JUDGMENT As per Hon'ble Shri Dilip Raosaheb Deshmukh, J. :- 1. This appeal is directed against the judgment dated 14th July 1998 delivered by Shri Mahendra Rathore 4th Additional Sessions Judge. Bilaspur in Sessions Case No. 360/1992 whereby the appellants have been convicted under Section 302 I.P.C. read with Section 34 I.P.C. for committing murder of Purushottam on 18-2-1991 in village Jewra in furtherance of their common intention. 2. Briefly stated the prosecution story is that Jawahar Pandey's house is situated in village Jewra. On 18-2-1991 he had gone to Bilaspur. Deceased Purushottam and Pahari P.W. 1 were guarding his house. The appellants came to the house of Jawahar at about 11.00 P.M. and asked Pahari P.W.1 about the whereabouts of the owner. On being told that Jawahar had gone to Bilaspur one of the appellants started smoking a Bidi. Pahari P.W.1 went for attending a call of nature and at that time saw that the appellants had caught hold of Purushottam and were beating him. Pahari P.W.1 went towards the house of Kanha seeking for help and started waking up the villagers. When Pahari (P.W.1) dead in a pool of blood in the Courtyard with several injuries in his chest and stomach. Appellants had run away. 3. F.I.R. was lodged by Firanta P.W 9 in Police Station Chowki Patharia on 19-2-1991. Panchnama of the dead body of Purushottam was prepared vide Ex. P.3 by Sub-Inspector Jagadish Prasad Gupta P.W.12. Spot map Ex.P.5 was got prepared by C.L. Tiwari, Patwari P W 6 on 17-5-1991. During investigation, it came to light that P.W.7 Janki Bai, wife of Purushottam had also seen the appellants in the lane in front of her house while running away from the place of Occurrence. 4. Post-mortem on the dead body of Purushottam was conducted by Dr. AK. Sanyal P.W 10. As many as 19 incised wounds all Over the body of Purushottam were found. Cause of death was opined to be homicidal due to hemorrhage and shock vide report Ex.P9. 5. During the incident Pahari P.W.1 had asked Purushottam as to whether he knew the three appellants who Were asking for Jawahar whereupon Purushottam had said that one of the appellants was Chittu who was the son of Ratna. 6. Cause of death was opined to be homicidal due to hemorrhage and shock vide report Ex.P9. 5. During the incident Pahari P.W.1 had asked Purushottam as to whether he knew the three appellants who Were asking for Jawahar whereupon Purushottam had said that one of the appellants was Chittu who was the son of Ratna. 6. On 26-2-1991 i.e. eight days after the occurrence clothes worn by appellant Chittu i.e. one full pant, one woolen full sleeve Sweater, one leather shoe, a pair of socks and his nails after being cut were seized. On 26-2: 1991 vide Ex.P.15 one half sweater, one terrycot full shirt, one terry-cot full pant, one pair of leather shoes, one pair of blue socks worn by appellant Sudhir Kumar and his nails after being cut were seized. On 16-03-1991 vide seizure memo Ex.P.16, one black coloured leather cover was seized from the appellant Sudesh Kumar. On 17-3-1991 on the memorandum of the appellant Sudesh Kumar vide Ex.P.24-A, one Desi Katta and two live cartridges were seized from inside the well in Kalyan Sagar Tank. Test identification of appellant Chittu @ Hemant and appellant Sudhir Kumar was held in District Jail, Bilaspur on 10th March 1991; Witnesses Pahari PWI and Janki Bai P.W.7 identified both the appellant Chitthu as well as appellant Sudhir whereas witness Banmali P.W2 identified only Chittu. This identification memo is Ex.P.1. On 315-1991 Tahsildar A-Tirki P.W.17 held the test identification of appellant Sudesh in District Jail Bilaspur Pahari PW.1 could not identify Sudesh Kumar, however, Janki Bai PW.7 identified accused appellant Sudesh Kumar. This identification memo is Ex.P.6 7. The articles seized from the appellants were sent for medical examination. The sweater and full shirt seized from appellant Sudhir Kumar as well as the full pant and full sweater seized from appellant Chittu were found to contain blood. These articles were sent to the Serologist and Chemical Examiner who vide report Ex.P.3 did not find any human blood on them. After completion of investigation, the appellants were prosecuted for offences under Section 302/34 I.P.C. The learned Additional Sessions Judge framed charge under Section 302 read with Section 34 I.P.C against the appellants who abjured their guilt. The prosecution examined as many as 17 witnesses. After completion of investigation, the appellants were prosecuted for offences under Section 302/34 I.P.C. The learned Additional Sessions Judge framed charge under Section 302 read with Section 34 I.P.C against the appellants who abjured their guilt. The prosecution examined as many as 17 witnesses. The appellants in their examination under Section 313 Cr.P.C. stated that they were shown to the witnesses prior to the test identification when they used to attend Court from the jail. The appellants examined Bishwadhar Diwan in defence who testified that there is no electric poll in front of the house of Janki Bai P.W.7. The learned trial Judge relying upon the prosecution evidence convicted the appellants for committing murder of Purushottam and awarded sentence as mentioned in paragraph 1 supra. 