JUDGMENT Shyam Kishore Sharma, J.- The sale appellant has preferred the instant appeal against the judgment of conviction and order of sentence dated 31st August, 1989 passed in Sessions Trial No. 171/154 of 1986 by the learned 6th Additional Sessions Judge, Nalanda at Biharshariff by which he has been convicted under Sections 302/149 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. Though the appellant has been found guilty under Section 27 of the Arms Act but no separate sentence under that provision was awarded to him. 2. On 14.11.1985 at 3.30 p.m. the informant Baiju Prasad (PW 7) had gone to Dwarika Yadav of village Barari along with his co- villagers Vidya Prasad (PW 2), Ashok Pandit (PW 3), Umesh Prasad (deceased) and Satyendra Pandey (another deceased) for borrowing a Bullock for the purpose of ploughing the field, At about 4.30 p.m. on the same day the informant. Vidya Prasad, Ashok Pandit, Umesh Prasad and Satyendra Pandey were returning. When they reached near a bridge of embankment there was firing from behind twice. The informant turned back and saw 3-4 persons equipped with arms following them. They started escaping towards North a Id from the eastern side 10 persons armed with weapons started firing, they were: Krishna Ravidas, Arun Ravidsas, Jholpat Thakur @ Chanchal Thakur, Arvind Mahto, Rameshwar Mochi, Ramesh Chaudhary, Ganesh Paswan, the appellant Chandar Paswan, Bengali Paswan, Suresh Yadav, Rajgir Prasad, Vidya Beldar and others. At the behest of Arvind Mahto accused Ganesh Paswan fired upon Satyendra Pandey and Jholpat Thakur fired on Umesh Prasad which proved fatal. The informant and his colleagues entered inside Arahar field and the accused persons tried to search them. In the meanwhile the informant's villagers came and the assailants retreated towards West after crossing the river Falgu. They were shouting in the name of an extremist organization. The dead bodies of Umesh Prasad and Satyendra Pandey were brought in village. The fardbeyan (Ext. 3) resulted into formal FIR (Ext. 5) vide Ekangarsarai P.S. Case No. 176 of 1985 dated 15.11.1985 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Inquest reports of dead bodies of Satyendra Pandey (Ext. 5) and of Umesh Prasad (Ext. 5/1) were prepared. Post mortem examination report of Satyendra Pandey (Ext.1) and of Umesh Prasad (Ext.1/1) was obtained. 5) vide Ekangarsarai P.S. Case No. 176 of 1985 dated 15.11.1985 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Inquest reports of dead bodies of Satyendra Pandey (Ext. 5) and of Umesh Prasad (Ext. 5/1) were prepared. Post mortem examination report of Satyendra Pandey (Ext.1) and of Umesh Prasad (Ext.1/1) was obtained. In course of investigation test identification parade was conducted and the test identification chart (Ext. 4) was prepared. After investigation charge-sheet was submitted and after taking cognizance the case was committed to the Court of Sessions where the charges were framed and explained to the appellant and others to which they pleaded innocence and trial proceeded. 3. The defence of the appellant was of false implication and also that the informant of this case was an accused in a murder case of Sree Paswan of village Korathu in which Munarik Paswan was the informant. Munarik Paswan is the brother of accused Ramchandra Paswan (appellant). Further plea of the accused was that the father of the informant of this case was the candidate for the post of Mukhiya in Gram Panchayat election held in the year 1971 in which he was defeated by his contestants and the accused of this case who belonged to the different villages of the said Gram Panchayat had opposed the candidature of the informant's father. Further plea was that there are two organizations in village Jayantipur known as Lorik Dal and Naxalites and there was exchange and counter exchange of firing between the followers of both the organizations and on the date of occurrence the Assistant Sub-Inspector of the police arrived in the village in connection with that incident to maintain peace and order before the occurrence of the case had taken place. 4. As ten persons have absconded so the trial proceeded against only 4 persons who were charged and put on trial. Other three persons namely, Preman Mochi, Rajendra Prasad and Nanhaku Mochi were not found guilty and accordingly, They were acquitted. There were 11 FIR named accused persons. In the trial under appeal one person was named in the FIR, whereas, three other persons were identified in the test identification parade. 5. In course of trial the prosecution has examined 13 witnesses, namely, Anugrah Prasad (PW 1), Vidya Prasad (PW 2), Ashok Pandit (PW 3), Kailash Prasad (PW 4), Akhilesh Prasad (PW 5), Dr. In the trial under appeal one person was named in the FIR, whereas, three other persons were identified in the test identification parade. 5. In course of trial the prosecution has examined 13 witnesses, namely, Anugrah Prasad (PW 1), Vidya Prasad (PW 2), Ashok Pandit (PW 3), Kailash Prasad (PW 4), Akhilesh Prasad (PW 5), Dr. C. P. Sinha (PW 6), Baiju Prasad (PW 7), Sant Kumar Singh (PW.8), Kameshwar Pandey (PW 9), Dinesh Kumar Sharma (PW 10), Devendra Pandey (PW 11), Rameshwar Singh (PW 12) and Khagendra Narayan Choudhary (PW 13). 6. PW 6 has conducted the post mortem examination upon the dead body of the deceased. PW 8 is an official witness and he was the officer incharge, PW 9 was another officer incharge. PW 13 was the Inspector of Police. PW 10 was the Judicial Magistrate who has brought the T.I.P. arranged inside the jail. No defence witness was examined. 