ORDER Criminal Appeal No.1896/2007 has been filed by accused-appellant Sattu @ Satya Narayan challenging judgment and order dated 07.07.2007 passed by learned Additional Sessions Judge (Fast Track) No.2, Kota, in Sessions Case No.33/2004, whereby he has been convicted for offence under Sections 302 read with Section 34 of the Indian Penal Code and sentenced to suffer life imprisonment with fine of Rs.5000/-; in default, to further undergo six months additional simple imprisonment. 2. Criminal Appeal No.190/2008 has been registered on grant of leave by this court in D.B. Criminal Leave to Appeal No.6/2008 filed by the State of Rajasthan, challenging acquittal of accused-respondent Bada Yusuf @ Mohammad Yusuf @ Yusuf Kabadi, for offence under Sections 120-B, 302 or 302 read with Section 34 and 201 IPC and accused-respondent Sattu @ Satya Narayan Meena for offence under Section 120-B and 201 IPC. 3. During investigation in a case arising out of F.I.R. No.390/2001 registered at Police Station Nayapura, Kota, four persons, namely, Pappu @ Gajanand @ Gadiya @ Langda, Chhota Yusuf @ Abdul Yusuf, Bada Yusuf @ Mohd. Yusuf @ Yusuf Kabadi, and Sattu @ Satya Narayan Meena, were arrayed as accused. However, after completing investigation, initially charge-sheet was filed only against accused Pappu, Chhota Yusuf and Abdul Hamid. But, investigation under Section 173 (8) of the Cr.P.C. was kept pending against co-accused, namely, Bada Yusuf @ Mohammad Yusuf, Sattu @ Satya Narayan, Prithvi Singh @ Pappu Bana and Bhupendra Singh Chudawat. Later on, the police filed challan on 23.02.2004 under Section 299 of the Cr.P.C. against appellant Sattu @ Satya Narayan and co-accused Bada Yusuf @ Mohammad Yusuf @ Yusuf Kabadi for offence under Sections 302 read with Section 34, 120-B, 201 IPC, and dropped investigation against co-accused Prithvi Singh @ Pappu Bana and Bhupendra Singh Chudawat. When appellant Sattu @ Satya Narayan was later arrested in connection with offence under NDPS Act on 02.06.2004, the police arrested appellant Sattu @ Satya Narayan on 15.07.2004 in this case on production warrant from jail in the present case. The prosecution examined eighteen witnesses in support of the case and exhibited 23 documents. The defence, however, exhibited nine documents but did not produce any witness. Abdul Hamid stood discharged on 07.02.2002. Therefore, initially the trial was held against accused Pappu and Chhota Yusuf. The prosecution examined eighteen witnesses in support of the case and exhibited 23 documents. The defence, however, exhibited nine documents but did not produce any witness. Abdul Hamid stood discharged on 07.02.2002. Therefore, initially the trial was held against accused Pappu and Chhota Yusuf. By judgment dated 05.06.2004, Pappu and Chhota Yusuf were convicted for offence under Section 302 IPC and Section 4/25 of the Arms Act. Since Pappu and Chhota Yusuf were aggrieved of said judgment, they filed D.B. Criminal Appeal No.749/2004, which was decided by this court by judgment dated 08.12.2009 upholding their conviction and dismissing their appeal. 4. After trial, learned Additional Sessions Judge (Fast Track) No.2, Kota, by impugned judgment dated 07.07.2007, convicted accused Sattu @ Satya Narayan for offence under Sections 302 read with Section 34 IPC, and acquitted Bada Yusuf of offences under Sections 120-B, 302 or 302/34 and 201 IPC. 5. Facts of the case unfolding from the record are that on 28.07.2001 one Gurucharan Singh submitted a written report (Exhibit P-7) to Shri Dev Chand Mehara, Sub Inspector (PW-10), who was Station House Officer, Nayapura, Kota, regarding incident, which took place on that date, leading to murder of his brother Amarjit Singh. It was stated in the report that on that date his brother Amarjit Singh, as usual, left the home at about 6.30-6.45 AM to reach Ummed Singh Stadium, Nayapura, Kota, for jogging. His brother was brought home on a scooter at 7.20 AM in severely injured condition by one Manoj Galav. He was soaked in blood. On enquiry, it was given out by Manoj Galav that he and his brother were jogging in Ummed Singh Stadium. When they reached the way near main road leading to stadium, they saw a boy aged about 20-22 years, wearing black pant and blue lining shirt, sitting near bridge over drainage, on its right side, and two boys aged 20-22 years, were sitting towards left side of the bridge over the drainage. Out of them, one had mustache and his height was 5'8”, and another boy wearing pant and shirt, was of wheatish colour and his height was 5'6”. He further stated that so soon he and Amarjit Singh reached near the bridge over drainage, boys of both the sides stood up and attacked Amarjit Singh with sharp edged weapon like 'gupti', due to which Amarjit Singh sustained injuries on his chest and stomach. He further stated that so soon he and Amarjit Singh reached near the bridge over drainage, boys of both the sides stood up and attacked Amarjit Singh with sharp edged weapon like 'gupti', due to which Amarjit Singh sustained injuries on his chest and stomach. When Manoj Galav took care of Amarjit Singh, those three boys suddenly fled away towards Nayapura, Kota. Manoj Galav took lift from one scooter rider and brought Amarjit Singh to the house. Manoj Galav could recognize these boys and 2-3 other persons, standing nearby the place of incidence, if they were brought before him. Thereafter, the informant, Manoj Galav and scooter rider, took