JUDGMENT : Shree Chandrashekhar, J. At Hatia railway station, GRP/Hatia PS Case No. 14 of 2009 was lodged against unknown at 19:45 hrs. on 22.09.2009. Ajay Kumar Singh, a police constable, who was traveling together with Umesh Kumar Rajak was shot by two unknown miscreants at Bakaspur railway station. Afraid, Umesh Kumar Rajak boarded the train which had just staried moving and the co-passengers helped him to hide himself in the compartment. He says that the dead body of Ajay Kumar Singh was put on the train and therefore when the train reached Govindpur railway station he had gone to the other compartment. At Hatia railway station, the inquest was conducted over the dead body of Ajay Kumar Singh by officer-in-charge of Hatia (Rail) police station and fardbeyan of Umesh Kumar Rajak was recorded. In course of investigation statement of the railway employees and others were recorded. As per the prosecution, the Investigating Officer got lead that Ajay Kumar Singh was extorting illegal gratification from few businessmen and at their instance with the help of Guchu Gope, Area Commander of an extremist group, Ajay Kumar Singh was killed. Three witnesses, namely, Munna Singh, Krishna Singh and Ramesh Singh gave their statement to the Investigating Officer on this point. The statements of wife, mother-in-law and father-in-law of Ajay Kumar Singh were also recorded by the Investigating Officer. In course of investigation the Investigating Officer received a secret information about involvement of Karma Oraon, Guchu Gope, Ashok Singh and one boy. Charku Sahu was anested by the police of Kana PS and he suffered a confessional statement in which he disclosed involvement of Karma Oraon in murder of Ajay Kumar Singh. Dr. Tulsi Mahto who conducted the postmortem examination on 23.09.2009 at 02:10 AM has found firearm injuries over left palm, forehead, chest, left shoulder, iliac fossa etc. In his opinion, the injuries were antemortem in nature and the time elapsed since death was 12 (+/- 6) hours from the postmortem. 2. Dr. Tulsi Mahto has found the following firearm injuries on the dead body of Ajay Kumar Singh: a. Wound of entrance on left palm central region 0.5 cm in diametre (defence wound). The projectile passes through the palm upwards and gets lodged subcutaneously on the dorsal aspect of leftforearm at the junction of upper 2/3 and lower 1/3,Fom where the bullet has been recovered which is designated as bullet no. The projectile passes through the palm upwards and gets lodged subcutaneously on the dorsal aspect of leftforearm at the junction of upper 2/3 and lower 1/3,Fom where the bullet has been recovered which is designated as bullet no. 1 (1). There is Factures of bones of wrist and palm. b. Wound of entrance 1 cm in diameter over the right side of forehead. The projectile passes through the Fontal bone and makes an exit wound measuring 2cm x 1 cm over the lateral aspect of left eye. The frontal bone is broken into pieces. c. Wound of entrance 3cm. x 2cm. on left side of Font of chest in the forth ics. around its middle part and it is surrounded by tatooing measuring 28cm. x 30 cm. on the Font of chest and the adjoining face. The projectile Factures the left cavity enter the right chest cavity, perforest the right lung and gets lodged in the chest wound from were bullet has been recovered from the 6th ics. and is designated as bullet no. 11 (2). d. Wound of entrance through the left eye ball the projectile passes through the brain and brakes the occipital bone into pieces and makes and exit wound measuring 10cm. x 5cm. on occipital region of head. e. Two nos. of wounds of entrances over the left shoulder top at a distance of 5cm. apart. The projectile travels towards right and fracture the right clavicle and gets lodged underneath the skin From where a bullet has been recovered and is designated as bullet no. III.(3) another bullet Factures the six to seventh cervical vertebrae and gets lodged there. Where from it is retrieved and is designated as bullet no. IV (4) F. Wound of entrance on left iliac fossa, 12 cm. from interior superior iliac spine the projectile passes through the left lower abdominal wall and makes and exit wound through the natal cleft left to anal opening. g. Wound of entrance I cm in diameter which grazes the left supra clavicular region making two wounds of exits, 3 cm. apart end of nearly 2 cm diameter: 3. In the opinion of PW4, the injuries were antemortem in nature, caused by firearm and the time elapsed since death was 12 hrs. (+ _ six hrs.) from the time of postmortem examination. apart end of nearly 2 cm diameter: 3. In the opinion of PW4, the injuries were antemortem in nature, caused by firearm and the time elapsed since death was 12 hrs. (+ _ six hrs.) from the time of postmortem examination. In his cross-examination, PW4 has affirmed that the injuries were caused by firearm and the death was instant. 