S. K. AGARWAL, J. ( 1 ) CRIMINAL Appeal No. 2717 of 1980 was filed by Pramod alias Billa and Vilas Deo and Criminal Appeal No. 2769 of 1980 was filed by Hari Kishan alias Haria and Vijay Vishnet. Both these appeals arise out of an order of conviction passed by Sri V. K. Agarwal, Addl. Sessions Judge, Dehradun on 24-11-1980 in Session Trial No. 50 of 1980. All the above appellants were convicted under Section 302, I. P. C. with the aid of Section 34, I. P. C. They were sentenced to imprisonment for life under the above count. ( 2 ) AT the time of hearing of this appeal, two of the appellants were reported dead. The report to this effect is on record. We have already abated their appeals on 12-1-2000 by a separate order on the order-sheet. These two appellants are Pramod alias Billa, appellant No. 1 in Crl. Appeal No. 2717 of 1980 and Vijay Vishnet, appellant No. 2 in Crl. Appeal No. 1769 of 1980. The remaining appellants are Hari Kishan alias Haria and Bilas Deo whose appeals were heard by us. ( 3 ) THE brief facts of the case are that on 2-12-1979 at about 6. 30 p. m. when Liyaqat was returning back to his house via Inamullah building and roadways bus station, he was accosted by Vijay Vishnet, Hari Kishan alias Haria and Pramod alias Billa as soon as he reached near the house of Hakeem Kureshi Ahmad at the crossing. These persons were on a bullet motor-cycle. They came from behind. They stopped Liyaqat and told him that he had got lodged a report against Para so he must get the taste of it meaning thereby that the assailants wanted to teach him a lesson for lodging a report against Para. Immediately all the 3 persons opened fire from their respective country made pistols upon Liyaqat. The gun report attracted Abid, Ashok, Hamid and many other people to the spot. When the assailants were challenged by witnesses they escaped towards Koodaghar. The injured was found in a pool of blood. He was taken to the hospital by the informant and the witnesses. The informant Atigur Rehman is own brother of victim Liyaqat. Written report of the occurrence was prepared and taken by him to the police outpost. This written report is Ex. Ka. 3. The injured was found in a pool of blood. He was taken to the hospital by the informant and the witnesses. The informant Atigur Rehman is own brother of victim Liyaqat. Written report of the occurrence was prepared and taken by him to the police outpost. This written report is Ex. Ka. 3. On the basis of the written report, offence was registered at 7. 15 p. m. The distance of the police out post where this report was registered is just 2 Furlongs East from the place of occurrence. The investigation was taken up by P. W. 5, Bhopal Singh, who came to the spot but did not initiate any investigation. He had gone to the hospital on the information of death of Liyaqat at 8. 20 p. m. and prepared the inquest memo, sealed dead body and sent it for post-mortem. On the next day, he started the investigation. He recorded the statements of the witnesses and prepared site map and inspection memo and recovery memo of the blood-stained and plain earth etc. He submitted the charge-sheet against all the accused appellants, thereafter. ( 4 ) THE post-mortem examination of the accused was conducted by P. W. 2, Dr. R. P. Srivastava on 3-12-1979 at 12. 00 noon. According to him death occurred about half a day earlier. He had noted as many as 7 injuries upon the victim. Out of them injury No. 3 communicated with injury No. 2 and injury Nos. 4, 6 and 7 were independent injuries. There were 5 entry wounds. In the internal examination, pleura was foundruptured. Right lung was also found ruptured in its lower part in an area of 3 cm. x 1. 5 cm. Blood had accumulated there. Liver was found congested and its right part was found badly lacerated. The abdominal cavity contained about one pint of fluid blood. In the stomach 10 oz. food matter was also found. One bullet was recovered from the stomach. The Gall Bladder was also found severely damaged. Bladder was found full of urine. In his opinion, the death was the result of shock and haemorrhage as a consequence of fire arm injuries. ( 5 ) ( 6 ) IN cross-examination, the doctor had stated that the death may have occurred on 1-12-1979 at about 8-9 p. m. during the night. Bladder was found full of urine. In his opinion, the death was the result of shock and haemorrhage as a consequence of fire arm injuries. ( 5 ) ( 6 ) IN cross-examination, the doctor had stated that the death may have occurred on 1-12-1979 at about 8-9 p. m. during the night. He has further stated that about the time of causing of injuries mentioned in Ext. Ka. 1, he cannot give any definite estimate. He had very clearly stated that injury No. 1 cannot be caused by a fire arm from within 4 Ft. He expressed his inability to state whether these injuries were the result of only one shot. ( 7 ) THE prosecution in support of its case has examined apart from above two witnesses, three eye-witnesses. They are P. W. 1, Ashok Kumar, P. W. 3, Atiqur Rahman and P. W. 4, Abdul Hamid. ( 8 ) LEARNED counsel for the appellant has made following submissions that there was no motive for the appellants to commit this murder. Both P. W. 3 and P. W. 4 are chance witness and there are major contradictions in their statements. They have also introduced major improvements in their statements at the trial. It is highly doubtful that