U. S. TRIPATHI, J. ( 1 ) THE appellants Abdul Hafij Khan. Smt. Shakila Bano. Smt. Sahrunnisa and Siraj Khan have preferred this appeal against the judgment and order dated 18/4/1981 passed by Sri. N. S. Gahlaut, the then VIIth Additional Sessions Judge. Allahabad in S. T. No. 257 of 1980. convicting the appellants under Section 302 read with Section 34 I. P. C. and Section 307 read with 34 I. P. C. and sentencing them to undergo imprisonment for life under Section 302 read with Section 34 I. P. C. and RI. for a period of three years under Section 307 read with Section 34 I. P. C. Both the sentences were ordered to run concurrently. ( 2 ) THE prosecution story, briefly stated. was as under: appellant Abdul Hafij Khan was an Amin in Irrigation Department and was residing in Canal Colony situated at Kasba Koraon. P. S. Koraon, district Allahabad. Smt. Saharunisa appellant was wife of appellant Abdul Hafij Khan and was also residing with him. Smt. Shakila Bano appellant was the daughter and Siraj Khan appellant was son-in-law of Abdul Hafij Khan. Smt. Shakila Bano and Siraj Khan had also came to the quarter of Abdul Hafij Khan appellant and were residing there. Appellants Abdul Hafij Khan and Smt. Saharunisa had three sons namely Shams ad Ali Khan, deceased aged about 7 years. Naushad Ali Khan deceased, aged about 4 years and Saukat Ali Khan aged about 3 years. ( 3 ) RAM Hujur Yadav (P. W. 3) was Clerk in Irrigation Department and was also riding in said colony. Shyam Mohan Airan (P. W. 1) Assistant Engineer/s. D. O. was also residing in said colony. ( 4 ) ON 27/10/1978 at about 12. 00 noon an Ajant was announced from the quarter of Abdul Hafij Khan appellant. Since it was not usual time of performing Namaz. Habib Ullah alias Gullhar (PW. 4) who had gone to the house of Buddhi Ram, Overseer in the Canal Colony reached to the house of appellants to know why Ajan was being announced at unusual time. He peeped into the window of the house of the appellants and saw that Smt. Shakila Bano appellant was beating elder son of Abdul Hafij Khan with a Fookani (small pipe meant for igniting fire ). Abdul Hafij Khan his wife and Siraj Khan were also present there. He peeped into the window of the house of the appellants and saw that Smt. Shakila Bano appellant was beating elder son of Abdul Hafij Khan with a Fookani (small pipe meant for igniting fire ). Abdul Hafij Khan his wife and Siraj Khan were also present there. Abdul Hafij Khan had caught hold the above boy and his wife and son-in-law were standing there. Abdul Hafij Khan appellant throttled the neck of the boy and he died. Thereafter, Smt. Shakila Bano appellant and Abdul Hafij Khan repeated same act with another boy who also died. Observing it Babib Ullah (P. W. 4) became frightened and started running. While leaving the spot he also heard utterance boy would become alive. Ram Hujur Yadav (P. W. 3) Head Clerk in the Office of Belan Canal Division observed crowd in front of the quarter of the Abdul Hafij Khan. He went there and observed that two boys have died and were lying on the Charpai and one boy was lying near the daughter of Abdul Hafij Khan (Smt. Shakila Bano ). Smt. Shakila Bano was uttering some thing in some unknown language and Abdul Hafij Khan appellant was saying that two boys who have died would become alive on sacrifice of third one. Sir Shyam Mohan Airan (P. W. 1) returned from tour at about 7. 00 P. M. quarter of Abdul Hafij Khan. He called Head Clerk Ram Hujur Yadav and enquired about the crowd. He told that some evil spirit had come on the daughter of Abdul Hafij Khan. Thereafter. Sri Syam Mohan Airan (P. W. 1) called B. P. Singh and Sri. RR Singh Junior Engineers and went to the house of appellants along with them. There he observed that two boys were lying dead on the Charpaiand one boy was lying in veranda. The daughter of Abdul Hafij Khan had caught hold of hairs of the boy and was reciting something. Abdul Hafij Khan appellant was saying that the two boys have been sacrificed to please the god and they would become alive after some time. Wife of Abdul Hafij Khan appellant and his son-in-law were also present there. ( 5 ) SRI. Shyam Mohan Airam (P. W. 1) dictated report to Ram Hujur Yadav (P. W. 3) which was fairly drafted by Sri. Wife of Abdul Hafij Khan appellant and his son-in-law were also present there. ( 5 ) SRI. Shyam Mohan Airam (P. W. 1) dictated report to Ram Hujur Yadav (P. W. 3) which was fairly drafted by Sri. B. R. Singh Junior Engineer and thereafter, Shyam Mohan Airan (P. W. 1) signed it. Taking the above report (Ext. Ka-1) Sri. Shyam Mohan Airan (P. W. 1) went to P. S. Koraon by official jeep and lodged report at 7. 