JUDGMENT : (Sujit Narayan Prasad, J.) The instant appeal is against the judgment and order of acquittal dated 28.07.2012 passed by the learned District and Additional Sessions Judge-II, Giridih in S.T. No.412/04 arising out of Bengabad P.S. Case No.58/04 corresponding to G.R. No.1165/04, whereby and whereunder, the respondent nos.2 and 3, namely, Manoj Paswan and Naresh Paswan respectively have been acquitted of the charge under Section 302/34 of the Indian Penal Code. 2. The prosecution version, as per the first information report reads as under:- As per the fardbeyan of Badri Turi recorded by the then S.I. cum officer-in-charge of Bengabad Police Station on 08.07.2004 at about 11:00 a.m. at Fulwatand Near Railway bridge no.26 that his second son Ramgobind Turi, aged about 22 years had been working in the State of Kerala for two years and on 05.07.2004, Ramgobind Turi had made a telephonic information that he would arrive at this home on 08.07.2004 at about 7:00 a.m. One Satya Narayan Singh, son of Ishwari Singh, had informed his co-villagers that in the night on 07.07.2004 at about 10:00 p.m. while he himself along with his maternal brothers, Nakul Singh and Ramgobind Turi (deceased) were on the way from Madhupur to Maheshmunda Station and thereafter they started to move their house. Meanwhile, near Fulwatand, light of torch came towards them with some unnatural sound then he and his maternal brother Nakul Singh managed to escape leaving behind Ramgobind Turi there. In the night, when Ramgobind Turi could not reach his house, then a suspicion arose and the informant along with his family members proceeded to search out for his son near Fulwatand, they saw the dead body of his son near Karaunj tree on village road near railway station on Madhupur-Sijuwa village. The neck of his son was found deeply cut from left side with a sharp cutting weapon alongwith some injuries of sharp cutting weapon on left shoulder. Sign of some barood (explosive substance) on his chest and rexin made black bag containing articles of him was found lying there on the ground. It has further been alleged in the fardbeyan that he had some land dispute with his co-villagers Ramnath Rai whose son Murari Rai and Bhola rai had threatened the labours while the labours were engaged in digging earth on the land and they had warned them. It has further been alleged in the fardbeyan that he had some land dispute with his co-villagers Ramnath Rai whose son Murari Rai and Bhola rai had threatened the labours while the labours were engaged in digging earth on the land and they had warned them. On 07.07.2004, when his brother Naresh Turi was coming from Madhupur, near Maheshmunda pool no.26, the said Ramnath Rai told him regarding measurement of land. Therefore, he has full suspicion upon Ramnath Rai, Murari Rai and Bhola Rai for committing murder of his son as the information about arrival of his son was well within the knowledge of Ramnath Rai. Thereafter, the FIR was lodged in the name of Ramnath Rai, Murari and Bhola Rai under Section 302/34 of the IPC. The investigation started and after due investigation, the charge sheet was submitted and the cognizance has been taken and the charges were framed against respondent no.2 (Manoj Paswan) and respondent no. 3 (Naresh Paswan) and they have pleaded not guilty, thereafter, the trial has commenced. The prosecution has examined altogether 11 witnesses. P.W.1, namely, Jahir Mian happens to be hearsay cum post eye witness of the incident. P.W.2, namely, Naresh Turi, is uncle of the deceased cum eye witness of pre-situations of the incident. P.W.3, namely, Ganesh Turi, is the brother of the deceased. P.W.4, namely, Pitambar Yadav, is the hearsay cum post eye witness of the incident. P.W.5, namely, Jitan Mahto, and P.W.6, namely, Gopal Yadav are also the hearsay witnesses. P.W.7, the Doctor, namely, Vishwanath Das, the then M.O. Sadar Hospital Giridih had conducted the post mortem of the dead body of Ramgobind Turi. P.W.8, namely, Satya Narain Singh is the eye witness of the incident. P.W.9, namely, Suman Giri Nag, is the Investigating Officer of the case who has partly investigated the case and submitted the charge sheet. P.W.10, namely, Ramesh Kumar Singh, is also Police Officer and O/C of Bengabad Police Station, who had investigated the case at its preliminary stage. P.W.11, namely, Badri Turi, is the father of deceased and informant himself. 3. The learned trial Court while passing the judgment of acquittal has considered the testimony of the informant, i.e., P.W.11, testimony of eye witness, i.e., P.W.8, namely, Satya Narain Singh, the Doctor, i.e., P.W.7 and the Investigating Officer, i.e., P.W.9. P.W.11, namely, Badri Turi, is the father of deceased and informant himself. 