the accused were known to them from before. Their evidence is also in conflict with the medical evidence. Lastly that the deceased being himself a hardened criminal was likely to have many enemies. ( 9 ) P. W. 1, Ashok Kumar, turned hostile and has not supported the prosecution case at all. As a matter of fact, he pleaded ignorance even to the fact whether Liyaqat was murdered by fire arm. He was cross-examined by the prosecution. In cross-examination he stated that he had not seen Liyaqat for the last one year since he was living outside the district. When he returned back, he heard that Liyaqat was murdered. The investigating officer did not make any enquiry from him. He denied that this statement was ever recorded by the investigating officer under Section 161, Cr. P. C. He could know about the fact of murder of Liyaqat on receiving a telegram 20-25 days before the date for his evidence, in the last month. This telegram was sent by his brother to inform the date for his evidence. Police has wrongly enlisted him as a witness in this case. P. C. He could know about the fact of murder of Liyaqat on receiving a telegram 20-25 days before the date for his evidence, in the last month. This telegram was sent by his brother to inform the date for his evidence. Police has wrongly enlisted him as a witness in this case. He had submitted an affidavit denying himself to be a witness. He stated that he did not ever know the purpose for which he was made a witness. It has further stated that he did not know even today that purpose. Thus, his evidence is of no help to the prosecution and is accordingly discarded. ( 10 ) THE next witness examined by the prosecution in support of its case is Atiqur Rahman, P. W. 3, the informant. He is own brother of the deceased. He had supported prosecution case in his examination in chief. He had involved only 2 of the 3 appellants as the persons who opened fire on the victim. They are Hari Kishan alias Haria and Vijay Vishnet. He very specifically stated that Billu did not fire. He was only driving motor cycle. He had also introduced presence of light in his statement in Court. In the first information report, no light was mentioned by him but in the trial Court he had stated that near the crossing a tube light was burning there. Its light was spreading up to the place of occurrence. There was also light at the house located in the validity. He learnt about the demise of his brother only on his return to hospital. He claimed that he accompanied the investigating officer to the spot. He is a resident of Dhama Wala. According to him the motive for the occurrence was elopment of a girl of the locality and in that case the brother of the alleged girl lodged a report against Para. Para was under an impression that this report was got lodged by Liyaqat. He stated his grudge ultimately by liquidating his brother. For the first time in the trial Court he disclosed the reason behind his presence at the spot. Perusal of the F. I. R. does not indicate his presence at the time of incident. Para was under an impression that this report was got lodged by Liyaqat. He stated his grudge ultimately by liquidating his brother. For the first time in the trial Court he disclosed the reason behind his presence at the spot. Perusal of the F. I. R. does not indicate his presence at the time of incident. No doubt at the end of the F. I. R. he claimed that he had taken his brother to the hospital but he did not clearly specify that he had witnessed the incident. It is admitted to him that his house is just 35-40 paces from the place of occurrence. The house is inside a lane and on coming out from the lane, there is a Bakery named as kumar Bakery just 2-3 shops away from this Bakery, there is a clinic of a doctor. By the side of this clinic, the shop of Sardar Jeet Singh is there. He claimed that he was going from his house towards Inamullah building. On the road near the abovesaid clinic, Hamid, P. W. 4, met him but the fact that he was going from his house towards Inamullah building where Hamid met him on the road is not there in his statement made under Section 161, Cr. P. C. This fact that he was engaged in conversation with Hamid at the relevant time is also missing in his statement to the investigating officer. He could not offer any explanation for these omissions. These facts are not there in the F. I. R. as well. He had admitted that in his report, he has not stated that he has seen the occurrence in the light. When his evidence that he was engaged in conversation with Hamid is examined in the light of the statement of Hamid, P. W. 4 itself, we find that Hamid has not stated any such fact in his statement. In the F. I. R. it has been scribed by him that all the 3 persons who were riding the motor cycle opened fire upon his brother. When he was cross-examined on this point, he admitted that all the 3 did not fire. In the F. I. R. it has been scribed by him that all the 3 persons who were riding the motor cycle opened fire upon his brother. When he was cross-examined on this point, he admitted that all the 3 did not fire. He claimed that his statement was recorded by the investigating officer on that very day before the demise of his brother but when we examine this part with the statement given to investigating officer, it becomes apparent that this witness is telling a lie. Even in his statement to the