1. The appellants Abdul Hamid and his 2 (two) sons Izzat Ali and Idrish Ali had been convicted under section 302/^4 and 323 of the Indian Penal Code by the learned Sessions Judge, Nagaon in Sessions Case No 1 (N M) of 1984 and sentenced to undergo rigorous imprisonment for life, 2. The occurrence took place at about 3-00 A.M. on 6.x 1981. Fakaruddin was murdered at the bank of Naramari Beel (Lake) near the house of accused persons. Fakaruddin with his nephew Rustom Ali planted an les for catching fish in that Beel, in that ni'ht. Tney were sleeping at some distance on the bank of the Beel. Hearing sound of fish hooked in the angles, Fakaruddin proceeded to catch it . The prosecution case was that at that time all the three (3) accused persons caught hold of Fakaruddin and assaulted him with deadly weapons resulting his death, and that Rustom Ali was also assaulted by accused Izzat Ali. First Information Report was lodged by Samsher Ali at about 0.-30 A.M. of 16.8.1981. 3. It was stated in the First Information Report that the three (3) accused persons attacked Fakaruddin and Rustom Ali at about 3:00 A.M. while they were angling in the Beel ; that Rustom Ali fled from that place and reported about the occurrence; that immediately Samsher Ali, Asbar Ali, Soban Ali, Ashar Ali and others proceeded to the house of accused persons and there they heard the cry of Fakaruddin in the jute field near the house of accused where they found Fakaruddin lying with grievous injuries; that on being asked, Fakaruddin said-"the accused persons (named three) fled away after injuring him with sharp weapons" that Fakaruddin died at about 5-00 A.M. while being carried to Lahorighat Hospital. A very significant fact may be mentioned that there was no indication in the First Information Report that the informant or his companions namely, Ashar Ali, Soban Ali and Ashar Ali could see any of the accused near the place of occurrence or going away from the place of occurrence or recognising them. 4. All the three (3) accused pleaded not guilty of the charges under sections 320/34 of the Indian Penal Code. Prosecution examined as many as 8 (eight) witnesses. 4. All the three (3) accused pleaded not guilty of the charges under sections 320/34 of the Indian Penal Code. Prosecution examined as many as 8 (eight) witnesses. The accuseds also pleaded innocence while examined under section 313 of the Cr.P.C. There was no dispute on the fact of death of Fakaruddin at about 3-00 A.M. to 500 A.M. of 16.8.1981 as a result of injuries sustained in the jute field near the house of accused, on the bank of the Naramari-Beel. Dr. Premananda Goswani (P.W.I.) held post mortem examination on the dead body of Fakaruddin and found 5 (five) incised wounds on different parts of the body including head and abdomen. The peritonial cavity was full of blood due to injuries over the intestines and liver corresponding to the incised and panchered wound in the epigastrium region. Doctor opined that all the injuries were anti-mortem and death was caused due to shock and haemorrhage as a result of the injuries. According to Doctor, the injury in the epigastrium region causing cut of the liver was sufficient to cause death. The other four (4) injuries taken together were also sufficient to cause death. The other four (4) injuries taken together were also sufficient to cause death due to profuse haemorrhage. Learned Sessions Judge accented the opinion of the Doctor. Considering the nature of the injuries, we fully endorse with the finding of the learned Sessions Judge. According to prosecution, Rustom Ali (P.W.4) was an eye witness of the occurrence. He deposed that he followed Fakaruddin who proceeded towards the angles to catch the fish and at that time he saw the three (3) accused Hamid, Izzat and Idrish attacking Fakaruddin and assaulting him and that Izzat also dealt a blow on hi n and thereupon he ran to the house of Kasem (P.W.6) and reported the occurrence and then proceeded to Lahorighat Hospital for his treatment. He further deposed that he could recognise the three (3) accused as it was moon-lit night. He did not implicate the three (3) accused persons by name in his statements under sections 161 and 164 of the Cr.P.C. before the Investigating Officer and the Magistrate respectively. He did not state in his earlier statement that he could recognise the accused persons at the occurrence. Rustom had implicated the three accused persons by name for the first time in the trial. He did not state in his earlier statement that he could recognise the accused persons at the occurrence. Rustom had implicated the three accused persons by name for the first time in the trial. P.W.6 Abdul Kasem simply proved the inquest report~(Exhibit-l). He did not depose with regard to other material facts of the occurrence. However, we have looked into his statements recorded under section 161 and 164 of the Cr.P.C. by the Investing ting Officer and the Magistrate respectively because according to Rustom, Kasem was the first and only man to whom the occurrence was disclosed Kasem stated to have heard from Rustom but did not state about Rustom implicating the accuseds by name before him. Thus we find that Rustom did not disclose the names of three accused as assailants before Kasem, Investigating Officer and the Magistrate. Rustom was not a reliable witness. 6. P. W. 3 Asraf AH and P. W. 5 Samser AH (informant) deposed that Rustom came to their house at about dawn and awoke them from sleep and reported that Fakaruddin was assaulted by Hamid. Izzat and Idrish on the bank of Beel. This version had not been corroborated by Rustom Ali. Evidence of P. W. 3 and P. W. 5 on the fact had no evidentiary value for absence of corroboration by Rustom AH. It was clear from the evidence of Rustom Ali that he reported the occurrence only to Kasem Ali and then proceeded to Hospital. Thus, we find that Asram Ali and Samser Ali had no occasion to know the names of the assailants before they visited the place of occurrence. So, their evidence of getting report from Rustom was not believable. It is found that Rustom, Asram and Samser introduced new facts in the trial to improve the prosecution case for implicating the three accused perhaps for the reason that injured Fakaruddin was found lying inside jute field on the bank of the Beel near the house of the accused. These three (3) witnesses are not reliable. 7. The house of Asraf and Samser are situated at some distance from the place of occurrence. The occurrence took place at about 3-00 A. M. They visited the place of occurrence in the early morning and found Fakaruddin lying injured. Some time must have been passed from the actual occurrence till arrival of these witnesses. 7. The house of Asraf and Samser are situated at some distance from the place of occurrence. The occurrence took place at about 3-00 A. M. They visited the place of occurrence in the early morning and found Fakaruddin lying injured. Some time must have been passed from the actual occurrence till arrival of these witnesses. It was very much doubtful if injured Fakaruddin was in speaking state after sustaining the injuries, described above, while these witnesses arrived. Doctor opined that a person would not be able to talk on sustaining the incised wound in the epigastrium extending on both sides cutting intestines and the liver (injury No. 5). Considering the nature of the injury and the opinion of the Doctor, we are of the view that the deceased with such type of injury No. 5 coupled with other injuries was not in a position to speak out shortly after sustaining the injuries. Therefore, the evidence of these witnesses on the fact of dying declaration by the deceased was not believable. 8. Cross-examination of the witnesses Asraf, Rustom and Samser was inadequate before the trial Court. Their attention was not drawn to their previous statements made under section 161 and 164 of the Cr. P. C. for the purpose of contradiction. It appeared that neither the Public Prosecutor nor the Defence Lawyer attempted to bring out the contradiction or omissions of material facts although these appeared quite contrary to their evidence before the Court. It might be that they failed to peruse the case diary and the statements or that perhaps Public Prosecutor might knowingly avoid drawing attention of the Court about the previous contrary statements of the witnesses which were glaringly significant for the correct decision of the serious charge. It is the duty of the Public Prosecutor as well as the Defence Lawyer to help the Court with the material facts by putting it in evidence including previous statements of the witnesses which are contradictory in material particulars for deciding the involvement of accused with the crime. In their failure, it becomes the duty of the Court, in appropriate cases, to peruse the case diary and statements under section 164 for ascertaining the credibility of the witnesses and probability of the prosecution case. In their failure, it becomes the duty of the Court, in appropriate cases, to peruse the case diary and statements under section 164 for ascertaining the credibility of the witnesses and probability of the prosecution case. The Court is entitled to d this under section 172(2) of t e Code of Criminal Procedure This view was previously taken by this Court in the case Priyalal Barman vs. State reported in A.I.R. 1970 Assam and Nagaland 137. Statements in the case diary and under section 164 are important materials, although not substantive evidence, in a criminal trial to test the credibility of the witnesses by contradicting them in the manner provided under section 162 of the Code of Criminal Procedure and under section 145 of the Evidence Act. Inadequate cross examination in serious offence case a duty on the Court to peruse the case diary and the statements under section 164 to discover the truth of the allegation for the interest of justice. The learned Public Prosecutor, Mr. K. P. Sarma very fairly drawn our attention to the statements of the witnesses Rustom, Samser and Asraf recorded under section 161 and 164 which appeared quite contrary with their evidence in Court. Mr. Sarma has aptly submits that the material facts had not been placed before the trial Court and had these been brought into evidence, the involvement of the accused could be found either false or doubtful. For this reason and also considering the seriousness of the charge(murder) in the case, we perused the previous statements of those witnesses for the interest of justice. We commend the learned Public Prosecutor Mr. K. P. Sarma for observing fairness to assist the Court. 9. The learned Sessions Judge was not justified to convict the three (3) appellants for the charge of murder. This appeal is allowed. The judgment and order of conviction dated 10.10 198x are set aside. All the three (3) appellants Abdul Hamid, Idris Ali and Izzat are acquitted of the charges and set at liberty forthwith