Judgment M.L.Visa, J. 1. The sole appellant of this appeal is aggrieved by the judgment and order dated 20.7.1987 passed by 4th Additional Sessions Judge. Bhagalpur in Sessions Case No. 241 of 1981/4 of 1986 convicting him under Secs. 302/109 of Indian Penal Code (in short Indian Penal Code, 1860 ) and 302/34, Indian Penal Code, 1860 and sentencing him to undergo rigorous imprisonment for life for the offence under Secs. 302/109, Indian Penal Code, 1860 . No separate sentence has been passed against the appellant for the offence under Sections 302/34, Indian Penal Code, 1860 . 2. The case of the prosecution, as stated in FIR in short is that on 14.9.1978 at about 8 p.m., the informant Jamaluddin (PW 11) alongwith Riazat AN Haider, the deceased, boarded a local train at Bhagalpur Railway station for coming to Pirpainty. They both entered a second class compartment in which they sat on their seats in from of each other. When, the train reached Kahalgaon Railway station, about 20.25 passengers entered the compartment. When the train was to reach Shivnarayanpur Railway Station, all of a sudden, two persons, entered the compartment from its eastern gate and they came near the deceased Riazat Ali Haider who, on seeing them, left his seat and sat on the left side of informant and requested the informant to save him saying that those two persons would kill him. In the meantime, 8 to 10 other persons from that compartment came near the informant and Riazat Ali Haider is a leader and publishes a newspaper and nothing would happend from the case. At the same time, one man from them, who was aged about 35 to 40 years wearing a lungiand half shirt, took out a country-made pistol from his waist and started loading the same. The informant, by giving support to Riazat Ali Haider by his left hand, tried to save him and asked the man, who was carrying pistol, to spare Riazat Ali Haider and wanted to catch hold of his pistol by his right hand. In the meantime, one or two persons from that mob caught right hand of informant and removed it and two other persons started dragging Riazat Ali Haider from back side. In the meantime, one or two persons from that mob caught right hand of informant and removed it and two other persons started dragging Riazat Ali Haider from back side. In the meantime, the man, who was carrying pistol, shot one fire from his pistol and the shot, after tricking the left elbow of informant, struck the chest of Riazat Ali Haider as a result of which Riazat Ali Haider fell down there. This firing took place when the train had just stopped at the platform of Shivnarayanpur Railway Station. After firing, those persons left the compartment through its eastern gate and fled away. At the time of occurrence, light of electricity in the compartment was there and one relation of Riazat Ali Haider and one Anirudh Ram of Barahat were also in the compartment. Riazat Ali Haider, after receiving firearm injuries, died in the compartment itself and, thereafter, the informant came to Pirpainty Railway Station by the same train and with the help of some other persons, the informant and deceased were brought to Pirpainty State Dispensary where fardbeyan of informant (Exhibit-10) was recorded by Sub-Inspector, S.R. Deo of Pirpainty Police Station. In the FIR., the informant further stated that deceased Riazat Ali Haider was editor of a Weekly named as "Ang Times" and in recent past, he had published news items against some persons of Communist Party in his newspaper for which some local leaders of Communist Party had given him threatening of killing him and this information was given to him ten days before the occurrence by deceased himself. The informant suspected that there was some conspiracy behind the occurrence and he claimed to have clearly seen the assailant and his companions in the light of electricity and also claimed to identity them and he also stated that after knowing their names, he would inform the police. 3. On the basis of Fardbeyan of informant, a formal first information report (Exhibit-11) against twelve unknown persons were registered. The dead-body of deceased was sent to Bhagalpur Medical College Hospital where his post-mortem was conducted by Dr. Chandra Shekhar Lai (PW-10). The injury of informant was examined by Dr. Gopal Krishna Das (PW 14) and the police, after investigation, submitted charge-sheet against the appellant Chattu Barhai @ Chattu Parhaiya and Luri Paswan under Secs. 324 and 302/34, Indian Penal Code, 1860 and sec. 27. Chandra Shekhar Lai (PW-10). The injury of informant was examined by Dr. Gopal Krishna Das (PW 14) and the police, after investigation, submitted charge-sheet against the appellant Chattu Barhai @ Chattu Parhaiya and Luri Paswan under Secs. 324 and 302/34, Indian Penal Code, 1860 and sec. 27. Arms Act, Besides these three persons, charge-sheet was also submitted against one Yunus @ Inspector Nue but he was shown as absconder. Cognizance of the case was taken on 10.6.1980. The case of absconder accused Yunus @ Inspector Nut was separated and case of appellant. Chattu Barhai @ Chattu Parhaiya and Luri Paswan was committed to the Court of Sessions where charge under Secs. 302/34, Indian Penal Code, 1860 against all the three accused and separate charge under Secs. 302/109, Indian Penal Code, 1860 against the appellant were framed. During the trial. Luri Paswan died and the case proceeded against the appellant and Chattu Barhai @ Chattu Parhaiya. After trial accused Chattu Barhai @ Chattu Parhaiya was found not guilty and he was acquitted of the charge under Secs. 302/34, Indian Penal Code, 1860 but so far appellant is concerned, he was found guilty and was convicted u/s. 302/34, Indian Penal Code, 1860 and 302/109, Indian Penal Code, 1860 and, as stated above, he was sentenced to undergo rigorous imprisonment for life for the offence under Secs. 302/109, Indian Penal Code, 1860 and no separate sentence was passed against him for the offence under Secs. 302/34, Indian Penal Code, 1860 . 