JUDGMENT Hon’ble G.P. Srivastva, J.—This appeal is directed against the judgment and sentence dated 7.3.03 passed by the learned Addl. Sessions Judge, Court No. 1, Budaun in Session Trial No. 1130 of 1997 (State v. Asadulla and Ishratulla) under Section 302 read with 34, I.P.C. and Section 4/25 Arms Act, Police Station Kotwali district Budaun whereby he convicted and sentenced the appellants under Section 302 read with 34 I.P.C. to life imprisonment and a fine of Rs. 5000/-. In default of payment of fine they were directed to undergo six months additional imprisonment. He has convicted and sentenced the appellant Asadulla to six months rigorous imprisonment under Section 4/25 Arms Act. All the sentences were made concurrent. 2. The prosecution case in brief is that informant Smt. Ajaj Bano is resident of mohalla Nagran P.S. Kotwali, Budaun. One Iqbal grandson of informant on 19.5.1997 stabbed to death one Ajmatulla Khan alias Abdulla Khan at Zama Masjid crossing on the dispute of Rikshaw fare. The said Iqbal was in jail and the pairvi of his case was being conducted by deceased Rais Beg the son of informant. As a result of which the brothers of deceased Iqbal and his relations were inimical with the informant and his son deceased Rais Beg. On 23.6.1997 deceased Rais Beg was coming to his house after closing his shop of Battery charging situated behind the water works, the informant met him near Sabji Mandi, the deceased and the informant visited the house of C.W.1 Wahid who is cousin father-in-law of deceased. At about 7.45 P.M. when the deceased and informant were going to their house and reached near the stall of one Khalil the accused appellants Asadulla Khan and Ishratulla Khan armed with Tabals surrounded the deceased Rais Beg and exhorted that he was doing pairvi and they will not allow him to remain alive. Both the accused appellants assaulted the deceased by Tabals who fell down after receiving injuries. The informant had a torch in her hand and deceased was carrying bicycle though both were going on foot. The occurrence was seen by the witnesses Shakeel Mistri and Intzar Beg. None chased the accused persons and they fled away. After some time police reached at the place of occurrence, took the deceased to hospital where he died due to the injuries. The occurrence was seen by the witnesses Shakeel Mistri and Intzar Beg. None chased the accused persons and they fled away. After some time police reached at the place of occurrence, took the deceased to hospital where he died due to the injuries. Informant Smt. Ajaj Bano went to police station Kotwali Budaun and submitted written report Ext. Ka-1 at about 22.10 P.M. A chick FIR. Ext. Ka-16 was prepared. A case was registered vide G.D. No. 55 time by 22.10 dated 23.6.1997, carbon copy of which is Ext. Ka-17. The investigation was entrusted to Inspector Karam Veer Singh Bansal who prepared inquest report Ext. Ka-7 and sent the dead body for post mortem. He prepared site plan Ext. Ka-3 took blood stained and plain earth from the place of occurrence and prepared memo Ext. Ka-4. He picked up Avon Cycle and one pair old Chappal and prepared memo Ext. Ka-5. He inspected the torch of informant and prepared memo Ext. Ka-6. He took the appellants on police remand on 6.7.1997. The accused persons got the weapons of assault recovered from a graveyard. The Investigating Officer sealed the same and prepared memo Ext. Ka-13. The appellants told to the Investigating Officer that these are the Tabals through which they committed murder of the deceased. The Investigating Officer prepared site plan of the place of recovery Ext. Ka-4 and got a case registered against the appellant Asadulla Khan under Section 4/25 Arms Act and after conclusion of investigation the Investigation Officer submitted charge-sheet against the accused persons. 3. The autopsy of the dead body of the deceased was conducted by Dr. S.K. Agnihotri P.W.2 on 24.6.1997 at about 12.40 hours. According to his opinion the deceased was aged about 23 years and died in between 12 to 18 hours from the time of the autopsy. According to his opinion the death of deceased was caused due to haemorrhage and shock as a result of ante mortem injuries. The Doctor found following ante mortem injuries on his person : 1. Incised wound 9 cm x 1.6 cm x cavity deep on (Lt.) side of head 4 cm above (Lt) ear. Blood clots present. 2. Incised wound 10 cm x 2 cm x cavity deep on the (Lt) side of back of head. Clotted blood present. The Doctor found following ante mortem injuries on his person : 1. Incised wound 9 cm x 1.6 cm x cavity deep on (Lt.) side of head 4 cm above (Lt) ear. Blood clots present. 2. Incised wound 10 cm x 2 cm x cavity deep on the (Lt) side of back of head. Clotted blood present. On opening skull cavity meningitis brain matter few cut in the same lined and blood (150 mg.) found in the cavity underneath bones found cut in the line of incisor. 