JUDGMENT Chandra Prakash, J. - These are three appeals arising out of the order dated December 23, 1968 of Sri S.D.N. Singh, second Temporary Sessions Judge, Allahabad convicting the appellants under various sections and acquitting the seven respondents. Pangul, Shambhoo, Banshi Lal, Gokul S/o Pyare Lal, Shyam Behari, Prabhoo and Gokul Son of Chhotai appellants in Criminal Appeal No. 75 of 1969 have been convicted under sections 302, 149, 324, 149, 323, 149 and 118 Indian Penal Code and each of them has been sentenced to imprisonment for life, two year's R.I., one year's R.I. and three year's R.I. respectively. Bhai Lal, Sipahi Lal son of Jarbandhan, Jawahar, Keola, Jagdamba, Ram Achal and Kashi Ram appellants in Criminal Appeal No. 74 of 1969 have been convicted under sections 302, 149, 323, 149, 324, 149 and 147 I.P.C. and each of them has been sentenced to imprisonment for life, one year's R.I., 1,1Z year's R I., and two year's R. I. respectively under them. The sentences were directed to run concurrently. Deo Saran, Maillu, Sipahi Lal son of Golai, Shitla Din, Ram Pratap, Chhotey Lal and Ganga Din respondents in Criminal Appeal No. 605 of 1969 were all acquitted on all counts. 2. All the appellants and respondents with the exception of Deo Saran, Maillu, Sipahi Lal son of Golai and Shitla Din are residents of village Bari Bajahia Police Station Ghoorpur district Allahabad. Noor Mohammad and Rajjab Ali deceased were also residents of Bari Bajahia. Deo Saran belongs to village Khain situate at about 10 miles from Bari Bajahia. Shitla Din is a resident of Sukkhu ka pura while Maillu and Sipahi Lal son of Golai are residents of Bhanauri. All the accused are Kurmis by caste except Shital Din who belongs to Kewat community. 3. The paper Ex. Ka-46 is the site plan showing the houses of Sahamat All (P.W. 2) and the complainant Jamiluddin (P.W. 1). Jamiluddin (P.W. 1) is and Noor Mohammad deceased was the son of Abdul Rah. man (P.W. 7). Abdul Rahman (P.W. 7) is himself the son of Rajjab Ali deceased. Miya Din (P.W. 3) and Ishaq are the nephews of Abdul Rahman whose wife is Smt. Buchan. The entire village of Bari Bajahia is inhabited by Kurmis with the exception of five houses. Two of the five houses belonged to Muslims viz. Jamil Uddin and Sahamat Ali respectively. Abdul Rahman (P.W. 7) is himself the son of Rajjab Ali deceased. Miya Din (P.W. 3) and Ishaq are the nephews of Abdul Rahman whose wife is Smt. Buchan. The entire village of Bari Bajahia is inhabited by Kurmis with the exception of five houses. Two of the five houses belonged to Muslims viz. Jamil Uddin and Sahamat Ali respectively. The remaining three houses belonged to a Thakur, a Erahman and a Kachi. The house of Sahamat Ali lies to the north and faces west. Contiguous to it and in its south lies the house of complainant Jamil Uddin. There is a Chabutra in front of the house of Jamiluddin. 4. The prosecution story in brief was as follows:- In March-April 1968 there were communal disturbance at Allahabad situate at a distance of eight miles from Bari Bajahia. It is said that one Ram Dular Kurmi also came to Allahabad during the period of aforesaid disturbances and did not go back. A rumour went around the village that he had been murdered by the Mohammadans of Allahabad. This infuriated the Kurmis of Bari Bajahia who wanted to finish the muslims of the village in return. In the night between 19th and 20th April 1968, Abdul Rahman with his aged father Rajjab Ali, sons Noor Mohammad and Jamil Uddin and nephews Mian Din and Ishaq was sleeping on the platform in front of his house situate in Bari. A lighted lantern was hanging from a bamboo. Projecting from the roof of an adjoining osara. At about midnight all the appellants and respondents raided the house of Sahamat All. Pangul, Banshi Lal, Shambhoo, Gokul son of Chotai appellants were armed with ganasas or phersas. Shyam Behari and Prabhoo appellants were armed with spears. Gokul son of Pyare Lal appellant was armed with a Barchi. Rest of the appellants and the respondents were armed with lathis. They asked Sahamat All to open the door and come out. Sahamat All did not come out. On the other hand he raised an alarm which awakened the persons sleeping on the platform in front of complainant', house. The accused then turned towards the platform of Abdul Rahman and on the exhortation of Jawahar