JUDGMENT : C.R. Dash, J. - This appeal is directed against the judgment and order of sentence dated 22.02.2006 passed by learned Sessions Judge, Keonjhar in S.T. Case No. 123 of 2005, convicting the appellants for offence under Sections 302, I.P.C. and sentencing each of them to suffer imprisonment for life. The occurrence happened at about noon on 11.11.2004 at Sailong Hudi. Deceased Sanjeeb and his brother-in-law (sister's husband) named Chittaranjan Jena were returning on a motorcycle. They heard shout from behind. Looking back they saw Dillip (Appellant No. 5) and Manu (Appellant No. 6) chasing them being armed with swords. Other two persons put stones in front of their motorcycle. Finding no way out, they left the motorcycle there and started running for their safety. The appellants, however, sorrounded deceased Sanjeeb and assaulted him with sword, farsa, etc., they were armed with. Sanjeeb fell down with bleeding injuries and others also chased Sanjeeb's brother-in-law (Chittaranjan). He could, however, escape. Prior to the incident, there was dispute between the deceased and the accused persons and the accused persons were threatening to kill the deceased. The matter was reported to the police and on completion of investigation charge-sheet was filed implicating the appellants in the offence. 2. Prosecution has examined 10 witnesses to prove the charge. Out of them, P.Ws.1, 2 and 8 have not deposed anything against the appellants. P.W.5 is a post-occurrence witness, who heard about the incident over telephone and saw the injured at the hospital. P.W.6 is the Medical Officer, who had examined Prakash Jena (Appellant No. 2). P.W.7 is the Medical Officer, who had conducted the autopsy. P.Ws.3 and 4 are the eye witnesses, on whose evidence the entire prosecution case rests. P.Ws.9 and 10 are the Investigating Officers. The defence plea is one of complete denial. None is, however, examined on behalf of the defence. 3. Learned Trial Court, on consideration of the evidence obtained on record, found the appellants guilty u/s 302, I.P.C. and acquitted them of the charge u/s 120B, I.P.C. 4. It was the main contention before the trial court and the sole contention before this Court that there being unexplained delay in examination of the alleged eye witnesses, i.e., P.Ws.3 and 4, conviction of the appellants u/s 302, I.P.C. is not sustainable in the eye of law. It was the main contention before the trial court and the sole contention before this Court that there being unexplained delay in examination of the alleged eye witnesses, i.e., P.Ws.3 and 4, conviction of the appellants u/s 302, I.P.C. is not sustainable in the eye of law. Learned counsel for the appellants relies on a number of decisions to substantiate his contentions. Learned Addl. Standing Counsel on the other hand supports the impugned judgment and submits that no question having been asked to the Investigating Officer regarding the delay in examining P.Ws. 3 and 4, he (the Investigating Officer) cannot be blamed for any defects without eliciting an explanation from him. 5. It is admitted at the Bar that the case must stand or fall by the evidence of P.Ws.3 and 4. The infirmity from which their evidence suffer is that both of them (P.Ws.3 and 4) were not examined till 18.11.2004, as testified ipse dixit by the Investigating Officer (P.W.10), though the occurrence happened at about 11.20 A.M. to 12.00 Noon on 11.11.2004 and they (P.Ws.3 and 4) were present throughout in the spot village, which the police had already made several visits to. 6. Learned counsel for the appellants has relied on some decisions. Those decisions are discussed below : In the case of Ram Pukar Thakur and Others Vs. The State of Bihar the sole eye witness named Nakuldeo did not disclose the names of the assailants to anyone whosoever; nor any other members of the family mentioned the names of the assailants to any one of the several persons gathered in their house and said Nakuldeo had involved one Biswanath Pandey falsely. Hon'ble Supreme Court held the evidence of the sole eye witness Nakuldeo to be unbelievable. In the case of Ravulappalli Kondaiah and Others Vs. State of Andhra Pradesh the defence had examined one witness as D.W.3. What he stated before the Court in course of his examination as defence witness had not been stated by him before the Investigating Officer and Hon'ble Supreme Court dismissed his evidence as worthless. The principle as culled by learned counsel for the appellants from this case Ravulappalli Kondaiah and Others Vs. State of Andhra Pradesh, is not applicable to the fact of the present case. The principle as culled by learned counsel for the appellants from this case Ravulappalli Kondaiah and