S. L. KOCHAR, J. ( 1 ) FOR taking exception to the order of conviction and sentence passed against the appellants by learned I addl. Sessions Judge, Barwani, Distt. West nimar in the matter of Session Trial No. 388/ 96, the appellants have approached this court by preferring this appeal. Learned I addl. Sessions Judge, Barwani had convicted the appellants for the offence punishable u/ss. 302/34 and 201 of IPC and sentenced each of the appellant to undergo imprisonment for life with fine of Rs. 200/-in default of payment of fine one month s. I. and two years R. I. with fine of Rs. 200/-and in default of payment of fine one month additional S. I. u/s. 201 of IPC. The substantive sentences were directed to run concurrently. ( 2 ) THE short resumes of the prosecution case as narrated before the trial Court was that on 23-7-1996 police of Police Station, rajpur was informed by Shura that his son jagdish was lying dead near village Danod in a rivulet. Bhura came across this fact through Gokul and went to the spot and saw his son Jagdish lying dead. Murg was registered at Police Station, Rajpur vide No. 33/ 96. During the course of investigation, panchnama of the dead body was prepared, post-mortem of the deceased was performed by Dr. R. K. Dube (P. W. 11 ). Simple earth and blood-stained earth from the place of occurrence were seized. The injuries were found on the dead body of the deceased. On investigation, it was found that deceased jagdish was having affair with the wife of the appellant-Binder Singh named Paru (P. W. 4 ). On 23rd July, 1996, Madhav (P. W. 6)and deceased Jagdish met in the evening between 5 to 6 p. m. near the house of ap-pellant-Guman and Jagdish told Madhav (P. W. 6) about taking of Paru (P. W. 4) in the night. Deceased gave his and Paru's joint photograph (Article A) to Madhav and in the night between 8. 30 to 9. 00 p. m. deceased while standing at one portion of the house of Guman Singh where Guman was keeping motorcycle, given signal to Paru. At that juncture, Guman came out from his house and from behind, caught the neck of jagdish. 30 to 9. 00 p. m. deceased while standing at one portion of the house of Guman Singh where Guman was keeping motorcycle, given signal to Paru. At that juncture, Guman came out from his house and from behind, caught the neck of jagdish. Guman took Jagdish behind his house where appellant-Binder also reached with a knife and caused several injuries on the person of Jagdish by knife. Witness madhav (P. W. 6) was witnessing the incident while standing by the side of wall of Patvari whose house was situated adjacent to the house of Guman. It is further said that deceased fell unconscious. He was lifted and taken to the rivulet situated on the Rajpur road by the side of the house of one nurse and thrown him in the rivulet and diped the head of the deceased by pressing his neck in the water. Madhav (P. W. 6) witnessed all this incident by following them silently saving himself from the sight of the appellants. The accused-appellants were arrested and charge-sheeted. ( 3 ) APPELLANTS pleaded not guilty, therefore, tried by the trial Court. The prosecution has examined as many as 12 witnesses to prove its case whereas defence has not examined any witness. Learned trial Court, after hearing both the parties, convicted the appellants as mentioned above. ( 4 ) WE have heard the learned counsel for parties and also perused the entire record of the case. ( 5 ) THE conviction of the appellants is based mainly on the solitary eye-witness account of Madhav (P. W. 6 ). The say of this witness is that at the time of alleged incident, he was studying in Higher Secondary school, Pulsood, Class 10. He was known to the deceased Jagdish. On 23-7-1996, after attending school, he reached at village danod in the evening by 5. 30 p. m. After coming down from Jeep he was talking with radheshyam, Shobharam and Mehtab. At this point of time, another Jeep reached over there coming from Rajpur side and deceased jagdish came down from the said Jeep in front of the house of appellant-Guman. He was having a black bag. Deceased came to him and told him that they would go to village Bilwant after sometime. At that time, it was raining. Deceased gave his bag to him to keep his books. He was having a black bag. Deceased came to him and told him that they would go to village Bilwant after sometime. At that time, it was raining. Deceased gave his bag to him to keep his books. They went to the shop of mayaram s/o. Gendalal (P. W. 3) where rajendra Rathore was also sitting. Because of rain they kept the bag in the shop of mayaram and went near the house of ap-pellant-Guman. He was standing outside the door and deceased Jagdish went to the room of flour mill. Deceased Jagdish gave him his and Paru's joint photograph, which is Article A. Jagdish told him that he would take paru in the night. He was waiting on the road. Between 8. 