JUDGMENT : Vinod Prasad, J. Working in tandem with each other, the three appellants Kunal Razak, Amit Lakra and Kundan Pandey, in connected criminal appeals No. 11 of 2010 and 571 of 2009, have challenged and questioned sustainability of impugned judgment and order dated 09.12.2009 passed by Sessions Judge, Sundargarh in Sessions Trial No. 32 of 2006, State of Orissa vs. Kundan Pandey and others, (vide G.R. Case No. 3031 2005 of S.D.J.M., Sundargarh relating to Kutra P.S. Case No. 76 of 2005) under Section 302/34, District - Sundargarh. By the impugned judgment, while being acquitted for offence u/s.109/212/120 (B) I.P.C. and section 9(B)(1)(b), Explosives Substances Act, all the three appellants have been convicted under Section 302/34 I.P.C. and have been sentenced to imprisonment for life with fine of Rs.5,000/- (Rupees Five Thousand only) and in default thereof to serve additional one (1) year R.I. by the learned Trial Judge. Another accused Pradeep Singh was also convicted by the impugned judgment and order by the leaned Trial Judge, but he does not seems to have preferred any appeal challenging his conviction and sentence, it seems, for the reason that he was convicted only u/s. 9(B)(1)(b) Explosives Substances Act, and was sentenced to 6 months RI with fine of Rs.2,000/- (Rs. Two Thousand only) and in default to serve additional 3 months R.I., which conviction probably he has already served. 2. Prosecution case slated down in the F.I.R., narrated to the I.O. and later on unfurled during the trial, would reveal that accused Pradeep Singh and Rekha Singh/PW 3 are spouses and absconding accused Dhanraj Singh is the real sibling brother of Rekha Singh. Similarly, Rajan Sanyasi/PW 21 and Gyan Sanyasi (deceased) were real sibling brothers being sons of Lalit Ram Sanyasi. Mahendra Nag/PW20, a contractor of centering work of building, happens to be their maternal uncle and owner of a C.T. Bajaj Boxer Motorcycle. There is a Dalima College under the Police Station Kutra of which Satyanarayan Dash/PW 13 is the Principal. On 06.10.2005, there was a Students' Union Election in the said Dalmia College. 3. On the date of the incident two rival inimical student groups existed in Rajgangpur, one led by Dhanraj Singh while the other group leader was Rajan Sanyasi/PW 21. Both the groups were at loggerheads to gain a superior edge over the other. On 06.10.2005, there was a Students' Union Election in the said Dalmia College. 3. On the date of the incident two rival inimical student groups existed in Rajgangpur, one led by Dhanraj Singh while the other group leader was Rajan Sanyasi/PW 21. Both the groups were at loggerheads to gain a superior edge over the other. In this atmosphere of animosity, according to the prosecution version, Rajan Sanyasi/PW 21 had gone to Ggoghdo Shiv temple on 11.4.2005 in his Maruti Car along with his family members except his wife, aunt (Mausi) and sister. While getting down from the Car, the persons belonging to the rival group, namely, Dhanraj, Kunal Razak, Munu Samal, all armed with a guns, accompanied by others, attacked Rajan Sanyasi/PW 21, who got into his Maruti Car and closed the door and tried to reverse it and get away from the scene. Albeit Kunal Razak and Munu Samal fired at PW 21, but the shots providentially, eluded the victim who escaped unhurt. An FIR about an attempt to murder assault was lodged by PW 21 at the concerned police Station. It further evinces that after the present incident of murder, person from other rival side Munu Samal was done to death, concerning which incident PW 21 along with Ajay Nag/PW 18, Kundan Sanyasi, Brusav and Asim Tirkeyl PW 23, were charge sheeted and prosecuted and in that trial while PW 18 was acquitted, rest of the accused were convicted. 4. In the background of such animosity that the present incident occurred on 6.10.2005 at 3 P.M. near Women Hostel front gate of Dalmia College, when the students union election was in progress. On that day, Gyan Sanyasi (deceased) came to the working place, of his maternal-uncle Mahendra Nag/PW 20 and took away his aforementioned Bajaj Boxer Motorcycle to go to Dalmia College accompanied by Narendra Satnami PW/22, Ashim Tirkey/PW 23 and Ajaya Nag/PW 18 in two motorcycles. These four persons came to Dalmia College at 12 noon and after remaining inside the College for one hour they left for Jharbeda were P.W. 22 and the deceased remained at a beetle shop kiosk and from their they