JUDGMENT : A.K. Mishra, J. In this appeal the appellants have challenged their conviction under section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as I.P.C. in brevity) and sentence to undergo imprisonment for life in the judgment dated 28.05.1999 passed by learned Additional Sessions Judge, Bhadrak in Sessions Trial No. 54/122 of 1998. 2. Prosecution case, in short, is that on 06.01.1997 at 6.00 P.M. at Chandabali Bazar, the informant was present in-front of a tea-cum-sweet stall with Hemanta Swain (P.W.6) and Balaram Das (P.W.7). Informant's cousin brother Prafulla Nayak (deceased) was also present at a distance. Present two appellants along with two others being armed with swords and revolver, suddenly attacked the deceased taking advantage of failure of electricity. Both the appellants dealt blows by means of sword. The deceased ran and entered inside a shoe stall. The informant when tried to intervene, he was threatened at the point of revolver. The public and shopkeepers panicked and fled away out of fear. Police on being informed rushed to the spot and in a vehicle shifted the injured-Prafull Nayak to Chandabali hospital, where he was declared dead by doctor (P.W.8). 2.1 P.W.4-Saroj Kumar Mallick reported the matter orally before the O.I.C. (P.W.11) and the same was reduced in to writing. The O.I.C. on return to Police Station at 7.30 P.M. registered the F.I.R. vide Chandabali P.S. Case No. 1, dated 06.01.1997. The investigation ensued. In course of investigation the Investigating Officer (in short "I.O.") examined the witnesses, conducted inquest and sent the dead body of the deceased to Bhadrak District Headquarter Hospital. Dr. Prafulla Kumar Panda (P.W.9) conducted autopsy vide Exhibit-4 on 07.01. 1997. The I.O. seized blood stained articles and shoes from the spot which were sent to chemical examination. Accused Sudam Das was arrested on 06.03.1997. On the prayer of the I.O., the J.M.F.C., Bhadrak conducted T.I. Parade on 09.04.1997. Accused Laxman alias Dushasan Naik-appellant no.2 was arrested on 23.11.1997, other two accused persons absconded. After completion of investigation charge sheet was submitted and learned S.D.J.M., Bhadrak took cognizance on 04.06.1997 of the offence under Section 302 read with 34 of the I.P.C. and found sufficient ground to proceed against four accused persons including two absconders. 3. The case was committed to the Court of Session keeping split up file against two absconders. After completion of investigation charge sheet was submitted and learned S.D.J.M., Bhadrak took cognizance on 04.06.1997 of the offence under Section 302 read with 34 of the I.P.C. and found sufficient ground to proceed against four accused persons including two absconders. 3. The case was committed to the Court of Session keeping split up file against two absconders. The present two appellants faced trial for offence under section 302 read with 34 of the I.P.C. 4. The plea of accused persons was denial simpliciter. 5. In course of trial, eleven witnesses were examined on behalf of the prosecution whereas defence examined none. P.W.4 is the informant and P.Ws. 6 and 7 are the occurrence witnesses. P.W.4 has neither named the accused persons in the F.I.R. nor identified appellant Sudam Das in the T.I. Parade or in the court. 5.1 P.W.9 is the doctor who conducted postmortem examination vide Exhibit-4. He was not cross-examined. His evidence proves the homicidal nature of death of the deceased. The uncle and brother of the deceased are P.Ws. 1 and 2 respectively. They also proved inquest. P.Ws. 3 and 5 are the worker and owner of the sweet stall and shoes centre respectively at the spot, but both of them stated to have not seen the actual assault, as out of fear they fled away from the spot. The subsequent seizure from the spot was proved by P.W.5. P.W.10 is the constable, who was the custodian of the dead body at the hospital. P.W.8 is the doctor of Chandabali CHC, who initially examined the injured and found him dead. He was declared hostile. The defence proved certified copy of the order sheets in G.R. Case No. 619 of 1992 of the court of learned S.D.J.M., Bhadrak and photo copy of charge sheet in Chandabali P.S. Case No.31 of 1992 to show enmity of witnesses P.Ws. 6 and 7 with the accused persons. 6. Learned Additional Sessions Judge, Bhadrak, believed P.Ws. 6 and 7 eye-witnesses as credible and reliable. Basing upon the evidence of the doctor P.W.9, he found that the death of deceased was homicidal in nature inflicted by sharp cutting weapon like sword. The lacuna in the investigation for not recovering the weapon of offence and for non-examination of other witnesses was found inconsequential by the learned Addl. Sessions Judge. Minor discrepancies were discarded. Basing upon the evidence of the doctor P.W.9, he found that the death of deceased was homicidal in nature inflicted by sharp cutting weapon like sword. The lacuna in the investigation for not recovering the weapon of offence and for non-examination of other witnesses was found inconsequential by the learned Addl. Sessions Judge. Minor discrepancies were discarded. The accused persons were found guilty and sentenced as stated above. 