JUDGMENT : Rajesh Sekhri, J. 1. Challenge in this appeal has been thrown to judgment dated 18.08.2007 propounded by learned 1st Additional Sessions Judge, Jammu (hereafter referred to as 'trial court'), in File No. 315/Challan titled 'State v. Sham Sunder & Ors.' and FIR No. 123 of 2001 of Police Station, Bahu Fort Jammu, for offences under sections 302, 307, 332/34 of RPC, vide which, respondents have been acquitted of the charges. 2. Shorn of verbosity, the appellant/prosecution case is that on 09.07.2001, at about 12:50 midnight Police Post, Narwal Bala received oral information from SPO Ashok Kumar that on 08.07.2001, while he along with Sher Mohammad, 343-J were on patrolling and reached near transport Yard, Sunjwan at 11:30 p.m., they found 10 to 15 persons present outside their Jhuggies (Shanties) and they were asked to go inside. However, one of them, namely, Sham Sunder (respondent No. 1), in furtherance of criminal intention made an assault on the police party, hurled abuses and they refused to go to their Jhuggies. When they again exhorted them to return to their Jhuggies, the said accused, namely, Sham Sunder attacked Ashok Kumar on his head in furtherance of criminal intention to eliminate. It was also alleged that rest of the persons present on the spot also attacked the police party and pelted stones. Thereafter, accused persons made an attempt on the life of Sher Mohammad with a pipe, who started bleeding and rest of the persons present on the spot also attacked Sher Mohammad with sticks and stone pelting. Initially, FIR came to be registered for the alleged commission of offences under sections 307, 336, 332, 147 and 148 RPC. However, Sher Mohammad later succumbed to his injuries on 10.07.2001 and offence under section 302 RPC was added. 3. Respondents were charge-sheeted by the trial Court on 12.06.2002 for offences under sections 302, 307, 325/34 of RPC whereby they pleaded innocence and claimed to be tried, thereby persuading learned trial court to ask for the prosecution evidence. Prosecution has examined as many as 23 witnesses in support of its case. However, learned trial Court on appreciation of the prosecution evidence is of the opinion that prosecution having failed to prove charges against the respondents, the final report filed in the trial court was liable to be dismissed. Accordingly, respondents have been acquitted of the charges. 4. Prosecution has examined as many as 23 witnesses in support of its case. However, learned trial Court on appreciation of the prosecution evidence is of the opinion that prosecution having failed to prove charges against the respondents, the final report filed in the trial court was liable to be dismissed. Accordingly, respondents have been acquitted of the charges. 4. Before a closer look at the grounds urged in the memo of appeal, it shall be apt to give a resume of the prosecution evidence, which runs as below: 5. PW-1 Ashok Kumar is stated to be the complainant and injured in the case. He has deposed that on 08.07.2001, at about 11 p.m., while he along with Sher Mohammad were on patrol duty at Transport Nagar, they spotted 10 to 15 persons. Sher Mohammad asked them as to what were they doing and on this, they told them that they will neither move nor allow the Police to leave the place. Accused Sham Sunder went inside his Jhuggi, came out with an iron pipe and attacked him. He suffered the blow on his hand in a bid to ward of the attack. However, accused Sham Sunder made repeated attack and he suffered a blow on his head and blood oozed out. Thereafter, the said accused made an assault upon Sher Mohammad on his head, as a result Sher Mohammad fell on the ground. Rest of accused persons had caught hold of Sher Mohammad and thereafter accused Sham Sunder had assaulted Sher Mohammad. He informed the Police. He has admitted his report EXPW-AK. He has further stated that he had informed Pawan Kumar (PW) present on the spot that he was going to inform the police. Sher Mohammad died on third day of the occurrence. He also received stitches. He has identified the weapon of offence in the court allegedly used in the occurrence by accused Sham Sunder. He had identified accused during the test identification parade conducted during investigation through Tehsildar. In cross examination, he has stated that he knew Pawan Kumar (PW) and accused Sham Sunder prior to the occurrence. Jhuggies were situated about 150 ft. away from the National Highway. About 15 persons were present on the spot. He had identified accused during the test identification parade conducted during investigation through Tehsildar. In cross examination, he has stated that he knew Pawan Kumar (PW) and accused Sham Sunder prior to the occurrence. Jhuggies were situated about 150 ft. away from the National Highway. About 15 persons were present on the spot. Police personnels were armed with lathis but they did not beat them to ward of