JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. The instant appeal, filed under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction dated 20.04.2015 and order of sentence dated 21.04.2015 passed by learned District and Additional Sessions Judge-V, Giridih in Sessions Trial No. 375 of 2010, by which the appellant has been convicted for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life and also for payment of fine of Rs. 5,000/- and in case of default of payment of fine further to undergo R.I. for two years. 2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case, as per fardbeyan of informant, which reads as under. 3. The informant Renu Devi gave written report to officer in-charge, Muffasil P.S., Giridih stating therein that her husband Gulab Mandal and one Pappu Das were running the business of brick in partnership for which her husband and father-in-law had given rupees one Lakh (Rs. 1,00,000/-) to Pappu Das and it was agreed that in the brick kiln they will invest the money and work will be done by Pappu Das. While running the business rupees thirty thousand (Rs. 30,000/-) became due upon Pappu Das and on demand of money, Pappu Das used to threaten to kill them. It has further been stated that on 24.6.2010 at about 7 a.m. morning her husband was called for by Pappu Das, Mahru Das @ Atwari Das and Madhusudan Gupta and thereafter they went somewhere. At about 11.00 o’clock her Dewar (brother-in-law) Manoj Kumar Mandal asked about her husband whereupon the informant said that he went along with Pappu Das and Madhusudan Das towards Nichelakhari. Thereafter, she along with Manoj Kumar Mandal and son-Pankaj Kumar went towards Nichelakhari and when they were about 100 Gaj (yard) to Brick Kiln, they saw that Pappu Das was stabbing her husband in his stomach and Maksudan Gupta and Somar Das and wife of Pappu were assaulting her husband by brick and stone. When they ran towards the place of occurrence the assailants also ran to attack them by means of knife, brick and stone but anyhow the informant party saved their life and reached their house. When they ran towards the place of occurrence the assailants also ran to attack them by means of knife, brick and stone but anyhow the informant party saved their life and reached their house. In the meantime, the matter came to the knowledge of police who reached at the place of occurrence. 4. On the basis of fardbeyan of the informant, a formal F.I.R. was registered against the accused persons, Pappu Das, Maksudan Gupta, Somar Das and wife of Pappu Das of village Lakhari, P.S. Muffasil, District Giridih under Section 302/34 of the Indian Penal Code. 5. The matter was investigated by the Investigating Officer, who after investigation submitted charge-sheet against Pappu Das and Bandhani Devi alias Budhni Devi under Section 302/34 of the Indian Penal Code. 6. Thereafter the cognizance of the offence was taken and the case was committed to the Court of Sessions wherefrom the case was received in the Court of learned District & Additional Sessions Judge-V, Giridih for trial and disposal. 7. It is pertinent to note here that initially only Pappu Das was facing trial in the case but later on charge-sheet was also submitted against accused Bandhani Devi alias Budhni Devi under Section 302/34 of the Indian Penal Code. Accordingly, cognizance was taken against her and case was committed to the Court of Sessions and she was facing trial in Session Trial No. 348/11 and thereafter Session Trial 348/11 was amalgamated with original Session Trial No. 375/10 vide order dated 11.04.2012. Accordingly, both the accused persons namely Pappu Das and Bandhani Devi alias Budhni Devi had faced the trial under Section 302/34 of the Indian Penal Code. 8. In course of trial, the prosecution has examined altogether six witnesses, namely, PW-1 Manoj Kumar Mandal (brother of deceased), PW-2 Pankaj Kumar Mandal (son of deceased), PW-3 Basudeo Prasad Mandal (hearsay witness) who proved his signature on inquest report which has marked as Exhibit 2), PW-4 Renu Davi-wife of deceased (informant of the case). PW-5 Sunil Kumar Singh (medical officer who conducted postmortem examination on the dead body of Gulab Mandal) and PW-6 Suman Anand (Investigating Officer of the case). 9. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code and found the charges levelled against the appellants proved. 10. 9. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code and found the charges levelled against the appellants proved. 10. Accordingly, the appellants had been found guilty as such convicted vide impugned judgment of conviction dated 20.04.2015 and sentenced vide order of sentence dated 21.04.2015, which is the subject matter of instant appeal. 11. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court, while convicting the accused person, has committed any illegality or not? 12. Mr. S.K. Murtty, learned counsel for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds: (I) The learned trial Court has erred in appreciating the fact that all the witnesses are interested witness, save and except the Investigating Officer and doctor. Furthermore, even their statements are contradictory to each other, therefore, the impugned judgment of conviction and order of sentence is required to be quashed and set aside. (II) That the place of occurrence is an open area and lies within Giridih town which is densely populated area and the alleged crime has been committed in broad day light but even no independent witness has been examined and out of eight charge-sheeted witnesses only six witnesses have been examined and rest two charge-sheeted witnesses, namely Jugal Kishore Mandal and Hiralal Mandal were not examined for which no explanation has been given as such adverse inference can be drawn against the prosecution case. (III) That in the case at hand, the prosecution instead of relying upon the version of independent witnesses has relied upon the testimony of highly interested witnesses, who are none other than the wife, son and brother of the deceased, whose statements are full of contradictions. (III) That in the case at hand, the prosecution instead of relying upon the version of independent witnesses has relied upon the testimony of highly interested witnesses, who are none other than the wife, son and brother of the deceased, whose statements are full of contradictions. (IV) According to testimony of informant (PW-4) written report was handed over to police at place of occurrence when the police came to village whereas Manoj Kumar Mandal (PW-1) and Pankaj Kumar Mandal (PW-2) have stated in their deposition that they went to police station and handed over written report to the police and further PW-6/I.O. of the case has deposed that when they returned from place of occurrence to police station he saw the informant at police station and written report was handed over to him upon which FIR has been registered which creates serious doubts over the Prosecution case. (V) That PW-1 deposed for the first time about the occurrence before the Court so no reliance ought to have been taken from the evidence of PW-1. (VI) That PW-2 in his cross-examination has specially deposed that he, on the alleged date and time of occurrence, was in his school, as such he cannot be said to be at the place of when the incidence took place. Therefore, he cannot be treated to be eye witness rather at best he can be said to be hearsay witness but the judgment of conviction has been passed based upon his testimony also, therefore, the impugned judgment of conviction and order of sentence is fit to be quashed and set aside. 13. Learned counsel for the appellant on the basis of aforesaid grounds has submitted that the judgment of conviction and order of sentence is not sustainable in the eyes of law and as such the same is fit to be quashed and set aside. 14. While on the other hand, Mr. Vishwanath Roy, learned Additional Public Prosecutor appearing for the respondent-State has submitted that there is no error in the impugned judgment of conviction and order of sentence since the learned trial Court after taking into consideration the testimony of witnesses has passed the impugned judgment of conviction and order of sentence. 14. While on the other hand, Mr. Vishwanath Roy, learned Additional Public Prosecutor appearing for the respondent-State has submitted that there is no error in the impugned judgment of conviction and order of sentence since the learned trial Court after taking into consideration the testimony of witnesses has passed the impugned judgment of conviction and order of sentence. While defending the impugned order he has taken the following grounds: (I) That the informant Renu Devi has fully supported the Prosecution case and her evidence is also corroborated by evidence of other witnesses, namely, Basudeo Mandal, Pankaj Mandal and Manoj Kumar Mandal. (II) That the evidence of PW-1, PW-2, PW-3 and PW-4 are very much consistent, corroborative and credit worthy on the point of assault made by Pappu Das due to which the deceased-Gulab Mandal died. (III) Further PW-1, PW-2 and PW-4 are eye witness to the occurrence and they have narrated about the occurrence and evidence of all these witnesses have been corroborated by PW-5-soctor who found several anti-mortem injuries, incised wound, lacerated wound and bruise over dead body of Gulab Mandal and further the doctor has opined that cause of death is due to head, chest, abdominal and neck injuries caused by sharp and piercing object such as knife, as has been described by the eye witnesses. (IV) That there is absolutely nothing on the record to disbelieve and discard the evidence of eye witnesses and as such Prosecution has successfully proved the charge beyond all reasonable doubts. 