Judgment B.N.P.Singh, J. 1. Allegedly, for carrying a bomb in the bag, which was exploded by Rajendra Rai, for killing deceased Shaligram Singh, appellant, who suffered conviction under section 302/34 of the Indian Penal Code (in Short IPC) and also Section 27 of the Arms Act and Sections 3/4 of the Explosive Substance Act, was sentenced to death by the trial Judge, an extreme penalty prescribed under the statute. 2. Essential features of the prosecution case, which are not in much details, can be noticed at the threshold. On hearing alarms emanating from the side of house of Kameshwar Rai, when Indu Devi, wife of Shaligram Singh, opened door of her house, some persons dragged her husband to sahan, pursuant to which both Sikandar Singh and Rajendra Rai lobbed bomb on him, and those who accompanied them, were having lethal weapons with them, Shaligram Singh, who was critically injured, was eventually carried to Darbhanga Medical College Hospital where he succumbed to the injuries. Appellant Ramshresth Singh too was identified among the assailants of the deceased. As for genesis of the incident, it was stated in the earliest version of the prosecution that 20 days preceding the incident, deceased Shaligram Singh had registered protest when Rajendra Rai had irrigated his land from his pump set. 3. The prosecution was launched on behest of Indu Devi, wife of the deceased, pursuant to which investigation commenced, in course of which the Investigating Officer recorded statement of witnesses, visited place of occurrence, seized blood stained earth and also reminiscence of explosion of bomb, got autopsy held over the dead body of the deceased and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial that followed, State examined 13 witnesses including wife of the deceased, other family members, the doctor and also host of witnesses, some of whom had also turned volte face to the State. 4. Defence of the appellant, both before the Court below and this Court had been that when dacoity was being committed in the house of Kameshwar Rai by unknown criminals, on exhortation made by the deceased for resistance, one of them had exploded bomb on him. The trial court, however, on appreciation of probative value of the testimony of witnesses, while rejecting plea of innocence of the appellant, recorded finding of guilt and sentenced the appellant to death under section 302/34 IPC. 5. The trial court, however, on appreciation of probative value of the testimony of witnesses, while rejecting plea of innocence of the appellant, recorded finding of guilt and sentenced the appellant to death under section 302/34 IPC. 5. To appreciate the contentions, which were raised at Bar on behalf of the appellant by the learned counsel appearing as amicus curiae, it is appropriate to notice the narratives of the prosecution case unfolded in the testimony of witnesses, lest they are lost sight of. However, we may first discuss evidence of those witnesses, who are not on material particulars of the case. Though Permanand Rai (P.W.6), stated about part of the incident that took place in the night of the occurrence, since he had not disclosed complicity of the appellant or other miscreants, he was treated hostile by the State. Though Kailash Rai (P.W. 7) states about incident of assault in the night of the incident, he too did not disclose complicity of the appellant and similar was the case with Pramod Rai, son of Kameshwar Rai also as though dacoity is shown to have been committed in his house also and the witnesses also stated about incident of assault, and miscreants having ransacked his house lobbing a bomb, he did not claim identification of any of the miscreants. Rabindra Nath Singh (P.W. 9) did not come out from his house even on hearing alarms while dacoity was being committed in the houses and he too had turned hostile at trial. Though Surendra Prasad Singh (P.W. 10) too states about lobbing of bomb and also miscreants having resorted to firing in course of dacoity in the house of Kameshwar Rai, he too was declared hostile by the State, his evidence being not parallel to statement rendered by him during investigation. Case of Kameshwar Rai (P.W. 12) too stands at par with these witnesses, as he too did not disclose either details of the incident or complicity of the appellant and he too was treated hostile by the State. 6. Dr. V.C.S. Verma (P.W. 13), who held autopsy over the dead body of the deceased, noticed two stitched wounds and one abrasion, and while injury no. (1) in his estimation had been caused by firearms, which was dangerous to life, other two injuries in his opinion were caused by hard and blunt substance. 