JUDGMENT : Heard Learned Counsel for the appellants Mr. Jitendra S. Singh and Mr. A.S. Dayal and learned Additional Public Prosecutor Ms. Laxmi Murmu representing the State,. 2. The present two appellants are the one who faced trial for the charge under Section 302/34 of the I.P.C. in Sessions Trial No.151/1994 before the learned court of 1st Additional District and Sessions Judge, Hazaribag arising out of Barkagaon P.S. Case No.77/1992 registered on 30th June 1993 under Section 324/307/34 of the I.P.C. to which Section 302 of the I.P.C. was added on 20th July 1993 against both the named accused/appellants herein after the death of the victim Rameshwar Sao, who was the father of the informant Damodar Sao. Learned trial court convicted both of them for the charges under Section 302/34 of the I.P.C. by the judgment dated 23rd April 1997 and sentenced them to undergo rigorous imprisonment for life vide order dated 26th April 1997 which are impugned herein. 3. The First Information Report was recorded on the written report of Damodar Sao informant (P.W.5) dated 30th June 1993 narrating the occurrence in the following manner :- 4. As per the informant on 29th June 1993 after having meal informant and his family had gone to sleep. His father was sleeping in the courtyard when at 1 A.M. his mother heard a sound of the metallic door and got up to find two persons namely Gultan @ Ghanshyam Yadav son of Dasai Gope with a knife in his hand and the other Kauleshwar Sao son of Rudan Sao standing beside him at the door both of village Churchu, P.S. Barkagaon. Her mother raised a brawl on which these two persons fled away towards the field and when she saw her husband, he was lying drenched in blood on a cot in an unconscious state. On her brawl informant got up and came to the courtyard and saw his father lying unconscious on the cot drenched in blood. Thereafter other villagers assembled. Reason for the occurrence as explained by him is an incidence which took place during the day on 29th June 1993 itself when the cattle of the two accused persons were ushered in the field of the informant’s father and on being objected they had told informant’s mother that they would see what happens in the night. Reason for the occurrence as explained by him is an incidence which took place during the day on 29th June 1993 itself when the cattle of the two accused persons were ushered in the field of the informant’s father and on being objected they had told informant’s mother that they would see what happens in the night. On these allegations informant alleged that these two persons have assaulted his father on the chest; neck and arm with knife and seriously injured him with an intention to kill. Law was set into motion by a Police Personnel of a rank of Assistant Sub Inspector of Police namely Vijay Singh Banra (P.W.11) as according to him Officer In-charge was not present nor anyone was authorized to conduct the investigation. The written report was adduced as Ext.1 by P.W.5 Damodar Sao. It transpires that another prosecution report in the form of Fardbeyn of the same persons Damodar Sao was recorded at 21 hours on 1st July 1993 by Shri R.N. Prasad of Sadar P.S., Hazaribag at Sadar Hospital after the death of his father. In this prosecution report, informant inter alia alleged that the incidence had occurred on the previous night in the courtyard of his house when these two accused persons had assaulted his father with knife at several places and rendered him injured who died during treatment at Sadar Hospital at around 7.30 P.M. This document was also adduced by the prosecution, proved and marked as Ext.7 by P.W.10 Arjun Ram, Officer In-charge who took over investigation from 20th July 1993. It further appears that on 24th July 1993 Police got the statement of three witnesses recorded under Section 164 Cr.P.C. namely Laliya Devi (P.W.3) widow of the deceased i.e. Rameshwar Sao, Dhuma Sao brother of Laliya Devi and brother-in-law of deceased Rameshwar Sao and Gurudayal Sao (P.W.1) brother of the deceased who was a neighbour. It further appears that during investigation which was initially done by the Assistant Sub-Inspector Vijay Singh Banra (P.W.11) and thereafter taken over by P.W.10 Arjun Ram, statement of only two witnesses were recorded namely Suresh and Juman Mian, out of whom Suresh has not been examined while Juman Mian has been examined as P.W.8 and tendered. Investigation led to filing of the chargesheet against these two named accused persons bearing no.83/1993 on 9th September 1993 under Section 302/34 I.P.C. 5. Investigation led to filing of the chargesheet against these two named accused persons bearing no.83/1993 on 9th September 1993 under Section 302/34 I.P.C. 5. Cognizance was taken and the case was committed to the learned court of Sessions Judge where charges were framed against both the accused on 27th July 1994 under Section 302/34 of the IPC. The charges were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 6. In support of their case prosecution examined altogether 12 witnesses named as under :- 1. Gurudayal Sao 2. Gangiya Devi 3. Most. Laliya 4. Dhuma Sao 5. Damodar Sao 6. Dewanti Devi 7. Dr. R.K. Jaiswal 8. Juman Mian 9. Dr. Binay Kumar 10. Arjun Ram 11. Vijay Singh Banra 12. Kamal Kishore Sinha It also adduced certain documentary evidence up to Ext.9 series as under :- Ext.1 - Written Report Ext.2 - Signature of Damodar Sao on the Fardbeyan Ext.2/1- Signature of Damodar Sao on the inquest report Ext.2/2 - Signature of R. Paswan on inquest report Ext.3 - Injury report Ext.4 - Postmortem report. Ext.5 - Formal F.I.R. Ext.6 - Endorsement on written report Ext.7 - Fardbeyan of Damodar Sao Ext.8 - Carbon copy of inquest report Ext.9 to 9/2- Statement u/s 164 Cr.P.C. 7. After closure of the prosecution evidence, the statement of the accused was recorded on 10th March 1997 under Section 313 of the Cr.P.C. where they denied their involvement and claimed that they have been falsely implicated. 