JUDGMENT : 1. On the basis of first information report scribed by Rajeswari Harpal, P.W. 1 and presented by her father Shankar Harpal in Sadar Police Station, Bolangir vide Sadar P.S. Case No. 172 of 2000 for the offence u/s 302/34, I.P.C., G.R. Case No. 577 of 2000 was registered in the Court of S.D.J.M., Bolangir. That case record was split up for commitment at different times because arrest of the accused persons took place on different dates. That is how three sessions cases numbered as Sessions Case Nos.107-B of 2001, 8-B of 2002 and 33-B of 2002 were registered. Notwithstanding registration of separate sessions cases, a common trial was taken up and the impugned common Judgment was delivered by learned Sessions Judge, Bolangir convicting the accused-Appellants for the offence u/s 302/34, I.P.C. and sentencing each of them to imprisonment for life. All the three accused persons have challenged the order of conviction and sentence by presenting appeal memo from the Jail. 2. The occurrence took place at about 9.30 P.M. on 5.11.2000 in village Sadeipali situated about 4 Kms. away from the township of Bolangir. According to the case of the prosecution, there was quarrel between accused persons Ubed Mugri, Sanjib Mugri and their family members on one side and Debraj Suna and Lokanath Suna, P.W.6 on the other. That quarrel was ensued because of thorn fence put by P.W. 6 on his Bari premises, as a result of which ingress and egress from the house of accused Ubed was obstructed. In that occurrence, there was mutual fight in which both Debraj and accused Ubed sustained injuries. About an hour after that occurrence, Bhojraj Nag. (hereinafter referred to as "deceased") was attacked by the accused persons while he was witnessing a video show in the village. Then allegedly accused Ubed was holding a Tangia (axe), accused Sanjib Mugri was holding a sword and accused Kainru Chhanda was holding a stick (lathi). 3. It is alleged by the prosecution that the accused persons attacked him at the place of video show, where accused Sanjib dealt a sword blow on the right leg, which according to the doctor who conducted post mortem examination, resulted in an incised wound of size 2" ? 1" ? bone deep with fracture of tibia bone on the medial aspect. 1" ? bone deep with fracture of tibia bone on the medial aspect. According to the case of the prosecution, on sustaining that injury and with a view to escape from further assault, the deceased ran away and entered into his house. His house consists of two rooms, one room is used as kitchen and the other as living room. According to the evidence of the eyewitnesses, which includes his mother Ujali Nag, P.W.4 and father Balaka Nag, P.W. 5, the deceased entered into the living room, the accused persons also followed the deceased and entered into that room and assaulted him as a result of which altogether the deceased sustained nine incised injuries and two abrasions and died instantaneously. P.W.1 and her father went and reported this matter in the police station at about 11.40 P.M. Nandlal Seth, Junior Sub-Inspector of Police took up investigation as per the direction of the Officer in-charge of the Sadar Police Station and ultimately submitted the charge-sheet against the accused persons for the offence u/s 302/34, I.P.C. In course of investigation, he attended to each aspect in a routine manner by making spot visit, holding inquest sending the dead body for post mortem examination so also for medical examination of accused Ubed. He also examined witnesses and made seizure of the incriminating materials from the spot and from other places. 4. Accused persons denied to the charge and claimed for trial. 5. To substantiate the charge, prosecution examined as many as twejve witnesses. Amongst them, Rajeswari Harpal, P.W.1; Kausalaya Suna, wife of Debraj Suna, P.W.2; Rakesh Suna, son of Debraj Suna, P.W.3;Utali Nag, mother of the deceased is P.W.4, Buluku Nag, father of the deceased is P.W.5 and Lokanath Suna, P.W.6 were examined by the prosecution as witnesses to the occurrence. Kainru Ray, P.W.7 is a witness to the seizure of the axe, M.O.I., which was projected as a case of discovery u/s 27 of the Evidence Act. Debraj Suna, P.W.10 was examined to prove the occurrence in the early part of the night i.e. at about 9.00 P.M., in which allegedly accused Ubed and his daughter assaulted him and made him unconscious. Rajendra Chhatria, P.W.11 is co-villager of the parties and he was a witness to seizure of blood-stained and sample earth under seizure list. Ext.6 and the inquest vide inquest report, Ext.7. Rajendra Chhatria, P.W.11 is co-villager of the parties and he was a witness to seizure of blood-stained and sample earth under seizure list. Ext.6 and the inquest vide inquest report, Ext.7. Rameswar Bisi, P.W.8 is a police constable, who accompanied the dead body for post mortem examination. Dr. Anantaram Meher, P.W.9 is the doctor, who conducted post mortem examination on dead body of the deceased and P. W. 12 is the Investigation Officer. Amongst the various documents marked as Exts. 1 to 10, Ext.1 is the