Judgment ANIL KUMAR SINHA and BAL KRISHNA JHA JJ. 1. Both these appeals were heard together as they arise out of the same judgment and they have been directed against the judgment and order of conviction and sentence passed by 1st Addl. Sessions Judge, Barh in sessions, trial No. 870 of 1995, whereby and whereunder, the appellants, namely, Ratan Kumar Singh, Hira Singh and Ram Babu Singh and Pappu Kumar Singh @ Pappu Kumar have been convicted for committing the offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellants, namely, Ratan Kumar Singh, Hira Sing and Pappu Kumar Singh @ Pappu Kumar have further been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years each. 2. The fardbeyan of the informant Raj Nath Singh was recorded in the Emergency Ward of P.M.C.H. by A.S.I. R.N. Singh of Pirbahore Police Station on 29.11.1994 at 3.15 p.m. The prosecution story as unfolded in the fardbeyan of the informant is that his brother Baijnath Singh was ploughing his field situated at a distance of 200 yards from his house and he was also weeding out the grass in the field. In the meantime assailant Pappu Kumar, Ratan Singh, Hira Singh, Sheo Shanker Singh and Ram Babu Singh arrived there being armed with rifle, country made gun and dagger and on the order of Ram Babu Singh, the appellant Pappu Kumar Singh fired upon the deceased causing injury on his abdomen. The other appellants and Sheo Kumar Singh caught hold the deceased. On alarm raised by informant, PW 4 Manohar Singh, PW 2 Jagbali Singh, Krishna Kumar Singh and many others came there, where upon, the assailants took to their heels by resorting to firing. The informant brought his injured brother to Barh hospital where first aid was given to him and the doctor referred the injured to P.M.C.H. The informant brought his brother of P.M.C.H. in ambulance at about 2.20 p.m. The motive assigned for the alleged occurrence is previous enmity and on the basis of the aforesaid fardbeyan an FIR was lodged on 2.12.1994 and on submission of charge-sheet the cognizance was taken under Section 302 besides other sections and the case was committed to the Court of sessions. 3. 3. All the five accused were charged under Sections 302/34 of the Indian Penal Code read with Section 27 of the Arms Act to which they pleaded not guilty and the case of the defence is the complete denial of the allegation levelled against the appellants. The defence has taken the plea that the accused persons have been falsely implicated in the case due to enmity. 4. In order to prove the charges the prosecution examined as many as six witnesses out of whom PW 2 Jagbali Singh and PW 4 Manohar Singh who are the own uncles of the informant turned volte-face by not supporting the prosecution case in any manner PW 3 Karu Kumar who is an independent witness has also not supported the prosecution case and has been declared hostile. PW 1 Raj Nath Singh is the informant of the case and is the brother of the deceased who is an eye witness to the alleged occurrence. PW 5 Dr. Ajit Kumar Choudhary is the doctor who conducted the post-mortem examination on the dead body of the deceased and PW 6 Bigal Gari is the I.O. of the case. 5. PW 5 conducted the postmortem examination on the dead body of the deceased on 30.11.1994 at 10.30 a.m. and found the following ante-mortem injuries on the person of the deceased : "The chest was bandaged and it was removed. There was presence of gauge packing in the fire arm injury having wound of entrance 1-1/2" x 1" x cavity deep over front and left side of the chest situated 4-1/2" left to mid line and 3-1/2" below the left nipple having tatooing 12" x 10" area over left part of the chest and upper part of the abdomen. The projectile was directed obliquely downwards and passes through the chest wall. 6th rib was broken and diaphragm was perforated along with the stomach and liver. A bullet was found inside the 9th inter costal space. The track of the wound was contused and lacerated. There was presence of blood and blood clots in the thorasic abdominal cavity." 6. In the opinion of the doctor the death was caused due to aforesaid fire arm injury and time elapsed since death was within 6 to 24 hours. PW 5, has proved the post-mortem report (Ext. 3). The track of the wound was contused and lacerated. There was presence of blood and blood clots in the thorasic abdominal cavity." 6. In the opinion of the doctor the death was caused due to aforesaid fire arm injury and time elapsed since death was within 6 to 24 hours. PW 5, has proved the post-mortem report (Ext. 3). PW 5 has stated that he extracted the bullet from the dead body which was sent by him to the investigating officer. In cross-examination he admitted that the extracted bullet was not before him in the Court. There is nothing else worth comment in his cross-examination. 7. This case is based on the solitary evidence of PW 1 Raj Nath Singh who is the informant in the case and is own brother of the deceased. There are catana of decisions that the conviction of deceased can safely be based on the sole testimony of a witness if his evidence is free from any doubt or embellishment and the witness is wholly trustworthy. In such a situation the Court has to scrutinise the evidence of sole witness with great caution. 