7. The informant of the case has been examined as PW 7 and he has stated that on 14.11.1985 he had been to Barari village along with Ashok Pandit (PW 3), Vidya Prasad (PW 2), Satyendra Pandey (deceased) and Umesh Prasad (deceased), He had gone to arrange oxen for Ploughing. He was returning along with his friends at about 4.30 p.m. on the same day and when the informant reached near the bridge, two shots were fired. The informant noticed that 3-4 persons variously armed were chasing him and others. When the informant was trying to escape towards village then in the way he noticed 10-15 persons firing from near the cabin of Anugrah Prasad, Thereafter, the informant and his friends escaped towards west. Vidya Prasad (PW 2), Ashok Pandit (PW 3) and the informant concealed themselves in the Arahar field. Satyendra Pandey and Umesh Prasad were caught near the field of Nagina Prasad and at the behest of Arbirid Mahto, accused Ganesh Paswan fired from his rifle causing death of Satyendra Pandey and Jholpat Thakur @ Chanchal Thakur fIred and killed Umesh Prasad. At the time of assault, 10 more persons were there and they were shouting in the name of extremist organization. At the time of assault, 10 more persons were there and they were shouting in the name of extremist organization. The informant has named Arun Mochi, Krishna Mochi, Ram Iswar Mochi, Ramesh Chaudhary, appellant Ramchandra Paswan, Bengali Paswan,Vidya Jamadar, Rajgir Prasad and Suresh Yadav as the persons who were having firearms The dead bodies were brought to the village where the police came at about 9.30-10.00 p.m. and the informant narrated the entire occurrence. He has stated that the Officer incharge had gone to place of occurrence at his own and none have shown them the place of occurrence (PW 7 paragraph 9). In cross-examination, it has come that the informant was in custody at the time holding the test identification parade in connection with murder of Sree Paswan, That case of killing of Sree Paswan has resulted on the basis of information of Munarik Paswan who is the brother of Bengali Paswan and the appellant Chandra Paswan. The informant was supported more or less by other witnesses namely, PWs 2 and 3. 8. The test identification parade of accused was conducted by PW 10. PW 10 in his deposition has stated that in course of test identification parade PW 2 identified Rajendra Prasad and Nankhu (both acquitted), PW 1 identified Rajendra Prasad, Nankhu Mochi and Preman Mothi (all three acquitted). 9. Death of two persons by use of firearms is not in dispute. On 16.11.1985, while PW 6 was posted as Civil Assistant Surgeon, Sadar Hospital, Biharsharif, at about 6.30 a.m. he held the post mortem on the dead body of Satyendra Pandey and found the following ante mortem injuries: (i) One bullet injury entering into the left shoulder with charred margin measuring 1-1/2" in diameter with ragged inverted margin fracturing the head of the femurbone traversing through left side of chest and breaking the 4th, 5th and 6th ribes lacerating the left lung spleen stomach and right kidney. Intestines were protruding- on the right side of abdomen at the exit measuring 4" x 3" in diameter with ragged inverted margin. (ii) One bullet injury on the neck entry being in the, front of 1/2" diameter with charred margin and exit on the back of the neck of 1-1/2" diameter lacerating the carotid vessels trachea and asophagus were present. The death was due to shock and haemorrhage and time elapsed since death was 32-40 hours. 10. (ii) One bullet injury on the neck entry being in the, front of 1/2" diameter with charred margin and exit on the back of the neck of 1-1/2" diameter lacerating the carotid vessels trachea and asophagus were present. The death was due to shock and haemorrhage and time elapsed since death was 32-40 hours. 10. On the same day at 7.00 a.m. post mortem has been conducted upon the dead body of Umesh Prasad by the same doctor who has found two ante mortem injuries: (i) One bullet injury on the left shoulder of 2 x 1-1/2" in diameter with ragged inverted margin and exit at the abdomen 5" x 2-1/2" with ragged inverted margin, Intestine was protruding. The left lever and heart were raptured in lacerated manner with two pounds of blood and dot in the thorosic cavity and 4th, 5th and 6th ribs were fractured. The Kidneys were pale urinary bladder was empty. Brain was pale. Stomach contained some digestive food matters. 11. The injuries were caused by firearms and time elapsed since death of Umesh Prasad was about 32-40 hours, Therefore the prosecution has been able to establish the death of two persons on account of fire-arms and time given by the informant in his deposition as well as in his fardbeyan matches with time given by the doctor. Therefore the death on account of use of firearms has been proved. 