JUDGMENT Lakshman Uraon, J. 1. The appellants have preferred this appeal against the judgment and order of conviction dated 22.8.2001 and sentence dated 24.8.2001 passed by Shri Mahesh Prasad Tiwari, learned Sessions Judge, Deoghar in Sessions Trial No. 60 of 1992 convicting the appellants under Section 302 read with Section 149, IPC and under Section 147, IPC sentencing each of them for life imprisonment under Section 302/149, IPC and R.I. for one year under Section 147, IPC directing both sentences in each count in respect of both the convicts shall run concurrently. 2. The facts leading to this criminal appeal arises on the fardbeyan of Gautam Prasad Singh (PW 6) recorded by Inspector L.M. Prasad (PW 7) of Deoghar PS on 25.4.1989 at 9.00 a.m. in Deoghar Hospital on which informant signed (Ext. 2) Informant along with Prem Kumar Singh (not examined) was sitting at Machhalia Kothi of his uncle Ramawatar Singh at Bilasi town outside the gate south of chabutara, whereas Kantu Singh (PW 9) was sitting towards north of chabutara. At that time, S.N. Mishra S.N. Choudhary went there Gajendra Singh (deceased) and Prem Singh were talking. In the meantime, S.N. Choudhary and S.N. Mishra went away. Soon after two minutes. 5-6 persons were seen coming leapingly out of them he identified both these appellants- Shiv Prasad Sharma and Ajit Sharma. Out of them, three persons hurled bombs one each at Gajendra Singh. Gajendra Singh died at the spot due to bomb explosion. Prem Singh sustained injuries due to bomb splinters Kantu Singh (PW 9) who was sitting on another chabutara escaped minutely. On that very day at about 4.00 p.m. a maruti van, driven by appellant Ajit Sharma, stopped in front of his house at Harbans Bhavan. One person came out of the van and inquired about Gajendra Singh (deceased) and the informant as to where they were. Brother-in-law of the informant, namely Jai Govind Sharma (PW 10), had enmity with his brother-appellant Shiv Prasad Sharma regarding landed properties. Informant and his deceased brother were helping in agricultural work to their brother-in-law Jai Govind Sharma at village Banki. The appellants only due to that reason had threatened the informant and his brother to implicate them in false cases if they did not discontinue helping their brother-in-law Jai Govind Sharma in this agricultural works. Informant and his deceased brother were helping in agricultural work to their brother-in-law Jai Govind Sharma at village Banki. The appellants only due to that reason had threatened the informant and his brother to implicate them in false cases if they did not discontinue helping their brother-in-law Jai Govind Sharma in this agricultural works. Due to that animosity, both the appellants with the help of their men murdered Gajendra Singh and injured the informant. The appellants on earlier occasion also had threatened Ram Govind Sharma (PW 11) for which a case under Section 307, IPC at Banka PS was registered against them Informant claimed that when he saw the suspects leaping towards them, he flashed torch-light and in that light, both the appellants were identified. He suspected that fn the alleged commission of offence, there is active role of S.N. Mishra, S.N. Choudhary. and Upendra Singh were sent at Deoghar few days prior to the alleged occurrence; used to threaten the informant and his brother. On that day also, 15-16 persons were on car, jeep and Maruti van roaming at Deoghar. 3. The appellants were charged under Sections 302, 302/149, 147 read with 120B and 324, IPC and also 3/4 of the Explosive Substance Act. 4. The prosecution examined 11 witnesses in order to substantiate the charges, whereas the defence-appellants also produced 7 witnesses to prove the alibi taken at the earliest stage of investigation to show that they were not present at Deoghar when the alleged occurrence took place, rather they were residing at Bhagalpur. The learned Sessions Judge, Deoghar considered the evidence of both the parties and convicted the appellants under Section 302 read with 149, IPC and 147, IPC acquitting them from the charges framed under Sections 302, 120B, 324, IPC and 3 and 4 of the Explosive Substance Act. 5. Challenging the order of conviction and sentence under Sections 302/149, IPC and 147, IPC, the learned counsel for the appellants has submitted that there is contradictory evidence of the eye-witnesses-PW 4 Gargi Devi (mother of the deceased), PW 6 Gautam Prasad Singh (son of PW 4 and PW 9) Kantu Singh (servant of the father of the deceased were sitting on the chabutara towards North) who claimed themselves to be the eye-witnesses. It was urged that the alleged occurrence took place due to property dispute of Jai Govind Sharma (PW 10 and brother-in-law of the informant) with his brother appellant No. 1 Shiv Prasad Sharma (father of appellant No. 2 Ajit Sharma). The learned Sessions Judge did not consider the evidence of the defence witnesses who are seven in number. PW 4 Gargi Devi, mother of the deceased, has deposed that when S.N. Mishra and S.N. Choudhary took her son Gajendra Singh, then she also followed them upto Machhalia Kothi where Prem Kumar and Gautam Singh were sitting and Gajendra Singh was standing. She saw 2-3 persons fleeing away out of them she claimed to identify these appellants, But before the police, she did not claim that she followed S.N. Choudhary, S.N. Mishra and her deceased son from Harbans Kothi to Machhalia Kothi. PW 1 Sona Singh and PW 2 Mohan Singh have deposed that PW 4 went to the place of occurrence after the alleged occurrence. Thus, her deposition that she followed S.N. Mishra upto the place of occurrence Machhalia Kothi is quite improbable. She had not met informant PW 6. her son, at Machhalia Kothi. There was no source of identification, hence the identification of these appellants is not possible. Her statement that she followed the deceased could not be corroborated by servant Kantu Singh (PW 9). PW 6 Gautam Prasad Singh (informant) in his fardbeyan claimed that he also sustained injuries due to bomb explosion and splinters, but the I.O. did not find any injury on his person. He claimed that he flashed the torch and in that light, he identified these appellants, is also not believable, as the torch, the only means of identification, was not produced before the police. PW 6 did not see the deceased Gajendra Singh or his mother PW 4 at Machhalia Kothi. These alleged eyewitnesses have not deposed that these appellants hurled bombs, rather out of 5-6 persons, there hurled bombs. PW 4 and PW 6 have suspected these appellants to be the murderers only due to enmity. Another eyewitness PW 9 Kantu Singh could not identify these appellants nor he knows the accused. 6. The learned counsel for the appellants has further argued that the FIR was received in the Court after two days of the alleged occurrence. PW 4 and PW 6 have suspected these appellants to be the murderers only due to enmity. Another eyewitness PW 9 Kantu Singh could not identify these appellants nor he knows the accused. 6. The learned counsel for the appellants has further argued that the FIR was received in the Court after two days of the alleged occurrence. PW 4 Gargi Devi claimed that her statement was recorded by the police on which she signed, was not brought on record which was the earliest version of the prosecution story. The subsequent fardbeyan of PW 6 Gautam Prasad Singh is simply statement under Section 161, Cr PC. Not even a single independent witness of the locality has been examined. Even the interested witnesses, who are closely related, have not seen as to who hurled bomb causing death of Gajendra Singh. The Investigating Officer found two live bombs near the hands of the deceased whose head was blown due to bomb explosion inside the gate of Machhalia Kothi. The injury report of Prem Singh prepared by the I.O. was also not brought on record. So also PW 6, the informant, who claimed himself to have sustained injuries, but there is no injury report to corroborate this fact that he sustained injuries, rather the I.O. did not see any injury on the person of the informant. Injured Prem Singh has purposely not been examined in this case only to conceal the truth of the case. The learned counsel for the appellants has submitted that enmity is admitted and suspicion cannot be ruled out that the deceased himself had possessed three bombs and out of them one exploded blowing his head and two live bombs were found near his hands. The I.O. did not find any sign of bombs explosion or bloodstains on the chabutara where PW 6 and PW 9 were sitting. No splinters were found by the I.O. to support the explosion of bombs. On these grounds it was urged that these appellants have erroneously been convicted with the aid of 149, IPC in absence of any corroborative evidence that they were among the three assailants who hurled bombs and had given order to them who hurled bombs. There is no evidence that these appellants ordered, exhorted on pointed out the deceased to throw bomb by the other assailants who were unknown. There is no evidence that these appellants ordered, exhorted on pointed out the deceased to throw bomb by the other assailants who were unknown. PWs 4, 6, and 9, the only eye-witnesses, are very clear in their evidence that those who threw bombs could not be identified. It was urged that there is no evidence to connect these appellants with those 5-6 unidentified persons. On these grounds it was urged that both these appellants deserve acquittal giving them benefit of doubts, as the defence alibi clearly shows, both by oral and documentary, that these appellants have taken the plea at the earliest stage of investigation and the police also verified it that they do not belong to Deoghar, rather they are outsiders. 