Judgment Ram Naresh Thakur, J. This Death Reference and the four criminal appeals arise out of the same judgment and, therefore, with the consent of all the parties, they have been heard together and are being disposed of by this common judgment. 2. Shri R. D. Roy, 1st Additional Sessions Judge, Sitamarhi, has made this reference under section 366 (l) of the Code of Criminal Procedure for confirmation of the death sentence awarded by him to condemned prisoners Badri Mian and Bacha Paswan, in Sessions Trial No. 29 of 1985/26 of 1985. All the seven accused persons, who were put on trial in the aforesaid case and convicted for various offences, have preferred Cr. A. 48 of 1987 from jail. Three regular criminal appeals have also been filed, namely, (J) Cr. A. 50 of 1987 by two of the convicts Chhotka Paswan and Nathuni Sah; (2) Cr. A. 68 of 1987 by the two condemned prisons Badri Mian and Bacha Paswan and (3) Cr. A. 88 of 1987 by the remaining three convicts Awadh Sah, Ram Ekbal Rai and Jugal Rai. Since regular appeals have been preferred by the convicts and the cases of all the appellants of Cr. A. 48 of 1987 from jail are covered by those appeals and they are properly represented by different counsels, the appeal from jail has become redundent. 3. All these appellants had been convicted under section 364 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life. Badri Mian and Bacha Pas wan have been further found guilty of an offence under section 302 of the Indian Penal Code and each of them has been sentenced to death to be hanged by neck till dead and rest of the appellants namely, Jugal Rai, Nathuni Sah, Awadh Sah, Ram Ekbal Rai and Chhotaka Paswan have been convicted under section 302/34 of the Indian Penal Code and they have been sentenced to undergo rigrorous imprisonment for life under this count as well. All the appellants have been further' found guilty of an offence under section 201 of the Indian Penal Code and each of them has been sentenced to suffer rigorous imprisonment for seven years. All the sentences have been directed to run concurrently. 4. The facts leading to these appeals and the death reference can be narrated in a short compass like this. All the sentences have been directed to run concurrently. 4. The facts leading to these appeals and the death reference can be narrated in a short compass like this. In the night between 15th and 16th July, 1983, Rameshwar Prasad was sleeping on his bed at his darwaja. He was dafadar of the circle. Chowkidar Tuna Main (P. W. 6) of village Bhalahi was also sleeping in the sahan of the darwaja of Rameshwar Prasad along with Suresh Ram (P.W. 3) who happened to be the servant of Rameshwar Prasad. At about midnight appellant Jugal Rai armed with gun, Ram Ekbal Rai, Awadh Sah and Bacha Paswan armed with gun, Brahmadeo Paswan, chhotaka Paswan Ram Kinkar Rai, Lakshmi Paswan along with three four other persons came there. The appellants other than appellants Jugal and Bacha were also armed with lathi, garasa and bhala. As soon as the aforesaid appellants came they asked the Dafadar to accompany them as the police party had called him at Bhasar. P.W.6 in the flash of his torch light could identify Brahmdeo Paswan, Chhotaka Paswan, Ram Kinkar Rai, Lakshmi Paswan Ram Ekbal Rai, Jugal Rai and Awadh Sah out of them. As soon as Rameshwar Prasad (hereinafter referred to as the Defadar) came out with Jhola, lathi and torch, appellant Jugal Rai pressed his gun at him. P.W. 6 stated that he would also accompany the Dafadar on which Jugal Rai told him that if he would go, he would be shot and out of fear. P.W. 6 kept quiet. Thereafter, the appellants and their companions took away the Dafadar P. W. 6 then woke up the family members of the Dafadar by knocking at their doors. In the meantime, Bhuneshwar Prasad (P.W. 17) brother of the Dafadar, also came. P. W. 6 told Bhuneshwar Prasad and other members of his family that he had identified the aforesaid appellants (except Badri and Nathuni) in his torch-light who had taken away the Dafadar. Bhuneshwar Prasad (P. W. 17) also told him that he had identified Bacha Paswan, Brahmadeo Paswan, Chhotaka Paswan, Ram Kinker Rai, Lakshmi Paswan, Ram Ekbal Rai, Jugal Rai and Awadh Sah in his torchlight On hulla P.Ws. 1,4,5, 8, 9, 11 and 18 besides others came to whom he (P.W.6) narrated the aforesaid facts and also told them the name of the person whom he had identified. 