3. I.W. 13 cm x 3 cm x bone deep on (Lt.) side of face and adjoining neck, wound started from (Lt) angle of mouth to the Lt. side of neck. Muscles vessels. There is mandible found in the same line. Clotted blood present. 4. I.W. 9 cm x 2 cm x bone deep on (Lt.) side of forehead just above eyebrow. Clotted blood present. 5. I.W. 11 cm x 2 cm on the (Rt.) side of face adjoining neck. Muscles (Rt.) carotid sheath its contents—Mandible found cut. Clotted blood present. 6. I.W. 4.5 cm x. 6 cm x muscles deep present on (Lt.) side of neck. Clotted blood present. 7. I.W. 8 cm x 3 cm x bone deep on (Lt.) shoulder. Muscles (Lt.) clavicle bone cut on the some line. Clotted blood present. 8. I.W. 3.5 cm x .5 cm on the middle of front of chest. Muscle found cut in the some line. Clotted blood present. 9. I.W. 1.5 cm x .5 cm x muscle deep on (Lt.) side of chest 4 cm away from (Lt.) nipple at 2 O’clock position. 10. I.W. 1 cm x .5 cm x muscle deep on (Lt.) side of chest 14 cm below (Lt.) nipple of 6 O’clock position. Clotted blood present. 11. I.W. 3 cm x 2 cm x cavity deep over epigastria. 12. I.W. 3 cm x 1 cm x cavity deep (5 away from umbilicus) on opening abdomen cavity found filled with 1 liter of blood with multiple cuts on large small bowels with two cuts on liver facial matter spilling in the cavity. 13. I.W. on (Rt.) side of chest with muscle deep. Clotted blood present. 14. 12. I.W. 3 cm x 1 cm x cavity deep (5 away from umbilicus) on opening abdomen cavity found filled with 1 liter of blood with multiple cuts on large small bowels with two cuts on liver facial matter spilling in the cavity. 13. I.W. on (Rt.) side of chest with muscle deep. Clotted blood present. 14. I.W. 2 cm x 1 cm x cavity deep on (Rt.) side of chest over mid axillary line opening chest cavity pleura with on found cut in the same line with 3 mg blood in the cavity. 15. I.W. 1.5 cm x 5 cm x muscle deep on (Rt.) scalp of back at L-1 long 1 cm away from mid line. Clotted blood present. 16. I.W. 1.5 cm x .5 cm x muscle deep on back 2 cm away from mid line. 17. I.W. 2 cm x .5 cm x bone deep on back of (Rt.) shoulder. Clotted blood present. 18. I.W. 1 cm x .5 cm muscle deep on potentate aspect of (Rt.) arm of 2 cm above elbow joint. 19. I.W. 2-5 cm x .5 cm x muscle deep on just of (Lt.) arm. 20. I.W. 8 cm x 1 cm x muscle deep on the back of (Rt.) hand. 21. I.W. 2 cm x .5 cm muscle deep at the knuckle of right middle finger. 4. The blood stained wearing pant, belt, shirt, Baniyan, Angochha. Kachha, Tabij, blood stained and plain brick bats, Pharsa and Tabal were sent for serological examination to Vidhi Vigyan Prayogshala, Agra. A report was received which is Ext. Ka-20. 5. The accused appellants were charged for the offence under Section 302 read with 34 I.P.C. and appellant Asadulla was further charged for the offence under Section 4/25 Arms Act. The accused persons pleaded not guilty and claimed trial. 6. The prosecution examined P.W. 1 informant Smt. Ajaj Bano, P.W. 2 Dr. S.K. Agnihotri, P.W. 3 Inspector K.S. Bansal, Investigating Officer, P.W.4 S.I. Anwar Ali second Investigating Officer. C.W. 1 Wahid Hasan was examined as Court witness. 7. The accused persons in their statement under Section 313, Cr.P.C. had denied the prosecution case and stated that Iqbal is the grandson of the complainant Smt. Ajaj Bano. Deceased Rais Beg is the son of informant. The appellant Asadulla Khan is a witness and Isharatulla Khan is the complainant of the said case. 7. The accused persons in their statement under Section 313, Cr.P.C. had denied the prosecution case and stated that Iqbal is the grandson of the complainant Smt. Ajaj Bano. Deceased Rais Beg is the son of informant. The appellant Asadulla Khan is a witness and Isharatulla Khan is the complainant of the said case. Consequently they have been falsely implicated. They have further alleged that the wife of deceased Rais Beg is of bad character who got Rais Beg killed through her friends. They have stated that they would lead the evidence but they did not lead any evidence in the case. 8. After hearing the arguments of the parties and considering the evidence on record the learned Addl. Sessions Judge, Court No. 1 Budaun has convicted and sentenced as above. Feeling aggrieved with the judgment and sentence by the Court below the accused persons have preferred this appeal. 9. We have heard Sri P.N. Misra, learned Counsel for the appellants and Sri K.P. Shukla A.G.A. for the State. 