and Gokul son of Chotai that death of Dulare should be avenged and muslims should not be allowed to live, started assaulting Ra j jab Ali. The accused then turned towards the platform of Abdul Rahman and on the exhortation of Jawahar and Gokul son of Chotai that death of Dulare should be avenged and muslims should not be allowed to live, started assaulting Ra j jab Ali. Noor Mohammad, Mian Din and Abdul Rahman with the respective weapons they had. Jamil Uddin (P.W.1) and Ishaq happened to escape and took shelter in a pit lying to the west of their house at a distance of 10 or 15 paces. When Smt. Buchan wife of Abdul Rahman came out, she too was assaulted. Abdul Haq (P.W.6) and Abdul Rahman who were present at the thrashing floor about 150 paces north of the place of occurrence arrived in front of the door of Sahamat Ali. On their arrival Sahamat Ali also came out of his house. On the alarm raised by Abdul Haq, Sahamat All and Abdul Rahim the rioters stopped beating and escaped to the south. 5. A written first information report (Ex-Ka-1) of the incident was lodged at police station Ghoorpur Jamil Uddin (P.W. 1) Sukhnandan Singh (P.W. 20) prepared a check report (Ex-Ka-62). On its basis he also registered a case in the general diary against the accused. 6. Yadram (P.W. 16) was the Station Officer, Ghoorpur. He was present at the police station when the first information report was lodged. He started the investigation at once and took the statement of the complainant at the police station itself. He then went to the place of the incident and reached there at about 8 A.M. He found Raj jab Ali dead on the cot. He prepared the inquest report of the dead body of Rajjab and sent it for post-mortem examination. He then recorded the statement of Noor Mohammad and sent him along with Abdul Rahman, Smt. Buchan and Mian Din for medical examination. He then recorded the statements of other witnesses. He further took into possession the lantern which was found in order. He also prepared the site plan. 7. Dr. M.J. Siddiqui (P.W. 4) examined the injuries of Noor Mohammad on April 20, 1968 at 2-45 P.M. He found the following injuries on his body : 1. Incised wound 1" x " x deep to the bone oblique behind the right ear directed upwards. 2. He also prepared the site plan. 7. Dr. M.J. Siddiqui (P.W. 4) examined the injuries of Noor Mohammad on April 20, 1968 at 2-45 P.M. He found the following injuries on his body : 1. Incised wound 1" x " x deep to the bone oblique behind the right ear directed upwards. 2. Incised wound 2" x ?" x scalp on the right side of the head, 2" above the right ear. 3. Incised wound 1" x ?" x scalp on the right side of the head just behind injury No. 2. 4. Incised wound 3" x ?" x scalp on the right side of the head, 2" above the eye brow. 5. Stab wound with clean cut margins " x " X scalp (1-") on the head 2" above the root of the nose. 6. Incised wound 3" x " x scalp on the left side of the head, 2" above the left ear, and another at right angle of its outer end, 1" x " x scalp. 7. Incised wound 4" x 1" deep to the bone on the left side of the head, 3" behind the upper part of the left ear running downwards upto neck, 1" behind the lower part of the left ear. 8. Incised wound l" x " x scalp on the back of the head left side, 1" below and behind No. 6. 9. Stab wound with clean margins %) x " x " x ? on the right side of the chest, 4" below the middle of the arm pit directed backwards and upwards. 10. Stab wound with clean cut margins " x " on the lower part of the chest right side, 3" below No. 9. 11. Multiple small abrasions on back right end. 12. Stab wound with clean margins ?" x " x bone deep on the back of the right middle finger with swelling of the fingers and whole hand. 8. The condition of Noor Mohammad was found precarious. Accordingly he was transferred to Swarup Rani Medical Hospital where he died at 7.20 P.M. 9. Dr. M.J. Siddiqui examined the injuries of Mian Din on April 20, 1968 at 4 P.M. and found the following injuries : 1. 8. The condition of Noor Mohammad was found precarious. Accordingly he was transferred to Swarup Rani Medical Hospital where he died at 7.20 P.M. 9. Dr. M.J. Siddiqui examined the injuries of Mian Din on April 20, 1968 at 4 P.M. and found the following injuries : 1. Incised wound " x " muscle deep spindle shaped on the back of the right shoulder joint upper part with linear superficial 2" long in its upper and back and caused by any sharp edged weapon. 