P. S. BRAHME, J.:- Heard the learned Counsel for the appellants and Mr. U. K. Patil, learned A.P.P. for the Respondent-State. Perused the record and proceedings with the assistance of the learned Counsel for the parties. 2. These two appeals arise out of the judgment and order dated 6-10-2005, passed by the 2nd Additional Sessions Judge, Parbhani in Sessions Case No.10/2005, whereunder the appellants have been convicted for the offences punishable under Sections 147 and 302 read with 149 of I.P.C. and being sentenced to suffer imprisonment including imprisonment for life, besides fine of Rs.100/- on each count, and simple imprisonment in default. Since both these appeals are heard together, as arising out of the same judgment, the same are being disposed of by this common judgment. 3. The incident, which gave rise to this prosecution against the appellants, took place on 6th April, 2005 around 2.00 p.m. in the well situated in the land of witness Balasaheb Suryawanshi, who submitted A.D. report Exhibit-25 at Daithana Police Station at 4.30 p.m. on 6-4-2005 informing about the death of victim Shuddodhan, the son of Sambhaji Gandhare due to drowning in the well. It is not disputed that all the accused persons, on 6-42005 at noon time, were swimming in the well of witness Balasaheb. The victim died due to drowning in the well. All the accused persons were actually present inside the well at that time. It is also not disputed that the defence witness Ashok Suryawanshi and one Gajanan Ashroba were also present at that time and they witnessed the incident. But, they were outside the well. In response to the A.D. report Exhibit-25, P.S.I. Mr. S. P. Jaitapurkar, (P.W.6) and other police staff rushed to that well. After making strenuous efforts, it was at about 11.30 p.m., upon taking search with the help of drag hook in the water, the corpse of Shoddodhan was found and the same was taken out from the well. After the spot and inquest panchanama was drawn, the Medical Officer Dr. P. J. Ghodake (P.W.3) conducted autopsy on 7-4-2005. It is a matter of record that on the next day of the incident i.e. on 7-4-2005, at about 14.30 hours, Sambhaji (P.W.1), father of victim, lodged a complaint vide Exhibit-16, on the basis of which offence was registered vide Cr.No.14/2005 against the appellants. P. J. Ghodake (P.W.3) conducted autopsy on 7-4-2005. It is a matter of record that on the next day of the incident i.e. on 7-4-2005, at about 14.30 hours, Sambhaji (P.W.1), father of victim, lodged a complaint vide Exhibit-16, on the basis of which offence was registered vide Cr.No.14/2005 against the appellants. Complainant Sambhaji claimed that on inquiry made by him in the village and particularly with witness Nitesh (P.W.4), he learned that all the accused persons, when victim came to the well, dragged him and threw him in the village and as a result of that, he died of drowning in the water. The Medical Officer, by post mortem report, vide Exhibit-19, gave a candid opinion that the death of the victim was caused due to drowning in the well. It was revealed, when the statement of witness Nitesh was recorded during the course of investigation, that the accused persons in fact dragged the victim to the well and threw him in the well and though they knew that he was not knowing swimming, drowned him in the well by pressing his head. It is claimed by the prosecution that this witness Nitesh had been to the house of victim and disclosed to his mother Janabai about the incident that took place. 4. After completing the investigation, charge-sheet came to be filed in the Court of 6th Judicial Magistrate, First Class, Parbhani. The learned Magistrate committed the case to the Court of Sessions. The accused persons pleaded not guilty to the charge and claimed to be tried. Their defence was of denial. However, they did not dispute the fact that the victim died of drowning in the well. In that, their contention was that the victim had come to the well for drinking water. In fact, the victim entered the well by steps provided, by holding angles fixed in the wall of the well. However, after having entered into the well, when the victim bent upon to drink water, he accidentally fell into the water and though efforts were made to take him out, he died due to drowning. As stated in earlier part of the judgment, the defence examined witness Ashok as defence witness to bring on record the material facts supporting the defence. 5. At the trial, the prosecution examined witness Sambhaji (P.W.I), his wife Janabai (P.W.2), Dr. As stated in earlier part of the judgment, the defence examined witness Ashok as defence witness to bring on record the material facts supporting the defence. 5. At the trial, the prosecution examined witness Sambhaji (P.W.I), his wife Janabai (P.W.2), Dr. Ghodake (P.W.3), witness Nitesh Karkade (P.W.4), the sole eye-witness to the incident and N.V.Pardeshi (P.W.7), the S.D.P.O., who conducted investigation in the matter. The trial Court, accepting the evidence of sole eye witness Nitesh (P.W.4) coupled with admitted facts, reached to the conclusion that the appellants have committed murder of the victim in the manner in which it was stated by witness Nitesh, in his evidence, before the Court. Accordingly, the learned trial Court, convicted and sentenced the appellants, in the manner, as stated earlier. Hence these appeals. 6. Mr. R. N. Dhorde, learned Counsel appearing for appellants, vehemently submitted that the trial Court has committed an error in accepting the evidence of witness Nitesh (P.W.4), merely because his presence at the time and place of occurrence was not disputed by the appellants. That his evidence has been shattered totally in cross-examination. That apart, there is no corroboration to his evidence either by other evidence or circumstances attending the case. It is submitted that the very claim made by this witness Nitesh that he had informed P.W.1 Sambhaji and P.W.2 Janabai that their son Shuddodhan was done to death by the appellants by throwing them into the well where the appellants were swimming, is falsified. It is further submitted that because of the conduct exhibited by witness Nitesh, though according to him the appellant, have caused death of victim by throwing him into the well, as a consequence of which, victim died by drowning, the prosecution did not examine other persons who were admittedly present at the time and place of the occurrence. The learned Counsel pointed out from the evidence of defence witness Ashok that the victim died accidental death when he entered into the well for drinking water. He submitted that the trial court has committed an error in convicting the appellants of the offences for which they were tried. 7. Mr. S. J. Salunke, learned Counsel appearing for appellants, while adopting the submissions of learned Counsel Mr. He submitted that the trial court has committed an error in convicting the appellants of the offences for which they were tried. 