Judgment BAL KRISHNA JHA, J. 1. By the order dated 30th/ 31st August, 2000, the then learned Additional Sessions Judge-II, Katihar, passed in Sessions Trial No. 145 of 1997, convicted all the four appellants under Sections 302/ 34, IPC and sentenced them to undergo R.I. for life. They were further convicted under Sections 307/34, IPC and were sentenced to undergo R.I. for seven years. Both the sentences were, however, ordered to run concurrently. 2. Being aggrieved, the appellant, Jamal @ Jamaluddin preferred Criminal Appeal No. 518 of 2000 and the appellants, Abdul Rahman, Wajuddin @ Waju and Lateef @ Md. Lateef, preferred Criminal Appeal No. 423 of 2000. 3. The informant, Md. Samir, P.W. 10 disclosed the prosecution case in his Jardbeyan (Ext. 9/1) lodged before the S.I., Sanjay Kumar Thakur of Barsoi Police Station on 31.1.1997 at 11.30 a.m. near Jankia Gomti, Village-Dhachhna, P.S. Barsoi, District Katihar. The informant stated that in the morning of 31st January, 1997 at about 7 a.m. some ladies engaged in parching Murhi raised hulla in village that after killing two persons their dead bodies had been thrown near Jankia Gomti. Thereafter there was hulla that the dead bodies were of Kasim and Kudratallah. On this information the informant alongwith co-villagers went at the place of occurrence and found his brother Kasim lying dead in pool of blood and Kudratallah had already been removed to a local Doctor for treatment. Md. Kasim, the brother of the informant was working at the residence of Kudratallah since his very childhood. The informant came to know that on the arrival of goods of Kudratallah by Link Express at Barsoi he went to deliver the goods at his shop at Barsoi and asked his brother, Kasim, to stay at the Barsoi Railway Station. Kudratallah came back to the Barsoi Station by last bus when it had already been evening. Kudratallah and Kasim both proceeded for the village-Dhachhna. The informant further came to know that when both of them arrived at Jankia Gomti unknown criminals attacked upon them. They assaulted Kudratallah on his head and tied his both hands. Kasim was killed by assaulting him with sharp edged weapon. Both Kasim and Kudratallah had no enmity with any body. Kudratallah had readymade garments shop at Barsoi. The informant, Md. They assaulted Kudratallah on his head and tied his both hands. Kasim was killed by assaulting him with sharp edged weapon. Both Kasim and Kudratallah had no enmity with any body. Kudratallah had readymade garments shop at Barsoi. The informant, Md. Samir, saw the dead body of his brother, Kasim and found a round wound on the left side of his chest, injury on the right arm and head which appeared to be of dagger and his clothes were also found smeared in blood. He further stated that Kudratallah in unconscious state of mind was removed to Siliguri Hospital for treatment and after regaining consciousness he would actually disclose about the incidence but he has got no suspicion against any person. 4. Oh the basis of the Jardbeyan of the informant, Md. Samir, PW 10, a formal FIR (Ext. 8) was drawn up and Barsoi Police Station Case No. 13 of 1997 was instituted against unknown under Sections 302, 307, 326 and 324 of the Indian Penal Code. On completion of investigation police charge-sheeted all the four accused-appellants to stand trial under aforesaid Sections. They were ultimately put on trial for the charges under Sections 302/307 of the Indian Penal Code. 5. The defence of the appellants is that they had not at all committed the offence and have been falsely implicated in this case. No witness has been examined on behalf of the defence. 6. The prosecution examined altogether 16 witnesses in support of its case. Out of them PW 1, Obedullah is an witness to the inquest report and has proved his signature (Ext. No. 1) and that of Mansur Alam, PW 7 (Ext. No. 1/1). PW 2, Md. Khalilullah, PW 3, Md. Mashiuzzamam, PW 4, Md. Ataullah, PW 5, Md. Hashim, PW 8, Mirajul Ishlam, PW 7, Mansur Alam, PW 8, Md. Sabir @ Sadiq, PW 9, Md. Sayeed Anwar, PW 10, Md. Samir, the informant and PW 11, Md. Jafir Ahmad, are not the witnesses on the point of occurrence and they learnt about it from the injured witness, PW 12, Kudratallah. PW, 4 Md. Ataullah, has stated that in Siliguri Hospital, Sanjay