30 P. M. The Chik F. 1. R. (Ext. Ka-4) was prepared by Head Constable Sri Ram Singh (P. W. 6) who made an endorsement of the same at G. D. report (Ext. Ka5) and registered a case under Sections 302 and 307 I. P. C. against all the appellants. ( 6 ) THE investigation of the case was taken up by Sri Kamal Singh, 1. 0. (P. W. 7 ). He interrogated Shyam Mohan Airan (P. W. 1) at the police station and reached the spot. Appellant Abdul Hafij Khan was present in veranda of his Nausad Ali were lying dead on Charpai. There were injuries on their person. The third boy Saukatali was lying flat on the floor and appellant Shakila Bano had caught hold his hairs from one hand and was pressing his neck from the other hand Siraj Ahmad and Sahrunisha were standing on their one leg. Abdul Hafij Khan stopped the 1. 0. from proceeding further saying Paigambart had come on his daughter. Two persons have been sacrificed and third one would be sacrificed. The 1. 0. also saw some articles of worship. Lantern and petro-max were also emitting light. The 1. 0. rescued the third boy Saukat Ali and arrested all the appellants. ( 7 ) THE 1. 0. conducted inquest of the dead bodies of Shamsad Ali and Nausad Ali and prepared inquest report and other relevant papers (Ext. Ka-8 to Ka-14 ). The dead bodies were sealed and sent to mortuary for post mortem through Constables Shambhoo Narain and Chandra Bhushan (P. W. 5 ). The 1. 0. interrogated Ram Hujur Yadav (P. W. 3 ). He inspected the place of occurrence and prepared site plan (Ext. Ka-15 ). He also took into possession blood stained clothes from the spot, sealed it and prepared recovery memo text. Ka-16 ). The 1. 0. The 1. 0. interrogated Ram Hujur Yadav (P. W. 3 ). He inspected the place of occurrence and prepared site plan (Ext. Ka-15 ). He also took into possession blood stained clothes from the spot, sealed it and prepared recovery memo text. Ka-16 ). The 1. 0. also recovered one Fookani, one Chimani two books of unknown language, earthen lamp, one packet of agarbatti and one match box and prepared recovery memo (Ext. Ka 17 ). The boy Shaukat was given in Supurdgi of Riyasat Husain, Patarol vide supurdiginama (Ext. Ka-18 ). Thereafter, the 1. 0. interrogated Habib Ullaha (P. W. 4) and other witnesses. ( 8 ) AUTOPSY on the dead bodies of Naushad Ali and Shamsad Ali were conducted on 23/10/1998 at 4. 30 P. M. Singh (P. W. 2), who found multiple patches of contusion on the neck and cause of death was due to throttling. He prepared post mortem reports (Ext. Ka-3 and Ka-2) respectively. ( 9 ) THE 1. 0. completed remaining investigation and submitted charge sheet (Ext. Ka-19) against all the appellants. ( 10 ) COGNIZANCE of the case was taken by the C. J. M. Allahabad who committed the case of the accused to the Court of Sessions. ( 11 ) ALL the appellants were charged with the offences punishable under Section 302 read with Section 34 I. P. C. and Section 307 read with Section 34 I. P. C. The appellants pleaded not guilty. Appellant Abdul Hafij Khan contended that police came to his house and he told the police officer that unprecedented incident had taken place and he may be detained under home arrest. The police believed it and returned. Thereafter, the police again came with force. Naushad Ali and Shamshad Ali had not died till then. The police arrested him. Smt. Saharupisa wife of appellant Abdul Hafij Khan contended that on the date of occurrence her daughter and son in law had to come. She and her husband had gone to Bus Station to receive them. They returned along with their daughter and son-in-law to their house after 3. 00 P. M. and observed that her two sons were lying dead. She started weeping. In the mean time police came and arrested them. Observing his sons dead her husband became mad. She and her husband had gone to Bus Station to receive them. They returned along with their daughter and son-in-law to their house after 3. 