JUDGMENT : Yaqoob, J. 1. Vide judgment impugned dated 06.10.2012, accused (appellants) have been held guilty and convicted for commission of offence punishable under Section 302 RPC. Vide order impugned dated 09.10.2012 have been sentenced to imprisonment for life and fine to the tune of Rs.50,000/- each, out of which Rs.30,000/- each have been directed to be paid to the parents and widow of the deceased equally and Rs.20,000/- each to be remitted in Government treasury. In default of fine, accused (appellants) have to undergo rigorous imprisonment of six months. 2. Appellants have filed the instant appeal registered as Criminal Appeal No.13/2012. The sentence being subject to confirmation, therefore, trial court has submitted the proceedings under Section 374 Cr. P. C registered as Criminal Reference No.10/2012. 3. Heard learned counsel for the appellants and also the learned AAG. 4. Registration of the case FIR No.77/2006, P/S Kralgund, for commission of offences punishable under Section 302 RPC and 7/27 Arms Act, on completion of investigation, culminated in filing of charge sheet (challan), precisely to the following effect : “On 06.09.2006, Police Station received information from reliable sources that in the night of 06.09.2006 at Village Budhbugh, unknown terrorists entered into the house of Abdul Gaffar Mir S/o Mohammad Shaban Mir, with intention to kill him, brought him out into the compound of his house and fired upon him from their illegal arms, in injured condition, he was taken for treatment to District Hospital, Baramulla. On receipt of said information, case was registered. The injured, in the meantime, while being taken to hospital had died. The dead body was taken into custody for postmortem. Injury memo and torture memo (memo regarding injuries upon the dead body) was prepared and after postmortem, the dead body was handed over to the heirs for final rites. On spot, site memo was prepared, 7 empties of AK 47 were recovered, seized on spot and statements of witnesses were recorded. In addition to statements of witnesses, statement of PW (1) was also recorded under Section 164-A Cr. On spot, site memo was prepared, 7 empties of AK 47 were recovered, seized on spot and statements of witnesses were recorded. In addition to statements of witnesses, statement of PW (1) was also recorded under Section 164-A Cr. P. C. Investigation revealed that on the date of occurrence, terrorists, namely, (1) Shabir Ahmad Bhat S/o Mohammad Abdullah Bhat R/o Marathgam, (2) Mushtaq Ahmad Malla @ Furqan S/o Ghulam Ahmad R/o Shatgund, and, (3) Mushtaq Ahmad Ganai S/o Ghulam Hassan Ganai R/o Manchanpora Panzla at about 9.30 PM entered into the house of deceased Abdul Gaffar Mir, who was working in the Police Department at Srinagar as Sg. Constable, while on leave had come to home, was forcibly taken from his house and fired upon from the illegal weapons. The deceased succumbed to the injuries, the offence under Section 302 RPC was added. On the basis of material collected, accused were established to have committed the offences under Section 302 RPC and 7/27 Arms Act, during investigation accused Shabir Ahmad Bhat was arrested, accused No.2 Mushtaq Ahmad Malla @ Furqan had been detained under Public Safety Ac, who is also involved in case FIR No.27/2008 P/S Handwara for commission of offences punishable under Section 307 RPC, 7/25 Arms Act, 20 UL Act and 2/3 E&IMCO whereas accused No.3 Mushtaq Ahmad Ganai is absconding, it transpired that he was an active terrorist and had crossed over to Pakistan, against him proceedings under Section 512 Cr. P. C were initiated.” 5. Learned trial court (Court of Principal Sessions Judge, Kupwara) framed charge against the appellants No.1 and 2 on 01.11.2008 for commission of offence under Section 302 RPC and 7/27 Arms Act, to which they pleaded not guilty. The prosecution out of listed 15 witnesses produced 14 witnesses whereas one witness ASI Abdul Rashid (1st Investigating Officer) was not produced. On Closure of prosecution evidence, vide order dated 15.05.2010, both the accused (appellants) were examined under Section 342 Cr. P.C wherein they denied complicity in crime, as such, claimed to be innocent. Following Section 273 and 274 Cr. P. C, the accused were asked to enter upon defence. In defence they produced four witnesses. Finally, vide detailed judgment and order impugned, they were convicted and sentenced as referred to above. 