JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. Heard Sri. Sukhveer Singh, Amicus Curiae, for the appellants and Ms. Meena, learned AGA for the State. 2. This criminal appeal has been filed against the impugned judgment dated 23.3.1996 passed by 3rd Additional Sessions Judge, Kanpur Nagar in ST No. 369 of 1992 arising out of Case Crime No. 16 of 1992 under Sections 302, 323, 506 IPC, Police Station Maharajpur, District Kanpur Nagar, by which the accused-appellants namely Jagat Pal, Jhabboo @ Somnath and Prithvi Pal have been convicted for the offence under Sections 302/34 and 323/34 IPC and have been sentenced to undergo life imprisonment for the offence under Section 302 IPC and three months imprisonment under Section 323 IPC with Rs. 500/- fine each and in default additional imprisonment of one month. 3. Vide order dated 22.11.2019 of this Court, criminal appeal has been abated in respect of appellant no. 3 namely Prithvi Pal on account of his death report. 4. Brief facts of this case is that the informant Putti Lal gave a written report on 9.1.1992 at 13:15 PM in respect of criminal incident dated 9.1.1992 at about 4:00 AM in mid night. Ramdhani, nephew of informant, was sleeping on the tube-well at the time of incident and next day in the morning, for a long time when he did not return, his mother asked the informant to go and see why Ramdhani has not come till now from the tube-well. At about 10:00 AM in the morning when the informant was going to the tube-well, on the way he heard the sound of groaning and crying from the tube-well of Ramlal Kushwaha. He went there and found there Ramlal Kushwaha lying on his cot and was groaning. He had incurred bleeding injuries on his mouth. He asked about it then he told that in the mid night at about 4:00 AM Jagat Pal Singh son of Babu Singh Thakur, Jhabboo @ Somnath son of Ved Prakash and Prithvi Pal son of Munni Lal Pasi of the village were assaulting Ramdhani on his tube-well. Hearing his cry, he challenged and cried out “who is there” and “I am coming.” Hearing his voice all the three accused persons after killing Ramdhani came to him and threatened him that if he told about it to anyone they would kill him. Hearing his cry, he challenged and cried out “who is there” and “I am coming.” Hearing his voice all the three accused persons after killing Ramdhani came to him and threatened him that if he told about it to anyone they would kill him. He said that they have committed a wrong thing by killing Ramdhani whereupon they started beating him by fist and hockey stick. The informant then went to the tube-well of Ramdhani and found that Ramdhani was lying dead below the cot. He told about it in the village and Bihari, Ramesh, Sanwari Lal, Rajkumar and other persons came on the tube-well and at the same time Ramlal s/o Murali, Ram Avatar and Brij Bihari also came and they said that they had also seen the incident. The informant Putti Lal (PW-1) along with Ramlal (PW-2) and Sanwari (PW-3) went to the police station and gave a written report. The offence was registered against the three accused persons namely Jagat Pal, Jhabboo @ Somnath and Prithvi Pal for the offence under Sections 302, 323 and 506 IPC and chik was prepared. The injured Ramlal was sent to hospital and he was medically examined on the injury letter of the police. The police went to the spot and the dead body was taken into possession and sealed. Inquest report was prepared, papers necessary for post-mortem were also prepared and the dead body was handed over to the police personnel to take the same to the District Hospital for post-mortem, where the post-mortem of the dead body was conducted. 5. The Investigating Officer went to the spot and recorded the statement of the witness, prepared spot map and after obtaining the post-mortem report and finding sufficient evidence against the accused persons, submitted charge sheet against them under the aforesaid sections. Charges were framed against the accused persons for the offence under Sections 302/34, 323/34 and 506 IPC. The accused persons denied the charge and claimed trial. Nine witnesses were examined by the prosecution in support of prosecution case. The statements of the accused persons were recorded under Section 313 Cr.P.C. The accused persons stated that they were falsely implicated and false evidence was given against them out of enmity. The accused persons denied the charge and claimed trial. Nine witnesses were examined by the prosecution in support of prosecution case. The statements of the accused persons were recorded under Section 313 Cr.P.C. The accused persons stated that they were falsely implicated and false evidence was given against them out of enmity. Accused Somnath has stated that his mausi (sister of his mother) was killed in which an application was given against witness Sanwari on which direction was given to register the case. But, instead of registering a case against him, he was made a witness and the case was registered against Jagatpal and Prithwipal in which they were acquitted. Accused Prithvi Pal has stated that at the time of incident he was in Pali road and he had no idea about the incident