00 P. M. and observed that her two sons were lying dead. She started weeping. In the mean time police came and arrested them. Observing his sons dead her husband became mad. ( 12 ) APPELLANT Smt. Shakila Bano and her husband Siraj Khan contended that on the date of occurrence they from their home district Ghazipur and found the dead bodies of two sons of Abdul Hafij Khan. They started weeping. The police came and apprehended him. ( 13 ) THE prosecution to prove its case, examined Shyam Mohan Airen (P. W. 1), Dr. R. B. Singh (P. W. 2), Ram Hujur Yadav (P. W. 3), Habib Ullah (P. W. 4), Constable Chandra Bhushan (P. W. 5 ). Head constable Ram Singh (P. W. 6), Kamal Singh, La. (P. W. 7) and Constable Kalim Ullah (P. W. 8 ). The appellants did not adduce any evidence, in their defence. ( 14 ) THE learned Sessions Judge on considering the evidence of the prosecution came to the conclusion that the prosecution has proved its case beyond doubt against the accused persons that all the accused persons planned a Pooja to sacrifice three sons of Abdul Hafij Khan to satisfy Devta or Peer Pagamber. Two of the children were killed in this process and third one was going to be killed when the police arrived and foiled the attempt. Therefore, all the accused were guilty of the offences punishable under Sections 302 read with Section 34 and Section 307 read with Section 34 I. P. C. With these findings he convicted them under said sections and sentenced them as mentioned above. ( 15 ) AGGRIEVED with their above conviction and sentences the appellants have preferred this appeal. ( 16 ) WE have heard Sri Sunil Singh learned counsel for the appellants and Sri Pradeep Pandey Brief Holder for the State and have perused the evidence on record. ( 17 ) THE death of two sons of appellant Abdul Hafij Khan and Smt. Sahrunnisa is not disputed for the appellants. ( 16 ) WE have heard Sri Sunil Singh learned counsel for the appellants and Sri Pradeep Pandey Brief Holder for the State and have perused the evidence on record. ( 17 ) THE death of two sons of appellant Abdul Hafij Khan and Smt. Sahrunnisa is not disputed for the appellants. Sri Shyam Mohan Airen (P. W. 1), Ram Hujur Yadav (P. W. 3) and Hapib Ullaha (P. W. 4) stated when they reached the spot the two sons of Abdul Hafij Khan namely Shainshad Ali aged about 7 years and Naushad All aged about 4 years respectively were lying dead. The 1. 0. Sir Kamal Singh (P. W. 7) also stated that when he reached the spot two sons of Abdul Hafij Khan namely Shamshad and Naushad Ali were lying dead. He conducted inquest of dead bodies of above deceased persons sealed it and sent for post mortem. Constable Chandra Bhushan (P. W. 5) and Habib Ullah (P. W. 4) stated that Constable Subh Narain took sealed dead body of two boys from the spot to mortuary and produced before the Doctor in sealed condition. Dr. R. B. Singh (P. W. 2) who conducted autopsy on the dead bodies of Naushad. Ali and Shamshad Ali found following facts: dead body of Naushad Au aged about 4 years. ( 18 ) THE deceased had moderately built body. Rigor mortis passed of from the upper extremities and passing off from the lower extremities. Tongue protruded. Eyes open bulged. Face cyanosed veins prominent and visible over the face. Lips livid. Froth present in nostrils. The Doctor found following ante mortem injures on the person of deceased:1. Few patches of contusions and abrasions in an area of 2 on the anterior surface upper 1/3 of neck. 2. Contusion surrounding the whole of right forearm. 3. Lacerated wounds 2 x 1 on the middle of left forearm and fractured bone peeping throught it. 4. Contusion in the post aspect of right leg 3 x i" in the middle. 5. Contusion on the anterio lateral aspect of leg middle 1/3, 2 x i" in size. The internal examination showed that all the bones below injury no. 2, 3, 4 and 5 are fractured. Membranes and brain were congested. Pleura congested. Larynx and trachea congested. Hyoid bone fractured. Both the lungs congested and contained frothy blood. Large and small intestine were empty. The internal examination showed that all the bones below injury no. 2, 3, 4 and 5 are fractured. Membranes and brain were congested. Pleura congested. Larynx and trachea congested. Hyoid bone fractured. Both the lungs congested and contained frothy blood. Large and small intestine were empty. Cause of death according to Doctor was due to throttling as a result of injury No. 1. Cause of death according to the Doctor was due to throttling as result of injury no. 1. Dead body of Shamshad aged about 7 years: ( 19 ) THE deceased had moderately built, body Rigor mortis passed off from upper extremities and passing off from lower extremities. Face cyanosed. Veins prominent over the face. Eyes bulged out. Lips livid. Tongue protruded between the teeth and swollen. Froth coming out from the nostrils. The Doctor found following antemortem injuries on the person of the deceased:1. Multiple small patches of contusions on the surface of neck in the upper 1/3. out of which thumb impression of both hands near the centre was easily recognizable. It was in an area of 4" 2. Contusion 