6. During the pendency of this appeal, 3rd accused Mushtaq Ahmad Ganai has surrendered. Following Section 273 and 274 Cr. P. C, the accused were asked to enter upon defence. In defence they produced four witnesses. Finally, vide detailed judgment and order impugned, they were convicted and sentenced as referred to above. 6. During the pendency of this appeal, 3rd accused Mushtaq Ahmad Ganai has surrendered. The trial court framed charge against him vide order dated 11.07.2015 for commission of offences punishable under Section 302 RPC and 7/27 Arms Act. Thereafter PW (1) Mst. Zainab (wife of the deceased), PW (5) Mohammad Shaban (father of the deceased) and PW (7) Abdul Gani Dar (independent witness) have been examined. 7. The first and foremost question which arise for consideration in this appeal is : “as to whether identity of the appellants as assailants is proved”. It is an admitted fact that deceased Abdul Gaffar Mir, Sg. Constable, had been fired upon who suffered and succumbed to serious injuries. For ruthless killing, the killers have to be brought to book. The question is as to whether appellants were the assailants (killers). For ascertaining same position and for doing full justice, background of the case coupled with the depositions of the witnesses vis-à-vis identity of the assailants is, precisely, required to be noticed 8. In the final report under Section 173 Cr. P. C, EXPW-15/1, it is clear that in the Police Station information from reliable sources was received that on 06.09.2006, some unknown terrorists entered into the house of Abdul Gaffar Mir and fired upon him. Finally, it has been concluded by the investigating agency that the accused which include appellants are established to have committed the offences under Sections 302 RPC and 7/27 Arms Act. 9. Investigation of the case has been conducted by following five Investigating officers : (1) ASI Abdul Rashid (PW11) (2) ASI Gulzar Ahmad (PW 12) (3) Bashir Ahmad, SHO, P/S, Kralgund (PW 14) (4) S. I. Mohammad Rajab (PW 13) (5) Abdul Majid (PW 15) 10. (a) ASI Abdul Rashid (PW 11)(IO No.1) investigated the case from 06.09.2006 to January, 2007 but has not been produced and examined before the trial court. He had recorded statements under Section 161 Cr. P. C of some witnesses i.e. widow, son, daughter and father of the deceased. All of them did not disclose the names of the assailants. Prosecution witnesses, namely, Mst. Zainab (widow), Waseem (son), Shaheena (daughter), Mst. He had recorded statements under Section 161 Cr. P. C of some witnesses i.e. widow, son, daughter and father of the deceased. All of them did not disclose the names of the assailants. Prosecution witnesses, namely, Mst. Zainab (widow), Waseem (son), Shaheena (daughter), Mst. Sara (mother), Mohammad Shaban (father) and two independent witnesses, namely, Mohammad Ramzan Ganai and Abdul Gani Dar who were guests of the deceased and were available at the time of occurrence, in their statements recorded under Section 161 Cr. P. C. have stated that masked terrorists came and killed deceased, they could not identify the assailants. Waseem and Shaheena, respectively son and daughter of the deceased, have also made it clear that they do not suspect anyone. Their statements under Section 161 Cr. P. C. have been recorded in the month of September, 2006. Out of those statement recorded in the month of September, 2006, statements of Waseem Ahmad Mir (son), Mst. Shaheena (daughter), Mohammad Ramzan Ganai (guest independent witness), Abdul Gani Dar (guest independent witness), Wahab Mir and Abdul Gani Mir are available on the file whereas statement of Mst. Zainab (widow) and Mst. Sara (mother) recorded under Section 161 Cr. P. C. in the month of September, 2006, are lying in the records available with learned AAG. It is settled law that the statement recorded during investigation is not at all admissible in evidence. Following portion from Para 10 of the judgment rendered by the Hon’ble Apex Court in the case of Podda Narayana and others v. State of Andhra Pradesh ( AIR 1975 SC 1252 ) is relevant to be quoted : “…………..A statement recorded by the police during the investigation, is not at all admissible and the proper procedure is to confront the witnesses with the contradictions when they are examined and then ask the Investigating Officer regarding those contradictions…..” Reference as above to the statements recorded under Section 161 Cr. P. C. by 1st IO Abdul Rashid is necessitated because 1st IO was not produced as witness before the trial court, as such, has been withheld without any justification, to the prejudice of the