JUDGMENT : ANJANA PRAKASH, J. Heard learned counsel for the Appellant and learned counsel appearing on behalf of the Additional Public Prosecutor. 2. The Appellant has been convicted under Section 364(A) I.P.C. and sentenced to undergo Imprisonment for life and fine of Rs. 30,000/-, in default of which five years rigorous imprisonment. The Appellant is also convicted under section 302 I.P.C. and sentenced to undergo Imprisonment for life and further Appellant has been convicted under section 148 I.P.C. and sentenced to undergo rigorous imprisonment for three years and five years and fine of Rs. 5000/- for the offence under section 27 of the Arms Act, in default of which further rigorous imprisonment for one year by a Judgment dated 20/27.05.2010 passed by the 2nd Additional Sessions Judge, Nalanda at Bihar Sharif in connection with Sessions Trial No. 85 of 2006/1036 of 2006 arising out of Giriyak P.S. Case No. 72 of 2005 corresponding to G.R. No. 1063 of 2005. 3. The case of the Informant Baso Mahto (P.W. 15) is that on 30.05.2005 at about 9:30 pm. when he was returning with Vinod Kumar (P.W. 13), Vinay Kumar (P.W. 14) and deceased Vikash Kumar suddenly 10-12 persons surrounded three of them and took them away. Despite his screams, no one came to help. Just a little later, he heard sounds of firing and saw that the miscreants had fled away. When he went to the place of occurrence, he saw his employer Vikash Kumar lying in a pool of blood having sustained fire arm injury. The rest of the two i.e. Vinod Kumar (P.W. 13) and Vinay Kumar (P.W. 14) respectively had been kidnapped. On hearing the firing, the Police Force also came and counter fired but in the meanwhile, the accused persons managed to escape with the two victims. He stated that he had seen the faces of the accused persons and was in a position to identify them. 4. As we find that no one is named in the First Information Report. The two victims i.e. Vinod Kumar (P.W. 13) and Vinay Kumar (P.W. 14) were subsequently recovered by the Police and it appears that they had been kidnapped for reasons of ransom. 5. The counsel for the Appellants does not dispute the factum of occurrence. 4. As we find that no one is named in the First Information Report. The two victims i.e. Vinod Kumar (P.W. 13) and Vinay Kumar (P.W. 14) were subsequently recovered by the Police and it appears that they had been kidnapped for reasons of ransom. 5. The counsel for the Appellants does not dispute the factum of occurrence. All that is challenged is his complicity for the reasons that it is admitted by the prosecution witnesses that the Appellant belonged to the same village and was well known to all of them and yet the Informant, who is said to have seen the miscreants did not name the Appellant. The two victims P.W. 13 and P.W. 14 have, no doubt, disclosed the complicity of the Appellant in Court directly but their attention was drawn to the earlier statement that in fact, they had not named the Appellant, in the manner, they did in Court. To appreciate such submission, we will recount the relevant evidence. 6. It appears that the prosecution examined 19 witnesses. Out of whom P.W. 1 Bishundeo Mahto, P.W. 2 Bisan Paswan, P.W. 3 Shambhu Sharan Singh, P.W. 4 Shatyendra Prasad, P.W. 5 Vikash Paswan, P.W. 6 Arjun Chaurasia, P.W. 8 Sanjay Mahto, P.W. 9 Anandi Prasad, P.W. 10 Harendra Sao, P.W. 11 Naresh Prasad Gupta and P.W. 12 Baleshwar Raut have been declared hostile. P.W. 7 Anil Kumar Verma is a formal witness on the point of Inquest whereas P.W. 16 Binit Kumar Mathur is also a signatory on the fardbeyan and P.W. 18 Ahsan Ahmad Khan is the first Investigating Officer, who recorded the fardbeyan and gave over investigation to P.W. 17 Amrendra Kumar Singh. 7. P.W. 16 Binit Kumar Mathur is one of the brothers of the deceased and the two victims, who proves his signature on the Inquest Report and the fardbeyan marked as Exhibit-2/1. 8. P.W. 18 Ahasan Ahmad Khan is the first Investigating Officer, who recorded the fardbeyan of the Informant. He proves the fardbeyan as Exhibit-5 and the formal First Information Report as Exhibit-2/2. He stated that he inspected the place of occurrence, which he describes. However, since the occurrence is not disputed, we do not wish to dwell on it any further. In his cross-examination, there is nothing which is of note so far as complicity of the Appellant arises. 9. P.W. 19 Dr. He stated that he inspected the place of occurrence, which he describes. However, since the occurrence is not disputed, we do not wish to dwell on it any further. In his cross-examination, there is nothing which is of note so far as complicity of the Appellant arises. 9. P.W. 19 Dr. Uday Shankar Prasad held the Postmortem, which confirms that the deceased had died on account of sustaining fire arm injuries and found the following antemortem injuries on the person of the deceased : On External Examination : (1) Two perforating horizontally oval wound 1 ¼” on each side of mid line of back at the lower margin of rib cage (a) 1 ¼” x ¾” in size on right side (b) 1 ¼” x ½” in size on left side and charred margin about 1/8” wide and (c) one nearly round small perforating wound ¼” in diameter 2” above and left of wound on left side charred margin about 1/8” wide with only 3 gun powder like stippling. There are wounds of entry. (2) One perforating wound in right numeniary line – ½” lateral about 1/3” x ¼” in size with averted margin in continuity of injury – (i) (c) and two perforating wounds on left flank between anterior and posterior auxiliary line 3” below the lower margin of rib cage about 1/3” x ¼” in size with averted margin. Injury nos. 1(a) and 1(b) are continuous to these wounds of exits. On Dissection : (i) Abdominal cavity full of blood. (ii) Tissues in and around the track lacerated hemetozed and showing decrease in charring from wound of entry to wound of exit viz. liver, right kidney, spleen and intestinal canal lacerated at places. Time lapsed and since death within 24 hrs. He proves the Postmortem Report as Exhibit-6. No 10. So the evidence of P.W. 13 Vinod Kumar Mathur and P.W. 14 Vinay Kumar, P.W. 15 Baso Mahto, Informant as also P.W. 17 Amrendra Kumar Singh, who are the only material witnesses are being discussed below. 