and after attachment he appeared. The accused Jagat Pal Singh had stated that Ramlal and Sanwari Lal have enmity with him and Sanwari Lal had given evidence against him earlier also. They have enmity with him because of party rivalry. The nephew of Ramlal namely Rajendra Singh was killed in which Jagat Pal Singh was made an accused and he was acquitted, this is also a reason for enmity. At the time of incident, he was not in the village and on being informed that he has been involved in the case, he surrendered in the Court. The accused persons have, however, not given any evidence in defence. On the basis of evidence on record and after hearing both the sides, the learned trial court passed the impugned judgment convicting and sentencing the appellants for the offence under section 302/34 and 323/34 IPC. 6. Aggrieved by the impugned judgment, the appellants have filed this appeal challenging the impugned judgment on the ground that the conviction and sentence is against weight of evidence on record and is bad in law. The sentence awarded is too severe and the judgment is liable to be set aside and they are entitled for acquittal. 7. Before proceeding to examine the legality of the impugned judgment, it is necessary to go through the prosecution evidence. PW-1 Putti Lal (informant) has stated that the deceased Ramdhani was his nephew, who used to sleep on the tube-well to look after the same. 7. Before proceeding to examine the legality of the impugned judgment, it is necessary to go through the prosecution evidence. PW-1 Putti Lal (informant) has stated that the deceased Ramdhani was his nephew, who used to sleep on the tube-well to look after the same. About 15-16 months ago Ramdhani as usual went to his tube-well in the evening and on the next day morning for a long time he did not come back. His mother asked him to go to the tube-well and to see why Ramdhani has not come back as yet. The informant at about 10:00 AM in the morning was going to tube-well and when he reached near the tube-well of Ramlal, he heard the voice of groaning and crying. He went there and saw that Ramlal was lying on his cot and was crying with pain. He had incurred bleeding injury on his mouth. On being asked by him, Ramlal said that in the mid night at about 4:00 AM accused Jagat Pal, Jhabboo @ Somnath and Prithvi Pal of the village were assaulting Ramdhani and hearing him crying Ramlal challenged that who is there and he is coming. The accused persons after killing Ramdhani came to him and threatened him that if he told about it to anyone he will be killed. Ramlal said that they had committed a wrong thing by killing Ramdhani, whereupon, all the three accused persons assaulted him by hockey stick and fist. Then, PW-1 went to tube-well of Ramdhani and found him lying dead below his cot and his neck was cut in the left side. PW-1 went to the village and said about the incident to the villagers. Ramesh, Bihari, Rajkumar, Banwari Lal and Ramlal son of Murli and other persons of the village came there. He got a report scribed by Man Singh and after hearing and understanding the same he put his thumb impression on the report and gave it to the police. He also put his thumb impression on the memo of blood stained and plain earth. In the very beginning of the cross-examination, he had stated that he had not seen the incident and he lodged the FIR on the basis of what Ramlal had stated to him. 8. PW-2 Ramlal has stated that the incident took place in January, 1992. He also put his thumb impression on the memo of blood stained and plain earth. In the very beginning of the cross-examination, he had stated that he had not seen the incident and he lodged the FIR on the basis of what Ramlal had stated to him. 8. PW-2 Ramlal has stated that the incident took place in January, 1992. He was sleeping on his tube-well in the night near his tube-well, there is a tube-well of Ramdhani also where Ramdhani was sleeping. In the early morning at 4:00 AM he heard Ramdhani crying that he is being killed whereupon he went to the tube-well of Ramdhani with torch and stick and saw that accused Prithvi Pal and Jagat Pal having an axe in their hand and Somnath having a hockey like stick were cutting Ramdhani. He said that they had done a very wrong thing by killing Ramdhani whereupon the accused persons said that he will be put to the same condition and started beating him and he sustained injuries. After sunrise informant Putti Lal came there to whom he informed about the incident. His son took him to the police station from where he was sent to hospital where he was medically examined and he was admitted in the hospital. 9. PW-3 Sanwari has stated that at 4:00-4:30 AM in the midnight, on 8/9.01.1992 he was going to sell vegetables with his younger brother Brij Bihari Lal and Ram Avtar. They saw that accused Jagat pal, Prithvi Pal and Jhabboo were coming from the side of tube-well of Ramdhani through chak road with Jagat Pal having a tabbal, Prithvi Pal having an axe and Jhabboo having a hockey in their hand. In the light of torch, he saw that their cloths were stained with blood. He came back at about 11:30 AM after selling his vegetables and then he came to know about the incident by his wife. 10. PW-4 Dr. Y.K. Sharma was posted as Orthopaedic Surgeon in the U.H.M. Hospital, Kanpur Nagar on 10.1.1992 when he conducted post-mortem of the dead body of deceased Ramdhani, who was sent by police station Maharajpur through constable Man Singh and Shiv Sharan along-with necessary papers in a sealed conditions. He conducted post-mortem at 11:45 am on 10.1.1992. 