JUDGMENT 1. - This is an appeal under section 374(2) Cr.RC. from the judgment and order dated May 25, 1996 made in Sessions Case No. 16/95 whereby the learned Additional Sessions Judge Malpura, Distt. Tonk, held the appellant guilty of the offence under section 302 r/w. Section 34 IPC, convicted him as such and sentenced him to imprisonment for life and fine of Rs. 1,000/-. 2. Facts, relevant and sufficient to dispose of the present appeal, may shortly be stated thus : 3. On December 13, 1994 Radhey Shyam deceased had gone to Malpura from Diggi to participate in the marriage of the daughter of PW 12 Jagdish Prasad Soni. After having attended the marriage function when he and his cousin, PW 5 Bal Kishan, were returning at about 9.00 p.m. and had reached the turning point of the Paniharon Ki Gali, two boys, one clad in black clothes and the other in white ones, came from behind. They stabbed.the deceased and caused injuries to Bal Kishan with knives and ran away. Bal Kishan and some other persons who had reached there by then lifted Radhey Shyam, who had fallen and took him to Azad Chowk wherefrom he was taken to the local Hospital. 4. At 9.00 p.m., PW 29 Nirmal Singh, the Station House Officer Police Station Malpura received a telephonic message regarding the incident. He made a report in the General Diary (Ex.P. 21) and left for the reported place of incident. On his way to the place of occurrence he was informed that the. injured persons had been taken to the local Hospital. Nirmal Singh, SHO, therefore, reached the hospital and came to know from the Doctor that Radhey Shyam had died. PW 5 Bal Kishan delivered a written report of the incident (Ex.P 2) to the SHO who forwarded the same to the Police Station for registration of a case. At the police station PW 27 Sumer Singh, Head Constable, registered Crime No. 233/94, under section 302, 323 IPC against 'unknown' persons and sent the FIR (Ex.R 2/Ex.P 18) to the SHO. Nirmal Singh, SHO, commenced the usual investigation. On inspection of the alleged place of occurrence he noticed no blood stains near the turning point of Pinaron Ki Gali. Blood was however seen at a distance of about 200 feet in the east from the turning point of the 'gali'. Nirmal Singh, SHO, commenced the usual investigation. On inspection of the alleged place of occurrence he noticed no blood stains near the turning point of Pinaron Ki Gali. Blood was however seen at a distance of about 200 feet in the east from the turning point of the 'gali'. Nirmal Singh seized clothes and blood stained soil from that place and prepared the site map Ex.R 3 on 14.12.1994 at 8.30 p.m. 5. PW 29 Nirmal Singh, SHO arrested the appellant on 23.3.95 at 2.30 p.m. vide arrest memo Ex.P 13 at the Truck Stand, Malpura. The appellant was the resident of that town living in Ward No. 7 Dada Bari Road. He was, on the request of the Investigating Officer, remanded to police custody for ten days to be kept 'ba-purda' as he was to be put up before the Test Identification Parade later on for identification purposes. While in police custody the appellant is alleged to have given an information under section 27 of the Indian Evidence Act to the effect that he would point out at the place where he and one Imran had stabbed the deceased. This information was reduced to writing and proved as Ex.R 23. 6. The appellant is stated to have given a further information (Ex.R 22) on the same day regarding the weapon of offence used in the commission of the crime and the clothes which he was putting on at the time of the commission of the offence. On such information a dagger with a sheath and a blood stained pent were recovered from inside a bundle, hidden under the beddings in his house. Those were duly seized and sealed by the SHO. On his examination of these articles Asstt. Director Serology, State Forensic Science Laboratory, Rajasthan Jaipur found no blood on the dagger and the sheath. Human blood was, however, found on the pent, though the group thereof could not be ascertained (Ex.R 25). 7. At the test identification parade, held on 6.4.95 by PW 33 Sri. Ravi Kumar Gupta, Magistrate, at the Jail premises at Tonk PW 5 Bai Krishan correctly identified the appellant as one of the two assailants of Radhey Shyam deceased. 8. After having completed the investigation in the manner stated above the police submitted a report under section 173(2) Cr.RC. against the present appellant. Ravi Kumar Gupta, Magistrate, at the Jail premises at Tonk PW 5 Bai Krishan correctly identified the appellant as one of the two assailants of Radhey Shyam deceased. 