JUDGMENT Ghanshyam Prasad, J 1. This appeal is against the order or acquittal recorded by the 2nd Additional Sessions Judge, Katihar in Sessions Case No. 55 of 1979. 2. Four persons including respondents (hereinafter called as accused) faced trial for offences under Sections 380, 324/323, 325, 302/34 and 460/34, I.P.C. However, in midst of the trial two accused persons namely, Ram Lakhan Mahto and Sudama Mahto died and theirnames were expugned from the record. It is alleged that these accused persons alongwith their associates in the night of 14/15th May, 1975 committed theft in the house of the informant Harihar Singh and also beheaded and committed murder of his daughter Gita Kumari, a young un-married girl aged about 15-16 years. 3. Prosecution case in brief is that a few months before the alleged occurrence in the month of February, 1975 these accused persons alongwith one Kauleshwar Mahto and others kidnapped Gita Kumari for the purpose of marrying her with Kauleshwar Mahto. A case of kidnapping was lodged in Kadwa Police Station against them. Later on she was recovered from their possession and her custody was restored to her parents. Thereafter, her marriage was settled with son of one Murat Singh of Chapra district. Tilak was to be performed on 7.5.1975, but the same was cancelled for reasons not disclosed. 4. Further case of the prosecution is that in the night of the alleged occurrence the informant Harihar Singh (P.W.8) was sleeping in Varanda in his house situated in village Katia Hasauna P.S. Kadwa, District Katihar. The deceased Gita Kumari was sleeping inside the house in a room alongwith her mother Smt. Panwati Devi (P.W.4). Her two other sisters, namely, Shail Kumari and Rita Kumari and her two sisters-in-law were sleeping in other rooms. The mother of the informant (since deceased) was also sleeping in Varanda of the house. It is further alleged that in the midnight about ten persons including these accused persons entered in the house of the informant, broke open the room and forcibly lifted the deceased Gita Kumari and took her away out of the house. They also took away some boxes from the room containing ornaments etc. Four persons lifted the girl, other three persons took away boxes and three persons confined the mother Panwati Devi in the room. 5. They also took away some boxes from the room containing ornaments etc. Four persons lifted the girl, other three persons took away boxes and three persons confined the mother Panwati Devi in the room. 5. It is further alleged that while Gita Kumari was being lifted she raised hulla upon which the informant woke and went outside the house to intervene in the matter. However, he was prevented by four persons who also assaulted him with Chhura and lathi. He identified all the four persons who assaulted him in the light of torch. One Sanjay Mahto, a neighbour also came at the spot on hulla and identified the accused persons who were assaulting the informant. It has further been alleged that Sanjay Singh, Jata Shankar Singh (P.W.1) and Paras Singh (P.W.2) immediately went in search of Gita Kumari. After sometime, they returned and informed Harihar Singh that the headless body of Gita Kumari was laying in the field situated at a distance of 100 yards and the head was laying at a different place at about 30-35 yards away from dead body. A blood stained Chhura and broken boxes were also found near the dead body of Gita Kumari. 6. The informant sent Sanjay Singh and Jata Shankar Singh to police post to inform about the occurrence. The police S.I. K.B. Singh (P.W.16) came in the same night and recorded fardbeyan of Harihar Singh, which is ext.6. He inspected the P.O. seized Chhura and other articles, prepared inquest report of the dead body and sent the same to hospital for postmortem. The informant and his wife were also examined by the Dr. Murlidhar Das (P.W.9). Dr. Shyam Sundar Jha (P.W.10) conducted postmortem. After completion of investigation, the police submitted chargesheet against four persons including these respondents. 7. Accused persons denied the complicity in the alleged crime. According to them, Gita Kumari was bent upon to live with her lover Kauleshwar Mahto against wishes of her parents and as her marriage negotiation was broken due to her act. She might have been murdered on behest of her parents in order to save themselves and their family from humiliation in the society and have falsely implicated the accused persons who are close relatives of Kauleshwar Mahto. 8. Altogether 18 witnesses have been examined on behalf of the prosecution in order to prove guilt of the accused persons. She might have been murdered on behest of her parents in order to save themselves and their family from humiliation in the society and have falsely implicated the accused persons who are close relatives of Kauleshwar Mahto. 