JUDGMENT SURINDER SARUP, J.—Appellant Sohan Lal along with Harpal Singh, Sukhdev Singh and Jasbir Singh have been convicted under Section 302 read with Section 149, Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life as well as to pay a fine of Rs. 5,000/- each, in default of which to undergo further simple imprisonment for one year by the learned Sessi ns Judge, Bilaspur vide his judgment dated 2nd June, 1998. Appellant Sohan Lal filed Criminal Appeal No. 219 of 1998 against the said conviction and sentence which stands admitted. By the present application, he has applied for bail during the pendency of the appeal. 2. The facts as given in the impugned judgment are as follows. On 2nd August, 1993 at about 11.00 p.m., the police had received telephonic message that Head Constable Gurmit Singh has been killed at Majari by gun-shot. On the basis of which, the police immediately rushed to the spot and recorded the statement of Daljit Singh under Section 154, Cr.P.C. who had stated that at about 9.45 p.m. when he was standing on the road at village Dher, Gurmit Singh, Head Constable came on his scooter and he had also accompanied him to village Majari. At about 10 p.m. when they reached near the tubewell of Jasbir Singh, one Maruti Car bearing registration No. HR-01B-0610 came with four persons including the driver. Gurmit Singh, Head Constable stopped the car and shown his suspicion that they are involved in some illegal activities. The occupants of the car requested the Head Constable to allow them to go but he asked them to bring some persons from village Majari only then he will allow them to go. Two occupants of the car had gone to village Majari and after sometime the accused persons Ajmer Singh, Sukhdev Singh, Harpal Singh, sons of Amar Singh, Jasbir Singh along with one occupant of the car came in tractor with three guns in their hands and shot dead Gurmit Singh. The complainant asked the accused persons that what they did, upon which, they had replied that they have done the right thing. In the meantime, one Manjinder Singh and Kesar Singh also came at the spot and accused persons had gone back on the tractor and the occupants of the car had also gone from the spot. The complainant asked the accused persons that what they did, upon which, they had replied that they have done the right thing. In the meantime, one Manjinder Singh and Kesar Singh also came at the spot and accused persons had gone back on the tractor and the occupants of the car had also gone from the spot. On the basis of the report, a case under Sections 302/34, Indian Penal Code was registered. 3. After the investigation, the accused persons being five in number including one Arnar Singh were charged for the offence(s) punishable under Sections 147, 148, 109, 212, 302 read with Section 149, Indian Penal Code and under Sections 25, 54 and 59 of the Arms Act. They having pleaded not guilty, the trial ensued. At the trial, the prosecution examined 23 witnesses. In their statements under Section 313, Cr.P.C, the stand of the accused was that of simple denial. However, no evidence was produced by them in their defence. As already indicated above, four of the original accused including the present appellant-applicant Sohan Lal stand convicted and sentenced in the manner aforesaid while the fifth accused Amar Singh has been acquitted by the learned Sessions Judge by giving him the benefit of doubt. 4. We have heard the learned Counsel for the parties in this case at length who have also taken us through a substantial part of the evidence on the record. 5. The salient feature in so far as Sohan Lal applicant is concerned is that his name does not figure in the FIR at all. Secondly, the sole eye-witness in this case who actually saw the occurrence, as per the prosecution version, i.e. Daljit Singh PW-20 did not support the prosecution case. At the trial, he was declared hostile. In his examination-in-chief, all that he has stated about the occurrence is that about 9.30/10 p.m. on 2nd August, 1993, when he was coming along with Gurmit Singh, deceased on latters scooter towards Majari village, they saw a Maruti Car near the tube-well or Jasbir Singh, whose registration number he did not remember. Its occupant was one Sikh driver and one bulky man whom he could not recognise. The said witness, although having seen all the accused persons present in Court at the time of recording of his statement, but he could not identify any one of them. Its occupant was one Sikh driver and one bulky man whom he could not recognise. The said witness, although having seen all the accused persons present in Court at the time of recording of his statement, but he could not identify any one of them. The last sentence of his examination-in-chief is very significant that he could not say whether the carwala i.e. the occupant of the car in question, was Sohan Lal applicant. When cross-examined by the prosecution after having been declared hostile, he stated that there were five people sitting in the tractor including one Hindu gentleman of carwala. Further in his cross-examination by the prosecution, he has stated that the Hindu man who was sitting in the tractor had left the spot with the car along with his driver after the incident but he could not say whether Sohan Lal applicant was the same person. Even on being pointed out by the Public Prosecutor, this witness could not recognize Sohan Lal, applicant. 