JUDGMENT P.N. Harkauli, J. - Both these appeals are directed against the judgment and order passed by the learned Sessions Judge Etah whereby he convicted the Appellants in these two appeals u/s 302/34 IPC and sentenced each of them to imprisonment for life. 2. The prosecution case is as follows: Siya Ram and Munshi, Appellants, are brothers. Ram Swaroop, Appellant, is their uncle. All three of them reside in Ganjdundwara town in Etah district. The fourth Appellant Ram Bharosey is the cousin of Siya Ram and Munshi. He lives in Nagla Nuner, hamlet of village Karanpur which is at a distance of one and a half or two miles from Ganjdundwara. About two years prior to this occurrence Km. Kalawati the sister of Siya Ram and Munshi, Appellants, was abducted by Ram Sewak (PW 2) who is the son of one of the deceased of this case Bhagwan Das. In retaliation the brother of Munshi and Siya Ram, Appellants, abducted Km. Maya the daughter of Bhagwan Das, deceased. A Panchayat was called about these matters and then Km. Kalawati and Km. Maya were restored to their respective relations. 3. Later on there were cross cases under Sections 107/117 Code of Criminal Procedure between Ram Autar (PW 1) and Ram Sewak (PW 2), who are own brothers, and certain other persons on the one side and Siya Ram Appellant, his brother Balbir and some other persons on the other. 4. Then, about a year prior to this occurrence Balbir, brother of Siya Ram and Munshi, Appellants, was murdered. Ram Sewak (PW 2) and one Kunwar Pal were prosecuted for that murder. But they were acquitted in that case. This happened only six months prior to this occurrence. 5. On account of these facts the Appellants bore serious enmity against Bhagwan Das and his sons. Indeed Siya Ram and Munshi, Appellants used to go about openly declaring that they would avenge the murder of Balbir. 6. On account of this open threat held out by Munshi and Siya Ram, Appellants, the deceased and his sons used to remain on guard. In order that they may not all be taken unawares, they took care not to sleep at one place at night. They used to sleep at different places. 7. On the night of 9/10-6-1976 Bhagwan Das, deceased, was sleeping on the chabutra in front of his house. In order that they may not all be taken unawares, they took care not to sleep at one place at night. They used to sleep at different places. 7. On the night of 9/10-6-1976 Bhagwan Das, deceased, was sleeping on the chabutra in front of his house. His wife Smt. Kalawati and his 25 year old son Om Prakash and two minor children were sleeping inside the house in the court yard and the two other sons of Bhagwan Das namely, Ram Autar, informant (PW 1) and Ram Sewak (PW 2) were sleeping on the roof of the house of one Shanti Pandit which adjoined the court-yard towards the north. Munshi Lai, who was the Nana of Ram Autar and Ram Sewak, was also sleeping on the same roof. There was the light of the moon on that night. There was also the light of the street light which was burning at some distance from the house of the deceased towards the east. At about 2.30 a. m. Siya Ram, Munshi, Ram Swaroop and Ram Bharosey, Appellants came to the house of Bhagwan Das and murdered him in front of his house, where he was sleeping. Thereafter they effected entry inside the house and murdered Om Prakash in the court-yard. After murdering Om Prakash they started assaulting Smt. Kalawati On being assaulted Smt. Kalawati shouted to the Appellants "MUJHE KYON MARTEHO", and cried for help. Hearing her shrieks Ram Autar (PW 1) Ram Sewak (PW 2) and Munshi Lal (PW 3) woke up and peeped into their Angan from the roof of Shanti Pandit where they were sleeping. They saw that Ram Bharosey, Appellant, who was armed with a spear, and the other three Appellants, who were armed with Gadasas, were assaulting Smt. Kalawati. They raised an alarm upon which Asha Ram (PW 4), whose house is situate in front of the house of Bhagwan Das, and some other persons ran up. In the meantime the four Appellants ran away. Asha Ram (PW 4) however, saw and recognized Munshi, Ram Swaroop and Siya Ram while they were running away. 8. They raised an alarm upon which Asha Ram (PW 4), whose house is situate in front of the house of Bhagwan Das, and some other persons ran up. In the meantime the four Appellants ran away. Asha Ram (PW 4) however, saw and recognized Munshi, Ram Swaroop and Siya Ram while they were running away. 8. After the departure of the miscreants Ram Autar (PW 1) went to police station Ganjdundwara which was at a distance of five furlongs from his house and lodged a report there at 3.05 a.m. This first information report was lodged in the presence of the Investigating Officer Ram Niwas Sharma (PW 6). He reached the spot, prepared the inquest reports of the there dead-bodies and sent them for postmortem examination. The post-mortem examination was performed on the body of Bhagwan Das by Dr. Radhey Shyam Gupta (PW 7) at 8 a.m. on 11-6-1976. The doctor found the following injuries on the body: 1. Incised wound 12 cm x 3 cm x bone deep on right tample and cheek 1 cm front of right ear mandible cut. 2. Incised wound 2.5 cm x 2 cm x 2 cm on right upper neck 3 cm below right ear lobule. 