Judgment : R. R. PRASAD, J. ( 1 ) THE appellant, Santosh kumar Paswan, was arrayed as A3 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 Al and A2 along with the appellant, who was arrayed as A3. ( 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 (Dl) and his mother, Jagmani devi (D2) 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 Section 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. 5,000/- 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 D2. ( 3 ) THE case of the prosecution is as follows: on 19. 4. 1995 at about 9. 00 p. m. PW 2, suneshwar Ram, was sitting in the courtyard of his house and he was taking food. His son, upendra Ram (Dl) and his wife, Jagmani Devi (D2) were also sitting with him. At 9. 00 p. m. , pw 9, Saryu Choudhary knocked the door and informed Dl, Upendra Ram, that five persons are searching for his father, Dl advised his father not to go. He went out of the house. On finding Dl, the five persons asked him about the whereabouts of his father. In the meantime, Jagmani Devi, D2, also reached the place. The five persons took Dl towards south. D2 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 dl to some distance, Dl was once again asked about the whereabouts of his father. D2 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. He also followed them. After taking dl to some distance, Dl was once again asked about the whereabouts of his father. D2 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. D2 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 Dl and he fell down. D2 was also shot at by another person. Thereafter, all the five persons left the place. The occurrence was witnessed by PW1, the daughter of D2, PW 2 and also by PW 7, Sumer Ram, who is the brother of pw 2. Fardbeyan, Ext. 1, was given at the police station at 6. 45 a. m. on 20. 4. 1995 against unknown persons by PW 1. The same was registered as a crime and investigation was taken up by PW 15, Prem Sunder Prasad. He reached the scence of occurrence and conducted inquest. The inquest report prepared in respect of Dl is Ext. 3 and the inquest report, in respect of D2, 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 on the dead body of Upendra Ram (Dl) and found the following injuries: (1) Lacerated wound 1w x 1" x chest cavity, deep black margin near right shoulder in front of chest infra-clavicular 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 postmortem 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 D2 is Ext. 5/1. According to the doctor, both Dl and D2 would have died on account of gun shot injury. The post-mortem certificate issued in respect of D2 is Ext. 5/1. According to the doctor, both Dl and D2 would have died on account of gun shot injury. ( 5 ) 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. ( 6 ) THE learned Counsel appearing for the appellant, Santosh Kumar Paswan, submits that 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. ( 7 ) WE have heard Mr. R. Mukhopadhyay, learned APP, appearing for the State, on the above contentions. ( 8 ) THERE is no dispute that Dl, Upendra ram and D2, 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. ( 9 ) PWS. 1, 2 and 7 were examined to prove that the appellant and others shot at Dl and D2, leading to their death. PW 1 is the daughter of PW 2 and PW 2 is the father of dl and husband of D2 while PW 7 is the brother of PW 2. According to them, at about 9. 00 p. m. on 19. 4. 1995, Dl went out of house when informed by PW 9 that five persons are searching for his father. The evidence further shows that after Dl left the house, D2 followed him and that D2 attempted to rescue dl by asking the five persons who were holding dl to release him. According to the witnesses, one of them demanded Rs. 5,000/- and though D2 promised to pay the said amount, dl was shot at. It is their further case that when D2 intervened, she was also shot at, as a result of which she suffered gun shot injury and died. According to the witnesses, one of them demanded Rs. 5,000/- and though D2 promised to pay the said amount, dl was shot at. It is their further case that when D2 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. ( 10 ) 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 fardbeyan, 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, Dl and D2. It is to be remembered that Dr. Birendra Kumar Tiwary, who conducted autopsy, also stated that Dl and D2 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 fardbeyan, 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. ( 11 ) IN view of the infirmities, we have noticed above, we are unable to uphold the conviction of the appellant. 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. ( 11 ) 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, San tosh Kumar Paswan, who is in jail, shall be released forthwith, unless he is wanted in connection with any other case (s ). Appeal allowed. --- *** --- .