JUDGMENT

SHINGHAL, J.:— The Sessions Judge of Farukhabad convicted respondents Het Ram, Sobran and Ram Pal of an offence under Section 302/34, I.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life. He also convicted them of an offence under Section 307/34, I.P.C. for causing grievous injury to Raja Ram (P.W. 2) with intent to commit his murder, and sentenced them to rigorous imprisonment for ten years. The respondents were given benefit of doubt in regard to the murder of one Nain Sukh, brother-in-law of Rati Ram, and were acquitted. While no appeal was preferred against the acquittal, the accused went up in appeal to the High Court of Judicature at Allahabad, which took the view that the prosecution had failed to establish the guilt beyond reasonable doubt. The High Court allowed the appeal by its judgment dated January 15, 1974, and set aside the conviction and the sentences of the accused. The State of Uttar Pradesh has therefore filed the present appeal by special leave.

2. The controversy in this Court centres round a short point but, in order to appreciate it, it will be necessary to make a brief mention of some of the facts.

3. It was alleged by the prosecution that there was a dispute between Rati Ram and respondent Het Ram over a potato field. Rati Ram initiated proceedings under Sec. 144, Cr. P. C. and secured an order of attachment. A panchayat was held thereafter, and it decided that while the potato crop may be given to respondent Het Ram, the field may be given to Rati Ram. It was alleged that the terms of the decision of the panchayat were reduced to writing and that document was handed over to Nain Sukh, brother-in-law of Rati Ram. It was alleged further that on December 24, 1971, Rati Ram and his son Raja Ram (P.W. 2) left for Farukhabad at about 2.45 a.m. in a bullock cart loaded with potatoes for selling them there. Rati Rams nephew Dwasika (P. W. 3) accompanied them in another bullock cart loaded with potatoes for the same purpose. At about 3.30 a.m., when they were travelling between Jhaua and Rampura villages, they were surrounded by respondents Het Ram, Sobran and Ram Lal who were armed with "Karolis." It is alleged that Het Ram was also armed with a pistol, and Sobran with a lathi. All the three respondents caused injuries to Rati Ram and Raja Ram, who raised an alarm. Dwarika, who was trailing behind in his cart, also raised an alarm and ran towards Jhaua village, but the respondents ran away towards the west before the villagers could arrive saying they would go and kill Nain Sukh. It is said that Nain Sukh was murdered soon after, while he was sleeping in Rati Rams "chaupal." A report of the incident was lodged at police station Shamshabad shortly afterwards, at about 9.50. a.m.

4. The injuries of Raj Ram and Rati Ram were examined by the Medical Officer, District Hospital, Fatehgarh, the same day, Raja Ram had 26 incised wounds. The injuries of Rati Ram were also examined the same day. He had 7 incised wounds. His dying declaration was recorded by the Sub-Divisional Magistrate on December 24, 1971, and he succumbed to his injuries on December 30, 1971. Nain Sukh succumbed to his injuries soon after the incident, but we are not concerned with his case as it is not the subject-matter of the appeal before us.

5. The High Court took note of the fact that Raja Ram (P. W. 2) and Dwarika (P. W. 3) were the two eye-witnesses of the prosecution in regard to the incident relating to the injuries inflicted on Rati Ram and Raja Ram. It held that the presence of Raja Ram had been established by the injuries which were received by him, and it also reached the conclusion that Dwarika (P. W. 3) was also present at the time of the incident. After recording that finding, the Judges raised the question whether those witnesses could identify the assailants in the dark night, and answered it in the following manner,-

"As we were not certain whether persons could be identified in a