JUDGMENT Hari Shankar Prasad, J. 1. This appeal is directed against the judgment of conviction dated 29-4-1998 and order of sentence dated 30-4-1998 passed in Sessions Trial No. 126 / 1988 whereby and whereunder the learned 1st Additional Sessions Judge. Palamau at Daltonganj held the appellants guilty under Sections 395 and 307 IPC and convicted and sentenced them to undergo RI for 10 years under Section 395 IPC and a fine of Rs. 5000/- and in default of payment to undergo RI for two years and appellant Ramji Yadav is further directed to undergo RI for ten years under Section 307 IPC and to pay a fine of Rs. 5000/- and in default of payment to undergo RI for two years and sentences were directed to run concurrently. 2. Prosecution case in brief is that Jathli Devi gave a fardbeyan on 2-4-1986 at about 7.30 a.m. before DSP Chattrapur in the local hospital alongwith her son Ram Parvesh Yadav and youngest daughter Jayanti Kumari, Sundarkalia Devi and others that on the previous night at about 1 a.m. when she was sleeping with her daughter then all of a sudden there was some sound of riddling on the surface of the roof of the house, as a result of which she woke up and saw that there were persons in the courtyard. She alongwith her daughter went over the first floor when two persons named Ramji Yadav and Janki Yadav also followed her and one of them was armed with pistol and Ramsundar Yadav was armed with Gandasa. Ramji Yadav enquired about her son Ram Parvesh Yadav and told that today he will be murdered. At that time Ram Parvesh Yadav was not in the house and she gave the same reply whereupon Ramji Yadav started abusing her then she raised alarm and Ramji Yadav fired a shot from his pistol, as a result of which she and her daughter sustained injuries. After injury informant and her daughter came down and they peeped through the window and saw that persons were standing in the courtyard and she identified them as Navalki Yadav Khakhnu Yadav, Jugeshwar Yadav, Janki Mahto and they were uttering that anyhow family members have to be finished. She and other members of the family raised alarm from the upper floor and also called for help and save them then accused persons firing left the place with some articles. She and other members of the family raised alarm from the upper floor and also called for help and save them then accused persons firing left the place with some articles. The villagers did not come to their help immediately due to firing being made by the dacoits. Ramnandan Bhuiyan also sustained fire arm injury. Cause of occurrence Is said to be murder of the father of the accused persons namely Jugeshwar Mahto of this case in which husband of the informant is facing trial as an accused. She identified the dacoits in the light of Dhibri. Forceful cultivation of a piece of land by Navalki Yadav is also said to be the reason for commission of occurrence. On the basis of fardbeyan a case under Sections 147, 148, 149, 324, 307, 448. 380 IPC and 27 of the Arms Act was registered against all the appellants and police after investigation submitted chargesheet. With the death of one of chargesheeted accused, proceeding pending against him was dropped and cognizance was taken and case was committed to the Court of session where the first additional sessions Judge recorded the evidence of witnesses both oral and documentary and came to a finding and held the appellants guilty and convicted and sentenced them as aforesaid. 3. Prosecution has examined 8 witnesses. PW8 is a formal witness, who has proved the formal FIR (Ext. 3) PW 7 has been tendered for cross examination. PW 6 is also a formal witness who has proved the formal FIR, PW 5 is a doctor, who examined the injured Ramnandan Bhuiyan and found the following injuries. "One small lacerated puncture wound over the posterior surface of the lower part of the right arm. There was one small pellet embedded in the wound. The skin surrounding the wound was blackened and scorched. The nature of the injury was simple, caused by fire arms may be country made pistol or gun." The doctor further examined Jethli Devi and found the following injuries on her person : "There were about more than fifty small circular lacerated puncture wounds over the right arm and right elbow joint. There were huge swelling and tenderness of the right arm and elbow joint. The sizes of the pellets were variable in shape and size. The edges of the wounds were blackened and inverted and echymosed. There were huge swelling and tenderness of the right arm and elbow joint. The sizes of the pellets were variable in shape and size. The edges of the wounds were blackened and inverted and echymosed. The skin around the wound was scratched with partition of the gun powder. There was loss of function of the right elbow and wrist joint due to fatal injury. Nature of the injury was grievous caused by fire arms may be country made pistol or guns. On the same day doctor has again examined Jayanti Kumari and found the following injuries. "There were two small puncture lacerated wounds size about 1 cm x 1/2 cm x skin tender and blackened. The edges of the wounds were inverted and echymosed. The skin surrounding over wounds were scratched with particles of gun powder. Nature of injuries was simple caused by fire arms may be country made gun or pistol." 4. PW 4 is Ramnandan Bhuiyan, who has been declared hostile as he has not supported the prosecution case on the point of identification. 5. PW 3 is Ram Parvesh Yadav. He is a hearsay witness as he was not present in the house on the date of occurrence. 6. PW 2 is Jethli Devi and PW 1 is Jayanti Kumari, aged 14 years. 