7. Learned A.P.P. refuting the arguments advanced by the appellants has submitted that there is enmity in between the appellants and Jai Govind Sharma, brother-in-law of the informant. Due to land dispute, appellants had threatened the informant and his deceased brother not to help in agricultural works of their brother-in-law Jai Govind Sharma. otherwise, they would be done to death. On earlier occasion also, there was attempt for which Bank police case was registered under Section 307, IPC. On that day also, at about 4.00 p.m. appellant No. 1 Shiv Prasad Sharma was seen driving Maruti Van and one of them came out and inquired about the informant and the deceased as to where they were. They planned to cause murder of the deceased for which S.N. Mishra, S.N. Choudhary and one Sanjeet Sharma were sent to call Gajendra Singh from Harbans Kothi. S.N. Mishra took deceased Gajendra Singh to Machhalia Kothi where in a planned way, with the help of their associates, bombs were hurled causing death of Gajendra Singh at the spot. PW 1 Sona Singh, PW 2 Mohan Singh and PW 10 Jai Govind Sharma also corroborated that put of 5-6 persons, three hurled bombs and these appellants were also participants in causing murder of Gajendra Singh who were identified by the witnesses. On these grounds, it was submitted that the learned lower Court has considered all these evidence, oral and documentary, of the parties and has rightly convicted and sentenced the appellants thereunder. 8. The place of occurrence is Bilasi town Machhalia Kothi in front of the gate Adjacent south of it. On these grounds, it was submitted that the learned lower Court has considered all these evidence, oral and documentary, of the parties and has rightly convicted and sentenced the appellants thereunder. 8. The place of occurrence is Bilasi town Machhalia Kothi in front of the gate Adjacent south of it. there is betel shop of one Umesh Dubey who has not been examined as a witness in this case. At a distance of 250 yards towards north, there is Chhatisi Mohalla and 50 yards east of that Chhatisi Mohalla, the house of deceased Gajendra Singh is situated. The I.O. found pieces of head of the deceased 25 yards west inside Machhalia Kothi scattered. He found two live bombs by the side of the dead body. The eye-witnesses are PW 4 Gargi Devi, PW 6 Gautam Kumar Singh (informant) and PW 9 Kantu Singh I have to consider the evidence carefully as they are related with the deceased and are interested witnesses. PW 6 informant along with Prem Kumar Singh went to Machhalia Kothi. They were outside the gate where Kantu Singh (PW 9) was sitting there. S.N. Mishra and S.N. Choudhary went there along with Gajendra Singh (deceased). Informant has claimed that out of 5-6 persons, both these appellants were there, but the unknown persons hurled bombs. PW 4 Gargi Devi has deposed that she was at her house at Bilasi town where S.N. Choudhary and S.N. Mishra went there and took her son Gajendra Singh of Machhalia Kothi near chabutara. She deposed that she also followed them and as soon as she arrived there, 2-4 persons were seen fleeing away, out of them she identified Shiv Prasad Sharma and Ajit Sharma, both these appellants. When bombs exploded, there was light and in that light she identified these appellants fleeing away. She has not seen the appellants hurling bombs, but the unknown person who were among 5-6 in numbers, hurled bombs. Her statement was recorded by the police on which she gave her signature. At that time, her son PW 6 Gautam Singh was not there, rather he had been to hospital. Her house is known as Harbans Kothi and at a distance of 400 yards, the P/O Machhalia Kothi is situated. When she went to Machhalia Kothi, she saw 20-25 persons assembled there. Her son informant PW 6 was sitting along with Prem Singh at Machhalia Kothi. Her house is known as Harbans Kothi and at a distance of 400 yards, the P/O Machhalia Kothi is situated. When she went to Machhalia Kothi, she saw 20-25 persons assembled there. Her son informant PW 6 was sitting along with Prem Singh at Machhalia Kothi. PW 6 has deposed that S.N. Choudhary and S.N. Mishra took Gajendra Singh to Machhalia Kothi. He has also not seen as to who hurled bombs among 5-6 persons as it was dark night. Three persons hurled one bomb each at his brother Gajendra Singh who succumbed to his injuries. He did not see Gajendra Singh (deceased) at Machhalia Kothi in the torchlight flashed by him. He could not see as to who possessed bombs. The unknown persons hurled bombs and fled away. He had a torch, but he does not know what happened to that torch. Before going to hospital, he did not see any