11. P.W. 13 Vinod Kumar Mathur stated that on the night of occurrence when he was returning along with other two brothers Vinay Kumar and Vikash Kumar, the deceased and his servant Baso Mahto (P.W. 15), he saw in the torch light one person standing with a black bag, whom he identified as the Appellant. 11. P.W. 13 Vinod Kumar Mathur stated that on the night of occurrence when he was returning along with other two brothers Vinay Kumar and Vikash Kumar, the deceased and his servant Baso Mahto (P.W. 15), he saw in the torch light one person standing with a black bag, whom he identified as the Appellant. He stated soon thereafter, 10-12 persons came and surrounded all the three brothers and took them towards the North. His brother Vikash Kumar, the deceased, started to feel difficulty in walking, so he was shot dead. The Appellant, thereafter, stated that they would also be shot dead if they would not walk fast. The miscreants confined them at various locations. In the meanwhile, the accused persons, including the Appellant demanded ransom. On 10.06.2005, the transaction of ransom amount was to take place in the last bogie of a train. The next day, the Police surrounded the areas and they released. He did not identify any of the accused persons who were standing in the dock but claimed to identify the Appellant, which identification was not challenged. In cross-examination, he stated that he had been examined on 16.06.2005 i.e. on the date of his release and that the Appellant belonged to the same village as the Informant. He states about the family of the Appellant that he had two sons and one daughter meaning thereby he was well known to the family. His attention was drawn to the earlier statement that he had not stated about the complicity of the Appellant and not stated the name of the Appellant as one of the miscreants. This fact was confirmed by the Investigating Officer (P.W.17) and thereafter, his evidence on the point of identification of the Appellant is not credible. 12. P.W. 14 Vinay Kumar is the next victim also stated that he along with Vinod Kumar (P.W. 13) the deceased and the witness Baso Mahto (P.W. 15) were returning, suddenly they saw one person with a black bag, whom they identified as the present Appellant. Soon thereafter, 10-12 miscreants came and surrounded them and started to take them towards the North. Then the deceased was shot dead whereas they were threatened to walk fast. They were kept at different locations in which period the accused persons negotiated for payment of ransom and they agreed on a certain amount at a certain location for collection of ransom amount. Then the deceased was shot dead whereas they were threatened to walk fast. They were kept at different locations in which period the accused persons negotiated for payment of ransom and they agreed on a certain amount at a certain location for collection of ransom amount. On 10.06.2005, the Police recovered them when the miscreants abandoned them. He identified the Appellant in dock. His attention was drawn to the earlier statement that he had not taken the name of the Appellant as one of the miscreants in his earlier statements and it was only subsequently three years later that he named the Appellant for the first time. Both the victims confirmed that they had not been taken to identify any of the accused persons in a Test Identification Parade. 13. P.W. 15 Baso Mahto stated that he was the Informant and proved the signature on the fardbeyan as Exhibit-2. His signature on the Inquest Report is marked as Exhibit 1/1. He stated that on the date of occurrence while he was returning with three official employers, he saw one person standing with a bag, whom he did not identify. Just then 10-12 persons came and surrounded the victims and the deceased and took them towards the North. He then gave his fardbeyan. He further stated that 10-12 days later, two victims were released. 14. P.W. 17 Amrendra Kumar Singh, is the main Investigating Officer, who stated on 02.06.2005, he assumed investigation of the case and recorded the further statement of the Informant. He also recorded the statement of the two victims and submitted the charge sheet against the accused persons including the Appellant in two sets. His attention was drawn to the statement of the hostile witnesses, which does not concern as now. As stated earlier, his attention to the statements of P.W. 13 and P.W. 14 was drawn, on perusal of which it appears that these two witnesses had not named the Appellant as one of the kidnappers at the earlier instance. In fact, merely they stated that there was one person who standing with the black bag but they could not identify them. 15. From the discussion held above, it is clear that the two victims did not name the present Appellant at the earlier instance. Three years later, the Appellant, who was a co-villager, was sought to be implicated. In fact, merely they stated that there was one person who standing with the black bag but they could not identify them. 15. From the discussion held above, it is clear that the two victims did not name the present Appellant at the earlier instance. Three years later, the Appellant, who was a co-villager, was sought to be implicated. Also the relevant question is as to why the Informant (P.W. 15) Baso Mahto, who had an opportunity to see the Appellant who belonged to the same village, did not name him in the fardbeyan which makes the entire story of complicity of the Appellant highly doubtful and unreliable. 16. In the result, we are inclined to give the Appellant benefit of doubt. Thus, the Appeal is allowed. The Judgment of Conviction and Order of Sentence dated 20/27.05.2010 passed against the Appellant, above named, by the 2nd Additional Sessions Judge, Nalanda at Bihar Sharif is set aside. He is acquitted of the charges. The Appellant is in jail custody. Therefore, he is directed to be released forthwith, if not wanted in any other case. Appeal allowed.