investigating officer, the fact that all the 3 fired upon his brother is mentioned. To wriggle out from the medical conflict this witness has offered different explanation which in our opinion make his presence at the relevant time highly suspicious. He admitted that he did not disclose to the investigating officer as to who out of 3 were armed with pistols. He claimed that when he lifted Liyaqat for taking him to the hospital he had seen spent cartridges lying on the spot but this fact did not find place either in the F. I. R. or in his 161, Cr. P. C. statement. According to him when he reached the hospital inquest proceedings were going on. He further stated that he cannot say what is Panchnama. He admitted that when he reached the hospital, Abid and Hamid were not there. He met them in his locality at about 9. 00-10. 00 p. m. in the night. They came to meet him at his house. He very clearly admitted that he came to the hospital a second time at about 8. 00 or 8. 15 p. m. In this context let us examine the statement of investigating officer, P. W. 5. He very specifically stated that he reached the spot at about 9. 30 p. m. , therefore, statement of P. W. 3 that he recorded his statement first on the spot before the victim was taken to hospital as proved to be false. He further admitted that he had not seen number of the motor cycle. ( 11 ) THE above discussions go a long way to suggest that this witness was not present at the spot at any point of time. He further admitted that he had not seen number of the motor cycle. ( 11 ) THE above discussions go a long way to suggest that this witness was not present at the spot at any point of time. The main reasons for coming to this conclusion are that he had not disclosed to the investigating officer or in the F. I. R. that he was going towards Inamulla building. On the road he met with Hamid. He had improved upon his F. I. R. and 161, Cr. P. C. version with regard to actual participants in the incident who opened fire on the victim. In the F. I. R. and 161, Cr. P. C. statement he had attributed the role to all the 3 assailants but in his evidence in trial he had only nominated Hariya and Vijay Vishnet. His admission that his house is only 35-40 paces from the spot is also a false assertion. His cross-examination clearly provides us an inference that the distance of his house, inside the lane, is much longer than 35-40 paces. Hamid did not support his case that he met him on the road and both of them were engaged in conversation at the time of occurrence. He is a whole seller of vegetables. He has a shop in the vegetable market. He had admitted that during the day he used to sell vegetables on credit to various shop keepers and hawkers. In the evening he used to go for the collection of money from them. Admittedly it takes at an average one to two hours in the realisation of this money. He admitted that there is no Munim in his shop. This is yet another reason which makes his presence at the time of incident at the spot highly doubful. ( 12 ) APART from this we also find existence of serious discrepancy with regard to the identity of the assailants being known to this witness. On being recalled on 13-10-1980, in paragraph 2 this witness had stated that he knew the assailants for the last 5-6 months. He was unable to give out specific month since when he had started knowing the assailants. He further stated that since these 3 assailants used to pass through his locality, therefore, he started knowing them by face. He further stated that these assailants used to pass through his locality on a motor cycle. He was unable to give out specific month since when he had started knowing the assailants. He further stated that since these 3 assailants used to pass through his locality, therefore, he started knowing them by face. He further stated that these assailants used to pass through his locality on a motor cycle. He claimed that he had seen Vijay and Hariya for the first time in Jailwhen he had gone to meet Liyaqat. He was unable to give out the month of this visit. He went to meet Liyaqat 3 or 4 days before Holi. He only saw them by face and no body told him their names. Thereafter he claimed that he had seen these persons in the month of Sept. At that time he claimed that Billa had also accompanied them. When he had seen them in the month of Sept. he came to know their names. They were passing through his locality, three-four boys disclosed their names and parentage to him on enquiry. These boys belong to his locality. One of them was Pammi. He did not know the names of other boys. According to him Pammi was friend of Liyaqat and he used to meet him as well. He further said that whenever he sights any unknown person passing through his locality he used to enquire about them. That path way to the market leads through his locality and throughout the day many people use to come and go through this road. In our opinion if a busy pathway passes through a locality, a number of known and unkown persons will pass through such a road. No one will be interested in knowing the identity of each and every passer by normally. Finally he wilted under the pressure of cross-examination and admitted that he had seen the assailants. for the first time on 2nd December. ( 13 ) D. W. 1, Rajendra Prasad, is the Assistant Jailer, Dehradun Jail. He was examined to prove that Hari Kishan appellant was in