JUDGMENT 1. - This appeal has been filed by accused appellant Mana Singh against judgment dated 13.2.1S98 passed by Additional Sessions Judge No.1, Sriganganagar in Sessions Case No. 30/95 by which he has been convicted under section 302 IPC and sentenced to life imprisonment with a fine of Rs. 1000/- and in default to further undergo two years rigorous imprisonment. He has also been convicted under Section 353 IPC and sentenced to two years rigorous imprisonment. He has also been convicted under section 27 of Arms Act and sentenced to three years rigorous imprisonment with a fine of Rs. 500/- and in default to further undergo six months simple imprisonment. All the sentences were ordered to run concurrently. 2. The prosecution story as emerged from the file is that at 6.45 RM. on 7.11.1994 in Hanumangarh township near Suratgarh Phatak PW-6 Syonarain going on his motor-cycle No. RJ-31-M-163 was apprehended by three persons having muffled faces. One of them pulled out a pistol and put it on the chest of Syonarain and Snatched the motor-cycle from him. Syonarain immediately lodged a FIR in police station Hanumangarh resulting which wireless messages were sent on all check posts. 3. At about half post seven the above motor-cycle was apprehended by PW-1 Shyam Pratap Singh, PW-2 Manohar lal and Radhey Shyam (Since deceased).All these persons were working in home guard and were posted at check post Karadwala. These persons stopped the motor-cycle and checked its number. The three persons riding on the motor-cycle started running but were chased by these persons and Haredev Singh was caught red handed whereas out of remaining two one of them fired a pistol injuring Radhey Shyam who died instantaneously. 4. A wireless message Ex. P/45 of this occurrence was also sent to police station Hanumangarh at 7.15 P.M. resulting which PW-14 Richhpal Singh Station House Officer alongwith police personnel's reached on the spot whom Ex.P/3 written FIR was handed over by PW-2 Manoharlal. So also Hardev Singh caught at the site. Postmortem on the dead body was conducted. Site plan who Ex. P/5 prepared on the next day. One pair of shoes and one pair of Juti were also seized and sealed from the site vide Ex.P/8 alleged to be left by the absconding accused. Similarly an empty 12 bore cartridge was also seized from the site which was sealed there and then. Site plan who Ex. P/5 prepared on the next day. One pair of shoes and one pair of Juti were also seized and sealed from the site vide Ex.P/8 alleged to be left by the absconding accused. Similarly an empty 12 bore cartridge was also seized from the site which was sealed there and then. Six mold of foot prints available on the site were vide taken also Ex.P/10 and seized and sealed there and then. Motor-Cycle No. RJ-31M-163 was also seized vide Ex. P/12. 5. Hardev Singh disclosed the names of co-accused as Mana Singh and one Baldev Singh. Mana Singh, present accused, was arrested on 1.3.1995 alongwith a country made 12 bore pistol in FIR No. 448/95. When Station House Officer, Sadulsahar came to know of it he took in custody accused Mana Singh from sub-jail Jaitu and thereafter took his sample foot molds and have also got his test identification parade conducted on 17.2.1995 vide Ex.P/1 in which PW-1 Shyam Pratap Singh, PW-2 Manoharlal, PW-3 Surrender Kumar, PW-4 Mehboob Khan, one Ram Kumar and another Raghuveer Singh have correctly identified this accused. Thereafter Mana Singh accused appellant was charged under Sections 302, 353/34 IPC and Section 25 of Arm Act. Co-accused Hardev Singh was charged under section 302/34 and 353/34 IPC. 6. After pleading not guilty and claiming trial the prosecution examined 14 witnesses and exhibited 45 documents. In statement given under Section 313 Cr.P.C. accused appellant denied all the incriminating evidence appearing against him and pleased that he has been falsely implicated. No evidence in defence was produced. 7. Thereafter learned trial court after a lengthy judgment gave benefit of doubt to Hardev Singh and acquitted him but convicted and sentenced accused appellant Mana Singh as stated above relying upon the testimony of PW-2 Manoharlal and identification of the accused appellant by PW-2 Manoharlal, P.W. 3 Surendra Kumar and PW-4 Mehoob Khan. 8. Mr. Vyas, learned counsel for the appellant took us through the evidence and wanted to assail the same because the occurrence took place at about 8.00 P.M. In the month of November and in the dark pitch night and where possibility of observing and identifying the accused appellant was to the minimum. He has also assailed the test identification parade conducted during the investigation and pleaded that there is not an iota of evidence connecting the accused with the crime. 9. He has also assailed the test identification parade conducted during the investigation and pleaded that there is not an iota of evidence connecting the accused with the crime. 9. On the contrary the learned Public Prosecutor has supported the impugned Judgment. 10. We have carefully considered the rival contentions. 11. Though Hardev Singh was caught red handed yet he has been acquitted in this offence. Hardev Singh alongwith accused appellant has been acquitted by Additional Chief Judicial Magistrate, Hanumangarh in Cr. Case No. 7/96 (8/95) on 29.11.1996 for an offence under section 392 IPC. Similarly the alleged 12 bore pistol was allegedly recovered from the accused appellant by police station Jaitu yet it is not known whether he was convicted in that offence or not? 12. In the matter at hand the conviction has been maintained on the ocular testimony of PW-2 Manohar Lal as also identification made by PW-3 Surendra Kumar and PW- 4 Mehoob khan. Though PW-2 Manoharlal has deposed in the trial court that the occurrence took place at about 8.00 RM. when all the three persons riding on the motor-cycle were apprehended by him alongwith other staff deputed at the post. The witness again stated that he identified the accused appellant in the test identification parade also. Hardev Singh co-accused (since acquitted) was also caught red handed at the site who disclosed the name of his accomplices Mana Singh and Baldev Singh yet the above fact was not found mentioned in FIR Ex. P/3 lodged by this witness which goes to the root of the case. It seems that the names of the co-accused were not disclosed to Manoharlal immediately after the occurrence but came to know subsequently. Even assuming that Hardev Singh has disclosed the names of his accomplices, that by itself will not be sufficient to implicate the accused appellant in the offence because the confession of a co- accused with regard to his accomplice is relevant under Section 30 of Evidence Act and can be put to use subject to certain restrictions. 