Judgment M.P.Varma, J. 1. The aforesaid six appellants have been convicted of the charge of causing the murder of one Dukhi Chamar whereas, two of them Teju Chamar and Harinath Chamar have been awarded sentence of death on charges under Sec. 302 of the Indian Penal Code (hereinafter referred to as the Code) and the learned Additional Sessions Judge, in the impugned judgment, has made a reference to this Court for confirmation of the sentence of death, which has given rise to the Death Reference No. 4 of 1985. The other four appellants have been found guilty of the charges under Sec.302/149 of the Code and sentenced to undergo imprisonment for life. The prisoner Teju Chamar has been further convicted of the charge under Sec. 326 of the Code for causing grievous hurt to Lau Chamar (P.W. 7) son of the deceased Dukhi Chamar and accused Lala Chamar has been further convicted under Sec. 27 of the Arms Act but no separate sentence has been passed under these heads by the trial Judge. Besides the death reference all these accused have jointly preferred an appeal against the judgment of conviction dated 2nd April. 1985, which has been registered as Cr. Appeal No. 11/85. Both the Death reference and the Criminal Appeal have been heard together and his Judgment covers both of them. 2. The cage against these accused was registered at police station Chand in the district of Rohtas on the statement of Lao Chamar (P.W. 7) the son of the deceased. The occurrence took place in village Kurthu falling under the said police station Chand. The case is as follows: In between the night of 22nd and 23rd June, 1983 when he was sleeping in the sahan under a peepal tree adjacent north of the Darwaza of his house and his father Dukhi was sleeping with his another son Chaturi Chamar (P.W. 5) aged about 8 years on a cot at the Darwaza, he (Lau Chamar) heard the cry and woke up on the cry of his father. He was crying for help saying "Jan Gail Dauro". He got up and rushed. He saw all the six appellants and 2-3 more around the bed of his father. He was crying for help saying "Jan Gail Dauro". He got up and rushed. He saw all the six appellants and 2-3 more around the bed of his father. He could further see that appellant Lala Chamar had a un with him whereas, appellant Teju and Harinath were holding Garasa and appellant Baijnath had a Goji and the rest had Lathi in their hands. They all joined in assaulting his father. He himself assaulted accused Teju Chamar with a lathi on which Teju hurled a Garasa on him as a result of which his left hand was almost severed. He stated that he ran away from there and stood near the house of Jokhu Chamar and raised alarm. He could bear the sound of gun firing. He further said that both the appellants Teju and Harinath (both charged under Sec. 302 of the Code) inflicted several Garasa blows on his father. He further claimed to have noticed that appellant Lala Chamar fired gun shot on his father and thereafter all the accused fled away through the eastern lane in the village. He then went near his father and found him dead fallen below the cot. None of the Chamars of the village came on his hulla but some Pandey people of that village came there to whom he narrated all about the occurrence. 3. The informant (P. W. 7) has further said that several cases in between his father and the accused were pending in Court and even in pasco prior to this occurrence the accused has assaulted his father and in order to wreck vengeance, they killed his father in the manner as alleged. 4. The Sub Inspector of police was camping nearby in village Bharniyan. He got some information and came to village Kurhnu and took down the Fardbeyan (Ext.5) of (P.W. 7) Lau Chamar, on the basis of which F.I.R. (Ext.8) was drawn and thus the case was registered. The investigating Officer took up investigation and finally charge sheeted all the 6 accused named above. They were thus, sent up for trial and convicted of the charges as aforesaid. 5. The Investigating Officer during investigation sent the dead body of Dukhi Chamar for post mortem examination. The investigating Officer took up investigation and finally charge sheeted all the 6 accused named above. They were thus, sent up for trial and convicted of the charges as aforesaid. 5. The Investigating Officer during investigation sent the dead body of Dukhi Chamar for post mortem examination. The post mortem was done by (P.W. 1) doctor J.N.P. Bhagat who found the following ante mortem injuries on the deceased Dukhi Chamar: (i) One incised wound on left side of the frontal area of the head. Size 3 X 1/2 deep to the bone. (ii) One blackened area causing lacerated wound on the right side of the forehead. Size 1/4 x 1/4. (iii) One lincised wound on the upper part of right side of the back extending to the right side of the neck cutting the muscles, vessels and the bones. Size 8 X 4 cutting the skins, muscles, main vessels and the bones. (iv) Another incised wound extending from the right side of the upper part of the back to the left side of the neck including the back of the neck and cutting the muscles, vessels and the bones. Size 8 X 1/2 cutting the bones. (v) Another incised wound extending from the right side of the back to the left side of the back size 10 X 1½ cutting the bones, muscles and vessels. (vi) Another incised wound on the mind part of the left side of back size 4 X 1½ bones cut. (vii) Another incised wound on the lower part of the right side of back. Size 3 x 3/4 bone cut. (viii) Another incised wound on the lower part of the mid portion of back. Size 1/2 x 1/4=tissue deep. (ix) Another blackened area caused lacerated wound on the right side of the forehead. Size 1/4 x 1/4. 