1,4,5, 8, 9, 11 and 18 besides others came to whom he (P.W.6) narrated the aforesaid facts and also told them the name of the person whom he had identified. In the night when P. W. 6, wanted to search for the Dafadar the villagers asked him not to do so as the miscreants were with. Therefore, next morning P. W. 6 started searching the Dafadar with village people but the Dafadar was not traced out. Ultimately, at 6 P. M. on 16th July, 1983, P.W. 17 went to the police station and made statement which was recorded by P.W. 19 Sudbir Chandra Jha who was officer-in-charge of Bathnaha police station on that date, and on the basis of which a regular case under section 364 of the Indian Penal C0de was instituted P. W. 19 took up the investigation. He went to the place of occurrence in the same night and searched for the aforesaid accused persons including the appellants but they were not found. On 18th July, 1983, one under-wear was handed over to P. W. 19 by the wife of the Dafadar. 5. On 3rd August, 1983, he (P.W. 19) found a headless dead body in ankle deep water in river Khirohi. The dead body was wearing an under-wear. The informant and others identified the headless dead body to be of Rameshwar Prasad. After holding inquest over the headless dead body, the dead body was sent for post-mortem examination. 6. On 16th September, 1983, some persons were arrested by the officer-in-charge of G. R. P. S., Sitamarhi, with looted articles and gun. They also made confession. On getting this news P.W. 19 went to Sitamarhi and found that the officer- in-charge of• G. R. P. S. was carrying Badri Mian and Nathuni Sah on a jeep to Bajpatti. There P. W. 19 recorded the confessional statement of Badri Mian and Nathuni Sah. Badri Mian had told him that he had cut the head and buried the same under the ground in Siswani of Madhuban by the side of river Adhwara. Both these two appellants took him to the said Siswani and at their instance a body less head was dug out from beneath the earth. The said head was identified to be the head of the Dafadar. After holding inquest over the head, he sent the head to Shree Krishna Medical College Hospital, Muzaffarpur. Both these two appellants took him to the said Siswani and at their instance a body less head was dug out from beneath the earth. The said head was identified to be the head of the Dafadar. After holding inquest over the head, he sent the head to Shree Krishna Medical College Hospital, Muzaffarpur. After completing investigation, P.W. 19 submitted chargesheet against these appellants. It is further said by the prosecution that the appellants are professional criminals and the Dafadar used to help the police in getting them arrested. Therefore, they were annoyed with him and Bacha Paswan had developed enmity with the Dafadar and for these reasons, the Dafadar was abducted and killed. 7 Ultimately, all these appellants were put on trial before the court of session where 22 witnesses were examined on behalf of the prosecution. The appellants denied the allegation and pleaded their innocence. Their further defence appears to be that they have been falsely entangled in this case at the instance of the police. After considering the entire evidence, the learned trying court found the prosecution case well-established and, therefore, convicted the appellants and sentenced them as stated above. 8. Learned counsels appearing for the appellants have vehemently argued that the evidence of P.Ws. 6, and 17 should not be accepted as their statement is tainted and totally false. There was also long delay in lodging the case. Their further argument is that P.W. 19 did not investigate the case properly and impartially, and the so-called confessional statement of appellants Badri Mian and Nathuni Sah was not voluntary. According to them, the prosecution evidence on the point of identification of the headless dead body and the head is too weak and absurd to rely. 9. Admittedly, there is no eye-witness on the point of murder. The evidence of P. Ws. 1,4, 5, 6, 7, 8,9, 17 and 18 are on the point of abduction of the deceased P. W. 15 has come to speak On the point of recovery of the head and P.W. 2 is on the point of recovery of the headless body P. Ws. 20, 21 and 22 are doctors. P. Ws.3, 10 and 16 have been tendered. P. W. 13 is the Assistant Sub Inspector of Police who took out the headless dead body from the bed of the river P.W. 19 is the investigating officer and P. Ws. 20, 21 and 22 are doctors. P. Ws.3, 10 and 16 have been tendered. P. W. 13 is the Assistant Sub Inspector of Police who took out the headless dead body from the bed of the river P.W. 19 is the investigating officer and P. Ws. 11, 12 and 14 are formal witnesses. 