4. On completion of investigation a charge-sheet was filed against Charku Sahu and Karma Oraon and they have faced the trial on the charge under sections 302 and 120-B of the Indian Penal Code and also under section 17 of the Criminal Law (Amendment) Act - a separate charge under section 27 of the Arms Act was framed against Karma Oraon. During the trial the prosecution has examined 19 witnesses - Umesh Kumar Rajak, the informant is PW5. The learned Additional Judicial Commissioner-VI, Ranchi has held that the informant who was traveling with Ajay Kumar Singh saw the incident and identified Karma Oraon in the Court and, therefore, the prosecution has proved the charge against Karma Oraon under section 302 of the Indian Penal Code. Charku Sahu was acquitted of the criminal charges framed against him on the ground that the informant did not identify him in the dock. The learned trial Judge has further found that the evidence for constituting the offence under section 120-B of the Indian Penal Code, section 17 of the Criminal Law (Amendment) Act and section 27 of the Arms Act was lacking; therefore, Karma Oraon was also acquitted of these charges. 5. In S.T. No. 590 of 2011/ S.T. No. 42 of 2013, Karma Ora on was convicted and sentenced to RI for life and a fine of Rs. 30,000/- under section 302 of the Indian Penal Code, with a default stipulation to undergo SI for one year - 50% of the fine amount is to be paid to the wife and children of Ajay Kumar Singh, the deceased. 6. The learned trial Judge has held as under: "23. In this case charge has been framed against the accused persons namely Charku Sahu and Karma Oraon. As per evidence of these witnesses it is evident that some miscreants murdered the deceased Ajay Kr. Singh at Bakaspur rail-way station. Most of the witnesses are hearsay witnesses 'who heard about the incident from the informant Umesh Kr. Razak or others. In this case charge has been framed against the accused persons namely Charku Sahu and Karma Oraon. As per evidence of these witnesses it is evident that some miscreants murdered the deceased Ajay Kr. Singh at Bakaspur rail-way station. Most of the witnesses are hearsay witnesses 'who heard about the incident from the informant Umesh Kr. Razak or others. Informant PW 5 is most important witness of the case who was traveling alongwith deceased Ajay Kr. Singh, who saw the incident. But this accused identified only one accused who had come at the place of occurrence after being called by another accused. The accused who was identified by this witness is Karma Oraon. This accused had fired on the head of the deceased but another accused Charku Sahu was not identified by this witness. Except this witness only I.O. has identified both the accused persons. But I.O. has investigated the matter. He has not seen the incident so far as identification of accused persons are concerned the evidence of I.O. is irrelevant. 24. Though only two accused persons were caught hold and out of that accused Karma Oraon has been Identified by the informant PW 5 who was only eye witness of the case but another accused Charku Sahu could not be identified by this witnesses. So this accused Charku Sahu is entitled to get benefit of doubt. 25. In this Case charge has been framed against the accused Charku Sahu u/s 302, 120B IPC and 17 CLA Act and another accused Karma Uraon u/s 302, 120 B IPC, 27 Arms Act and 17 CLA Act. As per section 17 of CLA Act - whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, in any way assists the operations of any such association, shall be punished with imprisonment for a terms which may extend to six months, or with fine, or with both. As per evidence of witnesses it transpires that the ingredients of this section is lacking in this case. Hence, Section 17 CLA Act does not applicable against both accused persons. 26. Charge has been Famed u/s 27 Arms Act against the accused namely Karma Uraon. As per evidence of witnesses it transpires that the ingredients of this section is lacking in this case. Hence, Section 17 CLA Act does not applicable against both accused persons. 26. Charge has been Famed u/s 27 Arms Act against the accused namely Karma Uraon. It has been proved by the evidence of witness that deceased was assaulted by opening fire which finds support From the medical evidence also but the fire arms which was used to commit the offence has not been recovered by police nor produced before court by the prosecution. Hence, 27 Arms Act is not applicable against the accused persons. As it transpires From the evidence of this witness, I find that charge has been Famed against both the accused persons u/s 302 and 120B IPC but nothing has come in the evidence of the witnesses that deceased was murdered after making conspiracy rather it is evident from the evidence of witnesses that both the accused persons directly assaulted upon the deceased and shooted him. Accused Karma Uraon has identified by the witness by informant but accused Charku Sahu could not be identified hence section 120 B IPC is not applicable against both the accused persons. As discussed above I find that prosecution has been able to prove the case against the accused Karma Uraon u/s 302 IPC. As because almost witnesses have deposed that deceased was murdered by Karma Uraon at Bakaspur railway station and informant who is eye witness of the case has identified him. Hence, Section 302 IPC attracts against the accused Karma Uraon. But since Charku Sahu could not be identified by the informant without identification no one could be convicted. 