JUDGMENT : P.K. Banerji, J. 1. Kumar Jibeshwar Singh aged 36 years (hereinafter referred to as the appellant or Kumar), the sole appellant, convicted in the case under Section 302, Indian Penal Code, for having committed the murder of Shree Kant Choudhary by intentionally or knowingly causing his death with rifle, on the 30th November, 1966, at the portico of the Trust Office, Rajnagar, P.S. Madhubani, District Darbhanga, and sentenced to life imprisonment, happens to be the son of late Raja Bahadur Bisheshwar Singh, younger brother of Mahrajadhiraj Sir Kameshwar Singh Bahadur of Darbhanga. The person killed, viz., Shree Kant Choudhary, aged about 60 years (hereinafter referred to as the deceased or S.K.C.), was an old employee of the Rajnagar Raj and was, at the relevant time, the manager of this estate. The appellant is the proprietor of Rajnagar Raj and lives in his residential house within the Rajnagar Raj compound (hereinafter referred to as the Raj compound), within Madhubani P.S. in the district of Darbhanga. For the management of temples etc., of the Rajnagar Raj, there is a Trust of which the appellant happens to be the trustee. Within the Raj compound, at a distance of about 150-175 yards north of the southern entrance gate of the Raj compound, there is a portico type arched gate through which there is a passage from south to north. This passage portion of the arch measures 19 ft. from south to north and 14 ft. 9 inches from east to west. On the western side of this portico is a room of the size 12' 10 east to west X 19' 19' north to south having one door in each of its four walls on the four sides. The eastern door in the eastern wall opens in the portico, the level of the floor of this door being only a few inches above the floor of the portico. There is another room on the eastern side of the portico, opposite this western room, with four doors on each side of the four walls. The Trust Office is held in these two rooms. The number of clerks employed in this office is seven or eight. There is another room on the eastern side of the portico, opposite this western room, with four doors on each side of the four walls. The Trust Office is held in these two rooms. The number of clerks employed in this office is seven or eight. At a distance of 150 yards north of the Trust Office, there is another similar arch-gate, a portico and about 50 yards north-west of this second portico is the residential house of the appellant known as Deorhi or Bara Kotha; and about 400 yds. north-east of the said residential house of the appellant and about 200 yds. north of the Trust Office is the residential quarters of Rajeshwar Jha, Pujari, who happens to be the father-in-law of the appellant. A bi-weekly Hat is held outside the Raj compound at a distance of about 600 yds. south-east of the Trust Office. This Hat is held on every Wednesday and Sunday. The public way from the Hat to the villages towards the north lies through the Raj compound and the said pathway entering through the southern entrance gate of the Raj compound trifurcates at a tri-junction, at a distance of fifteen laggas south of the Trust Office; one passage goes straight to the Trust Office, the other goes to the Durga temple situate at a distance of 20 yards east of the Trust Office and the third, passing along the eastern side of the Durga temple, proceeds north-west and goes out of the Raj compound through its northern gate. The Rajnagar Block Development Office (Block Office) is located at a distance of 200 yards south-west of the southern entrance gate of Raj compound in a portion of the outhouse of the Rajnagar Raj. By the side of the Block Development Office is the strong room or the armory of the Rajnagar Raj. 2. The prosecution case is that on the day of occurrence, which was a Wednesday and also a Hat day, at about 3 P.M., appellant Kumar Jibeshwar Singh wearing a Khaki woollen coat with fur collars, a woollen pant and black rubber gum-boots and carrying a rifle in his hand came from the northern side and entered into the western room of the Trust Office through its eastern door which alone (of the four doors of the room) was open at the time. There was nobody either in this room or in the room opposite. Shree Kant Choudhary had been away to Lakshmipur on that particular day along with the Block Development Officer, Shri A.K. Srivastava (P.W. 13), as he had to inspect some hard manual scheme at Lakshmipur. Shree Kant Choudhary was the Mukhia of Karahia Gram-Panchayat within which lies, village Lakshmipur. It is said that the B.D.O. dropping Shree Kant Choudhary at Lakshmipur at about 2 P.M., proceeded onwards on his jeep to Khajauli Block Development Office. It may be noted here that the village home of the deceased is Lakshmipur and at the relevant time his family members were staying in his village home and that deceased was staying alone with Bishundeo Mishra (P.W. 14), the informant of this case, who was an employee in the estate and living in the Raj Quarters allotted to him for his residence. It may further be noted that Shree Kant Choudhary happened to be the sister's husband of the informant Bishundeo Mishra (P.W. 14) and the sister of Shree Kant Choudhary was also married to Bishundeo Mishra. 3. The prosecution alleged in the case that before going to the Trust Office the appellant had sent his Pujari, Rabinath Thakur, to call Munna Singh, a sipahi of Rajnagar Raj, who was incharge of the armory and was also incharge of the other sipahis of the Raj. Munna Singh was living in the quarters of the Raj outside the Raj compound, at a distance of one hundred laggas north of the residential house of the appellant. It is said that at about 3 P.M. Rabinath Thakur came to the quarters of Munna Singh with the message that he was immediately wanted by the appellant. Munna Singh, Udit Deo, Tanik Lal Jadav and informant Bishundeo Mishra (P.W. 14), who were all Raj sipahis with night-guard duties of the Deorhi, were present at the time. On receipt of the message, Munna Singh at once left his quarters to meet the master, viz., the appellant. The other sipahis Udit Deo, Bishundeo Mishra and Tanik Lal Jadav, also followed Munna Singh, may be, out of curiosity. Another sipahi Rajdeo Jadav joined this party in the way. Coming to the Deorhi, they learnt that the appellant had gone to the Trust Office and they accordingly came to the Trust Office. The other sipahis Udit Deo, Bishundeo Mishra and Tanik Lal Jadav, also followed Munna Singh, may be, out of curiosity. Another sipahi Rajdeo Jadav joined this party in the way. Coming to the Deorhi, they learnt that the appellant had gone to the Trust Office and they accordingly came to the Trust Office. It is said that the above sipahis found the appellant inside the western room of the Trust Office tearing some papers with the bayonet of the rifle and the rifle itself had been placed on a chair inside the room, on the southern side of a table in front of the eastern door. 4. Munna Singh, the moment he presented himself before the appellant, was rebuked and was asked to move away and Munna stepped aside in the portico towards the south and the informant, Bishundeo Mishra, stood in the portico at its north-east corner. The other sipahis, Udit Deo, Tanik Lal Jadav and Rajdeo Jadav, were also there outside the portico at a little distance north of the informant, Bishundeo Mishra. Just then, at about 3-15 P.M., Shree Kant Choudhary reached the place on a cycle. He left the cycle resting against the wall of the Trust Office and went in front of the eastern door of the Trust Office, stood in the portico at a distance of 2 to 2 cubits east of the said door (facing the door) asked the appellant who was inside the said room tearing papers as to why he was tearing those papers, whereupon it is said, the appellant took up the rifle (Exhibit I) and standing inside towards the east of the table, in front of the eastern door of the room, fired at Shree Kant Choudhary who was standing in the portico outside the said room at a distance of 4 to 5 cubits from the appellant. The bullet hit Shree Kant Choudhary on the left side of the chest and the victim instantaneously fell down dead there at the spot in the portico with bleeding bullet injury. The appellant unloaded the rifle dropped the live and empty cartridges inside the western room and throwing the rifle at the door and keeping the bayonet (Exhibit II) on the chonkhat of the eastern door of the said room came out and hurriedly moved away north wards towards his residential house. The appellant unloaded the rifle dropped the live and empty cartridges inside the western room and throwing the rifle at the door and keeping the bayonet (Exhibit II) on the chonkhat of the eastern door of the said room came out and hurriedly moved away north wards towards his residential house. Finding Shree Kant Choudhary dead, Bishundeo Mishra (P.W. 14) took the cycle of the deceased kept resting against the wall and rushed to Rajnagar Block Development Office. The B.D.O. being away at the time, Bishundeo Mishra met the Head Clerk of the Block Office, Deveshwar Jha and reported to him that the appellant had shot Shree Kant Choudhary dead and requested him to inform the police and to do the needful. At the Block Office, he also met one Harishchandra Lal Das (P.W. 23), the Gram Sewak of Karahia Gram Panchayat of which Shree Kant Choudhary happened to be the Mukhia at the time, and told him that the Kumar had shot dead Shree Kant Babu. He then came to Rajnagar Government Hospital and reported the same fact to the doctor of the hospital. He also told this fact to one Harinarain Lal Das, Headmaster of Rajnagar High School. He then came to Rajnagar Sub-post Office and dispatched two telegrams (Exhibits 16 and 16/1) at 3-55 P.M. to that two sons of the deceased, one of whom Sri Rabindra Nath Choudhary (P.W. 1) was at the time working as lecturer at D.A.V. College, Siwan, and another Shri Upendra Nath Choudhary (P.W. 2) was Probation Officer posted at Monghyr at the time. The message sent was that Shree Kant Choudhary had been shot by the Kumar and they should come immediately. It appears that Deveshwar Jha, head clerk of the Block Office, immediately rang up Madhubani Police Station informing about the occurrence and an entry to that effect was duly made in the Station diary of the Police Station by writer constable Lallan Prasad Singh (P.W. 11) The Station diary entry (Exhibit 8) was made at 3-30 P.M. on the 30th November, 1966. The Deputy Superintendent of Police, Madhubani, as also the Sub-divisional Officer of Madhubani were also informed about this incident by Sub-Inspector Panna Lal Mehra (P.W. 27) who happened to be the Officer-in-charge of Madhubani P.S. at the time. The Deputy Superintendent of Police, Madhubani, as also the Sub-divisional Officer of Madhubani were also informed about this incident by Sub-Inspector Panna Lal Mehra (P.W. 27) who happened to be the Officer-in-charge of Madhubani P.S. at the time. The Police Officer (P.W. 27) accompanied by the Deputy Superintendent of Police Shri Jaibhadra Jha (C.W. 1), Shri Panna Lal, Magistrate (P.W. 16), and a section of the armed force and some constables left for Rajnagar on a jeep, the distance between the two places being about 10 or 11 miles. They arrived at the place of occurrence at about 4-45 P.M. that evening. Earlier, the B.D.O., Shri A.K. Srivastav (P.W. 13) had also arrived there. 