JUDGMENT T.P. Sharma, J. 1. Criminal Appeals Nos. 793/11, 833/11, 973/11, 34/12, 179/12, 229/12 & 72/14 filed against the judgment of conviction and order of sentence dated 22.9.2011 passed in S.T. No. 148/08 are being disposed of by this common judgment. Challenge in the above appeals are to the judgment of conviction and order of sentence dated 22.9.2011 passed by the 1st Additional Sessions Judge, Bastar at Jagdalpur in S.T. No. 148/08 whereby & whereunder the trial Court after holding the appellants guilty for forming unlawful assembly armed with deadly weapons (appellants Kiran Kumar Nag, Kavi Sheikh, Shabbir Bharti & Bablu alias Bajrangi) having its common object to kidnap Ranjit @ Sheru and to commit his murder and in furtherance thereof the appellants had kidnapped Ranjit @ Sheru and committed his murder, convicted appellants-Tinku @ Rajnath, Abhishek, Mantoo @ Hitendra Nag, Vikas Tripathi, Sagar Setty under Sections 147, 364/149, 302/149 of the Indian Penal Code (for short "IPC") and sentenced each of them to undergo R.I. for 02 years & fine of Rs. 300/-, in default to undergo additional R.I. for 03 months; R.I. for 10 years & fine of Rs. 500/-, in default to undergo additional R.I. for 01 year and R.I. for life & fine of Rs. 1,000/- in default to undergo additional R.I. for 01 year respectively. Remaining appellants have been convicted under Sections 148, 364/149, 302/149 of the IPC and sentenced to undergo R.I. for 03 years & fine of Rs. 500/-, in default to undergo additional R.I. for 06 months; R.I. for 10 years & fine of Rs. 500/-, in default to undergo additional R.I. for 01 year and R.I. for life & fine of Rs. 1,000/- in default to undergo additional R.I. for 01 year respectively. 2. Conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted & sentenced the appellants, as aforementioned, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 26.7.2008 at about 11.00 a.m., the appellants kidnapped deceased Sheru @ Ranjit on account of previous enmity by Sumo vehicle bearing registration number CG17-D-0596 and thereafter caused his homicidal death amounting to murder. Initially, kidnapping report and formation of unlawful assembly was lodged on 26.7.2008 at 2.00 p.m. vide Ex. P-1. Initially, kidnapping report and formation of unlawful assembly was lodged on 26.7.2008 at 2.00 p.m. vide Ex. P-1. On the same day at about 3.00 p.m., one dead body was found lying beside the road. Merg was intimated and recorded vide Ex. P-27 & Ex. P-54. The investigating officer left for scene of occurrence and after summoning the witnesses vide Ex. P-28, inquest of the dead body was prepared vide Ex. P-29. Spot map was prepared vide Ex. P-26 & P-30. Bloodstained & plain soil, pointed stones, broken bricks, chappals, newspaper, locket were seized from the spot vide Ex. P-31. Dead body was sent for autopsy to the Primary Health Centre, Nagarnaar vide Ex. P-4A where Dr. C.L. Gawde (PW-7) conducted autopsy vide Ex. P-4 and found following injuries:-- • Incised wound of 1" x 2 cm size, deep upto 3". • Incised wound of 1" x 1 1/2 km x 3" deep. • Incised wound of 1" x 1 cm x 2 1/2" deep. Above three stab wounds are at level of 2nd & 3rd ribs, both the ribs were also half injured. • Incised wound of the size of 1" x 1 1/2 km x 3 cm deep. • Incised wound of the size of 1/2" x 1 cm x 2 1/2 cm situated in between 3rd & 4th ribs, • Incised wound of 1 1/2" x 2 cm x 3 1/2" size. • Incised wound of 1" x 1 1/2 cm x 2" size. • Incised wound of 1/2" x 1 cm x 1" situated at level of 4th, 5th & 6th ribs, 4th & 5th ribs are also half cut injured. Above wounds were on the right side of chest. • 1/2" x 1 cm x 1" over the lower part of sternum bone in the middle of the chest. • Wound on the left side of chest level of 4th, 5th rib. 1 1/2" lateral to sternum bone of 1" x 2 cm x 3 1/2" size. • Lacerated wound with depressed fracture on the right frontal region of head of 2" x 1 1/2" up to the brain. • Lacerated wound with depressed fracture on the right eyebrow of 1" x 1/2" x bone deep. • Lacerated wound with fracture on the right cheek of 1 1/2" x 1 1/2" x bone deep. • Lacerated wound with depressed fracture on the right frontal region of head of 2" x 1 1/2" up to the brain. • Lacerated wound with depressed fracture on the right eyebrow of 