8. After having completed the investigation in the manner stated above the police submitted a report under section 173(2) Cr.RC. against the present appellant. The alleged co-accused, Imran, was reported to be at large and, therefore, investigation was kept pending against him under section 173(8) Cr.PC. 9. After committal of the case to him, the learned Addl. Sessions Judge put the appellant on trial on the charge under section 302/34 IPC. The prosecution examined as many as 33 witnesses to bring the charge home to the appellant. The appellant too examined five witnesses in his defence in support of the defence plea to the effect that the appellant was very much well known to PW 5 Bal Kishan much before the incident, that he remained in the town through the period of about three months after the incident, that during the meanwhile the police had detained several persons in connection with the murder of Radhey Shyam, deceased, that the atmosphere in the town having become surcharged with communal feelings the appellant was made a scape-goat in the case that after his arrest he was shown to Bal Kishan at the police station and that he has been falsely implicated in the present case. The learned Sessions Judge believed the prosecution case and evidence in support of that and held that the evidence adduced by the prosecution to prove the charge against the appellant was sufficient and reliable to hold him guilty of the murder of Radhey Shyam deceased, in particular the learned trial Judge held that Bal Kishan had sufficient opportunity in the electric light and moonlight at the time of occurrence to identify the appellant as one of the assailants of the deceased and that his testimony on the point was acceptable. The learned Session Judge further held that though no blood stains were observed and found on the dagger and the sheath yet that state of those articles and their discovery at the instance of and possession from the appellant along with the blood stained pent afforded good corroboration to the testimony of Bal Kishan and may be relied upon to convict the appellant for the offence under section 302/34 IPC. Holding thus the learned trial Judge convicted and sentenced the appellant in the manner stated above. 10. Before us Mr. N.A. Naqvi,the learned counsel for the appellant, did not challenge the prosecution story to the effect that while returning from the marriage function held at the house of Jagdish Soni in the early hours of the fateful night, PW 5 Bal Kishan and Radhey Shyam deceased were caused injuries with sharp-edged weapons by two persons, who had come from behind and that Radhey Shyam had succumbed to the injuries so sustained by him. On examining the testimonies of PW 1 Virnal Kumar, PW 2 Om Prakash, PW 6 Govind Narain, PW 7 Bharat Kumar, PW 8 Shatrughan, PW 9 Amar Chand, the Punch witnesses, PW 3 Sunil Kumar, PW 4 Devi Lal, PW 10 Ram Avtar, PW 11 Mangi Lal, PW 15 Shambhoo Dayal, PW 17 Ganga Ram and PW 5 Bal Kishan, the witnesses who were examined to depose about the occurrence and a few them were examined as eye- witnesses but they turned hostile and others stated to have reached the place of occurrence after the incident or saw the deceased with injuries on his person at the hospital, we feel satisfied that inside the gali the deceased and PW 5 Balkishan had been assaulted with sharp- edged weapons by two boys and that Radhey Shyam deceased had succumbed to his injuries soon after the occurrence. We may add that though PW 11 Mangi Lal, PW 15 Shambhoo Dayal, PW 17 Ganga Ram, PW 25 Kanhaya Lal and PW Madan Lal, who appear to have been examined as eye-witnesses in the case but who turned hostile, too supported the prosecution witnesses did take place during the early hours of the unfortunate night and in such incident Radhey Shyam deceased had sustained fatal injuries and PW 5 Bal Kishan simple injuries with sharp-edged weapons. This oral evidence on the point gets ample support and corroboration from the testimony of PW 23 Dr. This oral evidence on the point gets ample support and corroboration from the testimony of PW 23 Dr. Rakesh Jain who examined Balkishan (17) at 10.00 p.m. on 13.12.94 itself and found one incised wound on the left palm and the other on the right thumb of the witness and on examining the dead body of the deceased on the following day noticed one stab wound on chest, left side, 1" below the nipple, one stab wound 1" x ⅛" x visra deep on abdominal valve just below the left costal margins and one stab wound 1.5" x ⅙" x visra deep on the lower part of sternum. On opening the body of the deceased the left vehicle of the heart, lower part of left lung and abdominal part were found ruptured. In the opinion of Dr. Jain and his colleague PW 24 Dr. Arjun Dass the injuries sustained by the deceased had led to his death and we accept such opinion of the two expert witnesses. The rupture of the heart and lung and injury to the abdominal part were sufficient in the ordinary course of nature to cause death of a person and the deceased had died as a result of such injuries. Therefore, unless some mitigating circumstances are noticed in the case minimising the gravity of the nature of the offence committed against Radhey Shyam deceased, we see no infirmity in the finding of the learned trial Judge that Radhey Shyam had died a death by violence and that in his death the offence of culpable homicide amounting to murder punishable under section 302 IPC was committed. 