D. M. PATNAIK, J. ( 1 ) THE appellant, sole accused of 16 persons, who faced trial for the offence under section 302 of the Indian Penal Code (TI. P. C. T for short) assails his order of conviction and sentence of life imprisonment, others having been acquitted. The informant (P. W. 1) being aggrieved by the order of the learned Additional Sessions Judge has preferred the revision before this Court praying for setting aside the order of acquittal. This common judgment disposes both the cases. ( 2 ) PROSECUTION case is, in the faction ridden village Khandagiri, the prosecution party and the accused party had randour between two groups for various reasons. It was alleged that on 6. 10. 1989 around 4. 30 p. m. , deceased Laxmidhar Pradhan was proceeding to Pipli market on the village road. This appellant and his associates (since acquitted) were waiting near the Mahila Samiti being armed with diversed weapons. When the deceased reached near the canal bridge, on the instigation of accused Bairagi, all the accused persons attacked him. This appellant, it was alleged that, gave Farsa blows on the deceased who died on the way to the S. C. B. Medical College and Hospital, Cuttack. The appellant denied the indictment. ( 3 ) THE learned Trial Judge based his decision in convicting the appellant solely on the evidence of P. W. 4, the eye witness. ( 4 ) MR. Deepak Mishra, learned Counsel for the appellant, strenuously urged that it was an error on the part of the learned Additional Sessions Judge in convicting the appellant in the face of various doubtful circumstances in the prosecution case and patent infirmities in the evidence of P. Ws. 4. It was further submitted that the trial Court, on the face of about 8 hours delay in lodging the F. I. R. and about 5 days delay in examining P. W. 4, the sole eye witness to the occurrence, should have totally disbelieved the prosecution case. Mr. Mishra cited various decisions in support of his contentions. Mr. G. K. Mohanty, learned Counsel for the state, on the other hand, submitted that the delay in both the cases as pointed out by the learned Counsel, having been sufficiently explained by the prosecution and there being no improbability in the prosecution case, the findings of the learned Trial Judge should not be interfered with. Mr. G. K. Mohanty, learned Counsel for the state, on the other hand, submitted that the delay in both the cases as pointed out by the learned Counsel, having been sufficiently explained by the prosecution and there being no improbability in the prosecution case, the findings of the learned Trial Judge should not be interfered with. ( 5 ) THE homicidal nature of death of Laxmidhar was not assailed before us and that too rightly because, the injury sustained on the head as found by P. W. 5, the Doctor was an incised cut wound horizontally placed, caused by heavy sharp cutting weapon over the parietal aspect of the head measuring 5 c. m. x 1/2 c. m. The fracture extended from left parietal bone to right was of 5 c. m. long. The Doctor opined that this injury was ante-mortem in nature and sufficient in the ordinary course of nature to cause death. The next question remains for decision is, whether P. W. 4, the sole eye witness should have been believed by the Court in proving the prosecution case to the hilt. ( 6 ) THE lich pin of the prosecution evidence is the testimony of this P. W. 4, the only eye witnesss to the occurrence. A severe criticism was levelled that the examination of this witness by the police was five days after the occurrence and that without satisfactory explanation of such delay his testimony deserved to be discarded. P. W. 4 stated, about 4 p. m. he was going to canal side to ease when he found this appellant and one Sarat were standing on the canal bridge. Other accused persons (since acquitted) were standing near the club house of the village. While about to ease, hearing the hulla, he looked towards the canal bridge and saw this appellant chasing Laxmidhar and the latter was obstructed by Bairagi and others. By that time he had approached the bridge on foot. From that place he saw the appellant dealing a Faram blow on the backside head of Laxmidhar who fell down on the ground. Thereafter, Bairagi pushed the lathi into the mouth of Laxmidhar, Prarriakrishna stood on the belly and Sarat on the chest. After the assailants went away, he and others went near Laxmidhar and removed him from that place by a Luna moped to Pipli hospital. Thereafter, Bairagi pushed the lathi into the mouth of Laxmidhar, Prarriakrishna stood on the belly and Sarat on the chest. After the assailants went away, he and others went near Laxmidhar and removed him from that place by a Luna moped to Pipli hospital. He, out of fear went to his father-in-laws village. ( 7 ) THE version of this witness that Bairagi pushed a lathi in the mouth of the deceased, Pranakrishna stood over the belly and Sarat on the chest of the deceased has been disbelieved by the Trial Court and those persons have been acquitted of the charges. The Trial Court has not given any reason as to why after having discarded that part of the version of this witness with regard to the other accused persons, what led it to believe his version with regard to assault by the appellant on the deceased. The Trial Court only discussed the evidence with regard to the credibility of a partisan witness. It has also believed that P. W. 4 was a witness to the occurrence and the reason given by the Trial Court is, his presence at the spot was highly probable. Assuming, we believe that this witness was present at the precise moment, that itself would not be sufficient to accept his version unless there is a finding that he was able to see the occurrence because of proximity