Judgment P.N. Harkauli, J. 1. MARACHHU, Juthan, Roopa, Kavindra and Ramayan, appellants have come up in appeal against the judgment and order passed by the learned Sessions Judge Ghazipur convicting each of them under section 148 IPC and of two offences under section 302/149 IPC and sentencing them to one year's rigorous imprisonment on the first count and to imprisonment for life on each of the other two counts. All the sentences of the appellants were ordered to run concurrently. 2. IN this case two persons namely, Hari Ram and Rajendra have been murdered. Ramayan, appellant is the son of Musafir first cousin of Hari Ram, deceased. According to the prosecution the other four appellants belong to the group (Ghol) of Ramayan. A litigation was going on between Hari Ram, deceased, and Ramayan, appellant, and his father Musafir in respect of a field for about four or five years prior to the occurrence and the parties used to go to court in connection with that case. On one heariDg about two years prior to this occurrence Musafir went to Saidpur to attend the hearing of that case and thereafter he did not return home and disappeared. Ramayan, appellant suspected that Hari Ram and Rajendra, deceased, had murdered him and he lodged a report about that effect naming these two deceased as the accused. They were arrested by the police in connection with that case but were released on bail. So Ramayan, appellant, bore enmity against these two deceased. This enmity is said to be the cause of these murders. 3. WITH regard to the occurrence it is alleged that on the night of 21/22-5-1980 Rajendra deceased, was sleeping inside the Kotha of his house along with his wife Smt. Kalawati (PW 2) and a one year old child. A Dhibri was burning inside this room as Smt. Kalawati was not well. His father Hari Ram deceased, was sleeping in the courtyard of his house. His wife Smt. Samdeiya (PW 1) was also sleeping in the same courtyard at a short distance from him. There were no shutters in the door of the court yard. At about 1 a. m. the five appellants and Bhikari, father of Marachhu, Roopa and Kavindra, appellants came inside the courtyard. His wife Smt. Samdeiya (PW 1) was also sleeping in the same courtyard at a short distance from him. There were no shutters in the door of the court yard. At about 1 a. m. the five appellants and Bhikari, father of Marachhu, Roopa and Kavindra, appellants came inside the courtyard. At that time Marachhu and Juthan, appellants, were armed with ' Gandasas' Bhikhari was armed with a lathi and the remaining four appellants were armed with spears. On entering tie courtyard the appellants caught Hari Ram, deceased, and started beating him. Hari Ram, deceased and Smt. Kalawati and her daughters raised an alarm. In the meantime, Marachhu, Kavindra and Ramayan appellants, went inside the room where Rajendra, deceased, was sleeping. They caught him and tied him to the cot and thereafter assaulted him with their Gandasas and spears. Hearing the cries of the victims Nanhak, Sahdeo, Sheobaran, Chandip and others rushed to the place flashing torches. Thereupon the five appellants and Bhikhari ran away leaving the two deceased on the spot. 4. SMT. Samdeiya (PW 1) wife: of Hari Ram, deceased, lodged a report about this occurrence at police station Shadiabad, District Ghazipur which was at a distance of three miles from village Manihari where this occurrence took place at 5.30 a. m. the next morning. This report was lodged in the presence of the Investigating Officer' Sri Surya Bali Singh, Sub Inspector (PW 12). He recorded the statement of the informant at the police station and then proceeded to the spot. He found the body of Hari Ram, deceased lying in the courtyard and the body of Rajendra, deceased inside the room. He prepared the inquest reports of the two bodies and sent them for post mortem examination. The post mortem examination on the two bodies were performed by Dr. P. C. Tiwari (PW 4) on 22-5-1980 at 2 p. m. and 3 p. m. The doctor found the following injuries on the bodies : Injuries on the body of Hari Ram : 1. Incised wound 6 cm x 3 cm x cavity deep, small bowel loops lying outside abdomen, transversely placed 37 cm below right nipple. 2. Incised wound 5 cm x 2 cm cavity deep 4 cm inner to right nipple right chest. 3. Inside wound 4 cm x 1 cm x bone deep 11 cm above right eye brow on rightside of head. 4. 2. Incised wound 5 cm x 2 cm cavity deep 4 cm inner to right nipple right chest. 3. Inside wound 4 cm x 1 cm x bone deep 11 cm above right eye brow on rightside of head. 4. Incised wound 1 cm x 0.5 cm x 0.5 cm outer part of left eye brow transversely placed. On internal examination the doctor found that the fourth and fifth right ribs were fractured, the pleura was punctured under injury no. 2 and the right lung was lacerated through and through. According to the doctor Hari Ram had died due to haemorrhage and shock as a result of the ante mortem injuries. Injuries on the body of Rajendra : 1. Incised wound 18 cm x 4 cm x cervical spine deep 4 cm above right clavicle encircling right side, front and half of left aide of neck upper part dividing muscles of the neck, vessles of both sides, nerves, oesophagus and trachea, just below thyroid cartilage (cut tkroat). 2. Incised wound 4 cm x 2 cm x cavity deep 11 cm below right nipple. 