JUDGMENT : Raghubir Dash, J. This Jail Criminal Appeal is preferred against the impugned judgment and order dated 04.09.2013 passed by the learned Additional Sessions Judge, Chatrapur in S.T. No.111 of 2013, corresponding to Sessions Case No.54/2000(A) in the First Track Court, Chatrapur as well as Sessions Case No.328/2000-GDC in the Court of Sessions Judge, Ganjam at Berhampur, which arises out of G.R. Case No.38/2000 on the file of the learned J.M.F.C., Kodala corresponding to Kodala P.S. Case No.32/2002. The appellant has been convicted for commission of offences under Sections 302/34 and 120-B/34 of I.P.C. Whereas no separate sentence is passed for the offence under Section 120-B of I.P.C, the appellant-convict has been sentenced to life imprisonment with payment of fine of Rs.2,000/-, in default, to undergo R.I. for three months for the offence under Sections 302/34 of I.P.C. 2. The F.I.R. story, in short, is like this: On 17.2.2002 at about 5.00 P.M. the deceased, namely, Pranati Rout @ Leena with her elder sister, Lipsa Rout, was returning home. On their way, they were suddenly attacked by three persons who after attack fled away but meantime had caused three cut injuries on nose, face and forehead of the deceased Pranati Rout @ Leena. With the help of some passersby injured while was being shifted to the local hospital (U.G. P.H.C., Polsara) on a trolley rickshaw, made oral dying declaration to Babu Jena that Duga Nanda, Gyana Patnaik and Basanta Rath (the appellant) were her assailants. Getting information about the assault, the informant (deceased’s father) with other members of his family rushed to the hospital. At about 8.20 P.M. the injured Leena Rout succumbed to the injuries. At about 10.00 P.M. F.I.R. was lodged at Polsara Outpost. Having made Station Diary entry at the Outpost, the S.I. of Police in-charge of the Outpost took up investigation. The F.I.R. was forwarded to Kodala Police Station in the same night wherein P.S. Case was registered at 11.30 P.M. 3. At about 10.00 P.M. F.I.R. was lodged at Polsara Outpost. Having made Station Diary entry at the Outpost, the S.I. of Police in-charge of the Outpost took up investigation. The F.I.R. was forwarded to Kodala Police Station in the same night wherein P.S. Case was registered at 11.30 P.M. 3. In course of investigation the I.O. (P.W.13) examined witnesses, conducted inquest over the dead body, sent the dead body for post-mortem examination, visited the spot, seized weapon of offence and other materials from the spot, seized the wearing apparels of the deceased, sent the seized materials for chemical examination, received injury report as well as post-mortem report from the hospital, made seizure of some other materials, received chemical examiner’s report and, on completion of investigation, submitted charge-sheet on 16.6.2002. It appears, on 23.8.2002 the Inspector of Police (P.W.14) attached to C.I.D., C.B., Cuttack took charge of the case for further investigation but did nothing substantial in course of such further investigation. On completion of further investigation supplementary charge-sheet was submitted on 4.2.2003. 4. It further appears that the case was split up as against the present appellant and then on 21.5.2009 charge was framed against him under Sections 302/34 and 120-B/34 of I.P.C. During trial fourteen witnesses were examined. P.W.1 is deceased’s elder sister with whom the deceased was going on the road when the assault took place. P.W.2 is deceased’s mother. P.W.3, the informant, is the deceased’s father. P.W.4 is a Grama Rakhi who was present at the time of inquest and who accompanied the dead body for post-mortem examination. P.W.5 is a witness to the seizure of the weapon of offence. P.Ws.6, 7 and 8 are cited as eyewitnesses but all of them have turned hostile. P.Ws.9 and 10 do not say anything about the case. P.W.11 is an Advocate who is the scribe of the F.I.R. P.W.12 is the Medical Officer, U.G. P.H.C., Polsara who had attended the deceased and had issued the injury report. P.Ws.13 and 14 are the I.Os. 5. The defence plea is one of false prosecution. No defence evidence was adduced. 6. P.W.1 is the only witness examined by the prosecution during trial, who claims to have witnessed the occurrence. P.Ws. P.Ws.13 and 14 are the I.Os. 5. The defence plea is one of false prosecution. No defence evidence was adduced. 6. P.W.1 is the only witness examined by the prosecution during trial, who claims to have witnessed the occurrence. P.Ws. 2 and 3, parents of the deceased, have deposed to the effect that having heard from one Sabita Patra that accused persons namely, Duga Nanda, Gyana Patnaik, Rama Nanda, Nisi @ Siba and Basanta Rath (the appellant) jointly assaulted the deceased, they rushed to the spot to find her lying in injured condition and at that time she made a statement in the nature of oral dying declaration saying that the above named accused persons physically assaulted her inflicting the injuries on her person. Though it is also claimed that at the time of the assault Anjali Kar and Sabita Patra were accompanying the deceased, those two witnesses, though cited in the charge-sheet, have not been