JUDGMENT : Sujit Narayan Prasad, J. Since both the appeals arise out of the common prosecution case, as such they are listed together and are being disposed of by this common order. Criminal Appeal (DB) No. 33 of 1994 (R) 2. The instant appeal has been filed under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction dated 7th February, 1994 and order of sentence dated 8th February, 1994 passed by learned 3rd Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 440 of 1990, by which the appellants were found guilty of the offence punishable under Sections 302/34 and 201 of the Penal Code, 1860 and were convicted for the offence punishable under Sections 302/34 and 201 of the Penal Code, 1860 and sentenced to undergo life imprisonment for the offence punishable under Section 302/34 of the Penal Code, 1860 and R.I. of seven years for the offence punishable under Section 201 of the Penal Code, 1860. Both the sentences were directed to be run concurrently. 3. As per fardbeyan of the informant, the prosecution case in brief, is that: In the night of 09.05.1988 (Monday) the informant-Tito Orain (P.W. 1) was talking with her husband-Sahdeo Pahan (deceased) in her Dhaba (a portion of the house) of their house and due to summer, the door of the house was kept open. A Dhibari (a small kerosene lamp) was lit inside the house. At about 11.00 P.M. villagers - Birsa Oraon, Bishu Oraon, Guddu Oraon, Bishu Lakra, Hallu Oraon, Somra Oraon, Bhola Oraon, Bigja Oraon and Ganga Oraon along with 5 to 6 other persons came there and entered to their Dhaba. The informant identified them in the light of Dhibari litting in Dhaba. The aforesaid persons after entering their house caught hold of hands of her husband and pressing his neck dragged him out of the Dhaba. She followed the accused persons and found that Bishu Oraon, Birsa Oraon and Chandan Bishu lifted her husband to back of the house of Hallu Oraon and murdered him there; and both brothers-Guddu Oraon and Bishu Oraon pushed the informant in her house and confined her in the house by shutting the door from outside by means of bolt. She followed the accused persons and found that Bishu Oraon, Birsa Oraon and Chandan Bishu lifted her husband to back of the house of Hallu Oraon and murdered him there; and both brothers-Guddu Oraon and Bishu Oraon pushed the informant in her house and confined her in the house by shutting the door from outside by means of bolt. It has further been stated by the informant that reason for murder of her husband is a long standing land dispute regarding Pahnai land between her husband and the accused persons and because of which the accused persons murdered her husband. She has further stated that she raised alarm but none turned up for her rescue as villagers had gone to Silgai Manda Mela. In the morning at about 5.00 A.M. when her Gotani (sister-in-law), namely, Batia Orain (P.W.2) opened the door then she narrated the incidence occurred in the night to her Gotani-Batia Orain. Thereafter, she along with her Gotani-Batia Orain, Devar (Brother-in-law) Domba Oraon, Baharat Oraon etc. started searching her husband and found that accused persons after murdering her husband concealed the dead body in Bhawani Tand Paien. The informant has further stated that other villagers have also seen the occurrence who will tell about the occurrence and she has come to inform the police. The informant has further stated that at present the dead body of her husband is lying in that place. 4. On the basis of fardbeyan of informant-Tito Orain (P.W. 1), recorded by Officer-Charge of Chanho Police Station, a formal F.I.R. being Chanho P.S. Case No. 30 of 1988 was registered against the accused persons under Sections 302/201/34 of the Penal Code, 1860. 5. After investigation, the police submitted the charge-sheet under Sections 302/201/34 of the Penal Code, 1860 against six accused persons [appellants in Cr. Appeal D.B. No. 33 of 1994(R)] while two other accused persons namely, Birsa Oraon (appellant in Cr. Appeal No. 406 of 2016] and Bishu Oraon were declared absconder. 6. Accordingly cognizance of the offence was taken by learned C.J.M., Ranchi and case of six accused persons [appellants in Cr. Appeal D.B. No. 33 of 1994(R)] while two other accused persons namely, Birsa Oraon (appellant in Cr. Appeal No. 406 of 2016] and Bishu Oraon were declared absconder. 6. Accordingly cognizance of the offence was taken by learned C.J.M., Ranchi and case of six accused persons [appellants in Cr. Appeal D.B. No. 33 of 1994(R)] was committed to the Court of Sessions, where it was registered as Sessions Trial No. 440 of 1990, wherefrom the case was received in the Court of learned 3rd Additional Judicial Commissioner, Ranchi for trial and disposal, wherein the charges have been framed under Sections 302/201/34 of the Penal Code, 1860 and subsequently, the accused persons were convicted vide judgment of conviction dated 7th February, 1994 and order of sentenced dated 8th February, 1994. 7. The prosecution, in order to establish the charge, in course of trial, has examined altogether nine witnesses, namely, P.W. 1-Tito Orain (the informant); P.W. 2-Batia Orain; P.W. 3-Karma Oraon; P.W. 4-Domba Oraon; P.W. 5-Gahrail Oraon; P.W. 6-Bahrat Oraon; P.W. 7-Hallu Oraon; P.W. 8-Batia Orain and P.W. 9-Dharamdas Minz. 8. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons, and found the charges levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants had been found guilty and convicted for the offence punishable under Sections 302/34 and 201 of the Penal Code, 1860 and sentenced to undergo life imprisonment for the offence punishable under Section 302/34 of the Penal Code, 1860 and R.I. of seven years for the offence punishable under Section 201 of the Penal Code, 1860. Both the sentences were directed to be run concurrently, which is subject matter of instant appeal. 9. Mr. A.S. Dayal, learned counsel for the appellants has assailed the impugned judgment of conviction and order of sentence on the following grounds: (I). That the sole testimony, basis upon which the judgment of conviction and order of sentence has been passed, is of the informant-P.W. 1 (Tito Orain), in whose testimony so many discrepancies have been found regarding time and place of occurrence; also the culpability of the appellants and their identification but the learned trial Court without taking into consideration aforesaid discrepancies has passed the judgment of conviction and order of sentence, and as such the same is not sustainable in the eyes of law. (II). (II). That though Hallu Oraon is a named accused in F.I.R. but, subsequently charge-sheet having not been submitted against him, he has been made prosecution witness and has been examined as prosecution witness-P.W. 7. The learned trial Court taking together his testimony with the testimony of informant (P.W. 1), the sole eye witness, has passed the judgment of conviction and order of sentence which cannot be said to be justifiable reason being that when P.W. 7 has been made an accused by no stretch of imagination he can be treated to be an trustworthy witness but on the basis of his testimony shown to have been corroborative piece of evidence with the testimony of P.W. 1 impugned judgment has been passed, therefore, on this ground also, the impugned judgment of conviction and order of sentence is not sustainable in the eye of law. (III). The doctor, who has conducted post-mortem, has not been examined, as such reference of injuries, which have been made by P.W. 1 (informant) could not be corroborated but even without considering that aspect of the matter, the judgment of conviction and order of sentence has been passed, which cannot be said to be sustainable in the eyes of law. (IV). The Investigating Officer has also not been examined and as such the place of occurrence could not be identified, which is vital for proving charge against the appellants, and as such on this ground also the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. 