V. Dutta Gyani, C. J. (Acting) — This appeal against acquittal under section 378 (1) (3) CrPC is directed against the judgment and order of acqittal dated 29.6.90 as passed by learned Sessions Judge, Nagaon in Session Case No. 122(NH)/85, thereby acquitting the accused respondents of offences punishable under sections 395, 396 and 397 IPC and section 302 read with section 34IPC, giving them the benefit of doubt. Aggrieved by the same the State has preferred this appeal. 2. Briefly stated the prosecution case was that on the night, intervening 7th and 8th of May, 1981, the accused respondents broke open the door of the house of Md Abdul Khaleque and assaulted him with lathis and dagger. Md Abdul Khaleque succumbed to the injuries almost instantaneously and died on the spot. Thereafter, the complainants Md Abdul Latif’s mother, sisters and brothers were tied with rope and assaulted. These miscreants decamped with cash, gold ornaments and other valuables, such as, wrist watch, ear-rings, radio as can be seen from the first information report, Ext 1. Dacoity with murder was committed as a sequal. The deceased Md Abdul Khaleque has testified against the accuseds in a criminal case and was openly threatened with dire consequence by the accuseds for having deposed against them. As a sequal, this dacoity with murder was committed. The Ejahar, Ext 1 was lodged at Hojai Police Station in the small hours, around 4.00 AM on 8th May, 1981 on the basis of which a case under section 395/396 IPC was registered and taken under investigation by Sub-Inspector J. Ahmed. During the course of investigation the IO visited the place of occurrence, prepared a sketch map, examined the witnesses, seized the lamp along with other articles, held inquest on the dead body of Abdul Khaleque which was sent for post-mortem examination at Nagaon Civil Hospital and on completion of investigation twelve accused persons were charge-sheeted. The accused Namar Ali expired and the trial proceeded against the eleven. Prosecution examined, as many as, eight witnesses in support of the charges. The defence stand as can be gathered from the statements of the accused recorded under section 313 CrPC and the trend of cross-examination was one of plain outright denial of the prosecution case as a whole. 3. It was Dr. Prosecution examined, as many as, eight witnesses in support of the charges. The defence stand as can be gathered from the statements of the accused recorded under section 313 CrPC and the trend of cross-examination was one of plain outright denial of the prosecution case as a whole. 3. It was Dr. Goswami who had conducted the post-mortem examination but by the time his evidence could be recorded he had left for the Middle East, so Dr. BC Kalita, PW 3 who had worked together with Dr. Goswami and who was conversant with his writing was examined to prove the post portem examination report. The following external injuries were found on the dead body of Abdul Khaleque. “1. Condition of subject (1) Rigor Mortis present stout emaciated (2) Built average decomposed etc. (3) Eyes- closed (4) Mouth closed (5) Illegible (6) Illegible 2. Wounds-position size (7) One oblique lacerated wound 3”x l”x and character bone deep on the left side of forehead 3. Bruishes position sized (8) One diffused swelling invertex and nature. (9) One oblique lacerated wound 4”x1/2” brain matter deep. In right parieto occipital region. (10) One penetrating injury 1/2” x 11/2 “x muscle deep in the Antero lateral aspect of the upper part of left side of neck just below the tip of external ear. (11) One transverse incised looking wound l”x ½” x muscle deep in the Antero aspect of chest one in below the suprasternal notch.” 3A. A mere glance at the number and nature of injuries would indicate the different types of weapons used for inflicting these injuries which clearly points to the participation of more than one person. Learned Public Prosecutor appearing for the appellant State has assailed the acquittal as recorded by the trial Court on grounds more than one. According to him the approach and appreciation of evidence on the part of the learned trial Judge has been extremely unfair and unreasonable periously bordering on perversity. 4. Learned counsel appearing for the respondents, on the other hand, maintained that the acquittal as recorded by the trial Court proceeds on appreciation of evidence which is proper and does not call for any interference. 5.1 am fully conscious of the narrow scope of interference in appeal against acquittal. 4. Learned counsel appearing for the respondents, on the other hand, maintained that the acquittal as recorded by the trial Court proceeds on appreciation of evidence which is proper and does not call for any interference. 5.1 am fully conscious of the narrow scope of interference in appeal against acquittal. A mere possibility of taking a different view on evidence available on record would not afford a justifiable ground for interfering with the order of acquittal as recorded is wrong and perverse. The principles governing the scope of interference have been succinctly deal with in Tota Singh vs. State of Punjab, AIR 1987 SC 1083 . The same view has again been reiterated in Ajit vs. State of Karnataka, AIR 1997 SC 3255 . It is within this narrow ambit and scope that I proceed with to examine the order of acquittal as passed by the trial Court. The learned trial Judge in paragraph 8 of the impugned judgment has recorded that the learned Public Prosecutor at the very outset submitted that the prosecution has not been able to bring home the charges against accused Kutan Ali, Kuti Mia, Abdul Sattar, Abdul Jalil, Mustafuddin, Samsul Mia and Balu @ Babu Mia. This submission made by the learned Public Prosecutor has been endorsed by the learned trial Judge observing : “I fell incline to endrose the view of the learned Public Prosecutor so far as the above named seven accused persons are concerned. There being no inculpatory evidence to involve them with the alleged offence, the said accused persons are entitled to acquittal.” 