10 The occurrence of abduction is alleged to have taken place at midnight of 15th/16th July, 1983, and the first information report was recorded at 6-30 P. M. on 16th July, 1983. From the first information report it appears that the distance between the police station and the place of occurrence is nine kilometers but P.W. 5 has said in paragraph 17 of his deposition that the police station is at a distance of three kilometers from his house. P. W. 6 is a Chowkidar. Some explanation has been offered for the delay in holding the case. It has been stated by the prosecution that in the night no body came out due to fear and the next day the members of the prosecution party remained busy in searching out the deceased. When the deceased was not traced out till evening of the next day, the informant went to the police station and lodged the case. The explanation is not at all convincing and reasonable. P. W.6, who claims to be an eye witness of abduction was a chowkidar. The informant has also acted as Ebji Dafadar. According to the prosecution evidence itself the deceased was taken out at the point of fire-arm and when P. W. 6 wanted to accompany, he was threatened to death. It has also come in evidence that the appellants were variously armed. In that situation it was natural to think that the appellants had taken away the deceased for the worst. But still no attempt was made to send any information to the police to come and help in rescuing the deceased. The informant (P.W.17) has very clearly stated in paragraph 34 that in the night of occurrence he did not give any information any where and in the morning also he did not give information at any place. 11. But still no attempt was made to send any information to the police to come and help in rescuing the deceased. The informant (P.W.17) has very clearly stated in paragraph 34 that in the night of occurrence he did not give any information any where and in the morning also he did not give information at any place. 11. The motive as alleged in the first information report is that the deceased used to help the police in arresting the culprits of Bhalaha, Bhalahi and Basaha and as a result thereof the appellants had hatched up a conspiracy against him with an intention to kill him. It is further mentioned in the first information report that Baldeo Paswan of Bhalaha was also a bitter opponent of the deceased and the informant had suspicion that Baldeo Paswan might have instigated the appellants to kidnap the Dafadar. In his evidence in court the informant (P. W. 17) has said that the deceased used to help the police in getting the miscreants arrested and the deceased had also quarrel with Brahamdeo and appellant Bacha Paswan on account of warrant etc. Three to four days before the occurrence appellant Bacha Paswan had also threatened the deceased, but this fact is not mentioned in the first information report nor is it mentioned therein that due to issuance of warrant of arrest against him, Bacha Paswan was annoyed with the deceased. The informant (p. w. 17) has admitted that he had no dispute with any of t be accused persons, In Paragraph 44 he has deposed that he does not remember if in the year 1972 he had filed a case under section 379 of the Indian Penal Code against accused Bacha Paswan, father of accused Chhotaka Paswan and others which was still pending. 12. P. W. 19, the investigating officer, has said in paragraph 18 that the accused persons are professional criminals and the Dafadar used to help the police in getting them arrested. According to this witness, Bacha Paswan had developed enmity with the Dafadar since three or four days before the occurrence but he has not given details of any case in which these appellants were involved and warrants of arrest had been issued against them Of course, P.W. 19 n as not been. According to this witness, Bacha Paswan had developed enmity with the Dafadar since three or four days before the occurrence but he has not given details of any case in which these appellants were involved and warrants of arrest had been issued against them Of course, P.W. 19 n as not been. cross-examined on this point, but it is the genesis of the prosecution case that these appellants ace criminals, they used to be arrested and warrants used to be issued against them at the instance of the Dafadar and that is why he was abducted and done to death by them. This is one of the main circumstances on which the prosecution wants to rely. Therefore, it was for the prosecution to prove this fact. Whether the accused persons were arrested earlier in any case and whether warrants were issued are matters of record and could have been proved by the prosecution to establish that actually these appellants had earlier been arrested in some other cases and warrants were also issued against them and they might have suspicion that it was this deceased who was at the root of their arrest and issuance of warrants. But that has not been done for reasons best known w the prosecution. 