3. Incised wound 5 cm x 3 cm x 3 cm on right outer neck 2 cm below injury No. 2. 4. Incised wound 1 cm x 1 cm on front and mid line of neck. 5 cm above membrane. 5. Stab wound 0.5 cm x 0.5 cm x 1 cm on front of right shoulder. 6. Stab wound 2 cm x 2 cm x chest cavity deep on left side chest, 5 cm from nipple at 10 O'clock position. 7. Stab wound 1 cm x 1.5 cm x abdominal cavity deep on right upper abdomen 8 cm from the umbilicus. 8. Stab wound 1 cm x 1 cm x abdominal cavity deep on right side abdomen 3 cm below injury No. 7. 9. Stab wound 1 cm x 1 cm on right lower back 3 cm away from mid line and 5 cm above hip bone. 9. 8. Stab wound 1 cm x 1 cm x abdominal cavity deep on right side abdomen 3 cm below injury No. 7. 9. Stab wound 1 cm x 1 cm on right lower back 3 cm away from mid line and 5 cm above hip bone. 9. The doctor also found that the mendible on the right side was cut into two, the fifth rib on the left side was fractured, the pleura on the left side was lacerated, the upper lobe of the left lung was lacerated, the pericardium was punctured under injury No. 7 and the right side auricle of the heart was punctured through and through. According to the doctor Bhagwan Das had died as a result of syncope due to injuries mentioned above. 10. Dr. R. P. Yadava (PW 7) performed the post-mortem examination on the bodies of Om Prakash and Smt. Kalawati. He found the following injuries on their person: Injuries of Om Prakash 1. Incised wound 16 cm x 2 to 6 cm x muscles to bone deep over left side of neck upper part and below mastoid region of head. The wound is from left side of thyroid region to back of neck upto middle cutting. All the underlying structures including cartoid artries and veins and thyroid cartilage left side and upper part of trachea. The injury was caused by two blows. Margins clean cut and underlying tissues cut. Direction from mastoid region of head to downwards and backwards. Underlying mastoid bone partially cut. 2. Incised wound 14 cm x 1 to 3 cm x bone deep over left side of face and head in front of ear. Wound from a little above the ear to the angle of mouth left side. Wound vertical and margine clean cut. Due to a single blow. Direction straight wards (inwards) underlying bones partially cut. 11. All the tissues on the left side of the neck were cut upto bone and the trachea was cut under injury No. 1. Omprakash, according to the doctor, died due to shock and haemorrhage as a result of the aforesaid injuries. Injuries of Smt. Kalawati 1. Stab wound 1-1/2 cm x 3/4 cm x chest cavity deep over front of left side of chest by the side of chest bone at 10 O'clock position from left nipple at a distance of 11 cms. from it. Wound shaped. Margins cut. 2. Injuries of Smt. Kalawati 1. Stab wound 1-1/2 cm x 3/4 cm x chest cavity deep over front of left side of chest by the side of chest bone at 10 O'clock position from left nipple at a distance of 11 cms. from it. Wound shaped. Margins cut. 2. Incised wound 6 cm x 2-1/2 cm x bone deep over back and radial side of right wrist cutting partially the underlying radius bones. The wound was oblique. 3. Incised wound 2-1/2 cm x 1/2 cm x muscle deep over the left plam ulner side below by pothenar eminence. Margins were clean cut. 4. Abrasion 2 cm x 1/2 cm over left wrist back. 5. Stab wound 1-1/2 cm x 3/4 cm x bone deep over outer side of left arm below deltiod region. Margins were clean cut. 12. On internal examination the doctor found that the weapon had pierced to skin inter costal space and punctured the pericardium and the heart. According to the doctor Smt. Kalawati also died due to shock and haemorrhage resulting from the above injuries. 13. After the necessary investigation the police submitted a charge-sheet against all the four Appellants. 14. All of them pleaded not guilty and alleged that they had been falsely implicated on account of enmity. They alleged that the prosecution witnesses bore enmity against them because Siya Ram and Munshi, Appellants, had appeared as witnesses against Ram Sewak in the case relating to the murder of Balbir. 