Thakur, the Officer Incharge of Barsoi Police Station, recorded the statement of Kudratallah in his presence. The statement was read over to him and thereafter Kudratallah put his signature (Ext. No. 2). He also signed his statement (Ext. No. 2/1). PW, 4 Md. Ataullah, has stated that in Siliguri Hospital, Sanjay Thakur, the Officer Incharge of Barsoi Police Station, recorded the statement of Kudratallah in his presence. The statement was read over to him and thereafter Kudratallah put his signature (Ext. No. 2). He also signed his statement (Ext. No. 2/1). He also proved the statement of Kudratallah recorded under Section 161, Cr PC (Ext. No. 2/1). PW 12, Kudratallah, is the sole injured eye witness to the incidence. PW 13, is Dr. Sanat Prasad Saha a member of the Medical Board conducted autopsy on the dead body of the deceased, Md. Kasim. PW 14 is Dr. M.A. Usmani and PW 15 is Dr. W.A. Chang, who treated Kudratullah. PW 16, Shekhar Singh, is a formal witness and has proved the formal FIR, fardbeyan, endorsement on the fardbeyan and the case diary of Barsoi Police Station Case No. 13 of 1997 from pages 1 to 123 which are in the pen and signature of Sanjay Thakur, the then Officer Incharge of Barsoi Police Station (Ext. Nos. 8, 9, 9/1 and 10 respectively). In addition the prosecution has also got the statement of Kudratullah under Section 164, Cr PC exhibited in this case (Ext. No. 3/1). The Investigating Officer has not been examined by the prosecution in this case. 7. The evidence of PW 13, Dr. Sanat Prasad Saha is that on 1.2.1997, he was posted as medical Officer, Sadar Hospital, Katihar. On the same day at 10 a.m. post mortem was held on the dead body of the deceased, Kasim by a Medical Board consisting of him as one of the members and other members were Dr. D.N. Poddar and Dr. Prem Ranjan. On post mortem examination following ante-mortem injuries were found on the dead body of the deceased, Md. Kasim. EXTERNAL FINDINGS: (i) One lacerated wound circular in shape irregular with blackish colouration round the wound with greasing size 1/2" x 1/2" x deep into thoracis cavity situated on the left side of the chest below and lateral to the left nipple, margins inverte-wound of entry. (ii) Another lacerated wound on the right side of upper arm near right shoulder and axilla size 1/2" x 1/2" x deep into thoracic cavity-margins were everted and irregular. (iii) One lacerated wound on the front of upper scalp 1/2" x 1/2" x 1/2". (iv) There was bleeding from mouth and nose. (ii) Another lacerated wound on the right side of upper arm near right shoulder and axilla size 1/2" x 1/2" x deep into thoracic cavity-margins were everted and irregular. (iii) One lacerated wound on the front of upper scalp 1/2" x 1/2" x 1/2". (iv) There was bleeding from mouth and nose. INTERNAL FINDING: (i) On the opening of the scalp, the brain was found intact inside and pale. On dissection of thorax there was frac-ture of ribs 4th, 5th and 6th on the left side of the chest into multiple pieces corresponding to the wound No. 1. There was complete laceration and disruption of left lung, base of the heart and its major vessels, arota and its branches. Upper part of right lung was also found lacerated. There was a penetrating wound inside right thoracic wall upper part with its exit corresponding to wound No. 2 above mentioned-wound of exit. In his opinion the death was due to shock and haemorrhage corresponding to above mentioned injuries Nos. (i) and (ii) caused by fire arm. The time elapsed between death and post- mortem examination held was found within 48 hours. He proved the post-mortem report (Ext. No. 4). The appellants have also not denied the murder of Md. Kashim but have denied their involvement in the commission of his murder. 