21 x i" on the left side front of chest in infraclavicular region. The internal examination showed membranes brain and pleura congested. Larynx. trachea and bronchi were congested. Hyoid bone fractured. Both lungs were congested and contained frothy blood. Pericardium Congested. Stomach and small intestine were empty. Large intestine contained faecal matter. ( 20 ) THE appellants had not cross-examined the above witnesses on the above point and had not challenged the above testimony of ocular witnesses and the medical evidence. As such it is proved that Naushad Ali and Shams had Ali aged about 4 and 7 years respectively, the two sons of appellant Abdul Hafij Khan were killed by throttling. ( 21 ) IT is also not disputed that occurrence took place on 27/10/1978 between 9. 00 A. M. and 7. 00 P. M. in the house of appellant Abdul Hafij Khan, Habib Ullah (P. W. 4) stated that he reached the house of appellant at 12. 00 or 12. 30 P. M. when he heard unusual announcement of Azan and found that Abdul Hafij Khan first beat his two sons with Fookani and thereafter, they were throttled and died. 00 P. M. in the house of appellant Abdul Hafij Khan, Habib Ullah (P. W. 4) stated that he reached the house of appellant at 12. 00 or 12. 30 P. M. when he heard unusual announcement of Azan and found that Abdul Hafij Khan first beat his two sons with Fookani and thereafter, they were throttled and died. Ram Hujur Yadav (P. W. 3) stated that when he reached the house of appellant Abdul Hafij Khan found his two sons lying dead and third one was lying on the floor whose hairs were caught hold by Smt. Shakila Bano. Sri Shyam Mohan Airen (P. W. 4) stated that when he reached the quarter of appellant Abdul Hafij Khan saw that his two sons lying dead and third one was lying in veranda. His hairs were caught hold by Smt. Shakila Bano who was enchanting something. The appellants have also admitted that the two sons of Abdul Hafii Khan were lying dead on the spot as such date, time and place of occurrence were also established. ( 22 ) THE case of the prosecution was that the appellants chalked out. a plan to sacrifice the three sons of Abdul Hafij Khan to please some Peer Paigamber and they succeeded in sacrificing the two boys namely Naushad and Shamshad aged about 4 years and 7 years respectively and were attempting to sacrifice the third one aged about 2-1/2 years but in the meantime the police arrived and apprehended them. ( 23 ) TO prove the above case the prosecution relied on ocular testimony of Habib Ullah (P. W. 4), Ram Hujur Yadav (P. W. 3), Shyam Mohan Airen (P. W. 1) and Kamal Singh, 1. 0. (P. W. 7 ). ( 24 ) HABIB Ullah (P. W. 4) stated that on the date of occurrence i. e. , 27/10/1978 he had gone to the house of Buddhi Ram Singh, Overseer situated in Canal Colony in Kasba Karaon. The house of Buddhi Ram Singh was situated at a distance of 20 paces towards west of the house of Abdul Hafij Khan. Buddh Ram Singh was not present at his house and therefore he was waiting for him at his house. At about 12. 00-12. 30 noon he heard announcement of Azan from the house of Abdul Hafij Khan. The house of Buddhi Ram Singh was situated at a distance of 20 paces towards west of the house of Abdul Hafij Khan. Buddh Ram Singh was not present at his house and therefore he was waiting for him at his house. At about 12. 00-12. 30 noon he heard announcement of Azan from the house of Abdul Hafij Khan. Since it was unusual time for announcement of Azan he came to the house of appellant Abdul Hafij Khan to enquire about it. He peeped into the house of appellant Abdul Hafij Khan through the window and saw that Smt. Shakila Bano daughter of appellaat Abdul Hafij Khan was beating a boy with a Fookani. Abdul Hafij Khan, Siraj and wife of Abdul Hafij Khan were also present there. Abdul Hafij Khan had caught hold the said boy and remaining two were standing there occurrence were also established. The boy died. Same act was repeated with the second boy and he also died. Observing it he started running. While he was running he heard voice Jinda kar Denge, Jinnda Kar Denge (would make alive, would make alive ). ( 25 ) LEARNED counsel for the appellant-contended that presence of the witness on the spot is doubtful as according to his evidence he had gone to the house of Buddhi Ram Singh Overseer at about 9. 30 A. M. and Buddhi Ram Singh was not present at his house. Then he had no occasion to remain there till 12. 