1" x 1/2" x bone deep. • Lacerated wound with fracture on the right cheek of 1 1/2" x 1 1/2" x bone deep. • Lacerated wound with fracture on the left eyebrow of 1" x 1 1/2" x bone deep. • Lacerated wound and fracture on the nose of 1 1/2" x 1 1/2" x bone deep. • Lacerated wound on the lower lip of 1" x 1 1/2" x bone deep. • Lacerated wound with fracture on the right side of chin of 1 1/2" x 1 1/2" x bone deep. Mode of death was syncope as a result of excessive haemorrhage and injuries on the vital parts of the body. Appellant-Kavi Sheikh was taken into custody, he made disclosure statement of battleaxe vide Ex. P-13 and the same was recovered at his instance vide Ex. P-15. Appellant-Vikas Tripathi was taken into custody, he made disclosure statement of Sumo vehicle bearing registration number CG17-D-0596 vide Ex. P-14 and the same was recovered at his instance vide Ex. P-16 along with papers of vehicle. Appellant-Shabbir Bharti was taken into custody, he made disclosure statement of knife vide Ex. P-17 and the same has been recovered vide Ex. P-18. Appellant Bablu @ Bajrangi was taken into custody, he made disclosure statement of knife vide Ex. P-19 and the same has been recovered vide Ex. P-20. Appellant-Kiran Kumar Nag was taken into custody, he made disclosure statement of knife vide Ex. P-21 and the same has been recovered vide Ex. P-22. Sealed clothing of the deceased were seized vide Ex. P-32. The appellants were arrested vide Ex. P-23 to P-25, P-32, P-33, P-34, P-35, P-36 & P-37. Seized articles were sent for chemical examination vide Ex. P-49 and presence of blood upon the articles seized from the appellants were confirmed vide Ex. P-53. Statements of witnesses were recorded under Section 161 of Cr.P.C. 4. After completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Jagdalpur, who, in turn, committed the case to the Court of Sessions Judge from where learned Additional Sessions Judge has received the case on transfer for trial. P-53. Statements of witnesses were recorded under Section 161 of Cr.P.C. 4. After completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Jagdalpur, who, in turn, committed the case to the Court of Sessions Judge from where learned Additional Sessions Judge has received the case on transfer for trial. In order to prove guilt of the appellants, the prosecution had examined as many as 19 witnesses. The appellants were examined under Section 313 of Cr.P.C. where they denied the circumstances appearing against them and pleaded innocence & false implication. They have also examined Dipak Soni (DW-1) & Manikram (DW-2) and tried to prove that Manti @ Hitendra was present on duty and thereby defence of alibi was taken. 5. The trial Court, after providing opportunity of hearing to the parties, convicted and sentenced the appellants as mentioned in Paragraph-1 of this judgment. 6. We have heard learned counsel for the parties and perused the impugned judgment and record of the trial Court. 7. Mr. Sharma, Mr. Verma, Mr. Tiwari & Mr. Jaiswal, learned counsel for the respective appellants vehemently argued that conviction is substantially based on the evidence of Karan Yadav (PW-2), Prakash @ Pappu (PW-3), Khagendra Yadav (PW-10) & Tinku @ Avinash (PW-12) but their evidence does not inspire confidence and trustworthy. They have not witnessed the incident and they have not deposed against the appellants. Their evidence is not sufficient for drawing any inference. There are material omissions & contradictions in the evidence of Karan Yadav (PW-2), Prakash @ Pappu (PW-3), Khagendra Yadav (PW-10) & Tinku @ Avinash (PW-12). 8. Mrs. Jain, learned counsel for the appellant in Cr. Appeal No. 34/12 has submitted that name of appellant-Bablu does not find place either in the charge sheet or in the statements of witnesses recorded under Section 161 of Cr.P.C. The prosecution has failed to prove his presence. 