appellants (accused), therefore, drawing of adverse inference under Section 114 (G) Evidence Act is imperative vis-à-vis identity of the assailants in the context of inconsistent statements of the witnesses to the occurrence. Following portion from Para 13 of the judgment of the Hon’ble Apex Court captioned Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat ( AIR 1964 SC 1563 ) is relevant to be quoted : “The statements made in the depositions are really inconsistent with the earlier statements made before the police and they are, therefore, contradictions within the meaning of Section 162 of the Code of Criminal Procedure. We cannot place any reliance on the evidence of these witnesses…..” (b) ASI Gulzar Ahmad (PW 12) (IO No.2) has conducted investigation from the month of February, 2007 up to 2nd June, 2007, he appears to have been very partisan. He has tried to manufacture involvement of the accused but in the process, got exposed. on one hand he has stated that the heirs of the deceased told him that they did not disclose names of the accused out of fear but on the other hand has qualified that he has not recorded statement of any of the witnesses under Section 161 Cr. P. C., however, has made it clear that the statements of PWs Zainab (widow), Waseem (son), Shaheena (daughter) and Mohammad Shaban (father) under Section 161 Cr. P. C. were recorded by first IO ASI Abdul Rashid. In his statement he has further made it clear that he cannot say as to whether accused persons were involved in the occurrence. (c) Bashir Ahmad (PW 14) (SHO, P/S Kralgund) (IO No.3) has conducted investigation from 03.06.2007 to 01.03.2008. He has again recorded statements of some witnesses under Section 161 Cr. P. C. The record shows that he has 2nd time recorded statements of Mst. Zainab (widow of the deceased), Mst. Sara (mother of the deceased) and Mohammad Shaban (father of the deceased), these three witnesses, as per his version, have disclosed the names of the accused on 06.01.2008. The occurrence is of 06.09.2006. This witness has also stated that when he was conducting investigation, accused Shabir Ahmad was detained in Kotbalwal Jail. He has also qualified that up to 06.01.2008, none of the witnesses had disclosed names of the accused before the police, and till he took investigation, identity of the accused was not known, it is on 06.01.2008, identity of the accused was made known. (d) S.I Mohammad Rajab (PW 13)(IO No.4) has conducted investigation of the case from 02.03.2008 till 10.04.2008. (d) S.I Mohammad Rajab (PW 13)(IO No.4) has conducted investigation of the case from 02.03.2008 till 10.04.2008. He simply stated that the appellants were shown to have been detained in Kotbalwal Jail. (e) Abdul Majid (PW 15)(IO No.5) has conducted investigation of the case from 12.05.2008. He has stated that he took over investigation on 12.05.2008. Investigation had reached to its culmination, however, he got the statement of only one witness i.e. widow of the deceased recorded under Section 164-A Cr. P. C. He further stated that he only knows accused Shabir Ahmad, rest are not known to him. (f) IO No.4 SI Mohammad Rajab simply stated that the appellants were shown to have been detained in Kotbalwal Jail. (g) IO No.5 Abdul Majid has stated that he took over investigation on 12.05.2008. Investigation had reached to its culmination, however, he got the statement of only one witness i.e. widow of the deceased recorded under Section 164-A Cr. P. C. He further stated that he only knows accused Shabir Ahmad, rest are not known to him. 11. In the context of statements of five (05) Investigating Officers, it becomes necessary to notice as to what witnesses have stated : (I) PW 1 Zainab (widow of the deceased) : Note: (a) Her 1st statement under Section 161 Cr. P. C. was recorded on 12.09.2006 by the first IO ASI Abdul Rashid. (b) 2nd time her statement under Section 161 Cr. P. C. was recorded on 06.01.2008 by IO No.3 Bashir Ahmad (Inspector). (c) IO No.5 Abdul Majid got her statement recorded under Section 164-A Cr. P. C. on 19.06.2008 by Chief Judicial Magistrate, Handwara. She was produced and examined as a witness before the trial court on 31.01.2009, (i) she has stated names of accused as Shabir Ahmad Bhat, Fayaz and Mushtaq but has stated that she does not know the parentage of the accused persons. Note: In her second statement recorded under Section 161 Cr. P. C on 06.01.2008, she has given the parentage as well as residence of the accused but in the Court has stated that she does