5. The Police Officers and the Magistrates upon inspection of the place of occurrence found the dead body of Shree Kant Choudhary lying left sideways in a pool of blood on the floor of the portico outside the western room of the Trust Office at a distance of 3 ft. 6 inches east of the eastern door of the said western room with head towards the north and face towards the east. They also found the rifle (Exhibit I) resting against the wall outside the said western room just by the northern side of the eastern door and the bayonet (Exhibit II) of the rifle was found on the chaukhat of the said door. The inspection was made and recorded in presence of the Deputy Superintendent of Police (C.W. 1). The fardbeyan of Bishundeo Mishra (Exhibit 5/3) was recorded by the investigating officer (P.W. 27), Panna Lal Mehra, at the portico of the Trust Office, in presence of the Deputy Superintendent of Police and the Magistrates (P.Ws. 13 and 16). The eyewitnesses to the occurrence as mentioned in the fardbeyan were Munna Singh, Udit Deo, Tanik Lal Jadav, Rajdeo Jadav (the Sipahis of the Raj) besides the informant (P.W. 14) himself. P.W. 27 further examined Bishundeo Mishra and leaving the junior Sub-Inspector Dinesh Tewari (P.W. 24) and some constables at the Trust Office to keep watch on the place of occurrence came to the residence of the father-in-law of the appellant where he (the appellant) was said to be staying at the time. The investigating officer was accompanied by the Deputy Superintendent of Police (C.W. 1), the Block Development Officer (P.W. 13), Shri Panna Lall, Magistrate (P.W. 16) and a section of the armed force. The investigating officer was accompanied by the Deputy Superintendent of Police (C.W. 1), the Block Development Officer (P.W. 13), Shri Panna Lall, Magistrate (P.W. 16) and a section of the armed force. A mob had surrounded the house of Rajeshwar Jha. The Police Officer arrested the Kumar who had a dhoti and a bush shirt on his person at the time and examined him. The Kumar was thereafter brought by the party to his residential house and, in his presence, the Deorhi was searched at 6-30 P.M. The search was conducted by the investigating officer (P.W. 27) in presence of the B.D.O. (P.W. 13), Magistrate Panna Lal (P.W. 16), the D.S.P. (C.W. 1), Babu Jha (P.W. 10), an assistant headmaster of Rajnagar High School, one Sitaram Khandelwal and Surja Narain Singh, who acted as search witnesses. A woollen khaki coat with fur on its collars (Exhibit III), a woollen khaki Pant (Exhibit IV), a small revolver of .32 bore with bolster and pouch (Exhibit VI), six cartridges of revolver (Exhibit VII), eight cartridges of small pistol (Exhibit VIII) and five cartridges of rifle with 7-9 Kyaoch inscribed thereon (Exhibit IX) were recovered from the bed-room of the appellant and they were seized (Exhibit 1/5). No blood mark was found on the woollen khaki coat or on the woollen khaki Pant (Exhibits III and IV). At the instance of the appellant the doors of the different rooms of the Deorhi were bolted from within and its main entrance door in the bed room was also closed, locked and sealed with lac from outside by the B.D.O. with the brass seal of his Nazir. The key of the said lock and the brass seal of the Nazir were handed over by the B.D.O. to the investigating officer (P.W. 27). As stated by P.W. 13, Police guards were deputed to guard the residential house of the appellant and some Raj employees also were there on guard duty. The appellant thereafter was forwarded in custody to the Sub-divisional Officer, Midhubani, in the company of the Deputy Superintendent of Police (C.W. 1) and the armed force. After dispatching the appellant in custody to Madhubani, the investigating officer (P.W. 27) again returned to the place of occurrence at about 8 P.M. and found the place undisturbed in any way. The appellant thereafter was forwarded in custody to the Sub-divisional Officer, Midhubani, in the company of the Deputy Superintendent of Police (C.W. 1) and the armed force. After dispatching the appellant in custody to Madhubani, the investigating officer (P.W. 27) again returned to the place of occurrence at about 8 P.M. and found the place undisturbed in any way. He held inquest over the dead body of Shree Kant Choudhary in presence of witnesses and prepared the report (Exhibit 6/1). The investigating officer found bleeding piercing bullet entrance wound on the left chest of the deceased with corresponding exit wound on his back side which had also caused corresponding holes both on the front side and back side of the kurta (Exhibit X), sweater (Exhibit XI) and ganji (Exhibit XII) but he did not find any scorching or burning marks on these clothes. There was a black rubber shoe on the left foot of the deceased but the shoe of the right foot had gone off and was lying nearby. The dead body was sent at 10 P.M. along with the inquest report to Madhubani hospital. 6. Some of the objective findings upon spot inspection have been noted earlier. Besides finding the rifle (Exhibit I) resting against the wall outside the western room just by the northern side of its eastern door and the bayonet (Exhibit II) lying on the chaukhat of the eastern door of the said room, the investigating officer found a table about 2 ft. in length from north to south kept at a distance of 3 ft. west of the eastern door; a big wooden almirah was by the side of the northern wall of the room with papers inside and to the south of the said table he found one chair and to the west of the table, two chairs one of which was lying upside down. Upon the table as also below it and also below the said almirah and on the floor of the room torn and scattered papers were found. Enough quantity of blood marks on some of the scattered papers as also on a flat file in which some papers were tied and which were found lying scattered inside the room on the floor below the said table, and to the east of the chaukhat of the eastern door of the room over an area of 2 ft. Enough quantity of blood marks on some of the scattered papers as also on a flat file in which some papers were tied and which were found lying scattered inside the room on the floor below the said table, and to the east of the chaukhat of the eastern door of the room over an area of 2 ft. north to south and 2 or 2 ft. east to west were found. No blood mark was found on the papers which were on the table. Blood marks were found on the door planks of the eastern door of this western room as also on the outer face of the eastern wall of the room towards the portico side. No blood was, however, noticed by him on the inner face of the eastern wall towards the room side. An empty fired cartridge (Exhibit XV) and two live cartridges (Exhibits XVI and XVI/1) were found lying on the floor inside, close to the chaukhat of the eastern door. The investigating officer also took some photographs of the place of occurrence as also of the position of the dead body of the victim lying on the floor of the portico. He seized the rifle (Exhibit I), the bayonet (Exhibit II), the empty and live cartridges, (Exhibits XV, XVI and XVI/1), the blood-stained papers with the flat file (Exhibit XVII) and some torn pieces of papers (Exhibit XVIII). Some blood-stained earth of the portico where the dead body was lying was also obtained. These seizures were made in presence of witnesses (P.Ws. 3 and 4) and in their presence the investigating officer closed the muzzle and breach of the rifle with cloth and sealed them with a view to preserve the inner condition of the barrel of the rifle. The licence of the said rifle (Exhibit I) is Exhibit 13/3 and stands in the name of the appellant. 7. It may also be noted in this connection that on the outer face of the western wall of the eastern room of the Trust Office close to the southern side of the western door of the said room, at a height of about 3 ft. 7. It may also be noted in this connection that on the outer face of the western wall of the eastern room of the Trust Office close to the southern side of the western door of the said room, at a height of about 3 ft. from the floor of the portico, a hole was noticed which appeared to the investigating officer as having been caused by a pointed object striking heavily against the wall and on the edge of the said hole he found some green stain of some sticking substance; near about the said hole. P.W. 27 also found three other smaller holes and all of them appeared to be fresh. In spite of search below the portico, by the side of the wall and near about no broken pieces of bullet shot was found. No probe, however, was made inside the holes in ORDER :to find out if the pieces of bullet were sticking inside them. The investigating officer (P.W. 27) recorded the statements of the Raj Sentry guards, Munna Singh, Udit Deo, Tanik Lal Jadav and Rajdeo Jadav, named as eye-witnesses to the occurrence by the informant. The inspection of the place of occurrence and its surrounding as also the investigation was continued on subsequent days by Sub-Inspector Panna Lal Mehra (P.W. 27) who examined a number of persons in connection with this occurrence including the B.D.O. (P.W. 13). The Deputy Superintendent of Police (C.W. 1) was also supervising the investigation all the time and he took the statements of Rajeshwar Jha (father-in-law of the appellant) which was recorded by P.W. 27. 8. On the 12th December, 1966, informant Bishundeo Mishra (P.W. 14) filed a protest petition (Exhibit 4/4) in the Court of the Sub-divisional Officer, Madhubani, with a vakalatnama from Shri Radha Kant Mishra, Advocate (P.W. 19), alleging that the pairtikars of the accused, who was a man of money and influence, were out to win over the prosecution witnesses. On the 13th December, 1966, Rajdeo Singh (P.W. 17) and Basudeo Sahni (P.W. 20) filed a petition (Exhibit 4/3) in the Court of the Sub-divisional Officer, Madhubani alleging that the Pairvikars and relations of the accused were holding out temptations before them and on refusal to act according to their wishes, they are being threatened with dire consequences. On the 13th December, 1966, Rajdeo Singh (P.W. 17) and Basudeo Sahni (P.W. 20) filed a petition (Exhibit 4/3) in the Court of the Sub-divisional Officer, Madhubani alleging that the Pairvikars and relations of the accused were holding out temptations before them and on refusal to act according to their wishes, they are being threatened with dire consequences. On the 15th December, 1966, Sri Upendra Nath Choudhary (P.W. 2), a son of the deceased, filed a protest petition (Exhibit 4) in the Court of the Sub-divisional Officer, Madhubani, against the police investigation and alleged that the investigation officer had been won over and he was out to spoil the prosecution case and he wanted the investigation to be taken over from P.W. 27. The Deputy Superintendent of Police (C.W. 1) also sent an adverse report against the investigating officer for perfunctory investigation. Under ORDER :s of the Deputy Inspector General of Police, Northern Range, the investigating officer (P.W. 27) made over charge of the case to Sri Kanji Singh (P.W. 28), Inspector of Police, Madhubani Circle, on the 25th December, 1966. Kanji Singh (P.W. 28) inspected the place of occurrence in presence of the Deputy Superintendent of Police (C.W. 1), the Superintendent of Police (P.W. 32), the Deputy Inspector General of Police, Northern Range, and one C.I.D. Inspector, Banaras Singh on the 25th December, 1966. On this date, no blood mark was found either on the wall, floor or door of the Trust Office, nor even the torn pieces of papers were found there. The office was kept clean and the walls were found freshly white washed. P.W. 28 also examined the informant (P.W. 14) and some other witnesses on this date. In course of looking into the papers kept in the almirah in the western room of the Trust Office, a typed letter dated the 13th August, 1966, written from Darbhanga by the Kul Sachiv of Kameshwar Singh Darbhanga Sanskrit Vishwa Vidyalay to the appellant, on which the latter had made an endorsement in his own handwriting on 17.8.66 (Exhibit 2) referring to Shree Kant Choudhary as "S.K.C. bloody", was seized by P.W. 28. I may usefully note here that the endorsement (Exhibit 2) in these words--"why is it that S.K.C. bloody did not obey the ORDER :when he last went to Dbg."