JUDGMENT Mr. G. Malaviya, J. - The present appeal arises out of the judgment dated 27? 1979 passed by 6th Additional District and Sessions Judge, Moradabad in Sessions Trial No. 583 of 1978 (State v. Ved Ram and four others), Sessions Trial No. 617 of 1978 (State v. Sukhraj Singh) whereby the learned Sessions Judge convicted the appellants under Sections 449-I.P.C. 307/149, 148 and 302/149 I.P.C. and sentenced them to three years rigorous imprisonment under Section 449 I.P.C. to three years rigorous imprisonment under Section 307/149 I.P.C., to one year rigorous imprisonment under Section 148 I.P.C., and life imprisonment under Section 302/149 I.P.C. Co-accused Ved Ram was murdered during the pendency of the trial and co-accused Hari Singh was acquitted by the learned Sessions Judge. 2. The above pedigrees show that Hari Singh had a son Ved Ram accused from his wife Smt. Hardei. Ved Ram's sons are Karan and Harbansh, appellants. Harbansh had two brothers-in-law Sukhraj and Dharamvir, appellants. Smt. Hardei is said to have contacted a second marriage with Dhannoo Singh of village Alampur Police Station Hayatnagar. Appellant Shibbu is the son of Dhannu Singh from his first wife and accused Hari Singh is the brother-in-law of appellant Shibbu. Deceased Gajram was the son of Dha nnu Singh from his second wife Smt. Hardei, the former wife of Hari Singh, father of accused Ved Ram. Bhoori was the wife of Gajram and Nemwati was the daughter of Garam and Devendra son of Ghhuttan Singh is the son of Gajram's brother-in-law. In this crime Gajram and his wife Smt. Bhoori and his daughter Nemwati were murdered and Gajram's brother-in-law's son Devendra received injuries. 3. It would also be relevant to mention here that according to site-plan as well as the evidence led before the Trial Court Ved Ram accused and Gajram, deceased, lived in the same house in two different Kothries. They had a common Court-yard. 4. On 10.8.1978 at 11.45 a.m., P.W.1 Ram Charan Singh lodged First Information Report of this incident that on the same day at about 8 a.m. in village Inspur Sani,10 miles from the Police Station, he heard alarm being raised from the house of Gajram. They had a common Court-yard. 4. On 10.8.1978 at 11.45 a.m., P.W.1 Ram Charan Singh lodged First Information Report of this incident that on the same day at about 8 a.m. in village Inspur Sani,10 miles from the Police Station, he heard alarm being raised from the house of Gajram. He alongwith P.W.2 Behan Singh and P.W.3 Midhai and one Chhuttan (not examined) entered the house of Gajram and saw that while Ved Ram accused was instigating other co-accused, Ved Ram's sons, appellants, Karan Singh and Harbansh armed with tabals and appellants Sukhraj Singh and Dhanvir armed with Gandasas and appellants Shibbu and his brother-in-law armed with knives were assaulting Gajram and his wife Smt. Bhoori and his daughter Nemwati and the son of Gajram's brother-in-law, namely, Devendra. Ved Ram accused was saying that because Gajram was cultivating half the land he should be taught a lesson and should be killed along with his family. The prosecution witnesses arc said to have tried to pursuade the assailants to desist from the commission of the crime but the assailants continued assaulting the victims and when the victims fell down they left the scene of occurrence. The witnesses found that Gajram and his wife Smt. Bhoorji had died on the spot. The two children were, however, lying unconscious in an injured condition. The First Information Report also mentions that Gajram and Ved Ram were litigating against each other in respect of some land. 5. The post-mortem examination of Smt. Bhoori was done on 11.8.1978 at 4.35 p.m. and according to Dr. A.N. Saxena she had died about one and a half day earlier. She had four incised ante mortem wounds, one punctured wound and two abrasions. Her stomach was found empty but the small intestine and the large intestine were found to contain faecal matter and gasses. The incised wounds were on the right side of forehead and scalp, left side of Jaw, left side of neck and another injury on the left side of neck below the earlier injury. 6. The post-mortem examination of the dead body of Gajram was done on 12.8.1978 at 7.30 a.m. according to Dr. A.N. Saxena, the estimated time of death was two days ago. There were seven incised ante mortem wounds along with one abrasion and one punctured wound on the body of Gajram. 6. The post-mortem examination of the dead body of Gajram was done on 12.8.1978 at 7.30 a.m. according to Dr. A.N. Saxena, the estimated time of death was two days ago. There were seven incised ante mortem wounds along with one abrasion and one punctured wound on the body of Gajram. The incised wounds were below the left ear, one the scalp over the right ear, over left side of forehead below the left ear, another wound below the left ear, over the right side of occipital region, right wrist, chin and back of the neck on the right side. The punctured wound was just below the middle of right clavicle. The stomach of the deceased Gajram contained about 3 ounces of pasty liquid. The small intestine and the large intestine contained faecal matter and gasses. 