Judgment S.N.Jha and B.N.P.Singh JJ. 1. There are three appellants in this appeal. While appellant nos. 1 and 2, namely, Gopalji Rai @ Gopali Rai and Bijli Rai have been convicted under Section 302/34 of the Indian Penal Code, appellant no. 3, Manoj Rai has been convicted under Section 302 simplicitor. Ail of them have been awarded death sentence. The trial court has made reference seeking confirmation of the sentence in terms of Section 366 of the Criminal Procedure Code which was heard along with the appeal. 2. On 20.1.95 at 9.30 A.M. one Manoj Kumar Rai of village Dhamaun, P.S. Patori, District-Samastipur gave his fardbeyan before the SI. D. N. Jha, Officer Incharge of Patori Police Station, in which he stated that in the preceding night his father Kameshwar Rai left for Bathan where he used to sleep situated 500 yards away, after taking meal. At about 10 P.M. his brother-in-law Om Prakash Rai came and both shared the meal. While retiring to bed he stated that he would meet his father-in-law i.e. Kameshwar Rai early morning as he had to go home in the morning itself. At about 1 Oclock in the night both Manoj Kumar Rai and Om Prakash Rai went to the Bathan. No sooner than they reached there, in the flash of torch light, they saw Kameshwar Rai grappling with the appellants. At that point of time appellant Manoj Rai fired from his pistol twice on Kameshwar Rai and thereafter all the three left the place. On alarm the villagers arrived there and information was sent to the Police. Manoj Kumar Rai stated that the motive for the occurrence was that appellant Gopalji Rai wanted his daughter to be married to him (Manoj Kumar Rai) to which his father was not agreeing. Ten days prior to the occurrence too Gopalji Rai made such proposal when he was roughed up by Kameshwar Rai. Gopalji Rai left the place threatening him of dire consequences. 3. On the basis of the fardbeyan Patori P.S. Case No. 4/95 was registered and the investigation followed at the end of which the police submitted chargesheet against the appellants and they were put on trial. At the trial the prosecution examined 12 witnesses to prove its case out of whom four were official witnesses namely, P.W. 4 Dr. Md. 3. On the basis of the fardbeyan Patori P.S. Case No. 4/95 was registered and the investigation followed at the end of which the police submitted chargesheet against the appellants and they were put on trial. At the trial the prosecution examined 12 witnesses to prove its case out of whom four were official witnesses namely, P.W. 4 Dr. Md. Jamauddin who had held post mortem, P.W. 5 S. l. Ram Krishna Singh, P.W. 6 S.I. Kishori Hazara and P.W. 7 Mirja Saifulla Beigh, all of them being part Investigation Officers of the case. The witnesses, namely, P.W. 9 Om Prakash Rai, P.W. 10 Pabitar Rai and P.W. 11 Urmila Devi turned hostile. It may be mentioned here itself that P.W. 9 is none else than the aforesaid brother-in-law of the informant who had allegedly visited his house in the night of occurrence and in whose presence the occurrence took place, as per the fardbeyan. P.W. 11 Urmila Devi is own sister of the informant. Of the rest, P.W, 1 Ram Sagar Sharma, P.W. 2 Ashok Kumar Rai, P.W. 3 Mritunjay Kumar were examined as formal witnesses, while P.W. 12 Haruni Rai merely stated that he heard about the occurrence on the next day. The informant Manoj Kumar Rai was examined as P.W. 8. 4. Shri Chittaranjan Sinha, learned counsel for the appellants submitted that though Manoj Kumar Rai claimed to be eye witness and in his examination in chief has supported the prosecution case in cross-examination he gave a go-by to his earlier version. Without taking into consideration the cross-examination part of his evidence, only on the basis of his examination in chief the trial court convicted the appellants. Counsel submitted that the conviction may be based on the testimony of solitary eye witness but the settled rule is that such witness should be wholly reliable and his evidence un-blemished. Considering the major discrepancies in his evidence he does not qualify to be a reliable witness and therefore it is not safe to rely on his evidence. Counsel also submitted that even as per the examination in chief the informant was only a chance witness and it is highly improbable that the appellant would be waiting to strike on his arrival in the dead of night at 1 Oclock. The submissions of the counsel for the appellant in the facts of the case appear to be well founded. 5. The submissions of the counsel for the appellant in the facts of the case appear to be well founded. 5. In his cross-examination Manoj Kumar Rai stated in no uncertain words that when he reached the Bathan he saw his father in a fallen condition. He was already dead. There was none around at that time. When he raised alarm villagers including Choukidar reached the place. However, he did not reveal the names of the appellants to the Choukidar. The curiouser part of his evidence is his statement that he gave the names of the appelants to the Sub-Inspector of Police on the persuasion of the people of tola-mohalla who had come to the place of occurrence and expressed their doubt about the appellants committing his murder. His cross-examination completely demolishes his earlier version in the fardbeyan or the examination in chief that he saw his father grappling with the appellants and finally being shot down by Manoj Rai. As a matter of fact, he gave a complete go-by to her earlier version and that being so, we are afraid nothing remains on record to justify conviction of the appellants. It is to be kept in mind that the other eye witness Om Prakash Rai-none else than the son-on-law of the deceased, did not support the prosecution case at all and he was declared hostile. 6. Another noticeable part of the evidence of the informant is that though the refusal of the deceased to marry him to the daughter of appellant Gopalji Rai was said to be the reason of the crime, in his cross-examination he stated that he was married in the year 1992 itself. If he was already married in 1992 the case of the prosecution that Gopalji Rai was pressing the deceased for the marriage of his daughter with the informant appears to be highly improbable. Indeed, the entire case that the informant went to the Bathan in the dead of night at 1 Oclock and no sooner than they reached there he saw the appellants committing murder of the deceased also appears to be highly improbable. It was winter night and even if it be accepted that Om Prakash Rai wanted to leave for home early morning, that cannot be said to be appropriate time for making courtesy call. It was winter night and even if it be accepted that Om Prakash Rai wanted to leave for home early morning, that cannot be said to be appropriate time for making courtesy call. In fact, the Bathan was situate only 500 yards away and if he wanted to pay his respect to his father-in-law he could have easily done so before going to bed after taking meal at 10 P.M. Indeed, in view of the prosecution case that he accompanied the informant to the Bathan where the occurrence took place, he was a material witness but he did not support the prosecution case. The sister of the informant, Urmila Devi, too did not support the case. The rest are the formal witnesses or hearsay witnesses. 7. The other aspect of the case is the delay in lodging the case. The occurrence was seen by the informant at 1 Oclock but fardbeyan was made at 9.30 A.M. No information was sent to the police Station. The police reached the place on its own on receipt of rumour about the incident. 8. In the facts and circumstances, we have no hesitation in coming to the conclusion that the prosecution has utterly failed to prove its case and therefore, the conviction of the appellants cannot be sustained. 9. In the result, the appeal is allowed. The conviction and sentence awarded to the appellants are set aside and they are acquitted of the charge. Appellant Nos. 1 and 2 are discharged from the liability of bail bonds. Appellant no. 3, Manoj Rai, who is in jail is directed to be released forthwith if not wanted in any other case. The reference is accordingly answered in the negative.