10. PW-4 Dr. Y.K. Sharma was posted as Orthopaedic Surgeon in the U.H.M. Hospital, Kanpur Nagar on 10.1.1992 when he conducted post-mortem of the dead body of deceased Ramdhani, who was sent by police station Maharajpur through constable Man Singh and Shiv Sharan along-with necessary papers in a sealed conditions. He conducted post-mortem at 11:45 am on 10.1.1992. The deceased was average built, his mouth and eyes half opened, rigourmortis was present in his body and stomach was greenish with little swelling. Post death staining was found on his back, hip and back of the thigh. On examination, following ante mortem injuries were found on the body of the deceased:- (1) Incised wound 8 c.m. x 2 c.m. x bone deep 1 c.m. below the right ear ending down ward upto lower part of neck. (2) Incised wound 11 c.m. x 5 c.m. on the upper part of left lateral side of the neck to front portion of jaw and second vertebrae of neck. Veins and arteries of neck were found cut. Second vertebrae was also found cut. (3) Incised wound 1 c.m. x ¼ c.m. muscle deep on the right back shoulder in scapular region. (4) Abrasion 8 c.m. x 2 c.m. in the frontal region of left thigh and knee. In the internal examination, membrance was found blank. Both right and left lounge were found pale. Both chambers of heart were empty. Gal-bladder and both the kidneys were found pale. Semi digested food was found in the small intestine, gasses and digested food was found in the large intestine. In the opinion of the doctor the cause of death was due to shock and haemorrhage as a result of anti mortem injuries. The doctor has stated that the injuries found on the body of the deceased were possibly caused in the night at about 4:00 PM on 8.1.1992 and might have been caused by axe. 11. PW-5 Head Constable Krishna Murari has prepared chik and has entry the same in the GD. 12. PW-6 Dr. A.P. Verma had examined the injury of Ramlal on 1:45 PM, who was aged about 72 years who was brought by the home guard Uday Veer Singh of police station Maharajpur. 11. PW-5 Head Constable Krishna Murari has prepared chik and has entry the same in the GD. 12. PW-6 Dr. A.P. Verma had examined the injury of Ramlal on 1:45 PM, who was aged about 72 years who was brought by the home guard Uday Veer Singh of police station Maharajpur. Following injuries were found on his body:- (1) Contused abrasion 9 c.m. x 4 c.m. over the left parietal region just above the outer margin of left eye brow and 7 c.m. above from the left mastool process, abrasion 1.5 c.m. x 05 c.m. reddish. (2) Contusion 5 c.m. x 2 c.m. just below the right eye, bluish red. (3) Contusion 3.5 c.m. x 3 c.m. on right side face over the maxilla bone 0.5 c.m. below the injury no. 2, reddish. (4) Contusion 2.5 c.m. x 1 c.m. over the middle of upper lip 1 c.m. below the nose, bluish. (5) Contusion 2.5 c.m. x 2 c.m. over the nose 1 c.m. below the root of nose. Injury kept under observation. (6) Abrasion 2 c.m. x 1 c.m. left side back 9 c.m. below the lower border of scapula bone. According to doctor, the injured was complaining pain on his shoulder, chest and back but there was no visible injury. All the injuries were simple in nature, injury no. 6 was caused by rubbing on hard surface and the remaining injuries might have been caused by blunt object. Injury no. 5 was kept under observation and x-ray was advised and injury was half day old and it might have been caused on early morning at 4:00 AM on 9.1.1992 by hockey stick and fist. 13. PW-7 S.I. Pramod Kumar has prepared inquest report and other papers and has also proved memo of blood stained and plain earth taken from spot. 14. PW-8 Constable Man Singh has taken the dead body for postmortem and he had stated that because it was night, therefore, on the next day in the morning the papers and the sealed dead body was given to the concerned. 15. PW-9 S.I. Vidya Sagar Tripathi has investigated the offence. He had stated that S.I. P.K. Singh prepared the inquest report. He recorded statement of injured Ramlal, informant Putti Lal, Brij Bihari, Sanwari Lal, Ram Avtar and Ramlal son of Murli and on the identification of the witnesses he prepared site plan. 15. PW-9 S.I. Vidya Sagar Tripathi has investigated the offence. He had stated that S.I. P.K. Singh prepared the inquest report. He recorded statement of injured Ramlal, informant Putti Lal, Brij Bihari, Sanwari Lal, Ram Avtar and Ramlal son of Murli and on the identification of the witnesses he prepared site plan. The statement of Head Constable Krishna Murari was also recorded after recording of other statements and obtaining the post-mortem report, he submitted charge-sheet against the accused persons. 