JUDGMENT Deoki Nandan Prasad, J. 1. This appeal is directed against the judgment of conviction and order of sentence passed by 2nd Additional Sessions Judge, Giridih in connection with S.T. No. 39 of 1986, whereby and whereunder the learned Additional Sessions Judge convicted the appellants under Section 396 of the Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for life. 2. Prosecution case lies in the narrow compass : that on 5.5.1985 in the evening the informant Rajendra Prasad Yadav alongwith his brother Arjun Yadav (deceased) was returning from Charki godown where they had gone to make payment and also to make payment to the labourers and when they reached near the demolished house of Nunu Singh then all the accused persons alongwith one Govind Raut and one unknown person came there and have surrounded them. Out of them, the appellants Ram Kumar Raut and Shyam Shankar Raut were armed with double barrel gun, Shankar Raut was holding a pistol in his hand, Jagdish Raut and Govind Raut were armed with lathi, Ashok Prasad was armed with farsa and Anil Prasad Yadav was having a sword whereas the unknown person was having a lathi in his hand. Accused Jagdish Raut demanded money from the informant upon which he stated that the money is with his brother Arjun Yadav. In the meantime, Jagdish Raut and Govind Raut caught hold the hands of the informant and Ram Kumar Raut and Shyam Sundar Raut caught hold of Arjun Yadav and demanded money whereas Arjun Yadav (deceased) told them that he had no money and thereafter Jagdish Raut ordered to kill him. Accused Ram Kumar Raut fired from his double barrel gun on Arjun Yadav which hit him on the chest and thereafter he fell down and thereafter accused Shyam Sunder Raut took out of Rs. 4510/- from the pocket of Arjun Yadav and Shyam Sunder Raut also fired upon Arjun Yadav. Ashok Raut and Anil Raut also were holding the hands (if Arjun Yadav at the time of incident. Shankar Raut also assaulted with the pistol on the mouth of Arjun Yadav due to which his teeth were broken. Ram Kumar Raut further threatened the informant that the entire family of the informant would be done, to death if any information is lodged to the police. Shankar Raut also assaulted with the pistol on the mouth of Arjun Yadav due to which his teeth were broken. Ram Kumar Raut further threatened the informant that the entire family of the informant would be done, to death if any information is lodged to the police. Arjun Yadav died at the spot and thereafter the accused and the unknown persons started to drag the dead body of Arjun Yadav whereupon the informant ran to the godown side raising alarm in order to get help to stop the appellants in taking away by dragging the dead body. Thereafter the informant with the help of labourers were able to stop the accused in taking away the dead body and they had left the dead body at a distance of 200 yards from the place of occurrence. It is alleged further that a wrist watch worth Rs. 600/- was also missing from the hand of the deceased. The informant alongwith labourers brought the dead body to his residence at village Baghlariya and the dead body was kept on a cot. The chowkidar Kartik Turi was informed and the other villagers had also assembled after hearing the hulla. During the night due to fear of the accused persons, the informant did not go to the police station but in the morning when the informant alongwith chowkidar were going to the police station to lodge the first information report then he found one bullet and also five cartridge at the place of occurrence which they had also produced at the police station. It is also alleged that the said money, which were looted away by the accused persons, was taken by the deceased to the godown for the purpose of making payment to the labourers. Because they could reach the godown at late hours of the evening and, therefore, no payment was made to the labourers on that day and they were returning from the godown. 3. Accordingly, the first information report was drawn up on the basis of the report of the informant and the FIR was registered under Section 396, IPC. The police investigated into the case and submitted charge-sheet against the appellants who appeared before the trial Court. Accordingly, charge was framed under Section 396, IPC against all the appellants, to which they pleaded not guilty. Witnesses were examined from both sides. The police investigated into the case and submitted charge-sheet against the appellants who appeared before the trial Court. Accordingly, charge was framed under Section 396, IPC against all the appellants, to which they pleaded not guilty. Witnesses were examined from both sides. After hearing both sides, the learned Additional Sessions Judge convicted and sentenced the appellants in the manner as stated above. On being aggrieved by the impugned judgment, the appellants preferred this appeal, 4. The informant being the eye-witness claimed to have accompanied his brother Arjun Yadav (deceased) and alleged that the accused persons armed with double barrel guns, sword, lathi etc. surrounded them and they demanded money from them and thereafter they killed his brother Arjun Yadav by causing injury with the double barrel gun. He also claimed to had identified the appellants in the light of torch. According to the informant, the appellants tried to drag away the dead body but he raised hulla and with the help of labourers he could have stopped taking away the dead body by the accused persons. 