7. Learned counsel for the appellants would make the following submissions. (i) Eye witnesses P.Ws. 6 and7 being inimical with accused persons, their testimonies should have been disbelieved. (ii) The prosecution story is totally mysterious because the source of light to identify the culprits is not established to connect the appellants with murder. (iii) The weapon of offence is not seized. The I.O. P.W.11 has not personally recorded the statements of witnesses like P.Ws.6 and 7 under Section 161 of the Cr.P.C., which he had admitted to have done through another. (iv) The motive is not proved. 8. Learned Addl. Government Advocate Mr. J. Katikia supported the conviction and sentence and contended that learned Addl. Sessions Judge, Bhadrak has taken into consideration of all the aspects to accept the evidence of eye-witnesses P.Ws. 6 and 7. When the murder is committed in a market area creating panic amongst the public including the shopkeepers, the role played by the accused persons in specific cannot be expected to be told particularly when doctor P.W.9 is not cross examined for the best reason known to the defence. When the accused persons remained absconded and only two of them were apprehended much after the occurrence, the non-recovery of weapon of offence cannot be a ground to discard the otherwise proved prosecution case. The informant P.W.4 in the backdrop of inimical relationship and panic situation cannot be said to have suppressed the truth by not disclosing the name of the accused persons in the F.I.R., rather it shows that the F.I.R. was not the outcome of consultation or fabrication. On last lema, the learned Addl. Government Advocate submitted that two accused persons remained absconders for which trial was split up and present appellant-Sudam Das also misused the interim bail granted by this Court for which on coercive measure his presence was procured. Such absconding conduct is proof of their guilty mind. 9. On last lema, the learned Addl. Government Advocate submitted that two accused persons remained absconders for which trial was split up and present appellant-Sudam Das also misused the interim bail granted by this Court for which on coercive measure his presence was procured. Such absconding conduct is proof of their guilty mind. 9. There is no dispute that the deceased Prafulla Kumar Nayak met homicidal death on 06.01.1997 at 6.00 P.M. after receiving multiple incised wounds. Doctor (P.W.9), who conducted postmortem and is not cross examined proves the same. Dr. Santosh Kumar Jena (P.W.8) of Chandabali CHC, which is nearer to the spot, stated to have examined the injured deceased soon after incident and found him dead. The spot was in the market area. Admittedly, there was failure of electricity. P.Ws. 4 and 5 stated about the light of Dibir (lamp). P.W.7 eyewitness stated that generator light was available. P.Ws.6 and 7 have categorically stated that prior to incident they had seen the accused persons with arms standing near the deceased. In this context the evidence of P.Ws. 6 and 7 are material. P.W.6 stated that he saw absconder accused Bain Rout going towards the gate of the veterinary hospital holding a sword and turned towards the shop of one Bhikari Sahu and Sudam by holding a sword was standing on the back of Prafulla Nayak (deceased), while accused persons Dhusa and Dasia were standing in front of Prafulla Nayak. P.W.7 also stated in that way. The accused persons were known to the eyewitnesses. Prior to the incident the witnesses saw the accused persons holding the weapons. Both of them also saw Sudam and Dushasan, the present two appellants giving sword blows repeatedly to the deceased, who rushed towards a shoe stall situated at the opposite side of the road belonging to P.W.5. The screaming sound of the deceased was also heard by the witnesses and public and the public dispersed out of fear. 9.1 A person can identify the person with whom he had prior acquaintance in the evening, when he was not panic stricken. This is ordinary human ability of a normal person. So the identification of the culprits by P.Ws.6 and 7 is not doubtful, so also their presence, because as per the I.O. P.W.6 was examined on that night. The name of P.W.6 is also found in the F.I.R. lodged by P.W.4. This is ordinary human ability of a normal person. So the identification of the culprits by P.Ws.6 and 7 is not doubtful, so also their presence, because as per the I.O. P.W.6 was examined on that night. The name of P.W.6 is also found in the F.I.R. lodged by P.W.4. The accused persons belong to a different village than informant. It is understood that P.W.4 being a relation was panic stricken when he was threatened at the point revolver. P.Ws 6 and 7 were not only known to the deceased but also known to the accused persons. 