JUDGMENT : G.K. Misra, J. - The Appellants have been convicted u/s 302/34, Indian Penal Code and each has been sentenced to imprisonment for life. 2. The deceased was murdered during night on 2-12-1965 at a time after the villagers had finished this meals and gone to bed. The F.I.R. was lodged at 7 A.M. next morning at Khajuripada Outpost under the police station Serango in the district of Ganjam. Accused Tisan (Appellant No. 1) and accused Regada (Appellant No. 2) are brothers. Accused Jurei (Appellant No. 3) is this field servant. They are residents of village Titising. The deceased was a resident of village Barial. Both the villages are contiguous and stand at a distance of one mile apart. The prosecution case, as unfurled in the F.I.R. (Ext. 8) runs thus. At about meal time during night p.ws. 5 and 6 were sitting on this respective verandahs. At that time the 3 Appellants came to the house of the deceased and called him. The deceased came out and asked them why they had come at such an unusual hour. The Appellants gave out that they wanted a title fise to light this cigars. The deceased got down his verandah for urination. While he was sitting, Appellant No. 1 shot him with a gun. Thereafter Appellant No. 3 gave another shot by a gun while the deceased was lying on the ground. Appellant No. 2 had a bow and arrows, and he gave an arrow shot. This incident frightened them and so they got inside this houses. After the Appellants left the spot, they came out and found the deceased dead. As it was night, they feared and did not come to the outpost to lodge the F.I.R. It was stated that there was dispute between the deceased and the Appellants over some feast and the ill-feeling was continuing for the last 5 years. The F.I.R. was registered in the police station at Serango at 9 P.M. On receipt of the F.I.R. at the outpost, the A.S.I. (p.w. 9) started investigation. He came to the village of the deceased at 9-30 A.M. on 3-12-1965 and examined the 3 eye-witnesses p.ws. 5, 6 and 8 besides examining others and making inquest. At about 4.30 P.M. he reached the village Titising and arrested Appellant No. 1 who made a statement to him that the 2 guns (M. 08. He came to the village of the deceased at 9-30 A.M. on 3-12-1965 and examined the 3 eye-witnesses p.ws. 5, 6 and 8 besides examining others and making inquest. At about 4.30 P.M. he reached the village Titising and arrested Appellant No. 1 who made a statement to him that the 2 guns (M. 08. II and III) had been kept in the house of Lesada, the elder brother of Appellants 1 and 2. It is only at 10 A.M. on 4-12-1965 that the officer-in-charge of Serango Police Station (p.w. 10) took charge of the investigation from p.w. 9. The motive, as suggested by the prosecution, is that about 5 years back the deceased had assaulted Lesada. There was a criminal case which was however compounded. Ever since then Lesada fell ill and died 2 days after the occurrence. Appellants 1 and 2 and Lesada entertained the belief that the deceased was practicing witchcraft on Lesada, as a result of which the latter became ill. The defence is one of complete denial. The positive defence case is that p.w. 7, brother-in-law of the deceased, had rivalry with Lesada for the post of Muthe-head, and it is at his instance that the Appellants were falsely implicated. The learned Sessions Judge held that the death of the deceased was homicidal and that the Appellants killed the deceased. 3. The finding that the death was homicidal has not been assailed before us. There were 14 injuries on the deceased. Of them, 4 were gun-shot wounds and 1 was a puctured wound caused by an arrow-shot. In fact the arrow was sticking to the body at the time of inquest and post-mortem examination. Injuries 1 and 2 were 2 circulars punctured wounds, one being 1" above the right ear and the other on the right occipital region of the head, 1?' behind the right ear. Injury No. 2 appeared to be the wound of entry and injury No. 1 was the wound of exit. Both the injuries communicated with each other were sufficient in the ordinary course of nature to cause death. Injury No. 4 was one spindle shaped punctured wound. Injury No. 5 was a punctured wound. Both these injuries communicated with each other, injury No. 4 being the wound of entry and injury No. 5 being that of exit. Both the injuries communicated with each other were sufficient in the ordinary course of nature to cause death. Injury No. 4 was one spindle shaped punctured wound. Injury No. 5 was a punctured wound. Both these injuries communicated with each other, injury No. 4 being the wound of entry and injury No. 5 being that of exit. There was burning and blackening sign around injury No. 4 indicating that it was a gun-shot wound. Injury No. 14 was a punctured wound on the upper part of the abdomen 4" above the naval through which an arrow of the thickness of a pencil was protruding out. These injuries indicate that there were 2 gun-shots and 1 arrow-shot. The Doctor (p.w. 1) gave the opinion that the four ring-shaped abrasions, each 1" in diameter, represented by injuries 6, 8, 9, 10 and 13, might have been caused by poking the deceased with the muzzle and of the guns like M.Os. II and III. On the aforesaid opinion of the Doctor, conclusion is is resistible that the death of the deceased was homicidal. 