8. Learned trial court on consideration of the evidence on record and the case of the parties was satisfied that the charges have been proved beyond all reasonable doubt against these two accused persons, accordingly they were sentenced to undergo rigorous imprisonment for life. Being aggrieved thereby, they are before us in the respective appeals. 9. In support of the challenge to the impugned findings learned counsel for the appellants have submitted as under :- After placing the evidence on record in detail, appellants have pleaded that right from the very inception the prosecution case suffers from serious defects and doubts. Being aggrieved thereby, they are before us in the respective appeals. 9. In support of the challenge to the impugned findings learned counsel for the appellants have submitted as under :- After placing the evidence on record in detail, appellants have pleaded that right from the very inception the prosecution case suffers from serious defects and doubts. This is a case where there are two information relating to the occurrence by the same informant, one is a written report submitted to the Barkagaon P.S. on 30th June 1993 which led to institution of F.I.R. and the other being a Fardbeyan recorded at Sadar Hospital, Hazaribag at 21 hours on 1st July 1993. Comparison of both these prosecution documents reveal certain fundamental contradictions which the prosecution has not been able to explain or overcome even during trial. The informant in his written report mentioned about the brawl raised by his mother whereafter he came out in the courtyard and only saw his father lying drenched in blood in an unconscious state on the cot. He had not seen anyone fleeing away though as per his version, his mother had informed him that two persons had fled away. Even in this report the informant did not attribute his mother having seen the actual assault by these two accused persons nor had he seen himself. In the Fardbeyan recorded on 1st July 1993 at 21 hours informant is completely silent about the source of information, does not name his mother at all and also does not claim to have seen the occurrence himself. The initiation of the prosecution case in such doubtful manner became more confounded as purported investigation was conducted by an unauthorized police personnel. Even the Officer-in-charge Arjun Ram (P.W.10) who took over the investigation from 20th July 1993 does not show any authorization of any superior officer to take over the investigation which is a procedural requirement under Police Manual Rule 158 which is quoted as under :- “158. Rank and strength of Investigating Officers – As a rule, no office of rank lower than an S.I. in uniform shall be employed in the investigation of cases. A supervising officer is also an investigating officer, except that he does not write C.Ds. but a supervision note. The supervising officer shall also wear uniform.” 10. Rank and strength of Investigating Officers – As a rule, no office of rank lower than an S.I. in uniform shall be employed in the investigation of cases. A supervising officer is also an investigating officer, except that he does not write C.Ds. but a supervision note. The supervising officer shall also wear uniform.” 10. Investigating Officers did not record the statement of any of these witnesses who were said to be present in the house namely P.W.2 Gangiya Devi, P.W.3 Most. Laliya, P.W.4 Ghuma Sao, P.W.5 Damodar Sao and P.W.6 Dewanti Devi. As such, all these witnesses, who claimed to be natural witnesses present in the house at the time of occurrence have for the first time deposed in Court apart from the statement of P.Ws.1, 3 and 4 recorded under Section 164 Cr.P.C. before P.W.12 learned Judicial Magistrate Mr. Kamal Kishore Sinha on 24.07.1993 i.e. 25 days after the occurrence. These documents have been proved by the P.W.12 marked as Ext.9 series. The other two witnesses whose statements were recorded, were definitely not eye-witnesses to the occurrence and one of them was not examined during trial while the other P.W.8 Juman Mian was tendered. The evidence of these six witnesses P.W.1 to 6 on being read minutely demolishes the case of the prosecution by their own contradictions. They all are also related witnesses and interested in ensuring conviction of the accused persons by making false deposition during trial. 