13. P.W. 13, Wasi Ahmad, an Assistant Sub-Inspector of Police, was posted at Bathnaha police station during the relevant period. He has said that the accused persons of this case were being searched in some cases of dacoity and the Dafadar Rameshwar Prasad used to help in their arrest. But in cross-examination he has said that he was not the investigating officer in the case's in which these accused persons were being searched and he had not given any warrant of arrest to the Dafadar for execution nor had he given any command to the Dafadar to arrest these accused persons. According to him, no sanha was recorded in respect of the at given to the deceased nor was any legal action taken. He has admitted that he did not take any step far the safety of Rameshwar Prasad. 14. It has come in evidence that the night was dark and there was complete darkness at the time of occurrence . The chowkidar (P.W. 6) and the informant (P W 17) have claimed that they identified the culprits in the flash of their torches. 14. It has come in evidence that the night was dark and there was complete darkness at the time of occurrence . The chowkidar (P.W. 6) and the informant (P W 17) have claimed that they identified the culprits in the flash of their torches. The investigating officer (P.W. 19) has admitted in paragraphs 28 and 33 of his evidence that there is no entry in the case diary about the fact that Tuna (P W 6) and the informant Bhuneshwar Prasad had showed him the torch, P. W. 6 has said that he had gone to the police stati0n along with the informant when the first information report was lodged but he did not hand over the torch with which he had identified the cu1prits to the police officer at the police station at that time. He (P. W. 6) claims to have shown the torch subsequently but he did not remember as to when it was shown to the Daroga, and he kept torch with himself after showing it to the investigating officer. There is, however, no paper to indicate that P. W 6 had produced the torch before the investigating officer and the investigating officer left it with him to be• produced in court whenever required. 15. Let us now consider the oral evidence on the point of abduction. P W. 6 is the chowkidar who claims to be an eye witness of abduction, He was sleeping in the sahan of the house of the deceased Dafadar with Suresh Ram (P.W. 3) and the Dafadar according to him, was sleeping inside a room on a Palang with a mosquito curtain over it. In his examination-in-chief he has said that when the appellants came, Nathuni Sah asked the Dafadar to accompany as the police party had called him at Bhasar, but subsequently, in-cross-examination, he has said that by mistake he named Nathuni to have, said the aforesaid fact. He did not identify appellants Nathuni Sah and Badri Mian in the mob, He wanted to accompany the Dafadar but he was thereatend. Therefore, he stayed there quietly. He did not identify appellants Nathuni Sah and Badri Mian in the mob, He wanted to accompany the Dafadar but he was thereatend. Therefore, he stayed there quietly. In cross-examination he has admitted that Andharia duty was in progress for the last six to seven days In Andharia duty, in the preceding nights, he and the Dafadar used to go on patrolling duty in his viillage and in surrounding villages, and after performing such duty he used to return to his own house. He used to go on Andharia duty at about 11.30 P M and used to return at 2•30 A.M. In the night of occurrence, he and the Dafadar had Andharia duty. He has his own house and has also space to sleep there. He has admitted in-cross-examination that when dacoits took away the Dafadar at the point of gun he understood that they would commit some wrong with him but still he did not take any step to send information to the police station to see that the Dafadar was rescued. It is also surprising that though he had night duty and at the time of Occurrence he should have been on patrolling duty, but he was sleeping in the sahan of the informant's house. Similarly, it is all the more strange that the Dafadar who was also supposed to be on duty, was sleeping on a Palang in one of his rooms under mosquito curtain. He has said that he had stated to the investigating officer that he had asked the villagers to go to search the Dafadar but they replied that since the accused persons were armed with gun they would not go for search. P.W. 19, the investigating officer, has, however, said that he has not mentioned in the diary that