JUDGMENT 1. Criminal Appeal No. 62 of 1997 is by A-6 and A-10. 2. Ishaque Mian and Jainul Mian and Criminal Appeal No. 68 of 1997 is by A-l to A-5, A-7, A-8, A-9, A-ll and A-12, Sugan Mian, Halim Mian, Kudus Mian, Seraj Mian @ Serajuddin, Ainul Mian @ Ansari, Wahab Mian @ Abdul Wahab, Liyakat Mian @ Ansari @ Liyakta Ansari, Ekram Mian @ Ansari, Yunus Mian and Jahur Mian in Sessions Trial No. 76 of 1995 on the file of Additional Sessions Judge, Chatra. In this judgment, the appellants in Cr. Appeal No. 62 of 1997 and Cr. Appeal No. 68 of 1997 will be referred as A-l to A-12 in the order, as they were arrayed before the trial Judge, for the sake of convenience, and the above two appeals are disposed of by the following common judgment, as they arise out of a single Session case. 3. The accused 1 to-12 were charged under Section 3 of the Explosive Substance Act, 27 of the Arms Act, and Section 148 and 302/149 of the Indian Penal Code. The allegation against them in the charge is that after forming an unlawful assembly they in furtherance of the common object to the said unlawful assembly went to the house of the deceased, Sayeed Ansari and after dragging him out of the house fired at him and threw country made bombs, as a result of which the said Sayeed Ansari died. The trial Judge, on the evidence adduced, both oral and documentary, while acquitting all the accused-appellants under Section 3 of the Explosive Substance Act and 27 of the Arms Act, found them guilty under Section 302 read with 149 of the Indian Penal Code, for which each one of them was sentenced to imprisonment for life. Though the trial Judge found all the accused-appellants guilty under Section 149 I.P.C., did not award any separate sentence. The above two appeals are against the said conviction and sentence. 4. The case of the prosecution as could be discerned from the oral and documentary evidence, can be briefly stated thus: P.W.15, Hasina Khatun is the wife of the deceased, Sayeed Ansari. The accused and the deceased as well as the prosecution witnesses were the residents of the village Kirkira within the police limits of Itkhori. There were land disputes pending between the deceased, Sayeed Ansari and the accused persons. The accused and the deceased as well as the prosecution witnesses were the residents of the village Kirkira within the police limits of Itkhori. There were land disputes pending between the deceased, Sayeed Ansari and the accused persons. The civil suit, which was filed, was decreed in favour of the deceased, as against which the accused preferred appeal. On the date of incident, namely, on 13.6.1994, a case between the deceased and the accused persons was also pending before the District Collector Land Reforms, Chatra. This is said to be motive for the unfortunate incident which happened at 9.00 P.M. on 13.6.1994. On 13.6.1994 at about 9.00 P.M. the deceased, Sayeed Ansari was lying in his cot and his wife P.W.15, Hasina Khatun was pressing his legs. At that time the deceased heard someone knocking the door and therefore he asked his wife to open the door. P.W.15, Hasina Khatun opened the door and find the accused standing. A-l, A-5, A-7, A-8 and A-9 entered in the room and thereafter dragged the deceased out of the house. Later A-5 and A-7 were seen armed with bombs in their hands. A-2, A-4, A-6, A-11 and A-12 were in the Varanda along with Maqbool Mian he was absconding during trial). They were armed with bomb, dagger and fire arms. After the deceased was dragged out of the house, the door was closed from outside and P.W.11, Mamun Khatun, Sister-in-law of the deceased, P.W.14, Johra Khatun and P.W.15, wife of the deceased, saw as to what is happening outside the house through the gap between the doors and found the deceased being shot at and assaulted. Later all the accused left the place. After the accused left the place, witnesses, including P.W.3, Wakar Ali, and PW-5, Suleman Mian, went there on hearing the explosion of bombs. They found the deceased lying on the ground with injuries caused by explosive substance and Tire arms. Blood was gushing out of the body. Other villagers also assembled. Information was sent to the police and P.W.-16, Mahendra Pratap Singh, the police officer attached to Itkhori Police Station, reached the place of occurrence and recorded Ext. 3, Fardbeyan given by P.W.15 at 9:15 A.M. on 14.6.1995. On the basis of Ext. 3, a formal F.I.R., Ext. 4, was registered and investigation was taken up by P.W. 16. He prepared Ext. 3, Fardbeyan given by P.W.15 at 9:15 A.M. on 14.6.1995. On the basis of Ext. 3, a formal F.I.R., Ext. 4, was registered and investigation was taken up by P.W. 16. He prepared Ext. 5, the seizure list, and conducted inquest over the dead body of Sayeed Ansari and prepared inquest report, Ext.6 . After the inquest, he sent the dead body with a requisition, requesting the doctor to conduct autopsy. 