15. Learned Additional Public Prosecutor on the basis of aforesaid grounds has submitted that the judgment of conviction and order of sentence requires no interference by this Court. 16. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses and the finding recorded by learned trial Court. 17. This Court before considering the argument advanced on behalf of the parties is proceeding to consider the deposition of witnesses, as per the testimony recorded by learned trial Court: (I) PW-1 Manoj Kumar Mandal, who is the brother of the deceased, has deposed that on 24.06.2010 when he came to his house at 11 A.M. his Babhi told that his brother had gone to Lakhari with Pappu Das where Paapu and Gulab were running a brick business in partnership and Rs. 30,000/- was due upon Pappu which when demanded by Gulab, Pappu used to threatened to kill them. He has further deposed that when he along with Renu Devi were going towards brick bhata, he saw that Pappu Das was giving knife blow and his wife was also assaulting with brick to victim to which they protested upon which the accused ran towards him therefore they have to flee to their house. It has further been deposed that Mahesh Mandal had prepared application which was given to police station and the application was signed by informant Renu Devi and he (Manon Kumar Mandal) also put his signature as a witness. He has proved written report which has been marked as Exhibit-1. In cross-examination, he has admitted that he is brother of Gulab Mandal and for the first time he is giving his statement in the Court. (II) PW-2 Pankaj Kumar Mandal has deposed that on 24.6.2010 at 11.00 his uncle Manoj Kumar Mandal came and asked her mother about the his father upon which she said that he had gone with Pappu Das. Thereafter he along with Manoj and Renu Devi reached near brick bhata (kiln) and saw that Pappu was beating his father (deceased) and was giving knife blow in his stomach and wife of Pappu was assaulting his father with brick and his father was crying for help upon which they went to save him then Paapu Das and his wife ran towards them with brick and knife. They came to their house and thereafter he along with Manoj and Renu Devi went to police station where his mother gave a written report to police which was prepared by Mahesh Mandal and signed by his mother. He has further deposed that his father and Pappu was partner in brick business. In cross-examination at paragraph 3 he has deposed that on the day of occurrence and time of occurrence he was in DAV School. He has further stated that police has also recorded his statement regarding the occurrence. (III) PW-3 Basudeo Prasad Mandal has stated that on 24.6.2010 he was in village Lakhari where he heard halla that Gulab Mandal has been killed. He went to the place of occurrence where he found police. Police prepared paper of dead body which was signed by him. (III) PW-3 Basudeo Prasad Mandal has stated that on 24.6.2010 he was in village Lakhari where he heard halla that Gulab Mandal has been killed. He went to the place of occurrence where he found police. Police prepared paper of dead body which was signed by him. The Officer-in-charge, Suman Anand had prepared the paper which is in his writing and signature which has been marked as Exhibit 2. He has further deposed that a knife stained with blood was also found near dead body and brick was also recovered. Paper was prepared by Officer-in-charge, Suman Anand which was signed by him and marked as Exhibit 3. Thereafter police went to the house of Pappu Das from where Jeans Pant and Shirt was recovered whereupon blood stain was found. Paper was prepared which is in writing and signature of Investigating Officer, Suman Anand. In cross-examination he has stated that he has singed the seizure list at the place of occurrence and seized material was shown to him by the police. He has further stated that he had an opportunity to work with Suman Daroga but he cannot remember the place. (IV) PW-4 Renu Devi is the informant of the case who has deposed that occurrence took place on 26.06.2010. Her husband Gulab Mandal and Pappu Das were running business of brick in which her husband had invested Rs. 1 Lakh and Rs. 30,000/- was due to be payable by Pappu Das and when demand was made by her husband such occurrence