again came to Dalmia College by 2.45 P.M. and parked their motor cycle outside the gate of Women's Hostel. These four persons came to Dalmia College at 12 noon and after remaining inside the College for one hour they left for Jharbeda were P.W. 22 and the deceased remained at a beetle shop kiosk and from their they again came to Dalmia College by 2.45 P.M. and parked their motor cycle outside the gate of Women's Hostel. Election at that time was in the offing and police picket was deployed in the Dalmia College under the supervision of A.S.I. Dharam Minz/PW 25 along with other police personnel. All of a sudden, it is alleged, that at 3 P.M. the accused appellants accompanied with their other socio criminises arrived there in two motorcycles and parked it at 8 to 10 cubits away from where the informant/PW 18, the deceased and their associates were standing and conversing with each other. Each of the six accused were holding a gun in their hands. All of a sudden Munu Samal (the dead accused) shot at Gyan Sanyasi, the deceased, which shot pierced left side chest of Gyan Sanyasi, who squatted at the spot sustaining bullet injury. Compatriot accused threatened present witnesses who all initially retreated to a little distance from the spot of their standing and thereafter all the accused escaped from the spot on their motorcycles towards Bargeon side. A.S.I., Dharam Minz/PW 25, who was inside College on election duty since 7 A.M., along with Principal of the College Satyanarayan Dash/PW13 heard the sound of gun fire at 3.05 P.M. and immediately PW 25 rushed outside to inquire about as to what had happened accompanied by A.P.R. force and came near the culvert by the side of N.H. 10 and found Gyan Sanyasi (deceased/injured) lying on the road inflicted by a gunshot injury on his left chest. In police Jeep, the injured was transported to Rajgangpur Government Hospital where he was declared dead by the Doctor. A.S.I./P.W. 25, immediately informed O.I.C., P.S. Kutra, Aswini Kumar Sahoo/PW 24 about the incident and demise of the injured Telephonic intimation so received was entered into Police Station Diary vide S.D. Entry No. 136 and the O.I.C./PW 24 immediately proceeded to the spot. At the instructions of PW 24, A.S.I./PW 25 conducted inquest on the cadaver of the deceased and inked inquest report/Ext.1 and post inquest dispatched the cadaver for post-mortem examination along with dead body Challan/Ext.14. At the instructions of PW 24, A.S.I./PW 25 conducted inquest on the cadaver of the deceased and inked inquest report/Ext.1 and post inquest dispatched the cadaver for post-mortem examination along with dead body Challan/Ext.14. After his return to the police station, A.S.I. had handed over his supplementary Case Diary to the O.I.C./PW 24. 5. After demise of the deceased that Ajay Nag/PW18, who had accompanied the deceased on the motor-cycle, got the F.I.R./Ext. 9 slated down through one Nandula, arraigning the appellants accused as perpetrators of the crime along with Manoj Samal @ Manu, Dhanraj, Sandeep Singh, Kunal Razak and Kundan Singh and then covered a distance of 8 K.Ms., to the Police Station, Kutra, where he lodged his F.I.R. which was registered as P.S. Case No. 76 of 2005 under Section 302/34, I.P.C. It is worthwhile to note that according to the I.O./PW 24 he had received the written report of PW 18, after arriving at the incident spot and treated it as F.I.R. and commenced the investigation by sending the F.I.R. to be registered at the police station and preparation of the formal F.I.R. A.S.I., Padmanav Nayak had registered P.S. Case No.76 of 2005 after drawing the formal F.I.R./Ext. 9/4. 6. During investigation, I.O./PW 24 visited the spot, prepared spot map/Ext.10 which was in front of the women hostel of Dalmia Collage. The place where the deceased was shot at was in between the Highway and the culvert on a morum portion. At 5.20 P.M. I.O. seized blood stained earth and sample earth vide seizure list ext.4. Principal of the Dalmia College/P.W. 13 was interrogated by the I.O. and subsequent thereto, the investigating officer came to village Lakhua pada where he found the dead body of the deceased at his house in the presence of his relatives. At that spot other relevant witnesses were examined by the I.O. and their statements were recorded. Thereafter some other witnesses were examined on 07.10.2005 and the same day I.O. was made aware of criminal history of accused persons. Accused