the attack even when it was known that they were going to make a repeated attack. Accused Sham Sunder attacked him from the front. Deceased Sher Mohammad did not intervene and was watching as a mute spectator. His clothes were blood stained. Sher Mohammad fell up side down on a stone after being hit. Shirt was seized by the Police and signatures were obtained on the seizure memo. However, neither shirt nor seizure memo has been shown to him in the Court. Pawan Kumar was already present on the spot at the time of occurrence. Neither he nor Pawan Kumar tried to save the life of Sher Mohammad. Tehsildar also obtained his signatures on a paper at the time of test identification parade conducted on 21.07.2001 but he was not shown the said papers. He has denied the suggestion that it was police who had beaten accused persons on the spot. 6. PW2-Pawan Kumar has stated that on 08.07.2001 when he reached Sunjwan Morh, he heard noise from the Jhuggies inhabited by the Bilaspuri people. He parked his vehicle on the road side and saw that Police Personnels were asking the persons present on the spot to go inside their Jhuggies, to which, accused persons retorted that neither they will go inside nor will they allow the police personnels to go alive from the place. Witness goes on to state that accused Sham Sunder came out with an iron pipe from the Jhuggi and dealt a blow on Ashok Kumar, who started bleeding. Rest of accused persons caught hold of Sher Mohamamd, fell him on the ground and accused Sham Sunder attacked Sher Mohammad with the iron rod and Sher Mohamamd fell unconscious. Four to five police personnel came to the spot and Sher Mohamamd was shifted to the hospital. Tehsildar conducted test identification parade of accused Anuj Kumar and Makar Dwaj and he identified accused persons through a hole made in the tent. Four to five police personnel came to the spot and Sher Mohamamd was shifted to the hospital. Tehsildar conducted test identification parade of accused Anuj Kumar and Makar Dwaj and he identified accused persons through a hole made in the tent. In cross examination, he has stated that it takes 4 to 5 minutes to reach the spot from the National Highway. There was a bulb lighting the Jhuggies. He reflected his ignorance about the dispute between the persons present on the spot residing in the Jhuggies and the police personnels. He did not intervene when Sher Mohammad was caught hold from his wrist because he did not want to put his life at stake. Accused Makar Dwaj and Anuj Kumar had not beaten the deceased with the pipe. Sher Mohammad did not try to ward of the attack. Sher Mohammad fell upside down and became unconscious. He has not seen the documents on which his signatures were obtained at the time of the identification parade by the Tehsildar. None of the 10-15 persons present on spot had pelted stones during the occurrence. Accused persons also did not pelt any stone. He did not disclose the names of all the accused to the police, but Sham Sunder was known to him prior to the offence. He did not try to save the victim. Sher Mohammad was 6 ½ feet tall and Ashok Kumar was 6 feet tall. 7. PW-3 Raj Kumar turned hostile. 8. PW-5 Balbir Singh has stated that on 08.07.2001, he was posted at Bhatindi Police post and he along with Maqsood Ahmed, Lal Mohammad and Mohd. Latief were on patrol duty. When they reached at Sunjwan Morh they heard noise. They had witnessed accused persons beating Sher Mohammad. Mohammad Latief was sent to the Narwal, Police Station. Incharge, Police Post and Flying squad came to the spot. Sher Mohammad and one SPO, who were injured, were shifted to the hospital. Accused persons present on the spot were arrested by the Police. In cross examination, he has stated that all four accused were beating Sher Mohammad with their lathis. The deceased was already unconscious by the time he reached the spot. Deceased received injuries on his head. There was light on the spot. 9. PW-Kulbir Singh has deposed that he was posted as Head Constable in Narwal in 2001 and was Incharge of the Flying Squad. The deceased was already unconscious by the time he reached the spot. Deceased received injuries on his head. There was light on the spot. 9. PW-Kulbir Singh has deposed that he was posted as Head Constable in Narwal in 2001 and was Incharge of the Flying Squad. He was accompanied by his Driver-Vipan Kumar and Mohammad Aslam. He was informed by PW Mohammad Latief, Munshi of Police Post, Bhathindi that some quarrel was going on between people living in the Jhuggies and police personnels. They went to the spot. The patrol party of Bhathindi Naka had already reached there. Sher Mohammad was lying up side down on the ground and was bleeding from head. He was shifted to hospital. He has admitted the seizure memos of blood stained clay, simple clay, lathi and cap and identified his signatures. In cross examination, he has stated that he does not know how Sher Mohammad died and who killed him. He has not seen seized articles in the Court. 