6. The informant P.W. 7 Lau Chamar was also examined on the following morning at 8/4 a. m. by Doctor P.W. 8. Gopi Chand Ram, who found one incised wound 4 X 1/2 X 1½ over left fore-anm at its middle cut with fracture of radius and ulna. 7. Besides the two doctors, (P.W. 1 and P.W. 8), the prosecution has examined seven other witnesses. The eye-witnesses on the point or occurrence are the mother of the deceased, examined as P.W. 2. wife of the deceased as P.W. 8 his daughter-in-law. 7. Besides the two doctors, (P.W. 1 and P.W. 8), the prosecution has examined seven other witnesses. The eye-witnesses on the point or occurrence are the mother of the deceased, examined as P.W. 2. wife of the deceased as P.W. 8 his daughter-in-law. P.W. 4 and lastly the son of the deceased the informant himself examined as P.W. 7. Other witnesses are quite formal. P.W. 5 is second son of deceased Dukhi, who was in the cot with him but the prosecution did not examine him and simply tendered him in Court for cross-examination. P.W. 6 is the Dafadar who reached the place of occurrence sometime after the occurrence was over and is a witness on the point of inquest. The investigating officer has not been examined and the prosecution has made attempts to get the Fardbeyan, the F.I.R. and the inquest proved on record through P.W. 9 who is an advocates clerk. He had said that he was acquainted with the writings of the sub-Inspector of police Ram Nandan Singh who investigated the case. 8. In defence the accused appellants, at one stage pleaded that it was the Dafadar who with the help of his brother Parduman Pandey got Dukhi Chamar killed and falsely got these appellants entangled in the case. It has also been said that the Brahmins of the village i.e. the pandey people were very much sore as the deceased had left working at their place as a labourer and that they were instrumental in getting him killed. In other words, the appellants have pleaded their innocence and that it is a case of false implication. 9. In appeal before us, the learned Advocate Sri K.P. Singh while canvassing the case for the appellant at the very outset made a strong criticism regarding non-examination of the Investigating officer. He argued that the mere severe punishment the more strict should be the necessity of proof. It was the duty of not only the prosecution but also of the trial court to see that the police attended court to give evidence. A serious prejudice has been caused clue to non examination of the police officer. It bas been strongly contended that it is not a case of simple non production of the Investigating officers. Rather it is a case where the Investigating officer was deliberately kept out of the court by the prosecution. A serious prejudice has been caused clue to non examination of the police officer. It bas been strongly contended that it is not a case of simple non production of the Investigating officers. Rather it is a case where the Investigating officer was deliberately kept out of the court by the prosecution. In case if he would have been brought in the witness box, the defence would have taken from him that there was complete obstruction in between the house of Jokhi Chamar where P.W. 7 ran and stood up and that the Sahan land or the Darwaza i.e. the place of occurrence and that Lau Chamar could not have seen the occurrence from the place, he claimed to be standing and the prosecution has not brought any map of the place of occurrence to facilitate proper appraisal of the evidence on this score. The appellants have thus, been seriously prejudiced in their defence. It is in the context that the evidence of P.W. 7 the informant has been vehemently criticized. This aspect of the case would be discussed hereinafter. But I put in here that the main point of attack by the appellants counsel is that occurrence took place in the mid of night in full darkness and that the his created could not be identified. P.W. 7 was also attacked but in the darkness be could escape with some injuries on his band. Had there been a determined bid to kill Dukhi Chamar due to land dispute then the accused could not have spared his son Lau Chamar giving only a few blows, like a wounded snake to spite venom and to figure as an eye-witness in court. He would have been chased and killed or gunned down and would not permit him to wait and witness the killing of his father from a distance and to depose in court later on. P.W. 5 Chaturi who was sleeping with his father deceased Dukhi. He would have also met the same fate. Either he was not in the cot or he too could eclipse in the darkness and none could see and identify the miscreants killing Dukhi in the manner as alleged. 