JUDGMENT : Virender Singh, J. 1. All the four accused namely Krishna Bhuiyan, Jagga Bhuiyan, Keshwar Bhuiyan and Suresh Bhuiyan stand convicted vide impugned judgment of learned 3rd Additional Sessions Judge, Palamau under Sections 302/34 of the Indian Penal Code and sentenced to undergo life imprisonment. Krishna Bhuiyan, Jagga Bhuiyan and Keshwar Bhuiyan are stated to be in custody, out of which, Krishna Bhuiyan has undergone the maximum period of substantive sentence i.e.15 years 10 months and 26 days, whereas Keshwar Bhuiyan 13 years 6 months and Jagga Bhuiyan 11 years and 10 months. However, Suresh Bhuiyan is stated to be on bail as his substantive sentence has already been suspended by the Court. 2. We are giving priority to only those criminal appeals in which the appellants-convicts have undergone more than 10 years of their substantive sentence. 3. In short, the case of the prosecution as one finds from the Fardbeyan (initial statement) of P.W.-Kaily Devi recorded on 28.11.1994 at 22:00 hours (10:00 P.M.) is that on the fateful day, she was going to sleep in her house along with her family members. When at about 8:00 P.M., she heard that somebody was trying to open the door and was calling her husband which made them afraid. It is then her case that her husband told her that the voice was of Krishna Bhuiyan, the accused herein and they did not open the door. When the door was not opened by them, Krishna Bhuiyan said that they were not opening the door and asked Jagga Bhuiyan to open the door by his foot (in vernacular “LAAT SE MARKAR DARWAJA TOD DO”), upon which they started pushing the door with their legs, as a result the hook of the door got broken. It is then her case that in Dhibri light (light emanating from a traditional kerosene lamp) she saw that Krishna Bhuiyan, Jagga Bhuiyan and Keshwar Bhuiyan were armed with Tangi and they caught hold the deceased who was sleeping on a cot and took him outside of the house. Krishna Bhuiyan and Jagga Bhuiyan said that their ancestral land has gone into dam and asked for their share from the remaining land, upon which her husband said that the land would be partitioned later, upon which Suresh Bhuiyan started assaulting him with Lathi. Krishna Bhuiyan and Jagga Bhuiyan said that their ancestral land has gone into dam and asked for their share from the remaining land, upon which her husband said that the land would be partitioned later, upon which Suresh Bhuiyan started assaulting him with Lathi. When she went to rescue, he (Suresh Bhuiyan) gave two lathi blows on her waist and pushed her and her son aside. When her husband raised an alarm, Krishna Bhuiyan and Jagga Bhuiyan told that they would finish him that day, upon which Krishna Bhuiyan, Jagga Bhuiyan and Keshwar Bhuiyan started assaulting him (in vernacular “ANDHADHUNDH MAARNE KAATNE LAGE”). Consequently, her husband fell on the ground. Resultantly, his neck was cut from front side and blood started oozing from there. Krishna Bhuiyan said that he has died and then they fled away from the place of occurrence. It is then her case that she reached near the dead body and saw injuries on different parts of the body of her husband who had died at the spot itself. 4. On the aforesaid allegation, formal F.I.R. bearing No. 95/1994 under Sections 448/341/302/34 of the Indian Penal Code came to be registered in Police Station Lesligunj, investigation of which was taken by Shyam Bihari Singh (not produced during trial) which on its completion resulted into filing of challan against all the accused in which all the accused were charged for the offences punishable under Sections 302/34 I.P.C. and that Suresh Bhuiyan was also charged for the offence under Section 323 I.P.C. for allegedly causing injuries to the first informant. 5. The case of the accused as one finds from their statement examination under Section 313 Cr.P.C. is of denial simplicitor. During cross-examination it has been suggested by learned defence counsel that accused persons have falsely been implicated in this case due to dispute regarding ancestral land.However, they have chosen not to adduce any evidence in defence. 6. 5. The case of the accused as one finds from their statement examination under Section 313 Cr.P.C. is of denial simplicitor. During cross-examination it has been suggested by learned defence counsel that accused persons have falsely been implicated in this case due to dispute regarding ancestral land.However, they have chosen not to adduce any evidence in defence. 6. Learned counsel for the appellants pointed out the vital flaws in the case of the prosecution viz no independent witness has come to support the prosecution case, the witnesses, who have stated the prosecution story were animus to depose falsely against appellants as they are interested witnesses, not a single lathi blow had been found on the person of the deceased though according to the prosecution it was Suresh Bhuiyan who was the first person to assault the deceased with lathi, which itself speaks about falsity about prosecution story and I.O has not been examined in this case which is also fatal for prosecution case as there exists several vital contradictions in the evidence of witnesses, hence appellant may be extended the benefit of doubt to disturb their conviction as already slapped upon them. 7. Per contra learned A.P.P submitted that no any contradiction u/s 145 Indian Evidence Act has been taken during cross-examination of prosecution witnesses by cross examiner, which would be required to be confronted by I.O and further the place of occurrence, which is house of deceased, has not been disputed by defence so non examination of I.O is not fatal for prosecution case. Learned A.P.P, in same breath, submitted that the eye witnesses are natural and probable, who have stated the presence and participation of all four accused persons and there is nothing specific in entire record to show why any witness would implicate innocent person falsely hence, the impugned judgment is quite correct, legal and based on reasoning, while this appeal is devoid of any merit and fit to be dismissed. 