member of his family including his mother (PW 4). Informant deposed that leaving the dead body alone, he went to police station. Therefore, he went to hospital. The I.O. Lal Mohan Sharma (PW 7) did not find any injury on his person, nor he was referred to hospital nor there is any injury report to substantiate injuries due to bomb explosion PW 7 (I.O.) contradicts the statement of PW 4 that her statement was recorded at the police station on which she signed. The statement of PW 6 was also not recorded at the police station, rather PW 7 after entering S.D. Entry No. 658 that one person at Bilasi town died due to bomb explosion, went there. He saw the dead body and by the side of the hand of the dead body, there were two live bombs. The head was damaged due to explosion of bomb and the pieces of head were inside the Machhalia Kothi. Informant recorded the fardbeyan of the informant (PW 6) and also prepared injury report and seizure-list. He returned police station at 11.00 p.m. after remaining at the P/O place in between 8.00 p.m. to 9.00 p.m. He had been at the P/O at 9.40 p.m. He recorded the statement of nearby persons Ramanuj Prasad, Bhuneshwar Pandit, Badri Keshri, Raju Mistri; but they have not been made prosecution witnesses in this case. He returned police station at 11.00 p.m. after remaining at the P/O place in between 8.00 p.m. to 9.00 p.m. He had been at the P/O at 9.40 p.m. He recorded the statement of nearby persons Ramanuj Prasad, Bhuneshwar Pandit, Badri Keshri, Raju Mistri; but they have not been made prosecution witnesses in this case. He found Prem Singh and Gopal Singh injured and issued injury slips, but he did riot record their statement, nor they have been examined by the prosecution. He did not find any injury on the person of the informant. Hence he did not issue any injury slip. PW 1 Sona Singh, who is gate-keeper of the father of the deceased, has not identified these appellants. He could not give any description of the other assailants. PW 4 had also not stated that S.N. Choudhary and S.N. Mishra took her son whom she followed and identified both of these appellants in the light after bomb explosion. She had not seen both these appellants fleeing away, but in course of her evidence in the Court she has improved the prosecution case. The FIR was sent to the Court on 26th April, 1989 which was received on 27th April. 1989. The delay in sending the FIR creates doubt that the original statement of Gargi Devi (PW 4) which was earlier recorded by the police on which she signed was changed and after concoction and improvement, the fardbeyan of PW 6 Gautam Prasad Singh was recorded subsequently. This took some time, hence the FIR was sent which was received in Court after two days of the alleged occurrence. PW 10 Jai Govind Sharma and PW 11 Ram Govind Sharma were at Patna on 25.4.1989. When informed by PW 6 Gautam Prasad Singh regarding the murder of Gajendra Singh by these appellants and 5-6 others due to land dispute, they came to Deoghar, When they came to Deoghar, then the fardbeyan of PW 6 Gautam Prasad Singh was recorded, also shows concoction and embellishment in the prosecution story which was managed after planning by all these interest persons who are closely related to the deceased. 9. PW 5, Dr. Narendra Mohan Sharma on 26.4.1989 conducted autopsy on the dead body of Gajendra Singh and found extensive wound from neck, left shoulder, upper part of left arm with burn injury of skin. 9. PW 5, Dr. Narendra Mohan Sharma on 26.4.1989 conducted autopsy on the dead body of Gajendra Singh and found extensive wound from neck, left shoulder, upper part of left arm with burn injury of skin. He found only few parts of skull bone were attached with the remaining part of scalp. Few pieces of brain tissues were found with other tissues of face, mussels bone of neck and mussels of shoulders and clavicles. The death with within 12 hours from the time of examination which was caused due to shock and haemorrhage as a result of above injuries caused by explosion of bombs. Ext. 1 is the post mortem report. 10. When the evidence of the witnesses-PW 4, PW 6 and PW 9, who are eyewitnesses, and the interested witnesses-PW 1 Sona Singh, gate-keeper, PW 10 Jai Govind Sharma (brother-in-law of the deceased) and PW 11 Ram Govind Sharma, hearsay witnesses, and PW 2 Mohan Singh who is also friend of PW 1, another hearsay witnesses are considered, I find that no one is eye-witness PW 4, PW 6 and PW 9 who claimed themselves to be present and have seen the hurling of bombs by unknown persons have not alleged that these appellants had also played any active role in hurling the bombs or they were instigating the unknown criminals who hurled bombs at Gajendra Singh resulting his death PW 1 Sona Singh hearing the sound of bomb explosion, went to Machhalia