5. Altogether eight witnesses have been examined on behalf of the prosecution in support of its case. Of whom, PW 5 is the doctor, who held post mortem on the dead body of Arjun Prasad Yadav and found the following ante-mortem injuries : (i) Lacerated wound with charred margin in the upper part of front of abdominal wall of the size of 2- 1/2" x 2" x abdominal cavity. (ii) On opening the chest cavity the heart and both lungs were found lacerated. The chest cavity contained about 2- 1/2 pints of fluid blood. (iii) Lacerated wound with charred margin below the lower upper lip and on the right side chin of the size 2" x 1" x mouth cavity deep. The upper four teeth were broken on the right side. (iv) Lacerated wound with charred margin right side lower part of chin margins wound entered of the size 1/2" x 1/2" x 1/4". (v) Abrasion over middle of front of right elbow joint of the size of 3" x 2". (vi) Abrasion just below injury No. 5 of the size of 2" x 1". (vii) Multiple abrasion on left fore arm. (viii) Lacerated wound with scorch margin over left side of lower abdomen of the size of 1/2" x 1/2" x 1/4". (ix) Abrasion back of waist 3" x 2". (vi) Abrasion just below injury No. 5 of the size of 2" x 1". (vii) Multiple abrasion on left fore arm. (viii) Lacerated wound with scorch margin over left side of lower abdomen of the size of 1/2" x 1/2" x 1/4". (ix) Abrasion back of waist 3" x 2". (x) Multiple abrasions over left thigh and ankle. (xi) Multiple abrasions over right side of forehead. Sixteen pellets and one cover of cartridges were recovered from the body and handed over to the police in sealed cover. Injury Nos. 1, 2, 3, 4 and 8 were caused by gun shots and other by some hard and blunt substances. Death in her opinion was due to shock and haemorrhage as a result of injury No. 1 and 2. She proved the postmortem report (Ext. 1). She stated in her cross-examination clearly that injury No. 2 is the impact of injury No. 1. She has not found any post-mortem injury. She stated that no pellet was recovered from inside the mouth. According to her, injury Nos. 4 and 8 are not possible from close range firing and injury Nos. 1, 3, 4 and 8 are impact of four separate firing indicating four times separate firing. 6. PW 1 is the hearsay witness who stated that he came to know from the informant, Rajendra Prasad Yadav that his brother Arjun Yadav had been killed. He further stated that the informant narrated the incident in detail. He claimed to had gone to the place of occurrence in the night and brought the dead body in the house and it was kept in the angan. He further deposed that he alongwith the informant Rajendra Prasad Yadav, Idrish Mian and choukidar had gone to the police station and lodged the FIR, he also deposed in his cross-examination that labourers were there who helped in bringing the dead body to the house but he could not say the name of those labourers. 7. PW 2 is the father of the informant, who stated that he heard the sound of firing and when he came out and went to some distance then he saw the informant, Rajendra coming and he narrated the entire incident stating that Arjun Yadav has been killed by firing, he also named all the accused persons who participated in the assault. According to him, Arjun Yadav was found dead in the southern side of godown and there were injuries on his person. Rajendra gave out that accused persons demanded money from the deceased which was denied and thereafter he was killed. He staled in his cross-examination that he went running towards the place of occurrence at the godown after hearing the sound of firing. He further stated that labourers, namely, Hari Turi and Kanshi Ravidas also came there and they brought the dead body at his house. He was not present at his house when Arjun and Rajendra left the house and, therefore, he cannot say as to which of the cloths Arjun worn at the relevant time. 8. PW 3 and 4 have been tendered by the prosecution and they have not said anything about the prosecution Case. PW 6 is the informant, who claimed that as soon as they reached near the house of Nunu Singh, the accused persons namely Govind Raut, Jagdish Raut, Shyam Sunder Raut, Ram Kumar Raut, Shankar Raut, Ashok