Judgment M.L.Visa, J. 1. This appeal is directed against the judgment dated 17.9.1998 and order dated 19.9.1998 convicting and sentencing the appellant to undergo life imprisonment under section 302 of the Indian Penal Code in Sessions Trial No. 150 of 1992. 2. The case of the prosecution in short, is that on 17.6.91 the appellant and his brother-in-law Md. Kalim (deceased) after coming to the house at about 6.30 P.M. took their meal and threafter sat on a chauki at the darwaja of house. The wife of appellant Bibi Noor Jahan (deceased) was also sitting there. The appellant and his brother-in-law were talking about Roksadi of Bibi Noor Jahan. At about 9 P.M. the informant Md. Islam Khalifa (PW 4), father of appellant, came out of his house for purchasing biri and when he had covered a distance of about] 20 yards he heard sound of explosion from his house and when he turned back for his house, he again heard another sound of explosion. When he came back to his house he found that his daughter-in-law Noor Jahan and Md. Kalim both were lying injured. In the meantime, a number of villagers assembled there and when both the injured were being taken for treatment, they both succumbed to; their injuries. The appellant escaped from there and was not found even on search] The informant on the next day i.e. or 18.6.91 at about 8.15 A.M. went to Police Station where he lodged the FIR alleging therein that the appellant by throwin bombs had committed the murder of but the deceased. About the motive of occurrence the informant in the FIR stated that his son, the appellant had married Noor Jahan from whom he had one son aged about 7 years and one daughter aged about 5 years but he was not giving money to his wife for household works and for this reason there were differences between him and his wife and his brother-in-law, deceased Md. Kalim, used to come to the house of appellant and used to scold him and a Panchayati was also held on month prior to the occurrence. Kalim, used to come to the house of appellant and used to scold him and a Panchayati was also held on month prior to the occurrence. The police after registering a case under section 302 IPC and sections 3/4 of the Explosive Substance Act against the appellant took up the investigation of the case and after completing investigation submitted charge sheet under section 302 IPC and sections 3/4 of the Explosive Substance Act against the appellant. 3. After cognizance the case was committed to the court of Sessions where charges under section 302 IPC and section 3 of the Explosive Substance Act were framed against the appellant. The appellant denied the charges. His case before the court below was his false implication in the case. 4. After trial the court below found the appellant guilty under section 302 IPC and accordingly convicted and sentenced him to undergo imprisonment for life. Charge under section 3 of the Explosive Substance Act was found not proved because of want of sanction and the appellant was acquitted for this charge. 5. In order to prove its case the prosecution has examined 9 witnesses. Islam Khalifa (PW 4) is the informant. Dr. Amar Nath Jha (PW 2) is the doctor who had held autopsy on the dead bodies of deceased Bibi Noor Jahan and Md. Kalim. Md. Jamiluddin (PW 1) is said to have heard the sound of explosion and had seen the appellant running away. Paro (PW 3), mother of appellant, has simply stated that she had heard sound of explosion in the angan of her house and became unconscious and could not see anything. She has been declared hostile. Md Rafiquddin (PW 5), father of deceased Md. Kalim and father-in-law of appellant, has stated that on 17.6.91 the appellant had come to his house and had taken the deceased Md. Kalim with him to his house on the pretext of attending a Milat. Babu Lal Sah (PW 6) and Md. Alauddin (PW 7) are the witnesses who had reached the place of occurrence after hearing the sound of explosion and had seen both the deceased lying injured. Babu Lal Sah (PW 6) has also been declared hostile. Guria Khatoon (PW 8) is the daughter of appellant and is the only witness who has supported the case of prosecution. 6. Dr. Alauddin (PW 7) are the witnesses who had reached the place of occurrence after hearing the sound of explosion and had seen both the deceased lying injured. Babu Lal Sah (PW 6) has also been declared hostile. Guria Khatoon (PW 8) is the daughter of appellant and is the only witness who has supported the case of prosecution. 6. Dr. Amar Nath Jha (PW 2), in his evidence, has stated that on 18.6.91 at 5.15 P.M. he conducted post mortem examination on the dead body of Bibi Noor Jahan, wife of appellant and found extensive injury extending from below the rib on the right side of abdomen upto the middle of right thigh and internal visceras such as right kidney, intestine small and large were bulging out and margins of the injuries were found blackened and these injuries were most probably caused by explosives such as bomb and cause of death was shock and haemorrhage due to injuries which were sufficient in ordinary course, to cause death. According to him, the time elapsed since death was within 24 hours. 7. The Doctor (PW 2) has also stated that he at 4.45. P.M. conducted post mortem examination on the dead body of Md. Kalim and found that his both eye balls were damaged. Nose and maxillae (both) were damaged and were partially absent. Upper jaw and upper lip were completely damaged. Injuries were extending from lower jaw to the forehead below the eye brows and margins of the injuries were blackened and the injuries were caused most probably by explosives such as bomb and cause of death was due to shock and haemorrhage caused by these injuries which were sufficient in ordinary course of nature to cause death and time elapsed since death was within 24 hours. He has proved Post Mortem Examination Reports (Exts. 1 and 1/a). 