4. The case of the appellant is that he has been falsely implicated in this case. No witness on behalf of the appellant was examined before the Court below. 5. In order to prove its case, prosecution examined 15 witnesses before the Court below. Md. Jamaluddin (PW 11) is informant. Anirudh Prasad Ram (PW 2) and Sushil Kumar Verma (PW9) are tendered witnesses. Sukhdeo San (PW 12) is a formal witness who has proved the fardbeyan in the pen and signature of S.R. Deo which is marked Exhibit-10. Dinanath Rajak (PW 13) is the Investigating Officer of this case. Bhola Prasad (PW 15) is the second Investigation Officer, who had taken the charge of investigation from Dinanath Rajak (PW 13), and after completing investigation, had submitted the charge-sheet and he has said that he had recorded the statement of informant only. Dr. Dinanath Rajak (PW 13) is the Investigating Officer of this case. Bhola Prasad (PW 15) is the second Investigation Officer, who had taken the charge of investigation from Dinanath Rajak (PW 13), and after completing investigation, had submitted the charge-sheet and he has said that he had recorded the statement of informant only. Dr. Gopal Krishna Das (PW 14) is the doctor who had examined the injury of informant Dr. Chandra Shekhar Lal (PW 10) is the doctor who had conducted post-mortem examination on the dead-body of Riazat Ali Hiader. Raj Kumar Sinha (PW 8) was posted as Assistant Station Master of Pirpainty Railway Station on the day of occurrence and on that day, he received information from Assistant Station Master of Shivnarainpur Railway Station about the occurrence and he then informed his Railway Station Master and prayed him for making necessary arrangement for giving medical aid to informant and deceased. Sheikh Amanat (PW 7) is a witness on a seizure list which was prepared by Officer-in-charge of Government Railway Police when on 20.9.1978, one Abhinandan Thakur produced a dagger. He has proved his signature (Exhibit-8) and signature of another witness Janardan Singh (Exhibit-8/1) on this seizure list and has also proved the dagger which is marked as material Exhibit-IV. Kamala Kant Jha (PW6) (number wrongly written as 7 in the deposition form) was the guard of the train by which the informant and deceased were travelling. Sheikh Iqbal (PW5), the nephew of deceased, hearing about the murder of deceased came to Pirpainty Railway Station from his house and saw the dead-body of deceased kept in the waiting room of Pirpainty Railway Station. In his presence, fardbeyan of informant was recorded by police and he proved his signature (Exhibit-3) as well as the signature of Dilip Kumar (Exhibit-3/1) and signature of informant (Exhibit-3/2) on fardbeyan. He has also proved one stripped Kurta (Material Exhibit-1) seized from the body of a deceased and has proved his signature (Exhibit-4) as well as signature of Dilip Kumar (Exhibit-4/1) on the seizure list which was prepared by police after seizure of this Kurta. He has also proved one letter (Exhibit-5) in the pen of deceased which was seized from the person of deceased alongwith two foundation pens (Material Exhibits-III/1 and III/2) and one bundle of papers (Material Exhibit-II). He has also proved one letter (Exhibit-5) in the pen of deceased which was seized from the person of deceased alongwith two foundation pens (Material Exhibits-III/1 and III/2) and one bundle of papers (Material Exhibit-II). He has proved his signature (Exhibit-6) and the signature of Dilip Kumar (Exhibit-6/1) on the seizure list which was prepared by the police after seizure of aforesaid articles, he has also proved his signature (Exhibit-7) and signature of Dilip Kumar (Exhibit-7/1) on the inquest report which the police prepared for the dead-body of deceased. 6. Md. Nasim (PW-1), Khalil Ahmad (PW 3) and Rajendra Mandal (PW-4) have claimed themselves to be eye-witnesses of the occurrence and have also claimed to have identified the appellant among the miscreants at the time of occurrence and on the basis of their statements recorded by Investigating officer during the course of investigation, charge-sheet against the appellant and others was submitted because, as stated earlier, the first information report was registered against about twelve unknown persons. 7. Dr. Chandra Shekhar Lal (PW 10), in his evidence, has stated that on 15.9.1978, he was posted as Supervisor and Head of the Forensic Medicine at Bhagalpur Medical College Hospital and on that day at about 2 p.m., he held post-mortem examination on the dead-body of deceased Riazat Ali Haider and found following ante-mortem injuries over the dead-body: (1) one wound of entry with black and tattooed inverted margin on the dorsal corpus of left hand in joint about the junction of index and thumb. The size of the wound was 1" x 3/4" and the projectile passed through the muscle and ligament of the hand and came out from the palmer aspect of the hand having wound of exit 1/2" x 1/2" with inverted margin; and (2) one wound of entry with inverted margin 1/4" x 1/4"x chest cavity deep on the left side of the chest. 1" medial to left nipple. The projectile passing through the skin muscles, left pleura, left third inter-coasted space left lung, pericardium and heart lodged into the right lung. The bullet was metallic conical one and was recovered from the right lung and was forwarded to Sub-Inspector of Police in a sealed packet through .the constable. 