Judgment Harjit Singh Bedi, J. 1. Crl. Appeal No. 504-DB of 1995 and Crl. Appeal No. 514-DB of 1996 are being disposed of together as these arise out of the following facts : 2. On 25.9.1989, Prem Chand (deceased) was sleeping in the fields whereas his wife Neelam Rani (deceased), daughter Mamta aged 15 years and son Sanjiv Kumar, who was aged about 8 years, were sleeping in the Deodi of the house of in village Gharachon, when two persons wearing white shirts and trousers trespassed into the house at about 1.00 a.m. They demanded the keys of the cupboard from Neelam Rani but she told them that they were not with her. The two intruders the tried to remove the television set but could not do so. Neelam Rani ran out to call Prem Chand but she was shot at by one of the three persons who was armed with a shotgun. Prem Chand got up to rescue his wife but he, too, was shot dead. The three intruders then ran away from the spot firing from their guns into the fair. Sanjay Kumar, thereafter, climbed up to the roof top and raised an alarm, on which, Gurnam Singh, Hardial Singh and Virender Singh reached the spot and were told as to what had transpired. Sanjiv Kumar, accompanied by some of the Villagers thereafter left for Police Station, Bhawanigarh, but he met a police party headed by Sub-Inspector Teja Singh at the bus stand of the village and made his statement Exhibit PK to him at about 4.15 a.m on 25.9.1989 and, on its basis, the formal first information report was registered fifteen minutes later and the special report delivered to the Illaqa Village Magistrate at Sangrur at 9.30 a.m, the same morning. In the first information report, Sanjiv Kumar gave a description of the three assailants and stated that he could identify them if they were shown to him. On the completion of the investigation, a challan was filed against the two accused for an offence punishable under section 460 of the Indian Penal Code and as they pleaded not guilty, were brought to trial. 3. In support of its case, the prosecution relied on the evidence of P.W. 1 Dr. On the completion of the investigation, a challan was filed against the two accused for an offence punishable under section 460 of the Indian Penal Code and as they pleaded not guilty, were brought to trial. 3. In support of its case, the prosecution relied on the evidence of P.W. 1 Dr. Sukhdev Raj Goyal who had conducted the post mortem on the dead bodies of the two deceased on 25.9.1989 and had found that they had been injured by firing from a shotgun; the two eye-witnesses P.W. 8 Mamta Rani and P.W. 4 Sanjiv Kumar who stated that they had heard 2/3 shots being fired a short while after the assailants had run away from their house and had also identified the two accused for the first time in Court; P.W. 8 Hardial Singh who stated that yet another unidentified body had been found from his fields on the night of the occurrence, the inference drawn being that this person too had been shot by the two assailants as they had attempted to run away; P.W. 10 Gurmail Singh who stated that about 5-3/4 years earlier at about 5.00 a.m. he had been present at the bus stand, Gharachon when both the accused who were brothers and known to him had come from the side of the fields and that he had over-heard them saying that they were going to loot the house of Prem Chand Pandit and it was thereafter that he had learnt that Prem Cahnd and his wife and been murdered and that he had subsequently inform the police as to what had transpired, P.W. 11 Inspector Teja Singh, the investigating officer, who had recovered an empty bottle and six fired shotgun cases from the place of occurrence and one fired case from the fields where the unidentified dead-body had been found; and P.W. 12 Shri J.S. Sadhrao Tehsildar, Faridkot who stated that the finger prints of both the accused and the foot moulds of Balmukand accused had been taken in his presence. The prosecution story was then put to the accused and they denied the allegations against them and pleaded false implication. 4. The prosecution story was then put to the accused and they denied the allegations against them and pleaded false implication. 4. The trial Court examined the matter and observed that the two eye- witnesses, though children, had stood the test of a lengthy cross-examination without blemish and, as the two murders had been committed in their residence, their presence at the spot was absolutely natural. The Court also observed that it had come in the prosecution evidence that the shots had been fired at the two deceased from a short distance and, as such, the blackening around the wounds of entry clearly supported that version. It was further held that the minor discrepancies in the evidence of the witnesses were to be ignored as their evidence had been recorded after a long lapse of time. The Court, however, noted that Hardial Singh (P.W. 8) who was also a witness of importance had been declared hostile and, as such, his evidence could not be relied upon. The Court also concluded that Inspector Teja Singh (P.W. 11) had recorded the first information report at the stipulated time and had also lifted the empty cartridge cases from the place of incident and also the foot moulds of the accused, but these two items could not be connected with the crime, as the weapons of offence had not been recovered and the foot moulds did not match with those taken before the Naib Tehsildar. The court also noted with regret that Inspector Gurdev Singh, who had conducted the investigation, had not appeared as a prosecution witness. The Court finally held that the accused had not been subjected to an identification parade, was of no consequence as it had been noted in the order of the Additional Chief Judicial Magistrate, Sangrur, dated 15.12.1989, exhibited as Exhibit C-1 in Court on the day of judgment, that the two accused had stated that they had not been willing to join an identification parade. The trial Court accordingly convicted the accused for the offence charged and sentenced them to undergo imprisonment for life and also to pay a fine Rs. 15,000/- each, and in default of payment thereof, to undergo further R.I., for one year each. Hence these appeals. 