10. PW-10 Constable Mohammad Aslam has stated that in July, 2001, he was deputed in the Flying Squad Narwal. He was accompanied by HC-Kulbir Singh and Driver-Vipan Kumar. Flying Squad was informed at Narwal Naka by Munshi of Bhathindi, Police Post that accused-Sham Sunder and others were beating patrolling party personnels. Kulbir Singh informed the Incharge Police Post via wireless. Flaying squad went to the Jhuggies and found Sher Mohammad lying in a pool of blood. It was dark there. He did not see any other injured on the spot due to darkness. Deceased was shifted to the hospital. He has admitted the seizure memos of two stones, blood stained clay, simple clay, lathi and cap. In cross examination, he has stated that he did not know why the victim was beaten. He has not seen seized articles in the Court. Occurrence did not take place in his presence. Besides him and the incharge Police Post, none signed the seizure memos. 11. PW-7 Arshad Ali, Constable, is witness to the superdnama of seal. 12. PW-8 Garu Ram witness to the disclosure statement of accused and the recovery memo has turned hostile. 13. PW-9 Ghulam Nabi is brother-in-law of deceased-Sher Mohammad. Occurrence did not take place in his presence. Besides him and the incharge Police Post, none signed the seizure memos. 11. PW-7 Arshad Ali, Constable, is witness to the superdnama of seal. 12. PW-8 Garu Ram witness to the disclosure statement of accused and the recovery memo has turned hostile. 13. PW-9 Ghulam Nabi is brother-in-law of deceased-Sher Mohammad. He has deposed that accused Sham Sunder made a disclosure in his presence that he had kept the weapon of offence (pipe) under wooden bed of his Jhuggi and subsequently, weapon of offence, at the instance of the said accused was recovered. He has admitted the disclosure statement EXPWGN and recovery memo EXPWGN1. He has also admitted the sketch of the weapon of offence marked "A". He has also admitted the documents with respect to the dead body and clothes of the deceased EXPWGN2, EXPWGN3 and EXPWGN4. In cross examination, he has stated that accused-Sham Sunder made disclosure statement in the presence of Incharge Police Post and in the presence of PW-Garu Ram. Recovery and the seizure were effected from the spot in the presence of PW Garu Ram and the police personnels. 14. PW-Madan Lal SGC is witness to the Superdanama. He has admitted the same. 15. PW-12 Mohd. Latief had deposed that on 08.07.2001, while he was posted in Bhathindi Police Post, he was on patrolling in the night hours. He was accompanied by Balbir Singh, Lal Mohd. and Maqsood Ali. When they reached near Sunjwah Morh, a noise from the Jhuggis attracted their attention. He went to the spot and found Sher Mohammad in injured and unconscious condition. He informed the Flying Squad and Incharge Police Post shifted the injured to hospital in a vehicle. The victim died on the next day. In cross examination, he has stated that it was dark at that time. 16. PW-13 Lal Mohd. has deposed that during the intervening night of 8th and 9th July, 2001, while he along with Mohd. Latief, Balbir Singh and others were on night patrolling and reached the bridge near Sunjwah morh, a noise from the Jhuggies occupied by Bilaspuri people, attracted their attention. Scuffle was going on the spot. They were informed by one Phoolmati (Accused No. 2) and injured Sham Sunder that police party had beaten them and they were going to the police station. Scuffle was going on the spot. They were informed by one Phoolmati (Accused No. 2) and injured Sham Sunder that police party had beaten them and they were going to the police station. He was also informed that one of the police personnels had escaped and the other is lying on the spot. They found Sher Mohammad lying unconscious on the spot. Mohd. Latief went to inform Flying Squad. Incharge, Police Post, Narwal came to the spot. Sher Mohammad was shifted to the hospital. In cross examination, he has stated that he does not know who had given the blow of lathi to Sher Mohammad. He did not see Sham Sunder on the spot. It was dark on the spot. They witnessed the occurrence from 30 to 35 feet. 17. PW-Maqsood Ali has deposed that in July, 2001, while he was on patrol duty along with SGC Mohd. Latief and Balbir Singh and reached near Sunjwah Morh, they heard noise from Jhuggies inhabited by Bilaspuri people. Sher Mohammad was seen lying upside down in a pool of blood. He had seen Ashok Kumar going away from the spot with an injury on his head. Flying Squad No. 15 was informed. Injured were shifted to the hospital. In cross examination, he has stated that place of occurrence is 30 to 35 away from the National Highway. It was dark. He had not seen that who had injured Sher Mohammad and Ashok Kumar. 