Judgment R.N.Prasad, J. 1. Reference has been made by the 3rd Addl. Sessions Judge, Chaibasa under Sec. 366 of the Code of Criminal Procedure for confirmation of death sentence of six convicts, whereas appeal has been filed by the convicts for setting aside the judgment and order passed by the trial Court. Both the cases were heard together and are being disposed of by this judgment. 2. Appellant Kali Das Manjhi, Kalu Manjhi, Dubraj Manjhi, Rai Singh Manjhi, Kalyan Manjhi and Tara Chand Manjhi have been convicted for the offence under Secs. 302/149/34 of the Indian Penal Code and have been sentenced to death. Rest of the appellants have been convicted for the offence under Secs. 302/149/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. They have further been convicted for the offence under Sec. 201 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 3000.00 each, in default of payment of fine, to undergo further rigorous imprisonment for two years. 3. The prosecution case, as stated in the fardbeyan, is that one Ghan Shyam Manjhi son of late Sukh Ram Manjhi of village Raghoi, P. S. Sonua, District Singhbhum West gave his fardbeyan before the Officer-in-charge of Sonua Police Station on 24-7-1986 at about 5.30 p.m. that he, his father, his mother, one elder brother Suresh Majhi, two younger brother, one elder sister and one younger sister were residing at their village Raghoi. His one elder brother, namely, Ghan Shyam Murmu was constable and was posted at Dhanbad. He has two step brothers, namely, Suresh Manjhi and Ghan Shyam Murmu. On 19-7-1986 he had gone to take bath in the rivulet. While he was returning to his house after taking bath he saw Kali Das Manjhi, Kalu Manjhi, Dubraj Manjhi, Budhua Manha, Diku Manjhi and Jugi Manjhi of his village who had tied his father to a flower plant. Many people of the village assembled who were saying that son of Diku Manjhi died due to his witchcraft. The villagers were saying that Sukhram Manjhi and his wife were Ojha and witch respectively. Rai Singh Manjhi ordered to kill the entire family. They assaulted his father with lathi and axe. Many people of the village assembled who were saying that son of Diku Manjhi died due to his witchcraft. The villagers were saying that Sukhram Manjhi and his wife were Ojha and witch respectively. Rai Singh Manjhi ordered to kill the entire family. They assaulted his father with lathi and axe. Thereafter, the villagers caught his mother, Parwati Majhiain, elder sister, Laxmi Majhiain, younger sister Nani Majhiain, younger brothers Logo Manjhi and Pradhan Manjhi and took them away. Out of them he identified 26 persons of his village. His brother Suresh Manjhi, his Bhabhi and others had seen them. The aforesaid persons thereafter assaulted them with lathi and axe and cut them into pieces. He learnt that the dead bodies were thrown in Sanjay river. He, however, concealed himself and went to his relation at village Beguna out of fear as they were also searching him. The occurrence took place between 5.30 p.m. to 7.30 p.m. The motive of the occurrence was that there was land dispute between his father and Budhuwa Manjhi and Diku Manjhi. Due to the aforesaid reason the villagers committed the murder. The occurrence was witnessed by his brother, his Bhabhi and uncles. He also learnt that head, hand and leg of his parents, two brothers and two sisters were cut and thrown in the river. He out of fear went to Chakardharpur due to which there was delay in lodging the First Information Report. 4. On the aforesaid fardbeyan, Ext. 4, formal First Information Report, Ext. 3, was drawn, investigation was taken up and after completion of investigation charge-sheet was submitted against 25 accused persons. On submission of charge-sheet cognizance was taken and the case was committed to the Court of Sessions for trial. During trial four accused, namely, Sanko, Soren, Soma Manjhi, Ghasia Manjhi and Budhram Manjhi alias Budhwa Manjhi died and as such only 21 accused persons faced trial. The trial Court on conclusion of the trial convicted and sentenced the appellants as indicated above. 5. The defence of the appellants was total denial of the charges levelled against them and also that they were innocent and did not commit any offence. 6. The prosecution in support of its case examined 8 witnesses, out of whom, P.W. 1, P.W. 2 and P.W. 3 have been declared hostile. P.Ws. 5 and 6 are witnesses to the recovery and seizure of the bones. 6. The prosecution in support of its case examined 8 witnesses, out of whom, P.W. 1, P.W. 2 and P.W. 3 have been declared hostile. P.Ws. 5 and 6 are witnesses to the recovery and seizure of the bones. P.W. 7 is an Advocate clerk who proved First Information Report, Ext. 3, fardbeyan, Ext. 4 and also inquest reports, Exts. 5 and 5/1. P.W. 8 proved the case diary, Ext. 6. P.W. 4 is the informant and claimed to have witnessed the occurrence. 7. The salient feature of the case is that the occurrence took place on 19-7-1986 between 5.30 p.m. to 7.30 p.m. The First Information Report was lodged on 24-7-1986 i.e. after five days. In the occurrence six persons including father of the informant were killed. The dead bodies were not recovered. Only bones were recovered on 26-7-1986. The said bones were sent to the Forensic Science Laboratory for examination and report dated 13-8-1987 was submitted which has been marked as Ext. 2. P.Ws. 1 and 2 are uncles of the informant and brothers of deceased Sukhram Manjhi, the father of the informant. P.W. 3 is the step brother of the informant and son of the deceased Sukh Ram Manjhi. They did not support the prosecution case with regard to participation of the appellants in the occurrence and as such they have been declared hostile. P.W. 4 is the son of deceased Sukh Ram Manjhi and is informant of the case. He has claimed to have seen the occurrence. Therefore, the case is based on the testimony of sole witness P.W. 4. The murder of six persons is not in dispute rather dispute is with regard to participation of the appellants in the occurrence. 