10. Mr. Dayal, learned counsel for the appellants, in the backdrop of aforesaid grounds, has submitted that the judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt. 11. Per Contra, Ms. 10. Mr. Dayal, learned counsel for the appellants, in the backdrop of aforesaid grounds, has submitted that the judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt. 11. Per Contra, Ms. Nehala Sharmin, learned Additional Public Prosecutor appearing on behalf of State has defended the impugned judgment of conviction and order of sentence taking the ground that the impugned judgment has been passed based upon the testimony of eye witness who has seen the occurrence as would be evident from the testimony of P.W. 1 and as such it is incorrect to submit on the part of appellants to take the ground that the conviction is not based upon the testimony of eye witness and further the discrepancies, which has been pointed out in the testimony of eye witness is not sufficient enough to discard her testimony, therefore, the judgment of conviction and order of sentence suffers from no error and requires no interference by this Court. 12. Learned counsel for the State has further submitted that merely because the Investigating Officer and the doctor who has conducted post mortem have not been examined, the evidence of eye witness-P.W. 1 cannot be discarded and if by taking into consideration the testimony of P.W. 1 judgment of conviction and order of sentence has been passed, the same cannot be said to suffer from an error. 13. We have heard learned counsel for the parties, perused the documents and the testimony of witnesses as also the finding recorded by learned trial Court in the impugned order. 14. This Court, before proceeding to examine the legality and propriety of the impugned judgment of conviction and order of sentence, deems it fit and proper to refer certain judicial pronouncements about proving of charge in order to take away the liberty of a person and the underlying principle is that it is the duty of the prosecution to prove the charge beyond all reasonable doubt, as has been held by Hon'ble Supreme Court in the judgment rendered in Rang Bahadur Singh v. State of U.P. [ (2000) 3 SCC 454 ] at paragraph 22, which reads as under: “22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.” (Emphasis supplied) 15. It is, thus, evident that while convicting a person for commission of alleged offence, it is the bounden duty of the prosecution to prove the charge beyond all shadow of doubt and conviction cannot be said to be based upon the principle of preponderance of probability or of surmises and conjectures. 16. It is also well settled position of law that in a case of proving the culpability of crime in a situation of circumstantial evidence chain of evidence is required to be complete, as has been held by Hon'ble Apex Court in the judgment rendered in Vijay Kumar v. State of Rajasthan [ (2014) 3 SCC 412 ], wherein at paragraph 9 it has been held as under: “9. The prosecution case is that the appellants/A-1 Atma Ram and A-3 Vijay Kumar conspired and murdered Keshar Bai and stole the ornaments/articles possessed by her. Nobody has witnessed the occurrence and the case rests on circumstantial evidence. In a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. [Emphasis supplied] 17. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. [Emphasis supplied] 17. Further, it is settled position of law that non-examination of Investigating Officer though always does not fatal to the prosecution and the same depends upon the facts of the case, as has been held by Hon'ble Apex Court in the judgment rendered in Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 wherein at paragraph 18 it has been held as under: “18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar, this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar, it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, Rattanlal v. State of J&K and Ravishwar Manjhi v. State of Jharkhand, has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution. 18. It is, thus, evident that the question of non-examination of Investigating Officer as to whether non-examination of Investigating Officer will vitiate the trial or not certainly depend upon the facts and circumstances of the given case and the prosecution case will not invalidate if the Investigating Officer is not examined in a case where there is eye-witness who has witnessed the occurrence and having been corroborated by the medical evidence and other testimony. Even the sole testimony of eye witness can be basis of conviction but that must depend upon the reliability of such testimony. 19. This Court, on the basis of aforesaid settled position of law vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of impugned judgment of conviction and order of sentence by formulating following questions to be answered by this Court: (I). Whether the prosecution has been able to prove the charge beyond all shadow of doubt? (II). Whether the prosecution has been able to prove the charges leveled against the appellants even on the basis of circumstantial evidence as the fact of the given case is? (III). Whether due to non-examination of Investigating Officer coupled with non-examination of doctor, the prosecution of the given facts of the case can be said to be invalidated? (IV). Whether P.W. 7, who was named accused in the F.I.R. but was not charge-sheeted and has been made prosecution witness, can be considered to be a competent witness to prove the case of prosecution beyond all reasonable doubt? (V). (IV). Whether P.W. 7, who was named accused in the F.I.R. but was not charge-sheeted and has been made prosecution witness, can be considered to be a competent witness to prove the case of prosecution beyond all reasonable doubt? (V). Whether the discrepancies, which is alleged to have been found in the testimony of eye-witness is sufficient to disbelieve the prosecution version of eye witness (P.W. 1) in the facts of given case? 20. Since all the issues are inter-linked with each other and as such they are being taken together by taking into consideration the facts of the given case including the testimony of P.W. 1. 21. This Court, in order to answer the issues framed by this Court, first deems it fit and proper to go through the testimony of witnesses examined by prosecution: 22. Tito Orain, who is the wife of the deceased and informant of the case, has been examined as P.W. 1, who has deposed in his examination-in-chief that at about 8.00 to 10.00 p.m. in the night she was in her house along with her husband in the light of Dhibri. In the meantime, Ganga Oraon, Bigna Oraon, Birsa, Chandla, Bishu, Samara, Bhola and Guru came there and dragged out her husband. She also followed them. The accused persons killed her husband and thrown away. When she came to house someone locked her door of the house from outside. 