27. Thus, after meticulously examined the evidence I find that prosecution has not been able to prove the case against accused Charku Sahu beyond all shadow of reasonable doubt so he is entitled to get benefit of doubt. As such giving benefit of doubt he is acquitted us 302, 120 B IPC and Section 17 CLA Act. He is on bail. He is discharged From the liability of bail bond. As such giving benefit of doubt he is acquitted us 302, 120 B IPC and Section 17 CLA Act. He is on bail. He is discharged From the liability of bail bond. Further as discussed above I find that prosecution has not been able to prove the case against accused Karma Uraon u/s 27 Arms Act and Section 17 CLA Act and Section 120 B IPC hence, giving benefit of doubt he is acquitted u/s 27 Arms Act, Section 17 CLA Act & Section 120 B IPC but as discussed above I find that prosecution has been able to prove case against accused Karma Uraon us 302 I.PC So I find and hold him guilty u/s 302 1PC As such accused Karma Uraon is convicted u/s 302 IPC Accused is in custody. Judgment is pronounced through VC He will remain in jail. Put up on 10.05.2018 for hearing on the point of sentence. " 7. Mr. Jitendra S. Singh, the learned counsel has assailed the judgment of conviction primarily on the ground that the prosecution has failed to establish identity of Karma Oraon as the person who fired at Ajay Kumar Singh. The argument is that to establish a charge for murder the prosecution must tender sufficient evidence to prove identity of the appellant with cer1ainty and on mere vague suggestions one cannot be convicted and that too for a serious offence like murder. The State has put forth a plea through Mrs. Nehala Sharmin, the learned APP that direct evidence against member of an extremist organization is hard to find and, therefore, a case like the present one should be decided keeping in mind the factual realities as noted by the learned trial Judge. 8. During the trial, PW 1, PW3, PW13, PW14, PW15 and PW16 have turned hostile. PW I-Manohar Patel who is maternal brother-in-law of the deceased deposed in the Court that wife of Ajay Kumar Singh came to his house and informed him that her husband has been shot dead. Thereafter he had gone to Hatia railway station where the police told him that Ajay Kumar Singh was killed at Kurkura railway station. He however says that his statement was not recorded by the police and at this point he was declared hostile at the instance of the prosecution. Thereafter he had gone to Hatia railway station where the police told him that Ajay Kumar Singh was killed at Kurkura railway station. He however says that his statement was not recorded by the police and at this point he was declared hostile at the instance of the prosecution. PW3 has also stated that his statement was not recorded by the police and, accordingly, he was also declared hostile. In his examination-in-chief, he has stated that he came to know from the villagers that husband of Renu Devi was killed and thereafter he had gone to Hatia railway station where he saw the dead body of Ajay Kumar Singh. PW 13 who was working with Satyendra Singh, a contractor, was also declared hostile and in his cross-examination by the prosecution he denied that he had stated before the police that Praveen Jain was engaged in the work of pole cutting. Similarly, PW14, PW15 and PW16 have also flatly denied any information/knowledge about the occurrence - for example, PW 14 has denied that he knows any person by the name of Praveen Jain. The evidence of a hostile witness is not altogether worthless for the prosecution and a pm1 of the statement which supports the prosecution can be relied by it. However, in the present case there is nothing in the testimony of the prosecution witnesses which can be utilized by the prosecution. PW 14 and PW 16 who were examined by the prosecution to put forth a case that murder of Ajay Kumar Singh was result of a conspiracy between Praveen Jain and Guchu Gope, Area Commander of PLFI, have not supported the prosecution and there is nothing in their evidence which can be used by the prosecution. In our opinion, the learned trial Judge has rightly held that there is no evidence to establish that there was a conspiracy to eliminate Ajay Kumar Singh and, accordingly, the charge under section 120-B of the Indian Penal Code has failed. Since the charge of conspiracy was framed on a premise that a member of an extremist/banned organization was involved, for a similar reason - a charge under section 17 of the Criminal Law (Amendment) Act was also held not proved. 9. The above being the factual scenario, the foundation of the prosecution case appears to have been shaken to a large extent. 10. 9. The above being the factual scenario, the foundation of the prosecution case appears to have been shaken to a large extent. 