not know the parentage of the accused person. (ii) She has further stated that on the date of occurrence at 12.30 hours during night she had filed an application on which she affixed her thumb impression wherein she had disclosed names of the accused persons. (ii) She has further stated that on the date of occurrence at 12.30 hours during night she had filed an application on which she affixed her thumb impression wherein she had disclosed names of the accused persons. Further has added that she had made a statement before the police on the same day to the effect that the accused had killed her husband. Neither that application nor that statement stated to have been made by her before the police are forthcoming from the records, none out of five IOs has stated anything about that application or that statement of PW(1). (iii) In case her testimony is taken to be correct, then there is inherent contradiction to the effect that in one breath she has stated that she did not divulge the names of the accused because of threat perception as she was told by the accused that her family will be finished but in another breath she has stated that on the date of occurrence itself she had filed an application before the police divulging names of the accused and has also made a statement before the police on the same day and divulged the names of the accused. Which version of the two is to be is believed. Concoction about involvement of accused is visible because in her first statement under Section 161 Cr. P. C., she has stated that masked terrorists killed her husband, she could not identify them but in her second statement recorded under Section 161 Cr. P. C. on 06.01.2008, she divulged names of the accused. Justifying that, has stated that the accused had intimidated her that in case she divulges names of the accused, her family will be finished, it is because of that she did not disclose the names of the accused on the date of occurrence to the police, now one terrorist has been arrested, threat is removed. A lie because one accused was arrested in the month of March, 2008 and another in the month of June, 2008 and third one was absconding. (iv) Her first statement recorded under Section 161 Cr. P. C in the month of September, 2006, another statement recorded under Section 161 Cr. P. C on 06.01.2008, then her statement recorded under Section 164-A Cr. P. C on 19.06.2008, why so has remained to be explained, as such, can’t be said to be free from blame. (iv) Her first statement recorded under Section 161 Cr. P. C in the month of September, 2006, another statement recorded under Section 161 Cr. P. C on 06.01.2008, then her statement recorded under Section 164-A Cr. P. C on 19.06.2008, why so has remained to be explained, as such, can’t be said to be free from blame. (v) Her credibility is further exposed by the fact that she has stated that at the time of occurrence, one neighbour Jamsheed Ahmad Dar was present on spot. Said Jamsheed Ahmad Dar is neither cited as a witness nor has been produced as a witness. (vi) She has further stated that the statement under Section 164-A Cr. P. C. recorded on 19.06.2008, to the effect “that all the three accused entered into the house, is attributed to her. Further has stated that she does not known accused Mushtaq Ahmad Ganai. Then has again stated that statement under Section 164-A Cr. P. C. to the effect that the accused wanted to stay in their house for the night is attributed to her. Such statement recorded by the learned Magistrate under Section 164-A Cr. P. C. is also partly denied by her. (vii) Again her testimony is exposed by the fact that in the application filed for obtaining relief she has alleged that unknown terrorists killed her husband but in her statement before the Court she has stated that she has not filed any application for relief but such a testimony is exposed by the defence witness Anayatullah Lone S/o Abdul Rashid Lone who has stated that he has brought file pertaining to the relief of Abdul Gaffar (deceased) along with. Abdul Gaffar Mir was posted as Sg. Constable in the Police Department, his heirs had applied for grant of ex-gratia relief. In the application, placed on record of the file, it has not been mentioned by the applicant as to who has killed the deceased. The application has been presented by Mst. Zainab widow of Abdul Gaffar Mir on 12.09.2006 before the Deputy Commissioner. Since the deceased was working in the Police Department, therefore, papers were forwarded by the office of Deputy Commissioner