Kunal Razak, Kundan Pandey, Amit Lakra and Pradeep Singh were apprehended on 01.10.2005 at 6 P.M. at Ranchi road Kutra in between Rajgangpur and Kutra. Thereafter some other witnesses were examined on 07.10.2005 and the same day I.O. was made aware of criminal history of accused persons. Accused Kunal Razak, Kundan Pandey, Amit Lakra and Pradeep Singh were apprehended on 01.10.2005 at 6 P.M. at Ranchi road Kutra in between Rajgangpur and Kutra. Same day at 7 P.M. I.O./PW 24 seized one red coloured Hero Honda C.D. Dawn Motorcycle with Registration No.OR-14 K-8968, one country made single barrel pistol with one live cartridge and Rs.4450/- from the possession of accused Kunal Razak and prepared its' seizure list Ext.5/1. At 7.30 P.M. same day, I.O. also seized a country made stain gun with one live cartridge, red coloured air bag, five number of other live cartridges, two packets of gun powder from possession of accused Pradeep Singh vide seizure list Ext.6/1. At 8 P.M. same day, I.O. also seized one black coloured Bajaj C.T. 100 Motorcycle having Registration No.OR-14-L-8137, one blue coloured Nokia 1100 mobile handset and two number of live cartridges from the possession of Kundan Pandey and prepared its seizure list Ext.8/1 and at 8.30 P.M., seized blue coloured mobile handset and two number of live cartridges from the possession of Amit Lakra vide seizure list Ext.7/1. Arrested accused were forwarded to the Court on 9.10.2005. Further investigation was taken up by the I.O. on 20.10.2005 on which date he had received inquest and post-mortem examination reports along with supplementary case diary drawn by A.S.I., Dharam Minz/PW 25. On 3.2.2005, wearing apparels of the deceased Gyan Sanyasi, sample blood and a piece of skin produced by Constable No.988 Meri Mukta Minz were seized by the I.O. which were dispatched by the autopsy Dr. Umesh Chandra Guru/PW 6. Seizure list in that respect is Ext.3. N.B.W. were issued against the absconding accused were obtained by I.O. on 4.2.2006. The exhibits were sent to DFSL, Ainthapalli and SFSL, Rasulgarh under the orders of J.M.F.C., Rajgangpur vide Memo No.170 and 171. Forwarding letter to Dy. Director SFSL and Dy. Director, DSFL are Exts. 11 & 12. On 4.2.2006, I.O./P.W. 24 wrapping up the investigation had charge-sheeted the appellants showing Dhanraj Singh, Dharambir Singh, Sanjaya Singh, Daroga Rai, Jogendra Singh and Manu @ Majoj Samal as absconder accused. Chemical examination report was received by J.M.F.C. on 17.8.2016 which is Ext. 13. Forwarding letter to Dy. Director SFSL and Dy. Director, DSFL are Exts. 11 & 12. On 4.2.2006, I.O./P.W. 24 wrapping up the investigation had charge-sheeted the appellants showing Dhanraj Singh, Dharambir Singh, Sanjaya Singh, Daroga Rai, Jogendra Singh and Manu @ Majoj Samal as absconder accused. Chemical examination report was received by J.M.F.C. on 17.8.2016 which is Ext. 13. Pistol seized from accused Kunal Razak is M.O. III, Stain Gun, M.O. IV and M.O. V to M.O. XV are the seized live cartridges. 7. Postmortem examination on the cadaver of the deceased was conducted on 6.10.2005 by Dr. Umesh Chandra Guru/P.W. 6 as Medical Officer, Government Hospital, Rajgangpur and autopsy report Ext. 2 was prepared, a perusal of which reveals following external injuries sustained by the deceased.- External injuries: 1. Oval shaped lacerated wound of 2 c.m. on the left side of the chest in mid-axillary line and between 7th and 8th ribs. One dark ring of 4 c.m. dia was situated around the wound. 2. Round shaped lacerated injury 1 c.m. in dia, right side of the chest in mid-axillary line in between 6th and 7th ribs. Internal examination of the dead body revealed that the pleura was stalled and the plural cavity was filled with blood in both sides. While describing the injuries sustained by the injured, the doctor noted following facts. Description of the injury Nos. 1 and 2. Oval shaped lacerated wound of about 2 c.m. dia surrounded by an abrasion and contusion giving appearance of a dark ring. The wound was situated 8th c.m. below the left nipple and 10 c.m. away from mid-axillaries line. The wound was 3 feet 8" above the level of sole in the supine position. The margin of the wound was everted. No foreign particles was seen on the would on tried by a soft core, the pro went for about 1" in slightly upward direction. The wounds was in between the space of 7th and 8th ribs. Description of injury No.2. Round shaped lacerated wound situated in the posterior axillary line of right side in between 6th and 7th ribs. It was 13 c.m. away from mid line and 4.2" above the level of sole in the supine position. The margin was everted. 