JUDGMENT : Vinai Kumar Dwivedi,J. 1. This Criminal Appeal has been filed against the judgment and order dated 10.07.1989 passed by Additional District and Sessions Judge, Gyanpur, Varanasi in Session Trial No. 37 of 1982 arising out of Case Crime No. 52 of 1981, under Sections 147, 148, 149, 302, 120B IPC, police station Gyanpur, district Varanasi. By the impugned order, the Additional Sessions Judge has acquitted the accused Brahm Shankar, Vijay Shankar, Nirahoo and Awadh Narain and has convicted and sentenced the accused-appellant Bhola to life imprisonment under section 302 IPC. Aggrieved by the judgment and order dated 10.07.1989 by which the accused- appellant Bhola was convicted under Section 302 IPC, he filed the instant criminal appeal challenging the aforesaid judgment and order dated 10.07.1989. 2. In short compass, the facts of the case are that on 27.05.1981, a written report was given to the Inspector, Police Station Gyanpur, District Varanasi by PW-1 Lalmani Dubey alleging inter alia that there was enmity between him and Brahm Shankar @ Bechu. Due to old enmity, Brahm Shankar @ Bechu and Vijay Shankar @ Mothai alongwith three unknown persons came at his house from the North keeping lathi, danda and country-made pistol and attacked his cousin Aadhya Prasad and nephew Faujdar, who were sleeping at the door, by lathi-danda. The unknown person who wore kurta paijama fired from the country-made pistol upon his nephew Rakesh Kumar, who was also sleeping on the cot, which hit his chest and the blood started oozing. On hearing the noise of the fire-shot and screaming, he and Aadhya Prasad, Faujdar and younger brother Chaturgun and neighbours Phoolchandra Dubey, Shivshankar and Jayshankar and many people of the locality came at the spot. On seeing the aforesaid persons, the culprits ran towards the East direction. The complainant alongwith the persons gathered at the spot identified the accused persons Brahm Shankar and Vijay Shankar in the light of the torch. The first informant claimed that he can also recognize the three unknown assailants on seeing them. The assailants were chased but they could not be caught. Thereafter, the condition of the injured Rakesh Kumar started deteriorating and he was taken to the hospital but he died on the way. 3. On the basis of the aforesaid report, a case was registered as Case Crime No. 52 of 1981, which was proved as Ext. Ka-3. The assailants were chased but they could not be caught. Thereafter, the condition of the injured Rakesh Kumar started deteriorating and he was taken to the hospital but he died on the way. 3. On the basis of the aforesaid report, a case was registered as Case Crime No. 52 of 1981, which was proved as Ext. Ka-3. Investigation of the crime was started by the police. The investigating officer of the case recorded the statement of the witnesses of the crime. Panchayatnama and post mortem of the dead body of the deceased were conducted. After completing all the formalities of the investigation, investigating officer submitted charge-sheet against accused Brahm Shankar @ Bechu, Vijay Shankar @ Mothai and Nirahoo, which was proved as Ext. Ka-14. Thereafter, the charge-sheet was also submitted by the investigating officer against the accused-appellant Bhola which was proved as Ext.Ka-4. 4. The charge was framed under Sections 147, 148, 149, 323 read with Section 149 IPC against the accused Bhola, Brahm Shankar @ Bechu, Vijay Shankar @ Mothai, Nirhoo and Awadh Narain by the trial Court on 31.03.1983. Against the appellant- accused Bhola, the charge was framed under Section 302 IPC (simplicitor) by the trial Court. The charge was framed under Section 120B IPC against the accused Nirahoo and Awadh Narain. All the accused persons including the accused-appellant Bhola denied the charges framed against them and claimed for trial. 5. After recording the evidence of the prosecution witnesses and taking into consideration their evidence on record, statement of the accused-appellant Bhola and other accused were recorded under Section 313 Cr.P.C. 6. Vide judgment and order dated 10.07.1989, trial Court after hearing the arguments of the prosecution and defence, on the basis of the evidence available on record, acquitted accused Brahm Shankar @ Bechu, Vijay Shankar @ Mothai, Nirahoo and Awadh Narain under Sections 147, 302/149, 323/149 and 120B IPC, by giving benefit of doubt. The accused-appellant Bhola was also acquitted of the charge under Sections 148, 302/149, 323/149 IPC but he was held guilty under Section 302 IPC (simplicitor) and convicted for life imprisonment. No fine was imposed upon the accused-appellant Bhola. 