Judgment : Nishita Mhatre, J. 1. This appeal is directed against the judgment dated 17th July, 2010 of the learned Additional Sessions Judge, 3rd Court, Nadia at Krishnagar in Sessions Trial No. VI (July) 2006, corresponding to Sessions Case No.63 (6) of 2006. The Sessions Court has convicted the Appellants under Section 302 read with Section 34 of the Indian Penal Code. All the Appellants have been sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.5,000/-each, in default of payment of fine to suffer rigorous imprisonment for a further period of six months. 2. According to the prosecution case, four (4) unknown miscreants, who were armed, broke the jute fence on the rear of the house of one Anil Mondal on 25th May, 2005 at about 11:15 p.m. They shot his son Amit Mondal who was sleeping in the verandah of the house. He was injured in his abdomen. The miscreants then injured Sunil Mondal, the elder brother of Anil Mondal with sharp weapons while he was also sleeping in the verandah. Amit and Sunil were rushed to the Karimpur Hospital for treatment. Amit succumbed to his injuries in the hospital while Sunil was admitted in a serious condition. Apparently, on 25th May, 2005 at about 10:00 p.m. the same miscreants shot one Gautam Karmakar of Baninathpur village. He too succumbed to his injuries. 3. The FIR was filed on 25th May, 2005 by one Sujit Mondal, who has been examined as P.W.1 in this case. Both the aforesaid incidents were included in the same FIR. The inquest of Gautam’s body was held in the hospital on 26th May, 2005 at about 1:45 p.m. Surprisingly, the witnesses to this inquest have not been examined in Court. No postmortem report has been produced in respect of Gautam. In the case of Amit, though the post-mortem report has been exhibited before the Trial Court, no inquest was conducted in respect of the deceased. 4. The Appellants were charged for having committed an offence under section 302 read with section 34 of the IPC. The charge-sheet, indicates that the death of Gautam occurred in Kailasnagar village while Amit died in the village Nasirerpara within Police Station Hogalberia. The Appellants were also charged for having committed offences under Sections 25(1)A-A and 27(2) of the Arms Act. The Appellants were charged for having committed an offence under section 302 read with section 34 of the IPC. The charge-sheet, indicates that the death of Gautam occurred in Kailasnagar village while Amit died in the village Nasirerpara within Police Station Hogalberia. The Appellants were also charged for having committed offences under Sections 25(1)A-A and 27(2) of the Arms Act. However, the prosecution failed to prove its case under the Arms Act and, therefore, they were acquitted in respect of these offences by the Sessions Court. 5. The prosecution has relied on thirteen (13) witnesses to prove its case before the Sessions Court. 6. P.W.3 and P.W.4 claim to be eyewitnesses of the incidents and, therefore, their testimonies have been relied on heavily by the Prosecution. 7. P.W.1 is a resident of Nasirerpara in Hogalberia Police Station. He has not witnessed the incident but he woke up when he heard the sound of a firing and shouting. He went to Anil Mondal’s house which was 300 yards away from his own and found that Amit had been killed and Sunil had sustained an injury. The witness has stated that the victims were sent to the Karimpur Hospital and he went to the Police Station to lodge the FIR. He claims that Anil disclosed to him that the miscreants were from Bangladesh. They were known to him and had committed a dacoity. 8. P.W.2 is the son-in-law of Anil Mondal. He stated that he had visited Anil Mondal’s house and was informed that some Bangladeshi miscreants had committed a dacoity in his house. This witness admitted in his cross-examination that he had not disclosed any of these facts to the police and had stated so only before the Court. 9. P.W.3 is a resident of village Rajapur, which also falls within the Hogalberia Police Station. He claimed that Gautam, one of the deceased, was his neighbour. He has stated that Gautam and he were cooking. Late at night, between 10:00 p.m. and 10:30 p.m. Gautam expressed his desire to go home. The witness has stated that about ten minutes later he heard a gunshot. The witness rushed towards Gautam’s house with a torchlight in his hand. He saw Gautam lying injured and some people were running away towards Nasirerpara. Late at night, between 10:00 p.m. and 10:30 p.m. Gautam expressed his desire to go home. The witness has stated that about ten minutes later he heard a gunshot. The witness rushed towards Gautam’s house with a torchlight in his hand. He saw Gautam lying injured and some people were running away towards Nasirerpara. According to this witness he recognized two of these persons i.e., the Appellants here with the help of the electric light as well as the torchlight which he was carrying. He has stated that