JUDGMENT D.G.R. Patnaik, J.-Appellants have preferred the instant appeal against the judgment of their conviction and sentence dated 17.7.2003 passed by the Additional Sessions Judge, 1st, Fast. Track Court, Giridih in Sessions Trial No. 229 of 2003, whereby appellant no. 1 Kapil Dev Singh was convicted for the offence under Section 302 IPC and Section 27 of the Arms Act and the appellants no. 2 and 3 Prabhu Singh and Surendra Singh were convicted for the offence under Sections 302/149 IPC and all the three appellants were sentenced to undergo imprisonment for life. The appellants alongwith nine others had faced trial, and tried for the offence punishable under Sections 147, 148,323,324, 307 and 302 IPC and Section 27 of the Arm s Act. 2. Case against the appellants was instituted on the basis of the first information report lodged 011 28.5.1988 at about 8.00 PM by the informant Kailash Yadav (PW 6). Allegations in the FIR stated inter alia that on 28.5.1988 at about 8.00 PM while the informant was at his house, he saw one Ramtal Thakur dragging a bullockcart loaded with bags of cement, while Prabhu Singh (A-2) was pushing the cart from behind. When the cement bags were being taken away, the informant's brother Sangam Yadav (PW 12) who was also present at his house, asked Ramtal Thakur and Prabhu Singh as to why they were carrying the cement bags at that hour. Prabhu Singh retorted by challenging his authority to ask such question. On this, Sangam Yadav raised alarm shouting that they were illegally selling the cement. On hearing the shouts, informant's brother Sukhdev Yadav, Ravan Yadav and Darshan Yadav and co-villagers namely, Bahadur Singh, Wakil Singh, Raj Bihari Singh, Karamchand Singh, Luxmi Rajjak, Pandav Rai, Kailash Singh, Babu Moni Singh, Darogi Singh and Kunjal Thakur came to the place. Sangam Yadav did not allow the cart to proceed. At that time, the accused persons namely, Jamadar Singh, Prabhu Singh, Nabal Kishore Singh, Kapil Singh, Surendra Singh, Baldev Singh, Luxmi Narayan Singh, Arun Singh, Dular Singh, Hari Singh, Banaras Singh and Bhuneshwar Singh, Peman Singh and Damodar Singh also arrived there from the southern side. Sangam Yadav did not allow the cart to proceed. At that time, the accused persons namely, Jamadar Singh, Prabhu Singh, Nabal Kishore Singh, Kapil Singh, Surendra Singh, Baldev Singh, Luxmi Narayan Singh, Arun Singh, Dular Singh, Hari Singh, Banaras Singh and Bhuneshwar Singh, Peman Singh and Damodar Singh also arrived there from the southern side. Accused Kapil Singh (A-1) was armed with revolver, while Ram Dular Singh, Nabal Kishore Singh, Surendra Singh (A-3), Peman Singh and Bhuneshwar Singh were armed with Bhala (spear), Prabhu Singh (A-2) was armed with sword, Arun Singh was armed with Farsa and rest were armed with lathi. Kapil Singh threatened to shoot Sangam Yadav if he did not leave the cart, but Sangam Yadav remained adamant and refused to allow the cart to proceed awaiting the police to arrive. Being infuriated and on the exhortation of Surendra Singh and Prabhu Singh, Kapil Singh opened fire with his revolver at the informant. The bullet struck the right hand of the informant. At that time, Ram Dular Singh assaulted Sangam Yadav with Bhala, as a result of which, Sang am Yadav fell down on the ground. Kapil Singh again fired which hit Kunjal Thakur (deceased) who also fell down. Banaras Singh inflicted Bhala blow on Darshan Yadav. The accused persons also resorted to hurling brickbats at the informant and others from their house situated nearby, as a result of which, the informant's brother Sukhdev and Ravan had also sustained injuries. 3. The case was registered against altogether 16 persons including the 12 accused persons who had faced. trial and four others including Ramtal Thakur and his son Jeevlal Thakur, Kunjal Thakur who had sustained serious injuries, died in course of investigation. Chargesheet was submitted against 14 accused persons, while the remaining two Ramtal Thakur and Jeevlal Thakur were not sent up for trial. During the trial, two of ' the accused persons namely Baldev Singh and Bhuneshwar Singh had died and consequently, the trial proceeded against the remaining 12 accused persons including the present appellants. 4. The accused persons in their defence had de:1ied the entire charges, claiming that they were implicated on false and fictitious allegation on account of previous enmity. 5. Altogether 16 witnesses were examined at the trial by the prosecution. 