7. It is also worthwhile to mention here that against the acquittal order of the trial Court in respect of accused Brahm Shankar @ Bechu, Vijay Shankar @ Mothai, Nirahoo and Awadh Narain, State of Uttar Pradesh has not filed any appeal. 8. No fine was imposed upon the accused-appellant Bhola. 7. It is also worthwhile to mention here that against the acquittal order of the trial Court in respect of accused Brahm Shankar @ Bechu, Vijay Shankar @ Mothai, Nirahoo and Awadh Narain, State of Uttar Pradesh has not filed any appeal. 8. Learned counsel for the accused-appellant Bhola submitted that in the written report Ext. Ka-1, accused-appellant Bhola has not been named whereas accused Brahm Shankar and Vijay Shankar have been named in the F.I.R. Informant Lalmani Dubey, who is PW-1, has stated three kinds of enmity only against the named accused Brahm Shankar and Vijay Shankar. No enmity or cause or reason has been stated by the informant/PW-1 Lalmani Dubey against the accused-appellant Bhola, therefore, no motive for the commission of the crime by the accused-appellant Bhola has emerged from the F.I.R. The trial Court on the basis of the evidence acquitted the accused Brahm Shankar, Vijay Shankar, Nirahoo and Awadh Narain from the charge under Sections 147, 302/149, 323/149 and 120B IPC. The trial Court wrongly relied on the evidence of the informant/PW-1 Lalmani Dubey, PW-2 Chaturgun and PW-10 Isht Dev Prasad Rai and convicted and sentenced the accused-appellant Bhola under Section 302 IPC. 9. It is also submitted by learned counsel for the appellant that on the test identification parade of accused-appellant Bhola by the informant/PW-1 Lalmani Dubey and PW-2 Chaturgun, the trial Court wrongly and illegally held guilty the accused-appellant Bhola. It is also submitted by the counsel for the appellant that date of incident is 26/27.05.1981 at about 12:15 O'clock in the night. 10. The accused-appellant Bhola was arrested by the investigating officer on 03.07.1981 and his test identification parade was conducted in Sub Jail, Gyanpur, Varanasi on 07.09.1981, i.e., after about two months from the date of his arrest. From the evidence of PW-10 Isht Dev Prasad Rai, it is clear that before the test identification parade of the accused-appellant Bhola, prosecution witnesses already knew and were familiar to the accused-appellant Bhola, because village of the first informant Lalmani where incident occurred on 26/27.05.1981 and village of accused-appellant Bhola are situated in close vicinity. 11. On the above arguments, learned counsel for the accused- appellant Bhola submitted that without proper appreciation of the prosecution evidence, trial Court convicted the accused-appellant Bhola against the set principles of law of evidence in this regard. 11. On the above arguments, learned counsel for the accused- appellant Bhola submitted that without proper appreciation of the prosecution evidence, trial Court convicted the accused-appellant Bhola against the set principles of law of evidence in this regard. Hence, it is submitted by the counsel for the accused-appellant Bhola that accused-appellant Bhola is also entitled for acquittal by giving benefit of doubt. 12. Per contra, learned A.G.A. representing the State of U.P. has submitted that the trial Court in proper prospective and in legal way after appreciating the prosecution evidence found the accused-appellant Bhola guilty for commission of the alleged crime. The accused-appellant Bhola is the sole accused person, who fired at the deceased Rakesh Kumar on his chest from a country-made pistol, thereby murdered Rakesh Kumar. It is also submitted that judgment of conviction and sentence as passed by the trial Court is fully based on the evidence of the prosecution. The finding and conclusion drawn by the trial Court is legally sound as per law and parameters in this regard. Hence, the criminal appeal filed by the accused-appellant Bhola is liable to be rejected and conviction and sentence passed by the trial Court must be confirmed. 13. We have heard learned counsel for the appellant and the A.G.A. for the State of U.P. We have also perused the oral and documentary evidence as available on the record and gone through the record in the light of the arguments as adduced by the counsel for the accused-appellant and the A.G.A. representing the State. 