30 to 9. 00 p. m. Jagdish while standing on the place where Guman was parking his motorcycle, raised signal for Paru. At that moment, appellant-Guman came out from his house and from behind caught the neck of Jagdish and took him behind his house where co-accused; his son bindersingh also reached with a knife and dealt knife blows on right eye, ear and head. There was sufficient street light. This witness further deposed that when deceased jagdish was dragged backside of the house, he also reached near the wall of house of patvari and by hiding himself, witnessed the incident. Appellants thrown Jagdish on the ground and appellant-Guman pressed his neck by his toe and also assaulted on hand and leg by knife. In unconscious condition they lifted Jagdish and thrown him in the rivulet situated by the side of the house of one nurse near the bridge of Rajpur road. They pressed the neck of deceased by their legs and drowned his head in the water. This witness was witnessing all these by chasing the appellants surreptitiously. He further deposed that after witnessing the incident he reached at the door of Amar Singh (P. W. 7 ). Amar Singh asked him from where he came. He becomes wet. Amarsingh also asked as to why he did not go to his house on which he disclosed about the incident to Amar singh. Amar Singh allowed him to sleep inside milk dairy. On the next day morning he started proceeding to his house at village Bilwani. While passing half kilo meter distance on foot from village Danod, he met appellant-Guman, one Bhagirath and five to six persons. Amar Singh allowed him to sleep inside milk dairy. On the next day morning he started proceeding to his house at village Bilwani. While passing half kilo meter distance on foot from village Danod, he met appellant-Guman, one Bhagirath and five to six persons. Appellant-Guman threatened him for not to disclose the incident to anybody. Under fear he reached at his house and did not disclose the incident to anybody in his house. He was called by the police at l0'0 clock. Thereafter he disclosed the incident to police. According to him, deceased was done to death by the appellants because of relation between deceased Jagdish and paru (P. W. 4), and wife of appellant-Bindarsingh. According to him, appellant -Guman caused injury to Jagdish by knife on his stomach, hand, leg and chest. ( 6 ) THE learned counsel for appellants has vehemently criticised the abnormal conduct of this witness who while witnessing the incident in a thickly populated locality, did not raise any alarm, attracting the persons of the locality to save deceased Jagdish and himself also did not try to save him. On testing the solitary eye-witness on an anvil of law of appreciation of evidence, we are of the considered view that narration of the events given by this witness right from the time of meeting with the deceased at 5. 30 p. m. in village Danod and up to going to the rivulet by chasing the appellants where deceased was thrown and finally finished by pressing his neck into the water, is not at all believable and there is absolutely no ring of truth in his statement because of his unnatural and abnormal conduct. There is no evidence on record that this witness and the deceased were very good friends or even friends. This witness has said only that he was knowing the deceased. Under this circumstance why deceased would disclose his illicit relation with married woman Paru (P. W. 4) and to take her away from her matrimonial house in the said night. ( 7 ) IN front of the house and flour mill of appellant-Gumansingh, flour mill and grocery shop of Mayaram s/o Gendalal (P. W. 3)was also situated and according to the statement of Mayaram (P. W. 3) deceased and this eye-witness Madhav reached at his shop in the evening at 6. ( 7 ) IN front of the house and flour mill of appellant-Gumansingh, flour mill and grocery shop of Mayaram s/o Gendalal (P. W. 3)was also situated and according to the statement of Mayaram (P. W. 3) deceased and this eye-witness Madhav reached at his shop in the evening at 6. 