JDUGMENT : Pradeep Kumar Srivastava, J. 1. This appeal is directed against the judgment of conviction dated 27.11.2002 and order of sentence dated 28.11.2002 passed by learned Additional Sessions Judge Fast Track-II, Gumla in Session Trial No.270 of 1993, whereby and whereunder the appellants have been held guilty for the offences under Section 302 r/w Section 34 of INDIAN PENAL CODE and sentenced to undergo R.I. of life. 2. The instant appeal was originally preferred by eight appellants out of them, appellant No.3, Chhedna Oraon and appellant No.6, Aghnu Oraon died during pendency of this appeal and their appeal has been abated vide order dated 21.03.2025. 3. We have heard the argument of Mr. Harendra Kumar Mahato, learned counsel appearing for the surviving appellants and Mr. Pankaj Kumar, learned P.P. appearing for the State. FACTUAL MATRIX 4. Factual matrix giving rise to this appeal is that the informant, Nirmal Singh lodged a report on 21.03.1993 at about 9 PM at Palkot Police Station stating inter alia that at about 6 PM, the informant heard hulla coming from Oraon Toli and saw that Paltan Singh and Bauwa Oraon were quarreling, meanwhile Bhullu Oraon, Jatru Oraon, Bauwa Oraon and Patu Oraon came there and caught hold of Paltan Singh and Mani Oraon and Chedna Oraon (since deceased) assaulted Paltan Singh by lathi due to which Paltan Singh fell down. Thereafter, Aghnu Oraon and Geja Oraon threw stones on the head of Paltan Singh. Ballu Nagesia and Jethu Nagesia assaulted on the head of informant by means of lathi on other parts of body. Paltan Singh succumbed to the injuries sustained in the above occurrence. The motive behind the occurrence was that Paltan Singh used to levy rice from the residents of Oraon Toli and with a view to get rid of him, the occurrence took place. On the basis of above fardbayan of the informant, Palkot P.S. Case No.19 of 1993 was registered for the offences under sections 147, 148, 302 and 323 of INDIAN PENAL CODE . After completion of investigation, charge-sheet was submitted against them for the offences under sections 147, 148, 302 and 323 of INDIAN PENAL CODE . 5. Learned trial court took cognizance of the offences and committed the case to the court of Sessions where S.T. No. 270 of 1993 was registered. After completion of investigation, charge-sheet was submitted against them for the offences under sections 147, 148, 302 and 323 of INDIAN PENAL CODE . 5. Learned trial court took cognizance of the offences and committed the case to the court of Sessions where S.T. No. 270 of 1993 was registered. During course of trial, accused Bauwa Oraon and Patu Oraon died while the case of Geja Oraon was split up for trial under Juvenile Justice Act. Charges were framed against them on 09.05.1995. The accused persons did not plead guilty and claimed to be tried. After conclusion of trial, the impugned judgment of conviction and sentence has been passed, which has been assailed in this appeal. 6. In course of trial, altogether 7 witnesses have been examined by the prosecution namely:- P.W.1 Indra Nath Singh P.W.2- Smt. Shanti Devi (wife of deceased, Paltan Singh) P.W.3-Saraswati Devi P.W.4-Baleshwar Singh P.W.5-Nirmal Singh (Informant) P.W.6-Dr. A.D.N. Prasad P.W.7-Parsuram Singh (Formal Witness) Apart from oral testimony of witnesses, following documentary evidences have also been adduced by the prosecution, which are as under:- Ext.-1 to 1/1- Signature of Indra Nath Singh and Baleshwar Singh on inquest report. Ext.1/2 to 1/3-signature of Indra Nath Singh and Baleshwar Singh over the seizure list. Ext.1/4- Signature of Indra Nath Singh on F.I.R. as a witness. Ext.1/5-Signature of Baleshwar Singh on FIR. Ext.1/6-Signature of Nirmal Singh on FIR. Ext.2-Post-mortem report of the deceased. Ext.3-F.I.R. Ext.4-Seizure list of two stones and blood stained soil. Ext.5—Inquest report. 7. On the other hand, the case of defence is denial from the occurrence and false implication. No oral witness has been examined by the defence rather documentary evidence as Ext.A, certified copy of judgment in G.R. Case No.217 of 1993 dated 19.10.2001 (State Vs. Geja Oraon) and Ext. B, certified copy of deposition of Smt. Shanti Devi in G.R. Case No.217 of 1993 recorded on 09.09.1996 has been adduced. 