JUDGMENT (ORAL) Hemant Kumar Srivastava, J. 1. Heard learned counsel Sri Ajay Kumar Thakur appearing for the appellant as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 10.08.2001 and sentence order dated 17.08.2001 passed by Sri Ram Snehi Thakur, 3rd Additional Sessions Judge, Darbhanga in Sessions Trial No. 103 of 1995 by which and whereunder he convicted the appellant for the offence punishable under Sections 307/34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years under the above stated section. 3. The prosecution case, in brief, is that PW 4, Pramod Kumar the then S.I.-cum-Officer-in-charge of Town Police Station, Darbhanga prepared his written report to this effect that on 15.11.1994 at about 08:15 a.m. the informant of Town P.S. Case No. 226 of 1994, namely, Sidhumal (PW 2.) gave information to him on telephone that unknown accused persons of aforesaid Town P.S. Case No. 226 of 1994 had demanded rupees twenty thousand from him in extortion on telephone and directed him to deliver the aforesaid amount to them. PW 4 entered the aforesaid information in station diary as station diary No. 306 of 1994 and informed his higher officials to above stated fact and at the direction of his higher officials. he along with A.S.I., Nagendra Choudhary and A.S.I., C.P. Singh constituted a raiding party and directed the members of raiding party to follow the PW 2 when he comes out from his house and also gave necessary direction to PW 2. He further stated in his written report that at about 11:10 a.m., PW 2 came out of his house and proceeded by Hero Honda motorcycle bearing Registration No. BR07 1388. The members of raiding party including PW 4 followed him and when they reached near koshi project colony, they saw that one person covering his face by gamcha signaled the PW 2 to stop his vehicle whereas two persons were standing near the eastern gate of koshi project colony and one scooter was also standing there. The person, who had stopped the Sidhumal, was carrying pistol in his hand. After that, he ordered the other members of raiding party to catch the aforesaid persons but all the above stated three miscreants started fleeing towards koshi project colony. The person, who had stopped the Sidhumal, was carrying pistol in his hand. After that, he ordered the other members of raiding party to catch the aforesaid persons but all the above stated three miscreants started fleeing towards koshi project colony. The PW 4 and his associates chased them but the person who was carrying pistol in his hand opened fire on PW 4 and his associates but luckily, he missed the firing. The PW 4 and his associates also opened fire in their defence and anyhow they caught two miscreants whereas one miscreant managed to escape from there. In the meantime several persons assembled there and after that PW 4 in presence of PW 1 and PW 3 enquired from the apprehended persons who disclosed their names as Rajesh Sahni and Gopal Yadav and on being searched. One loaded country made pistol was recovered from possession of apprehended accused. Rajesh Sahni whereas two live cartridges were recovered from apprehended accused Gopal Yadav. The seizure list of the aforesaid recovery was prepared in presence of seizure list witnesses. The aforesaid apprehended persons disclosed the name of appellant who managed to flee away from there and the aforesaid persons also disclosed that Bajaj Super Scooter bearing Registration No. DDE 5534 belongs to the appellant. The PW 4 seized the above stated scooter. 4. On the basis of aforesaid written report, Sadar P.S. Case No. 214 of 1994 under Sections 307/34 of the Indian Penal Code and 25(1-b), 26, 27, 35 of the Arms Act was registered and accordingly, formal first information report was drawn against the appellant and two other co-accused. The matter was investigated and after completion of investigation charge-sheet was submitted for the above stated offences. The cognizance of the offences was taken and the case was committed to the Court of Sessions, in usual way. The appellant along with two other accused, namely, Rajesh Sahni and Gopal Yadav were put on trial and appellant along with above stated two co-accused persons was jointly charged for the offences punishable under Sections 307/34 of the Indian Penal Code whereas accused Rajesh Sahni and Gopal Yadav were separately charged for the offences punishable under Sections 25(1-b) a, 26 (ii) and 27 of the Arms Act and co-accused Rajesh Sahni was separately charged for - the offence punishable under Section 307 of the Indian Penal Code. It appears that in course of total the aforesaid co-accused persons absconded and their case was separated from the case of the appellant. 5. In order to prove its case, the prosecution examined altogether, five witnesses and also proved the signature of PW 1 on seizure list as Exhibit-1. seizure list as Exhibit-2, written report of informant as Exhibit-3, confessional statement of accused, Gopal Yadav as Exhibit-4, formal first information report as Exhibit-5 and case diary as Exhibit-6. 6. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which specific question was put to him that on 15.11.1994 near koshi project colony he along with Rajesh Sahni and Gopal Yadav had opened fire an PW 4 but the appellant denied the aforesaid question. No. question in respect of the seized scooter was asked from the appellant in his statement recorded under Section 313 of the Cr.P.C. 7. No. evidence was adduced by the appellant in support of his defence. 8. Learned counsel appearing far the appellant submitted that PW 1 and PW 2 have been declared hostile and they have stated nothing against the appellant and except PW 4, none of the prosecution witness has stated the name of the appellant. He further submitted that PW 4 has claimed to have identified only those accused persons who were caught an the spat and except the aforesaid material there is nothing against the appellant. He further submitted that learned trial Judge has passed the impugned judgment of conviction and sentence order an the ground of so-called confessional statement of co-accused as well as an the basis of seizure of the scooter but it is well settled principle of law that the confessional statement of co-accused that is, too, before the plaice is not admissible in the eye of law and so far as seizure of scooter is concerned, admittedly, no question regarding the aforesaid seizure of the scooter was made from the appellant when his statement under Section 313 of the Cr.P.C. was recorded and therefore the appellant could not get opportunity to explain the circumstances in which his scooter was seized from the place of occurrence. 