10. The factum of death of deceased Rais Beg has not been disputed. It has also not been disputed that the deceased Rais Beg died on 23.6.1997 at about 7.45 P.M. at mohalla Nagran P.S. Kotwali. Budaun due to the injuries sustained by him. The post mortem report Ext. Ka-2 shows that the death was caused due to ante mortem injuries. The post mortem report was proved by P.W. 2 Dr. S.K. Agnihotri who has stated that all the injuries might have been caused by some sharp edged weapon on 23.6.1997 at about 7.45 P.M. 10. In order to prove the involvement of the accused persons in the offence of committing murder of deceased Rais Beg the prosecution has examined the solitary eye-witness P.W. 1 Smt. Ajaj Bano who is the mother of the deceased as well as the informant. She has stated that in the night of occurrence the deceased was coming back to his house. She had gone to purchase vegetable. She met the deceased near Sabji Mandi at about 7.00 P.M. Thereafter both of them went to the house of C.W.1 Wahid Hasan who happened to be the cousin father-in-law of the deceased at Chak road. She has stated that in the night of occurrence the deceased was coming back to his house. She had gone to purchase vegetable. She met the deceased near Sabji Mandi at about 7.00 P.M. Thereafter both of them went to the house of C.W.1 Wahid Hasan who happened to be the cousin father-in-law of the deceased at Chak road. When both the deceased and she herself were coming back and reached near the stall of Khalil the accused persons armed with Tabal met, challenged the deceased and told that they will not leave him alive. Both the accused appellants caused Tabal injuries to the deceased who died due to the injuries in the way to the hospital. 12. Learned Counsel for the appellants has argued that no independent witnesses were produced by the prosecution though were available as per the F.I.R. In this connection he has placed reliance on Hem Raj and others v. State of Haryana, JT 2005 (3) SC 600 held that the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of PW5 at a sweet stall and both of them after hearing the cries joined PW4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first I.O. PW9 went to the hospital. The evidence of the first I.O. reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The I.O. admitted that Kapur Singh was the eye-witness to the occurrence. In the FIR, he is referred to as the eye-witness along with PW5 Kapur Singh was present in the Court on 6.10.1997. The Addl. Public Prosecutor gave up the examination of this witness stating that it was unnecessary. The trial Court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The Addl. Public Prosecutor gave up the examination of this witness stating that it was unnecessary. The trial Court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to proliferation of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution’s omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of proliferation of direct evidence is not a correct approach. The corroboration of the testimony, of the related witnesses PWs 4 and 5 by a Known independent eye witness could have strengthened the prosecution case, especially when the incident took place in a public place.” 13. We have gone through the ruling carefully and find it distinguishable on facts. In the instant case the F.I.R. shows that Shakeel Mistri and Intzar Beg came to the place of occurrence and witnessed the occurrence. The informant P.W. 1 Smt. Ajaj Bano has stated that the witness Shakeel has died. He was living in Pilibhit. He informed the factum of his death to the constable who took the summon of the witness. The informant was cross-examined on this point but nothing could come out to falsify her statement. The defence has not been able to prove that the witness Shakeel is alive. As far as the next witness Intzar Beg is concerned the learned Sessions Judge in the judgment has observed that the prosecution has obtained summons and warrants a number of times to procure the attendance of this witness but failed. It was reported by the police that the witness was living some where at Delhi. The witness was summoned by the Court under Section 311, Cr.P.C. and non-bailable warrants were issued along with letter to the S.S.P. but the police report shows that he could not be made available despite best efforts. The learned Sessions Judge has further observed that the witness Intzar Beg moved an application along with an affidavit dated 7.3.2000 wherein he has alleged that he is apprehending danger from the family of the accused persons. He received threats from the side of the accused persons. The learned Sessions Judge has further observed that the witness Intzar Beg moved an application along with an affidavit dated 7.3.2000 wherein he has alleged that he is apprehending danger from the family of the accused persons. He received threats from the side of the accused persons. It appears that due to the alleged threats extended by the family members of the accused persons the witness avoided to appear and the police has failed to procure his attendance. Therefore it was not possible for the prosecution to produce the said witness. The explanation for non-production of independent witness is satisfactory. 