3. The learned trial Court while passing the judgment of acquittal has considered the testimony of the informant, i.e., P.W.11, testimony of eye witness, i.e., P.W.8, namely, Satya Narain Singh, the Doctor, i.e., P.W.7 and the Investigating Officer, i.e., P.W.9. The learned trial Court while discussing the testimonies, has taken into consideration the version of the informant, basis upon which, the first information report was recorded by disclosing the name of Ramnath Rai, his son Murari Rai and Bhola Rai by making disclosure of their involvement in the commission of said crime due to previous land dispute. The learned trial Court has considered the statement of the informant recorded under Section 161 of the Cr.P.C., wherein, the name of the Ramnath Rai, his son Murari Rai and Bhola Rai have been reiterated but P.W.11, the informant, in his testimony has not taken the name of Ramnath Rai, his son Murari Rai and Bhola Rai, rather, the names of Ratan Paswan, Raju Paswan, Naresh Paswan (respondent no.2 herein), Manoj Paswan (respondent no.1 herein) and Nepal Paswan have been taken by taking the specific stand therein of their involvement in the commission of crime. The learned trial Court has also considered the testimony of P.W.8, namely, Satya Narain Singh, who according to the prosecution is an eye witness. But his testimony has been disbelieved, due to the reason that he has disclosed the name of the respondents for the first time before the Court. The learned trial Court, basis upon the aforesaid consideration, has found the testimony of informant to be in contradiction with that of the testimony of P.W.8, who is an eye witness and as such, has found the prosecution version not to be proved beyond all shadow of doubts resulting in acquittal of respondent nos.2 and 3 herein, which is the subject matter of the instant appeal. 4. Mr. Sudhir Kumar Roy, learned counsel appearing for the appellant has submitted that the learned trial Court has failed to appreciate the fact that the informant although has not disclosed the name of the respondents at the time of institution of the FIR, since, the FIR was instituted on the basis of suspicion, but subsequent thereto, when the fact was corroborated from Satya Narain Singh, P.W.8, the name of these respondents have been surfaced. Further contention has been raised that P.W.8, Satya Narain Singh, since was an eye witness to the occurrence and has disclosed the name of the respondents and as such, there is no reason to disbelieve his version but his version has been disbelieved on the ground of having contradiction in between the testimony of this witness and P.W.11, which according to the learned counsel for the appellant, cannot be said to be proper, since, the name which has been disclosed subsequent to the disclosure of the name of the accused persons referred in the FIR does not mean that the disclosure of the name of these respondents if made by P.W.8, who happens to be an eye witness, the same will be discarded. Learned counsel for the appellant, on the basis of the aforesaid ground has submitted that the impugned judgment of acquittal suffers from irregularities and as such, the same is not sustainable in the eye of law. 5. Per Contra, Mr. Sanjay Kumar Srivastava, learned A.P.P. appearing for the State has defended the impugned judgment by making reference of finding recorded at paragraph-10 of the impugned judgment, wherein, the learned trial Court has come to the conclusion of the fact that the prosecution has failed to prove the guilt beyond all shadow of doubts in view of the fact that the P.W.11, who is the informant of this case, has disclosed the name of the respondents first time before the trial Court in his testimony. Subsequently, P.W.8 has disclosed the name of the respondents by taking their name for the first time in the Court and the learned trial Court if has taken the aforesaid fact into consideration while passing the judgment of acquittal, the same cannot be said to suffer from an error. 6. We have heard the learned counsel for the parties, perused the documents available on record with other relevant documents available in lower court record as also considered the finding recorded by the learned trial Court in the impugned judgment. 7. The prosecution version as per the narration given by P.W.11, the informant, has disclosed the name of Ramnath Rai, his son Murari Rai and Bhola Rai as would appear from bare perusal of the fardbeyan marked as exhibit-3. 