Tuna stated that he had asked the villagers to go to search but they refused to go as the criminals had gun. 16. Another eye witness of abduction is P.W. 17, the informant himself. He is the brother of the deceased. He was sleeping at the time of occurrence at his Bathan which is at a distance of about 200 Yards from his house. On hearing hulla, he proceeded towards his house and saw his brother coming ahead being followed by these appellants. He also does not name Nathuni Sah and Badri Mian amongst them. He saw them in his torch light. On hearing hulla, he proceeded towards his house and saw his brother coming ahead being followed by these appellants. He also does not name Nathuni Sah and Badri Mian amongst them. He saw them in his torch light. He enquired from them as to where he was taking his brother on which appellants Bacha Paswan and Jugal Rai threatened him to go away otherwise he would be shot down. Thereafter, he went to hi8 house and learnt every thing from Tuna (P.W. 6). In that night, due to fear, he did not go to search his brother. On the next morning the Dafadar was searched till evening and then he went to the police station along with P.W.6 and lodged the case. He also speaks about motive. In cross-examination, he has admitted that he knew from three to four days prior to the occurrence that appellant Bacha Paswan had threatened the deceased but he did not remember whether he got it mentioned in the first information report. Subsequently, however, he said that he got it recorded. He also did not remember whether he got it recorded in the first information. report that when he saw his brother going, being accompanied by the appellant., he enquired as to where they were taking him on which he was threatened. He got recorded in the first information report that Tuna disclosed the names of these appellants to have been identified by him. He also got it recorded therein that the village people, due to fear, did not go to search in the night He also did not remember, whether he got it recorded in the first information report that Bacha Paswan had dispute with the Dafadar on account of warrant. These statements are not mentioned in the first information report. He has clearly stated that he did not give any information about the abduction either in the night or in the following morning. He also admits that the night was a dark one. He heard the sound of weeping at the baithka and then he proceeded. He had filed a case as complainant under section 379 of the Indian Penal Code against Bacha Paswan and Kishuni Paswan father of Chhotaka Paswan but he did not know whether the case was still pending. 17. He also admits that the night was a dark one. He heard the sound of weeping at the baithka and then he proceeded. He had filed a case as complainant under section 379 of the Indian Penal Code against Bacha Paswan and Kishuni Paswan father of Chhotaka Paswan but he did not know whether the case was still pending. 17. The evidence of these two eye witnesses on the point of abduction does not inspire confidence P.W. 6 was supposed to be on Andharia duty in the night of occurrence but he claims to be sleeping at the sahan of the informant's house. Even the deceased was sleeping inside his room under a mosquito curtain though P.W. 6 has admitted that prior to the night of occurrence they used to do Andharia duty. No explanation has been offered as to why in the night of occurrence they had not set out for duty. According to P. W. 6 himself, another chowkidar also used to accompany them but that chowkidar is not a witness in this case. P.W. 6 has his own house but he was not sleeping at his house. In examination-in-chief he stated at the first instance that it was Nathuni Sah who asked the deceased that be was being called by the police official but subsequently, on court question, he admitted that by mistake he had named Nathuni Sah. P. W. 17 the informant was sleeping at hi. Bathan and when he heard weeping sound he started for his house. According to the evidence of P.W. 6, after the criminals left the place of occurrence with the deceased, he knocked the door and then the inmates got up and could learn about the occurrence. There fore, the inmates must have started weeping when they knew about it from P. W. 6. In the circumstance, it does not look probable that the informant (P. W. 17) would have seen the appellants going with the deceased. 