took place. She has further deposed that Pappu came to her house at 7.30 A.M. in morning and took her husband towards brick bhata. Devar Manoj Mandal and son Pankaj Kumar Mandal came and asked about her husband and thereafter they went to search him and saw that Pappu Das was inflicting knife blow on stomach of her husband and wife of Pappu Das was assaulting with brick stone and when they raised halla the accused persons ran towards them thereafter they went to their house. She has further deposed that Mahesh Prasad Mandal came there to whom she told about the occurrence. Mahesh Prasad Mandal prepared written report which was signed by her. Manoj and Pankaj have also signed upon written report which has been marked as Exhibit 5. She has further deposed that Mahesh Prasad Mandal came there to whom she told about the occurrence. Mahesh Prasad Mandal prepared written report which was signed by her. Manoj and Pankaj have also signed upon written report which has been marked as Exhibit 5. In the meantime, police reached the place of occurrence and submitted written report to police and found her husband dead. Police took the dead body to police station. In cross-examination she has stated that she has seen the occurrence from her eyes. Jugal Kisore Mandal, who is her father-in-law has heard about the incident. She has further deposed that she learnt about the occurrence after one hour. (V) PW-5 Sunil Kumar Singh, Medical Officer posted in Sadar hospital, Giridih, has stated in his evidence that on 25.06.2010 at about 12.15 P.M. he conducted postmortem examination over the dead body of Gulab Mandal son of Jugal Mandal of village Lakhari and on examination he found rigor mortis present in lower limbs. Some anti-mortem injuries were also found on his body: (1) Incised wound 1½” x 1” x Abdominal cavity deep over left front abdomen by the side of umbilicus. (2) Incised wound 1/4” x 1/4” x Muscle deep over below left side lower lip. (3) Incised wound 1” x 1/4” x Cartilage deep over left ear was found cut. (4) Incised wound 1” x 1/2” x Muscle deep over behind left ear. (5) Lacerated wound 1/2” x 1/2” x Muscle deep over below chin. (6) Lacerated wound 2” x 1” x Muscle deep over left occipital region. (7) Blooding from Mouth (8) Bruise 4” x 4” over front of neck and on dissection of skull hematoma was found under scalp. Subdural hematoma was found all over cerebral hemispheres in skull cavity. Hematoma under skin found all over front and side of neck. Tracheal cartilages and Thyroid were fractured. Chest left lung was ruptured blood clot in chest cavity. Abdomen and spleen were cut, small gut and mesentery was injured. Blood clot in abdominal cavity viscera - pale. Heart - Empty - Stomach about 15 ml yellow brownish liquid. Balder - Empty. He has opined that time since death 24 to 36 hours approximately and cause of death head/Chest/Abdominal injuries/throttling neck injury and nature of weapon related to injury No. 1 to 4 may be sharp and piercing object such as knife. Heart - Empty - Stomach about 15 ml yellow brownish liquid. Balder - Empty. He has opined that time since death 24 to 36 hours approximately and cause of death head/Chest/Abdominal injuries/throttling neck injury and nature of weapon related to injury No. 1 to 4 may be sharp and piercing object such as knife. So far rest of the injuries are concerned those may be hard and blunt substance such as bricks and stones. All the injuries are sufficient to cause of death of a person under ordinary course of nature. Further he has proved postmortem report which is in his writing and signature which has been marked as Exhibit 5. In cross-examination he has stated that he has not mentioned in postmortem report regarding injury No. 1 to 4 may be caused by knife and as such injuries may not be caused by falling on sharp and piercing stone. (VI) PW-6 Suman Anand is Investigating Officer of the case who deposed that on 24.06.2010 he was posted as officer in-charge of Muffasil P.S. and at 12.45 P.M. he got information that a person has been killed in village Lakhari and on getting this information he went to village Lakhari and found dead body of Gulab Mandal. Inquest report of Gulab Mandal was prepared which is in his writing and signature and the same has been signed by Hiralal Rajak and Basudeo Mandal which has been marked as Exhibit 2. Further he seized the knife and blood stain brick in presence of Hiralal Rajak and Basudeo Mandal. Seizure list was prepared which is in his writing and signature which has earlier been marked as Exhibit 3 and on search of house of Pappu Das blood stain paint and shirt was seized in presence of two witnesses and had proved seizure list which has marked as