8. The learned counsel for the appellants have not disputed the finding of the trial judge that Purushottam had died a homicidal death. They have, however, vehemently argued that there is no legal evidence to connect the appellants with the murder of Purushottam. The evidence of Pahari P.W.1. Janki Bai P.W.7, Banmali P.W.2, Naib Tahsildar Rewalal Dewangan PW.16 and Tahsildar A. Tirki P.W.7 did not establish beyond doubt that the accused appellants were seen by Pahari P.W.1 and Janki Bai P.W.7 at the place of occurrence and had been identified by Pahari P.W.1 and Janki Bai P.W.7 as the assailants who committed the murder of Purushottam. It was also contended that appellant Chittu @ Hemant was not named in the F.I.R. lodged by Firanta vide Ex.P.8 which rendered the testimony of Pahari P.W.1 in paragraph 3 wholly unreliable that Purushottam had told Pahari P.W.1 that one of the persons who had come to the house of Jawahar on the night of 182-1991 was Chittu @ Hemant who was the son of Ratna. It was also contended that no weapon was seized from the appellant Chittu. Counsel for the appellants argued that there was no legal evidence to establish the guilt of the appellants under Section 302 read with Section 34 I.P.C. On the other hand. the learned Government Advocate argued in support of the judgment of the trial Court 9. We have considered the rival submissions. We have also gone through the record. So far as the death of Purushottam being homklc1al is concerned, the testimony of Dr. the learned Government Advocate argued in support of the judgment of the trial Court 9. We have considered the rival submissions. We have also gone through the record. So far as the death of Purushottam being homklc1al is concerned, the testimony of Dr. A.K. Sanyal P. W. 10 leaves absolutely no manner of doubt that Purusholtam had died a homicidal death due to hemorrhage and shock. As many as 19 incised wounds had been inflicted on his body. According to Dr. Sanyal, these injuries were ante mortem, sufficient in the ordinary course of nature to cause death which was homicidal. It is thus established that Purushottam had died a homicidal death due to the injuries sustained by him on the night of 18-2-1991. 10. The only question in this appeal which remains for our consideration is whether the evidence of Pahari P.W.1 and Janki Bai PW.7 and the evidence relating to test identification of the appellants by Pahari P.W1 and Janaki Bai P.W.7 inspires confidence and establishes the guilt of the appellants under Section 302/34 I.P.C. Pahari P.W1 is the witness who was with deceased Purushottam at the time when the assailants first arrived at the house of Jawahar. In paragraph 3 of his testimony, he has stated that when those three persons went in the Parchee of the house of Jawahar, Purushottam had told him that one of them was Chittu son of Ratna. If this was true, it would have meant that Pahari P.W1 knew that Chittu son of Ratna was one of the assailants. However, this testimony is wholly unreliable. Firstly, because in paragraph 10, Pahari P.W1 has stated that he did not inform the Kotwar that one of the assailants was Chittu. In paragraph 11, he has also stated that even during inquest by the police he did not inform either Jawahar Pandey or the police that one of the assailants was Chittu. Firanta P.W.9 is the witness who has in paragraph 6 stated that he reached the place of occurrence alongwith Pahari P.W1 and other villagers. In paragraph 7, he has categorically stated that Pahari did not tell anything to him. Firanta P.W.9 is the witness who has in paragraph 6 stated that he reached the place of occurrence alongwith Pahari P.W1 and other villagers. In paragraph 7, he has categorically stated that Pahari did not tell anything to him. If Pahari P.W.1 had seen the assailants and if the deceased had told him that one of the assailants was Chittu, then this would have certainly found place in the F.I.R. Ex.P.8 lodged by Firanta P.W9 on the next date at Police Station Patharia Chowki which specifically narrates that Pahari P.W1 who was the shepherd of Jawahar Pandey. had only told him that the three assailants had killed Purusholtam and had further chased him when he ran away. The delay in arresting Chittu and in holding his test identification by the Police also creates strong suspicion. Thus the testimony of Pahari that Purushottam had told him that one of the assailants was Chittu is wholly unreliable. 