JUDGMENT ORAL R.M. Lodha, J.- The appellant - original accused No.2 Nathu Laxman Shinde, has filed this appeal before this Court dissatisfied with the judgment dated 30.11.1991 passed by the Additional Sessions Judge, Nagpur, in Sessions Case no. 615 of 1991 (State of Maharashtra v. Munna and others) whereby the appellant - accused has been convicted for the offence punishable under section 304 Part II of the Indian Penal Code and sentenced to suffer R.I. for four years and to pay fine of Rs. 2000/- and in default of payment of fine further R.I. for six months. 2. Shorn of unnecessary details, the prosecution case is that one Sikandar Nade, who was carrying on a trade of illicit liquor sometimes, was allegedly murdered by the original accused No.1 Munna alias Pramod original accused No.2 Nathu Laxman Shinde and original accused No.3 Anil Shamrao Sattaram on 16.5.1991 at about 8.00 p.m. at Sanjay Nagar, Nagpur. It is alleged that on 16.5.1991 at about 8.00 p.m. Sikandar Nade (deceased), his wife Shantabai Nade (P.W. 1), his father and one Sarangabai Shende (elder mother of P.W. 1 Shantabai) and Kiran, younger brother of the deceased Sikandar were present in their house situated at Plot No. 15-16, Chikhali Layout, Mang Garodi Zopadpatti, Sanjay Gandhi Nagar, Nagpur near Vinod Cycle Stores. Three persons, namely, (1) Nandu Laxman Dhiwar, resident of Sanjay Gandhi Nagar Zopadpatti, (2) Munna Umbarkar and (3) one al10ther person whose name is not known to the informant P.W. 1 Shantabai, came to the house and Nandu Dhiwar demanded liquor from her husband Sikandar. One bottle of liquor was supplied to Nandu Dhiwar and all three persons consumed the alcohol. The deceased Sikandar demanded the money of liquor from them, but they did not pay the same. Sikandar told those three persons that if they were not paying the money right now, they may pay the amount tomorrow morning. Then Nandu Dhiwar, Munna Umbarkar and the third person started giving filthy abuses to the deceased Sikandar, her husband. Thereafter Nandu Dhiwar broke an empty glass liquor bottle and assaulted Sikandar Nade on his neck. Immediately thereafter the deceased Sikandar fell down and the three persons continued to beat Sikandar. The first informant P.W. 1 Shantabai and other family members, who were taking food, got up and obstructed them. However, Sikandar was profusely bleeding. All the family members shouted loudly "save, save". Immediately thereafter the deceased Sikandar fell down and the three persons continued to beat Sikandar. The first informant P.W. 1 Shantabai and other family members, who were taking food, got up and obstructed them. However, Sikandar was profusely bleeding. All the family members shouted loudly "save, save". All the three persons ran away towards Sanjay Gandhi Nagar Zopadpatti. A rickshaw was called and Sikandar was taken to the Medical College where the doctor examined him and declared him dead. The aforesaid facts were stated by P.W. 1 Shantabai at the police station Sakkardara on 16.5.1991 and on that basis Crime No. 236 of 1991 under section 302 read with section 34 of the Indian Penal Code was registered at Police Station Sakkardara, Subdivision Ganeshpeth, District Nagpur on 16.5.1991 at 11.30 p.m. against one Nandu Laxman Dhiwar, resident of Sanjay Gandhi Nagair Zopadpatti, (2) Munna Umbarkar and (3) one unknown person. 3. On the aforesaid first information report (Exh. 39) the investigation of the crime commenced. The investigating officer prepared the spot and seizure panchanama dated 16.5.1991 (Exh.37). The body of the deceased Sikandar was sent for post-mortem examination and the postmortem examination was conducted vide postmortem report dated 17.5.1991 (Exh. 33). The investigating officer also prepared the inquest panchanama dated 17.5.1991 (Exh. 20), seized various artic1es vide seizure-panchanama dated 18.5.1991 (Exh. 21), seizure-memo dated 19.5.1991 (Exh. 22), seizure panchanama dated 19.5.1991 (Exh. 46), seizure panchanama dated 19.5.1991 (Exh. 47) and seizure panchanma dated 19.5.1991 (Exh. 48). The investigating officer also sent the seized articles for chemical analysis; inducting the viscera of stomach's content; loop of intestine, parts of liver, spleen and honey of the deceased Sikandar and obtained the report of Chemical Analyser dated 6.6. 1991 (Exh. 23), report of Chemical Analyser dated 4.10.1991 (Exh. 43) and report of Chemical Analyser dated 4.10.1991 (Exh. 44). The investigating officer also recorded the statements of the wife of the deceased, namely, Shantabai, and other witnesses under section 161 of the Cr. P.C. 4. 