JUDGMENT B.P. DAS, J. — This Criminal Appeal is directed against the judgment and order dated 13th May, 1993 passed by the 2nd Addi¬tional Sessions Judge, Berhampur, in S.C. No.29/92 (S.C. No.28/92-GDC) convicting the accused-appellant under Sections 302 & 307, IPC and sentencing him to undergo imprisonment for life and rigorous imprisonment for three years respectively and di¬recting the sentences to run concurrently. 2. By judgment dated 2.8.1995 a collateral Bench of this Court allowed this appeal in part by setting aside the conviction and sentence of the accused-appellant under Section 302, IPC and maintaining the conviction and sentence of the appellant under Section 307, IPC. The said judgment of this Court was challenged before the apex Court in Criminal Appeal No.1236/2003 (SLP (Crl) No.4239/2003). the apex Court by its order dated 24.9.2003 remitted the matter to this Court for fresh adjudication. The relevant portion of the said order is quoted herein below. “.........Strangely, while considering the case of charge under Section 302, IPC, the High Court proceeded to appreciate the evidence which was doubtful. This is an apparent contradiction in appreciation of evidence and the approach of the High Court is rather casual. On that score alone, we fell the matter needs to be re-heard by the High Court afresh and while setting aside the orders of the High Court we remit the matter to the High Court for a fresh adjudication......” 3. The appeal was accordingly placed before this Bench for re-hearing afresh. 4. Heard learned counsel for the parties and perused the records. The prosecution story, in brief, is that in the evening of 1.9.1991, P.W.4-Raju Nahak and the deceased-Golla Nahak, both of Village-Sialia under Kabisurya Nagar P.S., had gone to the nearby field locally known as “Podia Bhanga Billo” to attend the call of nature. After attending call of nature and washing, when both of them were returning, the accused-appellant, Dandapani Nahak came to them suddenly and stabbed the deceased on his chest. P.W.4 protested to the same for which there was a scuffle between the accused-appellant and P.W.4, as a result of which he sustained injuries. Thereafter, hearing the noise, P.Ws.5 & 6, who were then passing by that way, came to the spot and found P.W.4 and the accused scuffling each other. On their interven¬tion, the accused-appellant ran away after giving a stab blow to P.W.4. Thereafter, hearing the noise, P.Ws.5 & 6, who were then passing by that way, came to the spot and found P.W.4 and the accused scuffling each other. On their interven¬tion, the accused-appellant ran away after giving a stab blow to P.W.4. P.W.1, the son of P.W.4, being informed that his father was lying injured in the field, came to the spot and found his father injured and walking slowly in a bending position. Thereaf¬ter, he lodged an F.I.R. before P.W.7, which has been marked Ext.6 and thereafter, the investigation was set to motion and the Investigating Officer submitted charge-sheet against the accused under Section 302, IPC for committing murder of Golla Nahak (deceased) and under Section 307, IPC for attempting to commit the murder of P.W.4-Raju Nahak. 5. In order to bring home the charges, the prosecution examined as many as eleven witnesses. P.W.1 is the son of P.W.4, who came to the spot immediately after getting the information that his father was lying injured in the field, P.W.2 is the person who informed P.W.1 that his father had been injured by the accused. P.W.3 came to the place of occurrence while there was a tussle between P.W.4 and the accused. P.W.4 is the only eye-witness to the occurrence. P.Ws.5 & 6 being attracted by the shout of P.W.4, came to the spot and found P.W.4 and the accused tussling with each other. P.W.7 is the Investigating Officer who conducted the investigation. P.W.8 is the doctor who conducted the post-mortem examination on the deceased and P.W.10 is the doctor who examined the accused-appellant as well as P.W.4 on police requisition. P.W.9 is the formal witness. P.W.11 is the C.I. Police, Chatrapur, who took charge of the investigation of the case from P.W.7. Considering the materials on record, the trial Court came to find that the death of the deceased was homicidal and P.W.4 sustained injuries, which fact has been corroborated by the doctor. P.W.9 is the formal witness. P.W.11 is the C.I. Police, Chatrapur, who took charge of the investigation of the case from P.W.7. Considering the materials on record, the trial Court came to find that the death of the deceased was homicidal and P.W.4 sustained injuries, which fact has been corroborated by the doctor. After assessing the evidence of P.Ws.4, 5 & 6 along with that of P.W.1, the trial Court came to the conclusion that it was the accused who committed the murder of the deceased and attempt¬ed to commit the murder of P.W.4 and accordingly convicted him under Section 307 & 302, IPC and sentenced him to undergo impris¬onment for life under Section 302, IPC and rigorous imprisonment for three years under Section 307, IPC and directed both the sentences to run concurrently. Challenging the conviction and sentences, as aforesaid, the appellant had filed this Criminal Appeal. 6. During the course of hearing, learned counsel for the appellant submitted that he did not challenge the conviction and sentence under Section 307, IPC, as the appellant had already undergone three years of imprisonment by the time the appeal was heard. 