Judgment Chandra Mohan Prasad, J. 1. Since these three appeals arise out of the same judgment of conviction and order of sentence, they have heard together and are being disposed of by this common judgment. 2. The appeals are against the judgment dated 7th May 2002 of Sri Arun Kumar Srivastava, 2nd Additional Sessions Judge, Buxar passed in S.T.No. 49 of 2000 whereby each of the appellants have been convicted under Section 302/149 of the Indian Penal Code and Section 27 of the Arms Act and respectively sentenced to R.I. for life and R.I. for 3 years. This has to be mentioned here that other accused Pujan Ram, Godhan Ram and Satya Narayan Ram were also tried along with the appellants. But Pujan Ram died during the trial and Godhan Ram and Satya Narayan Ram were acquitted by the Trial Court. It also appears that the appellants were also charged separately under Sections 147, 148, 149 and 307 IPC but in the judgment, the Trial Court has not recorded any conviction against the appellants under any of these counts. So we are taken to believe that the learned Trial Court has acquitted the appellants under these counts. So far the charge under Section 307 IPC is concerned, we find that the name of injured is Nand Kumar Pandey who was also examined as P.W. 4 by the prosecution but entirely a different person, namely, Ramjee Pandey has been mentioned as victim in the charge (under Section 307 IPC). 3. The prosecution case emanates out of an incident in which it is said that there had been firing and counter-firing between the extremists on one side and the villagers on the other side in which four persons were killed by the villagers and two were killed due to firing by the extremists. The fard-beyan of the case was recorded by the S.I. Shahabuddin at Middle School, Basaon Kala on 7th June 1999 at 11:30 A.M. on the statement of informant Girik Yadav (P.W. 5) who stated that on the previous day at 6:00 P.M. he heard the sound of indiscriminate firing coming from Harijan Toli and when he came out he heard hulla that extremists, who had looted gun of Panditjee people were also coming towards the village for looting the firearms of villagers. Learning this, the villagers became ready with their firearms. Learning this, the villagers became ready with their firearms. The informant further said that he saw Shankar Ram and other 13 accused persons, as named in the F.I.R. coming towards the village. He also said that he identified Shankar Ram and other 13 accused, including the appellants being variously armed and when the villagers tried to take position with their firearms, those extremists started firing on the villagers. The informant says that firing occurred from both sides and the villagers killed 4 extremists but extremists became successful in taking the dead bodies of two of them and two remained there. The informant further stated that Nand Kumar Pandey, Puna Lal @ Radha Kishun Yadav and Bhola Singh had received firearms injuries due to the firing made by the extremists and that Punalal @ Radha Kishun Yadav and Bhola Singh died of the injuries in course of treatment in the Hospital. 4. As many as eight witnesses were examined by the prosecution. P.W. 1. Raghunath Singh and P.W. 2. Hari Narayan Singh deposed about the firing between the villagers and the extremists but they also stated that they had not identified any of the criminals. P.W. 3 Sri Kant Pandey, P.W. 4 Nand Kumar Pandey @ Nandu Pandey and P.W. 5 Girik Yadav have said about the occurrence. P.W. 6 Dr. Ambika Prasad Mandal conducted the P.M. Examination on the dead body of the deceased Bhola Singh and Puna Lal. P.W. 7 Yogesh Chandra and P.W. 8 Shahabuddin Khan are the two Investigating Officers. 5. P.W. 3 Sri Kant Pandey, P.W. 4 Nand Kumar Pandey @ Nandu Pandey and P.W. 5 Girik Yadav have said about the occurrence. P.W. 6 Dr. Ambika Prasad Mandal conducted the P.M. Examination on the dead body of the deceased Bhola Singh and Puna Lal. P.W. 7 Yogesh Chandra and P.W. 8 Shahabuddin Khan are the two Investigating Officers. 5. The defence story as appears to have been brought by the accused on the basis of Ext-A & B series which are the documents of the proceeding under Section 107 of the Code of Criminal Procedure between the parties is that one Complaint Case No. 928(c) of 1996 was filed by Janardan Ramanuj Das of Basaon Kala Math against Bhulan Ram, Jiut Ram, Brij Mohan Ram Shankar Ram, Shambhu Ram, Budh Ram, acquitted accused Satya Narayan Ram, Godhan Ram and deceased accused Pujan Ram alongwith several others as well as the land settlement Parcha issued by the Collector under Sections 15 and 27 of the Land Ceiling Act in favour of appellants Bhulan Ram, Brij Mohan Ram, acquitted accused Satya Narayan Ram and Godhan Ram and 32 others is that the appellants are not extremists or criminals but they are the settlees over the land settled to them by the government and that the prosecution party tried to disposes them and that when they protested, they have been implicated falsely in this case. On the basis of the defence documents as contained in Ext-A & B. we are taken to believe that at least there is land dispute causing animosities between the parties. 