1991 (Exh. 23), report of Chemical Analyser dated 4.10.1991 (Exh. 43) and report of Chemical Analyser dated 4.10.1991 (Exh. 44). The investigating officer also recorded the statements of the wife of the deceased, namely, Shantabai, and other witnesses under section 161 of the Cr. P.C. 4. On conclusion of investigation, the investigating officer charge-sheeted the three persons, namely Munna alias Pramod, Nathu Laxman Shinde, and Anil Shamrao Sattaram, and since all the three persons were charged of the offence under section 302 read with section 34 of the Indian Penal Code, the case was committed for trial by the Additional Sessions Judge, Nagpur, who vide his order dated 22.8.1991 charged the accused persons to the effect that in furtherance of their common intention on or about 16.5.1991 at about 8.00p.m. at Chikhali Layout Plot No. 15-16 Sanjay Gandhi Nagar, Nagpur the accused persons committed the murder by intentionally or knowingly causing the death of Sikandar Ananarao Nade, resident of Nagpur. 5. In support of its case the prosecution examined Shantabai Sikandar Nade (P.W. 1), Dr. Ashok Hemraj Tank (P.W. 2), Videshi Motiram Shende (P.W. 3), Chandu Timaji Dodke, P.S.I. (P.W. 4), Nandkishor Dadaraoji Vaidya (P.W. 5), Jagdish Tukaramji Wankhede (P.W. 6) and Ramkishor Singh Bhola Singh Thakur, P.I. Crime Branch, Nagpur (P.W. 7). The prosecution also exhibited and proved the various documents inter-alia the inquest panchanama dated 17.5.1991 (Exh. 20), spot and seizure panchanama dated 16.5.1991 (Exh. 37), F.I.R. dated 16.5.1991 (Exh. 39), three C.A.’s report" dated 6.6.1991,4.10.1991 and 4.10.1991 (Exh. 23, 43, and 44 respectively), doctor's report dated 9.7.1991 (Exh. 34), postmortem report dated 17.5.1991 (Exh. 33) and various seizure panchanama. 6. The statements of accuscd persons were recorded under section 313 of the, Cr. P.C. and they denied the allegations made against them and submitted that they have been falsely implicated. 7. After hearing learned counsel for parties and considering the evidence on record, the learned Additional Sessions Judge acquitted the original accused No.1 Munna Alias Pramod and the original accused No.3 Anil Shamrao Sattaram of the offence under section 302 of the Indian Penal Code or any other offence in the said session’s case. 7. After hearing learned counsel for parties and considering the evidence on record, the learned Additional Sessions Judge acquitted the original accused No.1 Munna Alias Pramod and the original accused No.3 Anil Shamrao Sattaram of the offence under section 302 of the Indian Penal Code or any other offence in the said session’s case. However, the original accused No. 2 Nathu Laxman Shinde, who is the appellant in this criminal appeal; was convicted by the Additional Sessions Judge, Nagpur for the offence under section 304 Part II of the Indian Penal Code, and sentenced to suffer R.I. for four years and to pay a fine of Rs. 2000/- and in default of payment of fine to suffer further R.I. for six months vide his judgment dated 30.11.1991. 8. I have heard the learned counsel for the parties. Mr. Rajendra Daga has strenuously urged before me that there is no reliable prosecution evidence implicating the accused - appellant for the offence under section 304 Part II of the Indian Penal Code. The submission of Mr. Daga is that the testimony of P.W. 1 Shantabai is not believable and reliable and suffers from material and inherent contradictions. At every stage she has named the accused, who struck the deceased Sikandar with the broken glass bottle, as 'Nandu Dhiwar'. According to the learned counsel, P.W. 1 Shantabai was knowing the accused No.2 from the beginning and therefore the very fact that the accused - appellant is not named either in the first information report or in the statement of P.W. 1 Shantabai, the accused - appellant cannot be convicted of the offence under section 304 Part II of the Indian Penal Code. The learned counsel for the accused - appellant thus submitted that the conviction and sentence awarded by the trial Court to the accused - appellant deserves to be quashed and set aside. 9. Mr. Khamborkar, learned A.P.P., on the other hand supports the findings recorded by the trial Court and submits that the accused - appellant has been rightly convicted for the offence punishable under section 304 Part II of the Indian Penal Code. 10. I have bestowed my thoughtful consideration over the arguments advanced by the learned counsel for the accused - appellant. Khamborkar, learned A.P.P., on the other hand supports the findings recorded by the trial Court and submits that the accused - appellant has been rightly convicted for the offence punishable under section 304 Part II of the Indian Penal Code. 10. I have bestowed my thoughtful consideration over the arguments advanced by the learned counsel for the accused - appellant. P.W. 1 Shantabai, who is the only eye witness, according to the prosecution case, in the matter, has deposed before the Court that the alleged incident took place on the last Akshya Tritiya day. She had cooked the food at 5.00 p.m. and at about 7.00 to 7.30 p.m. while she was serving the food to the deceased Sikandar, his brother, parents and aunt outside