4. The next question for consideration is whether the Appellants killed the deceased. The time of murder was late in the night when the villagers had gone to bed. P.Ws. 5 and 6 were sitting on this verandahs and smoking cigars. These two witnesses are brothers and are the sons of a separated brother of the deceased. P.W. 8 is the widow of the deceased. With anxious consideration we closely scrutinized the evidence of these 3 eye-witnesses and we are satisfied that they are witnesses of truth. They are Souras by caste and are Adibasis. It is well known that they are most unsophisticated. They can hardly fabricate false stories. There is no particular reason why they would falsely implicate the Appellants who did no personal injuries to p.ws. 4, 5 and 6. They are Souras by caste and are Adibasis. It is well known that they are most unsophisticated. They can hardly fabricate false stories. There is no particular reason why they would falsely implicate the Appellants who did no personal injuries to p.ws. 4, 5 and 6. Further the F.I.R. was lodged by the eye-witness p.w. 5 soon after the occurrence, and the entire prosecution story with considerable details has been mentioned in F.I.R. The names of the three Appellants were given in the F.I.R. The version of p.w. 5 that Appellants 1 and 3 gave 2 gun-shots and Appellant No. 2 gave an arrow-shot is fully corroborated even by the F.I.R. All the 3 eye-witnesses fully corroborate each other so far as the first part of the occurrence is concerned, namely, as to how the Appellants attacked the deceased at first with the gun-shot when the deceased was sitting in the village Danda for urination. The subsequent events were not seen by p.w. 8 who ran away to the new house of the deceased out of fear. These 3 eye-witnesses were examined by the A.S.I. (p.w. 9) soon after the lodging of the F.I.R. on 3-12-1965. They have given consistent versions throughout and no substantial discrepancy has been pointed out in this present evidence and in this statements made earlier. Mr. Rath pointed out certain discrepancies which are very immaterial. For instance, in Court p.w. 5 deposed that Appellant No. 1 pushed the door of the house of the deceased, as a result of which the wcoden latch (M.O. VII) gave way. The wCoden latch was seized by the I.O. In the F.I.R. p.w. 5 had stated that the deceased opened the door and came out. The learned Sessions Judge rightly pointed out that this is not a serious discrepancy. On the other hand, the recovery of the wCoden latch corroborates the testimony of p.w. 5 in Court. Similarly the ring-shaped abrasion corroborate the testimony of the eye-witnesses that the Appellants poked the deceased with the gun-end. 5. Mr. Rath very strenuously contended that the evidence of the eye-witnesses as to the manner in which the injuries were caused and the position of the Appellants at the time of causing the injuries are in conflict with the medical evidence. All that Mr. Rath argued had been presented to the learned Sessions Judge in the Court below and was rejected. Rath very strenuously contended that the evidence of the eye-witnesses as to the manner in which the injuries were caused and the position of the Appellants at the time of causing the injuries are in conflict with the medical evidence. All that Mr. Rath argued had been presented to the learned Sessions Judge in the Court below and was rejected. The learned Sessions Judge observed thus: It is argued on behalf of the defence that the gun-shot injuries as well as the arrow injury were not possibly caused in the manner in which it is described by the eye witnesses. Injury Nos. 4 and 5, i.e. the gun-shot wound at the waist of the deceased funs from below to upwards and it was caused either in the sitting posture or in the standing posture of the deceased as the doctor p.w. 1 states. The eye witnesses have deposed that the deceased was sitting to pass urine, when accused Tisana fised the shot standing on the verandah of the deceased, P.Ws. 4 and 6 state that this verandah will be about 3 cubits height. They state this by guess, but p.w. 9, the A.S.I. measured the height of the verandah and found it to be 1 foot and 4 inches high. The doctor (p.w. 1) has stated that this shot might have been fised within a distance of 4 feet as the surrounding of the entrance of the injury was burnt and blackened. The spot map Ext. 10 shows that the shot was fised from a distance of 7 feet. Evidently the spot map prepared by the M.O., p.w. 9 is based upon the statement of the eye witnesses. So it is inadmissible. Whatever that may