--was admitted by the appellant in his examination under Section 342, Code of Criminal Procedure, to be in his handwriting on the further statement of Bishundeo Mishra (P.W. 14) examined on the 26th. December, 1966, in presence of the Superintendent of Police (P.W. 32), the latter directed P.W. 28 to again search the sealed Deorhi of the appellant and take charge of the gum-boots which Bishundeo (P.W. 14) had for the first time disclosed were on the legs of the Kumar at the time of the shooting incident. On the 30th December, 1966, P.W. 28 accompanied by the Junior Sub-Inspector Dinesh Tiwari (P.W. 24) Government Photo Expert Wahid Khan (P.W. 26) and Amrit Mahto, Finger Print Expert, Government of Bihar, came to Rajnagar Deorhi which had been sealed and locked on the day of occurrence. The seal was broken and the lock was opened by the B.D.O. (P.W. 13). After giving their personal search to Ramji Ram, a Raj sipahi, who was on duty keeping watch over the said residential house of the appellant, they all entered the Deorhi and found the inner rooms securely closed and intact. P.W. 28 searched the Deorhi and from its drawing room recovered a pair of black rubber gum-boots the soles of which bore the imprint "8 Bengal Waterproof, Tiger Brand, Made in India." He also found blood-like stains on the sole of the gum-boot of right leg and faint reddish stains on the inner ankle above the heel of the gum-boot of the left leg. He seized the gum-boots and a copy of the seizure list was made over to the said Ramji Ram (Raj sipahi). The pair of gum boots recovered were thereafter sent in a sealed packet, with a forwarding letter dated 30.12.66 (Exhibit 12/2) to the Director of Forensic Science Laboratory, Patna, for examination and report. A protest petition on behalf of the appellant was filed before the Sub-divisional Officer, Madhubani, on the 2nd of January, 1967, against this subsequent recovery while the appellant was in custody and in the absence of anybody present there on his behalf. 9. A protest petition on behalf of the appellant was filed before the Sub-divisional Officer, Madhubani, on the 2nd of January, 1967, against this subsequent recovery while the appellant was in custody and in the absence of anybody present there on his behalf. 9. On the 5th of January, 1967, the Deputy Director, Forensic Science Laboratory, Patna, submitted his report (Exhibit 17) to the effect that the rifle mouser no. 119953 (Exhibit I) was 7.9 mm. guard rifle and the fired cartridge (Exhibit XV) was 7.9 mm. cartridge case made by kynoch bearing inscription kynoch 7.9 or 8 mm. The report further was that the expert had fired test cartridges from the said rifle (Exhibit I) and, upon examination of the cartridge cases found that Exhibit XV was actually fired from the rifle (Exhibit I). 10. Dr. Sadhu Sharan Lal (P.W. 12), then attached to Madhubani hospital as Civil Assistant Surgeon, held postmortem examination on the body of Shree Kant Choudhary on 1.12.66; at 9 A.M., and found that it was the body of a well-built male aged about 60 years. The following injuries were found on his person: One gun shot wound circular with 3/4" diameter with inverted and ragged margins on the manubrium sterni left side fracturing the bone into pieces. The track of the wound was directed backwards tearing the trachea, arch of aorta, and fracturing one corresponding rib behind. The track ended in an wound of exit with one inch diameter with averted and lacerated margins. Dark liquid blood was coming out of the wound. The chest cavity contained about 8 ounces of blood and blood clots. The upper part of left lung was also torn. 11. After the usual enquiry under Chapter XVIII, Code of Criminal Procedure, the Kumar was put on trial before the Additional Sessions Judge of Darbhanga. On being examined under Section 342, Code of Criminal Procedure, the Kumar denied his presence at or near about the time at the place of occurrence at the Trust Office and asserted that on that date at about 11 or 11.30 A.M. he had gone to his father-in-law Rajeshwar Ojha's place to take his mid-day meal and after taking his mid-day meal he stayed there till 3.30 or 4 P.M. when a mob came and started saying that he had murdered his manager, and he assured them to enquire what had happened. He denied ownership or possession of the black rubber gum-boots (Exhibits V and V/I) said to have been recovered from his residential house (Deorhi) on the 30th of December, 1966. His defence was that there is a group of people who want to harm him and with that end in view and in ORDER :to get rid of him and to grab his estate, he had been falsely implicated in the case. The further defence that appeared from the trend of cross-examination was that neither the accused had shot dead Shree Kant Choudhary nor had he any motive to do so. It was brought out in evidence that two weeks before the occurrence two robbers in the garb of Sadhus had been arrested in the Deorhi of the Kumar and were assaulted by his servants under the ORDER :s of his manager Shree Kant Choudhary and the latter had been threatened by those Sadhus; and it may be that some members of the gang of robbers had shot Shree Kant Choudhary dead. It was suggested in defence that the deceased had created panic among the people of his village and in the neighboring villages and he had been killed by some one of his enemies, or it may as well be that some of the guard sentries with whom he had a row were responsible for the tragedy. It was asserted that Shree Kant Choudhary might have met with his death under circumstances unknown and unseen by any witness of the case and, in view of the medical report about the stomach contents, it is not unlikely that death of Shree Kant Choudhary took place on the aforesaid date earlier than 3 P.M. Hence his relation Bishundeo Mishra (P.W. 14), who must have arrived after Shree Kant Choudhary was shot dead, was led away by a rumour that the deceased had been shot dead by the appellant. 12. It is not disputed that Shree Kant Choudhary, manager of the appellant, was shot dead with rifle (Exhibit I) on the 30th November, 1966, and the evidence of Dr. Sadhu Sharan Lal (P.W. 12) as also the evidence of the Deputy Director of Forensic Science Laboratory (P.W. 31) which I have referred to earlier confirms this fact. The objective findings of the investigating officers also lead to the same conclusion. Sadhu Sharan Lal (P.W. 12) as also the evidence of the Deputy Director of Forensic Science Laboratory (P.W. 31) which I have referred to earlier confirms this fact. The objective findings of the investigating officers also lead to the same conclusion. It appears that Shree Kant Choudhary was killed in the portico floor as I shall presently discuss; but the submission of Mr. Chari, learned counsel appearing for the appellant, has been that it is equally probable from the finding of copious blood inside the room and other objective findings of the investigating officers that there was some sort of struggle inside the western room of the Trust Office and the injured Shree Kant Choudhary somehow moved out of the room and fell down dead in the portico. I shall discuss this part of the submission of Mr. Chari while discussing the place and the manner of occurrence hereafter. 13. Of the thirty two prosecution witnesses, P.Ws. 4, 9, 16, 18, 21, 22, 24, 25 and 26 were merely tendered in the case. P.Ws. 6, 7, 8 and 11 are Police constables who are more or less formal witnesses and so is P.W. 15, an Assistant Sub-Inspector of Police, who formally proved the first information report (Exhibit 5/2). P.W. 19 is Shri Radha Kant Misra, an Advocate, who proved the Vakalatnama and petitions (Exhibits 3 to 3/3 and 4/2 to 4/4). P.W. 29 Sitaram Sahay is also another formal witness who happened to be the head signaler at the Siwan Telegraphs Department and so is P.W. 30 Rajendra Prasad Misra, who happened to be a signaler at the Monghyr Head Telegraph Office. P.W. 3 Chandra Shekhar Jha and P.W. 10 Babu Jha are witnesses of inquest and seizures. The Police Officers connected with the investigation of this case or its supervision are P.W. 27 Panna Lal Mehra, Officer-in-charge, Madhubani Police Station, P.W. 28 Kanji Singh, Inspector of Police, Madhubani circle, C.W. 1 Jaibhadra Jha, Deputy Superintendent of Police and the Superintendent of Police, Darbhanga, Shri Ashwini Kumar (P.W. 32). Of the remaining witnesses P.W. 1 Shri Rabindra Nath Choudhary and P.W. 2 Shri Upendra Nath Choudhary are the two sons of deceased Shree Kant Choudhary, who subsequently reached on receipt of telegrams about the tragic death of their father, and they are not eye witnesses to the occurrence. Of the remaining witnesses P.W. 1 Shri Rabindra Nath Choudhary and P.W. 2 Shri Upendra Nath Choudhary are the two sons of deceased Shree Kant Choudhary, who subsequently reached on receipt of telegrams about the tragic death of their father, and they are not eye witnesses to the occurrence. I have already referred to the evidence of the Deputy Director of Forensic Science Laboratory (P.W. 31) Shri Guru Pado Bhattacharya. P.W. 14 Bishundeo Mishra has been examined as the solitary eye witness in the case. P.W. 5 Indradeo Singh, P.W. 17 Rajdeo Singh and P.W. 20 Basudeo Sahni are supporting witnesses examined in the case but the trial court has not relied on their evidence in good grounds and I may usefully refer in this connection Paragraph 88 of the JUDGMENT : of trial court, which runs thus:-- Although the aforesaid prosecution witnesses Basdeo Sahni (P.W. 20; Rajdeo Singh(P.W. 17) and Indradeo Singh (P.W. 5), have spoken about the presence of the accused with rifle at the Trust Office before the shooting down of Shree Kant Choudhary and about running away of the accused from the Trust Office towards the north immediately after the shooting down of Shree Kant Choudhary, which generally supports the prosecution case, I do not consider it safe to rely on their evidence firstly because Basdeo Sahni (P.W. 20) and Rajdeo Singh (P.W. 17) for the first time made their statements before the police on 5.12.1966, about 5 days after the occurrence, and that also after they were taken to Madhubani police station by Ghana Kant Choudhary (P.W. 25) brother of the deceased, Shree Kant Choudhary, and secondly, because Basdeo Sahni (P.W. 20) has gone back on his several previous statements made before the police on 5.12.1966 and on his statement made on 9.1.1967 under Section 164 of the Code of Criminal Procedure and has been declared to be a hostile witness by the prosecution, on that account, and he has also made some improvement over those statements and has been contradicted and condemned also by the defence and, thirdly, because Indradeo Singh (P.W. 5) made his statement for the first time before the police on 27.12.1966, after 27 days of the occurrence. It will not be necessary, therefore, to refer again to their evidence as Mr. It will not be necessary, therefore, to refer again to their evidence as Mr. Tara Kant Jha, appearing for the State, has not addressed us on this evidence