Judgment P.K.Sarkar, J. 1. This criminal appeal has been preferred against the conviction and sentence passed by 6th Additional Sessions Judge in Sessions Trial No. 415/17 of 1984, whereby he found all the nine appellants guilty under Sec. 302 read with Sec. 149 of the Indian Penal Code and convicted and sentenced each of them to undergo rigorous imprisonment for life. He also found all the accused-persons guilty under Sec. 148 of the Indian Penal Code and convicted them accordingly, but no separate sentence for the aforesaid offence has been awarded. 2. The fact, in brief, leading to this appeal are as follows: On 15-11-1979 deceased-Sheo Prasad Singh and Ram Badan Singh with some others had gone to Masaudha Khandha of village Akbaipur for guarding the harvested and standing paddy crops. At about 7 p.m., while the deceased were sitting and gossiping under a neem tree in the Khandha, the informant (P.W. 9) and Mithilesh Singh (P.W. 6) saw some people suddenly coming from the northern direction. Out of them accused Hardeo Musahar, Hari Charan Musahar, Raktoo Musahar and Hariya Musahar, who were armed with fasuli and garasa came and started indiscriminately assaulting Sheo Prasad Singh, brother of the informant. As a result of the assault, Sheo Prasad Singh fell down and died instantaneously. At or about the same time, 10 to 12 other accused-persons caught hold of Ram Badan Singh and dragged him for some distance and hacked him to death near a mango tree. Out of those 10-12 persons, who dragged and killed Ram Badan Singh, accused Chhotan Manjhi, Munshi Musahar, Lalbahadur Musahar, Gurmi Musahar, Jamun Mushahar, Parmeshwar Musahar, Rajendra Musahar and Deo Charan Musahar, and some others, who did not face the trial, were identified as assailants. These assailants were armed with lathi, bhala, garasa, etc. On the alarm raised by the informant Ram Swarup Singh (P.W. 1), Chandrama Singh (P.W. 8), and Sundar Singh (P.W. 7) arrived there. Bangali Singh (P.W. 3) and Ramadhar Singh (P.W. 2) also came there a little later. The informant apprised all of them about the incident and also acquainted them with the names of the miscreants. 3. On the same night information was lodged at Paliganj Police Station. Fardbeyan of the informant was recorded and on the basis of the said statement the formal first information report was drawn up. The informant apprised all of them about the incident and also acquainted them with the names of the miscreants. 3. On the same night information was lodged at Paliganj Police Station. Fardbeyan of the informant was recorded and on the basis of the said statement the formal first information report was drawn up. The S.I. Chhedi Prapad Singh (P.W. 11) who is the I.O. of this case, thereafter, visited the place of occurrence at about 3 a.m. on the same night the I.O. prepared the inquest report of the dead bodies (Exts. 5 & 5/1) and sent those dead bodies for post-mortem examination. The Investigating Officer also seized blood-stained earth and blood-stained clothes of the deceased and sent them for chemical examination to the Director, Forensic Science Laboratory. 4. The police after investigation of the case submitted charge-sheet against 18 accused-persons. Out of whom, two died before commitment and four were absconding. After commitment also, two accused died and, thus, the trial was taken up against ten accused-persons. Out of whom one Jaikwa alias Parmeshwar was found not guilty of the charges by the Court below and was acquitted. Rest of the accused-persons were convicted and sentenced in the manner as indicated above. 5. Being aggrieved and dissatisfied with the aforesaid order, this appeal has been preferred. 6. The defence of the appellants are of complete denial of the prosecution charges. It is further stated that in the relevant period the area in question was disturbed with Naxalite menace and the deceased were murdered by some Naxalite group. As no body had seen the actual occurrence, the accused-persons, who used to work as labourers in the field of the deceased and the witnesses, have been falsely implicated in this case due to certain differences existed between them on account of payment of daily wages. 7. The prosecution in all has examined 11 witnesses in this case. Out of whom, P.W. 1 (Ram Swaroop Singh), P.W. 6 (Mithilesh Singh) and P.W. 9 (Ram Jatan Singh) have claimed themselves as eye-witnesses of the occurrence. 8. P.W. 1 Ram Swaroop Singh has stated that on 25-11-79 at about 7.30 p.m. he was guarding the harvested paddies. Chandrama Singh, Sunder Singh, Sheo Prasad Singh and Ram Badan Singh were also present there. Sheo Prasad Singh and Ram Badan Singh were sitting under a Neem Tree and were talking among themselves. 