1" medial to left nipple. The projectile passing through the skin muscles, left pleura, left third inter-coasted space left lung, pericardium and heart lodged into the right lung. The bullet was metallic conical one and was recovered from the right lung and was forwarded to Sub-Inspector of Police in a sealed packet through .the constable. According to him, both the aforesaid injuries were likely to be caused by a single bullet when the hand of deceased was on the left side of the chest when weapon was fired. Both the injuries were grievous and caused by fire-arm such as pistol and time since death from the time of post-mortem examination was within 12 to 24 hours. He has proved his post-mortem examination report under his pen and signature (Exhibit-9). He has further stated that injuries were sufficient to cause death. Md. Jamaluddin (PW 11), the informant, in his evidence, has stated that occurrence took place in the compartment of a train at Shivnarainpur Railway Station at about 9 p.m. on 14.9.1978 and at that time, he was in second class compartment of train No. 324 down and in that compartment, deceased was sitting in front of him and at the time when the train was to stop at Shivnarainpur Railway Station, two persons from the eastern gate of compartment came near the deceased and those two persons were followed by eight to ten other persons. The deceased left the seat and sat on the left side of informant and came very close to him and requested him to save him from those persons. Someone from those persons said that deceased has become leader and he publishes a newspaper which will not yield any result. Thereafter, one person from that group, who was wearing lungiand half shirt and was of short height and of fair complexion, took out a country-made pistol from his waist and started loading the same. Informant requested that man not to kill the deceased and made an attempt to catch the pistol by his right hand but some persons from that group removed his hand and someone from that group ordered to open fire. Informant requested that man not to kill the deceased and made an attempt to catch the pistol by his right hand but some persons from that group removed his hand and someone from that group ordered to open fire. In the meantime, two persons from that group started dragging the deceased but the deceased caught hold of informant and, thereafter, the man carrying pistol fired at deceased and the shot, after hitting the left arm of informant causing injury to him, hit the deceased. At the time of occurrence, left hand of informant was on the chest of deceased in order to protect him, therefore, informant received injury on his left arm. After receiving injury, the deceased fell down and miscreants left the compartment through its eastern gate and fled away. In the opinion of informant, deceased, by that time, had already died. Informant has, further, stated that at the time of occurrence, one relation of deceased was sitting in the compartment from before and after the occurrence he, alongwith the dead-body of deceased, came to pirpainty Railway Station by the same train which stopped at platform No. 2 at Pirpainty Railway Station. He has further stated that with the help of local persons, he and dead-body of deceased were taken to Pirpainty State Dispensary where he was given treatment but at that time, he was not feeling well and police, therefore, recorded his statement at about 3 a.m. He has, further, stated that deceased was editor of a weekly named "Ang Times" and ten days prior to the occurrence, deceased had told him that members of Communist Party were giving him threatens to kill him because he was publishing news items against them in the newspaper. In cross-examination, he has said that at the time of occurrence, he had minutely seen the face of the man who had fired at deceased but he could not see the face of that man who had ordered for firing. About other miscreants, he has said that he could not seen them correctly and if he had seen them, he cannot identify them because of passage of time. He . has, further, stated that he did not take part in any test identification parade. About other miscreants, he has said that he could not seen them correctly and if he had seen them, he cannot identify them because of passage of time. He . has, further, stated that he did not take part in any test identification parade. He has further, stated that he was knowing Anirudh Ram son of Bengali Ram (PW2) from before the occurrence but he does not remember whether he has present in the compartment where the occurrence took place and at the same time, he has stated that in his fardbeyan, he has stated that this Anirudh Ram and one relation of deceased were present in the compartment where the occurrence took place. About appellant, he has said that he had heard his name and he had seen him on a number of time but he cannot clearly say that the appellant is the same Suraj Nath Singh whose name he had heard and whose face he had seen earlier. From his evidence, it is clear that he has not stated that appellant was a member of the group of miscreants who took part in the commission of offence. His evidence is only .to the point that while travelling with him in a train, the deceased was fired at by one miscreant at the order of the other miscreant. 8. Now I would like to discuss the evidences of Md. Nasim (PW-1). Khalil Ahmad (PW 3) and Rajendra Mandal (PW 4) who have claimed themselves to be eye witnesses of the occurrence and have further claimed to have seen the appellant giving order to the assailant of deceased to fire at him. 9. Md. Nasim (PW 1), in cross-examination, has admitted that deceased was own brother of his father, and his family and family of deceased live jointly because no partition between his father and deceased has taken place and the office of the "Ang Times" magazine is situate in his house and deceased was printer and publisher of this magazine. He has further stated that on the day of occurrence, he and deceased boarded train No. 324 down which is known as local train at Bhagalpur Railway station at 6 p.m. forgoing to their village-Sundarpur. He has further stated that on the day of occurrence, he and deceased boarded train No. 324 down which is known as local train at Bhagalpur Railway station at 6 p.m. forgoing to their village-Sundarpur. He has further said that in the compartment, in which