8. PW 12, Kudratulla is the sole injured eye witness to the incidence. On regaining consciousness 24 days after the occurrence he gave his statement for the first time before the police on 26.2.1997 in Siliguri Hospital. He has stated that the occurrence had taken on 30th of January, 1997 at about 8 p.m. On the same day at 7 a.m. he had gone to Kishanganj for bringing goods and had asked Kasim to wait for him at Barsoi Station. At about 5 p.m. he came back with readymade garments from Kishanganj to Barsoi Station and went to his shop at Barsoi to deliver the goods. At about 7 p.m. he came to Barsoi railway station by last bus and went to a tea shop, met Kasim and Jamal there and altogether took tea and proceeded for the village- Dhachhna. When they reach near the east of Jankia Gomti at about 8 p.m., the appellant, Jamal coughed loudly and in the mean time heard the sound of Kharkharat. When they reach near the east of Jankia Gomti at about 8 p.m., the appellant, Jamal coughed loudly and in the mean time heard the sound of Kharkharat. He along with Kasim both flashed their torches and identified their co-villagers, the appellants. Abdul Rahman, Wajuddin @ Waju and Lateef. Thereafter the appellant, Jamal also joined them and all of them assaulted him on his legs, hands and head and injured him. The appellant, Jamalud- din put a revolver on his chest whereupon Md. Kasim protested and asked him not to commit murder of co-villager. At this, the appellant, Jamaluddin, shot dead Kasim. The appellant, Abdul Rahman also assaulted Kasim with knife and injured him. He was also assaulted on his head and he became unconscious and thereafter they thinking him dead made good escape from there. He has further stated that he regained his consciousness in Siliguri Hospital after 20 days and gave his statement before the darogaji. His further statement was also recofded by him. He put his signature on the statement (Ext. No. 2). His further evidence is that his statement under Section 164, Cr PC was also recorded and was signed by him (Ext. No. 3). He has further deposed that he had narrated about the occurrence to his brothers and all other visitors Siliguri Hospital. This witness was cross examined at length but nothing material could be elicited by the defence. 9. PW 14 is Dr. M.A. Usmani. He has stated that on 31.1.1997 at about 8.20 a.m. the injured, Kudratulla, PW 12, was brought at this residence nearby Barsoi Railway Station. He was unconscious and was referred to Neuro Surgeon at Siliguri. He gave life saving drugs to Kudratulla. He has further stated that Kudratulla had head injuries and on the left side scratching. He proved the certificate furnished by him (Ext. No. 5). 10. PW 15 is Dr. W.A. Chang. He has deposed that on 31.1.1997 he was working as Neuro Surgeon in Shanti Sansthalaya and Anusandhan Kendra. Siliguri. As per admission record Kudratulla was admitted at 6 p.m. on 31.1.1997. He has stated that Kudratulla was brought to his Nursing Home with head injury and he was not speaking and opening his eyes. He found head injury grievous in nature and dangerous to life. According to him the said injury was sufficient to cause death. Siliguri. As per admission record Kudratulla was admitted at 6 p.m. on 31.1.1997. He has stated that Kudratulla was brought to his Nursing Home with head injury and he was not speaking and opening his eyes. He found head injury grievous in nature and dangerous to life. According to him the said injury was sufficient to cause death. Kudratulla was discharged from his Nursing Home on 12.3.1997. This witness was examined by the Court on 24th of March, 2000 and his evidence indicated that the injured Kudratulla was still under this treatment. He has proved the medical report which is in the pen and signature of Dr. M.J. Dhandhariya (Ext.No. 6). He has also proved the progress report of the injured, Kudratulla (Ext. Nos. 7/5). 11. The learned counsel for the appellants contended that the informant, Md. Samir, PW 10, who was admittedly not an eye witness to the incidence, lodged the FIR that the crime was committed by unknown criminals. He gave every minute details except the name of the assailants. The informant failed to disclose the name of the informer of the occurrence. The learned counsel further contended that the trial Court failed to consider the inherent infirmities appearing in the evidence of the injured, Kudratulla, PW 12 in Court and the statements made by him under Sections 161 and 164, Cr PC. The trial Court wrongly accepted and acted upon his evidence for the conviction of the appellants. 12. On the other hand, learned A.P.P. for the State contended that the evidence of the injured witness, Kudratulla PW 12 in the Court is substantive evidence and the Court below committed no wrong by placing reliance on his testimony for the conviction of the appellants. 