23. She has deposed at paragraph 3 that at that villagers were sleeping and Dilgai Mela was celebrating at that time. 24. At paragraph 4, she has deposed that next day morning, her Gotni-Batia opened the lock of the door. Her Gotani lives in separate house. She further deposed that she narrated all the things to her Gotani. Thereafter, she along with Domba (P.W. 4) and Gabe Budha went to search the dead body. On search being made by them, the dead body was found in Bhawani Tand. 25. At paragraph 5, she has stated that thereafter she went to police station, where her fardbeyan was recorded by Daroga (Sub-Inspector of Police/Officer-in-charge). 26. In her cross-examination, at paragraph 7, she has deposed that on the date of occurrence she was in her house along with her husband. She has further stated that just adjacent to her house, house of Domba, Karma and Goinda are there. 27. 26. In her cross-examination, at paragraph 7, she has deposed that on the date of occurrence she was in her house along with her husband. She has further stated that just adjacent to her house, house of Domba, Karma and Goinda are there. 27. At paragraph 9, she has stated that all the accused persons started assaulting her husband immediately after coming to house. The body of her husband soaked with blood. Thereafter, all the accused persons dragged him out. When the accused persons dragged her husband, he was half dead. 28. At paragraph 10, she has stated that when she was following her husband, accused persons dragged the informant to her house and closed her in it. She has further stated that when her husband was being dragged by the accused persons, she raised alarm whereupon 10-20 persons of the village assembled there in the night. 29. At paragraph 11, she has stated that on the day of occurrence, it was dark night and cloud was also there and there was light in the outside. However, she has deposed that she recognized the persons outside her house. She has also stated that she recognized Gumbe Budha and Domba. 30. At paragraph 13, she has stated that she know Hallu Oraon and his culpability has also been recognized in the F.I.R. 31. She has denied saying that it is incorrect that Hallu Oraon was not along with accused persons and he is witness to the occurrence. 32. She has stated at paragraph 16 that the accused persons had killed her husband behind the house of Hallu. 33. P.W. 2-Batiya Orain, P.W. 3-Karma Oraon and P.W. 4-Domba Oraon are the hearsay witnesses, who have disclosed about the occurrence, what has been stated by the informant to them on the following day of occurrence. 34. P.W. 5-Gahrail Oraon has been declared tender witness. 35. P.W. 6-Bahrat Oraon is the witness to the inquest report and seizure list of blood-stained earth. He has identified his signature on the inquest report prepared by the Investigating Officer, which has been marked as Exhibit 1. He has also identified the signature of witness Dharmdas Minz on this, which has been marked as Exhibit 1/1. He has further identified his signature on the seizure-list of blood-stained earth, which has been marked as Exhibit 1/2. He has identified his signature on the inquest report prepared by the Investigating Officer, which has been marked as Exhibit 1. He has also identified the signature of witness Dharmdas Minz on this, which has been marked as Exhibit 1/1. He has further identified his signature on the seizure-list of blood-stained earth, which has been marked as Exhibit 1/2. He had further identified the signature of Dharmadas Minj, which has been marked as Exhibit 1/3. 36. P.W. 7-Hallu Oraon, in his examination-in-chief has stated that in the night of 09.05.1988 at about 11.00 p.m. he was in his house. He heard some unusual sound and came out from his house with a torch in his hand. In the light of torch, he recognized Birsa, Bishu Oraon and Budhu Oraon, who were beating to Sahdeo Pahan. On protest being made by him, the accused persons threatened him whereupon due to fear he went to his house. In the morning it was known to him that the dead body of Sahdeo Oraon has been thrown in Bhawani Tand. 37. In his cross-examination at paragraph 7 he has stated that when he came out of his house, besides Birsa, Bishu and Budhu no one there to beat the deceased. 38. Though doctor has not been examined in this case, but Post-mortem report has been brought on record, from which, it transpires that following ante mortem injuries were found on the dead body of the deceased: (A). abrasions:— (i)1" x ½"and ½ x ¼"over right knee cap. (ii). 1 ½" x 1"over the inner aspect of left knee with associated bruise measuring 3"× 1”. (iii). 1/2"× 1/3"over the back of right elbow. (iv). multiple abrasions measuring ¼"× 1/5"to 2"× 1"scattered between naval and nipples 23 in numbers (v) 2" x 1" x ½" x ¼" x 1" x ½"and ¼" x ¼"on front of neck. (vi). 2 ½" x 1 ½"in front of right chin and tip. (vii). 1" x ½"over right Cheek (viii). 1" x 3/4"blow left eye. (ix). 1 ½" x ¼"left upper eye brow (x) 1/2" x ½"in front of right ear. (xi). 1 ¼" x ½"behind right ear. (xii). 2" x 1 ½”, 2" x ½’, 3" x ¼”, 1’ x 1/2?, 1/2" x ½"and ¼ on right. (xiii). 1 ½" x 1/4" x 1 ½”, 2" x 1 x 1/5" back of abdomen of left. (xiv). (xi). 1 ¼" x ½"behind right ear. (xii). 2" x 1 ½”, 2" x ½’, 3" x ¼”, 1’ x 1/2?, 1/2" x ½"and ¼ on right. (xiii). 1 ½" x 1/4" x 1 ½”, 2" x 1 x 1/5" back of abdomen of left. (xiv). 1 ¼"× 1"three in numbers in upper part left scapular area. (xv). 1" x ½" x 1 ¼" x ½”, ¾ x 1/2" over top of left shoulder. (xvi). 1 ½" x 1"over the right ear. On dissection scalp was opened, clot was found in the front and in the lower half fracture measuring 1/5” x 1” was found. There was contusion of chest wall in the front and lower half. Fracture of left 5” to 10” ribs and right 4” to 10” ribs were also seen with laceration of both lungs which were collapsed. Blood and blood clot were found in cavities. Viscera were pale, stomach contained above 150 C.C. of pasty food, heart was empty and the urinary bladder was full, skull intact, brain - NAD. 39. The doctor has opined that the death resulted from combined effect of shock and asphyxia due to aforementioned injuries caused by blunt force. Time elapsed since death 12 to 36 hours from the time of postmortem examination. 40. P.W. 8-Batiya Orain, has been declared tender witness. 41. This Court, on the basis of testimony of prosecution witnesses, has found that the learned trial Court has considered P.W. 1 (informant) and P.W. 7 as an eye witness. Admittedly, in the case in hand, the Investigating Officer and the doctor, who had conducted post mortem of the dead body of deceased, have not been examined. 42. It is further evident from the list of exhibits and the testimony of prosecution witness that neither the content of inquest report nor the seizure list have been identified, save and except, the signature contained therein. Even the injuries, which have been found while conducting post mortem, has not been corroborated since the doctor has not been brought by the prosecution to be examined. 43. Even the injuries, which have been found while conducting post mortem, has not been corroborated since the doctor has not been brought by the prosecution to be examined. 43. Since learned counsel for the appellants has questioned the reliability of testimony of P.W. 7-Hallu Oraon, who was a named accused in the F.I.R. but has been examined as prosecution witness, as such this Court first deems it and proper first to consider the issue of reliability of the testimony of P.W. 7., as has been framed under issue no. IV by this Court i.e., as to whether P.W. 7, who was named accused in the F.I.R. but was not charge-sheeted and has been made prosecution witness, can be considered to be a competent witness to prove the case of prosecution beyond all reasonable doubt? 