Amarjit Singh to M.B.S Hospital, Kota, where doctors declared him brought dead. 6. Shri S.S. Hasan, learned counsel for appellant Sattu @ Satya Narayan, has argued that is a concocted case against accused-appellant and that he has been falsely framed. Neither the appellant was named in the FIR nor in the statements of so-called eye witnesses, namely, Manoj Galav (PW-4), Daljit Singh (PW-7) and Rajendra Singh (PW-9), recorded under Section 161 Cr.P.C. or under Section 164 of the Cr.P.C. There is no evidence to connect the accused-appellant with the crime. Even in original charge-sheet that was filed against co-accused earlier, no evidence was there naming him as accused. Deepak Bhargava (PW-3), in his statement, has not disclosed any role of accused-appellant. In fact, Deepak Bhargava (PW-3), in his cross-examination, has stated that he did not make any additional or further investigation and filed challan on the basis of material collected by the previous Investigating Officer. He has stated that the motorcycle of co-accused Bada Yusuf was used by the accused-appellant in the crime and, after the incident, Chhota Yusuf and Pappu Raibari @ Ghanshyam handed over their blood stained clothes to Bada Yusuf and cell phone, that was being used by Pappu Raibari at the time of incident, was of Bada Yusuf. Had accused-appellant Sattu @ Satya Narayan been present at the scene of occurrence, he would have also likewise handed over his blood stained clothes to Bada Yusuf. 7. Shri S.S. Hasan, learned counsel for accused-appellant, further argued that learned trial court has committed serious mistake in relying on statement of Manoj Galav (PW-4), Daljit Singh (PW-7) and Rajendra Singh (PW-9). These witnesses are highly interested witnesses and do not inspire confidence. Their conduct is highly unnatural. 7. Shri S.S. Hasan, learned counsel for accused-appellant, further argued that learned trial court has committed serious mistake in relying on statement of Manoj Galav (PW-4), Daljit Singh (PW-7) and Rajendra Singh (PW-9). These witnesses are highly interested witnesses and do not inspire confidence. Their conduct is highly unnatural. Their police statement has been recorded 3-4 days after the incident and that during this period, they did not tell/inform anyone about the incidence. Learned trial court did not accept their version in so far as allegations against Bada Yusuf on the same evidence is concerned. Conduct of witnesses, namely, Daljit Singh (PW-7) and Rajendra Singh (PW-9) was highly unnatural and they were planted witnesses. These witnesses could be introduced later because already room was created for them in the FIR itself alleging that 2-3 persons standing nearby the place of incident also witnessed the occurrence and could recognize the accused. And, witnesses, namely, Daljit Singh (PW7) and Rajendra Singh (PW-9) have been planted as those two persons. The fact that they are bogus witnesses, is evident from their police statements under Section 161 Cr.P.C. (Exhibit D-4 and Exhibit D-7), which were recorded belatedly on 28/30.07.2001, that they made witnesses at the instance of father of deceased. These two witnesses, in their statements, have admitted that they did not inform the police earlier about the fact of their being eye witnesses of incident. They did not make any hue and cry on seeing the incident and did not try to save the deceased. They even did not report the matter to the police because they were unaware as to whom the accused were beating. Daljit Singh (PW-7) further stated that when they narrated the story to uncle of Rajendra Singh (PW9), who was Conductor in the Rajasthan Roadways, he told them it was their wish if they wanted to report the matter to the police. Later on, they came to know that the boy, who was murdered, was grandson of Gyani Karam Singh Ji. In cross-examination, both of them have stated to have visited the house of deceased to condole his death because he also belonged to sikh community and these witnesses are also of same community. Learned counsel therefore submitted that these witnesses hardly inspire any confidence and cannot be relied to sustain conviction of the accused-appellant. 8. In cross-examination, both of them have stated to have visited the house of deceased to condole his death because he also belonged to sikh community and these witnesses are also of same community. Learned counsel therefore submitted that these witnesses hardly inspire any confidence and cannot be relied to sustain conviction of the accused-appellant. 8. Shri S.S. Hasan, learned counsel for accused-appellant, further argued that statements of Manoj Galav (PW-3), Daljit Singh (PW-7) and Rajendra Singh (PW-9) are even otherwise highly contradictory and inconsistent. They have made number of improvements. There are contradictions in their statements recorded by the police under Section 161 Cr.P.C. (Exhibit D-1, D-4 and D-7) and previous court statements (Exhibit P-12 and P-13). Identification proceedings (Exhibit P-10) held on 19.07.2004, were highly suspicious and could not be relied because the accused-appellant was shown to all three eye witnesses, namely, Manoj Galav (PW4), Daljit Singh (PW-7) and Rajendra Singh (PW-9) in the police station. In fact, when the accused was arrested in respect of the offence under N.D.P.S. Act on 02.06.2004, his photograph was published in the Rajasthan Patrika, Kota Edition, on 03.06.2004 (Exhibit D-1). The