14. From perusal of the written report Ext. Ka-1 and evidence of the first informant/PW-1 Lalmani Dubey and PW-2 Chaturgun, it is amply clear that three kinds of enmity were stated by the informant/PW-1 Lalmani Dubey and witness PW-2 Chaturgun only against the accused Brahm Shankar and Vijay Shankar, Nirahoo and Awadh Narain. Neither any single reference about enmity or reason has been stated by the informant/PW-1 Lalmani Dubey in his written report Ext. Ka-1 nor in his oral evidence. In his evidence of PW-2 Chaturgun also has not stated any enmity, cause or reason, which motivated the accused-appellant Bhola to come at the residence of the first informant/PW-1 Lalmani Dubey in the night of 26/27.05.1981 and fire at Rakesh Kumar son of Chaturgun PW-2. It is also not stated by any of the prosecution witness that accused-appellant Bhola is a hired assassin. It is also not stated by any of the prosecution witness that accused-appellant Bhola is a hired assassin. During the course of investigation by the investigating officer S.I. Sarju Prasad Chaudhary/PW-7, no fact of enmity between the informant side and accused-appellant Bhola has come into light. From the evidence of the prosecution witnesses, no single sentence has been stated about the motive, reason or cause, that has motivated or inspired the accused-appellant Bhola to commit the alleged crime. Despite the so-called enmity between the family of the informant Lalmani Dubey and accused Brahm Shankar and Vijay Shankar, accused Brahm Shankar and Vijay Shankar have been acquitted by the trial Court. This fact in absence of any motive against the accused-appellant Bhola makes the prosecution story suspicious and doubtful. Therefore, testimonies and evidence of the prosecution witnesses in this regard are not found to be trustworthy and believable. 15. In the written report Ext. Ka-1, name of accused-appellant Bhola has not been stated by the informant/PW-1 Lalmani Dubey. The date of the incident is 26/27.05.1981. Accused-appellant Bhola was arrested on 03.07.1981 alongwith accused Nirahoo. The investigating officer/PW-7 Sarju Prasad Chaudhary has stated in his cross-examination that "only on the ground of doubt and information (mukhbiri), name of accused Bhola has come into light in respect of the alleged crime. The accused Awadh Narain in his statement has stated about the involvement of the accused Bhola in the commission of the crime and on believing many other causes, accused Bhola has been arrested.” 16. From the above statement of the investigating officer/PW-7 Sarju Prasad Chaudhary as given by him in his cross-examination, it is amply clear that accused-appellant Bhola was arrested by the investigating officer only on the ground of doubt, suspicion and statement of other co-accused Awadh Narain. From the above, it is clear that only on the ground of suspicion and doubt, the accused- appellant Bhola got involved and implicated in this case as an accused. 17. The accused-appellant Bhola was arrested by the investigating officer/PW-7 on 03.07.1981 alongwith co-accused Nirahoo. The so-called test identification parade was organized on 07.09.1981 at Sub Jail, Gyanpur, Varanasi by PW-10 Isht Dev Prasad Rai. 18. From the aforesaid, it is clear that date of incident is 26/27.05.1981 and after about 36 days, accused-appellant Bhola was arrested on 03.07.1981 by PW-7 SI Sarju Prasad Chaudhary. The so-called test identification parade was organized on 07.09.1981 at Sub Jail, Gyanpur, Varanasi by PW-10 Isht Dev Prasad Rai. 18. From the aforesaid, it is clear that date of incident is 26/27.05.1981 and after about 36 days, accused-appellant Bhola was arrested on 03.07.1981 by PW-7 SI Sarju Prasad Chaudhary. Thereafter, the test identification parade was conducted under the supervision of the prosecution witness PW-10 Isht Dev Prasad Rai on 07.09.1981 after a delay of about two months from his arrrest. The above fact of about two months delay has also been confirmed by PW-2 Chaturgun from his statement that after two months and five days from the date of incident, he with Lalmani Dubey, Aadhya Prasad and Autar have gone in the test identification parade to identify the culprit. Apart from this, the first informant Lalmani Dubey has stated in his cross-examination that “accused Bhola is resident of village Bhagwas. The test identification of accused Bhola has been done after two months from his arrest. There was his land in village Bhagwas where he does agricultural work. He knew accused Bhola for the last about 4½ years. He had seen firing from country-made pistol by the accused Bhola." 