7. Kumari Nemwati aged about 11 years was examined on 10.8.1978at 7p.m. by Dr. B. Swamp. The girl had one incised wound bone deep on the occipital region and another incised wound on the lateral surface of left arm She also had traumatic swelling on the right side of scalp, abrasion on the right cheek aim] contusion on the right cheek. She died at about 9.40 p.m. the same night due to shock and haemorrhage as a result of ante mortem injuries, according to Dr. A.N. Saxena who conducted the post mortem on her body. Devendra son of Chuttan Singh was found to have one incised wound on the right side of scalp and multiple abrasion on the back of right side of cheek and a contusion on the back of left shoulders. He had been examined by Dr. B. Swarup at 7.30 P.M. on 10.7.1978and the injuries were found to be about half day old. 8. The investigation of the case was entrusted to Station Officer Achpal Singh, P.W.9 who reached the place of occurrence on the same day in the afternoon anal arranged for sending the two injured to the hospital. The Panchnama of the dead bodies were also prepared. Thereafter, the Investigating Officer recorded the statements of P.W.1 Ram Charan Singh, P.W. Behan Singh, P.W.3 Midai and other witnesses. He also inspected the spot on the same day and prepared the site-plan. He recorded the statement of injured witness Devendra on 31.8.1978. There after he submitted charge-sheet against the appellants along with the co-accused. 9. Thereafter, the Investigating Officer recorded the statements of P.W.1 Ram Charan Singh, P.W. Behan Singh, P.W.3 Midai and other witnesses. He also inspected the spot on the same day and prepared the site-plan. He recorded the statement of injured witness Devendra on 31.8.1978. There after he submitted charge-sheet against the appellants along with the co-accused. 9. The appellants denied the charges framed against them under Sections 4491.P.C., 307/149I.P.C. 302/149 I.P.C. and 148 I.P.C. and claimed false implication. They stated that a dacoity had taken place at the house of Gajram during the night when Gajram and his family members were murdered. 10. The learned Sessions Judge, after considering the evidence on record convicted the appellants as aforesaid but acquitted Hari Singh the brother-in-law of Shibbu, appellant, on the ground that his name was not mentioned in the First Information Report and that the appellant Shibbu has five brother-in-laws. Hari Singh had also taken the plea that the prosecution witnesses did not know him. He claimed identification but the prosecution refused to get identification parade held in respect of Hari Singh. Therefore also, the Trial Court relying on the judgment of the Apex Court in Sita Ram and Another v. State of U.P. (1975 Cr L.J. 240) acquitted Hari Singh. The five appellants who have been convicted have preferred this appeal against their conviction 11. We have gone through the evidence on record and have heard the learned Counsel for the appellants as well as the learned Standing Counsel at length. The learned Counsel for the appellants has attacked the prosecution version, firstly, on the ground that all the eye witnesses examined by the prosecution are inimical towards the appellants and are interested in each other. They are highly partisan witnesses. Secondly, the presence of these witnesses is highly improbable. Further it has been argued that the complainant had strung motive to falsely implicate the appellants because he was interested in the property of Gajrain in which the appellants were also allegedly interested. Further it has been argued that the medical evidence indicates that the incident occurred during early hours of the morning or at mid night and some dacoity might have taken place resulting in the death of Gajram and his family members. Further it has been argued that the medical evidence indicates that the incident occurred during early hours of the morning or at mid night and some dacoity might have taken place resulting in the death of Gajram and his family members. It has also been argued that due to the absence of blood in the Court-yard infront of Gajrain's Kothari, the probabilities are that the incident occurred inside the Kothari and, therefore, there was no chance at all of the eye witnesses having heard the alarm raised by the victims. Next it has been argued that none of the immediate neighbours of the house of Gajrain have been cited as witnesses and their presence has been totally denied by the eye-witnesses examined by the prosecution. This circumstance alone is enough to shatter the eye-witnesses according to the learned defence counsel. 