accused-appellant raised this objection before the Magistrate conducting the test identification parade that his photograph was published in the newspaper and that he was shown to the witnesses in the police station and a note to the effect has been made by the Magistrate in identification proceedings (Exhibit P-10). Besides, learned counsel argued that no recovery whatsoever has been made at the instance of accused-appellant. The falsehood of the witness Rajendra Singh (PW-9) stood exposed when a question was specifically put to him during his court statement on 19.11.2005 whether any of the three accused beating deceased was present in the court, he said none of them was present, whereas the accused-appellant on that day was present in the court. No motive has been proved against accused-appellant as to why he would murder Amarjit Singh. Neither he had any enmity with him nor otherwise had any interest in doing so. In fact, Deepak Bhargava (PW-3), the Investigating Officer, in whole of his statement, has not uttered a single word as to what new additional evidence he found against accused-appellant and as to how he could file charge-sheet against accused-appellant Sattu @ Satya Narayan because in earlier investigation, Investigating Officer Bharat Singh (PW-17) did nothing. In fact, Deepak Bhargava (PW-3), the Investigating Officer, in whole of his statement, has not uttered a single word as to what new additional evidence he found against accused-appellant and as to how he could file charge-sheet against accused-appellant Sattu @ Satya Narayan because in earlier investigation, Investigating Officer Bharat Singh (PW-17) did nothing. Even earlier Investigating Officer Deepak Bhargava (PW-3) and Ramji Lal (PW-16) did not utter a single word against accused-appellant. Genesis of incident has thus been suppressed by the prosecution. 10. Shri S.S. Hasan, learned counsel for the accused-appellant, submitted that deceased Amarjit Singh had love affair with one Neha D/o Bhupendra Singh Chudawat, the then Circle Inspector of Police Station Nayapura, Kota. Manish (PW-5), a friend of deceased Amarjit Singh, in his statement, has proved the fact that deceased Amarjit Singh used to frequently talk to Neha from STD booth. On one day, when Neha and her mother went to cinema hall, Amarjit Singh met them on the way. Her mother called two-three persons belonging to 'harijan' community, who gave thrashing to Amarjit Singh and threatened him of dire consequence if he ever talked to Neha. This witness has also stated that Amarjit Singh had also friendship with several girls including one Komal, about whom he and his brother had a quarrel with Iliyas, in which his brother sustained injuries. Amarjit Singh had enmity with 5-7 persons in Kota city, which included Sardar of RTO road, another Sardar of station road, Saleem and Iliyas. None of these witnesses were produced in the court by the police so as to prove the incident. Thus, genesis of the incident has been completely suppressed. Nagendra (PW-11) has also stated that deceased had love affairs with Neha. One day he saw that when Neha and Amarjit Singh were coming from the side of stadium, Prithvi Singh, maternal-uncle of Neha, quarrelled with Amarjit Singh and threatened him of dire consequences and soon thereafter deceased Amarjit Singh was murdered. In fact, Prithvi Singh went to the house of Amarjit Singh with 5-7 persons and threatened him. On the fateful day when Amarjit Singh died, Neha came to his house. She was crying when she came there. Mother of Amarjit Singh asked other people to take her out. This witness further stated that Amarjit Singh even had relation with one girl named Jyoti. On the fateful day when Amarjit Singh died, Neha came to his house. She was crying when she came there. Mother of Amarjit Singh asked other people to take her out. This witness further stated that Amarjit Singh even had relation with one girl named Jyoti. Learned counsel argued that the police only wanted to help their brothern, which is why they did not file charge-sheet against the Circle Inspector Bhupendra Singh Chudawat, who was responsible for murder of the deceased, because his daughter was deeply in love with deceased. Even though the investigation was kept pending against Bhupendra Singh Chudawat, the Circle Inspector, and his brother-in-law Prithvi Singh, but police while filing charge-sheet against accused-appellant Sattu @ Satya Narayan and Bada Yusuf, dropped the investigation against them, without giving any reason as to what investigation they conducted against them and how and on what basis they have been given clean-chit. Learned counsel argued that the appellant has been falsely implicated in the present case and that the impugned judgment be set aside and accused-appellant Sattu @ Satya Narayan be acquitted of the charges. 11. Per contra, Shri Sudesh Saini, learned Public Prosecutor argued that guilt of the accused appellant has been proved beyond reasonable doubt inasmuch as he has rightly been convicted for offence under Section 302 read with Section 34 of the IPC. There are three eye witnesses to the incident, namely, Manoj Galav (PW-4), Daljit Singh (PW-7) and Rajendra Singh (PW-9), who have in their testimony categorically proved active participation and role of accused-appellant in the murder of Amarjit Singh as third accused. Learned Public Prosecutor, in particular, emphasized that Manoj Galav (PW-4) has given description of the accused-appellant in his statement in the court, which fully corroborates what he narrated in his earlier statement under Section 164 of the Cr.P.C. Manoj Galav (PW-4) has stated that he neither read the newspapers nor saw the photograph of the accused-appellant. He has denied that accused was shown to him in the police station. Manoj Galav (PW-4) has correctly identified the accused-appellant in the test identification parade. 