to the Police. Further has made it clear that the ex-gratia relief is sanctioned only to the family of that person who is killed by unidentified gunmen. Report was called from SP, Handwara on 02.02.2008. Since the deceased was working in the Police Department, therefore, papers were forwarded by the office of Deputy Commissioner to the Police. Further has made it clear that the ex-gratia relief is sanctioned only to the family of that person who is killed by unidentified gunmen. Report was called from SP, Handwara on 02.02.2008. In the report SP, Handwara, had mentioned that the deceased Abdul Gaffar Mir was killed by unidentified gunmen. In the death certificate also, it has been recorded that the deceased was killed due to bullet injury. In the FIR also, names of the accused persons have not been recorded. (viii) While applying for ex-gratia relief, widow as well as other legal heirs have not divulged names of the accused, instead have alleged that unknown terrorists killed the deceased. (ix) On the arrest of accused No.3, in the trial court vis-à-vis third accused, statement of Mst. Zainab (widow) has again been recorded wherein she has stated that the accused Shabir entered into the house and three persons remained outside, out of whom she identified Mushtaq Ahmad Malla who stayed on stairs of the house and rest two accused were masked, they were not identified. (x) Though this statement was not available with the trial court at the time judgment impugned was rendered but once entire material is before the Court, can Court shut eyes not to see the said statement, after all truth has to prevail. (xi) Statements of Mst. Zainab, first recorded under Section 161 Cr. P. C. before first IO, second recorded under Section 161 Cr. P. C. before third IO, then her statement recorded under Section 164-A Cr. P. C before the Magistrate, then her statement recorded before the trial court and now her another statement recorded by the trial court vis-à-vis accused No.3, if taken together or even separately, inescapable conclusion would be that her statement regarding identity of the assailants is doubtful and her credit in that direction has been impeached. (II) PW (2) Waseem Ahmad (Son of the deceased): Note: His statement under Section 161 Cr. P. C as been recorded on 12.09.2006 by the first IO who has not been produced as a witness, as such, has been withheld, when in the statement he has stated that masked gunmen, during night, killed his father, he does not suspect anyone. (II) PW (2) Waseem Ahmad (Son of the deceased): Note: His statement under Section 161 Cr. P. C as been recorded on 12.09.2006 by the first IO who has not been produced as a witness, as such, has been withheld, when in the statement he has stated that masked gunmen, during night, killed his father, he does not suspect anyone. (a) In his statement recorded by the trial court on 27.02.2009, has stated that none of the accused was masked, he has not made any statement before the police. Then has stated that on the date of occurrence he has made statement before the police. He has further added that he had divulged names of the accused before the police, he has identified the accused. Then has qualified that in case in his statement under Section 161 Cr. P. C it is mentioned that the accused were masked, same is incorrect. If it is mentioned in his statement under Section 161 Cr. P. C that he did not identify the accused, same is incorrect. (b) Taking statement of this witness with the statement of his mother, mother first says that she did not divulge the names of the accused because of threat, then has stated that now she has divulged names, son also says that he has also divulged names of the accused, it would mean either first three IOs have given a false statement because IO No.1 and 2 have qualified that the identity of the accused was not known whereas IO No.3 has also made it clear that till 06.01.2008, identity of the accused was not known. (III) PW (3) Shaheena (daughter of the deceased). In her statement recorded in the trial court on 24.02.2009, she has stated that on the second day of occurrence, her statement was recorded by the police under Section 161 Cr. P. C, she had disclosed names of accused persons and has made it clear that the accused were Fayaz Malla, Shabir Bhat and Mushtaq Malla. She denied that the absent accused was Mushtaq Ganai. When confronted with her statement under Section 161 Cr. P. C dated 12.09.2006, she has stated that mention of words that she did not identify