18. PW-16 Vipan Kumar is also one of the members of the Flying squad accompanied by Constable Aslam and Havaldar Kulbir Singh. He has stated that at about 12 O'clock at night they were informed by the Police Personnels that persons inhabiting the Jhuggies had made an assault. While Kulbir Singh and Aslam went to the spot, he remained in his vehicle. 19. PW-17 Khazar Mohd., is cousin brother of Sher Mohd. and is witness to the documents regarding dead body of the deceased. 20. PW-19 Krishan Kutty, is witness to the test identification parade. He admits his signatures but denied contents of the test identification certificate. He has stated that none of the accused was present in the identification parade. 21. PW-20 Shamsher Singh is the Executive Magistrate, Tehsildar in whose presence test identification parade of the accused has been conducted. 20. PW-19 Krishan Kutty, is witness to the test identification parade. He admits his signatures but denied contents of the test identification certificate. He has stated that none of the accused was present in the identification parade. 21. PW-20 Shamsher Singh is the Executive Magistrate, Tehsildar in whose presence test identification parade of the accused has been conducted. He has stated that on 21.07.2001 he conducted test identification parade of the accused on the request of SHO, Police Station, Trikuta Nagar Jammu in the compound of Police Station. The witnesses had identified accused through a hole made in a tent erected on the spot. Four persons had identified two accused persons amongst eight persons lined up in the parade. Pawan Kumar and Ashok Kumar have identified Anuj Kumar and Makar Dwaj. Krishan Kutty and Rajiv Gupta were present as independent witnesses. He has identified the test identification certificates as EXPWSS and EXPWSS-1, EXPWSSX1. In cross examination, he has stated that he could not say who had written the documents prepared for the test identification parade. He has not recorded the height or appearance or identification mark in the documents. No women was present in the identification parade. He does not know where those 08 persons were brought by the Police from. 22. PW-29 K.K. Raina is Chemical Analyst. He has stated that on 17.07.2001, five sealed packets were received and on 18.07.2001, one sealed packet was received from S.I. Mahavir Singh. The said packets were subjected to Chemical and Microscopical examination. He has admitted the certificate EXPWKK. He has also stated that his scientific assistant Mool Raj conducted the examination under his supervision. 23. PW-25 Bhupesh Khajuria, is the Medical Officer who has conducted autopsy on the dead body of the deceased on 11.07.2001. He has admitted the post-mortem certificate EXPWBK issued by him. In his opinion, the cause of the death of the deceased was coma as a result of cranio cerebral damage from injury caused by hard and blunt object. In cross examination, he has stated that death of the deceased was caused by Injury No. 1 and not by Injury No. 2. 24. PW 24 Dr. Subash Chander is the CMO GMC who has examined victim Ashok Kumar on 09.07.2001. He has identified his certificate EXPWSC. 25. PW-33 Paramvir Singh is the investigating officer. In cross examination, he has stated that death of the deceased was caused by Injury No. 1 and not by Injury No. 2. 24. PW 24 Dr. Subash Chander is the CMO GMC who has examined victim Ashok Kumar on 09.07.2001. He has identified his certificate EXPWSC. 25. PW-33 Paramvir Singh is the investigating officer. He has deposed that on 09.07.2001, while he was posted as Incharge, Police Post, Narwal, he investigated the present FIR. He has stated that when patrolling party comprised of deceased-Sher Mohammad and complainant-Ashok Kumar reached near Jhuggies at about 11:20 p.m., they asked 10 to 15 persons present near the Jhuggies to go inside but they objected to this command and refused to go inside. Accused-Sham Sunder started abusing. When patrol party asked Sham Sunder not to use abusive language, accused Sham Sunder made an assault on Sher Mohammad and Ashok Kumar with a rod and sticks. Both of them were injured. PW-Ashok Kumar informed the police post and he along with police personnels visited the spot. The victims were shifted to the hospital. Sher Mohammad was shifted from GMC to KHN Hospital on the request of his relatives. The witness has deposed about the rituals of the investigation carried out in the case including the recovery of weapon and the disclosure of accused Sham Sunder. In cross examination, he has stated that there were lights near Jhuggies. Accused had fled from the spot and by the time, he reached Sher Mohammad was lying up side down. Two blood stained stones were immediately recovered and seized form the spot. The seal was handed over on the Superdnama of Arshad Ali. 26. This is the crux of the prosecution evidence, on the conclusion whereof the statements of respondents in terms of Section 342 Cr.P.C. were reduced into writing, whereby they denied the incriminating evidence against them and did not lead any evidence in defence. 