44. In this regard, the law is well settled, as has been held by Hon'ble Apex Court in the case of Chandran alias Manichan alias Maniyan v. State of Kerela reported in [(2011) 2 SCC (Cri) 551], wherein it has been held that at paragraph 80, that even if the prosecution did not prosecute accomplice and used his evidence only as an accomplice, it was perfectly legal. The evidence of such witness subject to the usual caution was admissible evidence. The contention of the learned counsel that his evidence would be inadmissible because he was not granted pardon or he was not made accused would, thus, be of no consequence and as such the same has been rejected. 45. For ready reference, paragraph 80 of the judgment is quoted hereunder as: “80. This case would bring about the legal position that even if the prosecution did not prosecute PW 53 and used his evidence only as an accomplice, it was perfectly legal. The evidence of such witness subject to the usual caution was admissible evidence. The contention of Shri Radhakrishnan that his evidence would be inadmissible because he was not granted pardon or he was not made accused would, thus, be of no consequence and is rejected. In this backdrop, after considering the whole material and the findings of the trial court and the appellate court, we have no hesitation to hold that the trial court and the appellate court were right in convicting A-7.” 46. In this backdrop, after considering the whole material and the findings of the trial court and the appellate court, we have no hesitation to hold that the trial court and the appellate court were right in convicting A-7.” 46. In the case at hand, P.W. 7-Hallu Oraon has been shown to be accused by the informant while recording her fardbeyan basis upon which F.I.R. has been lodged, however, he was not sent for trial and made an witness and has been examined as prosecution witness. 47. In view of the discussions made by Hon'ble Apex Court in the case of Chandran alias Manichan alias Maniyan v. State of Kerela (supra), this Court is of the considered view that P.W. 7 cannot be said to be incompetent witness. 48. The question now arises, since now P.W. 7 is considered to be competent witness whether his testimony can be said to be corroborative with the testimony of P.W. 1 and P.W. 4 warranting conviction of the appellants. 49. Therefore, now this Court is proceeding to examine the testimony of other material witnesses, including P.W. 7 so as to examine the legality and propriety of the impugned judgment of conviction and order of sentence. 50. P.W. 7-Hallu Oraon in his examination-in-chief has stated that in the night of 09.05.1988 at about 11.00 p.m. he was in his house. He heard some unusual sound and came out from his house with a torch in his hand. In the light of torch, he recognized Birsa, Bishu Oraon and Budhu Oraon, who were beating to Sahdeo Pahan. On protest being made by him, the accused persons threatened him whereupon due to fear he went to his house. In the morning it was known to him that the dead body of Sahdeo Oraon has been thrown in Bhawani Tand. 51. In his cross-examination at paragraph 7 she has stated that when he came out of his house, besides Birsa, Bishu and Budhu no one was there to beat the deceased. 52. The testimony of P.W. 7-Hallu Oraon shows that he has seen the occurrence after coming out from his house having torch in his hand who was beating to deceased but in the fardbeyan, as recorded by the informant-P.W. 1, it is the specific case that Hallu Oroan was also along with the accused person. 53. 52. The testimony of P.W. 7-Hallu Oraon shows that he has seen the occurrence after coming out from his house having torch in his hand who was beating to deceased but in the fardbeyan, as recorded by the informant-P.W. 1, it is the specific case that Hallu Oroan was also along with the accused person. 53. Therefore, there is contradiction in the testimony of P.W. 7-Hallu Oraon and the fardbeyan recorded in the fardbeyan of the informant (P.W. 1) and further even in her cross-examination, at paragraph 13 the informant has stated that she knows Hallu Oraon and his culpability has also been recognized in the F.I.R. 54. P.W. 1-Tito Orain, who happened to be the wife of deceased, has stated in her deposition that on the fateful night she was in her house along with her husband in the light of Dibri (local lamp). In the meantime, accused persons Ganga Oraon, Bigna Oraon, Birsa, Chandla, Bishu, Samara, Bhola and Guru came there and dragged out her husband. She followed them. The accused persons killed her husband and thrown away. 55. When she came to house someone locked her door of the house from outside. It has been stated she remained in her house for whole night and next following morning, her Gotni-Batia opened the lock of the door to whom she narrated the occurrence. Thereafter, she along with Domba (P.W. 4) and Gabe Budha went to search the dead body and found the dead body in Bhawani Tand. 56. It is, thus, evident from the testimony of P.W. 1 she has specifically stated that Domba and Gabe Budha had accompanied her during search of body of her husband as such it is necessary to scrutinize their testimony. Since Gabe Budha has not been examined, as such this Court deems it fit and proper to go through the testimony of Domba Oroan, who has been examined as P.W. 4. 57. P.W. 4-Domba Oraon, in his examination-in-chief has given a complete different picture of searching of dead body of deceased-Sahdeo Pahan. P.W. 4-Domba Oraon in his examination-in-chief at paragraph 2 has specifically deposed that next day before sunrise, he went to his farm for irrigation and when he was passing near Bhawani Tand, he found the dead body of his brother-Sahdeo Pahan. P.W. 4-Domba Oraon in his examination-in-chief at paragraph 2 has specifically deposed that next day before sunrise, he went to his farm for irrigation and when he was passing near Bhawani Tand, he found the dead body of his brother-Sahdeo Pahan. At paragraph 3 he has deposed that from there he returned to his house and informed to his brother-Pechuwa Pahan about the dead body of Sahdeo. 58. Such statement of this witness is in complete contradiction of testimony of P.W. 1 (informant), who happens to be eye-witness has deposed at paragraph 4 of her deposition that Domba and Gabe Budha had accompanied her while searching the body of her husband and in course thereof, they found the dead body in Bhawani Tand. 59. Further, the P.W. 1-Tito Orain, the informant in cross-examination at paragraph 13 has specifically deposed that Hallu Oraon was with the accused persons, so her version regarding Hallu Oraon was with accused remain intact as she has stated that she know Hallu Oraon and his culpability has also been recognized in the F.I.R. 60. Further, this witness has stated in cross-examination at paragraph 10 that when she was following the accused persons and accused persons were dragging her husband, she raised alarm whereupon 10-20 villagers assembled there. But if her statement is taken to be correct the question arises what prevented the prosecution to examine those persons as witness who could have been independent witness, and assembled there on alarm being by the informant on the fateful night, but the prosecution chosen not to examine those witnesses, this question remained unanswered as the Investigating officer has not been examined. 