JUDGMENT 1. - The present appeal arises out of the judgment delivered by the learned Sessions Judge, Hanumangarh in sessions case no. 235/94 dated 16.8.1996. The learned Sessions Judge tried seven accused persons for various offences. He had acquitted six accused persons and the only remaining accused, present appellant had been convicted under section 302 IPC. He has been sentenced to life imprisonment and a fine of Rs. 500/-. 2. Being aggrieved by the aforesaid conviction, the present appeal has been filed by the accused appellant Ahmeddeen. PW 1 Mal Singh submitted a written report (Ex. P/1) before the SHO Police Station, Hanumangarh Town on the basis of which FIR No. 137/94 dated 13.3.1994 was registered at police Station, Hanumangarh Town. In this report, first informant PW 1 Mal Singh named three persons namely Ahmeddeen, appellant Khairdeen acquitted accused and Yaqindeen a person who was not charge-sheeted and 40-50 other persons out of which five accused were charge-sheeted namely Sharif, Aziz, Jeeva, Smt. Jana and Imam Hussain. In the first information report submitted at 9.15 a.m. by the said PW 1 Mal Singh it was reported that informant is a resident of Lakhuwali. He has a piece of land which they have purchased. Today morning, the informant alongwith Mahendra Singh, Darshan Singh and Gurbachan Singh went to take round of the field. There they saw accused appellant Ahmeddeen, Khairdeen and Yaqindeen standing and firing. They did not proceed further as they were scared. In the meantime, Gurbachan Singh sustained a fire arm injury. It has further been reported in this report that accused persons who were 40-50 in number were heavily armed and they were exhorting that if they came forward, they will finish all of them including their family. On this, the said Mal Singh came to the Police Station and reported to the matter and expressed that something more might have happened after he left the scene of occurrence. On this, FIR (Ex. P/2) being No. 137/94 was registered under sections 147, 148, 149, 302, 323 IPC & 27 of the Arms Act. 3. The investigation was started. During investigation, the case was converted u/ s. 302 IPC as the injured Gurbachan Singh had succumbed to gun shot wound sustained by him. After investigation, the police came to the conclusion that Yaqindeen accused named in the FIR was not involved and charge-sheet was filed against seven accused persons. 3. The investigation was started. During investigation, the case was converted u/ s. 302 IPC as the injured Gurbachan Singh had succumbed to gun shot wound sustained by him. After investigation, the police came to the conclusion that Yaqindeen accused named in the FIR was not involved and charge-sheet was filed against seven accused persons. But of which six have already been acquitted. The trial Court framed the charges against the accused person which the accused denied and claimed trial. At the trial, prosecution examined 16 witnesses and produced various documents in support of its case. The defence also produced documentary evidence and examined DW 1 Rajendra Jain, Patwari. 4. The trial Judge found that PW 1 Mal Singh, PW 2 Gurmeet Singh and PW 11 Bhag Singh supported the prosecution case. The other witnesses though who were the family members like wife and brother-in-law of the deceased have turned hostile. The reasons for turning their hostile has been recorded by the learned Sessions Judge. He has written that there was a reported compromise in between the parties. The learned Sessions Judge has categorised the evidence regarding use of fire arm by accused Ahmeddeen and killing Gurbachan Singh, on the following points- (1) PW 1 Mal Singh had seen Ahmeddeen making fire at his field but he left the field as he got scared. (2) PW 2 Gurmeet Singh is the son of deceased who deposes that he had seen the accused firing at his father and then he brought his father to the hospital. (3) PW 11 Bhag Singh had seen accused Ahmeddeen armed with a gun going towards field. (4) According to PW 16 Sahi Ram a 12 bore licensed gun was recovered from accused Ahmeddeen. On the basis of these pieces of evidence, the learned Sessions Judge, convicted the accused appellant. 