12. The eye-witnesses examined by the prosecution appear to be highly interested and partisan. Rain Charan Singh, P.W. I has stated in the cross-examination that two months before his murder, the victim Gajra in Singh had written a will that he apprehended his murder and, therefore, after his death all his movable and immovable property would devolve on his daughter Nemwati betrothed to Ajai Vir Singh son of this witness. He admits that the marriage of Ajaivir Singh had not yet been performed with Nemwati, but both children had been engaged. it is, thus, clear that this witness was getting the entire property of victim Gajram Singh due to the murder of Gajram and his family members including his wife and daughter. It is also clear from this statement that the will could be challenged by the brothers and relations of Gajram, namely, the appellant-; and the other accused. Thus, the complainant stood to gain immediately if he involved the appellants in this crime. Gajram had 80 bighas of land according to this witness and that is a substantial property. The complainant had also admitted in paragraph 6 of his cross-examination that P.W.2 behari is his real nephew. The third witness P.W.3 Midhai is the servant of the brother of Behan as admitted by Behari himself. Thus all the three eye-witnesses are interested in each other. Not only this all the three are involved together in several criminal cases as stated by P.W. 1 Ram Charan Singh. The third witness P.W.3 Midhai is the servant of the brother of Behan as admitted by Behari himself. Thus all the three eye-witnesses are interested in each other. Not only this all the three are involved together in several criminal cases as stated by P.W. 1 Ram Charan Singh. He has admitted in paragraph 5 of the cross-examination that he was involved in the murder of Soodey Daiji of village Niyamatpur. I that case one Har Prasad and others of village Bharthal was co-accused with him. He admits in paragraph 6 that Har Prasad was also murdered and Mahendra, brother of P.W.2 Behari and Bahu Singh and Ram Singh brothers of P.W.I Ram Charan Singh and Shyain Singh, nephew of Rain Cha ra n Singh were co-accused in Har Prasad's murder. Rain Charan Singh has admitted that Net Ram had appeared as prosecution witness against the members of the family of Ram Charan Singh but he pleads ignorance that Net Ram's son Chandrapal is married to the sister of appellant Shibbu. Rain Charan Singh P.W.1 has further admitted that one Murli of Niyamatpur was murdered and P.W.3 Midhai and Ram Prasad and Ram Swarup brothers of Rain Charon Singh, P.W.1 were accused for that murder. The witness has further admitted that a dacoity had taken place at the house of Har Prasad of village Bharthal and in that dacoity Mahendra Singh brother of P.W.2 Behari and other members of complainant's family were accused. He further admits that the criminal case regarding burning of sugarcane and tractor trolly of Chandra Pal and Netrapal was instituted against this witness alongwith Ram Singh father of P.W. Behan Singh and Mahendra Singh brother of Behari Singh. P. W.2 Behan Singh has also admitted that he is the real nephew of P.W.1 Rain Charan Singh and that his brother Mahendra Singh and Ram Charan Singh's brother Bahu and Ram Swarup Singh were involved as accused in the murder of Har Prasad of Bharthal. P.W.2 Behari Singh has also admitted that P.W.3 Midhai is the servant of the cousin of Behan Singh.P.W.3 Midhari has also admitted that during the period when the occurrence took place. He was servant of Ramvir Singh who is the nephew of complainant Rain Charan Singh. He has further admitted that the criminal case regarding murder of Murli proceeded against him alongwith Ram Prasad Singh and was Swarup Singh, brothers of complainant. He was servant of Ramvir Singh who is the nephew of complainant Rain Charan Singh. He has further admitted that the criminal case regarding murder of Murli proceeded against him alongwith Ram Prasad Singh and was Swarup Singh, brothers of complainant. 13. It Will, Therefore, Be Seen That The Three Eyewitnesses Are Not Only Related To Each Other Either By Blood Or Because Of Being Servant, They Have Been Participating In Severed Crimes Together. It Appears That The Family Of The Complainant Consists Of Several Members Who Have Been Charged For Heinous Crimes. One Malkhan Nephew Of Complainant Is Said To Have Committed The Murder Of One Sub-Inspector Of Police Of Police Station Mainather Though According To Complainant His Nephew Malkhan Was Acquitted By The High Court. We Have Already Found That The Complainant Had Got A Will In Favour of His Son Two Months Before This Occurrence Regarding The Entire Movebale And Immovable Property of Gajramt. In These Circumstances It Is Highly Probable That The Complainant Involved The Appellants In This Crime So As To Ward Off The Hidrence Which Wright Be Created By The Appellants Who Are Relations Of Deceased Gajram In Getting The Properly Of Gajram. 