Others Vs. State of Andhra Pradesh, is not applicable to the fact of the present case. In the case of State of Orissa v. Brahmananda Nanda, AIR 1976 S.C. 2488 , Hon'ble Supreme Court held the evidence of the sole eye witness to be infirm, as the witness had not disclosed the name of the assailant for a day and half after the incident and the explanation offered for such non-disclosure was not believable. Same is the view of Patna High Court in Sobrati Mian v. State of Bihar, 1986 Crl. L.J. 1226, where the solitary eye witness did not disclose the incident to the police for seven days and the explanation offered was not convincing. Hon'ble Patna High Court held that, normally it would not be safe to accept the testimony of such a dubious witness. This Court in the case of Dambu Lohara and others v. State of Orissa, 1987 (II) OLR 215 and Prasanta Kumar Pati @ Prasanna v. State of Orissa, (1989) 2 OCR 463 took the same view and held that delayed disclosure of the incident by the witness(s) is a piece of infirm evidence and cannot be acted upon, if the explanation offered is not convincing. Same is the view of Hon'ble Supreme Court in the case of delayed disclosure and non-convincing explanation in Kali Ram Vs. State of Himachal Pradesh, Mahadeo and Others Vs. State of Maharashtra, . 7. Hon'ble Supreme Court in the case State of U.P. Vs. Sikandar Ali and others, accepted the explanation of the Investigating Officer justifying delayed examination of the eye witness (P.W.2), as the Investigating Officer explained that for his engagement to up-keep the law and order in the area, he did not find any time to examine P.W.2. In the said case, however, the informant (P.W.1) had already brought on record the details about the assailant and the manner of assault etc. In view of such position Hon'ble Supreme Court found no fault so far as delayed examination of P.W.2 is concerned. It has been observed by Hon'ble Supreme Court in the case of Ranbir and Others Vs. In the said case, however, the informant (P.W.1) had already brought on record the details about the assailant and the manner of assault etc. In view of such position Hon'ble Supreme Court found no fault so far as delayed examination of P.W.2 is concerned. It has been observed by Hon'ble Supreme Court in the case of Ranbir and Others Vs. State of Punjab, thus :- The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing the got-up witness to falsely support the prosecution case. In Ganesh Bhavan Patel v. State of Maharashtra, AIR 1979 S.C. 135 a three Judge Bench of Hon'ble Supreme Court observed that delay in examining a witness by itself cannot amount to any serious infirmity in the prosecution case, but it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witness to be introduced. Hon'ble Supreme Court in the case of State of U.P. Vs. Satish, referred to in Gunnana Pentayya v. State of Andhra Pradesh (2009) 16 S.C.C. 59 has observed that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses, the defence cannot take advantage therefrom. In that case no such question had been asked to the Investigating Officer (P.W.53) regarding the reason for delay and there was even no suggestion to P.W.2 that he was not present in the house when the incident took place. 8. From the case law discussed supra it emerges that, question of delayed examination of a witness itself would not make the evidence of such a witness infirm. If there are, however, circumstances suggestive of some unfair practice by the Investigating Officer for the purpose of introducing a got-up witness or there are concomitant circumstances to suggest that the Investigating Officer is deliberately gaining time with a view to decide about the shape to be given to the prosecution case and the eye witness to be introduced, the delayed examination of a witness would certainly make evidence of such a witness infirm and unbelievable. A three judge bench of Hon'ble Supreme Court in the case of Ganesh Bhavan Patel v. State of Maharashtra (supra) has ruled regarding existence of concomitant circumstances to suggest unfairness by the Investigating Officer to come to conclusion regarding the probative effect of delayed examination of a witness. A two Judge Bench of Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Satish (supra) has, however, held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses, the defence cannot take advantage therefrom. 9. Learned counsel for the appellants submits that number of questions have been asked by the defence to the Investigating Officer regarding delayed examination of the witnesses, i.e., P.Ws.3 and 4. Per contra, however, learned Additional Standing Counsel oppugns such a contention. 