5. Learned counsel for the appellant assailing the judgment of the learned Sessions Judge has criticised the judgment and has stated that learned Judge has not appreciated the evidence of prosecution witnesses in right perspective and has relied upon the witnesses to convict the accused appellant without there being sufficient weightage in the evidence to support the conviction. According to the learned counsel for the appellant, PW 1 Mal Singh in his written report (Ex. P/1) has stated that three persons namely Ahmeddeen, Khairdeen and Yaqindeen were firing. According to the learned counsel for the appellant, PW 1 Mal Singh in his written report (Ex. P/1) has stated that three persons namely Ahmeddeen, Khairdeen and Yaqindeen were firing. He has not mentioned in the written report as to whose fire was effective. Thus, this witness cannot be said to a witness of occurrence. In his statement in Court, he has improved his version substantially. He has not stuck to his police version. He has improved to a great extent. He has not stated in the written report that it was the accused appellant who fired at the deceased, but in his Court statement, he had tried to show that it was the accused appellant whose shot was effective. If he can change his version to this extent, then he is a dangerous witness. If his first version is believed then there were three gunmen namely Ahmeddeen, Khairdeen and Yaqindeen, whose fire was effected is not known. Khairdeen has been acquitted and Yaqindeen has not been charge-sheeted. In this background, from the testimony of PW 1 Mal Singh, it cannot be said that it was only accused appellant's fire, that was effective. In this back ground, testimony of PW 1 Mal Singh is not worth the paper on which it is written and he has wrongly been relied by the learned trial Judge. 6. Learned counsel for the appellant has then criticised the evidence of PW 2 Gurmeet Singh. According to this witness, the only person armed with gun was Ahmeddeen. The other accused persons had either Gandasies or sticks. According to this witness, first assailant of his father was Khairdeen who gave Gandasi blow on the head of Gurbachan Singh. His version is not in conformity with the FIR. According to him after his father was hit, he took him to the hospital and the accused made their scape good which again is not in conformity with the first information report as the accused kept on waiting much thereafter. This witness admits that there was a stay granted by the SDM against them till the complainant claimed that they were in possession. DW 1 Rajendra Jain has clearly deposed that land was in possession of the,accused party. Regarding other accused persons, he has denied his earlier police version. He has also denied his police version that accused appellant fired at him also. DW 1 Rajendra Jain has clearly deposed that land was in possession of the,accused party. Regarding other accused persons, he has denied his earlier police version. He has also denied his police version that accused appellant fired at him also. He has tried to improve upon and said that appellant had fired only one shot. He has also denied earlier police statement that pellets fired by Ahmeddeen hit on the wall. From the version of this witness, it is not established that he knew what kind of shot was fired and how many shots were fired because he has prevaricated in this regard. The injury does not appear to be injury of,12 bore shot because it has been inflicted from the distance of 15 ft. A 12 bore shot from such a distance would give multiple injury and would not give a single injury wound. The pellet as has been stated by this witness in his police statement that they hit the wall has not been pointed out and recovered. He has also resiled from his police statement, therefore, his version that 12 bore gun was used is falsified. This witness was disbelieved qua seven other accused persons. There is no independent corroboration available on record to support his version. A solitary eye witness who is not supported in material particulars by any independent corroboration, and is found false qua other accused persons cannot be relied upon. Therefore, the learned trial judge has committed illegality in placing reliance on this witness. 7. Learned counsel for the appellant has further stressed that evidence of PW 11 Bhag Singh have wrongly been pressed into service by the learned Sessions Judge. This witness in his police statement was only a witness saying that he saw the accused going with the gun towards his field. He became an eye witness and when cross-examined on this point as to why he has not deposed so in Ex. D/3 he has given no explanation. He has stated that he had given this statement to the police. Why theolice has not written, he cannot say. Further, it is important that this witness was examined after 5-6 days and therefore he cannot be treated to be a witness of any consequence. Late recording of his statement has made him a witness of doubtful entity. 8. He has stated that he had given this statement to the police. Why theolice has not written, he cannot say. Further, it is important that this witness was examined after 5-6 days and therefore he cannot be treated to be a witness of any consequence. Late recording of his statement has made him a witness of doubtful entity. 