the accused persons is attributed to her. Her statement has been recorded after seven days. She denied that the absent accused was Mushtaq Ganai. When confronted with her statement under Section 161 Cr. P. C dated 12.09.2006, she has stated that mention of words that she did not identify the accused persons is attributed to her. Her statement has been recorded after seven days. If second statement is taken to be correct, then either IOs are lying or she is lying, who to be believed. (IV) PW (4) Mst. Sara (mother of the deceased) : In her statement recorded before the trial court on 27.02.2009 she has stated that she does not know parentage of the accused whereas in her statement recorded under Section 161 Cr. P. C on 06.01.2008, she has given complete parentage of the accused persons. Then has qualified that she had made statement before the police under Section 161 Cr. P. C on the date of occurrence itself i.e. on 06.09.2006. She has further qualified that she had given names of Shabir, Fayaz and Mushtaq. (V) PW (5) Mohammad Shaban (father of the deceased) : (a) His statement recorded under Section 161 Cr. P. C in the month of September, 2006 is not on the records, is lying in the records of AAG. Second time his statement under Section 161 Cr. P. C has been recorded on 06.01.2008. In his statement before the trial court has stated that on the second day of occurrence he made statement before the police. He has further stated that on the date of occurrence, all the accused were carrying guns on their shoulders and pistol in their hands. They had Kalashnikov guns and pistol in their hands. Then had stated that he made statement before the police within one week after the occurrence, which statement is not forthcoming from the records, instead statement recorded under Section 161 Cr. P. C on 06.01.2008 is on records. (b) He has falsified his statement by stating that in the Tehsil office he had stated that the accused killed the deceased. Then has qualified that he has second time made statement before the police, first on the date of occurrence and second date he does not remember. 12. PW 1 to 5 are close related witnesses, their presence at the time of occurrence cannot be doubted. Though interested witnesses, their testimony cannot be rejected. Cardinal principle is that their statements have to be examined with care and caution. 12. PW 1 to 5 are close related witnesses, their presence at the time of occurrence cannot be doubted. Though interested witnesses, their testimony cannot be rejected. Cardinal principle is that their statements have to be examined with care and caution. When their statements are taken together, as discussed hereinabove, it appears to be a bundle of lie vis-à-vis identity of the assailants. It is quite strange that the occurrence is of 06.09.2006. Twice their statements have been recorded under Section 161 Cr. P. C, for the reasons best known to the Investigating Officers who have made mess of the investigation. Every Investigating Officer has played his own role in his own way least realizing that they have failed to reach to the real culprit. After all a precious life has been lost. The Investigating Officers are the architects of the case. They should have discharged their duties with commitment which they have not. 13. What appears from the statements of PW 1 to 5 is that there have been some maneuvering and manufacturing and the Investigating Officers have also played part so as to show that a murder case is solved, which approach is totally unacceptable. 14. The testimony of PWs 1 to 5 is further shattered and exposed by two independent witnesses i.e. : (a) PW (6) and PW (7), who, according to these witnesses, were present in their house at the time of occurrence. PW (6) Mohammad Ramzan Ganai, friend of the deceased, in his statement under Section 161 Cr. P. C recorded on 25.09.2006 has made it clear that he could not identify any of the accused. Then while being examined before the trial court on 16.04.2009, he has further made it clear that he does not known the accused present in the court. Further stated that he did not see how many assailants were there but one person entered into the house. After killing the deceased, widow of the deceased was crying “Shabeero Shabeero” why you have killed my husband” but has again qualified that he has not identified said Shabir Ahmad. He cannot remember as to whether he had stated before the police that the widow of the deceased had cried “Shabeero Shabeero”. He does not know how many