12. Learned Public Prosecutor argued that Daljit Singh (PW-7) and Rajendra Singh (PW-9) are natural witnesses. They happened to pass by the place of incident and noticed accused-appellant beating the deceased. He has denied that accused was shown to him in the police station. Manoj Galav (PW-4) has correctly identified the accused-appellant in the test identification parade. 12. Learned Public Prosecutor argued that Daljit Singh (PW-7) and Rajendra Singh (PW-9) are natural witnesses. They happened to pass by the place of incident and noticed accused-appellant beating the deceased. At that time, they did not know as to who the deceased was but later they learnt that he was grandson of Gyani Karam Singh Ji. Daljit Singh (PW-7) has categorically stated that he identified the accused-appellant in test identification parade conducted inside the jail (Exhibit P-10) and admitted his signatures on that document. There was nothing unusual if for three days he did not disclose this incident. His testimony can not be discarded merely because he has in cross-examination stated that he and Rajendra Singh did not want to get involved in the police matter. He has also denied that accused was shown to him during test identification parade. 13. Similar statement has been made by Rajendra Singh (PW-9) that he saw the accused causing murder of Amarjit Singh. He has stated that Amarjit Singh had his back towards them, therefore, they could not recognize him. Learned Public Prosecutor argued that test identification parade (Exhibit P-10) has been proved by the Judicial Magistrate Shri Gyarsi Lal (PW-18). He has stated that Manoj Galav (PW-4), Daljit Singh (PW-7) and Rajendra Singh (PW-9) correctly identified accused appellant Sattu @ Satya Narayan. Assertion of the accused that his photograph was published in the newspaper and that he was shown to these witnesses in the police station before the test identification parade, was a claver plea set up by the defence, which it failed to prove. Learned Public Prosecutor argued that conviction of the accused-appellant can be based on test identification parade alone. Co-accused Gajanand @ Pappu Rebari and Chhota Yusuf @ Abdul Yusuf have been convicted on the basis of same evidence in earlier trial by judgment of the Additional Sessions Judge No.2 (Fast Track) Kota dated 05.06.2004. Their appeal has been dismissed by this court vide judgment dated 08.12.2009, the conviction has been upheld. Present appeal also therefore deserves to be dismissed. 14. Learned Public Prosecutor, in support of his arguments, has relied on judgments of the Supreme Court in Pravin Vs. Their appeal has been dismissed by this court vide judgment dated 08.12.2009, the conviction has been upheld. Present appeal also therefore deserves to be dismissed. 14. Learned Public Prosecutor, in support of his arguments, has relied on judgments of the Supreme Court in Pravin Vs. State of Madhya Pradesh in Criminal Appeal No.546/2008 decided on 25.03.2008, Daya Singh Vs. State of Haryana - (2001) 3 SCC 468 and Pramod Mandal Vs. State of Bihar - 2004 (13) SCC 150 , and argued that there is no fixed rule with regard to the period within which the test identification parade must be held and that if there is any delay, unless the reasons for the delay are put by way of questions in the cross-examination to the investigating officer, the so-called delay was of no consequence. Citing judgment of the Supreme Court in Daya Singh, supra, learned Public Prosecutor argued that the Supreme Court in that case upheld the test identification parade held after seven years. 15. Learned Public Prosecutor further argued that Investigating Officer Deepak Bhargava (PW-3), Dev Chand Mehra SHO, Police Station Nayapura (PW10) and Ramji Lal (PW-16), the first Investigating Officer, and Bharat Singh (PW-17), the second Investigating Officer, have fully proved all the stages of investigation. 16. Learned Public Prosecutor, arguing the State appeal against acquittal of Bada Yusuf, submitted that there was ample evidence for conviction of accused Bada Yusuf because Manoj Galav (PW-4), Daljit Singh (PW-7) and Rajendra Singh (PW-9) have consistently stated that accused Bada Yusuf was also present at the time of incident and was exhorting the other accused to murder the deceased. Manoj Galav (PW-4) identified accused Bada Yusuf in court and stated that he was present at the scene of occurrence. Daljit Singh (PW-7) has also stated that Bada Yusuf was standing very close to the place of incident in blue shirt. Rajendra Singh (PW-9) has also stated that Bada Yusuf was present there and he raised an alarm after the incident and asked the accused to run away from there. There was no reason therefore not to convict the accused Bada Yusuf. 17. Rajendra Singh (PW-9) has also stated that Bada Yusuf was present there and he raised an alarm after the incident and asked the accused to run away from there. There was no reason therefore not to convict the accused Bada Yusuf. 