JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order dated 12.06.2007, passed by the learned Addl. Sessions Judge (FTC), Bongaigaon, in Sessions Case No. 67 (BGN)/99. By the impugned judgment and order, the learned Sessions Judge convicted the appellant, under section 302 IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. 5,000/-, in default suffer rigorous imprisonment for one year, for his conviction under section 302 IPC. The appellant has also been convicted under section 307 IPC and sentenced him to suffer rigorous imprisonment for 10 years and pay fine of Rs. 2,000/-, in default suffer rigorous imprisonment for another period of one year for his conviction under section 307 IPC. It has been directed that both the sentences shall run concurrently. Aggrieved by the said conviction and sentence the accused person as appellant has come up with this appeal. We have heard Ms. B. Gogoi, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 2. The prosecution Case, in brief, is that on 7.5.1995 at about 5 p.m., Head Constable Maruka Samad (hereinafter called the appellant) opened fire from his carbine at his colleagues in the 9th Bn. BSF Camp, Bongaigaon, causing death of Head Constable Khadim Hussain, Head Constable Khem Raj and Uttam Sarkar and injuries to Constable Subhash Chand (P.W. -6). After committing the said crime the appellant left the camp leaving the carbine there. The Commandant of 9th Bn. BSF lodged an FIR (ext. 3) with the O.C., Bongaigaon police station, which was registered as Bongaigaon P.S. Case No. 65/1995, under Sections 302/ 307 IPC. 3. On receipt of the said FIR, police launched investigation into the matter, visited the place of occurrence, forwarded the dead bodies for post mortem examination and the injured for medical treatment, arrested the appellant, on being produced by BSF personnel, seized one carbine, one magazine, 29 Nos. of empty fired cases of mm ammunition (vide ext. 1). At the dose of the investigation, police submitted charge-sheet against the appellant for the offence u/s. 302 /307 IPC. The offence being exclusively triable by the court of Sessions, the learned CJM, Bongaigaon committed the case to the Court of Sessions and the learned Sessions Judge, Bongaigaon framed charges under Section 302 IPC and Section 307 IPC. 1). At the dose of the investigation, police submitted charge-sheet against the appellant for the offence u/s. 302 /307 IPC. The offence being exclusively triable by the court of Sessions, the learned CJM, Bongaigaon committed the case to the Court of Sessions and the learned Sessions Judge, Bongaigaon framed charges under Section 302 IPC and Section 307 IPC. The charges were read over and explained to the appellant, to which he pleaded not guilty. 4. In order to prove their case, the prosecution examined as many as 7 witnesses. After examination of the prosecution witnesses, the appellant (accused person) was examined, under section 313 Cr. P.C.. He denied the allegations, brought against him. His specific plea was that he did not commit the alleged crime. The appellant declined to adduce defence evidence. Considering the evidence, on record, the learned Sessions Judge held the appellant guilty of the offence under Section 302 and 307 IPC and accordingly convicted and sentenced him, as indicated above. 5. Ms. B. Gogoi, learned Amicus Curiae, appearing for the appellant, has submitted that there is no direct evidence as well as strong circumstantial evidence exclusively indicating the involvement of the appellant. The learned Amicus curiae submitted that the prosecution has failed to establish the charges, brought against the appellant, beyond all reasonable doubt and as such the appellant, for want of sufficient evidence, is entitled to be acquitted and set at liberty. 6. Refuting the said argument, advanced by the learned amicus curiae, Mr. D. Das, learned Addl. P.P., Assam, appearing for the State respondent, referring to evidence, on record, stated that the appellant was found standing near the deceased as well as the injured persons, with the weapon of assault, i.e. the carbine and that he had fled the place of occurrence leaving the carbine. Therefore, it is submitted by the learned Addl. Public Prosecutor that there is sufficient evidence to conclude that none other than the appellant had caused the death and the injuries aforesaid by firing from his carbine, which was seized by police from the place of occurrence. The learned Addl. P.P., supporting the impugned conviction and sentence has submitted that the learned Sessions Judge committed no error, requiring interference with the impugned conviction and sentence. 7. The learned Addl. P.P., supporting the impugned conviction and sentence has submitted that the learned Sessions Judge committed no error, requiring interference with the impugned conviction and sentence. 7. In order to appreciate the counter arguments, advanced by the learned counsel appearing for both the parties, we feel it appropriate to, briefly, scrutinize the evidence, on record. 