gunmen were outside the house. Then has qualified that in the room of deceased, one Jamsheed Ahmad Dar was also present. He cannot remember as to whether he had stated before the police that the widow of the deceased had cried “Shabeero Shabeero”. He does not know how many gunmen were outside the house. Then has qualified that in the room of deceased, one Jamsheed Ahmad Dar was also present. He has also qualified that he came out ten minutes after firing. (b) PW (7) Abdul Gani Dar, friend and neighbour, of the deceased, in his statement under Section 161 Cr. P. C recorded on 12.09.2006, has made it clear that unidentified persons killed the deceased. In the statement made before the trial court on 22.05.2009, he has stated that the wife of the deceased was crying “Shabeero Mushtaqo” but has qualified that he does not know the accused persons nor knows Shabir or Mushtaq. Then has again stated that he did not say to the police that the widow of the deceased was crying “Shabeero”. Further has stated that the person who entered the room was masked. (c) These two witnesses, though friends of the deceased, are independent witnesses, but have clearly stated that they did not identify any of the accused persons. Their saying that the widow was crying “Shabeero” is not supported by the widow herself. (d) Another damaging position is that the PW(1) Mst. Zainab has stated that at the time of occurrence, Jamsheed (an independent person) was present, then why he has not been cited as a witness, is a question which has remained to be answered. 15. PW (8), Wahab Mir, in his statement under Section 161 Cr. P. C has stated that terrorists were masked, then said that widow was crying Shaheen and Mushtaq killed the deceased. Shabir was also known by the name of Shaheen. Likewise, PW (9), Abdul Gani Mir, has also stated that the widow was crying that Shabir and Mushtaq killed the deceased. If it would have been so, then identity of the accused was known on the date of occurrence itself. 16. In view of statements of PWs 1 to 9, in the context of identity of the assailants (terrorists), was not it incumbent upon Investigating Officers to have arranged test identification parade. Same has not been done. The PW(1), the star witness, on one hand says that terrorists were unknown but in the second statement recorded under Section 161 Cr. 16. In view of statements of PWs 1 to 9, in the context of identity of the assailants (terrorists), was not it incumbent upon Investigating Officers to have arranged test identification parade. Same has not been done. The PW(1), the star witness, on one hand says that terrorists were unknown but in the second statement recorded under Section 161 Cr. P. C, has given name and parentage of the accused, then in the statement before the trial court has stated that she does not know parentage of the accused. Now in the statement recorded in 2015 before the trial court vis-à-vis third accused (absconder), who now has surrendered, has stated that the appellants No.1 and 2 were present, she identified them and rest two were masked so were unidentified. Can such a wavering statement be accepted for conviction? Can’t it be said to be manufacturing, that too at the level of 3rd IO, Bashir Ahmad, because it is he who has stated that on 06.01.2008, accused persons were identified and till then witnesses had not disclosed identity of the accused person. 17. It shall be quite relevant to quote following portion from Para 13 of the judgment of the Hon’ble Apex Court captioned Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat ( AIR 1964 SC 1563 ) : “The statements made in the depositions are really inconsistent with the earlier statements made before the police and they are, therefore, contradictions within the meaning of Section 162 of the Code of Criminal Procedure. We cannot place any reliance on the evidence of these witnesses…..” 18. It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. 19. When identity of the terrorists who killed the deceased has absolutely become doubtful, how conviction could be recorded against the accused persons. The terrorists killing a human being can’t be shown any sympathy; have to be dealt with provided their identity is known. Simply to frame some person as a ‘killer’ and then to convict and sentence him would be a great injustice. The implication of the appellants appears to be totally doubtful in the context of the statements of PWs 1 to 9, as referred to above. 