JUDGEMENT S.N.JHA & P.N.Y ADAV, JJ.:- The sole appellant of this appeal has been convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life. He has also been convicted under section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 2. The case of the prosecution is that Raj Kishore Sah alias Munna, the deceased of the case, lived in a lodge known as Rameshwar Sharma lodge at Manjhauli Dharamadas, in Muzaffarpur town. He was a student of the 1st year Science in the M.P. Sinha Science College, Muzaffarpur. One Sanjay Pathak alias Murari who was put on trial but acquitted was his room mate. The informant of the case, Deepak Kumar, a student of 1st year Science of R.D.S. College, Muzaffarpur was his friend. He too lived in a lodge belonging to Shivchandra Singh, one Km. away. They used to visit each other regularly. On 23.7.1992 at 6.00 P.M. Raj Kishor Sah went to the lodge of the informant and from there they came to Rameshwar Sharma Lodge. At about 7.00 P.M. when the informant and the deceased were gossiping Sanjay Pathak went out on the pretext of easing himself. At that time the appellant who lived in another room in the same lodge across the room in which the deceased and Sanjay Pathak lived, was present in his room. At about 7.10 P.M. he i.e. the appellant entered into the room of the deceased and fired at him from his country made pistol from a close range. The bullet pierced into the right side of chest. Raj Kishore Sah fell down on the chowki injured. The informant became nervous and tried to lie on other chowki by folding his left leg. In the meantime, the appellant took out the empty cartridge from his pistol, put it in his pocket and after loading another live cartridge fired at him i.e. the informant. The bullet hit the left palm near wrist joint and left thigh causing bleeding injuries. The appellant thereafter left the room and Sanjay Pathak entered. By then Raj Kishore Sah had succumbed to his injuries. Sanjay Pathak, it is said, pulled out the blood drenched trousers of the informant and gave him Lungi to put on. He then left the room on the pretext of getting rickshaw. The appellant thereafter left the room and Sanjay Pathak entered. By then Raj Kishore Sah had succumbed to his injuries. Sanjay Pathak, it is said, pulled out the blood drenched trousers of the informant and gave him Lungi to put on. He then left the room on the pretext of getting rickshaw. He was, however, caught by the people who had assembled outside and handed over to the Chowkidar Jai Narain Ram. The appellant, however, managed to escape. 3. The incident was narrated by the informant to the S.I. Md. Yaqub of Muzaffarpur Sadar Police Station at 8.00 PM. On the basis of his statement Muzaffarpur Sadar P.S. Case No. 190/92 was registered and investigation commenced. At the end of investigation, after completing the required formalities, Md. Yuqub submitted charge-sheet against the appellant and the said Sanjay Pathak. 4. At the trial the prosecution examined nine witnesses to prove its case out of whom PW. 2 Raghunath Ram and P.W. 4 Baijnath Sharma were declared hostile. The Doctor - who held the post mortem, namely, Dr. Vinod Kumar Mehta was examined as P.W. 7 while S.I. Md. Yaqub was examined as P.W. 8. P.W. 9 Anand Kumar Choudhary was examinee as a formal witness to prove the injury report with respect to the informant. The remaining three witnesses, namely, P.W.1 Jai Narayan Ram, P.W. 5 Mano Paswan and P.W.6 Dipak Kumar were examined as material witnesses. While the former two claimed to have reached the place of occurrence after incident, taken custody of Sanjay Pathak and informed the police about the occurrence. P.W. 6 Deepak Kumar, the informant, examined himself as eye witness. 5. No witness was examined in defence. They took the usual plea of innocence and false implication. At the end of trial the trial court acquitted Sanjay Pathak but convicted the appellant in the manner stated above. 6. Sri Shree Nandan Prasad Singh, learned counsel for the appellant made the following submissions: The story told by the prosecution is not true and complete story. Though two shots are said to have been fired, only one bullet was recovered from the body. In the absence of any explanation the story of two fires does not appear to be probable. As a matter of fact, the witnesses, namely P.Ws. 1 and 5 stated that they had heard sound of one bomb explosion. Though two shots are said to have been fired, only one bullet was recovered from the body. In the absence of any explanation the story of two fires does not appear to be probable. As a matter of fact, the witnesses, namely P.Ws. 1 and 5 stated that they had heard sound of one bomb explosion. The informant did not disclose the name of the appellant as the assailant to P.Ws. 1 and 5 or to other. From the evidence, it appears that another fire arm was recovered from the room of occurrence. Despite petition to that effect it was not sent for forensic test by a ballistic expert. The prosecution has failed to explain the injury on the person of the informant. The conduct of the informant himself was doubtful. Particular reference was made to that part of his version where he stated to have changed his blood drenched trousers and put on Lungi provided by none else than co-accused Sanjay Pathak. Curiously, the trouser was recovered from the other room in which the appellant lived. In the circumstances, it is not safe to rely on the evidence of the informant and he being the solitary eye witness, to uphold the appellant's conviction. 