10. The identification of an accused in the Court is a substantive evidence however identification of an accused for the first time in the Court is inherently a weak piece of evidence. Generally, identification of an accused for the first time in the Court is not made the sole basis for conviction of an accused, however, there is one exception to this rule that if the witness had sufficient opportunity to observe the physical features of the accused and the Court finds his testimony reliable an accused can be convicted solely on the basis of his identification for the first time in the Court, without any corroboration. It is also well settled that the objective of conducting test identification is only to lend support to identification of an accused in the Court by a witness. 11. The law on the subject was elucidated by the Hon'ble Supreme Court in "Malkhansingh & others v. State of MP " (2003) 5 SCC 746 in the following words: "16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity” 12. PW5 in his examination-in-chief has deposed that the incident was of the year 2009 and at that time he was posted at Kurkura picket in Gumla district alongwith Ajay Kumar Singh. On the eve of Dussehra festival both boarded Jasugurah passenger train for going to their native place. There was no space and he was standing in the train compartment. At Pokla railway station, a miscreant carrying a country made pistol boarded the train. In course of an altercation with the passengers the unknown miscreant was brandishing the firearm so he became apprehensive. When the train stopped at Bakaspur railway station and Ajay Kumar Singh stepped out from the train the said miscreant came there and engaged in a quarrel with him. According to the informant, he advised Ajay Kumar Singh not to get involved into all this and they were in the process of boarding the train when the incident took place. He says that suddenly a boy who was wearing half pant pointed pistol at Ajay Kumar Singh and the boy who had boarded the train fired at the chest of Ajay Kumar Singh and thereafter the boy who had come later fired two-three shot at the head of Ajay Kumar Singh. Due to fear he boarded the train again and at Hatia railway station his fardbeyan was recorded by the police. He has claimed that he can identify the accused who wearing half pant had come at Bakaspur railway station and shot at Ajay Kumar Singh. Due to fear he boarded the train again and at Hatia railway station his fardbeyan was recorded by the police. He has claimed that he can identify the accused who wearing half pant had come at Bakaspur railway station and shot at Ajay Kumar Singh. In the dock, he has identified the appellant as that very accused who also shot at Ajay Kumar Singh but could not identify the other accused. 13. One glance at the examination-in-chief of PW5 would reveal that Karma Oraon is the person who arrived at the scene soon after Ajay Kumar Singh got involved in a quarrel with the unknown miscreant who according to the prosecution was Charku Sahu. Assuming that it was Charku Sahu who was brandishing firearm in the train, according to PW5 first Charku Sahu fired at Ajay Kumar Singh and then Karma Oraon had also fired two-three shots at Ajay Kumar Singh. There was huge commotion at the railway station and the accused ran away from the place of occurrence. It was broad daylight when Ajay Kumar Singh was shot by unknown miscreants and the persons who witnessed the occurrence had good time to observe the physical features of the accused. However, the statement of PW5 in his cross-examination has completely shadowed his claim that Karma Oraon is the person who has fired at Ajay Kumar Singh. In his cross-examination, in paragraph no. 9, he has stated that he is not sure (confident) about the boy he has identified in the Court. His further statement in paragraph no. 10 clearly shows that he has claimed to identify Karma Oraon because according to him the other boy who had joined Charku Sahu at Bakaspur railway station was of dark complexion. On such evidence, we are of the definite opinion that a person cannot be said to be identified as the one who has pat1icipated in the occurrence. 14. The learned trial Judge has completely overlooked the position in law that identity and complicity of an accused in the occurrence must be established in a criminal trial clearly and with certainty. The appellant was in custody but not put on Identification Parade, and no plausible explanation is coming forth from the prosecution for not conducting Test Identification Parade. 14. The learned trial Judge has completely overlooked the position in law that identity and complicity of an accused in the occurrence must be established in a criminal trial clearly and with certainty. The appellant was in custody but not put on Identification Parade, and no plausible explanation is coming forth from the prosecution for not conducting Test Identification Parade. According to the prosecution, complicity of the appellant in the Occurrence came into the light when Charku Sahu gave his confessional statement to the Investigating Officer. In "Matru @ Girish Chandra v. The State of Uttar Pradesh" (1971) 2 SCC 75 the Hon'ble Supreme Court has held that identification test is primarily meant for the purpose of helping the investigating agency with an assurance that their investigation of an offence is proceeding on the right lines. From the materials on record, we gather that the informant first claimed that a boy of about 10-12 years came at Bakaspur railway station and fired at Ajay Kumar Singh. From cross-examination of the informant, it appears that he made a similar claim in his restatement before the Investigating Officer but in the Court he has denied that he had stated in his restatement that the other accused was aged about 10-12 years. It is important to mention that from the records it appears that at the time of the trial age of the appellant was about 23 years, and this appears to be reason why the appellant was not put on Test Identification Parade. 