Judgment This appeal is directed against the judgment of conviction and the order of sentence dated 7th day February, 2004 passed by learned 1st Addl. Sessions Judge at Chaibasa in Sessions Trial No.63 of 1999 whereby and whereunder the appellant, having been found guilty for the offences punishable under Sections 396 and 307/34 of the Indian Penal Code, was sentenced to undergo imprisonment for life for the offence under Section 396 of the Indian Penal Code and further to undergo imprisonment for seven years for the offence under Section 307/34 of the Indian Penal Code. 2. It is the case of the prosecution that on 02.01.1995 at about 8.00 P.M., while the informant-Shanti Purty was in her house along with her mother and father and were preparing to go to retire to bed, four persons entered into her house. After seeing them, she raised alarm. Upon it, her father, who had been sleeping at Khalyan situated adjacent to the house, came rushing over there and tried to catch hold of them. Meanwhile, when she raised alarm, three to four persons also entered into the house. Two of them, caught hold of her father and one caught hold of her mother. They held out threat for giving money. Thereupon, the informant-Shanti Purty took out Rs.10,000/- from a box and gave it to the miscreants. However, they asked for more money. During that course, the miscreants made his father fall on the ground and one of the miscreants, cut his neck by Bhujali, causing his death. Meanwhile, other miscreants also assaulted on the head of the mother, as a result of which, she died. The miscreants also made an attempt to kill the informant but she caught hold of Bhujali, as a result of which, she received cut injuries on both her hands. She also sustained injury over her abdomen. She was able to identify one of the miscreants, namely, Kala @ Sahua Boipai (appellant) under the earthen lamp (Deepak). It is also the case that the miscreants had tied her down but she anyhow untied herself and came rushing to the house of her neighbour, who did not help her and then came to the house of her brother-in-law where her sister put a cloth over the injuries. In the morning they came to the house where they found the dead body of the father and the mother. 3. In the morning they came to the house where they found the dead body of the father and the mother. 3. The matter was informed to the Chakradharpur Police Station. On getting information, one of the inspectors came to the place of occurrence where he recorded the Fardbeyan (Ext.4) of the informant. Upon which, a formal FIR (Ext.5) was drawn against the appellant-Kala @ Sahua Boipai and seven others and the case was registered under Section 396 of the Indian Penal Code. 4. During investigation, inquest reports were prepared. The dead bodies were sent for post mortem examination. Doctor B.K. Singh held autopsy on the dead body of the father and the mother of the informant. The Doctor, who held autopsy on the dead body of the father of the informant-Shanti Purty, found the following injuries:- “Incised wound about 6-7” long x 1/4”x 4-5” over the neck, cutting the vital structures, which were sufficient to cause death”. Similarly, Doctor did find the following injuries on the dead body of the mother of the informant:- “Incised wound about 6-7” long x1/4”x1/4” over the neck, cutting the vital structures. Those injuries were sufficient to cause death”. The Doctor, who had held autopsy, was never examined. However, Dr. Jawahar Khan (P.W.7) was examined, who proved the postmortem report of the father and mother of the informant as Ext. 3 & 3/1. During investigation, the informant was also examined by Dr. Sangeeta Sundar Ray-P.W.6, who did find the following injuries on her person:- i. Stab wound 1”x1” over lower part of right side of chest. ii. Incised wound 2” below right thumb and index finger. iii. Incised wound 1/2” over distal part of right middle finger. iv. Lacerated wound 1” size over medial side of left thumb. v. Lacerated wound 1-1/2” over medial side of left thumb. vi. Incised wound 1-1/2” over terminal part of left ring finger. According to Doctor, the injuries were caused by sharp and penetrating instrument. Opinion with respect to injury No.1 could not be given whereas injuries Nos. 2 to 6 were found to be simple in nature. 5. After completion of the investigation, the police submitted charge sheet against the appellant and seven unknown. According to Doctor, the injuries were caused by sharp and penetrating instrument. Opinion with respect to injury No.1 could not be given whereas injuries Nos. 2 to 6 were found to be simple in nature. 