4. The accused persons in their defence had de:1ied the entire charges, claiming that they were implicated on false and fictitious allegation on account of previous enmity. 5. Altogether 16 witnesses were examined at the trial by the prosecution. Besides the oral evidence of the witnesses, the prosecution had also adduced the fardbeyan of the informant, inquest report, post mortem report and injury reports in evidence, which have been marked as exhibits. Out of 16 witnesses examined by the prosecution, PW 1 Jaganath Singh, PW 7 Darshan Yadav, PW 8 Sukhdeo Yadav, PW 9 Bahadur Singh, PW 13 Abhimanyu Rai, PW 14 Wakil Singh and PW 6 Kailash Yadav (the informant), were declared hostile by the prosecution for their failure to support the prosecution's case. PW 11, PW 15 and PW 16 were examined as formal witnesses, while PW 10 was tendered for cross-examination. The prosecution was therefore left to rely upon the evidence of PW 3 Ravan Yadav, one of the eye witnesses and PW 12 Sangam Yadav, also another eye witness besides the evidence of PW 2 Dr. Suresh Brahmchari who had conducted the postmortem examination on the dead body of the deceased Kunjal Thakur supported with the evidence of PW 5 Dr. Ramanand Prasad who had also participated in conducting autopsy as a member of the Medical Board. 6. The trial court had relied upon testimonies of PW 3 and PW 12 besides the evidences of doctors PW 4 and PW 5 and had also found support from the evidence of PW 1, though he was one of the hostile witnesses. On the basis of their evidences and considering the same as cogent and reliable, the trial court recorded its finding of guilt against the accused Kapil Dev Singh (A-1) for the offence under Section 302 IPC and section 27 of the Arms Act for inflicting fatal injuries on the deceased Kunjal Thakur. The trial court relying upon the same evidence, recorded its finding of guilt against Prabhu Singh (A-2) and Surendra Singh (A-3) for the offence under Section 302 IPC read with 149 IPC on the ground that it was on their exhortation that the accused Kapil Dev Singh had opened fire causing fatal injuries to the deceased as also injuries to the others. However, considering the evidence deficient against the remaining accused persons, the trial court had acquitted them from all the charges. 7. However, considering the evidence deficient against the remaining accused persons, the trial court had acquitted them from all the charges. 7. The appellants have assailed tht1 impugned judgment of their conviction and sentence primarily on the ground that the trial court has failed to appreciate the evidences Or1 record in proper perspective and has arrived at it finding of guilt on the basis of conjectures and surmises, ignoring in the process, numerous vital contradictions in the evidences of the witnesses relied upon and furthermore, that the trial court has seriously erred in ignoring the fact that non-examination of the investigating officer has caused serious prejudice to the appellants in their defence. 8. Mrs. Anjana Prakash, learned counsel represehting the appellants, while reading out the evidences of the witnesses particularly PW 3 and PW 12, submits that both PW 3 and PW 12 who claim themselves to be the eye witnesses to the occurrence, are thoroughly unreliable and are not dependable at all. Pointing out certain contradictions in the evidence of these witnesses, learned counsel claims that neither of these two witnesses could possibly be present at the alleged place and time of occurrence and on proper scrutiny of their respective statements, it would be apparent that their testimonies are based on hearsay rather than eye witness account. Inviting attention to the fardbeyan of the informant, learned counsel points out that fardbeyan claims that as many as five persons besides the deceased had sustained injuries, but there is no supportive or corroborative evidence available on the record. Learned counsel explains that three persons named in the F.I.R. as being the injured, namely, PW 6 Kailash Yadav, informant, PW 7 Darshan Yadav and PW 8 Sukhdeo Yadav and all of whom are own brothers of the informant, have not claimed to have sustained any injuries in course of the alleged occurrence. Likewise, while fardbeyan claims that all the named accused persons had arrived at the place of occurrence variously armed with weapons, PW 3 Ravan Yadav contradicts such statement by claiming that on alarms of Sangam Yadav, accused Damodar Singh and Jamadar Singh "only had arrived there and none else. Even the narration of occurrence given by him, is totally contradictory to the