9. Mr. Pandey, learned counsel for the appellant in Cr. Appeal No. 833/11 submits that one vehicle that too from the garage has been seized from appellant-Vikas Tripathi. The prosecution had failed to establish involvement of this appellant and said vehicle in the crime in question. In absence of such evidence, conviction of appellant-Vikas Tripathi is not sustainable under the law. 10. Pandey, learned counsel for the appellant in Cr. Appeal No. 833/11 submits that one vehicle that too from the garage has been seized from appellant-Vikas Tripathi. The prosecution had failed to establish involvement of this appellant and said vehicle in the crime in question. In absence of such evidence, conviction of appellant-Vikas Tripathi is not sustainable under the law. 10. On the other hand, learned counsel for the State opposed the appeals and submitted that the evidence adduced on behalf of the prosecution is sufficient to prove the fact that the appellants have firstly kidnapped the deceased and thereafter caused his homicidal death amounting to murder. 11. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 12. In the present case, kidnapping of deceased Ranjit @ Sheru and his murder as a result of fatal injuries found on the body of the deceased, have not been disputed substantially on behalf of the appellants. Even otherwise, from the evidence of Smt. Kulwant Kaur Gill (PW-1), Karan Yadav (PW-2), Prakash @ Pappu (PW-3), G.R. Baghel (PW-4), Khagendra Yadav (PW-10), Tinku @ Avinash (PW-12), Dr. C.L. Gawde (PW-7), autopsy report (Ex. P-4), it is established that death of deceased was homicidal in nature. 13. As regards the question of complicity of the appellants' in crime in question, conviction is substantially based on the evidence of Smt. Kulwant Kaur Gill (PW-1), Karan Yadav (PW-2), Prakash @ Pappu (PW-3), Khagendra Yadav (PW-10) & Tinku @ Avinash (PW-12). As per evidence of Smt. Kulwant Kaur Gill (PW-1), who has lodged the FIR, she was informed that the deceased has been kidnapped by some armed persons then she lodged the FIR by telephone. 14. Karan Yadav (PW-2), motor mechanic, has deposed that one Tata Sumo vehicle bearing registration number CG17-D-0596 came near his shop, the appellants were sitting inside the vehicle and one of the appellants was driving the vehicle. They came down from the vehicle, chased Ranjit, who was standing near the place of incident. They caught hold Ranjit, assaulted him by knife and thereafter took him inside the vehicle and kidnapped him. He went to the house of Lakkha and informed him about the incident. At about 4-5.00 p.m. he came to know about the murder of Ranjit @ Sheru. 15. They caught hold Ranjit, assaulted him by knife and thereafter took him inside the vehicle and kidnapped him. He went to the house of Lakkha and informed him about the incident. At about 4-5.00 p.m. he came to know about the murder of Ranjit @ Sheru. 15. Prakash @ Pappu (PW-3) has also supported the evidence of Karan yadav (PW-2). Smt. Palvinder Tomar (PW-5), was informed by her sister Rajvinder Rai (PW-6) that 8-10 persons had kidnapped Ranjit @ Sheru and she had also informed her names of the assailants. Smt. Rajvinder Rai (PW-6) has deposed that she was informed by Bunty @ Shailesh that the appellants had kidnapped Ranjit @ Sheru then she informed Smt. Palvinder Tomar (PW-5). Khagendra Yadav (PW-10) has deposed that the appellants came and caught hold Sheru, they assaulted him by dagger and took him by Sumo vehicle. Tinku @ Avinash (PW-12) has deposed that the appellants have taken the deceased by Sumo vehicle bearing registration number CG17-D-0596. 16. As per evidence of the aforesaid witnesses, Karan Yadav (PW-2), Prakash (PW-3), Khagendra Yadav (PW-10) & Tinku @ Avinash (PW-12) have claimed that they are eyewitnesses. Tinku @ Avinash (PW-12) has deposed that the appellants came by Sumo vehicle bearing registration number CG17-D-0596, he identified the appellants in the doc identification but deposed that on the date of incident, he saw them for the first time. He has further deposed that at the time of incident he did not know the appellants. Khagendra Yadav (PW-10) has deposed that he knows the appellants only by face and not by their names, however, they came by Sumo vehicle. He has deposed that his statement has been recorded after 2 1/2 months of the incident. Karan Yadav (PW-2) has deposed that he knows Manty, Kiran, Abhishek, Sagar, however, he did not know other persons by their names although he knew them by face. He has also deposed that one of the accused was driving the vehicle. He has identified the appellants in the doc identification. In Para-11 he has deposed that his statement under Section 161 of Cr.P.C. has been recorded on the second day and not after long delay, but as per Ex. P-2, it has been recorded on 17.10.2008 i.e. after 2 1/2 months of the incident. As per Ex. P-2, he was under fear and after 2 1/2 months he stated the names of the appellants. P-2, it has been recorded on 17.10.2008 i.e. after 2 1/2 months of the incident. As per Ex. P-2, he was under fear and after 2 1/2 months he stated the names of the appellants. 