Judgment R.N.Sahay and D.P.S.Choudhary JJ. 1. In Session Case No. 296/82, on the File of 6th Addl. Sessions Judge, Munger, five persons were placed for trial for committing murder of Fuldhan who was shot dead in the night of 28-11-1981. The learned Addl. Sessions Judge found all the five accused persons guilty of the charge framed against them and accordingly sentenced them to imprisonment for life. This has given rise to two appeals which are being disposed of by this Judgment. Cr. Appeal No. 13/87 is on behalf of appellants Mahesh Paswan and Umesh Paswan. Mahesh Paswan was charged under Sec. 302, IPC for having shot dead Fuldhan. He was again charged along with other accused under Secs. 302/149, IPC. Cr. Appeal No. 18/87 has been filed on behalf of appellants Sadanand Bind, Bhujangi Bind and Horil Bind. 2. The case of the prosecution was that Babulal Yadav, father of the deceased Fuldhan Yadav had a mill at Shivapur Langair at Munger-Kharagpur Road and was situated 10 kms. from Kharagpur Police Station. Babulal Yadav and the deceased were sleeping in the mill on that fateful night. Appellant Mahesh Paswan had also a mill at some distance away the mill of Babulal. At about 11.30 p.m. the appellants along with some unidentified criminals is said to have raided the mill of Babulal Yadav. They were all armed with deadly weapons. According to the Informant the accused persons surrounded the place and wanted a place to sleep in the night, which on the face of it appears to be absurd. However, the Informant refused to oblige the miscreants. It is alleged that the accused persons started damaging the bamboo raft construction used for fencing or working as a wall for the mill. Babulal also started striking lathis on the bamboo fencing to keep the accused persons away from the said raft. Fuldhan was sleeping in another room of the mill. The accused-persons had surrounded the mill. Babulal warned his son not to come out but Fuldhan Jumped the bamboo fencing and was then shot dead by Mahesh Paswan. Dead body of Fuldhan was found lying at some distance away from the mill in a field. On hearing the sound of firing an alarm was raised by the Informant and then several persons residing nearby came out and some of them also saw the miscreants running away. 3. Dead body of Fuldhan was found lying at some distance away from the mill in a field. On hearing the sound of firing an alarm was raised by the Informant and then several persons residing nearby came out and some of them also saw the miscreants running away. 3. It appears that at about 3 a.m. in the morning the Choukidar, Basudeo Turi reached Kharagpur Police Station and informed the Officer-in-charge about the incident, but the important fact is that he did not disclose the names of any of the accused persons to the officer-in-charge. Kharagpur Police Station. The officer-in-charge, Kharagpur Police Station was not examined during the trial. He reached the place of occurrence at 4 a.m. and recorded the fardbeyan of Babulal who gave a detail version of the occurrence and implicated all the five appellants. 4. The learned Trial Judge having found the evidence of the solitary eyewitness being reliable and trustworthy convicted the accused persons ignoring the salient facts which went in favour of the accused persons. In other word, the learned Trial Judge placed implicit reliance on the evidence of Babulal. 5. The defence of the three appellants in Cr. Appeal No. 13/87 was that they had no concern with the mill of the Informant or, the mill of Mahesh Paswan and Umesh Paswan. Appellants Bhujangi Bind and Horil Bind sons of Jago Bind of Cr. Appeal No. 18/87 had fought a criminal case against the Informant. The case related to certain land in which these appellants fought for their ancestral property. It is alleged that they had been implicated because of the dispute with the Informant. The defence of Mahesh Paswan and Umesh Paswan is that they have been implicated because of the business rivalry. It is alleged that Mahesh had a flourishing business whereas the Informant had no so many customers. 6. Fuldhan was shot dead in the night of 28-11-1981 is beyond controversy and is fully established by ocular and medical evidence. 7. The question for consideration is whether the learned Addl. Sessions Judge correctly appreciated the evidence while holding the appellants guilty. Mr. N.K. Roy, learned Counsel for the appellants in Cr. Appeal No. 13/87 and Mr. Shakeel Ahmad Khan, learned Counsel for the appellants in Cr. 7. The question for consideration is whether the learned Addl. Sessions Judge correctly appreciated the evidence while holding the appellants guilty. Mr. N.K. Roy, learned Counsel for the appellants in Cr. Appeal No. 13/87 and Mr. Shakeel Ahmad Khan, learned Counsel for the appellants in Cr. Appeal No. 18/87, vehemently argued that the learned Trial Judge completely misdirected himself in accepting the evidence of the Informant in the face of numerous infirmities in the evidence. Learned Counsel for the appellants contended that Chowkidar Basudeo Turi had given the earliest information of the occurrence and was the essential witness for unfolding the prosecution case and his non-examination has caused serious prejudice to the accused persons in their defence. As stated earlier, Chowkidar had not disclosed the names of any of the accused persons though he had gone to the place of occurrence before going to the Police Station. Non-examination of the Investigating Officer further caused serious prejudice to the accused persons. There is no evidence on the point of place of occurrence and where the dead-body of the deceased was found and whether there was sufficient light to enable the Informant to identify the culprits in the night. Apart from these infirmities, learned Counsel has preferred to the evidence of Bahadur Pandit, PW 4, who was a Homoeopath by profession and an independent witness. Bahadur Pandit testified that at about 11-12 in the night, he was sleeping in his house and on hearing the hulla of chor-chor, he went to the mill where he found several persons assembled and saw the Informant with a torch who appeared to be nervous. The Informant spoke to this witness that the miscreants had fled away. He did not disclose the names of the miscreants. This witness also stated that he found Basudeo Turi and Armed Force Party there. The Armed Force was stationed therein a nearby hospital. The other witnesses who have supported the prosecution case deposed what they were told about the incident by the Informant. 8. In the case of Badri V/s. The State of Rajasthan, it was held that it is well established that conviction can be based on the testimony of a solitary witness, provided the witness is of sterling quality and there is no other infirmity in the evidence. 8. In the case of Badri V/s. The State of Rajasthan, it was held that it is well established that conviction can be based on the testimony of a solitary witness, provided the witness is of sterling quality and there is no other infirmity in the evidence. In the case of Vaviavelu Thevar V/s. The State of Madras, the Supreme Court clarified the oral testimony and classified in three categories; (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. There is no difficulty about the first two categories, but with regard to the third category, it was observed by the Supreme Court that "it is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. In the present case, admittedly the Informant was on hostile terms with the appellants. The occurrence had taken place in the dead of night and it might not have been possible for Informant to identify so many accused persons when the miscreants were on the other side of the fencing. According to the Single testimony of the Informant, when he was striking at the fencing, he heard the sound of firing. In that situation whether he would have been able to identify the person who shot dead his son is doubtful. The four prosecution witnesses have deposed that the Informant did not disclose the names of any of the miscreants. Nonexamination of the Chowkidar cannot be lightly brushed aside. It was further submitted that the Informant had reasons to implicate the appellants because of the business rivalry to put down the business as they had also installed a mill near the mill of the Informant. On review of evidence, we find it extremely hazardous to uphold the conviction of the appellants on the solitary testimony of the informant, who is certainly an interested witness and whose evidence has not been supported by the other witnesses. 9. In the result, both these appeals are allowed and the order of conviction and sentence passed against the appellants is hereby set aside. They are accordingly acquitted and are discharged from the liability of their bail bonds.