7. So far as the conviction and sentence under Section 302, IPC, was concerned, the stand taken by the appellant was that he was falsely implicated and the F.I.R. and the statement of P.W.4 were subsequently prepared to foist upon him the offence under Section 302, IPC and there was a delay in filing the F.I.R. The presence of P.W.4 in the scene of occurrence could not be available. Basing upon the aforesaid evidence and analyzing the evidence on record, this Court initially by its judgment dated 2.8.1995 while setting aside the conviction of the appellant under Section 302 IPC maintained the conviction under Section 307, IPC. But in pursuance of the order passed by the apex Court in SLP, this Court re-heard the matter and proceeded to appreciate the evidence adduced by the prosecution and fol¬lowed by the trial Court. 8. Let us see the statement of P.W.4, who claimed to be the eye-witness. In his examination-in-chief, he stated that he and the deceased on 1.9.1991 in the evening went to attend the call of nature and he was having torchlight and one umbrella. While they were returning home, the accused came to them and P.W.4 could identify him by the flash of the torchlight. In his examination-in-chief, he stated that he and the deceased on 1.9.1991 in the evening went to attend the call of nature and he was having torchlight and one umbrella. While they were returning home, the accused came to them and P.W.4 could identify him by the flash of the torchlight. During his cross-examination, he stated that he was not examined by the C.I. of Police (P.W.11) on 9.11.1991 and he denied the fact that after deliberation to improve the case, he introduced the story of torchlight and umbrella in the case. The I.O., P.W.7, has indicated in his evidence that the aspect of carrying torchlight while going to attend the call of nature had neither been stated by P.W.4 nor had the same been disclosed by the informant in the F.I.R. filed. We find that the trial Court has dealt with this aspect in paragraph-11 of the judgment, the relevant portion whereof runs as follows :- “11.......Thus it can be said that introduction of the torchlight has been made with a motive to make the evidence of P.Ws.4, 5 & 6 acceptable regarding identification of the accused. I have no hesitation to reject their evidence on that score. But in spite of that, still I am un able to persuade myself to agree with the contention of the learned counsel for the defence that in dark cloudy night, known and acquainted persons even from a close distance cannot be identified. The accused is admittedly a co-villager of P.Ws.4, 5 & 6. In such circumstances, the evidence of identification of the accused by them is not to be thrown overboard, merely because, it was dark night. No doubt, there can be no authority on a question of fact, but in similar circum¬stance, evidence of identification had been accepted by our own High Court in the case of Budhia Singh v. State reported in 1982 O.L.R. (Criminal) 241 and in the case of Lalit Bodo Naik v. State reported in 1986 (1) O.L.R. 432. So, when P.Ws.4, 5 & 6 had the opportunity to see the accused from a close quarter and had also heard his voice, there is nothing improbable to have identified him even though the night was dark.” 9. So, when P.Ws.4, 5 & 6 had the opportunity to see the accused from a close quarter and had also heard his voice, there is nothing improbable to have identified him even though the night was dark.” 9. In our considered opinion, the trial Court disbelieved the evidence of P.W.4 and came to the conclusion that the intro¬duction of torchlight had been made with a motive to make the evidence of P.Ws. 4, 5 & 6 acceptable regarding identification of the accused and basing upon the same, it rejected their evidence on that score. On the defence plea that in dark cloudy night, known and acquainted persons cannot be identified, the trial Court further held that in such circumstance, the evidence of identification of the accused is not to be thrown overboard. According to us, after rejecting the evidence of P.W.4 on that score, there was no material before the trial Court to come to such a conclusion. Moreover, there is substantial delay in lodg¬ing the F.I.R., as the occurrence took place at 9 p.m. and F.I.R. was lodged at 11.30 a.m. next day and the F.I.R. was shrouded with doubt, as has been indicated by the trial Court. It is also improbable that when the deceased and P.W.4 were present, it would not have been possible on the part of one person to attack both the persons with knife and cause injuries to P.W.4 and death of the deceased. There was also previous enmity between the appellant and the deceased. 10. Under the aforesaid circumstances, we are of the view that the evidence of P.W.4 is unbelievable and cannot be relied upon and it creates a room for benefit of doubt in favour of the accused-appellant. Accordingly, the conviction and sentence of the appellant under Section 302, IPC is set aside. In view of the discussions made above, since we have disbe¬lieved the evidence of P.W.4, the conviction and sentence under Section 307, IPC cannot be sustained and is accordingly set aside. The appeal is allowed accordingly. Since the appellant is on bail, his bail bond stands can¬celled. S.R. SINGHARAVELU, J. I agree. Appeal allowed.