JUDGMENT : Surendra Narain Jha, J.- This appeal has been filed on behalf of the two appellants, who have been convicted under section 304 part II read with section 34 of the Indian Penal Code (for short 'the Code') and have been sentenced to undergo rigorous imprisonment for ten years each. 2. Initially, four accused persons including these two appellants stood charged under section 302 read with section 34 of the Penal Code for committing the murder by causing the death of the deceased Shitlal Sahni, but two of them, namely, Braj Kishore Singh and Pashupati Singh were acquitted, and the aforesaid two appellants ware convicted under section 304 Part II read with section 34 of the Penal Code, as stated above. 3. The prosecution case is that these appellants along with Braj Kishore Singh (since acquitted) brought the deceased Shitlal Sahni tied with a rope in an unconscious state to Dighwara Police Station at 11.30 P.M. in the night of 12.6.1974 whereupon it is said that the deceased Shitlal Sahni gave a statement which was recorded by the Officer-in-charge, Dighwara Police Station (P.W. 15) in which it was allaged that at about 2 P.M. on the same day his (Shitlal Sahni's) she-buffalo had grazed the crops of the field of Ram Bishun Singh, father of the appellants on which Ram Bishun Singh assaulted him with lathi and the two sons of Saitlal Sahni hurled brick- bats on Ram Bishun Singh and there ensued an exchange of hot words, but at the intervention of the villagers, the situation was calmed down. 4. On the same day, it is said that at about 6 P.M., the deceased Shitlal Sahni was returning after scattering the cow dung manure in his field and when he reached near the front of the house of Ram Bishun Singh, pashupati Singh (since acquitted) armed with bhala and Jai Kishore Singh (appellant no. 1) and Nand Kishore Singh (appellant no. 2) armed with lath is came there and abused the deceased and thereafter assaulted him as a result of which his two teeth had been broken and he received serveral injuries on his person and thereafter he fell down. 1) and Nand Kishore Singh (appellant no. 2) armed with lath is came there and abused the deceased and thereafter assaulted him as a result of which his two teeth had been broken and he received serveral injuries on his person and thereafter he fell down. It is further said in the aforesaid statement that one Quasim Mian (P.W. 6), who, was chopping a palm tree, asked them not to do so, at which, it is said, the appellants along with others told him that they would implicate him in a theft case. It is further alleged that from the place of assault, the accused persons dragged Shitlat Sahni (decd) to their Darwaja (Duara) and there the accused persons put him on a Khatia (cot) and tied his feet and hand and thereafter they took him to their village Shaidpur where it is said that Shitlal was kept for some time and from village Shaidpur, he was brought to a house close to a temple situate near the Eastern Railway Crossing of Dighwara railway station where Braj Kishore Singh (since acquitted) was present from before who along with Nand Kishore Singh (appellant no. 2) and Pashupati Singh (since acquitted) carried Shitlal on a cot to the police station and Jai Kishore Singh (appellant no. 1) returned back from there. 5. On the basis of the aforesaid statement (Ext. 4), a fornal first information report (Ext.11/1)-was drawn up at 11.45 P.M. on the same night by the officer-in-charge (P. W. 16). 6. Another version, which is alleged to have been made by Braj Kishore Singh (since acquitted) at 11.30 P.M. on 12.6.1974 is to the effect that the deceased Shitlal, who was a re-nowned dacoit of the locality broke open the lock of the house of his father, Raim Bishun Singh at which his father woke up and he was assaulted by the deceased Shitlal Sahni on his chest and back. On hearing hulla, these two appellants Nand Kishore Singh and Jai Kishore Singh came to the spot and found Shitlal (decd.) there. They also assaulted the deceased Shitlal with lathi. It is further alleged that on the same day at about 3 P. M., there was some altercation and exchange of hot words between the deceased Shitlal and the said Ram Bishun Singh as the she-buffalo of Shitlal Sahni had grazed the crop of the field of Ram Bishun Singh. They also assaulted the deceased Shitlal with lathi. It is further alleged that on the same day at about 3 P. M., there was some altercation and exchange of hot words between the deceased Shitlal and the said Ram Bishun Singh as the she-buffalo of Shitlal Sahni had grazed the crop of the field of Ram Bishun Singh. On the basis of the aforesaid statement of Braj Kishor Singh (since acquitted), the police after drawing up a first information report (Ext. II) also instituted a case under sections 511, 457 and 323 of the Penal Code. This statement is said to have been made by Braj Kishore Singh at Dighwara police station when they had brought Shitlal Sahni (decd.) on a cot at about 11.30 P.M. prior to the statement (Ext. 4) made by the deceased Shitlal Sahni. 