6. On perusal of the evidence of the Doctor (P.W. 6) we find it established that the two deceased, namely, Bhola Singh Yadav and Panna Lal Yadav had received firearm injuries and they died of those injuries. But this has to be further examined whether the prosecution has been able to prove beyond doubt that the appellants had caused death of the deceased persons and they had died in the manner as alleged by the prosecution. 7. P.W.8 Shahabuddin, S.I. is the main I.O. who had inspected the P.O. and had conducted the investigation. P.W. 7 Yogesh Chandra, S.I. was the I.O. who subsequently took charge of the investigation and obtained the injury report of injured Nandu Pandey. 7. P.W.8 Shahabuddin, S.I. is the main I.O. who had inspected the P.O. and had conducted the investigation. P.W. 7 Yogesh Chandra, S.I. was the I.O. who subsequently took charge of the investigation and obtained the injury report of injured Nandu Pandey. He had also searched the houses of the appellants but did not find anything incriminating and then on the basis of materials he submitted the charge-sheet. P.W. 8, the main I.O. stated in his evidence that the P.O. was a barren land situated 200 to 250 yards west of Harijan Toli and it situated in the field of Satya Narayan Lal where a small worship place also existed and the dead body was also found at that place. He also deposed that 70-75 yards east of the field, there was a canal channel in north-east direction and he (I.O.) was informed that the criminals had taken position in that canal and they had fired on the villagers. The I.O. also says to have been informed that the villagers had taken position in the worship place in the field that they had fired on the criminals. He also states that he had found dead body of one criminal in the field of Satya Narayan Lal and the dead body of another criminal in the field of Yadunath Pandey. The I.O. further says that he had seized the blood soaked earth from the P.O. but he had not sent it for chemical examination. 8. Firstly P.W. 3 stated at Para-1 that in the occurrence, dacoity had been committed in the houses of Vidyadhar, Ram Awadhesh and Rama Kant in the village. Since dacoity had been committed in the house of these persons, they could have been the best witnesses to say about the manner of occurrence, and the criminals who committed the occurrece, but the prosecution has not examined any of these persons. This goes against the case of prosecution. 9. P.W. 3. also stated that the criminals had broken the door of the house during the commission of the dacoity. But the evidence of the I.O. does not indicate the finding of any objective material like broken door, indicating sign of commission of dacoity in the sequence of the alleged offence. 10. This goes against the case of prosecution. 9. P.W. 3. also stated that the criminals had broken the door of the house during the commission of the dacoity. But the evidence of the I.O. does not indicate the finding of any objective material like broken door, indicating sign of commission of dacoity in the sequence of the alleged offence. 10. P.W. 3 named Shankar, Shambhu, Deomani and Mahendra Ram amongst the criminals but at Para-12 of his deposition, he deposed that he had not stated before the I.O. that he had identified any of the criminals. Since this witness admits that at the earliest time he had not disclosed the names of the criminals before the I.O., his claim of identification as regards the four above named appellants becomes suspicious and the same is not fit to be relied upon. 11. This witness (P.W. 3, Para-10) has deposed that shots were being fired from both sides. P.W. 4 claimed to have identified Brij Mohan, Shambhu Ram, Mahdendra Ram, Deomuni Ram Bikraj and Raman Ram saying that he saw these persons and when they rushed to capture him, he (P.W. 4) fled away and hid himself in the house of Sampat Kumar Mishra. He further deposed at Paras-12 & 15 that he remained in the house of Sampat Kumar Mishra for about 40-45 minutes and then he came out of the house and iearnt about the occurrence. He also deposed that while the criminals had rushed to him, his sister had climbed upstairs and went to the roof of the house and she had fired from rifle on the criminals. Thus, this witness claims to have identified the six appellants, as said above, but in view of his evidence that he had hid himself in the house of Sampat Kumar Mishra for about 40-45 minutes and had learnt about the occurrence after coming out of the house, it appears that whatever evidence this witness has adduced about the occurrence of firing and assault at the hands of the appellants is hearsay material. This witness also does not explain as to from whom he had learnt about the occurrence. Besides this in Para-27 of his evidence, this witness categorically admits that