3. Abrasion 2 cm x 1 cm over right knee outer part. 4. Incised wound 4 cm x 2 cm x 5 cm above left elbow obliquely placed outer part. 5. Incised wound 4 cm x 2 cm cavity deep 12 cm below left nipple. 6. Incised wound 3 cm x 2 cm dividing left speermatic card at the root of the penis. 7. Incised wound 1 cm x 0.5 cm x 1 cm, 5 cm above the left outer part. 8. Incised wound 3 cm x 0.5 cm x 1 cm, 4 cm below left wrist joint, palmer aspect, obliquely placed. 9. Incised wound 3 cm x 1 cm x 4 cm back of neck at its lower part. 10. Incised wound 2 cm x 1 cm x cavity deep 40 cm below injury no. 9 middle of trunk that to the right of mid line. 11. Incised wound 2 cm x 1 cm x cavity deep, 7 cm above and left injury no. 10. 5. ON internal examination the doctor found that the lower lobe of the right lung was puncutured, that the liver was punctured through and through, that the spleen was punctured and that the transverse colon was punctured on the left side. 11. Incised wound 2 cm x 1 cm x cavity deep, 7 cm above and left injury no. 10. 5. ON internal examination the doctor found that the lower lobe of the right lung was puncutured, that the liver was punctured through and through, that the spleen was punctured and that the transverse colon was punctured on the left side. According to the doctor Rajendra deceased had died due to haemorrhage and shock as a result of the above mentioned injuries. 6. AFTER sending the two bodies for post mortem examination the Investigating Officer took into his possession blood-stained and ordinary earth from the two places where the bodies of the deceased were found lying. The Investigating Officer also took into custody the rope with which Rajendra, deceased, was said to have been tied to his cot at the time of the assault on him, and prepared a recovery memo about the same. The Investigating Officer found the Dhibri in the working order and gave it in the 'supurdgi' of Smt. Samdeiya after preparing a recovery memo about the same. He also saw torches of the witnesses Nankhak, Sheobaran, Sahdeo and Chandip and gave them in the custody of the respective owners after preparing memoranda about them. He prepared the site plan and recorded statements of the other witnesses and after completing the investigation submitted the charge sheet. 7. THE five appellants as well as Bhikhari pleaded not guilty and alleged that they had been falsely implicated. Juthan, appellant, alleged that he had been falsely implicated because he had appeared as a witness against the deceased in the mutation case. 8. IN support of its case the prosecution relied upon the evidence of two eye witnesses namely, Smt. Simdeiya (PW 1) and Smt. Kalawati (PW 2) the widows of the two deceased. The other witnesses who were alleged to have arrived flashing torches were not examined. An application was given that they were not willing to give evidence because of the fear of the accused persons. The other witnesses produced in the case were Dr. P.C. Tiwari (PW 4) who performed the post mortem examination, the Investigating Officer Surya Bali Singh (PW 12) and other policemen who gave evidence of a formal nature. 9. THE appellants did not produce any witness in defence. 10. The other witnesses produced in the case were Dr. P.C. Tiwari (PW 4) who performed the post mortem examination, the Investigating Officer Surya Bali Singh (PW 12) and other policemen who gave evidence of a formal nature. 9. THE appellants did not produce any witness in defence. 10. THE learned Sessions Judge gave the benefit of doubt to Bhikhari on the ground that he was alleged to have assaulted the two deceased with a lathi but no lathi injury was found on the person of any of the deceased. THE learned Sessions Judge however, believed the prosecution version as against the five appellants and convicted and sentenced them as mentioned above. This occurrence is said to have taken place at about 1 O'clock in the night and the first information report was lodged at the police station which was three miles away at 5.30 a. m. the next morning. Considering that the informant, Smt. Samdeiya, had lost her husband and her son in the occurrence the report was obviously lodged quite promptly. 11. THE evidence also shows that the appellants had motive. Smt. Samdeiya stated that then Musafir, father of Ramayan did not return after attending the hearing of the case between him and Hari Ram deceased, Ramayan appellant lodged a report of murder naming the two deceased as accused and then these two deceased were arrested in that case but they were later on bailed out. She has also stated that the other appellants belonged to the group of Ramayan appellant Nothing has been elicited in her cross examination which would throw any doubt upon her evidence on either of these two points. From her statement it is clear that the appellants had motive. 