20. Simply to frame some person as a ‘killer’ and then to convict and sentence him would be a great injustice. The implication of the appellants appears to be totally doubtful in the context of the statements of PWs 1 to 9, as referred to above. 20. Following portion from Para 14 of the judgment rendered by the Hon’ble Supreme Court in the case of “Masalti v. State of Uttar Pradesh ( AIR 1965 SC 202 ) is relevant to be quoted : “………….There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct”. 21. Host of other grounds have been projected, i.e.: (1) Witnesses have stated that there was indiscriminate firing but as per postmortem report, one fire was hit on the chest, as is clear from the entry and exit point. Whose bullet hit the deceased and from which gun bullet was fired is not known. It is astonishing i.e. when police has stated that they have recovered seven empties of AK 47 rifle, but they have not send the same for ballistic opinion. Whose bullet hit the deceased and from which gun bullet was fired is not known. It is astonishing i.e. when police has stated that they have recovered seven empties of AK 47 rifle, but they have not send the same for ballistic opinion. (2) According to learned counsel for the appellants, non-mention of Section 34 RPC or non-mention of the words that the “accused in furtherance of a common object and common intention barged into the house of deceased” has prejudiced the accused during trial. That may not be acceptable because the accused have consciously contested the case and were knowing what the charge is. 22. Statements of PWs 1 to 5 are full of exaggerations and improvements. PW (3) and PW (4) in their statement before the trial court have stated that the accused had also taken Rs.10,000/- (rupees ten thousand) from the possession of the deceased, an improvement. There is no such allegation right from the beginning. 23. We are pained that a police Sg. Constable has been killed ruthlessly but the identity of the assailants has totally remained in the region of suspicion. Investigation by five Investigating Officers in a reckless manner, then depositions of PWs 1 to 5, legal heirs of the deceased, more particularly that of PW (1) (widow), are such which give rise to a strong suspicion about implication of the appellants. Further withholding of ASI Abdul Rashid, first IO, is not free from suspicion because it is he who would have given real picture as had emerged immediately after the occurrence. Adverse inference has to be drawn to the effect that he has been deliberately withheld so as to manufacture identity of the appellants as accused persons. 24. When such a gruesome murder was committed, was not SSP concerned legally obliged to see that a senior police officer (a skilled investigator) is entrusted investigation so as to unravel the truth regarding exact identity of the assailants/terrorists, who actually were responsible for killing the deceased. 25. Investigating Officers shall bear it in mind that when they are entrusted with investigation of a case, they have to separate grain from the chaff and to see that the actual criminals are brought to book. 26. In the present case, it appears that the commitment to reach to the actual criminal was missing. Least said is better. 25. Investigating Officers shall bear it in mind that when they are entrusted with investigation of a case, they have to separate grain from the chaff and to see that the actual criminals are brought to book. 26. In the present case, it appears that the commitment to reach to the actual criminal was missing. Least said is better. However, we will not hesitate in observing that the Director General of Police, J&K Government, shall look into the matter and to issue appropriate directions to all concerned police officers that the investigation of the case, when it pertains to a killing of a human being, is entrusted to a senior most skilled officer so as to reach to the actual criminal otherwise faith of the people in the system is getting eroded. 27. In our view, the doubtful position about the identity of the assailants favours the appellants (accused). Therefore, appellants are entitled to benefit of doubt, so are, accordingly, acquitted. 28. In the upshot the appeal is allowed, judgment dated 06.10.2012 and order dated 09.10.2012 impugned are set aside. Reference for confirmation of the imprisonment for life is rejected. The appellants (accused) be released forthwith, if not required in connection with any other case. 29. Trial court record along with copy of the judgment be sent back to the trial court.