Bangladesh border was a half kilometre away from their village and the Appellants frequently used to visit their village by crossing over the border. The police were informed about Gautam being shot and he was taken to Karimpur Hospital in a police vehicle. The witness stated that Anil Mondal came to the same hospital with his son who was injured. Gautam was then shifted to Shaktinagar Hospital. The witness has signed the seizure list in respect of cartridges which were seized from the Kailasnagar road. In his cross-examination the witness has stated that after the dacoity he went to the police station and reported the matter. The police recorded the information in village Rajapur and obtained his signature. He has stated that the dacoits fled away ahead of him. He reiterated in his cross-examination that he could recognize the Appellants with the help of his torchlight. He claimed that he handed over the torchlight to the police. Although the witness has spoken about his clothes being stained with blood oozing out of the wounds sustained by Gautam, these clothes were surprisingly not seized by the Police. He has stated that while he could recognize two of the miscreants, four/five of them fled away. 10. P.W.4, Anil Mondal is the father of Amit, who died on being shot. The witness’s brother, Sunil was also attacked with a henso on his neck. According to this witness, there were nine dacoits and he could identify four out of those persons. He claimed that he could identify the Appellants because they resided across the border in Bangladesh, only two miles away from his residence. He has also stated that the Appellants would come across the border often, for farming. This witness claimed that he identified the Appellants with the light from a hurricane lantern. He claimed that he could identify the Appellants because they resided across the border in Bangladesh, only two miles away from his residence. He has also stated that the Appellants would come across the border often, for farming. This witness claimed that he identified the Appellants with the light from a hurricane lantern. He has stated that after the dacoits fled, he took his brother and son to Karimpur Hospital. While his son succumbed to the injuries on reaching the hospital, his brother was referred to Shaktinagar Hospital from Karimpur Hospital. After he was treated, he returned home. In his cross-examination this witness has admitted that he did not meet the Investigating Officer of this case earlier and that he was narrating the incident of the dacoity for the first time in court. He has also denied having told the Investigating Officer that he could identify the Appellants with the help of light of the hurricane lantern. 11. P.W.5 is the younger brother of P.W.4. He has stated that he was attacked with a hensua on his shoulder by the dacoits. He was sleeping when the dacoits struck him. He has admitted that he could not identify his assailants. 12. P.W.6 and P.W. 7 are the mother and sister, respectively, of the deceased Amit. Both these witnesses have no personal knowledge about the incident and were unable to identify the Appellants. 13. P.W.8 is the Assistant Sub-Inspector of Police, who held the inquest in respect of the dead body of Gautam. 14. P.W.9 is the Medical Officer, who was posted in Karimpur Rural Hospital when Sunil Mondal was admitted there. He described the injuries of Sunil and stated that Sunil was admitted in the hospital by his relative Pijush Mondal, his neighbour Samar Mondal and one Tapan Das Bairagya. None of these persons had been examined by the Prosecution. Significantly, the doctor does not speak about the presence of Anil Mondal (P.W.4), although the latter has stated that he took his brother and son, who were attacked by the Appellants, to the hospital. The doctor has admitted in his cross-examination that the patient, i.e., Sunil Mondal, gave a brief history of the assault which meant that he was fully conscious; however, he did not name the person who attacked him. 15. P.W.10 is the Police Officer, who received the complaint and started the case at Hogalberia Police Station. 16. The doctor has admitted in his cross-examination that the patient, i.e., Sunil Mondal, gave a brief history of the assault which meant that he was fully conscious; however, he did not name the person who attacked him. 15. P.W.10 is the Police Officer, who received the complaint and started the case at Hogalberia Police Station. 16. P.W.11 is the father of Gautam. He has admitted that he did not see the assailants or witness the incident. 