12. COMING now to the evidence regarding the occurrence itself, Smt. Samdeiya and Smt. Kalawati (PW 1 and 2) have stated that this occurrence took place about mid night inside the house of the two deceased and that while Hari Ram deceased was attacked in the courtyard Rajendra, deceased was attacked inside the room. The evidence of the eye witnesses with regard to the place of occurrence is corroborated by the testimony of the Investigating Officer who found blood in the courtyard of the house and inside the room where the two deceased were said to have been killed. The evidence of the eye witnesses with regard to the place of occurrence is corroborated by the testimony of the Investigating Officer who found blood in the courtyard of the house and inside the room where the two deceased were said to have been killed. If this occurrence took place inside the house then obviously there can be no doubt the presence of these two witnesses on the scene. No doubt it was suggested to Smt. Kalawati in cross examination that at the time of this occurrence she had gone to her Maika and was not present in the house. But she denied this suggestion and there is not an iota of evidence to support it. And it was not even suggested to Smt. Samdeiya that she was not present inside the house at the time of the occurrence. We, therefore, see no reason to doubt the evidence of these witnesses that they were present at the time when their husbands were killed. If they were present inside their house it is only natural that they would have seen the assailants provided of course there was light to enable them to see the assailants. On the point of light their witnesses have stated that a Dhibri was burning inside the room in which Rajendra, deceased, was assaulted and they stated that outside the room there was the light of the moon. The evidence of these witnesses with regard to moon light however, does not appear to be correct. The occurrence took place according to the first information report at 1 O'clock in the night. But the moon chart shows that on 20-5-1980 moon set at 11.59 p. m. It is, therefore, obvious that there could be no light of moon at 1 O'clock in the night when according to the FIR this occurrence took place. The learned Sessions Judge has observed that even though according to the Panchang moon set at about 12 mid night there would have been "some glow of moon light shortly after moon set." We are afraid this is going a bit too far. Moon light is not so strong and it does not leave a glow behind at any rate not one: hour after the moon has set. We are, therefore, unable to agree with the learned Sessions Judge that there was light of moon to enable the witnesses to see and recognize the assailants. Moon light is not so strong and it does not leave a glow behind at any rate not one: hour after the moon has set. We are, therefore, unable to agree with the learned Sessions Judge that there was light of moon to enable the witnesses to see and recognize the assailants. 13. THE evidence of the eye witnesses is that a Dhibri was burning inside his room where Rajendra was assaulted and they have given a good reason for keeping the Dhibri alight an that night. It is said that on that night Smt. Kalawati was unwell and so the Dhibri was kept burning. If a Dhibri was burning inside the room then of course there must have been sufficient light inside the room to enable the witnesses to recognize those assailants who had entered the room in which Rajendra was murdered. Smt. Samdeiya and Smt. Kalawati have stated that only three appellants namely, Marachhu, Kavindra and Ramayan had entered that room. We, therefore, see no reason to doubt the participation of these three appellants. 14. THE next question is whether there was any light in which the other accused persons who are not even alleged to have entered that room could be recognized. At the stage of investigation it was attempted to show that the Dhibri was burning at point 'D' in front of the door of the room with the result that its light would also go out in the courtyard, to the place where Hari Ram, deceased, was attacked. But the cross- examination of the informant Smt. Samdeiya shows that this Dhibri was kept on a shelf on the innerside of the eastern end of the northern wall of the room and that that shelf was 1 cubic deep. If that was so, we do not think its light could have gone out upto the Angan and persons standing in the Angan could have been recognized in the light of the Dhibri. Therefore, since Juthan and Roopa, appellants are not alleged to have gone inside the room we are of the opinion that the evidence of these witnesses that they saw and recognized these two appellants cannot be said to be free from doubt. Therefore, since Juthan and Roopa, appellants are not alleged to have gone inside the room we are of the opinion that the evidence of these witnesses that they saw and recognized these two appellants cannot be said to be free from doubt. In this connection it is also noteworthy that Juthan had appeared as a witness for Ramayan appellant in the mutation case and so the eye witnesses had reason to be against him and to rope him in. In the circumstances we are of the opinion that Juthan and Roopa, appellants deserve the benefit of doubt. Accordingly, the appeal is allowed in part. The convictions and sentences of Juthan and Roopa, appellants are set aside. They are in jail. They will be released forthwith unless wanted in any other case 22. The appeals of Marachhu, Ravindra and Ramayan appellants are dismissed. Their conviction and sentences recorded by the learned Sessions Judge are affirmed. They are already in jail. They will serve out the sentence awarded to them by the learned Sessions Judge Appeal partly allowed.