8. P.W. 1 Ram Swaroop Singh has stated that on 25-11-79 at about 7.30 p.m. he was guarding the harvested paddies. Chandrama Singh, Sunder Singh, Sheo Prasad Singh and Ram Badan Singh were also present there. Sheo Prasad Singh and Ram Badan Singh were sitting under a Neem Tree and were talking among themselves. The night was a moonlit night. At that time, he heard alarm of Sheo Prasad Singh and Ram Jatan Singh and found Hardeo, Hari Charan, Raktoo Musahar and Hariya were assaulting Sheo Prasad Singh as a result of which he died. At that time, the assailant Hari Charan was having a garasa and others were having farsa. He further stated that Ram Badan Singh was dragged away by Lal Bahadur, Chotten, Kameshwar, Jamun, Rajendra, Deo Charan Siyasaran, Jagganand and Gulmi towards west. On their alarm, Ramadhar Singh, Bangali Singh, Lallan Singh reached there. The accused-persons ran away after committing murder of both the deceased. 9. P.W. 6 Mithilesh Singh has also supported the aforesaid statement of P.W. 1 in-as-much as he has also stated that on 25-11-79 at about 7.30 p.m. in the evening, Sheo Prasad Singh arid Ram Badan Singh were talking among themselves while they were guarding the harvested paddies. These witnesses were also guardian their own harvested paddies when Hari Dusadh, Hari Charan, Har Deo Musahar and Raktoo came there, Hari Dusadh was armed with a garasa and the rest three were armed with Fasuli and they dragged away Ram Badan Singh and killed him. He also identified Deo Charan, Jamun, Siyasharan, Jaggan, Rajendra, Lal Bahadur, Kameshwar Musahar Gulmi and Chottan who were armed with lathi and garasa. On their alarm, many persons reached there and he named some of them. He has further stated that he identified the accused-persons in torch, light and also in the moon light. 10. P.W. 9, Ram Jatan Singh, has also stated that on 6-11-79 at 7 p.m., he was also guardian the harvested paddies. He was having a lathi and a torch when he found Har Deo Musahar, Hari Charan Musahar, Raktoo Musahar and Hariya Musahar came and assaulted his brother Sheo Prasad Singh as a result of which he fell down and died. At the same time, another 10 to 12 persons dragged away Ram Badan Singh under a mango tree and also committed his murder there. At the same time, another 10 to 12 persons dragged away Ram Badan Singh under a mango tree and also committed his murder there. Out of whom, Ram Jatan Singh identified Lal Bahadur, Jamun Musahar, Chottan Musahar, Kameshwar Musahar, Deo Charan Musahar, Siyasaran Musahar, Munshi Musahar, Jaggan Musahar and Gulmi Dusadh, etc. He also identified the accused-persons in the torch light. He has also stated that in the same night he went to the police station where his statement was recorded by the S.I. which was read over and explained to him and he put his signature which has been marked as Ext. 2. 11. From the evidence of these three eye-witnesses, it, therefore, appears that all of them have claimed that they were guarding their respective harvested paddies. Sheo Prasad Singh, brother of the informant and Ram Badan Singh were also gossiping nearby when some persons came and assaulted Sheo Prasad Singh and committed his murder. Some people also dragged away Ram Badan Singh and committed his murder. It is said that out of these persons, they identified Har Deo Musahar, Hari Charan Musahar, Raktoo Musahar and Hariya Musahar as the assailants of Sheo Prasad Singh ; and Lal Bahadur, Jamun Musahar, Chotan Musahar, Kameshwar Musahar, Deo Charan Musahar, Siyasaran Musahar, Munshi Musahar, Jaggan Musahar and Gulmi Dusadh as the persons who dragged Ram Badan Singh and committed his murder. 12. The learned Counsel appearing on behalf of the appellants submits that from the statements of these witnesses, it is clear that they were at a distance from the deceased-persons and the time was evening. These witnesses, have also claimed to have identified the accused-persons in the moon light and also in the light of torch. From the evidence of these witnesses, it also appears that a number of persons came with the accused-appellants at the time of occurrence. It is, therefore, does not appear feasible to identify the accused-persons by these witnesses amongst such large number of persons specially, in the darkness of the night. A reasonable suspicion, therefore, arises on the point of identification of the accused-persons by these witnesses. 13. In his cross-examination P.W. 1, Ram Swaroop Singh, has stated that he was at a distance of 25 yards from the place of occurrence. He has also stated that he had constructed a hut at that place for sitting there to guard the paddies. 13. In his cross-examination P.W. 1, Ram Swaroop Singh, has stated that he was at a distance of 25 yards from the place of occurrence. He has also stated that he had constructed a hut at that place for sitting there to guard the paddies. He has also stated that the neem tree under which Sheo Prasad Singh and Ram Badan Singh were sitting was an old tree, about forty years old and which was having spread its branches/leaves in an area of about 5 yards diameter. 14. The learned Counsel for the appellants, therefore, submits that a tree having such a diameter and density must have created darkness beneath it. It was, therefore, not possible for this witness to identify the accused-persons from a distance of about 25 yards. It is also not expected that moon light can come beneath the tree and can light the area so that faces can be identified. 