17. Prakash @ Pappu (PW-3) has deposed that he saw the appellants first time. His statement (Ex. P-3) under Section 161 of Cr.P.C. was recorded on the same day in which he has named Bunty, Sagar, Kiran, Shabbir, Abhishek, Kavi Sheikh, although as per his evidence he has seen the appellants for the first time. In Para-3 he has deposed that he has not stated names of the appellants in Ex. P-3 and the police themselves had recorded the names of appellants. As per evidence of alleged eyewitness Karan Yadav (PW-2) and Ex. P-2, his statement was recorded after more than 2 1/2 months but he has stated in his evidence that his statement (Ex. P-2) was recorded on the second day. 18. As per evidence of Khagendra Yadav (PW-10), his statement under Section 161 of Cr.P.C. was also recorded after 2 1/2 months (Para-3). As per Para-4 of the evidence of Tinku @ Avinash (PW-12), at the time of incident he did not know names of the appellants but his statement finds mention of the name of the appellants. Statements of Karan Yadav (PW-2) & Khagendra Yadav (PW-10) under Section 161 of Cr.P.C. have been recorded after 2 1/2 months. On the date of incident, Tinku @ Avinash (PW-12) did not know name of any of the appellants. Prakash @ Pappu (PW-3)" has also not stated the names of the appellants to the police inter alia the police themselves had recorded their names. Evidence of these witnesses' shows that at the time of incident they have not stated names of the appellants but their statement and other documents finds mention names of the appellants. 19. As per evidence of Rajvinder Rai (PW-6), Smt. Kulwant Kaur Gill (PW-1) & Smt. Palvinder Tomar (PW-5), Bantu @ Shailesh informed Rajvinder Rai that the appellants had kidnapped the deceased but the prosecution has not examined said Bantu @ Shailesh to unfold the story although he was the person who had seen the appellants and informed the aforesaid witnesses. Other witnesses have not stated about the appellants immediately inter alia the police had recorded names of the appellants in their statement. Other witnesses have not stated about the appellants immediately inter alia the police had recorded names of the appellants in their statement. These appellants were never subjected to identification under Section 9 of the Evidence Act, although the Doc identification is a substantive piece of evidence and not test identification but to ensure that investigation is going in the right direction the prosecution was under obligation to conduct the test identification parade, especially when the witnesses have not stated the names of the appellants. There was no other source to find out that who has committed the offence. In these circumstances, statements of Karan Yadav (PW-2), Prakash (PW-3), Khagendra Yodav (PW-10) & Tinku @ Avinash (PW-12) related to identification of the appellants are suffering from infirmity and not sufficient for drawing inference that the appellants are the persons who have committed the offence. The prosecution had not adduced any other evidence to connect the appellants with crime in question. In the light of infirm evidence of Karan Yadav (PW-2), Prakash (PW-3), Khagendra Yadav (PW-10) & Tinku @ Avinash (PW-12), conviction and sentence of the appellants are not sustainable under the law. 20. Consequently, all the appeals are allowed. Conviction and sentence of the appellants-Tinku @ Rajnath, Abhishek, Mantoo @ Hitendra Nag, Vikas Tripathi, Sagar Setty under Sections 147, 364/149, 302/149 of the IPC and appellants-Kiran Kumar Nag, Kavisheikh Nag, Shabbir Bharti & Bablu @ Bajrangi under Sections 148, 364/149, 302/149 of the IPC are hereby set aside. They are acquitted from the aforesaid charges. They be set at liberty forthwith if not required in any case. Certified copy as per rules. Appeal allowed