led by the prosecution in the case and he did not ask us to rely on them on the points on which they were examined in the case. The theories suggested in defence that the deceased might have been killed by some one of the gang of robbers or by some enemy, or by some one of the sentry guards of the appellant, has been rejected by the trial court. The conviction, however, has been mainly based on certain circumstantial evidence, viz., the recovery of the gum-boots found to contain human blood on them, and on the eyewitness's account given by informant Bishundeo Mishra (P.W. 14) which was, to quote the words of the learned Additional Sessions Judge, "reliable, independently of any other supporting oral or incriminating circumstantial evidence" and has been believed and accepted as such. 14. Mr. Chari appearing for the appellant before us framed his argument under three broad heads, viz., (i) that the appellant has been denied or deprived of the privilege of a fair trial, (ii) that the court below should not have based the conviction of the appellant on the uncorroborated and unsatisfactory oral testimony of Bishundeo Mishra (P.W. 14) who is an interested witness, and (iii) that the recovery of the gum-boots with blood stains on them from the residential house of the appellant one month after the occurrence is not circumstantial evidence in proof of the crime and, more so, because the theory of planting cannot be ruled out. 15. I will take up point no. (i) urged by Mr. Chari at the outset. As has been noticed above, informant Bishundeo Mishra (P.W. 14) stated in his evidence before the court as also in his fardbeyan recorded at 6 P.M. on 30.11.66 that on that particular afternoon, at about 3 P.M., he was in the house of Raj sipahi Munna Singh. Two other Raj sipahis, Udit Deo and Tanik Lal Jadav were also there. At that time Rabinath Thakur came and asked Munna Singh to go quickly as Kumar Saheb was calling him. After this Munna Singh left, along with him Tanik Lal Jadav, Udit Deo also went and so did the witness Bishundeo Mishra. Two other Raj sipahis, Udit Deo and Tanik Lal Jadav were also there. At that time Rabinath Thakur came and asked Munna Singh to go quickly as Kumar Saheb was calling him. After this Munna Singh left, along with him Tanik Lal Jadav, Udit Deo also went and so did the witness Bishundeo Mishra. In the way, Rajdeo Jadav, another Raj sipahi, also accompanied them. They came to the Deorhi, and learnt that the Kumar had gone to the Trust Office and they all came to the Trust Office. The witness saw through the open door of the office room (the width of the door being 3 or 3 cubits) that the Kumar was in the Trust Office, reading some papers and tearing them off with the bayonet of the rifle that was in his hand, Article was seen by the witness on the chair touching the table on the southern side. At that time Munna Singh went up in front of the Kumar and said "what is it huzur". The Kumar said "Nothing, move off" and Munna moved away to the southern side. The witness was also within the same portico and so were the other Raj sipahis who had gone with him and they were to the north of the witness. Just then, Shree Kant Choudhary alighted from a cycle and resting the cycle against the wall of the Trust Office came up to the door of the Trust Office room in which the Kumar was tearing off the papers and said "Sarkar, why are you tearing these papers?" At this the Kumar, who was facing east, lifted the rifle from the chair and aiming at Shree Kant Choudhary shot at him, the victim was hit and he fell down 2 or 2 cubits east of the door of the room of Trust Office. The Kumar was at the time 4 or 5 cubits away from the victim. He unloaded the rifles, dropped the cartridges down and placed the rifle on the inside door frame of the entrance (eastern) door of the Trust Office and the bayonet on the choukhat of that door and himself came out through that very door and moved away northward towards his Deorhi. He unloaded the rifles, dropped the cartridges down and placed the rifle on the inside door frame of the entrance (eastern) door of the Trust Office and the bayonet on the choukhat of that door and himself came out through that very door and moved away northward towards his Deorhi. The evidence of Bishundeo Mishra, the solitary eye witness examined in the case indicates that besides himself, Munna Singh, Tanik Lal Jadav, Udit Deo and Rajdeo Jadav were also present at the time when the deceased was shot dead by the appellant. None of these four persons, however, has been examined in this case and their names do not even appear in the charge sheet as witnesses. Mr. Chad consequently urged at the very outset that it was incumbent on the prosecution to produce these important witnesses in court as they were witnesses essential to the unfolding of the narrative on which the prosecution is based; and the failure of the prosecution to do so, evidently with oblique motive, cast a serious reflection on the fairness of the trial. Learned counsel referred to us in this connection the case of (1) Hari Gope V. Emperor (A.I.R. 1947 Pat 354) and the case of (2) Habeeb Mohammad V. State of Hyderabad (A.I.R. 1954 SC 51). Hari Gope's case was primarily based on a decision of the Calcutta High Court in the case of (3) Ram Ranjan Roy V. Emperor (A.I.R. 1915 Cal 545 : I.L.R. 42 Cal 422) where their Lordships (Jenkins, C.J. and N. Chatterjee, J.) while referring to a fundamental misconception of the purpose of a criminal trial and the duty of a Public Prosecutor observed: That purpose is not to support at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused, and the duty of a Public Prosecutor is to represent not the police but the crown and this duty should be discharged by him fairly and fearlessly and with a full sense of the responsibility that attaches to his position It was further pointed out that in a capital case it is the duty of the Public Prosecutor to place before the court the testimony of all available eye-witnesses and that this rule is not merely technical but founded on common sense and is dictated by humanity. The view taken in the Calcutta case was to a certain extent modified by their Lordships of the Judicial Committee in (4) Stephen Seneviratne V. The King (A.I.R. 1936 PC 289) and it was that witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. The point came up for consideration before the Supreme Court in (2) Habeeb Mohammad's case (A.I.R. 1954 SC 51) and their Lordships also affirmed the proposition that it was the duty of the prosecution to examine all material witnesses who could give an account of the narrative of the occurrence on which the prosecution is essentially based and the question depended on the circumstances of each case. In this case, the Raj sipahis, as appears from the evidence, were examined by the investigating officer (P.W. 27) on the very evening of the day of occurrence, i.e., on 30.11.66 and their statements were also recorded under Section 164, Code of Criminal Procedure on 9.12.66. No petition was filed by the prosecution to explain the keeping back of these material witnesses or that the witnesses were not willing to come and depose. It is not the case of the prosecution that the witnesses were since won over. The trial court seems to think that it is only natural that the sipahis who are still in Raj Service were not prepared to depose against the accused, but there is no basis for such a speculation or conclusion as none of these sipahis was ever produced before the court and the court had no opportunity to assess the worth of their evidence to justify a conclusion like the one drawn by it. All these four witnesses, according to informant, did witness the occurrence of the day and they were duly so named by the informant in his fardbeyan. Learned counsel vehemently urged that for all intents and purposes the Raj sipahis, and more particularly Munna Singh and Rabinath Thakur, were essential material witnesses to unfold at least that part of the narrative of the occurrence which could justify the presence of Bishundeo Mishra (P.W. 14) at the scene of occurrence as a result of Rabinath's calling Munna Singh to that place. We have noticed above that according to the evidence of the informant Bishundeo Mishra (P.W. 14), Pujari Rabinath Thakur came to the quarters of Munna Singh with the message that the latter was wanted by Kumar Sahib at once and the witness (P.W. 14) as also Udit Deo, Tanik Lal Jadav and the other two Sentry Guards, who were also present there, followed Munna Singh, probably out of curiosity and thus they all happened to be at the scene of occurrence as also Rajdeo Jadav, another Raj sipahi, who joined them in the way. Consequently, it was incumbent upon the prosecution to examine at least Rabinath Thakur and Munna Singh to prove the sequence of events which could justify the presence of Bishundeo Mishra (P.W. 14) at the place of occurrence. In (2) Habeeb Mohammad's case (A.I.R. 1954 SC 51) their Lordships pointed out that Biabani who was a top ranking Police Officer present at the scene of occurrence was not examined although he was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth; and in any case, the court would have been well advised to exercise its discretionary powers to examine that witness. The view taken in the circumstances was that not only does an adverse inference arise against the prosecution case from his (Biabani's) non-product ion as a witness in view of illustration (g) to Section 114 of the Indian Evidence Act; but the circumstances of his being withheld from the courts cast a serious reflection on the fairness of trial. Their Lordships continued to say that the appellant was thus considerably prejudiced in his defence by reason of this omission on the part of the prosecution. Learned standing counsel, on reference to the ORDER :sheet of the trial court, submitted that at the stage of the enquiry under Chapter XVIII, Code of Criminal Procedure, on 25.9.67, the defence wanted the four Raj sipahis to be examined as court witnesses, but it did not ask the trial court on 23.3.68 to do so in clear and specific words but only wanted through petition dated 8.3.68 that the Superintendent of Police and the Deputy Superintendent of Police he examined as court witnesses. Accordingly, the Superintendent of Police was examined as P.W. 32 and the Deputy Superintendent of Police was examined as a court witness. Mr. Chari's sharp reaction to it was that it is immaterial if the defence did not ask the four sipahis to be examined as court witnesses and it did not choose to examine them as defence witnesses; it was the duty of the court to have exercised its discretion under Section 540 of the Code to have the evidence of the four important witnesses as court witnesses to enable it to appreciate the other evidence adduced by the prosecution in the case as they were material witnesses for the purposes of this case. In the case of (5) Masalti and others V. State of Uttar Pradesh (A.I.R. 1965 SC 202) their Lordships laid down that it is undoubtedly the duty of the prosecution to lay before the court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the court can also call such witnesses in the box in the interest of justice under Section 540, Code of Criminal Procedure. Where the defence did not examine these witnesses the court after due deliberation, refused to exercise its power under Section 540, Code of Criminal Procedure, this is one aspect of the matter which has to be taken into account in considering whether the accused were prejudiced. This decision is, therefore, not of much assistance to the prosecution. In view of what has been stated above, the submission of Mr. Chari appears to me to be reasonable and it must be held in agreement with learned counsel that the non-examination of the four Raj sipahis has caused serious prejudice to the appellant in his defence. 