8. Learned trial court after scrutinizing the oral testimony of witnesses examined by the prosecution recorded findings that informant (P.W.5), the wife of the deceased (P.W.2) and aunt of deceased (P.W.3) have consistently stated that they have seen the occurrence while accused persons were assaulting to Paltan Singh, due to which he died. 8. Learned trial court after scrutinizing the oral testimony of witnesses examined by the prosecution recorded findings that informant (P.W.5), the wife of the deceased (P.W.2) and aunt of deceased (P.W.3) have consistently stated that they have seen the occurrence while accused persons were assaulting to Paltan Singh, due to which he died. It was further held that P.W.4 is an independent witness of the occurrence, who has also corroborated the prosecution story and saw the dead body lying at the house of the Patu Oraon where murder was committed. P.W.1 and P.W.4, witnesses of seizure list and inquest report have also supported the prosecution case which further finds corroboration from post-mortem report of the deceased, which was proved by the P.W.6. It was further observed that although there are some minor discrepancies and contradictions in the evidence of witnesses but that is not sufficient to discard the testimony of witnesses and arrived at definite conclusion that the prosecution has proved the charges under sections 302 r/w 34 of IPC against all the accused persons and acquitted them from charge under section 148 of IPC. The appellants are sentenced to undergo for imprisonment of life as stated above. Submission of learned counsel for appellants 9. Learned counsel for the appellants submits that there was specific allegation against Chedna Oraon and Aghnu Oraon for assaulting the deceased by lathi and stones. There are general and omnibus allegations against other appellants and their presence and participation in the alleged occurrence has also not been proved consistently by the witnesses alleged to be eye-witnesses of this case. It is further submitted that the testimony of eye-witnesses relied upon by the learned trial court suffers from material exaggeration and improvements during trial. The informant has also given improved story about the manner and place of occurrence. The seized materials like bloodstained soil and two boulders have not been produced during trial as material exhibit nor the same was sent to FSL for chemical examination. Admittedly, two stones alleged to be seized in this case are not found to be bloodstained. The informant has also given improved story about the manner and place of occurrence. The seized materials like bloodstained soil and two boulders have not been produced during trial as material exhibit nor the same was sent to FSL for chemical examination. Admittedly, two stones alleged to be seized in this case are not found to be bloodstained. It is further submitted that the main appellants against whom there is direct allegation of assaulting by lathi and stones have been died during pendency of this appeal and no specific role has been attributed against other appellants and their conviction and sentence for the offence under section 302 read with section 34 of IPC is absolutely not warranted under law. The Investigating Officer has not been examined in this case causing great prejudice to the defence in eliciting the material contradictions and improvements appearing in the evidence of alleged eye-witnesses. No common intention of all the appellants has been mentioned in the impugned judgment and no motive for the occurrence has been attributed to these appellants. Therefore, conviction and sentence of the appellants is liable to be set aside, allowing this appeal. Submission of learned counsel for State 10. On the other hand, Mr. Pankaj Kumar, learned P.P. appearing for the State controverted the aforesaid points of argument raised on behalf of the appellants and has submitted that the trial court has very wisely and aptly apprised and appreciated the evidence available on record as well as the doctor, who has conducted post-mortem clearly proved the charges levelled against the appellants. Mere, non-examination of Investigating Officer of the case causes no prejudice to the defence in the instant case. Therefore, there is no merits in this appeal and no substance in the points of argument raised on behalf of the appellants. Accordingly, this appeal is devoid of merits and fit to be dismissed. Analysis, Reasons and Decision 11. We have gone through the record of the case along with the impugned judgment and order of conviction and sentence of the appellants in the light of contentions raised on behalf of the respective parties. 