15. In support of its case the prosecution relied upon the evidence of three eye-witnesses namely, Ram Autar (PW 1), Ram Sewak (PW 2) who are own brothers and sons of Bhagwan Das and Smt Kalawati deceased, and Munshi Lal (PW 3) the Nana of Ram Autar and Ram Sewak. All these witnesses stated that on that night they were sleeping on the roof of the house of Shanti Pandit adjoining the court-yard towards the north and they woke up on hearing the cries of Smt. Kalawati and then they saw the Appellants assaulting the deceased Smt. Kalawati. According to them Ram Bharosey, Appellant, was armed with a spear while the other three Appellants were armed with Gandasas. Asha Ram (PW 4) stated that he ran up on hearing the cries of the eye-witnesses and then they saw Munshi, Siya Ram and Ram Swaroop running away. According to them Ram Bharosey, Appellant, was armed with a spear while the other three Appellants were armed with Gandasas. Asha Ram (PW 4) stated that he ran up on hearing the cries of the eye-witnesses and then they saw Munshi, Siya Ram and Ram Swaroop running away. He said that he did not see Ram Bharosey Appellant at that time. He also stated that when he went to the spot after the departure of the Appellants he found the dead-body of Bhagwan Das lying on a cot outside the house and dead-bodies of Smt. Kalawati and Omprakash lying inside the house in the court-yard. 16. The remaining prosecution witnesses are the two doctors who performed the post-mortem examination, the Investigating Officer Ram Niwas Sharma (PW 6) Head Constable Tara Singh who recorded the FIR and constable Ram Lal who took the body for post-mortem examination. 17. The Appellants did not produce any witness in defence. 18. On a consideration of the evidence the learned Sessions Judge believed the prosecution version and convicted and sentenced the Appellants as mentioned above. 19. We have heard learned Counsel for the parties and have gone through the evidence and we are of the opinion that the prosecution version is substantially correct. The only point upon which we entertain some doubt is the participation of Ram Bharosey, Appellant, who has not been named by one of the eye-witnesses produced by the prosecution Asha Ram (PW 4). 20. As already mentioned this occurrence is said to have taken place at about 2.30 a. m. and the FIR was lodged at 3.05 a. m. at the police station which was at a distance of five furlongs. The FIR thus was lodged very promptly. 21. The evidence of Ram Autar (PW 1) also shows clearly that the Appellants had strong motive. Ram Autar has stated that some time prior to this occurrence one of his brothers had abducted Km. Kamla a girl belonging to the family of the Appellants Siya Ram, Munshi and Ram Swaroop and that Ram Sewak (PW 2) brother of Munshi and Siya Ram, Appellants, had abducted Km. Mala sister of Ram Autar (PW 1). His evidence also shows that there was a case u/s 107/117 Code of Criminal Procedure between some members belonging to his family and to the family of the Appellants. Mala sister of Ram Autar (PW 1). His evidence also shows that there was a case u/s 107/117 Code of Criminal Procedure between some members belonging to his family and to the family of the Appellants. Finally Ram Autar stated that Ram Sewak (PW 2) was prosecuted for the murder of Balbir the real brother of Siya Ram and Munshi, Appellants but he was acquitted. Nothing has been elicited in his cross-examination which could show that his evidence on the first two points is incorrect. And the third allegation is not disputed. There is, therefore, no reason to doubt the evidence of Ram Autar on any of these points. Ram Autar has also stated that after the acquittal of Ram Sewak in the murder case Siya Ram and Munshi Appellants went about openly declaring that they would avenge the murder of their brother. If these two Appellants believed that Ram Sewak was one of the murderers of their brother then it is not at all improbable that they might have resented his acquittal and might have decided to take revenge and to go about saying this. The statement of Ram Autar on this point appears to us to be quite probable and reliable. If Ram Autar's evidence on these points is correct it is obvious that there must be very deep-seated enmity between the members of the two families. It is, therefore, not open to any doubt that Munshi and Siya Ram, Appellants, who are own brothers and Ram Swaroop, Appellant, who is their uncle, had strong motive to commit these murders. 22. Coming now to the direct evidence adduced by the prosecution Ram Autar (PW 1), Ram Sewak (PW 2) and Munshi Lal (PW 3) have stated that on that night they were sleeping on the roof of the house of Shanti Pandit, that they woke up on hearing the cries of Smt. Kalawati and then looked down into their Angan and saw the Appellants assaulting her. Their evidence in regard to three of the Appellants, namely, Siya Ram, Munshi and Ram Swaroop is corroborated by Asha Ram (PW 4), who has stated that his house is situate in front of the deceased's house, that on hearing the noise he ran up and then saw these three Appellants running away and at that time they were carrying Pharsas. He said that he did not see Ram Bharosey Appellant there. He said that he did not see Ram Bharosey Appellant there. He also said that when the assailants ran away he went to the house and found Bhagwan Das lying murdered on his cot outside the house and Omprakash and Smt. Kalawati lying murdered in the Angan. 