they entered, there were four Khatals (rows) and each Khatal was having two benches, one facing east and another facing west and every bench had four seats and besides this, there was one single seat in front of each Khatal. According to him, at the time of occurrence, deceased was sitting on second Khatal from eastern side and he was facing west and he himself was sitting on a single seat facing west and in front of him. Md. Khalil (PW 3) was sitting on a single seat and Md. Khalil had boarded the train at Kahalgaon Railway Station. He has further said that at about 8 p.m., when train reached Shivnarainpur Railway Station, two persons, immediately after the train stopped there, entered his compartment from eastern gate followed by 5 to 6 other persons and out of them, he identified only the appellant in the light of bulb which was lighting in the compartment. He has further said that appellant, by pointing towards deceased, asked one of his companions, who was of short height and well-built, to kill the deceased saying that deceased was considering himself as a leader and companion of appellant fired at deceased from his pistol. He has added that before firing, deceased was sitting on eastern bench facing towards west but on the arrival of appellant and his companions he, out of fear, went on the front seat in order to hide himself near a passenger praying him to save him. According to him, after receiving shot by pistol, deceased fell down and there was a stampede in the compartment and he then, out of fear, came out from the compartment through its western gate and went to Gadotia village by running alongwith Md. Khalil where they both, out of fear, remained hiding in the house of his sister and did not come out. He has also said that on 16.9.1978, when he and Khalil received information that police officer had come to Pirpainty, they both went to Pirpainty before that police officer where his statement was recorded and on the same day, statement of Md. He has also said that on 16.9.1978, when he and Khalil received information that police officer had come to Pirpainty, they both went to Pirpainty before that police officer where his statement was recorded and on the same day, statement of Md. Khalil was also recorded but not in his presence. He has said that at the time of occurrence. Rajendra Mandal (PW4)and one Chandradeo Paswan (not examined) were also travelling in the same compartment in which occurrence took place. He has proved his statement (Exhibit-1) recorded under Sec. 164, Cr.P.C before the Judicial Magistrate at Bhagalpur. In cross-examination, he has said that he and Md. Khalil, by running on road, went to Gadotia from Shivnarainpur Railway Station after crossing Khalgaon. Ekchari, Ghogha and Sabour and they reached Gadotia village early in the morning. He has further admitted that at Kahalgaon, there is police station which is near Kahalgaon Railway station. He has further admitted that at Gadotia when he was in the house of his sister he, on 16.9.1978, came to know that Investigating Officer had reached Pirpainty and he then went to Pirpainty for giving his statement and he reached Pirpainty alongwith Md. Khalil at about 8 to 9 a.m. on the motorcycle belonging to his brother-in-law. Md. Khalil (PW 3) has said that on 14.9.1978, he boarded the 324 down local train at about 7.30 p.m. at Kahalgaon Railway Station and he entered a second class compartment through its eastern gate and occupied a single seat towards south of second Khatal and in front of him. Md. Nasim (PW 1) was sitting on a single seat and there both single seats were near window towards south and deceased was also sitting on a bench in second Khatal towards left of his seat. He has further said that when the train reached Shivnarainpur Railway Station at about 8 p.m., he saw two persons entering his compartment followed by 5-6 persons, and out of them, he identified appellant in the light of bulb which was lighting in the compartment and appellant, pointing deceased, asked one of his companions to shoot him on which his companion fired at deceased and the deceased, after receiving injury, fell down in the compartment and died there. He has said that the assailant was of fair complexion, fat and of short height and after firing, there was stampede in the compartment and he and Md. Nasim fled away from there and they both went to village-Gadotia where they did not tell anybody, except the sister of Md. Nasim, about the occurrence. He has said that when he and Md. Nasim were at Gadotia, somebody told that Investigating Officer had come to Pirpainty and, thereafter, he and Md. Nasim both went to Pirpainty from Gadotia together where, on 16.9.1998, his statement was recorded by Investigating Officer at the Dak Bungalow. He has proved his statement (Exhibit-2) recorded by Judicial Magistrate, Bhagalpur u/s. 164, Cr.P.C. According to him, Rajendra Mandal (PW-4) and Chandradeo Paswan (not examined) were also travelling in the same compartment in which he was travelling at the time of occurrence. In cross-examination, he has contradicted his evidence that he and Md. Nasim (PW1) came to Pirpainty from village-Gadotia for getting their statements recorded by stating that before giving statement to police, he had come to his own village from Gadotia and from his village, he went to Pirpainty Dak Bungalow for giving his statement and Md. Nasimi (PW 1) had not gone to Pirpainty with him from his village for giving his statement before Investigating Officer. He has further said that from Gadotia, he and Md. Nasim went to their respective houses and from there, they went to Pirpainty separately for getting their statements recorded by Investigating Officer. Rajendra Mandal (PW 4), in his evidence, has stated that on 14.9.1978, he had come to Bhagalpur for purchasing clothes for Dushehra festival and on that day at about 6 p.m., he was returning to Pirpainty by a local train and he occupied a