6. Dr. V.C.S. Verma (P.W. 13), who held autopsy over the dead body of the deceased, noticed two stitched wounds and one abrasion, and while injury no. (1) in his estimation had been caused by firearms, which was dangerous to life, other two injuries in his opinion were caused by hard and blunt substance. The doctor stated to have recovered bullet also from muscle of abdominal wall. 7. How we may advert to the other set of witnesses who projected themselves as eye witnesses and on whom reliance was placed also by the court below for recording verdict of guilt against the appellant. The deceased was brother of Krishna Devi (P.W.1) and she says that 12/15 persons dragged Shaligram Singh from his house, pursuant to which while Rajendra Rai fired shots on him, Sikander Singh having taken out a bomb from the bag of the appellant, lobbed it on the deceased who eventually succumbed to them after he was carried out to Darbhanga Medical College Hospital for treatment. She states also about incident of assault with fists and slaps, notwithstanding there being no such accusation in the earliest version of the prosecution. 8. Indu Devi (P.W.2), wife of the deceased stated to have followed her husband who had gone to the door of the house on hearing alarm coming from the side of house of Kameshwar Rai. She saw the appellant holding a bomb in a bag, in the company of a number of persons including Ranvir Singh, Sikander Rai and others. As for accusation attributed to them, she says that on exhortation made by Ranvir Singh, while Sikander Rai exploded bomb having taken it out from bag of the appellant, Ranvir Singh had fired shots on the deceased. Rajendra Rai too had exploded bomb on the deceased and the assailant did not permit her to save her husband who had suffered lathi blows also. As for genesis of the incident, the witness reiterates her earliest version about her husband having registered protest when Rajendra Rai had irrigated his land from her pump set. Grievance of the witness was that since the Police Officer had not recorded her statement properly, there being no averments in the earliest version about deceased having suffered injuries by gun shot, she had met superior Police Officer. 9. Grievance of the witness was that since the Police Officer had not recorded her statement properly, there being no averments in the earliest version about deceased having suffered injuries by gun shot, she had met superior Police Officer. 9. While adverting to evidence of Sitaram Singh (P.W.11), who happens to be the full brother of the deceased, we find witness stating that 15/16 persons having ransacked house of Shaligram Singh, dragged him out, when Satyendra Singh exploded bomb on him. About accusations attributed to others, the witness says that Rajendra Rai too having taken out bomb from the bag of the appellant had lobbed it on the deceased. About Ranvir Singh, the witness says that he too had fired shots on the deceased. There is yet evidence of Anirudh Singh alias Bhola Singh (P.W.2), who made omnibus accusations that appellant along with Rajendra Rai, Sikander Singh, Sikandar Rai and 7 to 8 persons had killed Shaligram Singh. Attention ol this witness too had been drawn by the defence, he having not made parallel statement before Police during investigation. and it was suggested to him that instead of being ocular witness to the incident, he stated during investigation about he having rushed to the place of occurrence after hearing sound of explosion of bomb. Though Gajendra Singh (P.W.4), Police Constable, did not claim seizure of offending articles from the place of occurrence by the Police Officer, he stated about preparation of seizure memo by the Police for seizure of wearing apparel of the deceased which were blood stained. This is all the evidence that has been adduced on behalf of the State. 10. Infirmity that has crept in the prosecution version and also in evidence of the witnesses are writ large on face of it, which cannot be lost sight of. If earliest version of Indu Devi (P.W. 2), wife of the deceased, was to be given due consideration, which was also the sheet anchor of the prosecution case, no such explicit accusation about appellant carrying bomb in bag was ever attributed to him as, only bald assertions made in the earliest version of Indu Devi was about appellant being among the assailants of her husband. However, substantial improvements were introduced at trial in narrations made by the witnesses about complicity of the appellant, as Krishna Devi (P.W. 1), Indu Devi (P.W. 2), and Sitaram Singh (P.W. 11), stated about Sikandar Singh having lobbed bomb, taking it out from bag of the appellant, on the deceased. Though Krishna Devi (P.W. 1) and Sitaram Singh (P.W. 11) had made similar statements before Police during