examined by the prosecution. No explanation is forthcoming. Though it is claimed by the informant that some other persons were present when the deceased made the aforestated dying declaration, none of them have been examined in this case. In the F.I.R., it is specifically stated that when the deceased was being taken to the hospital she, on being asked by one Babu Jena, disclosed that Duga Nanda, Gyana Patnaik and Basanta Rath (the appellant) had inflicted the injuries on her person. This Babu Jena is a charge-sheet cited witness but he has not been examined as a prosecution witness and there is no explanation for that. Facts that the deceased had sustained injuries as noted in the injury report (Ext.9) and the post-mortem report (Ext.14), that the deceased died on account of those injuries and that the injuries were caused by giving blows with a sharp cutting weapon were never disputed at the time of trial. Thus, the fate of the prosecution case depends entirely on the reliability of P.Ws.1, 2 and 3. 7. The impugned judgment reveals that learned State Defence Counsel while participating in the trial before the learned trial court, had assailed the testimony of P.Ws. Thus, the fate of the prosecution case depends entirely on the reliability of P.Ws.1, 2 and 3. 7. The impugned judgment reveals that learned State Defence Counsel while participating in the trial before the learned trial court, had assailed the testimony of P.Ws. 1 to 3 on several grounds but put much emphasis on the contention that these witnesses are untrustworthy and that, in the facts and circumstances of the case, it cannot be said to have been proved beyond reasonable doubt that the appellant was one of the assailants. Learned trial court was of the opinion that these witnesses, being corroborated by other supporting evidences, are trustworthy and through them the prosecution has been able to prove its case beyond reasonable doubt. Considering that P.Ws.1 has directly implicated the present petitioner and P.Ws. 2 and 3 claim that in their presence the deceased made a dying declaration implicating the present appellant their testimonies require a careful critical analysis. 8. The F.I.R. was scribed by an Advocate. Occurrence took place at about 5.00 P.M. The deceased was shifted to the hospital and was under treatment from 6.00 P.M. She succumbed to the injuries at about 8.20 P.M. (Ext.24). It is stated by P.W.1 that the hospital is 10 to 15 cubits away from the Police Outpost. The I.O., P.W.13, claims that before the F.I.R. an intimation letter about the medico legal case was received from Medical Officer, U.G. P.H.C., Polsara. He has stated that no Station Diary Entry was made on that intimation, nor was the intimation letter forwarded to the court at any point of time. He claims that the injury requisition was issued to the U.G. P.H.C. at 8.00 P.M. Since he claims that no information was received at the P.S. prior to the Medical Officer’s intimation letter it is implied that the intimation about the medico logical case was received at the Outpost before 8.00 P.M. The I.O. further says that at 8.20 P.M. he went to the hospital and learnt that the injured was already declared dead. F.I.R. was lodged in the Police Outpost at 10.00 P.M. The I.O., who was then In-Charge of the Police Outpost, does not appear to have made any entry in the Station Diary till receipt of the F.I.R. P.Ws.1 and 3 claim that from the spot they accompanied the injured/deceased to the hospital. F.I.R. was lodged in the Police Outpost at 10.00 P.M. The I.O., who was then In-Charge of the Police Outpost, does not appear to have made any entry in the Station Diary till receipt of the F.I.R. P.Ws.1 and 3 claim that from the spot they accompanied the injured/deceased to the hospital. Since it is claimed that on the way the deceased had disclosed names of the assailants to her parents and that the assailants were not unknown to P.W.1 who, according to the prosecution, is an eye-witness, F.I.R. could have been lodged by any of them soon after their arrival at the hospital/U.G. P.H.C., moreso when the Police Outpost is almost adjoining to the hospital and P.Ws. 1 to 3 all are educated persons. Lodging of the F.I.R. at 10.00 P.M. under the circumstances stated above seems to be a delayed action taken by the informant. 9. Even though the F.I.R. was lodged with some delay and it has been scribed by an Advocate with a detailed narration of the facts known to the informant by the time the F.I.R. was lodged, the tenor of the F.I.R. narration is suggestive of the fact that the identity of the assailants was not known to any person other than the deceased and the entire prosecution case depends on the deceased’s statement made to Babu Jena which is in the nature of his oral dying declaration. Though in the F.I.R. it is clearly stated that P.W.1 was also present with the deceased and that the assailants laid attack on both the sisters, in the F.I.R. it is not disclosed that P.W.1 had also named the assailants before any person including her parents. Therefore, P.W.1’s assertion that the appellant and his associates (all are named by her) assaulted the deceased is very difficult to be accepted. Though she claims that she also received scratches in course of the incident she was not sent for medical examination. Though she claims that when she came in contact with the deceased her wearing apparels got bloodstained, prosecution does not claim that her bloodstained apparels were seized. Therefore, her presence at the spot becomes doubtful. 