M. C. JAIN, J. All these three appeals arise from the judgment and order dated 11-8-1979 passed by the Sri R. C. Verma, the III Addl. Sessions Judge, Aligarh in S. T. No. 63 of 1978 connected with S. T. No. 64 of 1978 and S. T. No. 65 of 1979. By the said judgment, the trial Court convicted the accused-appellants Har Prasad and Niranjan of Criminal Appeal No. 2397 of 1979 under Section 302 read with Section 34 I. P. C. and sentenced each of them to undergo life imprisonment. Government Appeal No. 3084 of 1979 has been filed by the State against Dalveer alias M. L. A. who faced trial before the trial Court, but was acquitted. Another Government Appeal No. 3086 of 1979 has also been filed by the State of U. P. against the accused Ram Prakash, who too, was acquitted by the learned trial Court. Thus, one appeal has been filed by two convicted persons whereas other two connected appeals have been preferred by the State against the acquittal of the other two. The appellant Har Prasad of Criminal Appeal No. 2397 of 1979 died in 1983 as per the report of the C. J. M. concerned dated 13-3-2002 and as such, the appeal abates of so far as he is concerned. 2. The relevant facts, as per the F. I. R. and evidence, may be stated briefly. The accused Har Prasad, Ram Prakash and Niranjan were named in the F. I. R. whereas Dalveer alias M. L. A. came to light during investigation and was put up for identification. There was enmity between Har Prasad, Ram Prakash and Niranjan on one side and the deceased Raghubir Singh on the other. The incident took place in between the night of 8/9-8- 1977 at about 12. 00 Oclock in village Haibatpur Phagoi, P. S. Lodha, District Aligarh. The report was lodged on 9-8-1978 at 7. 30 a. m. at Police Station Lodha, District Aligarh. The distance from the place of incident to the Police Station was 6-1/2 miles. The informant, P. W. 1 Roop Ram Singh is the uncle of the deceased. Har Prasad had borrowed Rs. 2,500/- from the complainant Roop Ram Singh and had executed a pronote in lieu thereof. 30 a. m. at Police Station Lodha, District Aligarh. The distance from the place of incident to the Police Station was 6-1/2 miles. The informant, P. W. 1 Roop Ram Singh is the uncle of the deceased. Har Prasad had borrowed Rs. 2,500/- from the complainant Roop Ram Singh and had executed a pronote in lieu thereof. Three days before the incident, Raghubir Singh deceased, who was the nephew of the deceased, stiffly reminded Har Prasad for the payment of the loan. Har Prasad refused to repay. Raghubir Singh retorted that he would take legal steps to recover the money and he would have to bear the insult. Har Prasad then told the deceased that he would not leave him alive to realize any loan. 3. Raghubir Singh had purchased some agricultural land from Chheda, the real uncle of Niranjan and Ram Prakash accused, who wanted to have that land and they were greatly annoyed due to the purchase of the land of Cheda Lal by the deceased. Niranjan and Ram Prakash are real brothers. 4. In the fateful night, Raghubir Singh slept in the verandah of his Baithak. Beside the deceased on the two cots, P. W. 1 Roop Ram Singh informant and P. W. 3 Gajendra Pal Singh were sleeping. Gajendra Pal Singh is the brother-in-law of Veerpal, who is the real brother of the deceased Raghubir Singh. A glowing lantern was hanging there. The named accused Har Prasad, Niranjan and Ram Prakash with two others appeared there. The witnesses awoke at the barking of dogs and very well identified the said three accused persons near the cot of Raghubir along with two unknown persons. Har Prasad and Niranjan were armed with country made pistols while Ram Prakash had a gun. Other two unknown companions had spears. Saying that payment of Raghubir Singh be made, Har Prasad dragged the deceased from the verandah to the Baithak. Ram Prakash and Niranjan followed him while two unknown companions remained as guards near the cots of the witnesses. A number of shots were heard by the witnesses being fired inside the Baithak. At that time, one of the unknown persons also went inside the room and came out quickly. P. W. 5 Shakuntala Devi, real sister of the deceased, also witnessed the incident. 5. On the lodging of the F. I. R. a case was registered and investigation followed as usual. At that time, one of the unknown persons also went inside the room and came out quickly. P. W. 5 Shakuntala Devi, real sister of the deceased, also witnessed the incident. 5. On the lodging of the F. I. R. a case was registered and investigation followed as usual. The post- mortem over the dead body of the deceased was conducted by P. W. 18 Dr. S. K. Saxena on 10-8-1977 at 2. 