8. PW 1 Raj Nath Singh has repeated the narration as unfolded in the fardbeyan and has stated that on alarm raised by him, his uncle Jagbali Singh and Manohar Singh along with Krishna Kumar Singh came at the place of occurrence. He has developed the story for the first time in his evidence that the accused persons used to realise Rangdari tax in the village which used to be objected by his brother and due to that reason the accused persons committed the murder of his brother. There is no such case in the fardbeyan (Ext. 1) where the motive has been assigned in a vague manner that the deceased had previous enmity with the accused persons. The informant has also not stated that when and from whom the accused persons used to realise Rangdari tax which was objected by his brother. The informant filed protest petition (Ext. 2) in Court against the conduct of the I.O. for proper investigation of the case but there is no whisper about the alleged motive of demanding Rangdari Tax and for the first time the informant specifically stated about demanding of Rangdari tax by the accused persons. The informant filed protest petition (Ext. 2) in Court against the conduct of the I.O. for proper investigation of the case but there is no whisper about the alleged motive of demanding Rangdari Tax and for the first time the informant specifically stated about demanding of Rangdari tax by the accused persons. He has further stated that on the alleged date of occurrence the deceased had left his house at 8.30 a.m. for ploughing the land measuring about 14 laggies from north to south and had ploughed the land for about one and half hours while PW 1 was weeding the grass in the same field. He has denied to have stated before the Police that at the time of alleged occurrence he was in different field situated towards west but the defence has not invited the attention of the I.O. in respect of his aforesaid statement. He has stated that in course of his statement before the police he had specifically stated that Ratan Singh and Hira Singh were holding rifles but the I.O. has denied that he made such statement before him. PW 1 has admitted that he was at a distance of five steps from the deceased but the admitted fact is that nobody caused any injury to him nor he made any attempt to save his brother. He has stated that the entire occurrence was over within live minutes and the assailants had fired two to four shots but only one shot was fired at the P.O.. The other shots were fired at some distance covering 60 steps from the P.O. He has denied the suggestion that he found his brother in injured condition in a lonely place and due to the enmity has implicated the accused persons who are his Gotias. He, however, admitted that the accused persons are his Gotias. 9. The evidence of PW 1, the solitary witness on the point of alleged occurrence, has been assailed by the counsel appearing from the appellants who submitted that it is highly improbable that three persons will catch hold of the deceased and appellant Pappu Singh will fire upon the deceased in that position because there was every chance that in case of mis-firing, Pappu Singh might have killed his own men. That apart, there was no necessity at all to catch hold of the deceased when, according to the prosecution case, there were four persons armed with rifles, country unde gun etc. This circumstance goes to show that the manner of occurrence as alleged in the fardbeyan is not worth belief. It was also sub- mitted that the assailants did not cause any injury to PW 1 who claims to be present at the P.O is also not free from doubt and in the normal course they must have caused some injury to PW 1 also and they might have tried to eliminate him so that he may not give evidence against them. It is further submitted that the very motive for the alleged occurrence has not been proved by the prosecution because PW 1 has admitted that he did not report or lodge any station diary entry at the Police Station regarding alleged demand of Rangdari tax by the accused persons and for the first time this story has been built up on course of the evidence. It is, therefore, submitted that actually the deceased sustained fire arm injury somewhere else and the informant falsely implicated the appellants and Sheo Shanker Singh who has since been acquitted by the trial Court and this is the reason that no independent witness has come forward to support the story of PW 1. Even his own uncles, namely, Jagbali Singh (PW 2) and Manohar Singh (PW 4) who have been cited as witnesses in the fardbeyan have not supported the version of the informant. It has been pointed out that one Krishna Kumar Singh has been named in the fardbeyan as a witness but he has also not been examined by the prosecution without any explanation. Hence, in these circumstances an adverse inference can be drawn against the prosecution that since the alleged occurrence was not true, that is why, the witnesses did not come forward to support it. 10. The learned counsel for the appellants vehemently argued that the alleged occurrence took place on 29.11.1994 at 10.00 a.m., the deceased died at 2.20 p.m. and the fardbeyan of the informant was recorded at P.M.C.H. Patna at 3.15 