the distance between the place of assault and the place from which he saw. This would again depend on the visibility not being impaired by poor light or by any obstruction in between. There is no finding to that effect. We are unable to accept the reasoning of the Trial Court because the presence of the, witness was highly probable his testimony should be accepted particularly when it has given a finding that he did not believe that part of the evidence of this witness relating to the assault by other accused persons. The Trial Court has given a reason that the evidence of P. W. 4 has been corroborated but it has failed to mention as to in what way the evidence has been corroborated. The only corroboration which we feel appropriate to accept would be that the deceased suffered from the injuries as stated above and died because of the injures. The Trial Court has given a reason that the evidence of P. W. 4 has been corroborated but it has failed to mention as to in what way the evidence has been corroborated. The only corroboration which we feel appropriate to accept would be that the deceased suffered from the injuries as stated above and died because of the injures. Except this we do not find the evidence of P. W. 4 to have been otherwise corroborated and that is because of doubtful nature of that part of his evidence with regard to other accessed persons acquitted. ( 8 ) P. W. 4 admitted that he left the place and went to his father-in-laws house. The I. 0. stated to have examined him 5 days after the occurrence in the village of his father-in-law which, according to the prosecution evidence, is only 5 K. Ms. away from the village of the parties. We do riot feel that in such a serious case the 1. 0. should have examined the witness 5 days after the occurrence who was only staying at a distance of 5 K. Ms: could have hardly stood on the way of the 1. 0. to examine the soli witness to the occurrence. Therefore, the accordance of P. W. 4 should have been totally carded by the Trial Court. ( 9 ) THE learned Additional Standing Cm for the State repelling the argument about delay in lodging the F. I. R. submitted that it rather natural on the prosecution witness to carry the injured for treatment to the hospital first to have reported the matter first at the police station. We are unable to accept this argument Mr. Mohanty for the simple reason that the place pipli occurrence was hardly about 11/2 K. Ms. from Pipli Police Station which was situated on main road from Pun to Cuttack and the injured was carried from Pipli hospital to the S. C. B. Medical College Hospital, Cuttack through Police Station. In that case, there could have hardly any justification not to report the mat the police. from Pipli Police Station which was situated on main road from Pun to Cuttack and the injured was carried from Pipli hospital to the S. C. B. Medical College Hospital, Cuttack through Police Station. In that case, there could have hardly any justification not to report the mat the police. The delay of eight hours in such a when the police station is situate by the side main road and the injured was taken to the S. C. B. Medical College Hospital, Cuttack for treat through that road is sufficient to cast a doubt in the prosecution case; That apart, there being counter case registered at the instance of the appellant which is admitted by the 1. 0. , the delay of even 8 hours, affected the truthfulness of the persecution case as given out by P. W. 4. ( 10 ) IT is further surprising to note as rightly, argued by Mr. Mishra that P. W. 1 stated the reaching the Pipli hospital he met the A. S. I Mallick Babu where the latter was informed about this occurrence. Although in Para 8 of his examination-in-chief P. W. 1 stated that the A. S. I. Mallick Babu advised him to immediately take injured for treatment, the prosecution for the reasons best known to it, did not examine A. S. I. Mallick either to explain the delay or to the fact of P. W. lts informing him about the occurence. Non-examination of such an important police officer definitely casts a doubt on the prosecution case. One Prafulla Kumar Panda, as stated by P. W. 1, carried the injured on his Luna moped. The prosecution has not come forward with an explanation as to why said Prafulla Kumar Panda such an important witness was not examined. This is also a serious infirmity in the prosecution case. ( 11 ) P. W. 4 admitted in Para 8 of his cross-examination that he was an accused in the counter-case to this case at the instance of accused Sarat (since acquitted ). The 1. 0. has also admitted this. In the face of such allegation and counter-allegation, the sole version of P. W. 4 did not inspire confidence in proving the prosecution case against this appellant beyond reasonable doubt. We have no hesitation in setting aside the orders of conviction and sentence of the Trial Court because of the reasons already given by us. 0. has also admitted this. In the face of such allegation and counter-allegation, the sole version of P. W. 4 did not inspire confidence in proving the prosecution case against this appellant beyond reasonable doubt. We have no hesitation in setting aside the orders of conviction and sentence of the Trial Court because of the reasons already given by us. So far as the criminal revision is concerned, having gone through the evidence of the witnesses particularly that of P. W. 4 which we have disbelieved for the reasons already indicated, we do not find any other reason to allow this revision Therefore, this revision is dismissed. ( 12 ) IN the result, the criminal appeal is allowed. The orders of conviction and sentence are set aside and the appellant is acquitted of the charge. He be set at liberty forthwith. Appeal allowed.