8. Altogether 18 witnesses have been examined on behalf of the prosecution in order to prove guilt of the accused persons. However, only P.W. 8 Harihar Singh, the informant, his wife P.W.4, Panwati Devi, P.W.1. Jata Shankar Singh. P.W.2 Paras Nath Singh and P.W.3 Naimuddin, servant of the informant are material witnesses who have tried to throw some light on the point of occurrence. Other important witnesses are P.W.16 Kunj Bihari Singh, the I.O. of the case, P.W.10 Dr. Shyam Sundar Jha who conducted postmortem of the dead body and P.W.9 Murlidhar Das who examined Harihar Singh and his wife Panwati Devi. Other witnesses are either formal or linked witnesses. No witness has been examined on behalf of the defence. 9. The learned lower Court after consideration of oral and documentary evidence as well as circumstances has come to the conclusion that the prosecution has not been able to prove charges framed against the accused persons beyond all reasonable doubt and, accordingly, has acquitted them. The learned lower Court has drawn adverse inference for non-examination of material witnesses like San jay Singh and non-production of S.D. entry of Kadwa P.S. He has also found several infirmities and contradictions in the evidence of the witnesses on material points and has accordingly refused to place implicit reliance on them. He has also disbelieved the manner of occurrence as propounded by the prosecution and identification of the accused persons at the spot. 10. The counsel for the appellants challenged the findings of the learned lower Court and has submitted that he has not properly appreciated either oral evidence or circumstances. He ought not to have rejected the entire evidence of witnesses on mere grounds of minor contradictions and embellishment which are bound to occur due to lapse of time. Similarly, he has submitted that non-examination of Sanjay Singh does not affect the prosecution case as there are overwhelming material to substantiate the charges framed against the accused persons. 11. He ought not to have rejected the entire evidence of witnesses on mere grounds of minor contradictions and embellishment which are bound to occur due to lapse of time. Similarly, he has submitted that non-examination of Sanjay Singh does not affect the prosecution case as there are overwhelming material to substantiate the charges framed against the accused persons. 11. On the other hand, the learned lawyer for the respondents has supported the judgment of the learned lower Court and submitted that the learned lower Court has meticulously considered every material and circumstances of the case and has rightly acquitted the accused persons as the prosecution has miserably failed to substantiate the charges framed against the accused persons. 12. On perusal of fardbeyan (Ext.6), it would appear that only three persons identified the accused persons at the spot. They are informant Harihar Singh (P.W.8), his wife Panwati Devi and Sanjay Singh. Sanjay Singh has not been examined. In paragraphs 2 and 3 of the examination-in-chief, the informant P.W.8 has narrated about the occurrence and has stated that he identified all the named four accused persons in the light of fire lit by his wife, who assaulted him with lathi and chhura but in cross-examination, paragraph-10, he has stated that he came to know name of all the accused persons from Sanjay Singh. 13. P.W.4 Panwati Devi is another eye witness. The victim girl Gita Kumari was said to be sleeping with her in a room at the time of the occurrence. In paragraph-3 of the examination-in-chief she has stated that four persons forcibly lifted and carried away the victim Gita Kumari, three persons carried boxes and three persons pressed her. However, she did, not name any person who committed crime. In paragraph-4, she has stated that when she came out of a room she saw her husband in injured condition. She also saw Sanjay Singh there who was helping her husband. She has further stated that her husband and Sanjay Singh disclosed the name of all four accused persons who assaulted Harihar Singh. In cross-examination (paragraph-8), she has stated that she identified all the four named accused persons in torch light lifted and carried away Gita out of the room. There is no other witness on the point of identification. 14. From above discussion of evidence of P.Ws. In cross-examination (paragraph-8), she has stated that she identified all the four named accused persons in torch light lifted and carried away Gita out of the room. There is no other witness on the point of identification. 