p.m. and the post-mortem was held on 30.11.1994 at 10.30 a.m. but the FIR was lodged on 2.12.1994 i.e. after three days of the alleged occurrence. The FIR was despatched through special messenger on 2.12.1994 itself but the same was received in the Court on 4.12.1994 i.e. after five days of the alleged occurrence and the prosecution has not given any explanation whatsoever for this inordinate delay in lodging the FIR and sending the copy of it to the Court which renders the whole prosecution doubtful. Referring to the decision in the case of Arjun Marik and others V/s. The State of Bihar reported In 1994 Supp (2) SCC 372 : 1994 (1) East Cr C 281 the learned counsel submitted that inordinate delay in lodging the FIR and despatching it to the Court after five days is a serious infirmity which cast doubt on the credibility of the prosecution story because the object of Sections 157 and 159, Cr PC is to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberation and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation. It was, therefore, submitted that inordinate delay in lodging the FIR can give sufficient time and scope to concoct a false case and implicate any one as has happened in the instant case. As such, it cannot be said that the prosecution proved the charges against the appellants beyond all reasonable doubts. 11. The learned counsel further submitted that the A.S.I. R.N. Singh who recorded the fardbeyan of the informant has also not examined by the prosecution and no explanation has been given for his non-examination and on this score the defence was seriously prejudiced because if he would have been examined, the defence could have elicited truth from his mouth. We are also of the view that A.S.I. who recorded the fardbeyan of the informant was an important witness in this case to explain that when he had despatched the fardbeyan to the Police,Station and what was the means of communication. In absence of his examination it remains myth as to what actually happened after recording of the fardbeyan till the FIR was lodged because the prosecution has not led any evidence in this regard. In absence of his examination it remains myth as to what actually happened after recording of the fardbeyan till the FIR was lodged because the prosecution has not led any evidence in this regard. In the circumstances, as stated above, the possibility can not be ruled out that the prosecution got sufficient time to introduce improvement and embellishment to set up a distorted version about the occurrence and it was rightly argued that because of this reason no witness has supported the testimony of PW 1. 12. PW 6 Bigal Gari is the I.O. of this case who assumed investigation on 2.12.1994 when the FIR was lodged. He has stated that he visited the place of occurrence which he must have done on or after 2.12.1994 and he noticed of blood at the P.O. which appears to be far from truth, inasmuch, as it is impossible that after more than three days he can find the drop of blood at the P.O. He also seized blood-stained earth but he did not send the same to forensic science laboratory for chemical examination nor any seizure list has been produced by the prosecution which may show that he had seized any blood from the P.O. PW 6 has admitted that he did not mention the area of the P O. land and has stated that he found the western portion of the land was ploughed but PW 1 has stated that his brother had ploughed towards north of the plot. He also did not make any effort to record the statement of any other witness although several persons arrived at the place of occurrence on hearing hulla. The I.O. has stated that he sent the formal FIR through special messenger and the date of despatch as shown in the FIR is 2.12.1994 at 5.00 p.m. So, in all probabilities the FIR should have reached to the Court on the following day, that is, 3.12.1994 but it appears that the same was received in the Court on 4.12.1994. Therefore, the evidence of the I.O. would show that it is full of infirmities and discrepancies which suggest that he hardly visited the place of occurrence. 13. Having given anxious consideration to the facts and circumstances of the case as discussed above, we are of the view that the sole testimony of PW 1 cannot be trusted to sustain the conviction of the appellants. 13. Having given anxious consideration to the facts and circumstances of the case as discussed above, we are of the view that the sole testimony of PW 1 cannot be trusted to sustain the conviction of the appellants. Apart from that the other circumstance as discussed above can not rule out the possibility of concoction of false case against the appellants. Therefore, it cannot be said that the prosecution proved the charges against the appellants beyond all reasonable doubts. We, accordingly, allow the appeals and hold that appellants not guilty to the charges and acquit them of the same. The order of conviction and sentence as recorded by the Court below are set aside and the appellants, namely, Pappu Singh @ Pappu Kumar Singh who is in custody is directed to be released forthwith, if not wanted in any other case and the remaining appellants who are on bail are discharged from the liability of their respective bail bonds.