seat near a window in the second Khatal and on the seat besides him, deceased was sitting facing west and when the train, after leaving Bhagalpur Railway station, reached Shivnarainpur Railway station at about 8 p.m., two persons entered the compartment followed by 8-10 others, out of which he identified appellant and one Inspector Nut in the light of bulb which was lighting in the compartment. He has further said that, by pointing to deceased, the appellant ordered his companions to shoot the deceased on which the deceased, by raising his both hands and saying to them not to kill him, left his seat and came on the same Khatal on which he was sitting and sat down facing towards east and, therefore, Inspector Nut fired at deceased who, after receiving injury, fell down on the floor and died. He has said that the occurrence was witnessed by Md. Jamaluddin, Md. Nasim, the nephew of deceased, Khalil Ahmad and Chandradeo Paswan (not examined). He has further stated that after occurrence, there was stampede and he also, leaving the compartment, fled away and, thereafter, on 16.9.1978, when he was at his house he received information that Investigation Officer had come to Pirpainty railway station and he, thereafter, went there where his statement was recorded. In cross-examination, he has admitted that on the day of occurrence, he was having fear that whoever will give evidence, would be killed by the men of appellant but on 16.9.1978, when his statement was recorded by Investigation Officer at Pirpainty Railway station, his aforesaid fear had vanished. He has further admitted that Pirpainty police station is about three miles from his house but on the day of occurrence or even thereafter, he did not go to police station to lodge the information about the occurrence. He has also admitted that owing to fear, after occurrence, he did not tell anybody in his village about the occurrence nor he did consult anybody. He has admitted that he was an accused of a murder case but he was acquitted in that case and about Chandradeo Paswan, he has said that he was co-accused in that murder case and he was sentenced to undergo rigorous life imprisonment. He has also admitted that he is an accused in a case of theft. 10. The appellant is neither named in the FIR nor in the evidence of informant, who has not stated anything against him. The name of appellant has figured in the evidence of PW 1, PW 3 and PW 4 who have stated that at the order of appellant, deceased was fired by one of the companions of appellant. 10. The appellant is neither named in the FIR nor in the evidence of informant, who has not stated anything against him. The name of appellant has figured in the evidence of PW 1, PW 3 and PW 4 who have stated that at the order of appellant, deceased was fired by one of the companions of appellant. They have not alleged that appellant was the main assailant, PW 1 and PW-2 have not stated the name of main assailant but PW-4 has said that main assailant was Inspector Nut. The motive of the occurrence, according to case of prosecution, is that deceased was editor and printer of a weekly, magazine named Ang Times and in this magazine, some news items against the members of Communist Party were published. This is supported by the evidence of informant who has said that about ten days prior to occurrence, deceased had told him that the members of Communist Party had given him threatening to kill him because he was openly publishing news items against them in his paper. He has not said that deceased ever told him that appellant had given him any threatening to kill him or the deceased had published any news item against the appellant, PW 1, who is the own nephew of deceased, in his evidence, has said that deceased had published news items against appellant in his newspaper but he does not remember in which issue, news items, in the weekly of deceased, were published against appellant. No such news items, showing that deceased had published the same against the appellant, has been brought on record. It has also not been proved by prosecution that appellant is member of Communist Party. The evidence of PW 1, PW 3 and PW 4 that, after the occurrence, they fled away from the place of occurrence and remained quite till their statements were recorded by Investigation Officer, appears quite impobable. As stated above, PW 1 and PW 3 have said that after occurrence, they left the place of occurrence and by running on road, they both went to village Gadotia where sister of PW 1 resides and they remained there hiding because of fear and did not come out from the house till 16.9.1978 when they received information that Investigation Officer had come to Pirpainty and, thereafter, they went to Pirpainty where their statements were recorded. As already discussed, there is contradiction between the statements of PW 1 and PW 3 on this point because PW 1 has said that he and PW 3 straightway had gone to Pirpainty for appearing before Investigating Officer whereas PW 3 has said that firstly he came to his village and thereafter, the alone had gone to Pirpainty where his statement was recorded by Investigating Officer, PW 3 has said that at Gadotia, only the sister of PW 1 was informed about the occurrence. The conduct of PW 1 and PW 3 that they remained silent for about two days and did not tell anybody about the occurrence, does not appear to be natural. They have not said that they appeared before Investigating Officer after knowing that a case had already been lodged by informant. According to them, they went to Investigating Officer to inform him about the occurrence. PW 1 has clearly admitted that while going to village Gadotia, he and PW 3 crossed Kahalgaon, Ekchari, Ghogha and Sabourand in Para-15 of his cross-examination, he has admitted that at Kahalgaon, there is police station near the railway station but it is very surprising that neither he nor PW 3 made any attempt to go to police for giving