2. Abrasion ?" x " on the top of the head in the middle caused by any blunt object. It had swelling all around. 10. Dr. M.J. Siddiqui examined Abdul Rahman on 20th April 1968 at 4.15 P.M. and was found having an abraded contusion 2" x 3" on the outer side of the right upper arm upper part, caused with some blunt object. 11. Dr. Siddiqui further examined Smt. Buchan on the same day at 4-30 P.M. and was found having a contusion 1" x 1 /2" oblique on the back of the right hand with swelling of the whole hand. 12. Dr. B. N. Srivastava. (P.W. 17) Medical Officer Incharge, Police Hospital, Allahabad conducted the post mortem examination of Raijab All deceased on April 21, 1968 at 10-45 A.M. and found the following ante mortem injuries: 1. Incised wound 3" x 1" x bone deep on the dorsal of the left portion of wrist joint cutting below the tender tissues and ulna lower one third. 2. Incised wound 1" x " x " on the middle border of the left forearm outer side. 3. Incised wound 1" x " x " on the upper ?rd of the left fore arm dorsum. 4. Abrasion linear 2" x " on the outer side of upper third of the left arm. 5. Incised wound 3" x 1" x bone on the right side of the neck cutting below the mandible, vessels, tissues, muscles and part of traches. 6. Linear abrasion 10" x " with scab from right shoulder to the front of neck left side. 7. Incised wound 1" x " x " on the upper ?rd of right arm. 8. Incised wound 2" x 1" x bone cutting below the vessels tissues and bone and humerus of right arm on the junction of middle and upper ?rd. 9. 7. Incised wound 1" x " x " on the upper ?rd of right arm. 8. Incised wound 2" x 1" x bone cutting below the vessels tissues and bone and humerus of right arm on the junction of middle and upper ?rd. 9. Incised wound " x " tissues of right arm middle front below No. 8. Fracture below of the humerus. 10. Incised wound 5 x 1" X tissues cutting muscles tender tissues of right fore arm on the front of dorsum. 11. Incised wound 2" x " x " running upwards behind injury No. 10. 12. Incised wound 1" x " bone cutting the right thumb and fingers. 13. The death of Rajjab Ali was due to shock and hemorrhage as a result of neck injury and other injuries along with multiple fractures of the bones. 14. After completing the investigation Yadram (P.W. 16) submitted a charge-sheet against all the accused. The preliminary enquiry was con- ducted by Sri Hira Lal Gupta, Magistrate, First Class, who committed all of them to the court of Sessions on charges of various sections including 302 read with section 149. 15. The accused pleaded not guilty and alleged that they had been falsely implicated on account of enmity. 7 hey denied their participation in the unlawful assembly which caused death to Noor Mohammad and Rajjab All injuries to others. The defence of Deo Saran respondent further was that he belonged to Khain and he was involved at the instance of Ghoorpur police which had previously prosecuted him under section 109 Criminal Procedure Code and 307 Indian Penal Code Chottey Lal respondent alleged that lie was 80 years old and had a poor eye sight and he was too weak to move about and participate in an unlawful assembly. 16. The prosecution examined 20 witnesses in support of its story including five eye witnesses. The accused produced no oral defence. The learned Sessions judge after examining the entire evidence in the case acquitted the seven respondents and convicted and sentenced the fourteen appellants. All the fourteen convicted accused have appealed against their conviction and sentence. The state has also filed an appeal against the acquittal of the respondents. We have heard learned counsel for the appellants as well as learned counsel for the respondents. All the fourteen convicted accused have appealed against their conviction and sentence. The state has also filed an appeal against the acquittal of the respondents. We have heard learned counsel for the appellants as well as learned counsel for the respondents. After going through the record and after thorough consideration we have come to the conclusion that the appeal preferred by the convicted accused must succeed and the appeal preferred by the State against the order of acquittal must fail. 17. The prosecution examined five witnesses viz