6.1 have no grievance against the Public Prosecutor making such a frank candid statement made at the Bar. The learned Public Prosecutor is not a mouth piece of the police and if the statement so made by the Public Prosecutor comes on proper scrutiny of the case, it is something which deserves a kudos and it is open to the Court to agree with the views expressed by the Public Prosecutor. But the question that looms large with the Public Prosecutors appointed and at times as they are of considerations reflected in Srilekha Vidyarthy’s case, such statements made in the present set up and circumstances cannot be expected without a grain of salt. But the question that looms large with the Public Prosecutors appointed and at times as they are of considerations reflected in Srilekha Vidyarthy’s case, such statements made in the present set up and circumstances cannot be expected without a grain of salt. The learned trial Judge instead of so readily endorsing the view should have seen for himself, whether there was evidence enough to sustain the charges against accused. Therefore, it will have to be examined. 7. The other grounds of acquittal as quoted by the learned trial Judge are (i) non-mention of light burning, ‘Naga Chaki’ (a small oil lamp) in the room in the FIR, Ext 1; (ii) the claim of the witness to have seen the assailants in the chimney light in the case diary; (iii) the claim of the eye witnesses PWs 4, Halima Khatun, PW 5 Nurudin Ahmed , PW 6 Jawahiruddin and PW 1 Md Abdul Latif to have identified the assailants in the chimney light belied by the seizure memo. What is contradicted by the seizure memo Ext 2 is that only one lamp was seized and not four. Non-mention of seizure of lamp in the case diary, the changed date in seizure memo of Ext 2, which appears to have been prepared on 13.5.81, omission on the part of the witnesses to say that they recognised the accused persons in the flash of torch light; the accused who were actually identified not covering their faces was an unnatural phenomenon and the claim of the witnesses to have identified them, could not therefore is accepted. The graphic description given by the prosecution witnesses even after a gap of 8/9 years of the incident adversely affected their cerdibility. The omission as proved by PW 8 and the failure on the part of the investigating agency to hold test identification parade at the earliest stage possible, holding it after Wz years, is nothing sort of a farce. Although the prosecution witnesses were also injured and examined by Dr. Biswanath Mondal, PW 2, the delay in collecting the injury report on the part of the IO has been held to be adversely affecting the evidence of these witnesses. It is the prosecution case that a ‘NagaChaki’ lamp was burning in each and every room. Although the prosecution witnesses were also injured and examined by Dr. Biswanath Mondal, PW 2, the delay in collecting the injury report on the part of the IO has been held to be adversely affecting the evidence of these witnesses. It is the prosecution case that a ‘NagaChaki’ lamp was burning in each and every room. Now omission to state this fact that a ‘Naga Chaki’ lamp was burning rather too much to expect of any informant who soonafter the commission of dacoity and murder of his father goes to lodge a report in the small hours of the day, this omission cannot be said to be fatal to the prosecution case so as to throw it overboard. PW 1 in his evidence has categorically stated that he knew the accused persons both by name and face. He has identified the accused in the dock. He is one who is an injured witness. Now simply because the police officer failed to collect the injury report in time, is it the fault of the witnesses ? A lapse on the part of the Sub Inspector of Police in not promptly collecting the injury report, should it adversely affect the credibility of the witnesses? What is more significant to be noted is that although subjected to a very lengthy cross-examination, PW 1 in his cross-examination has referred to a ‘Naga Chaki’ lamp and has frankly admitted its omission in the FIR with mincing words. But one can envisage the situation and the mental condition. His statement in cross-examination is reproduced below to facilitate ready reference and appreciation : “Our house is made of wood, thatch and ekra plastered with mud. The house 3/4 nals from the road. The house where incident took place is situated North to South along ‘L’ type house. There is barandha on the front side.There are 4 rooms to \Yns Yiouse, 1 Tooms are sma\Y TYie porticos \s a\ \Yie- \>atV s\&e. oi Vnt mam house. The doors are made of wood. There is ‘venda’ in the door of my father’s rooms and in the other rooms, there is provision of cross bar. We close the rooms cautiously as the area is infected by wild animals also. The Nothern roon is a kitchen where my sister and mother use to sleep. On that night they were sleeping in that room. There is ‘venda’ in the door of my father’s rooms and in the other rooms, there is provision of cross bar. We close the rooms cautiously as the area is infected by wild animals also. The Nothern roon is a kitchen where my sister and mother use to sleep. On that night they were sleeping in that room. There is a door behind that room and my room on that house the door was closed. There is a gap (for the door) in behind my room and father’s room. The fence is not complete. In behind my father’s room and the portico there is a door. This door is kept closed. In the portico my elder brother, his wife and children (only daughter) slept. This room is contiguous without any gap in the house. There are 3 doors for entry to the main house, there is one door, in the room