8. Prosecution, in support of his case, produced and examined altogether 16 witnesses for their examination before the court. Out of whom, P.W.1, 2, 5, 12, 13 and 14 turned hostile whereas P.W.6, 7 and 8 were tendered for cross examination and P.W.3, P.W.4 and P.W.16 proved their respective signature on seizure witness, formal FIR and inquest report respectively. 8. Prosecution, in support of his case, produced and examined altogether 16 witnesses for their examination before the court. Out of whom, P.W.1, 2, 5, 12, 13 and 14 turned hostile whereas P.W.6, 7 and 8 were tendered for cross examination and P.W.3, P.W.4 and P.W.16 proved their respective signature on seizure witness, formal FIR and inquest report respectively. Rest three witnesses viz P.W.9 (son of deceased), P.W.10 (wife of deceased/informant) and P.W. 11 (daughter of deceased) are the inmates of house, who deposed as eye witnesses, whereas P.W.15 being medical expert deposed about the report of autopsy conducted by him. 9. On perusal of formal FIR, it reveal that FIR was registered in same night after four hours in Lesliganj police station, which is situated at 2 Km far from the place of occurrence, which shows that there is no inordinate delay in lodging FIR seeing the time and place of occurrence (village) rather it can be treated prompt lodging of FIR by illiterate wife of deceased (who had put thumb impression on FIR) who reached after two hours since occurrence at police station as per her deposition on oath. 10. Although investigation officer has not been examined by prosecution yet on consideration of all pros and cons of its effect on case at hand we found substantial force in the submission of learned A.P.P as it is settled position of law that non-examination of I.O is not per se fatal for prosecution case. 11. We do not feel the necessity of entering into the detailed discussion with regard to each and every witness, as the case of the prosecution primarily hinges upon the evidence of Manbahal Bhuiyan, Kaily Devi and Gayatri Kumari (P.W.-9, P.W.-10 and P.W.-11 respectively). It is worth mentioning here that some of the witnesses have been declared hostile and other tendered as well. We, however, feel the necessity of reproducing the medical evidence. P.W. Dr. Kamendra Singh conducted the autopsy on the body of the deceased-Dwarika Bhuiyan and found the following antimortem seven injuries on his person:-Sharp cut injury on the front of neck cutting muscles, vessels and trachea:- i. Sharp cut injury on the chin cutting muscles and bone (lower jaw) ii. Sharp cut injury on the nose 1”x1”1/2” iii. Sharp cut injury on the left side of skull 3'x1” x bone deep. iv. Sharp cut injury on the nose 1”x1”1/2” iii. Sharp cut injury on the left side of skull 3'x1” x bone deep. iv. Sharp cut injury on the left side of skull 3” x 1” x muscle deep v. Sharp cut injury on the left wrist joint 1/2” x 1” x 1/2” vi. Sharp cut injury on the right elbow joint 1½” x 1” x 1/2” 12. Medical expert has opined that all the injuries are caused by sharp cutting heavy weapon such as axe (Tangi) According to medical expert death was caused due to shock and haemorrhage. 13. In Hari Obula Reddy and others v. The State of Andhra Pradesh reported in (1981) 3 SCC 675 , a three-Judge Bench of Hon'ble Supreme Court has opined that it cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. We have applied the same yardstick here. 14. On close perusal of the evidence deposed by P.W.9, P.W.10 and P.W.11, we found that they are natural and most probable witnesses to occurrence, who were present in house (P.O) in that fateful night. Witnesses have excluded the presence of other witness at P.O by saying that on raising alarm, none came there. These three witnesses consistently have also unveiled a fact in their evidence that there was a source of light (dhibari light) near place occurrence at the time of occurrence (night). Since all three witnesses can be said to be related as well as interested witnesses, we have to scrutinize their evidence with more care and circumspection to arrive at conclusion as to whether the evidence of these witnesses have the ring of truth or not? 15. Let us enter into some more details with regard to the evidence of key witnesses of the prosecution. 