JUDGMENT 1. All this appeals were heard together and are being disposed of by the common judgment as they arise out of the judgment of conviction and order of sentence passed on 25/05/2004 and 27/05/2004 respectively in Sessions Trial No. 34 of 2002, by the Additional Judicial Commissioner, F.T.C. VII, Ranchi, whereby and whereunder the Court having found all the appellants guilty for committing murder of Aftab Kuraishi and Anwar Kuraishi in furtherance of their common object, convicted them for the offence punishable under Sections 302/149 & 148 of the Indian Penal Code and thereby, they were sentenced to undergo R.I. for life and to pay fine of Rs. 5,000/- for the offence under Section 302 read with Section 149 of the Indian Penal Code and in default of payment of fine to undergo R.I. for one year. Further they were sentenced to undergo R.I. for three years for the offence punishable under Section 148 of the Indian Penal Code. Both the sentences were directed to run concurrently. 2. The case of the prosecution, as has been made out in the F.I.R. is that on 18/06/2000, these three appellants namely, Md. Sarfaraz @ Bhola @ Bholu, Kamal Ansari S/o Md. Saukat and Md. Nausad S/o Md. Israil as well as Manjoor, Mansoor an Mahbood, since all three absconded, alongwith 2-3 unknown persons came to the house of the informant Ahmad Kuraishi (PW9) at Kanta Toli and asked about the whereabouts of his son Anwar. At about 07.00 'O' Clock in the evening they again came in search of his son Anwar (deceased). When they did not find him there, they went away. The informant suspecting some foulplay at their hands, sent his sons Aftab Kuraisi (deceased) and Ashik Kuraishi (PW10) to the house of Anwar at Garha Toli for taking care of him. At about 08.00 'O' Clock in the evening his son Ashik Kuraishi (PW10) came running to the house of informant at Kanta Toli and told to the informant that the accused persons-appellants and also the other accused persons had killed Anwar and Aftab. On hearing this, he came to the house of Anwar and found both Anwar and Aftab injured. Aftab had been inflicted with one injury below the abdomen, whereas Anwar had injury over his head. On hearing this, he came to the house of Anwar and found both Anwar and Aftab injured. Aftab had been inflicted with one injury below the abdomen, whereas Anwar had injury over his head. The informant with the help of the persons residing in the neighbourhood brought them to the RMCH for treatment, but as soon as they reached over there Aftab died. However, Anwar was admitted for treatment but his condition was quite precarious. It is also the case that the injured Anwar told to the informant that it were the appellants and other accused who had assaulted him and had also inflicted 'Chhura' injury to Aftab. 3. When they had been taken to the hospital, Sushil Pathak, the then Officer-in-charge of Sadar Police Station, received an information telephonically that some unknown persons with a view to kill Anwar and Aftab have assaulted them and have been removed to hospital in injured condition, he reached there and found the dead body of Aftab Kuraishi lying over there. He recorded the fardbeyan (Ext.3) of the informant PW9 on 19/06/2000 at 08.30 A.M at the hospital. Upon which, a first information report had been drawn. The Investigating Officer took up the matter for investigation, during which course, he held inquest on the dead body of Aftab Kuraishi and prepared inquest report (Ext.4). Thereafter, when he came to know that Anwar has also succumbed to his injuries, he held inquest on the dead body of Anwar Kuraishi and prepared inquest report (Ext.5). The I.O when came to the place of occurrence, he found two daggers, which were seized alongwith earth smeared with blood and prepared seizure list (Ext.6). The weapons were sent before the Forensic Science Laboratory. On being examined, FSL report (Ext.7) was submitted giving opinion that no blood was found over it. At the same time, the dead bodies were sent for Post Mortem examination, which was conducted by Dr. Ram Sewak Sahu (PW11), who, upon holding autopsy of the dead body of Anwar, found the following injuries on his person: (A) Abrasion:- “(i) 7 x¼cm semicircular in shape on left lateral chest. (ii) 3 x¼cm, 4 x¼cm on left scapula region. (B) Stab Wound. (i) 1 x½x 2 cm on lamber region back in the mid line. (ii) 1 x½cm x 2 cm on left buttock. (C) Stitched Wound. (i) 5 cm long on right perital region. (ii) 3 x¼cm, 4 x¼cm on left scapula region. (B) Stab Wound. (i) 1 x½x 2 cm on lamber region back in the mid line. (ii) 1 x½cm x 2 cm on left buttock. (C) Stitched Wound. (i) 5 cm long on right perital region. (ii) 7½cm long on right front perital region of chest. (iii) 4 cm long on left perital region.” On internal examination there was contusion over whole scalp with depressed and formulated fracture of right peritotempo bone measuring 9 x 6 cm area. There was crack fracture of left perito Tempo bone. Contusion was there of brain and presence of subdural and blood clot over both sides of brain. The Doctor issued Post Mortem examination report (Ext.8) with an opinion that the death was due to head injuries caused by hard blunt substance whereas stab wound was caused by sharp cutting weapon, which injuries were sufficient to cause death. 