11. If Pahari P.W.1 had seen the assailants assaulting Purushottam, he would have definitely known the nature of weapons by which Purushottam was being assaulted by the assailants. However, in his entire testimony, Pahari P.W.1 has not said even a word about it. On the contrary, in paragraph 9, he has stated that the three assailants werehitting Purushottam with fists and kicks. Purushottam had sustained as many as 19 incised wounds all over his body, therefore, it was wholly impossible that the assailants were merely hitting him with kicks and fists. This also lends support to the inference that Pahari did not see the assailants who had inflicted incised wounds on Purushottam. 12. The testimony of Pahari P.W1 in paragraph 5 of his examination in-chief is very important. He has said that 8 days after the occurrence, the police had asked him to identify the appellants in Bilaspur but he could not identify any of them. This statement completely demolishes the testimony of Pahari that he had identified the three appellants in Bilaspur jail. 13. Coming to the testimony of Janki Bai P.W 7, we find that she is the wife of deceased Purushottam. The spot map Ex. P. 5 prepared by C.L. Tiwari P. W. 6 does not show that there is any electric light pole near the house of Janki Bai P.W.7. 13. Coming to the testimony of Janki Bai P.W 7, we find that she is the wife of deceased Purushottam. The spot map Ex. P. 5 prepared by C.L. Tiwari P. W. 6 does not show that there is any electric light pole near the house of Janki Bai P.W.7. It clearly shows that the place of occurrence at No.1 is definitely not visible from the house of Purushottam at No. 10 where Janki Bai is alleged to have been sleeping. Janki Bai P.W.7 has narrated that while she was sleeping inside her house with her children, she heard the sound of motorcycle followed by shouts and one or two gun shots. However, Pahari P.W.1 has not said anything about any gun shots having been fired. Janki Bai P.W.7 has deposed that she had opened the door to check the ti me and had seen three persons in the house of Jawahar Pandey. She does not state anything about any weapon being carried by those three persons. In paragraph 19, she has stated that she had never seen those persons before the occurrence. So far as hearing the sound of motorcycle is concerned, this witness was confronted with her case diary statement Ex.D.2 in which she did not mention that she had heard noise of motorcycle. In paragraph 18, Janki Bai P.W.7 has stated that on hearing the sound of gun shots, she had opened the back door of her house which further makes her testimony wholly unreliable that she could have seen the appellants moving in the lane (gali) in front of her house. If Janki Bai had seen the appellants on the night of occurrence in the lane (gali) in front of her house, this fact would have certainly found place in the F.I.R. lodged on 19-2-1991 by Firanta P.W.9. In paragraph 15, she has stated that when she asked Pahari as to what he was doing at the time of occurrence, Pahari had not told her anything about the occurrence. This also lends full support to the inference drawn by us that Pahari P.W.1 is a wholly unreliable witness and had not seen the assailants at the time of occurrence. It is also pertinent to note that these witnesses Pahari and Janki Bai have not given any description of the assailants in their statements or in oral evidence. This also lends full support to the inference drawn by us that Pahari P.W.1 is a wholly unreliable witness and had not seen the assailants at the time of occurrence. It is also pertinent to note that these witnesses Pahari and Janki Bai have not given any description of the assailants in their statements or in oral evidence. They have also not disclosed as to whether the assailants were carrying any weapon in their hands at the time of occurrence or while fleeing after the occurrence. The testimony of Pahari P.W.1 that the assailants were only beating Purushottam with fists and kicks is wholly unreliable and has been dealt by us in para 11 (supra). Relying on Wakil Singh and others Vs. State of Bihar. we have no hesitation in holding that the test identification of the appellants by these witnesses after a long unexplained delay creates a strong suspicion and conviction of the appellants cannot be based on the identification of the appellants by these witnesses. 