW 7 claimed in his evidence that the total number of assailants was only three (namely Shobran. accused, Rajvir accused and Jagdish co-accused) and Shobran accused brought down the deceased from his cycle took out the Tamancha from his Phent and fire three shots on him, Hosh Ram PW 4 claimed that two motor-cycles came to the spot from behind and on each motor cycle, two persons were sitting. Thus according to him the total number of assailants was four. In his examination- in-chief, Rajvir, PW 7 did not make any mention of any scuffle between the accused persons and the deceased and apart from intercepting the deceased and the companions, no role was assigned by him to the other accused Rajvir and Jagdish. He specifically stated that Shobran accused appellant pulled down the deceased from his cycle. In his cross-examination, he changed his stand and said that it was Rajvir Singh accused who pull down the deceased from his cycle and further added that all the three accused then grasped the deceased and further said that as soon as the deceased managed to get out of their clutches, Shobran accused shot on him thrice. He claimed that all the three shots were made at once and denied that the Tamancha was refilled after firing a shot. This is somewhat strange. He did not say that the weapon was double barrel and so there was no option than to reload it for the second and the third shot. 23. He claimed that all the three shots were made at once and denied that the Tamancha was refilled after firing a shot. This is somewhat strange. He did not say that the weapon was double barrel and so there was no option than to reload it for the second and the third shot. 23. Hosh Ram P. W. 8 claimed that the deceased was caught hold by Shobran Singh and Rajvir Singh accused-appellants and grappling started and (sic) took placed between the deceased and Rajvir accused and then deceased managed to get himself released and then Shobran Singh accused fired three shots and the deceased fell and died, In his cross-examination, he stated that out of four assailants, two assailants kept on standing and neither caught the deceased nor fired. He had departed from his statement as recorded by the I O. in which only three assailants were mentioned. 24. Chet Ram, PW 9 claimed that the assailants were only three (in line with the prosecution story) but claimed that the deceased was pulled down by Shobran Singh accused and Rajvir Singh accused and Shobran Singh took out the revolver from his Phent and in the scuffle the deceased got released and then Shobran accused fired the first shot and after it he (the witnesses) his face away. He further stated that he heard the sound of three shots but did not know who fired the remaining two shots, In reply to a court question, he stated that in his presence all the three assailants had taken out their Tamanchas from their Phents and were holding their Tamanchas in their hands. He thus, suggested that the other two shots might have been fired by other two assailants. In fact, the statement of Rajvir PW 7 that all the three shots were fired and that the Tamancha was not refilled tends to show that there were three fires. All these discrepancies in the ocular evidence darkens further the grave shadow of doubts which engulfs the prosecution story. 25. The evidence of motive led by the prosecution could hardly be trusted. 26. The evidence of Meharban informant PW 5 was that the marriage of his daughter was settled with son of Muni Narain in winters before Basant Panchami and Rs. 25. The evidence of motive led by the prosecution could hardly be trusted. 26. The evidence of Meharban informant PW 5 was that the marriage of his daughter was settled with son of Muni Narain in winters before Basant Panchami and Rs. 101 was given to Muni Narain at the time and subsequently at the reporting by the deceased that, the bridegroom was having a defective foot the marriage engagement was broken. The accused have denied in their statement under Section 313, Cr. P. C. their involvement in the alleged settlement of marriage and it has been admitted by the informant Meharban in his evidence that no date of marriage had been settled and no latters about marriage has been posted in the relationship and two and half or three months before the occurrence, the deceased had gone to the house of Muni Narain, father of the boy and itold him that this marriage could not take place. The claim of Meharban informant PW 5 that the accused had taken it ill and had come several times and even one or two days prior to the occurrence to pressurise the deceased and went away giving him threats cannot be believed for the simnle reason that he (Meharban informant) himself admitted that Muni Narain with whose son the marriage was settled never came to him nor came to the deceased after the breaking of the marriage engagement. No reliance can be placed on his claim that Muni Narain had sent Rajvir Singh and Jagdish accused to the deceased. The informant of the deceased had not lodged any F. I. R at the police station about the alleged threats by the accused persons. He has made discrepant statement about the last visit of the accused persons to the deceased. In the F. I. R. he had stated that on the third day prior to the date of occurrence all three accused had come to the deceased but the deceased did not agree for the said marriage and then Shobran accused gave a threat to him, "parsom bhi yah lino Aaye they. . . . . . . . Shobran ne. . . . . . . . . . . yeh kaha ki tumne hamari izzat utar li turnkey dekhen ge. . . . . . . . Shobran ne. . . . . . . . . . . yeh kaha ki tumne hamari izzat utar li turnkey dekhen ge. " At the trial he claimed that the accused persons had come and day before the murder had gone away offering threats to the deceased. "katal se ak din pahley bhi Aaye they aur mere damad ko dhamki dekar chaley gaey they. " He was confronted with his F. I. R. but he could not gave any satisfactory explanation for the discrepancy. There is a clear distinction between yesterday and day before yesterday. 27. Har Saran DW 3 has given evidence of alibi of Shobran Singh accused that he had attended the marriage of his son Vijai Pal on the date of occurrence and Rajvir accused has placed on record the evidence of his attendance in the U. P. State Co-operative Land Development Bank Jansath on the date of occurrence where he was employed in those days. The attendance register of the bank had been produced by Satya Pal Singh the Assistant Accountant (DW 1 ). However, it is unnecessary to dilate on this evidence which prosecution evidence has crumbled into pieces beyond repair. 28. I may mention that at prosecution case, Rajvir accused was not known to Hosh Ram PW 8 from before and for this reason this accused was put up for test identification, wherein he was correctly identified by him at the identification parade dated 2-8-1978. He had been admitted to District Jail on 6- 6-1978. The identification memo was (Ext. Ka. 2 ). So these identification proceedings were held after 57 days from the date of arrest and apparently would have been of doubtful value even otherwise. Here we have already noted the inherent infirmities in the entire prosecution case due to which it has crumbled so nothing revolves here on the result of the identification proceedings in any case. 29 The learned counsel for Rajvir Singh, accused-appellant hag argued that on the prosecution evidence, Shobran accused had taken out Tamancha from his Phent all of a sudden on a chance meet with the deceased and had fired on him and so even taking the prosecution evidence as such, no criminal liability could be impinged on Rajvir Singh accused-appellant and that accordingly there was no occasion for the formation of common intention. However, it is unnecessary to dilate on the point in view of the foregoing discussion. ORDEr 30. Both the appeals are allowed. The conviction of Shobran Singh and Rajvir Singh, accused-appellants is set aside and both of them are acquitted of the offence under Section 302/34, I. P. C. They are on bail from this court. They need not surrender to it. Their bail bonds are cancelled and sureties discharged. 31. Let a copy of this judgment be sent to the Sessions Judge Muzaffarnagar within a week from today for information and compliance. Compliance report shall be submitted to this court within a month from today. Appeals allowed. .