information about the occurrence. In para 15, PW 1 has said that he left the train out of fear but why he became frightened is not clear because no reason for such fear has been shown. When the informant, who was only acquainted with deceased, after occurrence, remained at the place of occurrence and he did not had any fear either from the main assailant or appellant, there does not appear any reason for PW 1, who is the own nephew of deceased for his fleeing away from the place of occurrence. Same is the case with PW 3 and PW4. The evidence of PW4 that till 16.9.1978, when he appeared before Investigating Officer for recording his evidence, he remained in the village but did not tell anybody about the occurrence, is also not convincing. Admittedly, PW 3 and PW-4 belong to the same village to which deceased and PW 1 belong. Before the Court below, the defence, after relying upon a decision of the Supreme Court in case of State of Orissa V/s. Mr. Admittedly, PW 3 and PW-4 belong to the same village to which deceased and PW 1 belong. Before the Court below, the defence, after relying upon a decision of the Supreme Court in case of State of Orissa V/s. Mr. Brahmanda Nanda -, had argued that in a murder case where the entire prosecution case depends on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of assailant for a day and a half after the incident and explanation offered by him for non-disclosure was non-believable, in that case, such non-disclosure was a serious infirmity which destroys the credibility of that witness but the Court below, rejected this argument and accepted the plea of prosecution which, after relying upon a decision of the Supreme Court in the case of Lalli @ Chiranjib Bhowmick V/s. State of West Bengal -, submitted that where satisfactory explanation was given for delay in recording statement by police by a main witness after fifty six days which was considered and accepted by Sessions Judge and High Court, the Supreme Court declined to interfere with concurrent finding of lower Courts. In my opinion, the Court below has not correctly applied principles decided in the aforesaid two decisions of the Apex Court. In the case of Lalli @ Chiranjib Bhowmick V/s. State of West Bengal (supra), the Apex Court declined to interfere with the concurrent finding of lower Courts which, after considering it, had accepted the explanation for delay in recording the statement of main witness. The explanation for delay in recording statement of a witness must be reasonable so that it can be accepted but if explanation of delay is not free from doubt or is without any convincing ground, it cannot be accepted. In the present case, the explanation of PW 1, PW 3 and PW 4 of giving the name of appellant for the first time as order giver appeared on 16.9.1978 whereas the occurrence took place on 14.9.1978 and explanation for this delay offered by them is that because of fear, they remained quiet till 16.9.1978. This does not appear believable. PW1 and PW 3 had full opportunity to go to Police Station at so many places which they crossed while going to village Gadotia from the place of occurrence. This does not appear believable. PW1 and PW 3 had full opportunity to go to Police Station at so many places which they crossed while going to village Gadotia from the place of occurrence. It is also very surprising that sister of PW 1, who is, admittedly, niece of deceased, did not tell anybody in her village when she was told by PW 1 and PW 3 about the occurrence. 11. Anirudh Prasad Ram (PW 2), who has been tendered by prosecution, in his cross-examination, has stated that he had boarded the train at Sabour Railway Station and he was in the same compartment in which deceased was murdered but he did not see anybody firing at deceased and he did not identify any assailant. About appellant, he has said that he knows him and appellant is reputed man. He has, further, stated that at the time of occurrence, there was hulla of "Dacoit-Dacoif and he, thereafter, jumped from the window of compartment and came out. Sushil Kumar Verma(PW 9). Assistant Station Master, who has been tendered by prosecution, in his evidence, has stated that on 14.9.1978, he was on duty at Shivnarainpur Railway Station and he heard the hulla, made by persons, of "Dacoit Dacoit" and also saw some person running away from compartment No. 4228 of 324 down train raising the aforesaid hulla and he saw only one man in injured condition in that compartment. He has further said that neither anybody told him about the occurrence nor about the name of, assailant and he then sent the information about this by telephone to Assistant Station Master on duty at Pirpainty Railway Station. His evidence does not support the evidence of informant that after occurrence, informant remained at the place of occurrence and by the same train and in the same compartment, he came from Shivnarainpur Railway Station to Pirpainty Railway Station alongwith the dead-body of deceased because this witness has said that in the compartment, where occurrence, had taken place, he had seen only one man in injured condition. 12. Dinanath Rajak (PW 13), Investigating Officer has said that from the wearing apparels of deceased alongwith some papers, one letter addressed to District Magistrate, Bhagalpurwas recovered which was seized. 