8. Mr. Birendra Singh, of the BSF camp, deposing as P.W. -1, stated that, on the date of occurrence, at about 5 p.m., while attending sentry duty, he heard sound of firing and immediately took position. According to this witness he could not see the person who had made the firing and that going inside he saw the appellant with a carbine in his hand. He further stated that he came to know that firing was done by the appellant through his carbine and that the bullets fired by the appellant had hit the deceased, namely, Uttam Sarkar, Khadim Hussain and Khem Raj. He also stated that Mr. Subhash Chand had sustained injury. He further stated that the appellant left the camp, leaving the carbine. In his cross-examination this witness stated that he did not see the carbine and the empty cartridges in the Court. He also stated that he did not know wherefrom the bullets were discharged. According to this witness, the firing was done twice. From the evidence of this witness, it is found that he did not know as to who had fired through which carbine. However, according to this witness, he saw the appellant with a carbine in his hand and the appellant had left the place leaving the carbine there. Admittedly the carbine, which was found in the place of occurrence, was not sent for forensic laboratory for ascertaining, as to whether the bullets which hit the deceased and the injured persons were fired from the said carbine. 9. Mr. Meghnath Ram (P.W. -2), who was also present in the said BSF camp, on the date of occurrence, stated that when the P.W. -1 was performing sentry duty he was working in the cobbler camp along with the deceased Uttam Sarkar. He heard sound of firing and lied on the ground. According to this witness Uttam Sarkar, who stood up, was hit by a bullet on his chest. He further stated that he did not see as to who had fired the bullet. He heard sound of firing and lied on the ground. According to this witness Uttam Sarkar, who stood up, was hit by a bullet on his chest. He further stated that he did not see as to who had fired the bullet. This witness stated that he heard form others that the appellant had fired from the carbine causing the death of Khadim Hussain and two other Jawans. According to this witness deceased Uttam Sarkar, who sustained bullet injury, was present with him at the time of incident. This witness did not see as to who had fired the bullet. 10. Sri Dalbir Singh, Inspector of 9th Bn. BSF camp deposing as P.W. -3 stated that, at the time of occurrence, he went to the station to see off Inspector Tamang, who was proceeding on leave and after returning to the camp he heard about the firing incident. According to this witness he came to know that the appellant had opened fire in the guard room as a result of which Constable Khadim Hussain, Head Constable Khemraj and Constable Uttam Sarkar died. This witness had sent the dead bodies to hospital for post mortem examination and that police had seized one carbine, one magazine, 29 nos. of empty fired cases of 9 ammunition vide seizure list (ext. 1). From the above it appears that this person was not present at the time of occurrence. He did not whisper anything about the presence of the appellant near the dead bodies or the injured persons immediately after the incident. What this witness stated was that, he, after returning from the railway station, came to know that the appellant had opened fire in the guard room, causing death of Constable Uttam Sarkar and two others constables. But P.W. -2, who was working in the cobbler camp with Uttam Sarkar, stated that when Uttam Sarkar was working with him in the cobbler camp a bullet had hit Uttam Sarkar on his chest causing his death. Therefore, there is contradiction in the evidence of P.W. -2 and P.W. -3. According to P.W. -3, the occurrence took place in the guard room, but according to P.W. -1 Uttam Sarkar sustained the bullet injury in the cobbler camp. So, if the firing had taken place in the guard room it is doubtful as to how Uttam Sarkar sustained bullet injury in the cobbler camp. 11. According to P.W. -3, the occurrence took place in the guard room, but according to P.W. -1 Uttam Sarkar sustained the bullet injury in the cobbler camp. So, if the firing had taken place in the guard room it is doubtful as to how Uttam Sarkar sustained bullet injury in the cobbler camp. 11. The medical officer, who performed autopsy of Uttam Sarkar, Khadim Husain and Kheraj Singh, exhibited the post mortem examination report as ext. No. 1. Ext No. 2 and ext. No. 3 respectively. The said medical officer found multiple bullet injuries in respect of the dead bodies of the deceased. He opined that the deceased persons died due to shock and haemorrhage resulting from rifle firing injuries which, were ante mortem and homicidal in nature. 12. In view of the above medical evidence, there is no doubt that the deceased sustained bullet injuries on the fateful evening and they died due to said injuries sustained by them. 13. Sri Kanwar Meher Chand (P.W. -5) was the Commandant of 9th Bn. BSF Battalion, Bongaigaon, who lodged the FIR. He exhibited the said FIR as ext. No. 3. This witness stated that at the time of occurrence he was at the officers' mess and getting telephonic information about the incident of firing, he had rushed to the camp, where he found the dead bodies, lying inside the unit area, with injuries. He saw the dead bodies of Khadim Hussain, Khemraj and Uttam Sarkar and the injured Sri Subhash Chand, in the unit area. According to this witness he had sent the injured persons to hospital and that the deceased were