JUDGMENT : Sunil B. Shukre, J. 1. This appeal challenges the legality and correctness of the judgment and order dated 20th, 28th March, 2008 rendered in Sessions Trial No. 37 of 2006 by the Additional Sessions Judge, Gondia, thereby acquitting the appellants, namely Accused No. 1, Anil Lanjewar, Accused No. 3, Sunil Lanjewar and Accused No. 4, Munnasingh Madavi of the offences punishable under Sections 147, 148, 302 and Section 201 read with Section 149 and also Sections 506 (II) and 436 read with Section 149 of the Indian Penal Code and Sections 4 and 5 of the Explosive Substance Act, 1908. 2. The facts of the case, stated in brief, are as under:- There resided a person named Ashok Lahu Ukey (deceased) in the year 2006 at village Barra (Bk.) Tq. & District Gondia, who was left all alone by his wife and children. The desertion by his other family members was owing to the rogue nature of the deceased and his bad habits. He was given to consumption of liquor and tempted to commit thefts on and off. He was also quite a quarrelsome person who would not let his other family members live peacefully and happily with him. After he was abandoned by his other family members, the bad qualities in the deceased were even exacerbated. He would wander here and there and only intermittently would come back to his house. After one of this such listless sojourn, the deceased had returned to his house in the evening of 12th February, 2006. He again left the house in the night and came back home at about 9.00 p.m. of 13th February, 2006 and since then was stationed in the house itself. The incident occurred in the fateful night between 13th and 14th February, 2006. It was about 1230 hours in the night, by which time, the day of 14th February, 2006 had commenced when the neighbour of the deceased, Mayaram son of Budhaji Barde, heard shouts of the deceased asking for help. Soon, he also heard some thumping noises on the roof top of his house. It was about 1230 hours in the night, by which time, the day of 14th February, 2006 had commenced when the neighbour of the deceased, Mayaram son of Budhaji Barde, heard shouts of the deceased asking for help. Soon, he also heard some thumping noises on the roof top of his house. The remaining family members of Mayaram woke up and all of them, including Mayaram, came outside the house only to notice that deceased Ashok was running on the roof top for his life, while the appellants along with the two other persons were shouting at him and making menacing gestures at him thereby indicating their murderous intentions. The accused persons were also armed with such weapons as sticks and axe. The two of the accused persons, Anil (Appellant No. 1) and the juvenile accused, Puneshwar, were standing in front of the house of deceased Ashok, while the remaining three accused Sachin (not a party here), Anil [respondent no. 1, Sunil (respondent no. 2) and Munna Singh (respondent no. 3) were standing behind the house of deceased Ashok. One of the accused persons poked deceased Ashok by means of a long bamboo, as a result of which, deceased Ashok slipped from the roof top of the house of the complainant and tumbled down. Thereafter, it is alleged that these respondents and the other two accused persons beat up deceased Ashok and dragged him inside the house and by pouring petrol on his person, set him on fire. The fire was so intense that deceased Ashok died at the spot of incident itself. The complainant and his family members, including his son, Someshwar, had watched the entire incident. But they had no courage to open their mouth. However, the Police Patil, Devraj, was informed of the incident with all its details by the complainant sometime after the incident or in the early morning of 14th February, 2006. Next day morning, which was of 14th February, 2006, several villagers gathered in front of the house of the deceased. But, the complainant did not inform anything to them. The complainant felt frightened so much. However, somehow or the other, he mustered courage and went to the Police Station in the afternoon and lodged a report of the incident at 1440 hours of 14th February, 2006. Police registered the offences disclosed in the oral report of the complainant and started the investigation. The complainant felt frightened so much. However, somehow or the other, he mustered courage and went to the Police Station in the afternoon and lodged a report of the incident at 1440 hours of 14th February, 2006. Police registered the offences disclosed in the oral report of the complainant and started the investigation. The necessary Panchanamas were drawn out. Statements of witnesses were recorded. Further investigation was carried out and after completion of investigation, a charge-sheet was filed against the appellants and the two other accused persons. They were tried for the offences punishable under Section 147, 148, 302, 301, 506 (II) and 436 of Indian Penal Code read with Section 149 of Indian Penal Code and also offences under Sections 4 and 5 of Explosive Substance Act. On merits of the case, the learned Additional Sessions Judge found that evidence of the prosecution as insufficient, inconsistent on material aspects and of doubtful origin and, therefore, the learned Additional Sessions Judge acquitted the appellants of all the offences with which they were charged by the judgment and order dated 28th March, 2008. It is the same judgment and order which are under challenge in this appeal filed by the State. 