7. Mr. S. J. Salunke, learned Counsel appearing for appellants, while adopting the submissions of learned Counsel Mr. Dhorde, submitted that there was delay in lodging the complaint, though the police had come on the spot at 3.30 p.m. and that time parents of the victim were present and as per the prosecution case and particularly the evidence of witness Nitesh, both were informed by him on earlier night itself that their son was drowned in the well by the appellants by throwing him into the well. He pointed out further that even P.W.4 Nitesh, who was admittedly present at the time when police were trying to take out the dead body of victim from the well, however, he did not disclose to the police that the victim was done to death by drowning him into the well by the appellants. He, therefore, urged that the appeal preferred by the appellants be allowed and the appellants be set at liberty by setting aside the order of conviction and sentence. 8. Mr. U. K. Patil, learned A.P.P. for the Respondent-State, submitted that witness Nitesh has emphatically stated in his evidence before the Court that he immediately ran towards the house of the complainant and reported to the mother of the victim as to how the victim was done to death at noon while the accused persons were swimming in the well. He further submitted that witness Sambhaji and his wife Janabai have stated in their evidence that it was Nitesh who informed that the accused have committed murder of their son by throwing him into the well. He, therefore, urged that the trial Court has rightly convicted the appellants as their involvement and participation in commission of crime, at the time and place when the incident took place, has been duly established beyond reasonable doubt. He, therefore, urged that the appeals are without merit and substance and the same should be dismissed. 9. Before adverting to the submissions of the learned Counsel for the appellants and learned A.P.P. for the Respondent-State, we feel it appropriate to make reference to the facts which are not in dispute and even on the evidence on record, the same have been established. 9. Before adverting to the submissions of the learned Counsel for the appellants and learned A.P.P. for the Respondent-State, we feel it appropriate to make reference to the facts which are not in dispute and even on the evidence on record, the same have been established. On the day of occurrence i.e. on 6-4-2005, the dead body of victim Shuddodhan was found in the wel1 situated in the land belonging to informant Balasaheb Suryanwanshi. It is not disputed that at the time when the incident took place, the accused persons were swimming in that well. It is further not disputed that defence witness Ashok so also one Sadashiv, Mahadeo and Gajanan Ashroba were near the well. During the course of' investigation, the Investigating Officer has recorded statements of these persons. However, the fact remains that none of them has been examined by the prosecution as witness. The fact also remains that witness Ashok, examined by the defence as defence witness, in his evidence stated the facts, which according to him, have taken place. What was stated by him, in his evidence before the Court, no doubt lends assurance to what was contended by the appellants in their defence pointing out that the death of victim was accidental one. It is not disputed further that though parents of the victim and witness Nitesh were very much present at noon time when the police were trying to take out the' body of victim from the well and also took it out later on by night, none of them disclosed to the police the fact that the victim was done to death by throwing him into the well when he entered the well for drinking water. It is, in this context, to be noted that witness Balasaheb, the owner of the well himself reported to the police about finding of dead body of victim in the well and it was on the basis of that report, submitted by him in the Police Station, A.D. was registered and necessary inquiry was made. As pointed out earlier, the medical evidence on record and the report of the Medical Officer regarding autopsy carried out, certainly reveals that the death of victim was caused due to drowning. As pointed out earlier, the medical evidence on record and the report of the Medical Officer regarding autopsy carried out, certainly reveals that the death of victim was caused due to drowning. It has come in the evidence of witness Sambhaji that after funeral was over on 6th April, 2006 at night, on the next day i.e. on 7-4-2005, he went to PoHce Station Daithana and lodged report/complaint Exhibit16, on the basis, of which offence came to be registered, as stated above. In that complaint, it is specifically stated by the complainant that on 6th April, 2005, while he was at Parbhani, for some work, he was informed by Pralhad, son of Hanuman that his son died due to drowning in the well situated in the land of Balasaheb Suryawanshi. He also came to know that Balasaheb had gone to Police Station to lodge the report. It is stated by him in the complaint that on 6th April, 2005, after he reached home, he inquired about the death of his son and while he was seeking information in that regard, witness Nitesh informed him that his son Shuddodhan, at noon time, while he had gone for watering the plants in the land, noticed appellants swimming in the well of Balasaheb and at that time, the appellants, seeing the victim passing by that well, held him and threw him into the well. In that complaint, he stated further that him wife Janabai informed him that on the day of the incident, in the morning, when her son Shuddodhan had been to the shop of Ramkishan @ Pintu i.e. appellant no.1, there was some verbal wrangle between them, in which appellant Ramkishan abused her son. That is how in the complaint Exhibit-16, which came to be lodged on the next day i.e. on 7-42005, these relevant things formed part of the complaint. That is how in the complaint Exhibit-16, which came to be lodged on the next day i.e. on 7-42005, these relevant things formed part of the complaint. But this is to be appreciated in the background of the fact that on the evidence on record, neither the complainant and his wife nor witness Nitesh have specifically claimed that such disclosure was made by witness Nitesh to them and also bearing in mind the fact that Sambhaji, his wife Janabai and witness Nitesh, who were present at the well when the police arrived and proceeded to trace and take out the dead body of victim from the well, did not utter a word about the same to the knowledge of the police officer, who was present then and there. It is needless to say that had they disclosed that, then in that case, obviously there was no hurdle in the way of the Investigating Officer to record the statement and on the basis of that, make report and register the offence on 6th April, 2005. It is also to be noted, at this juncture, that the version of the defence witness Ashok, before the Court, is quite consistent with the statement he made before the police during the course of investigation. In that, he has revealed the story which makes the defence version probable and true, according to the defence. This was relating tot he manner in which the victim died. This has significance because the prosecution has not disputed the presence of defence witness Ashok at the time and place when the incident took place. 