30 p. m. They kept their bag with Mayaram and went towards Bilwani village. He was running his flour mill in the night up to 11 p. m. He has also deposed about geography of the village Danod where the incident took place and according to him near flour mill on the road villagers were coming and going and near the house of patvari, house of Patel was situated. Near the rivulet, hospital, quarters of nurse and compounder, house of Virendra Gupta were situated and on the otherside of the rivulet house of Bharud, Lala, Rama and Lachia were also situated. This witness has also said that appellant-Guman Singh was having a big flour mill where more persons were grinding their grains. His flour mill was also bigger. ( 8 ) EYE-WITNESS Madhav (P. W. 6) has also admitted in his statement, paragraph 25 that while witnessing the incident, he did not raise any alarm to attract the inhabitants of the house situated near and around the house of Guman Singh. He also did not raise any hue and cry when appellants were taking deceased in unconscious condition and thrown him in the rivulet. His version of disclosing the incident to Amar Singh (P. W. 7) is not corroborated by Amar Singh. ( 9 ) ARNAR Singh (P. W. 7) testified that this witness Madhav (P. W. 6) came to him in the night at about 9. 00 p. m. There was raining and Madhav told him that he was returning back from Palaud after taking his marksheets and he becomes wet and could not go to his village because there was flood in the rivulet. This witness Amar Singh allowed him to sleep inside the Dairy and went to his house at 10 p. m. He locked the door from outside. Again he came on the next morning at 7 a. m. He opened the lock. Madhav (P. W. 6) proceeded for his house and he engaged himself in work. According to this witness, Madhav has not disclosed the incident to him. Again he came on the next morning at 7 a. m. He opened the lock. Madhav (P. W. 6) proceeded for his house and he engaged himself in work. According to this witness, Madhav has not disclosed the incident to him. ( 10 ) ADMITTEDLY, Madhav did not disclose the incident to the inmates of his house. This was his highly abnormal conduct and right from the beginning, in a very quiet way he witnessed the whole incident in which his companion was being assaulted, lifted in an unconscious condition up to the rivulet and drowned there. He could invite the attention of villagers, shop owners, flour mill owners and other persons who were going and coming on the road and by doing so he could not put into any trouble by the appellants because he was not in a lonely place and appellants were not knowing that they were watched secretly and silently by this witness. In paragraphs 13, 14 and 15 he has deposed that deceased went to the house of appellants in the evening at 6. 00 p. m. and thereafter he was waiting for him for two and a half hours. His version about causing four knife blows by appellant-Binder Singh and four separate knife blow by Guman Singh on the person of the deceased; in total causing eight injuries by knife, is not duly corroborated by the medical evidence of Dr. R. K. Dubey (P. W. 11 ). ( 11 ) ON external examination, he noted only two incised wounds, one on the left parietal region and another on right parietal region. Rest injuries were contusions except one abrasion and lacerated wound and all the external injuries, total 12 in numbers were simple in nature. In the opinion of Doctor, deceased died due to aspyxia be-cause of drowning. His post-mortem report is Ex, P. 13. In paragraph 12, Doctor has also said that because of external injuries deceased could not fell unconscious. On Internal examination, he found undigested food In the stomach of the deceased and opined that the presence of undigested food in the stomach was indicative of the fact that deceased took his meal before two to three hours before his death whereas the say of eye-witness Madhav (P. W. 6) in paragraph 37 is that from 5. 30 p. m. till night he and deceased Jagdish did not eat. anything. 30 p. m. till night he and deceased Jagdish did not eat. anything. This statement is also belied by the medical evidence. ( 12 ) IT is the well recognised principle of law that the evidence of sole eye-witness can be acted upon and there is absolutely no need of any corroboratlon to his version by any independent material particulars but courts should consider that the witness is absolutely reliable. See AIR 1976 SC 383 : (1976 Cri LJ 331), Karunakaran v. State of tamil Nadu; AIR 1993 SC 1462 : (1993 Cri lj 1796), Anil Phukan v. State of Assam and air 1994 SC 1251 : (1994 Cri LJ 1106), jagdish Prasad v. State of M. P. ( 13 ) IN the case in hand, the only eyewitness Madhav (P,w. 6) is not at all absolutely reliable eye-witness of the incident because of his highly abnormal conduct as discussed herelnabove. His behaviour was beyond normal and natural behaviour of common human being. His version that on the next day when he was going to his village from