61. Thus, manner in which the dead body was traced has discrepancy. The aforesaid discrepancy is considered by this Court to be a major contradiction. 62. The further discrepancies has been pointed out that P.W. 1 has stated in the F.I.R. that the appellants immediately after entering into the house has dragged her husband out of the house by holding his hand and pressing the neck and when she followed then saw that her husband was killed behind the house of Hallu. 63. 62. The further discrepancies has been pointed out that P.W. 1 has stated in the F.I.R. that the appellants immediately after entering into the house has dragged her husband out of the house by holding his hand and pressing the neck and when she followed then saw that her husband was killed behind the house of Hallu. 63. In this regard, discrepancy has been shown on behalf of appellants by pointing out the testimony of P.W. 1, wherein altogether different picture has been shown as per the submission advanced on behalf of appellant, that P.W. 1 has deposed that accused persons dragged the deceased and taken out from the house in the half dead condition and dead body was found in Bhawani Tand on the following day in the morning. 64. This Court in order to consider the same has again considered the F.I.R. wherein as per allegation it has been stated therein that husband of the informant-P.W. 1 was killed behind the house of Hallu while in the testimony it has been deposed by her that the dead body was found in Bhawani Tand. The same according to our considered view is considered to be discrepancy regarding the location from where the dead body was found but the gravity of this discrepancy is required to be considered in a fact where admittedly the Investigating Officer has not been examined. 65. Due to non-examination of the Investigating Officer, the place of occurrence could not be identified as also the place from where the dead body has been found. As such since it is the case where the conviction is based upon the testimony of P.W. 1 which according to our considered view and as per settled position of law, such testimony ought to have been unblemished and unimpeachable. 66. As such since it is the case where the conviction is based upon the testimony of P.W. 1 which according to our considered view and as per settled position of law, such testimony ought to have been unblemished and unimpeachable. 66. The discrepancy of the location of the dead body as has been differed from the version of F.I.R. as recorded in the testimony of P.W. 1 coupled with the version of P.W. 4, who is alleged to have accompanied the informant (P.W. 1) creates doubt since in the deposition the P.W. 1 (Informant) has stated that Domba accompanied her to search the dead body and found the dead body lying in Bhawani Tand, but P.W. 4 has stated in the deposition, in the next morning when he went to his farm for irrigation purpose before sunrise he found the dead body of the deceased lying in Bhawani Tand and as such there is also discrepancy in that count regarding accompany of P.W. 4. 67. There is also discrepancy in the nature of injuries, which has been found upon the body of deceased, if the reference of injuries is taken from the F.I.R. with the Post Mortem report, it would be evident from F.I.R. that the allegation has been levelled that the appellants have pressed the neck of the deceased and had killed behind the house of Hallu but P.W. 1 in her deposition has stated that the accused persons after entering her house has started assaulting her husband and her husband became soaked with blood and thereafter he was dragged outside the house and at that time he was half dead but such testimony after being considered from the injury report referred in the post mortem report has been found by this Court that there are several injuries found on the body of the deceased, as has been referred herein above and in that view of the matter the doctor who had conducted the post mortem is prime witness to corroborate what has been deposed by P.W. 1 about the nature of injuries caused by the appellant but the doctor has not been examined. 68. 68. Further, even the Investigating Officer has not been examined and the content of the inquest report has also not been examined and as such it cannot be said that the reference of the place from where the dead body has been found and the nature of injuries which has been shown in the inquest report has conclusively been proved in absence of examination of the Investigating Officer. 69. Therefore, as per the law laid down by Hon'ble Supreme Court in the case of Ravishwar Manjhi v. State of Jharkhand (supra), the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution. 70. This Court, as per discussions made hereinabove, is of the view that P.W. 1 in her testimony since has given altogether different picture as was narrated by her in the fardbeyan regarding the place of occurrence; accompanying by P.W. 4 and the time of occurrence and further due to non-examination of the Investigating officer and the doctor since assumes importance for corroboration of the version of P.W. 1, warrants interference in the impugned judgment of conviction and order of sentence which is alleged to have been passed by the prosecution beyond all reasonable doubt. 71. This Court has now proceeded to consider the issue as to whether the impugned judgment of conviction and order of sentence is passed on the basis of circumstantial evidence or not, wherein the requirement of law is that chain is required to be complete but due to such discrepancy in the testimony of P.W. 1 and non-examination of Investigating Officer and doctor, who has conducted post mortem and even the contents of the inquest report, the F.I.R. and the post mortem report have not been identified, therefore, it cannot be said, in our considered view, that the prosecution has been able to complete the chain of circumstances so as to prove the charge beyond all reasonable doubt. 72. 72. This Court, after having discussed the material available on record and on consideration of judgment of conviction and order of sentence, has found therefrom that the learned trial Court has relied upon the testimony of P.W. 1 as also P.W. 7-Hallu Oraon, who have given contradictory statement, then the question arises what led the learned trial Court to come to the conclusion that the prosecution has been able to prove the charge beyond all shadow of doubt when there is no justifiable reason since there is non-consideration of discrepancy having been found in the testimony of P.W. 1 P.W. 4 and P.W. 7 as also benefit of doubt has crept up regarding culpability of the appellants due to non-examination of the investigating officer and the doctor and non-identification of the contents of the inquest report and the F.I.R. as also the post mortem report. 73. Therefore, this Court is of the view that the prosecution has seriously failed to consider the underlying principle of passing the judgment of conviction in a case where the prosecution is able to prove the charge beyond all shadow of doubt, which is being gathered from the detailed discussions made hereinabove that if the content of doubt is there, it is settled position of law that onus is upon the prosecution to prove the prosecution case beyond all reasonable doubt and in case of any benefit in proving the charge beyond all shadow of doubt, the benefit is to be given to the accused. 