of my father, one in the Northern side of kitchen and one in the portico, on the Northern side. Entry to my room must be made either through the kitchen or my father’s room. My room is 8 x 7 cubits. I live in this room with my wife. There is a bed stead of 2/3 persons. There is an Alnah and a table in this room - North to South. The table was near the bed-stead. The Alnah was on the South- adjacent to the fencing. We sleep with our heads on the Northern side. There was no mosquito net. At 8/9 PM we generally go to bed. ‘Naga Chaki’ (means a lamp without any chimney). It is like a kupi. We do not use any lamp with chimney. The lamp was on the North of my bed near the partition fence. On a separate stand fixed on the fencing. It was 1/1 Vi cubits form my bed - on the East I heard sound of beating on the door and my father was also raised his voice by saying ‘Allah/Allah’. I got up and stood but did not hear any sound then. Immediately 3 persons entered in my room. They entered through the room of my father. They did not light their torches. The lamp in my room was burning. I did not ask them anything. 1 raised alarm (dacoit has come’). They stretched on my hand, I was afraid of. Immediately 3 persons entered in my room. They entered through the room of my father. They did not light their torches. The lamp in my room was burning. I did not ask them anything. 1 raised alarm (dacoit has come’). They stretched on my hand, I was afraid of. They asked me to kept quite and tied my hand. I did not ask anything. My wife also stood up and she was also tied with rope. They assaulted, took ear-ring from my wife and took us to the room of my elder brother. My younger brother used to sleep with father. I saw them untied. Kalai Mia was standing with a rod in his hand. At that time the door to the portico and the door of the portico (to the outside) were at that time ‘open’. In the portico, there is a bed stead only. Trunks and boxes were on fixed rack on the wall. I saw my eldest brother and his wife with their hands tied behind. Their daughter was on the bed and weeping. We were weeping standing in that room separately. My wife was by my side. After 2/3 minutes, my mother and sister were brought. In the room of eldest brother, I saw present one was ‘Makai’ with a dagger. The other unknown person had a lathi in his hand. My brother and sister were brought in a tied condition. My mother and sister were kept near me. After 3/4 minutes, my father and younger brother were brought to our room. Father was brought untied. After that the hands of father were tied in our presence. My father was first assaulted. Our legs were not tied. We told them to take all they needed. We could not do anything as our hands were tied. We did not try to resist them, in any form. Then Kalai Mia pierced the rod through the head, of my father. The rod was pierced when our father was lying on the ground. After dealt of my father, the accused persons were there for about 3/4 minutes. Nearby people came after departure of dacoits. About 1,000 people gathered there. I went to police station with Abdul Jabbar and Nurul Haque. The rod was pierced when our father was lying on the ground. After dealt of my father, the accused persons were there for about 3/4 minutes. Nearby people came after departure of dacoits. About 1,000 people gathered there. I went to police station with Abdul Jabbar and Nurul Haque. We searched and inspected the house and a list of missing articles in details.......I have not mentioned in my ejahar that a Naga Chaki was burning at the time of occurrence and that in its light we had seen accused persons while committing the offence. It is also not mentioned in my ejahar that the dacoits tied my father’s hand and were shifted to the room of the elder brother and that an iron rod was pierced by accused Kalai Mia.” 8. The trial Judge has made much of this non-mention of Naga Chaki in the case diary. It is a matter of common knowledge that police diaries cannot be used by the Court for formation of its opinion on the question of appreciation of evidence from a statements contained in such diaries. The approach of the learned trial Judge in this behalf was palpably wrong. The Supreme Court in Habeeb Mohammad vs. State of Hyderabad, AIR 1954 SC 51 has categorically held: “A Judge is in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries is the one allowed by section 172.” 9. The learned trial Judge while appreciating evidence of PW 1, Md Abdul Latif has noted in paragraph 16 of the impugned judgment that he recognised the accused persons in the light of ‘Naga Chaki’ lamp. Now this statement as recorded by the trial Judge is not wholly correct. What the witness has categorically stated is that he knew the accused person both by name and face and this statement has gone unchallenged. He was in his bed room when three persons intruded, he heard a gun shot outside and at the same time the words ‘Allah Allah’ He could recognise Monohar @ Moinuddin and Mangal in his room, they were carrying bamboo sticks and torch light. He was in his bed room when three persons intruded, he heard a gun shot outside and at the same time the words ‘Allah Allah’ He could recognise Monohar @ Moinuddin and Mangal in his room, they were carrying bamboo sticks and torch light. It is not merely of ‘Naga Chaki’ lamp, the accused were also carrying torch light and see the honest statement made by the witness PW 1 when he stated that he could not recognise the man who entered the room of his mother. Although he had seen them in the light of ‘Naga Chaki’ and they were also carrying torches but the third man whom he could not recognise, he has frankly admitted. The trial Court has failed to appreciate this honest statement made by the witnesses and simply gone by the omission in the FIR, Ext 1. 