3. Both sides lungs were collapsed, there was profuse amount of blood in the pleura cavity. Round shaped lacerated wound situated in the posterior axillary line of right side in between 6th and 7th ribs. It was 13 c.m. away from mid line and 4.2" above the level of sole in the supine position. The margin was everted. 3. Both sides lungs were collapsed, there was profuse amount of blood in the pleura cavity. The pieces of skin around the wound were excised and preserved. 8. In the opinion of the doctor, profuse bleeding and hemorrhage in plural cavity and destruction of vital organs (lungs) caused by gun shut wound sustained by the deceased, which was fired from less than two feet from left direction was the cause of deceased death. Left side wound was the wound of entry whereas the right side of wound was the exist. Twelve hours had elapsed since the deceased demised. Two pieces of skin each from both chest walls of the wound was preserved by the doctor which were handed over to the constable. Autopsy examination of the deceased has been proved as Ext.2. 9. On the strength of submitted charge-sheet before the J.M.F.C., Rajgangpur, G.R. Case No. 303/2005 was registered which in due course was committed to the Court of Sessions for trial were it was registered as S.T. No. 32 of 2006, State of Orissa versus Kundan Pandey and others. 10. Learned Trial Judge/Sessions Judge, Sundargarh charged all the accused sent up for trial with offences under Sections 302/34, 109/212/120-B I.P.C. and 9(B) of Explosive Substances Act on 20.8.2007 and since all the accused denied those charges, pleaded not guilty and claimed to be tried that their prosecution commenced. 11. In all twenty five (25) witnesses Were examined during the trial by the prosecution and since we find from vetting of the record that most of the witnesses are worthless, that we concentrate only on the relevant evidence slating that so far as facts are concerned, only evidence of Ajaya Nag/P.W.18, Mahendra Nag/P.W. 20, Rajan Sanyasi/P.W. 21, Ashim Tirkey/P.W.23 are relevant. The two I.Os. are Aswini Kumar Sahu/P.W. 24 and Dharam Minz/P.W. 25. Suraj Kumar Sharma/P.W.1, Niman Kumar Tirkey/P.W. 2 are the inquest witnesses. Rekha Singh/P.W. 3 is the wife of the absconding accused Dhanraj Singh. The two I.Os. are Aswini Kumar Sahu/P.W. 24 and Dharam Minz/P.W. 25. Suraj Kumar Sharma/P.W.1, Niman Kumar Tirkey/P.W. 2 are the inquest witnesses. Rekha Singh/P.W. 3 is the wife of the absconding accused Dhanraj Singh. Constable Santosh Kumar Mahakud/P.W. 8 is a witness who had seized the attires of the deceased which was sent by the autopsy doctor and was produced before him by Constable Meri Minz after the autopsy and had prepared the seizure list Ext.3. Amrit Tigga/P.W. 10 is a college student whereas Nirmal Singh/P.W. 12 is the owner of a Dhaba situated at Ranibandha. Principal of the College Satyanarayan Das/P.W. 13 and the autopsy doctor Umesh Chandra Guru/P.W. 5 are other witnesses. 12. Learned Trial Judge after vetting of evidences, scanning of materials on record ultimately concluded that the prosecution has successfully anointed guilt of the accused and therefore has convicted the appellants for the charge of murder with common intention and sentenced them to life imprisonment through impugned judgment and order which verdict now has been assailed in the instant appeal. 13. In the background of aforesaid facts that we have heard Shri S.C. Mohapatra, Shri S.S. Ray and Shri Arun Kumar Acharya for the appellants and Shri J. Katikia, learned Additional Government Advocate for the respondent-State and have searchingly and thoroughly scanned through the entire trial Court record, oral and documentary evidences. 