11. Learned counsel for the appellants has first referred to the deposition of P.W.1 who at para-2 claims to have identified two accused persons after reaching the place of occurrence on hearing brawl and as such contradicts his own statement made under Section 164 Cr.P.C. He has even described the weapons in the hands of the accused persons which fact was never stated by him under Section 164 Cr.P.C. nor he had claimed to have seen the occurrence. In his statement under Section 164 Cr.P.C. he had in fact stated that he had not identified two persons who were fleeing away outside and had not seen the occurrence. According to this witness he had reached the place of occurrence first after hearing the brawl as per the statement made at para-7 where he has also made false statement that on that date three sons two daughters-in-law of the deceased Rameshwar were in the house and were shouting. According to this witness he had reached the place of occurrence first after hearing the brawl as per the statement made at para-7 where he has also made false statement that on that date three sons two daughters-in-law of the deceased Rameshwar were in the house and were shouting. This statement of the P.W.1 stands contradicted by the deposition of P.W.2 and 3 who are daughters-in-law of the deceased and widow of the deceased. In his statement at para-10 of the deposition he has again stated a falsehood since no such statement of this witness was recorded by the Officer-in-charge. He is, therefore, a totally unreliable witness. 12. Learned counsel has placed the evidence of P.W.2 Gangiya Devi who in her deposition stated that she got up after hearing the brawl of her father-in-law who on being asked told her that these two accused Ghanshyam and Kauleshwar had assaulted him. She also stated that her mother-in-law had also sustained injury and was bleeding from her mouth. Her teeth was broken. Her father-in-law was lying on the cot drenched in blood. She further states as having seen these two accused persons after she came out in the courtyard. Her deposition is in contradiction to the F.I.R. as the informant had stated that his father was lying unconscious drenched in blood on a cot when he came outside and that it was her mother who was shouting and naming the two accused persons as having seen them fleeing away from the house. This witness has denied of any previous enmity with the accused persons at para-7 of her deposition. Her testimony also is unreliable as she contradicts the main prosecution story on its vital material parts. P.W.3 Most. Laliya Devi is the widow of the deceased. She in her deposition had stated that she was sleeping with her husband in front of the door. Her daughter-in-law Dewanti Devi (P.W.6), son Damodar Sao P.W.5 (informant), second daughter-in-law Gangiya Devi (P.W.2) and her brother Ghuma Sao (P.W.4) were sleeping inside. She further states at para-3 that her husband raised a shout of “Help Help” when she got up and saw these two accused Ghanshyam and Kauleshwar assaulting her husband with some iron like weapon and Ghanshyam was assaulting with a knife both of which caused 12 knife injuries on the chest and the face of her husband. She further states at para-3 that her husband raised a shout of “Help Help” when she got up and saw these two accused Ghanshyam and Kauleshwar assaulting her husband with some iron like weapon and Ghanshyam was assaulting with a knife both of which caused 12 knife injuries on the chest and the face of her husband. Her statement contradicts the First Information Report and also contains a highly contradictory version of the manner of occurrence as in her statement made under Section 164 Cr.P.C. she had stated that Kauleshwar had caught hold of her husband and Ghanshyam was sitting on his chest and assaulting him with knife on his chest, cheek and other places 11 number of times. In the F.I.R. the informant had stated that her mother had only stated that she saw these two accused persons fleeing away towards the field and informant’s father was lying unconscious on the cot. P.W.3 further stated that she was also assaulted when she tried to raise a brawl which broke her tooth. Learned counsel for the appellant has pointed out that this injury on P.W.3 is not supported by any medical evidence as there are no injury report to that effect. It is also not in dispute that the statement of this witness was not recorded under Section 161 Cr.P.C. during investigation and only after 25 days a statement was recorded under Section 164 Cr.P.C. which is also at variance with her deposition. She has also stated at para-13 that her statement was not recorded and further contradicted the First Information Report in the same paragraph when she stated that her husband was in a conscious state but could not speak due to injury on his mouth. She has stated at para-14 that she was treated for two days from Barkagaon Hospital, Hazaribag where she had gone along with victim from Barkagaon Hospital but there is no injury report to that effect. In her statement at para-16 she has stated on the fateful night, out of her three sons only one was there in the house namely P.W.5, rest two had gone out. This contradicts the statement of P.W.1. At para-19 she has stated that her daughter-in-law Gangiya Devi came out first on her brawl then Damodar and Dewanti, P.W.5 and 6 came out and thereafter P.W.1 Gurudayal came from nearby followed by other villagers. This contradicts the statement of P.W.1. At para-19 she has stated that her daughter-in-law Gangiya Devi came out first on her brawl then Damodar and Dewanti, P.W.5 and 6 came out and thereafter P.W.1 Gurudayal