declared dead. He further stated that he made an enquiry into the matter and he was reported that the appellant had caused the firing from his carbine and that he left the place of occurrence, after leaving the carbine mere. He also stated that, after vigorous search, the appellant was apprehended and handed over to the police. This witness further stated that the carbine, which was used by the appellant, was seized by the I.O. by seizure list. In his cross-examination this witness admitted that he did not see the occurrence himself. He further stated that carbine was issued to the soldiers by making entry in the issue register and that he was not aware whether the said register was seized by the police or not. In his cross-examination this witness admitted that he did not see the occurrence himself. He further stated that carbine was issued to the soldiers by making entry in the issue register and that he was not aware whether the said register was seized by the police or not. He also admitted that the camp was located in an extremist prone area. However, he denied the suggestion that the three BSF personnels were killed by extremist. 14. Sri Subhash Chand, one of the injured persons deposing as P.W. -6 stated that due to shortage of accommodation, the guard room of the camp was temporarily converted to a medical unit, wherein constable Safir Hussain and some other BSF personals were undergoing treatment for malaria. He further stated that, while the appellant was talking with constable Safir Hussain in the said medical unit, Head Constable Khadim Hussain (deceased), visited the medical unit and Head Constable Khabir Hussain asked the appellant to attend the next day's drill in proper dress and on being so asked, the appellant expressing unhappiness left for his own room. He further stated that, when head constable Khadim Hussain was about to leave the sick room, firing took place suddenly and Khadim Hussain, Khemraj, Uttam Sarkar (all deceased) and he himself sustained bullet injuries in the said firing incident. According to this witness Safir Hussain, who was also present with him, did not sustain any injury and that there was hue and cry to the effect that the appellant had fired from his carbine. He further stated that, after firing from his carbine the appellant had ran away from the camp. This witness further stated that as the appellant was the in-charge of the weapons it was suspected that he possessed short gun (sic). He further stated that constable Uttam Sarkar and Khadim Hussain, who sustained bullet injuries, succumbed to the injuries on the spot and that head constable Khemraj, who sustained bullet injuries, was shifted to the hospital in a critical condition, wherein he had expired. In his cross-examination this witness stated that when the appellant was sitting out side the guard room i.e. before the occurrence, he was not armed with any weapon. He further stated that arms were issued along with ammunition, but not in loaded condition. In his cross-examination this witness stated that when the appellant was sitting out side the guard room i.e. before the occurrence, he was not armed with any weapon. He further stated that arms were issued along with ammunition, but not in loaded condition. He also clearly stated that before, the incident, none was armed with any ammunition except constable Birender Singh, who was doing the guard duty, in front of the camp, with the, arms. He also stated that firing was made from a distance of about 7 meters. He expressed his ignorance if the camp was attacked by any extremist. Denying the suggestion put to him, on behalf of the defence, that gun shot was not fired by the appellant, this witness clearly stated that he did not directly see the appellant firing. From the evidence of this witness, who appears to be the sole eye witness to the occurrence, being one of the injured persons, it is found that he did not seethe appellant firing at the deceased as well the injured persons. From his evidence it is also found that the appellant visited the sick room and the firing took place, immediately after he had left the sick room. There is nothing on record to show that the appellant, who was initially un-armed i.e. at the time of visiting the sick room, had returned with weapon. The prosecution has also not adduced any evidence to show if any arms i.e. the carbine was issued to the appellant. In fact, none of the witnesses saw the appellant using the arms. According to this witness he heard a hue and cry indicating that the appellant had fired from a carbine towards them. Therefore, his evidence is nothing better than hearsay evidence. 