14. Learned Counsel for the appellants launched castigating submissions of the impugned judgment with incisive assertions and with vehemence by haranguing that out of twenty five (25) prosecution witnesses seven (7) are wholly worthless witnesses and they do not farther prosecution version at all. Their evidences and testimonies are valueless and are of no avail. They do not know the informant or the accused nor they had any knowledge about the incident. Their entire depositions are only one paragraph without any incriminating material. They do not corroborate prosecution story at all. These witnesses are Sankirtan Bagh/PW 5, Bijay Barua/PW 7, Bijay Barla/PW 9, Amrit Tigga/PW 10, Binod Sahul PW 11, Nanda Kishore Chandan/PW 15, Md. Nasiruddin/PW 16 and Md. Ebiharim/PW 17. From testimonies of none of these witnesses it emerges that they have stated anything against so far as the appellants are concerned and they therefore have absolved the appellants of all the charges. Nasiruddin/PW 16 and Md. Ebiharim/PW 17. From testimonies of none of these witnesses it emerges that they have stated anything against so far as the appellants are concerned and they therefore have absolved the appellants of all the charges. Prosecution case is pastiche solely on the depositions of Ajay Nag/PW 18, Mahendra Nag/PW 20, Rajan Sanyasi/PW 21 and Narendra Satnami/PW 22. Vetting of statements by these witnesses unambiguously and un-erringly indicate that so far as the fatal shot is concerned, the same was fired all of a sudden by the already murdered accused Munu @ Manoj Samal. No role has been ascribed to the appellants with convincing narration of facts played by the appellants in the crime prior to the happening. Munu @ Manoj Samal has already been done to death and is no more. Learned trial Judge has wrongly relied upon the evidences of above fact witnesses to apply Section 34 IPC to convict all the three appellants. They had no role to play in the entire incident and their presence at the spot also seems to be extremely doubtful. Discernibly there existed rivalry between the two factions of students group and therefore, chances of false implications by escalation of number of culprits and rope in members of other side cannot be completely ruled out. Thus the evidences has to be shifted with utmost care and caution to unearth the truth. Examined from such an angle it is very dicey to accept prosecution version qua those accused who had no role to play in the murder of the deceased, which seems to be individual act of the dead accused Manoj @ Munu Samal. Even in matters of instigation, they cannot be saddled with any responsibility because of the incongruity and contradictory statements by the, witnesses on that score. Inviting attention, learned Counsel has referred to various portions of testimonies of witnesses where the role of the appellants in respect of instigation after the shooting has been done is trotted out to articulate his argument that Section 34 I.P.C. has been incorrectly applied in case of present appellants and therefore ultimate argument is that conviction of the appellants is unsustainable, in the wake of the fact that the investigation is also sloppy and perfunctory and does not inspire any confidence. Deceased had sustained a single gun-short injury and, therefore, common intention to commit murder of the deceased cannot be attributed to all the persons. There was no group of person with the common intention to commit murder of the deceased as except one, none had done any overt act to commit the murder. It is further submitted that the eye-witness account even if accepted, does not fasten guilt around the appellant who deserves acquittal. 15. Learned Additional Government Advocate argued to the contrary by pointing out that all the accused co-jointly arrived at the incident scene and one of them had fired at the deceased and, therefore, they have been rightly convicted with the aid of section 34 I.P.C. It is, submitted that the incident is the day-light incident and hence, eye-witness account cannot be disbelieved nor the prosecution version can be discarded. According to his submission, the appeal sans merit and is liable to be dismissed. 16. We have pondered over rival submissions. Our examination of record indicates that so far as the first criticism by the appellant's Counsel is concerned, the same has got much of substance. Seven of the witnesses, PW-5, PW-7, PW-10, PW-11, PW-15 to PW-17 have not deposed anything about the incident. It is bewildering to note as to why the learned trial Judge allowed the prosecution to tender them in' court at all only to waste the time of Court and for no purpose at all. Depositions of all these witnesses are wholly valueless and a big zero. Their statements were totally un-creditworthy and their testimonies were not at all warranted to unfurl the prosecution version. Recording their evidences is nothing but to make the record bulky. Time consumed in recording of all