JUDGEMENT Anjana Prakash, J. 1. The Appellants have been convicted under Section 364 IPC and sentenced to RI for ten years and fine of Rs. 1,000/- in default of which a further imprisonment for six months by the 2nd Additional Sessions Judge, Bhagalpur in S. Tr. No. 435/90 (R) by a judgment dated 01/02.09.1997. 2. The case of the prosecution according to P.W. 4, Md. Nasim, the informant given on 18.12.1999 is that on 26.10.1999 he learnt that a communal riot had broken out in the village at which the members of muslim community proceeded to leave the village and went to Salempur village. When they reached near the river, Andhari his co-villagers i.e. the present Appellants approached them from behind and caught his father Md. Badruddin and forced him to go towards village Karhariya. He was not seen alive thereafter so he suspected that his father had been killed by the present Appellants. 3. During trial the prosecution in all examined six witnesses out of whom P.W. 1 is a formal witness whereas P.W. 2 is the son of the alleged kidnapped Md. Badruddin and P.W. 3 is his wife whereas P.W. 4 is the informant and P.W. 5 is the wife of the informant and P.W. 6 is another son of Md. Badruddin. 4. The defence also examined one brother of Md. Badruddin who had been mentioned in the charge-sheet but not examined on behalf of the prosecution. When the witnesses deposed that they had seen the Appellants assaulting and killing Md. Badruddin and thereafter charge was altered under Section 302/34 IPC but they have acquitted of the said charges and convicted as mentioned above. 5. On going through the evidence of P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 6, I find that these witnesses intend deposed consistently that they had seen the Appellants assaulting Md. Badruddin on account of which he lost his life. They did not say anything about kidnapping of Md. Badruddin. D.W. 2 Md. Samsuddin brother of Md. Badruddin stated that in fact the Appellants had attempted to save the life of Md. Badruddin by giving him suggestion to go to a safe place. 6. During trial there is no evidence forthcoming that the Appellants had kidnapped the said Md. Badruddin but instead the positive evidence was that they had murdered Md. Badruddin. Samsuddin brother of Md. Badruddin stated that in fact the Appellants had attempted to save the life of Md. Badruddin by giving him suggestion to go to a safe place. 6. During trial there is no evidence forthcoming that the Appellants had kidnapped the said Md. Badruddin but instead the positive evidence was that they had murdered Md. Badruddin. The Appellants had been acquitted of the charge Under Section 302/34 on the ground that these witnesses had not stated in the earlier statements revealed Under Section 161 Code of Criminal Procedure that Md. Badruddin had been assaulted by the accused persons. The Trial Court also considered that in fact the informant had initially given an information with regard to the accused persons having kidnapped Md. Badruddin and he had suspected that they were involved in his murder. 7. In view of the acquittal of the Appellants under Section 302/34 IPC and there being no allegation with regard to the Appellants having kidnapped the deceased, I have no option but to acquit the Appellants under Section 364 IPC. Further, I also find that the First Information Report was unduly delayed even though the informant and witnesses were regularly meeting the police. 8. In the result, the appeal is allowed and the judgment dated 01/02.09.1997 passed by the 2nd Additional Sessions Judge, Bhagalpur in S. Tr. No. 435/90 (R) is, hereby, set aside. The Appellants are acquitted of the charges and discharged of the liability of their bail bonds.