7. The prosecution version as per the narration given by P.W.11, the informant, has disclosed the name of Ramnath Rai, his son Murari Rai and Bhola Rai as would appear from bare perusal of the fardbeyan marked as exhibit-3. The reason of commission of crime of murder of the son of the informant, according to the informant was previous land dispute with Ramnath Rai, his son Murari Rai and Bhola Rai. The prosecution, although, has examined altogether 11 witnesses. However, P.W.1, P.W.4, P.W.5 and P.W.6 are hearsay witnesses. The learned trial Court has considered the testimony of P.W.8 and P.W.11. P.W.8, namely, Satya Narain Singh is an eye witness and P.W.11, namely, Badri Turi is the informant. It appears after going through the testimony of P.W.11 that he although, has disclosed the name of Ramnath Rai, his son Murari Rai and Bhola Rai, basis upon which, they have been named in the FIR as accused persons. Further, it appears from the testimony of P.W.11 so recorded as under paragraph no.1 that he has disclosed that after knowing about the commission of occurrence, he immediately rushed to the house of the Satya Narain Singh, P.W.8 in order to know about the whereabouts of his son. It has been stated that P.W.8 has disclosed that when he was returning along with one Nakul Singh from Deoghar and when he reached to Madhupur, he had met with Ramgobind, the deceased at about 10:00 p.m. in the night and they reached at Maheshmunda and when they proceeded towards their house, immediately thereafter, the Manoj Paswan had assaulted the deceased with bomb due to which the deceased fell down and thereafter, the Naresh Paswan had assaulted him and Raju Paswan cut his neck. He has disclosed in his cross-examination at paragraph-4 and 5 thereof that it is incorrect that he has disclosed the name of Ramnath Rai, Murari Rai and Bhola Rai having with some land dispute. He has further stated at paragraph-6 that he had first inquired about whereabouts of his son from Satya Narain Singh, P.W.8 and thereafter has sent his brother, namely, Naresh Turi to the Police Station. P.W.11, on the question being put by the Court that he has disclosed about the assault with bomb but the same has been denied by stating that no such statement was given. 8. P.W.11, on the question being put by the Court that he has disclosed about the assault with bomb but the same has been denied by stating that no such statement was given. 8. This Court has gone through the postmortem report conducted by the Doctor, P.W.7 and found therefrom the following external injuries:- “(i) Incised wound 8” x 1/2” on left shoulder. (ii) Incised wound 2” x 1/2 below the injury no.(i). (iii) Incised wound 1” x 1/2 on upper portion of left arm. (iv) Incised wound 6” x 1/2 below left ear. (v) Extensive incised wound on left side of neck along with soft tissues, major vessels Larynx, trachea, oesophagus and cervical vertebra at the level of C/3 and C/4. However the soft tissues and skin of the right side of neck was intact and connecting the skull with the trunck in anatomical continuity. (vi) Amputated incised wound at the digital part of the right little finger. (vii) Incised wound 2” x ¼” posteriorly over right hand middle finger. (viii) Incised wound 1 ½” x 1/4” on lateral aspect of right hand.” It appears from the injury found on the body of the deceased that there were different incised wound as also superficial burn injury over left side upper portion of the body. The smell of explosive substance was also coming out. The cause of death was due to hemorrhage lead to shock due to injuries mentioned in the post mortem report. It, thus, appears that the very basis of the FIR instituted by the informant, P.W.11, are against the Ramnath Rai, his son Murari Rai and Bhola Rai. However, he has given complete different picture in course of recording his statement, wherein, it would be evident from paragraph-4 and 5 of the testimony of P.W.11 that he has denied to have said the involvement of Ramnath Rai, his son Murari Rai and Bhola Rai. It further appears from the testimony of P.W.11 that he has deposed that in order to know about whereabouts of his son, he immediately rushed to the house of P.W.8 where he came to know about the name of the respondent nos.2 and 3 herein. It further appears from the testimony of P.W.11 that he has deposed that in order to know about whereabouts of his son, he immediately rushed to the house of P.W.8 where he came to know about the name of the respondent nos.2 and 3 herein. The learned trial Court has disbelieved the aforesaid version on the basis of the fact that the names which were disclosed by the informant of Ramnath Rai, his son Murari Rai and Bhola Rai is completely contradictory by giving the disclosure of new names of Naresh Paswan and Manoj Paswan (respondents herein) and the basis of giving the names of the respondents concerned herein on the basis of the disclosure so made by Satya Narain Singh, P.W.8. 