these statements could have been saved by the learned trial Judge and he should have been an active participant in the whole trial process instead of being a silent recipient of evidences during conducting of trial. We remind ourselves that trial Judges are not only a recipient of evidences but they have to conduct the trial in a just and fair manner to unearth the truth and it is for them to sift and weigh the evidences. We remind ourselves that trial Judges are not only a recipient of evidences but they have to conduct the trial in a just and fair manner to unearth the truth and it is for them to sift and weigh the evidences. It is not expected from the learned trial Judges that they will give an unbridled rope to the prosecution to waste the time of the Court by tendering those persons as witnesses who have nothing to offer in justice dispensation or deciding the case on merits. 17. Coming to another aspect, we find that so far as fact witnesses are concerned, their evidences are not conformable, so far as role played by the appellants are concerned. Informant/PW 18 in Paragraph-1 of his deposition has said that "All the six accused persons were holding pistols. Accused Munu @ Manoj Samal (dead) fired at Gyan Sanyasi. Bullet of pistol pierced left side chest of deceased Gyana." With such an evidence, it is difficult to perceive that all the accused persons who arrived at the incident scene shared the same common object as that of Munu @ Manoj Samal of annihilating the deceased. The act of shooting at the deceased seems to be an individual act of Munu @ Manoj Samal. No evidence has been led by the prosecution to the effect that prior to the incident all the accused persons shared the common object of arriving at the incident scene to annihilate the deceased. By hypothesis or conjecture, the same common object cannot be imputed to the accused persons. This witnesses, however, has deposed that after firing other accused persons threatened us to go away from the spot. This threatening, does not bring the case of the present appellants within the ambit of common object as it may be that in an endeavour to save the real culprit it was hurled. It is also very probable that because these appellants were present at the spot and they all belonged to rival group that such a threat story was culled out. We recall that informant PW 18 had deposed in his examination-in-chief that he had lodged the FIR following day of the murder but thereafter stated that he does not remember whether he lodged the FIR same day or subsequent day - This makes lodging of FIR suspect and with such evidence chances to concoction or manipulation cannot be ruled out. We recall that informant PW 18 had deposed in his examination-in-chief that he had lodged the FIR following day of the murder but thereafter stated that he does not remember whether he lodged the FIR same day or subsequent day - This makes lodging of FIR suspect and with such evidence chances to concoction or manipulation cannot be ruled out. It is therefore difficult to conclusively arrive at an infallible conclusion that such a threat was in fact thrown by the appellants after the crime was over. No other role has been attributed to the appellants at all and hence their presence at the incident scene also seems to be doubtful. It may be that since they were present at the incident scene, that because of hostility, they have been arrayed as accused. 18. Coming to another witness PW 22, from his evidence also we do not find any reliable evidence for common object shared by each one of the accused. Narendra Satnami/PW 22 has deposed "after getting down from the motor-cycle, they came near us. Each of them held gun. Munu @ Manoj Samal fired at Gyan Sanyasi and bullet hit on his chest. After receiving gun shot injury, Gyan Sanyasi fell down struggling for life. Thereafter the culprits including Munu @ Manoj Samal threatened us to kill. Out of fear, we ran away and remained at a short distance. Thereafter those accused persons went towards Bargaon site with their motor-cycle." Such a statement, firstly contradicts the statements of PW 18 and secondly, it also indicates that except uttering words none of the other accused had endeavoured to cause any injury either to the deceased or to the witnesses. Whether there existed any unlawful assembly with common object to annihilate the deceased, in such facts and circumstances, is difficult to imagine. Those also