19. Thus from the above statement of informant/PW-1 Lalmani Dubey, it is clear that accused Bhola is resident of village Bhagwas. The agricultural land of informant/PW-1 Lalmani is situated in village Bhagwas where he does agricultural work. This fact also becomes clear that informant PW-1 Lalmani Dubey is also known to the accused-appellant Bhola and well-acquainted with him. 20. We have also perused the evidence of PW-2 Chaturgun and find that PW-2 Chaturgun allegedly denied that he had heard the name of Bhola for the first time. PW-2 Chaturgun stated that he does not go to village Bhagwas in any marriage ceremony or other functions. Thus from the two contradictory statement on the same point by informant/PW-1 Lalmani Dubey and PW-2 Chaturgun, the fact emerged that PW-2 Chaturgun is trying to conceal this fact that he does not go to village Bhagwas where accused-appellant Bhola resides. Thus, from the above contradictory statement of the first informant/PW-1 Lalmani Dubey and PW-2 Chaturgun, it becomes amply clear that PW-2 Chaturgun is purposely trying to conceal this fact that he did not know or was acquainted with the accused-appellant Bhola, who is resident of village Bhagwas. Thus, from the above contradictory statement of the first informant/PW-1 Lalmani Dubey and PW-2 Chaturgun, it becomes amply clear that PW-2 Chaturgun is purposely trying to conceal this fact that he did not know or was acquainted with the accused-appellant Bhola, who is resident of village Bhagwas. From the contradictory statement of PW-1 Lalmani Dubey and PW-2 Chaturgun, it is apparent that village Chhatrashahpur where the incident happened on 26/27.05.1981 and village Bhagwas where the accused Bhola resides is located in the close vicinity of each other. 21. In other words, village Chhatrashahpur where the complainant's side resides and village Bhagwas where accused Bhola resides are located in the vicinity of each other. Although PW-1 Lalmani and PW-2 Chaturgun in their evidences tried to conceal this fact but in cross-examination, this fact emerged in the statement of PW-1 Lalmani Dubey. 22. The test identification parade of the accused-appellant Bhola was conducted by the prosecution on 07.09.1981 after a delay of about two months from his arrest on 03.07.1981. No cause or explanation for two months delay has been explained or stated by the PW-10 Isht Dev Prasad Rai. When we see this fact in totality of the circumstances of the case and in the light of the fact that accused-appellant Bhola is not named in the written report Ext. Ka- 1, then the delay of two months in conducting the test identification parade, proceeding of the test identification parade in the above circumstances and facts become totally doubtful, suspicious and, thereby unbelievable. 23. From the perusal of the evidence as given by the prosecution witness Isth Dev Prasad Rai and in his cross-examination, it appears that PW-10 Isht Dev Prasad Rai, who conducted the test identification parade has stated in his cross-examination that "witnesses Aadhya Prasad and Autar had given statement to him that they have come to identify accused Bhola". From the above, statement of PW-10 Isth Dev Prasad Rai, it explicitly becomes clear that PW-1 Lalmani Dubey and PW-2 Chaturgun, Aadhya Prasad, Faujdar are familiar and acquainted with the accused-appellant Bhola, before commission of the alleged crime. In other words, test identification witnesses are well-acquainted and known to accused- appellant Bhola. Without considering this fact and without giving any reason on this point, the trial Court held accused-appellant Bhola guilty. In other words, test identification witnesses are well-acquainted and known to accused- appellant Bhola. Without considering this fact and without giving any reason on this point, the trial Court held accused-appellant Bhola guilty. How and by which means, PW-10 Isht Dev Prasad Rai stated that they had come to identify accused Bhola. Meaning thereby that prosecution witnesses, who participated in the test identification parade, were familiar and acquainted with the accused-appellant Bhola. These prosecution witnesses before the date of incident were known to the accused-appellant Bhola and accused Bhola was also familiar and known to the prosecution witnesses. Since village Chhatrashahpur and village Bhagwas where complainant’s side and accused-appellant Bhola respectively reside, are located in the close vicinity of each other. The agricultural land of the complainant Lalmani Dubey is located and situated in village Bhagwas. Both the above villages are neighbouring village, so in this facts and circumstances of the case, it could not be presumed that complainant’s side and the appellant Bhola are not familiar and acquainted with each other. 