Judgment

FAZAL ALI, J. :- This appeal by special leave is directed against a judgment dated September 23, 1976 of the Allahabad High Court acquitting the respondents of the charges framed against them after setting aside the judgment of the Sessions Judge who had convicted them under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to imprisonment for life.

2. The facts of the case have been detailed and fully narrated by the High Court and the Sessions Judge and it is not necessary for us to repeat the same all over again. Suffice it to say that the occurrence is alleged to have taken place on the 29th of May 1969 near the office of Cane Society in Mohalla Chohanan of Jwalapur town situated within the District of Saharanpur. The deceased (Rajinder Kumar) and the respondents were closely related and there appears to have been some sort of a chronic dispute between them which culminated in the said occurrence on May 29, 1969. In the morning of May 29, 1969 Rajinder Kumar scolded the respondent Hari Ram and his brother Atma Ram for having misbehaved with his father and thereafter a short altercation took place in the course of which Hari Ram and Atma Rain threatened to kill him (Rajinder Kumar). According to the prosecution, on the same night at about 10-30 p.m. while the deceased was proceeding from his house to his Gher and was negotiating the road at a point very close to the office of the Cane Society he was confronted by the four respondents, viz., Hari Ram, Satyapal, Naqli and Surendra Naqli and Surendra were armed with knives whereas Hari Ram and Satyapal were armed with spears. On seeing the deceased, Hari Ram exhorted and incited his companions to kill the deceased as a result of which all the four respondents assaulted the deceased with their respective weapons. According to the prosecution, Naqli and Surendra struck the deceased with their knives while Hari Ram and Satyapal assaulted him with the Lathi portion of the spears. Thereafter, the respondents fled Eastward towards the tiraha. P. W. 1 (Rattan Singh), P. W. 2 (Suresh) and P. W. 3 (Harish) were attracted to the scene of the crime and witnessed the same.

3. It was further alleged by the prosecution that at the time of the incident apart from the burning of the street light it was a moonlight night also and there could be no difficulty in identifying the assailants. Even so, the assailants and the deceased were fully known to each other and even if there was no street light they would have been easily identified in the moonlight. Even the defence has not been able to show that the date of occurrence was a dark night nor was this fact questioned before any of the courts. As a result of the injuries received by the deceased he fell down on the spot and died soon after. P. W. 1 arranged a rehri and brought it to the place of occurrence in order to take the deceased to the hospital. The female folk of the house of Sardar Singh and other neighbors also arrived and surrounded the dead body and everybody was weeping and crying. Harish Chand (P. W. 3) drew up a report (Ex.. Ka-1) of the occurrence at the scene of the crime with the help of electric light on the street and proceeded to the police station along with Ratan Singh (P. W. 1) and others where the dead body was, placed in the custody of the police and the written report was lodged at about 11.15. pm. After completing the usual formalities, the investigating officer, M. P. Wats (P. W. 13), drew up the farde beyan which was treated as the F. I. R. An endorsement on the F. I. R. shows that it was despatched to the Magistrate some time in the midnight after 12 Oclock. This fact is important because much has been made by the respondents regarding the ante-timing of the F. I. R. by the police. The Investigating Officer after taking down the F. I. R. proceeded to the spot where he reached at about 2.30 a.m. and immediately examined the witnesses Surat Singh (not examined in court), Ratan Singh