Kumar, Anil Prasad and one unknown person came there and surrounded them whereafter accused Jagdish demanded money on which he stated that money is kept with Arjun and thereafter accused Jagdish and Govind caught hold his hand and other accused Ram Kumar and Shyam Sunder Raut surrounded his brother and demanded money. It is further stated that when Arjun denied to hand over money, thereafter Jagdish and Govind ordered to fire shot and thereafter the accused Ram Kumar fired shot to Arjun Yadav who fell down and thereafter accused Shyam Sunder Raut also fired shot with his double barrel gun and then again Shyam Sunder Raut took out a sum of Rs. 4510/- and odd. from the pocket of his brother. There was also some change money. It is further stated that when his brother fell down, Shankar Raut assaulted on the teeth of the deceased with the back side of pistol. It is also stated that the accused Ram Kumar snatched away his torch light. He further stated that the accused persons, namely. Anil, Ashok and Shyam Sunder Raut as well as one unknown person started dragging and taking away the dead body of his brother when he went running to Charki godown and raised hulla. It is also stated that the accused Ram Kumar snatched away his torch light. He further stated that the accused persons, namely. Anil, Ashok and Shyam Sunder Raut as well as one unknown person started dragging and taking away the dead body of his brother when he went running to Charki godown and raised hulla. Thereafter, the labourers residing at the place of godown came there and thereafter the accused persons left the dead body at a distance of 200 yards from the place of occurrence and thereafter fled away. He further stated that he brought the dead body of his brother with the help of labourers to his house where he narrated the entire incident but he had not gone to the police station in the night. He also claimed to have narrated the incident to choukidar in the night. According to him, he went to the police station in the next morning alongwith Ram Bachhan, Idrish, Kartik Ram, choukidar and Kanshi Ravidas and lodged the FIR. He proved his signature and the signature of one Kuldeep Singh over the FIR Ext. 2 and 2/1. He admitted in his cross-examination in clear terms that accused Anil Raut is the resident of Giriyak, District Nalanda and the other accused persons are the residents of the same village where he has been residing, but admittedly the accused persons have not tried to conceal their faces at the time of occurrence, though admittedly they are known to the informant from before. 9. It may further be mentioned, at this juncture, that the informant claimed to had gone to the police station for lodging the FIR in the morning alongwith Idrish Mian, Kartik Ram. choukidar and Kashi Ravidas, but surprisingly enough to note here that none of these witnesses who can be said to be independent witnesses has been examined by the prosecution. 10. PW 1. Ram Bachan Raut has been examined in this case, who is a hearsay witness and is a close relative of the informant. It is stated specifically that the dead body was brought to the house with the help of labourers residing at the place of godown but non of the labourers has come forward or has been examined by the prosecution in this case to corroborate the said story. According to the informant, PW 6, the money amounting to Rs. It is stated specifically that the dead body was brought to the house with the help of labourers residing at the place of godown but non of the labourers has come forward or has been examined by the prosecution in this case to corroborate the said story. According to the informant, PW 6, the money amounting to Rs. 4510/-alongwith one paper lying on the upper pocket of the shirt of the deceased Arjun Yadav were looted away by the accused persons but the Investigating Officer, PW 7 clearly deposed that he had not seen any shirt wearing by the deceased, rather he was in Sando vest and he had also not found any piece of paper with the deceased (vide para 14) and, therefore, the story as regard to having money of Rs. 4510/- and odd in the upper pocket of the shirt of Arjun Yadav (deceased) became falsified. PW 2, the father of the informant already deposed that he was not present at the house when informant and his brother Arjun Yadav left the house and, therefore, he cannot say what cloth Arjun Yadav was wearing at the relevant time. PW 6 also admitted that there is a house of Nunu Singh and Lallu Pasi situated nearby to the place of occurrence but none of them has been examined on behalf of the prosecution. 