jail from 30-4-1979 to 8-11-1979. The prosecution has not challenged him in cross-examination. In the light of his statement when we test the entire statement of PW 3. Atiqur Rahman made in paragraph 2 on 29-10-1980, it becomes crystal clear to us that this witness is a liar and there is no probability of his knowing Haria alias Hari Kishan at least from Sept. The prosecution has not challenged him in cross-examination. In the light of his statement when we test the entire statement of PW 3. Atiqur Rahman made in paragraph 2 on 29-10-1980, it becomes crystal clear to us that this witness is a liar and there is no probability of his knowing Haria alias Hari Kishan at least from Sept. or Dec. His entire statement on this point is full of contradictions and ingenuity and is most unnatural. ( 14 ) THE same is the case with the other witness, PW 4, on the point of identity. He claimed that he knew Haria since 3-4 months before the incident. The incident had taken place on 2-12-1979. According to him, this witness used to visit Inamullah building. He was going to take betel or cigarettes. He further stated that he used to go once in a week towards Inamullah building. He further admitted that his statement was recorded by the investigating officer 10-12 days after the incident. In this context when we refer to the testimony of the investigating officer, we find that the statement of this witness was recorded by the second investigating officer Vikram Singh also. He had recorded the statement of Abid and Ashok also. In so far as this PW 4 is concerned, his statement first was recorded by PW 5, Bhopal Singh, on 13-12-1979. No explanation is forthcoming for this delay in examination of this witness. This witness has claimed that he has stated to the investigating officer that the asssailants had said "learn the taste of giving evidence" but there is no mention of this fact in his statement to the investigating officer. He was unable to give any explanation about this omission. Further in his statement to the investigating officer there is no mention as to who were armed with what weapon, although he claimed that he did tell this fact to investigating officer. He was unable to offer any explanation for this omission also. He denied that any of the assailants came down from the motor cycle, although, PW 3, Atiqur Rahman, had stated that two of the assailants came down from the motor cycle before opening fire upon the victim. He was unable to offer any explanation for this omission also. He denied that any of the assailants came down from the motor cycle, although, PW 3, Atiqur Rahman, had stated that two of the assailants came down from the motor cycle before opening fire upon the victim. He disclosed the number of motor cycle in his examination in chief but he admitted that the numbers on the motor cycle were written in English and it is his further admission in paragraph 2 that he only knows little Urdu, he otherwise is illiterate. Therefore, it appears improbable that he could read the number of the motor cycle. He had further admitted that he and Liyaqat both are engaged in selling of vegetables. Liyaqat is a whole seller and he is a retailer. He used to purchase vegetable from Liyaqat on deferred payment. His creditors used to start coming for recovery of their money from 4-5 pm. and continue to come till 7-8 p. m. On the point of identity of the assailants his statement is identical to that of PW 3, Atiqur Rehman. He has also given out same reasons for knowing these assailants as offered by Atiqur Rahman. When his statement is considered in the light of the statements of PW 1 and PW 3, we come to the conclusion that he in all probability was not knowing these assailants from before the incident. He claimed that the 3 accused were enemies of Abid, therefore, their names were disclosed by Abid to him. He is a close associateof Abid and was also named as witness in this case but he was murdered later on before he could be produced. He stated that no alarm was raised by any one who were present at the scene of occurrence except the witnesses. He has contradicted on this point by PW 3. He further stated that on seeing so many persons in the Court his mind is boggled and he did not remember facts, properly. The Court has put a note that A. D. G. C. and counsel of these appellants are only near him. He admitted that there are so many shops in the vicinity apart from residential houses. These shops were not open at that time. He had further stated that on the date of occurrence he was going towards the market. The Court has put a note that A. D. G. C. and counsel of these appellants are only near him. He admitted that there are so many shops in the vicinity apart from residential houses. These shops were not open at that time. He had further stated that on the date of occurrence he was going towards the market. He had not disclosed this fact to the investigating officer nor in his examination in chief. Thus, this witness in our opinion is a got up witness. He is deposing in all likelihood on account of his friendship with the deceased as well as his close relations with Abid who admittedly was on inimical terms with these 3 appellants. ( 15 ) IN the circumstances, we come to the conclusion that none of these witnesses, PWs 3 and 4 were present at the spot at the time of incident. All of them are chance witnesses and their explanations for their presence do not inspire our confidence. ( 16 ) THIS finding is further fortified from the circumstances that both PWs 3 and 4 claimed that they had carried the injured to the hospital but we do not find any evidence on record except their oral evidence in corroboration of this fact. On the contrary suppression of the medical examination report of the victim creates a serious doubt in our mind. In our opinion none of these two persons had accompanied the injured to hospital. We are unable to comprehend any reason for non-production of injury report of Liyakat. Admittedly he was admitted in the hospital at 7. 