Judgment D.N.Prasad, J. 1. Both these two appeals have been heard together and are being disposed of by this common judgment as both the appeals arisen out of the same judgment passed by Shri Jeewan Tigga, the then 7th Additional Sessions Judge, Palamau in S.T. Case No. 211/1982 convicting and sentencing the appellants for rigorous imprisonment for life under Sections 302/34 of the IPC. 2. The case of the prosecution in brief as stated that on 21.9.1980 at about 7.30 p.m. accused Daud Minz had come to the house of the deceased Daya Dhan Tirkey and took him for Panchayati in presence of the informants aunt. The aunt of the informant and nephew of the deceased as well as Matiyas Munda went out of the house and when they reached near the paddy field, all the accused persons, who were present there and also armed with lathi, surrounded and assaulted with lathi to the deceased Daya Dhan Tirkey who fell down. The informant and Matiyas Munda claimed to have identified the accused persons in the light of torch and also proceeded to save the deceased Daya Dhan Tirkey but when the accused persons threatened them and chased to assault. Thereafter, the informant fled away and went to the village and informed the villagers about the occurrence. The villagers and the relatives of the deceased assembled at the place of occurrence and the villagers also identified the accused persons when accused Masidas Minz threatened them for dire consequences. It is further claimed that in the morning the Informant and the villagers went to the place of occurrence and found the dead-body of Daya Dhan Tirkey and thereafter the Informant lodged the First Information Report. The motive behind the occurrence alleged that there was some land dispute and at the instance of Ambika Bharti who had imposed a fine of Rs. 75/- in connection with illicit relationship of informant with Parmila, who is the daughter of accused Masidas Minz. Accordingly, FIR was registered against all the accused persons. The police investigated into the case and submitted charge-sheet. The case was committed to the Court of Sessions and all the accused persons appeared before the Court of Sessions. The charge under Section 302/34, IPC was framed against all the appellants, to which they have denied the allegation. 3. Accordingly, FIR was registered against all the accused persons. The police investigated into the case and submitted charge-sheet. The case was committed to the Court of Sessions and all the accused persons appeared before the Court of Sessions. The charge under Section 302/34, IPC was framed against all the appellants, to which they have denied the allegation. 3. The witnesses were examined in the lower Court and after hearing both sides and considering the evidence on record, the learned Court below convicted and sentenced the appellants in the manner, as stated above. 4. The defence case as alleged that accused persons have been falsely implicated in this case out of enmity and they have committed no offence. 5. Being dissatisfied with the judgment of conviction and sentence impugned, the appellants preferred the appeals on the ground that the learned Court below has committed error in convicting the appellants without weighing the evidence on record properly as there is no eye-witness of the occurrence and the whole prosecution case has been concocted afterthought in order to harass the appellants. No doubt, the prosecution has to establish the charge against all the appellants beyond all reasonable doubts. 6. Altogether, nine witnesses have been examined on behalf of the prosecution in support of its case. Of whom, PW 2, Peyari Tirkey, PW 3, Phulmani Kujur, PW 6, Devid Arthur Kujur and PW 8, Ushman Azad have tendered by the prosecution and they have said nothing in respect of the prosecution case. 7. PW 1, Pavarent Tirkey is also not the eye-witness of the occurrence and according to her she had proceeded towards the place of occurrence on Hulla but she could not reach to the said place as she was threatened. She further deposed in para 2 that she reached to the place of occurrence in the morning and she came to know in the morning from Santosh and his father about the occurrence. PW 4, Anthan Tirkey claimed in his evidence that Santosh had informed him that his uncle was murdered and thereafter he proceeded towards the place of occurrence but he also failed to reach to the place of occurrence at the relevant time and he is also not the eyewitness of the occurrence. He further admitted in his cross-examination that he only heard sound of Masidas Minz at the relevant time, but he had not seen him. He further admitted in his cross-examination that he only heard sound of Masidas Minz at the relevant time, but he had not seen him. PW 5, Santosh Tirkey, the informant stated that the appellant, Daud Minz had come to his house and thereafter he took his uncle Daya Dhan Tirkey for attending meeting. He further stated that his aunt told him to attend the meeting and also to see as to why his uncle was taken away and thereafter he along with Matiyas went there and saw that the appellants are assaulting Daya Dhan with lathi and he claimed to have identified them in the light of torch but he further admitted that he was threatened to be killed and so he fled away towards the village and thereafter he along with villagers went to the place of occurrence but he could not reach there as Masidas Minz was threa-tening them. But, he clearly admitted in his evidence that he was not present at the time when Daud Minz had come to the house to call Daya Dhan and it was his aunt who narrated about the said fact. According to him, he had deposed before the police that he had identified the appellants in the light of torch. 8. It may be mentioned here that the Investigating Officer has not been examined in the case and as such the said fact has not been substantiated. PW 5 also admitted that he cannot say as to who gave lathi blow to the deceased. He had seen the dead-body but there was no blood woozing out at the relevant time. 9. PW 7, Matiyas Munda claimed to have identified the appellants who were assaulting Daya Dhan Tirkey with lathi. But, he cannot say as to who assaulted the deceased with lathi. He further admitted that he had already left the place of occurrence before Santosh (the informant). 