By Court.- The appellant, Santosh Kumar Paswan, was arrayed as A-3 before the 7th Additional Sessions Judge, Palamau in Sessions Trial No. 443 of 1996. Two other accused, Raghunath Ram Kahar and Akalu Ram, were also arrayed as A-1 and A-2 alongwith the appellant, who was arrayed as A-3. 2. The allegation against the appellant is that he joining with Raghunath Ram Kahar, Akalu Ram and others formed an unlawful assembly and in furtherance of the common object of the said unlawful assembly, the members of the said unlawful assembly shot at Upendra Ram (D-1) and his mother, Jagmani Devi (D-2) at about 9.00 p.m. on 19.4.1995. The Trial Judge, while acquitting Raghunath Ram Kahar and Akalu Ram, found the appellant alone guilty under Section 302 read with 149 of the Indian Penal Code and he was sentenced to undergo imprisonment for life. He was also directed to pay a fine of Rs. 5000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year with a further direction that the fine amount, if collected, will be paid to Sarita Kumari, the daughter of D/2. 3. The case of the prosecution is as follows: On 19.4.1995 at about 9.00 p.m. PW2, Suneshwar Ram, was sitting in the courtyard of his house and he was taking food. His son, Upendra Ram (D-1), and his wife, Jagmani Devi (D-2) were also sitting with him. At 9.00 p.m., PW-9, Saryu Choudhary knocked the door and informed D-1, Upendra Ram, that five persons are searching for his father. D-1, advised his father not to go He went out of the house. On finding D-1, the five persons asked him about the whereabouts of his father. In the meantime, Jagrnani Devi, D-2, also reached the place. The five persons took D-1 towards south. D-2 followed them. PW-2 also came out of the house by opening the door which was on the rear side. He also followed them. After taking D-1 to some distance, D-1 was once again asked about the whereabouts of his father. D-2 intervened at that stage and requested the five persons to leave her son. One of the persons in the group demanded Rs. 5,000/-from D2. D-2 promised to pay the said amount but at that stage, one of the persons in the group asked the others to open fire. One of them opened fire with his pistol. D-2 intervened at that stage and requested the five persons to leave her son. One of the persons in the group demanded Rs. 5,000/-from D2. D-2 promised to pay the said amount but at that stage, one of the persons in the group asked the others to open fire. One of them opened fire with his pistol. The bullet hit D-1 and he fell down. D-2 was also shot at by another person. Thereafter, all the five persons left the place. The occurrence was witnessed by PW-1, the daughter of D2, PW-2 and also by PW-7, Sumer Ram, who is the brother of PW-2. Fardbayan, Ext. 1, was given at the police station at 6.45 a.m. on 20.4.1995 against unknown persons by PW-2. The same was registered as a crime and investigation was taken up by PW-15, Prem Sunder Prasad. He reached the scene of occurrence and conducted inquest. The inquest report prepared in respect of D-1 is Ext. 3 and the inquest report, in respect of D-2, is Ext. 3/ 1. Thereafter, the two dead bodies were sent to the hospital for post mortem. 4. On receipt of the requisitions and the two dead bodies, PW-13, Dr. Birendra Kumar Tiwary, conducted autopsy to the dead body of Upendra Ram (D-1) and found the following injuries: 1. Lacerated wound 11/4" x 1" x chest cavity, deep black margin near right shoulder in front of chest infraclavicular region; 2. Fracture 1st rib in front; 3. Blood present in chest cavity; 4. Small metallic pieces present in lung parenchyma and hard muscle. The doctor issued Ext. 5, the post mortem certificate. 5. The doctor also found the injury on the dead body of Jagmani Devi and they are as follows: 1. Lacerated wound 2" x 2" cranial cavity deep on forehead; 2. Massive laceration of left eye ball; 3. Skull bone of cranium blown-off above lebel of temporal region, only bone of skull and face present; 4. Brain matters blown-off. The post mortem certificate issued in respect of D-2 is Ext. 5/1. According to the doctor, both D-1 and D-2 would have died on account of gun shot injury. 6. After the completion of investigation, final report was filed against the appellant and two other accused, who were acquitted by the trial court. The appellant, when questioned under Section 313 Cr.P.C., denied all the incriminating circumstances, put against him. 7. 5/1. According to the doctor, both D-1 and D-2 would have died on account of gun shot injury. 6. After the completion of investigation, final report was filed against the appellant and two other accused, who were acquitted by the trial court. The appellant, when questioned under Section 313 Cr.P.C., denied all the incriminating circumstances, put against him. 7. The learned counsel appearing for the appellant, Santosh Kumar Paswan, submitsthat the trial court, having acquitted Raghunath Ram Kahar and Akalu Ram on the same evidence, has committed an error in convicting the appellant. He submits that the prosecution did not even establish the identity of any of the persons who were involved in the offence much less the identity of the appellant, Santosh Kumar Paswan and, therefore, the appellant is entitled for acquittal. 8. We have heard Mr. R. Mukhopadhyay, learned A.P.P., appearing for the State, on the above contentions. 9. There is no dispute that D/1, Upendra Ram and D-2, Jagmani Devi, died at 9.00 p.m. on 19.4.1995. There is also no dispute that both of them died on account of gun shot injury. The evidence of Dr. Birendra Kumar Tiwary, PW-13, and the post mortem certificates issued by him, prove the said fact. 10. PWs 1, 2 and 7 were examined to prove that the appellant and others shot at D-1 and D-2, leading to their death. PW-1 is the daughter of PW-2 and PW-2 is the father of D-1 and husband of D-2 while PW-7 is the brother of PW-2. According to them, at about 9.00 p.m. on 19.4.1995, D-1 went out of the house when informed by PW-9 that five persons are searching for his father. The evidence further shows that after D-1 left the house, D-2 followed him and that D-2 attempted to rescue D-1 by asking the five persons who were holding D-1 to release him. According to the witnesses, one of them demanded Rs. 5,000/and though D-2 premised to pay the said amount, D-1 was shot at. It is their further case that when D-2 intervened, she was also shot at, as a result of which she suffered gun shot injury and died. All the witnesses have consistently stated in their evidence that the occurrence had taken place at 9.00 p.m. and all the persons in the group were covering their faces with mask. 11. It is their further case that when D-2 intervened, she was also shot at, as a result of which she suffered gun shot injury and died. All the witnesses have consistently stated in their evidence that the occurrence had taken place at 9.00 p.m. and all the persons in the group were covering their faces with mask. 11. In view of the above admission of these witnesses, we find it difficult to accept the evidence of the witnesses that they were able to identify the persons in the group much less the appellant. It is also an admitted fact that no T.I.P. was conducted by the Magistrate at the request of the Investigating Officer. It is also an admitted fact that Fardbayan, Ext. 2, was given by PW-2 mentioning the names of Raghunath Ram Kahar and Akalu Ram as suspects, who were acquitted by the trial court. The name of the appellant was not even mentioned as a suspect in the crime. In the absence of any test identification parade and in view of the evidence of. the witnesses that all the persons were covering their faces, we find it difficult to accept that the appellant was in the group and it was he, who shot at the deceased, D-1 and D-2. It is to be remembered that Dr. Birendra Kumar Tiwary, who conducted autopsy, also stated that D-1 and D-2 were shot at by two different persons by two different types of pistol. It is also difficult to accept the evidence of PW-1, whose name was not even found in the Fardbayan, Ext.1, said to have been given by PW-2. In the evidence, she did not say anything, against the appellant. Similarly, we find it difficult to accept the evidence of PW-7, since when his statement was recorded under Section. 161 Cr. P. C. he did not say that he knew the name of the appellant, though in the court he mentioned the name of the appellant. 12. In view of the infirmities, we have noticed above, we are unable to uphold the conviction of the appellant. We, therefore, set aside the conviction and consequence sentence imposed upon the appellant by allowing the appeal. The appellant, Santosh Kumar Paswan, who is in jail, shall be released forthwith, unless he is wanted in connection with any other case(s).