18. Another peculiar aspect of the case is that P.W. 6 being the chowkidar and P. W. 17 who had also acted as Dafadar for some time, did not send any information to the police station till the evening of the next day. 18. Another peculiar aspect of the case is that P.W. 6 being the chowkidar and P. W. 17 who had also acted as Dafadar for some time, did not send any information to the police station till the evening of the next day. They have admitted that they knew that the criminals had taken away the deceased for the worst but still no information was sent to the police for taking action to rescue the deceased. The explanation given by P.W. 6 by P.W. 17 that villagers did not allow them to search in the night is not at all convincing and h too belated. This was, however, never stated earlier. 19. P. W. 5 is the son of the informant. He does not say that he learnt the names of the appellants from his father rather he has said that he learnt their names from the chowkidar (P.W. 6). P. W. 7 has said that he saw 10 to 12 persons going towards south but he did not question them due to fear. On hearing the sound of weeping he went to the place of occurrence and then learnt about the occurrence. His house is just in the west of the house of the informant. He did not identify any of the criminals. Similarly, P. W. 8 also did not identify any of the criminals. P. W. 18 is the wife of the deceased. She got up when Tuna knocked the door and then she came out and learnt about the occurrence. 20 As regards the point of identification by torch, it has already been discussed above. Suffice it to say that it has come in evidence that it was dark when the crime was being committed and P.Ws. 6 and 17 claimed to have identified the appellants in the flash of their torches. But those torches were not seized by the investigating officer. 21. On the question of recovery of the dead body, there is the evidence of P. Ws. 2, 5 and 19, P W. 2 is the son of the informant. On 2nd August, 1983, he had gone with the officer in-charge of Bathnaha police station to identify a dead body. He went to the Charan of Khirohi river and found a dead body in ankle deep water of the river. It was a headless body with an under wear on the person. On 2nd August, 1983, he had gone with the officer in-charge of Bathnaha police station to identify a dead body. He went to the Charan of Khirohi river and found a dead body in ankle deep water of the river. It was a headless body with an under wear on the person. The flesh of hand and foot was decomposed. The bone of chest was some what raised. As the bone of chest was raised, the dead body was identified by his aunt; father and brother to be of the Dafadar. In paragraph 6 he has said that the Sub Inspector of Police had come to call him and he had told that it was the dead body of the deceased. P W. 5 had also gone to village Kumhrauli to identify the dead body and he identified the dead body to be of the Dafadar. 22. P. W. 28 is the wife of the deceased. She has said that Dafadar Rameshwar Prasad was wearing white Dhoti, white Ganji and yellow Doria under-wear at the time when he was kidnapped. There were• two under-wears; one was at home and the other was worn by him. She went to identify the dead body which was recovered from the river and she identified the same from the under-wear and from the built of the body. She has further said that she had herself tied the knot of the under-wear. The other under-wear which was at the house was handed over to the investigating officer which is Exhibit I/l. She has also said that her husband used to do Andharia duty in the night. P. W, 19 has said that he examined Ramjyoti (P. W. 18) on 16th July 1983, but she did not give the underwear on that day and she gave it to him on 18th July, 1983 for which he did not prepare any production or seizure list as he was ignorant of it. 23. P. W. 21 Dr. Akhilesh Kumar Verma conducted initial medico legal examination on the headless dead body of the deceased on 4th August, 1983. According to him, the headless body, measuring from fifth carvical vertebrae to heal 4' 9" was in highly decomposed state and adipocerous changes were found on abdomen, front of both thighs, chest, shoulder, scrotum and on both buttocks and sweetish disagreeable odour was coming out from the b0dy. According to him, the headless body, measuring from fifth carvical vertebrae to heal 4' 9" was in highly decomposed state and adipocerous changes were found on abdomen, front of both thighs, chest, shoulder, scrotum and on both buttocks and sweetish disagreeable odour was coming out from the b0dy. Tae bead and portion of neck up to cervical vertebrae was found absent. The sixth cervical vertebras showed a cut mark. The tissues In the neck were found in state of high decomposition. The shoft tissues and arm, forearm were also in state of high de-composition. The bones were found bare. Few decomposing ligaments were found in tae joints. The skin over few fingers and right thumb was found present. The chest and abdomen were found burst open from the front. All viscara in above both cavities had fused to form a mass of dark brown colour due to decomposition. This prostate gland, however, was found in identifiable state in pelvic cavity. Adipocerous formation was also found on the scrotum, penis and both sides of the buttocks. The stature of the dead body was calculated to be 6' 6". The dead body was of a man aged in between 45 to 50 from the date of the report (Exhibit 5) which is dated 5th September, 1983. 