Dairy by foot one of the appellant accompanied with other unknown persons met him on the way and threatened him not to disclose about the incident to anyone, is palpably false because there is no evidence on record that the appellants were knowing the factum of witnessing the incident of murder of deceased by them in the night of madhav (P. W. 6 ). Therefore, no question would arise for the appellants to threaten this witness. ( 14 ) UNDER the facts and circumstances of the present case, we are not finding any difficulty to discard the testimony of this witness on account of his unatural and abnormal behaviour while witnessing the incident and after the incident. We can usefully place reliance on several authorities of Supreme court to strengthen this finding. ( 14 ) UNDER the facts and circumstances of the present case, we are not finding any difficulty to discard the testimony of this witness on account of his unatural and abnormal behaviour while witnessing the incident and after the incident. We can usefully place reliance on several authorities of Supreme court to strengthen this finding. See AIR 1976 SC 383 : (1976 Cri LJ 331), AIR 1976 sc 989 : (1976 Cri LJ 717) : AIR 1976 SC 2488 : (1976 Cri LJ 1985), Karunakaran v. State of Tamil Nadu; Muluwa v, State of M. P. ; state of Orissa v. Brahmananda Nanda, AIR 1983 SC 491 ; (1983 Cri L. J 829); Sonia bahera v. State of Orissa, AIR 1986 SC 593 : (1986 Cri LJ 551); Palanisamy v. State of tamil Nadu, AIR 1993 SC 1462 : (1993 Cri lj 1796); Anil Phukan v. State of Assam, air 1994 SC 1251 : (1994 Crl LJ 1106); jagdish Prasad v. State of M. P. , AIR 1994 sc 31 : (1994 Cri LJ 18) and State of karnataka v. Babu, AIR 1991 SC 1356 : (1991 Crl LJ 1391): (1991 Crl LJ 345) (para 5); Peddireddy Subbareddi v. State of Andhra pradesh; Hardayal and Prem v. State of rajasthan, (2004) 11 SCC 259 : (2004 Crl lj 3043); Ramsevak v. State of M. P. , 2005 scc (Cri) 73 : (2004 Crl LJ 4886); State of rajasthan v. Bhanwarsingh and 1989 Supp (2) SCC 21, Surlnder Singh v. State of punjab. ( 15 ) THE version of this witness is also at variance with the medical evidence about causing of several blows by the appellants by knife and not taking food between two to three hours from the time of death of deceased, is also giving serious Jolt to the testimony of this witness. This is a factor in addition to the abnormal and unnatural conduct of sole eye-witness Madhav (P. W. 6 ). This is true that testimony of eye-witness should be tested Independently and if found trustworthy, same cannot be discarded merely because it is at variance with medical opinion. This is a factor in addition to the abnormal and unnatural conduct of sole eye-witness Madhav (P. W. 6 ). This is true that testimony of eye-witness should be tested Independently and if found trustworthy, same cannot be discarded merely because it is at variance with medical opinion. See State of M. P. v. Dharkhole, 2005 SCC (Cri) 225 ; (2005 Cri LJ 108) but in the facts and circumstances of the present case, the testimony of sole eye-witness is not of sterling character and according to our opinion he is not a trustworthy witness and medical evidence is also improbabilise his ocular version. Therefore, in view of the supreme Court judgment passed in case of state of Rajasthan v. Bhanwarsingh. 2005 scc (Cri) 73 : (2004 Cri LJ 4886), the medical evidence can be considered to test the reliability of the sole eye-witness. We can also usefully refer pronouncement of the Apex court in AIR 1976 SC 192 ; (1976 Crl LJ 1521), Subhash v. State of U. P. ; AIR 1991 sc 315 : (1991 Cri LJ 395 ). Shambhoo missir v. State of Bihar; AIR 1987 SC 826 : 1987 Cri LJ 706, Amar Singh v. State of punjab; 2005 SCC (Cri) 73 : (2004 Cri LJ 4886), State of Rajasthan v. Bhanwarsingh; 1989 Supp (2) SCC 21. Surinder Singh v. State of Punjab and (1996) 9 SCC 46 ; (1996 cri LJ 3199), State of M. P. v. Surbhan. ( 16 ) IT would also be apposite to mention herein some glaring defect in the prosecution case i. e. the Crime u/s. 302 of IPC was registered by F. I. R. (Ex. P. 8) proved by S. S. Renwal, T. I. (P. W. 10 ). In this F. I. R. the time of incident is shown as intervening night of 22nd and 23rd July, 1996. The father of the deceased Bhura (P. W. 1) gave information on 23-7-1996 in the morning at 8. 30 p. m. in the P. S. about presence of dead body of his son Jagdish in the rivulet of village danod. On this information, Murg intimation No. 33/1996 was registered. Inquest of the dead body was performed as per provision u/s. 174 of the Cr. P. C. , spot was inspected and thereafter the F. I. R. (Ex. 30 p. m. in the P. S. about presence of dead body of his son Jagdish in the rivulet of village danod. On this information, Murg intimation No. 33/1996 was registered. Inquest of the dead body was performed as per provision u/s. 174 of the Cr. P. C. , spot was inspected and thereafter the F. I. R. (Ex. P. S)was drawn against unknown persons by T. I. Renwal (P. W. 10) oh the same day i. e. 23-7-1996 at 7. 