15. In "Vijayan v. State of Kerala" (1999) 3 SCC 54 the accused persons had gone to house of the deceased and one of them had fired two shots at him from revolver. One of the witnesses who had opened the door identified the accused in the dock. The photograph of the accused was shown to the witness - and published in all local newspapers before TIP. Another witness claimed that he has seen the accused fleeing away. It was held that it is highly impossible for a person to remember face of the accused and that too after about five years of the occurrence. 16. The photograph of the accused was shown to the witness - and published in all local newspapers before TIP. Another witness claimed that he has seen the accused fleeing away. It was held that it is highly impossible for a person to remember face of the accused and that too after about five years of the occurrence. 16. PW6 and PW7 who were present at Bakaspur railway station have deposed in the Court that Jasugurah-Hatia passenger train arrived at Bakaspur railway station at about 03 :26 PM and the moment the train started someone pulled the chain and immediately thereafter they heard sound of firing - they have not seen firing at Ajay Kumar Singh. PW8, PW9 and PW 10 have deposed in the Court that they do not know anything about the incident. Similarly the evidence of PW11, PW12 and PW15 do not throw any light on involvement of the appellant in the occurrence - they are also not eyewitnesses, and; PW 18 and PW 19 who are the Investigating Officers have deposed in the Court about their objective findings. In the aforesaid state of affairs, the learned trial Judge has rightly found that evidence of most of the witnesses is hearsay. From the counter affidavit filed on behalf of the State it appears that Karma Oraon has criminal antecedent. A police officer was killed, he was shot at a crowded railway station and according to the informant one of the accused was moving in the train compartment with firearm in his hand, still, no one has identified him. From the evidence of the informant who is the sole eyewitness in this case and other attending circumstances we get a feeling that the prosecution has suppressed important material facts from the Court and the delay of about five hours in lodging the First Information Report is disquieting. 17. In Meharaj Singh (L/Nk.) v. State of U.P. (1994) 5 SCC 188 the Hon'ble Supreme Court has observed as under: "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. 17. In Meharaj Singh (L/Nk.) v. State of U.P. (1994) 5 SCC 188 the Hon'ble Supreme Court has observed as under: "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story.” 18. From evidence of the informant it is quite apparent that when he saw a miscreant roaming in the compartment with a firearm in his hand he became apprehensive and tried to sneak away with Ajay Kumar Singh, when the train stopped at Bakaspur railway station. In course of the hearing, the learned APP has indicated that due to fear of the extremists the witnesses would not come forward to depose against them. This appears to be the reason why the prosecution evidence is so sketchy and unsatisfactory. The Investigating Officer has committed serious lapses during the investigation and though the mistakes committed by the Investigating Officer cannot become the foundation for acquittal of an accused, in the present case, the prosecution case is left with gaping holes on account of mistakes or negligence of the Investigating Officer and there is no material on record to connect the appellant with murder of Ajay Kumar Singh. 19. In View of the foregoing discussion, we hold that the prosecution has failed to prove the charge under section 302 of the Indian Penal Code against Karma Oraon and, accordingly, the judgment of conviction under section 302 of the Indian Penal Code against the appellant, namely, Karma Oraon passed by the learned Additional Judicial Commissioner -VI, Ranchi in S.T. No. 590 of 2011/ S.T. No. 42 of 2013 is set-aside. 20. Mrs. Nehala Sharmin, the learned APP states that the appellant, namely, Karma Oraon is in custody. 21. 20. Mrs. Nehala Sharmin, the learned APP states that the appellant, namely, Karma Oraon is in custody. 21. Accordingly, the appellant, namely, Karma Oraon shall be set free forthwith, if not wanted in connection to any other case. 22. In the result, Cr. Appeal (D.B.) No. 693 of 2018 is allowed. 23. LA. No. 2489 of 2020 and LA. No. 5277 of 2020 stand disposed of. 24. Let lower Court records be transmitted to the Court concerned, forthwith. 25. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.