Exhibit 4. Thereafter he recorded statement of seizure witness, inspected the place of occurrence and dead body was sent for postmortem. On returning to police station, he met with Renu Devi wife of deceased and accused Pappu Das has surrendered in police station. On the basis of written report of Renu Devi Muffasil P.S. Case No. 174/10 was registered under Section 302/34 of the Indian Penal Code. He took charge of the investigation of the case. On returning to police station, he met with Renu Devi wife of deceased and accused Pappu Das has surrendered in police station. On the basis of written report of Renu Devi Muffasil P.S. Case No. 174/10 was registered under Section 302/34 of the Indian Penal Code. He took charge of the investigation of the case. Written report has been marked as Exhibit 1 and he has proved endorsement which is in his writing and signature and marked as Exhibit 6. Further he recorded statement of witnesses Renu Devi, Mahesh Mandal, Manoj Mandal and Pankaj Kumar as also the statement of accused person-Pappu Das, who has admitted that he has killed Gulab Mandal with knife as he had bad eye on his wife. He also recorded statement of A.S.I. Rampravesh Singh. He has further recorded statement of witness Jugal Kishor Mandal. He has proved formal FIR which is in writing of ASI Rampravesh Singh and whereupon his signature was also there, which has been marked as Exhibit 7. In his cross-examination he has stated that it is not fact that he has not recorded the correct statement of Pankaj Mandal, Basudeo Mandal and Renu Devi and denied that accused was not arrested at police station and it is not fact that accused has not stated before him that he has killed deceased as he had bad eye of his wife. He has further stated in his deposition that seized article is not present in the Court. 18. It appears from the impugned judgment that the learned trial Court has based the conviction by considering the testimonies of PWs. 1, 2 and 4 therefore, this Court is required to consider as to whether the testimonies of PWs. 1, 2 and 4 are reliable or not so as to judgment of conviction and order of sentence could have been passed against the appellants. 19. This Court, in order to assess the said issue is scrutinizing the testimonies of PW-1, PW-2 and PW-4, who are allegedly eye witness to the occurrence so as to come to the conclusion as to whether these witnesses are trustworthy or not? 20. 19. This Court, in order to assess the said issue is scrutinizing the testimonies of PW-1, PW-2 and PW-4, who are allegedly eye witness to the occurrence so as to come to the conclusion as to whether these witnesses are trustworthy or not? 20. So far PW-1 is concerned, it is admitted fact that PW-1 has deposed for the first time about the occurrence before the trial court and no statement of this witness has ever been recorded by the prosecution agency under Section 161 Cr.P.C. and in such scenario the Court ought not to put full reliance upon his deposition because the statement as recorded under section 161 Cr.P.C. and 164 Cr.P.C. is to be taken so as to contradict or corroborate the deposition as given by the witness before the trial Court. In absence of such statement the opportunity to contradict the deposition is not available to the accused. Reliability on such type of deposition requires corroboration from the testimonies of other witnesses and evidence available on record. 21. Furthermore, no reason has been assigned by the prosecution that why statement of this witness was not taken under Section 161 Cr.P.C. and for the first he has come to Court to depose against the accused persons. 22. It is settled proposition of law that in case the witness does not involve a particular accused in a crime at the time of recording his statement under Section 161 Cr.P.C. and produce him for the first time the depose in the court, the accused becomes entitled to get the benefit of doubt. 23. This Court while scrutinizing the deposition of PW-2 (son of the deceased) has found that there are vital contradictions in between his examination-in-chief and cross-examination, since in examination-in-chief it has been stated by him that he had seen the commission of crime of inflicting knife injury by the appellant Pappu over the body part of his father (the deceased) and he had further deposed that he had also witnessed that wife of Pappu was assaulting his father with brick and his father was crying for help upon which they ran to save him but the accused persons chased them so he flew to his house but in the cross-examination, he had deposed to the contrary what he has stated in examination-in-chief and deposed that on the alleged date and time of occurrence he was in DAV school. 