9. The question herein arises that when it is the version of P.W.11, the informant that he immediately has rushed to the house of P.W.8 in order to know about the whereabouts of his son and when he has been informed about the involvement of respondents in commission of crime by giving bomb injury by one Manoj Paswan and cut injury over the neck of the deceased by Naresh Paswan, then why the name of Naresh Paswan and Manoj Paswan have not been disclosed in the FIR instead of the names of Ramnath Rai, Murari Rai and Bhola Rai. 10. The learned trial Court after taking into consideration such vital contradiction in the version of P.W.11, the informant, having not in consistent with so called eye witness, i.e., P.W.8 by taking together the statement so recorded by the informant under Section 161 of the Cr.P.C. has come to the conclusion that the prosecution has failed to establish the charge beyond all shadow of doubts. 11. The law is well settled that the conviction is to be based upon the guilt if found to be proved beyond all shadow of doubts, as has been held by the Hon’ble Apex Court in the case of Himachal Pradesh Administration vs. Shri Om Prakash reported in (1972) 1 SCC 249 , wherein at paragraph 7, it has been held, which reads as under : “7. While it is not the function of this Court to determine who other than the person who has been charged with the murder had committed it, the line which the defence adopted was to establish that the witnesses referred to above had an interest in implicating the accused or at any rate to create uncertainty and doubt sufficient to give the benefit to the accused. It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a court is generally due to the nature and quality of that evidence. It may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy-though unwittingly it may be-or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is “not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism”. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. It is for this reason the phrase has been criticised. Lord Goddard, C.J., in Rox v. Kritz, [1950 (1) KB 82 at 90] said that when in explaining to the juries what the prosecution has to establish a Judge begins to use the words “reasonable doubt” and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language. “It is the duty of the prosecution to satisfy you of the prisoner's guilt”. What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt. This then is the approach.” Likewise, in the case of Rang Bahadur Singh & Ors. vs. State of U.P. reported in (2000) 3 SCC 454 , the Hon’ble Apex Court at paragraph 22 has 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. 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. 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.” The law is also settled that the minor contradiction in the testimony does not vitiate the prosecution story but the contradiction is to be tested on the basis of the fact governing the case, as has been held by the Hon’ble Apex Court in the case of Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan, reported in (2013) 5 SCC 722 , wherein, at paragraph 45, it has been held as under : “45. In Subhash v. State of Haryana [ (2011) 2 SCC 715 ] this Court has held that a significant omission in the statement of a witness recorded under Section 161 CrPC may amount to a major contradiction. However, it may depend upon the facts of case and in case of a material contradiction the accused becomes entitled for benefit of doubt and thus acquittal.” Likewise, in the case of Hardeep v. State of Haryana & Anr., reported in (2002) 7 SCC 11 , the Hon’ble Apex Court at paragraph 15 has held as under : “15. …. …. ….It is true, as observed by the trial court, every contradiction or discrepancy may not necessarily be fatal to the prosecution case but it all depends on the facts and circumstances of the case, such discrepancies and contradictions have to be seen in the background of probabilities of the prosecution story and veracity of the prosecution witnesses…. …. ….” Further, in the case of S. Govindaraju v. State of Karnataka, reported in (2013) 15 SCC 315 , the Hon’ble Apex Court at paragraph 23 has held as under : “23. It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt.” 12. Herein, the informant, P.W.11 himself has taken contradictory stand by not supporting his version as was recorded by him by disclosing the name of Ramnath Rai, his son Murari Rai and Bhola Rai and subsequently taking the name of the respondents on the disclosure being made by P.W.8, that cannot be said to be minor contradiction in nature and if in that circumstances, the learned trial Court has come to the conclusion that the prosecution has failed to prove the charge beyond all shadow of doubts, which according to our considered view, cannot be said to suffer from an error. 13. In the result, the instant appeal fails and is dismissed. 14. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.