23. We have gone through the evidence of these witnesses and we find no inconsistency in their statements, nor any improbability in their version. 24. The learned Counsel for the Appellants challenged the evidence of these witnesses on the ground that they were all closely inter-related and thus partisan witnesses. It is true that Ram Autar (PW 1) and Ram Sewak (PW 2) are real brothers and Munshi Lal (PW 3) is their Nana (maternal grand uncle) and Asha Ram (PW 4) is their Mama (maternal uncle). That does make it necessary to scrutinise the evidence of these witnesses with caution but that cannot be a sufficient reason for discarding their evidence. We have carefully considered the evidence of these witnesses. But for the fact that the statement of Asha Ram (PW 4) introduces an element of doubt with regard to the participation of Ram Bharosey, Appellant, we find no infirmity in their evidence. 25. Ram Autar (PW 1) and Ram Sewak say that because of the open threat held out by two of the Appellants members of their family took care not to sleep at one place so that they may not all be caught unawares and helpless. This is perfectly natural. It is also natural in view of the open threat held out, that while avoiding sleeping together they would have taken care not to sleep too far away from each other so that in case some member was attacked the others may be able to hear calls for help and come to the rescue. In such circumstances the version of Ram Autar and Ram Sewak that they were sleeping on the roof of an adjoining house appears to be quite natural and probable. And since Munshi Lal used to go to work early in the morning at the kiln along with one of them, he could well be sleeping at the same place. 26. A perusal of the injuries of Smt. Kalawati shows that apart from the stab wound in the chest, which caused death, she had received three incised injuries over the right and left wrists and left arm. 26. A perusal of the injuries of Smt. Kalawati shows that apart from the stab wound in the chest, which caused death, she had received three incised injuries over the right and left wrists and left arm. This indicates that she had tried to put up some resistance with her hands before she was stabbed in the chest. It is, therefore, natural that she must have shouted out as deposed by Ram Autar, Ram Sewak and Munshi Lal. These witnesses would naturally have heard her cries and run up to see what the matter was. 27. The roof on which they were sleeping was about 10 ft. high, and their evidence shows that there was the light of the moon and some diffused light of a street lamp. They could not need much light to see and recognize such well known persons. 28. Considering that there were a large number of stab and incised injuries on the bodies of the three deceased the number of assailants could well be three or four as deposed by these witnesses. 29. In short, the evidence of these witnesses appears to stand closest scrutiny from all angles. We are, therefore, of the view that their version is substantially correct. 30. The only point upon which we entertain some doubt is whether Ram Bharosey, Appellant, also took part in the occurrence. As already mentioned Asha Ram (PW4) has stated that his house is situate in front of the deceased's house, on hearing the noise he rushed to the deceased's house, and he saw Siya Ram, Munshi and Ram Swaroop, Appellants, running away, but he did not see Ram bharosey, Appellant, there. Asha Ram (PW4) is admittedly the maternal uncle of Ram Autar (PW1) and Ram Sewak (PW2). Such a close relation of the deceased, is not likely to let go the real culprit. There is nothing in the evidence which could show that he had any reason to act in such an unnatural manner. So it appears to us that when he says that he did not see Ram Bharosey, among the miscreants whom he saw running away, we think the participation of this Appellant does become open to doubt. There is nothing in the evidence which could show that he had any reason to act in such an unnatural manner. So it appears to us that when he says that he did not see Ram Bharosey, among the miscreants whom he saw running away, we think the participation of this Appellant does become open to doubt. In this connection we may also refer to the statement of the Investigating Officer Ram Niwas Sharma (PW 6) to the effect that after sending the bodies for post-mortem examination and inspecting the spot and taking other steps in this case, he went to village Nagla Nunehar and found Ram Bharosey, Appellant, at his house and took him in his custody. It appears to us that if Ram Bharosey was really among the assailants it is unlikely that he would have stayed at his house so soon after the murder. This circumstance also appears to us to go in favour of Ram Bharosey, Appellant. Taking both these circumstances into consideration we are of the opinion that the case against Ram Bharosey, Appellant, admits of some doubt and he should be given the benefit of that doubt. 