30 p. m. vide Crime No. 228/1996. This shows that up to this time police was not knowing the fact of witnessing the incident by Madhav (P. W. 6) and Madhav also did not reach to the police disclosing the fact of witnessing the incident vis-a-vis his statement is completely false as mentioned in paragraph 7 of his deposition that on the next day at l0'0 clock (it is not clear whether it was 10 a. m. or 10 p. m.) he was called by the police and he disclosed about the incident. Renwal (P. W. 10) has also admitted in paragraph 13 that Bhura (P. W. 1), father of deceased made complaints to the S. P. and the said complaints were received by him on 22-8-1996, 4-11-1997, 7-12-1996, 12-3-1997 and 13-6-1997. In all these complaints father of deceased had raised suspicion for commission of murder of his son against Mayaram, Rajendra, Subhan and bansilal. According to this witness (Investigating Officer), he had sent the enquiry report on the complaint of the father of deceased Bhura (P. W. 1) but no such report was filed by the prosecution with the charge-sheet to enable the accused to prepare his case and also not filed before the Court so that Court may peruse the same and take assistance for digging out the truth. Verbally this witness has said that he interrogated the persons on whom the suspicion was raised and he found that they were the witnesses of the incident and not suspected persons i. e. whose statements were recorded as the witness of the incident by Investigating Officer i. e. Rajendra, Subhan and bansilal. They were not examined in Court by prosecution. All these persons were examined by him on 3-8-1997 i. e. after mak-ing several complaints by the father of the deceased and there is gap of almost one year. They were not examined in Court by prosecution. All these persons were examined by him on 3-8-1997 i. e. after mak-ing several complaints by the father of the deceased and there is gap of almost one year. Mayaram on whom suspicion was raised was a different Mayaram than Mayaram s/o gendalal (P. W. 3 ). (See para 16 of this witness ). This witness has deposed that he recorded the statement of Madhav on 23-7-1996 at 19. 40 (7. 40 p. m.) The F. I. R. was registered by him on the same day at 23-7-1996 at 19. 30 (7. 30 p. m.) at P. S. Rajpur. This F. I. R. (Ex. P. S) is also disclosing the fact that place of incident, i. e. rivulet of village Danod was situated at 8 kilometers. The say of this witness in paragraph 17 is that he went to place of incident at 7. 30 p. m. on 23-7-1996 and thereafter recorded the statement of eye-witness Madhav (P. W. 6) in the evening at 7. 40 p. m. Madhav met him in village Bilwani. Bilwani is a different village. Therefore, the statement of l. O. (P. W. 10) is palpably false about interrogation and recording of the statement of Madhav (P. W, 6! on 23-7-1996 at 7. 40 p. m. in the light, of f. I. R. (Ex. P. S) which was scribed by this very witness. ( 17 ) THE learned trial Court, in its judgment has used map prepared by the Investigating Officer (P. W. 10) (Ex. P. 10 ). Because this site plan was prepared by Investigating officer as pointed out by eye-witness madhav (P. W. 6); therefore, the contents of this site plan would be considered as statement of eye-witness Madhav u/s. 161 of Cr. P. C. and the same can be used only to contradict Madhav (P. W. 6) who has nowhere deposed in his Court statement that at his instance and disclosure Investigating Officer (P. W. 10) prepared the site plan (Ex. P. 10 ). See State of Rajasthan v. Bawani, (2003) 7 scc 291 : (2003 Cri LJ 3857) and State of h. P. v. Prem Chand, AIR 2003 SC 708 : (2003 Cri LJ 872 ). P. 10 ). See State of Rajasthan v. Bawani, (2003) 7 scc 291 : (2003 Cri LJ 3857) and State of h. P. v. Prem Chand, AIR 2003 SC 708 : (2003 Cri LJ 872 ). ( 18 ) IN consequence of the aforesaid scanning of evidence adduced by the prosecution and legal position applicable in this case, we are unable to concur with the judgment and finding arrived at by the trial Court and, therefore, the appeal is allowed. The conviction and sentence passed against the appellants are set aside. The trial Court is directed to release the appellant-Binder-singh forthwith if not wanted in any other case and the bail bond and surety bond of gumansingh stands cancelled. Appeal allowed. .