10. Learned counsel appearing for the acccused-respondents submitted that it is unbelievable that at 12 in the mid-night the lamps were burning in all the four rooms that too when they were sleeping with the family members including the wife. The learned counsel appearing for the accused-respondents is missing the hard realities of village life and the evidence on record. Accused Mokai, Kalia and Mongal were already known to the prosecution witnesses, they were co-villagers. Even the learned trial Judge has noted this fact. It is nobody’s case that on 7th of May, 1981 it was such pitch dark night that even an acquaintance could not be recognised. Accused-respondents in their examination under section 313 CrPC were pointedly asked the question that the witnesses had recognised them in the light of the lamp and it is significant to note that even the accused-respondents have not denied the existence of the light. Their pat reply was that they had not committed any crime, of course, it is not on the basis of the answer given by the accused, but the affirmative evidence adduced by the prosecution that the existence of light is proved. The accused were also carrying torches. PW 1 in his evidence has given description of the house. It is ‘L’ shaped housed situated North to South, about 3/8 nals from the road. There are four rooms with a verandah on the front side and porticos on the back side of the main house. The accused were also carrying torches. PW 1 in his evidence has given description of the house. It is ‘L’ shaped housed situated North to South, about 3/8 nals from the road. There are four rooms with a verandah on the front side and porticos on the back side of the main house. He has further stated that there is a ‘venda’ (a cross bar) on the door. The area is infested by wild animals and it is not as if all the family members were sleeping in the same room. His mother and sister were sleeping in the kitchen on the Northern side of the house. There is another door on the back side of that room which opens in his own room, but the door was closed. There is a portico behind his father’s room with a door and that was also kept closed. It was in this portico that his elder brother and his wife and the only daughter used to sleep. Now to say that chimneys were burning in all the rooms was natural because the family members were sleeping in different rooms and the area is infested by wild animals. At the time of incident PW 1 and his younger brother Abdul Kayum and his elder brother Nuruddin were married and each of them had a young daughter. To make a sweeping generalisation and say that how could the whole family sleep under the same roof in the same room is not only unrealistic but uncharitable as well to these rustic witnesses. 11. PW 1 has categorically stated that accused Mustafa, Moinur and Mangal are brothers. Mangal had married Makai’s sister and his house is about half a mile away from their own house. Similarly other accuseds Mustafa amd Manir reside at a distance of half a mile and accused Jalil and Kalai reside on the Eastern side at a distance of 50/60 nals (local measurement 1 Nal = 12 cubits) and this is all in the cross-examination of the witness. Similarly other accuseds Mustafa amd Manir reside at a distance of half a mile and accused Jalil and Kalai reside on the Eastern side at a distance of 50/60 nals (local measurement 1 Nal = 12 cubits) and this is all in the cross-examination of the witness. On one hand the witness PW 1 is being criticized for having omitted to mention about the existence of light in the FIR, in the same breath the fact that these were 4 burning lamps, small chimneys, has been critized as unnatural and it is not only the learned counsel appearing for the accused-respondents, but even the trial Court has also adversely commented upon the evidence of the prosecution witnesses that “the graphic description of the occurrence as given by the PWs after a gap of 8/9 years have been contradicted by the Investigating Officer (PW 8) almost on all important points. In order to evaluate their credibility, it is considered imperative to refer to the contradictions and omissions.” 12. Now let us turn to the evidence of PW 8 and the so called contradictions proved by him. PW 8 has admitted in his statement that he was entrusted with the investigation of the case on 8.5.81 at 4 AM and he opened the case diary at 4.30 AM. To appreciate what kind of Investigating Officer is he and how much reliance can be placed on his testimony can well be gauged from the following statements made by him : “... I opened the case diary in loose sheets. I copied the ejahar in the case diary at page 33. There are some pages before page No. 33. They are 69 in numbers. These papers are part of the C/D. Some of them are in white and some of them are in printed diary forms. I put my own pagination mark and according to the pagination the ejahar has been copied at page 1. Page No. 2 corresponds to printed page No. 36 and page No. 3 corresponds to printed page No. 39. There are 2 pages marked by me as page No. 3 and corresponding printed page Nos 39 and 3 respectively. When I collected the loose sheets, the printed page No. 3 was in my own possession. I have given my personal pagination mark in the papers after page No. l 3. The page No.6 corresponds to printed page No. 12. There are 2 pages marked by me as page No. 3 and corresponding printed page Nos 39 and 3 respectively. When I collected the loose sheets, the printed page No. 3 was in my own possession. I have given my personal pagination mark in the papers after page No. l 3. The page No.6 corresponds to printed page No. 12. I have not followed the procedure prescribed for maintaining case diary in respect of pagination. On 8.5.81 I wrote on 27 pages. Everything done by me has been incorporated in the pages. Ext 2 (seizure list of the lamp) has not been recorded in the C/D. On that day I prepared 6 seizure lists. There is no entry