17. Learned Public Prosecutor also contends that learned trial court has wrongly acquitted Sattu @ Satya Narayan for offence under Sections 120B and 201 IPC, whereas there was ample evidence on record to suggest that it was conspired by accused Sattu @ Satya Narayan along-with other accused to commit murder of deceased Amarjit Singh and thereafter, he and other accused Bada Yusuf caused the evidence to disappear. Even if, the learned trial court came to the conclusion that Bada Yusuf was not directly involved in the offence, it could not have acquitted him, because for an offence of conspiracy, direct involvement may not be necessary and on acquittal of Bada Yusuf, it has wrongly acquitted Sattu @ Satya Narayan by observing that prosecution failed to prove that he hatched a conspiracy of murder of Amarjit Singh, along-with other accused. 18. Shri Surendra Sharma, learned counsel for accused-respondent Bada Yusuf has opposed the State appeal and submitted that star witnesses of the prosecution especially Manoj Galav (PW-4), Daljit Singh (PW-7) and Rajendra Singh (PW-9) right from the beginning maintained the involvement of three accused and that at no stage, name of Bada Yusuf figured in their testimony as the one, who was present on the scene of occurrence. The incident was of the year 2001 and aforesaid witnesses for the first time made such allegation in their statement in June, 2005. No identification parade of Bada Yusuf was conducted. These witnesses in their examination in chief did not make the allegation that accused Bada Yusuf ran away from the place of incident. The statement made by the witnesses is absolutely false and does not inspire confidence. In fact, Rajendra Singh (PW-9), in his examination in chief, has stated that none of the three persons, who murdered deceased Amarjit Singh was present in the court but fact is that accused Bada Yusuf and Sattu @ Satya Narayan were both present in the court on 19.11.2005 when the statement was recorded. Obviously, the prosecution at a very late stage sought to expand the scope of the case by implicating Bada Yusuf as the accused. The State appeal therefore deserves to be dismissed. Obviously, the prosecution at a very late stage sought to expand the scope of the case by implicating Bada Yusuf as the accused. The State appeal therefore deserves to be dismissed. 19. We have given our anxious consideration to rival submissions and perused the material on record. At the outset, we must begin to deal with the State appeal filed against acquittal of accused Bada Yusuf to examine whether learned trial court was not justified in acquitting Bada Yusuf. The trial court has noted statement of Manoj Galav (PW4), who mentioned about presence of three accused. In fact, he identified two accused present in the court. He stated that three persons attacked the deceased and that the accused, wearing white shirt, (in court that day) was also amongst the persons, who attacked the deceased. The accused wearing white shirt was Bada Yusuf. He further admitted that he did not mention his presence either in the police statement or in statement recorded in earlier trial against co-accused, but stated that now when he saw him (Bada Yusuf) in the court, he realized that it was he, who ran away from the place of occurrence. The trial court noted his statement to be unbelievable because for the incident of the year 2001 the witnesses while making such statement on 07.05.2005 was claiming to have for the first time identified Bada Yusuf as one, who ran away from the place of incidence. Whereas no such statement was made by him at any point of time earlier and that all throughout he maintained that only three accused were involved in the crime. Similar statement has been made by Rajendra Singh (PW-9). 20. We thus find that there are contradictions in the statements of all three eye witnesses as to involvement of fourth accused and that no such case was set up in earlier trial and this story appears to have been developed for the first time now in subsequent trial. The trial court has also noted so from their police statement recorded under Section 164 Cr.P.C. When these witnesses when confronted with their earlier statement, wherein they alleged involvement of only three accused, they could not give any explanation. The trial court has also noted so from their police statement recorded under Section 164 Cr.P.C. When these witnesses when confronted with their earlier statement, wherein they alleged involvement of only three accused, they could not give any explanation. Rajendra Singh (PW-9) in cross-examination has stated that he saw fourth accused Bada Yusuf for the first time in the court after four years of the incident and then realized that he was also present at the seen of occurrence. In view of the aforesaid facts and contradictions, the testimony of these witnesses was not at all believable. The trial court cannot be said to have erred in acquitting the accused Bada Yusuf. The State appeal therefore deserves to be dismissed. 