24. We have gone through the judgment of the Hon'ble Apex Court in the case of Harinath and another Vs. State of U.P., (1988) 1 SCC 14 . From perusal of the fact of the above case law of Hon'ble Apex Court, it appears that facts and circumstances of the said case are nearly similar to the facts and circumstances of the present criminal appeal at hand. From perusal of the aforesaid case law, we find that above case is fully applicable in the facts and circumstances of the case at hand, wherein Hon'ble Apex Court has held that : "The evidence establishing the identity of the culprits assumes particular materiality in a case, as here, of a dacoity occurring in the darkness of the night. The evidence of the test identification would then call for a careful scrutiny. In the present case the fact that the prosecution witness could reasonably be expected to have known some of the accused- appellants as residents of villages in close vicinity of his village and as students of the same institution in which he was a student is a statable probability and that his feigned ignorance of any prior familiarity with identity of the accused becomes irreconcilable with what are incidents of ordinary human intercourse. The omission to disclose their identity in the FIR would raise a reasonable doubt about their complicity in the crime. Moreover, there was a serious lapse on the part of the prosecution in putting up the suspected culprits for a test identification after a lapse of four months after their arrest without any explanation for the delay. The benefit of this wholly unexplained lack of promptitude in holding the test identification enures to the accused-appellants. The evidence of test identification lacks the requisite element of reassurance to support the conviction. A reasonable doubt, therefore, arises." 25. When we see the evidence of the witness of the test identification parade in the light of the law as held by the Hon'ble Apex Court, we find that accused-appellant Bhola was arrested on 03.07.1981 after about 36 days from the date of incident on 26/27.05.1981. 26. The test identification parade was organized and conducted by the prosecution on 07.09.1981 after two months of his arrest on 03.07.1981. No explanation for the delay of two months in conducting the test identification parade has been given by the prosecution. It is also surprising that village Chhatrashahpur where the complainant’s side resides and village Bhagwas where the accused resides, are located in the close vicinity of each other. The villagers of neighbourhoood villages situated in close vicinity are well-acquainted and familiar with each other. The delay of about two months in conducting the test identification parade after arrest of the accused-appellant Bhola, even without any explanation of delay, itself becomes highly doubtful and suspicious. Therefore, only on the ground of test identification parade even after delay of more than two months, accused-appellant Bhola could not be held guilty for the commission of the heinous crime like murder. 27. This delay of about two months in conducting the test identification parade makes the prosecution story as projected by the prosecution against the accused-appellant Bhola, highly doubtful and unbelievable. 28. In light of the case law as held by the Hon'ble Apex Court in the case of Harinath and another (supra), we find that judgment and order dated 10.07.1989 as passed by the learned trial Court in Session Trial No. 37 of 1982 (State Vs. Bhola and others) holding guilty the accused-appellant Bhola is not sustainable as per the law. 29. Bhola and others) holding guilty the accused-appellant Bhola is not sustainable as per the law. 29. We find that accused-appellant Bhola is also entitled to be acquitted of the charge under Section 302 IPC by giving benefit of doubt. 30. In the light of the above discussions and analysis, we find that Criminal Appeal No. 1529 of 1989 (Bhola Vs. State) deserves to be allowed. 31. The criminal appeal is allowed. Accordingly, we set aside the impugned judgment and order dated 10.07.1989 of conviction and sentence passed against the accused-appellant Bhola by learned trial Court in Session Trial No. 37 of 1982 arising out of Case Crime No. 52 of 1981, under Sections 147, 148, 149, 302, 120B IPC, police station Gyanpur, district Varanasi. The appellant Bhola is acquitted of the charge under Section 302 IPC. The appellant is on bail. His bail bond is cancelled and sureties are discharged. He need not surrender. 32. Office is directed to certify the judgment to the learned trial Court forthwith along with lower court record.