Pradeep Nandrajog, J. 1. As per the prosecution 5 persons; Roshan Lal, his 3 sons Dharam Pal, Banwari Lal @ Vinod and Shashi Kant and his friend/neighbour Tilak Raj had acted pursuant to a conspiracy to cause the death of Ashok Kumar and gave effect to their evil desire on 11.11.1995. It is the case of the prosecution that all 5 gave effect to the conspiracy at 8:30/9:00 PM on 11.11.1995 and inflicted injuries with a sharp edged weapon and a blunt weapon opposite House Crl.A.No. 140/1999 Page 1of 16[RK1] No. A-33, Shivpuri Extension and as a result of the injuries Ashok Kumar died. 2. Vide impugned judgment and order dated 24.02.1999, the learned Trial Judge has acquitted accused Roshan Lal, Banwari Lal and Tilak Raj on the ground of lack of evidence and has convicted his sons Dharam Pal and Shashi Kant for the offence punishable under Section 302/34 IPC. Vide order on sentence dated 3.03.1999 Dharam Pal and Shashi Kant have been sentenced to undergo rigorous imprisonment for life and pay fine in sum of Rs. 5000/-each. 3. The process of law commenced when an anonymous caller informed the Police Control Room that a murder has taken place in H.No. A-33, Shivpuri Extension, Link Road, which information was flashed through wireless and received at PS Krishna Nagar where HC Mahavir Singh PW-1, on duty, noted the same vide DD No. 16-A (Ex.PW-1/A) at 9:55 PM on 11.11.1995. SI H.R.Meena PW-19 was entrusted with the investigation and was hander over a copy of DD.No. 16-A. Who, accompanied by Ct.Kiran Pal PW-17 immediately proceeded to the spot. 4. At the spot he found the dead body lying on a cot in the courtyard of the house, drenched in blood and having multiple stab wounds. The door of the house was ajar and there were no witnesses at the spot. Thus, beneath the copy of DD.No. 16-A he made the endorsement Ex.PW-1/B and got registered the FIR Ex.PW-1/C for the offence punishable under Section 302 IPC. 5. The house admittedly belonged to accused Roshan Lal (who has been acquitted). He was nowhere to be found. The door of the house was ajar and there were no witnesses at the spot. Thus, beneath the copy of DD.No. 16-A he made the endorsement Ex.PW-1/B and got registered the FIR Ex.PW-1/C for the offence punishable under Section 302 IPC. 5. The house admittedly belonged to accused Roshan Lal (who has been acquitted). He was nowhere to be found. A search of the house was conducted which yielded a blood stained knife Ex.P-1 under the cot where the dead body was lying which was seized vide seizure memo Ex.PW-11/G and another knife Ex.P-2 was recovered from under the arm of the deceased and seized vide seizure memo Ex.PW-11/F; two hockey sticks Ex.P-11 and Ex.P-12 having blood stuck at the top edge were seized from near the dead body vide seizure memos Ex. PW-11/A and Ex.PW-11/B as also a blood stained vest Ex.P-9 having cut marks was seized from near the dead body, vide seizure memo Ex.PW-11/D. 5. When the police was at the spot Dharam Pal PW-9, father of the deceased, Shashi Kant PW-16, brother of the deceased and one Madan Lal PW-5 reached the spot and their statements were recorded as a part of the investigation in which Madan Lal said that when he was passing by the house of Roshan Lal at around 8:30 PM he heard sounds of a quarrel from inside the house of Roshan Lal and could recognize the voice of the deceased and thus he went to the house of the deceased and told his family members of what he had heard and this led all of them to come to the house of Roshan Lal. The father and the brother of the deceased told the investigating officer that Roshan Lal owed money to the deceased and for the ensuing engagement of the deceased he needed money and had gone to Roshan Lal's house to collect the money. 7. The dead body of Ashok Kumar was seized and was sent to Swami Dayanand Hospital where Dr. J.S.Purty PW-4 completed the formality by preparing the MLC Ex.PW-4/A wherein it is recorded that the patient namely Ashok Kumar was brought dead to the casualty by Ct.Yashpal at 3:00 AM on 12.11.1995. 8. Completing the inquest proceedings, the dead body was sent for autopsy to the mortuary where Dr. J.S.Purty PW-4 completed the formality by preparing the MLC Ex.PW-4/A wherein it is recorded that the patient namely Ashok Kumar was brought dead to the casualty by Ct.Yashpal at 3:00 AM on 12.11.1995. 8. Completing the inquest proceedings, the dead body was sent for autopsy to the mortuary where Dr. Ashok Jaiswal PW-7 conducted the post-mortem and prepared the post-mortem report Ex.PW-7/A where it stands recorded that the post-mortem was conducted on 12.11.1995 at 2:00 PM. The report records 22 external injuries on the body of the deceased which are as under: "External injuries 1. Bruise diffuse over left arm lower third posto lateral aspect 2" x 11/2". 2. Abrasion on posterior aspect left elbow one inch into 1/4" with swelling around. 3. Bruise with swelling on dorsum of both hands 2" x 11/2". 4. Bruise over right ankle anteriorly 1" x 3/4". 