10. We have carefully gone through the evidence on record with the assistance of the learned Counsel for the parties. We have also carefully gone through the observations of the trial Court in the judgment. Taking into consideration the facts admitted and even the presence of witness Nitesh and that of defence witness Ashok, it is crystal clear that the prosecution case veers around the solitary evidence of witness Nitesh, at least as regards the involvement of the accused persons in commission of homicidal death of victim. Evidence of witness Sambhaji and his wife Janabai as to what had happened at the time and place of incident is based on what has been disclosed, according to them, by witness Nitesh. Evidence of witness Sambhaji and his wife Janabai as to what had happened at the time and place of incident is based on what has been disclosed, according to them, by witness Nitesh. So, in the strict sense, their evidence is hearsay evidence, on being informed to them by witness Nitesh, as alleged by the prosecution. But, according to the defence, the claim of witness Nitesh having informed on 6th April, 2005 to the parents of the victim, being unworthy of credit and not being established on the evidence on record. What remains for consideration is the solitary evidence of witness Nitesh, who admittedly is the child witness. For the reasons stated above, what has come in the evidence of witnesses Sambhaji and lanabai regarding involvement of the appellants in commission of murder of victim, cannot be considered to be evidence lending assurance to what has been stated by witness Nitesh regarding the occurrence of the incident. The reason for this being the very basis and claim of witness Nitesh, that has been stated by him in his evidence before the courts, is itself unbelievable and does not inspire confidence. That is how, the Counsel for the defence have endeavoured to point out that evidence of witness Nitesh is unworthy of credit and that merely because he happened to be there at the time of occurrence, he has tried to implicate the accused persons only because they were also there at that time swimming in the well. It is not disputed that witness Nitesh is closely related to complainant Sambhaji as admittedly, he is the son of daughter of sister of Sambhaji. He happens to be a child witness, as at the time when his evidence was recorded, he was 11 years old. It has come in his evidence that at the time of incident, first when saw victim proceeding by the side of the well, situated in the field of Balasaheb, he at once saw all the accused persons having followed the victim and he then further claimed that while they were near the well, all the accused persons at once lifted the victim and threw him in the well. It has come in his evidence that he immediately rushed towards the well and he noticed that the victim was trying to save himself by holding the iron angel fixed to the wall of the well. It has come in his evidence that he immediately rushed towards the well and he noticed that the victim was trying to save himself by holding the iron angel fixed to the wall of the well. Then, in his evidence, he disclosed the rest of the part of the story wherein he saw the accused persons having gone inside the well by the steps and then tried to make the victim to lose his grip of the iron angle, which he had held by this hand to save himself. According to him, then accused Bhaskar and Satish hold the neck of the victim and both started pressing his head inside the water, to which other accused Shivaji @ Balu Giri Balaji and Hanuman @ Balu Baburao were instigating those accused persons saying that Shuddodhan be killed. It has come in his evidence that since the accused rushed into the well and grappled over the victim, the latter shouted. It has come in his evidence further that people in the vicinity collected there on hearing the shouts and amongst them were Mahadeo, Janardan and Sadashiv. The witness, in his cross-examination, stated that when he noticed initially victim Shuddodhan proceeding towards the well, at that time, Ashok Sundarrao Suryawanshi and Gajanan Ashroba were found near the well. 11. The Investigating Officer witness Nandan Pardeshi (P.W.7) carried out the investigation and in that he directed Mr. Jaitapurkar, then P.S.I., while the process of investigation was in the process, to search for the accused and arrest them, it is a matter of record that amongst those four persons, who were noticed by witness Nitesh, statement of Ashok Suryawanshi was recorded. In the first place, though the presence of other 3 persons with Ashok Suryawanshi was borne out, during the course of investigation, as the persons having witnessed the incident, they have not been examined by the prosecution. These three persons were certainly independent witnesses. Nothing has been brought on record to infer even that these persons were not examined apprehending that they would support the defence. It is not clear whether these persons were cited as prosecution witnesses. It appears from the record that besides Ashok Suryawanshi, Gajanan Ashroba Gavane has been cited as witness. Nothing has been brought on record from the evidence of either Nitesh or prosecution witnesses Sambhaji and Janabai to show that they were favouring the accused persons. It is not clear whether these persons were cited as prosecution witnesses. It appears from the record that besides Ashok Suryawanshi, Gajanan Ashroba Gavane has been cited as witness. Nothing has been brought on record from the evidence of either Nitesh or prosecution witnesses Sambhaji and Janabai to show that they were favouring the accused persons. So far as witness Ashok is concerned, when he has been examined as defence witness, he has given evidence before the Court which is quite consistent with his statement recorded by police during the course of investigation. So, it is not that defence witness Ashok, in his statement recorded by the police during the course of investigation, disclosed a story favourable to the prosecution and then when his evidence was recorded, he changed that story and made disclosure of fact saying that the victim died accidental death after having entered in the well for drinking water. In his evidence before the Court, he has specifically stated that the victim, while going down by the steps into the well for drinking water, when he bent down, he slipped and fell into the well. 12. All our emphasise in pointing out in detail, in earlier part of the judgment, the version of the defence witness Ashok and the fact that besides Ashok, though there were three persons admittedly present at the time of occurrence, and though they were no where interested witnesses, for the reasons best known to the prosecution, excepting Gajanan, out of those three, neither their statements were recorded nor they have been cited as witnesses. So the situation that prevailed at the scene of offence was that though, as claimed by the prosecution, the incident was witnessed by those independent witnesses, none has come forward