14. It would be relevant to consider the evidence of motive also at this juncture. According to prosecution, Ved Rain, accused, was litigating with Gajram in respect of the property of Gajram. The land in question was about 160 bighas as stated by Rain Chara it Singh, P.W. 1. No document has been filed to support the allegations that there was litigation between Ved Ram and Gajram regarding agricultural plots. One First Information Report (Ext. Ka-28) said to have been lodged by Gajram on 21.5.1978 against Ved Ram had been utilised by the learned Sessions Judge in coming to the conclusion that there was motive in the mind of Ved Ram accused for the commission of this crime. The content-, of this First his information Report have not been proved according to law. P.W. 9 S.O. Achpal Singh has stated merely that this First Information Report was scribed by Balram Singh, Head Clerk. The witness has identified the writing of Balram Singh but has tot stated that he identifies the signature or thumb impression of Gajram or that Gajram dictated the First Information Report in his presence. Hence, the contents of Ex. P.W. 9 S.O. Achpal Singh has stated merely that this First Information Report was scribed by Balram Singh, Head Clerk. The witness has identified the writing of Balram Singh but has tot stated that he identifies the signature or thumb impression of Gajram or that Gajram dictated the First Information Report in his presence. Hence, the contents of Ex. Ka28, First Information Report dated 21.5.1 978 case was be read as evidence. On the other hand, we have the statement of P.W. 1 Ram Charan Singh that about two years before this occurrence, :/3rd of the property was being cultivated by the sons of Ved Ram and ?rd was being cultivated by Gajram. The witness denied that there had been any panchavat in which it was settled that the sons of Ved Ram would get ?rd of the land and Gajram would get ?rd but he had to admit the result of the Panchavat which had been acted upon two years earlier to this incident. It is, therefore, difficult to believe that there was any animosity between Gajram and Ved Rain in respect of the land which had been shared by both of thein. We, therefore, find that the motive alleged to be present in the mind of the appellants is nonexistent. On the other hand, there is strong motive in the mind of complainant Rain Charan Singh to falsely implicate the appellants as discussed above. The evidence of eye-witnesses produced by the prosecution has, therefore, to be very carefully scrutinised before such interested and partisan witnesses can be relied. 15. It has been rightly argued by the learned Counsel for the appellants that the presence of the eyewitnesses is highly improbable. The occurrence is said to have taken place in the house of Gajram. The house of P.W.I Rain Charan Singh is about 100 steps away from this place. P. W.1 Rahn Charan Singh has admitted that if he had been inside his house he would not have been able to hear the alarm raised but by chance he was on his roof because it had raised and his roof was leaking. Hence, he could hear the alarm raised by the victim. This explanation was not given to by this witness in his statement under Section 161 Cr.P.C. Moreover as will be discussed later on, it is very doubtful that the incident occurred in t he courtyard. Hence, he could hear the alarm raised by the victim. This explanation was not given to by this witness in his statement under Section 161 Cr.P.C. Moreover as will be discussed later on, it is very doubtful that the incident occurred in t he courtyard. The greater probability is that it occurred inside the Kothari of Gajram. If Gajram and his family members were attacked inside the Kothari, their shouts could not have been heard by a person living 100 steps away from the place of occurrence. This has been admitted by the complainant himself. We are, therefore, of the opinion that it is highly improbable that the complainant could have reached the place of occurrence on hearing the alarm raised by the victims. P.W.2 Behari Singh has his house adjacent to the house of the complainant. He claims that he was proceeding towards jungle and when he reached near the Baithak of Munshi Singh, he heard the shouts of the victims. It is important to note that the Baithak of Munshi Singh is adjacent to the house of Gajraj with only one lane intervening. However, Munshi Singh did not turn up on hearing the alleged alarm. The third witness P.W.3 Midhai lives towards south of the abadi as shown in the site-plan near the house of Ranvir Singh. He claims that while he was proceeding from South to North to see the fields of his master Ranvir Singh, he also heard the alarm raised by the victims when he reach near the place of occurrence. It was suggested that the nearer route to the filed where he was going was from the house of Genda Singh which is towards West of the place of occurrence. He, however, claims that the route from the West of Genda Singh's house and the route from East of Munshi Singh's Baithak are going and from both routes he could hear the alarm raised by the victims. It is difficult to believe such evidence. It is important to note that these eyewitnesses have positively asserted that none of the neighbours of the victims turned up during or after the incident. It is difficult to believe such evidence. It is important to note that these eyewitnesses have positively asserted that none of the neighbours of the victims turned up during or after the incident. Thus, they have assured that there should be no possibility of any independent witness regarding the occurrence, although there is evidence that there are house of Munshi Singh, Rain Prasad, Genda Singh, Jagpa 1, Bisna Jatava, Malkhan Singh, Lalloo Singh and Vijai Prasad near the place of occurrence. If none of these persons who are immediate neighbours turned up during the occurrence, the probabilities are that the incident occurred inside the Kothari of Gajram during the early hours of morning when everybody was fast asleep in the neighbourhood. This is much more probable when the dead bodies were found inside Gajraj's Kothari and no blood was found in the Court-yard where the incident is said to have started according to the prosecution. We therefore, conclude that none of the three eye-witnesses were present when the occurrence took place. 