11. It may be mentioned here that according to the informant, he was caught by Jagish and Govind at the relevant time, but admittedly Govind has not been sent up for trial as he was found to be innocent during investigation. Thus, the identification and presence of the informant at the place of occurrence also becomes very suspicious. It may further be mentioned that the informant claimed in his evidence that accused Shankar Raut assaulted Arjun Yadav with the back of the pistol on the teeth and mouth whereas the doctor who held post mortem, found the injury No. 3 causing in the mouth as being caused by gun shot, which itself contradicts the story of the informant about assault and the weapon used. The allegation as made out does not tally with the medical evidence. The allegation as made out does not tally with the medical evidence. According to him, with the help of labourers, he brought the dead body to his house and the cloths of the labourers were also stained with blood in bringing the dead body but no such cloth has ever been produced before the Investigating Officer to substantiate such story. According to him, Hari Turi and Kanshi Ravidas, the labourers were also alongwith him in bringing the dead body. Obviously, they have not been examined in this case by the prosecution. Non-examination of those independent witnesses itself makes the entire story doubtful. 12. PW 7 is the Investigation Officer, who claimed to had lodge the FIR (Ext. 3) and had visited the place of occurrence. According to him, the place of occurrence is situated near the dilapidated house of Nunu Singh at Kacchl Road. He found blood lying there but he also found blood in the field of Prem Yadav, which was situated east of the place of occurrence and that field was ploughed field. According to him, the village Baltharia is situated at a distance of one kilometer southern from the place of occurrence where the informant party and the accused persons have got their houses. The Investigating Officer claimed to had seized the blood stained earth but admittedly he had not sent the blood stained earth for chemical examination nor he had sent the said cartridges, said to have been seized or produced, for chemical analysis. He admitted in clear terms in para 11 of his cross-examination that he had not seen any sign of dragging at the place of occurrence. According to him, there was no shirt on the body of the deceased, rather he was wearing lungi and vest. He further admitted in para 14 of his cross-examination that the accused Shyam Sunder Raut was in jail custody from 3.5.1985 to 13.5.1985 in another case being G.R, Case No. 1597 of 1981 which was pending before Judicial Magistrate, Mr. B.B. Pandey. He also inquired in the hospital and found that accused Jagdish Raut was admitted as indoor patient in the hospital on 4.5.1985 and he left the hospital on 7.5.1985 which was evident from bed head ticket. He further deposed that Govind Raut was found to be innocent and he was not sent up for trial. 13. B.B. Pandey. He also inquired in the hospital and found that accused Jagdish Raut was admitted as indoor patient in the hospital on 4.5.1985 and he left the hospital on 7.5.1985 which was evident from bed head ticket. He further deposed that Govind Raut was found to be innocent and he was not sent up for trial. 13. PW 8 is a formal witness, who proved the fired cartridges which were lying at Malkhana. 14. No any other witnesses have been examined on behalf of the prosecution and as such the accused persons were examined under Section 313, Cr PC and they have denied allegation. 15. Three witnesses have also been examined on behalf of the defence. DW 1 stated that accused Shyam Sunder Raut had surrendered on 3.5.1985 in the Court of Shri B.B. Pandey, Judicial Magistrate in G.R. No. 1597 of 1981 when his father Jagdish Raut also came with him in the Court and he became sick at the relevant time and as such he was admitted in the hospital on 4.5.1985 as indoor patient in his presence and thereafter he was discharged on 7.5.1985. According to him, a Surrender petition was filed before the Judicial Magistrate in which accused Shyam Sunder Raut also put his signature. Both the case record of G.R. No. 1597 of 1981 and the bed head ticket in respect of Jagdish Raut have been brought on the record as Exhibits. 16. DW 2 is also a formal witness. DW 3 is an assistant in Giridih Jail who produced the Admission Register showing the admission of Shyam Sunder Raut. According to him, Shyam Sunder Raut son of Jagdish Raut admitted to jail custody in connection with T.R. No.406 of 1985 (G.R. No. 1597 of 1981) in the Court of Mr. B.B. Pandey and by the order of Mr. B.B. Pandey, Judicial Magistrate, he was remanded to the jail custody. He proved the endorsement over the said register. 17. From going through the case record of G.R. No. 1597 of 1981, which was pending before Shri B.B. Pandey, Judicial Magistrate. B.B. Pandey and by the order of Mr. B.B. Pandey, Judicial Magistrate, he was remanded to the jail custody. He proved the endorsement over the said register. 