27. Having heard the rival contentions and perused the record, we have given our thoughtful consideration to the facts and circumstances attending the present case as also law governing the field. 28. Mr. Amit Gupta, learned Dy AG has reiterated the grounds urged in the memo of appeal. 29. As already stated, learned trial court on appreciation of the prosecution evidence has concluded that prosecution evidence besides being discrepant on material aspects is replete with serious contradictions and embellishments. 28. Mr. Amit Gupta, learned Dy AG has reiterated the grounds urged in the memo of appeal. 29. As already stated, learned trial court on appreciation of the prosecution evidence has concluded that prosecution evidence besides being discrepant on material aspects is replete with serious contradictions and embellishments. Consequently, respondents have been acquitted of the charges. 30. The appellant-State has assailed the impugned judgment of acquittal on the conventional grounds that learned trial court has mis-appreciated the evidence and misconstrued the law as there is sufficient oral and documentary evidence to establish guilt of the respondents. 31. Learned trial Court has traced three sets of ocular evidence of the occurrence. First of all, the police agency swung into action on the oral report made by the injured PW-Ashok Kumar and PW-Pawan Kumar claims to be an eye witness to the occurrence. The second set of ocular evidence is of the patrolling party of Bhatindi, Police Post comprised of Balbir Singh, Mohd. Latief, Lal Mohd. and Maqsood Ali and the third set of ocular evidence pertains to the Flying squad comprised of PWs Mohd. Aslam, Vipan Kumar and Kulbir Singh. Let us analyse one by one. 32. PW-Ashok Kumar is the injured and complainant in the case and on his oral report, the police agency was set into motion. Although he and PW-Pawan Kumar have given a graphic narration of the incident in the line of report made to the police that on 08.07.2001 when they reached near Jhuggies, 10 to 15 persons were present there, when they asked them to go into their Jhuggies, the said persons refused to honour the command and retorted by saying that neither they will go inside nor will allow the police party to escape alive from the spot. PW-Ashok Kumar in his report and PW-Pawan Kumar in his statement have attributed these words to respondent-Sham Sunder. However, at the fag end of cross examination PW-Ashok Kumar has stated that neither he nor Sher Mohammad asked the said persons to go inside their Jhuggies. As already stated that both injured and eye witness PW Pawan Kumar have made an attempt to give a panoramic view of the occurrence that injured and the deceased were attacked by the respondents, deceased was dealt a blow of pipe on his head, he fell unconscious up side down on the ground and later succumbed to the injuries. As already stated that both injured and eye witness PW Pawan Kumar have made an attempt to give a panoramic view of the occurrence that injured and the deceased were attacked by the respondents, deceased was dealt a blow of pipe on his head, he fell unconscious up side down on the ground and later succumbed to the injuries. However, their unnatural conduct, to be discussed in the later part of the judgment, creates doubt about their presence on the spot. 33. The second set of ocular evidence is with respect to the patrol party of Police Post, Bhathindi comprising of Balbir Singh, Mohd. Latief, Lal Mohd. and Maqsood Ali. Here, PW-Balbir Singh has stated that he saw respondents beating deceased Sher Mohammad. He claims to be an eye witness of the occurrence, but intriguingly he has not been cited as such. PWs Mohd. Latief, Lal Mohd. and Maqsood Ali have not deposed anything that they witnessed the occurrence of respondents beating Sher Mohammad from the bridge. In fact, PW-Lal Mohd. has deposed that they were informed by one lady and injured-accused Sham Sunder that they were beaten by the police party and one of the police personnels had escaped and the other was lying on the spot. PW-Maqsood Ali, member of the same patrol party, has only stated that Sher Mohammad was seen lying in a pool of blood on the ground. Therefore, it is evident that four persons comprising the same patrol party have made four different statements and one of them i.e. PW-Lal Mohd. has deposed that he was informed by a lady and injured Sham Sunder that rather they had been beaten by police personnels and one of them had fled from the spot. Be it noted that though PW-Balbir Singh claims to be an eye witness to the occurrence, but has not been cited in the case as an eye witness. 