5. On receipt of the requisition and the dead body of Sayeed Ansari, the Medical Officer, who was examined as P.W.8, conducted autopsy on the dead body and he found the following injuries: (I) Sharp cutting injuries 5"xl/2" on right temporal region with laceration of brain. (II) Bullet injury 1 "x1" in the right side of chest and 2"x2" outlet on front of chest. (III) Fire arm injury on right arm 2"x2" with damage of right line nerves end and main artery of arm. (IV) Sharp cutting injury 4"x2" on right thigh. The doctor issued Ext.2, post-mortem certificate with his opinion that the injuries have caused, the damage to the lungs and heart as well as laceration to the brain and all the injuries would have been caused by fire arms, dagger and bombs. The doctor issued Ext.2, the post mortem certificate with his opinion that the injuries have caused damage to the lungs and heart as well as laceration to the brain and all the injuries would have been caused by fire arms, dagger and bomb. 6. After the completion of the investigation, final report was filed against the accused-appellants and when questioned under Section 313 of the Code of Criminal Procedure, they denied all the incriminating circumstances. They did not examine any witnesses on their side. 7. Learned Counsel appearing for the appellants in both appeals strenuously contends that it is impossible for P.Ws. 11, 14 and 15 to have witnessed the occurrence, as admittedly the door was closed and it was not possible for them to have seen as to what is transpiring outside by seeing through the gap between the doors. 7. Learned Counsel appearing for the appellants in both appeals strenuously contends that it is impossible for P.Ws. 11, 14 and 15 to have witnessed the occurrence, as admittedly the door was closed and it was not possible for them to have seen as to what is transpiring outside by seeing through the gap between the doors. He submits that the evidence of P.W.13 cannot be accepted, since when he was examined during investigation and his statement was recorded under Section 161 Cr.P.C, he did not mention that he was present and witnessed the occurrence and the evidence given by him in court that he saw the occurrence could only be considered as improvement in the prosecution version. He also submits that that the trial court having acquitted the accused under Section 3 of the Explosive Substance Act and 27 of the Arms Act, had no justification for finding the appellants guilty under Section 302 read with Section 149 I.P.C., in the background of the medical evidence. 8. On the above contention, we have heard Mr. R. Mukhopadhyay, learned A.P.P. appearing for the State. 9. We have no hesitation in coming to the conclusion that Sayeed Ansari died on account of the injuries and that those injuries were caused to the deceased by fire arms, as the same could be seen from the evidence of P.W.8. The doctor, who conducted autopsy and the post-mortem certificate, Ext.-2, issued by him. We, therefore, conclude that the deceased, Sayeed Ansari died on account of homicidal violence, as the injuries were caused on his person by fire arms. 10. P.Ws, 11, 13, 14 and 15 were examined by the prosecution to establish that the deceased was shot at and bombs were also thrown by the accused- appellants. We will now analyse the evidence of the above four witnesses to find out whether they could, have been in a position to witness the occurrence. Admittedly, the occurrence took place outside the house and it is the very case of the prosecution that after the deceased was dragged out of the house the door was bolted from outside. P.W.11 stated that she was able to see as to what was transpiring outside, as the accused were using torchlight. This evidence of P.W.11 therefore, shows that the occurrence took place on a dark night and there was no light outside. P.W.11 stated that she was able to see as to what was transpiring outside, as the accused were using torchlight. This evidence of P.W.11 therefore, shows that the occurrence took place on a dark night and there was no light outside. If torch lights were used by the accused then the said torch light would have been focused only at the deceased and not by the accused at each other. Therefore, P.W.ll would not have known the identity of the accused-appellants on account of the use of torch light by the accused. 11. In this background, it is to be remembered that when she was examined and her statement was recorded under Section 161 Cr.P.C. , she did not mention all this important fact that the accused-appellants were using torch lights and it is for the first time she came out with such version in court. Therefore, we find it difficult to accept the evidence of P.W. 11. 