16. It has been submitted by the learned counsel/Amicus Curiae to the accused-appellants that the FIR is grossly delayed for which there is no convincing explanation and the explanation given by prosecution is apparently fabricated. We find that the incident took place on 8/9.1.1992 in the midnight at 4 AM and the report has been lodged at about 1.15 PM in the noon and the police station is situated at the distance of 5 km. Thus, the FIR has been lodged after about a delay of 9 hours. The reason for this delay has been mentioned in the written report itself. Accordingly, when the deceased did not return in the morning, at 10 AM, the informant went to see him and on the way, Ramlal, in his tube well, said to him about the incident. He was injured at that time. Then he went to the tube-well of Ramdhani where he found him dead. He went back to his village and said about the incident to the villagers including Sanwari who has been examined as PW-3. They all went to the tube-well and meanwhile Ramlal S/o Murali, Brijbihari and Ramautar also came and said that they had seen the incident. It is pertinent to mention that none of these three have been produced in evidence. It is commonly known that village people rise early in the morning and go to field for their natural call etc. Therefore, it looks unusual that nobody could know about the incident till the informant reached there in search of the deceased, more particularly when PW-2 was injured and was crying with pain. He is aged about more than 70 years and it is also unnatural that nobody came to search him nor his cry captured the attention of anyone till the informant reached there. He is aged about more than 70 years and it is also unnatural that nobody came to search him nor his cry captured the attention of anyone till the informant reached there. In medical, 6 injuries have been found on his body, five contusion and one abrasion and they are all simple in nature and at least the injuries could not prevent him for next 6 hours to go out and alarm somebody. It was a village and field around and the villagers rise early and leave bed. Therefore, the story that informant could know only when he reached there does not suit to reasoning. It appears probable that the specific mention of 10 AM time in FIR when the informant reached there might have been an attempt to cover the delay. It looks more probable because of the fact that PW-2 has stated that informant reached there at 8 AM. Then, what made him to pass time and when he informed witness Sanwari and villagers, he lodged the FIR. The delay in FIR becomes significant depending upon the trustworthiness and credibility of the fact witnesses. If the witnesses are trustworthy and create confidence in the mind of court, the delay hardly impacts the credibility of prosecution version, otherwise, the delay may become fatal and the whole version may become highly suspicious. 17. It has been also submitted by the learned Amicus Curiae that the fact witnesses examined by the prosecution are not trustworthy and reliable as they have stated during trial contrary to the FIR version and contradictory to their statement recorded by IO under section 161 Cr.P.C. They are not eyewitnesses and have made huge improvement in their on oath statement during trial. FIR has been lodged and the whole prosecution has proceeded on the basis of what PW-2 said and PW-3 who is his son have inimical relation with the accused persons and PW-3 had also given statement against them in another criminal case. 18. From the reading of FIR, it is clear that whatever Ramlal said to the informant, on that basis FIR was lodged and the informant himself did not see the incident. FIR does not disclose that Ramlal said that he saw the accused persons assaulting the deceased. He heard the cry of deceased and he only said who is there and said that he is coming. FIR does not disclose that Ramlal said that he saw the accused persons assaulting the deceased. He heard the cry of deceased and he only said who is there and said that he is coming. It has been further provided in the FIR that on his saying so, the accused persons came to his tube-well and threatened and assaulted him by fist and hockey. PW-1 Puttilal informant has narrated same thing in his examination-in-chief. It goes to establish that the informant is not eyewitness and he lodged the FIR on the basis of what was said to him by Ramlal. During cross-examination, he has admitted this fact that he did not see the incident and he lodged FIR on the basis of what Ramlal told him. 19. The question is what will be impact if the testimony of fact witnesses is not in consonance with the FIR version and there is apparent improvement/contradiction as compared to the statement under section 161 Cr.P.C. The law in respect of the statement given under 161 Cr.P.C. and improvement made therein by the witness during trial has been discussed by the Supreme Court in several decisions. In State of Rajasthan vs. Smt. Kalki, AIR 1981 SC 1390 , while dealing with this issue, this Court observed as under: “In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.” 