JUDGMENT 1. -Both these appeals are directed against the judgment of learned Additional Sessions Judge, Raisinghnagar dated 7.9.1996 in Sessions Case No. 61/94. By the impugned judgment the learned Additional Sessions Judge convicted the accused-appellants (in Appeal No. 484/96) for having committed the offences under sections 302, 302 r/w 149, 307, 307 r/w 149 & 447 IPC and sentenced to various terms of imprisonment and fine and the accused-respondents (in appeal No. 371(- preferred by the State of Rajasthan) Pal Singh, Balvendra Singh, Jagroop Singh, Satpal, I-1,n Kumar, Bhura, Gopal and Jeet Singh were acquitted of all the charges levelled against them under sections 148, 323, 324, 325, 307, 302, 458, 459, 460 r/w 149 IPC. Leave to appeal has been granted only against four respondents-accused-Pal Singh, Bhura Singh, Gopal Singh and Jeet Singh. 2. The prosecution case is that Hardev Singh, his wife-Jaspal Kaur and son Teja Singh were sleeping in front of the 'Kotha' of their 'Ahatta' in the night of 6.5.1994 in village 2 G.D. At about 1.30 in the night-Hardev Singh woke up on the barking of the dog and saw 7-8 persons armed with lathies and Gandasies, who started assaulting him and also his son Teja Singh. They took him away from the house beating him on the way. On raising hue and cry by Hardev Singh and his wife the neighbours Hari Singh, Kashmir Singh and Kesra Nayak came there who challenged the assailants. Thereafter the assailants ran away from the place of occurrence. Teja Singh died thereat and Hardev Singh was shifted to the Hospital by Kesra Nayak and Baltej Singh. Hardev Singh identified Jasbir Singh, Jeet Singh, Gorkha Singh, Pal Singh, Gopal Singh and Bhura. Hema Ram PW 23 C.I., Police Station, Ghadsana on receiving information Ex. P/22 from the Medical Officer, Government Dispensary, Ghadsana about the admission of Hardev Singh in injured condition reached in the Dispensary and recorded the statement ('Parcha Bayan') of Hardev Singh Ex. P/9 on the basis of which the case was registered at Police Station, Ghadsana and after completing the usual investigation a charge- sheet was submitted against seven accused persons viz. Jasbir Singh, Gorkha Singh, Pal Singh, Balvendra Singh, Jagroop Singh, Satpal and Prem Kumar. P/9 on the basis of which the case was registered at Police Station, Ghadsana and after completing the usual investigation a charge- sheet was submitted against seven accused persons viz. Jasbir Singh, Gorkha Singh, Pal Singh, Balvendra Singh, Jagroop Singh, Satpal and Prem Kumar. It is significant to note here that police did not file charge-sheet against three accused persons Bhuru Singh, Jeet Singh and Gopal Singh claimed to have been identified by Hardev Singh at the time of the alleged occurrence. However, the learned Additional Sessions Judge, Raisinghnagar took cognizance under section 319 r/w 193 Cr.P.C. against the above said three accused persons by order dated 25.2.1995. 3. Charges were framed against the accused persons under sections 148, 323, 458, 459, 460, 324, 324 r/w 149, 302 r/w 149, 307 r/w 149, 323 r/w 149 & 325 r/w 149 IPC. All the accused persons denied the charge and claimed trial. The prosecution examined 27 witnesses. The accused persons did not examine any witness in defence. Out of the above 27 witnesses', PW 2 Hari Singh, PW 3 Hardev Singh, PW 4 Smt. Jaspal Kaur wife of Hardev Singh, PW 7 Tahal Singh, PW 8 Daula Ram, PW 9 Kesra Ram, PW 12 Pat Ram, PW 13 Kashmir Singh, PW 15 Dayal Singh and PW 27 Baltej Singh have been examined as eye- witnesses. PW 6 Sukhdev Singh, PW 10 Jora Singh, PW 14 bora Singh son of Pritam Singh, PW 17 Ram Chandra, PW 19 Govind Singh and PW 21 Kashmir Singh are the witnesses to the effect that accused persons Balvendra Singh, Satpal, Prem Kumar and Jagroop Singh made extra-judicial confession to them, as leave to appeal has not been granted against them, their evidence is inconsequential for the disposal of these appeals. PW 20 Purshottam and PW 26 Jasram are motbir