5. After completion of the investigation, the police submitted charge sheet against the appellant and seven unknown. Accordingly, cognizance of the offence was taken and the case was committed to the court of Sessions where the appellant was put on trial to face charges under Sections 396 and 307/34 of the Indian Penal Code. 6. Prosecution examined altogether nine witnesses of them. P.W.1-and P.W.2-have proved their signatures appearing over the inquest report as Ext.1 and 1/1. P.Ws. 3, 4, and 5 did not support the case of the prosecution and hence, they were declared hostile. P.W.8 has proved the inquest reports of the dead bodies of the father and mother of the informant as Ext.6 & 6/1. The informant was examined as P.W.9, who in her testimony, did testify that while she along with mother and father were about to sleep, four persons entered into the house. As soon as, they entered into the house, she raised alarm . On hearing alarm, her father, who had gone to Khalyan to sleep, came rushing over there. The miscreants asked them to give money. Her father tried to catch hold of them, but the miscreants assaulted him with Bhujali. They also assaulted her mother, as a result of which, both of them died. She did also testify that she had identified this appellant in the light of Lantern, as he was her co-villager. 7. On the basis of the evidence of P.W.9 getting corroboration from the medical evidence, the trial court recorded the order of conviction and sentence. 8. Being aggrieved with that order, this appeal has been preferred by the appellant. 9. Having heard Mr. Pramod Kumar Chaudhary, appearing as Amicus Curiae and Mr. M.B. Lal, learned counsel appearing for the State and on perusal of the record, we do find that initially the case, which has been made out in the first information report, is that seven to eight persons have entered into the house, but the informant-P.W.9, in her evidence, has categorically testified that only four persons had entered into the house. M.B. Lal, learned counsel appearing for the State and on perusal of the record, we do find that initially the case, which has been made out in the first information report, is that seven to eight persons have entered into the house, but the informant-P.W.9, in her evidence, has categorically testified that only four persons had entered into the house. She has further claimed to have identified this appellant as he happened to be the co-villager, but the witness has categorically testified as is appearing in para-8 of her evidence that she was not knowing from before the said four persons, who had entered into her house, which clearly means that this appellant had never entered into her house, as according to her, only four persons had entered into the house to whom she was not knowing. In that event we can safely come to the conclusion that four persons not known to the informant had entered into the house, who committed murder of the father and mother of P.W.9. Further more, since P.W.9 has claimed that only four persons had entered into the house, an application of the provision as contained in Section 396 IPC would not be there. The said provision reads as follows:- 396. Dacoity with murder.—If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 10. Thus, it is quite evident that out of five or more persons, if anyone commits murder in course of committing dacoity, all of them would be liable for commission of the offence of dacoity with murder. 11. Here as we have noticed above, only four persons are said to have entered into the house. In that event, there would be no application of Section 396 of the Indian Penal Code and moreover when no evidence is there that this appellant along with others entered into the house for committing offence of dacoity in course of which, they committed murder of father and mother of the informant, the court, committed illegality in convicting the appellant for the offence punishable under Section 396 of the Indian Penal Code. 12. 12. So far as conviction under Section 307/34 of the Indian Penal Code is concerned, that is also bad in view of the evidence of the informant-P.W.9 as is appearing in para-8 that four unknown persons had entered into the house and thereby, question of making an attempt on the life of the informant by this appellant does not arise. 13. In that event, we hereby, set aside the order of conviction and sentence dated 7th day of February, 2004, passed in Sessions Trial No.63 of 1999 by learned 1st Addl. Sessions Judge at Chaibasa against the appellant-Kala @ Sahua Boipai. Consequently, the appellant is acquitted of both the charges. 14. Accordingly, this appeal stands allowed. 15. Consequently, the appellant is directed to be released forthwith, if not wanted in any other case. Appeal allowed.