narration given in the fardbeyan. Even the narration of occurrence given by him, is totally contradictory to the narration given in the fardbeyan. The witness does not assert that he had seen any person at the place of occurrence armed with any firearm or opening fire and inflicting any injury to any person. Learned counsel argues that this witness has not been declared hostile by the prosecution and, therefore, his testimony assumes significance. Learned counsel points out that according to own admission of this witness, he is the own brother of the informant Kailash Yadav. Learned counsel refers next to the evidence of PW 6 Kailash Yadav who is the author of the fardbeyan and on whose statement the case was registered and submits that this witness whom the prosecution has projected as material witness, has not supported the prosecution's case at all and except claiming that he and the deceased Kunjal Thakur had sustained firearm injury, he does not claim that any other person, particularly PW 12 Sangam Yadav, had also sustained injury in course of the alleged occurrence. 9. Learned counsel refers next to the evidence of PW 12 Sangam Yadav on whose evidence, the prosecution as also the trial court has placed total reliance. Reading out the evidence of PW 12, learned counsel submits that though this witness claims himself to be an eye witness and also claims to have sustained injury at the hands of the accused persons, but his evidence when read with the evidence of the other witnesses, would indicate that he is entirely untruthful. To demonstrate this fact, learned counsel refers to the evidence of PW 4 Dr. Ganesh Kumar and submits that though, doctor has claimed to have examined the injuries of other persons who were brought to him at the hospital, but he does not acknowledge to have examined Sangam Yadav at the hospital alongwith other injured persons. Apparently, while the injured persons including the informant had visited the hospital for treatment of their respective injuries, PW 12 Sangam Yadav was conspicuous by his absence in their company. Learned counsel argues that if, according to the fardbeyan of the informant, PW 12 Sangam Yadav had sustained severe Bhala injury, there could be no reason why he would not avail opportunity to obtain medical aid promptly. Learned counsel argues that if, according to the fardbeyan of the informant, PW 12 Sangam Yadav had sustained severe Bhala injury, there could be no reason why he would not avail opportunity to obtain medical aid promptly. Learned counsel argues further that assertion of PW 12 that he had sustained serious injury and was initially referred to the primary health centre at Deori where the attending doctor namely PW 4, had treated his injury, but PW 4 dr. Ganesh Prasad 'has not acknowledged to have seen or treated PW 12 at the hospital at all. Learned counsel adds that the prosecution has not produced any doctor, nor proved any injury report in respect of alleged injuries of PW 12 and, therefore, claim of" PW 12 that he was present at the time and place of occurrence and that he had also sustained injury, is without any support. Learned counsel adds further that significantly, even PW 3 who happens to be the brother of PW 12, has not claimed to have seen any injury on the person of PW 12. The only witness namely PW 8 who claims to have seen injury on he person of Sangam Yadav, does not acknowledge his own injury, though "fardbeyan of the informant claims that PW 8 had also sustained injury. Learned counsel submits further that strangely enough, not a single member of the family of the deceased Kunjal Thakur has come forward to depose against the appellants and neither have the other purported eye witnesses offered any support to the prosecution's case against the appellants. Under such circumstances, placing reliance entirely on the statement of PW 12 whose testimony has been demonstrated as untruthful, is thoroughly illegal. It is further submitted that the prosecution has not led any evidence to explain the delay in sending the first information report to the court or to inform as to whether any blood stains was found at the alleged place of occurrence or as to who had taken the deceased Kunjal Thakur in his injured condition to the hospital or whether the bullet recovered from the body of the deceased was examined by any forensic or ballistic expert to confirm as to whether such missile could be discharged from the firearm alleged to have been used by the appellant no. 1 Kapil Dev Singh. 