investigation about appellant carrying a bomb in his bag, it had never been the case of the prosecution in the earliest version of Indu Devi (P.W. 2). As for Indu Devi (P.W. 2), evidence of this witness at trial ex facie suffers with substantial improvement over earliest version, she having not made accusation against the appellant about carrying a bomb in the bag. Though blood stained earth and also reminisces of explosion of bomb are shown to have been collected by the Police Officer from the place of occurrence, since Investigating Officer was not examined at trial, many good questions remained unanswered, and the objective findings of the Police Officer could not be placed on the record, and that apart there has not been finding of the chemical examiner also about reminisces noticed at the place of occurrence by the Investigating Officer, to be explosive substance. Yet there is other vital infirmity which rendered prosecution version unworthy of reliance, as though the deceased was shown to have suffered injuries by explosion of bomb allegedly lobbed by Rajendra Rai when he took it out from bag of the appellant, the doctor had not found any of the injuries noticed on the person of the deceased to have been caused by explosion of bomb. If we take into consideration the findings recorded by Dr. V.C.S. Verma, while one injury had been caused by firearm, others were by hard and blunt substance. Though Ranvir Singh and Rajendra Rai too had been put at trial, who were shown to be assailants of the deceased, they jumped bail in the midst of the proceeding, and it is how that the finding could be recorded against appellant alone by the trial court. Though Ranvir Singh and Rajendra Rai too had been put at trial, who were shown to be assailants of the deceased, they jumped bail in the midst of the proceeding, and it is how that the finding could be recorded against appellant alone by the trial court. Contentions were raised that though the appellant had suffered conviction also under section 3/4 of the Exlosive Substance Act and 27 of the Arms Act, there being no such evidence on the record to support these allegations, hardly there was good reason to record finding of guilt against the appellant on this count and that apart, even there was no sanction accorded by District Magistrate for prosecution of the appellant on this count. Learned counsel for the appellant had also drawn our attention to some of the observations made by the trial court while recording finding of guilt against the appellant and the submission is that the trial court having taken notice of jail petition, allegedly filed by the appellant, had drawn unwarranted conclusion that appellant had also participated in the murder of the deceased. We too are of the view that there being no good evidence, there was no occasion for recording such finding simply on a petition filed by the appellant from jail. True it is that the occurrence took place in the night and those who had come to lend assurance to the prosecution allegations happen to be none else but kith and kin of the deceased. Had some independent witnesses been examined by the State, probably no eye brows could have been raised against their credibility. Though a good deal of argument was also canvassed about extreme penalty of death awarded to the appellant, there being neither aggravating evidence nor case being rarest of the rare, since we are of the view that finding of guilt recorded against him cannot be sustained in law, we make no further comment on the magnitude of sentence awarded to the appellant. 11. Having critically analysed evidences of the prosecution witnesses, we find that finding recorded by trial court was not based on meticulous aporeciation of evidences available on the record, and in that view of the matter, we set aside the finding of guilt and also sentence recorded against the appellant and acquit him of the charges. 11. Having critically analysed evidences of the prosecution witnesses, we find that finding recorded by trial court was not based on meticulous aporeciation of evidences available on the record, and in that view of the matter, we set aside the finding of guilt and also sentence recorded against the appellant and acquit him of the charges. Since appellant Ram Shresth Singh happens to be in custody, we direct that he be set free forthwith, if not wanted in any other case. Let first and last page of the judgment be made available to amicus curiae who shall be eligible for remuneration from the Patna High Court Legal Aid Committee. The appeal accordingly succeeds. Death reference sent to this Court under section 366 of the Code of Criminal Procedure by the trial court is answered accordingly. I.P. Singh 12. I agree.