Judgment N. N. Singh, J. 1. This appeal has been preferred against the judgment and order of conviction and sentence passed by the 4th Additional Sessions judge, Dhanbad, in Sessions Trial No.99 of 1994 on 22-6-1995 and 23-6-1995 respectively by which both these appellants were convicted under Sections 302/34 of Indian Penal Code and were sentenced to undergo rigorous imprisonment for life. 2. Briefly stated, the prosecution case, as mentioned in the written report (Ext.1) submitted by Sheikh Jakir (P. W.3) to the officer incharge, Bhuli Out-Post, Dhanbad, on 22-10-1993, is that he alongwith his brother Sheikh Akhtar (deceased) were running a tea-stal near jharkhand More and on 22-10-1993 at about 7.00 p. m. , two Jawans (constables) of B. M. P. Camp came to the shop of the informant and asked Sheikh akhtar to bring wine for them, which was refused by Sheikh Akhtar, whereupon they were enraged and abused him. Further case of the prosecution is that the constables returned to their camp, got wine through some one else and then called Akhtar there who was made to take wine there and, thereafter akhtar returned to his shop. The case of the prosecution is that thereafter, the two constables Amresh Kumar and Ravi bhushan Dubey (appellants) came there to his shop and started abusing him and then again they went to their Camp and brought a rifle and one of the constables felled Akhtar by hitting him with the butt of the rifle and dragged him to the road where he sat on his chest and pierced the bayonet of the rifle in the neck of Akhtar, as a result of which he died. It was claimed that the occurrence took place in presence of Gopal Mahto (P. W.4) and Sheikh Murtaza (P. W.3 ). 3. On receipt of the written report (Ext.1), it was sent to Dhanbad (Bank more) PS. for registering a case, where dhanbad (Bank More) PS. Case No.659 of 1993 was registered under Sections 302/34 of Indian Penal Code against both these appellants and the police, after due investigation, submitted charge-sheet against these appellants and after commitment of the case, the appellants were put on trial and were convicted as aforesaid. 4. for registering a case, where dhanbad (Bank More) PS. Case No.659 of 1993 was registered under Sections 302/34 of Indian Penal Code against both these appellants and the police, after due investigation, submitted charge-sheet against these appellants and after commitment of the case, the appellants were put on trial and were convicted as aforesaid. 4. The defence, as gathered from the suggestions to the PWs, statement of the appellants under Sec.313 of the Code of Criminal Procedure and the arguments was that the appellants had been falsely implicated in the case. Further defence of the appellant Amresh kumar was that they had caught illicit liquor dealers who were quarrelling among themselves, who were released at the intervention of the local Mukhiya and out of grievance, the villagers falsely implicated them in this case. 5. In support of its case, the prosecution examined altogether 10 witnesses out of whom PW 9 is Dr. D. K dhiraj who held post mortem examination on the dead body of Sheikh Akhtar proved the post mortem report (Ext.3 ). PW 10 is SI Ashok Kumar, the Investigating Officer of this case. PW 7 pawan Kumar Mahto was tendered for cross-examination. PW 6 Sudan karmkar was declared hostile by the prosecution as he stated not to know anything about the occurrence and further claimed that he was not examined by the Police. PW 5, Ranjit Singh and pw 1 Sheikh Taiyab, the father of the deceased claimed to have reached the place of occurrence after the alleged occurrence and as such, they are not the eye-witnesses to the occurrence and simply stated to have seen the dead body of Akhtar with injuries. Similarly, pw 8 Ramesh Prasad Mahto is also a hearsay witness, who also stated to have seen only the dead body of Akhtar subsequently. PW 4 Gopal Chandra Mahto was also declared hostile by the prosecution and he also stated not to know anything about the occurrence and further stated that his statement was not recorded by the Police. He, however, proved his signature Ext.2 on the written report, PW 2 is Sheikh Jakir, the informant and PW 3 is Sheikh Mur-taza who claimed to be the eye-witness to the occurrence, both of them are brothers of the deceased Akhtar. 6. Pw 9 is Dr. D. K. Dhiraj. He, however, proved his signature Ext.2 on the written report, PW 2 is Sheikh Jakir, the informant and PW 3 is Sheikh Mur-taza who claimed to be the eye-witness to the occurrence, both of them are brothers of the deceased Akhtar. 6. Pw 9 is Dr. D. K. Dhiraj. He stated to have held post mortem on the dead body of Sheikh Akhtar on 23-10-1993 at 11.00 a. m. and he further stated to have found the following injuries: "n. B. No injury was found on the back of neck. Blood Clots have been confused with injury. Ante mortem injuries.- (1) Abrasion 1/2" x 1/4" on the back of left shoulder. (2) Abrasion 1/4 x 1/5" over outer third of the left collar bone. (3) Stab wound.- 3/4" x 1/4" muscle deep-placed 1" above middle portion of the left collar bone in the neck. On further dissection, the wound was seen to pass obliquely to right piercing through the oes-pheagus - pass below the right collar bone to enter into the lobe of the right lung for 2". Fluid blood approx.300 cc was found inside the right chest cavity throeco abdominal organs in general appeared normal. The stomach contained approx.100 cc blood clots mixed with some 30 cc partially digested rice and smelled of country liquor. Both sides of the hear were empty and so was the urinary bladder: Skull and brain showed nothing particular. " He opined that the death was caused due to shock caused by the aforementioned stab injury in the lungs about 18 + 6 hours before postmortem. In this cross-examination, he stated that no injury was found on the back of neck and he had found only one injury caused by sharp cutting weapon. He also opined that injury No. (2) was found on the front of the body. From the evidence of PW 6, this much is established that sheikh Akhtar died a homicidal death. 7 Now, the point for consideration is to see as to whether the prosecution was able to prove that the fatal injury was caused by these appellants. He also opined that injury No. (2) was found on the front of the body. From the evidence of PW 6, this much is established that sheikh Akhtar died a homicidal death. 7 Now, the point for consideration is to see as to whether the prosecution was able to prove that the fatal injury was caused by these appellants. I have already discussed above that PW 7 was tendered and PWs 4 and 6 were declared hostile by the prosecution and pws 1 and 5 were hearsay witnesses, who arrived at the place of the occurrence after the death of Akhtar and none of them claimed to have seen these appellants causing fatal injuries on the person of the deceased Akhtar. Similar is the evidence of PW 8 Ramesh prasad Mahto, who is also a hearsay witness. Now remains the evidence of PW 2 (informant) and PW 3, who are the brothers of the deceased. In written report (Ext.1), the prosecution case was that Akhtar refused to bring wine for the two constables and when the constables got wine through someone else and they called Akhtar and made him to drink wine and thereafter when Akhtar came to his shop, these appellants came there and then they went back to their camp and brought the rifle and one of them felled Akhtar down by hitting him with the butt of the rifle, dragged him to the road and then pierced the bayonet of the rifle in the neck of Akhtar. PW 2 in his examination-in-chief did not speak about Akhtar taking wine with the constables. Further development made in the evidence of PW 2 is that he named the appellant Dubey to be the person who hit Akhtar with the butt of his rifle and he further developed the case by stating that the bayonet was pierced by another appellant Amresh. In the written report, it was alleged that one constable (without naming him) hit the deceased with the butt of the rifle and dragged him to the road and then pierced the bayonet in his neck. In the written report, it was alleged that one constable (without naming him) hit the deceased with the butt of the rifle and dragged him to the road and then pierced the bayonet in his neck. This witness was examined in part on 6-6-1994 and the remaining cross-examination was done on 30-8-1994 on which day he demolished the entire cases of the prosecution by stating that he was not present in the shop and that he, alongwith his brother Murtaza (PW 3)had gone to bring gram and while they were returning, they heard hulla and went to his shop, where there was no light and some unknown persons were there and he saw Akhtar with bleeding/injury and that he did not say anything about assaulting Akhtar. Obviously, this shift in his stand was due to the gap in the date of his examination. However, no reliance can be place on the evidence of such witness. Moreover, I have shown above that this witness has developed the prosecution-case in his examination-in-chief from what he had alleged in his written report (Ext.1 ). In his examination-in-chief, he did not make specific allegation against the appellants, whereas in his written report (Ext.1), the allegation was not specific. 8. Pw 3 is Sheikh Murtaza, another brother of the deceased. He claimed that at about 7.00 p. m. on 22-10-1993, he was sitting in the hotel of sardarji at Jharkhand More. In paragraph 7 of his cross-examination, he stated that the hotel of Sardar Ranjit singh (PW 5) is at a distance of 35-40 ft. west of the shop of the deceased. PW 3 further stated that he saw two BMP constables (who were drunk) at the shop of akhtar and that both of them went to their camp and again came back with their guns. He further stated that the appellant Dubey hit Akhtar with the butt and then he (this witness) caught dubey from behind and begged to be excused if his brother had committed some mistake. He further stated that appellant Amresh, another BMP constable, pierced the bayonet in the body of Akhtar, which went upto his lungs. He stated to have taken Akhtar on a trekker to the hospital, but the doctor declared him dead. In his cross-examination, he admitted that in the hospital, he did not name the BMP constable. He further stated that appellant Amresh, another BMP constable, pierced the bayonet in the body of Akhtar, which went upto his lungs. He stated to have taken Akhtar on a trekker to the hospital, but the doctor declared him dead. In his cross-examination, he admitted that in the hospital, he did not name the BMP constable. He admitted in his cross-examination at para 5 that in his statement before the Police, he had simply stated that BMP Constable killed his brother and that he had not named these appellants (accused) at that time. Thus, from his evidence also, it is clear that there was no specific allegation against these appellants made by this witness in his statement made before the Police, but here in his evidence, he has alleged specific acts against these appellants. PW 4, Gopal Chandra mahto, who had put his signature (Ext.2) on the written report (Ext.1) was also declared hostile and he also did not support the prosecution case against these appellants. He was not asked by the prosecution to explain as to how he put his signature on the written report. The answer was given by this witness in his cross-examination that he was made to sign written paper. PW 5 Ranjeet singh stated that Murtaza had told him that someone had killed his brother and that Murtaza dtd not name the assailants. 9. Pw 10 is the Investigating Officer of this case. He stated that on receiving the outdoor (OD) Slip, he had gone to Central Hospital, Bhuli, where he found the dead body of Sheikh akhtar and by that time, the officer in charge and the Inspector of Bank More p. S. had also arrived there, but none of the family of the deceased was present there. He further stated that when he returned to Bhuli Outpost, Sk. Jakir (PW 2) give him the written report, which was sent to Bank More P. S. for registering the case on an endorsement of the officer-incharge who was present there and that he started investigation. That OD slip has not been brought on the record. PW 10 further stated that the inquest report was prepared by Sri t. Sharma, Executive Magistrate. That inquest report has also not been brought on the record. That OD slip has not been brought on the record. PW 10 further stated that the inquest report was prepared by Sri t. Sharma, Executive Magistrate. That inquest report has also not been brought on the record. He further stated to have inspected the place of the occurrence which was a road infront of the shop of the deceased, where he found blood on sand. In his cross-examination, pw 10 stated that blood stained earth was not seized by him. One Station diary (SD) Entry was also recovered in the police station, but that was also not brought on record. He proved formal the FIR (Ext.4), Non-production of the OD slip, SD Entry and non-seizure of blood stained earth from the place of the occurrence go to show that the investigation was made in a perfunctory manner. 10. Summing up the entire discussions made above, I find and hold that barring the witnesses who were either tendered, or declared hostile by the prosecution, or are hearsay witnesses -who arrived at the place of occurrence after the death of Akhtar, the deceased, there remains the evidence of only two witnesses i. e. , PWs 2 and 3, who are brothers of the deceased and even if they had supported the prosecution case, as they were close relations of the deceased, their evidence had to be scrutinized with great care and caution. Learned Counsel for the appellants pointed out that PWs 2 and 3 claimed to be present at the time of the said assault on the deceased, but none of them claimed to have made any effort to save the deceased. In such circumstances, in absence of any independent corrobora-tion, PWs 2 and 3 could not have been relied upon. In support of his contention, learned Counsel for the appellants have relied upon the decision of the supreme Court in the case of Anil phukan V/s. The State of Punjab, reported at AIR 1993 SC 1462 . There is no independent corroboration of the evidence of PWs 2 and 3. Moreover, I have discussed above that PW 2 in his subsequent cross-examination had given a complete go-bye to the prosecution case and had demolished the prosecution case against these appellants by stating that he was not present, nor PW 3 was present at the place of the occurrence. Moreover, I have discussed above that PW 2 in his subsequent cross-examination had given a complete go-bye to the prosecution case and had demolished the prosecution case against these appellants by stating that he was not present, nor PW 3 was present at the place of the occurrence. I have also discussed above that developments were made in the evidence of PW 2 in his examination-in-chief and specific allegations were made in the evidence, which was not in the initial allegation made in the written report (Ext.1 ). Moreover, in Ext.1, the allegation was that the same person hit the deceased with the butt and then dragged him and pierced the bayonet. PW 3 admitted that he had not named these appellants as assailants in his statement before the police and had simply stated that BMP constables had killed his brother. In such circumstances, the appellants were entitled to get the benefit of doubt and deserve to be acquitted of the charge. 11. In the result, this appeal is allowed and the order of conviction and sentence of the appellants are set aside. The appellants are in custody. They are acquitted of the charge (s) and are directed to be released forthwith, if not wanted in connection with any other case (s ). Appeal Allowed.