7. The police, after, due investigation, submitted chargesheet against the four accused persons including these two appellants. Cognizance was taken thereafter by the Chief Judicial Magistrate, Chapra, and the case was transferred to the court of Judicial Magistrate, 1st class, Chapra, who, in turn, committed the accused persons to the court of session to stand their trial for the charge under section 302/34 of the Penal Code. 8. All the accused persons pleaded not guilty to the charge and they have totally denied the case as alleged by the prosecution. Their further defence was that the deceased Sitlal Sahni was a bad character named in the police Papers and he was involved in several theft and dacoity cases. When somehow, he was brought to the police station by accused persons, namely, Braj Kishore Singh (since acquitted) in the theft case, the police applied a third degree method. Shitlal Sahni was a noted criminal of the area and the deceased died on account of the injuries caused by the police. Their further defence was that in ORDER :to save their skin, the police concocted a false case against these appellants along with other accused persons on the alleged statement of the deceased Shitlal Sahni and also made some alterations and interpolations in the first information report (Ext. 11) which was drawn up on the statement made by Braj Kishore Singh, to use against them, just to conceal their own misdeeds. 9. 11) which was drawn up on the statement made by Braj Kishore Singh, to use against them, just to conceal their own misdeeds. 9. The prosecution, in ORDER :to substantiate its case and to bring home the charges to the accused persons, has examined as many as eighteen witnesses. Out of them, P.Ws. 1, 2 and 4 are hear-say witnesses. P.Ws. 3, 6 and 7 are hostile witnesses. P.Ws. 5 and 10 (one of the sons of the deceased Shitlal) are tendered witnesses. P.W. 8 is the wife of the younger brother of the deceased. P.W. 9 is the wife of the deceased. P.W. 11 is another son of the deceased. P.W. 12 is the doctor of Garkha State Dispensary who had initially examined the deceased and P.W. 17 is the doctor who was posted as a Civil Assistant Surgeon at Chapra Sadar Hospital at the relevant time, who held post-mortem examination on the dead body of the deceased, which had been brought by P.W. 14, a constable. P.W.13, the Officer-in-charge of Dighwara police station is a formal witness who only proved the case diary. P.W. 15 is the Investigating Officer. P. W. 16 is the Principal of Dighwara St. X' aviers Schools, who is said to have signed the statement (Ext. 4) of the deceased Shitlal Sahni alleged to have been recorded by the Officer-in-charge at Dighwara police station at 11.45 P. M. in his presence and P. W. 18 is a formal witness, who has proved the two first information reports (Ext. 11) and (Ext.11/1) recorded by Hiralal Jha (P.W. 15) and the final form prepared by one Bihari Pd. Verma (Ext. 12). 10. The learned Sessions Judge, after considering the circumstances and the evidence brought on the record has held- ''In my opinion, the above circumstances and the evidence brought on the rec6rd amply corroborated the dying declaration (Ext. 4) made by Shitlal and in view of the circumstances obtaining in the case the dying declaration made may safely be acted upon. Under the facts and circumstances of the, case. I, therefore, find that the prosecution case to the effect that the injuries found on Shitlal to which he succumbed were caused by the accused persons has been established beyond reasonable doubt." The learned 3rd Addl. Under the facts and circumstances of the, case. I, therefore, find that the prosecution case to the effect that the injuries found on Shitlal to which he succumbed were caused by the accused persons has been established beyond reasonable doubt." The learned 3rd Addl. Sessions Judge, while discussing the prosecution case, has also held that so far as the accused Braj Kishore (since acquitted) was concerned, there was absolutely no evidence against him to show that he had participated in the assault on Shitlal. In coming to this finding, be has relied on dying declaration (Ext. 4), because be has said in his JUDGMENT : that In the dying declaration (Ext. 4) itself, it has been mentioned that he joined be accused persons at a house nearby railway crossing at Dighwara while on his way to the police station and, therefore, no offence under section 302/34 of the Penal Code was committed by him and, as such, he found him not guilty of the offence. Similarly, the learned 3rd Additional Sessions Judge also gave benefit of doubt to another accused Pashupati Singh (since acquitted) on the ground that in the dying declaration, it is mentioned that he was armed with bhala but from the testimony of the witnesses, it appears that he was armed with lathi and actually he did not participate in the assault. Accordingly, be was also acquitted. However, the learned 3rd Addl. Sessions Judge, on the basis of the first information report (Ext. 11/1) which has been treated as dying declaration, has found these two appellants guilty under section 304 Part II read with section 34 of the Penal Code and sentenced them to undergo rigorous imprisonment for ten years each, as stated above. Hence, this appeal. 