16. This decision is, therefore, not of much assistance to the prosecution. In view of what has been stated above, the submission of Mr. Chari appears to me to be reasonable and it must be held in agreement with learned counsel that the non-examination of the four Raj sipahis has caused serious prejudice to the appellant in his defence. 16. In course of the hearing of the appeal a question arose if this Court should suspend further hearing of the appeal and direct the trial court to summon the four sipahis and Rabinath Thakur and record their evidence; and further hearing of this appeal should be resumed after their evidence has been taken. We find that in a similar situation in (2) Habeeb Mohammad's case (supra) their Lordships of the Supreme Court held thus:-- The learned Advocate General appearing for the State contended that assuming that the failure of the prosecution to examine Biabani has caused serious prejudice to the accused or that the dental of opportunity to him to examine certain witnesses in defence has also caused him serious prejudice, this Court may direct the High Court to summon the witnesses and record their statement and transmit them to this Court and that the appeal may be decided after that evidence has been taken. In our opinion, this course would not be proper in the peculiar circumstances of the present case. It is not possible without setting aside the conviction of the appellant to reopen the case and allow the prosecution to examine a material witness or witnesses that ought to have been produced and allow the defence also to lead defence evidence.... Thus, the question admitting further evidence cannot arise in the given situation and on the preliminary point raised by Mr. Chart, it must be held that the conviction of the appellant in the circumstances, is liable to be set aside. 17. Before I refer to the second point regarding the assessment of evidence of the solitary eyewitness (P.W. 14), Bishundeo Mishra, I would like to dispose of the third point raised by Mr. Chari, viz., that the recovery of a pair of gum-boots from the residential house of the appellant, with blood-stains on them, one month after the occurrence is no circumstantial evidence in proof of the complicity of the appellant in the crime, and more so, because the theory of planting cannot be completely ruled out. Chari, viz., that the recovery of a pair of gum-boots from the residential house of the appellant, with blood-stains on them, one month after the occurrence is no circumstantial evidence in proof of the complicity of the appellant in the crime, and more so, because the theory of planting cannot be completely ruled out. 18. On the 26th December, 1966, for the first time, a disclosure appears to have been made by Bishundeo Mishra (P.W. 14) while examined by the Superintendent of Police (P.W. 32) and when questioned by him about the foot-wear of the Kumar at the time of the occurrence, Bishundeo stated that the accused was putting on a pair of gumboots; and evidently on the basis of this statement of Bishundeo the Superintendent of Police directed Kanji Singh (P.W. 28), who had been placed incharge of the investigation of this case at that time, to search for those gum-boots and, if found, to send them to the Chemical Examiner for examination and report about the presence of any blood or blood-stain on them. Accordingly P.W. 28 searched the Deorhi of the appellant on 30-12-66 between 12.45 P.M. and 1.30 P.M. after getting the seal and the lock of the Deorhi broken and opened by the Block Development Officer (P.W. 13). The second search of the Deorhi was conducted after observing necessary formalities. Those who entered into the Deorhi for the second search were Inspector Kanji Singh (P.W. 28), Block Development Officer A.K. Srivastav (P.W. 13), Junior Sub-Inspector Dinesh Tewari (P.W. 24) and Rabindra Nath Choudhary (P.W. 1), a son of the deceased. Personal search was given by these witnesses to one Ramji, a Raj sipahi (not examined). Munna Singh and Ramji Rim, sipahis (not examined) and also one Harish Chandra Misra (not examined) were said to have accompanied the police party inside the Deorhi and in presence of all, P.W. 28 recovered a pair of black rubber gum-boots (Exhibits V and V/1) from the drawing room of the Deorhi with "8 Bengal Waterproof Tiger Brand Made in India" imprinted on the soles and P.W. 28 found some blood like stain on the sole of the gum-boot of right foot and some reddish stains on the inner ankle above the heel of the gum-boot of the left foot. P.W. 28 seated in his cross-examination that he noticed blood stains over an area of 3" to 4" in length and 2" to 3" in width on the lower front part of the boot. They were seized under the seizure list Exhibit 1/6 attested by Ramji Ram, Rabindra Nath Choudhary and A.K. Srivastav. Rabindra Nath Choudhary (P.W. 1) and A.K. Srivastav (P.W. 13) were examined to support this recovery of the gum-boots from the drawing room of the Deorhi of the appellant on 30-12-66. It has already been noticed above that the gum-boots were duly sent to the Chemical Examiner for examination and report and the Chemical Examiner's report dated the 12th January, 1967, and 26th February, 1967, (Exhibits 19 and 19/1), show that a small spot of reddish-brown stain covering one c.m. on the position corresponding to the right ankle of the black rubber gum-boot of the left foot and reddish stains at places on the sole of the black rubber gum-boot of the right foot were stained with human blood although their blood group could not be determined as it was not sufficient for the test. The existence of human blood stained gum-boots (Exhibits V and V/1) in the drawing room of the accused after the occurrence, in the opinion of the trial court, is a strong incriminating circumstance connecting the accused with the crime, as no satisfactory explanation has been given by the accused as to how this human blood stained gum-boots came to his drawing room. Mr. Chari's contention is that some manipulation was made between the 26th and 30th December, 1966, to show that a pair of gum-boots stained with human blood was recovered from inside the residential house of the appellant and that it was a case of planting and this defence was wrongly rejected by the learned Additional Sessions Judge on the ground that the evidence on record did not justify such an inference. Mr. Mr. Chari contended in this connection that although Bishundeo Mishra was examined on the same evening of the occurrence and further examined on the same evening after 6 p.m., and although he made mention of a fur collared coat and a khaki pant on the person of the Kumar at the time of the occurrence, it is curious that he could forget to mention about the rubber gum-boots which are not considered to be an ordinary footwear and which extend in length up to the knees of the person wearing it. It is definitely not an ordinary footwear and would at once attract the notice of anybody at the very first sight. Bishundeo was also examined on 25-12-66 by P.W. 28 but even on that day he made no mention about this uncommon footwear of the Kumar on the afternoon of the occurrence. Mr. Chari also contended that it is all the more curious that the police officers including the D.S.X., Jaibhadra Jha, who was present from the very beginning of the police investigation did not consider it necessary to question the informant about the footwear of the appellant; the evidence of the first investigating officer Panna Lal Mehra (P.W. 27) indicates that he looked for blood and blood-stained articles but he did not look for the bloodstained foot-prints. It is not difficult to conceive that if actually there was blood on the sole, in one of the gum-boots, extending over an area of 3" to 4" in length and 1" to 2" in width (as was noticed by P.W. 28), the blood on the ground there had been trampled under the right foot of the gum-boot and this would certainly have left the blood-stain imprints along the way the appellant after shooting is said to have moved away. Those bloodstained imprints, if detected, would have led to an easy detection of the criminal. D.S.P. Jaibhadra Jha stated in his evidence that he did not find blood print of the shoe anywhere (vide Paragraph 23 of his evidence). Those bloodstained imprints, if detected, would have led to an easy detection of the criminal. D.S.P. Jaibhadra Jha stated in his evidence that he did not find blood print of the shoe anywhere (vide Paragraph 23 of his evidence). The evidence of this witness indicates that the police was not unmindful of the possibility of blood-stained foot-prints of the assailant but, in spite of it, it did not strike either Panna Lal Mehra (P.W. 27) or D.S.P. Jaibhadra Jha (C.W. 1) to question the informant about the footwear of the assailant, although mention was made in first information report recorded then about the fur collared coat and the khaki pant and the prosecution evidence, as noticed earlier, is that no blood or blood like stain was found on either of these two apparels when they were seized on the occasion of the first search of the Deorhi on 30.11.66, It was also urged by learned defence counsel that the occurrence took place in a winter afternoon (30.11.66) and there is no evidence that there was rain on that day, or a day or two earlier, and there was slush which had occasioned the Kumar to put on a unwieldy and uncomfortable footwear, viz., the gum-boots. It cannot be doubted, of course, that after the first search of the Deorhi conducted on 30.11.66 it was locked and sealed with the brass seal of the Nazir of the Block Development Office The Block Development Officer, however, candidly, admitted in his evidence that the key of the lock as also the seal were thereafter handed over to Sub-Inspector Panna Lal Mehra (P.W. 27). Severe criticism was advanced by Mr. Chari against this procedure adopted and I agree that on no account the key and the seal should have gone into the hands of the investigating officer and they should have been retained by the Block Development Officer himself or by some higher officer, namely, the Sub-divisional Officer of Madhubani so as to rule out the criticism about the possibility of planting. Then again it transpires from the evidence that the key and the seal were left in Madhubani Malkhana without any entry in the Malkhana register and P.W. 28 got them from the said Malkhana. The criticism of Mr. Chari against the bona fide of the second search in the above circumstances cannot be said to be at all groundless. Then again it transpires from the evidence that the key and the seal were left in Madhubani Malkhana without any entry in the Malkhana register and P.W. 28 got them from the said Malkhana. The criticism of Mr. Chari against the bona fide of the second search in the above circumstances cannot be said to be at all groundless. The comment of Mr. Chari has also been that it was the brain wave of Kanji Singh, Inspector, who had taken over charge of further investigation of the case from Panna Lal Mehra (P.W. 27) after the suspension of the latter by the Deputy Inspector General of Police, Northern Range, on account of his perfunctory investigation in the case, and he wanted to earn credit for himself by introducing these blood-stained gum-boots as sure incriminating articles against the appellant. The statement before the Superintendent of Police about these gum-boots was made by Bishundeo Mishra for the first time on 26.12.66 and it appears that the Superintendent of Police directed immediate second search of the Deorhi for recovery and seizure of those gum-boots if found and the grievance of Mr. Chari has been that Inspector Kanji Singh took time and did not carry out the ORDER :forthwith but waited till the 30th of December to conduct the second search of the Deorhi and in course of which these gum-boots were seized. 