15. Let us enter into some more details with regard to the evidence of key witnesses of the prosecution. P.W.10 is the informant of this case as well as wife of the deceased Dwarika Bhuiyan has deposed that on the day of occurrence at about 8 P.M. on Monday her husband was just sleeping after taking meal, in the meantime accused Krishna Bhuiyan, Keshwar Bhuiyan, Suresh Bhuiyan and Jaga Bhuiyan entered into her house, caught hold her husband, took him outside the house, brought on the dehari (Chaukhat Darwaja) and killed him by inflicting cut injuries on his person with axe. She has further added that except the deceased, none else was assaulted by accused persons. At 10:00 P.M. she went to the police station and got her statement recorded by the Sub-Inspector. During cross examination she has affirmed her presence as well as presence of Manbahal (P.W.9) at place of occurrence. She described the injuries sustained by deceased as well as position of dead body lying at P.O by saying that accused persons caused cut injuries on face, neck, hand and the thorax of the deceased and at that time his proximal part of the body was inside the room while rest part of the body was outside the house. She has affirmed that there was source of light (dhibari light) in room at the time of occurrence. 16. P.W.9 Manbahal Bhuiyan, the youngest son of the deceased, has deposed that the alleged occurrence took place 2½ years ago on Monday in the night at 8:00 P.M. while he and his family members were sleeping, accused Krishna Bhuiyan, Jaga Bhuiyan, Keshwar Bhuiyan and Suresh Bhuiyan came there and having broken the door they entered into the room, caught hold the deceased and took him outside the room. According to this witness, accused Krishna Bhuiyan, Jaga Bhuiyan and Keshwar Bhuiyan were armed with axes (Tangi) whereas Suresh Bhuiyan was armed with lathi. He further deposed that Suresh Bhuiyan assaulted his mother (P.W.10) with lathi thereafter accused person started causing cut injuries on the person of his father as a result of which his father succumbed to injuries caused by Tangi. During cross-examination, he has affirmed that one Dhibari light was burning inside the room. He further deposed that Suresh Bhuiyan assaulted his mother (P.W.10) with lathi thereafter accused person started causing cut injuries on the person of his father as a result of which his father succumbed to injuries caused by Tangi. During cross-examination, he has affirmed that one Dhibari light was burning inside the room. He denied the presence of any other witness at P.O during cross-examination by saying that on being raised alarm, none came at the place of occurrence and further added that none came at his house till after 8/10 days since occurrence. 17. P.W.11, the daughter of the deceased has stated on oath in trial court that 3 years ago on one Monday night at 8 P.M occurrence took place and at that time she, her brother, her mother and father were in house when Suresh and Krishna Bhuiyanin Jaga Bhuiyan, Keshwar Bhuiyan, started asking to open thr door of house. On being denied to open door, they entered in house after breaking the door. They caught her father and conveyed by dragging him in the “Dhaba” and started cutting him with axes. According to her, accused Krishna, Keshwar and Jaga had Tangi in their hands while Suresh had lathi. She further added that due to injuries caused by accused persons, her father died. During cross-examination she has affirmed that main door of her house was broken. She further has added that on alarm, none came. Nothing has been elicited during cross-examination to shake the testimony regarding the complicity of accused persons rather it was suggested that there was enmity between deceased and accused persons. 18. In a case “Maria Margadia Sequeria ... vs Erasmo Jack De Sequeria” referred in (2012) 5 SCC 370 , It has been observed by Hon’ble Supreme Court, “the entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice System will acquire credibility only when people will be convinced that justice is based on the foundation of the truth”. 19. In the case of State of U.P. v. Anil Singh [AIR 1988 Supreme Court 1998], it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. Justice System will acquire credibility only when people will be convinced that justice is based on the foundation of the truth”. 19. In the case of State of U.P. v. Anil Singh [AIR 1988 Supreme Court 1998], it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties, which the Judge has to perform. 20. We have very carefully examined the FIR with the deposition of illiterate informant (who had put thumb impression on FIR as well as on deposition) and found that informant has deposed in court that she alone had gone to police station while FIR speaks that she had gone at police station with her son, daughter, Sudan Bhuiyan and Jagdeesh Bhuiyan. FIR also bears thumb impression of one Hulas Ram resident of another village Kurain Patra, meaning thereby he was also present with informant at the time of lodging FIR. On the foot of FIR the thumb impression of Hulas Ram is apparent, who hails from a different village. From where did he appear and how he accompanied the first informant, creates a little bit of doubt in the mind of Court when we minutely examine the prosecution case especially in the context of involvement of accused Suresh Bhuiyan, whose complicity otherwise is not getting support from attending circumstances including the medical evidence. The first informant is also silent on the fact that Suresh Bhuiyan was armed with lathi at the time of occurrence. She is silent about any overt act committed by him in this murder. She has further denied the fact mentioned in FIR that Suresh had dealt lathi blow on her person by saying in examination-in chief that accused persons did not assault anyone except her husband thus, she being injured as per FIR has not supported about the charge of section 323 IPC framed against Suresh Bhuiyan for voluntarily causing hurt to her. 21. 