10. According to the prosecution P.Ws. 2, 3, 4, 5 and 7 the informant are the eyewitnesses. He would have also met the same fate. Either he was not in the cot or he too could eclipse in the darkness and none could see and identify the miscreants killing Dukhi in the manner as alleged. 10. According to the prosecution P.Ws. 2, 3, 4, 5 and 7 the informant are the eyewitnesses. Their evidence needs examination and a careful analysis to find out if they could really see the killing incident of Dukhi or it all happened in absolute darkness and there was no identification. Dhaneshwari Devi (P.W. 2) is the mother of deceased Dukhi Chamar. She has claimed to be an eye witness and to have seen the accused assaulting and killing her son Dukhi. She has said that she was sleeping in that very room where Dukhi and her grandson Chaturi (P. W. 5) were sleeping. She was on the cot and deceased Dukhi and Chaturi in another. She has described the room as a Durnuban Room. According to her, it was in this room that Dukhi was killed by all the accused appellants whom she named. But her evidence is fit to be rejected by a single stroke of on when she admitted that she had a weak eye-sight and was using spectacles. She was then aged 70 years. It was a dark night. She did not talk of any light in the room. Naturally he could not have seen the incident in the darkness. She has tried to improve her statement by telling the court that her eye sight became weak after the occurrence on account of constant weeping all through for several days for losing her son. But that does not improve the case of the prosecution. She has faultered in her statement, on many other important factor which throws considerable doubt in her having seen the assault on her son as alleged. She has said that the other eye-witnesses i.e. her daughter-in-law (P. W. 8) (wife of deceased Dukhi) her grand daughter-in-law P.W. 4 and also her grand-son P.W. 7 came there in the room only after the accused persons had left the place. She has further said that appellant Teju fired a gun at Dukhi which is not the case of the prosecution. The case is that the accused Teju was carrying a Garasa. She has further said that appellant Teju fired a gun at Dukhi which is not the case of the prosecution. The case is that the accused Teju was carrying a Garasa. On being asked in cross- examination she has added that when the accused persons were assaulting her son Dukhi, she covered his body, obviously to save him and also her grand-son P.W. 5 however, had slipped away from the room. But is the statement correct? She has said that the accused continued to assault her son even when she was covering him badly and that way she too got injuries and her clothes were besmeared with blood. Prosecution has not shown that she had even a scratch on her body, nor the clothes have been brought in court or any report of serologist to show that there was any stain of blood on her clothes. In addition to all the Counsel for appellants has shown us from her evidence, that though she named all the appellants but did not identify anyone of them in Court which may only lead to hold that she was tortured to give all such statements. 11. It has been not argued that the prosecution could not fix up the exact place and location of the incident of assault and killing of Dukhi. Prosecution is hovering between a room and the open Darwaza and it is all because P.W. 7 Lau Chamar said in his earliest statements in the F.I.R. that being hit by the accused, he ran away to Jokhus pace and then it was from there that he saw the entire occurrence. Since he could not have seen it, if it at all happened in "Dumuhan Room" so the prosecution had to shift the place of occurrence to the Darwoza in the Sahan land It has also been argued that even the Darwaza was not visible from Jokhus place and P.W. 7 Lau Chamar could not have seen any part of the occurrence If he ran away from there in the darkness and he therefore, added in his statement that he identified in the light of the moon. But fact remains that none has said that there was any lantern or light either in the varandah or in the" Dumuhan Room". 12. In the west is the place for tying cattle. There is a "Bhusaghar". It has been described as Marai. But fact remains that none has said that there was any lantern or light either in the varandah or in the" Dumuhan Room". 12. In the west is the place for tying cattle. There is a "Bhusaghar". It has been described as Marai. It is in the north of the house and in the west of Bhusaghar is the house of Ram kishun and further north of it is the house of Jokhu. But Lau Chamar has said that the Marai falls in between the house of Jokhu and the cattle Khand which is in the west. 13. Thus, it is obvious that in between his house and that of Jokhu, there is the house of Ramkishun and further north of Ramkrishun is Jokhus house. He has said that the Mora; lies in between the house of Jokhu and cattle Khand which is in the west. We get this sort of cryptic evidence from P.W. Lau Chamar himself. It is at this point that a criticism was made for non examination of the Investigating Officer. But at any rate, the description as given by Lau Chamar himself falsifies his claim i.e. the possibility of witnessing the whole scene of killing of his father who was surrounded by 8 to 9 persons all around, be it either at