to disclose then and there and even at the later stage on the same day when police reached there for carrying out investigation in the matter. In other words, the prosecution, of its own, suppressed material evidence of independent witnesses, though their presence at the place of occurrence was brought on record though the other evidence and the defence has not disputed that factual position as to the presence of those persons. In this background, we have to appreciate the evidence of child witness Nitesh. In other words, the prosecution, of its own, suppressed material evidence of independent witnesses, though their presence at the place of occurrence was brought on record though the other evidence and the defence has not disputed that factual position as to the presence of those persons. In this background, we have to appreciate the evidence of child witness Nitesh. As pointed out earlier, this witness was closely related to the parents of victim and, therefore, it is, in this background, evidence of Nitesh, who is highly interested witness, being closely related to the parents of victim, needs to be scrutinised carefully and with utmost circumspection. This is absolutely necessary for one more reason that as pointed out in earlier part of judgment, evidence of witness Sambhaji and that of his wife Janabai is found to be an outcome of what has been disclosed to them by witness Nitesh, as he claimed in his evidence that after this incident, he immediately around 1.00 p.m., rushed to the house of victim and disclosed Janabai that her son was done to death in the well by the accused persons. 13. In the first place, what has been disclosed by witness Nitesh about the occurrence does not stand probable. If we go by the stages, as described by witness Nitesh about the occurrence and the part played by the accused persons, it is not believable at all. As pointed out in earlier part of judgment, it is not the case of the prosecution that the accused person were already in the well for swimming. What is claimed by the witnesses, it has been accepted by the trial Court as Gospel truth, is that the accused persons accosted the victim while he was passing there from and then the accused persons lifted and threw him in the well and then, when the accused persons noticed that the victim having tried to come out or (he well, they again pounds upon the victim and made struggle with him so that he lost the grip of the angle and ultimately he was pushed into the well water and as if it was not sufficient to cause his death, it is further alleged that some of the accused persons pressed his head in the water. In the background of this, though this has been witnessed by witness Nitesh, his. conduct is unbecoming a prudent person. In the background of this, though this has been witnessed by witness Nitesh, his. conduct is unbecoming a prudent person. Though witness Nitesh is technically a child witness, it is sufficient to gather from the replies given by him to the questions put to him by the trial Court, before recording his evidence, that he has the sense of understanding the things. Then, he remained stoic though he witnessed the ghastly act of committing murder of the victim by the accused persons. In his cross-examination, he admitted that at that time, he had not spoken anything with Gajanan Ashroba and Ashok Sundarrao, who were present there. He also had not talk with victim Shuddodhan, who seen inside the well at that time. He had not spoken anything at that time with either of the accused. To crown this all, the witness stated in his evidence that, "when accused pressing the head of Shuddodhan inside the well water, at that time also, I had not made and hue and cry". He was present near the well approximately for five minutes. It is true that the presence of witness Nitesh, at the time of occurrence, is not disputed. Not only that, but even the defence witness Ashok has categorically stated about the presence of this witness Nitesh at the time of occurrence. But then, that by itself is not sufficient to hold that what has been stated by witness Nitesh was Gospel truth. Therefore, the conduct exhibited by this witness, as has been stated now, at the time of occurrence, was most unnatural and that is the reason, he being interested witness and being very closely related to the victim and in the background that independent evidence, though available, not being brought on record by the prosecution, it is difficult to say that evidence of this witness Nitesh is trustworthy and inspiring confidence. 14. Again if evidence of this witness is read vis-a-vis the evidence of Sambhaji and Janabai, then it again goes to sow that what has been claimed by this witness is not true. It is not disputed that on the day of occurrence, witness Sambhaji was not in the village. 14. Again if evidence of this witness is read vis-a-vis the evidence of Sambhaji and Janabai, then it again goes to sow that what has been claimed by this witness is not true. It is not disputed that on the day of occurrence, witness Sambhaji was not in the village. In fact, on earlier day itself, he had gone to Parbhani and it was on 6th April, 2005, around 2.00 p.m., he learnt from Pralhad Suryawanshi and Hanuman Jadhav, both resident of Pegargavan village that his son Shuddodhan died in the well situated the filed of Balasaheb Suryawanshi. He further claimed in his evidence that on reaching home, upon inquiry, Nitesh informed him that accused persons had committed murder of his son in the well water. In this connection, it is pertinent to note that witness Janabai, in her evidence, stated that on the day of occurrence in the morning around 12 O'clock, her son had gone out of house to the field for watering the plants. But thereafter he did not return back. She further stated that at about 2.00 p.m., Nitin (P.W.4) came and informed her that accused nos. 1 to 6 had committed murder of her son Shuddodhan in the well situated in the field of Balasaheb. She further stated that she herself and other persons belonging to her caste rushed to that well, but they and not noticed the dead body of Shuddodhan floating in the well and subsequently upon making emphatic search, at about 11.00 p.m., the dead body was traced and then the same was taken out form the well. This witness Janabai admitted in her cross-examination that at the time when the dead body was taken out from the well, she was present there and she had informed the police persons, who were there, about the entire episode narrated to her by witness Nitin. She further claimed that at that time itself, her husband had lodged report with the policemen who were present then and there on the well. If we turn to the evidence of witness Nitesh (P.Wo4), he, no doubt, stated in his examination-in-chief itself that immediately he ran towards his residence and reported the matter to the mother of Shuddodhan. In his cross-examination, he stated that he did not rush towards the well, but stayed one the spot he was standing. If we turn to the evidence of witness Nitesh (P.Wo4), he, no doubt, stated in his examination-in-chief itself that immediately he ran towards his