14. From above discussion of evidence of P.Ws. 4 and 8, it is quite clear that evidence on the point of identity of accused persons are not consistent rather contradictory to each other. According to P.W.8, these accused persons were assaulting him with lathi and chhura whereas according to P.W.8 they were carrying away the victim Gita Kumari. It further appears that on point of identity Sanjay Singh was an independent witness but he has not been examined. No explanation worth the name has been offered from the side of prosecution for his non-examination. Under the circumstances, the learned lower Court has rightly dis-believed the evidence of witnesses on the point of identity of accused persons. 15. The other important point which weighed to the learned lower Court in acquitting the accused persons is failure to establish manner and place of occurrence by the prosecution. According to fardbeyan, (Ext. 6), and evidence of witnesses, the headless dead body of Gita Kumari was found at a distance of 100 yards from the house of the informant and the head at a distance of 30-35 yards from there. The dead body was traced out by P.W.1 Jata Shankar Singh and P.W.2 Paras Nath Singh. The evidence on the record goes to show that they reached at the house of the informant just after the occurrence and saw some persons numbered about 20-25 fleeing out the scene. Thereafter, they went in search of Gita Kumari and found the dead body at a distance of 100 yards. There is no material on the record to show that at the time of chopping of head or other parts of the body of the girl, the girl raised hulla which would have been her natural reaction. Apart from it, the evidence of P.W.1 vide paragraph 1 and P.W.2 vide paragraph 1 goes to show that they reached at the spot just after the occurrence or assault upon the informant and saw some persons fleeing away from the place. It makes the prosecution story improbable as there was no intervening time for the accused or miscreants to commit the crime of murder in a manner alleged by the prosecution. 16. It makes the prosecution story improbable as there was no intervening time for the accused or miscreants to commit the crime of murder in a manner alleged by the prosecution. 16. The evidence of I.O. (P.W.16) Kunj Bihari Singh coupled with the evidence of P.W.1 reveals another story. P.W.1 in paragraph-1 of his evidence has stated that he found blood and mark of blood collected by fingers near 'Bari'. Bari is the near of house of the informant. The I.O. (P.W.16) in his cross-examination, paragraph-16, has stated that he found copious blood and also mark of collecting blood by fingers towards south west of the house of the informant. He also found blood in a ditch situated at a distance of 35 feet south west of the house of the informant. In paragraph-24 of the cross-examination, he has further stated that he did not find any blood from where the dead body was recovered. It clearly goes to show that actually murder was committed near the house of the informant and thereafter, the dead body was kept at another place. 17. Surprisingly, all witnesses including the informant and his wife kept mum on this point and have not explained about presence of blood near the house of the informant. There is also no evidence on the record to show that accused committed murder in the 'Bari' of the informant which is infront of the house of the informant. This circumstance not only throws serious doubt upon the prosecution story but also strengthens the defence version. 18. The learned lower Court has also dealt with several other infirmities, inconsistencies and improbabilities in the evidence and case of the prosecution which cut the very root of the prosecution story. The learned lower Court has rightly taken note of the fact that neither D.W.4 Panwati Devi nor Gita Kumari (deceased) raised any alarm when ten persons gave push to the door of the room, broke open the same, entered in the room and lifted the girl forcibly. It is against natural conduct of prudent person. Similarly, the informant also did not raise any alarm when he saw his daughter being carried away by the accused persons or even he being assaulted or them. The learned lower Court has also rightly taken note of inconsistent evidence on the point of blood stained chhura found at the spot. It is against natural conduct of prudent person. Similarly, the informant also did not raise any alarm when he saw his daughter being carried away by the accused persons or even he being assaulted or them. The learned lower Court has also rightly taken note of inconsistent evidence on the point of blood stained chhura found at the spot. The P.W.8, the informant, in his evidence (paragraph-5) has stated that his wife gave him a blood stained chhura which was handed over to the I.O. by him during investigation, whereas, according, to P.W.4, vide paragraph-19, Harihar Singh gave chhura to her. The I.O. P.W.16, vide paragraph-4, has stated that he seized dagger from the place of occurrence i.e. from where the dead body was recovered. Similarly, the learned lower Court has rightly drawn adverse inference for non-production of means of indentification of accused persons, the torch, before the I.O. in course of the investigation. 