14. Learned Counsel for the appellants has further argued that no witness of the locality was produced by the prosecution to substantiate and corroborate the statement of the solitary witness P.W.1 Smt. Ajaj Bano. In this connection he has placed reliance on State of U.P. v. Madan Mohan and others, 1989 S.C.C. (Crl.) 585 where it was held that “Be that as it may, the fact remains that the genesis of the crime is suppressed and no witness from the locality whose presence would be natural is examined which creates a doubt regarding the truth of the prosecution version.” 15. We have gone through the ruling carefully and found it distinguishable on facts. In the instant case the F.l.R. shows that after the occurrence shops of Zama Masjid closed down, people closed the doors of their houses and none came to help the informant due to the fear. In such a situation it cannot be expected that any person of the locality will depose in favour of the prosecution against the accused persons. 16. The learned Counsel for the appellants has further argued that P.W.1 Smt. Ajaj Bano is a chance witness beside being solitary eye-witness. Therefore her testimony should be cautiously examined. In this connection reliance has been placed on Bahal Singh v. State of Haryana, A.l.R. 1976 SC 2032 held that “If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused, then his being a chance witness is viewed with suspicion. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused, then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny.” 17. Reliance has further been placed on Ramji Surjya and another v. State of Maharashtra, 1993 CAR 313 (S.C.). It has been held that “There is no doubt that even where there is only a sole eye-witness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or illwill is suggested. Now in the instant case a careful analysis of the evidence relating to the inordinate delay involved in the giving of the first informations to the police and the other inherent inconsistencies in the evidence of the eye-witness i.e. Surjabai (P.W. 2) shows that her evidence cannot be considered as sufficient to find the accused guilty.” 18. Both the above observations of the Apex Court required that a chance witness as well as a solitary witness are the competent witnesses but their testimony should be critically tested and the prudence requires some corroboration. 19. Learned Counsel for the appellants has argued that no blood stained were found on the clothes of the informant P.W.1 Ajaj Bano nor she attempted to save her son nor she took her to the hospital Therefore it should be presumed that the witness was not at all present at the time of the occurrence and she came after the deceased was taken to hospital where he died in the way. In this connection he has placed reliance on Vanravan Anandji v. Koli Vashram Punja and another, 2001 (1) A.Cr.R. 853 (S.C.) In that case P.W.4 and 8 stating that they removed deceased in lorry to Government hospital and again lifted him from lorry and put him in car. But strangely enough their clothes could not be stained with blood. In this connection he has placed reliance on Vanravan Anandji v. Koli Vashram Punja and another, 2001 (1) A.Cr.R. 853 (S.C.) In that case P.W.4 and 8 stating that they removed deceased in lorry to Government hospital and again lifted him from lorry and put him in car. But strangely enough their clothes could not be stained with blood. They admitted that their clothes did not get blood stained though their hands soaked with blood and those hands also did not touch any part of their clothes. 20. Reliance has further been placed on Ramji Surjya and another v. State of Maharashtra, 1993 CAR 313 (SC). In that case the only eye-witness who happened to be the wife of the deceased. In the evidence that the blood of the deceased had been splayed all around but it is stated by Surjabai (PW 2) that not even a single stained was found on her clothes. The absence of blood stain on the clothes of Surjabai suggests that she could not have been present at the scene at the time of occurrence. 21. Reliance has further been placed on State of Punjab v. Sucha Singh and others, 2003 (46) ACC 584. It was held that “Any father, worth the name, would not remain a mute spectator when his son is being inflicted as many as 24 injuries at his very nose.” 22. Reliance has further been placed on Bhimappa Jinnappa Naganur v. State of Karnataka, 1993 Crl. L.J. 1801 (SC). It was held that “Behaviour of eye-witness found unnatural as she being wife of deceased not trying to nurse him or offering any help which would have shown her presence at the time of incident.” 