17. P.W.12 is the doctor, who conducted the post-mortem in respect of Amit. He described the four injuries sustained by Amit as: “1) A deep penetrating injury 2” x 2” situated over front of abdominal wall rt side and just below constanl margin and ½” to the right side of mid line. And through the wound portion of swall gut is comint out. 2) Skin around the wound is charred 3) Abdominal cavity full of clotted blood 4) Liver and kidney traveresed colon small gut and stomach and found charred.” The doctor has stated that three metallic pellets were recovered from the abdominal cavity of the deceased. He opined that the death occurred due to shock and haemorrhage resulting from the aforesaid injuries which were ante mortem and homicidal in nature. The doctor has stated that the injuries were caused with a firearm “but not from very far”. 18. P.W.13 is the Investigating Officer. He has stated that he interrogated Anil Mondal, i.e., P.W.4. He claimed to have seized bloodstained earth, a controlled sample, one empty 12-bore cartridge on which was inscribed K.F.12. Thereafter, he seized two 12-bore empty cartridges on the village path in Kailashnagar which was adjacent to the village in which the offence occurred. These articles are included in the seizure list. The Investigating Officer has claimed that he examined P.W.3 and some other persons and Sunil Mondal, the injured person. The witness then prepared one more seizure list on 20th June, 2005 of metallic pellets, two caps, one yellow checked lungi. These articles were produced by a rickshaw puller, Tapan Sharama. In his cross-examination, the Investigating Officer has admitted that he did not care to ascertain whether there was any previous FIR lodged in respect of the instant case. He has also admitted that he did not send any blood-stained earth or empty cartridge to the F.S.L. for examination. These articles were produced by a rickshaw puller, Tapan Sharama. In his cross-examination, the Investigating Officer has admitted that he did not care to ascertain whether there was any previous FIR lodged in respect of the instant case. He has also admitted that he did not send any blood-stained earth or empty cartridge to the F.S.L. for examination. He has admitted further that he did not seize any torchlight or any other “medium of recognition” nor was any such article handed over to him. 19. The Investigating Officer has contradicted P.W.3 and P.W.4. He has denied that P.W.3 informed him that he heard a gunshot within ten minutes of the departure of Gautam from the place where they were cooking. He has also denied that P.W.3 informed him that police from Karimpur Police Station took Gautam to the hospital in their vehicle. He has conceded that he did not seize the clothes of P.W.3 which P.W.3 claimed were blood-stained. While contradicting P.W.4 the Investigating Officer has denied having been told by P.W.4 that he knew the Appellants because they used to cross the border and work on farmlands. He has also denied seizing any torchlight or a hurricane lantern at the place of occurrence. 20. The evidence on record does not inspire any confidence in the story of the prosecution. It does not at all point to the only conclusion that it is the Appellants, who had committed the crime. The testimonies of P.W.3 and P.W.4 who are the star witnesses for the prosecution, have not been corroborated by the Investigating Officer. In fact, he has contradicted them on minute details as stated earlier. It was admittedly a dark night when the incident occurred. Therefore, unless there was some medium of illumination it would have been difficult to recognize the Appellants. P.W.3 claimed that he had a torchlight in his hand and that the dacoits were fleeing ahead of him. It is very difficult to accept that he was able to identify the Appellants in the dark night with the help of a torchlight when they were fleeing away from him. It is impossible that he could have identified them from rear. P.W.4 has spoken about having a hurricane lantern with which he was able to identify the miscreants. Surprisingly neither the torchlight nor the hurricane lantern have been seized by the Investigating Officer. It is impossible that he could have identified them from rear. P.W.4 has spoken about having a hurricane lantern with which he was able to identify the miscreants. Surprisingly neither the torchlight nor the hurricane lantern have been seized by the Investigating Officer. Therefore, it is difficult to accept the testimony of these witnesses. 21. P.W.3 has stated that the electric light in the area at the scene of the offence also helped in illuminating the place where Gautam was shot. However, the map drawn by the Investigating Officer does not mention any electric street light. Thus, the testimonies of these witnesses are difficult to believe. 22. Reliance has been placed by the learned Counsel for the Appellants on the judgment of the Division Bench of this Court in the case of Jamat Ali Sheikh @ Mondal Vs. The State of West Bengal, reported in (2011) 1 C Cr LR (Cal) 679 where this Court has held that the nonseizure of the torchlight where identification of the accused was possible only with its help raises suspicion as to the veracity of the prosecution case regarding the identification. The learned Counsel has also relied on the judgment of the Supreme Court in Durbal Vs. State of Uttar Pradesh, reported in (2011) 2 SCC 676 where the Supreme Court has held that the non-production of the lantern and the torchlight, which were used to identify the assailants, was suspicious and it would reflect on the existence of the torchlights in the hands of the witnesses. 