came from nearby followed by other villagers. This witness has not spoken anything about the occurrence during the day time relating to ushering of cattle in their field and any threat by two accused persons to see them in the night. As a matter of fact she has stated at para-19 that there was no prior enmity with the accused persons. Thus, this witness is also not reliable and to support the prosecution case, though she claims to be sleeping on the same cot along with her husband. P.W.4 is Dhuma Sao, brother of P.W.3 Most. Laliya and brother-in-law of the victim who was stated to be in the house on the fateful night. According to this witness he came out in the courtyard on hearing the brawl of his sister and saw injuries on the neck and chest of his brother-in-law, the victim Rameshwar Sao which was bleeding. He categorically stated at para-4 that he has not seen the accused persons fleeing away rather heard from his sister that they were fleeing. He claims to have seen the broken tooth and blood coming out from mouth of her sister. Both of them were taken to Barkagaon P.S. and from there to Hazaribag for treatment. According to this witness, at para-9 of his deposition, he was the first one to reach the courtyard upon hearing the brawl of his sister. This is, however contradicted by the deposition of P.W.3 Laliya Devi and P.W.5 Damodar Sao. He further stated that the voice of his brother-in-law was trembling at that time and his sister was shouting “Chor Chor” (Thief Thief) but she was not taking name of any accused person. This witness has further stated in the same paragraph that he had not seen any thief fleeing away from the courtyard and his sister had not stated having identified anyone. This witness is also not creditworthy and contradicts the first information story. Evidence of P.W. 5 has been placed by learned counsel for the appellants, who is the informant. This witness has further stated in the same paragraph that he had not seen any thief fleeing away from the courtyard and his sister had not stated having identified anyone. This witness is also not creditworthy and contradicts the first information story. Evidence of P.W. 5 has been placed by learned counsel for the appellants, who is the informant. In his deposition, he has stated having been present inside the house on the fateful night on 29th June, 1993 along with P.W.2 Gangiya Devi, P.W.5 Damodar Sao and P.W.4 Dhuma Sao when he heard a shout of his mother, who was sleeping in the courtyard along with his father “Chor Chor (Thief Thief)”. He has reached the courtyard and claims to have seen the appellant Ghanshyam Gope inflicting injuries by knife on his father and appellant Kauleshwar sitting on the chest of his father and assaulting him by means of Gupti (a piercing weapon). Ghanshyam is known as Gultan Gope. It is pointed out on behalf of the appellants that this is a complete improvement from the informant’s own first information report where he has categorically denied having seen the accused persons or the actual assault taken place in front of his eyes. This witness has further stated that on shouts of his mother Gangiya Devi P.W.6 his wife and the informant came out together. They had also seen the occurrence and thereafter P.W.4 Dhuma Sao had come out of the house. He also states that Gurudayal Sao (P.W.1) had also reached. Learned counsel for the appellants submits that a bare comparison of the statement of P.W.2, P.W.3, P.W.4 and P.W.1 with the present witness P.W.5 shows such contradictions and improvements in the informant’s case that the whole prosecution story is demolished. Informant has during trial posed as an eye witness which he was not. Therefore, all the description of the manner of occurrence or the identity of the accused persons having seen by him are totally in the realm of doubt, more so since P.W.3 his mother who was source of information as per the first written report had not even recorded her statement under Section 161 Cr.P.C during investigation and appeared as an eye witness during trial for the first time. Though this witness has stated about the assault on his mother also which rendered her teeth broken but this does not stand corroborated as no medical evidence to that effect is on record. This witness has at para-5 stated that the accused persons fled away towards the west in the field after breaking the door. This statement of P.W. 5 is contradicted by P.W.-11 Investigating Officer, who has not found any broken door at the place of occurrence. In fact, Investigating Officer has not even found any cot or blood stain in the courtyard. He has proved his signature on the written report which is marked as Ext.-1. He has further stated about treatment of his father at Barkagaon Hospital and thereafter at Hazaribagh Hospital where he succumbed to his injury on 1st July, 1993 at 4.30 in the afternoon. He has also proved his signature on the Fardbeyan recorded at Hazaribagh marked as Ext.-2. He has proved his signature and that of Rajendra Paswan on the inquest report prepared on 2nd July, 1993 marked as Ext.