Jawiluddin (P.W. 1), Sahamat (P.W. 2), Mian Din (P.W. 3) Abdul Haq (P.W. 6) and Abdul Rahman (P.W. 7). The evidence of all there witnesses is to the effect that after about a week prior to the occurrence, a rumour had gone round the village that Ram Dularey Kurmi who had gore to Allahabad had been murdered by the muslims on account of communal disturbances prevailing there, Salia. mat (P.W. 2) actually deposed that some of the accused who met him few days prior to the alleged incident had told him that the Muslims should not be permitted to live and that he had informed about it to Rajjab Ali and Noor Mohammad deceased. This witness has further deposed that on the fateful night at about 12 O'clock all the 21 accused raided his house and asked him to come out but the latter did not do so. The alarm raised by Sahamat Ali awakened the persons sleeping on the chabutra infront of the Abdul Rahman's house. The assailants then turned to the platform of Abdul Rahman and belaboured with the various weapons held by them. Rajjab Ali, Noor Mohammad, Abdul Rahman and Mian Din who were sleeping there and also Smt. Buchan wife of Abdul Rahman when she came out of the house on hearing the alarm, Jamil Uddin and Mohd. Ishaq who were also there at the platform managed to escape. Jamil Uddin added that he increased the light of the lantern by wicking up the flame and he along Ishaq took shelter in the pit lying to the west of their house at a distance of 10 or 12 paces from it. Abdul Haq and Abdul Rahim came from the north from their thrashing floor and stopped in front of the Sahamats house On their arrival Sahamat too came out of the house and saw the incident. 18. Abdul Haq and Abdul Rahim came from the north from their thrashing floor and stopped in front of the Sahamats house On their arrival Sahamat too came out of the house and saw the incident. 18. The paper Ex. Ka-1 is the written first information report lodged by Jamil Uddin (P.W. 1) at Police Station Ghoorpur at 7 A.M. on 20-4-68. The police station was at a distance of six miles from the scence of occurrence. the incident took place for about half an hour at dead hour of night Jamil Uddin (P.W. 1) has admitted that he went to the police Station on a bicycle and reached there in half an hour. The report should have been by about 2 or 2.30 A.M. It was lodge with a delay of about 4 hours at least. No explanation of delay has been given by the prosecution in evidence. It was argued on behalf of the State that the incident was the result of the communal tension and the first information report was not lodged in the night on account of fear. In the absense of such case being taken in evidence it was not open to the prosecution to take this stand on mere surmises. The delay of about 4 1 hours gave ample time to the complainant to have consultation and to make improvement. The first information report therefore loses its corroborative value. 19. The next question that arises for consideration is whether there was sufficient light at the time of incident in order to enable the witnesses to recognise the assailants. We are informed by the almanace and it is not disputed that the night of incident was a pitch dark and moonless night. The assailants are alleged to have been recognised in the light of the burning lantern hanging from a bamboo projecting from the roof of the adjoining osara of the complainant. It is admitted by the complainant Jamil Udding (P.W. 1) that he and other inmates of his house were Biri makers. They used to make Biri till mid-night in the light of the lantern. At mid-night before going to sleep they used to make the light dim presumably because their sleep may not be disturbed by light. He added in terms unambiguous that the light of the lantern was made dim on that night also. They used to make Biri till mid-night in the light of the lantern. At mid-night before going to sleep they used to make the light dim presumably because their sleep may not be disturbed by light. He added in terms unambiguous that the light of the lantern was made dim on that night also. According to him he wicked up the flame and increased the light when the actual marpit started. It will therefore follow that before the start of marpit there was no sufficient light. The rioters first went to the door of Sahamat (P.W. 2) and asked Sahamat to come out. Sahamat did not