20. The above observation goes to show that the credibility of witnesses is not shattered on account of normal discrepancy. But, if the same is not normal, it will certainly impact the credibility. In fact, to assess what would be normal discrepancy and what would impact the credibility, there cannot be any hard and fast formula and it depends upon so many factors. But, if the same is not normal, it will certainly impact the credibility. In fact, to assess what would be normal discrepancy and what would impact the credibility, there cannot be any hard and fast formula and it depends upon so many factors. Thus, in Alamgir vs. State of NCT Delhi, (2003) 1 SCC 21 , it has been observed that if a relevant fact is not mentioned in the statement of the witness recorded under section 161 Cr.P.C. but the same has been stated by the witness before the court as witness, then that would not be a ground for rejecting the evidence of the witness if his evidence is otherwise credit worthy and acceptable. Omission on the part of the police officer would not take away nature and character of the evidence. Alamgir (supra) is in respect of a relevant fact not mentioned in the statement under section 161 or any omission committed by IO and where the statement made during trial by the witness is found to be credit worthy. It implies that when the testimony is not credit worthy or the witness has changed substantially the very nature of allegation, the same would not remain normal and would impact the credibility. In Rudrappa Ramappa Jainpur vs. State of Karnataka, (2004) 7 SCC 422 , the Court finding that the witnesses made improvement and introduced new facts during trial which was not stated to the IO during investigation, remarked that the court below was justified in according acquittal to some of the accused persons. In Bihari Nath Goswami vs. Shiv Kumar Singh, (2004) 9 SCC 186 , the Court examined the issue and held: “Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.” 21. It has been held in Syed Ibrahim vs. State of A.P. AIR 2006 SC 2908 and Arumugam vs. State, AIR 2009 SC 331 that the courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. It has been held in Syed Ibrahim vs. State of A.P. AIR 2006 SC 2908 and Arumugam vs. State, AIR 2009 SC 331 that the courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. It has been clearly laid down in State Represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 440 that, in case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C. has not disclosed certain facts but meets the prosecution case first time before the court during trial, such version lacks credence and is liable to be discarded. 22. In State of Rajasthan vs. Rajendra Singh, (2009) 11 SCC 106 , it has been held that where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Similarly, in State Represented by Inspector of Police vs. Sarvanan, AIR 2009 SC 152 , it has been remarked that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. 23. We also find that the Supreme Court has remarked in Mahendra Prtap Singh vs. State of U.P. (2009) 11 SCC 334 that, as compared to the statement under section 161 Cr.P.C. where the discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may become a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. 24. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. 24. In Sunil Kumar Shambhu Dayal Gupta vs. State of Maharashtra, 2011 (72) ACC 699 (SC), the Court noted on record that there had been a lot of improvements and contradictions in his statements. The witness deposed for the first time in the court during the trial, that when he went to examine the deceased, she was found in an un-kept room/store room and that he was introduced to the deceased as a Psychiatrist and that the deceased had asked him whether he treated his wife in the same way as she had been treated by her husband. None of this was mentioned in his statement recorded by the police. Nor it had been recorded therein that the deceased had told him that she was harassed by the appellants and her ornaments were taken away/worn by her mother in law. More so, he had not stated in his police statement that the deceased was merely mentally disturbed and not suffering from a gross psychological problem. Nor had he stated therein that the deceased had told him that she was not having any faith in any of her family members and she was deprived of their love, affection and sympathy. It has been also noted that the witness did not state in his statement before the police that when he went to see the appellants, they had asked him whether he had brought gold ornaments or had come empty handed or that he was told that the deceased would not be allowed to live there and they would make her condition even more miserable. Such an improvement was made while deposing in court and no explanation could be furnished by him as to why such vital facts were not stated by him at the time of recording his statement under section 161 Cr.P.C. Holding that such statements should be discarded being major contradictions and improvements, the Court laid down: “Such contradictions in his statements cannot be held to be mere explanations or elaborations of his version, but are tantamount to material contradictions or vital omissions. The Rules of appreciation