Kothi and saw the dead body of Gajendra Singh. The persons present there Prem Babu (not examined) and Kantu Singh (PW 9) informed that six persons came there and hurled bombs causing injuries to Gajendra Babu (since dead), Gautam Babu (PW 6) and Prem Babu (not examined). There is evidence that Gajendra Prasad Singh succumbed to his injuries, but the other injured-Prem Babu and informant Gautam Singh, were not examined by any doctor nor the I.O. (PW 7) saw any injury on the person of Gautam Prasad Singh, informant. He went to the place of occurrence along with PW 4 Gargi Devi and wife of the deceased which belies the statement of PW 4 Gargi Devi that she followed her son who was taken by S.N. Choudhary and S.N. Mishra to Machhalia Kothi and claims to be the eye-witness. 11. He went to the place of occurrence along with PW 4 Gargi Devi and wife of the deceased which belies the statement of PW 4 Gargi Devi that she followed her son who was taken by S.N. Choudhary and S.N. Mishra to Machhalia Kothi and claims to be the eye-witness. 11. The learned counsel for the appellants in course of his argument has submitted that the learned Court below has not considered the evidence of seven defence witnesses examined on their behalf. As a rule, the evidence of the prosecution witnesses as well as the evidence of the defence witnesses has to be considered equally, although the prosecution has to stand on its own leg to prove the charges framed against the accused. The defence by examining witnesses tried to create doubt in the manner of the alleged occurrence and participation of the accused when committing the offence. In this present case, PW 7 (I.O.) has admitted that informant did not produce any torch which was the only means of identification. At the very beginning, appellant No. 2 Ajit Sharma had taken alibi on which basis, the I.O. has asked PW 1 Sona Singh about the description of the assailant Ajit Sharma, but Sona Singh remained mum. The informant and other witnesses have deposed that the appellants are not residing at Deoghar, rather they used to reside at Bhagalpur. DW 2 Bhagwan Singh, S.I. Rail P.S., Katihar had inquired about the alibi taken by the appellants and went Jhandapur Petrol Pump where the appellants used to run their business and obtained cash memo issued in between 25.4.1989 to 28.4.1989. The owner of the said petrol pump is appellant No. 2 Ajit Sharma. He recorded statement of Deonarayan Singh, Sunil Singh, Vivekanand Kumar, Krishna Kumar Choudhary and Vijay Kumar Choudhary and also Ashok Kumar Gupta, Guard. He also verified the credit register of the petrol pump and seized all those documents. DW 3 Sushil Ranjan Mukherjee has deposed that appellant No. 1 Shiv Prasad Sharma was member of Bhagalpur University, Senate and Synidicate and was Secretary of Bhagalpur Evening College. On 25.4.1989, which is the alleged date of occurrence, this DW 3 Sushil Ranjan Mukherjee has been to his house who was suffering due to arthritis. DW 3 Sushil Ranjan Mukherjee has deposed that appellant No. 1 Shiv Prasad Sharma was member of Bhagalpur University, Senate and Synidicate and was Secretary of Bhagalpur Evening College. On 25.4.1989, which is the alleged date of occurrence, this DW 3 Sushil Ranjan Mukherjee has been to his house who was suffering due to arthritis. At his place at 9.30 p.m. dignitaries namely Nawal Khishore Prasad Singh (ex- District Judge), Harish Chandra Sharma, Randhir Prasad Singh and Dhanajay Kuar Singh were present. DW 4 Randhir Kumar Singh, advocate of Bhagalpur had also been to the house of appellant No. 1 Shiv Prasad Sharma on 25.4.1989 at 7.30 p.m. There he found Professor Shivrat Mukherjee, Jail Superintendent Harish Sharma, Dhananjay Kuar and others. He also saw there Nawal Babu Judge who had gone there to see the ailing appellant Shiv Prasad Sharma. DW 5 Bimal Kumar Choudhary, clerk of the petrol pump belonging to appellant No. 2 has proved cash memo signed by appellant No. 2 (Exts. C-series), DW (sic) Ram Krishna Yadav, who was record-keeper- cum-cashier, State Bank Jhanda Branch, Bhagalpur proved vouchers in the pen and signature of appellant No. 2 Ajit Sharma (Ext. D) which was received by appellant No. 2 himself on 25.4.1989. When considered the evidence of these defence witnesses, it creates doubt about their presence at Deoghar at the P/O Machhalia Kothi. They reside at Bhagalpur having their petrol business. Appellant No. 1 is an old person of 72 years above. Even then he could not be chased and apprehended at busy town Deoghar, if he had been there for committing the crime. 