ADITYA KUMAR TRIVEDI, J.

Sole appellant, Nathufal, who has been found guilty for an offence punishable under Section 302 of the I.P.C. and sentenced to undergo life imprisonment vide judgment of conviction dated 23.12.2010 and order of sentence dated 24.12.2010 by the Additional Sessions Judge, Fast Track Court-6, Purnea in Sessions Trial No. 1017 of 2007/105 of 2009 challenged the same under present appeal.

2. Perwez Alam (PW-5) aged about 12 years, who happens to be son of the appellant had recorded his fard-beyan on 19.08.2007 at about 7.50 a.m. at his house alleging inter alia that in the preceding night he slept with his younger brother Maskur Alam. PW-6 aged about 7 years in his room having east front, his father, mother along with younger sister slept in western room. At about 3.00 a.m., he awoke hearing cry of his mother coming from western room whereupon he rushed and then, saw his father Nuthfal, who was armed with Dabiya and was assaulting his mother. His mother was lying on the ground. His father had struck on neck, hand by Dabiya and caused her death. Soon thereof, he also inflicted injury on his own head by Dabiya and fell down. Blood was oozing out. He began to raise alarm over which neighbours came and have seen the occurrence. He along with neighbours perceived both of them dead. In morning, while both of them were being taken out, his father was found alive, whereupon villagers took him to Purnea for treatment. It has also been disclosed that no quarrel had happened amongst the father and mother.

3. On the basis of the aforesaid fard-beyan Kasba P.S. Case No.223 of 2007 was registered under Section 302 of the I.P.C. However, Section 309 of the I.P.C. was also added later on the prayer having been made by the I.O. during course of investigation. After completing investigation, charge-sheet was submitted and the offences having been triable by the Court of Sessions, committed to the Court of Sessions where trial commenced and concluded with the result, subject matter of instant appeal.

4. The defence case as is evident from mode of cross-examination as well as statement having been recorded under Section 313 of the Cr.P.C. is of complete denial. It is also apparent there from that a theme of infidelity of wife has been advanced and further, in the aforesaid background unknown persons committed murder of deceased as well as also caused murderous assault over the appellant. However, neither DW nor any kind of document has been produced at his end.

5. It has been submitted on behalf of learned Amicus Curiae that prosecution case suffers from severe infirmities whereupon the judgment of conviction and sentence recorded by the learned lower Court happens to be impermissible. To substantiate such plea, it has been submitted that from the evidence of I.O., PW-14, it is apparent that he was properly informed regarding the occurrence and on account thereof, instead of registering Sanha, F.I.R. should have been registered. Furthermore, it has been submitted that present F.I.R. is hit by Section 162 of the Cr.P.C. in the background of the fact that just after reaching at the place of occurrence, the I.O. instead of recording fard-bayan of PW-5, proceeded with investigation whereunder prepared inquest report and sent the dead body for post mortem. Preparation of inquest report is an event of investigation, whereupon admissibility of present F.I.R. as F.I.R. in terms of Section 154 of the Cr.P.C. loses its sanctity. Consequent thereupon, this case becomes headless on account of absence of F.I.R. and further, the aforesaid deficiency is bound to affect upon legality of the prosecution case.

6. It has further been submitted that neither fard-beyan nor the evidence of PW-5 as well as PW-6 happens to be appreciable in the background of their tender age and further, prone to tutory. The enemies of the appellant might have overpowered the PW-5 as well as PW-6 whereupon this case has purposely been filed with an allegation and