31. The learned Counsel for Siya Ram, Munshi and Ram Swaroop Appellants, Sri S.A. Shah attempted to challenge the presence of Ram Autar, Ram Sewak and Munshi on the roof of the house of Shanti Pandit. But as already shown in the circumstances deposed by Ram Autar it is not all unnatural that he and his brother Ram Sewak as also Munshi Lal, may have been sleeping on the adjoining roof. It will be also seen that there is no suggestion in cross-examination of these witnesses that they were not present in the village that night. Indeed their presence that night cannot be doubted when Ram Autar lodged a report half an hour or so after the occurrence and the Investigating Officer recorded the statement of the witnesses the same day. And if they were present in the village it is but natural that, though they did not sleep near other members of the family they slept near enough to enable them to respond to a call in case of emergency. 32. Sri S.A. Shah then argued that there could be no light in which these witnesses could have seen and recognized the assailants. 32. Sri S.A. Shah then argued that there could be no light in which these witnesses could have seen and recognized the assailants. He pointed out that according to the first information report this occurrence had taken place at 2.30 a.m. but the moon had set at 2.28 a. m. on that night and argued that the evidence of the witnesses about moon light was wrong. He further pointed out that the street light, according to the prosecution's own witnesses, was at a considerable distance to the east of the spot, beyond the grave yeard, and argued that the light of the street light could not have come to the house where this occurrence took place. No doubt the moon chart shows that moon set in Allahabad at 2.28 a.m. that night. But obviously, the time of the occurrence is given in the FIR, by estimate and it may well be that the occurrence had taken place 10 or 15 minutes earlier. And if the occurrence had taken place 10 or 15 minutes earlier then the moon could not have set at the time of the occurrence. Since it was 13th or Nth day of the bright half we think even the light of the setting moon would have been sufficient to enable the witnesses to see and recognize the Appellants who were so well known to them. In the above circumstances we are of the opinion that the evidence of the eye-witnesses that they saw the miscreants in the light of the moon is not wrong. As for the street light, it has not been shown in the site plan and the evidence shows that it was on the other side of the grave-yard. But the light of the street light even from this distance would have come at least to some extent upto the house of the deceased. In any case, we think the light of the setting moon would have been sufficient to enable the witnesses to recognize the Appellants. 33. For the foregoing reasons we hold that the prosecution evidence fully establishes that Munshi, Siya Ram and Ram Swarup, Appellants, jointly assaulted and killed Smt. Kalawati and that the participation of Ram Bharosey, Appellant, in this occurrence is not established beyond reasonable doubt. 33. For the foregoing reasons we hold that the prosecution evidence fully establishes that Munshi, Siya Ram and Ram Swarup, Appellants, jointly assaulted and killed Smt. Kalawati and that the participation of Ram Bharosey, Appellant, in this occurrence is not established beyond reasonable doubt. In view of these findings, the convictions and sentences of Munshi, Siya Ram and Ram Swarup, Appellants, u/s 302/34 IPC in respect of the murder of Smt. Kalawati must be affirmed, while that of Ram Bharosey, Appellant, should be set aside. 34. Sri S.A. Shah argued that in case we were inclined to doubt the participation of Ram Bharosey, Appellant, it would not be open to us to affirm the conviction of the other three Appellants. He pointed out that the, prosecution case throughout was that Ram Bharosey, Appellant, alone was armed with a spear while the other three Appellants were armed with Gandasas, and the medical evidence shows that Smt. Kalawati had died as a result of the stab wound in the chest, which could only be caused with a spear and not with a Gandasa. Sri Shah contended that in taking the above view we would be giving conflicting findings inasmuch as we would be discarding the prosecution version that Ram Bharosey, Appellant, also joined in the assault, and at the same time convict the other three Appellants in respect of the injury which, according to the prosecution case throughout, was caused by Ram Bharosey. In support of this contention he placed reliance on the decision of this Court in Harchanda and Another Vs. Rex, AIR 