00 noon. But the witness had clarified in his cross examination that he was a labour and had gone to the house of Buddhi Ram Singh for some work as he had to engage some labourer. That when Buddhi Ram Singh did not meet at his house he was waiting for him. It was not unusual for the witness if he waited for the Overseer for some time as he had to obtain work from him. ( 26 ) THE presence of witness was again challenged on the ground that according to evidence of the witness he saw the occurrence from the window of the house of Abdul Hafij Khan, but the situation of window shown at place 6 in the site plan (Ex. Ka-15) was such that a wall of room was intervening between the room of occurrence and the window and therefore he could not see the occurrence. Ka-15) was such that a wall of room was intervening between the room of occurrence and the window and therefore he could not see the occurrence. This argument has no force as the witness stated that the place of sacrifice in the room was visible from the window. It was not got clarified from the witness that western wall of the room of the occurrence was obstructing and place of sacrifice was not visible from the window. The 1. 0. had shown the place of window in sketch map and it w the spot. Therefore, he was in a position contention that the place of sacrifice was not visible from the window in the western wall of the house of appellant. ( 27 ) THE testimony of the witness was again criticised on the ground that the witness had told before the 1. 0. that occurrence took place at 9. 30 A. M. but the witness stated that he reached the house of appellant at 12. 00-12. 30 P. M. Having gone through the entire evidence of the witness we find that the witness reached the house of Buddh Ram Singh at 9. 00-9. 30 A. M. and waited for Buddh Ram till 12. 00 noon and thereafter, went to the house of appellant Abdul Hafij Khan. It is true that according to the evidence of Kamal Singh (P. W. 7) the witness told before him that occurrence took place at about 9. 30 A. M. The witness might have stated said time as time of his arrival to the house of Buddhi Ram Singh. Therefore, this aspect does not falsify the evidence of the witness. ( 28 ) IT was further contended that the witness had no any occasion to know the appellant nor was knowing them. The witness stated that his house was at a distance of about one Km. from the Canal Colony and he was knowing the appellants from before. However, he stated that he was knowing Abdul Hafij Khan by his name and was not knowing the name of other appellants nor had any occasion to know the name of other appellants. But it is clear from evidence on record that when the witness reached the house of appellants there was a crowd. He was knowing Abdul Hafij Khan by his name. But it is clear from evidence on record that when the witness reached the house of appellants there was a crowd. He was knowing Abdul Hafij Khan by his name. If he was not knowing the other appellants by their respective names he would have no difficulty in knowing their names by enquiring from the persons present on the spot. Therefore, he was in a position to know the name of appellants. ( 29 ) IT was further contended that that witness admitted that he had appeared as a witness in one other case from the side of police and therefore, he was a professional witness. By appearing as a witness in one case a person does not become a professional witness unless it was so held by the Court. Moreover, it was also not got clarified as to what was the case and why he become witness in the said case. Therefore, the witness cannot be said a professional or got up witness. ( 30 ) RAM Hujur Yadav (P. W. 3 ). Head Clerk in the Canal division resided in the Canal Colony. Koraon. He stated that at about 6. 30 P. M. on 27/10/1978 he observed crowd in front of the house of Abdul Hafij Khan went there and observed the two sons of Abdul Hafij Khan were lying dead on the Charpaiand third one was lying on floor near the daughter of Abdul Hafij Khan who was enchanting something in unknown language. Abdul Hafij Khan was saying that two boys had died but they would become alive. He also said pointing out the third son that on his sacrifice all the three sons would become alive. Thereafter, he came back On enquiry he also told this fact to Sri Shyam Mohan Airen S. D. O. Thereafter, he again came to the spot in the company of Sri Shyam Mohan Airen. S. D. O. B. P. Singh and B. R. Singh. He prepared report on the dictation of Sri Airen ( 31 ) IT is not disputed that the witness was residing in the same Colony and was Head Clerk in the canal Department. Observing crowed in front of the house of appellant Abdul Hafij Khan it was but natural for him to go there and to know the reason of crowd. appellant could not show any ground by Colony at 7. 