be, the eye witnesses who stood under terror at the time of occurrence cannot be expected to give accurate position of the accused persons and the deceased or the distance from which the accused persons shot at the deceased. Moreover, the accused persons must be moving about when they fised the shots from the guns or the arrow from the bow which normally happens in such incidents. Similarly it is argued that the second gun-shot which relates to injury Nos. 1 and 2 on the head does not appear to have been given in the manner in which the eye-witnesses have deposed. Similarly it is argued that the second gun-shot which relates to injury Nos. 1 and 2 on the head does not appear to have been given in the manner in which the eye-witnesses have deposed. Accused Jurei fised this gun-shot at the back of the head and the bullet went out through the right temporal region. There is some confusion in the evidence of p.ws. 5 and 6 as to exact position which accused Jurei took when he fised this shot. Much reliance cannot be placed as to the accuracy of the description regarding the position which Jurei took at that point of time. It is difficult for a witness to give the exact position, specially because it is not expected that accused Jurei was standing steady and was not moving about at the time of occurrence. We agree with the aforesaid observation. The eye-witnesses have clearly stated that they could not notice as to the exact place where the gun-shots and the arrow-shot were made. Doubtless, they have given some details regarding the place where the Appellants were standing and this distance from the deceased. But much reliance cannot be placed on such descriptions, noticed by them during night and at a time when a complete confusion must have been created by a sudden attack on the deceased. This evidence on the essential features that 2 gun-shots and 1 arrow-shot were given is acceptable. The medical evidence is consistent with the broad features of the oral evidence. We accordingly accept the evidence of these 3 eye-witnesses and hold that the prosecution case has been established beyond reasonable doubt. 6. The defence had taken the plea that p.w. 7 was inimical to Appellants 1 and 2 and at his instance the eye-witnesses were lying. There is absolutely no material on record that p.w. 7 had any rivalry with Lesada for the post of Muthe-head. The suggestion has no legs to stand upon. 7. On 3-12-1965 at about 6. 30 P.M. the 2 guns M.Os. II and III and an arrow with 3 bows were seized from the house of Lesada, as pointed out by Appellant No. 1. He made a statement to p.w. 9 while in custody after his arrest that with these weapons the Appellants killed the deceased and on such statement the weapons were seized as per seizure list (Ext. 9). II and III and an arrow with 3 bows were seized from the house of Lesada, as pointed out by Appellant No. 1. He made a statement to p.w. 9 while in custody after his arrest that with these weapons the Appellants killed the deceased and on such statement the weapons were seized as per seizure list (Ext. 9). The 2 guns were sent to the Ballistic expert (p.w. 3). As they were sent late, the expert was not in a position to say whether the pellets recovered from the place of occurrence were shot from the two guns. He was, however, clearly of opinion that those pellets (M.O. VI) could be shot from the guns (M.Os. II and III). Mr. Rath advances a contention that the statements of Appellant No. 1 to p.w. 9 while in custody is inadmissible in evidence, as the investigation made by p.w. 2 is without jurisdiction and contrary to law. According to him, p.w. 9 was in charge of the outpost and was not an officer in charge of the Police Station and had no power of investigation on the basis of the F.I.R. This contention requires careful examination. 8. Investigation into a cognizable offence is made under Chapter XIV, Part V of the Code of Criminal Procedure. Section 156, Sub-section (1) in that chapter runs thus: Any officer-in-charge of a police station may, without the order of a magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. "Officer-in-charge of a police station", as per the definition u/s 4(1)(p), Code of Criminal Procedure, includes when the officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present. "Police Station", as per the definition u/s 4(1)(s) Code of Criminal Procedure, means any post or place declared, generally or specially, by the State Government, to he a police station, and includes any local area specified by the State Government in this behalf. "Police Station", as per the definition u/s 4(1)(s) Code of Criminal Procedure, means any post or place declared, generally or specially, by the State Government, to he a police station, and includes any local area specified by the State Government in this behalf. An outpost is not defined in the Code of Criminal Procedure. In Rule 136(a) of the Orissa Police Manual, Volume T, a description