the Darwaza in the Sahan land or in the room as said by other witnesses. Even the sequence of the episode as given out by him does not inspire confidence and at the same time it is not in conformity with the evidence of other witnesses, he has said that his father Dukhi was first assaulted with a lathi. An the accused were surrounding the cot on which he was sleeping. Dukhi fell down from the cot on no ground. Then again be added that at first a shot was fired by a gun and it was thereafter that other appellant Teju and Harinath cut him with Garasa He has further added that when he rushed to sale his father, he picked up a lathi and bit Teju who turned on him and hurled a Garasa as a result of which his left hand was almost fully cut. The trial court has also given its observation, and noted in the deposition that he too saw the cut injury and it appeared to the learned Judge that the hand of Lau Chamar in between the elbow and the wrist was almost fully cut, and he could not now take work from that hand. There is no narration of this sequence by others P.W. 2 has not spoken regarding the assault on his grand son P.W. 7. She has rather said that Lau Chamar and others came only when the accused persons fled away and she gave a vague statement that her grand-son was gunned down and others killed him by assaulting with Garasa and Bhalas and has further said that it was accused Teju Chamar who had fired the gun, which is not the prosecution case. 14. P.W. 7 has said that be was badly injured being hit with the Garasa It is anybody s guess that there would be profuse bleeding He bas said that the blood had fallen not only in the lane but also sprinkled on the wall of Ramkrishnas house when he had run to Jokhus plate. Even according to the doctors evidence P.W. 8 Lau Chamar had severe cut injury with fracture too and the injury was grievous in nature. In this circumstance, it is simply absurd to believe that Lau Chamar could tolerate and sustain such a severe blow and kept waiting at Jokbus place to witness the whole episode thereafter as narrated by him. Needless to repeat that he could not have seen the incident from Jokhus place as discussed above and in addition to it with such an injury he could not have seen anything. 15. Evidence of P.W. 8 is no better. She claims to have woken up on the sound of gun firing. She also gave the same sort of vague statement that accused persons were armed with gun, Garasa and Ballam (none else had said that any accused was carrying a Ballam) and then said that her husband Dukhi was cut by the accused with Garasa and Ballam. She has admitted that she was sleeping in the room. Her mother-in-law was also there. She had shut the door before going to bed. She has admitted that she was sleeping in the room. Her mother-in-law was also there. She had shut the door before going to bed. On hearing the gun-firing she opened the door and saw the incident, which according to her, happened at the Darwaza, she has said that her son Chatru (P.W. 5) was also hurt in the incident. But curiously enough she does not say about the assault on her elder son Lau Chamar P.W. 7. Her further evidence is that her husband, i.e. Dukhi was sleeping close south of the Peepal tree and this statement shifts the place of occurrence to the Sahans-land, inasmuch as, her total silence regarding the assault on her son creates doubts if she had seen the occurrence. 16. Next witness is P.W. 4 the daughter-in-law or deceased Dukhi. She has stated that she was sleeping in the court-yard with her mother-in-law (P.W. 3) and both got up on the outcry of Dukhi. She did not go near her mother-in-law (P.W. 3) and she stood behind a "Chachara" and saw the incident from the covered Chachara. This Chachara is a kind of partition wall made of bamboo splinters. This is nobodys case. She has said that both Dukhi and Chaturi (P.W. 5) had received pellet injury. She has admitted that the lathi of Lau Chamar (P.W. 7) was blood-stained arid taken away by the police. The Lathi has not been produced in court. The Investigating Officer did not come to support it. 17. P.W. 6 is a Dafadar. He said that he could know about the occurrence from his brother Bansorapan. Bansorapan was the first person to tell him regarding the murder of Dukhi but no disclosure of the name of any accused. On getting the information he came to the place of Dukhi along with the S.I. (P.W. 4) as admitted that it was this Dafadar (P.W. 6) who took her and other witnesses to the court and it was the Dafadar who paid their Bus-fare. The amount was financed by one Nagina Pandey also, the other villager. Dafadar P.W. 6 is also a Pandey. Nagina Pandey has come to Dukhis place and signed the inquest report and other documents, but he has been kept out of the court. 18. Our attention has also been drawn to the evidence of doctor (P.W. 1) J.N. Bhagat who conducted the post-mortem examination. Dafadar P.W. 6 is also a Pandey. Nagina Pandey has come to Dukhis place and signed the inquest report and other documents, but he has been kept out of the court. 