3. We have heard Shri Palshikar, learned Addl. Public Prosecutor for the appellant-State and Shri Ashish Fule, the learned counsel for the respondents-accused. We have gone through the record of the case, including the impugned judgment and order. 4. The whole prosecution case is based upon the ocular evidence of PW-1, Mayaram and PW-2, Someshwar, the neighbours of deceased Ashok. Both of them have given the details of the incident and also narrated the roles played by the accused persons, including the present appellants. But, they have also admitted that only two of the accused persons, namely Anil Lanjewar and Puneshwar, the juvenile accused, were standing towards the front side of the house of the deceased, while the remaining accused persons, like Sunil Lanjewar and Munnasingh as well as Sachin, all three were standing on the rear side of the house of the deceased and that initially PW-1, Mayaram and PW-2, Someshwar, saw the incident from the front side of the house of the deceased and later on going inside the own house of these two witnesses, they saw the incident from the window to their house. The incident had also taken place in the wee hours of 14th February, 2006 and according to these witnesses, there was moonlight in which they observed the events as untolded before them. 5. In the circumstances pointed out as above, the question that arises here is as to who amongst the appellants the witnesses, who were standing at the commencement of the incident on the front portion of the house of the deceased, could see as being exactly standing in front of and as being behind the house of the deceased, and till what time and additionally whosoever were there, were only the accused persons, namely Sachin, Sunil and Munnasingh. No explanation in this regard has been given in the evidence of these witnesses, nor such explanation is seen to be present anywhere in the evidence brought on record by the prosecution. It has also come on record that the night between 13th and 14th February, 2006 was the fourth night after the day of full moon and that would reasonably indicate, by taking a judicial notice of a scientific fact, that after a passage of some hours in the night, the setting motion of moon commences and, therefore, it would be difficult for us to further say with any reasonable certainty that the amount of moonlight present in that night was sufficient so as to enable a person to recognise the faces of persons standing at a distance and also take minute note of every undertaken by them, unless the witnesses also say that the luminance of moonlight was as much as enabled them to see persons and their actions with reasonable clarity. But, no such evidence has been brought on record. So, there is a doubt whether the moonlight was so sufficient as to enable these eye-witnesses to notice even the faces and various actions allegedly performed by the assailants in the matter or not. There is also no explanation given as to now both these witnesses, in spite of being, as per their own claim, at a place which was in front of the house of the deceased, could observe the activities of the other accused persons like respondent nos. 2 and 3, who had admittedly stationed themselves behind house of the deceased and this only adds to the doubt of ready expressed by us. 6. 2 and 3, who had admittedly stationed themselves behind house of the deceased and this only adds to the doubt of ready expressed by us. 6. A major part of the incident, if we consider the evidence of these two witnesses, appears to be seen by the two witnesses by they being inside their own house and looking through the window to one of the rooms of their house. From such a position, it is doubtful as to whether or not, these two witnesses could have clearly seen the incident in its entirety, the faces of the accused persons and various acts allegedly attributed to them, especially when the visibility was only because of the illumination made by the moonlight. When witnesses say that they could see each and every aspect of the incident because of the presence of the moonlight, it is expected of the Investigating Officer to also collect evidence and bring on record the fact that the illumination caused by the moonlight was sufficient to enable any person standing at quite a distance from the spot of incident to clearly observe everything relevant. Merely because there was a moonlight which enabled visibility, it would not be possible to draw a further inference that the moonlight facilitated vision was powerful enough to notice clearly from quite a distance the faces of the accused and other relevant facts, unless there is a specific evidence brought on record in that regard. Necessity of having on record a clear evidence about the facilitation of the ocular faculties by the presence of sufficient amount of moonlight goes without saying. Such evidence, however, is not to be seen in the present case. This is yet another doubt added to the basket of doubts hanging on the credibility of these two witnesses. 