21. Coming now to the appeal filed by accused-appellant Sattu @ Satya Narayan, let us first of all deal with argument whether Daljit Singh (PW-7) and Rajendra Singh (PW-9) are actually eye witnesses or they have been planted as such. Daljit Singh (PW-7) has stated that when he along-with his friend Rajendra Singh was going to the house of his uncle, while passing by 'majar' near crossing, they saw that three persons were beating one person. All the accused had knives. Since they did not want to get involved into any kind of trouble, they left that place to the residence of maternal-uncle of Rajendra Singh, situated close to the police line. Then they went to their respective houses. Rajendra Singh received a phone call at about 12.00 in the noon that grandson of his acquaintance Gyani Karam Singh has been murdered. His name was Amarjit Singh. They went to the house of Rajendra Singh. It was at that point of time that they learnt that person who was murdered, was Amarjit Singh. But on that date, he did not narrate anything about this to the police. These witnesses have admitted that they both went to the house of Gyani Karam Singh Ji for condolence, where they told Sonu, another brother of deceased, about the place where deceased was murdered. In the cross-examination, this witness admitted that he did not recognize the deceased. They were on a motorcycle. While Rajendra Singh was riding the motorcycle, he was pillion rider. They stopped the motorcycle near the place of incident and stayed there for about 2-3 minutes. Neither they raise any hue and cry nor did ask for any help. In the cross-examination, this witness admitted that he did not recognize the deceased. They were on a motorcycle. While Rajendra Singh was riding the motorcycle, he was pillion rider. They stopped the motorcycle near the place of incident and stayed there for about 2-3 minutes. Neither they raise any hue and cry nor did ask for any help. They did not even intervene to save the deceased. They also did not report the matter to the police because they did not want to get into trouble of any kind. When they reached the house of Rajendra's uncle (Mousa), Rajendra Singh narrated this incident to him. Even thereafter they did not make any report to the police. While going back, they took another road and did not go by the same way. 22. Daljit Singh (PW-7) has denied the suggestion that he was a made up witness. He admitted that when in the noon at around 12 o'clock, he and Rajendra Singh learnt that grandson of Gyani Karam Singh Ji has been murdered, they went to his house for condolence. The police made enquiries from them two days after the incident. The police did not call them for two days, because he and Rajendra Singh did not tell anybody about their having witnessed the incident, but later on they told the police that they had informed Sonu, elder brother of deceased, about their having seen the incident. This fact is not mentioned in their earlier police statement (Exhibit D-7). This witness admitted the fact that several police officials were residing close to the house of aforesaid uncle (Mausa) of Rajendra Singh, because police line was in the backside of his residence. They did not inform any police personnel living close by because they did not want to get involved in any police matter. He did not inform the description of the accused to anyone. This witness was confronted with his statement recorded in earlier trial as PW-14. He stated that part of the statement that deceased was having his face towards north side, was not correctly recorded in that statement. He also did not state that accused had any other weapon except knives. In fact, accused did not have any other weapon except knives and that in the previous statement, it has wrongly been mentioned that they had 'gupti'. 23. He also did not state that accused had any other weapon except knives. In fact, accused did not have any other weapon except knives and that in the previous statement, it has wrongly been mentioned that they had 'gupti'. 23. Rajendra Singh (PW-9) has also made similar statement that he saw three persons committing murder of one. Deceased Amarjit Singh had his back towards them, therefore, they could not recognize him. They did not stop there for long and immediately left for the house of his uncle (mausa). They stayed at this residence for about 10-15 minutes and then left from there. He received a phone call after about two hours that Amarjit Singh has been murdered and then they both went to the house of Amarjit Singh and told his elder brother there that they saw this murder taking place from a distance of 50-60 feet. This witness in the court has stated that none of the accused, who were involved in the 'maar-peet', was present in the court, whereas, as argued by learned counsel for accused-appellant and accused-respondent, both Sattu @ Satya Narayan and Bada Yusuf were present in court on that day. In cross-examination Rajendra Singh (PW-9) has stated that when he saw the incident, he did not make any hue and cry. Two-three scooter riders were also standing nearby, but none of them came forward to save the deceased. The deceased was “Mona Sardar” (Sikh). On receiving information about his murder, they went to his house because they (these witnesses) were also Sikhs (Sardar). Even after going to the house of the deceased, he did not make any report of the incident to the police. Even though the police was present there, he did not tell them that he was witness of the incident, because nobody enquired from him. No person would like to get involved in the police matter, therefore he did not inform the police. The police recorded his statement 2-3 days after the incident in Nayapura police station. It is then only he mentioned the name of assailant. He had narrated the incident to his uncle (mausa), who was Conductor in Rajasthan Roadways. His uncle suggested