1950 All 355 , Krishna Govind Patil v. State of Maharashtra AIR 1963 SC 1412 and Maina Singh v. State of Rajashtan AIR 1976 SC 1048 .We are unable to agree with this contention. A similar argument was raised before the Supreme Court in Harshadsingh Pahelvansingh Thakore Vs. The State of Gujarat, AIR 1977 SC 710 and the Court repelled it observing as follows: Counsel also argued that since three out of the four accused have secured acquittal the invocation of Section 34 is impermissible. The flaw in this submission is obvious. The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attack. The flaw in this submission is obvious. The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attack. The proposition is plain that even if some out of the several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants. Therefore, it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision. 35. Moreover, as we have mentioned earlier that the three eye-witnesses came on the scene after the assault on Smt. Kalawati had started. She received in all four injuries (the abrasion on the wrist may well have been the result of a fall). That means the witnesses could not see the assailants for very long. We have also shown that the moon set shortly after the assault. The light of the setting moon at the time of the occurrence could not be very bright. And in this occurrence three persons had been killed. In the circumstances it is quite possible that the witnesses could not exactly mark the weapons carried by each assailant and there may be some confusion in their minds on this point and the spear may have been wielded by one of these three Appellants. In this view of the matter also, there can be no question of giving conflicting findings and Har Chand's case (supra) can have no application here. 36. Sri S.A. Shah very vehemently argued that it was not open to us to record this finding as it would amount to basing the conviction of three Appellants neither on the prosecution version nor on the defence version, but on a third case. We are unable to agree with this contention also. In circumstances like those of the present one, only three courses are open to us. We can discard the statement of Asha Ram, and, believing the three eye-witnesses of the assault on Smt. Kalawati, convict all the four. We are unable to agree with this contention also. In circumstances like those of the present one, only three courses are open to us. We can discard the statement of Asha Ram, and, believing the three eye-witnesses of the assault on Smt. Kalawati, convict all the four. Or we can hold, on the basis of the testimony of Asha Ram that those eye-witnesses are falsely roping in at least one of the Appellants and so they cannot be relied upon as against the other Appellants. Or we can hold on the basis of probabilities and circumstances that there has been some mistake in observation or confusion in the minds of the witnesses regarding the weapons carried by the different Appellants. The first course would be clearly wrong for it would amount to turning a blind eye to an admission, favourable to the accused, made by a prosecution witness who cannot be suspected of any partiality to that accused. It would be equally wrong to totally discard the evidence of the three eye-witnesses, whose testimony against three of the accused has stood the closest scrutiny, merely because the statement of Asha Ram, who corroborates their version against these three Appellants, casts some doubt on the participation of the four accused. In our view, in the circumstances of this case the third is the only course open to this Court and it represents the correct approach, and this Court is not barred from taking this view. Indeed the rulings of the Supreme Court upon which Sri Shah himself relied appear to us to support this view. In Krishna Govind Patil's case (supra) the Supreme Court observed as follows: It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the court, on the basis of the said evidence, may come to the conclusion that others named or unnamed, acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence. 37. But such a conclusion is really based on evidence. 