7. The doubts get further deepened by the fact that the FIR has not been lodged immediately after the incident. While the incident took place some time around 2.00 a.m. of early morning of 14th February, 2006, the FIR has been lodged at 2.40 p.m. of 14th February, 2006, about twelve hours later. There is no explanation given in the FIR regarding its belated filing. The explanation, however, has been given by way of an improvement by the complainant in his testimony before the Court. He says that he was terrified by the brutal assault made upon the deceased. There is no explanation given in the FIR regarding its belated filing. The explanation, however, has been given by way of an improvement by the complainant in his testimony before the Court. He says that he was terrified by the brutal assault made upon the deceased. The theory of fright put forward as an explanation for delayed filing of the FIR by the complainant appears to be nothing, but an instance of after thinking in order to strengthen the trustworthiness of the prosecution story. The reason is that the complainant sometime after incident himself had disclosed the incident to Devraj and at least this is what the complainant says. But Devraj, who has been examined as a defence witness, refuses to accept the version. He says that he was not informed about the incident by PW-1. PW-1, Mayaram, the complainant, also admits that in the morning, many of the villagers had gathered in front of the house of the accused and he further admits that to none of them, did he disclose anything about the incident. But, he admits that he informed Devram which fact is denied by letter. PW-1, Mayaram, further admits that at the time when all the accused persons had gathered near the house of the accused after the incident, he did not tell them anything. He further admits that just prior to the assault, he had gone near one of the accused persons, Puneshwar, the juvenile son of the deceased and had whispered piece of advise in his ear against killing of deceased Ashok, the latter being his own father. This fact would also show that the element of terror or fright was not at all there, or otherwise, PW-1, Mayaram, would not have dared approach any of the accused persons and administered them any counselling. But, he did so. 8. All these facts and circumstances of the case would show that the explanation given by PW-1, Mayaram, for the delayed filing of the FIR is not satisfactory and it gives rise to a possibility of making of embellishments in the prosecution story. Then, it is also not disputed that Deoraj (DW-1) was a Police Patil. But, he did so. 8. All these facts and circumstances of the case would show that the explanation given by PW-1, Mayaram, for the delayed filing of the FIR is not satisfactory and it gives rise to a possibility of making of embellishments in the prosecution story. Then, it is also not disputed that Deoraj (DW-1) was a Police Patil. If, according to the own claim of the complainant, a Police Patil had been informed of the incident, the fear factor had to be said as having disappeared for what is disclosed to a Police Patil would to the knowledge of the complainant, soon travel to the police. No explanation in this regard has been given by the prosecution. The facts and circumstances also show that even though opportunity was available to the complainant to disclose the incident to the other villagers, the opportunity was squandered by him and the probable inference, that could be drawn about this lapse, is that PW-1, Mayaram, or his son, Someshwar, had really no clear idea about the assailants and the manner in which the attack was made on the life of deceased Ashok. 9. There are also some important inconsistencies in the evidence of PW-1, Mayaram and PW-2, Someshwar, especially with regard to the weapons of offence held by each accused persons at the time of the incident. There are also improvements which correspond to material omissions in his police statement regarding the weapons held by different accused persons. Before the Court, PW-2, Someshwar, stated that accused Sunil carried in his hand an iron crow bar and other accused Sachin (not before this Court) held an axe. But, both these facts have appeared in his evidence as improvements as they did not appear in his police statement. These omissions have been duly proved by the defence. No explanation, much less any satisfactory explanation, has been given by this witness about the omissions appearing on the police statement. 10. The overall impact of the prosecution evidence, as discussed earlier, is that a veritable doubt is created about the credibility of both material witnesses and, therefore, it would be necessary for this Court to consider if there is any other evidence corroborating the evidence of these two ocular witnesses. Unfortunately, there is no corroborative evidence available on record. Even Test Identification Parade was not held to identify the accused persons, except for respondent no. Unfortunately, there is no corroborative evidence available on record. Even Test Identification Parade was not held to identify the accused persons, except for respondent no. 3, Munna Singh. Of course, respondent nos. 1 and 2 as claimed by witnesses, were already known to them. But, considering the fact that they were seen to be