4. The Doctor also held autopsy on the dead body of Aftab Kuraishi @ Gujja and found following injuries on his person: “(i) 1 x½cm x 2cm on the lumber region back in the mid line. (ii) 3 x 1 cm cavity deep on left lateral abdomen region, the weapon passes through abdominal wall and entered into left kidney. (iii) 1 x ½x cavity deep on left chest and the weapon passes through left 6th enter costal space and enters into left lungs. Presence of blood clot was found in left chest and abdominal cavity. The Doctor issued Post Mortem Examination report (Ext8/1) with an opinion that death was caused due to shock and hemorrhage as a result of aforesaid injuries caused by sharp cutting pointed weapon. 5. After completion of the investigation, the police submitted charge sheet, upon which cognizance of the offence was taken against the appellants and the case was committed to the Court of Sessions where they were put on trial. 6. During trial the prosecution examined altogether 13 witnesses; of them PW1 Afsana Khatoon is the daughter of the informant (PW9), who did testify that the accused persons including the appellants had come to the house at 11.00 am and also in the evening in search of her brother Anwar. 6. During trial the prosecution examined altogether 13 witnesses; of them PW1 Afsana Khatoon is the daughter of the informant (PW9), who did testify that the accused persons including the appellants had come to the house at 11.00 am and also in the evening in search of her brother Anwar. At about 8 O' Clock in the evening her nieces Pinki and Rinki came running and shouting that Aftab and Anwar had been killed, but they did not named any of the persons, who had killed them. When she alongwith other went there, they found both of them injured. PW2 Ishrat Khatoon, the widow of deceased Anwar has testified that when she came out of the house after hearing some hulla, she found Manjoor, Jugba and Baboo (none of them are the appellants) assaulting her husband Anwar and also Aftab. Pws3 & 5 are the witnesses to seizure of both the daggers and also earth smeared with blood. Pws4 & 6 are the witnesses to the inquest of the dead bodies. Pws7 & 8 both are the neighbours, who have stated that when they came at the place of occurrence they found Anwar and Aftab lying on the ground in injured condition. PW9 is the informant, who has testified in the same manner as he has made statement in his fardbeyan. PW10 Md. Ashik, an eyewitness has testified that while he was at the place of occurrence at the house of Anwar, these appellants and also the other accused persons came and had had verbal altercation with Anwar and Aftab during which course Md. Sarfaraz @ Bhola @ Bholu assaulted Anwar with an iron rod as a result of which he fell down. The accused Manjoor inflicted 'Chhura' injury to Aftab. Seeing all this, he fled from there and informed to his father PW9 the informant, who came at the place of occurrence. 7. The trial court having found PW10, an eyewitness trustworthy and also placing reliance on the testimonies of the informant PW9, did find the appellants guilty and, thereby, recorded the order of conviction and sentence as aforesaid. Being aggrieved with the said judgment of conviction and order of sentence, all these appeals have been preferred. 8. Mr. B.M. Tripathy, learned senior counsel appearing for the appellant Md. Sarfaraz @ Bhola @ Bholu (Cr. Being aggrieved with the said judgment of conviction and order of sentence, all these appeals have been preferred. 8. Mr. B.M. Tripathy, learned senior counsel appearing for the appellant Md. Sarfaraz @ Bhola @ Bholu (Cr. Appeal No. 1042 of 2004) submits that though PW10 has claimed himself to be an eyewitness and has testified that these appellants and also some other accused persons killed the deceased, but his testimony becomes shrouded with doubts as PW2, the widow of the deceased Anwar, who also claimed to have seen the occurrence, has never testified that these appellants had killed the deceased, rather she speaks out the name of different accused persons. Further, it was pointed out that PW9 has testified that he was informed about the occurrence by PW10, but the evidence of PW1 the daughter of the informant is otherwise wherein she has said that Pinki and Rinki, both her nieces, came and informed that Anwar and Aftab have been killed but said Pinki and Rinki, as per the evidence of PW1, have never named these appellants as assailants. Moreover, Pinki and Rinki have not been examined by the prosecution. Further, it was submitted that as per the evidence of the informant, when he came to the place of occurrence after knowing about the occurrence, he found both his sons Anwar and Aftab lying injured. There Aftab disclosed to him that it was the appellants and others who had assaulted him as well as brother Anwar. But the said fact has never been disclosed by PW2 and other eyewitnesses nor any other witnesses either PW7 or PW8, who had come to the place of occurrence and thereby, the story of oral dying declaration as developed by PW9 is not believable. The proposition of oral dying declaration is also not acceptable for the reason that PW9 in his testimony has disclosed that it was Aftab, who had disclosed the name of the assailants who had assaulted him and his brother Anwar but in the fardbeyan PW9 has stated that he came to know about the name of the assailants from Anwar. Thus, it was submitted that the testimony of PW10 never appears to be trustworthy and, hence, the judgment of conviction and order of sentence is fit to be set aside. 9. The counsel appearing for the other appellants have adopted the same argument advanced on behalf of the appellant Md. Thus, it was submitted that the testimony of PW10 never appears to be trustworthy and, hence, the judgment of conviction and order of sentence is fit to be set aside. 