Judgment (V.M. Kanade, J.) This appeal is filed challenging the judgment and order passed by the Additional Sessions Judge, Greater Bombay dated 18/8/2004 whereby the appellants -original accused Nos.1 and 2 were convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and they were sentenced to undergo imprisonment for life and to pay fine of Rs.4,000/-and, in default, to suffer further rigorous imprisonment for three months. 2. Prosecution case, in brief, is that one Sayed Umar Shah had advised some young boys who were indulging in the act of eve teasing and they were given understanding that they should not indulge in such mischievous acts. Thereafter, on 20/11/1995, P.W. 1 -Sayed Bashir, Sayed Umar Shah and P.W. 2 -Fakruddin Shaikh had gone to Shiavji Nagar to get the Passport of deceased Sayed Umar Shah from one Kalam. Since they did not meet Kalam, they were returning back and, at that time, according to them, 2/3 persons came from behind and assaulted Sayed Umar Shah with wooden log on his head, as a result of which he fell down and P.W.1 and P.W.2 informed the Police Constable in the Police Chowki which was nearby and then Sayed Umar Shah was removed to the hospital. However, he succumbed to the injuries. Statements of witnesses were recorded and the accused were arrested. 3. Prosecution examined 12 witnesses. Trial Court, on the basis of evidence which was adduced by the prosecution, convicted the accused for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for life. 4. The learned Counsel appearing on behalf of the appellants submitted that P.W.1 and P.W.2 had made number of improvements in their examination-in-chief and, in the cross-examination, the improvements in their testimony were brought on record. It is submitted that these witnesses (P.W.1 and P.W.2) admitted that they had not made the statements which they had made in the examination-in-chief before the police. It is submitted that two separate test identification parades were held and on 28/10/2005, accused No.1 was identified by P.W.2 who alone was called for identification parade, whereas in the second test identification parade which was held on 02/11/1995, P.W.1 alone was called and he identified accused No.2 as an assailant. It is submitted that two separate test identification parades were held and on 28/10/2005, accused No.1 was identified by P.W.2 who alone was called for identification parade, whereas in the second test identification parade which was held on 02/11/1995, P.W.1 alone was called and he identified accused No.2 as an assailant. It is submitted that there was only one wound on the head of the deceased and, therefore, the contention of witnesses that both the accused had assaulted the deceased with wooden logs could not be accepted. It is submitted that the Investigating Officer should have kept both the witnesses present at the test identification parade in order to find out whether both the witnesses could identify the accused at the same time. It is submitted that since two separate identification parades were held, the Investigating Officer was certain that the accused No.1 would be identified by P.W.2 and P.W.1 would identify accused No.2. It is submitted that this clearly created a doubt that the accused were clearly shown to both the witnesses in advance and, therefore, no reliance could be placed on their testimony. The learned Counsel for the appellants has taken us though the judgment and order of the Trial Court as also through the notes of evidence. 5. The learned APP appearing on behalf of the State, on the other hand, supported the findings given by the Trial Court and has submitted that in view of the testimony of P.W.2 and the medical evidence which was brought on record, Trial Court was justified in convicting the accused for the offence punishable under section 302 read with section 34 of the Indian Penal Code. 6. We have given our anxious consideration to the submissions made by the learned Counsel appearing on behalf of the appellants and the learned APP appearing on behalf of the State. 7. In our view, there is much substance in the submissions made by the learned Counsel appearing on behalf of the appellants. From the evidence of P.W.1 and P.W.2, it can be seen that both of them have made number of improvements in their case. P.W.1 in his statement has stated that 2/3 persons came from behind and they assaulted the deceased Sayed Umar Shah on his head. He then stated that, thereafter, again, accused gave 2/3 blows to the deceased Sayed Umar Shah. P.W.1 in his statement has stated that 2/3 persons came from behind and they assaulted the deceased Sayed Umar Shah on his head. He then stated that, thereafter, again, accused gave 2/3 blows to the deceased Sayed Umar Shah. In his cross-examination, P.W.1 admitted that he had lodged a report against three unknown persons and that Fakruddin was present whenever police recorded his statement. He has admitted in his cross-examination that the statement that the assailants had again tried to assault Sayed Umar Shah after he fell down, was not mentioned in the statement which was recorded by the police. He then stated in his cross-examination that in the statement before the police, he had stated that two persons assaulted Sayed Umar Shah and he then admitted that this fact was not mentioned in his statement before the police. Thereafter, he has admitted that three persons had tried to assault them after the assault on Sayed Umar Shah and, at that time, he could see face of one person and recognized accused No.2. P.W.2, on the other hand, has stated that when they were on the high way, somebody from behind assaulted Sayed Umar Shah with a wooden log. It can be seen, therefore, so far as these two witnesses are concerned, it is difficult to rely on their testimony, firstly because, admittedly, they have made number of improvements in their case. Initially, they have stated that some unknown persons assaulted Sayed Umar Shah from behind and, thereafter, there is a discrepancy about number of persons who assaulted the deceased Sayed Umar Shah. Initially, these witnesses have stated that there were two persons. However, later on, they have changed the version and stated that three persons had assaulted the deceased. Another improvement is regarding the number of assaults made by the accused. Before the police, they have stated that some unknown persons assaulted the deceased from behind by giving one blow on the head. However, before the Court, they have stated that even after the deceased fell down, more blows were given to the deceased. This testimony is not corroborated by the medical evidence which shows that there was only one blow on the head which had caused the death of the deceased. Therefore, ocular evidence of these two witnesses (P.W. 1 and P.W.2) is not supported by the testimony of doctor who had performed the postmortem. 8. This testimony is not corroborated by the medical evidence which shows that there was only one blow on the head which had caused the death of the deceased. Therefore, ocular evidence of these two witnesses (P.W. 1 and P.W.2) is not supported by the testimony of doctor who had performed the postmortem. 8. Apart from these discrepancies, it is difficult to rely on the test identification parade which was held by the Investigating Officer. Normally, Special Executive Magistrate should have taken the identification parade in respect of both the accused by both the witnesses. However, it is surprising that in the first identification parade which was held on 28/10/1995, only P.W.2 was present and he identified only one accused viz accused No.1 and, in the second identification parade which was held on 02/11/1995, only P.W.1 was present and he identified accused No.2 which clearly demonstrated that the Investigating Officer knew that P.W.2 would not identify accused No.2 and that P.W.1 would not identify accused No.1. This, therefore, raises a suspicion and indicates that, possibly, the accused were shown to the respective witnesses before the test identification parade. It is, therefore, unsafe to rely on the identification made by these two witnesses (P.W. 1 and P.W. 2) in the test identification parade. In their testimony, they have clearly stated that the assailants had assaulted the deceased from behind and, therefore, even these witnesses could not have seen the accused since the assault came from behind them. The accused, therefore, are entitled to be given a benefit of doubt. The Judgment and order passed by the Trial Court is, therefore, liable to be set aside. 9. In the result the following order is passed:- ORDER Criminal Appeal is allowed. The Judgment and order of the Trial Court is set aside. The appellants are acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Appellants be released forthwith unless they are required in any other case.