19. It was next urged that there is no satisfactory evidence in the case that after the Deorhi was locked and sealed it was placed under constant watch and guard. The only evidence in this connection is of the Block Development Officer (P.W. 13) which is to the effect that he got the Deorhi locked and sealed, police guards were kept as also the Raj employee guards whose names were not known to him. It may be that immediately after the Deorhi was locked and sealed, some arrangement for guarding the house was made on that night but none has been examined to say that he was keeping watch from that time onwards until the second search was held on 30.12.66. Mr. It may be that immediately after the Deorhi was locked and sealed, some arrangement for guarding the house was made on that night but none has been examined to say that he was keeping watch from that time onwards until the second search was held on 30.12.66. Mr. Tara Kant Jha, learned Standing Counsel appearing for the State, referred to the petition (Exhibit 4/2) which was filed by the appellant on 2.1.67 in the Court of the Sub-divisional Officer, Madhubani, to the effect that he was in custody and his palace was locked and sealed by the police and in his absence and in the absence of anybody on his behalf the Inspector of Police broke open the seal of the palace and took certain articles and the petitioner was apprehensive that this was done in collusion with others of the prosecution party to create and concoct evidence against him. I do not see how from the contents of this petition it can be urged, as was urged by Mr. Jha, that the people on behalf of the accused were on guard over the house and as such there could be no possibility of plantation. A serious omission on the part of the prosecution was its failure to place the gum-boots (Exhibits V and V/1) at any test identification parade. There is nothing to indicate that these gum-boots actually belonged to the appellant or that he had purchased them for his personal use. Mere recovery of the gum-boots from the house of the appellant by itself is not a sure ground to hold that they were the properties of the appellant and not of anybody else. Circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his innocence. In the above circumstances, I must accept the contention of Mr. Chari that the recovery of gum-boots is not an incriminating circumstance against the appellant and this circumstantial evidence has to be excluded from consideration in the case. 20. The fired cartridge case (Exhibit XV) which was found lying on the floor of the western room of the Trust Office near the Choukhat and seized has been found by P.W. 31 to be 7.9 mm. 20. The fired cartridge case (Exhibit XV) which was found lying on the floor of the western room of the Trust Office near the Choukhat and seized has been found by P.W. 31 to be 7.9 mm. rifle cartridge case bearing inscription Kynoch 7.9 or 8 mm.; and a few hours after the occurrence when the residential house of the accused was searched at 6.30 P.M., five similar rifle cartridges with 7.9 mm. Kynoch inscribed therein (Exhibit IX) were recovered from the bedroom of the accused and seized under the search list (Exhibit 1/5). The trial court seems to think that apart from its being an incriminating circumstance connecting the accused with the crime it is suggestive of the fact that before the occurrence the accused had been in possession of 7.9 mm. Mausar guard rifle no. 119953 (Exhibit I) from which 7.9 mm. Kynoch cartridge (Exhibit XV) had been fired to shoot the deceased, the reasoning being that otherwise what for those five cartridges of rifle with 7.9 mm. Kynoch inscribed thereon were in the bed-room of the accused when no other rifle was found either in the said bed-room or in any other room of the said residence at the time it was searched. The reasoning of the court below in accepting this recovery of the five live cartridges from the bed-room of the appellant as an incriminating circumstance against him is in my opinion, fallacious. Appellant is admittedly the owner licensee of the rifle (Exhibit I). He is the master and the sentry guards engaged to guard the Deorhi during night hours are all his employees and he has to supply them with firearms and necessary ammunitions for the purpose of guard duty only, and it is not improbable that surplus ammunitions for the fire-arms would be with the master. If, therefore, five rifle cartridges of similar make as Exhibit V were found in the bed-room of the appellant, it does not necessarily follow that they were the left out cartridges from the same firearm (Exhibit I) which the Kumar had taken care to bring back with himself after the shooting, leaving the rifle itself at the place of occurrence. If that had been so, two more live cartridges which were found by the investigating officer at the place of occurrence would not have been there. If that had been so, two more live cartridges which were found by the investigating officer at the place of occurrence would not have been there. Accordingly, it must be held that the recovery of five rifle cartridges from the bed-room of the appellant is also not a circumstance to lend support to the participation of the appellant in the crime. 21. Before coming to a discussion regarding the acceptability or otherwise of the solitary testimony of Bishundeo Mishra (P.W. 14), I must emphasise the fact that an old and respectable man, namely Shree Kant Choudhary, who was holding the responsible post of Manager in the appellant's estate, was most cruelly shot dead on 30.11.66 between 3 and 3.15 P.M. in the portico of the Trust Office within Rajnagar Raj compound. I may also mention at this stage that although Bishundeo Mishra has not told anything regarding the mental attitude of the Kumar against the deceased at any time before the occurrence or about what could be the immediate motive of the appellant in shooting down Shree Kant Choudhary, the prosecution had led evidence through Sri Upendra Nath Choudhary (P.W. 2), a son of the deceased and who happens to be the Principal Probation Officer at Monghyr, that his father who was an employee of the Rajnagar Raj since before his hosh has been dismissed by the appellant in May 1966, but he again called back his father and reinstated him to his post of Manager in August 1966, on the 17th August, 1966; an endorsement (Exhibit No. 2), admittedly, in the handwriting of the appellant, on a typed letter dated the 13th August, 1966, written from Darbhanga by the Kul Sachiv of Kameshwar Singh Darbhanga Sanskrit Vishwa Vidyalay to the accused was also produced in the case. The endorsement (Exhibit 2) runs thus: Why is it that S.K.C. bloody did not obey the ORDER :when he last went to Dbg. It is not disputed that 'S.K.C.' are the initials of Shree Kant Choudhary and his co-workers and the appellant and others used to address him as S.K.C. a fact which has been admitted by the appellant in his statement under Section 342, Code of Criminal Procedure, as well. It is not disputed that 'S.K.C.' are the initials of Shree Kant Choudhary and his co-workers and the appellant and others used to address him as S.K.C. a fact which has been admitted by the appellant in his statement under Section 342, Code of Criminal Procedure, as well. Exhibit 2 was recovered from the Trust Office during the course of investigation and it unmistakably show that the appellant was holding his old manager at the time in some sort of contemptuous disrespect. This was at least the mental attitude of the appellant against the deceased on 17.8.66. We do not know if subsequently that attitude had undergone a change. There is no clear evidence as to what could be the immediate provocation or motive for the alleged rifle shooting by the appellant on the deceased. The alleged assailant of the victim namely, the appellant, is a rich and influential man with plenty of resources. Whatever might have been the reason, the prosecution case has been very much weakened on account of the non-examination of important witnesses, viz., the four Raj sipahis, who, according to informant Bishundeo Mishra, had also witnessed the shooting. The prosecution case has also been adversely affected on account of Police bunglings and perfunctory police investigation at the initial stage with the result that the recovery of the gum-boots (Exts. V and V/1) which would otherwise have been a strong incriminating circumstantial evidence in the case had to be excluded from consideration for the reasons already recorded. Nevertheless, any speculative or sentimental approach to the case has to be avoided and the court cannot but confine itself within the four corners of the evidence on record and, as the evidence stands, the decision in the case has to rest on the acceptability or otherwise of the oral testimony of Bishundeo Mishra (P.W. 14); and the learned Standing Counsel, Mr. Tara Kant Jha, strenuously contended that the evidence of the informant is beyond all reproach and finds complete support from the objective findings of the investigating officer and it could be relied upon to base a conviction in the case. The view is, of course, well-settled that a conviction can be based only on the evidence of a single witness if it is found to be wholly or entirely reliable. Mr. The view is, of course, well-settled that a conviction can be based only on the evidence of a single witness if it is found to be wholly or entirely reliable. Mr. Chari contended in this connection on reference to the case of (6) Darya Singh V. State of Punjab (A.I.R. 1965 SC 328) that in a murder case when evidence is given by a near relative of the victim and the murder is committed by the enemy of the family, the criminal court must examine the evidence of the interested witnesses like the relatives of the victim very carefully. Their Lordships also pointed out in this case that a person may be interested in the victim being his relation or otherwise, and may not necessarily be hostile to the accused. In that case the fact that the witness was related to the victim or was his friend may not necessarily introduce any infirmity in the evidence, but where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant that makes it necessary for the criminal court to examine the evidence given by such witness very carefully and scrutinise all the infirmities of that evidence before deciding to act upon it. There is nothing in the instant case to indicate that Bishundeo was at any time hostile to the appellant or that the appellant was at any time ill-disposed towards Bishundeo. On the contrary, we find that the witness was for 20 or 22 long years an employee in the appellant's estate. The court below observed in this connection that the witness was a trusted sipahi of the appellant and used to be on sentry guard duty at the Deorhi during the night hours and he could have no reason to falsely implicate his master and bread-giver, and the close relationship between Bishundeo Mishra and the deceased impelled the witness who saw the occurrence to hold fast to the truth without fearing for his job or employment. Mr. Chari has his comment about this observation made by the trial court and I shall have occasion to refer to it again in proper context. 