24. This Court, on the basis of the analysis of the testimony, as in examination-in-chief and in cross-examination, is of the view that the PW-2 cannot be said to be eye witness since he made contradictory statement in the cross-examination and hence, whatever has been deposed by him in the examination-in-chief cannot be said to be trustworthy and his deposition cannot be taken to convict the appellant as his presence of place of occurrence is doubtful as per his statement made in cross-examination. 25. It appears from perusal of the testimonies of the witnesses that instant case was instituted on the basis of written report of Renu Devi (PW-4) stating therein that her husband Gulab Mandal (deceased) was running a business of brick with Pappu Das. In business Rs. 30,000/- became due on Pappu Das and when the said amount was demanded, Pappu used to threaten to kill them. On 24.6.2010 at about 7.00 A.M. her husband was called for by Pappu Das and Maksudan Gupta but when after some time her husband did not return she along with her Dever Manoj Mandal and son Pankaj Mandal went to search him towards Lakhari village and when they reached near Bhatta, they saw that Pappu Das was inflicting knife blow in abdomen of her husband and his wife was assaulting with brick and stone upon which she cried but the accused persons chased them with intention to attack them however the informant succeeded to flee from there to her house. 26. It further appears from the testimony of informant (PW-4) that written report was handed over to police at the place of occurrence when the police came to village whereas Manoj Mandal (PW-1) and Pankaj Mandal (PW-2) have deposed that they went to police station and handed over written report to the police and further PW-6/Investing Officer of the case has deposed that when they returned from place of occurrence to police station he saw the informant at police station and written report was handed over to him upon which FIR has been registered. 27. Therefore, by taking into consideration the testimony of informant (PW-4) in entirety, we are of the view that the PW-4 cannot be said to be a reliable or trustworthy witness as her testimony is full of contradictions. 28. 27. Therefore, by taking into consideration the testimony of informant (PW-4) in entirety, we are of the view that the PW-4 cannot be said to be a reliable or trustworthy witness as her testimony is full of contradictions. 28. Thus, in entirety of facts it is evident that there are contradictions among the testimonies of witnesses which create serious doubts over the prosecution case and it does not inspire confidence in the mind of this Court. 29. Now coming to the impugned judgment of conviction and order of sentence, it appears from the impugned judgment that on the basis of testimony of PW-1, 2 and 4, who have been considered to be an eye-witness having said to be corroborated by the testimony of the PW-5, the judgment of conviction has been passed. 30. The law is well settled that on the basis of testimony of witnesses, if it is trustworthy, the conviction can be there. But the trustworthiness of the said testimony is the requirement for its consideration in order to come to the conclusion that the testimony of such witness can be said to be trustworthy. 31. Here, PW-2 had deposed in examination-in-chief that he had seen the commission of crime and as such, based upon the said testimony, as recorded in examination-in-chief, the learned trial Court has considered the PW-2 as an eye witness. But the learned trial Court has failed to consider the deposition which has been recorded in his cross-examination, wherein, he has deposed contrary to the statement made in his examination-in-chief and deposed that at the time and date of occurrence he was in his school. Furthermore, there is no reason assigned by the learned trial Court that it did not consider the statement of PW-2 made in his cross-examination. 32. Therefore, according to our considered view, the testimony of PW-2 cannot be said to be trustworthy and reliable witness for convicting the accused persons. If the testimony of PW-2 itself has been held to be untrustworthy, then there is no question of its corroboration from the testimony of other witnesses. 33. Thus, from the discussion made hereinabove it is evident that the informant PW-2 cannot be construed to be eye-witness. 34. If the testimony of PW-2 itself has been held to be untrustworthy, then there is no question of its corroboration from the testimony of other witnesses. 33. Thus, from the discussion made hereinabove it is evident that the informant PW-2 cannot be construed to be eye-witness. 