witnesses. Dr. Rajesh Chand Gaur, Incharge P.S.C., Nai Mandi, Ghadsana PW II examined injured Hardev Singh and also sent the information Ex. P/22 to S.H.O., Ghadsana about the admission of Hardev Singh injured in the Hospital. He also conducted the post-mortem on the dead body of Teja Singh. The post-mortem report is Ex. P/25, Dr. Devi Lal got X-ray done under his supervision of the injuries of Hardev Singh and prepared the X-Ray report Ex. P/24. Hema Ram, S.H.O. PW 23 and Deen Dayal, A.S.I. PW 24 took part in the investigation. He also conducted the post-mortem on the dead body of Teja Singh. The post-mortem report is Ex. P/25, Dr. Devi Lal got X-ray done under his supervision of the injuries of Hardev Singh and prepared the X-Ray report Ex. P/24. Hema Ram, S.H.O. PW 23 and Deen Dayal, A.S.I. PW 24 took part in the investigation. PW 18 Surendra Kumar, Head Constable is Incharge Malkhana and PW 16 Chhitar Mal F.C. is carrier, who took 11 packets to deposit at the Forensic Science Laboratory, Jaipur, PW 1 Dilawar Singh and PW 5 Amarjeet Singh reached the place of occurrence after the incident on information by Gurmail Singh alias Golu. 4. The learned Additional Sessions Judge came to the conclusion that death of Teja Singh was homicidal. He came to hold that the testimony of the witnesses regarding extra-judicial confession by accused persons Balvendra Singh, Jagroop Singh, Satpal and Prem Kumar is not trustworthy. He further held that since the police did not file challan against accused persons Bhura Singh, Gopal Singh and Jeet Singh and the prosecution witnesses, PW 2 Hari Singh, PW 9 Kesra Ram, PW 13 Kashmir Singh have not supported the prosecution case, charges are not proved against them. The learned Additional Sessions Judge further observed about accused- Pal Singh that his name is mentioned in the FIR armed with Gandasi but police recovered Gandhali and the complainant-Hardev Singh stated in his police statement recorded on the same day i.e. 6.5.1994 that accused-Pal Singh was armed with Gandhali. The recovery of Gandhali has not been testified by motbir witness Jora Singh. Hence the participation of accused-Pal Singh had not been proved beyond reasonable doubt by the prosecution. The learned Additional Sessions Judge, however, accepted the testimony of Hardev Singh and Jaspal Kaur in relation to remaining two accused-Jasvir Singh and Gorkha Singh only to hold that the offences under sections 447, 302 & 307/149 IPC have been proved by the prosecution. Thus, the impugned judgment was delivered as stated above. 5. We have heard the arguments and perused the record of the trial Court. Thus, the impugned judgment was delivered as stated above. 5. We have heard the arguments and perused the record of the trial Court. The learned counsel appearing on behalf of the appellants-Jasvir Singh and Gorkha Singh has contended that the learned trial Judge has erred in believing the testimony of Hardev Singh and Jaspal Kaur in relation to the appellants which has not been relied for other acquitted accused persons Jeet Singh, Pal Singh, Gopal Singh and Bhura Singh. The testimony of both the said witnesses is wholly unreliable regarding the identification of six accused persons named by them in the statements. Their evidence regarding identification is inseparable and when not accepted for above mentioned four accused persons, it should have been also rejected in respect of the appellants-Jasvir Singh and Gorkha Singh. The above witnesses identified six accused persons but the police did not even file charge-sheet against Pal Singh, Bhura Singh, Gopal Singh and Jeet Singh and cognizance was taken against them later on. All the independent eye-witnesses have not supported the prosecution. The learned Public Prosecutor has supported the conviction of the appellants-Jasvir Singh and Gorkha Singh and further submitted that respondents-Pal Singh, Bhura Singh, Gopal Singh and Jeet Singh should have been also convicted on the basis of the evidence of Hardev Singh and Jaspal Kaur, who have identified them at the time of the occurrence and Hardev Singh has given their names in his Parcha Bayan i.e. the FIR of this case, According to him, the learned Additional Sessions Judge has wrongly rejected the statements of the said two witnesses merely on the ground that police did not file charge-sheet against them and their names did not appear in the statements under section 161 Cr.P.C. of the independent witnesses. 