8. Before adverting to the merit of the case, it is necessary to mention herein that legislature has not insisted on particular number of witnesses for proving a fact. Sec. 134 of the Evidence Act says that no particular number of witness shall in any case be required for the proof of any fact. The Apex Court in the case of Vadivelu Thewar V/s. State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000) has held that there is no bar for convicting the accused person on the evidence of sole witness, if the evidence of the sole witness is wholly trust worthy. The Apex Court in the case of Vadivelu Thewar V/s. State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000) has held that there is no bar for convicting the accused person on the evidence of sole witness, if the evidence of the sole witness is wholly trust worthy. The Apex Court has categorised such evidence in three categories i.e. (i) wholly reliable (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable and has held that in case of category one there is no difficulty in convicting the accused person. Similarly there is no difficulty in acquitting the accused in case of second category of evidence. The difficulty is in case of evidence of third category. In case of evidence of third category there would be need of corroboration of such evidence. Keeping in mind the aforesaid well established rule of law I proceed to examine the evidence of P.W. 4, the sole eye-witness to the occurrence. 9. P.W. 4 has stated in his evidence that the occurrence took place on 19-7-1986 between 2 p.m. to 5.30 p.m. He had gone to take bath in the river. While he was returning at about 2 p.m. he saw that his father was being taken to the meeting place (Sabha Sthal). There he was tied to flower plant and was assaulted. He identified the appellants who were armed with Farsa, lathi and axe. He concealed himself and saw that they took his mother Parwati Majhian, elder sister Laxmi Majhiain, younger sister Nani Majhian, elder brothers Logo Manjhi and Pradhan Manjhi to the meeting place. On the order of Rai Singh Manjhi the appellants cut them into pieces and threw the same in the river. He out of fear ran away to the adjacent village Beguna. He returned to his house on 24-7-1986 and he gave his fardbeyan to the police at his village. His cousin brother Ram Lal Manjhi was there who put his signature on the fardbeyan. 10. In cross-examination the witness stated that at the relevant time he was student of Railway School, Chakardharpur which is at a distance of about 10 K.M. He used to go to school from his village on bi-cycle. On the date of occurrence he did not go to school. P.W.3 is his elder brother. P.Ws. 1 and 2 are his uncles. In cross-examination the witness stated that at the relevant time he was student of Railway School, Chakardharpur which is at a distance of about 10 K.M. He used to go to school from his village on bi-cycle. On the date of occurrence he did not go to school. P.W.3 is his elder brother. P.Ws. 1 and 2 are his uncles. On the date of occurrence his uncle and his brother Suresh, P.W. 3, were not at their house. They were on duty. He had no talk with them with respect to the occurrence. Subsequently, they learnt about it. Village Beguna/Meghna is at a distance of 1 K.M. from village Raghoi, the place of occurrence. He reached there at about 6 p.m. From 19-7-1986 to 24-7-1986 till return he was at village Beguna/Meghna. There he did not disclose about the occurrence to any one. He did not disclose about the occurrence to the people of Beguna/Meghna or Raghoi. Before giving fardbeyan he did not disclose about the occurrence to any one. On 24-7-1986 the police was at village Raghoi till 2-3 p.m. The place of occurrence i.e. village Raghoi is at a distance of 7 K.M. from Police Station Sonua. He has no knowledge as to whether the dead bodies were recovered by the Police. He out of fear had gone to Chakardharpur and thereafter to Dhanbad to his elder brother who was a Constable. He disclosed about the occurrence to his brother. Ghasia Manjhi, Rai Singh Manjhi, Jamal Manjhi and Dubraj Manjhi were in service at Railway Station Chakardharpur but they were living at their village. There were houses around the Sabha Sthal, the place of occurrence. He had concealed himself and saw the occurrence. He did not raise alarm. His father was first assaulted with axe, sword, Farsa and lathi. They cut the dead bodies into pieces at the place of occurrence. The place of occurrence was full of blood. On 24-7-1986 the police had seized the blood and prepared seizure list. However, in the next breathe the witness stated that it was rainy day and blood was washed away. His attention was drawn to the evidence before the police/Fardbeyan but the witness denied that he stated before the police that on 24-7-1986 at about 5.30 p.m. he gave his fardbeyan. However, in the next breathe the witness stated that it was rainy day and blood was washed away. His attention was drawn to the evidence before the police/Fardbeyan but the witness denied that he stated before the police that on 24-7-1986 at about 5.30 p.m. he gave his fardbeyan. Similarly the witness denied that he stated before the police that Suresh Manjhi, P.W. 3, his Bhabhi and others had seen the occurrence. He also denied that he stated before the Police that occurrence took place from 5.30 p.m. to 7.30 p.m. He out of fear had gone to Chakardharpur and as such there was delay in lodging the case. He denied the suggestion that he did not see the occurrence. The witness admitted that he learnt that the dead bodies were cut into pieces and it was thrown in the river. However, the witness denied that he stated before the police that villagers caught his mother, sisters and brothers and took them to the meeting place. 