the hut, the accused nos. 1 and 2 along with one person came to the hut and demanded the liquor from her husband. Her husband gave one bottle of liquor to the accused nos. 1 and 2 and the other person, and all of them consumed the liquor near the hut and again demanded the liquor. She deposed in the Court that all the accused persons before the court were the same persons, who had been to the hut at the time of incident and demanded the liquor. Again half bottle of liquor was given to the accused and all of them consumed the same, and when her husband demanded the money from them, accused nos. 1 and 3 caught hold of her husband and thereafter the accused no. 2 by breaking the bottle assaulted her husband with the bottle piece. According to P. W. 1 Shantabai, the blow was given over the neck of the deceased and due to that her husband sustained bleeding injury to his neck and started bleeding profusely and he collapsed on the earth. The other members of the family, who were having their dinner, immediately came to the spot. A rickshaw was called and the deceased was taken to the hospital where the doctor declared her husband dead and then a report was made to the police. In her cross examination, she has deposed that in her police statement she has stated that after consuming one bottle of liquor the accused persons again demanded the liquor. A rickshaw was called and the deceased was taken to the hospital where the doctor declared her husband dead and then a report was made to the police. In her cross examination, she has deposed that in her police statement she has stated that after consuming one bottle of liquor the accused persons again demanded the liquor. She further deposed that her statement was recorded by the police twice and that she has not stated before the police the name of assailant as Munna Pardeshi Thakur. She has also admitted that there was no light in her hut and husband was dealing in the business of illicit liquor. She has further deposed in her cross examination that she knew only the name and surname of the accused No.2 who is Nandu Dhiwar and she knew the accused No.2 since beginning as she was knowing his father. 11. If the aforesaid statement of P.W. 1 Shantabai is scanned in the light of the statement of the investigating officer Chandu Timaji Dodke (P.W. 4) it would be seen that the investigating officer has admitted that in the station diary the name of the accused has been shown as Munna Pardeshi Thakur by name. He has further admitted in cross examination that there was no reference in the statement of the complainant before the police that the bottle piece blow was given and the decease was held by the two persons. He has also denied in his cross-examination that the statement of the complainant i.e. P.W. 1 Shantabai was recorded twice. A look at the first information report (Exh. 39) which is based on the statement of P.W. 1 Shantabai would reveal that she has stated that the three persons, namely 'Nandu Dhiwar', Munna Umbarkar and third persons came to their house and demanded the liquor and after consuming liquor when her husband demanded the amount from them 'Nandu Dhiwar', Munna Umbarkar and third person started abusing her and her husband, and then 'Nandu Dhiwar' after hitting the bottle against the brick gave a blow of broken bottle on the neck of her husband and after her husband fell down, three accused persons kept beating her husband. In the first information report also the name of the main accused is stated to be 'Nandu Laxman Dhiwar'. In the first information report also the name of the main accused is stated to be 'Nandu Laxman Dhiwar'. In the first information report also there is no allegation that two other accused persons caught hold of the deceased Sikandar. In the first information report it is alleged that even after Sikandar fell down, all the three accused persons keep her husband beating. The injury report of Sikandar and the deposition of Dr. Ashok Hemraj Tank show that the deceased Sikandar sustained one injury, namely, deep incised wound on left side neck extending from ¼" below the thyroid cartilage midline upto medial end of clavicle left side size 2½” x 1" x 2" underneath vessels and muscles cut (internal jugular vein and carotid artery cut left side complete) haematoma. There are no injuries of beating whatsoever and Dr. Ashok Tank in his cross examination has admitted that the injury mentioned in the postmortem report of the deceased Sikandar is possible if a drunker falls on earth and comes in contact with a fixed piece of glass having sharp edge. The Chemical Analyser's report dated 6.6.1991 (Exh. 23) of the viscera of stomach content loop of intestine, liver, spleen and kidney of the deceased Sikandar reveals that the deceased Sikandar had consumed the liquor in as much as Exhibit 1, namely viscera relating to stomach, content and loop of intestine was found to contain 