11. Learned counsel appearing on behalf of the appellants has strenuously argued that the prosecution bas not come with a clean hand and the manner, place and genesis of occurrence have not been proved, as alleged by the prosecution in view of the evidence available on the records. Learned counsel has further contended that the prosecution has completely failed to prove the charges lavelled against the appellants beyond reasonable doubts. According to the learned counsel, the statement (Ext. 4) alleged to have been made by the deceased On the basis of which a formal first information report (Ext. Learned counsel has further contended that the prosecution has completely failed to prove the charges lavelled against the appellants beyond reasonable doubts. According to the learned counsel, the statement (Ext. 4) alleged to have been made by the deceased On the basis of which a formal first information report (Ext. 11/1) was drawn up cannot be believed in view of the evidence given by P. Ws. 2, 9 and 17 and, therefore, it cannot be relied upon and the learned 3rd Additional Sessions Judge has wrongly convicted these appellants on the basis of the so-called dying declaration. Therefore, the conviction and sentences are perverse, bad in law and are fit to be set aside. 12. In ORDER :to appreciate the points raised by the learned counsel for the appellants, it is essential to scrutinise the evidence adduced by the prosecution. The factum of death of deceased Shitlal Sahni is not in dispute. The only question, in my view, that requires to be considered in this appeal is as to whether these two appellants are responsible for the death of Shitlal or not. In other words, whether the guilt can be fastened to them for causing the death of Shitlal Sahni. 13. According to the first information report (Ext. 11/1), the prosecution case is that the deceased Shitlal was brought to the police station by the accused persons themselves. He was brought on a wooden cot with which he had been tied up by a rope. From the first information report (Ext. 11/1) lodged by accused Braj Kishore Singh (since acquitted), it would appear that, no doubt, deceased Shitlal was brought to the police station in a cot in connection with a case under section 457 read with section 511 of the Penal Code and a case was also registered against the deceased Shitlal on the aforesaid statement of accused Braj Kishore Singh (since acquitted). The learned 3rd Additional Sessions Judge has divided the prosecution case into two parts on the basis of the aforesaid dying declaration. The first part relates to an occurrence which took place at about 2 P.M. on the date of occurrence i.e. 12.6.1974. The learned 3rd Additional Sessions Judge has divided the prosecution case into two parts on the basis of the aforesaid dying declaration. The first part relates to an occurrence which took place at about 2 P.M. on the date of occurrence i.e. 12.6.1974. From the aforesaid dying declaration it will appear that at the same time a she-buffalo entered into the Bhindi field of Ram Bishun Singh, father of accused Braj Kishore Singh (since acquitted) and damaged the Bhindi plants at which it is said that Ram Bishun Singh assaulted the deceased with lathi, which is the genesis of the second part of the occurrence in question. The second part relates to the occurrence which is said to have taken place at about 6 P. M. when the deceased Shitlal was returning after throwing cow dung manure in his field and when he reached near the front of the house of the aforesaid Ram Bishun Singh, accused Pashupati Singh (since acquitted armed with bhala, accused Nand Kishore Singh (appellant no. 2) and accused Jai Kishore Singh (appellant no. 1) armed with lathis came there, abused the deceased Shitlal Sahni and assaulted him causing, injuries on his head and. on other parts of his body in which two teeth of the deceased were also broken and then it is alleged in the dying declaration that the deceased Shitlal was put on a wooden cot and his hands and feet were tied therewith and from the place of occurrence, he was brought to the home village of the accused persons, namely, Shaidpur Kakaria and from there he was taken to a house near Dighwara railway station crossing where Braj Kishore Singh (since acquitted) joined them and accused Jai Kishore Singh (appellant no.1) returned from there and other persons, namely, Braj Kishore Singh (since acquitted), Nand Kishore Singh (appellant no. 2) and Pashupati Singh (since acquitted) carried him to the police station and a case was lodged against Shitlal Sahni by Braj Kishore vide first information Report (Ext. 11). 14. So far as the first part of the occurrence is concerned, the prosecution has examined P.Ws. 1, 2, 3 and 5, who had been named as the witnesses in the so-called dying declaration. So far as the second part of the prosecution case is concerned, these witnesses have not seen the actual assault on the deceased. 11). 