of evidence requires that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. In such a factsituation, it is not safe to rely on his testimony for the simple reason that he had made a lot of improvements/embellishments while deposing in court and vital contradictions exist with his earlier recorded statement. Thus, no reliance can be placed on his depositions to hold that appellants had ill-treated the deceased or that appellant No. 3 had taken away/worn her ornaments or that she had been deprived of their love and affection or that she was not suffering from epilepsy etc.” 25. The Supreme Court also found that the prosecution witnesses who were family members of the deceased, stated new facts which were not earlier mentioned either while lodging the FIR or in their statements recorded under section 161 and such allegations had been made for the first time while making statements before the court during trial. There were material contradictions and improvements, which were not mere elaborations of their statements already made. Therefore, the Court held: “Thus, their statements in regard to those allegations were liable to be discarded. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.” 26. In Rohtash vs. State of Haryana, (2012) 6 SCC 589 , there had been major improvements/embellishments in the prosecution case and demand of Rs. 10,000/- by the appellant does not find mention in the statements under section 161 Cr.P.C. the same was held to be major improvement which effected the prosecution version adversely. In Tomaso Bruno vs. State of Uttar Pradesh, (2015) 7 SCC 178 , the prosecution tried to establish the case against the accused by making improvements at various stages. 10,000/- by the appellant does not find mention in the statements under section 161 Cr.P.C. the same was held to be major improvement which effected the prosecution version adversely. In Tomaso Bruno vs. State of Uttar Pradesh, (2015) 7 SCC 178 , the prosecution tried to establish the case against the accused by making improvements at various stages. The version of PW-3 that he saw both the accused hugging, kissing and cuddling each other and that Francesco Montis was sitting on the other side of the table appearing depressed was not stated to the investigating officer when he recorded his statement under section 161 Cr.P.C. Likewise, version of the witness that on the fateful night, the second accused asked him 'not to disturb till tomorrow morning' was also not mentioned in his statement recorded by the investigating officer under section 161 Cr.P.C. The Court held: “If the PWs. had failed to mention in their statements u/s 161 Cr.P.C. about the involvement of an accused, their subsequent statement before court during trial regarding involvement of that particular accused cannot be relied upon. Prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during investigation. The evidence of that witness regarding the said improved fact is of no significance.” 27. In Rambraksh vs. State of Chhatisgarh, AIR 2016 SC 2381 , PW-3 Dasmatiya Bai in her complaint as well as her statement before the police has not told that she witnessed the occurrence during which both the accused assaulted her husband with lathi and Danda. Only in her testimony before the Court she claimed to have witnessed the occurrence. Pointing out that the High Court has rightly ignored the improved part of her testimony and placed no reliance on it, the Supreme Court laid down that improvement made by witness in his statement made in the Court during trial than what was made to the IO during investigation under section 161 cannot be relied upon. 28. On the basis of above discussion, we are of the view that the improvement made during trial by the witness which is just to eloberate and explain the prosecution version and does not materially alter the version is normal as it may take place because of lapse of time, nervousness and the ability of the witness to obsorve, memorize and reproduce. If the witness is trustworthy and credit worthy, the same becomes insignificant. But, where the witness has changed his version and has narrated a new set of facts which neither finds mention in FIR nor in his statement recorded by IO under section 161 Cr.P.C. and which changes the nature and character of his evidence, the evidence becomes significantly contradictory and such improvement shatters his credibility as witness. It amounts to material contradiction and improvement and such evidence is not acceptable and should be discarded. 