1 Kapil Dev Singh. Learned counsel emphasizes that due to non-examination of the investigating officer who could be the only witness to explain the above circumstances, the appellants have suffered serious prejudice in their defence and the benefit thereof ought to have been given to the appellants. Learned counsel adds that significantly, it is claimed that the police had arrived almost immediately after the occurrence and had arrested all the accused persons promptly, but no firearm or any other weapons was recovered from the possession of the accused persons. Referring to the conviction of the appellant nos. 2 and 3 for the offence under Section 302 IPC read with section 149 IPC, learned counsel argues that since only three persons were found guilty, the learned court below ought to have considered that application of Section 149 IPC is not warranted, since no unlawful assembly can be constituted by two or three persons. Learned counsel adds further that conviction of appellant nos. 2 and 3 is not based on any cogent and reliable evidence, since no specific role has been attributed to either of these two appellants for committing the murder of the deceased. 10. Learned counsel for the State while supporting the impugned judgment of conviction and sentence against the present appellants, submits that though most of the witnesses of the prosecution have failed to support the prosecution's case, but facts and circumstances of the case as appearing from the evidences on record including that of PW 12 when read with the evidences of the doctors, clearly confirms the involvement of the present appellants in the occurrence and also the fact that on the exhortation of the appellant nos. 2 and 3, the appellant no. 1 had caused the fatal firearm injury to the deceased. Learned counsel adds that the contradiction which the defence has highlighted, are trivial and in any case, they do not affect the broad aspects of the prosecution's case. 2 and 3, the appellant no. 1 had caused the fatal firearm injury to the deceased. Learned counsel adds that the contradiction which the defence has highlighted, are trivial and in any case, they do not affect the broad aspects of the prosecution's case. Learned counsel adds further that defence has not suffered any serious prejudice on account of non-examination of the investigatillg officer, as because no vital contradiction has been elicited from, the material witnesses in their cross-examination by the defence and considering the fact that the place of occurrence and the fact of death of the deceased has not been denied or disputed by the defence, the absence of the evidence of the investigating officer on these issues is of no consequence. 11. On reading the impugned judgment of the learned trial court, it appears that the conviction of the. appellants is based entirely on the evidence of PW 12 Sangam Yadav. Almost all the other witnesses projected by the- prosecution as material witness, including the informant of the case, have been declared hostile on account of their failure to support the prosecution's case. The question raised by the learned counsel for the appellants is, whether on the materials available on record, it would be appropriate and justified to place implicit reliance on the sole testimony of PW 12. 12. It is by now well settled by a catena of decisions of the Supreme Court that conviction can certainly be sustained on the evidence of a solitary witness subject however to the condition that testimony of such witness is found truthful reliable and inspires confidence. The rule of caution prescribes that the evidence of the witness must be carefully scrutinized as its intrinsic quality should be assessed on test of truthfulness. Whether the evidence of PW 12 stands to the test of reliability, has to be assessed only by his own evidence and by comparing his evidence with other evidences available on record, 13. As regards the place of occurrence, from the evidence of PW 1, PW 3 and PW 6 and even PW 12, the place of occurrence is the open place in front of the house of the informant within the village Deori under Deori Police Station. As regards the place of occurrence, from the evidence of PW 1, PW 3 and PW 6 and even PW 12, the place of occurrence is the open place in front of the house of the informant within the village Deori under Deori Police Station. No dispute appears to have been raised by the defence in respect of the place of occurrence, since there is no cross-examination of the above named witnesses on this issue. It is true that the investigating officer having