23. Reliance has further been placed on Dindayal v. Raj Kumar @ Raju and others, 1998 (36) ACC 718 (S.C.) It was held that witness had not accompanied the deceased to the hospital nor had taken any trouble of going and informing the police about what had happened. After seeing the incidence they quietly went back to their homes. It cannot be said that the view taken by the High Court that the conduct of the witnesses was not natural is unreasonable. They were not closely connected with the deceased. The High Court was, therefore, justified in not placing any reliance upon their evidence.” 24. After seeing the incidence they quietly went back to their homes. It cannot be said that the view taken by the High Court that the conduct of the witnesses was not natural is unreasonable. They were not closely connected with the deceased. The High Court was, therefore, justified in not placing any reliance upon their evidence.” 24. It is true that no blood stain were found on the clothes of the informant Smt. Ajaj Bano P.W.1 but it is not correct to say that she did not attempt to save her son and not accompanied to deceased to the hospital. P.W. 1 Smt. Ajaj Bano has stated that when the accused persons were assaulting the deceased no body tried to save him only she tried to save him. The accused persons tried to assault her, she entered into Nala whereby she received injury. There was no water in the Nala. Therefore her clothes were not wet. She did not show her injury nor got medically examined. This part of the statement has not been challenged by the defence nor any suggestion to this effect has been put forward to her. She was not confronted with her earlier statement under Section 161, Cr.P.C. in this regard. Therefore, there is no ground to reject this part of the statement of the witness. Therefore it cannot be said that she did not try to save her son. The absence of blood stains on her clothes is also explained because when she entered into the Nala and the injured deceased was taken to hospital by police man there was no occasion for her to touch her son. Therefore, if no blood stains were found on her clothe it cannot be inferred that she did not witness the occurrence. 25. The witness P.W.1 Smt. Ajaj Bano has stated that when her injured son was taken to hospital by police man reached there she followed her to the hospital. This statement is corroborated by the recital of the F.I.R. 26. The statement of P.W. 1 informant Smt. Ajaj Bano finds support with the statement of C.W.1 Wahid Hasan in some respect. It is the prosecution case that prior to the occurrence the deceased and P.W.1 informant Smt. Ajaj Bano visited the house of Wahid Hasan who happened to be their relation. C.W.1 Wahid Hasan admitted that Smt. Ajaj Bano is his Samdhan. It is the prosecution case that prior to the occurrence the deceased and P.W.1 informant Smt. Ajaj Bano visited the house of Wahid Hasan who happened to be their relation. C.W.1 Wahid Hasan admitted that Smt. Ajaj Bano is his Samdhan. He has also admitted that some days before the occunence he got his battery repaired from the deceased and Rs. 500-600 were due on him. The deceased several times came to his house in order to get the money. As he was not present in his house in the night of occurrence therefore he was not in a position to say whether the deceased and his mother came to his house on the said date or not. This statement of C.W.1 Wahid Hasan corroborates the story of the prosecution to certain strength. 27. In view of the above discussions we are of the opinion that the testimony of the solitary eye-witness P.W.1 Smt. Ajaj Bano is trustworthy and sufficient to base the conviction 28. The accused appellant Asadulla has been charged for offence under Section 4/25 Arms Act for having found in possession of a Tabal on 6.7.1997 at about 10.00 A.M. In fact this allegation m against the prosecution case. The Tabal was recovered at the pointing of the appellant Asadulla from the graveyard and not from his possession, therefore he cannot be convicted and sentenced in offence under Section 4/25 Arms Act. Therefore we are of the view that the appeal deserves to be partly allowed. The conviction and sentence of appellant Asadulla in respect of offence under Section 4/25 Arms Act is liable to be set aside and the conviction and sentence of appellants for the offence under Section 302 read with 34 I.PC. is fit to be maintained 29. In the result the appeal is partly allowed. The conviction and sentence of appellant Asadulla in respect of offence under Section 4/25 Arms Act is set aside. He is acquitted of the said offence. 30. The appeal in respect of conviction and sentence under Section 302 read with 34 IPC is hereby dismissed. The appellants are in jail. They be kept there to serve out the sentence awarded to them. 31. Let a copy of this judgment be sent to the concerned Court for necessary action. Appeal Partly Allowed. ———