100 milligrams of ethyl alcohol per 100 grams and viscera relating to liver, spleen and kidney was found to contain 126 milligrams of ethyl alcohol per 100 grams and the blood of Sikandar was found to contain 115 milligrams of ethyl alcohol per 100 milliliters. Thus by the report of Chemical Analyser it is established that the deceased Sikandar had consumed the liquor and alcohol was found to have been consumed by him. 12. On material particulars, therefore, the statement of P.W. l Shantabai, who is the only eye witness, appears to be inconsistent and contradictory. While P.W. 1 Shantabai has stated in her deposition before the Court that her statement was recorded twice by the police, P.W. 4 Chandu Dodke, P.S.I. in his deposition before the court has testified that the statement of the complainant was recorded once only. While P.W. 1 Shantabai has stated in her deposition before the Court that her statement was recorded twice by the police, P.W. 4 Chandu Dodke, P.S.I. in his deposition before the court has testified that the statement of the complainant was recorded once only. Though P.W. 1 Shantabai has testified in her deposition that the bottle piece blow was given by the accused No. 2 after her husband was caught hold by the accused Nos. 1 and 3, P.W. 4 Chandu Dodke, investigating officer, in his statement has admitted that there is no reference in the statement of the complainant before the police that the bottle piece blow was given to the deceased, when he was caught hold by the two persons. She has emphasised in her cross examination that she knew the name and surname of the accused No. 2, who is 'Nandu Dhiwar', since she knew him from the beginning and was also knowing his father, but the fact is that the accused No. 2 is not 'Nandu Dhiwar' but Nathu Laxman Shinde. She has also stated in her cross-examination that she had not stated before the police the name of the assailant as Munna Pardeshi Thakur, whereas P.W. 4 Chandu Dodke, P.S.I. has admitted in his cross examination that in the station diary the name of the accused is shown as Munna Pardeshi Thakur. Obviously the name of the accused as Munna Pardeshi Thakur should have been written by the investigating officer in the station diary, when it was so stated by P.W. 1 Shantabai, but she has deposed before the Court that she has not stated before the police the name of the assailant as Munna Pradeshi Thakur. The sole testimony of P.W. 1 Shantabai, therefore, cannot be said to be of a sterling worth and cannot be relied upon as trust-worthy eye witness. Her statement is also not corroborated on material particulars by P.W. 4 Chandu. The identity of the accused No. 2-appellant, who is Nathu Laxman Shinde, cannot be said to be well established because in the first information report lodged by P.W. 1 Shantabai as well as in her statement at every stage it has been stated that 'Nandu Dhiwar' gave the blow of broken glass bottle on the neck of the deceased Sikandar is not the case of prosecution that 'Nandu Dhiwar' and Nathu Laxman Shinde is one and the same person. 13. The trial Court has also held that there is no independent corroboration to the statement of P.W. 1 Shantabai. But the trial Court found the solitary testimony of P.W. 1 Shantabai as trustworthy so far as the conviction of the accused under section 304 Part II of the Indian Penal Code is concerned. For the reasons stated above, I find myself not in agreement with the reasoning given by the trial Court while relying on the solitary testimony of P.W. l Shantabai and in my view, her statement is not of unimpeachable character and, therefore her statement cannot be held to be credible. It is true that the conviction tan be based on the solitary testimony of eye witness, but that depends on quality and credibility of that eye witness. It is also true that if the testimony or eye witness is reliable and trust-worthy, a suggestion contrary in, the medical evidence cannot prevail over such trust-worthy testimony of the eye witness. But in the instant case, as observed above, the testimony of Shantabai is not of a sterling worth, which can peruse the Court to base the conviction on the solitary testimony of such eye witness. 14. For all these reasons, I hold that the trial Court was not justified in concluding that the prosecution has proved the guilt of the accused appellant for the offence punishable under section 304 Part II of the Indian Penal Code. 15. Consequently this appeal deserves to be allowed and is hereby allowed. The judgment passed by the learned Additional Sessions Judge, Nagpur, in Sessions Case No. 615 of 1991 convicting the accused - appellant Nathu Laxman Shinde for the offence under section 304 Part II of the Indian Penal Code and the sentence awarded to him is quashed and set aside. The accused appellant is acquitted of the said offence and his bail bonds are discharged. Order accordingly. Appeal allowed.