15. P.W. 6 has stated that he did not give the torch to the S.I. He has also stated that Ram Swaroop Singh (P.W. 1) told about the occurrence to others. Since a suspicion arises on the fact whether P.W. 1 himself saw the occurrence properly, his statement before Ramadhar Singh and Bangali Singh, etc. loses much of its value. In his cross-examination, P.W. 6 has also stated that he showed his torch to S.I. but he did not keep it and told him to keep the same with him. He has also stated that Sheo Prasad Singh was assaulted near the root of the neem tree. He could not say whether the accused-persons were lighting any torch. He has also stated that Ram Badan Singh was also assaulted near an Aam (Mango) tree which is at a distance of about is steps from that place. He has also stated that many persons of the village came to the place of occurrence but he did not say the names of the accused-persons to them. P.W. 9 who is brother of one of the deceased has also stated in his cross-examination that when he saw the accused-persons for the first time they were going towards north and west. At that time, his brother and Ram Badan Singh were at a distance of about 10-15 steps from that place. He did not warn his brother or Ram Badan Singh. At that time, his brother and Ram Badan Singh were at a distance of about 10-15 steps from that place. He did not warn his brother or Ram Badan Singh. He said that the entire occurrence finished within five minutes. When he lit the torch 3-4 accused-persons rushed towards him for assaulting him, So he switched off the torch and ran towards back. This shows that this witness had very little opportunity to see the accused-persons in the torch light. This witness has, however, denied the fact of increase of extremists elements in the area, 16. The learned Counsel for the appellants submitted that from the aforesaid statements of the witnesses in their cross-examination, a natural doubt arises regarding their identification of the accused-persons mainly for three reasons. Firstly, the time was in the night. Secondly, both the deceased were beneath a neem tree which was 40 years old having five yards diameter and, thus, must have created such a darkness that it was not possible for the moon light to come under it. Thirdly, so far, the identification of torch light is concerned, no torch was, admittedly, seized by the S.I. during investigation. This creates a doubt whether these witnesses were actually having any torches. Moreover, from the statements of the witnesses themselves, it also appears that at the time of occurrence there was little opportunity for them to identify the accused-persons in the torch-light. This is an admitted position of law that unless means of identification is seized and produced before the Court very little reliance can be placed on such statements. 17. In view of the facts stated above, suspicion arises on the identification of the accused-persons by these witnesses. P.W. 2, Ramadhar Singh, also heard the noise at the time of occurrence and found 15-20 persons running away towards the Musahar Toli. He further stated that when he went towards the place of occurrence, he found Sheo Prasad Singh and Ram Badan Singh lying dead having some injuries and learnt that the accused-persons committed their murder. He has stated that he along with others went to the police station in the night and informed about the occurrence. The S.I. recorded the statement of Ram Jatan Singh who put his signature on it. Ramadhar Singh Singh and Lallan Singh had also put their signatures on that statement. P.W. 2 has proved their signatures as Exts. He has stated that he along with others went to the police station in the night and informed about the occurrence. The S.I. recorded the statement of Ram Jatan Singh who put his signature on it. Ramadhar Singh Singh and Lallan Singh had also put their signatures on that statement. P.W. 2 has proved their signatures as Exts. 1 & 1/1 respectively. S.I. had also recorded the statement of Ramadhar Singh there. Two inquest reports of the deceased were prepared by the S.I. on which Ramadhar Singh, Lallan Singh and Mukhiya put their signatures. Ramadhar Singh proved his signatures on the said papers as Exts. 1/2 & 1/3. He also proved his signatures on the seizure list as Ext. 1/4. Admittedly, this witness is not an eye-witness but reached the place of occurrence just after the occurrence. He did not name the persons whom he saw running towards the Musahar Toli. He has admitted in his cross-examination that his field is at a distance of 250 yards from the place of occurrence. He has also clearly stated that he could not identify any of these persons. 