34. Further PW-1 who is another alleged eye witness, also cannot be termed as a fully reliable witness as PW-1 for the first time has deposed before this Court and no statement under Section 161 Cr.P.C. has been recorded by the police, therefore, on his testimony the charge cannot be said to be proved beyond all reasonable doubt. 35. Further, so far as testimony of PW-4 (informant) is concerned he is inconsistent in his testimony and there are vital contradictions in her testimony as she has deposed that written report was handed over to police at place of occurrence when the police came to village whereas Pankaj Mandal (PW-2) and Manoj Mandal (PW-1) have deposed that they went to police station and handed over written report to the police and further PW-6/Investing Officer of the case has deposed that when they returned from place of occurrence to police station he saw the informant at police station and written report was handed over to him upon which FIR has been registered. Therefore, the trustworthiness of testimony of PW-4 (informant) is at question. Furthermore, she in her deposition has stated that she along her son (PW-2) and PW-1 went to search her husband and found that the accused-Pappu was stabbing her husband but PW-2 in specific term in his cross-examination has stated that at the time of occurrence he was in DAV School. 36. However, it is settled connotation of law that the minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt. 37. 37. Reference in this regard may be taken from the judgment as rendered by the Hon’ble Apex Court in the case of Krishnegowda vs. State of Karnataka, (2017) 13 SCC 98 , wherein at paragraph-32 and 33 it has been held as under: “32...........The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt. 33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham “witnesses are the eyes and ears of justice.......” 38. Further, it is the settled proposition of law that if from the result of cross-examination of prosecution witnesses, accused could establish the probability of his defence and if probability was established by accused, it would entitle him to the benefit of doubt. 39. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Bhikam Saran vs. State of U.P. (1953) 2 SCC 560, wherein, at paragraph-16, it has been held as under: “16. It is significant to observe that the appellant led no evidence in defence but merely relied upon the evidence of the prosecution witnesses in order to establish his defence. He had not to affirmatively establish his defence in the manner in which the prosecution had to establish its case. If as the result of his cross-examination of the prosecution witnesses, he could establish the probability of his defence it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability would prevent the prosecution case being established beyond reasonable doubt.” 40. Herein, PW-2 though in his examination-in-chief has deposed that he saw the incidence but in cross-examination he in unequivocal term has deposed that at the time of incidence he was in school. 41. Herein, PW-2 though in his examination-in-chief has deposed that he saw the incidence but in cross-examination he in unequivocal term has deposed that at the time of incidence he was in school. 41. Therefore, on the principle as enunciated by Hon’ble Apex Court in the case of Bhikam Saran (supra), the accused persons are entitled to get the benefit of doubt but the learned trial Court did not consider the testimony of PW-2 as made by him in his cross-examination. Therefore, on this count also the impugned judgment of conviction requires interference by this Court. 42. From perusal of record, it appears that although the Investigating Officer has supported the prosecution version and has deposed that he had seized the blood stain knife from the place of occurrence and blood stains cloth of appellant Pappu Das and the seizure list was prepared but the aforesaid article has never been produced before the trial court. 43. Thus, the prosecution can be said to have miserably failed in proving the charge by not sending the weapon of the crime before the trial Court as also the said weapon has not been sent before the Forensic Science Laboratory for its examination. 44. Since the facts like non-production of crime weapon, and blood stain cloth of the appellant before the trial court amounts to vital omission from the prosecution side as such it will not be safe to curtail the liberty of accused persons in the absence of cogent evidence. 45. Further, it is settled position of law that in the criminal trial, unless the prosecution establishes the guilt of the accused beyond reasonable doubt the accused cannot be convicted and a criminal Court cannot afford to deprive lifelong liberty of the appellants without having at least a reasonable level of certainty that the appellant was the real culprit. 