13. Admittedly, in the present case, there is only one eye witness, PW 12 Kudratulla, to the occurrence in which Kasim met with death and he himself was injured. The evidence of this witness in regard to participation of all the four appellants has been fully relied upon by the Court below. This witness stated in his evidence in Court that all the four appellants assaulted him on his head, hands, legs and injured him. The appellant, Jamal shot dead Kasim and the appellant, Abdul Rahman , also assaulted Kasim with knife. He (this witness) was also assaulted with something on his head and he became unconscious. This witness stated in his evidence in Court that all the four appellants assaulted him on his head, hands, legs and injured him. The appellant, Jamal shot dead Kasim and the appellant, Abdul Rahman , also assaulted Kasim with knife. He (this witness) was also assaulted with something on his head and he became unconscious. In his statement under Section 164 Cr.PC (Ext. No. 3/1) he stated that all the appellants assaulted him and the appellant, Jamal, put a revolver on his chest whereupon the deceased, Kasim protested him. Then Kasim was shot dead and was also assaulted with knife. He further stated that on hearing the sound he became unconscious. In his statement under Section 161 Cr.PC (Ext. No. 2/2) he stated that the appellant, Rahman assaulted him with something on his head and the appellant. Jamal, put a pistol on his chest. On being assaulted he fell down on the ground and heard the sound of something. He became unconscious and on regaining consciousness he found himself in Siliguri Hospital and learnt about the murder of Md. Kasim. Thus, the story of incidence narrated by the sole witness, Kudratulla, in Court substantially differs from that made in his statement under Section 164 Cr.PC and Section 161 Cr.PC. In his statement under Section 161 Cr.PC he had not stated that the deceased, Kasim, was shot dead by Jamal as stated in Court. Further, as per his evidence in Court and statement under Section 164 Cr.PC all assaulted him (this witness) but as per the statement under Section 161 Cr.PC Rahman assaulted him. This witness has no where stated that with what weapon he was assaulted. Further, PW 1, Obedullah, PW 3, Md. Mashiuzzamam, PW 4, Md. Ataullah, PW 6, Mirajul Ishlam, PW 8 Md. Sabir @ Sadiq have categorically stated that when they went at the place of occurrence they found both the hands of the injured, Kudratulla, PW 12, tied but surprisingly enough the PW 12, Kudratulla, has no where stated either in the Court or in his statement under Sections 161 or 164, Cr PC about it. The admitted position of law is that the conviction can be based on the basis of the sole testimony if found to be reliable and trustworthy. The admitted position of law is that the conviction can be based on the basis of the sole testimony if found to be reliable and trustworthy. In the present case, the evidence of the sole witness, PW 12, Kudratulla suffers from a number of infirmities as discussed above and does not inspire confidence to rely upon his testimony. I find great force in the submission of the learned counsel for the appellants that the trial Judge failed to appreciate the above discussed improbabilities appearing in this case. This being the situation it would not be safe to accept the evidence of the solitary witness, PW 12, Kudratulla, for the consideration of the guilt of the appellants. 14. Thus, on examination of the entire materials, I find compelling reasons as catalogued above to disbelieve the evidence of PW 12, Kudratulla, the sole eye witness and disagree with the judgment of conviction recorded by the trial Judge against the appellants. All the four appellants are entitled to get the benefit of doubt and they are acquitted of the charges. 15. There is merit in both the appeals and they are allowed. The appellants, Abdul Rahman, Wajuddin @ Waju and Lateef @ Md. Lateef in Criminal Appeal No. 423 of 2000 are on bail and so they are ordered to be discharged from the liabilities of their executed bail bonds. The appellant, Jamal @ Jamaluddin, in Criminal Appeal No. 518 of 2000 is in custody, so he is ordered to be set at liberty forthwith in this case if not wanted in any other case.