5. Crusted abrasion right leg middle portion in front of size 1/2" x 1/4" to 1/4" x 1/4" (an old injury of about three to four days). 6. Bruise irregular diffuse on left thigh entrolateral aspect 4" x 2". 7. Abrasion left leg anti lateral aspect lower third 1"x 1/2". 8. Bruise left leg post lateral Aspect middle third 2" x 3/4". 9. Abrasion 2.5 cm x 1 cm on right mandibular region. 10. Cut through wound in front of neck over thyroid cartlidge transversely placed 10 cm x 7 cm x "extending from below angle of mandible left side to the angle of mandible on right side. 11. Incised wound obliquely placed on right mandible region 1.8 cm x .5 cm into bone deep. Margins clean cut everted lower angle acutely cut. 12. Incised stab wound 2.5 cm x 1 cm x "obliquely placed onright parasternal region, third space, lower medial angle acutely cut. 13. Incised stab wound 2.5 cm x 1 cm x "obliquely placed medial to left nipple, lower angle acutely cut. 14. Incised wound 3 cm x .5 cm x "just below right nipple lower angle acutely left. 15. Incised stab wound 5 cm x 1.5 cm x "just below right nipple lower angle acutely cut. 16. Incised stab wound 1.5 cm x .5 cm x "obliquely placed on left paraumbilical region at 1O' clock position. 17. Incised stab wound 2.5 cm x .5 cm x "obliquely placed left paraumblical region at 2 O' clock position lower angle acutely cut. 18. 16. Incised stab wound 1.5 cm x .5 cm x "obliquely placed on left paraumbilical region at 1O' clock position. 17. Incised stab wound 2.5 cm x .5 cm x "obliquely placed left paraumblical region at 2 O' clock position lower angle acutely cut. 18. Incised stab wound on left lateral side of chest in anterior axillary line 10 cm below armpit, 3 cm x 1 cm x " lower angle acutely cut. 19. Incised wound on dorsum of right forearm middle portion 2.5 cm x .5 cm into muscle deep. 20. Incised wound 2 cm x .5 cm x muscle deep on left lateral chest, 2" below and in line with injury No. 18. Lower angle acutely cut. 21. Incised wound transversely placed in the web of index and middle finger left hand 2 cm x 1 cm x muscle deep. 22. Incised wound on dorsum of right little finger terminal phalanx 1.5 cm x .5 cm x bone deep." 9. The cause of death was opined to be haemorrhagic shock consequent to the injuries. Injuries No. 10,12,13,14,15,16,17 and 18 were opined to be individually and collectively sufficient to cause death in the ordinary course of nature. Time since death was stated to be 18 hours. 10. It would be necessary to highlight that the two knives and the two hockey sticks which were seized from the spot were never sent to PW-7 for his opinion, but we would be failing not to highlight that on being cross-examined at the trial PW-7 threw light on the injuries by stating that injuries No. 1 to 9 except No. 5 were caused by blunt object which may have been the same or of different kinds and that injuries No. 10 to 20 were caused by one or more than one sharp edged weapon. Unfortunately neither the prosecutor, nor the Judge concerned bothered to elicit better information from the doctor with reference to the two knives and the two hockey sticks which were seized from the spot. 11. As per the prosecution accused Roshan Lal was arrested from ISBT at the instance of the father of the deceased and Dharam Pal on 15.11.1995. Pursuant to his disclosure statement Ex.PW-9/B and at his pointing out, accused Tilak Raj and Dharam Pal were arrested from the house of one Om Prakash. 11. As per the prosecution accused Roshan Lal was arrested from ISBT at the instance of the father of the deceased and Dharam Pal on 15.11.1995. Pursuant to his disclosure statement Ex.PW-9/B and at his pointing out, accused Tilak Raj and Dharam Pal were arrested from the house of one Om Prakash. Accused Dharam Pal made a disclosure statement pertaining to the shirt he was statedly wearing at the time of the commission of the offence and got recovered a blood stained shirt Ex.P-10 from his house which was seized vide memo Ex.PW-9/C. On 20.11.1995 accused Shashi Kant was arrested from his house and pursuant to his disclosure statement Ex.PW-9/D he got recovered a shirt Ex.P-9, seized vide memo Ex.PW-5/C, stated to have been worn by him when the crime was committed. On 1.12.1995, accused Banwari Lal was arrested after he voluntarily surrendered. 12. The various exhibits seized were sent for serological examination as deposed to by HC Ishwar Singh PW-10 and we note that along with the charge sheet the report obtained from the Forensic Science Laboratory has been filed as per which human blood of the same group i.e. Group "A" of the deceased was detected on the hockey sticks sent for serological examination as also the two shirts sent for serological examination. But would regret to note that not a single witness of the prosecution has stated that the report in question was obtained during investigation and was the one which pertained to the instant case. The report remains an un-exhibited, unmarked and an untendered document. 