24. P. W. 30 is Dr. Vinod Kumar Mahta. On 17th Sepetember, 1983, he held post-mortem examination over the cut head of deceased Rameshwar Prasad which was identified by constable Karunakar Pathak. According to his evidence a decapitated head in decomposed stage from first cervical vertebrae was sent for post-mortem examination. Hair was present at skull and no injury was found on the face. Sixteen teeth were present in the lower jaw and one canine tooth was present in the upper jaw. The gum was decomposed and, therefore, opinion could not be given whether th0 tooth was broken or not. According to this witness the age of the persons was about 40 years and time elapsed since death was within two months. 25. According to learned counsel for the appellants the headless body and. The gum was decomposed and, therefore, opinion could not be given whether th0 tooth was broken or not. According to this witness the age of the persons was about 40 years and time elapsed since death was within two months. 25. According to learned counsel for the appellants the headless body and. the head which were sent for post-mortem examination were not of the same person because the doctor (P.W. 21), who held initial medico legal examination over the headless body, found that the Head and portion of neck up to fifth cervical vertebrae were absent and the sixth cervical vertebrae showed cut mark; whereas the doctor (P. W. 2), who conducted the post-mortem examination of the head, found the decapitated hood in decomposed stage from first cervical vertebrae. P. W. 4 has stated that the-deceased was a robust young man of medium height. The inquest report (Exhibit 1/3) also describes the dead body 10 be of medium height. But, according to the doctor (P. W. 21), the height of the man was estimated to be 6' 2". A man of 6' 2" height cannot be said in any way to be a man of medium height. Apart from this, the occurrence is alleged to have taken place in the night of 15th July, 1983, and the dead body which was headless, is (sic) alleged to have been recovered on 2nd August, 1983, where as the head was recovered after two months. The body was found under knee deep water in the bed of a river and the head was found from [beneath the earth. There is nothing on record to show that the head was buried under any cover. From the findings of both the doctors and the report (Exhibit 5) it was not possible to identify the bead and the dead body. P. W. 18, who is nobody else than the wife of the deceased, has said that he identified the body from the under wear and from the built of the body. This statement in itself goes to show that it was difficult for anyone to identify the dead body. The doctor conducting the medico legal examination on the' dead body has not said that he found any special feature on the body which might have been the mark of identification. This statement in itself goes to show that it was difficult for anyone to identify the dead body. The doctor conducting the medico legal examination on the' dead body has not said that he found any special feature on the body which might have been the mark of identification. So far the under-wear is concerned, the investigating officer (P. W. 19) has stated that on the first day when P.W. 18 was examined she did not produce any under-wear and on 18th July 1983, she produced the under-wear a pair of which was found on the dead body. No seizure list or production list was prepared thereof. In the first information report, which was lodged much after the time of kidnapping, no description of cloths has been mentioned except that he had jhola, Lathi and Muraitha on head, but that Muraitha has not been found any-where. P.W. 21 has said that chest and abdomen were found burst. In that situation it was difficult to say that-" Chhati Ki haddi Uthi Hui thi". Taking into consideration the medical evidence and the aforesaid facts, it becomes, doubtful whether the dead body and the head which were recovered, were of the deceased. 