14. The test identification parade of appellant Chittu and Sudhir Kumar was conducted inside the District Jail, Bilaspur on 10-03-1991 by P.W16 Naib Tahsildar Rewalal Dewangan. However. both these appellants were in police custody on 26-2-1991 since on that day clothes worn by them were seized vide Ex.P.14 and Ex.P.15. Thus no sufficient explanation is given by the prosecution as to why the test identification of appellants Chittu and Sudhir Kumar by Pahari P.W1 and Janki Bai PW7 was done as late as on 10-03-1991. It is also pertinent to note that in identification memo Ex.P.1. It has not been mentioned as to how these witnesses Pahari and Janki Bai identified the appellants Chittu and Sudhir Kumar. Merely saying that "identified by pointing towards the face" would not be sufficient. To illustrate it could have been like this "identified as the person seen running in the lane after the Occurrence" or "identified as the person who had assaulted Purushottam." Without any such mention in the test identification memo, it cannot be read to infer that Pahari and Janki Bai had identified appellant Chittu and Sudhir Kumar either as the assailants of Purushottam or as the persons whom Janki Bai had seen moving in the lane in front of her house at the time of occurrence. Similarly, so far as the appellant Sudesh is concerned, he was in police custody from 4-3-1991 and also on 15-3-1991 when the police had recorded his memorandum vide Ex.P.11. Despite this, it has not been explained as to why the test identification of the appellant Sudesh was delayed as late as 31st May 1991. Sub-Inspector Mathura Prasad Sahani P.W.14 and Station House Officer Rajendra Singh P.W.15 have, in their testimony, not stated that face of the appellants had been covered during investigation or during the period when the appellants were sent to Court for seeking police or judicial remand. The defence of the appellants, therefore, seems plausible that pahari PW.1 and Janki Bai PW.7 had the opportunity to see the appellants while they were being taken to the Court for police or judicial remand. The inordinate delay in holding the test identification parade has not been explained by the prosecution. The Apex Court in Hari Natll and another Vs. State of U.P held that the conducting an identification parade belongs to the realm and is part of the investigation. The evidence of test identification is admissible under Section 9 of Evidence Act. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test. Where the test identification parade was held after unexplained delay of 4 months after arrest of accused, the benefits of this regrettable and wholly unexplained lack of promptitude in holding the test identification enured to the accused. 15. So far as the evidence relating to the seizure of sweater and full shirt from the appel1ant Sudhir Kumar and the full pant and sweater from the appellant Chittu is concerned, the report of the Serologist and Chemical Examiner Ex.P.34 clearly shows that presence of human blood on these articles has also not been confirmed. Therefore. seizure memos Ex.P.14 and P.15 do not provide any link in the chain of circumstantial evidence against the appellants. Any weapon alleged to have been used by the appellants during the assault on Purushottam has not been seized during investigation. Therefore. seizure memos Ex.P.14 and P.15 do not provide any link in the chain of circumstantial evidence against the appellants. Any weapon alleged to have been used by the appellants during the assault on Purushottam has not been seized during investigation. Even the delay in preparation of the spot map by Patwari has not been explained since the spot map Ex.P.5 was prepared after about 3 months by C.L. Tiwari P.W.6 on 17-5-1991. 16. Since the testimony of hearing gun shots by Janki Bai P.W.7 at the time of occurrence is not supported by Pahari P.W.1 who was with the deceased when the assault started, it appears highly improbable that Janki Bai who was sleeping inside her house had come out to see the appellants moving out in the lane. So far as her testimony regarding hearing the sound of motorcycle is concerned, it is not trustworthy because this was not stated by Janki Bai in her statement to the Police. Thus, the evidence of Janki Bai P.W.7 that she had seen assailants run away from the place of occurrence is highly doubtful. Firanta P.W.9 has in paragraph 15 stated that till lodging the F.I.R. the assailants of Purushottam were not known also clears a dent in the prosecution story. 17. Thus, after having considered the evidence led by the prosecution in its entirety, we have no hesitation in holding that prosecution has failed to bring home the guilt under Section 302 read with Section 34 of I.P.C. against the appellants beyond reasonable doubt. The conviction of the appellants solely on the basis of a very delayed test identification cannot be sustained in the above mentioned circumstances. 18. In the result, the appeal is allowed. The appellants are acquitted of the charge under Section 302 read with Section 34 of the I.PC. The appellants be set at liberty forthwith if not required in other case. Appeal Allowed.