13. Handicapped by a direct eye witness account, it would be apparent that the case of the prosecution would be sought to be made good with reference to the incriminating evidence, which the prosecution had to prove, (i) The motive for the crime of Roshan Lal i.e. his being a debtor of the accused and his sons helping him. (ii) The crime being committed in the house of Roshan Lal (to be proved by the factum of the dead body of Ashok being recovered from the cot inside the courtyard of Roshan Lal's house). (ii) The crime being committed in the house of Roshan Lal (to be proved by the factum of the dead body of Ashok being recovered from the cot inside the courtyard of Roshan Lal's house). (iii) Roshan Lal and his sons residing together in the house in question and that the post-mortem report would show that at least two weapons of offence, one blunt and one sharp edged were used and with reference to the post-mortem report to highlight that more than 2 and in all probability not less than 4 and possibly 5 persons participated in the assault. (iv) Recoveries of blood stained shirts worn by Shashi Kant and Dharam Pal on which human blood of the same group as that of the deceased was detected. (v) The accused absconding. 14. Madan Lal PW-5 deposed that as he passed in front of Roshan Lal's house at 8:30 PM on 11.11.1995 he heard a quarrel and could recognize the voice of the deceased and could hear voices of 4 or 5 persons in addition. He informed Dharam Pal of the same and returned in the company of Dharam Pal and Shashi Kant when all saw the deceased lying dead on the cot. Thus, Madan Lal, through his testimony proved that Roshan Lal's house was open and he could hear a quarrel from within, which quarrel involved the deceased and at least 4 or 5 other persons. He further deposed that when Shashi Kant was arrested he got recovered the shirt Ex.P-9 from his residence which was seized vide memo Ex.PW-5/C. 15. Dharam Pal PW-9 deposed that his son and Roshan Lal had business transactions and for which Roshan Lal owed money to his son and since his son was to get engaged next day, he went to Roshan Lal's house to get money and that when Madan Lal told him post dinner that he had heard a quarrel going on between his son and Roshan Lal he immediately proceeded to Roshan Lal's house where he saw his son lying dead. He deposed to the arrest of Roshan Lal and Dharam Pal as also the disclosure statement being made by Dharam Pal and pursuant thereto Dharam Pal getting recovered the shirt Ex.P-10. 16. He deposed to the arrest of Roshan Lal and Dharam Pal as also the disclosure statement being made by Dharam Pal and pursuant thereto Dharam Pal getting recovered the shirt Ex.P-10. 16. Needless to state various police officers associated with the investigation deposed to the seizures made and we would highlight that HC Ishwar Singh deposed to have sent the exhibits to the Forensic Science Laboratory. 17. As we have noted hereinabove, and rather unfortunately, neither the public prosecutor, nor the learned Trial Judge bothered to ensure that the FSL Report submitted along with the charge sheet, was in the least, tendered in evidence by at least the Investigating Officer. We find that the Investigating Officer SI H.R.Meena PW-19 was still deposing by way of examination-in-chief on 18.1.1999 when further examination-in-chief was deferred as neither the regular APP was present nor had the case property being brought. At the next day i.e. 22.1.1999 without completing the examination-in-chief, the witness was cross-examined. The result was that the FSL Report remained an untendered document; unmarked and unexhibited. 18. 3 out of the 5 accused have been acquitted by the learned Trial Judge. They are Roshan Lal, his son Banwari Lal and the neighbour Tilak Raj. 19. In a judgment which is extremely poorly written and there is hardly any discussion of evidence, we find that the learned Trial Judge has found no incriminating evidence against the three. 20. We would highlight that the incriminating evidence against Roshan Lal is the motive i.e. Roshan Lal requiring to return money to the deceased and the statement of Roshan Lal under Section 313 Cr.P.C. wherein, to the last question as to why the witnesses were deposing against him, he said that he had a business dispute with the deceased and that is the reason why he was being falsely implicated. The motive was also proved through the testimony of Dharam Pal PW-9 who categorically deposed that Roshan Lal owed money to his son under a business transaction. The other incriminating evidence ignored by the learned Trial Judge was the testimony of Madan Lal PW-5 who clearly deposed that he heard a quarrel from the house of Roshan Lal and could recognize the voice of the deceased whom he knew and additionally could hear the voices of 4 or 5 other persons. The other incriminating evidence ignored by the learned Trial Judge was the testimony of Madan Lal PW-5 who clearly deposed that he heard a quarrel from the house of Roshan Lal and could recognize the voice of the deceased whom he knew and additionally could hear the voices of 4 or 5 