7. PW 2 is the most important witness. She has supported the prosecution case and has stated that at about 1 a.m. in the night she heard sound of Khatkhat on the roof of the house. She woke up and went to upper floor with her daughter (PW 1) but Ramji Yadav and Ramsundar Yadav followed her and enquired about Ram Parvesh Yadav as they wanted to kill him. She replied that Ram Parvesh is not in the house and she raised alarm whereupon Ramji Yadav fired from his pistol causing injury in her right hand and her daughter also sustained injury. She again raised alarm then accused persons started fleeing away. They came down and saw from the window and identified the dacoits in the light of Dhibri, which was burning. She admits that at the time of occurrence her husband was in jail in a murder case. He was in jail in so called Ramkesh Mahtos murder case. He was in jail from two months before. They came down and saw from the window and identified the dacoits in the light of Dhibri, which was burning. She admits that at the time of occurrence her husband was in jail in a murder case. He was in jail in so called Ramkesh Mahtos murder case. He was in jail from two months before. She further admits that prior to that her husband had once again gone to jail in Aditya Mahtos case. She further says that firing was made twice on her and she sustained injury. She had worn half length blouse and firing caused holes in the blouse. She admits that she did not disclose the names of accused persons when her daughter Debratia came from her sasural in the morning. She says that accused has assaulted her husband and even caused injury by tangi and for that very reason accused persons had come to commit murder of her son Ram Parvesh Yadav. 8. PW 1 is daughter of PW 2 and she has fully supported the prosecution case. 9. PW 3 is Ram Parvesh Yadav. He is the son of PW 2. He came to the house at about 2 a.m. in the night from the place where cows etc. were kept and saw his mother and sister injured and there he learnt the. names of dacoits from the mother. 10. PW 4 is a witness who also sustained injury but he has been declared hostile by the prosecution as he has not supported the prosecution case. On the other hand he has stated that all the accused persons were in their respective houses and he identified them. He has further stated that some unknown persons had committed dacoity. 11. 10. PW 4 is a witness who also sustained injury but he has been declared hostile by the prosecution as he has not supported the prosecution case. On the other hand he has stated that all the accused persons were in their respective houses and he identified them. He has further stated that some unknown persons had committed dacoity. 11. On perusal of evidence it appears that PW 2 has stated that she heard sound of Khatkhat over the roof of the house and she woke up and went over the roof of the house alongwith her daughter and she was followed by Ramji Yadav and Janki Yadav and Ramji Yadav enquired from PW 2 about Ram Parvesh Yadav for whose murder they had come but PW 2 told them that Ram Parvesh is not in the house and she raised alarm whereupon Ramji Yadav fired twice on her causing injury not only to her but also to her daughter PW 1 and thereafter they came down and she peeped through the window and saw other appellants standing in the courtyard and she identified them in the light of Dhibri. 12. On the other hand. PW1 has given a bit deviated deposition from that of her mother and PW 4 has been declared hostile as he did not support the prosecution case although he also sustained injury. But, he says that appeallants were not the persons who came to participate in the dacoity but actually unknown persons had come and committed the occurrence. On the other hand, this looks very peculiar that when PW 2 disclosed the names of dacoits to PW 3 at 2 a.m. just after the occurrence but she admits that she did not disclose the name of dacoits to her daughter Debratia Devi when she came from her sasural in the morning. On the other hand, this looks very peculiar that when PW 2 disclosed the names of dacoits to PW 3 at 2 a.m. just after the occurrence but she admits that she did not disclose the name of dacoits to her daughter Debratia Devi when she came from her sasural in the morning. Further dacoits were known to the informant and her other family members and they had come with definite intention and they had even disclosed their Identity by not coining with covered faces but they did not commit any such occurrence although they were so many persons in number, it cannot be believed that PW 2 might have seen from the window about other dacoits standing in the court yard but it looks very peculiar that a girl, aged six years, also identified the dacoits standing in the courtyard and with the non- examination of I.O. prejudice has been caused to the defence because it cannot be said that from the window a person standing in the courtyard could be visible in the light of Dhibri or not. This has also not been mentioned in the FIR that she identified the dacoits In the light of Dhibri. 13. Considering the facts and circumstances of the case and the fact that the husband of PW 2 is in jail in connection with two murder cases and relations of appellants have been murdered it appears that in order to put pressure upon the appellants this case has been lodged and in that view of the matter the judgment and conviction and order of sentence are not sustainable in law. 14. In the result, this appeal succeeds and appellants are acquitted of the charges leveled against them. The appellants are on bail, they are discharged from the liability of bail bonds.