11. Mr. Naqvi, however, urged that the conviction of the appellant has been based on the sole testimony of PW 5 Bal Kishan which, according to the learned counsel, was not at all trust-worthy and reliable against the present appellant in the facts and circumstances of the case, established on the record of the case. The learned counsel pointed out that not only that Bal Kishan was closely related to the deceased and was himself an injured witness but also that due to insufficient light at the relevant time at the alleged place of occurrence he had no sufficient opportunity to identify the assailants of himself and Radhey Shyam deceased. 12. It was also stressed by Mr. 12. It was also stressed by Mr. Naqvi that being resident of the same place the appellant was very much well known to the witness from before and had the appellant been the assailant of the witness and the deceased, Bal Kishan had no reasons at all not to have named him as such in the FIR which was undisputed lodged soon after the occurrence. Mr. Naqvi highlighted the fact that though the appellant was very much there in the small township for all the long three months after the occurrence yet he was never arrested or called at the police station during that period while others were called, interrogated and released but all of a sudden he was booked under pressure from extraneous quarters. 13. Assailing the testimony of the witness on his identification of the appellant at the test identification parade during the investigation and thereafter at the trial, the learned counsel further urged that the evidence to that effect was hopelessly untrustworthy and un-reliable for the,simple reason that the witness knew the appellant from before and in any case the identification had been held much after the arrest of the appellant after having kept him at the police station and showing him to the witness. In this behalf the learned counsel made reference to the statement of the appellant as recorded by the Magistrate in the identification (Ex.P. 28), besides Magistrate's own observation regarding the conduct of the witness. Mr. Naqvi thus submitted that PW 5 Bal Kishan was an unreliable witness in so far as his testimony regarding the complicity of the present appellant in the commission of the distardly and cowardly crime against the deceased in this case, was concerned. Mr. Naqvi relied upon the cases of Ram Pukar Thakur, (AIR 1974 SC 234) and State of Rajasthan v. Bhola Singh, ( AIR 1994 SC 542 ) . 14. Mr. R.S. Agrawal, the learned Public Prosecutor, on the other hand urged that conviction of an accused may be safely based on the sole testimony of a single witness and the learned trial Judge had committed no error in law in convicting the present appellant on the basis of the testimony of PW 5 Bal Kishan who was undisputedly an eye- witness to the occurrence in this case. Mr. Mr. Agrawala further submitted that the evidence of discovery and recovery of the weapon of assault and his blood stained pent from his house and from his possession, supported the occular evidence of the sole witness in this case and therefore, he has rightly been believed by the learned trial Judge for holding the appellant guilty. 15. After having given our thoughtful consideration to the arguments advanced by the learned counsel for the parties before us and on thorough examination of the evidence on record in the light of the facts and circumstances attending upon the commission of the crime against the deceased and Bal Kishan in the present case, we are of the opinion that it would be highly unsafe to sustain the conviction and sentence of the appellant in this case. 16. We fully agree with Mr. Agrawala that in our system of administration of criminal justice we do not go, unlike the approach adopted in some British statutes, by the quantity and volume of evidence. In our system we go by the quality instead of quantity of the evidence. It is the worth and value of the evidence and not its bulk and volume that dictates judicial decisions in our system of dispensation of justice. If the evidence of a sole witness incriminates the accused and establishes his complicity in the commission of the crime against the victim and such evidence is of sterling worth, there can by no impediment in making the same as basis for the conviction of the accused. This solitary principle has been given due statutory recognition in Section 134 of the Indian Evidence Act. Therefore, if on close examination of the testimony of PW 5 Bal Kishan, who is undisputedly the sole eye-witness in the present case as all other persons examined as eye-witnesses have turned hostile and they did not support the prosecution case qua the present appellant, it can legitimately and legally be concluded that he is a witness of sterling worth and his testimony does not suffer from any infirmity, the appellant may be adjudged as one of the perpetrators of the distardly crime, committed against Radhey Shyam, deceased. Let us examine. 