18. P.W. 5, Lallan Singh, has stated that after hearing hulla, he went to the place of occurrence along with Chawkidar. He has further stated that he along with Ram Jatan Singh, Ramadhar Singh, Bangali Singh and Chawkidar Jalim Yadav went to the police station the same night. On next day morning S.I. came to the place of occurrence. Admittedly, he (P.W. 5) is also not an eye-witness. He has also denied that he told that at the time of occurrence, there increase in extremist elements in their area. 19. P.W. 3, Bangali Singh, P.W. 4, Chawkidar Jalim Yadav, P.W. 7, Sunder Singh & P.W. 8 Chandrama Singh have been tendered by the prosecution. There are nothing of importance in their cross-examination also. 20. P.W. 10, Md. Shamshul Haque is the doctor who conducted the post-mortem examination on the dead bodies of the deceased. 19. P.W. 3, Bangali Singh, P.W. 4, Chawkidar Jalim Yadav, P.W. 7, Sunder Singh & P.W. 8 Chandrama Singh have been tendered by the prosecution. There are nothing of importance in their cross-examination also. 20. P.W. 10, Md. Shamshul Haque is the doctor who conducted the post-mortem examination on the dead bodies of the deceased. He has stated that on 27-11-79, while he was posted at Sub-divisional Hospital, Danapur., he held post-mortem examination on the dead body of Ram Badan Singh S/o Sita Ram Singh of village Akbarpur P.S. Paliganj and found the following ante-mortem injuries: (i) Incised wound 5" x 3" bone deep starting from the right side of the neck running across the left side of neck with evidence of bleeding ; (On dissection, cutting the soft tissue, blood vessels and cervical vertebra.) (ii) Incised wound 1" x 1/2" x bone deep on the left side of forehead with fracture of frontal bone. (iii) Incised wound 2" x 1/2" x bone deep on the left parietal region of scalp canning interio posteriorily. (iv) Incised wound 1 1/2" x 1/2" x bone deep on the left parietal region of scalp by the side of injury No. 3. (v) Incised wound 1" x 1/2" bone deep just below the spinal cord of clavicle. He has also sated that rigor mortis was present. Greenish discoloration of left Iliac fossa. Decomposition had started. Post-mortem staining present parts. In his opinion, death was due to shock and haemorrhage resulting from the above injuries particularly, injury No. 1. P.W. 10 has also stated that the injuries were caused by sharp-cutting weapons may be garasa, phalsa. Time passed since death about 38 hours. He has further stated that on the same day at 9. a.m. It held post-mortem examination on the dead body of Sheo Prasad Singh s/o Jageshwar Singh of the same address and identified by the same person and found the following injuries on the person: (i) Incised wound 6" x 2" x bone deep starting from the left paroted region to the back of neck. (On dissection cutting the left mandibular bone, body of cervical verbetra, soft tissues and blood vessel.) (ii) Incised wound 5" x 1/2" x bone deep running from the middle of left eye-brow to left ear. Evidence of bleeding present. On dissection cutting the soft tissues, blood vessels and underlying tissue. (On dissection cutting the left mandibular bone, body of cervical verbetra, soft tissues and blood vessel.) (ii) Incised wound 5" x 1/2" x bone deep running from the middle of left eye-brow to left ear. Evidence of bleeding present. On dissection cutting the soft tissues, blood vessels and underlying tissue. (iii) Incised wound 3" x 2" on the left side of neck starting from its middle to the back of the neck. On dissection injury is running transversly cutting soft tissues, blood vessels and body of cervical vertebra. (iv) Incised wound 3" x 1/2" x soft tissue deep starting from the front of neck to the middle of left of the neck. On dissection cutting the soft tissues, blood vessels and tracheal ring just below epiglottis. (v) Incised wound 2" x 1" x bone deep running above down on the back of neck with evidence of bleeding. (vi) incised wound 2 1/2" x 1" x muscle deep on the back of left arm running above down with corresponding cut on the sedealer. P.W. 10 has stated that rigor mortis was present. Greenish discolouration of left Iliac fossa. Decomposition started. Post-mortem staining present on the dependent parts. In his opinion, death was due to shock and haemorrhage resulting from the above injuries, particularly, injury Nos. 1 to 3. The injuries were caused by sharp-cutting weapon may be gamsa and fasuli. Time passed since death about 38 hours. He has proved the post-mortem reports which were prepared by him as Exts. 3&3/1. Thus, as per P.W. 10 the death of both the persons of those dead bodies he conducted post-mortem was homicidal and due to certain ante-mortem injuries as mentioned in his report. 