F.I.R., Ext. 4 is the post mortem report, Ext.5 is the opinion report after examination of the axe, M.O.I, and Ext. 10 is the report of the chemical examiner and the serologist of State Forensic Science Laboratory. The axe seized under seizure list, Ext.2 was marked as M.O.I. In defence, accused persons examined accused Ubed as D.W.1 and relied on the spot map, Ext. A prepared in Sadar P.S. Case No. 171 of 2000 and the injury reports B,C and D, besides the certified copy of the Judgment in G.R. Case No. 576 of 2000, depositions in that case and the F.I.R. thereof respectively as Exts. E, F and G. 6. Learned Sessions Judge without determining, whether a case of culpable homicide is proved from the evidence of P.W. 9 and Ext. 4 recorded the order of conviction against the accused persons on the ground that in their evidence. P.Ws. 1 to 6 clearly prove that accused persons being armed with axe, sword and stick inflicted injuries and killed the deceased and that fact was admitted by the accused while leading to the discovery of M.O.I, for its seizure in presence of P.W. No. 7. Though learned Secessions Judge took note of the defence evidence as noted in paragraph 4 of the Judgment, but did not consider evidentiary value of such oral and documentary evidence vis-a-vis the prosecution evidence. Therefore, while going through the impugned Judgment, we find it to be of absolutely poor standard. Since the Presiding Officer has retired in the meantime, we note this deficiency for the guidance of the posterity. Therefore, while going through the impugned Judgment, we find it to be of absolutely poor standard. Since the Presiding Officer has retired in the meantime, we note this deficiency for the guidance of the posterity. In other words in a case of murder, it is the duty of the trial Court to assert if the prosecution proves a case of homicidal death and if that fact is decided in favour of the prosecution then only, the Court is called upon to assess the evidence to connect the accused with the alleged crime. 7. Notwithstanding the aforesaid deficiency in the trial Court Judgment, we are required to determine both the aspects one after the other. 8. Learned Counsel for the Appellant concedes that evidence of P.W.9 and Ext.4 leaves no room for doubt that the deceased suffered homicidal death. Learned Addl. Government Advocate in course of his reply also expresses similar opinion. On reference to the evidence of P.W.9, we find that in course of post mortem examination he found nine incised wounds of different dimensions on the lower 3rd of right leg, right palm of dorsal aspect, anterior aspect of right shoulder, extensor surface of left foreamon and around the neck at, below and lateral aspect of the chin affecting the mandible with fracture and displacement of chin of both sides. P.W.9 also found one abrasion of 1" ? ? cm over neck ?" below chin and another abrasion of 1" ? ?" on the anterior aspect of left knee. P.W. 9 opined that all the injuries were ante mortem in nature. Age of the injuries was about 18 hours from the time of post mortem examination. The injuries were sufficient to cause death and the death was due to hemorrhage and shock because of multiple injuries and fracture with tearing of vessels and that the injuries were homicidal in nature and sufficient to cause death. In the cross-examination, he has denied to the suggestion that the injuries were not sufficient in ordinary course of nature to cause death. On perusal of such evidence of P.W. 9 and Ext.4, we record the finding that the deceased suffered homicidal death due to the ante mortem injuries. 9. Learned Counsel for the Appellant argues that discrepancy in the evidence of the eyewitness inter-se is sufficient enough to discard their evidence. On perusal of such evidence of P.W. 9 and Ext.4, we record the finding that the deceased suffered homicidal death due to the ante mortem injuries. 9. Learned Counsel for the Appellant argues that discrepancy in the evidence of the eyewitness inter-se is sufficient enough to discard their evidence. She further argues that by their own evidence, all the witnesses except P.W.4 have made their presence as eyewitness sufficiently doubtful and P.W.4, because of her old age and poor eye-sight, could not have the ability to identify the culprits in the dark night while she was in the adjoining room and did not see the actual assault part. She further argues that the prosecution has projected the story, which is still shrouded with mistry inasmuch as no reason has been assigned for the motive of the accused persons to attack and kill the deceased when admittedly there is no allegation that the deceased or his parents had anything to do for the quarrel between accused Ubed against P.Ws. 6 and 10. He also argues that story of leading to discovery and seizure of the M.O.I, is totally not credible and even if it is held that such an axe was recovered, then also the prosecution has not led any evidence to connect the axe with the crime, because, the Investigating Officer did not send that axe for chemical analysis and serological test. She