serve who stand and wait no doubt will make all the appellants liable with the aid of Section 149 but since we doubt such an utterance, that we are of the opinion that ipse dixit of the witnesses without any concrete overt act should not be accepted to be true and worthwhile to nail in the appellants for a serious charge of murder. This opinion we have taken also for the reason that in matter of lodging of FIR, the incongruent statements of the informant and the I.O. according to whom when he arrived at the incident spot, he was handed over the FIR by the informant/PW 18, but according to PW 18, he got the FIR transcribed and then he had carried it to the Police Station, where he lodged it, also makes prosecution story suspect. During his cross-examination PW 18 has deposed that his FIR was slated down at the dictation of the police Constable present inside the police station but subsequently he again took a summersault to depose that the FIR was taken at his dictation. These contradictory statements are of great value in accepting or rejecting the entire prosecution version in respect of other accused persons except the main shooter. After P.W. 22, the only other witness about the actual shooting is Ashim Tirkey/PW 23. His examination-in-chief indicates that no attempt was made by the appellants in causing any injury either to him or to the deceased. His evidence, therefore, suffers from the same vice as that of his predecessor fact witnesses. In view of aforesaid, we are of the opinion that it is highly unsafe to rely upon oral evidences of witnesses without any concrete material that the other accused persons shared the same common object. 19. At this juncture, we would like to add that the learned Trial Judge had conducted the trial in a most careless and uncared for manner. He does not seem to be oblivious of the entire facts and circumstances. His entire exercise seems to be a total remiss. This, we are constrained to observe because according to the prosecution as well as the I.O./PW 24, five persons or more had participated in the incident. He had chargesheeted four accused, who were tried by the learned Trial Judge and in the same charge-sheet he had depicted named six other accused persons as culprits who had participated in the crime and were shown as absconders. Thus, in all ten (10) accused persons had participated in the crime. Learned Trial Judge also tried four accused persons but at the same time had completely over looked that six accused persons are absconders and they were also involved in the crime. Thus, in all ten (10) accused persons had participated in the crime. Learned Trial Judge also tried four accused persons but at the same time had completely over looked that six accused persons are absconders and they were also involved in the crime. In such a view, there was definitely inexistence an unlawful assembly u/s 147 I.P.C. The charge under Section 302 had no application at all in such a fact situation. Participation of more than 5 persons makes the assemble of culprits an unlawful assembly described u/s. 141 of I.P.C. Learned Trial Judge should have framed the charge U/ss. 147, 302/149 I.P.C. against all tried accused albeit he was trying only four of them, but the number of assailants exceeded more than five with six others as absconders who were associated with these four accused in commission of the crime. Thus framing of charge U/s. 341 I.P.C. was faulty. 20. Now adverting to the final outcome, we find that though the prosecution has proved that the dead accused Munu @ Manoj Samal had shot at the deceased but in respect of the present appellants it had not been able to successfully bring home their guilt. It seems to be a cause of hit and run with no other participant. 21. Without further verbalizing, we are of the opinion that conviction of the appellants U/s. 302/34 I.P.C. is not sustainable and the impugned judgment cannot be sustained. 22. We, therefore, allow both the appeals filed by all the appellants, set aside their conviction and sentence through impugned judgment and order and acquit them of the charge framed against them. Appellants are in fail. They are directed to be released from jail unless their presence inside the jail is required in connection with any other crime. 23. Let the copy of the judgment be served to the learned Trial Judge as well as Jail Superintendent for their further action. K.R. Mohapatra, J. : I agree. Appeals allowed.