34. Third set of ocular evidence is with respect to the Flying Squad comprised of PWs-Mohd. Aslam, Vipan Kumar and Kulbir Singh. None of them is stated to be the witness to the occurrence. PW-Mohd. Aslam has stated that Flying Squad stationed at Narwal was informed that Police Party was being beaten by respondent-Sham Sunder and others. PW-Kulbir Singh is stated to have informed the Incharge Police Post via wireless. Aslam, Vipan Kumar and Kulbir Singh. None of them is stated to be the witness to the occurrence. PW-Mohd. Aslam has stated that Flying Squad stationed at Narwal was informed that Police Party was being beaten by respondent-Sham Sunder and others. PW-Kulbir Singh is stated to have informed the Incharge Police Post via wireless. He had only seen deceased Sher Mohammad lying in a pool of blood, but none else injured on the spot. PW Vipan Kumar has only stated that he did not go to the spot and remained in the vehicle. It is important to note that members of the Flying squad viz. Mohd. Aslam, Vipan Kumar and Kulbir Singh and members of the patrolling party viz. Balbir Singh. Mohd. Latief, Lal Mohd. and Maqsood Ali appear to have reached at the scene of occurrence one after another within a short span of time. It appears that Flying Squad reached the place of occurrence immediately after they informed about the incident. It indicates that both PWs Lal Mohd. and Balbir Singh, though not cited as eye witnesses to the occurrence, claimed to be eye witnesses and made an attempt to give credibility to the prosecution evidence. The improvements made by them in the prosecution case are sufficient to create doubt about their presence at the scene of occurrence. 35. Now, reverting to the unnatural conduct and unnatural behaviour of injured PW Ashok Kumar and the eye witness-PW Pawan Kumar, we concur with the observation of learned trial Court that it was highly improbable that a police personnel witnessing his colleague being beaten at the hands of accused persons kept standing as a mute spectator only. The conduct of the complainant PW Ashok Kumar not trying to ward of the attack with his own stick or not trying to save the life of his colleague does not appeal to the human reasoning. PW-Ashok Kumar has stated, without mincing words, that when deceased Sher Mohammad was attacked by the respondents, neither he nor PW Pawan Kumar tried to intervene to save his life. PW-Pawan Kumar has also stated that he did not try to intervene in the matter because he did not want to put his life at stake. 36. Hon'ble Supreme Court in Lalloo & Anr. PW-Pawan Kumar has also stated that he did not try to intervene in the matter because he did not want to put his life at stake. 36. Hon'ble Supreme Court in Lalloo & Anr. v. State of U.P. reported as (2002) 9 SCC 431 commenting upon unnatural conduct of witnesses has ruled below : "10 .......Besides, the conduct of the three witnesses also appears to be rather unnatural. Abhey Singh is the son of the deceased yet he kept standing as a mute spectator and did not even raise an alarm. This conduct belies normal human conduct." 37. A similar view has been taken by this Court in Darshan Kumar v. State reported as 1996 SLJ 264. The relevant extract contained in Para 29 of the judgment is reproduced below : "29. Having rejected the dying declaration, the other evidence may be considered. Eye witness of the prosecution is Ravi Kant, younger brother of the deceased. Apart from being a chance witness, on merits as well his statement is not truthful. He may be plying an auto-rickshaw that does not mean he saw the occurrence and shifted the deceased to the hospital. His conduct betrays and demolishes his statement. Had he seen the occurrence and his brother being beaten, the natural reaction on his part would have been to come forward, to rescue his brother from the clutches of the accused. He could have raised hue and cry asking people from the adjoining hops to come forward and help him." 38. An identical view has been taken by this Court in State of J&K v. Phangi reported as 2005 (1) SLJ 138 wherein it has been observed that : "11. In the instant case, PW-Des Raj, though has been examined as an eye witness of occurrence, but his testimony neither appears to be consistent, positive, cogent and trust worthy nor appears to be confident in the Court. PW-Des Raj though left the company of the accused on 14th August, 1996, and came back to his village in his family. He, however, did not disclose about the occurrence to anybody either in the family or to the villagers. The evidence in the case forthcoming from the record is that the accused threatened him to kill in case of his disclosure about the occurrence. He, however, did not disclose about the occurrence to anybody either in the family or to the villagers. The evidence in the case forthcoming from the record is that the accused threatened him to kill in case of his disclosure about the occurrence. It is in the evidence of PW- Des Raj that he did not join the Army Butchery in Pathankot. The explanation in such circumstances, in nondisclosure of occurrence till 18th August, 1996, neither seems to be sufficient nor satisfactory, genuine, acceptable and believable. When he remained in his family in his own village, all fear and threat in normal course no longer remained in the mind of the witness particularly when he has seen the murder of the deceased who happened to be his near relation......" 