17. There is no denial to the fact that PW 5 Bal Kishan and the present appellant are resident of the same township, Malpura, which is a Sub-Divisional Head Quarter. Let us examine. 17. There is no denial to the fact that PW 5 Bal Kishan and the present appellant are resident of the same township, Malpura, which is a Sub-Divisional Head Quarter. Whereas PW 5 Bal Kishan is the resident of Ward No. 6 (as mentioned in the note of the police officer, recorded in the FIR Ex.P 2) the appellant is the resident of Ward No. 7 as mentioned in his arrest Memo (Ex.R 13). Mank Chowk, wherein the witness resided, lies in Ward No. 6 and Dada Bari, wherein the appellant resided, lies in Ward No. 7. On being cross-examined PW 5 admitted that he had seen the appellant in the bazar about one month before the occurrence. He stated that he was a visitor to the temple, situated in Dada Bari and that he had visited such temple a few days before the occurrence also. Though he denied that he did not see the appellant passing through the lane and going to his school and also to have witnessed the appellant visiting the house of his friend, Satish, which lay just opposite to his (witness's) own yet the closeness of the two Wards to each others and the witness being a visitor to the temple situate in Dada Bari, probabilises the possibility of his knowing the appellant from before the occurring of the incident, particularly when Malpura was not a big city or town. This probability is relevant to the appreciation of the probative value of the testimony of the witness on the identification of the appellant by him. However, before we do that it is worthwhile to have a look at the alleged place of occurrence and facts situated and found threat along with the availability of sufficient light and opportunity to the witness to enable him to identify the assailants of himself and of the deceased. 18. As stated earlier, the place of occurrence was stated to be a place where the 'Pinaron Ki Gali' took a turn to the left in the east. This place was marked 'A' in the site map, Ex.P 3. At a distance of about 15 feet from that place, there was an electric pole with the electric bulb thereon. This Pole should be there as that was the turning point of the gali. This place was marked 'A' in the site map, Ex.P 3. At a distance of about 15 feet from that place, there was an electric pole with the electric bulb thereon. This Pole should be there as that was the turning point of the gali. The witness and the deceased had proceeded in the eastern direction and the two assailants are stated to have come from their behind. Since the witness and the deceased had their backs towards the electric Pole, the witness did not have the benefit of the direct light of the electric bulb on the pole on the face of the assailants and could have committed mistake of identity of the assailants particularly when the assault had preceded no exchange of any words between the two sides and the assailants had taken to their heels instantly after having violently assaulted their victims. That would be the position when it is admitted or accepted that the occurrence did take place at point 'A' in Ex.R 3 and the electric light of the bulb on the pole was there, though PW 4 Devi Lal, PW 10 Ram Avtar affirmatively stated that there was an electric failure at about the relevant time and that there was darkness in the gali. 19. That apart, PW 29 Nirmal Singh, SHO, who had inspected the place of occurrence on the following morning and prepared the site map Ex.R 3 categorically stated that he found no blood present at point A' or near about that, instead, he had found a pool of blood at point 'B', a place about 200 feet further away in the east from point 'A', meaning thereby that the dim light of the electric bulb on the electric pole on or about point 'A' had become much less at point 'B'. Assuming that it was a moonlit night, as stated by Sri. Agrawala that it was the 'Dashmi' of the Shukia Paksh, such light even was not sufficient enough for identification of the appellant by Bal Kishan in those moments of great haste and hurry. 20. Assuming that it was a moonlit night, as stated by Sri. Agrawala that it was the 'Dashmi' of the Shukia Paksh, such light even was not sufficient enough for identification of the appellant by Bal Kishan in those moments of great haste and hurry. 20. Taking into consideration all the above mentioned facts and circumstances, naturally attending upon the commission of the crime in this case, it is not free from doubt to hold that the occurrence had taken place at point 'A' near the electric pole and that Bai Kishan had been able to identify the assailants in the dim and insufficient light of the electric bulb on the pole and/or in the moon light. 