- 2/1 and 2/2 in carbon copy. This witness however at para-10 has stated about the occurrence during the day time on 29th June, 1993 when the accused persons had threatened his mother on being objected by her from grazing the fields by their cattle. At paras- 14 and 15 he has described the boundaries of the place of occurrence. At para-16, this witness has categorically stated that his father was not in a position to speak and was indicating in a state of consciousness that he had been assaulted by two persons. This is again a contradiction to his first written report where he has stated that his father was lying unconscious with such injuries. This witness has not shown as to how his father regained consciousness thereafter and indicated about the occurrence. At para-18 he also stated that his other two brothers were not in the house on the fateful night. This contradicts the statement of P.W.1 Gurudayal Sao. He was confronted with the statement made in the First Information Report at para-19 and 20 of his deposition which he has not been able to specifically deny. Further at para-20 he has stated that on hearing the brawl from his mother P.W. 2 he was the first person, who reached there along with his wife reached. He was confronted with the statement made in the First Information Report at para-19 and 20 of his deposition which he has not been able to specifically deny. Further at para-20 he has stated that on hearing the brawl from his mother P.W. 2 he was the first person, who reached there along with his wife reached. Thereafter P.W.4 and thereafter P.W.1 Gurudayal Sao also reached. 13. Learned counsel for the appellants have laboured to show that the informant is not a truthful witness as there are such vital contradictions in his deposition which completely shatters his own case as set up in the First Information Report. Placing the evidence of P.W.6 Dewanti Devi wife of the informant Damodar Sao P.W.5, it has been argued on behalf of the appellants that this witness is also not a trustworthy witness. Apart from minor inconsistencies as to who all were sleeping together in a room compared to that of P.W.3 Laliya Devi her mother-in-law in para-1 of her deposition, at para-2 she has stated that she woke up from sleeping after hearing the brawl raised by both her father-in-law and mother-in-law who were shouting that the accused persons were assaulting on the chest. She further embellished the prosecution story as made in the first information report by stating that she also saw the accused person Ghanshyam armed with knife and Kauleshwar armed with iron like weapon assaulting the deceased. Informant and this witness, if had come out together after hearing the brawl, no such narration of the manner of assault was described in the first written report. Therefore, this embellishment renders the deposition of this witness also wholly unreliable. At para-8 also while describing the occurrence, she has again reiterated her statement made at paras-1 and 2 attributing the noise created by brawl of both of his father-in-law and mother-in-law which is not true to the original prosecution story. She further contradicts the informant’s version as made out in the first information report and indicates a considerable improvement over it at para- 9 where she claims to have seen these two accused persons fleeing away from the place of occurrence. She further contradicts the informant’s version as made out in the first information report and indicates a considerable improvement over it at para- 9 where she claims to have seen these two accused persons fleeing away from the place of occurrence. This was not a case of the informant at the time of institution of the F.I.R. Further at para-11, she has stated something which renders her testimony unreliable as she claims to have made statement before the Police which is not a matter of fact. This witness had also for the first time deposed in the Court. The contradiction and the major embellishment in her deposition renders her completely unreliable. Learned counsel for the appellants submits that analysis of the testimony of this vital prosecution witness nos. 1 to 6 goes to show that the findings recorded by learned trial court are not worthy of being sustained in the eye of law or on facts. 14. Evidence of P.W. 7, Medical Officer, who had first treated the victim at Primary Health Center, Barkagaon on 30th June, 1993 at 2.45 a.m. gives the description of the several injuries sustained by the deceased and the opinion thereupon. Injury report has been proved by P.W.7 as Ext.-3. They are being extracted hereunder : (i) Incised wound 4” x 1” x muscle deep with fresh bleeing and lateral felling on the left side of face. (ii) Incised wound 1” x ¼” x muscle deep with fresh bleeding over the left side of fact. (iii) Fracture of right upper medial and left upper medial incisors and left lateral incisor teeth (iv) Incised wound 3” x ½” x plenza deep with lateral felling over the right upper chest with fresh bleeding and air bubbles coming up. (v) One incised wound 1” x ¼” x skin deep over the right shoulder with fresh bleeing. (vi) Incised wound 2½” x ½” x muscle deep with fresh bleeding over the right side of chest. (vii) Incised wound 1” x ¼” x muscle deep with fresh bleeding over the upper part of anterior aspect of neck on left side. (viii) Swelling of whole neck – 10” x 8” with cracking crepitation (surgical emphysema).” 