6. We will first consider the appeal preferred by Jasvir Singh and Gorkha Singh and also the appeal preferred by the State of Rajasthan against respondents-Pal Singh, Gopal Singh, Bhura Singh and Jeet Singh. The question which arises for consideration is whether the evidence of Hardev Singh and Jaspal Kaur about identification is reliable against the aforesaid accused persons. The statements of Hardev Singh PW 3 and Smt. Jaspal Kaur PW 4 were recorded twice. The question which arises for consideration is whether the evidence of Hardev Singh and Jaspal Kaur about identification is reliable against the aforesaid accused persons. The statements of Hardev Singh PW 3 and Smt. Jaspal Kaur PW 4 were recorded twice. First statement was recorded after framing of the charges and again the statement was taken after taking cognizance against other accused yondents No. 1 & 6 to 8 by order dated 25.2.1995. Hardev Singh PW 3 has deposed that during the night of the occurrence he, his wife Smt. Jaspal Kaur and his son Teja Singh were sleeping in the 'Ahatta'. He woke up on the barking of the dog and saw Jasvir Singh, Gorkha Singh, Jeet Singh, Pal Singh, Bhura Singh and Copal Singh with other 3-4 persons. Gorkha Singh and Jasvir Singh were armed with Gandas. Pal Singh was holding Gandhali and others were armed with lathies and pipes. Jasvir Singh gave a blow on the head of Teja Singh by Gandasa and thereafter all the persons started giving blows to Teja Singh. Gorkha Singh inflicted injury on his head by Gandasa and Bhura Singh by lathi on his thigh (Tat' ). He was taken to the field of Raja Ram and all the accused persons except Jasvir Singh started beating him. He further states that Hari Singh and Kesra Ram came at the place of occurrence, raised hue and cry and accused persons ran away. Jaspal Kaur PW 4 has also given similar statement. She has also stated that Hari Singh and other neighbours came there and thereafter accused, persons fled away. In the cross-examination, Hartley Singh has stated that it was a dark night. It had not been any where stated that any light was available in the 'Ahatta' at the time of the alleged incident. In his statement taken on 10.7.1995, Hardev Singh has not deposed as to how he could identify six accused persons named by him whereas in the earlier statement taken on 7.2.1995 he deposed in the cross-examination that night was dark but light was coming from the side of Ghadsana Mandi which is at a distance of 1 Km. We are of the view that no light was available at the place of occurrence even from the side of Ghadsana Mandi from a distance of 1 Km. We are of the view that no light was available at the place of occurrence even from the side of Ghadsana Mandi from a distance of 1 Km. More-over it was not practically possible for him to identify the assailants on the basis of the light, according to him at a distance of 1 Km. in Ghadsana Mandi. Even this fact has not been stated by him in his subsequent statement dated 10.7.1995. It was necessary on the part of the prosecution to establish that as to how Hardev Singh could identify the assailants. He admits in the cross-examination of his statement dated 7.2.1995 that he could not identify some accused persons due to dark night and also they were wearing turbans and hiding their faces. But when confronted in the cross-examination with this statement while given the statement on 10.7.1995, he flatly denied to have stated so. Thus the credibility of the witnesses is highly doubtful. 