00 P. M. . Observing crowed in front of the house of appellant Abdul Hafij Khan it was but natural for him to go there and to know the reason of crowd. appellant could not show any ground by Colony at 7. 00 P. M. . thereafter, went to which the testimony of witness could the house of the appellant Abdul Hafij not be relied on. ( 32 ) SRI Shyam Mohan Airen (P. W. 1) was Assistant Engineer/s. D. O. in the Canal Department and was residing in the Canal Colony, Koraon. According to his evidence on the evening of 27/10/1978 he returned from tour at about 7. 00 P. M. and observed crowd in front of the house of Abdul Hafij Khan, Amin. He called Ram Hujur Yadav (P. W. 3 ). Head Clerk and enquired about the crowd. He told that some evil spirit had come on the daughter of Abdul Hafij Khan and therefore crowd had collected. He also called Junior Engineers B. P. Singh and RP, Singh and in their company went to the house of Abdul Hafij Khan where he observed that two sons of Abdul Hafij Khan were lying dead on the Charpai and the third son was lying in the veranda and daughter of Abdul Hafij Khan had caught hold his hairs and was enchanting something. Abdul Hafij Khan was saying that two boys has been scarified to Devta and they would become alive after sometime. Smt. Shakila Bano daughter of Abdul Hafij Khan his son-in-law and his wife were also present there. The witness had recognised all the appellants inside the Court. ( 33 ) THE witness is admittedly superior officer of the appellant Abdul Hafij Khan and probably he was the highest officer in the Canal Colony. Therefore it was but natural for him to reach the spot observing crowd there. The witness had also dictated the report and had gone to police station by his jeep where he reached at 9. 30 P. M. ( 34 ) THE learned counsel for the appellants contented that on his own showing the witness reached canal colony at 7. 00 P. M. , thereafter, went to the house of appellant Abdul Hafij Khan returned from there dictated F. I. R and still claimed that he reached the police station at 7. 30 P. M. which was not possible. 00 P. M. , thereafter, went to the house of appellant Abdul Hafij Khan returned from there dictated F. I. R and still claimed that he reached the police station at 7. 30 P. M. which was not possible. This argument has no force as the police station is only at a distance of one and half km. from the Canal Colony and the witness went to police station in the official jeep. He could reach the police station within 5 or 10 minutes and he could see the occurrence and dictate the report within remaining 20. 25 minutes. ( 35 ) THE witness had no grudge or ill will with the appellants and there is nothing in his cross examination to disbelieve his testimony. ( 36 ) SRI Kamal Singh, 1. 0. (P. W. 7) stated that after registration of case he interrogated Sri Airan (P. W. 1) at the police station and then reached at the house of Hafij Khan. There he observed that two boys Shamshad Ali and Naushad Ali were lying dead on the charpai and third boy Shaukat Ali was lying flat on the floor. Shakila Bano had caught hold his hairs from one hand and was pressing his neck from other hand. Wife and son-in-law of Hafij Khan were standing on their one leg. When he proceeded towards them. Abdul Hafij Khan stopped him saying that Paigambar had come on his daughter. He had sacrificed two and would sacrifice third one. Then he arrested all the appellants. ( 37 ) THE witness was investigating the case and reached the spot after registration of the case. The fact which was observed by the witness on the spot is his direct evidence. There is nothing in the cross examination of the witness to disbelieve him. The learned counsel for the appellant could not show any discrepancy or infirmity in the evidence of the 1. 0. The evidence of the 1. 