other persons. This proved that persons were present in the house of Roshan Lal and it was for Roshan Lal to prove where he was at that time because it was a fact within the personal knowledge of Roshan Lal. Lastly, through the testimony of Dharam Pal and the police officers who arrested Roshan Lal, there was proof that Roshan Lal absconded. The conduct of absconding is relevant evidence and depending upon the other incriminating evidence, would show a guilty mind i.e. that of an accused who is fleeing from justice. The trinity of the evidence i.e. the place where the murder took place was Roshan Lal's house which was found open and with nobody inside when the police reached, Roshan Lal having a motive for the crime and Roshan Lal absconding were, in our opinion sufficient evidence to conclude the guilt of Roshan Lal and in addition to the three pieces of evidence would be no rational explanation given by Roshan Lal as to how his house was found open without a soul and the dead body of the deceased inside. It is further unfortunate that the State has accepted Roshan Lal's acquittal and has not sought any leave to appeal against the acquittal. 21. There is no evidence to prove that the sons of Roshan Lal used to stay with him or were present in Roshan Lal's house. There is no evidence that Tilak Raj was present in Roshan Lal's house when the crime took place. We only have evidence that there were 4 or 5 persons in the house; but they could be anybody. The fact that it was Roshan Lal's house and from the other incriminating evidence against Roshan Lal, one could safely say that Roshan Lal was involved in the crime and that persons closely known to him acted in concert, but therefrom we cannot hold that those close persons have to be his sons. The fact that it was Roshan Lal's house and from the other incriminating evidence against Roshan Lal, one could safely say that Roshan Lal was involved in the crime and that persons closely known to him acted in concert, but therefrom we cannot hold that those close persons have to be his sons. Through the dead body speaking we have tell tale evidence that at least 4 or 5 persons participated in the assault, but that gives us only a number and not the identity of the persons. To compound our problem we have the fact that 2 knives on which the witnesses saw blood were recovered from the scene of the crime and 2 hockey sticks on which witnesses saw blood were recovered from the scene of the crime, but without any link evidence that what the witnesses saw blood, was actually blood, or was perceived by them to be blood, inasmuch as the FSL Report has not even been tendered in evidence. 22. The learned Trial Judge has convicted the appellants for the circumstance of they being Roshan Lal's sons and the shirt Ex.P-9 and Ex.P-10 were got recovered by Shashi Kant and Dharam Pal respectively and on which as per the FSL Report the learned Judge has found human blood of the same group as that of the deceased being detected; but the learned Judge has overlooked the fact that the report in question was simply lying dead in his file, without even being tendered. 23. It is true that in view of Section 293 of the Criminal Procedure Code, the report in question need not have been proved by summoning the author thereof, but that does not mean, that during trial nobody had to tender the same in evidence and have the same exhibited by deposing that either he himself went to the FSL Laboratory and collected the report in question or deposing that during investigation he obtained the report in question and that the same pertains to the investigation conducted in the case which was being tried. It must be deposed that the report in question pertains to the case at hand. 24. It must be deposed that the report in question pertains to the case at hand. 24. It certainly would be extremely incriminating against the appellants that the assault on the deceased showed a blunt object and a sharp edged weapon of offence being used and thus at least two persons being the assailants; the appellants being the sons of Roshan Lal, in whose house the murder took place and who had a motive for the crime; the two being the ones who got recovered a shirt each on which human blood of the deceased was detected. But, sans the last evidence, the position of the two would be the same as that of their two brothers who have been acquitted. 25. Thus, regretfully and with heavy heart we are left with no option but to acquit even the appellants and not proceed to fill up the gaps by recording further evidence inasmuch as the crime took place on 11.11.1995 and we are 16 years away. The appellants have remained under a trial and then an appeal for 16 years and have suffered an actual sentence of over 4 years. 