7. On behalf of the State it was submitted that the informant's presence at the place of occurrence could not be doubted as he also sustained injuries in course of the occurrence. He submitted that the informant is the solitary eye witness but conviction on the testimony of solitary eye witness is permissible. The case was instituted within one hour of the occurrence and in the circumstances the veracity of the prosecution case cannot be doubted. 8. The law is well settled that the evidence of solitary eye witness can be the basis of conviction provided the witness is wholly reliable and, therefore, it is to be considered as to whether the evidence of the informant deserves wholehearted acceptance. We have already indicated above the version of the informant as stated in the Fardbeyan as also in his evidence in Court. According to him, though the shots were fired by appellant Sanjay Pathak was part of the conspiracy. Indeed, it may be mentioned that Sanjay Pathak is nephew of the appellant. We have already indicated above the version of the informant as stated in the Fardbeyan as also in his evidence in Court. According to him, though the shots were fired by appellant Sanjay Pathak was part of the conspiracy. Indeed, it may be mentioned that Sanjay Pathak is nephew of the appellant. P.W. 1 Jai Narayan Ram, however, stated in paragraph 3 of his evidence that the crowd which had gathered outside the lodge after the incident had stated that three persons had killed the deceased and fled away. He also stated that the informant did not disclose the name of the assailants. P.W.5 in his evidence stated that the informant had said that one person had killed the deceased and fled away. According to him also, the informant did not disclose the name of the appellant or any other person as the assailant. 9. The evidence of the informant that he had become unconscious and he regained consciousness only when the police arrived seems to be an after thought. It is to be kept in mind that from Ext.12, the injury report, it appears that the informant had sustained minor injuries. The trouser was found drenched with blood (Lathpath) by the Investigating Officer. Interestingly, the trouser was recovered from the other room in which the appellant lived. Curious part of his version is that the trouser he was putting at the time of occurrence was removed by none else than co-accused Sanjay Pathak who have his Lungi to him to put on. This aspect of the case, to our mind, has remained unexplained. The informant had allegedly sustained injury in course of the occurrence when he was fired at by the appellant. It is difficult to visualise that he would take off his trousers at the instance of Sanjay Pathak whom he believed to be a conspirator and put on his (Sanjay Pathak) Lungi. Further how the trouser travelled to the other room in which the appellant lived also is totally unexplained. From the evidence on record it appears that on hearing the sound of gun fire public had assembled outside the lodge. The Chowkidars had come. It is not clear why so hurriedly the informant would change his blood drenched trousers. This gives us an impression that something is withheld by the prosecution. The conduct of the informant in our mind does not appear to be clean. The Chowkidars had come. It is not clear why so hurriedly the informant would change his blood drenched trousers. This gives us an impression that something is withheld by the prosecution. The conduct of the informant in our mind does not appear to be clean. The fact that a fire arm was recovered though in a rusted condition, in the room of occurrence gives an impression about the activities of the deceased. It appears that the deceased was killed as a result of conspiracy and the real story has been with held. In the circumstances, it does not appear that the informant is a person in whom we can place our total reliance. Being not above blemish, it will not be safe to uphold the conviction on his sole testimony. In the circumstances, we are inclined to give the benefit of doubt to the appellant. In any case, it appears from the record that the appellant has remained in jail before and after conviction for about six and a half years and thus if he has had any hand in the crime, he has suffered for that. 10. In the result the appeal is allowed. The conviction and sentence awarded to the appellant are set aside and he is acquitted of the charge. The appellant is in jail. He is directed to be released forthwith if not wanted in any other case.