16. The medical evidence also supports the proposition that the incident occurred during early hours of morning. As already mentioned above, the stomach of Sint. Bhoori was found to be empty and there was faecal matter in both of her intestines. Similarly the stomach of Gajram was found to have 3 ounces of pasty liquid and both his intestines contained faecal matter. Thus, while the food taken by Smt. Bhoori had passed off from the stomach, the food taken by Gajrain became pasty liquid after about 5 or 6 hours if they had taken food at 8 or 9 p.m. The presence of faecal matter in both intestines of both the victims indicates that they had not Ceased themselves. It is difficult to believe that in villages where latrines are generally not found inside the house the lady of the house did not Cease herself till 8 a.m. The greater probability is that because the incident occurred during the early hours of the morning, faecal matter remained in their intestines. Regarding the probable time of death Dr. A.N. Saxena has admitted in cross-examination that the deaths of Gajraj and his wife Smt. Bhoori could have occurred at about midnight or 1.OOa.m. on the night intervening 9/10.8.1978. It is, therefore, highly probable that the incident occurred during late night or early hours of the morning. 17. Regarding the probable time of death Dr. A.N. Saxena has admitted in cross-examination that the deaths of Gajraj and his wife Smt. Bhoori could have occurred at about midnight or 1.OOa.m. on the night intervening 9/10.8.1978. It is, therefore, highly probable that the incident occurred during late night or early hours of the morning. 17. We may now consider the evidence regarding presence of blood. The Investigating Officer did not find any blood in the Court-yard infront of the Kothari of Gajram. The eye-witness are, however, positive that blood had fallen in the Court-yard infront of the Kothari of Gajrai n in an area of 2 feet. The explanation of the prosecution is that it had rained during 6 to 7 a.m. in the moving and later on also there had been rain. and, therefore, the blood was washed off. However, the prosecution version is that the victims were assaulted in the Court-yard first and then they were pushed and dragged inside their kothari. No blood had been found either in the Chhappar infront of the Kothari of Ga Gajrain which is about 6 feet wide or on the threshold of the Kothari. We have already indicated that there were several incised wounds on the bodies of the victims. The major part of the assault was done in the Court/yard according to prosecution witnesses. If that was so, the cut injuries of the victims would throw spot of blood wherever they would go. it is, therefore, impossible to believe that blood would not spread under the Chhappar infront of Gajram's Kothari or on the threshold (Chaukhat) o f the Kothari of Ga jram while the victims were being taken from the Court-yard to the Kothari of Gajram. There was no possibility of blood having been washed from either the threshold or from under the Chhappar infront of the Kothari. The explanation offered by the prosecution is, therefore, wholly unbelievable aril is to be rejected out-right. 18. It is, thus, clear that the incident occurred inside the Kothari of Gajrain where all the victims were found and where blood was also found and that the incident occurred sometime during the late tight or early moving of the night between 9/10.8.1978. 19. 18. It is, thus, clear that the incident occurred inside the Kothari of Gajrain where all the victims were found and where blood was also found and that the incident occurred sometime during the late tight or early moving of the night between 9/10.8.1978. 19. The learned Sessions Judge was of the opinion that the appellants had not committed this crime after pre-planning but the incident had occurred suddenly on the spur of the moment and, therefore, the assailants did not take the precaution of committing the crime at some other time or at some other place. This theory has to be totally rejected because only Ved Ram and his two sons live in the same house whereas the other alleged assailants live in different village or villages and all the assailants would not become available suddenly at 8 a.m. on 10.8.1978. Moreover, it is difficult to imagine that so many weapons would immediately be available to the assailants who would be carrying these weapons at 8 a.m. while entering the house of Gajram openly and in clear view of the passersby so as to arouse the suspicion of the entire neighbourhood. 