30 p. m. The deceased was aged about 35 years and 1-1/2 day had passed since he died. The following ante mortem injuries were found: (1) Gunshot wound of entry, 2/10" x 2/10" on the left cheek in front of left ear. The margins were black one mm all around the wound. The wound was directed upwards and to the right. A hole was present on both sides of upper jaw. (2) Gunshot wound of exit 4/10" x 4/10" on the right side of neck. 1/4" below the right ear. It was exit wound of injury No. 1. (3) Gunshot wound of entry on the right side of neck in outer and middle part, 2/10" x 2/10" and was directed downwards and outwards towards left side. (4) Gunshot wound of exit, 4/10" x 4/10" on the left inter scapula region on upper part. It was exit wounds of no. injury 3. Oesophagus was found lacerated through and through under this injury. The shot had travelled in the subcutaneous tissues and it did not enter the left lung or left pleural cavity. (5) 40 gunshot wounds of entry, on the right parietal region of scalp, in an area of 6" x 6". Each wound was 1/10" x 1/10". Its depth could not be probed. (6) Incised wound of 1" x 1/10" x skin deep, on the middle of right cheek. (7) Abrasion 1/2" x 1" on right side of the face 1/2" below the right eye. (8) Gunshot wound of entry, 2/4" x 1-1/2" on right arm, on outer and middle part. The skin was black and scorched for half an inch all around the wound. The wound was directed inwards. The cause of death was coma and shock resulting from fire-arm injuries. 6. The accused Dalveer came to light during investigation and was arrested on 17-10-1977. He was put up for identification on 8-12- 1977. The skin was black and scorched for half an inch all around the wound. The wound was directed inwards. The cause of death was coma and shock resulting from fire-arm injuries. 6. The accused Dalveer came to light during investigation and was arrested on 17-10-1977. He was put up for identification on 8-12- 1977. He was identified by P. W. 1 Roop Ram Singh and P. W. 3 Gajendra Pal Singh, as one of the participants in this crime. 7. Har Prasad and Niranjan came to be aggrieved by their conviction and sentence whereas the State has ventilated its grouse against the acquittal of Ram Prakash and Dalveer. 8. We have heard the learned Counsel for the convicted appellants and learned A. G. A. in opposition of their appeal as also in support of two State appeals. Learned Counsel representing the respondents in the Government appeals has also been heard. The main thrust of learned Counsel for the convicted appellants has been that actually it was a case of dacoity committed by unknown persons and the prosecution side nominated Har Prasad, Niranjan and Ram Prakash along with two unknown persons out of suspicion and because of the earlier background. 9. We now propose to deal with the relevant aspects of the matter keeping in view the arguments advanced before us. We wish to point out at the initial brunt of the matter that quick igniting cause assigned by the prosecution for this incident does not stand to logic. It would be recalled that the background is said to be that the accused Har Prasad had borrowed Rs. 2,500/- from the deceased or Roop Ram Singh after executing a pronote and had not repaid the loan. About 2-3 days before the incident, the deceased made a stiff demand from him and on the refusal of the accused Har Prasad, exchange of hot words took place between the two. Raghubir Singh deceased held out that he would seek the remedy in the Court for the recovery of the amount. However, P. W. 1 Roop Ram Singh who lodged the F. I. R. and who is uncle of the deceased stated in his cross-examination that the pronote had been executed on 7-5-1973 and that on being required to renew the pronote Har Prasad accused was whiling away time on different pretexts. However, P. W. 1 Roop Ram Singh who lodged the F. I. R. and who is uncle of the deceased stated in his cross-examination that the pronote had been executed on 7-5-1973 and that on being required to renew the pronote Har Prasad accused was whiling away time on different pretexts. It is thus obvious that the pronote in possession of the deceased had become time barred when the incident had taken place and the action on the basis of the same could not be possible in the Court of law. Perhaps, it was for this reason that the deceased wanted the renewal of the pronote, pressurizing Har Prasad on moral grounds. But the deceased had not done anything to incur the displeasure of the accused Har Prasad which could have impelled him to go to the extremity of cutting short the life of Raghubir Singh. He had not repaid the loan and he had refused to repay the same 2-3 days before the incident on being pressed by the deceased. The deceased could not file the suit on the basis of the pronote as the same had become time barred. Thus, Har Prasad had an upper edge, as the matter stood. Under these circumstances, the murder of Raghubir Singh on this score was almost impossible, what to say of remote possibility. 