22. Mr. Chari has his comment about this observation made by the trial court and I shall have occasion to refer to it again in proper context. 22. I have earlier referred to the statement of Bishundeo (P.W. 14), who was accompanied by Udit Deo, Tanik Lal Jadav and Rajdeo Jadav while following Munna Singh to the Trust Office on the day of occurrence at about 3 P.M., that he found the appellant in the Trust Office reading some papers and then tearing them up. He saw it through the eastern door of the Trust Office while standing at a distance of five to six cubits. There was a table and the appellant was standing to the east of the table inside the Trust Office. The table was lying straight towards the west of the door. The witness saw a rifle on a chair which was touching the table on the southern side of the table. Munna Singh went up in front of Kumar Saheb and asked "What is it Huzur" and the Kumar said "nothing, move off" and Munna Singh moved away to the southern side. The witness was in the barsati (portico) and so were the other sipahis and just at that time Shree Kant Choudhary alighted from a cycle. Leaving the cycle against the Trust Office wall, he came up to the door of the Trust Office room in which the Kumar was tearing papers. Shree Kant Choudhary stood in front of the door facing west and after making his obeisance said "Sarkar, why are you tearing these papers". After this the Kumar lifted the rifle from the chair and aiming at Shree Kant Choudhary shot at him. At the time when he fired the rifle, the Kumar was facing east. He was to the east of the table at its northern end when he fired the shot and the witness saw the shooting with his own eyes. Shree Kant Choudhary was hit and he fell down 2 or 2 cubits east of the door of the room of the Trust Office in the portico. The Kumar was at a distance of about four or five cubits from Shree Kant Choudhary. Shree Kant Choudhary was hit and he fell down 2 or 2 cubits east of the door of the room of the Trust Office in the portico. The Kumar was at a distance of about four or five cubits from Shree Kant Choudhary. To repeat the objective findings of Panna Lal Mehra (P.W. 27) on 30.11.66, he found the dead body of Shree Kant Choudhary lying in a pool of blood in the portico of the Trust Office at a distance of about 3 ft. 6 inches east of the eastern door of the western room of the Trust Office with his head towards the north and face towards the east and the rifle (Exhibit I) was resting against the wall outside the western room just by the northern side of its eastern door and the bayonet (Exhibit II) of the rifle was kept on the said door. He found inside the said western room a table about 2 ft. west of its eastern door and to the south of the table he found a chair and to the west he found two chairs, out of which one was turned upside down, as below the said table and below the said almirah as also on the floor of the said western room up to the outside of the said room he further found torn and scattered papers. He also found sufficient quantity of blood marks on the scattered papers as also on the flat file in which some papers were tied (Exhibit XVII) and which were lying scattered inside the said room on the floor below the said table, and west of the Chaukhat of the eastern door of the said room in an area of 2 ft. north to south. He did not, however, find any blood mark on the papers which were on the table. He found blood mark on the door planks of the eastern door of the western room of the Trust Office and on the outer face of the eastern wall of the said western room towards the portico. He did not find any blood mark on the inner face of the said eastern wall towards the roomside. He also found on the floor inside the said western room close to the chaukhat of the eastern door one empty fired cartridge (Exhibit XV) and two live cartridges (Exhibits XVI and XVI/1) of the rifle. 23. He did not find any blood mark on the inner face of the said eastern wall towards the roomside. He also found on the floor inside the said western room close to the chaukhat of the eastern door one empty fired cartridge (Exhibit XV) and two live cartridges (Exhibits XVI and XVI/1) of the rifle. 23. Mr. Tara Kant Jha, accordingly, urged that what P.W. 14 stated regarding the place and manner of occurrence perfectly fits in with the objective findings of the investigating officer (P.W. 27) and as such there could be no room to doubt his evidence about the assailant as well. Learned defence counsel made an endeavour to impress upon us the presence of copious blood inside the western room sufficiently away from the dead body of Shree Kant Choudhary and the nature of the injury caused by bullet shot and found by the doctor on the person of the deceased, the possibility of spurting of blood to such a long distance would be out of question. Besides, the investigating officer also found a chair turned upside down and this indicated that there was some sort of struggle inside the western room and Shree Kant Choudhary was hurt by some unknown assailant or enemy inside the western room and what Bishundeo Mishra stated in his evidence regarding the place and manner of assault was based on his imagination. It appears from the evidence of Bishundeo (P.W. 14) that some time before the present occurrence two persons in the garb of Aughar Sadhus had gone to the residential house of the appellant on 6.10.66 at about 9-30 P.M. and they were arrested and subsequently put on trial in the Court of Sessions. One of them Bholanath Tewari was convicted under Section 323, Indian Penal Code, and the other Amlendra Banerji was acquitted. Exhibit 22 is the copy of JUDGMENT : of that case (Sessions Case no. 31 of 1967). Defence tried to build up a case that after the arrest of these two Sadhus at the Deorhi they had held out threat that they would take revenge on the manager a fact which is supported by the evidence of the Block Development Officer (P.W. 13)--and it is not improbable that Shree Kant Choudhary was killed by some such person of that gang of dacoits. The defence theory put forward in the case must be rejected as unacceptable for the simple reason that there is no evidence that those two Sadhus were of any particular gang; on the contrary, they were found to be Aughar Sadhus and both of them were in jail custody at the time of the occurrence of this case. Amalendra Banerji was released on bail five months after his arrest on 6-10-66 by the Court of a Magistrate at Madhubani while Bhola Nath Tewari was sent to jail and the question of his participation in the crime also cannot arise. The evidence of Dr. Sadhu Saran Lal (P.W. 12.) who held the post mortem examination, indicates that the track of the gunshot wound was directed backwards tearing the trachea, arch of aorta and fracturing one corresponding rib behind. I have already referred to his evidence in some detail. Mr. Chari's contention has been that aorta being a major part of the heart organ and there being tearing of it by the bullet, blood would gush out and there could be no spurting of blood in view of the nature of the wound inflicted on Shree Kant Choudhary and that circumstance excludes the possibility of his having been shot at outside the western room, in the portico. Aorta has been defined in Dorland's Illustrated Medical Dictionary (24th edition) as 'The main trunk from which the systemic arterial system proceeds. It arises from the left ventricle of the heart, passes upward, bends over, passes down through the thorax, and through the abdomen to the fourth lumbar vertebra where it divides into the two common iliac arteries'. It is rather difficult to accept the contention of Mr. Chari. During the discussion on the point, nothing material from any authoritative medical jurisprudence could be placed before us to indicate that in a wound or the kind caused and found on the deceased there could not be any spurting of blood covering a distance of five to six feet or more. P.W. 12 stated categorically in his evidence that in case of the nature of the injury found on the dead body of Shree Kant Choudhary there would be spurting of blood and the spurting of blood may be in any direction according to the flow of the ruptured blood vessel. P.W. 12 stated categorically in his evidence that in case of the nature of the injury found on the dead body of Shree Kant Choudhary there would be spurting of blood and the spurting of blood may be in any direction according to the flow of the ruptured blood vessel. On re-examination, the following question was put to the witness (P.W. 12) by the prosecution: Q. If the person who has been shot be standing just outside the door of a room facing the door there in case of injury like the one found on the dead body of Shree Kant Choudhary the spurting of blood may be for some distance inside the room in front of the door? Ans. Yes. In cross-examination thereafter the witness said that it was very difficult to give the distance up to which the blood would spurt in case of injury like the one found on the dead body of Shree Kant Choudhary, but it would not go far off. To a leading question put by the cross-examiner to the witness that the distance may be a foot or two, his answer was 'may be'. The doctor is clear and definite that spurting of blood could go up to some distance inside the room in front of the door. That being so, the defence theory that the quantity of blood found inside the room on the papers lying scattered on the floor indicated the possibility that Shree Kant Choudhary was killed by someone inside the room, becomes exploded. If actually Shree Kant Choudhary had been shot at inside the room, one could expect him lying inside the room itself and in a pool of blood as was found outside the portico where he was lying dead. With the nature of injury found on him it is unthinkable that he could, after being so injured inside the room, move out and fall down at that distance where his body was found. Dr. Sadhu Sharan Lal (P.W. 12 stated in his evidence that the ante mortem injury found on the deceased was sufficient to cause instantaneous death. Mr. With the nature of injury found on him it is unthinkable that he could, after being so injured inside the room, move out and fall down at that distance where his body was found. Dr. Sadhu Sharan Lal (P.W. 12 stated in his evidence that the ante mortem injury found on the deceased was sufficient to cause instantaneous death. Mr. Chari submitted that if there had really been spurting of blood a streak or trail of blood would have been found between the dead body and the blood-stained scattered papers, but P.W. 27 found no blood either to the north, south or east of the dead body nor between the door and the body. His contention is that spurting will always shows a line of spurting and the blood will leave its trail as the force of the spurting comes down with the decrease in the flow of blood. If death takes place instantaneously the spurting that might have been started immediately after the shot, would abruptly stop the moment the victim falls down dead and as such there might not have been any streak of blood left for detection. Mr. Jha in this connection submitted that the fact regarding the place of occurrence stated by the informant (P.W. 14) gets full and adequate support from the investigating officer (P.W. 27) who found no blood on the inner wall of the room, no blood on the surface of the floor of the western room, no blood on any of the furniture, no marks of blood on the coat or pant of the assailant, no burn or scratching marks on the clothes of the deceased and no tattooing marks any where on them and he also found the cartridges inside the western room of the Trust Office. Consequently, the contention of Mr. Chari that Shree Kant Choudhary had been shot at in a manner other than what was stated by P.W. 14 is not compatible with the objective findings of the investigating officer at the place of occurrence. 