present at the scene of crime in the wee hours of 14th February, 2006 and they were seen due to facilitation of moonlight, it was essential, in our opinion, to hold a Test Identification Parade, just in order to lend assurance to the Court about the genuineness of the allegations made against the respondents. Be that as it may, the Identification Parade was held only in respect of respondent no. 3, Munna Singh and he was identified by the witnesses. But, there is also evidence available on record which shows that these accused persons was produced twice before the Court of Judicial Magistrate First Class without their faces being covered rather their faces exposed to the world at large to be seen and noted by the members of the society. In these circumstances, no credibility can be attached to the exercise of Test Identification Parade and the evidence relating to it. The other circumstantial evidence like the clothes of the accused persons seized from them and presence of blood stains is also absent on record. The alleged weapons, like sticks and axe, were lying at the spot of incident and they were seized from that place, thereby leaving very little scope for their establishing independently any link with the accused persons. Their link with the accused persons could be established only if there is reliable ocular evidence, which is not the case here. To make the prosecution on case worst, the Post-mortem Report vide Exh.78 says that cause of death of Ashok Lahu Ukey cannot be given. So, there is no other supporting evidence to the evidence of the eye-witnesses. 11. There is one more and the last circumstance, which, in our opinion, would overshadow all the other circumstances in the present case. It is that of the identification of the dead body itself. The dead body, stated to be of Ashok Lahu Ukey, the person who was done to death in this case, could not be identified by anybody. This is stated in no uncertain terms in column no. It is that of the identification of the dead body itself. The dead body, stated to be of Ashok Lahu Ukey, the person who was done to death in this case, could not be identified by anybody. This is stated in no uncertain terms in column no. 3 of the Post-mortem Report vide Exh.78. If the dead body of the deceased could not be identified by anybody, the question what is the evidence that the charred dead body found lying in the house of deceased Ashok which was open at the time of the incident, only belonged to Ashok Ukey and to no one else. After all, Ashok Ukey was leading a life of a roguish vagabond admittedly used to wander here and there while intermittently committing crimes and used to even remain absent from his house for longer intervals of time. His lonely forlorn life would demand of the prosecution in a case where dead body of one person in charred state was covered from an open house to rule out the possibility that the dead body belonged to no one else, but Ashok Lahu Ukey, by placing on record some evidence of the distinctive characters of the deceased and their matching with that of the dead body by the Investigating Officer. But, this has not been done by the Investigating Officer. Such additional evidence would otherwise not have been required had there been reliable ocular evidence of the witnesses. But, this is not the case here and, therefore, failure to identify the dead body would be another important factor which would cast a deep and videspread shadow of doubts over the prosecution case. 12. All the above stated factors, it is seen from the impugned judgment and order, have been taken into consideration appropriately by the learned Additional Sessions Judge. These deficiencies in the prosecution case could not be said to be not giving rise to a view taken by the learned Additional Sessions Judge while recording a finding of innocence against all the appellants. Such nature of evidence, in our considered view, would enable a particular Court to form an opinion that it would not be safe for it to rely upon such evidence and return a finding of guilt convicting the accused persons of an offence of commission of murder. Such nature of evidence, in our considered view, would enable a particular Court to form an opinion that it would not be safe for it to rely upon such evidence and return a finding of guilt convicting the accused persons of an offence of commission of murder. It is a well settled law that while functioning as the first appellate Court in a criminal case, this Court cannot interfere with the view taken by the trial Court unless the view has been shown to be not plausible or impossible or perverse or so illogical as would not arise at all from the evidence brought on record. This is a case in which, the view taken by the trial Court is plausible and, therefore, the settled principle of law would govern the fate of this appeal. It is that when two views are possible, the view that favours the accused should be adopted by the Court. 13. In the result, we are not inclined to allow this appeal. As the evidence brought on record is of a doubtful nature, we are of the opinion that benefit of doubt must go to the respondents. 14. The appeal stands dismissed. 15. The respondent no. 3 is in jail. He be released forthwith if not required in any other crime.