residence and reported the matter to the mother of Shuddodhan. In his cross-examination, he stated that he did not rush towards the well, but stayed one the spot he was standing. Though he saw accused throwing Shuddodhan into the well, he did not accost Mahadeo and Sadashiv by calling them or by making hue and cry. He further stated that at about 1045 p.m., he gone near the well along with villagers including mother of Shuddodhan. About 30 to 40 persons had gathered near the well. On arrival of police, he returned to his house. He specifically stated that before his departure from the well, he had not given any information to the police stating them as to in what manner the incident took place. It is pertinent to note that according to this witness, his statement was recorded on 8th April, 2005. In this context, it may be noted that according to witness Sambhaji, on that day on his return from Parbhani at noon, his wife informed to him about the quarrel of his son with accused Ramkisan in which the latter had insulted his son. He then claimed that he then went to the well. Several persons were there. In his cross-examination, he stated that at about 4.00 to 4.30 p.m., on that day, police men arrived near the well and at that time, he told the police men as to how the incident took place and requested to record his complaint. He had made request to P.S.I. Jaitapurkar, but according to him, P.S.I. Jaitapurkar, asked him to wait till the dad body is taken out from the well. This witness Sambhaji, in his complaint Exhibit-16, has stated that on that day on his return to his village, he learned that Balasaheb Suryawanshi has lodged a report in the Police Station informing that his son Shuddodhan died having fallen into the well. In his complaint, he stated that when he arrived at home, he learnt from Nitesh that his son was done to death by accused persons by drowning him into the well. On his complaint lodged on 7-4-2005 in the Police Station, offence came to be registered at about 2.30 in the noon. In his complaint, he stated that when he arrived at home, he learnt from Nitesh that his son was done to death by accused persons by drowning him into the well. On his complaint lodged on 7-4-2005 in the Police Station, offence came to be registered at about 2.30 in the noon. If the evidence of witness Sambhaji is scrutinised carefully, it is crystal clear that on his arrival from Parbhani on 6th April, 2005 at noon, it is not that his wife Janabai told him about the occurrence in which, as alleged by the prosecution, his son Shuddodhan was done to death in the well by the accused persons. In that regard, all that witness Sambhaji claimed in his evidence was that he learned from witness Nitesh, when he inquired with him while sitting in his house. What is significant and which according to us appears to be sharply in contradiction is that witness Nitesh no where claimed in his evidence that he informed witness Sambhaji about the incident which he witnessed in respect of the homicidal death of Shuddodhan by drowning into the well by the accused persons. Witness Nitesh is very firm in saying that immediately after the occurrence, he rushed to the house of Shuddodhan and reported about the incident to his mother Janabai. We have carefully gone through the evidence of witness Janabai. She has not whispered even that after her husband came back, she informed him that she learned from Nitesh, who had rushed to her house that her son was done to death in the well by the accused persons. There seems to be some truth in it as in the complaint Exhibit-16, which was lodged on the next day by Sambhaji in the Police Station, there is no even whisper that his wife Janabai told him about the death of her son. So this contradiction, though, it may appear very sharp, but it is real one and that by itself shows that witness Sambhaji is hiding something about the information he received. Therefore, he made a statement that on his arrival, while making inquiry while sitting at home, he learnt from witness Nitesh that his son was done to death by the accused. This disparity, in our opinion, makes the claim of witness Nitesh having disclosed about the incident to Janabai or witness Sambhaji shaky. 15. Therefore, he made a statement that on his arrival, while making inquiry while sitting at home, he learnt from witness Nitesh that his son was done to death by the accused. This disparity, in our opinion, makes the claim of witness Nitesh having disclosed about the incident to Janabai or witness Sambhaji shaky. 15. Then we go to what had happened in that regard at the time when the police were present on the spot while making efforts to trace and taken out the dead body from the well. It has come in the evidence of witness Sambhaji, lanabai and witness Nitesh that they were present on the well when the policemen were there and the efforts to take out the dead body were going on. Witness Nitesh candidly stated that he did not inform the police before departing from that well, as to in what manner the incident took place. In our opinion, this again sounds unnatural. Nitesh, as he claimed, was an eye witness to the incident. He knew that the police had come there and efforts were going onto take out the dead body from the well. As stated earlier, this witness Nitesh was closely related to the victim. But then, neither he nor the parents of victim reported to the police then ·and there only atleast as to how the incident had taken place and in what manner Shuddodhan died. Even silence on the part of the parents of the victim, at that juncture, was most unnatural. In that, again witness Janabai, in her evidence, ventured to say that she had informed to the policemen, who were present there, the entire episode of the incident that was narrated before her by witness Notice when the corpse was actually taken out from the well and that at that time itself, her husband had lodged report with the policemen. As against his, witness Sambhaji, in his evidence, made a tall claim saying that on 6-4-2005, policemen arrived near the well that time, he told the police men how the incident had taken place and requested them to record his complaint and he had requested P.S.I. Jaitapurkar and at that time, Mr. Jaitapurkar, P.S.I. asked him to wait till the corpse is taken out from the well. Jaitapurkar, P.S.I. asked him to wait till the corpse is taken out from the well. He further stated that when the corpse was taken out from the well at about 11.00 p.m. at night on 6-4-2005, he was not there. 