8. In cross examination PW 2 has stated that the words "most probably" used in the reports (Exts. 1 and 1/a) were superfluous and he should not have used it and by using these words he meant to say maximum chance and not minimum chance. In other words, according to him, there was maximum chance that the injuries found on the dead bodies were caused by some explosive substances. So we find that he is not sure and definite that the injuries were caused by explosive substance and not by any other means. In other words, according to him, there was maximum chance that the injuries found on the dead bodies were caused by some explosive substances. So we find that he is not sure and definite that the injuries were caused by explosive substance and not by any other means. His opinion that the injuries were caused by some explosive substance is based on the degree of probability which is apparent from his evidence because according to him there was maximum chance that such injuries were caused by explosive substance. Accepting the evidence of this witness that there was maximum likelihood that the injuries were caused by some explosive substance, now we will examine that what evidence has been adduced by prosecution to prove that these injuries were caused by the appellant. 9. Islam Khalifa (PW 4), informant of this case is father of appellant. In his evidence he has stated that on the day of occurrence he came out of his house for purchasing bin but because it was raining at that time, so he could not go further and remained outside his house and he then heard sound of explosion and when he turned back, he again heard another sound of explosion and when he came running inside the house, he found that there was smoke and nothing was visible. After sometime when the smoke was cleared he found that his daughter- in-law was lying injured in the angan and Md. Kalim was lying injured near the darwaja of his house. He then raised nulla and he by taking both the injured proceeded to a village doctor but Md. Kalim died in the way near a pond and he then came back to his house where his daughter-in-law also died. About the appellant he has stated that he was traceless. He has clearly stated that he did not see anybody causing injuries to both the deceased. In cross examination he has stated that deceased Md. Kalim took out an article like a box which exploded and by that explosion both the deceased received injuries. He has been declared hostile. About the appellant he has stated that when appellant came to his house on the day of occurrence at about 11 P.M. by that time both the injured were dead and appellant became nervous and he then fled away from his house. 10. Md. He has been declared hostile. About the appellant he has stated that when appellant came to his house on the day of occurrence at about 11 P.M. by that time both the injured were dead and appellant became nervous and he then fled away from his house. 10. Md. Jamiluddin (PW 1) in his evidence has stated that on the day of occurrence he was sitting at the darwaja when he heard two sounds of explosions and sometime thereafter there was nulla that the appellant had injured his wife and brother-in-law by bomb and he found the appellant running towards north side raising nulla of dacoit dacoit" and he then sent his son Jalaluddin to inquire about the matter and his son after sometime returned and informed him that the appellant had injured his wife and his brother-in-law and both the injured had been taken to State Dispensary. He then went to State Dispensary where he found both the deceased in injured condition and persons assembled there were saying that appellant had caused injuries to both of them by bomb and the compounder of the State Dispensary advised to take the injured to Bhagalpur and then the informant tried to arrange a vehicle but he could not get any vehicle and then both the injured were brought back to the house of appellant but in the way Md. Kalim died and the wife of appellant also died after one hour in the house of appellant. In cross examination he has stated that he does not know the names of those persons who were telling that appellant had injured both the deceased. In para 8 of his cross examination he has stated that he was not examined by the l.O. 11. Babu Lal Sah (PW 6) has stated that on hearing hulla he had gone to the house of appellant where he had seen both the deceased lying injured. He has been declared hostile by the prosecution. Md. Alauddin (PW 7) in his evidence has stated that on hearing hulla he went to the house of appellant where he found both the deceased lying injured and the wife of appellant was telling something but her voice was not clear. He has also not stated anything against the appellant. 12. Guria Khatoon (PW 8) is the daughter of appellant and is the only witness who has supported the case of the prosecution. He has also not stated anything against the appellant. 