12. In this present case, none of the independent witnesses of nearby place of occurrence has been examined by the prosecution. Even injured Prem Singh has not been examined who sustained injuries. PW 6 Gautam Prasad Singh claims to be the eye-witness and informant of this case. Prior to his fardbeyan, statement of his mother Gargi Devi (PW 4) was recorded on which as per her evidence, she signed. This earlier piece of evidence the FIR--was suppressed and not produced before the Court. PW 6 Gautam Prasad Singh informed his brother-in-law PW 10, Jai Govind Sharma and another Ram Govind Sharma (PW 11) who were at Patna at that time. This earlier piece of evidence the FIR--was suppressed and not produced before the Court. PW 6 Gautam Prasad Singh informed his brother-in-law PW 10, Jai Govind Sharma and another Ram Govind Sharma (PW 11) who were at Patna at that time. They were informed on phone at about 9.50 p.m. whereas the informant claims that his statement was recorded by Inspector Lal Mohan Prasad (PW 7) in Deoghar Hospital at 9.00 p.m. This could riot be corroborated as the I.O. PW 7 Lal Mohan Prasad did not find any injury on his person. There is no injury report of the doctor, rather he has deposed that he first went to the police station and from there he went to the hospital. There was no occasion for him to go to hospital, rather he was engaged in informing PW 10. and PW 11 on phone at Patna in between 8.00 p.m. to 10.00 p.m. on 25.4.1989. The evidence of PW 10 that he was informed by the informant at 8.00 p.m. regarding murder of his brother and the evidence of PW 11 that he received information in between 9.00 to 10.00 p.m. on 25.4.1989 on phone by the informant Gautam Prasad Singh that his brother Gajendra Singh was murdered, belies the evidence of informant that he was in Deoghar hospital on 25.4.1989 at 9.00 p.m. when his fardbeyan was recorded. The I.O. has not properly investigated the case and the evidence of PW 6 and behaviour of PW 7 (I.O.) seems to be doubtful which is after thought in a planned way. The subsequent fardbeyan was recorded and the earlier fardbeyan of PW 4 Gargi Devi in which the involvement of these appellants were not mentioned was suppressed. Even in the present case and he fardbeyan which was recorded at 9.00 p.m. in Deoghar hospital on 25.4.1989 of the informant Gautam Prasad Singh is not specific that these appellants were among the assailants. Simply that there was enmity, hence they have been alleged that they also were seen fleeing away among the other 5-6 unknown persons. The eye-witnesses have not seen as to who hurled bombs. It is surprising that two live bombs were found near the hand of the deceased inside Machhalia Kothi gate at a distance of 25 yards. The chabutara is outside the gate on north and south side. The eye-witnesses have not seen as to who hurled bombs. It is surprising that two live bombs were found near the hand of the deceased inside Machhalia Kothi gate at a distance of 25 yards. The chabutara is outside the gate on north and south side. In between those gates, there was no explosion of bomb or splinters of bombs, nor there was any remnants of bombs at either of the chabutaras situated at north and south side of the gate. Gajendra Singh was standing outside the gate talking with Prem Kurnar. At that time, unknown persons hurled bombs. Prem Kumar sustained injuries, but he was not examined in this prosecution case. They were outside the gate but due to hurling of bombs, the head of Gajendra Singh was blown and was found 25 yards inside the gate of Machhalia Kothi. The evidence of PW 9 Kantu Singh, servant of the father of the deceased, also reveals that he was sitting on the northern side of the chabutara. He has seen three persons hurling bombs whom he could not identify. He has also not deposed that these appellants were among them who fled away along with them. The evidence of mother Gargi Devi (PW 4) and her son informant Gautam Prasad Singh (PW 6) who are highly interested, is also full of contradictions as to whether they were at the place of occurrence and had seen any person hurling bomb at Gajendra Singh. As I have discussed above that PW 4 Gargi Devi, who is aged about 62 years, suppressed the real fact which she had narrated before the I.O. on which she signed and on being tutored by her son, she claims that she also followed her son deceased Gajendra Prasad Singh and went to Machhalia Kothi. On the other hand, the other witnesses who are also interested and sons of PW 4 have deposed that she went along with wife of the deceased from their residence Harbans Kothi to Machhalia Kothi which belongs to uncle of the informant and situated at a distance of 400 yards and saw the dead body along with servant of the father of the deceased. No one disclosed the name of the assailants who were present at Machhalia Kothi numbering 20-25 nearby persons. No one disclosed the name of the assailants who were present at Machhalia Kothi numbering 20-25 nearby persons. As deposed by PW 4 Gargi Devi herself, all the