17. From going through the case record of G.R. No. 1597 of 1981, which was pending before Shri B.B. Pandey, Judicial Magistrate. Giridih in connection with Gama PS Case No. 65 of 1981, it appears from the order dated 3.5.1985 that a petition was filed before the Court praying therein to remand accused Shyam Sunder Raut which was allowed and accordingly the accused Shyam Sunder Raut was remanded to the jail custody and this fact has also been established as Shyam Sunder Raut had put his signature on the margin of the order-sheet dated 3.5.1985. Thereafter, it further indicates that Shyam Sunder Raut was produced in the Court on 13.5.1985 from the jail custody, which also finds support as he had signed in the margin of the said order-sheet. Thereafter, he was produced on 25.5,1985 in the Court and on that very date also he put his signature in the margin of the order-sheet. Again, he was remanded and thereafter he was produced on 6.6.1985. Further, it appears that a bail application was filed on 10.6.1985 on behalf of the accused Shyam Sunder Raut alongwith the vakalattiama and he was granted bail of Rs. 2000/- with two sureties of the like amount. 18. From perusal of the bed head ticket of Jagdish Raut, Ext. B, it appears that he was admitted as indoor patient in the hospital on 4.5.1985 but he left the hospital with his own accord on 7.5.1985. 19. Mr. T.R. Bajaj, the learned counsel appearing on behalf of the appellant Nos. 2 to 6 submitted that the learned trial Court committed gross error in convicting the appellants only on mere assumption and without weighing the evidence in proper manner. It is also submitted that evidence of single interested witness has not been corroborated either by any independent oral evidence or by the medical evidence as according to the informant deceased was also assaulted by Shankar Raut by the back of the pistol whereas the doctor who held post mortem found the injury on the mouth by fire arm. Thus, the whole story as propounded by the informant becomes falsified. Thus, the whole story as propounded by the informant becomes falsified. It is further argued that there is an allegation of firing by accused Ram Kumar Raut and Shyam Sunder Raut with their double barrel gun but the doctor who held post-mortem did not find such injuries in the manner as alleged rather the doctor found the four injuries caused by fire arm as the injury No. 2 said to be the impact of injury No. 1, hut there is no such allegation by the informant for causing four time firing and there is contradictions/discrepancies in the testimony of PW 6 (informant) and the medical evidence. The Doctor did not find any postmortem injury whereas there is a specific allegation that the dead body was dragged for about 200 yards from the place of occurrence. The absence of any post-mortem injury either on the back or any part of the body also falsified the whole prosecution case in the manner as alleged. It is further submitted that the entire prosecution case for an offence under Section 396, IPC becomes falsified and redundant when the Investigating Officer admitted in clear terms that there was no shirt found on the dead body of Arjun Yadav and he was found in lungi and vest, therefore, the question of looting away a sum of Rs. 4510/- and odd from the upper pocket of the shirt of the deceased is false and concocted and if there was no loot, the offence under Section 396, IPC cannot be attracted. It is further argued that several labourers said to have assembled at the place of occurrence and the dead body was brought to the house with their help and the cloths of labourers also stained with the blood but neither any of the labourers was examined by the prosecution nor any such cloth has been produced to indicate that actually such occurrence in the manner as alleged was ever occurred. Moreover, the alibi as pleaded by the defence on behalf of Shyam Sunder Raut and Jagdish Raut has fully been established with the documentary evidence but the lower Court ignored to consider those material evidence in proper manner. Moreover, the alibi as pleaded by the defence on behalf of Shyam Sunder Raut and Jagdish Raut has fully been established with the documentary evidence but the lower Court ignored to consider those material evidence in proper manner. It is further argued that the informant claimed to had identified Govind Raut also at the place of occurrence who said to have caught his hand during occurrence but surprisingly enough the police during investigation found him innocent and did not send him for trial showing clear indication that the presence of the informant or his identification as made by the informant is very suspicious and doubtful. 