that it was for him to decide whether he wanted to make a report to the police or not. It is then only he mentioned the name of assailant. He had narrated the incident to his uncle (mausa), who was Conductor in Rajasthan Roadways. His uncle suggested that it was for him to decide whether he wanted to make a report to the police or not. When confronted with that part of his statement under Section 161 Cr.P.C. in Exhibit D-4 that they were frightened, the witness pleaded ignorance, why the police did not state that the deceased had back towards them, he could not say. In cross-examination, he stated that a demonstration was made in front of Nayapura police station (by Sikhs) that he pleaded ignorance about the demonstration in front of the police station but later admitted that a 'dharna' was organized in police station by putting dead body of Amarjit Singh there. 24. Statement of these two witnesses show that their conduct was highly unnatural. Police statements of Daljit Singh (PW-7) and Rajendra Singh (PW-9) were recorded three days after the incident. They have admitted that family of the deceased was known to them and that they received the phone call about his murder at 12 o'clock in the noon on the same day. They also admitted that they went to the house of the deceased for condolence. While one of them Daljit Singh (PW-7) has stated that he narrated the fact about having witnessed the incident, to the elder brother of deceased but both of them have stated that they did not inform the police either immediately after the incident or when they went there to condole the death of deceased despite presence of police there. They did not narrate this to anyone except uncle (mausa) of Rajendra Singh (PW-9). They did not inform about the incident to any of his neighbours, who were mostly the police personnel. Apparently, these witnesses are planted witnesses and cannot be accepted as eye witnesses. Their testimony cannot at all be believed. 25. Coming now to statement of Manoj Galav (PW4). He in his statement has all throughout maintained that three persons attacked deceased Amarjit Singh. The prosecution originally filed challan against three persons, namely, Pappu @ Gajanand @ Langda, Chhota Yusuf @ Abdul Yusuf and Abdul Hamid. The trial court, by order dated 07.02.2002, discharged co-accused Abdul Hamid of the alleged offences. Coming now to statement of Manoj Galav (PW4). He in his statement has all throughout maintained that three persons attacked deceased Amarjit Singh. The prosecution originally filed challan against three persons, namely, Pappu @ Gajanand @ Langda, Chhota Yusuf @ Abdul Yusuf and Abdul Hamid. The trial court, by order dated 07.02.2002, discharged co-accused Abdul Hamid of the alleged offences. Now before the court during trial in the present case he has improved his previous version by stating that he saw only three persons on the date of incident. Of these three, he knew two persons from before and has identified two persons in the court when his statement was recorded on 07.07.2005. In the very next sentence, this witness has stated that deceased was attacked by three persons and fourth person was one, who was present in court in white shirt (Bada Yusuf), who did not actually attack deceased Amarjit Singh. This witness admitted that he did not mention about involvement of fourth person in his statement under Section 161 Cr.P.C. and also in previous statement recorded in the court. But, now he alleged that there was one more person and that it was only when he saw Bada Yusuf in the court on the previous date, did he realize that he was the same person, who was also present at the place of occurrence. He has stated that police had called him to identify accused Sattu @ Satya Narayan in jail, but he denied the suggestion that he had seen his photograph in the newspaper. He used to stay at his native place from rainy season till winter and that newspaper had no circulation in his village. The elder brother of deceased Amarjit Singh informed him on telephone about the date fixed for recording his statement. He was taken to the jail by Gurjit Singh in jeep of Gulluji and other police personnel. He did not know whether Sattu @ Satya Narayan was arrested under NDPS Act on being found in possession of smack. He has for the first time seen the newspaper (Exhibit D-1) in the court. He denied the suggestion that there was any special identifying marks of Satya Narayan. He recognized him by seeing his face. He did not know Satya Narayan from before but had known him now after seeing him in the test identification parade conducted in jail. He has for the first time seen the newspaper (Exhibit D-1) in the court. He denied the suggestion that there was any special identifying marks of Satya Narayan. He recognized him by seeing his face. He did not know Satya Narayan from before but had known him now after seeing him in the test identification parade conducted in jail. This witness has admitted that the police has detained him in the police station for 3-4 days. 26. Evidence on the record clearly show that appellant Sattu @ Satya Narayan was not only arrested in connection with offence punishable under the NDPS Act on 02.06.2001 but he was brought to the court in Judicial Custody from 05.06.2004 till 19.07.2004 when his test identification parade was conducted. There is no evidence that he was kept 'ba-parda' (with muffled face) or that his face was covered. He