11. From the discussion of evidence it is evident that evidence of the witness is not consistant to the fardbeyan, Ext. 4. In the evidence, the witness stated that the occurrence took place in between 2 p.m. to 5.30 p.m., whereas in the fardbeyan it was stated that the occurrence took place from 5.30 p.m. to 7.30 p.m. In evidence he denied that the accused persons caught his mother, brothers and sisters and took them to the meeting place, whereas in the fardbeyan the witness stated that they caught and took them to the place of occurrence. In evidence the witness stated that on the date of occurrence his uncles, brother Suresh, P.W. 3, were not at their house. They were on duty. His Bhabhi i.e. wife of P.W. 3 had also gone to the field. He categorically stated that he did not say before the police that his brother, P.W. 3, his wife and uncles had seen the occurrence. Moreover, the occurrence took place on 19-7-1986 but the fardbeyan was lodged on 24-7-1986 i.e. after five days. The reason assigned for delay is that he out of fear had left his village to adjacent village Beguna which is at a distance of 1 K.M. He did not disclose about the occurrence to any body. Such conduct of the witness is not natural. The reason assigned for delay is that he out of fear had left his village to adjacent village Beguna which is at a distance of 1 K.M. He did not disclose about the occurrence to any body. Such conduct of the witness is not natural. It is natural that the person who had seen the occurrence would disclose about the occurrence to the perople but it is peculiar that the witness stated that he did not disclose about the occurrence to any one which creates doubt about the veracity of the testimony of the witness. The reason assigned for delay also does not appear to be cogent in the circumstances stated above. Therefore, evidence of the witness cannot be said to be wholly reliable. In such a situation the evidence of such witness requires corroboration but from the perusal of the material on the record including the evidence of the witnesses it appears that there is no evidence to corroborate the testimony of the sole witness even as hearsay witness. 12. The Investigating Officer has not been examined as he died. However, there is nothing on the record to show that he found any incriminating materials at the place of occurrence suggesting that the occurrence took place at the alleged place of occurrence. Ext. 2 is the report of the Forensic Science Laboratory. The said report has been quoted in the judgment by the trial Court wherefrom it apears that the expert opined that it is not possible to ascertain the cause of death because the female bones do not bear any ante-mortem injury. Time elapsed since death was six to nine months from the date of examination i.e. 22-2-1987. With respect to the fracture of skull and mandible of male bone, it has been opined that it was ante-mortem. However, there is nothing on the record to show that those bones were of the deceased persons, nor there is evidence on the record that any witness stated that the bones recovered were of the dead persons in the occurrence. The trial Court has taken into consideration the evidence recorded by the police but in law the same cannot be taken into consideration for any purpose except to the satisfaction of the court with respect to the contradiction. Therefore, it appears that there is no corroborative evidence on the record to the sole testimony of P.W. 4. 13. The trial Court has taken into consideration the evidence recorded by the police but in law the same cannot be taken into consideration for any purpose except to the satisfaction of the court with respect to the contradiction. Therefore, it appears that there is no corroborative evidence on the record to the sole testimony of P.W. 4. 13. The Court is conscious about the gravity of the offence that in the occurrence six persons of the family of the informant were killed. But it is well established rule of law that the prosecution is required to establish its case beyond all reasonable doubt. The defence is not required to prove its case in his defence. There is no doubt that judgment of conviction can be maintained on the evidence of sole testimony provided that evidence is wholly reliable but in the instant case it has already been held that evidence of sole eye-witness is not wholly reliable. Any how it may be taken as neither wholly reliable nor wholly unreliable but there is no evidence to corroborate his evidence on the record. 14. In such a situation, in my opinion, the conviction of the appellants cannot be sustained and as such the judgment and order of conviction and sentence are hereby set aside and the appeal is allowed. The appellants are directed to be released forthwith if not required in any other case. The reference is thus answered accordingly. 15. A. K. PRASAD, J. :- . I agree. Appeal allowed.