10. In the present case the occurrence happened on 11.11.2004.The Investigating Officer (P.W.10) in his cross examination has stated thus : Till 18.11.2004 I had not examined any eye witness. I had not noted in my Case Diary that I searched for eye witnesses till 18.11.2004. Till 19.11.2004 nobody disclosed before me about the name of eye witnesses. I had not noted in my Case Diary that my sources had not revealed the name of any eye witnesses......... The Case Diary does not reveal who were the eye witnesses. I had not examined the family members of the witnesses to cross-check their version. It is not a fact that as there was no eye witness, I had planted these persons as eye witnesses to implicate the accused persons. P.W.10 had taken the charge of the investigation on 15.11.2004 from the initial Investigating Officer (P.W.9). He (P.W.9) examined some witnesses, but none of them as stated by P.W.9 in his cross-examination had implicated the appellants. P.Ws.3 and 4 are the eye witnesses to the occurrence. The spot where the occurrence took place is at a distance of about 9 Kms. from their village as testified by P.W.3. P.W.3 in his cross-examination has testified that he was the friend of deceased Sanjeeb and was in inimical terms with the accused. He has further admitted that for five days he did not tell about the incident to police though he saw the police at the village. Both P.Ws. from their village as testified by P.W.3. P.W.3 in his cross-examination has testified that he was the friend of deceased Sanjeeb and was in inimical terms with the accused. He has further admitted that for five days he did not tell about the incident to police though he saw the police at the village. Both P.Ws. 3 and 4 were in custody for the murder of one Narahari and one of the sons of Narahari is an accused in the present case. P.W. 4 has testified that on the next day of occurrence he orally informed the incident to the police at Ghasipura Police Station and police recorded his statement, on which he had signed. Such an evidence by P.W.4 is found to be false on cross-reference to the evidence of Investigating Officer (P.W.10), who is totally silent on this aspect. P.Ws.3 and 4 in their examination-in-chief, which is very short, have implicated all the appellants in an omnibus manner. Going by the principle decided by the Hon'ble Supreme Court in the case of Ganesh Bhavan Patel v. State of Maharashtra (supra), the evidence of P.Ws. 3, 4, 9 and 10 read together are suggestive and indicative of circumstances that P.Ws. 3 and 4 had no reason to keep quiet if they had seen the occurrence of murder especially when there are nothing for them to be afraid of or to hide. In spite of visit by the police to the village, P.Ws. 3 and 4 kept quiet for no reason. P.W.3 has ipse dixit admitted that he is in inimical terms with the accused persons. P.W.4 has given a false explanation to the effect that on the next day of the occurrence he had reported the incident orally at Ghasipura Police Station, his statement was recorded and he had put his signature thereon. The Investigating Officer (P.W. 10) has been asked at length as to what he has reflected in the Case Diary regarding eye witnesses. He (P.W.10) is, however, was only in a denial tone. Both the Investigating Officers seem to have conducted themselves casually and P.W.10 has introduced P.Ws.3 and 4 as eye witnesses just to solve the case. The evidence of P.Ws.3 and 4 on the point of implication of the appellants is also quite omnibus. All the aforesaid facts make the evidence of both P.Ws. Both the Investigating Officers seem to have conducted themselves casually and P.W.10 has introduced P.Ws.3 and 4 as eye witnesses just to solve the case. The evidence of P.Ws.3 and 4 on the point of implication of the appellants is also quite omnibus. All the aforesaid facts make the evidence of both P.Ws. 3 and 4 highly infirm and it is not safe to rely on their evidence to sustain the conviction of the appellants. The informant, who is one of the eye witnesses, has not been examined, though he is cited as an eye witness. Leaned Additional Standing Counsel, however, is not in a position to clarify as to why the informant has not been examined. The impugned judgment is also silent on this aspect. Such a fact is another dubious feature in the case to suspect the veracity of the prosecution case. Taking into consideration all the aforesaid aspects, we feel inclined to set aside the impugned judgment. In the result, the appeal is allowed. The impugned judgment and order of sentence are set aside. The appellants are acquitted of the charge(s). They be released from custody forthwith, if their detention is not required in any other case. L. Mohapatra, J. I agree. Final Result : Allowed