20. Mr. M.M. Banerjee, the learned counsel appearing on behalf of the appellant No. 1 submitted that the informant claimed to had gone to the police station alongwith Idrish Mian, Kartik Ram, Choukidar and Kanshi Ravidas but though they could have been competent witnesses on the point but have not been examined by the prosecution and as such the whole prosecution case falls under the ambit of suspicion and doubtful for which the appellants cannot be held responsible. It is further argued that admittedly Kuldeep Singh and one Rameshwar Ram were also present at the time of lodging FIR as they had put their, signature and LTI respectively over the FIR but they have also not been examined by the prosecution. It is further argued that doctor found injury Nos. 1, 3, 4 and 8 caused by gun shot but the allegation as made by the informant does not indicate about causing four injuries by gun shot. It is true that injury No. 2 is the impact of injury No. 1 as stated by the doctor but no explanation has been brought either by the informant PW 6 or other witnesses as regards to the other injuries caused on the person of the deceased as the prosecution has to establish the charge beyond all reasonable doubt and if a doubt is created about manner of occurrence or the allegation, the benefit will go in favour of the accused persons. Not a single arm said to have been recovered or seized from the possession of the appellants and even Govind Raut has been dragged falsely by the informant, who was let off by the police and the presence of the informant at the place of occurrence is doubtful. Not a single arm said to have been recovered or seized from the possession of the appellants and even Govind Raut has been dragged falsely by the informant, who was let off by the police and the presence of the informant at the place of occurrence is doubtful. The Investigating Officer though claimed to had seized blood stained earth but has not got the same chemically examined and admittedly no violence or any mark of dragging the dead body was found at the place of occurrence. Thus, the place of occurrence is also different and the actual place of occurrence has not been ascertained by the prosecution. It is also argued that the Investigating Officer found the blood stained at the field of Prem Yadav, which was ploughed field said to be 150 feet away in the southern side of the occurrence of which there is no explanation by the prosecution as to how the blood stained was found there and if the field was ploughed, there would have been violence mark of dragging which could not be found admittedly by the Investigating Officer and that too makes the entire prosecution case false. It is further argued that no any independent witness has been examined by the prosecution to corroborate the testimony of PW 6, the informant and there is no reason as to why accused person while committing dacoity have not concealed their faces when they were admittedly relative/known to the informant as they are co- villagers. It is also argued that the occurrence said to have taken place at 7 p.m. on 5.5.1985 and several persons said to have assembled at the house of the informant when the dead body was brought there but surprisingly enough as why the FIR was not lodged in the same night when the distance of police station was only 10 kilometers from his house and the Chowkidar was also present there and for which no cogent explanation has been assigned and the trial Court totally failed to consider all these material points and passed the impugned judgment illegally which cannot be sustained in the eye of law. 21. 21. Obviously, no any independent witness in this case has been examined by the prosecution though the informant PW 6 claimed to had lodge the FIR alongwith Idrish Mian, Kartik Ram, Chaukidar and Kashi Ravidas, who can be said to be independent witnesses but they have not been examined in this case. Furthermore, the informant claimed to had brought the dead body from the side of Charki godown in the same night with the help of labourers but none of those labourers has been examined to substantiate the prosecution case in any way. It has also been stated that when the dead body was brought in the night so many villagers/neighbours rushed to the spot to whom the informant claimed to had narrated the incident but not a single villager has come to corroborate this fact. The sole eye-witness being the brother of the deceased stated that gun shot injury was inflicted by accused Ram Kumar Raut and Shyam Sunder Raut whereas Shankar Raut had assaulted with the back side of his pistol in the mouth of Arjun Yadav (deceased) resulting his teeth were broken but the doctor found the said injury No. 3 caused by fire arm/gun shot. Moreover, the doctor, who conducted autopsy on the dead body of Arjun Yadav found four injuries caused by separate four gun shot of which there is no cogent and proper explanation given by the informant, who was present at the place of occurrence and that too makes the prosecution case