10. That apart, the manner in which the incident is said to have taken place is somewhat incongruous. As per the prosecution case and the evidence adduced in the trial Court, the victim and two witnesses Roop Ram Singh and Gajendra Pal Singh were sleeping in the verandah when the three named accused with two unknown persons appeared there with weapons. Raghubir Singh was, however, murdered inside the room where he was allegedly dragged. It is to be noted that the dead body of the deceased did not have any injury marks which would have normally been there as a result of dragging. There was simply an abrasion 1" x 1" on the face of right 1/2" below outer right eye. It could not be in consequence of dragging. Further, two strangers also allegedly joined and participated in this incident. It sounds to be unnatural keeping in view the background advanced by the prosecution. There was simply an abrasion 1" x 1" on the face of right 1/2" below outer right eye. It could not be in consequence of dragging. Further, two strangers also allegedly joined and participated in this incident. It sounds to be unnatural keeping in view the background advanced by the prosecution. Moreover, it has to be kept in mind that in case the assailants simply wanted to murder Raghubir Singh, ever sparing the witnesses sleeping nearby in the verandah, they could have accomplished the job in verandan itself in no time as they were armed deadly weapons including fire-arms and there could hardly be any necessity of dragging the victim inside the room. 11. Coming to the eye-witnesses, we find that P. W. 4 Nihal Singh was not named in the F. I. R. and he was examined by the Investigating Officer after inordinate delay of two months without there being any plausible and acceptable explanation in this behalf. Keeping aside his testimony there remains the testimonial assertions of P. W. 1 Roop Ram Singh informant (uncle of the deceased), P. W. 3 Gajendra Pal Singh brother-in-law (Sala) of Veer Pal brother of the deceased and P. W. 5 Shakuntala Devi real sister of the deceased. Assuming that a glowing lantern was hanging on a hook in the wall of the verandah where the deceased. P. W. 1 Roop Ram Singh and P. W. 3 Gajendra Pal Singh were sleeping, a look at the topography of the place of the incident indicates that it could hardly be possible for P. W. 5 Shakuntala Devi to have seen and identified the assailants from point E-main gate of the house of the complainant, situated on the western side across the Kachcha Road wherefrom she claims to have witnessed the incident. Light of the lantern glowing in the verandah could hardly be available to her to facilitate the recognition of the assailants. So far as P. W. 3 Gajendra Pal Singh is concerned, he has claimed that he used to reside with his sister-wife of Veerpal, as he was student in D. S. College, Aligarh wherefrom he used to go to join the college. According to him, 8-8-1977 was the first day of the start of the classes. The incident itself took place in the night of 8/9-8- 1977. Thus, he was a chance witness besides being the relative of the deceased. According to him, 8-8-1977 was the first day of the start of the classes. The incident itself took place in the night of 8/9-8- 1977. Thus, he was a chance witness besides being the relative of the deceased. It has also been stated by him in his cross- examination that he was using spectacles since the age of 14 years and even in day time, without spectacles he could see only upto a distance of 10- 12 paces. Of course, he added that he used to keep spectacles near his bed and when he had awoken in the night of the incident, he had put on his spectacles. It is not beyond doubt that with weak eyesight he would have seen and identified three assailants in a moment of crisis at a place where he happened to be present by chance. P. W. 1 Roop Ram Singh, who is the uncle of the deceased, is an interested and partisan witness being involved in the money transaction related to accused Har Prasad. Five persons had allegedly come duly armed to murder Raghubir Singh over the past background of money transaction. Then, in all probability, P. W. 1 Roop Ram Singh who was so closely associated with the alleged money transaction could not have been spared unharmed. 12. It is also gleaned from the testimony of P. W. 1 Roop Ram Singh that Raghubir was doing money lending business also. 13. The murder of Raghubir Singh could be during an attempt of dacoity (by unknown persons) which could not be accomplished. 14. There is yet another aspect of the matter that the deceased received incised wound also (ante mortem injury No. 6 as per the post mortem report) and there is no satisfactory explanation in this behalf. Initially, the case of the prosecution was that two persons armed with spears kept standing as guards near the cots of the witnesses, Roop Ram Singh and Gajendra Pal Singh. It appears that subsequently the case came to be improved at the evidence stage before the trial Court that one of the unknown persons armed with spears had gone inside the Baithak and returned quickly. It appears that subsequently the case came to be improved at the evidence stage before the trial Court that one of the unknown persons armed with spears had gone inside the Baithak and returned quickly. It was introduced through the cross-examination of P. W. 1 Roop Ram Singh and thereafter in examination-in- chief of P. W. 3 Gajendra Pal, obviously with a purpose to bring the evidence in harmony with the medical evidence so as to explain the incised wound sustained by the deceased. 