6. Out of the other witnesses upon whose testimony, the prosecution relied at the trial in so far as the case against Sohan Lal-applicant is concerned, is PW-17 Manjinder Singh. In his examination-in-chief, he has stated that deceased Gurmit Singh was his cousin. In other words, this witness is a relation of the deceased. According to him, on the date of occurrence i.e. 2nd August, 1993, at about 9/9.30 p.m. he was present in front of Gurudwara where Akhandpath was going on. He along with Kesar Singh had come there. He had seen the accused persons going towards village Dher in a tractor on the road in front of the Gurudwara. According to this witness, the tractor was being driven by Ajmer Singh and Sukhdev Singh, Jasbir Singh and Harpal Singh were sitting with guns in their hands while Sohan Lal applicant was sitting without any weapon. He heard all of them saying that they wanted to teach a lesson to Havaldar. He has also stated that Amar Singh, accused, was walking behind the tractor with a danda in his hand who was also saying that Havaldar should be taught a lesson (Amar Singh accused was acquitted by the trial Court by giving him benefit of doubt). He heard all of them saying that they wanted to teach a lesson to Havaldar. He has also stated that Amar Singh, accused, was walking behind the tractor with a danda in his hand who was also saying that Havaldar should be taught a lesson (Amar Singh accused was acquitted by the trial Court by giving him benefit of doubt). Thereafter, this witness, on hearing a gun shot, immediately rushed towards the place of occurrence and found that all the accused persons were returning on the same tractor but without Sohan Lal applicant. 7. PW-17 Manjinder Singh has not been supported or corroborated by his companion alleged to have been present at the Gurudwara at that time i.e. Kesar Singh who has been examined by the prosecution as PW-1. Straightaway he deposed that he had not gone to attend the Akhandpath in Gurudwara at Majari on 2nd August, 1993 and that he did not witness any occurrence there nor he saw any person committing murder of Gurmit Singh. On having been declared hostile he was cross-examined by the Public Prosecutor. He denied having made any statement to the police as recorded by them in the investigation of this case. He had specifically denied having seen, along with Manjinder Singh while standing outside the Gurudwara, the accused persons sitting in the tractor and crossing Gurudwara from the road side. Indeed, the cross-examination by the Public Prosecutor indicates that he has nowhere named Sohan Lal applicant even in the statement alleged to have been made by him to the police. 8. The only other witness on whose testimony the prosecution has relied is PW-2 1 Mukhvinder Singh. His version at the trial is that on 2nd August, 1993 at about 9.30/10 p.m., he was going to Anandpur Sahib on a scooter. When he reached near village Majari Gurudwara he saw a tractor going towards Dher side. Five persons were sitting in the tractor. Out of them, three were having guns. One person was driving the tractor and one Hindu man was sitting behind the driver. After some time he heard a gun shot and on reaching the spot he found a person lying dead and the tractor was returning back. He could not say who had fired the gun. This witness was also allowed to be cross-examined after declaring him hostile. After some time he heard a gun shot and on reaching the spot he found a person lying dead and the tractor was returning back. He could not say who had fired the gun. This witness was also allowed to be cross-examined after declaring him hostile. In his cross-examination, this witness no doubt has identified Sohan Lal applicant in the Court at the time of trial but he did not see Sohan Lal applicant on the tractor when it was returning fro n the spot. 9. Apart from this solitary admission of PW-21 Mukhvinder Singh which is neither supported nor corroborated by the solitary actual eye-witness of this case PW-20 Daljit Singh or PW-1 Kesar Singh who is said to have come to the spot later on, the only other witness relied upon by the prosecution at the trial is the statement of PW-10, Vijay Nand. According to him, car HR-01-B-610 stated to be involved in the occurrence was released to Tilak Raj in his presence as per orders of the Chief Judicial Magistrate, Bilaspur. In his cross-examination by the defence Counsel, he stated that he is known to Sohan Lal applicant who is his neighbour. According to him on 2nd August, 1993 and 3rd August, 1993, said Sohan Lal and the said car were in Ambala. In re-examination, permitted by the trial Court for reasons best known to it, he stated that Sohan Lal applicant is his partner and both of them are wine contractors at Ambala. The above statement of PW-10 Vijay Nand is neither here nor there in so far as the involvement of Sohan Lal applicant in the present case is concerned. 