21. P.W. 11, Chhedi Prasad Singh, who is the I.O. of this case, in his evidence has described the place of occurrence as a garden of Fauzdar at a distance of 800/900 yards on the south west of Akbarpur. At a distance of about fifteen feet from the road on the western side, there is a neem tree under which the dead body of Sheo Prasad Singh was found. He has stated that at a distance of thirty yards from this place near an Aam tree the dead body of Ram Badan Singh was found. He also said that in both the places, he found sufficient blood which shows that the assailants had committed the murder there. He has stated that at a distance of thirty yards from this place near an Aam tree the dead body of Ram Badan Singh was found. He also said that in both the places, he found sufficient blood which shows that the assailants had committed the murder there. The I.O. has also stated that he prepared inquest reports in carbon copies for the above two dead bodies which have been marked as Exts. 5 & 5/1. He has also proved Ext. 6 the carbon copy of the forwarding letter by which he sent the seized materials for their chemical examination to Forensic Science Laboratory. In his cross-examination, he has also stated that he took the statements of Ramadhar Singh but he did not say that Ram Swaroop (P.W. 1) and Chandrama told him about the names of accused-persons. This also cast a natural doubt regarding the fact whether Ram Swaroop Singh (P.W. 1) had told the names of the accused-persons. Similarly, P.W. 11 has also stated that he took the statement of Lallan Singh (P.W. 5) who did not tell before him that Chandrama Singh and Ram Swaroop Singh told the names of the accused-persons before him. He could not say whether Mithilesh Singh (P.W. 6) produced any torch before him or claimed that he identified the accused-persons in torch-light. 22. From the evidence of aforesaid witnesses, it is quite clear that both the deceased sheo Prasad Singh and Ram Badan Singh were found lying dead in a pool of blood on the day and time of occurrence. From the evidence of P. W. 10, who is the doctor, it is clear that a number of incised injuries were found on their bodies as a result of which their death occurred. This fact clearly shows that the death of these two persons were homicide and they were assaulted which resulted in their death. From the evidence of the aforesaid witnesses, it will also appear that a number of persons attacked these two deceased with arms at the time of occurrence resulting in their death. P.Ws. 1, 6 & 9 have only claimed that they have seen the occurrence, P.Ws, 2 & 5 claimed that they came to the place of occurrence and learnt about the names of the accused-persons from Ram Swaroop Singh and Chandrma Singh. P.Ws. 1, 6 & 9 have only claimed that they have seen the occurrence, P.Ws, 2 & 5 claimed that they came to the place of occurrence and learnt about the names of the accused-persons from Ram Swaroop Singh and Chandrma Singh. Their attention was drawn towards their statements before the police and they in their cross-examination had accepted that they told that Ram Swaroop Singh and Chandrama Singh told them the names of the accused-persons. But the I.O. who is P.W. 11 has denied that these persons told this fact before him. Thus, their statements about the learning of the names of the accused-persons from Ram Swaroop and Chandrama Singh are not corroborated by the I.O. (P.W. 11), This raises a doubt in their aforesaid statements. P.Ws. 3, 4, 7 & 8 were tendered by the prosecution. So, their evidence are not of much importance. P.Ws. 1, 6 & 9 have claimed themselves as eye-witnesses who are relations. Out of whom P.W. 9 is the informant, who is the brother of the deceased Sheo Prasad Singh, and, admittedly, interested in the prosecution case. Moreover, as discussed above, the evidence of these witnesses on the point of the identification of the accused-persons in the darkness of the night, particularly, under a big tree raises a clear doubt. The means of identification which is a torch and said to be produced before the S.I. was not seized nor produced in the Court. 23. Accordingly, it appears that though the fact of death of Sheo Prasad Singh and Ram Badan Singh on the day and time of occurrence is established, the prosecution has failed to establish the fact beyond all shadow of reasonable doubt that the accused-appellants along with some others by forming an unlawful Assembly and with common intention committed the murder. Thus, both the charges under Sec. 302 read with Secs. 149 and 148, I.P.C. have not been established against the accused-appellants beyond all shadow of reasonable doubt. I, therefore, find that all the accused-appellants are entitled for benefit of doubt. In view of the facts stated above, I find, there are material contradictions/irregularities in the impugned Judgment for which the same cannot be sustained. 24. In the result, this appeal is allowed and the conviction and sentence passed by the learned Court below is set-aside. The accused-appellants are, therefore, acquitted from their respective charges. In view of the facts stated above, I find, there are material contradictions/irregularities in the impugned Judgment for which the same cannot be sustained. 24. In the result, this appeal is allowed and the conviction and sentence passed by the learned Court below is set-aside. The accused-appellants are, therefore, acquitted from their respective charges. All the accused-appellants are on bail. Hence, they are discharged from the liabilities of their bail-bonds. R.N.Sahay, J. 25 I agree.