19. The learned lower Court has also dealt with injuries of Harihar Singh and his wife Panwati Devi in paragraphs 16 and 18 of his judgment and has rightly held that the injuries found on their person do not fit in with the manner of attack as alleged. Except injury no.6, all injuries are superficial in nature. According to the doctor, P.W.9 Dr. Murlidhar Das, injury no.6 may be caused by fall. 20. P.W.10 Dr. Shyam Sundar Jha is the person who conducted postmortem on the dead body of Gita Kumari. The evidence of D.W.10 is not material as murder of Gita Kumari is not under dispute. The other witnesses are also not material for the purpose of proving prosecution story. P.W.3 Naimuddin is servant of the informant and at the time of the alleged occurrence he was sleeping in 'Kutti Ghar'. He has stated in his evidence that on hulla of "dacoit dacoit'" he woke and entered in the house and saw Sanjay Singh and Harihar Singh. This is a new story as there is no case of prosecution that any person raised hulla of "dacoit-dacoit". He is not eye witness of the occurrence. He has simply stated that Harihar Singh told the name of the accused persons and he saw some persons fleeing out of the scene. This is a new story as there is no case of prosecution that any person raised hulla of "dacoit-dacoit". He is not eye witness of the occurrence. He has simply stated that Harihar Singh told the name of the accused persons and he saw some persons fleeing out of the scene. He has further stated that P.W.1 Jata Shankar Singh and Sanjay Singh came at the spot and Harihar Singh told them to go to the police to inform about the occurrence. In paragraph-4, he has denied to identify any of the accused persons. 21. P.W.5 Bhagwan Sah is not on the point of occurrence or on the point of identification. He came at the spot one and half hours after the occurrence. P.W.6 Nageshwar Sah and P.W.7 Birendra Kumar Singh are witnesses of the seizure of articles found at the alleged P.O. P.W.11 Bisheshwar Rai has been declared hostile. P.W.12 Dr. K.K. Das is a man who x-rayed the injury of the informant, Harihar Singh and has proved his x-ray report, which is ext.4. P.W.13 Bal Krishna Jha was the Judicial Magistrate who had recorded the statement of Gita Kumari under Section 164, Cr.P.C. in connection with kidnapping case. It has been brought on the record to prove motive for the crime. However, motive alone does not lead to any inference of guilt. P.W.14 Baban Singh has proved warrant of arrest. P.W.15 Shaligram Singh is also a formal witness who has proved search warrant of the house of the accused persons. P.W.17 Jangli Rai has come to depose that in the night of the alleged occurrence he saw some persons fleeing on the road. However, he did not identify any of them. P.W.18 Kapil Prasad Sinha is a formal witness and has produced material exts. before the Court. 22. Here we would like to bear in mind the law laid down by the Apex Court in regard to re-appreciation of evidence by the High Court in appeal against acquittals. In a case reported in 1996 SCC (Cri)1192 Dhanna Vs. State of Madhya Pradesh, it has been laid down by the Apex Court that though the High Court has full power to review the evidence and to arrive at his own independent conclusion whether the appeal is against conviction or acquittal. In a case reported in 1996 SCC (Cri)1192 Dhanna Vs. State of Madhya Pradesh, it has been laid down by the Apex Court that though the High Court has full power to review the evidence and to arrive at his own independent conclusion whether the appeal is against conviction or acquittal. However, while doing so it ought to bear in mind; first that there is general presumption in favour of the innocence of the accused person in criminal cases and that presumption is only strengthen by the acquittal. Secondly, it should bear in mind that every accused is entitled to the benefit of the reasonable doubt regarding his guilt and when the Trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus the appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. 23. If we apply the said principle to the facts and circumstances of the case, we notice that the appellants have failed to make out any case for interference in the order of acquittal recorded by the learned lower Court. The learned lower Court has rightly acquitted the accused respondents as the prosecution has not been able to substantiate the charges framed against them beyond all reasonable doubt. 24. In the result, this appeal fails and is, accordingly, dismissed.