of the outpost has been given thus: Outposts are established in towns or remote parts of muffasil police stations for patrolling and surveillance and, generally, for the prevention of crime. They are not investigating centers and the officer-incharge, usually a havildar or assistant sub-inspector, though responsible for the state of his outpost, will only perform the duties he would carry out if posted to the parent police station, subject in the same way to the control of the sub-inspector. It would thus appear that an outpost is not a police station. As has already been stated, the outpost of Khajuripada is within the jurisdiction of Serango P.S., of which p.w. 10 was the officer-in-charge. The definition of Officer-in-charge of a police station, given in 4(1)(p), Code of Criminal Procedure, is an inclusive definition. It indicates that when the officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable, can do the duties of the officer-in-charge of the police station. P.W. 10 deposed that on 3-12-1965 he was at Parlakimedi on duty and was absent from the Police Station. In his absence, the A.S.I. of Serango P.S. received the F.I.R. (Ext. 5), drew up the formal F.I.R. (Ext. 5-1) and registered a case. It is not known as to who was senior in rank, as between p.w. 9 the A.S.I. in charge of the outpost and the A.S.I. Serango P.S., next below the officer-in-charge, of the P.S. This involves a question of fact and should have been canvassed by the defence before the trial Court. If the A.S.I. of the outpost was senior in rank, he was competent to investigate on the basis of the F.I.R., in the absence of the officer-in-charge of the P.S. at Parlakimedi. If the A.S.I. of the outpost was senior in rank, he was competent to investigate on the basis of the F.I.R., in the absence of the officer-in-charge of the P.S. at Parlakimedi. Rule 136(a) of the Orissa Police Manual does not stand in the way in such a contingency. Besides, the rule is not statutory. As this question of fact was not canvassed before the trial Court, it cannot be permitted to be raised for the first time in appeal. 9. Even assuming that the investigation by p.w. 9 was is regular it is cured by Section 156(2), Code of Criminal Procedure which lays down that no proceeding of a police officer of any such case shall at, any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. The sub-section is very wide in terms and covers all cases of is regular investigation made by a police officer not competent to investigate u/s 156(1). It, in unequivocal terms, refers to the validity of the proceeding of a police officer. No question of prejudice arises under the plain words of Sub-section (2). In H.N. Rishbud and Inder Singh Vs. The State of Delhi this view was propounded. This Lordships said that the plain language of the section must have fun effect, though they did not apply it to an inquiry under Central Act II of 1947 under which a special provision is made that the investigation in respect of certain classes of officers must be made by an officer not less then the rank of a Deputy Superintendent of Police. We accordingly reject the contention of Mr. Rath that the investigation was without jurisdiction and as such void. 10. Even though we reject the aforesaid contention, on merits we do not place any reliance on the statement of Appellant No. 1 to p.w. 9, while in custody. P.W. 9 deposed thus: Then accused Tisan showed me the place in his house, where the two guns, M.Os. II and III, and a bow with three arrows had been kept. This statement does not clearly show that Appellant No. 1 stated to have kept the aforesaid weapons of offence at a particular place in the house of Lesada, pointed out by him. II and III, and a bow with three arrows had been kept. This statement does not clearly show that Appellant No. 1 stated to have kept the aforesaid weapons of offence at a particular place in the house of Lesada, pointed out by him. The statement does Dot come within the purview of Section 27 in terms, even though in the seizure list (Ext. 9) the wordings used indicated that it was one under that section. The learned Sessions Judge has not utilized this statement in his judgment as a piece of incriminating evidence. No question was put u/s 342, Code of Criminal Procedure to give a chance to Appellant No. 1 as to whether he had kept the articles in the house of Lesada and gave discovery on information. To use the statement, (sic) the absence of such a question is likely to prejudice Appellant No. 1 in the facts and circumstances of this case. For the aforesaid reasons, we do not use the statement of Appellant No. 1 to p.w. 9 as a piece of incriminating evidence. 11. To sum up, we place reliance on the evidence of the eye-witnesses p.ws. 5, 6 and 8 which establish the case against the Appellants beyond reasonable doubt, and uphold the conviction. 12. The appeal fails and is dismissed. Ray, J. 13. I agree. Final Result : Dismissed