14. So far as the first part of the occurrence is concerned, the prosecution has examined P.Ws. 1, 2, 3 and 5, who had been named as the witnesses in the so-called dying declaration. So far as the second part of the prosecution case is concerned, these witnesses have not seen the actual assault on the deceased. Therefore, for the second part of the occurrence, they are merely hear-say witnesses. Out of these four prosecution witnesses, as I have already indicated above, P.W. 3 has been declared hostile and P.W. 5 has been tendered. Even if assuming the first part of the occurrence to be true, in my view, the evidence of these prosecution witnesses would not be relevant for determination of the question as to whether these two appellants were really responsible for causing the death of the deceased which is a vital question for consideration in this appeal. The first part deals with the motive or genesis of the occurrence, the proof of which is not always - necessary in a criminal trial if the occurrence is proved otherwise. Even if the motive is not established, the prosecution case cannot be thrown out when there is other direct evidence to establish the prosecution case. Therefore, in my view, it is the second part which is the real and important part of the prosecution case and I have to see, as to how far the prosecution has been able to establish its case as made in the so-called dying declaration. From the aforesaid dying declaration, it would appear that there was bleeding from the injuries caused to the deceased Shitlal Sahni and from the evidence of the Investigating Officer (P.W. 15), it is evident that sufficient blood was found at the place of occurrence, which is just in front of the house of the appellants' father Ram Bishun Singh. 15. From the first information report (Ext. 11/1), the so-called dying declaration, it appears that the only eye-witness as mentioned therein was Quasim Mian (P.W. 6), who did not support the prosecution case and he was declared hostile. The non-support of the second part of the prosecution case by P.W. 6 also throws some doubt on the prosecution case as to whether it is true, or not, in the manner as alleged by it. The non-support of the second part of the prosecution case by P.W. 6 also throws some doubt on the prosecution case as to whether it is true, or not, in the manner as alleged by it. It is well settled that when a witness has been declared hostile by the prosecution, the prosecution exhibits its intention not to rely on him. So his version cannot be treated as the version of the prosecution. I find that the learned 3rd Additional Sessions Judge has rightly observed that in any case, P.W. 6 is of no avail to the prosecution and his testimony has to be discarded. The only witnesses who have come to support the second part relating to the assault on the deceased Shitlal Sahni are P.Ws. 2, who is, no doubt, a hear-say witness, Champa Devi (P.W. 8), the wife of the younger brother of the deceased and P.W. 9, Sona Devi, wife of the deceased. The learned 3rd Additional Sessions, Judge has rightly not accepted the evidence of P.W. 2 - so far as the assault on the deceased by the accused persons is concerned. 16. P. W. 4 has himself stated in his evidence that he had arrived at the place of occurrence after the assault was over and he had simply seen Shitlal (deceased) lying on his arrival. Though this witness claimed to be an eye-witness, but it appears from his evidence that he had not seen as to who gave the actual assault on the deceased. P.W. 7 has been declined hostile. Therefore, it is not safe to rely on his evidence. It may be pointed out here that a hostile witness should not be rejected outright, but the court has atleast to be aware that prima facie if a witness is found to have made different statements at different stages, he must be one having no regard for truth. 17. From a perusal of the impugned JUDGMENT :, it appears that the learned 3rd Additional Sessions Judge has based the conviction of the appellants relying upon the evidence of P.W. 8 only and on the so-called dying declaration (Ext. 4) of deceased Shitlal Sahni. 17. From a perusal of the impugned JUDGMENT :, it appears that the learned 3rd Additional Sessions Judge has based the conviction of the appellants relying upon the evidence of P.W. 8 only and on the so-called dying declaration (Ext. 4) of deceased Shitlal Sahni. The dying declaration is a statement by a person as to who caused his death or as to the circumstances resulting in his death and it becomes relevant in a case in which the cause of death of that person comes into question. It is, no doubt, true that great sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies, but the Court must be satisfied that the deceased was in a fit state of mind to make the statement. It was contended on behalf of the appellants that from the evidence of P.W. 9, the wife of the deceased and the evidence of the doctor (P.W. 17), who conducted the postmortem examination, it appears that the deceased was not in a fit state of mind to make the statement (Ext. 4) on the basis of which the first information report (Ext. 11/1) was recorded. P. W. 9, the wife of the deceased, has stated in her evidence before