not been examined and no detailed description of the place of occurrence being available on account of the non-examination of the investigating officer, yet, the evidences on record are sufficient to draw inference and locate the place of occurrence as stated above. Likewise, no dispute has been raised by the defence regarding the fact that the deceased Kunjal Thakur had suffered homicidal death on account of gun shot injury. The evidence of PW 2 Dr. Suresh Brahamchari confirms that he has conducted post mortem examination on the dead body of the deceased at Sadar Hospital on 30.5.1988 and had found lacerated wound 2.5 cm x 1 cm x deep to the plural cavity with inverted margins over the left side of the chest at the level of 7th rib in the mid clavicular line. He has also found upper pole of the spleen lacerated and there was a hole in the posterior wall of the stomach and size of the circular hole was 1.5 cm in diameter. He had also found a missile inside the cavity of the stomach which was recovered by him, Cause of death, in his opinion, was shock and haemorrhage and that the death has occurred within 24 to 36 hours prior to the post mortem examination. The doctor has also opined that the injuries were caused by firearm such as revolver. Besides the doctor's evidence, there is evidence of other witnesses, all of whom have confirmed that the death of the deceased was caused by firearm injury. 14. Referring to the evidence of PW 12 Sangam Yadav, it is his claim that while he was at his house, he saw Ramtal Thakur and his son Jewlal Thakur carrying bags of cement on bullock-cart and that Prabhu Singh was pushing cart from behind. On his query, he was informed by them that cement bags were sold to them by Jamadar Singh. On his query, he was informed by them that cement bags were sold to them by Jamadar Singh. He challenged them claiming that the cement bags were stolen and on his raising alarms, altogether 14 persons including Jamadar Singh. Prabhu Singh, Nabal Kishore Singh, Kapil Singh, Surendra Singh, Baldev Singh, Luxmi Narayan Singh, Arun Singh, Dular Sirrgh, Hari Singh, Banaras Singh, Bhuneshwar Singh, Peman Singh and Damodar Singh arrived there. He adds that on the order of Surendra Singh followed by exhortation made by 'Prabhu Singh, Kapil Dev Singh fired thrice with his revolver causing firearm injury to Kailash Yadav (PW 6) and Kunjal Thakur and on similar exhortation of Banaras Singh, the accused Ram Dular Singh assaulted him with Bhala causing Bhala injury to him. He adds further that he and other injured persons were taken to the police station from where, they were forwarded to the hospital where they obtained medical aid. He claims that he had received first aid at the hospital at Deori and later, he was referred to the hospital at Giridih. He admits in his cross-examination that he has been contesting litigation with the accused persons since many years and about 10 years ago, there was altercation with Nakul Singh for which, a criminal case was registered at the police station. Comparing the evidence of PW 12 with that of his brother PW 3, it would appear that PW 3 does not affirm the arrival or presence of any other accused persons except two namely, Doman Singh @ Surendra Singh and Jamadar Singh at the place of occurrence, nor does he acknowledge that there was any firing made by any person or even that Sang am Yadav (PW 12) had sustained any injury. Likewise, though PW 12 claims that it was moonlit night at the time of occurrence, PW 3 claims that the night was dark and, therefore, although he had arrived at the place of occurrence, he could not see or identify any person there. Interestingly, PW 12 claims that other witnesses including his brother Kailash Yadav (PW 6), Sukhdeo Yadav (PW 8) and Ravan Yadav (PW 3) arrived at the place of occurrence five minutes after his arrival and adds that Kailash Yadav (PW 6) had sustained firearm injury, but Kailash Yadav does not acknowledge the same. Interestingly, PW 12 claims that other witnesses including his brother Kailash Yadav (PW 6), Sukhdeo Yadav (PW 8) and Ravan Yadav (PW 3) arrived at the place of occurrence five minutes after his arrival and adds that Kailash Yadav (PW 6) had sustained firearm injury, but Kailash Yadav does not acknowledge the same. The doctor who had examined Kailash Yadav, had found an incised injury on the body of Kailash Yadav which does not correspond to any gun shot injury. PW 12 further claims to have sustained Bhala injury, for which he had obtained medical treatment at the local Primary