15. A close scrutiny of the evidence, given by the witnesses, indicates that none of the witnesses saw the appellant causing injuries to the deceased as well as the injured person. From the evidence of P.W. -5 and P.W. -6 a major contradiction is found regarding the place of firing. The evidence of P.W. -6, indicates that he himself and other deceased persons, who sustained bullet injuries, were together in the same room i.e. in the sick room, but according to P.W. -5 Uttam Sarkar, one of the deceased was in the cobbler room. The evidence of P.W. -6, indicates that he himself and other deceased persons, who sustained bullet injuries, were together in the same room i.e. in the sick room, but according to P.W. -5 Uttam Sarkar, one of the deceased was in the cobbler room. It is doubtful as to how Uttam Sarkar, who was present in the cobbler room, sustained the bullet injuries, despite the fact that the firing was made inside the sick room. 16. The prosecution version is that the firing was caused through a carbine and that the carbine as well as the empty cages of bullets were seized from the place of occurrence. There is no evidence to show that the empty cages of the bullets were fired from the carbine, seized from the place of occurrence. Also there is no evidence to show that the said carbine, seized by police, bore the finger prints or any evidence to substantiate that the same was used by the appellant. Law is well settled that in a criminal case the prosecution is required to prove the allegations, brought against the accused person, beyond all reasonable doubt. From the above discussed evidence, it is found that none of the prosecution witnesses saw the accused person firing from the seized carbine. 17. From the evidence of P.W. -6, it is found that Md. Safir Hussain, who was in the same room did not sustain any injury. Hence, he being one of the eye witness was a vital witness to unearth the truth. But the prosecution failed to examine him. Had he been examined, the truth would have come out. In the attending circumstances, non-examination of such a vital witness, goes against the prosecution. 18. The P.W. -1, who was performing the sentry duty stated that hearing the sound of firing he went inside and found the accused with a carbine in his hand. This witness did not state as to whether the accused had fired from the said carbine. If the P.W. -1, who went to the place of occurrence i.e. inside, after the firing incident, could see the appellant with a carbine in his hand, it is not known as to why the P.W. -6, who was there in the place of occurrence i.e. the sick room could not see the appellant firing from the carbine. If the P.W. -1, who went to the place of occurrence i.e. inside, after the firing incident, could see the appellant with a carbine in his hand, it is not known as to why the P.W. -6, who was there in the place of occurrence i.e. the sick room could not see the appellant firing from the carbine. According to P.W. -6 he only suspected that the appellant had caused the firing. Even if, we believe the P.W. -1, then also finding of the accused with a carbine, in his hand, unless the carbine is proved to be used, it does not necessarily lead to the conclusive findings that the said carbine was used by him in causing injuries to the injured persons and death of the deceased persons. There is also no evidence, on record, to show that the said carbine, which was seized by the police was in serviceable condition and that the firing was made from the said carbine causing the death of the deceased. P.W. -2, who was near Uttam Sarkar (one of the deceased) though stated that Uttam Sarkar was hit by a bullet on his chest, he did not see as to who had fired the bullet. What P.W. -3 stated was that he came to know that the appellant had fired in the guard room. The evidence of P.W. -3 is nothing better than hearsay evidence and as such his evidence cannot be treated as substantive evidence against the appellant. In order to substantiate the claim that the carbine was issued to the appellant, the prosecution should have produced the issue register and adduce other evidence including forensic examination report in support of the said claim. 19. A careful scrutiny of evidence of the only eye witness (P.W. -6) indicates that he also heard from others about the involvement of the appellant. In his cross-examination this witness clearly stated that he did not see the appellant at the time of the firing. Therefore, the evidence of P.W. -6, who was one of the injured persons, does not inspire confidence to believe that none other than the appellant had fired at the deceased as well as the injured persons. In his cross-examination this witness clearly stated that he did not see the appellant at the time of the firing. Therefore, the evidence of P.W. -6, who was one of the injured persons, does not inspire confidence to believe that none other than the appellant had fired at the deceased as well as the injured persons. In view of the above discussed evidence, it cannot be safely concluded that the appellant had caused the death of the deceased persons and injuries to the injured persons by firing from the carbine seized by the police. In our considered opinion the prosecution failed to establish the charges, brought against the appellant, beyond all reasonable doubt. In view of the above, the conviction and sentence awarded by the learned Sessions Judge cannot be maintained for want of sufficient reliable and cogent evidence. We find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. Therefore, the appeal is allowed. The impugned conviction and sentences are set aside. The accused is acquitted and he be set at liberty forthwith, if not warranted in any other case. Return the case record. While acknowledging the assistance rendered by Ms. B. Gogoi, learned Amicus Curiae, we direct that an amount of Rupees five thousand be paid to her as her remuneration by the Assam State Legal Services Authority. Appeal allowed