7. We also find material contradictions in his statement vis- a-vis the statement Ex. P/9 Parcha Bayan and Ex. D/3 under section 161 Cr.P.C. which also create reasonable doubt about the capacity of this witness to identify the assailants. Hardev Singh has deposed about the weapons wielded by the assailants but in his police statement under section 161 Cr.P.C. it is not mentioned that some accused were armed with iron pipes. This fact is also missing in Ex. P/9 and Ex. D/3 that first of all Jasvir Singh inflicted injury on the head of Teja Singh. This leads to conclude that Hardev Singh and Jaspal Kaur did not identify the assailants being dark night and no light was available there. Jaspal Kaur PW 4 has even introduced in his statement a conversation took place between Jasvir Singh and her husband Hardev Singh. She states that her husband asked, who were the persons there then he said I am Jasvir Singh, but Hardev Singh does not state this fact. She has stated that as soon as the accused persons started beating Teja Singh and her husband, she sent out of the 'Ahatta' and raised hue and cry. She came back only after the accused persons had left the place of occurrence. She has stated that as soon as the accused persons started beating Teja Singh and her husband, she sent out of the 'Ahatta' and raised hue and cry. She came back only after the accused persons had left the place of occurrence. The learned Public Prosecutor urged that Hardev Singh and Jaspal Kaur identified the six accused persons because they were previously known and there was a dispute between Hardev Singh and Bhura Singh and his sons. Moreover Hardev Singh is injured person who had the occasion to see the assailants from close distance. But we are of the considered view that the testimony of Hardev Singh and Jaspal Kaur is of very shaky and doubtful nature for the reasons already stated above. The learned Additional Sessions Judge has not considered this material aspect of identification of the accused persons in correct perspective. Their statements are not reliable and cannot be acted upon even partially for the appellants-Jasvir Singh and Gorkha Singh. 8. Hari Singh PW 2, Tahal Singh PW 7, Daula Ram PW 8, Kesra Ram PW 9, Pat Ram PW 12, Kashmir Singh PW 13, Dayal Singh PW 15 and Baltej Singh PW 27 reached at the place of occurrence on hearing the hue and cry and thereafter the accused persons are said to have ran away. But none of the above eye-witnesses has supported the prosecution story. Hari Singh PW 2 has categorically stated that he did not identify any body even in the Torch light flashed by him he saw 5 to 10 persons only. Tahal Singh PW 7, Daula Ram PW 8, Kesar Ram PW 9, Pat Ram PW 12, Kashmir Singh PW 13, Dayal Singh PW 15 and Baltej Singh PW 27 say that they did not see the accused persons there causing injury to any one. Hardev Singh is the injured person, who saw the assailants from close distance. Therefore, we do not see cogent reason to interfere in the finding of acquittal of accused-respondents Pal Singh, Copal Singh, Bhura Singh & Jeet Singh. The prosecution has failed to prove the charges beyond reasonable doubt against Jasvir Singh and Gorkha Singh also and their appeal deserves to be allowed. 9. In the result, Appeal No. 484/96 filed by Jasvir Singh and Gorkha Singh is accepted. Their conviction and sentences under the impugned judgment are hereby set aside. The prosecution has failed to prove the charges beyond reasonable doubt against Jasvir Singh and Gorkha Singh also and their appeal deserves to be allowed. 9. In the result, Appeal No. 484/96 filed by Jasvir Singh and Gorkha Singh is accepted. Their conviction and sentences under the impugned judgment are hereby set aside. They are acquitted of the offences under sections 302, r/w 149, 307, 307 r/w 149 & 447 IPC. The bail bonds furnished by Gorkha Singh are discharged. Jasvir Singh shall be set at liberty forthwith if not required in any other case. The Appeal No. 372/97 preferred by State of Rajasthan is hereby dismissed.Petition allowed. *******