15. On overall consideration, we veer around the conclusion that greater possibility is of the unknown assailants having participated in this incident at the dead of night and murdered Raghubir Singh inside the room where he was sleeping and the witnesses have implicated the accused persons out of suspicion only. 16. We would, therefore, allow the Criminal Appeal No. 2397 of 1979 filed by the accused Har Prasad and Niranjan. It would be recalled that appeal has abated in respect of the appellant Har Prasad who has died. Resultantly, the appellant Niranjan in Criminal Appeal No. 2397 of 1979 would be acquitted. 17. Now, we intend to consider the Criminal Appeal No. 3084 of 1979 (State of U. P. v. Dalveer alias M. L. A.), related to the acquittal of Dalveer in S. T. No. 65 of 1978. He was not named in the F. I. R. and the case against him rested on identification. He was arrested on 17-10-1977 and was put up for identification on 8-12-1977. No description of his features or built up was given in the F. I. R. Identification is weak type of evidence and loses much of its significance if the identification is done after lapse of such time, as has been the case here. The prosecution case was that he was one of the two unknown persons who participated in this crime and they were alleged to have been armed with spears. They kept standing as guards near the cots of the prosecution witnesses in the verandah. The known and named accused had allegedly fire-arms who dragged the deceased inside the room where injuries of fire- arms were caused to him as per the prosecution case. Subsequently, it was introduced through evidence in the Court that one of the unknown persons also went inside the room where the victim had been dragged and shot at. He came back quickly. Subsequently, it was introduced through evidence in the Court that one of the unknown persons also went inside the room where the victim had been dragged and shot at. He came back quickly. At his identification parade, Dalveer had allegedly been identified by P. W. 1 Roop Ram Singh, Mahipal Singh and P. W. 4 Nihal Singh. Mahipal Singh was not produced at the trial as a witness and as we have observed a little earlier, the testimony of P. W. 4 Nihal Singh, who was not named in the F. I. R. has rightly been discarded by the trial Court. It leaves us only with the single identification testimony of P. W. 1 Roop Ram Singh, which cannot be deemed to be sufficient to warrant his conviction. Moreover, this accused was allegedly arrested with pistol of 455 bore and one live cartridge besides a knife of prohibited size. The pistol which was recovered from this accused and the empty cartridges recovered from the place of occurrence were sent to the Ballistic Expert. The report was that empty cartridges had been fired from this pistol, but it has to be kept in mind that it has not been the prosecution case at any stage that the accused Dalveer was armed with fire-arm. Therefore, the question of his opening shot at the spot from the pistol recovered from him could hardly arise. Judged from this angle also, the prosecution evidence against him was like a square peg in a round hole. The lower Court, in our view, was perfectly justified in recording acquittal so far as he is concerned and we see no merit in the Government appeal filed on behalf of the State against him. 18. It leads us to consider the Government Appeal No. 3086 of 1979, related to the acquittal of the accused Ram Prakash. The evidence of accused was not used in this occurrence as it was deposited with police from before. Unsuccessful attempt was made by the prosecution to connect the empty cartridges of 12 bore collected from the place of occurrence with the said gun. Indeed, there could hardly be any connection between the gun of the accused Ram Prakash and the cartridges of 12 bore collected from the place of occurrence as his gun was deposited with the police. Unsuccessful attempt was made by the prosecution to connect the empty cartridges of 12 bore collected from the place of occurrence with the said gun. Indeed, there could hardly be any connection between the gun of the accused Ram Prakash and the cartridges of 12 bore collected from the place of occurrence as his gun was deposited with the police. The trial Judge was perfectly justified affording the benefit of doubt to the accused Ram Prakash. The result is that we do not see any merit in this Government Appeal No. 3086 of 1979 (State of U. P. v. Ram Prakash) also filed against acquittal of accused Ram Prakash. 19. Summarising our conclusion, we allow the Criminal Appeal No. 2397 of 1979 and acquit the accused appellant Niranjan. The appeal has already abated so far as other accused-appellant Har Prasad is concerned, as he has died. 20. The Government Appeal No. 3084 of 1979 and Government No. 3086 of 1979 are hereby dismissed. 21. Let a copy of this judgmen2t along with record of the case be immediately sent to Court below for necessary entries in the relevant register under intimation to this Court within one month. Crl. Appeal No. 2343 allowed rest dismissed. .