12. Once death is proved the onus comes to the prosecution to establish that the death was caused by none else rather by the accused. According to the allegation and deposition, the fatal shots were given by Ganesh Prasad and Jholpat Thakur. None of the assailants and shooters are appellants herein, PW 3, in paragraph 9, has stated that he is the employee of PW 7 whereas PWs 2 and 7 are gotiyas among themselves. Deceased Satyendra Pandey is Purohit of PW 7, Statement of PW 3 shows that the witnesses and the deceased were linked among themselves. This fact cannot put any discredit with regard to the manner of assault. The quality of witnesses has to he seen here. According to the statement of PW 1, in paragraph 5, it is apparent that independent witnesses have not been examined. This fact cannot put any discredit with regard to the manner of assault. The quality of witnesses has to he seen here. According to the statement of PW 1, in paragraph 5, it is apparent that independent witnesses have not been examined. The onus was upon the investigating Officer also to see that independent persons who have either gone to the place of occurrence or have assisted in any manner in the investigation is not left out and he/they must be examined. But surprisingly, no independent witnesses were examined. One witness has stated that one Asharfi Prasad Master had gone to the police station to inform the police but from the deposition of the investigating officer, it appears that no such information was received and had the information given by Asharfi Prasad that would have resulted into the First Information Report and the present FIR would have been hit under Section 162 of the Cr.P.C. 13. PW 13 in paragraph 6 has stated that he got a confidential information that the extremists group were exchanging firing between themselves and on that basis he has rushed to the police station and the information was recorded as S. D. Entry. Station diary entry was an important piece of evidence which could throw light as to what was the actual information that had been received. It was the first information and it would have been an important piece of evidence because from the version of the entry and the prosecution witnesses, it has come that exchange of firing was going on between the two sides rather the informant's version was unilateral firing by the accused persons. Therefore, the information received by the Investigating Officer was not in line with the information which has been given by the prosecution witnesses. Under these circumstances, the S.D, Entry would have been an important piece of evidence because this should have been given another version of the occurrence. In paragraph 12, PW 13, has stated that on information he learnt that in village Baran also, firing was going on and he has found collection of persons but they fled away and that was on 15.11.1985. If this evidence is read in context of the present case then another story comes out that firing was going on from 14.11.1985 to 15.11.1985. This is the new version and none of the prosecution witnesses have stated like that. 14. If this evidence is read in context of the present case then another story comes out that firing was going on from 14.11.1985 to 15.11.1985. This is the new version and none of the prosecution witnesses have stated like that. 14. PW 2, in paragraph 3, has stated that he climbed upon a palm tree having leaves and concealed himself behind the leaves. The attention of the Investigating Officer PW 13 was drawn but in paragraph 11 he has denied about the existence of any such palm tree because he had emphatically asserted that he has not found any palm tree there. This witness PW 13 has further clarified that he had gone to the same place where the witnesses have concealed themselves. The Investigating Officer has simply stated that he has found blood at two places. For linking a person with offence it was required that the blood would have been seized and sent for examination to Forensic Science Laboratory• Though seizure has come but seizure it has not come on the record. Seizure of blood thus remains un-established. Regarding bullets it was simply stated by the I. O. that it was seized and seizure list was prepared by the previous investigating officer but the bullets were not produced as material exhibit. 15. According to the evidence, the place of occurrence is from Bandh to field of Nagina Prasad and according to allegation and evidence, there was firing but nothing has been stated upon this by the Investigating Officer. 16. Considering every aspect of the matter, it appears that out of 4 accused persons who were put on trial, three were identified during investigation. The identification was duly proved by none-else rather by the Judicial Magistrate. The identification of the accused has also not been challenged. Those three persons have been acquitted and only this appellant was singled out. Even according to the allegation, no overt act has been attributed against this appellant/accused. Thus he has been shown to be the member of mob. 17. Considering the facts and circumstances of the case, it appears that the prosecution has not been able to prove its charge beyond the shadow of all reasonable doubts against the appellant. In the result, the judgment of conviction and sentence is set aside and this appeal is allowed. The appellant is on bail. He is discharged from the liabilities of his bail bonds. 18. In the result, the judgment of conviction and sentence is set aside and this appeal is allowed. The appellant is on bail. He is discharged from the liabilities of his bail bonds. 18. Mr. Shailendra Kumar Jha, Advocate has assisted this Court on behalf the appellant as maicus curiae and thus he is entitled to receive the requisite fee from the Patna High Court Legal Services Committee. 19. Let a copy of the first page and the last page of this judgment be handed over to Mr. Shailendra Kumar Jha, Advocate for needful. Appeal allowed.