29. In the light of above, the evidence of PW-2 Ramlal is required to be examined. There, he has given a distinct version from what has been stated in FIR and under the statement under section 161 Cr.P.C. by saying that on hearing the sound of Ramdhani, he rushed and reached to the tube well of deceased with his torch and bamboo stick and saw the accused persons. Accused Prithwipal and Jagatpal with axe in their hands and Somnath with a hockey were assaulting the deceased and cutting him. On being challenged by Ramlal, accused persons started beating him by hockey, fist and shoes. In the cross-examination, he has stated that after beating him, the accused persons dragged him to his tube well, kept him there and went away. His clothes were torn and there was dragging mark on the surface. We find that no such mark has been found by IO. The doctor who examined the witness has found 6 injuries and he has accepted that two of them might be old and 5 injuries may result by falling on hard surface from face side. The medical report does not disclose mark of more than one such injuries which may have occurred to the injured on account of dragging on surface. There is only one abrasion which renders the allegation of dragging to a distance of 200 yards improbable. To cover this, PW-2 has made improvement in his statement during trial by saying that the accused persons picked him up from his shoulders and leg and brought him to his tube-well. Moreover, no such statement has been given to IO. On the contrary, he has stated to the IO that on hearing noise, the moment he reached to field, accused persons were returning after causing death of deceased. He has also not stated to the IO that he was beaten by shoes also. Moreover, no such statement has been given to IO. On the contrary, he has stated to the IO that on hearing noise, the moment he reached to field, accused persons were returning after causing death of deceased. He has also not stated to the IO that he was beaten by shoes also. In fact, he has admitted that he gave such statement for the first time in the court. During cross-examination, he has further stated that at the time of hearing sound of “bachao bachao” he was doing morning prayer. The witness has stated that at the time of incident, there was no light in the hut of deceased. The condition of the witness is that he cannot see without goggles as demonstrated in the court. No torch was given by him to the IO nor the same has been produced in evidence. He is aged about 72 years at the time of incident. It was month of January and naturally, it must have been cold and foggy season. For an old person like him, it is not natural that he would rush and reach on the place of occurrence from a distance of more than two hundred yards. Had this witness reached on spot and personally seen the criminal incident, there was no reason why he did not tell the same to the informant and had he told the same to the informant, there is no reason for the informant not to bring this fact in the FIR. As such, we find discrepancy/contradiction/ deliberate and substantial improvement in the statement of the witness which creates doubt with regards to his credibility. We are of the view that PW-2 is not reliable and trustworthy and his testimony being not reliable is liable to be discarded. 30. Coming to the statement of PW-3 Sanwari who happens to be son of PW-2 and his name also finds mention in the FIR. He has clearly stated that he did not see the murder of Ramdhani. He has stated a circumstance only. He has stated that on 8/9.1.1992 in the early morning at about 4/4.30 AM when he was going to sell vegetables, he saw the accused persons coming from the side of the tube well of deceased Ramdhani, accused Jagatpal carrying tabbal, accused Prithwipal with axe and Somnath carrying a hockey and in the torch light, he saw blood stains on their clothes. The statement aforesaid as stated by PW-3 does not find mention in his statement under section 161 Cr.P.C. recorded by IO and when confronted, the witness has stated that if the IO has not written so, he might have been in collusion with the accused person. He has stated that when he came back from Kanpur at about 11.30 AM, he knew about the incident from his wife. He has been also confronted with his statement given to IO that when he reached near the tube-well of deceased, they heard Ramdhani crying and they saw that the accused persons were assaulting him. He has denied to this statement. Similarly, he has been also confronted with his statement given to IO that he and Ramlal S/o Murali together took vegetables and were going to Kanpur for selling the same but to this statement again, the witness has denied. Meaning thereby, this witness has not only deposed additional thing what is in contradiction of what was stated to the IO but also he has denied to what he had stated to IO. Clearly, the witness has made substantial improvement and cannot be relied. 31. It is important to note that PW-9 IO has stated that the informant had stated that what Ramlal said to him on that basis he lodged report. The IO has stated that witness Ramlal did not state to him that he saw the accused persons who were cutting the deceased by axe, nor he said that accused persons assaulted him by shoes, nor he said that he was having torch and in the light of torch he witnessed the incident. The IO has said that Ramlal was not an eyewitness of the incident. Similarly, he has stated that PW-3 Sanwari did not state to him that he saw the accused persons on the way, nor stated that the clothes of accused persons were blood stained nor he stated that he was having torch and in the light of torch he saw the accused persons. The correctness of what has been stated by the IO can be supported by one more circumstance. PW-1 has stated