in the case diary about seizure of a lamp on 8.5.81. There is no note to this effect. We always try to find the means of recognition if the occurrence takes place during the night. There is no note in the C/D to show that on 8.5.81 I tried to find the means of recognition.” (emphasis supplied) 13. In face of all these, the first question that should have occurred to the mind of the learned trial Judge was, was PW 8 an honest Investigator? Deliberate falsities introduced and material facts suppressed by him, the lapses on his part donot help the accused in any manner, nor can they be allowed to take advantage of such lapses. As for examination of witnesses, he has no doubt stated that he has examined PW 1, PW 4, PW 5, PW 6 and PW 7 and he has elaborately dealt with omissions in their statements recorded by him under section 161 CrPC. What is more important to be noted is that the witnesses concerned have not been confronted with these so called omissions in their previous statements. The law on the point is well settled. A mere reading of the proviso to section 162 (1) CrPC and section 145 of the Evidence Act would indicate the procedure laid down for contradicting a witness with reference to his previous statement recorded under section 161 CrPC. Although the IO, PW 8, has been asked about the omissions, the same cannot be said to have been proved since none of the witnesses were confronted with those omissions. Although the IO, PW 8, has been asked about the omissions, the same cannot be said to have been proved since none of the witnesses were confronted with those omissions. The Supreme Court in Tahsildar Singh & another vs. State of UP, AIR 1959 SC 1012 has held : “The learned counsel’s first argument is based upon the words in the manner provided by section 145 of the Indian Evidence Act, 1872”, found in section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the judgment of this Court in Bhagwan Singh vs. State of Punjab (1) 1952 SCR 812 : ( AIR 1952 SC 214 ). Bose J., describes the procedure to be followed to contradict a witness under section 145 of the Evidence Act thus at page 819 (of SCR) : (at page 217 of AIR) : “Resort to section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such case all that is necesary is to look to the former statement of which no further proof is necessary because of the admission that it was made.” It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts : the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction : in other words, both parts deal with cross-examination; the first part with cross-examination other than by way of contradiction, and the second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked “did you say before the police officer that you saw a gas light? and he answers ‘yes’ then the statement which does not contain such recital is put to him as contradiction. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked “did you say before the police officer that you saw a gas light? and he answers ‘yes’ then the statement which does not contain such recital is put to him as contradiction. The procedure involves two fallacies : one is it enables the accused to elicit by the process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness’s statement, his entire statement could not be used for any purpose, whereas if a police officer recorded few sentences, by this process of cross-examination, the witness’s oral statement could be brought on record. This procedure, therefore, contravenes the express provision of section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants there is not self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police officer, and not between what he said he stated before the police officer and what he actually made before him. In such a case the question could not be put at all; only questions to contradict can be put and that question here posed does not contradict; it leads to an answer which is contradict by the police statement. This argument of the learned counsel based upon section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of section 162 of the Code of Criminal Procedure.” 14. The learned Judge was palpably wrong in going by the so called contradiction as proved by PW 8 who on his own statement appears to be dishonest witness. Nuruddin (PW 5), Halima Khatun (PW 4) and Jawahiruddin (PW 6) were examined on 8.5.81 itself by Dr. Biswanath Mondal (PW 2) at the Primary Health Centre at Lanka and that too on police requisition. It is hard to believe that these witnesses did not tell the police officer about the injuries and the persons responsible for inflicting those injuries. Nuruddin (PW 5), Halima Khatun (PW 4) and Jawahiruddin (PW 6) were examined on 8.5.81 itself by Dr. Biswanath Mondal (PW 2) at the Primary Health Centre at Lanka and that too on police requisition. It is hard to believe that these witnesses did not tell the police officer about the injuries and the persons responsible for inflicting those injuries. No police officer worth his salt would have omitted to question these witnesses about the injuries and how they were caused or inflicted. PW 8, IO is playing truant to his own role as an Investigating Officer when he says that the above named witnesses did not tell him about the injuries sustained by them. The learned trial Judge has accepted the word of the IO as if it is an oracle an truth. If the witnesses have been able to give what is described as graphic after a gap of 8/9 years of the incident, it is not because they had concocted a story, it is because they suffered- they are the victims. They live under the same roof. Nuruddin is the eldest son of deceased Abdul Khaleque who was murdered. Abdul Latif is his younger brother and Halima Khatun (PW 4) is their sister and Jawahiruddin (PW 6) is yet another brother. Now if these brothers and sister recall the incident of