12. It appears that out of 7 witnesses examined in this case; P.W.7-Parshuram Singh is a formal witness, who is an advocate clerk and proved formal FIR, seizure list and inquest report marked as Exts.3, 4 and 5 respectively. P.W.6-Dr. 12. It appears that out of 7 witnesses examined in this case; P.W.7-Parshuram Singh is a formal witness, who is an advocate clerk and proved formal FIR, seizure list and inquest report marked as Exts.3, 4 and 5 respectively. P.W.6-Dr. D.N. Prasad has conducted autopsy on the dead body of the deceased, Paltan Singh aged about 35 years and found following injuries:- Rigor mortis present in the four limbs: i) One lacerated injury on right side of forehead with commuted fracture of skull and extensive laceration of brain matter with the large amount of dried blood all over the face, neck, hairs post thoracic wall etc., size 3” x 1 ½” x 2”. ii) Lacerated injuries 1 ½“ above eyebrow with fracture of skull and laceration of brain matter size 2” x 1” x 2”. iii) Lacerated injuries 1” below the right eye size 1” x 1” x 2” with fracture of right zygomatic bone iv) Commuted compound fracture of the mandible on right side with multiple teeth broken and lacerated cut injuries in both angles of the mouth. v) Multiple ecchymosis on the interior chest wall 1” wide and varying in length from 6” x 10” in lengths. vi) Multiple ecchymosis on the left shoulder and post thoracic wall left side 1” wide of variable lengths. vii) Fracture of external and multiple ribs on both sides of chest. Cause of death-Hemorrhage and shock due to injury Nos. i, ii and iii singly or combined together. All injuries were ante-mortem in nature. Time elapsed since death within 24 hours. The post-mortem report is marked as Ext.2. P.W.4-Baleshwar Singh is also a witness of the seizure list, inquest report and also proved his signature on FIR but nothing has been stated about the occurrence. He has simply heard about murder of Paltan Singh and went near the house of Patu Oraon where he saw the dead body of Paltan Singh and nothing else. P.W.1-Indra Nath Singh is also hearsay witness about the occurrence but he has proved his signature on inquest report and seizure list as well as on fardbayan of Nirmal Singh. 13. The prosecution case rests upon the evidence of P.W.2, P.W.3 and P.W.5, whose testimony requires detailed discussion:- P.W.2, Smt. Shanti Devi is the wife of deceased, Paltan Singh. P.W.1-Indra Nath Singh is also hearsay witness about the occurrence but he has proved his signature on inquest report and seizure list as well as on fardbayan of Nirmal Singh. 13. The prosecution case rests upon the evidence of P.W.2, P.W.3 and P.W.5, whose testimony requires detailed discussion:- P.W.2, Smt. Shanti Devi is the wife of deceased, Paltan Singh. According to her evidence, on the date of occurrence in the evening, she was at her home and her husband had gone to bring vegetable. She heard some hulla coming from the house of Patu Oraon then she along with Sarswati Devi went there where she saw that Mani Oraon, Chedna Oraon, Jatru Oraon, Patu Oraon, Bauwa Oraon, Bhao Oraon, Geja Oraon, Bullu Oraon, Aghnu Oraon, Ballu Nagesia and Jethu Nagesia were standing with arm. Mani Oraon was armed with stone and sabal, Khedna Oraon with lathi, Jatru Oraon with lathi, Geja Oraon with stone, Aghnu Oraon with stone and others were holding her husband. She has specifically stated that Mani Oraon has given sabal blows on the head of her husband and again with stones due to which her husband fell down then Geja Oran assaulted by stones on chest, Aghnu Oraon assaulted by stone on face, Khedna Oraon and Jatra Oraon assaulted by lathi, Bullu, Bhado and Jethu were catching hold of her husband. The defence has drawn her attention towards statement before the police recorded under section 161 of C.P.C wherein she has not stated about the role of every accused person in assaulting her husband. P.W.3- Sarswati Devi is aunt of the deceased, she was also at her home at the time of occurrence and after hearing hulla, she along with P.W.2 went to place of occurrence. According to her evidence, she saw that Jatru Oraon, Bhulu Oraon and Chedna Oraon were assaulting Paltan Singh with lahti, Mani Oraon assaulted by sabal on head of the deceased, Paltan Singh and Geja Oraon gave stone blows, Ballu