8. Learned Public Prosecutor refuting the arguments of learned counsel for the appellant has stated that wife of the deceased and other witnesses of the prosecution though have turned hostile and has stated that assailants were masked but still there is sufficient evidence on record to show that appellant was armed with gun and he had used his gun and deceased had died due to gun shot injury. The accused was seen by PW 11 going towards 'field with gun and deceased had died due to gun shot. In these circumstances, the prosecution story has rightly been believed by the trial Court and conviction and sentence has rightly been passed. 9. We have heard learned counsel for the appellant and have perused the record. 10. A close scrutiny of evidence of PW 1 Mal Singh would reveal that according to this witness, there were three persons armed with gun and were making fire. Out of three persons, one was not challaned and other one has been acquitted. If three persons were making fire and only one fire has been effective, then it cannot be said that it was a fire made by the accused appellant which was effective, therefore, evidence of PW 1 Mal Singh is of no consequence* so far as prosecution version is concerned. Further handicap which is available in relation to this witness is that he has tried to improve upon his case from the previous one as set out in the written report. In his written report, he does not say he saw the fire made by the appellant hit the deceased but in Court, he has stated so. Therefore, no assistance can be taken from this witness. 11. As regards, PW 11 Bhag Singh, it is sufficient to observe that he was a witness who even in his late police examination has not stated that he was an eye-witness. Therefore, no assistance can be taken from this witness. 11. As regards, PW 11 Bhag Singh, it is sufficient to observe that he was a witness who even in his late police examination has not stated that he was an eye-witness. If a witness is examined 5-6 days late and then too, he does not claim to be an eye-witness, and then at the trial, claims that he is an eye witness, then no credence can be given to the evidence of such a witness, who improves his case from the police statement to a level, that he becomes an eye witness in the Court. In his statement under section 161 Cr.P.C. he has only stated that he has seen the accused going towards field with a gun. Even if this statement is taken, then it leads the prosecution no where, therefore, by the evidence of this witness also, no assistance can be said to be available to the prosecution. 12. This brings us to the only witness of occurrence, PW 2. In his police statement, he has stated that there were more than one fire made by the accused but in his Court statement, he has resiled from his previous statement and has stated that only one fire was made by the accused. This witness has been disbelieved by the trial Court qua the participation of Khairdeen and Khairdeen has been acquitted, so also other five accused persons. This has made this witness a witness of the category which can be said to be partly reliable witness. A witness who is partly reliable cannot be believed unless corroboration is coming forth from independent source. The mother of this witness and wife of the deceased have turned hostile. His brother has also turned hostile. In their statements, it has come that assailants came with muffled faces. In this back ground, no independent corroboration is available on record and therefore it is not safe to rely on the uncorroborated testimony of this witness. 13. The recovery of gun pressed into service is of no consequence as there is no connection established with the recovered gun and the crime. No ballistic report has been pressed into service. Another circumstance which is of a great significance in this case is that prosecution case is of the use of 12 bore gun and the injury sustained by the deceased is a single aperture injury. No ballistic report has been pressed into service. Another circumstance which is of a great significance in this case is that prosecution case is of the use of 12 bore gun and the injury sustained by the deceased is a single aperture injury. The doctor has stated that injury sustained by the deceased is not sustained by pellets but was by a single bullet. In view of the statement of doctor, the case set up by PW 2 Gurmeet Singh that accused had fired 12 bore gun shot by which his father was killed, falls to the ground. In this back ground also, it is not safe to convict the accused on the evidence of PW 2 Gurmeet Singh. 14. In the aforesaid circumstances, the accused-appellant is entitled to benefit of doubt. Consequently, his appeal is accepted. Resultantly, his conviction under section 302 IPC is set aside. He is undergoing the sentence which stands set aside with the setting aside of the conviction and therefore, he should be released forth-with, if not required in any other case.Appeal allowed. *******