J. N. BHATT, J. ( 1 ) BY this appeal the appellants have questioned the legality and validity of the conviction and sentence order passed by the learned Additional Sessions Judge Surat on 3. 1 in Sessions Case No. 47 of 1984 by invoking the aids of the provisions of section 374 of the Criminal Procedure Code 1973 (Code for short hereinafter ). ( 2 ) A few material and relevant facts giving rise to the present appeal may be stated at this stage. The appellants alongwith other five accused persons were tried in the trial court for the offences punishable under sections 147 324 and 326 of the Indian Penal Code. They were also tried for the offences punishable under sections 147 148 and 149 read with section 395 and 397 of the Indian Penal Code. Initially a complaint was lodged against 15 persons by one Bilal Ibrahim Patel. Upon investigation into the said complaint 13 persons were charge-sheeted by the Mangrol Police and all of them were tried in the Sessions Court for the aforesaid offences. The accused persons pleaded not guilty and claimed to be tried. ( 3 ) UPON appreciation and examination of the evidence of the prosecution the learned Additional Sessions Judge reached to the conclusion that there was an unlawful assembly formed of original accused Nos. 2 3 4 5 7 8 11 and 12 and that they were armed with deadly weapons. It was also found by the learned Additional Sessions Judge that the common object of the aforesaid unlawful assembly was to cause grievious hurt to the injured-Ibrahim Mohmad Patel. Consequently the trial court held the original accused Nos. 2 3 4 5 7 8 11 and 12 (in all 8 accused persons out of 13) guilty for the offences punishable under sections 326 147 and 148 of the Indian Penal Code. Each of the accused is sentenced to undergo rigorous imprisonment for 18 months and to pay fine of Rs. 200 and in default to undergo further rigorous imprisonment for 15 days of the offences punishable under section 326 read with section 149 of the Indian Penal Code. The trial court also sentenced each of the aforesaid accused person to undergo rigorous imprisoment for six months for the offences punishable under section 148 of the Indian Penal Code. They came to be acquitted from the other charges. The trial court also sentenced each of the aforesaid accused person to undergo rigorous imprisoment for six months for the offences punishable under section 148 of the Indian Penal Code. They came to be acquitted from the other charges. However being aggrieved by the aforesaid order of conviction and sentence all the original eight accused persons have now come up before this court in this appeal challenging its legality and validity. ( 4 ) IT has been seriously contended that the conviction of all accused persons for the aforesaid offences is perverse and illegal. This contention is countenanced by the learned A. P. P. In order to appreciate the merits of this contention it may be noted that the appellants/original accused persons were residing at village Kasadi Taluka Mangrol District Surat at the relevant time. The appellant Nos. 3 and 4 were carrying on agricultural operations and they were also running a flour mill. One injured Ibrahim Mohmed Patel was also running a flour mill. There were enmity between the injured and the appellants Nos. 3 and 4 in connection with the installation of flour mill. ( 5 ) ACCORDING to the prosecution version on 15. 7 the injured Ibrahim had gone to village Kosadi in connection with agricultural operations alongwith an amount of Rs. 8000 in his pocket. He had also a wrist watch within and a lighter for lighting cigarette. On that day in the evening he thought of going to his maternal uncle Haji Musa Mohmad who was residing at the outskirts of the village. He had as such met his maternal uncle who was sitting on the otta portion of his house. It was further alleged by the prosecution that at time 13 accused persons armed with different weapons rushed to the said place and started giving one after the other blows on the person of the injured Ibrahim Several blows were given to Ibrahim resulting into serious injuries. According to the case of the injured after beatings the accused persons committed robbery in respect of the amount of Rs. 8 0 and alos in respect of the wrist watch and cigarette lighter The prosecution witness Zulekha the daughter-in-law of the injured who was in the village Kosadi on that day learned from somebody about the aforesaid incident and the resultant serious injuries on the person of Ibrahim. 8 0 and alos in respect of the wrist watch and cigarette lighter The prosecution witness Zulekha the daughter-in-law of the injured who was in the village Kosadi on that day learned from somebody about the aforesaid incident and the resultant serious injuries on the person of Ibrahim. Therefore she went there and found her father-in-law in a very serious condition near Supedi of mosque at the outskirt in the village. She therefore informed one Yusuf about the said incident who in turn went to Bilal who is the son of the injured Ibrahim. Thereafter Bilal went to the police station and lodged the complaint which is produced at Ex. 22. Consequently the injured was taken to the hospital and it was found that he had sustained serious injuries The F. I. R. lodged by Bilal was to the effect that his father was murdered However later on it was found that his father had sustained serious injuries only. ( 6 ) THERE is no dispute about the fact that the incident in question occurred as per the First Information Report at about 9. 