12. Dinanath Rajak (PW 13), Investigating Officer has said that from the wearing apparels of deceased alongwith some papers, one letter addressed to District Magistrate, Bhagalpurwas recovered which was seized. Sheikh Iqbal (PW5), who is cousin of deceased, has said that in his presence, inquest report of the dead-body of deceased was prepared and alongwith some documents, two fountain pens and a letter in the handwriting of deceased was recovered by police which was seized. He has proved this letter which is marked (Exhibit-5). This letter is in two sheets and it is addressed to District Magistrate, Bhagalpur. In the first sheet, it is written that deceased is editor of Hindi weekly named "Ang Times" and he had published news items relating to increase of crime in eastern part of his district in a number of issues of his weekly magazine and he also published a news item giving reference to FIR of Pirpainty P.S. Case No. 10(7) of 1978 and 19(7) of 1978 and in these FIRs. it is stated that in the incident of dacoity in Pirpainty area. Dacoits get support from the Communist Party of India and servant of local M.L.A., was also supporting the Dacoits and after publication of this news item, members of Communist Party particularly local M.L.A., Shri Prasad was annoyed with deceased and they were threatening the deceased for implicating him in criminal cases and to commit his murder. In the second sheet of paper, which is also part of this letter, it is stated that after getting the support by Shri Prasad, the appellant, who is a desperate and a licensed pistol holder, had given open threatening to deceased to kill him. As stated above, this letter has been proved by Sheikh Iqbal (PW 5) who has claimed himself to be causin of deceased. According to him, this letter and other articles were recovered by police from the dead-body of deceased in his presence and a seizure list was prepared on which he had put his signature (Exhibit-6) but, in cross-examination, he has said that his statement was not recorded by Investigating Officer and for the first time, he was deposing in this case in this Court. Md. Md. Nasim (PW 1) has said that he does not remember whether before Investigating Officer, he had stated that at the time of preparation of inquest report of dead-body of deceased, a letter addressed by deceased to District Magistrate was recovered from the pocket of deceased but then Dinanath Rajak (PW 13) Investigating Officer, in his evidence, has stated that PW 1 had stated before him that at the time of preparation of inquest report, a letter addressed to District Magistrate was recovered from the pocket of deceased. The evidence of PW 1 is that from place of occurrence, he went to village Gadotia by running on road where he remained hiding till 16.9.1978 when, after receipt of information that police had come to Pirpainty, he came to Pirpainty on motorcycle of his brother-in-law alongwith PW3 where his statement was recorded by Investigating Officer. In view of this evidence, there was no occasion for this witness to know that a letter addressed to District Magistrate was recovered from the pocket of deceased. The evidence of Investigating Officer makes the stand of PW 1 totally unbelievable that between the period of occurrence and recording this statement, he remained hiding in the house of his sister and it completely negatives his presence there. The possibility of false implication of appellant by this witness by giving statement on 16.9.1978 before police naming the appellant as order giver after anyhow coming to know about the recovery of aforesaid letter from the pocket of deceased, cannot be ruled out. At the same time, possibility of setting up PW 3 and PW4 by this witness in naming the appellant as order giver on 16.9.1978 also cannot be ruled out because, admittedly, PW 3 and PW4 belong to same village to which PW 1 belongs particularly considering the fact that statement of all these three witnesses were recorded on the same day that is 16.9.1978. Besides this, about the manner of occurrence, none of these three witnesses, has stated that informant also received injury in the firing by miscreants whereas the case of informant is that the shot fired by main assailant first hit him on his arm and, thereafter, the same shot hit the deceased on his chest, PW 1 has stated that deceased was sitting facing towards west but when miscreants came near him he, out of fear, went near a man sitting opposite him for help and there he received shot fired by main assailant. On the other hand, PW 3 has said that deceased was sitting towards left side of his seat and he has not stated that at the time of occurrence, deceased left his seat and went near anybody else on another seat. But he has again said that at the time of occurrence, the deceased, after going towards a passenger, was seeking his help and when deceased received injury, he was in standing position facing towards east and south and the assailant was standing facing towards west and fired his pistol from northern side. This evidence is not supported by the evidence of Dr. Chandra Shekhar Lal (PW 10) who held post-mortem examination on the dead-body of deceased because according to doctor, one wound of entry with black and tattooed inverted margin on the dorsal aspect of left hand just above the index and thumb was found on the dead-body of deceased and the projectile, after passing through the muscle and ligaments of hand, came out from the palmer aspect of hand causing wound of exit and another wound of entry with inverted margin was found on the left side of chest one inch medial of left nipple of deceased and the projectile, passing through the skin, muscles, left pleura, left third intercoastal space, left lung, pericardium, and heart was lodged into the right lung. If the deceased, at the time of receiving shot fired by pistol, was standing facing towards east and south and the assailant was standing facing towards west and shot was fired from north side, as stated by PW 3, then the wound of entry of chest, could not have been on left side of chest of deceased and in that case, wound of entry on chest, would have been on the right side of chest of deceased. Rajendra Mandal (PW 4), on the other hand, has given a complete different account on the manner of occurrence and he, in his evidence, has stated that when the miscreants came near the deceased, the appellant ordered one of his companions to fire at deceased, the deceased raised his both hands saying not to kill him and after leaving his seat, came on the same