0. was thus they natural. ( 38 ) SRI Shyam Moahn Airan (P. W. I) had also stated that when he reached the spot Abdul Hafij Khan appellant was saying two boys has been killed to sacrifice Devta and would become alive after some time. T Ram Hujur Yadav (P. W. 3) and Habib Ullah (P. W. 4) also stated that Abdul Hafiz Khan had said so before them. T Ram Hujur Yadav (P. W. 3) and Habib Ullah (P. W. 4) also stated that Abdul Hafiz Khan had said so before them. This was an extra judicial confession of Abdul Hafij Khan before above witness and finds support from, medical evidence and other evidence referred to above. ( 39 ) THE learned counsel for the appellant contended that the conduct and behaviour of Abdul Hafij Khan showed that he was not in his senses and he was suffering from some sort of insanity or was of unsound mind. Therefore appellant Abdul Hafij Khan is entitled to get the benefit of Section 84 i. P. C. There is no such plea that appellant Abdul Hafij Khan or any other member of his family was suffering from insanity and they did the act under influence of insanity. ( 40 ) THE Apex Court in the case of State of Madhya Pradesh v. Ahmadulla held that the burden of proof that the mental condition of the accused was at the crucial point of time such as is described by Section 84 I. P. C. lies on the accused who claims the benefit of this exception vide Section 105 of the Evidence Act (III. a ). The settled position of law is that very man is presumed to be sane and to possess a sufficient degree of reason to be responsible for acts unless the contrary is proved. Mere ipsi dixit of the accused is not enough for availing the benefit of the exceptions under Chapter IV. ( 41 ) IN Dahyabhai Chhangalibhai Thakur v. State of Gujarat the Apex Court after referring to various Text books and the earlier pronouncements of the court held:the doctrine of burden of proof in context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused has committed the offence with the requisite mens rea and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused may not be insane when he committed crime, be in the sense laid down by Section 84 I. P. C. , the accused may rebut it by placing before the Court all the relevant evidence oral documentary or a circumstantial but the burden of proof upon him is no higher than that rest upon a party to civil proceeding. (3) Even if the accused is not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution must raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. ( 42 ) TO the same effect is the judgment of Bhikhari v. State of U. P. ( 43 ) IN the Case of T. N. Laxmaiah v. State of Karnataka the Apex Court considering previous decisions held that under Evidence Act the onus of proving any exception mentioned in chapter IV lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exception by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because of the version given by him casts a doubt on the prosecution case. ( 44 ) THE appellants in this case have not led any evidence in proof of the plea of insanity. There is nothing on the record to infer that the accused was of unsound mind at or about the time of occurrence. His behaviour at the time and subsequent to the commission of , the offence clearly indicates that he knew and was capable of knowing the nature of the act done by him. It had also not been suggested to the witnesses that appellants Abdul Hafij Khan or Shakila Bano had any history of mental case, or they were ever diagnosed or treated for the same. It had also not been suggested to the witnesses that appellants Abdul Hafij Khan or Shakila Bano had any history of mental case, or they were ever diagnosed or treated for the same. Sri Shyam Mohan Airan (P. W. 1) and Ram Hujur Yadav (P. W. 3), who were immediate officers of the appellant Abdul Hafij Khan had not indicated any such mental disorder of above appellants. Contrary to it Shyammohan Airan (P. W. 1) stated that when he reached the spot Abdul Hafij Khan was mentally fit and he had also talk with him for about five minutes. ( 45 ) LEARNED counsel for the appellants further contended that the appellant Abdul Hafij Khan might be a paranoid and he could lose his normal frame of mind and therefore he cannot be held liable for his act. Paranoid is not only a person of unsound mind but a paranoid suffers from special and peculiar ideas and visions which are different from other persons of unsound mind. As a result, a paranoid within moments may completely lose his normal frame of mind and be seized of special emotions thereby impelled to behave wildly and such sudden fit on emotion may also vanish within moment. For a paranoid, there is no lucid interval as may be found in other cases of insanity or in persons afflicted by unsound mind. But there is also nothing on record to show that the appellant Abdul Hafij Khan or Smt. Shakila Bano were paranoid persons and were ever diagnosed as paranoid. There is no evidence that they were ever treated for such mental disease. Contrary to it appellant Abdul Hafij Khan was an Amin in Canal Department and there is nothing on record to show of suggest that he was ever diagnosed as patient of paranoid or behaved so. The fact that Abeul Hafij Khan was in active service and discharging his official duties completely rules out of his being a paranoid. The evidence on record shows that Abdul Hafij Khan appellant told to Ram Hujur Yadav (P. W. 3) and Shyam Mohan Airen (P. W. 1) that the two boys had been sacrificed to please Devta, and when third one would be sacrificed then all would become alive. Some articles for Pooja were also found on the spot and were recovered by the 1. 