witnesses including the I.O. have deposed that at that time, there was no electric supply in the area, hence there was no means of identification as it was dark night. The alleged occurrence took place at 8.30 p.m., even then none of the nearby persons assembled there and chased the assailants nor they have been examined by the prosecution. The informant claims that he saw in the torch light flashed by him but he does not know what happened to the torch which he left at the P/O the I.O. did not find, any means of identification at the P/O. When the evidence of all the witnesses examined by the prosecution and the defence is considered in totality, it creates doubts in my mind about participation of these appellants in hurling bombs at Gajendra Singh resulting his death. The identification of both these appellants while they were fleeing away in the dark night by PW 4 and PW 6 is quite improbable as there was no means of identification. The story of flashing torch has been introduced purposely to improve the prosecution case to implicate these appellants falsely due to land dispute of Ajit Sharma and his brother Jai Govind Sharma. Jai Govind Sharma is brother-in-law of the informant and the deceased. Informant and the deceased used to look after the agricultural work of their brother-in-law Jai Govind Sharma which was not liked by Ajit Sharma, brother of Jai Govind Sharma, who had dispute regarding claiming of land. This is the ground of false implication of these appellants who were not the assailants, but they have been convicted with the aid of Section 149, IPC. The learned Court below has not considered all these circumstances and the evidence available on record meticulously and was misled only because there was enmity in between the parties and these appellants had threatened the deceased. The learned Court below did not consider that due to threatening given to Gajendra Singh, he himself might have possessed bombs or preparing bombs which accidentally exploded blowing his head and the other two remained unexploded near his hand. The learned Court below did not consider that due to threatening given to Gajendra Singh, he himself might have possessed bombs or preparing bombs which accidentally exploded blowing his head and the other two remained unexploded near his hand. The conduct of the I.O. seems to be favourable to the informant (PW 6) Gautam Prasad Singh who recorded his fardbeyan in Deoghar hospital whereas Gautam Prasad Singh never sustained any injury, rather he was busy in informing PW 10 and PW 11 on phone who were at Patna in between 8.00 to 11.00 p.m. on that very date 25.4.1989. This doubts in my mind gets further strengthened that injured Prem Kumar Singh, who was eye-witnesses and was present at the P/O talking with the deceased Gajendra Singh, was also not produced, rather his evidence was suppressed. He would have been the best person to explain as to how the bomb exploded causing injury to the Gajendra Singh. It creates doubts in my mind that Prem Kumar Singh was along with Gajendra Singh who might have possessed bomb and one of them exploded causing injury both of them resulting death of Gajendra Singh. Only to suppress the real fact, Prem Kumar Singh did not appear as a prosecution witness. PW 7 did not find any injury on the person of the informant Gautam Prasad Singh (PW 6), then in my mind doubt again haunts as to why he was admitted in hospital where his fardbeyan was recorded. 13. When all the pros and cons of the prosecution case and the evidence of the interested witnesses are considered, I find that death of Gajendra Prasad Singh due to bomb explosion is not in doubt, but the participation of these appellants is doubtful. There is also not evidence that they had taken any active role either by giving direction or indication to the other assailant who hurled bomb to attract Section 149, IPC to convict them under Section 302/149, IPC and Section 147, IPC. 14. Viewed thus, the order of conviction passed against these appellants by the learned Court below cannot be sustained as the prosecution case is full of doubts and the benefit must go to the appellants. 15. In the result, this criminal appeal is allowed and the order of conviction and sentence passed against them is set aside. 14. Viewed thus, the order of conviction passed against these appellants by the learned Court below cannot be sustained as the prosecution case is full of doubts and the benefit must go to the appellants. 15. In the result, this criminal appeal is allowed and the order of conviction and sentence passed against them is set aside. Both the appellants are acquitted from the charges under Sections 302/149 and 147, IPC. As both the appellants are on ball, they are discharged from the liability of bail bonds. S.J. Mukhopadhaya, J. 16. I agree.