he had not seen with his own eyes deceased Puna Lal and Bhola Singh receiving firearm injuries. This witness also does not explain as to from whom he had learnt about the occurrence. Besides this in Para-27 of his evidence, this witness categorically admits that he had not seen with his own eyes deceased Puna Lal and Bhola Singh receiving firearm injuries. He also states at Para-31 of his evidence that he had not disclosed about the occurrence to the Doctor while he was taken for treatment at Janki Nursing Home. Thus this witness does not disclose to the doctor at the earliest point of time and he himself admits that he had not seen the occurrence and he also says in his evidence at Para-21 that he was at Patna for his treatment and during the period he remained at Patna he had not given any statement about the occurrence. Besides this, this witness claims to have received injuries in the occurrence but he himself does not specify about the kind of injury received by him nor any medical evidence has been brought to show the injury on this witness. Besides this, there is specific admission of this witness that he had not seen the occurrence of receiving firearm injuries by the deceased Puna Lal and Bhola Singh due to the shot fired by the criminals. Therefore, we came to believe that this witness is not reliable on the point of occurrence and a doubt is also created over the claim of this witness that he had received injuries in the occurrence. 12. P.W. 5 is the informant himself. He named Deomuni Ram, Shankar Ram, Pujan Ram, Bodhan Ram, Mahendra Ram, Bhulan Ram, Dharmdeo Ram, Jhulan Ram, Brij Mohan Ram, Jiut Ram, Brij Kishor Ram, Budhan Ram and said that they were armed with firearms and that on being exhorted by Deomuni Ram, they had resorted to firing as a result of which Bhola Singh, Puna Lal and Nand Pandey (P.W. 4) had received firearm injuries. Puna Lal and Bhola Singh are said to have died due to firearm injuries. Thus this witness claims that the above named persons resorted to firing causing death of Bhola Singh and Puna Lal. But in the cross-examination, at Para-9 this witness says that at the time of occurrence, darkness had prevailed and hence, he was unable to say as to from whose shot who had received the injury. Thus this witness claims that the above named persons resorted to firing causing death of Bhola Singh and Puna Lal. But in the cross-examination, at Para-9 this witness says that at the time of occurrence, darkness had prevailed and hence, he was unable to say as to from whose shot who had received the injury. Thus, this witness is not in a position to say as to who had injured whom. In this context it was argued by the prosecution that in such a case of indiscriminate firing it is not possible to specify with exactness as to from whose shot who was injured. But in this regard, the evidence of P.W. 3 at Para-10 is worth consideration where this witness says that shots were being fired from both sides and both sides were ambushing on the other side and the persons engaged in firing had taken position by lying down on the ground. P.W. 3 further stated at Para-7 that the criminals were firing from a distance of about 200 yards. The evidence of the informant (P.W. 5, Para-9) is that darkness had prevailed at the time of occurrence, hence he was unable to see as to who was injured from whose firing. P.W. 8 the I.O. deposed that during inspection of the P.O., he had learnt that the villagers were on one side and the criminals were on the other side and they had taken position by lying down in the field and in the canal channel and one side was firing on the other side. In such a situation, it is not easy for any side to identify the assailants on the other side. Therefore, while claiming identification, the prosecution is required to adduce sufficient and reliable evidence in these circumstances. Considering the evidence of the P.Ws. 3, 4 and 5 who are the only witnesses on the point of occurrence of assault and identification at the hands of the appellants, we find that the evidence of these witnesses does not inspire confidence and it is not safe to rely on their evidence, so far identification and assault part of the prosecution story is concerned. In this context, the evidence of P.W. 3 at Para-9 that Ram Chandra, Vidyadhar and Vishwanath had fired on the criminals is important. In this context, the evidence of P.W. 3 at Para-9 that Ram Chandra, Vidyadhar and Vishwanath had fired on the criminals is important. Since these three villagers were engaged in the firing on the criminals, they were best witnesses for identifying the criminals on the other side but these witnesses were not examined by the prosecution. 13. Thus on consideration of the evidence as brought by the prosecution, I find that the prosecution has not been able to substantiate with reliable and acceptable evidence to prove the occurrence as alleged. In such view of the matters, I find and hold the charges are not proved and consequently acquit the appellants. The judgment of conviction and sentence, as passed by the learned Trial Court is hereby set aside. 