P.K.Sinha, J.

1. This is an application against the judgment of acquittal recorded in Sessions Case No. 181/11 of 1997 by the 1st Additional Sessions Judge, Rohtas at Sasaram in which the learned Judge, on consideration of the evidence and materials on the records had held that the prosecution had failed to prove the charge against the accused, who are opposite party Nos. 2 to 6 in this petition, beyond reasonable doubt and acquitted them.

2. Obviously in this case, and also claimed in the First Information Report (Ext. 3), the informant Shiv Shankar Singh @ Ghogha Singh was the only eyewitness who claimed in the First Information Report that while on the date of occurrence, he was coming with his uncle and when he stopped on the way to urinate, uncle Kamla Singh proceeded further and thereafter one of the persons there from earlier assaulted him with dagger and on warning of his uncle to flee away, he started fleeing away and heard some sound of firing. In the village, he raised hulla that his uncle had been murdered by five unknown persons and when he came back with the villagers, he found his uncle dead and thereafter, he came to the police station and got the case instituted in which, in due course charge-sheet was submitted and ultimately, the case came to the trial in which against accused Tali Singh charge was framed under Sec. 120B of the Indian Penal Code for entering into criminal conspiracy with other four persons for murder of Kamla Singh which four accused were charged under Secs. 302 read with 34 of the Indian Penal Code.

3. It will appear from the evidence on the record that subsequently, the informant claimed to have seen the accused-persons committing murder of his uncle together and he also claimed that his uncle was also strangulated with the help of cloth before he was fired upon.

4. Earned Counsel has submitted that a cogent explanation was given by the informant that having seen the gruesome murder of his uncle, he was not in a fit state of mind hence he did not disclose the names of culprits in his fardbeyan which, according to the learned Counsel, should have been accepted by the learned trial Court as being a natural explanation.

5. For this earned Counsel has relied upon a decision of the Apex Court in the case of Bishan Das V/s. State of Punjab -- , and submitted that their Lordships held that non-mention of the names of the accused, if accompanied with the satisfactory explanation, the veracity of the prosecution case could not be doubted. In that case, the accused was alleged to have thrown hand-granade killing wife and child of P.W. 7 also seriously injuring him as a result of which he fell unconscious. Soon after the occurrence, the sarpanch of the village, P.W. 6, a close neighbour, came and having found dead and injured, rushed to the police station and lodged First Information Report against unknown. However, P.W 7 in his statement before police and in his evidence before the Court had named the accused who had thrown the hand-granade and after trial, the accused was convicted. In such circumstances, their Lordships of the Supreme Court had held as has been submitted by the earned Counsel for the petitioner. In the facts of that case, it was but natural for the informant not to have ascertained the name of the accused from P.W. 7 who was found unconscious but who revealed subsequently the name on gaining consciousness. The facts in this case, are quite distinct so much so that the informant has claimed to be at the place of occurrence and, after lodging the First Information Report against unknown and also claiming that when he rushed to village he had told the villagers that five unknown persons had killed his uncle, but subsequently he claimed to have seen the occurrence and gave full details as to which accused had done what.

6. The learned trial Court as will appear from the judgment had rightly found this discrepancy to be fatal to the prosecution case when read also with certain