46. The Hon’ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh and Others vs. State of U.P. (2000) 3 SCC 454 , wherein, at paragraph-22, it has been held 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. 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.” 47. Likewise, the Hon’ble Apex Court in the case of Krishnegowda and Others vs. State of Karnataka (Supra) has held at paragraph-26 as under: “26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt.” 48. So far conduct of the appellants is concerned, it has been contended on behalf of appellants that it is not believable that the informant, her Devar (brother of the deceased) and son would be frightened on seeing the knife used by the accused Pappu Das and returned to their home on being chased by accused persons and even while returning from the place of occurrence the informant and his family members, who are none other than the wife, son and brother of the deceased did not raise the alarm, as such from the conduct of the informant and her family it can be inferred that prosecution story is doubtful. 49. 49. This Court in order to consider the aforesaid submission deems it proper to revisit the testimonies of the PW-1, PW-2 and PW-4. In their testimonies PW-1, PW-2 and PW-4 have stated that they ran away from the place of occurrence when they were chased by the appellants leaving the deceased on the place of occurrence and did not raise alarm there and did not take steps to save the deceased. 50. The Hon’ble Apex Court in Lahu Kamlakar Patil vs. State of Maharashtra, (2013) 6 SCC 417 has observed that witnesses to certain crimes may run away from the scene and may also leave the place due to fear but Court has to keep in mind that different witnesses react differently under different situations. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accordance with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded. The relevant paragraph of the aforesaid Judgment is being quoted herein under: “26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded.” 51. This Court from close scrutiny of testimony of alleged eye witnesses has found that in the instant case the conduct of the informant and his family members was not natural at the time of witnessing the said crime. This Court from close scrutiny of testimony of alleged eye witnesses has found that in the instant case the conduct of the informant and his family members was not natural at the time of witnessing the said crime. Further it is evident from the record that PW-1, PW-2 and PW-4 happens to be the closest member of the deceased and in such scenario it is not acceptable on their behalf that they ought not have tried to save the deceased. 52. Further as per their testimonies it appears that in the way from the place of occurrence to house, they have stated nothing to any one or they have not raised the alarm, as such in this context their testimonies appear to be doubtful and dent the case of the prosecution. 53. This Court, on appreciation of the testimony of PW-1, PW-2 and PW-4, has come to the conclusion that the testimony of PW-2, cannot be considered to be an eye witness and the testimony of PW-1 and PW-4 are not reliable and trustworthy but the learned trial Court has based the conviction by considering the testimony of PW-1, PW-2 and PW-4, hence, the impugned judgment of conviction, according to our considered view, cannot be said to be justified. 54. We, on the entirety of the facts and circumstances and as per the discussion made hereinabove, are of the view that the impugned judgment of conviction/sentence, needs to be interfered with. 55. Accordingly, the judgment of conviction dated 20.04.2015 and order of sentence dated 21.04.2015 passed by the learned District and Additional Sessions Judge-V, Giridih in Sessions Trial Case No. 375 of 2010, are hereby quashed and set aside. 56. In the result, the instant appeal stands allowed. 57. In consequence thereof, the appellant no. 1 namely Pappu Rabidas @ Pappu Das is discharged from his criminal liability and directed to be released forthwith from judicial custody in connection with S.T. No. 375 of 2010, if not required in any other cases. The appellant no. 2 namely Bandhni Devi @ Budhni Devi is also discharged from her criminal liability since she is already on bail therefore no separate direction is required to be passed for her release. 58. Let this order/judgment be communicated forthwith to the Court concerned along with the Lower Court Records. I Agree - Navneet Kumar, J.