30 P. M. near the compound or otta portion of the maternal uncle of the injured one Haji Musa Mohmed. Obviously at 9. 3 at night there was no question of day light. It was therefore incumbent upon the prosecution to show that the injured and other eye witnesses were in a position to identify the assailants with the help of light from any source or quarter. It is again an admitted fact in Ex 46 which is a map of the venue of the incident the house of Haji Musa Mohmed is not shown In fact the incident and the assault look place on otta portion of the house of said Haji Musa Mohmad whose house is not at all shown in the map at Ex. 46 On the contrary it shows the place whore the injured was lying after the incident occurred. A part from that there is no any evidence worth the candle which would even remotely show that there was some light if not sufficient to identify the assailants who initially according to the prosecution were 15 in number. 46 On the contrary it shows the place whore the injured was lying after the incident occurred. A part from that there is no any evidence worth the candle which would even remotely show that there was some light if not sufficient to identify the assailants who initially according to the prosecution were 15 in number. In the F. I. R. the complainant gave names of as many as 15 persons This is not a case of attack at an odd time by one or two known persons According to the case or the prosecution it was a planned attack made by 15 persons at 9. 30 at night and there is no evidence whatsoever that there was some light to identify the assailants Thus the prosecution has not been able to prove that the injured and the eye-witness Zulekha if at all she was an eye-witness were able to identify the assailants and that they were in a position to recount the role played by each of the accused person It is also an admitted fact that no identification parade was hold No witness has said that there was any light near the house of Haji Musa Mohmed Unless the identity of the accused persons and their role and involvement is established beyond and reasonable doubt they cannot be held guilty for the offence with which they are charged. Neither in the evidence of the complainant nor in the evidence of the injured and the so-called eye witness Zulekha or in the evidence of Ibrahim Mohmed it is mentioned that there was any source of light in which the assailants could have been identified by the eye-witnesses This aspect unfortunately is not seriously given thought of by the learned Additional Sessions Judge with due respect to him and which has resulted into miscarriage of justice Not only that there are several other circumstances which creats could of doubt about the varacity of the prosecution version. Some of them may be high-lighted 1 The incident in question occurred at 9 30 at night and the F. I. R came to lodged at 5 A. M. on the next day Thus the dealy of more that 7-1/2 hours in filing the F. I. R. has not been explained. It may be noted that more delay itself is not fatal but the delay has to be accounted for. It may be noted that more delay itself is not fatal but the delay has to be accounted for. But it is not done by the prosecution in the present case. 2 The F. I. R at Ex. 22 is lodged by the son of the injured on the basis of the version narrated by Unus Mohmed who is not examined Apart from that 15 names are mentioned in the F. I. R. but 13 persons were charge-sheeted and admittedly even in the trial court it was found that live accused persons were wrongly implicated by the complainant. These circumstances also I create substantial doubt on the varacity of the prosecution version. 3 Moreover all the accused persons are related to each other and they are admittedly the relationship with the complainant was inimical and strained. Therefore some corroboration may be insisted upon. 4 No explanation is given as to why the prosecution witness Unus Mohmed Ismail Ahmed and Haji Musa Mohmed were not examined. Non-examination of these three important witnesses whose testimony could have been thrown substantial light on the case of the prosecution. ( 7 ) CONSIDERING the aforesaid facts and circumstances and the entire testimonial collection emerging from the present case with due respect he views adopted and the ultimate conclusion recorded by the learned Additional Sessions Judge are neither proper nor just and legal. In the result this court has no hesitation in holding that there are several doubtful circumstances. Therefore benefit of doubt is required to be given to the accused persons. Since the prosecution has failed to establish the complicity of the accused persons with which they are charged beyond reasonable doubt the impugned order of conviction and sentence is required to be quashed while allowing the appeal. ( 8 ) IN the result the appeal is allowed. The impugned order of conviction and sentence is quashed and set aside. The amount of fine it any paid by the appellants shall be refunded to them. Bail bonds shall stand forthwith it the accused persons are no required in connection with any other offence. Application Allowed. .