10. The F.I.R. is very clear that the family members of the deceased, on being informed about the assault, proceeded directly to the hospital where they saw the deceased in an injured condition. Therefore, her presence at the spot becomes doubtful. 10. The F.I.R. is very clear that the family members of the deceased, on being informed about the assault, proceeded directly to the hospital where they saw the deceased in an injured condition. It implies that none of them had gone to the spot before the deceased was shifted to the hospital. Therefore, the presumption is that P.Ws.2 and 3 were not present when the deceased made the dying declaration to Babu Jena. Under such a situation, their assertions that being informed they had rushed to the spot and that they have heard the deceased naming the assailants are highly doubtful. Informant’s statement under Section 161, Cr.P.C. was first recorded on 17.2.2002 soon after the registration of the case. In that statement he has not stated that on being informed by others he with his family members had rushed to the spot where the deceased disclosed identity of the assailants. This material omission has been duly proved through the I.O. Furthermore, it is brought on record that P.W.2 also did not state before the police that getting the information about the attack on her daughter she and her husband had rushed to the spot. Therefore, the claim made by P.Ws. 2 and 3 that in their presence the deceased had made any statement does not inspire credence. Babu Jena, to whom the deceased had allegedly named the assailants, having not been examined as a prosecution witness, the statement in the nature of dying declaration losses all its evidential value. Thus, the prosecution story as narrated in the F.I.R. falls to the ground. 11. The earliest version of the prosecution is that all of a sudden three persons came, laid an attack on the deceased as well as her sister and immediately thereafter they escaped from the spot. Some passersby came to the rescue of the victim and shifted her to the hospital. Some persons went to the informant’s house to give information. On being informed informant and his family members rushed to the hospital. Subsequently, there was a development in the prosecution story. The statements of witnesses, who are claimed to be eye-witnesses, were recorded by the I.O. with some important addition to the earlier version. Witnesses stated that Anjali Kar and Sabita Patra were also with the deceased and her sister (P.W.1). Subsequently, there was a development in the prosecution story. The statements of witnesses, who are claimed to be eye-witnesses, were recorded by the I.O. with some important addition to the earlier version. Witnesses stated that Anjali Kar and Sabita Patra were also with the deceased and her sister (P.W.1). It was Sabita Patra, who ran to the informant’s house to give information. Getting such information the deceased’s family members rushed to the spot and found the deceased lying there with bleeding injuries. Finding her parents by her side the deceased disclosed the names of as many as six persons participating in the assault. While deposing in the court P.Ws.1 and 3 have clung to the later version of the prosecution story. Such subsequent improvement in the prosecution story gives rise to a grave suspicion. The degree of such suspicion gets enhanced when it is found that the I.O. took resort to Section 164, Cr.P.C. to get statements of such witnesses recorded who are none other than the deceased’s father, mother and sister. This compels the court to deal with the evidence of these witnesses with more caution. In Balak Ram and another Vrs. State of U.P., reported in AIR 1974 SC 2156 it is observed that witnesses whose statements have been recorded under Section 164 Cr.P.C. feel tied to their previous statements given on oath and have but a theoretical freedom to depart from the earlier version. A prosecution for perjury, it is observed, could be the price of their freedom. The evidence of such witnesses must be approached with caution. It is, of course, open to the court to accept the evidence of such witnesses but the salient rule of caution must always be borne in mind. That is all the more so necessary when almost all the eye-witnesses are subjected to this tying-up process. 12. Ext.2 is the inquest report. On the body of this report, at column No.9 meant for “opinion of witnesses as to the cause of death”, Babu Jena has endorsed that the deceased was assaulted by Duga Nanda by means a Kati. That is all the more so necessary when almost all the eye-witnesses are subjected to this tying-up process. 