00 p. m. This fact is available to us from Ex. Ka. 6 brought on record by the investigating officer. There is a memo sent by the hospital to the police station concerned. This memo was received at the police station concerned. This memo was received at the police station at 7. 15 p. m. So far as this suppression is concerned, we could only guess that it has been suppressed for the lone reason that it may have contained the name of some other person who brought the victim to the hospital for medical examination. This fact that he was medically examined before his death, is proved from the notings in the inquest memo. This fact that he was medically examined before his death, is proved from the notings in the inquest memo. The inquest memo clearly shows that the injuries of the victim were examined before his death because injuries had bandage. We can safely infer from this fact that his medical examination report must have been prepared in the hospital before any medical aid was provided to him. The suppression of this medical report leaves no room for any doubt that it was purposely done by the prosecution and the trial Court has completely missed or overlooked this aspect. In our opinion it has been done with an ulterior motive to strengthen the prosecution case against the appellants and also to establish the presence of these witnesses at the spot at the time of incident. ( 17 ) EVEN the time of lodging of the F. I. R. is also rendered highly doubtful. The circumstances that take us to this conclusion are that a report from the hospital about admission of Liyakat was received at the police station at 7. 15 p. m. in the evening. The F. I. R. is also claimed to have been registered at that very time. Complete failure of the Investigating Officer to proceed with the investigation that night is a circumstance which strengthen our doubt. It is admitted to the Investigating Officer that except going to the police out post and recording the statements of the witnesses and recovery of various articles, he did not taken any other step. It is strange that if he has already recorded the (sic) by these witnesses why S. O. Vikram Singh recorded their statement on 4-1-1980 is not explained. This statement was transferred by him on the dictation of S. O. Vikram Singh. This leads us to the inference that no statement of Abid and Ashok and others were recorded by this witness either on 2-12-1979 or 3-12-1979. Except completing the formalities of inquest this witness apparently had not performed any other act to further the investigtion. ( 18 ) THE defence evidence that Bilas Deos father had lodged a report regarding the theft of his motor cycle from the hospital is yet another circumstance which further strengthens our conclusion on this point. Bilas Deo was arrested admittedly on 5-12-1979 at 7. ( 18 ) THE defence evidence that Bilas Deos father had lodged a report regarding the theft of his motor cycle from the hospital is yet another circumstance which further strengthens our conclusion on this point. Bilas Deo was arrested admittedly on 5-12-1979 at 7. 10 a. m. The prosecution, case in this connection is that from the statement of Abid, the number of the motor cycle was known to them. It is own case of the prosecutionthat 3 accused were seen moving on a bullet motor cycle. The witnesses have tried to know their names and their place of residence but they had never tried to know the number of their motor cycle. The statement, of appellant Bilas Deo that he was detained at the police station for two days and thereafter money was demanded from him for his release and when he refused to pay money, he was involved in this case cannot be brushed aside lightly in the circumstances of the present case. Apart from this there are other considerations which make us arrive at the conclusion that the F. I. R. was to transcribed at the time as alleged by the prosecution. It is admitted to the investigation officer that he did not remember hen he got the information of death of Liyaqat. The recovery memos were prepared or not. Admittedly he got the information of death of Liyaqat at 7. 15 p. m. on the right intervening 2/3-12-1979. The G. D. entry pertaining to this memo of death was of 7. 15 p. m. This circumstance creates serious doubts in our mind that why this investigating officer had not initiated the investigation on 2-12-1979. Police out post admittedly is just 2 furlongs and gun shot report can be heard from that distance in the night. The police might have got information of the incident on its arrival at the spot on its own and may have tried to ascertain the truth, so we are not, prepared to accept the case of the prosecution that the F. I. R. in this case was transcribed at 7. 