contends that on the other hand, the report from the S.F.S.L., Ext.10 gives the telltale circumstance that the wearing apparels of accused Ubed were having group 'A' human blood, whereas the deceased had group 'B' human blood and therefore, nexus of the accused persons in the killing of the deceased is myth and if not then at least there was no clear and clinching evidence to substantiate the charge and therefore the Appellants are entitled to the benefit of doubt. Learned Counsel for the Appellants further argues that the defence evidence i.e. the evidence of D.W. 1 and the spot map, Ext. A together with Injury Certificate, Ext.D is clear enough to prove innocence of accused Ubed and the Judgment in G.R. Case No. 576 of 2000, Ext. E indicates that occurrence relating to the fence took place around 8.00 P.M. on the same date i.e. 5.11.2000. 10. Mr. Nanda, learned Addl. A together with Injury Certificate, Ext.D is clear enough to prove innocence of accused Ubed and the Judgment in G.R. Case No. 576 of 2000, Ext. E indicates that occurrence relating to the fence took place around 8.00 P.M. on the same date i.e. 5.11.2000. 10. Mr. Nanda, learned Addl. Government Advocate, on the other hand, agrees that prosecution did not adduce any evidence to bring on record motive part of the accused persons. He however argues that the consistent and corroborative evidence of P.Ws. 1 to 6 are sufficient to prove that accused persons are the assailants and minor discrepancies, which were there in the evidence should be ignored keeping in view that they are rustic harizans. Accordingly, he argues to maintain the order of conviction. 11. Indeed, we find that learned Sessions Judge did not assess the evidence, save and expect summing up the evidence of each of the witnesses and thereafter in a casual manner making a general statement that P.Ws. 1 to 6 corroborates each other about the manner in which the deceased was attached by the accused persons. On perusal of the evidence, we find that P.W.1 in her examination-in-chief stated that by the time of occurrence (at about 9 to 9.30 P.M.) she was in the house of P.Ws. 4 and 5. It is the admitted case of the parties that the deceased is the son of P.Ws. 4 and 5 and they were living jointly and that their residential premises consist of two rooms, viz. the kitchen room occupied by P.Ws. 4 and 5 and the living room where the deceased was sleeping. In the F.I.R., scribed by P.W.1, there is no mention that P.W.1 was present in the occurrence room or the occurrence premises at the relevant time. In F.I.R. itself it has been noted that the informant Shankar (father of P.W.1) after learning about murder of the deceased returned to his house and woke her up and took her to the Police Station, where P.W.1 scribed the F.I.R. In the F.I.R., there is no mention about any persons witnessing the occurrence. She has also not stated in the F.I.R. that she witnessed the occurrence of assault. Added to that circumstance. P.W.4 in her evidence has clearly stated that she was alone in her house. That rules out the possibility of presence of P.W.1 in the occurrence house. She has also not stated in the F.I.R. that she witnessed the occurrence of assault. Added to that circumstance. P.W.4 in her evidence has clearly stated that she was alone in her house. That rules out the possibility of presence of P.W.1 in the occurrence house. Notwithstanding such glaring circumstance, learned Sessions Judge mechanically accepted her version as a competent eyewitness to the occurrence being present at the spot of occurrence. The aforesaid facts and circumstance clearly indicate that she is niece of the deceased and therefore an interested witness and here the interestedness motivated her to tell falsity regarding her presence in the occurrence room. Under such circumstance, it is not safe to rely on her evidence as an eyewitness to the occurrence. 12. P.W.2 is the wife of Debaraj Suna, i.e. P.W.10. According to the spot map, Ext.A, her house situates behind the house of the deceased i.e. occurrence house. Both the houses are apart from each being intervened by vacant premises i.e. Bari land of the family of the deceased. Door of the house of P.W.2 opens to road, which is on the backside of the occurrence house having no entrance from the backside. Apart from that P.W.2 stated that at the relevant time, the accused persons came to her house and after damaging the door entered into her house. Out of fear, she pretended to be asleep in between her two minor children and thereafter the accused persons went and killed the deceased. This story narrated by her runs contrary to the prosecution story that from the place of video show the accused persons continuously chased the deceased upto inside the occurrence room. The Investigating Officer has not stated that in course of investigation either he had found any broken door belonging to P.W.2 or he seized the same. According to P.W.4 the whole occurrence took around five minutes time inside the occurrence room. If that be so, evidence of P.W.2 that after departure of the accused persons