12. P.W.13, who is the brother-in-law of the deceased and brother of P.W. 15, claimed that he is an eye witness, when he was examined in court; but when his statement was recorded under Section 161 Cr.P.C, he did not tell the officer that he saw the occurrence and identified the accused, who participated. It is, therefore, clear that his evidence, in court, is an improvement on his earlier version given by him and recorded by the Officer under Section 161 Cr.P.C. P.Ws. 14 and 15 claimed in their evidence that they saw the occurrence and according to them though they were inside the house and door was bolted from outside, they saw the occurrence through a gap between two doors after they were closed. We are unable to understand as to how these two persons through the gap in doors could have seen the entire occurrence and identified the accused on a dark night, when admittedly there were no lights outside the house. We therefore find it not safe to accept and act upon the evidence of any of the eyewitnesses. We, accordingly, reject their evidence. 13. It is no doubt true that P.W.15 claimed that some of the accused entered the house and dragged out the deceased. According to her, an earthen lamp was burning in the house. We therefore find it not safe to accept and act upon the evidence of any of the eyewitnesses. We, accordingly, reject their evidence. 13. It is no doubt true that P.W.15 claimed that some of the accused entered the house and dragged out the deceased. According to her, an earthen lamp was burning in the house. It is to be remembered at this stage that the case of the prosecution is that the appellants-accused formed unlawful assembly with common object of causing the death of the deceased, Sayeed Ansari, by shooting with fire arm and throwing bomb. The trial Judge in paragraph 31 of the judgment gave the following findings: However, the evidence produced on behalf of the prosecution does not prove beyond doubt as to who are really armed with explosive such as bombs and fire arms and who actually used it. In the instant case prosecution has not produced sufficient evidence to prove beyond doubts as to who was the person who actually committed offence under Section 3 of the Explosive Substance Act and Sections 27 of the Arms Act, I, therefore, find that a benefit of doubt should be given to the accused persons in respect of the charges framed against them under Sections 3 of the Explosive Substance Act and under Sections 27 of the Arms Act. 14. The State has not chosen to prefer any appeal against the acquittal of the accused-appellants under Section 3 of the Explosive Substance Act and 27 of the Arms Act. When, the trial court acquits the accused-appellants under Section 3 of the Explosive Substance Act and 27 of the Arms Act, which had become final then the very case of the prosecution that there was common object between the accused-appellants to cause the death of the deceased by shooting and throwing bomb also fail, in view of the evidence of doctor, P.W.8, who conducted autopsy. 15. We have already noticed the injuries found on the deceased by the doctor when he conducted autopsy. The doctor, in his evidence, stated that the injuries found on the dead body caused damage to the lungs, heart and laceration of brain, leading to his death and that the injuries are due to use of firearms and bombs. 15. We have already noticed the injuries found on the deceased by the doctor when he conducted autopsy. The doctor, in his evidence, stated that the injuries found on the dead body caused damage to the lungs, heart and laceration of brain, leading to his death and that the injuries are due to use of firearms and bombs. The evidence of the doctor is, therefore, to the effect that the injuries, which were found on the dead body, were caused by fire arms and by explosive substance. If the accused-appellants are acquitted under Section 3 of the Explosive Substance Act and 27 of the Arms Act, it is difficult for this Court to find the appellants guilty by making out a third case that the deceased was murdered by the appellants with other weapons by causing injuries, as it is not even the case of the prosecution that the fatal injuries found on the dead body of the deceased were caused with any weapon other than fire arm. The medical evidence is also to the same effect. 16. In view of the above also, we cannot but acquit the appellants under Section 302 read with Section 149 of the Indian Penal Code. We, accordingly allow these appeals by setting aside the conviction of the appellants and consequence sentence imposed upon them. The appellant No. 2, Jainul Mian (appellant in Cr. Appeal No. 62 of 1997), who is in jail, shall be released forthwith, unless he is wanted in connection with any other cases. The other appellants , 1. Sugan Mian. 2.Halim Mian. 3.Kudus Mian. 4. Seraj Mian @ Serajuddin, S.Ainul Mian @ Ansari. e.Wahab Mian @ Abdul Wahab. 7. Liyakat Mian @ Ansari @ Liyakta Ansari. 8. Ekram Mian @ Ansari. 9. Yunus Mian. 10. Jahur Mian (appellants in Cr. Appeal No. 68 of 1997) and Ishaque Mian (appellant in Cr. Appeal No. 62 of 1997), who are on bail, are discharged from the liability of their bail bonds.