Health Centre at Deori, but the doctor namely, PW 4 does not affirm or acknowledge to have seen or treated PW 12 for any injury at all. Claim of this witness that he was admitted to the Sadar Hospital at Giridih where he availed medical treatment as indoor patient for about three days, does not find any support from any evidence, since the prosecution has neither examined any doctor, nor produced any injury report pertaining to the purported injury of this witness. It is equally significant to note that the own brothers of this witness namely, the informant PW 6, PW 7 and PW 8 have not affirmed that PW 12 was present at the place of occurrence or that they had seen any injury on his body. Narration of occurrence as given by Ravan Yadav (PW 1), who is one of the brothers of PW 12, draws a different picture about the manner of occurrence and the persons involved in the alleged occurrence, as opposed to the narration and description of PW 12. The above contradictions and inconsistencies clearly establish that the evidence of PW 12 lacks adequate support in material particulars including his claim that he was present at the time of occurrence and was an eye witness to the occurrence. Prosecution has not explained as to why none of the members of the house of the deceased have come forward to depose, although admittedly their house is located almost adjacent at a distance of less than 100 ft. from the place of occurrence. There appears enough force in the contention of the learned counsel for the appellants that the evidence of PW 12 cannot be considered as wholly reliable and sufficient to inspire confidence, so as to convict the appellants for the offence of murder. from the place of occurrence. There appears enough force in the contention of the learned counsel for the appellants that the evidence of PW 12 cannot be considered as wholly reliable and sufficient to inspire confidence, so as to convict the appellants for the offence of murder. Non-examination of the investigating officer leaves many issues unexplained. From the records, it appears that there is unexplained delay in forwarding the FIR to the court. There is also unexplained delay in recording the statements of PW 12 Sangam Yadav by the investigating officer, as appearing from the statement of PW 12 himself. There is absence of explanation as to why PW 12 was not referred promptly to the doctor, if at all he had sustained injury on his person. The defence has certainly a reasonable basis to claim that it has suffered prejudice on account of non-examination of the investigating officer. It is however more significant to note that on the basis of the fardbeyan of the informant, allegations were levelled against as many as 16 accused persons and even PW 12 in his own evidence, has tried to adopt the contents of the fardbeyan almost in its entirety. Yet, the learned trial court had not found sufficient material even on the evidence of PW 12 to convict the other accused persons, suggesting thereby that the evidence of PW 12 including his claim of presence of other accused persons armed with weapons and constituting unlawful assembly, has not been believed by the Trial Court. The evidence of PW 12 when read in proper perspective, leaves lurking suspicion regarding his claim of his being an eye witness to the occurrence. The presence of the appellants at the time and place of occurrence and their alleged involvement in the occurrence having not been corroborated by any other witnesses, the circumstances leaves sufficient scope for extending benefit of doubt to the appellants in respect of the allegations levelled against them. 15. For the reasons assigned in the judgment, we find merit in this appeal and the same is hereby allowed. The judgment of conviction and sentence, as passed by the trial court against the appellants for the aforementioned offences, is hereby set aside. The appellants are acquitted of the charges. 15. For the reasons assigned in the judgment, we find merit in this appeal and the same is hereby allowed. The judgment of conviction and sentence, as passed by the trial court against the appellants for the aforementioned offences, is hereby set aside. The appellants are acquitted of the charges. Appellant No. 1 Kapil Dev Singh @ Kapil Deo Singh who is in jail, is directed to be set at liberty forthwith; if not wanted in connection with any other case. The appellant nos. 2 and 3 (Prabhu Singh and Surendra Singh) who are on bail, are absolved from liability of their respective bail bonds. D.K. Sinha, J. - I agree. .