the trial court that at about 6 P. M. on the date of occurrence, she was present in her house. Children shouted that her husband was being assaulted and on hearing hulla, she rushed to the spot. In paragraph 6 of her deposition, she has stated that hundreds of persons had assembled before she arrived there. According to her, on reaching there, she saw her husband lying flat, she has further stated that had her husband been in a conscious state of mind, he must have talked to her. From her evidence, it appears that the deceased was unconscious at the place of occurrence when she arrived there. In this connection, it is also relevant to refer to the deposition of the doctor (P.W. 17) who held the post-mortem examination over the dead body of Shitlal Sahni (deceased). He has stated that on dissection of the scalp, the ecchymosis was present underneath and around the injury. On further dissection, the streak fracture of the right perietal and the right temporal bone was found. He has stated that on dissection of the scalp, the ecchymosis was present underneath and around the injury. On further dissection, the streak fracture of the right perietal and the right temporal bone was found. On opening the skul cavity, the mininges were found congested and on further dissection, there was a thin film blood over the right carebral hemisphere. 18. The learned counsel for the appellants has vehemently argued that when the condition of the deceased was such, he was not in a fit state of mind to make a statement, much-less a statement as contained in Ext. 4, which has been treated as the dying declaration and the learned 3rd Additional Sessions Judge has relied upon such a statement. In this connection, he has relied upon the decision in Banka Nayake and others-versus-State of Orissa [1976 B. Cr, C. (S.C.) 161]. In the aforesaid, case, the doctor has, however, stated that he found, on post-mortem examination, that there was congestion of the brain of the deceased due to head injury and that having lost consciousness. the victim might not have regained consciousness. In this connection, the Supreme Court observed in the aforesaid case as follows- "This part of the statement was also not noticed by the High Court and was also not taken into consideration even though it had a great bearing on the question whether the deceased could gain consciousness and make a dying declaration." 19. In the instant case also, I find that the doctor (P. W. 17) has stated in his evidence before the learned 3rd Additional Sessions Judge that the mininges were found to be congested on opening of the skull cavity of the deceased and, therefore, considering all these facts, in my view, it cannot be said with any amount of certainty that the deceased made the dying declaration after regaining consciousness and this aspect has not been considered by the learned 3rd Additional Sessions Judge while relying on such dying declaration. 20. Apart from this, when a dying dec1aration suffers from some infirmities, it requires corroboration. In the instant case, I find that the dying declaration was recorded by the investigating Officer (P.W. 15) at the police station when the Magistrate (the B. D. O.) was present there, because Ext. 4 has also been signed by P.W. 16 and the B.D.O., who has not been examined in this case. In the instant case, I find that the dying declaration was recorded by the investigating Officer (P.W. 15) at the police station when the Magistrate (the B. D. O.) was present there, because Ext. 4 has also been signed by P.W. 16 and the B.D.O., who has not been examined in this case. The Investigating Officer (P.W.15) has stated in his deposition that the time of the alleged occurrence was 6 P. M. and the Statement was recorded at 11.45 P.M. in presence of the B. D. O. and the Principal (P.W. 16). The learned counsel for the appellants argued that when the Magistrate was present at the police station, what prevented the Investigating Officer to make requisition of his services for recording the dying declaration. The learned counsel the appellants relied on a decision in Smt. Naraini Devi v. Smt. Ramo Devi and others (A.I.R. 1976 Supreme Court 2198) where it has been observed as follows- "..... ... The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it also appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration. Investigating Officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought to be encouraged. We have, therefore, excluded from our consideration the dying declaration, Ex. P-2, recorded in the hospital." 