10. Apart from the above circumstances, it is not disputed that Sohan Lal applicant was released on anticipatory bail by an order of this Court during the trial which commenced in February, 1994 and concluded this month i.e. June, 1998. The very fact that Sohan Lal applicant was an accused in a serious case i.e. murder under Section 302, Indian Penal Code, still a Bench of this Court deemed it fit and proper to grant him anticipatory bail during the pendency of the trial is an important circumstance in considering whether the present prayer for bail should be granted during the pendency of the appeal. Moreover, we must record our concern at the approach of the learned Sessions Judge in this case as reflected in the impugned judgment in appeal wherein at a number of places he has placed reliance on the statement of PW-20 Daljit Singh under Section 154, Cr.P.C, which is on his Court file as Ex.PW-4/A. In this connection it needs to be stressed that the statement recorded under Section 154, Cr.P.C. is the first version of an occurrence in criminal law and sets in motion the investigative machinery. In so far as the involvement of an accused person in a given occurrence is concerned, it is not a substantive piece of evidence in basing conviction, more so in a serious case of the present type i.e. murder for an offence under Section 302, Indian Penal Code. It can be used at the trial and also for recording conviction only for the purpose of corroboration of the testimony of the witnesses examined during the course of the same or in exceptional cases for the purpose of contradicting them by the defence. 11. Lastly, the charge against original five accused persons in this case was of offence under Section 302 read with Section 149, Indian Penal Code. With the acquittal of one of the five accused i.e. Amar Singh by giving him the benefit of doubt by the trial Court in this case, the charge of having formed unlawful assembly was prima facie unsustainable, yet Sohan Lal applicant has been convicted for the substantive offence under Section 302, Indian Penal Code along with Section 149, Indian Penal Code which relates to forming of unlawful assembly by five or more persons. The learned Sessions Judge did not advert at all to that aspect of the case that in the absence of the 5th person as a co-accused in the present case, whose participation was doubtful as held by him, it is not clear whether the ingredients of common intention as envisaged under Section 34, Indian Penal Code were present in the instant case. This is yet another circumstance which vitiates the impugned judgment. 12. This is yet another circumstance which vitiates the impugned judgment. 12. The learned Advocate General has argued that if bail is granted to the .present applicant Sohan Lal, it might pave the way for allowing the bail to the other convicted persons in this case who would also challenge their conviction by filing appeals and also pray for bail before this Court during the pendency of the same. To say the least, this apprehension of the learned Advocate General is purely hypothetical and cannot be used as a reason to deny bail to the present applicant Sohan Lal, when, in fact, due to the circumstances and facts enumerated above, a case has been made out for enlarging him on bail. 13. Before parting with this order, it may be mentioned that we are conscious of the fact that if a person is convicted of a serious offence like murder, grant of bail to him is an exception rather than a rule but that does not mean that this exception cannot be exercised by the appellate Court, as in the present case, when circumstances justify the grant of bail which are patently apparent on the record herein. To adopt the opposite course would mean depriving a citizen of his right of liberty enshrined in the Constitution of this country. We make it clear, however, that nothing contained in this order shall be deemed as an expression on the merits of the case of Sohan Lal which shall be decided in the appeal. 14. For the reasons recorded above, we allow Sohan Lal appellant/ applicant bail on his furnishing personal bonds in the sum of Rs. 30,000/- with two sureties in the like amount to the satisfaction of the Registrar General of this Court. Paper books of the appeal be prepared and the same be listed for hearing within three months. This application stands disposed of. Petition allowed.