0. Some articles for Pooja were also found on the spot and were recovered by the 1. 0. At that time the appellant Abdul Hafij Khan was neither in any sort of insanity nor under influenced or control of insanity and he was doing the act of sacrifice knowingly and consciously to please the bevta. The act of appellant Abdul Hafij Khan done before the above named witnesses and what he told them demonstrated that at the time of commission of offence he could explain his intended action with logic. Therefore, in the facts and circumstances of the case it has been clearly established by the prosecution that the appellants Abdul Hafjj Khan and Shakila Bano were not incapable of understanding the implication of their acts. We are, therefore, satisfied that the appellants Abdul Hafij Khan and Smt. Shaklla Bano were sane and fully understood the implications of the act done by them and in no case were of unsound mind within the meaning of Section 84, I. P. C. at the relevant time. The requisite mens rea is thus not missing in the instant case. ( 46 ) FROM the evidence discussed above we are satisfied that the prosecution has successfully established the guilt of Abdul Hafij Khan and Smt. Shakila Bano for the offences punishable under Section 302 read with 34 I. P. C. for murdering the two boys. Naushad Ali and Shamshad Ali and for the offence punishable under Section 307 read with Section 34 I. P. C. for attempt to murder Shaukat Ali. ( 47 ) REGARDING culpability of Smt. Shahrunnisa and Siraj Khan the evidence of the prosecution was that they were present on the spot and were standing on their one leg. No overt act or role had been assigned to either of them. There is also no evidence on record to show that the above two appellants had shared the common intention of Abdul Hafij Khan and Smt. Shakila Bano in sacrificing the two boys. It was argued by the learned State Counsel that the fact that these two appellants did not raise any objection to the unlawful acts of the remaining appellants nor stopped them from doing so, therefore. it could be inferred that they shared their common intention. We are not impressed by this submission. It was argued by the learned State Counsel that the fact that these two appellants did not raise any objection to the unlawful acts of the remaining appellants nor stopped them from doing so, therefore. it could be inferred that they shared their common intention. We are not impressed by this submission. It is true that common intention may be presumed from circumstances but that presumption is also subject to the same restrictions as other presumptions and it should not take the form of a surmise or conjecture. It is well established that inference of common intention should never be drawn unless it is a necessary inference deducible from the circumstances of the case. There should be clear and clinching circumstances to show prior meeting of mind. In the present case no such circumstances exist. Their silence might be due to fear of Abdul Hafij Khan. In the absence of any clear evidence regarding their specific role we are of the view that by way of abundant caution they are entitled to the benefit of doubt and acquittal. ( 48 ) THE appeal is partly allowed and partly dismissed. Conviction and sentence of the appellants smt. Shahrurmisa and Siraj are set aside and they are acquitted of the offences punishable under section 302 read with Section 34 I. P. C. and Section 307 read with Section 34 I. P. C. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. ( 49 ) THE conviction and sentence of the appellants Abdul Hafij Khan and Smt. Shakila Bano are confirmed and the appeal preferred by them is. accordingly. dismissed. They shall surrender before the C. J. M. Allahabad to serve out the sentences. The C. J. M. Allahabad is also directed to secure arrest of the appellants Abdul Hafij Khan and Smt. Shakila Bano by issuing non-bailable warrants and submit compliance report within a month. ( 50 ) OFFICE is directed to sent a copy of this order to C. J. M. Allahabad for information and necessary action. Appeal allowed partly.