20. There is another aspect of the matter which renders the entire ocular version of the eye-witnesses untrustworthy. Complainant Rain Charan singh has stated that he was present at the place of occurrence for about half an hour. The of her two eye witnesses namely, Behan Singh and Midhari have stated that they remained at the place of occurrence upto about 2.30 p.m. according to the instructions of the complainant till the Investigating Officer cane at the place of occurrence. However during this entire period, none of these three eye-witnesses disclosed the names of the assailants and the manner of incident to the persons who had collected at the place of occurrence afterwards. Whereas the complainant went to the Pradhan of the Village, he only told the Pradhan that two persons had been murdered and two children had received injuries. He did not disclose the names of the appellants to the Pradhan. Even Behari and Midhai have stated that they did not disclose the navies of the assailants to anybody and that they disclosed the names of the assailants to the Investigating Officer for the first time. He did not disclose the names of the appellants to the Pradhan. Even Behari and Midhai have stated that they did not disclose the navies of the assailants to anybody and that they disclosed the names of the assailants to the Investigating Officer for the first time. The Investigating Officer interrogated these two witnesses, namely, Behan Singh and Midhai at about 5 p.m. By that time, the complainant had come back from the Police Station. It is interesting to note that Behari has stated in the cross-examination that when the police came only then he came to know that Ram Charan Singh had lodged the report and had named certain persons carrying certain weapons in the report. He has clearly stated in the next sentence that the police had come to the village at 2.30 p.m. and then he came to know about these fads. It means that this witness was briefed about the involvement of the appellants and the manner of the incident before he got his statement recorded under Section 161 Cr.P.C. infrout of the Investigating officer. Even Midhai, P.W.3 had to admit that he met Rain Charan Singh, complainant at about 5 p.m. i.e. before deposing under Section 161 Cr.P.C. in presence of the Investigating Officer. It is, therefore, clear that these witnesses are got up witnesses who have been tutored to narrate the incident in the maimer chosen by the appellant Their conduct in not disclosing the manners of the culprits to the villagers who had assembled at the place of occurrence makes their presence highly improbable. 21. There is one more interesting aspect of this case. P.W.1 Rain Charan Singh admits that though Kumari Nemwati was lying in an injured condition he did not make any effort to take the injured to the nearby hospital or to bring some doctor to give first aid to the victim who was still alive. The victinns, namely, Nemwati and Devendra were taken by the constables after the Investigating Officer had prepared 'Mazroobi Chitthai ' for the victims at about 5 p.m. 11 appears that Ram Charan Singh was interested only in the property of Gajram. He was not interested in the daughter of Gajram, though according to the Will, the daughter of Rajram had already been engaged to his son. He was not interested in the daughter of Gajram, though according to the Will, the daughter of Rajram had already been engaged to his son. It further appears that he wanted the entire property of Gajram and did not want to share it with Smt. Nemwati. Hence, he did not take care of the girl at all. Such inhuman conduct on behalf of the complainant goes to indicate his mental attitude toaard,~ the entire incident. 22. The argument that it was a case of dacoity funds some support from the fact that when the Investigating Officer searched the house of Gajram he did not find ornaments or cash in the house. However, he also did not Grid the house-hold goods scattered in the room. The theory of dacoity may or may not be correct but this much is certain that the incident occurred during the night. 23. It was urged on behalf of the prosecution that at least Ved Ram accused and Karan and Harbannsh appellants are expected to be present inside their house when the incident occurred and it is their duty to explain why they did not lodge a report of the incident. It was suggested to P.W. Behan Singh that Ved Ram had gone to get the cataract of his eyes operated but this suggestion was denied by the witness. There is no evidence to show that during the period of incident, Ved Rain and his sons were not living in that house. It raises a strong suspicion against them, but suspicion however strong cannot take the place of proof. 24. After careful consideration of the entire facts and circumstances of this case, we are of the opinion that the prosecution has not been able to prove the charges against the appellants. The appeal is, therefore, liable to be allowed and the appellants are liable to be acquitted. The appeal is allowed. The appellants are acquitted of the charges levelled against them. They are on hail. They need not surrender. Their bail bonds a re cancelled and sureties discharged.