39. Further this Court in State of J&K v. Tilak Raj reported as 1998 KLJ 157 has also held as under : "8. This evidence has no credibility for so many reasons, the foremost being that Des Raj and Sewa Ram PWs being the relations and also the residents of same village, were available for recording their statements before the police. They have not come forward till July 21, 1985, to narrate the incident. Therefore, the credibility of these witnesses looses significance. Another aspect of the matter for discrediting the evidence of thee witnesses is that the reason for not coming forward till July 21, 1985, has not been explained by the prosecution as to why these witnesses had not made the statements." 40. Reverting to the instant case, no doubt, there were 10 to 15 persons stated to be present on the spot and attacked the police party, however, a police personnel, supposed to guard and protect the life and property of citizens, cannot be expected to be a mute spectator to a murderous assault on his life and on the life of his colleague. It is pertinent to note that PW-Ashok Kumar has admitted in his cross examination that they were armed with lathies, but they did not beat the respondents to ward of the attack even when it was known to them that accused were going to make repeated attack. He also stated that accused-Sham Sunder attacked him from the front but deceased-Sher Mohammad was standing as a mute spectator. He further stated that neither he nor Pawan Kumar tried to save the life of deceased. He also stated that accused-Sham Sunder attacked him from the front but deceased-Sher Mohammad was standing as a mute spectator. He further stated that neither he nor Pawan Kumar tried to save the life of deceased. The conduct of a police personnel, armed with a stick, not even making an attempt to ward of the attack being made at him or to intervene and save the life of his colleague, does not appeal to human logic and belies normal human conduct. Therefore, unusual and unnatural conduct on the part of PWs Ashok Kumar and Pawan Kumar creates a serious doubt about their very presence at the scene of the occurrence. The testimonial potency of both these witnesses, being unworthy of credence, is liable to be discarded. 41. Be that as it may, PW-Ashok Kumar was re-examined by accused No. 1 to 3, after their application for recalling the witness was allowed by the trial court and during said examination, the injured PW-Ashok Kumar specifically stated that he had seen the accused persons during the court proceedings only and not prior to that. This part of re-examination of the complainant/injured PW-Ashok Kumar who claims to be an eye witness to the entire occurrence, would not only erase his chief examination of having witnessed the occurrence but would demolish the entire prosecution case. What is gathered from this part of the statement is that he has even negated the presence of respondents at the scene of the occurrence. In a way, the injured and the complainant later turned hostile to the prosecution. 42. The prosecution/appellant-State also seeks to rely on the disclosure statement made by respondent-Sham Sunder and consequent recovery of weapon of offence i.e. pipe. Although PW-Gulam Nabi has supported the prosecution version with respect to the disclosure statement of the accused as also the consequent recovery by stating that accused-Sham Sunder made a disclosure that he had kept the weapon of offence, pipe inside a wooden bed in his Jhuggi and consequently the said weapon of offence was recovered at his instance. However, it is significant to note that PW-Garu Ram who happened to be real brother of the victim Ashok Kumar, has turned hostile and did not support his version. It is also important to notice that PW-Ashok Kumar, injured has stated that accused-Sham Sunder fled from the spot leaving the pipe behind. However, it is significant to note that PW-Garu Ram who happened to be real brother of the victim Ashok Kumar, has turned hostile and did not support his version. It is also important to notice that PW-Ashok Kumar, injured has stated that accused-Sham Sunder fled from the spot leaving the pipe behind. If this statement of the injured is accepted, then the recovery of the weapon of offence from the wooden bed lying inside the Jhuggi is ruled out. Therefore, prosecution/appellant State has failed to make out a case even on the basis of disclosure statement and consequent recovery of the weapon of offence thereafter. 