10. PW 9, Mital Mahto, the Chowkidar stated that he was informed about the death of Daya Dhan Tirkey on the next morning by Santosh Tirkey and thereafter he went to the place of occurrence and found the dead-body of Daya Dhan Tirkey where appellant, Masidas, the appellant claimed to have murdered Daya Dhan, as he had come there to commit theft of maize and Masidas has not disclosed the name of other appellants. According to him, the dead-body was lying in the field of maize belonging to Masidas. 11. No any other witness examined on behalf of the prosecution. The appellants were examined under Section 313, Cr PC and they had denied allegation. 12. Obviously, neither the Investigating Officer nor the doctor has been examined on behalf of the prosecution. As noticed above, it is clear that PW 1 and PW 9 can also be said to be hearsay witnesses and they cannot be the eyewitness on the point of occurrence. PW 5, the informant and PW 7, who claimed to have gone at the place of occurrence at the relevant time are also not specific and corroborative in their deposition. Both of them admitted to return to the village at the relevant time and again they along with villagers went to the place of occurrence where they were not allowed to reach to the place of occurrence. In this way, their evidence on the point of occurrence does not appear to be convincing and reliable, rather the evidence is very shaky and contradictory. 13. The learned Counsel appearing for the appellants submitted that not a single villager supported the prosecution case and the evidence of PWs 5 and 7 are also contradictory and so their evidences cannot be relied upon and the lower Court has not considered the infirmities and discrepancies found in their evidence. It is further argued that the doctor has also not been examined in this case and so the ocular evidence as claimed has not been corroborated or supported by medical evidence, as well as the Investigating Officer has also not been examined in the case and due to which the appellants case has seriously been prejudiced. It is also argued that the charge was framed against eleven accused persons under Sections 302/34, IPC, but four of them have already been acquitted and there is nothing specific against any of the appellants for causing lathi blow to the deceased at the material time of occurrence. It has further argued that the occurrence said to have been taken place in the night and the Informant and PW 7 claimed to have identified the appellants in the light of torch but the said torch has not been brought on the record. The submissions of learned Counsel are well founded, which must prevail. 14. It has further argued that the occurrence said to have been taken place in the night and the Informant and PW 7 claimed to have identified the appellants in the light of torch but the said torch has not been brought on the record. The submissions of learned Counsel are well founded, which must prevail. 14. It is apparent that eleven accused persons were charged for the offence under Sections 302/34, IPC of whom four accused namely Markash Minz, Prakash Khakha, Philman Tigga and Guddu Oraon have been acquitted by the learned Sessions Judge. As noticed above, it has already been discussed that there is no specific allegation against any of the appellants for playing role at the time of occurrence or causing lathi blow to the deceased. The Apex Court in the case of State of West Bengal V/s. Vindu Lachmandas Sakhrani alias Deru, 1994 Cri LJ 919 (SC), observed that "both husband and wife were charged with an offence under Section 302 read with Section 34, IPC. The charge which was based on the common intention of two failed with acquittal of the husband and there being no charge under Section 302, IPC simplicitor against the wife, she could not be convicted." In the instant case, there is general allegation about assault by lathi by all the accused whereas four accused have already been acquitted. Without specific overt act against any of them for playing role in the occurrence excepting a bald, vague and general statement, in such situation the conviction of the appellants cannot be sustained. 15. I have already discussed above that neither the Investigating Officer nor the doctor has been examined in the case and none of the villagers supported the prosecution case in any manner, except PWs 5 and 7 who claimed to have seen the occurrence at the first instance and again they returned back to the village and later on again they rushed to the spot, but in the second time they were not allowed to see the occurrence. Such story as propounded by both the witnesses does not appear to be probable and convincing in absence of any other independent witness to support the said story. Examination of Investigating Officer, particularly, in a murder case becomes essential when there is contradiction in the deposition of eye-witnesses who are also in inimical terms from before. Such story as propounded by both the witnesses does not appear to be probable and convincing in absence of any other independent witness to support the said story. Examination of Investigating Officer, particularly, in a murder case becomes essential when there is contradiction in the deposition of eye-witnesses who are also in inimical terms from before. In the instant case, the Investigating Officer has not been examined which also causes the appellants case prejudiced. Apart from this, the Doctor has also not been examined due to which the medical evidence could not be tested in the Court. The occurrence said to be taken place in the night and the torch by which the witnesses claimed to have identified has not been produced nor brought on the record which makes the whole story of identification in the night doubtful as a result of which the appellants should have been given benefit of doubt. Thus, in my view, the learned Court below committed error in convicting the appellants. 16. For the reasons stated above, coupled with the evidence on record, it is clear that the prosecution has utterly failed to establish the charges against all the appellants beyond all reasonable doubts. In the result, the judgment of conviction and sentence passed by the learned Sessions Judge is fit to be set aside. Hence, I find merit in the appeals and both appeals being Cr. Appeal No. 303 of 1989(R) and 346/89(R) are accordingly allowed. The judgment of conviction and sentence passed by the learned Sessions Judge is hereby set aside. The appellants, who are on bail, are discharged from the liability of the bail bonds. R.N.Sahay, J. 17 I agree.