26. On the confession of appellants Nathuni Sah and Badri Mian, there is the evidence of P. Ws. 6, 15,17 and 19. P.W.6 has said that on being called by the Sub. Inspector of police he had gone to identify the head in Siswanti of village Madhuban. Three persons were present there. The Sub-Inspector of police was also there and he (S. I. Police) asked Badri Mian and Nathuni Sah "Where is the place about which you people had said". Then Badri Mian and Nathuni Sah told that the head was buried at this very place. At the instance of the Sub-Inspector of Police, people working there dug out the head from there. P. W. 15 was working in the field. He saw the police and three persons under handcuff. Bhuneshwar Prasad and chowkidar came and after their arrival the 8uh Inspector of police said: "Turn jo bateye the ki dafadar saheb ka sar gara hai, so kahan hai. Tab weydono bataya wah jagah jahan sar gara hua tha.!' He then dug the earth. He could not identify appellants Badri Mian and Nathuni Sah in dock. Bhuneshwar Prasad and chowkidar came and after their arrival the 8uh Inspector of police said: "Turn jo bateye the ki dafadar saheb ka sar gara hai, so kahan hai. Tab weydono bataya wah jagah jahan sar gara hua tha.!' He then dug the earth. He could not identify appellants Badri Mian and Nathuni Sah in dock. P. W. 17 has said that on 15th September, 1983, the Sub-Inspector of Police called him in village Madhuban. He went to Siswani and saw three persons under handcuff. The 5ub Inspector of Police asked Nathuni Sah and Badri Mian as to where they had buried the head of the Dafadar. Then Badri Mian and Nathuni Sah pointed out the place where the head was buried. P. W. 19 has said that on 15th September, 1983, criminals were arrested at G. R. P. Sitamarhi. He left for Sitamarhi. He saw Badri Mian and Nathuni Sah on a jeep being taken to Bajpatti. He recorded their confessional statement. In paragraph 13 he had said that Nathuni Sah also made confessional statement in respect of all these occurrences, i.e., regarding taking away, assaulting, cutting and burying of head. He (P. W. 19) has further said that Nathuni Sah and Badri Mian took him in Siswani of village Madhuban. Kailash Singh and Mohammad Muslim (P. W. 15 and 16) dug the ground of Siswani as pointed out by those two persons and a head was found there. Other witness except P. W. 19 have said that there were three accused persons on the jeep when the head was recovered, but P. W. 19 has said about Badri Mian and Nathuni Sah only. It is not known who was the third accused. On the point that Badri Mian and Nathuni Sah took P.W. 19 to the spot where the head was found buried, there is no other witness except P.W. 19. According to P. W. 19 Badri Main and Nathuni-Sah were arrested on 15th September, 1993, but the order sheet of the committing court shows that they were remanded in this case on 21st September,1983 P.W.17 has said that in Siswani the Sub Inspector of Police asked appellants Nathuni Sah and Badri Mian as to where they had buried the bead of the Dafadar. This statement of P. W. 17 creates doubt whether it were, these two appellants who took the Sub-Inspector of Police to the Siswani. This statement of P. W. 17 creates doubt whether it were, these two appellants who took the Sub-Inspector of Police to the Siswani. On careful consideration of the aforesaid evidence on the Point of recovery of the head, it becomes doubtful whether the head was recovered at the instance of these two appellants. These two appellants are also not named in the first information report. 27. The investigation of this case was done by P. W. 19 is the year 1983 and he gave his evidence in court in the- year 1986 but still he remembered many facts orally which does not appear to be probable. This does not speak well of him. 28. A careful consideration of all these facts the circumstances appalling is the case load to the conclusion that the occurrence might have taken place in a different way and the correct picture has not been brought before the court. In that view or the matter the appellant are entitled to get the benefit of doubt. 29. In the result, the appeals are allowed and the order of conviction and sentences passes against the appellants is set aside. The reference made by the 1st additional Sessions Judge. Sitamarhi, and the rule of enhancement issued by this Court in Criminal Appeal no. 48 of 1987 are discharged Let all the appellant, who are in custody, be set at liberty forthwith, if not wanted in some other case. Appellant no. 2 Nathuni Sah of Criminal Appeal no. 50 of 1987 is discharged from the liability of his bail bond. Abhiram Singh, J. I agree Appeal allowed. Reference discharged.