come out. On the other hand he raised an alarm which awakened the complainant and other inmates of the house. These witnesses enquired as to what the matter was. On this the rioters turned to the house of the complainant, went there, and assaulted the members of his family. Jamil Uddin is definite that the assaulters came to the west of his house and surrounded from the west. Jamil Uddin did not receive even a scratch. He was to the east of the. assaulters when they came and started the assault. It is difficult to believe that he was allowed to increase the light when his relations were being belaboured at that very place and no attempt was made to injure him or put out the light he had increased. A large crowed of 21 rioters was to the west of him. He was to the east of them. According to him he ran away and hid himself in a pit lying to the west of his house at a distance of about 10 or 12 paces. He could not have gone to the pit without crossing the huge army of rioters that stood between him and the pit where he has alleged to have taken shelter. The whole story of producing light by picking up the flame is improbable and cannot be accepted. No other witness has supported his case on the question of his picking up the flame. The flame was purposely wicked up in the testimony of Jamil Uddin so that the witnesses might recognise the assailants which they could not do in pitch dark night. No other witness has supported his case on the question of his picking up the flame. The flame was purposely wicked up in the testimony of Jamil Uddin so that the witnesses might recognise the assailants which they could not do in pitch dark night. Once the theory of producing the light by increasing the wick of the lantern is rejected, there is no other light left which could enable the victim of assault to recognise their assailants. 20. All the five witnesses examined by prosecution enumerated the names of 21 assailants together with the respective weapons possessed by each in a parrot like manner. If an assault is committed by no less than 21 persons even in a broad day light and there are five or six witnesses present to see it, even they will commit some discrepancies or omission in naming or enumerating them all and this is natural also. It is possible that all of them may name some common assaulters, but every body naming each along with the weapons possessed by them is an event difficult to swallow. The uniformity on the part of the witnesses in naming all the 21 accused together with the weapons wielded by each appears to be concocted and this uniformity stood exploded when Abdul Haq (P.W. 6) pointed out towards the accused and enumerated the names of all of them together with the weapons used by them but failed to identify four of them. According to the eye witnesses all the 21 accused assaulted but none of these witnesses could state which accused injured which victim. Even the eye witnesses did not name the author or authors of the injuries inflicted on them. We are not prepared to accept the testimony of such witnesses. 21. According to the prosecution story the initial target of the assault was Sahmat (P.W. 2). The rioters went to his house, knocked at his door and asked him to come out. All the accused with the exception of four of them are the residents of the very village where the incident took place. They were expected to know the day to day working in their own village. According to the prosecution story itself the inmates of Jamiluddin's house used to do Biri work till midnight on their platform in the light of the lantern. They were expected to know the day to day working in their own village. According to the prosecution story itself the inmates of Jamiluddin's house used to do Biri work till midnight on their platform in the light of the lantern. The assailants therefore knew that five to seven muslims were sleeping on the platform in front of the Jamil Uddiris house without providing any shutters or any hindrances for their protection. The whole body of rioters wanted to satisfy its communal fury. If that was so they could easily start with finishing those persons sleeking in open outside their house. There is no evidence to suggest that large number of people were available in Sahamat's house. The mob had ample crop in front of Jamil Uddin's house where five or six persons were sleeping without any hinderance of entry. 