12. Guria Khatoon (PW 8) is the daughter of appellant and is the only witness who has supported the case of the prosecution. She in her evidence has stated that on the day of occurrence she was sitting in the western osara of her house and her mother called her maternal uncle Md. Kalim for meal and Md. Kalim sat for taking meal and called the appellant also but the appellant told that he was to go to latrine and thereafter his maternal uncle Md. Kalim took the meal and her mother started cleaning the utensil in the angan and she saw that her father instead of going to latrine went in the western portion of the house and she saw two bombs in his hands. The appellant threw one bomb on her mother and when her maternal uncle Md. Kalim cried that his sister had been injured, the appellant threw another bomb on her maternal uncle and thereafter appellant escaped from there. She has further stated that her mother and maternal uncle were taken to village hospital where she also went and the doctor present there advised for taking the injured to Bhagalpur and when both the injured were being brought back to house her maternal uncle died in the way and her mother died in the house. The witness was examined by the court below on 27.6.96 when she stated her age as 13 years and the court below estimated her age as 14 years. The occurrence is said to have taken place on 17.6.91. Admittedly at the time of occurrence this witness must have been aged between 8 and 9 years meaning thereby that at the time of occurrence she was a child. In this case, except her other witnesses examined on behalf of the prosecution have not stated anything against the appellant. The defence in cross examination of this witness has drawn her attention towards some contradictions in her earlier statements made before I.O. and in her evidence. The attention of this witness is on the points that whether she had earlier stated that at the time of occurrence she was sitting in the western osara of her house, her mother was cleaning utensils in the angan, the appellant caused injuries by bomb on the abdomen of her mother besides on a number of other points. The attention of this witness is on the points that whether she had earlier stated that at the time of occurrence she was sitting in the western osara of her house, her mother was cleaning utensils in the angan, the appellant caused injuries by bomb on the abdomen of her mother besides on a number of other points. The prosecution has not examined I.O. The court below has observed that on perusal of statements of this witness under section 161 Cr. P.C. it did not find any contradiction in her earlier statements and in her evidence. In our opinion, the court below was not permitted to use her statements recorded under section 161 Cr.P.C. in the case diary because it cannot use the case diary. In this case, as stated earlier, the I.O. has not been examined and the prosecution has not examined any other witness to prove the case diary. She being the solitary eye witness on the point of occurrence and the defence in her cross examination has drawn her attention towards some contradictions in her earlier statements and in her evidence but these contradictions could not be corroborated by the evidence of I.O. on account of his non examination. We find that FIR of this Case has not been brought on record. The court below has observed that because the FIR is not a substantive piece of evidence so if the prosecution has not brought it on record it will not be a ground to discard the evidence of witnesses examined on behalf of prosecution. We futiy agree with this finding of the court below but we feel difficulty in agreeing with the finding of the court below that during the course of cross examination the informant has tried to introduce a new fact which was never stated by him either in his FIR or in his further statements recorded under section 161 Cr. P.C. where he has stated that deceased Md. Kalim took out a box which exploded causing injuries to the deceased. According to the court below if it would have been a fact then the informant must have stated this fact before the police. P.C. where he has stated that deceased Md. Kalim took out a box which exploded causing injuries to the deceased. According to the court below if it would have been a fact then the informant must have stated this fact before the police. When the prosecution has not brought the FIR on record and has not examined the l.O. there was no material before the court below to hold what was stated by the informant in FIR and in his statements before the I.O. It appears that although the court below has opined that FIR is not a substantive piece of evidence but it has used it like so even without its formal proof. 13. Miss Radha Rani Mitra, learned counsel appearing on behalf of the appellant as amicus curiae has submitted that the attention of Guria Khatoon (PW 8) has been drawn on some very important contradictions including her own presence at the place of occurrence and because the prosecution has not examined the I.O. so the contradictions could not be corroborated and it has caused great prejudice to the appellant. We fully agree with the submission of Miss Radha Rani Mitra and find that non examination of I.O. has certainly caused prejudice to the appellant. When entire case of prosecution is based on a solitary evidence of PW 8 who at the time of occurrence was a child, that evidence has to be considered very carefully and cautiously and conviction on such type of evidence can be passed only when such evidence inspires full confidence. In the present case the defence has challenged the very presence of this witness at the time of occurrence by drawing her attention towards some contradictions in her earlier statements as well as in her evidence and as stated above, the defence could not get any opportunity to bring on record these contradictions by getting the same corroborated by I.O. because the prosecution did not produce the I.O. So we do not find it safe to rely on the solitary evidence of Guria Khatoon (PW 8) for uphdolding the conviction of the appellant. 14. In the result, this appeal is allowed. The judgment and order of conviction and sentence passed by the court below against the appellant is set aside. The appellant, who is in jail, is ordered to be released forthwith if not wanted in any other case. 14. In the result, this appeal is allowed. The judgment and order of conviction and sentence passed by the court below against the appellant is set aside. The appellant, who is in jail, is ordered to be released forthwith if not wanted in any other case. B.P.Sharma, J. 15 I agree.