ORDER : Shree Chandrashekhar, J. I.A No. 200 of 2020 This interlocutory application has been filed seeking leave to appeal against the impugned judgment of acquittal. In view of proviso to section 372 of the Code of Criminal Procedure, I.A No. 200 of 2020 stands allowed. Criminal Appeal (V) No. 01 of 2020 Tulsi Oraon who is the father of Veer Oraon has challenged the judgment dated 26th November 2019 in S.T Case No. 39 of 2018 passed by the Additional Sessions Judge-II, Lohardaga. 2. On the basis of a written report submitted by Tulsi Oraon to the officer-in-charge of Senha PS, Senha PS Case No. 01 of 2018 was registered on 4th January 2018 against the respondent no.2 under sections 323, 324 and 307 of the Indian Penal Code. 3. In S.T Case No. 39 of 2018, Shilash Oraon has faced the trial for causing grievous hurt and attempt to murder Veer Oraon. Out of 10 witnesses who were examined during the trial, PW2 Sukra Oraon, PW3 Jagatpal Oraon, PW4 Laxman Oraon have been projected by the prosecution as eyewitness. Whereas, PW1 Nageshwar Bhagat (Oraon) and PW6 Naresh Oraon are the hearsay witnesses who have admitted in the Court that they have not seen the occurrence. 4. As PW5, Tulsi Oraon has deposed in the Court that Shilash Oraon had attempted murderous assaults on his son. He is not an eyewitness and his testimony is based on the story of the occurrence spoken to him by the other witnesses. According to the prosecution, Veer Oraon has suffered as many as seven injuries many of which were grievous in nature caused within 24 hours of his examination by PW7. 5. The trial judge has disbelieved presence of PW2 and PW3 at the place and time of the occurrence. The trial Judge has further held that the testimony of PW4 contains such exaggerations and improvements so as to render the prosecution story unbelievable. 6. The trial Judge has held as under : “18. Heard. Perused the evidence of prosecution witnesses and the document exhibited from the side of prosecution. The trial Judge has further held that the testimony of PW4 contains such exaggerations and improvements so as to render the prosecution story unbelievable. 6. The trial Judge has held as under : “18. Heard. Perused the evidence of prosecution witnesses and the document exhibited from the side of prosecution. So far the time, place and manner of occurrence is concern, it is evident from the evidence of PW8 who happens to injured in this case stated in his substantive piece of evidence that on 01.01.2018 at about 6:30 P.M when a new year celebration were going by young people with musical dance near the house of One Shankar Sahu where he was also attended at there and at that time accused Shilash Oraon being armed with katari (one kind of sharp cutting instrument) came at there and dealt him a katari blow 3-4 times for which he sustained injury on his right cheek below right eye, left palm below fingers and also sustained bleeding injury on his person and became unconscious. From the evidence of P.W5 (father of injured/informant), it is evident that incident was held on 01.01.2018 at night and at that time he was not present at the place of occurrence but came into the place of occurrence after receiving an information about the incident from one Ruben Oraon (not examined) and found his son Veer Oraon lying on the ground sustained with bleeding injury. From the evidence of P.W5 and also from the perusal of Ext-1, it is evident that he had informed the matter of incident about the incident to Senha P.S on 03.01.2018 (dated written in complaint was rewritted) and from the evidence of this witness, it is evident that during the course of treatment, injured was brought to Sadar Hospital, Lohardaga for treatment and thereafter for better treatment, injured was brought to Guru Nanak Hospital, Ranchi and this fact of sustaining injury by P.W.8 (Veer Oraon) though supported by other prosecution witnesses like P.W2, PW.3 and P.W4 but from the evidence of P.W.2 though it is evident that he was present at the place of occurrence and narrated manner of incident but from the evidence of this witness, it is evident that he never in his statement recorded by police U/s 161 Cr.P.C about his presence and narration of manner of incident and therefore the presence of P.W2 at the place of occurrence at the relevant of point of time is doubtful in nature and also improved/exaggerated story. Moreover from cross-examination of P.W.3, it is evident that he came to the place of occurrence after came to know the fact of incident held on 01.01.2018 from one Ruben Oraon and therefore P.W.3 is also not eye witness and also not present at the place of occurrence at the relevant point of time. From the evidence of P.W4 though it is evident that he was present at the place of occurrence on the relevant date of incident but the evidence of this witness is also an improved and exaggerated story as this fact was not stated by this witness before police during his statement U/s 161 Cr.P.C. Moreover from the evidence of P.W1, it is also clearly evident that he was not an eye witness of the incident. Moreover from the evidence of P.W7 and also from the perusal of Ext-2, it is evident that altogether seven injuries was present on the person of injured which are follows :-(i) lacerated wound 09 X 04 cm, dimension on the palmer aspect of left palm, (ii) lcerated would of 04 X 03 cm dimension on the palmer aspect of left thumb base, (iii) lacerated wound of 02 X 02 cm dimension on the dorsal aspect of left ring finger, (iv) lacerated wound of 05 X 05 cm dimension on the extension aspect of left forearm below elbow joint, (v) lacerated wound of 06 X 05 cm dimension on the left lower on third part of forearm, (vi) lacerated wound of 05 X 04 cm dimension on the extending from the root of nose upto right alae of nose was found during the course of examination of injured but from cross-examination of this witness, it is evident that all the injuries are caused by hard and blunt object and not found any sharp cutting injury during his examination and from the