22. Further according to the prosecution story itself the inhabitants of the houses owned by one Brahman one Thakur and one Kachi wanted to come to the help of the victims but they could not do so for the rioters had chained their houses from outside and thus prevented them from coming out. It follows from the prosecution story itself that the rioters had taken every care to see that none could come out for the rescue of the victim. When the assailants were so much careful it is difficult to understand that they did not take care to remove or destroy the light and permitted Jamil Uddin to wick up the flame of the lantern in their very presence without causing any injury to him. 23. Noor Mohammad deceased received four stab wounds, seven incised wounds and one abrasion. Mian Deen deceased received one incised wound and one abrasion. Abdul Rahman received one contusion only. Smt. Buchan received one contusion. Rajjab deceased received ten incised wounds, two abrasions. Thus the entire body of victim received eighteen incised wounds- The assaulters had four pharsas, two spears one barchi and fourteen lathis. All the weapons are said to have been used. The abrasions could be caused by fall also. The victims got four abrasions and two contusions only, assuming that all the abrasions had been caused by lathis. When blows were inflicted by 14 lathis the number of contusion or abrasions should have been larger than the incised or stab wounds. All the weapons are said to have been used. The abrasions could be caused by fall also. The victims got four abrasions and two contusions only, assuming that all the abrasions had been caused by lathis. When blows were inflicted by 14 lathis the number of contusion or abrasions should have been larger than the incised or stab wounds. It follows that the number of lathi welders had been indiscriminately exaggerated and attempt has been made to rope in innocent persons also without their being present. 24. There is also the evidence of the dying declaration alleged to have been made by Noor Mohammed. This statement is alleged to have been made by Noor Mohammad to Investigating Officer on April 20 1968. A plain reading of this dying declaration shows that it contains the language of first information report with minor variations here and there and has therefore no value. 25. Noor Mohammad received no less than 12 injuries out of which four were stab wounds and seven were incised wounds. According to the medical evidence the general condition of Noor Mohammad was very low. His pluse was feeble and rapid. The abdomen was distorted. At one place Dr. Siddiqui stated that Noer Mohammad was not unconscious but this is an improvement on his injury report Ex. Ka-4. No where in his injury report Dr. Siddiqui noted that Noor Mohammad was not unconscious. The testimony of Dr. Siddiqui that Noor Mohammad was not unconscious must be rejected. Further if Noor Mohammad could speak what prevented the Investigating Officer to make a move for getting his dying declaration recorded by Magistrate It is possible that the Magistrate was not easily available. In that case the dying declaration could have been recorded by Dr. Siddiqui him. self. The dying declaration of Noor Mohd. contained in the statement recorded by the I. O. under section 161 has therefore no value. 26. For reasons given above we are not prepared to rely on the testimony of the eye witnesses examined by the prosecution or the dying declaration of Noor Mohd. There was no light to enable the eye witnesses to recognise the assailants. The story narrated by the witnesses is intrinsically absurd and cannot be replied upon. 27. All the appellant in appeals No. 74 of 1969 and 75 of 1969 are liable to be acquitted of all the charges levelled against them. There was no light to enable the eye witnesses to recognise the assailants. The story narrated by the witnesses is intrinsically absurd and cannot be replied upon. 27. All the appellant in appeals No. 74 of 1969 and 75 of 1969 are liable to be acquitted of all the charges levelled against them. The appeals No. 74 of 1969 and 75 of 1969 are allowed and all the appellants in these appeals are acquitted. All the Appellants are on bail. They need not surrender. Their bail bands are discharged. 28. The Government appeal No. 605 of 1969 is also dismissed.