that he told PW-3 Sanwari about the incident in the village. The correctness of what has been stated by the IO can be supported by one more circumstance. PW-1 has stated that he told PW-3 Sanwari about the incident in the village. Sanwari came back from Kanpur at 11.30 AM and had he seen the accused persons coming from the side of tube-well, as he has stated, he must have immediately said about it to the informant and in that case this fact must have been mentioned in the FIR. If he did not inform the informant about this relevant fact, it must give rise to the inference that whatever he stated before the court was absolutely afterthought. Now what emerges from the statement is that no witness saw the incident and it appears correct as in the month of January, the climate remains foggy and very cold and at 4 AM in the morning, unless there is specific reason to be out, there is no possibility of anyone seeing the incident and the same is very much evident from the FIR itself. 32. It is also pertinent to mention that PW-1 has stated that he missed his torch at the place of occurrence and someone out of many persons present might have picked the torch. This is again an attempt to cover as after 10 AM, informant went there and found Ramdhani dead and he or IO did not find the torch. In his statement under section 161 Cr.P.C. he has not stated it to IO. PW-3 has also not handed over any torch to the IO. There is no recovery of any weapon or blood stained clothes of the accused persons. Although, all the three accused persons were in jail by 18.1.1992, no attempt was made to take them on police remand nor any attempt was made to discover the blood stained clothes. Thus, the prosecution has not been able to show and prove the source of light at the time of incident in which the two fact witnesses saw the accused persons, nor has been able to discover any incriminatory article such as weapons and blood stained clothes. 33. In the FIR, there is no mention of weapon used in the incident. In the on oath statement of the informant also, there is no mention of any axe etc and PW-2 said to him that he was beaten by accused by hockey. 33. In the FIR, there is no mention of weapon used in the incident. In the on oath statement of the informant also, there is no mention of any axe etc and PW-2 said to him that he was beaten by accused by hockey. PW-2 has stated that accused Prithvi Pal and Jagat Pal were having tabbal or axe in their hand and Somnath was having a hockey like stick. Two accused were cutting the deceased by axe and Somnath was assaulting by hockey. But no injury has been found on the body of deceased which could has been caused by hockey or blunt object. Only incise wounds have been found on the body of deceased. Hence, the presence and involvement of accused Somnath is also doubtful. 34. It has been also pointed out that PW-1 has stated that there was no enmity between accused persons and deceased. Some bitterness, may be out of rivalry or jealous or the case against accused in which PW-2 was a witness, was certainly existing between the accused and Ramlal and Sanwari. It cannot be a coincidence that these two have been the witnesses in this case. Therefore, this possibility cannot be ruled out that because of the existing bitterness, they have given evidence in this case. The informant has not been able to allege any motive or reason available to the accused persons for causing death of deceased. 35. On the basis of above discussion, we find that the witnesses who were examined were not trustworthy and reliable; there is delay of 9 hours in lodging and convincing and reasonable explanation has not been furnished; there is substantial improvement in the statement of witnesses; no reason or motive has been alleged nor there was any enmity between the deceased and accused persons leading to such criminal act; seemingly, two star witnesses of fact PW-2 and PW-3, being father and son and having bitter relations with accused side, might have been prompted to give evidence and there appears to be enough discrepancy and lapse in the investigation and prosecution version. The learned trial court has ignored the infirmities and shortcomings in the evidence and prosecution case. The impugned judgment is perverse, illegal and not sustainable under law and is liable to be set aside. 36. The criminal appeal is allowed. The impugned judgment is set aside. The learned trial court has ignored the infirmities and shortcomings in the evidence and prosecution case. The impugned judgment is perverse, illegal and not sustainable under law and is liable to be set aside. 36. The criminal appeal is allowed. The impugned judgment is set aside. The surviving appellants Jagat Pal and Jhaboo @ Somnath are acquitted from the charge under section 302/34 and 323/34 IPC. If they are in jail, they shall be released forthwith and if on bail, they need not to surrender. 37. The learned Counsel/Amicus Curaie Sri. Sukhveer Singh shall be paid Rs. Ten Thousands only for the assistance and legal service provided by him in conducting this appeal for the accused-appellants. 38. Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance.