JUDGMENT - R.S. MOHITE, J.:---This is an appeal against conviction preferred by the appellants who are original accused Nos. 1, 4, 5, 7, 10, 13 and 17 against the judgment and order passed by the learned II Additional Sessions Judge, Gondia in Sessions Case No. 57 of 1990, convicting them for offences punishable under section 302 read with section 149 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each and in default of payment of fine to undergo rigorous imprisonment for a period of two years. 2. At the very outset, learned Advocate for the appellants has placed on record a death certificate indicating that the appellant No. 4 Budhram Kashiram Bagde has expired. The said death certificate has been taken on record and the appeal would stand abated against appellant No. 4 Budhram Kashiram Bagde and would proceed against other appellants. 3. The prosecution case in brief was as follows: (A) That victim Rajesh Singhaniya (hereinafter referred as the deceased) was a person who had taken a contract to supply Coolies to F.C.I. company situated at village Murri, Tahsil Gondia. The appellants along with several other accused were working in the said factory as Coolies since before the date of incident and they were on strike. The deceased used to supply Coolies to the said factory from outside. (B) On 23-4-1990 at about 10.30 a.m., the deceased had gone to the F.C.I. Factory at Murri along with P.W. 7 Babulal Mendhe. After completing the work at the factory, they were returning on a motor cycle and as the motor cycle came out from the factory, the accused No. 1 Shyamlal Thakare went to the deceased and asked him as to why he brought labourers from outside. The accused Shyamlal is alleged to have rounded a dupatta (gamcha) around the neck of the deceased and pushed him on the ground. The deceased fell down from the motor cycle. (C) After the deceased had fallen down from the motor cycle, accused Nos. 1 to 7 alleged assaulted the deceased with sticks on his head, accused Nos. 8 to 21 along with the accused Nos. 30 and 31 gave him fists and blows and the deceased thus sustained injuries on his head. Accused Nos. 22 to 29 allegedly instigated the said accused to assault the deceased. 1 to 7 alleged assaulted the deceased with sticks on his head, accused Nos. 8 to 21 along with the accused Nos. 30 and 31 gave him fists and blows and the deceased thus sustained injuries on his head. Accused Nos. 22 to 29 allegedly instigated the said accused to assault the deceased. (D) After the incident of assault, the deceased was removed to K.T.S. Hospital, Gondia for medical treatment. Medical Officer, K.T.S. Hospital, Gondia referred the deceased to Medical College and Hospital, Nagpur. The deceased died on the way when he was being carried to Medical College and Hospital, Nagpur. (E) The F.I.R. was lodged by P.W. 7 Babulal Mendhe at the Police Station, Gondia city and the Police Station Officer registered Crime No. 91/90 against the accused and commenced investigation. 4. It is a prosecution case that the accused were arrested on various dates, in the course of the investigation and that an identification parade came to be held on 13-6-1990 in which some of the accused were identified. Also in the course of the investigation, a lathi was recovered at the instance of accused No. 4 and article No. 1 i.e. gamcha was recovered at the instance of accused No. 1. After completion of investigation, a charge-sheet came to be filed. 5. After the matter was committed to the Court of Session, charge was framed against 30 accused (original accused No. 28 Girjabai w/o Jugaram Neware having expired). A charge as aforesaid was framed under sections 147, 148 and 302 read with section 149 of the Indian Penal Code. The accused pleaded not guilty to the charge and came up with the plea of total denial. It is the defence of the accused that a false case was filed against them. 6. By his judgment and order dated 13-5-1994 II Additional Sessions Judge, Gondia has acquitted all the accused of charges under sections 147 and 148. He, however, convicted the present appellants for an offence under section 302 read with section 149 of the Indian Penal Code and sentenced them to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each. It is in these circumstances the present appeal has come to be filed. 7. We have perused the records of this case and gone through the oral evidence as well as the documentary evidence on record. 5,000/- each. It is in these circumstances the present appeal has come to be filed. 7. We have perused the records of this case and gone through the oral evidence as well as the documentary evidence on record. It appears that there is not much dispute on the question as to whether the deceased died a homicidal death. The injuries suffered by him on the head causing internal fracture spoke for themselves . The fact that the deceased died a homicidal death has not been seriously challenged at the hearing of this appeal. The question, however, is as to who has caused the injuries to the deceased. 8. In order to fasten liability on the accused, the prosecution relied upon three eye-witnesses who were as follows:--- (a) P.W. 7 Babulal Mukaji Mendhe, who was the Munim of the father of the deceased working in his rice mill and who at the relevant time was riding on the pillion of the motor cycle and was thus according to the prosecution an eye-witness to the incident. (b) P.W. 1 Ranvir Jaising Uikey who was working as a watchman in the F.C.I. Factory at Gondia where the incident in question took place. This witness according to the prosecution was another eye-witness. (c) P.W. 2 Abhimanyu Chintaman Indurkar who was an employee of the deceased and who was also serving in the rice mill belonging to the family of the deceased. 9. In addition to the aforesaid direct eye-witnesses evidence, the prosecution relied upon other witnesses who corroborated the substantial evidence of the eye-witnesses such as evidence relating to the holding of identification parade by Special Executive Magistrate (P.W. 16 Manohar Ajabrao Raut). Other circumstantial evidence such as discovery of lathi at the behest of original accused No. 4 and gamcha (article No. 1) at the behest of accused No. 1 was also relied upon. 10. As regards P.W. 7 Babulal Mukaji Mendhe, the said witness, though an employee of the father of the deceased, did not support the prosecution case. In his examination-in-chief, he stated that when he and the deceased were returning from F.C.I. on motor cycle, two to three Coolies were standing near the gate and they asked the deceased what he had done about the work. In his examination-in-chief, he stated that when he and the deceased were returning from F.C.I. on motor cycle, two to three Coolies were standing near the gate and they asked the deceased what he had done about the work. He stated that he did not know the names of said Coolies and that he went to the F.C.I. Factory to make a ring at the instance of Rajesh and that when he returned to the spot, he saw that Rajesh was lying on the ground. He stated that he did not know who assaulted the deceased and by what means. He stated that he was not able to state the names of persons who spoke to the deceased and who rounded the gamcha around his neck. This witness has declared hostile by the prosecution. In his cross-examination, he denied that he had stated the accused No. 1 had rounded the gamcha at the neck of Rajesh and pushed him on the ground, but admitted that he has stated that he and deceased Rajesh had fallen on the ground. He reaffirmed that he had not stated the names of labourers who cried 'maro' and the labourers who had assaulted Rajesh with sticks. He again stated that accused No. 1 Shyamlal had rounded gamcha around the neck of deceased Rajesh and pushed him. He denied that he has stated before the police that accused Bakaram Vaidya and others had assaulted deceased Rajesh with fists and blows. He further admitted that in his statement recorded by the Special Judicial Magistrate, he had stated that when he and deceased Rajesh were on motor cycle, accused Shyamlal stopped near the gate and put gamcha around the neck of deceased Rajesh and pulled him on the ground. He categorically affirmed that he had not stated before the Special Judicial Magistrate the names of assailants. He stated that he was not able to give the description of the stick and that he could not identify the stick. That he could not identify the persons from face who were present at the time of incident. He again stated that he could point out the accused persons from face and in the Court he pointed out accused No. 1 Shyamlal. He stated that he had not stated the names of assailants in his F.I.R. lodged with the police. That he could not identify the persons from face who were present at the time of incident. He again stated that he could point out the accused persons from face and in the Court he pointed out accused No. 1 Shyamlal. He stated that he had not stated the names of assailants in his F.I.R. lodged with the police. He admitted that his statement was recorded by the Special Judicial Magistrate one month after his statement was recorded by the police. He admitted that the father of the deceased had taken him in the Court of the Special Judicial Magistrate for recording his statement and had informed him that his statement was to be recorded by the Special Judicial Magistrate. He contended that he had falsely stated in his evidence that he and deceased had come to F.C.I. on the motor cycle. We find that the evidence of P.W. 7 Babulal Mukaji Mendhe who is hostile witness cannot be used by prosecution for any purpose. Apart from the fact that this witness has not supported the prosecution in the examination-in-chief, he has given contrary version even in his cross-examination. This witness is a person who was pinned down by recording of statement before the Special Executive Magistrate. In fact, though this witness was in the employment of the deceased, he has not supported the case of the prosecution. We discard the evidence of P.W. 7 Babulal Mendhe in toto. 11. The next eye-witness P.W. 1 Ranvir Uikey also did not support the prosecution case. In his examination-in-chief, she stated that when he came to the factory, he found that the motor cycle of the deceased was lying outside the gate and that Rajesh had sustained injuries and was lying on the road. He stated that she rushed into the office of the company for reporting the incident and that he had not found any accused on the spot. This witness was declared hostile and cross-examined by the prosecution. In his cross-examination, though he stated that he was called by the Special Executive Magistrate at the time of identification parade and that he had identified the persons who assaulted the deceased in the identification parade, yet he did not remember as to whom he had identified. He denied that he saw accused who assaulted Rajesh with fists, blows and sticks. He denied that he saw accused who assaulted Rajesh with fists, blows and sticks. Suffice to say that this witness also in no way furthers the prosecution case against the appellants. It may be stated that the trial Court has also not placed reliance on the testimony of the witness while convicting the appellants. 12. Then we come to the evidence of P.W. 2 Abhimanyu Chintaman Indurkar. It was the testimony of this witness that he was serving as a Chowkidar in the rice mill of deceased. The deceased came to the rice mill along with P.W. 7 Babulal Mendhe on motor cycle at 9.30 a.m. and told him that he should come to F.C.I. factory. He claims that he started going towards F.C.I. after ten minutes on foot. When he reached the godown of the said factory, he saw that Rajesh was coming on motor cycle from F.C.I. and P.W. 7 Babulal Mendhe was sitting on the back. That accused Premlal, Shymlal, Budhram and Bhaiyyalal asked deceased Rajesh as to what he had done about them. That accused No. 1 Shyamlal rounded gamcha around the neck of Rajesh and pushed him on the ground. Immediately assaults of stick were made on the body of deceased Rajesh. P.W. 7 Babulal Mendhe ran away inside the factory. Then he categorically stated that he did not identify the assailants of Rajesh. We find that it is not safe to place any reliance on the evidence of P.W. 2 Abhimanyu. Besides the fact that he has categorically admitted that he cannot identify the assailants, we also find that his presence on the spot of the incident near the F.C.I. factory at Murri is doubtful. He has admitted in his evidence that one has to go from Sawaratoli to F.C.I. if he has to go from rice mill of deceased Rajesh. Sawaratoli is 15 to 20 kms. from rice mill and 20 kms. from Murri. He has stated that he required 15 to 20 minutes for reaching the F.C.I. factory where the incident took place. It is not possible to believe that the distance of about 40 kms. could be travelled by this witness from 9.40 to 10.30 a.m. from the incident allegedly occurred, when the witness claims that he had started on foot. It is argued that main role is attributed by this witness to accused No. 1 Shyamlal. It is not possible to believe that the distance of about 40 kms. could be travelled by this witness from 9.40 to 10.30 a.m. from the incident allegedly occurred, when the witness claims that he had started on foot. It is argued that main role is attributed by this witness to accused No. 1 Shyamlal. However, this witness has not uttered a word about Shyamlal assaulting or causing injuries to the deceased. 13. Having discarded the three eye-witnesses, the evidence of identification of the appellant at the test identification parade, can carry the prosecution case no further. It has been accepted even by the trial Court that the evidence of test identification parade is not substantive evidence and is corroborative evidence which could be used to corroborate the substantive evidence of witness. Having disbelieved the three eye-witness, we find that mere evidence of identification parade would not help the prosecution to further its case. The discovery of stick at the behest of accused No. 4, cannot help the prosecution case as the said stick has not been identified as a weapon of assault. The discovery of gamcha at the behest of accused No. 1, by itself is no circumstance, as the same also was not identified by the witnesses. 14. Now coming to the judgment of the trial Court, we find that the conviction has been made by the trial Court firstly on the basis of admission made by P.W. 7 Babulal Mukaji Mendhe, who is a hostile witness. The trial Court has accepted that the evidence of hostile witnesses must not be read in part but must be read as a whole. We have hereinabove reproduced the more relevant parts of the evidence of P.W. 7 Babulal Mendhe and we have no hesitation in concluding that the trial Judge has only relied upon stray sentences in his evidence without referring to statements by this witness even during cross-examination which are in the favour of defence. The trial Court has secondly placed reliance on the evidence of P.W. 2 Abhimanyu Indurkar, who is not only an interested witness but has categorically stated that he did not identify the assailants of deceased Rajesh. This vital admission has been ignored by the trial Court. The trial Court has secondly placed reliance on the evidence of P.W. 2 Abhimanyu Indurkar, who is not only an interested witness but has categorically stated that he did not identify the assailants of deceased Rajesh. This vital admission has been ignored by the trial Court. The trial Court has also placed reliance on the fact that the appellants were identified in test of identification parade and discovery of a stick and gamcha as aforesaid. These facts have been taken by the Court as corroborative evidence to the evidence as substantial evidence of P.W. 7 Babulal Mendhe and P.W. 2 Abhimanyu. Having discarded the substantial evidence of P.W. 7 Babulal Mendhe and P.W. 2 Abhimanyu, we find that the evidence relating to identification parade loses its significance as corroborative evidence and discovery evidence by itself cannot carry the prosecution further more so when the articles allegedly discovered are not identified. 15. In the result, we allow this appeal, set aside the judgment and order passed by the II Additional Sessions Judge dated 13-5-1994 passed in Sessions Trial No. 57 of 1990 and acquit the appellants of all charges. We are informed at the bar that the appellants have not paid any fine. No order is thus required relating to the same. Appeal allowed. -----