15. Learned counsel for the appellants submits that testimony of the medical evidence alone does not prove the guilt of the present two appellants as their involvement in the crime is not established. (viii) Swelling of whole neck – 10” x 8” with cracking crepitation (surgical emphysema).” 15. Learned counsel for the appellants submits that testimony of the medical evidence alone does not prove the guilt of the present two appellants as their involvement in the crime is not established. Learned counsel for the appellants submits that P.W. 8 Juman Mian whose statement was recorded under Section 161 Cr.P.C, was tendered. Statement of P.W. 9, second Doctor Dr. Binay Kumar, who conducted the postmortem on the dead body of the victim on 2nd July 1993 has also been placed. He has proved the postmortem report describing the injuries on the deceased and opined that cause of death was due to hemorrhage and shock caused by injuries to major visceras by sharp cutting weapon. Such injuries could be caused by Chura (knife). Even the medical evidence of this witness does not nail the involvement of the present two appellants since ocular testimony is completely untrustworthy. The extract of the postmortem report containing the injuries and his opinion thereupon are reproduced hereunder: “Ante mortem injuries:- (i) A stitched wound on right side of chest over cheek. Stitched wound over right side of face over cheek. On cutting the stitch, a sharp edged wound 1 ½” x ¼” x ½” was found, (ii) A stitched wound over left cheek 1” x ½” sharp edged. (iii) Lacerated wound over right chest. (iv) Mandible fractured on right side (v) Stitched wound on right side of neck at the base. On cutting the stitch it was commuting over the chest cavity. There was laceration of the right lung at the appox. A chest tube was found there. Both chamber of the heart were empty left lung was intact and right was cut at the apex, liver, spleen, both kidneys were intact and pale, stomach contained six ounces of Meuco fluid, urinary bladder was empty. Time elapsed since death 24 to 36 hours. Opinion: Cause of death was due to hemorrhage and shock caused by injuries to major visceras by sharp cutting weapon. Such injuries can be caused by Chhura.” 16. Learned counsel for the appellants has referred to the testimony of the Investigating Officers thereafter. P.W.10 Arjun Ram was the second Investigating Officer and Officer-In-charge of Barkagaon P.S., who submitted the charge-sheet. This witness had denied any authorization from his superior officials. Such injuries can be caused by Chhura.” 16. Learned counsel for the appellants has referred to the testimony of the Investigating Officers thereafter. P.W.10 Arjun Ram was the second Investigating Officer and Officer-In-charge of Barkagaon P.S., who submitted the charge-sheet. This witness had denied any authorization from his superior officials. However, this witness has also stated that he was not present in police station on the date of institution of F.I.R when P.W.11 A.S.I Vijay Singh Banra had taken over the investigation. He has proved the formal F.I.R as Ext.-5 and the endorsement on the written report as Ext.-6. This witness had got the statement of P.W.1, P.W.3 and P.W.4 recorded under Section 164 Cr.P.C. He had also filed an application for adding of provisions of Section 302 I.P.C on the death of the victim which has been marked as Ext.-7. However, evidence of this witness at para-9 clearly shows that he had not recorded the statement of the witnesses under Section 161 Cr.P.C P.W.11 is Vijay Singh Banra, Assistant Sub Inspector, who registered the first information report on the written report of the informant, P.W.5 on 30th June, 1993. In his deposition he has stated that he took over the investigation in the absence of Officer-In-charge. He had inspected the place of occurrence being house and courtyard of the victim and also taken the statement of witnesses Suresh Yadav who was not examined during trial and Juman Mian P.W.8 who was tendered by the prosecution. He had proved carbon copy of inquest report which has received from Sub-Inspector, Raj Nandan Prasad, Sadar Police Station marked as Ext.-8. In his deposition, he has accepted that he had not recorded in the station diary that he had taken over investigation due to absence of Officer-In-charge or that he was In-charge of the Police Station. He has further stated in the same paragraph of his deposition that only one injured had come for treatment to police station thereby contradicting the presence of other injured Laliya Devi P.W.3 as stated by her and other related witnesses. According to P.W.11, the injured was in an unconscious state. This also contradicts the statement of other related prosecution witnesses, who claimed that the injured was in a conscious state and blubbering something. This witness has further denied having seen any broken teeth of Laliya Devi. According to P.W.11, the injured was in an unconscious state. This also contradicts the statement of other related prosecution witnesses, who claimed that the injured was in a conscious state and blubbering something. This witness has further denied having seen any broken teeth of Laliya Devi. He had not seen any cot at the place of occurrence nor seen any broken metallic door there. His testimony shows that the entire investigation was unauthorized and faulty since the statement of none of these material but related witnesses were recorded by him under Section 161 Cr.P.C. P.W. 12 is the Judicial Magistrate Kamal Kishore Sinha before whom the statement of P.W.1, P.W.3 and P.W.4 were recorded under Section 164 Cr.P.C, which has been proved and marked as Ext.