37. In Maina Singh's case these observations were quoted with approval and it was observed as follows: It would thus appear that even if in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed besides those mentioned in the charge or the evidence of the prosecution witnesses acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise. 38. To the same effect is the decision of the Supreme Court in Bharwad Mepa Dana and Another Vs. The State of Bombay, AIR 1960 SC 289 in which it was observed as follows: The learned Counsel has then submitted that the finding of the High Court makes out a case of a new unlawful assembly which is different from that suggested by the prosecution case. We do not think that that view is correct either. The assembly is the same assembly but what has happened is that the identity of all the members of the unlawful assembly has not been clearly established... We do not think that it is unusual for witnesses to make mistakes of identity when a large number of persons are concerned in committing a crime; in any event it is a question of fact to be decided in each case and is not a question of law. 39. In this connection reference may also be made to the following observations of the Supreme Court in Ramu Gope and Others Vs. State of Bihar, AIR 1969 SC 689 : Where a member of an unlawful assembly is named as an offender who committed an offence for which the members of the unlawful assembly are liable u/s 149, IPC, and the evidence at the trial is insufficient to establish that the named person committed the act attributed to him, he may still be convicted of the offence if it is proved that he was a member of the unlawful assembly and that the act was done by some member of the assembly in prosecution of the common object or which the members knew was likely to be committed in prosecution of that object. Failure to prove the presence of the named offender among the members of the unlawful assembly will not affect the criminality of those who are proved to be members of the assembly if the other conditions of the applicability of Section 149 IPC be established. If the Court refuses to accept the testimony of witnesses who speak to the presence of and part played by a named offender, the weight to be attached to the testimony of those witnesses in so far as they involve others may undoubtedly be affected, but it cannot be said that because the testimony of witnesses who depose to the assault by the named offender is not accepted, other members proved to be members of the unlawful assembly escape liability arising from the commission of the offence in the prosecution of the common object of the assembly. 40. All these observations of the Supreme Court make it abundantly clear that if there is evidence and such evidence may either direct or circumstantial, then it is open to the Court even to record a finding that the charged accused acted conjointly with a person or persons other than those mentioned in the charge or in the evidence of the prosecution witnesses. This appears to be the settled law on the point. If it is open to the Court to hold on the basis of circumstantial evidence, that persons other than those mentioned in the charge or the evidence of the prosecution witnesses, also took part it must be equally, if not more, open to the Court to record a finding that the witnesses could not clearly mark the weapons carried by one of the assailants that one of them carried a weapon different from that deposed to by the witnesses. Surely, mistake of observation in the identity of an accused is a much more important than a mistake about the weapon. 41. Accordingly, we hold that it is proved that these three Appellants in furtherance of their common intention committed the murder of Smt. Kalawati. 42. We are further of the opinion that circumstances of this case are quite sufficient for drawing the inference that these three Appellants had also committed the murder of Bhagwan Das and Omprkash. 41. Accordingly, we hold that it is proved that these three Appellants in furtherance of their common intention committed the murder of Smt. Kalawati. 42. We are further of the opinion that circumstances of this case are quite sufficient for drawing the inference that these three Appellants had also committed the murder of Bhagwan Das and Omprkash. We have already pointed out that the Appellants bore strong enmity with Bhagwan Das and members of his family and had been openly declaring that they would avenge the death of their brother Balbir, that Bahgwan Das and his wife and son were murdered on the same night--one outside the house and the other two inside the house, that these Appellants were seen assaulting the third deceased Smt. Kalawati inside the house, that they were seen running away from that house together after killing Smt. Kalawati, that they have not given any explanation as to why they happened to be inside the house of the deceased at the dead of night armed with deadly weapons. These circumstances in our opinion are quite sufficient for drawing the inference that these Appellants had committed the murder of the other two deceased also. 43. For these reasons, we hold that the learned Sessions Judge was right in convicting the three Appellants u/s 302/34 IPC and their appeal must fail. 44. Accordingly, Crl. Appeal No. 2001 of 1977 is allowed and the conviction and sentence of Ram Bharosey are set aside and he is acquitted. He is on bail. He need not surrender. 45. The appeal of Munshi, Ram Swaroop and Siya Ram is dismissed. They are already in jail. They will serve out their sentences.