21. Coming now to the worth and value of the evidence on identification of the appellant by Bal Kishan in the test identification parade and at the trial, we find that there is no evidence to suggest that the appellant had either left or absconded from his normal place of living. During the long period, extending over more than three months, PW 5 Bal Kishan could have more than sufficient occasions and opportunity to have seen the appellant in the town particularly when the witness himself was a visitor to the temple in the Mohallah of the appellant and eager enough to go to the police station, at least on four or five times, to know about the progress of the case or to assist the investigation. The delayed arrest of the appellant, and the factural events taking place subsequent to his arrest and having direct bearing upon the worth and value of the evidence on the point of identification, cannot be overlooked. 22. Undisputedly, after his arrest, the appellant was produced before the Magistrate after about 24 hours during which period he was kept at the police station, may be 'Ba-purda'. But on the following day he was remanded to police custody for ten days at the request of the investigating officer. During that period two in formations are stated to have been obtained from the appellant on 29.3.95. Obviously, the appeilant was taken to the place of occurrence and also to his own house from the police station to discover the facts allegedly to be known as per his information. During that period two in formations are stated to have been obtained from the appellant on 29.3.95. Obviously, the appeilant was taken to the place of occurrence and also to his own house from the police station to discover the facts allegedly to be known as per his information. As is gathered from the statement of the Investigating Officer, the case had already taken a political and/or communal colour and the public was pressing hard for the arrest of the perpetrator of the crime against Radhey Shyam deceased. It may, therefore, reasonably be inferred that on and after the arrest of the appellant by the police on 23.3.95, a good number of people, including Bal Kishan would have rushed to the police station. Bal Kishan thus had all the opportunity of seeing the arrested person, namely the present appellant, at the police station. It is really very surprising that the Investigating Officer had prayed for a police remand of the appellant after his arrest, though he was to be got identified by Bal Kishan at a test identification parade as the assailant of Bal Kishan and Radhey Shyam deceased were not named in the FIR. As a rule of care and caution and as per usual practice in such cases, the appellant should have first been remanded to judicial custody in police remand and after holding the identification parade he should have been obtained in police custody on police remand. There were no reasons to record departure from such a practice which is generally adopted in such cases in order to enhance the corroborative evidentiary value of the evidence of test identification parade. It should have been appreciated by the investigating Officer as well as the Magistrate that no doubt the evidence of test identification parade has corroborative value only but even such being the worth and value of such evidence it has a very vital role to play in criminal trials involving heinous offences and goes a long way to afford reliable corroboration to the substantive evidence on identification which comes on the record of a case through the evidence led by the witness on oath at the trial of the accused. Any infirmity in getting the evidence of test identification would adversely affect and greatly minimise its corroborative value at the trial. Any infirmity in getting the evidence of test identification would adversely affect and greatly minimise its corroborative value at the trial. In the present case it would not be explained by the learned Public Prosecutor as to why the normal procedure for obtaining the evidence of High corroborative value was departed from. The probability of the appellant having been shown to Bal Kishan at the police station gets increased when we note the observation made by PW 23 Ravi Kumar Gupta, Magistrate, made in the identification memo and as stated on oath by him at the trial and which is to the effect that no sooner the witness had made entry into the place where the parade was being held, he (the witness) had pointed out at the appellant as being one of the assailants. Such an spontaneous behaviour of the witness in instantaneously identifying the appellant even before being asked or required to do so or having obtained sufficient time and opportunity of recollecting the features of the person whom he had seen in great moments of horror, haste and hurry reasonably suggests that he either knew the appellant from before or he was given time and opportunity to see the accused-appellant prior to being asked to identify him at the test identification parade. 