21. In the instant case, I find that when the Investigating Officer was recording the so-called dying declaration of the deceased, the Magistrate (B. D.O.) was present in the police station. I fail to understand as to why his services were not requisitioned when the Investigating Officer found the Shitlal in a precarious condition. The practice adopted by the Investigating Officer in the present case, in my view, was bad and should not be encouraged. I fail to understand as to why his services were not requisitioned when the Investigating Officer found the Shitlal in a precarious condition. The practice adopted by the Investigating Officer in the present case, in my view, was bad and should not be encouraged. In this connection, it my further be pointed out that P.W. 15, the Investigating Officer has stated in his deposition before the 3rd Additional Sessions Judge that Shitlal made a statement before him as an informant, which was recorded by him in presence of the B.D.O., Shri Bishwa Nath Singh (not examined) and Shri Khilerian Bernard (P.W. 16), the Principal of Dighwara St. X' viers school. It has also come in the evidence of the Investigating, Officer that the deceased Shitlal Sahni was entered into the register of the bad characters as serial no. A/75. He had already been arrested in connection with several dacoity and other criminal cases P.W. 16, the Principal has stated in his evidence before the 3rd Addl. Sessions Judge that the Investigating Officer Hiratal Jha, after recording the statement of the deceased, gut it signed by him as a witness. This witness has nowhere stated in his evidence that the B.D.O. was also present there at the time of recording of the statement and he also put his signature in his presence. My attention has been drawn to the impugned JUDGMENT : where the learned 3rd Additional Sessions Judge has said that P.W.16 has stated that he and the B. D.O. were present at the police station since before. But, it is an error of record, because P.W. 16 has nowhere stated in his evidence before the trial court that the B. D.O. was present along with him at the police station since before the deceased Shitlal was brought. I find that the signature of the B. D. O. has not been proved by this witness. I have not been able to appreciate as to why the B.D.O. has not been examined in this case on behalf of the prosecution to support the dying declaration. I also fail to appreciate as to why these two persons were present at the police station in odd hours in the night when the deceased Shitlal Sahni had been brought there. I also fail to appreciate as to why these two persons were present at the police station in odd hours in the night when the deceased Shitlal Sahni had been brought there. In my view, all these facts make it more suspicious and it is not prodent to base conviction on such a dying declaration recorded by the Investigating Officer. 22. Now, coming to the evidence of P.W. 8, whose evidence has been relied upon by the learned 3rd Addl. Sessions Judge in basing the conviction of the appellants. This witness is the wife of the younger brother of the deceased. She has asserted in her evidence that at the time of occurrence, she was present in the orchard. Therefore, it is not in dispute that she was not present at the spot where the occurrence took place. The learned Sessions Judge has himself observed that she had made inconsistent statement about the direction of the orchard. In Court, she has stated that the orchard was to the south of the Bathan of Ram Bishun, but before the police she had stated that it was on the north. The learned 3rd Additional Sessions Judge has said that, he would not attach much importanc to the discrepancy in her statement, as such-error in regard to the direction might have been made inadvertently. I may point cut here that she is the wife of the younger brother of the deceased Shitlal Sahni and she is, no doubt, an interested witness. The learned 3rd Additional Sessions Judge has convicted the appellants solely on the basis of her testimony. It is, no doubt, true that there is no hard and fast rule that the evidence of a partisan or interested witness cannot be acted upon, but if her presence at the place of occurrence is doubted, the Court must be careful in assessing the evidence of the interested witness. P.W. 8 has herself stated before the trial court that she was in the orchard which is at some distance from the place of occurrence and saw the entire occurrence from there. Therefore, b my view, unless it is corroborated by some cogent and reliable evidence, it is not safe to rely entirely on the testimony of an interested witness. P.W. 8 has herself stated before the trial court that she was in the orchard which is at some distance from the place of occurrence and saw the entire occurrence from there. Therefore, b my view, unless it is corroborated by some cogent and reliable evidence, it is not safe to rely entirely on the testimony of an interested witness. P. W. 8 has further stated in paragraph 20 of her deposition that the blood was cozing out from his body while the deceased Shitlal Sahni was being carried by the accused persons, but no blood was found on the cot on which, the deceased was carried by the accused persons nor any blood stained cloth was produced. P. W. 15, the Investigating Officer has stated in his deposition before the trial court that no blood was found on the cot (Khat par khoon nahin laga tha). Further, the Investigating Officer has stated in his evidence that during the course of investigation he had seized the blood stained earth and prepared a seizure list (Ext. 7) in presence of witnesses. In paragraph 22 of his deposition, he