23. As we have mentioned earlier, the evidence on record indicates that it was a pitch dark night and the only source of illumination claimed by the witnesses is a torchlight and a hurricane lantern. Both these articles have not been seized. The existence of these sources of light with the witnesses is doubtful. The electric light has not been mentioned in the sketch map. Therefore, the testimonies of these witnesses regarding the identification of the appellants are not credible at all. 24. The learned Counsel, appearing for the State, has argued that P.W.3 was well acquainted with the Appellants, who were Bangladeshi nationals. He pointed out that the witness has stated that he handed over the torchlight to the police from Karimpur Police Station. The learned Counsel submitted that similarly P.W.4 was acquainted with the Appellants because they often crossed the border for cultivation. He pointed out that the witness has stated that he handed over the torchlight to the police from Karimpur Police Station. The learned Counsel submitted that similarly P.W.4 was acquainted with the Appellants because they often crossed the border for cultivation. According to the learned Counsel the lack of seizure of torchlight or hurricane lantern should not reflect poorly on the credibility of the testimonies of P.W.3 and P.W.4. The learned Counsel for the State has relied on the judgment of the Supreme Court in the case of Dalbir Singh Vs. State of Haryana, reported in 2009 (2) SCC (Cri) 553. In this judgment the Supreme Court has reiterated its view expressed in an earlier judgment where it had observed that even if there is insufficient light a witness, who is fairly acquainted or is on intimate terms with the voice, gait, features etc. of another, can identify the person. The learned Counsel has also laid great emphasis on para 10 of this judgment in which it has observed that the maxim ‘falsus in uno falsus in omnibus’ is a rule of caution. The testimony in such cases may be disregarded and not that it must be disregarded. The Court has observed doctrine merely involves the question of weight of the evidence which a Court must apply in a given set of circumstances but that does not on mandatory rule of evidence. There can be no quarrel with the proposition enunciated by the Supreme Court. However, we are unable to accept the argument of the learned Counsel. If the identification of the Appellants was not accurate because of the lack of illumination, then they cannot be held guilty of the offence with which they were charged. The identification of the Appellants by P.W.3 and P.W.4 is not believable. They were not on intimate terms with the appellants. Merely because the appellants had crossed the border on some occasions and were seen working on some farmlands it is not possible to accept the version of these witnesses that they were able to identify them in a dark night. The material on record does not lend credence to the evidence of P.W.3 and P.W.4 that they were fairly acquainted with the Appellants and, therefore, could identify them even in the darkness or indeed with the help of the illumination which was available. Their testimony does not inspire any confidence. The material on record does not lend credence to the evidence of P.W.3 and P.W.4 that they were fairly acquainted with the Appellants and, therefore, could identify them even in the darkness or indeed with the help of the illumination which was available. Their testimony does not inspire any confidence. Moreover, the statement of P.W.3 that he was able to identify the Appellants from the rear in the beam of light from a torch is also unbelievable. 25. The investigation in this case has been completely shoddy and bereft of professionalism. While there is an inquest in respect of Gautam’s body, there is no post-mortem report in respect of the deceased. However, the post-mortem report of Amit has been produced without any inquest report. The seizure of the blood-stained earth and the pellets has not resulted in any report from the F.S.L. which would be prejudicial to the Appellants. 26. In these circumstances, it is difficult to accept the version of the Prosecution that the Appellants are guilty of the charge against them. 27. Accordingly, we set aside the conviction and sentence recorded by the learned Additional Sessions Judge, 3rd Court, Nadia at Krishnagar in Sessions Trial No. VI (July) 2006 corresponding to Sessions Case No.63 (6) of 2006 and allow this appeal. The appellants, who are in jail, are directed to be released at once, if not wanted in any other case.