13. Even assuming that Hardev Singh has disclosed the names of his accomplices, that by itself will not be sufficient to implicate the accused appellant in the offence because the confession of a co- accused with regard to his accomplice is relevant under Section 30 of Evidence Act and can be put to use subject to certain restrictions. 13. So far as identification of the accused appellant by this witness at the time of apprehending the three persons on the motor-cycle is concerned, he should have atleast disclosed the identifying marks of the accused appellant to the Investigating Officer while giving his statement under Section 161 Cr.P.C. or atleast must have stated so before PW-7 Rajeshwar Singh, Additional Civil Judge (JD) and Judicial Magistrate who conducted test identification parade vide Ex.P/1. Nowhere in Ex.P/1 is mentioned the identifying marks of the accused appellant. Admittedly there was no light at Karadwala Check post and admittedly all the three persons riding the motor-cycle made good their escape as soon they were apprehended. Upon chasing only Hardev Singh was caught at some distance. In such a circumstance possibility of observing the identification marks of the accused appellant were very remote. 14. PW-1 Shyam Pratap Singh has admitted in cross examination that there was no light at Karadwala check post and occurrence took place so fast that he could not identify any of the three persons riding motor-cycle. He has further admitted that before identification parade he was shown the accused persons the courts premises of Sriganganagar. PW-3 Surender Kumar also admitted in cross examination that he could not identify any of the persons at the site because the occurrence took place suddenly and there was no opportunity to identify them and hence and cannot say whether any accused present in court was at the site. He has also further admitted that the accused persons were shown to him alongwith other witnesses before test identification parade in Ganganagar court premises. 15. The other witnesses have also stated similarly. Therefore the test identification parade conducted by PW-7 Rajeshwar Singh looses significance. The trial court has wrongly placed reliance upon it. 16. The testimony of PW-2 Manoharlal lacks coherence. Had he been able to identify the accused appellant at the site why he has not mentioned the identification marks of the accused in the FIR Ex.P/5 lodged by him or in the police statement. The trial court has wrongly placed reliance upon it. 16. The testimony of PW-2 Manoharlal lacks coherence. Had he been able to identify the accused appellant at the site why he has not mentioned the identification marks of the accused in the FIR Ex.P/5 lodged by him or in the police statement. Why he has also not mentioned those marks to PW-7 Rajeshwar Singh before embarking upon the test identification parade. This witness has also not withstood the test of cross examination and no implicit could have been placed upon his testimony. 17. PW-6 Syonarain is the owner of the motor-cycle which has allegedly robed from him about half an hour before the present occurrence. He has stated unequivocally that all the three persons who snatched motor-cycle have muffled their faces and, therefore, he could not recognise any of them. This circumstances also goes to show that perhaps the accused were having muffled faces even when apprehended at Karadwala check post. 18. The foot molds of juti so taken were sent to the FSL and were upon examination vide report Ex.P/40 found to be same in shape and size of accused Mana Singh but in absence of wear and tear marks and edge details no definite opinion was given. Therefore, this circumstantial evidence is also not implicating the accused in the crime. 19. Country made pistol allegedly recovered from the accused appellant by Jaitu police station was taken from there in the present case and sent to the FSL for examination and a report Ex. P/36 was received from there. The above country made pistol was found serviceable fire arm but definite time of its last fire could not be ascertained. Similarly.it was not proved by the calling panch witnesses from Jaitu police before whom this country made pistol was allegedly recovered from the accused appellant. Unless and until the original seizure memo was produced before the trial court and the panch witnesses as also the Investigating Officer who recovered the pistol from the accused appellant were examined in the trial court, recovery of contrary made pistol cannot be said to be proved. Simply because a copy of seizure memo was produced in the trial court, that by itself is not sufficient to prove that a country made pistol was recovered at the instance of the accused appellant. 20. Simply because a copy of seizure memo was produced in the trial court, that by itself is not sufficient to prove that a country made pistol was recovered at the instance of the accused appellant. 20. Even assuming that some country made pistol was recovered at the instance of the accused appellant, unless and until that is connected with the present crime and it is proved that Radhey Shyam was killed from its fire.no conviction can be based in this offence. There is not an iota of evidence available in the file connecting the accused appellant with the crime. 21. According to the prosecution version from Karadwala check post all the three persons ran helter scalter and were chased by the staff and after chasing about 200 feet Radhey Shyam constable was hit by a fire. The person who fired was wearing a red sweater. Though a red sweater was allegedly recovered at the instance of the accused appellant but that according to us is not sufficient to connect the accused in the crime. Why shall the accused appellant place the sweater in a secluded place without good cause when same was not blood stained. It cannot be said that sweater so recovered at the instance of the accused appellant was the same which the person who fired at Radhey Shyam was putting on. 22. There was no an iota of evidence connecting the accused appellant in the crime yet the trial court in a casual and cavalier manner has held him guilty. As an abundant caution we have analysed and assessed the evidence available on the file and are of the view that the learned trial court on surmises and conjectures held him guilty and has not appreciated the matter in proper prospective. 23. Consequently, we accept this appeal, set aside the conviction and sentence awarded to the accused appellant and acquit him of all the charges. He is in jail, if not required in any other case, be set at liberty forthwith.Appela allowed. *******