12. Ext.2 is the inquest report. On the body of this report, at column No.9 meant for “opinion of witnesses as to the cause of death”, Babu Jena has endorsed that the deceased was assaulted by Duga Nanda by means a Kati. It is this Babu Jena, who is named in the F.I.R. with the assertion that when the deceased was being taken to the hospital and being questioned by him she named Duga Nanda, Gyana Patnaik and Basanta Rath as the assailants but in the inquest report he has named only one person, i.e. Duga Nanda, as the assailant. Babu Jena did not come forward to depose as a prosecution witness. His endorsement on Ext.2 has been proved through P.W.3 (the informant), who claims that the inquest report was prepared in his presence and that Babu Jena made endorsement in the said report by his own handwriting. Naming only one person in the inquest report as the assailant is another reason for entertaining reasonable doubt as to whether the deceased had actually made any statement to Babu Jena disclosing the names of the assailants. It is also quite doubtful as to whether the deceased, with the grievous injuries affecting vital parts of her person, including brain material, would have been in sense to make any statement. The doctor’s evidence is to the effect that the deceased was in an unconscious state for which her dying declaration could not be recorded. Therefore, non-examination of Babu Jena, who is the most important witness in this case, is fatal to the prosecution. No doubt, a Public Prosecutor has the discretion to give up witnesses during trial to avert proliferation of evidence which could save much time of the court unless examination of such witness would achieve some material use ( AIR 1997 SC 2914 , Harpal Singh Vrs. Devinder Singh and another). Since testimony of Babu Jena could have brought the truth on record and he was the only witness who, according to the F.I.R., was to adduce evidence on the dying declaration, the prosecution should not have allowed him to remain unexamined. There are witnesses coming in three categories namely, wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. Since testimony of Babu Jena could have brought the truth on record and he was the only witness who, according to the F.I.R., was to adduce evidence on the dying declaration, the prosecution should not have allowed him to remain unexamined. There are witnesses coming in three categories namely, wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. On the basis of testimony of a wholly reliable witness, if it is found to be above reproach or suspicion of interestedness, the court may convict or may acquit the accused. If the witnesses are wholly unreliable then the court may reject their testimony. But, where witnesses are neither wholly reliable nor wholly unreliable, then in such cases the court seeks corroboration from some independent evidence or from attending circumstances (1973 C.L.R. 515, Satia Sahu & others Vrs. State of Orissa). In the case in hand, P.Ws.1 and 3, who are interested witnesses are coming within the last category of witnesses and their testimony, in absence of independent corroboration, is hazardous to be relied upon. 13. It is found that testimony of P.Ws.1 to 3 is not above reproach or free from suspicion. In the absence of independent corroboration the order of conviction based on their testimony cannot be sustained. The prosecution case cannot be said to have been proved beyond reasonable doubts. So, the benefit thereof must be extended to the appellant. 14. There is another feature going in favour of the appellant about which we, before parting with the appeal, would like to make a mention. During pendency of the appeal and on an application filed by the appellant claiming himself to be a juvenile, we had requested learned trial Judge/Additional Sessions Judge, Ganjam, to determine his juvenility vide our order dated 19.2.2015 by conducting an inquiry into that aspect in accordance with the procedure prescribed under the Juvenile Justice (Care and Protection of Children) Act, 2000. An inquiry was, therefore, conducted to determine juvenility of the appellant and after inquiry a report dated 4.6.2015 has been submitted before us by the learned trial Judge/Additional Sessions Judge, Ganjam, according to which, the appellant, on the date of the incident, i.e., 17.2.2002 was clearly below 16 years of age. Consequently, in any view of the matter the appellant has to be conferred benefit under the Juvenile Justice Act and he cannot be incarcerated into jail any longer. Consequently, in any view of the matter the appellant has to be conferred benefit under the Juvenile Justice Act and he cannot be incarcerated into jail any longer. In somewhat identical situation Hon’ble Apex Court in Indradeo Sao and others versus State of Bihar, 2015(5) SCALE 600 quashed the sentence of the appellant therein and set him free. Therefore, even if appellant’s appeal would have been decided negatively, the appellant could not have been retained inside four walls of prison. 15. In the result, the appeal is allowed. The impugned order of conviction and sentence is set aside. The appellant is found not guilty of any of the offences he has been charged for. Accordingly, he is acquitted of all the charges. He be set at liberty at once. I agree. Appeal allowed.