A.K.Gohil, J.

( 1. ) This judgment shall govern the disposal of both the aforesaid criminal appeals. On an allegation that Mangalia and Mori were shot dead by the appellants in furtherance of their common intention both the appellants were prosecuted in Sessions Trial No. 255/90 for the charges under Section 302 and in alternative under Sections 302/34 and both have been convicted under the aforesaid sections vide judgment dated 28-2-1992 and sentenced to life imprisonment. Against which they have preferred this criminal appeal under Section 374 of the Code of Criminal Procedure, challenging their conviction and sentence.

( 2. ) As per prosecution story, in the night of 18-6-1990 deceased Mangalia and Mori were staying in the field of Ram Baboo near the field and tubewell of Kunwarsingh at village Nand-kapura in their tents together with Gopal, Girdhari, Augad, Aman and others and they were carrying herd of sheeps, cattle and goats. They had come from Rajasthan. In the midnight after 2 o clock some miscreants (Badmash) came to their tent. They awakened Mangalia and demanded a goat from him. A wordy quarrel arose and hearing that Mangaliyas sister Mori also came there. On refusing, the miscreants fired at Mangaliya and Mori. Hearing the noise of firing, Gopal and Devaram also came there. Mori died on spot by gunshot. Mangaliya was alive. He was being taken to Porsa for treatment by the villagers but he died in the way. As a consequence of the shots fired some goats also died. Gopal P.W. 8 lodged F.I.R. (Ex. P/13) at Police Station Porsa. Gopal was originally resident of Rajasthan and only at the last night he had come to stay at the place of occurrence. The F.I.R. was lodged, crime was registered. The matter was investigated. Site plan Ex.P/14 was prepared by Ram Baboo Singh Bhadoriya (P.W. 11) and two empty cartridges of 315 bore were also seized from the spot vide Ex. P/17. Co-accused Rameshwar was arrested vide Ex.P.9 and appellant Baboo was arrested on 27-6-1990 vide Ex. P/22. In postmortem examination, two gun-shot injuries were found on the chest of Mangaliya. Gunshot wounds were also found on the body of Mori. After the arrest of the appellants, they were put to identification test parade on 1-9-1990 and after investigation charge-sheet was filed. During trial, in all four accused persons were put to trial, out of which the trial Court convicted the aforesaid two appellants and acquitted one Prem Singh and another co-accused Rameshwar is still absconding. Against the said conviction and sentence the appellants have filed this appeal.

( 3. ) We have heard Shri J.P. Gupta, learned Senior Advocate, and Shri L.S. Chouhan, learned counsel for the appellants and Shri V.G. Khot, learned Public Prosecutor, for the respondent-State and perused the evidence on record.

( 4. ) Shri Gupta argued and submitted that the trial Court has erred in relying upon the testimony of P.W. 8 Gopal and P.W> 10 Devaram. None of the witnesses knew the appellants from before by name. The accused persons were not named in the F.I.R. nor any description about their identity was given in the F.I.R. He further argued that none of the witnesses had given the description in the police statement or even before the test parade. The witnesses had no occasion to see the miscreants. According to him, the evidence of Gopal (P.W. 8) and Devaram (P.W. 10) is not at all reliable. When the incident took place it was the dark night. There was no source of light, therefore, there was no occasion to the witnesses to identify the miscreants. His total submission was that there is no reliable evidence available on record about the identification of the appellants. He further argued that the evidence about the seizure of two empty cartridges of .315 bore is doubtful. Those cartridges were not properly sealed nor kept in proper custody in Malkhana nor were referred quickly for examination by the ballistic expert. There is delay of more than three months and the same ha