43. The next vital aspect of the case is test identification parade of respondent/accused Anuj Kumar and Makar Dwaj. 44. Law with respect to significance of test identification parade is well settled that though identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in the court as to the identity of accused, who are strangers to them. There may, however, be exceptions to this general rule, when, for example, court is impressed by a particular witness on whose testimony it can safely rely without such corroboration. It cannot be held as well that in the absence of test identification parade the testimonies of eye witnesses identifying the accused on the spot would become inadmissible. Therefore, whether the evidence deserves any credence or not would always depend upon the facts and circumstances of each case, as held by Apex court in Dana Yadav alais Dahu & Ors. v. State of Bihar [ (2002) 7 SCC 295 ] in the following words : "This question was subject matter of consideration before different High Courts as well as this Court. It is well settled that no test identification parade is called for and it would be a waste of time to put him up for identification if the victim mentions name of the accused in the first information report or he is known to the prosecution witnesses from before. Reference may be made in this regard to the cases of Dharamvir v. State of M.P., [ (1974) 4 SCC 150 ] and Mehtab Singh v. State of M.P., [ (1975) 3 SCC 407 ]. Reference may be made in this regard to the cases of Dharamvir v. State of M.P., [ (1974) 4 SCC 150 ] and Mehtab Singh v. State of M.P., [ (1975) 3 SCC 407 ]. In the case of Sajjan Singh v. Emperor, [AIR (1945) Lahore 48] the Court while examining the case in similar circumstances observed (at AIR p. 50) thus: "If an accused person is already well-known to the witnesses, an identification parade would of course, be only a waste of time. If, however, the witnesses claim to have known the accused previously, while the accused himself denies this, it is difficult to see how the claim made by the witnesses can be used as reason for refusing to allow their claim to be put to the only practical test. Even if the denial of the accused is false, no harm is done, and the value of the evidence given by the witnesses may be increased. It is true that it is by no means uncommon for persons who have been absconding for a long time to claim an identification parade in the hope that their appearance may have changed sufficiently for them to escape recognition. Even so, this is not in itself a good ground for refusing to allow any sort of test to be carried out. It may be that the witnesses may not be able to identify a person whom they knew by sight owing to some change of appearance or even to weakness of memory, but this is only one of the facts along with many others, such as the length of time that has elapsed, which will have to be taken into consideration in determining whether the witnesses are telling the truth or not." 45. It is case of the prosecution that accused Anuj Kumar and Makar Dwaj have been identified by PWs Ashok Kumar and Pawan Kumar immediately after their arrest. However, it needs a specific mention that PW-Pawan Kumar in his deposition has made a categoric statement that he knew accused Makar Dwaj and Anuj Kumar prior to the occurrence and it being so, there was no question of identification of the said respondents in the test identification parade. 46. As per the test identification certificates EXPWSS, EXPWSS1 & EXPWSS2, Krishana Kutty and Rajiv Gupta have been cited as witnesses to the identification parade. 46. As per the test identification certificates EXPWSS, EXPWSS1 & EXPWSS2, Krishana Kutty and Rajiv Gupta have been cited as witnesses to the identification parade. However, PW-Krishana Kutty has turned hostile and PW Rajiv Gupta has not been examined by the prosecution. Test identification of the aforesaid accused persons also pales into significance in view of the statement of PW-Ashok Kumar, the victim in the trial court that he had never seen the accused persons prior to the court proceedings and statement of eye-witness PW Pawan Kumar that he already knew Makar Dwaj and Anuj Kumar. 47. Be that as it may, it is also trite that test identification alone is not sufficient to connect a person with the commission of a crime and to sustain conviction unless it is supported by cogent, trustworthy and credible evidence. As already discussed, the prosecution has utterly failed to establish guilt of respondents in view of self-contradictory, sketchy and discrepant statements made by the prosecution witnesses. 48. Having regard to what has been observed and discussed above, we find no illegality much less perversity in the impugned judgment of acquittal propounded by learned trail court, which is otherwise being well reasoned, is liable to be upheld. Hence, present appeal is dismissed and the impugned judgment is upheld. Respondents are discharged of their bail bonds. Trial court record, if any, shall be returned forthwith.