perusal of injury report which is marked as Ext-3 prepared by P.W.7 on 21.02.2018 but as per version of this witness, he examined the patient (P.W8) at Sadar Hospital, Lohardaga on 01.01.2018. On the other hand from the evidence of P.W9 and from the perusal of Ext-3, it is evident that P.W.8 (injured) was treated at Guru Nanak Hospital, Ranchi in between 01.01.2018 to 09.01.2018 and during examination found following injuries on the person of P.W8 which are such (i) Stitched lacerated wound right cheek extending from right ala of nose upto laterally over mandibular region about 3” long, (ii) Stitched lacerated wound over base of all fingers and thumb of left hand. (iii) On X-ray left hand, fracture of the distal part of the proximal phalanx of thumb was found and wounds were treated conservatively with appropriate medication and dressings and patient was discharge on 09.01.2018 proved the fact that patient was admitted at there for treatment. Moreover from the evidence of P.W10, it is evident that he has proved the place of occurrence which was situated at village Ekagori in a field near the house of One Shib Kumar Sahu on 01.01.2018 at about 6:30 P.M but from the perusal of formal FIR, it is evident that it was registered on 04.01.2018. Moreover from the evidence of P.W10, it is evident that he has proved the place of occurrence which was situated at village Ekagori in a field near the house of One Shib Kumar Sahu on 01.01.2018 at about 6:30 P.M but from the perusal of formal FIR, it is evident that it was registered on 04.01.2018. Moreover P.W10 in his cross-examination categorically stated that he had not recorded the statement of injured and other hand it is evident from Ext-3, injured (P.W8) was admitted in Guru Nanak Hospital, Ranchi in between 01.01.2018 to 09.01.2018 and it is also settled principle of law that lacuna on the part of investigation agencies will not fatal to the prosecution case. Moreover from the evidence of P.W5, it is evident that there is a delay of reporting the matter of incident of police and it is now settled principles of law that delay of lodging a case before police station is not fatal to the story of prosecution. ...” 7. Mr. Yogesh Modi, the learned counsel for the appellant would submit that the aforesaid findings by the trial Judge are not borne from the records of the case inasmuch as no answer was elicited from the investigating officer of this case to prove contradiction in the evidence of these witnesses. 8. We are not inclined to accept the aforesaid submission of Mr. Yogesh Modi, the learned counsel for the appellant. The truthfulness of a witness is tested in the Court not only with reference to his previous statement made before the investigating officer. There is a provision under section 155 of the Evidence Act which provides the manner in which credit of a witness may be impeached. This is also beyond the realm of any doubt that the statement made by a witness in the cross-examination is what is relevant for testing his credibility. 9. The initial case of the prosecution is that the respondent no.2 was carrying a katari (dragger) with which he has made murderous attacks on Veer Oraon. PW7 who had the first opportunity to clinically examine him has rendered an opinion that all injuries were lacerated and caused by hard and blunt substance. Normally minor variations in the medical evidence and the ocular evidence are not considered fatal for the prosecution provided it is established that the prosecution case oozes truth and possibility. PW7 who had the first opportunity to clinically examine him has rendered an opinion that all injuries were lacerated and caused by hard and blunt substance. Normally minor variations in the medical evidence and the ocular evidence are not considered fatal for the prosecution provided it is established that the prosecution case oozes truth and possibility. However, such a contradiction in the prosecution evidence which cannot reasonably be explained must go to the root of the prosecution story to render the same unreliable. In “Mohinder Singh v. The State” AIR 1953 SC 415 the Hon’ble Supreme Court has observed that it is elementary that where the prosecution has a definite or positive case, it must prove the whole of its case. The victim who was examined as PW8 has deposed in the Court that he could recognize the assailant in the music light. It was a New Year's celebration night where several persons had assembled and at that time the respondent no.2 is said to have assaulted him. We find that the prosecution story lacks credibility and has rightly been rejected by the trial Judge. This is of utmost importance in a criminal trial that identity of the accused is established by the prosecution by tendering clear, cogent and convincing evidence. However, there is serious doubt about the person who has made assaults upon Veer Oraon. This is highly improbable that in a gathering of several persons no one would have tried to intervene and save PW8. There is unexplained delay of 4 days in lodging a complaint to the police and this has not been explained by the prosecution why an information to the police was not promptly given by the persons, such as, PW2, PW3 and PW4 who have come to the witness box to say that they have seen the occurrence. This is also well-accepted a proposition in law that testimony of a witness is scrutinized keeping in mind the normal human probabilities and the benefit of doubt must go to the accused. 10. In “Lahu Kamlakar Patil v. State of Maharashtra” (2013) 6 SCC 417 the Hon’ble Supreme Court has observed as under : “26. ... 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. ... 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.” 11. In “Ghurey Lal v. State of U.P.” (2008) 10 SCC 450 the Hon’ble Supreme Court has observed as under : “31. …The burden of proving the charge to the hilt lies upon the prosecution. It has failed to discharge its burden. Thus, the benefit has to go to the accused. …” 12. Accordingly, Criminal Appeal (V) No. 01 of 2020 is dismissed.