was taken in judicial custody in the aforesaid case on 05.07.2004. News about his arrest was published in Rajasthan Patrika, Kota Edition, on 03.06.2004. In a scenario like this, when the case of the prosecution since the beginning was that there were only three accused and prosecution had already originally filed challan against three, how could fourth and fifth accused be arrayed, is difficult to comprehend and has not been explained. Accused-appellant Sattu @ Satya Narayan raised all these objections before the Judicial Magistrate (Shri Shri Gyarsi Lal - PW18) at the time of test identification parade and produced the newspaper, which was taken on record. The incident took place on 28.07.2001 whereas in this case, the test identification parade was conducted almost three years thereafter on 19.07.2004, which also makes the whole episode doubtful. Deepak Bhargava (PW-3), in his cross-examination, has stated that he did not make any further or additional investigation and that he filed challan in the case on the basis of whatever investigation was conducted by the previous Investigating Officer. 27. Significantly enough, Manish (PW-5) has stated that deceased had love affairs with Neha D/o Bhupendra Singh, Circle Inspector, Nayapura Police Station. They used to talk with each other from STD booth. Prithvi Singh, maternal-uncle of Neha, and brother-in-law of Bhupendra Singh Chudawat, stopped deceased Amarjit Singh and asked why he was following Neha. On one day Neha and her mother had gone to cinema hall, Amarjit Singh met them on the way. They used to talk with each other from STD booth. Prithvi Singh, maternal-uncle of Neha, and brother-in-law of Bhupendra Singh Chudawat, stopped deceased Amarjit Singh and asked why he was following Neha. On one day Neha and her mother had gone to cinema hall, Amarjit Singh met them on the way. Her mother called two-three boys of 'harijan' community, who thrashed Amarjit Singh. This witness also stated that Amarjit Singh had enmity with several persons and that he was subjected to beating. He had friendship with one girl Samant, owing to which Amarjit Singh had quarrel with Alok. One more girl friend of Amarjit Singh was Komal, on account which he quarrelled with Alias, in which his elder brother Gurucharan Singh received injuries. There were about 5-7 persons in Kota city with whom he had inimical relations. He also had affair with a girl named Jyoti. Statement of this witness has further been amplified by what has been stated by Nagendra (PW-1), that deceased Amarjit Singh was a football player. He had love affair with Neha D/o Bhupendra Singh Chudawat. One day, quarrel took place between Prithvi Singh, maternal-uncle of Neha, and Amarjit Singh. Prithvi Singh threatened him of dire consequences. On one occasion, Prithvi Singh went to the house of Amarjit Singh with 5-7 persons to threaten him. This witness stated that after murder of Amarjit Singh, Neha Chudawat came to his (Amarjit Singh) house. At that time, she was crying. Mother of Amarjit Singh told the persons present there to take Neha out. This evidence clearly raises finger of doubt towards Bhupendra Singh Chudawat, the Police Circle Inspector of Nayapura Police Station itself, and his brother-in-law Prithvi Singh. Records reveal that anger of persons belonging to Sikh community was directed against them when they staged 'dharna' in front of police station, with dead-body of Amarjit Singh. It is owing to this reason that they were initially arrayed as accused and investigation was kept pending against them under Section 173 (8) Cr.P.C. Though, eventually charge-sheet was filed against Bada Yusuf and also accused-appellant Sattu @ Satya Narayan with the aid of Section 34 IPC, but investigation against Bhupendra Singh Chudawat and Prithvi Singh was abruptly dropped. Their motive was obvious from the record. Their motive was obvious from the record. Apparently, no investigation whatsoever was made into the allegation against Circle Inspector of Police and his brother-in-law as to whether they hatched up the conspiracy for murder of deceased Amarjit Singh. It clearly shows that genesis of the incident has been suppressed by the prosecution. 28. Keeping in view the weak nature of evidence against accused-appellant Sattu @ Satya Narayan, it would be highly unsafe to convict him solely on the basis of identification, which has taken place much belatedly, with regard to fairness of which the appellant has raised objections and succeeded in creating sufficient doubt. The judgments cited in this behalf by learned Public Prosecutor are distinguishable and cannot be applied to the present case. 29. In view of above discussion, the appeal filed by accused-appellant Sattu @ Satya Narayan deserves to succeed and is allowed. He is acquitted of the charge under Sections 302 read with Section 34 of the Indian Penal Code. He be set at liberty forthwith, if not required in any other case. 30. However, the appeal filed by the State challenging acquittal of accused-respondent Bada Yusuf @ Mohammad Yusuf @ Yusuf Kabadi under Sections 120B, 302 or 302 read with Section 34 and 201 IPC and accused-respondent Sattu @ Satya Narayan Meena under Section 120B and 201 IPC, fails and is hereby dismissed. 31. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Sattu @ Satya Narayan is directed to forthwith furnish a personal bond in the sum of Rs.20,000/-, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.