16. In this context, the evidence of P.S.I. Jaitapurkar (P.W.6) is very material. He recorded the report given by witness Balasaheb, owner of the land and well and on the basis of that registered A.D.No.612005. This witness was cross-examined by defence and he stated that when he reached to the spot on 6-4-2005, informant Sambhaji was present there. Spot panchanama was drawn in his presence. After taking out the dead body of Shuddodhan from the well, informant Sambhaji identified the same as that of his son Shuddodhan. Mother of deceased was also present on the spot at that time. What is material is that this witness further stated that on 6-4-2005, neither Sambhaji nor his wife Janabai submitted any written report to him. He further stated that neither Sambhaji nor his wife Janabai had complained before him on 6-4-2005 that accused nos. 1 to 6 committed murder of Shuddodhan. Having regard to this emphatic statement made by P.S.I. Jaitapurkar, it belies totally the claim of witness Sambhaji that he disclosed, at that juncture, when police had arrived, about the incident that had taken place in which accused persons committed murder of his son. Added to this, admittedly witness Nitesh, of his own, though he was present when the policemen arrived, did not disclose that he himself had witnessed the incident in which son of Sambhaji and Janabai was done to death by accused persons by drowning into the well. In our considered opinion, therefore, this materially affects the claim of witness Nitesh before the Court, in his evidence, that he witnessed the incident, as has been described by him, saying that the accused persons committed murder of victim by drowning him into the well, after he was thrown into the well by them. We are conscious of the fact that the presence of witness Nitesh is not at all disputed by the defence even at the time of occurrence. But that by itself is not sufficient to accept his claim in that regard. We are conscious of the fact that the presence of witness Nitesh is not at all disputed by the defence even at the time of occurrence. But that by itself is not sufficient to accept his claim in that regard. In other words, reading the evidence of witness Nitesh in conjunction with the evidence of witness Sambhaji and Janabai, coupled with the fact that none disclosed to the police, who were very much there, including the Investigating Officer P.S.I. Jaitapurkar, that it was a case in which accused persons have done to death the victim, falls to the ground. Not only that, but the claim of witnesses Sambhaji and Janabai that witness Nitesh informed them immediately about the incident in which accused persons alleged to have committed murder of their son in the well also does not appear to be probable and true. There is no doubt that Nitesh, as his presence at the place of occurrence is not disputed, he must have reported about the death of Shuddodhan by drowning into the well. But because of the sharp contradictions and paucity of evidence and claim of witness Nitesh being found false and improbable because of the conduct exhibited by him, as stated in earlier part of the judgment, it is very difficult to hold that the incident, as claimed by witness Nitesh, in his evidence, had occurred. On the other hand, what has been contended by the defence about the untimely death of the victim appears to be probable and true having regard to the evidence of defence witness Ashok. 17. We say so because even the prosecution has not disputed that this witness Ashok was very much present at the time of occurrence on the well. It is very significant to note that though, during the course of investigation, statement of this witness was recorded and he was cited as witness, his version in the statement was itself spelling out the defence of the accused as regards the accidental death of victim by falling into the well when he entered the well for drinking water. As pointed out, this witness Ashok has been cited as prosecution witness. As pointed out, this witness Ashok has been cited as prosecution witness. When he has given evidence in which he has reiterated what he has stated in his statement recorded by the police and though he was subjected to cross-examination by the learned A.P.P., when nothing has been pointed out except denials, it cannot be said that this witness Ashok is not a witness of truth or that this witness was won over by the defence to make a statement in his evidence before the Court to favour the accused persons. The position would have been different if witness Ashok, who was cited as witness for prosecution, has given the evidence in tune with the prosecution case pointing out finger towards the accused persons for commission of homicidal death of deceased, he would have been certainly branded as hostile witness in that case. But the position is different, as not only this witness was cited as witness for prosecution, but he, of his won, in his evidence, disclosed the incident saying that the victim died due to fall into the well while he had gone there to drink the water. In other words, what was the defence of accused gains corroborated by the defence of this witness and that is much more so, when his evidence was not at all shattered, though he was subjected to cross-examination. What makes his evidence acceptable as truthful is the fact that what has been deposed by him before the Court was consistent with what has been stated by him when his statement was recorded. In our opinion, this is an additional reason why the evidence of star witness Nitesh does not inspire confidence. 18. The learned Counsel for appellants, while submitting with emphasis that there was delay in lodging the F.I.R., placed reliance on the decision of the Apex Court in the case of Thulia Kali Vs. The State of Tamil Nadu, reported in AIR 1973 SC 501 , wherein, the Apex Court, dealing with this issue, observed that: "The First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." In that case, no doubt, there was delay of about 20 hours, though the Police Station was only two miles from the place of occurrence. But, ultimately the Apex Court found that it was unsafe to base conviction upon the said evidence. 19. So far as the case at hand is concerned, complainant Sambhaji lodged the complaint immediately after the funeral was over. As the record shows that the complaint Exhibit-16 was received in the Police Station at early hours of 7-4-2005 and offence was registered on that basis at 14.30 hours. Therefore, in the facts and circumstances of the case, we are not prepared to accept the submission of the learned Counsel for appellants that the prosecution case should be thrown or discarded on account of delay in lodging the F.I.R. But, at the same time, as we have stated in earlier part of judgment, neither the complainant nor his wife and witness Nitesh reported to police about the occurrence and even commission of the offence by the appellants on 6-4-2005, though they were present near the well when policemen were trying to take out the dead body of victim. That is much more so, because all these witnesses came to know that the victim was done to death by the appellants. That is much more so, because all these witnesses came to know that the victim was done to death by the appellants. It is in this sense that this non disclosure of the fact that the appellants were the perpetrators of the crime, at that juncture, to the police, being most unnatural conduct, falsifies the claim of witness Nitesh to have witnessed the alleged incident. 