Khatal on which this witness was sitting and sat by facing towards east and, thereafter, Inspector Nut fired at deceased who fell on the floor and died. He does not say that at the time of occurrence, deceased had gone to informant and tried to hide behind the informant. So I find that manner of occurrence, as stated by PW 1, PW 3 and PW4, also does not support the case of prosecution. The possibility of deceased being murdered in train dacoity and, thereafter, giving the name of appellant by these three witnesses, after due deliberation two days after the incident, cannot be ruled out. Now coming to the evidence of informant, who is said to have received injury in the incident, the learned A.P.P. has stated that evidence of informant cannot be doubted because he himself received injury. It is true that Dr. Gopal Krishna Das (PW 14), in his evidence, has stated that on 15.9.1978, he found a lacerated wound situated on the left arm one inch above the elbow with two openings and this injury was caused by fire-arm which may be a pistol. As already discussed above, informant, neither in FIR nor in his evidence, has stated anything against the appellant.. On the contrary, he has said that prior to occurrence, he had heard the name of appellant Surya Nath Singh and on a number of occasions and he had seen him but he is not sure that the appellant is the same Surya Nath Singh. He has further said that he could not see the face of the person, who ordered the main assailant to fire at the deceased. In FIR as well as in his evidence, he has clearly stated that when the deceased saw two persons entering the compartment followed by 8 to 10 persons, he left his seat and sat on his left side saying that those persons would kill him. In FIR as well as in his evidence, he has clearly stated that when the deceased saw two persons entering the compartment followed by 8 to 10 persons, he left his seat and sat on his left side saying that those persons would kill him. This evidence shows that deceased was knowing those miscreants but informant has not stated that deceased disclosed the name of any of them. He has clearly stated that when one of the miscreants ordered to fire at the deceased, the main assailant fired from his pistol which first hit his left arm and, thereafter, it hit the deceased. As stated above, PW 10 had found wound of entry on the left side of chest of deceased and he also found that the projectile, passing through the skin, muscles, left pleura, left third inter-coastal space, left lung, pericardium and heart had lodged into right lung. When the deceased was sitting on the left side of informant, how a shot fired from pistol, after hitting the left arm of informant, entered the deceased from the left side of his chest and after passing different parts of chest, was lodged in the right lung? If the version of informant about the manner of occurrence is accepted in that case, the wound of entry would have been on the right side of chest of deceased and not on his left side. Apart from it, the doctor, who held post-mortem examination, on the dead-body of deceased, had found one wound of entry with black and tattooed inverted margin on the dorsal aspect of left hand joint above the junction of index and thumb of deceased. It is also not possible if the shot, fired by main assailant, would have first hit the left arm of informant and, thereafter, hit the deceased because in that case, there was no question of leaving any blackening by the shot on any part of the body of deceased. Dr. Gopal Krishna Das (PW 14), in his cross-examination, has clearly stated that if the bullet, after injuring the injured, would have hit another man, it would not have caused blackening on another man. So I find that manner of occurrence, as stated by informant, in his FIR and in his evidence, also does not support the case of prosecution. 13. Gopal Krishna Das (PW 14), in his cross-examination, has clearly stated that if the bullet, after injuring the injured, would have hit another man, it would not have caused blackening on another man. So I find that manner of occurrence, as stated by informant, in his FIR and in his evidence, also does not support the case of prosecution. 13. The informant, in his FIR as well as in his evidence, has stated that at the time of occurrence, besides some other persons named by him, one relation of deceased was also travelling in the same compartment but he has not given the name of that relation. In his evidence, he has said that later on, he came to know that relation of deceased was Md. Nasim (PW 1). This statement is also very surprising because, according to evidence of Md. Nasim, he boarded the train at 6 p.m. at Bhagalpur Railway station and deceased was with him. It is the case of prosecution that train reached Shiv irainpur Railway Station at about 8 p.m. It does not appear probable that during the period of these two" hours, informant could not know that the man accompanying the deceased was his nephew Md. Nasim. 14. Considering the entire evidence on record, I find that the evidence of PW 1, PW 3 and PW 4, who have claimed eye-witnesses of the occurrence, does not inspire confidence that they were travelling in the compartment where occurrence is said to have taken place because their statements for the first time naming the appellant as order giver, were recorded two days after the incident and the explanation given by them for delay in recording their statements does not appear satisfactory and cannot be accepted I, therefore, find that prosecution has not been able to prove the charges against appellant beyond all reasonable doubts and conviction of appellant cannot be upheld. 15. In the result, this appeal is allowed. The judgment and order of Court below convicting and sentencing the appellant is hereby set aside. The appellant is acquitted of the charges. He is also discharged from the liabilities of his bail bonds.T B.K. Jha, J.:I agree.