-9 series. After placing the entire evidence on record in such detail while summarizing their arguments, learned counsel for the appellants submit that the entire prosecution case is not only doubtful but demolished by the deposition of the prime witnesses, namely, P.W.2 to P.W.6, all of whom claim to have been present in the house at the time of occurrence. Therefore, appellants have suffered conviction on wholly unreliable evidence which is unsafe to be upheld in appeal by this Court. Therefore, appellants deserve to be acquitted of all the charges. 17. Learned Additional Public Prosecutor has during the course of submission, supported the findings recorded by learned Trial Court. It is submitted that the findings are based on appreciation of the materials brought on record during trial. Evidence of P.Ws. 2 to 6 including the informant (P.W.5) and P.W.3, widow of the victim, who was sleeping in the courtyard along with victim on a cot, if read together, lead to a conclusion that there is no element of doubt left in the prosecution case. Minor inconsistencies in the evidence of these prosecution witnesses should not be treated to discard their evidence in totality as it is a well-settled principle of law that the Court should endeavour to separate the grain from the chaff. P.W.5, informant has supported the prosecution case during trial so as his mother P.W.3 who had raised the brawl after seeing the accused persons seriously assaulting her husband and fleeing away from the place of occurrence. Other prosecution witnesses present in the house also reached there and have described the manner of occurrence as witnessed by them individually. P.W.5, informant has supported the prosecution case during trial so as his mother P.W.3 who had raised the brawl after seeing the accused persons seriously assaulting her husband and fleeing away from the place of occurrence. Other prosecution witnesses present in the house also reached there and have described the manner of occurrence as witnessed by them individually. The medical evidence in the nature of the injury report Ext.-3 and the postmortem report Ext.-4 adduced by P.W.7 and P.W.9 corroborate the ocular testimony of assault by sharp cutting and piercing weapon at several places including vital parts of the victim. The motive is the previous incidence during day time on 29th June, 1993 when these accused persons had threatened the mother of the informant to see them in the night. By now, it is well-settled that any defect in investigation would not lead to acquittal of the accused persons if the ocular testimony together with the expert evidence are sufficient to prove the charges. The impugned findings are based on proper reasoning and appreciation of the entire evidence on record, which do not deserve to be interfered in appeal. Accordingly, the appeal should be dismissed as being devoid of any merit. 18. We have heard learned counsel for the appellants and State at length, gone through the materials on record including the Fardbeyan, framing of charge, evidence of 12 prosecution witnesses, 9 prosecution exhibits, statement of the accused under Section 313 Cr.P.C. We have also perused the impugned judgment of conviction and order of sentence. 19. We have carefully analyzed the evidence brought on record by the prosecution in order to test whether its case is proved beyond all shadow of reasonable doubt. However, as we proceed to analyze the evidence in entirety, we find substance in the contention of the appellants that from inception itself the prosecution case had significant inconsistencies as noticed in the First Information Report submitted at Barkagaon Police Station on the night on 30th June, 1993 by the informant, P.W.5 and the Fardbeyan of the same informant recorded at 9 p.m. on 1st July, 1993 at Hazaribag after the death of his father. If the First Information Report is to be believed as true as first account of the occurrence, Informant was not an eye witness to the assault and had not even seen the accused persons fleeing away. If the First Information Report is to be believed as true as first account of the occurrence, Informant was not an eye witness to the assault and had not even seen the accused persons fleeing away. He had reached the courtyard at the time of occurrence about 1:00 a.m.in the night on hearing the shouts of his mother and found his father bleeding profusely lying on a cot in an unconscious state. In the Fardbeyan, the informant does not attribute any source of such knowledge to his mother. Even if we shrug aside this inconsistency for the time being, when we proceed to examine the evidence of individual prosecution witnesses, namely, P.W. 2, daughter-in-law of the victim, P.W.3 Most. Laliya his widow, P.W.5 informant and P.W.6 wife of the informant Dewanti Devi apart from brother-in-law of the victim P.W. 4 Dhuma Sao, it is clear that they have contradicted each other, and at the same time improved the first information story of the occurrence beyond credibility. P. W. 3, P.W.5 and P.W.6 all claimed to have seen the occurrence and the assault upon the victim by these two accused