5. Mr. The trial Court accordingly convicted the accused for the offence charged and sentenced them to undergo imprisonment for life and also to pay a fine Rs. 15,000/- each, and in default of payment thereof, to undergo further R.I., for one year each. Hence these appeals. 5. Mr. R.S. Ghai, the learned Senior Advocate, appearing for the appellants- accused has, first and foremost, argued that the entire case would hinge on the fact as to whether the two accused had been properly identified as the true assailants. He has urged that but for the solitary identification of the two accused made in Court by the two witnesses, Mamta Rani and Sanjiv Kumar (P.Ws. 3 and 4) some 3-1/2 years after the incident, there was no corroborating circumstance to connect the accused with the crime. He has pointed out that the weapon of offence had not been recovered and, as such, the cartridge cases picked up from the spot could not be connected and in view of the fact that Inspector Gurdev Singh who was the primary investigating officer had not put in appearance as a prosecution witness, clearly prejudiced the accused as it was not possible to ascertain the circumstances in which the two accused had been identified as the assailants. 6. As against this, Mr. Randhawa, the learned Deputy Advocate General, has pointed out that the identification parade could not be held as was noted by the Additional Chief Judicial Magistrate in his Order dated 15.12.1989, wherein it had been recorded that the two accused had refused to join the identification parade. He has pointed out that there was absolutely no reason to disbelieve the two young children who had witnessed the brutal slaying of their parents. 7. We have gone through the evidence with the help of the learned counsel for the parties. We find that the identification of the two accused is clearly suspect. It is to be noted that in the first information report, a vague description of the three assailants had been given, but we find that such a description could fit almost any person belonging to this area. We find that the identification of the two accused is clearly suspect. It is to be noted that in the first information report, a vague description of the three assailants had been given, but we find that such a description could fit almost any person belonging to this area. We also find that the recoveries effected from the place of incident which could have provided a corroborating circumstance to connect the accused with the crime is also lacking, and that the foot prints found at the scene and which were preserved by way of moulds did not match with the specimens taken in the presence of P.W. 12 Sh. J.S. Sadhrao, Tehsildar. Like-wise, we find that though the finger-prints impression of the two accused were taken in the presence of the said Tehsildar, they could not be matched with any of the finger-prints found at the spot. Substantial corroboration could have been found by the prosecution from the seven empty cartridge cases picked up after the incident - six from the Deodi of the house in which Prem Chand and Neelam Rani had been killed and one from where the unidentified body was picked up and if they had been matched with the murder weapon, but as no weapon had been recovered, this too was lacking. We also find that the evidence of P.W. 10 Gurmail Singh that he had over-heard the accused plotting the murder to be inherently improbable. 8. In these circumstances, the only evidence to connect the accused with the crime was the identification made in Court by the two eye-witnesses, 3-1/2 years after the said incident. As held by the Honble Supreme Court in V.C. Shukla v. State of Maharashtra, AIR 1980 S.C. 1382, this identification alone cannot form the basis of conviction. It is true as has been contended by Mr. Randhawa, that it had been noted in the order of the Additional Chief Judicial Magistrate, Sangrur, dated 15.12.1989 that the two accused had refused to join the identification parade. We, however, find that this order was exhibited as Exhibit C-1 on the day of judgment and was, thus, not put to the accused in their statements recorded under section 313 of the Code of Criminal Procedure nor was the Magistrate concerned produced as a witness to prove the circumstances leading to the order. We, however, find that this order was exhibited as Exhibit C-1 on the day of judgment and was, thus, not put to the accused in their statements recorded under section 313 of the Code of Criminal Procedure nor was the Magistrate concerned produced as a witness to prove the circumstances leading to the order. In this view of the matter, we are of the opinion that the prosecution cannot take any advantage from this assertion. We are, therefore, of the opinion that the judgments under appeal cannot be maintained. We, therefore, allow these appeal and set aside the conviction of the two accused and order their acquittal. Appeals allowed.