20. The learned Counsel for the appellants Mr. Dhorde and Mr. Salunke vehemently submitted that the prosecution case is based on the evidence of solitary witness Nitesh and that the trial Court has based the conviction on the testimony of this solitary witness. Then, the learned Counsel, submitted with emphasis, that when the evidence of solitary witness was found to be not inspiring confidence and in the absence of any other evidence, to corroborate his testimony, the conviction by the trial Court is not sustainable. In the context, reliance has been placed on the decision of the Apex Court in the case of Karunakaran Vs. State of Tamil Nadu, reported in AIR 1976 SC 383 . The Apex Court on this issue of conviction based on the testimony of sole witness, observed that: "Where an accused is going to lose his life in a serious charge of murder, it is only necessary that the Court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that the eye witness on whose testimony the conviction is based ins absolutely reliable." In that case, the solitary witness, on whose testimony the conviction was based, had himself given the F.I.R. and there were serious departures in his evidence from the version given in the F.I.R. and the evidence was contradicted by the medical evidence and, therefore, it was found that the High Court has failed to consider the intrinsic quality of the evidence of this witness. It failed to notice certain broad facts, which definitely weigh with the Court while appreciating the ocular testimony. The witness was unreliable and his testimony instead of being corroborated was contradicted by the F.LR. So, it was on that premise, that the conviction was set aside. 21. Again, the learned Counsel for the appellants placed reliance on the decision of the Apex Court in the case of Govind Narain and another Vs. The witness was unreliable and his testimony instead of being corroborated was contradicted by the F.LR. So, it was on that premise, that the conviction was set aside. 21. Again, the learned Counsel for the appellants placed reliance on the decision of the Apex Court in the case of Govind Narain and another Vs. State of Rajasthan, reported in AIR 1993 SC 2457 , wherein the Apex Court observed that: "Where sole eye witness to murder case had merely stated in FIR that at dead of night on hearing the barking of dogs, he was woken up and on coming out on to the balcony, saw that his brother, the deceased had come out to see why the dogs were barking and that after sometime he heard the cries of his brother, the deceased and saw the accused running in different directions and the manner of the assault or the occurrence relating to pushing the deceased in the well were conspicuous by their absence in the F.LR..." It was, in that background and having regard to the contents of the F.LR., which was filed by the sole eye witness, the Apex Court found that it could be said that the sole eye witness had not seen the occurrence. 22. Mr. Dhorde, learned Counsel appearing for appellants, placed reliance on the decision of the Apex Court in the case of Lallu Manjhi and another Vs. State of Jharkhand, reported in 2003 AIR SCW 308: [2003 ALL· MR (Cri) 590 (S.C.)], wherein the Apex Court has observed that: "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories, there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness." In that particular case, the Apex Court found that the investigation was very defective. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness." In that particular case, the Apex Court found that the investigation was very defective. The testimony of solitary witness was found to have substantially improved at the trial than what it has been when the F.I.R. of the incident was lodged. In addition to that, no witness of the locality, who could have been present near that place of occurrence at the time of incident, had been interrogated. The Apex Court, therefore, held that no reliance could be placed on the sole testimony of witness for the purpose of recording conviction of the accused. 23. Mr. Salunke, learned Counsel appearing for appellants, in this context, placed reliance on the decision of the Apex Court in the case of Panda Nana Kare Vs. State of Maharashtra, reported in AIR 1979 SC 697 , wherein it is observed that the conviction based on the testimony of solitary eye witness disclosing assailant's name not immediately after occurrence, was not sustainable. In that case, the solitary eye witness stated about the identity of the accused at a belated stage and, therefore, it was found that on the testimony of the eye witness nor of those witnesses, who asserted that the eye witness told the name of the accused to them immediately after the occurrence, conviction could not be based. 24. The position in the case at hand is more or less the same. This is in the sense, as stated in earlier part of the judgment, the prosecution case hinges on solitary testimony of witness Nitesh who claimed to have eye witnessed the incident. We have already pointed out that the evidence of Janabai as well as complainant Sambhaji about the occurrence showing involvement of the appellants in commission of murder of their son was on the basis of what was disclosed to them by witness Nitesh. But, it is found that the disclosure to complainant Sambhaji by Nitesh, the version is inconsistent. Witness Janabai has not whispered even in her evidence that in her presence, witness Nitesh, on being ca11ed, disclosed to witness Sambhaji about the occurrence. But, it is found that the disclosure to complainant Sambhaji by Nitesh, the version is inconsistent. Witness Janabai has not whispered even in her evidence that in her presence, witness Nitesh, on being ca11ed, disclosed to witness Sambhaji about the occurrence. Even the claim of witness Nitesh that the incident of commission of murder occurred, as stated by him in his evidence before the Court, suffers from glaring infirmity, as he did not disclose about the same immediately to the police officer and policemen who were present on the well. Accepting his version that he disclosed about that fact to complainant Sambhaji and witness Janabai, none of them, though were present on the well when the policemen were there on 6th April, 2005 itself, in their attempt to take out the dead body from the well, disclosed to the police about the occurrence and so also about the fact that they came to know about it from witness Nitesh. Absolutely, no reason has been assigned by any of these witnesses as to why at that juncture, disclosure was not made to the police. A very feign attempt has been made by saying that though witnesses tried to disclose to P.S.I. Jaitapurkar, he did not accept it saying that after the dead body would be taken out, the report would be taken. However, this claim was emphatically denied by P.S.I. Jaitapurkar. Therefore, both the witnesses have been falsified in their claim that they tried to disclose about the occurrence to the police. In such situation, therefore, the evidence of witness Nitesh does not inspire confidence. There is one more aspect, in this context, which requires consideration. It has been dealt with elaborately in earlier part of the judgment and it is found that though independent witnesses were available whose names have been disclosed and as stated by witness Nitesh, those persons not only were present at the time of occurrence, but they have witnessed the same. But then the investigation has been carried out in such a defective manner that though statements of some of them were recorded, they were not examined as witnesses and as regards other persons, even statements were not recorded. But then the investigation has been carried out in such a defective manner that though statements of some of them were recorded, they were not examined as witnesses and as regards other persons, even statements were not recorded. It is, in this context, therefore, as has been observed by the Apex Court, solitary evidence of witness Nitesh does not inspire confidence and as such conviction of the accused persons cannot sustain on the basis of his sole testimony. 