74. Considering the same in our considered view the trial Court since has not appreciated the aforesaid fact in right prospective, therefore, the impugned judgment of conviction and order of sentence suffers from error. 75. Accordingly, judgment of conviction dated 7th February, 1994 and order of sentence dated 8th February, 1994, passed by 3rd Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 440 of 1990 is hereby quashed and set aside. 76. Resultantly, the appellants, named above, are acquitted and discharged from the liability of their bail bonds. 77. In the result, the instant appeal stands allowed. Criminal Appeal No. 406 of 2016 (D.B.) 78. 76. Resultantly, the appellants, named above, are acquitted and discharged from the liability of their bail bonds. 77. In the result, the instant appeal stands allowed. Criminal Appeal No. 406 of 2016 (D.B.) 78. The instant appeal has been filed under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction dated 9th February, 2016 and order of sentence dated 11th February, 2016, passed by learned Additional Judicial Commissioner XVIII, Ranchi, in Sessions Trial No. 271 of 2006, by which the appellant was found guilty of the offence punishable under Sections 302/34 and 201/34 of the Penal Code, 1860 and was convicted for the offence punishable under Sections 302/34 and 201/34 of the Penal Code, 1860 and sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- (Ten Thousand) for the offence punishable under Section 302/34 of the Penal Code, 1860 and in default of payment of fine he has to under R.I. for six months; and rigorous imprisonment for four years and to pay fine of Rs. 5000/- (Five Thousand) for the offence punishable under Section 201/34 of the Penal Code, 1860 and in default of payment of the fine the convict was directed to undergo R.I. for three months. Both the sentences were directed to be run concurrently. 79. Since both the appeals arises out of the same prosecution story, based upon the fardbeyan of informant-Tito Orain, as has been referred in the first case [Cr. Appeal(DB) No. 33 of 1994) therefore, the same is not being reiterated herein. 80. On the basis of fardbeyan of informant-Tito Orain recorded by Officer-Charge of Chanho Police Station, a formal F.I.R. being Chanho P.S. Case No. 30 of 1988 was registered against the accused persons under Sections 302/201/34 of the Penal Code, 1860. 81. After investigation, the police submitted charge-sheet under Sections 302/201/34 of the Penal Code, 1860 against six accused persons, who are the appellants in Cr. Appeal D.B. No. 33 of 1994(R) and two other accused persons namely, Birsa Oraon (appellant in Cr. Appeal No. 406 of 2016] and Bishu Oraon as absconder. 82. Subsequently, one of the absconding accused-Birsa Oraon, appellant in Cr. Appeal D.B. No. 33 of 1994(R) and two other accused persons namely, Birsa Oraon (appellant in Cr. Appeal No. 406 of 2016] and Bishu Oraon as absconder. 82. Subsequently, one of the absconding accused-Birsa Oraon, appellant in Cr. Appeal No. 406 of 2016, was arrested and thereafter his case was committed to the Court of Sessions vide order dated 12.04.2006 being Sessions Trial No. 271 of 2006, wherefrom the case was received in the Court of learned Additional Judicial Commissioner-XVIII, Ranchi for trial and disposal, wherein the charges have been framed under Sections 302/201/34 of the Penal Code, 1860 and subsequently, the accused was convicted vide judgment of conviction dated 9th February, 2016 and sentenced vide order of sentence dated 11th February, 2016, which is the subject matter of instant appeal. 83. The prosecution, in order to establish the charge, in course of trial, has examined altogether seven witnesses. They are P.W. 1-Domba Oraon; P.W. 2-Tito Orain (informant); P.W. 3-Baharat Oraon; P.W. 4-Karma Oraon; P.W. 5-Hallu Oraon; P.W. 6-Batia Orain and P.W.7-Dr. Tulsi Mahto. 84. Apart from oral evidence, following documents have also been exhibited on behalf of prosecution: Ext. 1 is the signature of Bharat Oraon (P.W. 3) on the carbon copy of the inquest report of the deceased. Ext-2 is the signature of the Bharat Oraon (P.W. 3) on the seizure list regarding seizure of blood stained earth from the place of occurrence. Ext. 3 is the postmortem report of the deceased. Ext. 4 is the certified copy of the deposition of P.W. 6-Baharat Oraon recorded in S.T. 440 of 1990. Ext. 4/1 is the certified copy of deposition of P.W. 7 Hallu Oraon recorded in S.T. 440 of 1990. Ext-5 is the certified copy of statement of witness-Hallu Oraon recorded in the case (i.e. Chanho P.S. Case No. 30 of 1988) and marked exhibit in S.T. 440 of 1990. 85. On the other hand, one witness namely, Jhirga Oraon D.W. 1) has been examined on behalf of accused (appellant in Cr. Appeal No. 406 of 2016) in his defence. 86. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons, and found the charges levelled against the appellants proved beyond all reasonable doubts. Appeal No. 406 of 2016) in his defence. 86. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons, and found the charges levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellant had been found guilty of the offence punishable under Sections 302/34 and 201/34 of the Penal Code, 1860 and was convicted for the offence punishable under Sections 302/34 and 201/34 of the Penal Code, 1860 and sentenced to undergo life Imprisonment and to pay a fine of Rs. 10,000/- (Ten Thousand) for the offence punishable under Section 302/34 of the Penal Code, 1860 and in default of payment of fine he has to under R.I. for six months; and rigorous imprisonment for four years and to pay fine of Rs. 5000/- (Five Thousand) for the offence punishable under Section 201/34 of the Penal Code, 1860 and in default of payment of the fine the convict was directed to undergo R.I. for three months. Both the sentences were directed to be run concurrently. 87. Mr. Deepankar, learned counsel for the appellant has adopted the argument advanced by Mr. A.S. Dayal, learned counsel for the appellants appearing in Cr. Appeal (D.B.) No. 33 of 1994. 88. He has submitted that judgment of conviction and order of sentence is solely based on the testimony of informant-Tito Orain (P.W.2), in whose testimony there is so many discrepancies, but the learned trial Court ignoring such discrepancies has passed impugned judgment, which is not sustainable in law. 89. Learned counsel for the petitioner has also raised the question of considering the testimony of Hallu Oraon (P.W. 5), who was a named accused in the F.I.R., but the prosecution has named him as witness. 90. Learned counsel for the appellant has further submitted that in such circumstance, the testimony of Investigating Officer is of prime importance but Investigating Officer has also not been examined and as such on this ground also the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. 91. Learned counsel for the appellant has submitted though the doctor has been examined but it is not the doctor who had conducted post mortem over the dead body of the deceased. 92. Per Contra, Ms. 91. Learned counsel for the appellant has submitted though the doctor has been examined but it is not the doctor who had conducted post mortem over the dead body of the deceased. 