14. With the above findings, the three appeals are hereby allowed. The appellants, who are in custody, are directed to be set at liberty forthwith, if not wanted to be detained in any other case. Dharnidhar Jha, J. 15 I entirely agree with the findings recorded by My Lord Sri Justice C.M.Prasad for whom I have immense respect. The order of acquittal is the ultimate which could be recorded and which has been recorded by My Lord Justice Prasad. However, after having gone through the record of the Trial Court, I want to record the following observations. 16. I feel that the learned trial Judge has not discharged the ordinary legal obligations cast by law upon him. This I gather from the headings of charges which are available to us on the record of the lower Court. The learned Trial Court appears to be ignorant about what are the requirements of law, especially of Sections 211, 212 etc. of Chapter-XVII of the Code of Criminal Procedure regarding framing of charges. The law requires, by virtue of above provisions that either the offence or some of its essential ingredients are reflected in framing of charges, so as to indicating the offence sought to be stated in the format of charges. The purpose behind this legislative provision appears to inform the accused as to what for he was being tried. If one peruses the headings of charges under Sections 147, 148, 307 IPC and Section 27 of the Arms Act, one could find that they are completely deficient and could not be said to be in compliance with the relevant legal provisions. If one peruses the headings of charges under Sections 147, 148, 307 IPC and Section 27 of the Arms Act, one could find that they are completely deficient and could not be said to be in compliance with the relevant legal provisions. Not only that, the learned Trial Judge appears untrained as to how he could have framed the charge under Section 302/149 IPC, though he convicted the appellants on that charge. The learned Judge framed the charges separately under Section 149 IPC and again that under Section 302 IPC against all the appellants or the accused persons. He could have done well if he could have simply picked up any text book on the Indian Penal Code to have informed him as to how he had to word the heading of charge under Section 302/149 IPC. Further the charge under Section 27 of the Arms Act appears devoid of any ingredient of that particular offence. What dismayed me the most was that without recording any finding that the accused persons or the appellants had formed an unlawful assembly which had a common object and acted in prosecution thereof, the learned Judge convicted the appellants under Section 302 IPC read with Section 149 IPC. I am constrained to believe as stated at the very outset, that the learned Trial Judge, by not recording any finding on the charge under Sections 147 and 148 IPC, could be supposed to have acquitted the appellants. It was a finding by implication that there was no unlawful assembly which was acting in prosecution of a common object. It was not necessary to frame a charge under Section 147 or 148 IPC for recording conviction under Section 302/149 IPC, but when one was framed, then it was expected of the learned Trial Court that he ought to have recorded his finding. As stated earlier in the present paragraph and in the present context, the learned Trial Judge required, and I believe still requires, some training on law and procedure. As per the prosecution case, there were two deceased persons and one injured who was examined as P.W. 4 Nand Kumar Pandey. As stated earlier in the present paragraph and in the present context, the learned Trial Judge required, and I believe still requires, some training on law and procedure. As per the prosecution case, there were two deceased persons and one injured who was examined as P.W. 4 Nand Kumar Pandey. If one perused the charge under Section 307 IPC which appears at Page-9 of the Paper Book, and in its original on the record of the lower Court, the name of injured as appearing in it is Ramji Pandey who is nowhere in the entire record of the case. That to me appears an example of insensitivity and casual functioning of the learned Trial Judge and above ail being disoriented and indifferent towards his legal duties. I am, as such, inclined to refer this part of the judgment to the administrative side of the Court. Let the record of the Trial Court be also placed before the Court with a copy of the judgment. 17. I further want to recommend to the Court to examine by holding an enquiry the dereliction to duty of the Officer. The headings of charges clearly appear written by a person other than the learned Judge, while the same appears explained by him. The two writings differ clearly from each other. Framing of charge and explaining the same to the accused is judicial function but the Officer appears abdicating it with impunity.