9. The counsel appearing for the other appellants have adopted the same argument advanced on behalf of the appellant Md. Sarfaraz @ Bhola @ Bholu. 10. As against this, learned counsel appearing for the State submits that it is true that PW2, who has claimed to be an eyewitness, has never disclosed the name of these appellants as assailants, but the evidence of PW10 an eyewitness cannot be discarded as he as per the evidence of PW9, had been sent to the house of Anwar to see that nothing untoward happen in his house when the accused persons had came to the place of informant in search of his son Anwar and the testimony of PW10 gets corroboration from the medical evidence and, therefore, the trial court has rightly convicted and sentenced the appellants, which order never warrants to be interfered with by this Court. 11. Having heard counsel appearing for the parties and on perusal of the records, we do find that Ahmad Kuraishi (PW9) the informant was residing at Kanta Toli, whereas the place of occurrence, the house of his son Anwar (the deceased) was at Garha Toli, the distance of which is about half a kilometer as per the evidence of PW9 as well as the other witnesses and it takes about 10 minutes or more in reaching Garha Toli from Kanta Toli. As per evidence of PW9, these appellants and other accused persons had come to the house of the informant in search of his son Anwar at 11.0 am and also at 07.0 PM in the evening of 18/06/2000. Upon it, the informant became quite apprehensive and sent his sons Ashik Kuraishi (PW10) and Aftab (the deceased) to the house of Anwar where as per the evidence of PW10, these appellants alongwith others came and assaulted Aftab and Anwar, which fact PW10 disclosed to the informant when he, after the occurrence, came running to his house at Kanta Toli where the informant was residing. But this fact narrated by PW10 and also by PW9 that PW10 had informed about the occurrence to PW9, does not find corroboration from the evidence of PW1 the daughter of the informant (PW9) as she has stated that while she was in her house, Pinki and Rinki, both her nieces, came running and shouting that uncle and father have been killed. Both Pinki and Rinki, according to the evidence of PW1 never disclosed the name of any of the appellants. PW1 has further deposed that on hearing this, she as well as others, including her father (PW9), came to the place of occurrence and found Aftab and Anwar injured. According to PW9, Aftab disclosed that it were the appellants and other, who assaulted him and also to Anwar, but this fact has never been disclosed by PW1, who claimed to have came to the place of occurrence. Not only that the said fact being not disclosed by PW1, but PW2, who has also claimed to have seen the occurrence, but not naming the appellants as assailants, has also not disclosed that Aftab had disclosed anything to his father (PW9). Furthermore, PW7, residing in the neighbourhood, who came to the place of occurrence after hearing the sound of verbal altercation, saw Aftab and Anwar injured but has not disclosed that Aftab had disclosed the name of the appellants. Furthermore, as we have noticed that PW9 claimed that when he came to the place of occurrence Aftab told about the name of the assailants, but PW9 in his fardbeyan has stated that it was Anwar, who had disclosed about the name of the assailants. Under the circumstances, that part of the prosecution case wherein PW9 have claimed that Aftab had disclosed the name of the appellants as assailants, is not worth acceptable. 12. Coming further it be stated that PW10 has claimed to be the eyewitness but his testimony is shrouded with doubts in view of the testimony of PW2, the widow of the deceased Anwar as she ha testified that on hearing sound of verbal altercation when she came out of the house, she saw Manjoora, Juguwa, Baboo as well as 1012 other persons, not the appellants, assaulting her husband Anwar and Aftab. She has gone to state that after seeing all these things when she came to rescue her husband, she was assaulted and was pushed inside the house. She has gone to state that after seeing all these things when she came to rescue her husband, she was assaulted and was pushed inside the house. Furthermore, PW7, who had also come to the place of occurrence, has also not claimed to have seen these appellants as assailants. In this regard, it be further stated that the occurrence is said to have taken place at 8.0 p.m. in the evening in which time there must be dark and, therefore, PW2 said that under the light of a lamp she saw the accused persons, not the appellants, assaulting her husband. But PW10 has never came with the case nor has said about the source of light in which he identified the appellants. 13. In these events, it never happens to be safe to rely on the testimony of PW10 and, as such, all the appellants deserve benefit of doubts. 14. Under the circumstances, we do find that the trial court did commit illegality in recording the order of conviction and sentence, as aforesaid, against the appellants. Accordingly, the impugned judgment of conviction and order of sentence, passed against the appellants, is hereby set aside and the appellants are hereby acquitted. Appellant, Md. Sarfaraz @ Bhola @ Bholu, who is in custody, is directed to be released forthwith if not wanted in any other case. The other appellants, who are on bail, are discharged from the liabilities of his bail bonds. Thus, this appeal stands allowed.