9. 9. On the other hand learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that prosecution has successfully proved this fact that scooter of the appellant was seized from the place of occurrence and the apprehended co-accused disclosed the name of the appellant not only in presence of PW 4 but also in presence of several persons and therefore, the aforesaid circumstances prove this fact that the appellant had participated in the alleged crime and therefore, the learned trial Court has rightly convicted and sentenced the appellant 10. On perusal of record. I find that prosecution has examined altogether five witnesses out of whom PW 1. Bhola Kant Dutta stated that on the alleged date of occurrence he had heard sound of firing and saw the people running and after that he went near the residence of Chief Engineer where he met the police. He further stated that police showed revolver and two cartridges to him and also disclosed that police had apprehended two persons who were engaged in snatching the belongings of PW 2 and after that police took his signature on plain paper. He proved his signature on seizure list. At this juncture, this witness has been declared hostile and his attention was drawn towards his previous attention but I find nothing in his deposition against the appellant. 11. PW 2. Sidhumal supported this fact that some unknown persons had given threatening and demanding rupees twenty thousand in extortion from him and after that he had given information to police in respect of the aforesaid extortion demand. He further stated that on 15.11.1997 he proceeded from his house by his Hero Honda motorcycle and when reached near koshi project colony one person signaled him to stop and in the meantime police party came there and the aforesaid person started running but he was followed by the police and after that this witness left the aforesaid place and came at his brick kiln where he remained stayed for one hour. He further stated that again he came at the eastern gate of koshi project colony where he saw crowd and some people from the aforesaid crowd told him that police had apprehended two persons. This witness further stated that after the aforesaid occurrence. PW 4 disclosed the name of persons who were caught on the spot. He further stated that again he came at the eastern gate of koshi project colony where he saw crowd and some people from the aforesaid crowd told him that police had apprehended two persons. This witness further stated that after the aforesaid occurrence. PW 4 disclosed the name of persons who were caught on the spot. This witness could not identify the appellant and two other co-accused persons who were present in dock at the time of recording his deposition. At this juncture this witness too declared hostile by the prosecution. 12. PW 3. Bhuttu Yadav is 3 seizure list witness and nothing important in the deposition of this witness. 13. PW 4. Pramod Kumar informant has supported the prosecution story but stated at para 3 of his examination-in-chief that he could identify only those persons who were apprehended by him. 14. PW 5. Md. Kalim is a formal witness who has proved Exhibit- 5. 15. After scrutinizing the entire materials available on the record. it is explicit clear that except PW 4. the other prosecution witnesses have not even whispered the name of the appellant and so far as PW 4 is concerned, he has admitted that the name of this appellant was disclosed by those accused persons who were caught by him at the place of occurrence. So even if, the aforesaid statement of PW 4 assumed to be true, then also the disclosure made by the co-accused is amount to their confessional statement. 16. No doubt, one scooter was recovered from the place of occurrence and PW 4 prepared seizure list of the aforesaid scooter and later on, the appellant filed a petition for release of the aforesaid scooter before the trial Court but mere filing of release petition does not prove this fact that the appellant had also participated in the alleged crime and, at best, it can be said that his scooter was used in committing the alleged crime. Moreover, the learned trial Court has held in the impugned judgment that evidence of recovery of aforesaid scooter is admissible under Section 27 of the Evidence Act but I am not in agreement with the aforesaid finding because according to prosecution case itself, the alleged recovery was made from the place of the occurrence before recording the confessional statement of co-accused persons. Moreover, even if it assumed that recovery of aforesaid scooter is admissible under Section 27 of the Evidence Act then also the aforesaid evidence shall go only against co-accused who had made confessional statement and not against the appellant. 17. PW 4 has, specifically, admitted in his deposition as well as in his written report that when he along with other police officials reached on the place of occurrence one person stopped the PW 2 and aforesaid person was holding pistol in his hand and furthermore he admitted that when he as well as other police personnel tried to catch the aforesaid person as well as other two persons who were standing near the eastern gate of koshi colony all the persons started fleeing from there and the persons who was holding pistol opened fire on him. So, even if the aforesaid statement of PW 4 assumed to be true then also. it cannot be said that all the above stated three persons shared common intention to commit the murder of PW 4 and other police officials and therefore, on the aforesaid score. I am of the opinion that conviction of appellant cannot sustain under Section 307 read with Section 34 of the Indian Penal Code. 18. On the basis of aforesaid discussions. I am of the firm view that prosecution has failed to prove the charge levelled against the appellant beyond all shadow of reasonable doubts and accordingly this criminal appeal is allowed and the impugned judgment of conviction dated 10.08.2001 and sentence order dated 17.08.2001 are, hereby, set aside and the appellant is acquitted of the charges framed against him. He is on bail. He is discharged from the liabilities of his bail bonds. Appeal allowed.