23. In the totality of the circumstances attending upon the evidence of identification of the appellant by Bal Kishan either at the test identification parade in the course of the investigation, or at the trial of the appellant, we hold that Bal Kishan's evidence on identification of the appellant, is not trustworthy and reliable and it would be too unsafe to make his sole testimony on the point the basis of convicting the appellant for causing death of Radhey Shyam deceased and/or causing hurt to RW. 6 Bal Kishan. 24. The other piece of incriminating evidence of recovery of the weapon of assault and the blood stained pent of the appellant from his possession at his instance is also at no better footing. The same may be rejected outright on more than one grounds. The place of occurrence which was allegedly pointed out by the appellant was already known not only to the prosecution witnesses, the police but also to the public at large. The same may be rejected outright on more than one grounds. The place of occurrence which was allegedly pointed out by the appellant was already known not only to the prosecution witnesses, the police but also to the public at large. The investigating officer had not only prepared the site map of that place on 14.12.94 (Ex.R 3) but had also allegedly seized control and the blood stained soil from that place, though, curiously enough, the control and/or the blood stained soil collected from the place of occurrence at point 'B' was not forwarded to the F.S.L. for chemical analysis. When the police already knew the place of occurrence no fact can be stated to have been discovered in consequence of the information furnished by the appellant. That evidence is thus wholly irrelevant besides being inadmissible for the same containing the confessional statement of the appellant in it. 25. In so far as the information relating to the discovery of the dagger and the pant is concerned, it is an undisputed fact that neither the dagger nor the sheath, containing the same was reported to be stained with blood. At the time of their alleged recovery from inside a bundle under the beddings Nirmal Singh SHO had noticed that the dagger had been washed away. Under such circumstances, the approach of the learned trial Judge in attaching any evidentiary value to the recovery of the dagger along with the sheath was wholly incorrect and bad in law. The presence of human blood on some part of the pant wherein the dagger with the sheath was found roiled in was not at ail enough to hold that either the dagger or the pant or both individually or collectively connected the possessor thereof with the murder of Radhey Shyam. Apart From the fact that the recovery had been effected after a lapse of much time giving all the opportunity to the possessor to wash away the blood stains, if any and if at , from the pant as well when he was vigilant enough to wash away the blood stains from the dagger and his not behaving in that normal and prudent manner in washing the blood stains on the pant also, would be quite and abnormal and un-natural conduct of a guilty person. The very evidence that the appellant would keep those articles in a bundle under his bedding for three long months is quite unbelievable. Above ail, PW 27 Sumer Singh, Head Constable In-Charge Malkhana at Police Station Malpura could not tell as to when those articles were delivered to him by Nirmal Singh, SHO, for safe custody. It is really surprising that no date of the deposit of those articles in the Malkhana was mentioned even in the relevant memos Ex.R 19 and Ex.R 20. It is further surprising that though the alleged articles were recovered and seized on 29/30.3.95, those were forwarded for chemical analysis as late as on 15/16.6.95. All these facts taken together rob the evidence on the point of recovery of the alleged dagger, sheath and pant from the possession of the appellant and on his instance, of the element of truth and reliability therein. 26. The discussion made here in above takes us to hold that neither the sole testimony of PW 5 Bal Kishan against the appellant nor the evidence on recovery of the dagger, the sheath and pant inspire confidence in us. Such evidence is wholly unreliable and untrustworthy and the learned Addl. Sessions Judge erred in law and on fact in relying upon such evidence for holding the appellant guilty of the offence under section 302/34 IPC. We accordingly hold that the prosecution failed to prove the charge under that provision against the appellant and, therefore, he is entitled to acquittal. 27. In the result, the judgment and order under appeal are hereby set-aside and the appellant acquitted of the offence Under section 302 r.w. Section 34 IPC. He shall be released forthwith, if not wanted in any other case. 28. The appeal stands allowed. *******