10. The reaction of P.W.4 (informant), who happens to be the cousin brother of the deceased was natural. He gets corroboration from the I.O. P.W.11 and doctor P.W.8 that injured Prafulla Nayak was immediately taken to Chanabali hospital in a jeep. The I.O. has stated to have come to the spot immediately on getting telephone. We verified the case diary to ascertain such fact. The F.I.R. was also received on the next day in the court as per the endorsement of the learned S.D.J.M., Bhadrak. The omission of naming the culprits to whom the informant had not identified during occurrence cannot be considered as a suppression of facts. On that account P.Ws.6 and 7 are not to be branded as procured witnesses. 10.1 In the decision Shio Shankar Dubey and Others Vs. State of Bihar, 2019 (6) SCC 501 their Lordships have also found that mere fact that one witness had not seen accused fleeing away is not conclusive nor on that basis any inference can be drawn that omitted accused was not involved in the occurrence. Their Lordships have also referred the principle regarding witnesses tainted with the enmity in para-10(16), which is quoted below:- "16. In Dalip Singh v. State of Punjab it has been laid down as under: (AIR p.366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 10.2 In the case at hand, only because P.W.4 had omitted to name the culprits and P.Ws 6 and 7 have close relationship with the deceased, it cannot be said that P.Ws. 6 and 7 are unreliable witnesses. Their presence is proved. Their versions are truthful and both of them are wholly reliable witnesses. 11. P.W.7 has categorically admitted in the cross examination in para-3 that he had prior acquaintance with the four accused persons. He has also stated that accused persons were suspecting that P.W.6 and deceased Prafulla Nayak got hands in the assault of Bhasia Mohanty and prior to this incident Bhasia Mohanty was assaulted. P.W.3 has also stated that he along with the deceased was involved in G.R. Case No. 619 of 1992 for assault, theft and kidnapping from the house of Nilima and Nilima Mohanty was the brother's wife of Bhasia Mohanty. From the above evidence it is clear that accused persons had inimical relationship to take revenge against the deceased Prafulla Nayak. Learned trial court had overlooked this aspect of evidence. In our considered opinion prosecution has proved the above motive successfully. 12. It is fact that accused Sudam was arrested after two months of the incident while accused Dusasan was arrested after ten months. Other two accused persons had also absconded. Much emphasis is laid by learned Addl. Government Advocate on the absconding conduct of the accused persons as proof of guilty. Citation of law in this regard may be seen. In the decision of Sri Sujit Biswas Vs. Other two accused persons had also absconded. Much emphasis is laid by learned Addl. Government Advocate on the absconding conduct of the accused persons as proof of guilty. Citation of law in this regard may be seen. In the decision of Sri Sujit Biswas Vs. State of Assam, 2013 (12) SCC 406 , the Hon'ble Apex Court considered the same in the following words:- "19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused." 13. Learned counsel for appellants submitted that due to defective investigation the appellants were prejudiced. On this score, it is stated that the weapon of offence is not recovered and the statement of eyewitnesses P.Ws 6 and 7, as admitted by I.O., has been recorded by a Constable contrary to Section 161(3) Cr.P.C. 13.1 On first point, it may be seen that the accused persons had absconded for more than three months. The recovery of the weapons could not be given effect. The I.O. immediately approached the spot, shifted the injured to the nearby hospital and registered the F.I.R. within one hour by reducing oral version of P.W.4. He has admitted in the cross examination that he was hurry and it was continued, when a murder is committed in a bazar at evening hour and the public got panicked, ignorable lapses by the police officer are expected. When the eye-witnesses and doctor prove the nature of injuries and culpability of accused persons, the non-recovery of weapon cannot be a deciding factor to disbelieve the substratum of prosecution case. When the eye-witnesses and doctor prove the nature of injuries and culpability of accused persons, the non-recovery of weapon cannot be a deciding factor to disbelieve the substratum of prosecution case. 13.2 The defective investigation is always not fatal and would not lead to total rejection of the prosecution case. In the decision, Rotash Vs. State of Rajsthan, 2006 (12) SCC 64 the Hon'ble Supreme Court have observed as follows:- "31. The investigation was not foolproof but then defective investigation would not be lead to total rejection of the prosecution case. 32. In Visveswaran v. State this Court held: SCC pp. 78-79, para-12 "12. Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that the approach required to be adopted by courts in such cases has to be different. The case are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the back ground of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved." 13.3 On the second point concerning contravention of Sec. 161(3) Cr.P.C., it is true that I.O. has admitted that he got the statement of P.Ws. 6 and 7 recorded under Section 161 of the Cr.P.C. by one B.N. Mohanty, literate constable of Chandabali P.S. But at the same breath he has stated that said constable has only assisted him. 6 and 7 recorded under Section 161 of the Cr.P.C. by one B.N. Mohanty, literate constable of Chandabali P.S. But at the same breath he has stated that said constable has only assisted him. There is no evidence that the constable has recorded the statement of the witnesses independently without the knowledge or in absence of I.O. 13.4 Though on the provisions of law then available, the Hon'ble Supreme Court on a different context akin to the contention raised observed in a decision, Gurbachan Singh Vs. State of Punjab, 1957 AIR(SC) 623 that: "xx xx xx. There is no special rule or direction provided in the Code of Criminal Procedure affording guidance for police officers in recording statements of witnesses and usually what is done is that when a succeeding witness gives practically an identical story as to what a previous witness has stated, it is a matter of common knowledge that the words used by the police officer would be similar or identical." 13.5 In view of the changed law presently governing field, the impact of non-recording of statement personally by I.O., is required to be analyzed. After amendment Act 5 of 2009 and Act 13 of 2013, Section 161 Cr.P.C. reads as follows:- "161. Examination of witnesses by police- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records: (Provided that statement made under this subsection may also be recorded by audio-video electronic means) (Provided further that the statement of a woman against whom an offence under section 354, section 354-A, section 354-B, section 354-C, section 354-D, section376, section 376-A, section 376-B, section 376-C, section 376-D, section 376-E or section 509 of the Indian Penal Code (45 of 1860)is alleged to have been committed or attempted shall be recorded by a woman police officer or any woman officer)." 13.6 It is profitable to refer the relevant provisions under Sec. 172(1) of the Cr.P.C. It reads:- "Sec.172. Diary of proceedings in investigation- (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. ((1-A) The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary. ((1-A) The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary. (1-B) The diary referred to in sub-section (1) shall be a volume and duly paginated.)" 13.7 The above provisions under Sections 161 and 172 Cr.P.C. clearly postulate that the recording of separate and true record of the statement of each such witness can be done by the assistance of others but the same must confirm the requirement of Section 172(1-A) and (1-B) of the Cr.P.C. If that is so, the accused must show prejudice affecting his right to fair trial when Investigating Officer is found to have taken assistance of another to get the statement recorded under section 161(3) of the Cr.P.C. In our considered view, when the Investigating Officer got the statement of a person recorded under section 161(3) of the Cr.P.C. through assistance of another, it is an irregularity and does not affect either the credibility of the witness or right to fair trial of the accused. Failure to comply with Section 161(3) of the Cr.P.C. is an irregularity. And unless there is a prejudice shown, the infringement does not vitiate trial. 14. In the wake of above analysis, the points urged on behalf of the appellants are found no merit. On independent analysis, of the evidence on record, it is found that prosecution has proved motive. Appreciation of the evidence by the learned trial court is in the right perspective Learned Additional Sessions Judge has not committed any error in recording conviction and sentence. We find no reason to interfere therein in the impugned judgment. 15. Appeal stands dismissed. 16. Return the L.C.R. immediately to the lower court.