18. Our attention has also been drawn to the evidence of doctor (P.W. 1) J.N. Bhagat who conducted the post-mortem examination. All that he has said is that he found multiple incised wound on different parts of the body out of which injury No. 2 and 9 as noted above, had a blackened Area with lacerated wound on the right side of the fore-head. It appears to me that probably injury No. 9 as described by the doctor is the repetition of injury No. 2 and that there was only one injury. The doctor has said it was only because of the blackening of the area as noticed, he felt that the injury was caused by fire-arms. But there was no charring or scorching of the area around the wound if there is firing from a closure quarter, reasonably beyond two to three feets i.e. if the gun is discharged from a close proximity. The doctors evidence does not appear to be conclusive that any injury was caused by fire arm. He logically deduced it to be so on noticing the blackening mark of the area. But on being asked he has said with absolute correctness that no pellet would be recovered from the wound of the dead Body, inasmuch as, he did not find any wound of exit. So, it is quite likely that firing was resorted to terrorise all, more so when it could not be said with definiteness that Dukhi was fired at or gunned down by the appellant. 19. Then there is another infirmity. Injury Nos. 3 and 4 were on the neck and it had cut muscles and the bones. According to the doctor, these three injuries caused deep shock and haemorrhage, leading to death. As discussed above, I could not get from the evidence of anyone of the eye-witnesses that who, in fact, caused these two injuries. Allegation is that every accused surrounding the bed assaulted the deceased and two of them had used Garasa. So, it is only an inference that all incised and cut injuries were caused by Garasa, whereas even blow with lathi on the head might cause injuries looking like incised wound. Allegation is that every accused surrounding the bed assaulted the deceased and two of them had used Garasa. So, it is only an inference that all incised and cut injuries were caused by Garasa, whereas even blow with lathi on the head might cause injuries looking like incised wound. In such a situation, it is difficult to pin point and to say that the particular accused caused particular injury to Dukhi Chamar leading to his death. In such a situation and in absence of direct evidence conviction of the appellants under Sec. 302 of the Code simpliciter does not appear to be a proper application to the case. Even under Sec. 313 of the Code of Criminal Procedure, the court has asked appellant Harinath Chamar to explain the evidence against him that he and Teju cut the deceased with Garasa and Ballam and this is obviously wrong as except one of the witnesses there is no evidence that any of the accused was carrying any weapon as Ballam. Question put to appellant Teju Chamar is also the same. In other words, I wish to convey that the court did not put specific question that it was appellant Teju Chamar and appellant Harinath Chamar individually, who caused the death of Dukhi Chamar. 20. Thus, to conclude I find and hold that it is a case, in which evidence is not worth acceptance. Some occurrence did happen, but it happened in darkness. From the evidence. I could not get the correct picture of the actual happening. A court is not supposed to build up any new theory to bring the rope round the neck of the accused. The task is always there on the prosecution to prove its case. It has to be seen how far the prosecution could discharge its onus. In the present case from the evidence, as discussed above, I am of the view that the prosecution failed in completing its task and therefore, the case must fail. Judging the case from this angle. I find that each one of the witnesses has very much faultered and their character is not above board for belief on the point of identification. As I have said in my discussion while appraising the evidence that it all happened in darkness of night and none could exactly see the assailants. In other words the culprits could not be identified. As I have said in my discussion while appraising the evidence that it all happened in darkness of night and none could exactly see the assailants. In other words the culprits could not be identified. Besides this the Dafadar P.W. 6 appears to have taken prime role and that it has been-argued by the Counsel for the defence that he built up a story and the witnesses have given evidence in tune with him. There is evidence to suggest that be took the leading role and even met the expenses of the witnesses, so much as, that the disclosure of the names of the accused was only after the arrival of Dafadar with police. In this background the enmity of these Chamars with, the Pandey-people becomes apparent which might be the cause of false implication of these appellants. In addition to it, the prosecution could not live adequate reasons to keep the investigating Officer out of the court which itself gives considerable doubt in the case, and causing serious prejudice to the defence. In these circumstances, I feel that even one of the accused is entitled to benefit of doubt and therefore, they deserve to be acquitted. 21. In, the result, the appeal succeeds, the accused persons are acquitted of the charge and the death reference is also discharged. P.S.Sahay, J. 22 I agree.