26. We are extremely pained to note that for a brutal murder, nobody is being convicted. Against one of the accused i.e. Roshan Lal, the callously written judgment, showing very poor knowledge of law of evidence by the learned Trial Judge, notwithstanding there being sufficient evidence which has just not been marshalled, has resulted in Roshan Lal being let off the hook and to some extent the State must share the blame for not having challenged his acquittal. Against the appellants the incriminating evidence through the form of the FSL Report being not even tendered has resulted in the two being acquitted by us and for which the blame must be shared by the learned APP at the trial and even the callousness of the learned Trial Judge who, as noted by us hereinabove deferred the recording of evidence by not completing the examination-in-chief of the Investigating Officer and on the next day commenced the cross-examination. Even he did not bother to ensure that the FSL Report was at least tendered in evidence. It makes us cry in pain when we look at the charges framed. 27. Even he did not bother to ensure that the FSL Report was at least tendered in evidence. It makes us cry in pain when we look at the charges framed. 27. A conspiracy precedes the commission of an offence and if something happens at the spur of the moment it must be pursuant to an intention formed at the moment or a common object formed at the moment. The charge against the accused reads as under: "I (******) Addl.Sessions Judge, Shahdara, Delhi, hereby charge you 1. Roshan Lal son of Kali Charan 2. Shashi Kant son of Roshan Lal 3. Dharampal son of Roshan Lal 4. Banwari Lal son of Roshan Lal and 5. Tilak Raj son of Mangal Prasad as follows. That on 11.11.96, at about 8.30/9 P.M. all of you entered in a criminal conspiracy to commit the murder of Ashok son of Dharam Pal and thereby committed an offence punishable u/S 120-B IPC and within the cognizance of this Court. And I hereby direct that you be tried by this court on the said charge." (Note: We have omitted the name of the learned Judge to save embarrassment to the learned Judge and hence have replaced the same with asterisk). 28. It pains us that even the year of the crime, which was 1995, has been typed as 1996. The conspiracy was not entered at 8:30 PM for this was the time when the murder took place. The conspiracy, if at all, was earlier in point of time. It shows the callous manner in which the Judge commenced the trial. 28. It pains us that even the year of the crime, which was 1995, has been typed as 1996. The conspiracy was not entered at 8:30 PM for this was the time when the murder took place. The conspiracy, if at all, was earlier in point of time. It shows the callous manner in which the Judge commenced the trial. At the trial by not ensuring that the FSL Report was even tendered, if the report is to be relating to the instant investigation, the evidence that human blood of the same group as that of the deceased was detected on 2 hockey sticks coupled with the fact that injuries were caused by at least one sharp edged weapon, would have resulted in evidence coming on record showing at least 3 persons participating and the 3 would have been, apart from Roshan Lal, 2 other persons who were Roshan Lal's well wishers and through the FSL Report there would have been evidence that the said two were the appellants who got recovered a shirt each which they were wearing when the crime was committed on which human blood of the same group as that of the deceased was detected. All this has remained in the realm of "the case of the prosecution" and not "the case proved by the prosecution". 29. At a criminal trial the role of a Judge is said to be that of a Referee and not an Umpire. An Umpire is one who supervises a cricket match by standing at one spot and probably missing out on the nuances of the game. The term "Referee" is used for he who supervises a football match the same connotes that the supervisor runs along with the ball with a whistle in hand ready to be used to ensure a proper match. If a foul is committed, the whistle is blown. The match is stopped. The ball is brought back to where the foul was committed and the game recommences. A Referee is an active participant to ensure that the playing field remains even. Had the learned Trial Judge played his role as a Referee and blown the whistle when fouls, in the form of omissions, were committed and had he bothered to bring back the game to the same stage when the foul was committed and then recommenced, proper destinations would have been reached. Had the learned Trial Judge played his role as a Referee and blown the whistle when fouls, in the form of omissions, were committed and had he bothered to bring back the game to the same stage when the foul was committed and then recommenced, proper destinations would have been reached. We would leave it at that by advising Trial Judges to act as a "Referee" and not as an "Umpire". 30. The appeal is regretfully allowed. The impugned judgment and order dated 24.2.1999 convicting the appellants is set aside. The appellants are acquitted of the charge framed. The order on sentence dated 3.3.1999 is quashed. The bail bonds and surety bonds furnished by the appellants when they were admitted to bail are discharged.