25. In this context, the learned Counsel Mr. Dhorde, has rightly placed reliance on the decisions-in the case of (i) Panda Nana Kare Vs. State of Maharashtra, reported in AIR 1979 SC 697 ; (ii) Shankarlal Vs. State of Rajasthan, reported in 2004 Cri.L.J. 2874: [2004 ALL MR (Cri) 2843 (S.C.)]; and (iii) Bachhu Narain Singh Vs. Naresh Yadav & others, reported in 2004 AIR SCW 1411, wherein it is held that, for over a period of one hour when the investigating officer was preparing the inquest report, no one coming before him claiming to be eye-witness and to lodge report about occurrence though there were alleged to be ten eye witnesses, the claim of the alleged eye witness so also evidence of other witnesses does not inspire confidence. 26. In the case at hand, as witness Nitesh failed to disclose about the occurrence to the police when he had an opportunity, so also other witnesses Sambhaji and Janabai, no reliance could be placed on their evidence and as a consequence of that, the conviction based on their evidence, by the trial Court, cannot sustain. 27. The learned Counsel for the appellants vehemently submitted that the trial Court has committed an error in discarding the evidence of defence witness Ashok on the ground that this witness admitted the presence of witness Nitesh at the time of occurrence and, therefore, the prosecution case put forth, implicating the accused persons, was accepted by the trial Court. There is much substance in this submission. Merely because on the evidence on record, presence of witness Nitesh is established and further not disputed by the defence, it cannot be taken for granted that whatever he claimed in his evidence about the occurrence was true and as a corollary to this what has been stated by the defence witness, is false. Merely because on the evidence on record, presence of witness Nitesh is established and further not disputed by the defence, it cannot be taken for granted that whatever he claimed in his evidence about the occurrence was true and as a corollary to this what has been stated by the defence witness, is false. In this context, the learned Counsel for the appellants has rightly placed reliance on the decision in the case of Dudh Nath Pandey Vs. State of U.P., reported in AIR 1981 SC 911 , wherein it is observed that: ''The defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses." In that case, to substantiate the plea of alibi on behalf of the accused person, one witness was examined and particularly a person from the establishment where the accused was working. In fact, the evidence of that witness was not accepted on the issue of plea of alibi of the accused on merits. That was so, because presence of the accused, at the relevant time, could be in the factory premises, but it could not be said conclusively that the accused therein was in the factory at the time of occurrence. It was so because the distance between the place of occurrence and factory where the accused was so short that the accused having admittedly gone to the factory premises, could have returned to the place of occurrence at the time of commission of offence. In other words. though there was entry of accused having entered in the factory premises, it was sufficient to hold that the accused might had gone to the factory premises at the relevant time having regard to the distance between the two places. Even accepting the version of the defence witness, it could not be conclusively held that the accused, in all probability, was not present or could not remain present at the place of occurrence. 28. In the case at hand, we have considered in detail the evidence of defence witness Ashok. His presence at the place of occurrence is not disputed by the prosecution and more particularly, by the star witness Nitesh. 28. In the case at hand, we have considered in detail the evidence of defence witness Ashok. His presence at the place of occurrence is not disputed by the prosecution and more particularly, by the star witness Nitesh. But the trial Court has preferred to discard his evidence on the ground that this witness has admitted the presence of witness Nitesh at the time of occurrence and as this witness has given eye witness account of the incident indicating involvement of the accused persons in the commission of crime and as his evidence has been accepted by the trial Court, the evidence of defence witness Ashok was discarded. In our considered opinion, the trial Court has committed a grave error in rejecting the evidence of defence witness. In our opinion, the evidence of witness Nitesh is found to be unreliable and most unnatural. As pointed out earlier, there was no prompt disclosure by witness Nitesh about the occurrence to the policemen who were present on the well. That apart, his conduct, at the time of occurrence either of not interfering to save the victim or to attract attention of the persons, who were very well present there, witnessing the commission of murder of victim, what has been stated by defence witness Ashok, stands probable. Though witness Ashok was subjected to cross-examination by "the prosecution, nothing has been brought in his testimony in the cross-examination to make a dent in his testimony. What is surprising is that during the course of investigation, statement of this witness was recorded and it is found that whatever he deposed before the Court as defence witness, it was consistent with what has been stated by him in his statement recorded by the police. Therefore, the trial Court should have accepted the evidence of defence witness Ashok. It is needless to say that accepting of his version, it squarely falsifies the claim of witness Nitesh. 29. So the result of scrutiny of the prosecution evidence by us, without being influenced by what has been observed and held by the trial Court, we have no hesitation in saying that the trial Court has committed an error in holding the accused persons guilty for commission of murder of the victim. The evidence, including that of witness Nitesh, is not sufficient, much less trustworthy to justify the conviction. The evidence, including that of witness Nitesh, is not sufficient, much less trustworthy to justify the conviction. Therefore, the judgment and order of conviction and sentence, passed by the trial Court, will have to be quashed and set aside and it is in that manner, both the appeals will have to be allowed. Appeals allowed.