15 p. m. The suppression of medical examination report further strengthens it. ( 19 ) THE defence of the appellants Hari Kishan alias Haria, Vijay Vishnet and Pramod alias Billa is that Hari Kishan and Billa were in jail. 15 p. m. The suppression of medical examination report further strengthens it. ( 19 ) THE defence of the appellants Hari Kishan alias Haria, Vijay Vishnet and Pramod alias Billa is that Hari Kishan and Billa were in jail. Pramod used to do pairvi and Billa was on inimical tems with Liyaqat. When Hari Kishan came out from jail, a rumour was spread that Billa was also released from jail along with Haria. Abid felt aggrieved and got them involved in this case. The police was asking him to do Mukhbiri against Hari Kishan which he declined. They got annoyed and told him that now sympathise with Hari Kishan inside jail. So he was also involved in this case. So far as Vijay Vishnet is concerned, according to him Liyaqat and Abid were belonging to the gang of Bhartu. They committed dacoities jointly. Bhartu was murdered on 14-11-1979. He was put up for identification but no one identified him. He was discharged. After his discharge and release from jail Liyaqat was nursing serious grudge. He came out 6-7 days before the death of Liyakat in the present incident and so he was involved in this case on suspicion. From March, 1979, to Nov. 1979, he was in jail. He had very clearly stated that Atiqur Rahman was under the guidance of Abid and therefore, he was named in the F. I. R. along with others. The same is the case of Hari Kishan. His defence is that he was involved in the offence on account of proximity with Vijay. So far as the appellant Bilas Deo is concerned, his defence is very specific that his motor cycle was standing in the compound of the hospital. When he came out in the night his vehicle was not there. He went to lodge the report. The police Sub Inspector told him that he will investigate the matter in the morning on 3rd. He again went to the police out post because till then no whereabout of the vehicle was known. On 3rd Dec. in the evening some 6-7 police constables came to his house and told him that the police Sub Inspector is calling him. He went to the police out post but he was detained there. On the next day he was taken to Cantt police station. His father visited the police station. On 3rd Dec. in the evening some 6-7 police constables came to his house and told him that the police Sub Inspector is calling him. He went to the police out post but he was detained there. On the next day he was taken to Cantt police station. His father visited the police station. Cash was demanded from him and when he refused to pay the money, he was sent on the same night to police station Kotwali. He was detained there for two days and involved in this case. He claimed that he had lodged the report about the theft of his motor cycle but it is not traced out till today. When we scrutinise the testimonies of the two eye witnesses, PW 3 and PW 4 and the statement of Investigting Officer, we do not find sufficient evidence for their conviction. ( 20 ) ON examination of the judgment, we find that learned sessions Judge has given undue weightage to the defence of the appellant. The learned Sessions Judge had discarded the defence of the appellant and drew an inference that since he has taken a false plea with regard to the theft of his motor cycle, therefore, it can safely be presumed that he had lent his motor cycle to these three appellants for committing murder and, therefore, he was held guilty of the commission of this murder. As has already been stated by us that no positive evidence is led by the prosecution to establish that the motor cycle used in the commission of the offence belonged to this appellant. No officer from transport department nor anydocument showing ownership of the appellant were brought on record to draw any such inference. Moreover, probability that his version is true is not completely liquidated by the prosecution by providing that no F. I. R. was registered at his instance and even if registered it was found false on enquiry or investigation. In view of this the finding returned by the learned Sessions Judge against appellant Vilas Deo cannot be accepted and the conviction of this appellant also cannot be confirmed. So far as Atiqur Rahman is concerned, he admittedly has not disclosed the number of the motor cycle. PW 4, Hamid has disclosed the number of the motor cycle in his 161, Cr. P. C. statement but we have already rejected his evidence on this point. So far as Atiqur Rahman is concerned, he admittedly has not disclosed the number of the motor cycle. PW 4, Hamid has disclosed the number of the motor cycle in his 161, Cr. P. C. statement but we have already rejected his evidence on this point. We have not accepted his evidence with regard to the reading of the number of motor cycle while the assailants were fleeing. In the circumstances he being an illiterate having only little knowledge of Urdu we find it impossible to accept his statement regarding number of motor cycle which was in English. ( 21 ) FOR the above discussions, we allow these appeals and set aside the order of conviction and sentence passed against these appellants under Sections 302/34, I. P. C. These two appellants are on bail, therefore, they need not surrender and their bail bonds are cancelled and sureties stand discharged. Appeal allowed.