92. Per Contra, Ms. Nehala Sharmin, learned Additional Public Prosecutor appearing on behalf of State has defended the impugned judgment of conviction and order of sentence taking the ground as has been taken in Cr. Appeal (D.B.) No. 33 of 1994 and submitted that the impugned judgment has been passed based upon the testimony of eye witness, supported by medical evidence as deposed by doctor. 93. So far issue of examination of Investigating Officer is concerned, it has been submitted that in all cases the non-examination of I.O. is not fatal and in the case in hand, since P.W. 2-Tito Orain, is the eye witness whose version has been supported by medical evidence as such case of the prosecution cannot be discarded on the basis of non-examination of I.O. 94. We have heard learned counsel for the parties, perused the documents (exhibits) available on record and the testimony of witnesses as also the finding recorded by learned trial Court, which is impugned in this appeal. 95. The issues which remain to be decided in this case is as under: (i). Whether the discrepancies, which is alleged to have been found in the testimony of eye-witness is sufficient to disbelieve the prosecution version in the facts of given case? (II). Whether the prosecution has been able to prove the charge even on the basis of circumstantial evidence as the fact of the given case is? (III). Whether due to non-examination of Investigating Officer the prosecution of the given facts of the case can be said to be invalidated? 96. Since all the issues are inter-linked with each other and as such they are being taken together by taking into consideration the facts of the given case including the testimony of P.W. 1. 97. Further, since this Court has already referred the judgment on the issue, as framed hereinabove, therefore, in order to answer these issues, deems it fit and proper to first discuss about the testimony of the witnesses as also the documents, which were exhibited during trial, in the light of judgment referred hereinabove. 98. P.W. 1-Domba Oraon, has deposed that the occurrence took place about 22 years ago and it was night of Monday. 98. P.W. 1-Domba Oraon, has deposed that the occurrence took place about 22 years ago and it was night of Monday. He has further deposed that they had gone to sleep after taking meal and in the next morning when he awoke and was going to irrigate his field, he saw that dead body of Sahdeo Pahan was lying in the field near Darja. Then, he informed his brother Fechua Pahan. Thereafter, he went to Tito Orain-P.W. 2 (wife of the deceased) where she told that Birsa, Bishu, Guddu, Bigna etc. had come in the night and they forcibly took her husband Sahdeo Pahan with them and the accused persons pushed her into her house and locked the door from outside. 99. During cross-examination, at paragraph 3, he has testified that Birsa Oraon (appellant) was in service of CRPF but on the alleged date of occurrence he had come to his house after taking leave. 100. P.W. 2-Tito Orain is the informant in this case and allegedly the eye witness of the alleged occurrence. 101. She has deposed that incident is 22 years old. On the fateful night, at about 7.00-8.00 p.m., after taking meal she went to sleep. Her husband was also in house. At that time, accused Birsa, Guddu, Bishu etc. and other persons came and forcefully dragged her husband out of the house by tying his neck by a rope and she was confined in her house by closing the door by means of bolt and because of that she could not come outside. Thereafter, they killed her husband and thrown the body in the well and dragged the body of her husband to Don (field). It is further deposed that on the next morning when she raised alarm, small children opened the door and then she saw the dead body of her husband. Thereafter she went to police station to lodge case. She has further deposed that due to previous enmity, accused persons have committed murder of her husband-Sahdeo Mahto. 102. In her cross-examination, she deposed that Birsa (present appellant) was in service but on the date of occurrence he was in village. In her cross-examination, she has further stated that there is no well near the house of Hallu Oraon. 103. She has further deposed that due to previous enmity, accused persons have committed murder of her husband-Sahdeo Mahto. 102. In her cross-examination, she deposed that Birsa (present appellant) was in service but on the date of occurrence he was in village. In her cross-examination, she has further stated that there is no well near the house of Hallu Oraon. 103. P.W. 3-Baharat Oraon is hearsay witness and has stated that when he went to the field named as Bhawani Tand he found the dead body of Sahdeo was lying in the Paine (a shallow well). He has further stated that police prepared Panchnama of the dead body in his presence. 104. He has identified his signature on the carbon copy of inquest report which has been marked as Exhibit 1. He has further identified his signature on the seizure list regarding seizure of blood stained earth from the place of occurrence. 105. P.W. 4-Karma Oraon is also a hearsay witness. He has deposed that in the next morning of occurrence, after hearing hulla being raised by Tito Orain (wife of the deceased), his wife (P.W. 6)-Batia Orain went there and opened the door after removing latches. 106. In cross-examination, this witness has specifically stated that on the fateful night, he did not hear any hulla (noise). 107. P.W. 5-Hallu Oraon has not supported the prosecution version and has been turned hostile. 108. P.W. 6-Batia Orain, has deposed that deceased-Sahdeo was her Bhaisur (Brother-in-law). She further deposed that there was land dispute between the deceased and accused persons. She is also a hearsay witness. 109. P.W. 7-Dr. Tulsi Mahto, Professor & H.O.D, Department of FMT, RIMS, has deposed that Dr. D.K. Dheeraj was his colleague, who had conducted postmortem examination on the body of the deceased. 110. Description of ante mortem injuries found on the dead body has already been mentioned above in Cr. Appeal (DB) No. 33 of 1994 as such it is not repeated herein. 111. One Jhigra Oraon has been examined as D.W. 1 on behalf of accused. He has deposed that accused-Birsa Oraon is in service at Firozpur, Punjab. He has further deposed that villagers had informed that there was quarrel with deceased-Shadeo. When he reached the place of occurrence he saw the dead body of deceased and further police, many villagers, including the wife of deceased was present there. He has deposed that accused-Birsa Oraon is in service at Firozpur, Punjab. He has further deposed that villagers had informed that there was quarrel with deceased-Shadeo. When he reached the place of occurrence he saw the dead body of deceased and further police, many villagers, including the wife of deceased was present there. At paragraph 3, he has deposed that neither wife of deceased-Sahdeo Pahan nor any person present there told about the person who killed Sahdeo Pahan. 112. He has further stated that case has been lodged to grab the land of Birsa. 113. The learned trial Court on the basis of testimony of sole eye witness, P.W. 2-Tito Orain, passed the judgment of conviction and order of sentence, showing that a chain of circumstance is complete to prove the case of prosecution beyond all reasonable doubt. 114. This Court, therefore, is now proceeding to appreciate the argument advanced on behalf of learned counsel for the appellant regarding the discrepancies, alleged to have been found in the testimony of P.W. 2, the informant (eye-witness) in order to substantiate that the prosecution has not been able to prove the charge by considering the aforesaid discrepancy, which has got material bearing due to non-examination of Investigating Officer. 