has specifically stated that he had neither sent the blood stained earth nor cloth to the chemical examiner. It may be pointed out here that in almost all the criminal cases, the blood stained earth found from the place of Occurrence is invariably sent to the chemical examiner and his report along with the earth is produced in the court. It is curious to note here as to why the Investigating officer had not sent the blood stained earth to the chemical examiner for examination and report. The Supreme Court in Lakshmi Singh and others etc. v. State of Bihar (A.I.R. 1976 Supreme Court 2263) has observed as follows- "To add to this another important circumstances is omission on the part of the prosecution to send the blood stained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault. In almost all criminal cases, the blood stained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report along with the earth is produced in the Court and it is yet one exceptional case where the procedure was departed from for reasons best known to the prosecution. In almost all criminal cases, the blood stained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report along with the earth is produced in the Court and it is yet one exceptional case where the procedure was departed from for reasons best known to the prosecution. This also, therefore, shows that the defence version may be true." In the instant case, I find that the prosecution has also departed from this procedure and it also throws grave doubt on the prosecution story. 23. Having considered all these facts minutely, I am unable to agree with the finding of the learned 3rd Additional Sessions Judge that the prosecution case has been established beyond reasonable doubt to the effect that the injuries found on the deceased Shitlal Sahni to which he succumbed were caused by the accused persons (appellants) 24. It has been the case of the defence that when somehow Shilal was brought to the police station, the police got an opportunity to teach him a lesson by applying a third degree method, as he was admittedly a bad character involved in several theft and dacoity cases. I have already mentioned earlier that this fact has also come in the evidence of the Investigating Officer that Shitlal (deceased) was a man of bad character. P.W. 9, the wife of the deceased Shitlal has also stated in her evidence that her husband was accused in many theft and dacoity cases ten years prior to the date of occurrence. It was contended by the learned counsel appearing on behalf of the appellants that the police also tampered with the case diary, because the first three pages of the case diary which was marked 'Y' for indentification were missing. It was contended on behalf of the prosecution that white-ants had actually eaten the aforesaid pages of the case diary and damaged these pages to that extent. P.W. 15, the Investigating Officer has also stated in his evidence before 3rd Additional Sessions Judge that he had removed the first three pages of the case diary by tearing them off. In my view, it is a serious thing. The Investigating Officer had no business to tear off the pages of the case diary even if it was demaged by white-ants. He should have kept them in the case diary in the same condition as they were. In my view, it is a serious thing. The Investigating Officer had no business to tear off the pages of the case diary even if it was demaged by white-ants. He should have kept them in the case diary in the same condition as they were. The missing of the first three pages of the case diary, to some extent, lends support to the defence case that there has been some tampering with the case diary. The learned trial Judge has himself observed that the missing of three pages of the case diary has not been properly explained, but at the same time he has also said that he was not prepared to accept the defence case that the deceased Shitlal had died due to assault by these police officers. It is well. settled that the onus is upon the prosecution to prove its case to its hilt and it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case. It is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case, that is sufficient to enable a Court to reject the prosecution version. In that case the accused persons are entitled to the benefit of doubt. In such type of cases even if the defence is not so formidable as the prosecution, the principle of benefit of doubt would operate and the accused would be allowed to reap the benefit of doubt. 25. Having examined the facts, circumstances, evidence and materials on the records of this case, I am of the view that the prosecution has not been able to establish its case beyond reasonable, doubt against these appellants and it is hazardous to convict them relying on such set of evidence. Therefore, in my view, the appellants are entitled to the benefit of doubt in this case. 26. In the result, therefore, I give benefit of doubt to these appellants. The appeal is accordingly allowed, the impugned JUDGMENT : is set aside and the appellants are discharged from the liabilities of their bail-bonds.