Nagesia by lathi, Patu, Jethu and Bhau were holding the deceased. She further states that when the villagers assembled, the accused persons fled away. The attention of this witness has also been drawn towards her statement recorded under section 161 of C.P.C and she has also not stated about specific role of the accused persons before the police. P.W.5 Nirmal Singh is the Informant-cum-Uncle of the deceased. She further states that when the villagers assembled, the accused persons fled away. The attention of this witness has also been drawn towards her statement recorded under section 161 of C.P.C and she has also not stated about specific role of the accused persons before the police. P.W.5 Nirmal Singh is the Informant-cum-Uncle of the deceased. This witness has also gone to the place of occurrence after hearing hulla and his wife and daughter-in-law had also followed him. According to his evidence, he saw that Paltan was being assaulted by Mani Oraon, Chedna Oraon, Jetna, Jatru and Patu and besides this Aghnu, Jethu and other 6-8 accused persons were also present. He has assigned specific role of Mani Oraon having iron rod and other accused, Chedna, Jethu and Aghnu were armed with lathi. Mani has further assaulted by stone on the head of Paltan Singh thereafter all the accused persons fled away and his nephew died on spot. This witness was not cross-examined after adjournment for further cross-examination. 14. It appears that P.W.5 Nirmal Singh is the main witness of the occurrence, who is an eye-witness and lodged the FIR also. 15. From perusal of FIR as discussed above, there is simple assertion about use of lathi by Mani Oraon and Chedna Oraon, use of stone against Aghnu Oraon and Geja Oraon. The use of sabal and iron rod as projected in the evidence of these eyewitnesses appears to be material improvement in their earlier version. Moreover, no such injuries caused by sabal or iron rod have been opined out in post-mortem report of the deceased. The injuries found on the body of the deceased is commuted fracture on head which might be caused by heavy stone and there is specific allegation against Aghnu Oraon and Geju Oraon for causing smash injury by stones. Chedna Oraon and Aghnu Oraon have been died and Geja Oraon was juvenile at the time of occurrence whose case was inquired into by Juvenile Justice Board. It further appears that there are general and omnibus allegations against the appellants, Bannu Oraon, Jatru Oraon, Mani Oraon, Bhayo Oraon, Jethu Nagesia and Bholu Oraon. The eye-witnesses have not been able to prove their role in the alleged occurrence. Moreover, the appellants have been acquitted from charges under section 148 of IPC. Therefore, the prosecution has failed to prove any unlawful assembly. 16. The eye-witnesses have not been able to prove their role in the alleged occurrence. Moreover, the appellants have been acquitted from charges under section 148 of IPC. Therefore, the prosecution has failed to prove any unlawful assembly. 16. In view of the above discussion and reasons, we find that no specific role has been attributed against the present alive appellants in causing murder of the deceased, Paltan Singh. The relative eye-witnesses alone have proved prosecution case and their testimony suffers from material contradictions and improvements as regards manner of occurrence and the role of every accused person along with their respective weapons. Therefore, non-examination of Investigating Officer is also seriously prejudicial to the defence of the appellants. Accordingly, we find and hold that the role of alive appellants in the alleged occurrence is absolutely doubtful and they deserve benefit of doubt. Hence, impugned judgment of conviction and order of sentence of the appellants is liable to be set aside 17. Accordingly, judgment of conviction dated 27.11.2002 and sentence dated 28.11.2002 passed by learned Additional Sessions Judge Fast Track-II, Gumla in Session Trial No.270 of 1993 is hereby set aside and this appeal is allowed. 18. The above appellants are acquitted from the charges levelled against them and set at liberty forthwith. 19. The appellants are on bail, hence, they are discharged from liability of bail bond. The sureties are also discharged. 20. Pending I.A(s), if any, is also disposed of accordingly. 21. Let the copy of this judgment along with Trial Court Records be sent back for information and needful.