JUDGMENT Smt. Sheema Ali Khan, J.- This appeal arises out of Session Trial No. 231 of 1994/61 of 1994 passed on Ist September, 1995 by the Ist Additional Sessions Judge, Sitamarhi. 2. Briefly stated the prosecution case is that in the night of 17.02.1994 at 10 P.M., Pinki Devi and her mother Mantoran Devi after closing the tea shop which was situated near Harijan Hostel, had gone to sleep. They were awoken by some one calling out the informant’s name and requesting them to open the ‘Dhadhar’ of the shop. Pinki Devi identified the person as Abdul Samad Ansari (appellant ) and Sanjay Baitha and some others of the Harijan Hostel. Pinki Devi could not identify the others by name but she can identify them by face. Some unknown accused also told her to open the shop, whereupon appellant is said to have ordered Sanjay Baitha to kill both of them, upon which Sanjay Baitha removed the cloth of the ‘Dhadhar’, took out knife and plunged it into the back of the informant’s mother. Her mother cried out and fell on the chauki. Thereafter the miscreants fled away. Pinki Devi thereafter with the help of Ricksha-puller took her mother to the hospital. The reason for the occurrence was that the miscreants had a bad intention towards Pinki Devi. 3. During the trial nine witnesses were examined and all of them were declared hostile except P.W. 3 Shankar Sah who is the son-in-law of the deceased. Informant Pinki Devi was also declared hostile vis a vis this appellant. 4. P.W.3 has stated in his examination- in- chief that he was informed by Pinki Devi that her mother has been stabbed. Shankar Sah has narrated the same story as narrated by Pinki Devi in the first information report. There is nothing in his cross-examination to contradict his statement. However it may be noted that he is a hear-say witness. It may also be noted that P.W.4 has stated that her statement was not recorded by the police. P.W.7 the informant has supported her case as made out in the first information report, but she does not name this appellant as being present at the place of occurrence. She does not identify the appellant although the appellant was present in the dock and as such she has been declared hostile. P.W.7 the informant has supported her case as made out in the first information report, but she does not name this appellant as being present at the place of occurrence. She does not identify the appellant although the appellant was present in the dock and as such she has been declared hostile. P.W.8 Naresh Chandra Sinha was the officer incharge who conducted the investigation of the case. P.W.9 Shri Rajdeo Singh was A.S.I posted in the Sitamarhi P.S. who is the person who had taken the statement of Pinki Devi and read it over to her before she put her signature on her beyan. Both of them are reported to have supported the statements of the witnesses made in the case diary. There are certain discrepancies in the evidence which are not relevant while considering the case of the present appellant. P.W.9 has stated that inquest report of the deceased was prepared by him at Sadar Hospital. Carbon copy of the inquest report has been supplied and proved and the original was sent to the hospital. 5. On the basis of the aforesaid evidence at best it may be said that the appellant was an order giver and he has been convicted to undergo R.I. for ten years under section 304 (Ist part) of the Indian Penal Code. 6. On perusal of the evidence which has been discussed above, this court finds that there is insufficient evidence to prove that Abdul Samad Ansari was present at the time of occurrence. The informant has turned hostile so far in the case of Abdul Samad is concerned. In the result the appellant is acquitted from the charged under section 304 (Ist part)) read with section 34 of the Indian penal Code. The judgment and order of conviction passed by the Ist Additional Sessions judge, Sitamarh is hereby set aside. The appeal is allowed. The appellant is discharged from the liabilities of his bail bonds. Appeal allowed.