24. Consequently, the contention of Mr. Chari that Shree Kant Choudhary had been shot at in a manner other than what was stated by P.W. 14 is not compatible with the objective findings of the investigating officer at the place of occurrence. 24. It was next urged by learned counsel for the defence that an important question that would also arise in this connection is whether from this description alone of the place and the manner of occurrence stated by Bishundeo Mishra (P.W. 14) which is explainable, it can be safely and unhesitatingly inferred and accepted that he was an eye witness of the actual shooting and it is incompatible with the theory that Bishundeo who happened to be a close relation of the deceased had rushed to the place of occurrence very soon after the incident on hearing the loud report of the gun fire and by that time the assailant was not there and from what he could see inside the room and outside he could guess, speculate and imagine that the killing had been done by the Kumar and the idea got so deeply stuck into his mind that he became obsessed with the idea that none else other than the Kumar had shot down his bahnoi manager. Mr. Chari's contention has been that no extraordinary intelligence was necessary to come to that conclusion. To put two and two together could be the guess work of anybody particularly when a rumour was already afloat that Kumar had shot his manager dead. The submission does not appear to me to be altogether without force as the possibility is always there. 25. Mr. Jha referred to the case of (7) Angnoo V. State of Uttar Pradesh (A.I.R. 1971 SC 296) in which it has been held that the fact that a witness a brother of the deceased is itself a circumstance which would add to the value of the evidence because he would be interested in ensuring that the real culprit responsible for the murder is punished. Mr. Mr. Chari contended, however, that the evidence of Bishundeo Mishra cannot be accepted as wholly reliable because of certain inherent serious infirmities and he urged that there is a significant omission in the fard-beyan regarding the fact that after the firing the rifle had been unloaded and the fired cartridge and two live cartridges were ejected out and they were later so found by the investigating officer. His contention has been that there has been development in his evidence to fill it in with the objective findings of P.W. 27. Another significant infirmity in the evidence of Bishundeo Mishra, as pointed out by learned counsel, is that in the first information report he stated that after the firing the Kumar threw the rifle at the door and ran away northwards. His evidence in court is to the effect that after the Kumar had shot Shree Kant Choudhary dead, he unloaded the rifle and dropped the cartridges and stood the rifle up on the inner side of the door-frame of that room of the Trust Office. The investigating officer (P.W. 27), however, had found the rifle (Exhibit I) resting against the wall outside the western room just by the northern side of the eastern door. The conflicting statements regarding the position of the rifle as stated by Bishundeo Mishra do throw some doubt if the assertion of Bishundeo that he had seen the actual shooting is acceptable without hesitation. 26. Mr. Chari also referred to us some contradictions in the evidence of P.W. 14 inasmuch as in his statement in court the witness had stated that the sentry guard on duty at the Deorhi used to be from 9 P.M. to 6 A.M., and from 6 A.M. to 9 P.M. there used to be no guard party at the Deorhi. Throughout the night only one rifle was used by the three sentry guards who used to be on duty for three hours only. When the duty of one sipahi was over, he used to hand over the rifle to the second sipahi who, after finishing his duty, used to hand over the rifle to the third. The evidence of this witness was also to the effect that the rifle guard who took over the last charge of guard duty used to finish his work at 6 A.M. and used to lodge the rifle with the Kumar. The evidence of this witness was also to the effect that the rifle guard who took over the last charge of guard duty used to finish his work at 6 A.M. and used to lodge the rifle with the Kumar. In his statement before the Superintendent of Police (P.W. 32), however, the witness had stated subsequently that at six in the morning, when the guard duty used to be over, the sentry guard used to deposit the rifle in the armoury. It may be noted in this connection that the armoury is outside the Raj compound in a portion of the Block Office Building, as is stated by P.W. 27, and it may be recalled that the distance of the Block Office is 200 yards south-west from the southern gate of the Raj compound and the Trust Office is 150-175 yards north of this southern gate. 27. In his statement in court Bishundeo had stated that on the night of the 6th October, 1966, the two Sadhu dacoits had held out threats that the Kumar had got them beaten and they would take revenge on him and they did not say that the manager had got them beaten and they would take revenge on the manager. Bishundeo had stated further that the manager was not found there at the time and he had gone to Laheriasarai on some work and he was not in Rajnagar on that night. Our attention was drawn to the evidence of the Block Development Officer (P.W. 13), recorded in Paragraph 39 of deposition, to the effect that these two dacoits were holding out threats that they would take revenge on the manager as he had got them beaten. The further evidence of this witness is that at the time Shree Kant Choudhary was the manager. 28. Mr. Chari's contention has been that normally none of these Raj sipahis except Munna Singh could have any reason to be there far less Bishundeo. On the own admission of Bishundeo, the appellant's Pujari Rabi Nath Thakur came to Munna's quarters and informed him that the Kumar was calling him and he should go at once, and it was for Munna Singh alone to rush to the master, but it is curious that others followed him a fact which is not supported by any evidence on record. Secondly, if Bishundeo had been present when Shree Kant Choudhary was shot at, one would expect that he would tell people whom he met immediately after the incident, that he had seen Shree Kant Choudhary being shot at before his own eyes or that the man was shot dead for no fault of his, and the like, but all that he stated on his own admission, to the persons whom he met after the incident, namely Deveshwar Jha, head clerk of the Block Development Office (not examined), the doctor of Rajnagar Government Hospital (not named and examined) and Hari Narain Lal Das, Headmaster of Rajnagar High School (not examined), that Kumar Saheb had killed Shree Kant Choudhary. Another man to whom a similar report was said to have been made by Bishundeo Mishra on that very afternoon is Harish Chandra Lal Das (P.W. 23), Karmachari of Karahia Gram Panchayat, of which the deceased happened to be the Mukhia at that time. The witness stated before the court that about 3 or 3.30 P.M. at Rajnagar Block Office he met Bishundeo Mishra going on a cycle and on his enquiry about his Mukhia, Bishundeo said that he had been shot at and on further enquiry Bishundeo told him that he was hearing that Kumar Saheb had shot him dead. The witness was of course declared hostile by the prosecution because he did not state earlier before the police that Bishundeo had told him that he heard that Shree Kant Choudhary had been shot dead by Kumar Saheb. In view of the fact, however, that Bishundeo had not disclosed to anyone on his own admission, that he had himself seen Kumar Saheb shooting Shree Kant Choudhary, it was submitted that his evidence in court that he was an eye witness to the occurrence cannot be accepted at its face value. Mr. Chari contended that the evidence of P.W. 23 in the case is that immediately after incident some people in the Hatia were talking amongst themselves that Kumar Saheb had shot his manager, although admittedly, none of these Hatia people had actually seen the incident. Mr. Chari contended that the evidence of P.W. 23 in the case is that immediately after incident some people in the Hatia were talking amongst themselves that Kumar Saheb had shot his manager, although admittedly, none of these Hatia people had actually seen the incident. Learned counsel also referred to evidence of Panna Lal Mehra (P.W. 27) that when he went to the house of Rajeshwar Ojha, father-in-law of appellant, to effect the arrest of the Kumar, he found the house surrounded by a mob who were shouting that the Kumar had shot at Shree Kant Choudhary, although none of them happened to be present at the time of the alleged shooting and none had seen the appellant shooting down the deceased. It was accordingly argued by Mr. Chari that it could as well be that Bishundeo Mishra, who happened to be closely related to the deceased, and had arrived at the scene of occurrence after it was all over, after hearing the loud report of the firing (and by the time the assailant whoever he might have been was not there) he became naturally excited and in his excitement guessed and speculated that the shooting must have been done by the Kumar, or it may be that he was led away by the rumour already afloat. 29. I have given my anxious consideration to all the submission of the learned Standing Counsel and of Mr. Chari. It is unfortunate that the cold-blooded and cruel murder of Shree Kant Choudhary should go unpunished. It may be that there is an element of truth in the prosecution story against the appellant. In view, however, of the inherent infirmities in the evidence of Bishundeo Mishra (P.W. 14), referred to above, it is difficult to disagree with Mr. Chari's contention that Bishundeo's evidence is not of such a high standard as can be depended upon as an entirely reliable evidence and it may be somewhat hazardous on such evidence to base a conviction of the accused in a capital charge case, more so, because it is the uncorroborated oral testimony of the witness. A conviction cannot be sustained even if the prosecution case considered as a whole 'may be true', until it is found that 'it must be true'. A conviction cannot be sustained even if the prosecution case considered as a whole 'may be true', until it is found that 'it must be true'. As was observed by the Supreme Court in the case of (8) Swarn Singh V. State of Punjab (A.I.R. 1957 SC 637) between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of the distance must be covered by legal, reliable and unimpeachable evidence. The evidence of Bishundeo Mishra (P.W. 14.), unfortunately, does not come up to that standard and as such the conviction of the appellant based on the solitary testimony of Bishundeo Mishra cannot be sustained and the appellant is entitled to the benefit of doubt in the case. In the result, the appeal is allowed and the conviction and sentence imposed on the appellant are set aside. The appellant is acquitted of the charge and he is discharged from his bail-bond. Appeal allowed