doubtful. Apart from this the doctor has not found any post mortem injury when there is allegation that the dead body was dragged for about 200 yards. Had there been dragging of dead body for such long distance, there would have been post-mortem injury and that circumstance also goes against the prosecution story. Furthermore, PW 6 stated in the FIR that Ram Kumar Raut fired shot first as a result his brother Arjun fell down and died and thereafter Shyam Sunder Raut fired shot but he (PW 6) changed his version in his deposition and said that Ram Kumar Raut fired shot and he fell down and then Shyam Sunder Raut fired shot. The flinching statement of the informant (PW 6) further gives rise to conclude that his testimony is not trustworthy. 22. Apart from the above, there is an allegation that a sum of Rs. The flinching statement of the informant (PW 6) further gives rise to conclude that his testimony is not trustworthy. 22. Apart from the above, there is an allegation that a sum of Rs. 4510/- and odd was robbed by Shyam Sunder Raut from the upper pocket of the shirt of Arjun Yadav, deceased but the Investigating Officer emphatically denied that deceased was having shirt and so question of loot of Rs. 4510/- from the upper pocket does not arise. This statement also goes to demolish the entire prosecution case of dacoity as alleged. The learned trial Court, while deal- ing with this point in the impugned judgment, observed that the said shirt might have been torned at the time of dragging and it was thrown away. But, nothing could be said in such a manner only on mere assumption unless there is specific and definite proof of the material. The dead body was brought to the house and it was kept on the cot and, therefore, the Investigating Officer was the competent authority, who had visited the spot, to say about the belongings/cloths wearing by the deceased at the relevant time. Had there been the story of damage of shirt or throwing away, it could have been narrated by the informant at the first instance and in absence of such narration, nothing can be said in a definite way and, therefore, the statement of the Investigating Officer cannot be discarded. 23. From perusal of the record of Gama P.S. Case No. 65/1981 (G.R. 1597 of 1981), it is apparent that accused Shyam Sunder Raut was remanded in the case on 3.5.1985 by the order of the Judicial Magistrate and this fact has also been established with his signature in the margin of the order-sheet dated 3.5.1985 and thereafter this accused was also produced in the Court on different dates which apparently proves that he had been to the jail custody on the date of occurrence i.e. 5.5.1985. Furthermore, the bed head ticket of Jagdish Raut is also indicating the fact that he was admitted in the hospital as Indoor patient. Unless cogent and solid rebuttal comes against these documents, the plea of alibi cannot be discarded or disbelieved. On mere assumption, such evidence should not be outright rejected. 24. Furthermore, the bed head ticket of Jagdish Raut is also indicating the fact that he was admitted in the hospital as Indoor patient. Unless cogent and solid rebuttal comes against these documents, the plea of alibi cannot be discarded or disbelieved. On mere assumption, such evidence should not be outright rejected. 24. It is admitted fact that the appellants are co-villagers and are known to the informant from before and there is nothing to show that they had taken any kind of steps for concealing their faces at the time of occurrence. This circumstance also goes to indicate unnatural and improbable, in the facts and circumstances of the case. There is also contradiction/discrepancy in the testimony of PW 2, who is the father of the deceased, who claimed to had also gone to the place of occurrence near Charki godown where the dead body was lying and he had met with Rajendra Prasad Yadav, the informant. Near godown the labourers Hari Turi and Kashi Ravidas were also present, whereas PW 6, the informant stated that he had narrated the incident to his father and others at his house when the dead body was brought there. The story of payment of the wages to the labourers has also not been established when none of the labourers came forward to say anything about the payment of their wages. The accused Govind Raut was dragged in this case by stating that he had alongwith Jagdish Raut caught him but the said Govind Raut has been found to be innocent during investigation and he was not sent up for trial. Thus, the presence of the informant and the identification as claimed by PW 6 are doubtful, therefore, the evidence of sole eye-witness is not wholly believable. If a doubt arises in respect of prosecution case, the benefit of doubt will be extended in favour of the accused persons. The suspicion however strong cannot take the place of proof. The tes