persons. This is a complete improvement from the F.I.R. not worth credence. P.W.2 has gone on to say that she was woken up on the shouts of her father-in-law and who on being asked, had named these two accused persons as being perpetrators of the assault. Her testimony, on the one hand, contradicts the First Information story put up by the informant, P.W.5 and at the same time renders her credibility as a witness wholly doubtful. Father-in-law of P.W.2, the victim was reportedly in an unconscious state as per the F.I.R. but this witness in her statement reiterates that her father-in-law was speaking. P.W.3 Laliya Devi also demolishes the first information story where as per informant she only claimed to have seen the accused persons fleeing away, while during deposition she claims to have seen the manner of assault by each one of the accused with knife and an iron like weapon at 12 places. Though she claims to have suffered injuries on her tooth, but there is no medical evidence to support that version. P.W.4 demolishes the testimony of P.W.3. Though she claims to have suffered injuries on her tooth, but there is no medical evidence to support that version. P.W.4 demolishes the testimony of P.W.3. He has reached the place of occurrence from inside the house upon hearing the brawl of her sister P.W.3, but in his statement at para-9 he clearly says that his sister was only shouting “Thief Thief” and not named accused person. His statement demolishes the First Information Report about the identity of these two accused persons having been seen by P.W.3. Similarly, P.W.5 during trial has improved upon the First Information Report to an extent that he described the name of these two accused and the manner in which they were assaulting his father in the courtyard when he reached there from inside the house upon hearing the brawl raised by his mother. According to First Information Report, his father was lying in an unconscious state and he had not seen any person fleeing away. This witness is also not fit to be believed. 20. Similarly, P.W.6, who is the wife of P.W.5 who has also rendered her testimony as completely doubtful. In her deposition, she claims to have heard the name of these two accused persons after reaching the courtyard both from her father-in-law and mother-in-law, whereas as per First Information Report, informant’s father was in unconscious state when he reached the courtyard. Such unreliable testimony by persons, who claimed to be eye witness and present at the place of occurrence at the time of occurrence cannot be made the basis to uphold conviction recorded by learned Trial Court. No doubt, the injuries on the body of the deceased has been proved both P.W. 7 and P.W.9 as Ext.-3 and Ext.-4, but presence of vital injuries on the body of the victim alone would not prove the involvement of the accused persons i.e., present appellants, if the ocular testimony is wholly untrustworthy and is replete with doubt. We further find that investigation of this case has been conducted by a police personnel, P.W.11 who does not appear to have authority to do so in terms of the provisions of Rule 158 of the Police Manual as he was posted as Assistant Sub Inspector. Prosecution has not been able to show any authorization of P.W.11 Vijay Singh Banra by any superior authority to carry out with the investigation in absence of Officer-In-charge. Prosecution has not been able to show any authorization of P.W.11 Vijay Singh Banra by any superior authority to carry out with the investigation in absence of Officer-In-charge. We are constrained to observe that even though this P.W.11 carried on investigation till 20th July, 1993, but he failed to record the statement of any of the material witnesses named above, apart from two witnesses one of whom Suresh who had not been examined and one Juman Mian who was tendered. Though P.W.10 Arjun Ram, Officer-In-charge of Barkagaon P.S. who took over the investigation on 20th July 1993 made efforts to get the statement of P.W. 1, P.W.3 and P.W.4 recorded under Section 164 Cr.P.C, but he also did not record their statements under Section 161 Cr.P.C prior to that or of the other witnesses. Statement of these witnesses under Section 164 Cr.P.C was recorded after 25 days of the occurrence and there being no explanation as to why their statements were not recorded earlier during investigation. After comparing the evidence of these three prosecution witnesses with their statements made under Section 164 Cr.P.C, we find that they have not stood true to their statements made before learned Judicial Magistrate. P.W. 12 who proved the statements made under Section 164 Cr.P.C marked as Ext.-9 series. 21. We have discussed the evidence of the prosecution in detail as above. Based on that we are of considered opinion that it is not at all safe and proper to uphold the conviction of these two appellants for the charge of murder with aid of Section 34 I.P.C. As such, the appeals deserve to be allowed. Accordingly, the impugned judgment of conviction and order of sentence rendered by learned Trial Court is set aside. Appeals are allowed. Appellants, who are on bail, they are discharged from the liability of their bail bonds. Let Lower Court Records be send down to the Court concerned forthwith with a copy of this judgment. Appeals allowed.