from her house, she waited for some time and thereafter, she got up and came and saw the occurrence, does not appear to be probable. According to P.W.4 the whole occurrence took around five minutes time inside the occurrence room. If that be so, evidence of P.W.2 that after departure of the accused persons from her house, she waited for some time and thereafter, she got up and came and saw the occurrence, does not appear to be probable. Above all, by coming out from her house even looking at the occurrence premises, she could not have witnessed anything because that is the backside of the occurrence house and it was a dark night as admitted by all the eyewitnesses to the occurrence. In her evidence also, she does not speak of accused Kainru Chhanda holding a stick but he stated about the accused holding a sword and in that aspect, she contradicts the other witnesses. Fact remains that at about 8.00 P.M. there was quarrel between her husband and accused Ubed for which her husband faced the criminal trial as per the Judgment Ext. E. That proves the hostileness between P.Ws. 2, 3, 6 and 10 as against the accused persons. All these aspects were not taken into consideration by the learned Sessions Judge. On proper scrutiny of the evidence of P.W.2, we do not find her to be a reliable witness to the occurrence. 13. Evidence of P.W.3, son of P.W.2 also is to be analyzed in the same manner notwithstanding the fact that he stated that he was witnessing a video show. It has to be borne in mind that at 8 P.M. there was quarrel in which his father was injured as per the allegation in G.R. Case No. 576 of 2000 (see Ext.E). It is the evidence of P.W.2 that she was inside the house with two minor children and her husband had gone to police station. In that respect, P.W.10, i.e. the husband of P.W.2 and father of P.W. 3 stated that on sustaining the injury inflicted by accused Ubed in the occurrence at 8.00 P.M. that he lost his senses and regained the same after the occurrence of murder was over. When we have taken totality of the aforesaid facts and circumstances, P.W.4 witnessing a video show when the father is lying injured and the mother is lying unconscious appears to be totally improbable. Apart from that, according to P.W.3, accused Sanjib dealt sword blow and caused injury on the leg of the deceased. When we have taken totality of the aforesaid facts and circumstances, P.W.4 witnessing a video show when the father is lying injured and the mother is lying unconscious appears to be totally improbable. Apart from that, according to P.W.3, accused Sanjib dealt sword blow and caused injury on the leg of the deceased. It is admitted by both the parties and obviously, so that such injury has been described as injury No. 1 in the deposition of P.W.9 and that injury is "incised wound of size 2" ? 1" bone depth over lower 3rd of right leg on medial aspect with fracture of tibia bone." If that was the injury sustained by the deceased at that spot, there is no whisper of P.W. No. 12 that he visited the spot and found blood-stained earth at that spot, where the video show was going on. Apart from that on sustaining such injury and fracture of the tibia bone, it becomes difficult for a person to run in the manner described by P.W. 3. Therefore, because of the aforesaid glaring circumstance, evidence of P.W.3 is also equally appears to be untrustworthy. 14. So far as the evidence of P.W. 6 is concerned, because of the location of his house at different place and his statement that he witnessed the occurrence from the house of one Paradeshi Roy. It could not be possible to see the place of occurrence even by remaining standing on the door front and therefore, P.W.6, a hostile person to the accused cannot be relied upon. 15. On eliminating the evidence of the aforesaid witnesses as eyewitnesses to the occurrence, there remains evidence of P.Ws. 4 and 5. Admittedly, they are the parents of the deceased. P.W.4 in her evidence has stated that the living room and the kitchen are separated by walls with separate doors for each of the rooms and she was in kitchen and there from she was witnessing the assault part. In other words, she did not see the actual assault but could hear about the assault inside the occurrence room. The Investigating Officer does not speak of any mark of violence in the occurrence room. Be that as it may, P.W.4 stated in her evidence very clearly and that was neither challenged nor clarified by the prosecution that she was alone in the house when the occurrence took place. The Investigating Officer does not speak of any mark of violence in the occurrence room. Be that as it may, P.W.4 stated in her evidence very clearly and that was neither challenged nor clarified by the prosecution that she was alone in the house when the occurrence took place. That statement rules out presence of P.W.5 as an eye-witness to the occurrence. At the same time, P.W.4 admitted that because of the old age, she was having poor vision. In the above contest, learned Addl. Government Advocate referring to the paragraph 5 of the deposition states that blindness