21. Further P.W.9 (son of deceased) has said nothing about the overt act of Suresh Bhuiyan in this murder, while P.W 11 (daughter of deceased) has stated about cut injuries only inflicted by accused persons on the person of her father meaning thereby she is also silent about use of lathi in this occurrence of causing murder of her father. 22. Medical evidence also does not indicate any injury caused by hard and blunt substance on the person of the deceased. There is no medical evidence available on record with regard to any injury on the person of first informant also. 23. Taking the totality of facts and circumstances, we are of the view that prosecution has failed to prove the case against Suresh Bhuiyan atleast, who was allegedly armed with Lathi and admittedly did not cause any injury to the deceased, beyond any shadow of reasonable doubt. His case can be very comfortably segregated from other co-accused as it would not demolish the case of the prosecution in its entirety. But all three witnesses of fact consistently have deposed that accused persons namely Krishna Bhuiyan, Keshwar Bhuiyan, and Jaga Bhuiyan, who were armed with Tangi, started causing cut injuries on the person of deceased as a result of which he succumbed to those injuries. Informant has also described the place of cut injuries on the body of deceased in her evidence, which were caused by said three accused person on putting him ‘chaukath’ (ground base of the frame of door) and she has added that the proximal part of the body of her husband was inside the room (dhaba) while rest part of the body was outside the room. 24. The, medical evidence has not only nicely corroborated the place of anti-mortem seven cut injuries, which were found on body of deceased at the time of autopsy as stated by eye witnesses but also the manner of occurrence as we are of the view that the injuries no 1, 3 and 4 be only possible when at the time of inflicting tangi blows the head of deceased must be lying on hard base like ‘chaukath’ (ground base of the frame of door). Further Medical expert has opined about the weapon of assault used by accused persons in this murder as Tangi and thus it nicely corroborated the evidence of witnesses on this point also. 25. Further Medical expert has opined about the weapon of assault used by accused persons in this murder as Tangi and thus it nicely corroborated the evidence of witnesses on this point also. 25. In nutshell, the evidence showing complicity against accused persons namely Krishna Bhuiyan, Keshwar Bhuiyan, and Jaga Bhuiyan are sufficient to prove their guilt, hence, the deficient evidence deposed by witnesses against Suresh Bhuyian would cause no damage to the prosecution case as it is well settled position of law that in case of falsity on some points in evidence of witness, the rule “ falsus in uno, falsus in omnibus” is not applicable in India and even if major portion of evidence is found to be deficient, in that case residue is sufficient to prove guilt of an accused. It is duty of court to separate the grains from the chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Here, in the case on hand, the said exercise is possible. 26. After rescanning the prosecution case in its right perspective, we are of the considered view that the prosecution has, no doubt, been able to prove its case beyond the shadow of any reasonable doubt vis-a-vis complicity of three accused namely Jagga Bhuiyan, Krishna Bhuiyan and Keshwar Bhuiyan, in causing the murder of the deceasd Dwarika Bhuiyan with Tangi (sharp edged weapon) they were carrying in their hand and caused seven incised injuries on the person of the deceased, whereas prosecution has miserably failed to prove the case against Suresh Bhuiyan, who was allegedly armed with Lathi and admittedly did not cause any injury to the deceased, beyond any shadow of reasonable doubt. Resultantly we extend the benefit of doubt towards Suresh Bhuiyan and acquit him of the charge. 27. The net result now surfaces is that the instant appeal is dismissed qua Jagga Bhuiyan, Krishna Bhuiyan and Keshwar Bhuiyan by maintaining their conviction and sentence as already recorded by the trial court and allowed qua Suresh Bhuiyan. In turn, it is partly allowed. 28. Suresh Bhuiyan is stated to be on bail and his substantive sentence was suspended during the pendency of the instant appeal. He is discharged from the liability of his bail bonds. In turn, it is partly allowed. 28. Suresh Bhuiyan is stated to be on bail and his substantive sentence was suspended during the pendency of the instant appeal. He is discharged from the liability of his bail bonds. The remaining three accused, Jagga Bhuiyan, Krishna Bhuiyan and Keshwar Bhuiyan, shall serve the remainder of their substantive sentence. 29. Learned trial court Judge be intimated of the outcome of the instant appeal. Trial court records (in original) be remitted to the court concerned.