115. This Court in order to reach some logical conclusion again scrutinizes the testimony of P.W. 2, who is alleged to be eye witness, so as to come to the conclusion that the prosecution has proved the case beyond all reasonable doubt or not has again went across the testimony of P.W. 2. 116. P.W. 2-Tito Orain, who happened to be the wife of deceased has recorded her ferbeyan that at about 11.00 P.M. villagers-Birsa Oraon, Bishu Oraon, Guddu Oraon, Bigna Lakra, Hallu Oraon, Somra Oraon, Bhola Oraon, Bigja Oraon and Ganga Oraon along with 5 to 6 other persons came and entered to their Dhaba (part of house) but in her examination-in-chief she has deposed that at about 7.00-8.00 p.m. night the accused persons came. Here, there is discrepancy in the time of occurrence and further as per this witness, as alleged in the F.I.R., name of six persons have been disclosed but other 5-6 persons, who were also alleged to be in the assembly, whose name has not come in the investigation, which is a material evidence but herein since the Investigating Officer has not been examined and as such this issue remain unanswered. 117. Further, she has deposed that her door was locked from outside by accused persons which was opened by children in the next morning but in the ferdbeyan she stated that in the morning door was opened by her Gotani (sister-in-law), this discrepancy has also not been taken into consideration by learned Single Judge. 118. Further, the sole eye witness has deposed in examination-in-chief that after killing her husband the accused persons thrown the dead body in the well but in cross-examination at paragraph 17 she specifically deposed no well was present near the house of Hallu or nearby place. 119. Further, in the ferdbeyan, she has deposed that she went to search the dead body of her husband along with her Gotani and Domba Oraon but Domba Oraon (P.W. 1) in his deposition has specifically deposed that when he went to irrigate his field he saw the dead body of deceased-Shahdeo. Domba Oraon was examined as P.W. 4 in Cr. Appeal No. 33 of 1994 wherein also he was consistent in deposing that when he went to irrigate his field, he saw the dead body of deceased-Sahdeo. This discrepancy has also not been taken into consideration by learned trial Court while passing the impugned judgment of conviction and order of sentence. 120. Thus, the manner in which the dead body was traced out has discrepancy. The aforesaid discrepancy is considered to be a major contradiction by this Court. 121. Furthermore, due to non-examination of the Investigating Officer, the place of occurrence could not be identified as also the place from where the dead body has been found. Further, the content of the inquest report has also not been examined, as such it cannot be said that the reference of the place from where the dead body has been found and the nature of injuries which has been shown in the inquest report has conclusively been proved in absence of examination of the Investigating Officer. 122. Further, the content of the inquest report has also not been examined, as such it cannot be said that the reference of the place from where the dead body has been found and the nature of injuries which has been shown in the inquest report has conclusively been proved in absence of examination of the Investigating Officer. 122. Further, the doctor who has conducted the post mortem post mortem in the instant case has also not been examined. However, one Tulsi Mahto, Professor & H.O.D, Department of FMT, RIMS, though has been examined but admittedly he is not the doctor who has conducted post mortem, therefore, the same ought to have been taken into consideration for the reason that his testimony is having bearing for establishing the prosecution case regarding the corroboration of the injury also cause of death. 123. This Court, therefore, is of the view that P.W. 2 in her testimony since has given altogether different picture as was narrated by her in the fardbeyan regarding the location of the dead body, accompanying by P.W. 1 and the time of occurrence, the non-examination of the Investigating officer assumes importance for corroboration of the version of P.W. 2-informant warranting conviction of the appellants so as to be said that the prosecution has been able to prove the charge beyond all reasonable doubt. 124. This Court, considering the above discrepancies having been found in the deposition of sole witness, whether chain of evidence is complete so as to convict the appellant for the offence punishable under Section 302/34/201 of the Penal Code, 1860 as per the position of law regarding conviction is to be based upon circumstance, wherein the requirement of law is that chain in entirety is to be completed. But due to discrepancies, as has been referred hereinabove in the testimony of informant-P.W. 2 and non-examination of I.O, in our considered view it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt. 125. This Court after having discussed the material available on record and on consideration of judgment of conviction and order of sentence, has found thereform that the learned trial Court has solely relied upon the testimony of P.W. 2. 126. 125. This Court after having discussed the material available on record and on consideration of judgment of conviction and order of sentence, has found thereform that the learned trial Court has solely relied upon the testimony of P.W. 2. 126. Then the question what led the learned trial Court to come to the conclusion that the prosecution has been able to prove the charge beyond all shadow of doubt when there is no justifiable reason since there is non-consideration of discrepancy having been found in the testimony of P.W. 1 read with P.W. 4 as also benefit of doubt has crept up regarding culpability of the appellants due to non-examination of the investigating officer and the doctor, who has conducted post-mortem and non-identification of the contents of the inquest report and the F.I.R. 127. Therefore, this Court is of the view that the prosecution has seriously failed to consider the underlying principle of passing the judgment of conviction in a case where the prosecution is able to prove the charge beyond all shadow of doubt, which is being gathered from the detailed discussions made hereinabove that if the content of doubt is there, it is settled position of law that onus is upon the prosecution to prove the prosecution case beyond all reasonable doubt and in case of any benefit in proving the charge beyond all shadow of doubt, the benefit is to be given to the accused. 128. Considering the same in our considered view the trial Court since has not appreciated the aforesaid fact in right prospective, therefore, the impugned judgment of conviction and order of sentence suffers from error. 129. Accordingly, judgment of conviction dated 9th February, 2016 and order of sentence dated 11th February, 2016, passed by Additional Judicial Commissioner-XVIII, Ranchi, in Sessions Trial No. 271 of 2006 is hereby quashed and set aside. 130. Resultantly, the appellant, named above, is acquitted and discharged from the liability of his bail bonds. 131. In the result, the instant appeal stands allowed. 132. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. Subhash Chand, J.- I Agree