dacoity and murder and narrate the impression registered in their mind eyes, what is wrong about it? Why should they be discounted if they have honestly narrated the incident. Is it the result of distorting or exaggeration ? They are the victims bereaved ones, they are the ones who had been robbed and the Court finds fault with their graphic description that too on the ground that a dishonest investigator like the PW 8 has omitted to record certain statements. The approach of the trial Judge is not realistic. Here is an Investigating Officer who admits having held test identification parade long after about one and half year on 3.1.83. The learned trial Judge ignoring positive statements of the witnesses that the accused-respondents were known to them both by their name and face, their residence and relations have been described, yet has merely gone by the holding of test identification parade almost after one and half year after the incident. 15. The learned trial Judge ignoring positive statements of the witnesses that the accused-respondents were known to them both by their name and face, their residence and relations have been described, yet has merely gone by the holding of test identification parade almost after one and half year after the incident. 15. Now, let us turn to the evidence of PW 8 who has spared no stone unturned to spoil the prosecution case, there are not only lapses on the part of the IO, but deliberate acts of omission and commission which call for condemnation in no uncertain terms. He has admitted, “I have completed 18 years of service in the year 1981.1 investigated a number of cases including cases like murder, dacoity etc. We arrange test identification parade when the witnesses say that they would be able to identify the assailants if shown. My successor prayed for orders for holding TIP. My successor cited all the persons examined by me as witnesses.” 16. Now turning to the evidence of PW 1 as just noted above, who categorically claims to be acquainted with all the accuseds. PW 4, the sister of PW 1 who lodged the FIR has named all the accused persons and correctly identified them in the dock and there is no cross examination on the point. Similarly, PW 5, yet another sister of PW 1 who has also named the accused and the overt acts attributed to them. Nuruddin (PW 5) and PW 6, Jawahiruddin, there is not even an attempt made to challenge the identity of the accused, yet here is an Investigating Officer who held the test identity parade one and half a year after the incident. Are the witnesses to be penalised for that? If a dishonest investigator like PW 8 is hell bent to spoil the prosecution case, should the Court go by his misdeeds ignoring the natural honest version given out by the victims of the crime? The learned trial Judge, it seems, has not gone through the evidence of IO (PW 8) and without looking into the evidence of PW 2 who has examined all these injured witnesses, has again jumped to the conclusion, “this indicates that the PWs were not sure about the identity of the accused persons. This gains ground when we refer to the case diary. This gains ground when we refer to the case diary. In the case diary we find that a test identification parade was conducted on 3.1.83 i. e after 11/2 years.” Here again, as already noted above, contrary to the law laid down by the Supreme Court in Habeeb Mohammad’s case (supra), the learned trial Judge has sought support for his views from the case diary which is again palpably wrong and impermissible under the law. Case diary is not meant for such user. 17. The learned trial Judge has rightly posed the question if the prosecution witnesses, PWs 1,4,5 and 6 had identified the accused on the night of occurrence, why such an identification parade at a belated stage became necessary. So far as posing the question is concerned, the trial Judge is definitely right, but he has gone wrong in finding fault with the prosecution witnesses. It was a dishonest act on the part of the IO. Not a single witness has made any doubtful statement about the identity of the accuseds. They have not even been attempted to be cross-examined with reference to the identity of the accused. It is, because the IO had proved certain omissions in the previous statements of these witnesses who have stoutly denied the alleged omissions, the procedure as contemplated by proviso to section 162 (1) CrPC has not been followed at all and yet, the prosecution witnesses are blamed for nothing. They are denounced as giving out a graphic description. The FIR itself contains the names of the accused and the learned trial Judge has found out a reason for inclusion of these names in the FIR. He has noted, having concluded that the prosecution has not been able to answer the question as regards belated holding of test identification parade, the learned Judge has further explained as to why the FIR contains the names of the accused and in his test to find out the reason, the learned Judge has found it in the FIR itself. To quote in his own words, “it may be questioned as to why they were named in FIR lodged within 4 hours of occurrence.” The answer to this question is in the FIR where it is mentioned that the said four persons had once threatened to kill Abdul Khaleque for deposing against them in a criminal proceeding launched by one Siddique. This might have prompted PW 1 to name them in the FIR? This line of reasoning itself is utterly fallacious. No doubt, the FIR contains the defect as noted by the learned trial Judge that the father of the informant, PW 1 had given evidence against the accused in a criminal case and the accused had openly threatened that they would see him (informant’s father). Now, this is a motive suggested which has been construed by the learned trial Judge as the ground for falsely implicating the accused. If that was so, the least that was expected, in all fairness to the witness, that he should have been asked about it. The learned trial Judge does not search for this question and attributes motive to PW 1 for falsely implicating the accused, a question even which the defence did not suggest at the cross-examination. The evidence of PW 1 runs into 17 typed pages out of which 10 pages are devoted to cross-examination. But he has not been put a single question as to what prompted him to note the above fact in the FIR (Ext 1). Every alleged omission that was suggested to him without reference to the previous statement as recorded, has been emphatically denied by him. One ‘very weighty reason’ which is found favour with the trial Court is the so called statement made by all the PWs before the Investigating Officer that they would be able to identify the assailants if shown (see pahagraph 23 of the impugned judgment) and the learned Judge has noted that the prosecution has not been able to explain this common statement made before the Investigating Officer by all the PWs. Is it really true that all the prosecution witnesses have made such a statement? 18. Let us first see the evidence of PW 8. Firstly, it is undoubtedly not correct to say that any of the prosecution witnesses made such a statement to the IO PW 8. Of course, the IO in his cross examination towards the end of his statement pertaining to PWs 1,4 and 5 has stated that the witnesses told him that they would be able to identify the assailants, if shown. How this question arose and a particular part of the statements said to have been made by the witnesses is not even confronted to the witnesses, if one reads the evidence of these witnesses. How this question arose and a particular part of the statements said to have been made by the witnesses is not even confronted to the witnesses, if one reads the evidence of these witnesses. They are confident and emphatic about the identity of the accused whom they knew both by face and name. If the defence really wanted to rely on this gratuitous statement made by the IO, the pointed attention of the witness should have been invited to that part of the statement and the witness afforded an opportunity to explain the contradictions, if any, but nothing of the sort is done and the learned trial Judge has taken a point of utmost importance. Now this reasoning cannot at all be subscribed. Referring to the evidence of PW 7 at paragraph 25 of the judgment, the learned trial Judge has noted that this witness who visited the place of occurrence immediately after the dacoity was not told the identity of the accused and on this basis learned trial Judge infers that the witnesses were sure about the identity of the accused persons and having so noted once again the learned Judge refers to the case diary. To quote in his own words “this gains ground when we refer to the case diary. In the case diary we find that a test identification parade was conducted on 3.1.83 ie after 11/2 years”. As already noted above, such use of the case diary is not permissible under the law and this witness PW 7 refers to Abdul Kaiyum, S/o late Abdul Khaleque. It is he who reported that a dacoity was committed in his house and the witness has narrated in details as to what he saw. He saw the front door, Abdul Khaleque lying dead with injuries and he saw three penetrating injuries on the left side of the face and blood and brain matter coming out. This witness has further stated “Nuruddin, Abdul Latif and all other inmates of the house reported me that accused Monohar, Mangal Makai and Kalai committed dacoity in their house and assaulted them. They also told me that there were other persons along with above named four persons”. Now the learned Judge in his judgment at paragraph 25 has noted which is contrary to what has been quoted above. They also told me that there were other persons along with above named four persons”. Now the learned Judge in his judgment at paragraph 25 has noted which is contrary to what has been quoted above. It is simply a crude attempt distortion of statement made by a witness and to what extent such distortion can go. What PW 7 has stated in his cross-examination is quoted: “It is not a fact that I told the I/O that the victims reported that they will be able to recognise the dacoits and the things if shown. It is not a fact that I told the I/O that I was reported and that some of the villagers were involved in the crime. It is not a fact that Latif, Nuruddin and others did not tell him the name of the accused person and that Idid not go to the place of occurrence in the night.” 19. In contrast look to the observation made by the learned Judge it is seen that PW 7 went to the place of occurrence immediately after the dacoits had left, but he was not reported about the identity of the persons who had committed the dacoity. (see para 25). 20. The learned Judge even for follies and foibles of the accused blamed the prosecution witnesses and find fault with the identification. See for example what the learned Judge notes : “I do not understand as to why these four accused persons would take the risk of being identified in a serious case like dacoity with murder which they could have easily avoided by simply covering their faces with a piece of cloth. This consideration alone does not inspire confidence of the Court to believe that the said four accused persons were recognised by the PWs.” (see para 18). If the accused did not mask to cover up their faces it is for them to explain. How can prosecution be blamed for it. 21. The perversity of reasoning is writ large. The learned trial Judge has noticed some vital discrepancy in the occular evidence and medical evidence. So far as the external marks of injuries as found on Abdul Khaleque is concerned, comparing the eye witnesses account when describing the same as horrifying description the learned Judge observed that the evidence given by PW 3 does not say any injury on the head of the deceased. So far as the external marks of injuries as found on Abdul Khaleque is concerned, comparing the eye witnesses account when describing the same as horrifying description the learned Judge observed that the evidence given by PW 3 does not say any injury on the head of the deceased. Now PW 3 really speaking is not the medical officer who had performed the post mortem examination. In fact, it was done by one Dr. Goswami who left for the Middle East and PW 3 was examined in his place who is conversant with the writing and signature of Dr. Goswami and was also posted at the same hospital. As many as 5 injuries have been noted which are as follows : 1. One oblique lacerated injury 3”x 1” bone deep on the left side of forehead. 2. One deffused swelling on the vertex region of the skull. 3. One oblique lacerated wound 4” x 1 ½” into the brain matter on the right parieto occipital region of the head. 4. One penetrating injury ¾” x ½” muscle deep on the antero lateral aspect of the upper part of the left of the neck. 5. One transverse incised wound l” x ½” muscle deep on the anterio lateral aspect of the chest wall 1” below the supra sternal notch. 22. A lay man describing the injuries in face of injury No. 1 and 2 as noted above it is simply surprising as to how could the learned Judge aggrieved with the submission made by the PP as there were some vital discrepancy in the eye witness’s account and the medical evidence. Really speaking there is absolutely no incompatibility between the medical evidence and the eye witness account. The doctor described the injuries in their own way of the eye witnesses who are sons and daughters of the deceased. They have their own way of describing it. It cannot be said that there is any incompatibility between the eye witness account and the medical evidence. It is not a case where the witnesses state that a sharp edged weapon was used for inflicting the injury and what is found by the medical officer is a gun shot wound. The learned Judge has totally misappreciated the evidence. It cannot be said that there is any incompatibility between the eye witness account and the medical evidence. It is not a case where the witnesses state that a sharp edged weapon was used for inflicting the injury and what is found by the medical officer is a gun shot wound. The learned Judge has totally misappreciated the evidence. No reasonable man on the basis of the external injury as deposed to by PW 3 and described by other witness can even think of any incompatibility between the two. The finding recorded by the trial Judge in this behalf is simply perverse. 23. The investigation is not only bias but dishonest as well. It is not only police officer like PW 8 who subvert the public trust and undermine the public confidence in the rule of law. The learned trial Judge has by disregarding the misconduct of PW 8 and his biased dishonest investigation put a premium on thiswitness and discounted the eye witness account. PW 8 has failed to discharge his duty as an honest, upright Investigating Officer. There is an almost impartible threat run through the investigation as a whole. The learned trial Judge was palpably wrong in disregarding the eye witness account to the preference of such dishonest investigation. The trial Judge was not justified in disbelieving the evidence of eye witnesses, firstly because they were all present and have sustained injuries at the hands of the dacoits, being injured witnesses their presence cannot be doubted and nothing was brought in their examination to indicate that they were falsely implicating accused appellants and secondly because the contradictions referred to by the trial Court were not al all proved. Therefore, there was no justification in disbelieving the evidence of such witness. The fact that they are relations is no ground to discard their testimony after all who will be in the house except the family members at the dead of night when dacoity was committed. Therefore, there was no justification in disbelieving the evidence of such witness. The fact that they are relations is no ground to discard their testimony after all who will be in the house except the family members at the dead of night when dacoity was committed. The principles governing and regulating the hearing of an appeal against acquittal has been laid down by the Supreme Court in one of its very recent judgment in Ajit Savant Majagavi vs. State of Karnataka, (1997) 7 SCC 110 : “(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction, (2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse, (3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal, (4) In reversing the finding of the acquittal the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court, (5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted, (6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box, (7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.” Following the above principles, this appeal deserves to be allowed, it is accordingly allowed. 24. During pendency of this appeal accused Kalai Mia, Makai Mia and Kuti Mia as stated by the learned counsel for the accused respondents died. But their involvement and complicity is amply established which can undoubtedly to taken into account for the vicarious liability of other accuseds under section 149/34 IPC. The accused respondents are held to be guilty and sentenced to undergo imprisonment for life with fine of Rs.10,0007- or in default of payment of fine to undergo and suffer 2 years RI. The amount of fine when paid or recovered shall be paid as compensation to the victims and equally distributed amongst PWs 1, 4, 5 and 6, namely, Md Abdul Latif, Mustt Halima Khatun, Nuraddin Ahmed and Jawahirudin respectively. The accused respondents to surrender to undergo the remaining part of their sentence.