in the eyesight developed a year before the date of deposition. Contention of the learned Addl. Government Advocate is correct. But that part of the evidence of P.W.4 has no nexus with her answer about poor eyesight by the date of occurrence. She also admits that it was a dark night. She did not speak of availability of any artificial light like electric light or light from lamp or latrine. Under such circumstance, remaining inside one room and hearing the sound of assault from the other room, she could not have seen the person entering, the manner of assault and the persons decamping by providing clear identity. In other words, totality of her evidence would go to show that the assailants came, assaulted and killed her son, but so far as identify of the assailants are concerned, her version is not clear enough. Notwithstanding the aforesaid evidence of P.W.4 ruling out possibility of presence of P.W. 5 in the occurrence premises, on perusal of the evidence of P.W. 5, we find that in cross-examination he himself has admitted that he had concealed in the backside of the house and therefore, his evidence is also found to be not clear and credible as an eyewitness. We may record here that the callousness in the investigation and casual manner in conducting the prosecution has resulted in not bringing on record many material circumstance, which could have proved identity of the culprits i.e. the assailants. Those deficiencies cannot be filled up by giving grace of imaginations in the absence of relevant evidence. 16. In the above context, evidence of P.W.7 in proving the seizure of axe, M.O.I. and the opinion of P.W.9 that the injuries found on the dead body of the deceased were possible by that weapon are not creditworthy. Those deficiencies cannot be filled up by giving grace of imaginations in the absence of relevant evidence. 16. In the above context, evidence of P.W.7 in proving the seizure of axe, M.O.I. and the opinion of P.W.9 that the injuries found on the dead body of the deceased were possible by that weapon are not creditworthy. When admittedly, prosecution has led the story that assault was made on the deceased by axe and sword, the doctor could not have opined that all the injuries were possible by axe. The sword had different dimensions to cause different incised injuries than that of the axe, unless they were identical in shape. Apart from that, there is no explanation from the side of the prosecution as to why the axe, M.O.I, was not sent for chemical analysis and serological test to find out if human blood was available and, if so, then of what group. The wearing apparels and the extracted blood collected from accused Ubed was sent for test and that was found to be human blood of group 'A'. No human blood group 'B' which is the blood group of the deceased was detected from the wearing apparels of the accused Ubed, though he was detected shortly after the occurrence with the same wearing apparels and then he was taken to the hospital for treatment. The Investigating agency has not taken any steps either to seize or send the wearing apparels of the other two accused persons for chemical analysis or serological test. Under such circumstance, the report from S.F.S.L. rather adds to the innocence of the accused than to prove the guilt. The defence evidence as noted above, together with the evidence of the accused Ubed as D.W.1 goes to show that after the occurrence at 8.00 P.M. on sustaining injuries, when he was proceeding towards the police station, then the other occurrence might have taken place and therefore, police arrested him on the way from his village to the Police Station. In his evidence, P.W. 12 has substantially admitted to that fact situation and stated that while returning from the occurrence village he found the accused going with bleeding injury on the head and therefore, he was immediately sent to the hospital to be admitted as indoor patient and after being discharged from the hospital, the accused was arrested. 17. In his evidence, P.W. 12 has substantially admitted to that fact situation and stated that while returning from the occurrence village he found the accused going with bleeding injury on the head and therefore, he was immediately sent to the hospital to be admitted as indoor patient and after being discharged from the hospital, the accused was arrested. 17. We therefore find that if the evidence on record would have been assessed properly, then learned Sessions Judge could not have recorded order of conviction and the accused could have been granted the benefit of doubt. We see no reason to deviate from that conclusion. Accordingly, we record the finding that though the deceased suffered homicidal death but the evidence on record does not clearly prove that the accused persons are the assailants and therefore, they are granted the benefit of doubt and acquitted from the charge. The accused persons be set at liberty forthwith, if detention of any of them is not required in connection with arty-other criminal case. The Jail Criminal appeal is accordingly allowed. Final Result : Allowed