JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 24-10-2007 passed by IInd Additional Sessions Judge, Balodabazar, in Sessions Trial No.456/2006. By the impugned judgment, accused/appellant Dwarpal has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- in default of payment of fine, to further undergo rigorous imprisonment for 5 years. 2. The case of the prosecution in brief is as under: On 18-10-2006, at about 11.00 am, Forest Guard Derha Prasad Sahu (PW-8) had gone on patrolling duty in the Forest of Khairy Tukada along with Watchman Tejram Yadav. On the way, a person who was grazing goats met and told them that near the Saloni Road inside the forest an unknown person was lying dead. Derha Prasad (PW-8) and Tejram went to the Saloni Road where an unknown person was lying dead. The deceased had worn T-Shirt and lungi and two lathies, slipper (chappal) were lying near the dead body. Forest Guard Derha Prasad (PW-8) informed Head Constable Balram Patel (PW-10). Head Constable Balram Patel (PW-10) lodged Merg Intimation (Ex.P/13) in Police Station Palari, Head Constable Balram Patel (PW-10) reached the place of occurrence and gave notice (Ex.-P/14) to Panchas and prepared inquest (Ex.-P/15) on the dead body of the deceased. Identification of the dead body was conducted vide Ex.-P/11. In the identification, the dead body was identified by Ram Prasad Kanwar (PW-5), Sona Ram Lanja (PW-6), Milan, Motilal and Santosh Singh. The dead body of the deceased was identified as Ramayan by the above witnesses. The dead body of the deceased was sent to Community Health Center (CHC), Palari for postmortem examination vide Ex.-P/16. Doctor F.R. Nirala (PW-12) conducted postmortem on the dead body of the deceased and gave his report (Ex.-P/22), finding that hair of the head of the deceased were smeared with blood, injuries were present on head, cheek, forehead, chin, neck and chest. He found following injuries on the body of the deceased : (i) Lacerated wound, 4 ½ x 1½ x 1 inches on the forehead, the bones of the head and the face were fractured. (ii) Lacerated wound, 1½ x 1 x ½ inches on upper lip smeared with blood, jaw was fractured and 6 nos. He found following injuries on the body of the deceased : (i) Lacerated wound, 4 ½ x 1½ x 1 inches on the forehead, the bones of the head and the face were fractured. (ii) Lacerated wound, 1½ x 1 x ½ inches on upper lip smeared with blood, jaw was fractured and 6 nos. of teeth were broken, (iii) Lacerated wound smeared with blood, 2 x 1 x ½ inches on chin, lower lip and lower jaw were fractured and teeth were broken. In internal examination he found that the bones of the head were fractured and the injuries were antemortem in nature. He opined that the deceased died due to shock (hypervolemia) as a result of head injury and the death was homicidal in nature. Thereafter, regular Merg Intimation No. 71/2006 (Ex.-P/19) and First Information Report No.280 (Ex.-P/20) were recorded in Police Station, Palari. In further investigation, two lathi and chappal were seized from the place of occurrence vide Ex.-P/1. Plain soil and blood stained soil were seized from the place of occurrence vide Ex.-P/2. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.-P/3 and at his instance, lathi was seized from the appellant vide Ex.-P/6. The appellant made extra judicial confession before the villagers. Extra judicial confession of the appellant was recorded vide Ex.-P/4. The appellant was sent to Community Health Center, Palari for medical examination vide Ex.-P/8. Doctor Mamata Thakur (PW-9) examined him and gave her report (Ex.-P/14). The seized articles were sent to Forensic Science Laboratory (FSL), Raipur vide Ex.-P/9. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Balodabazar, who, in turn, committed the case to the Court of Session, Raipur from where it was received on transfer by the IInd Additional Sessions Judge, Balodabazar, who conducted the trial and convicted and sentenced the appellant/accused as mentioned above. To prove its case, the prosecution examined Maheshwar Das (PW-1), Feku Ram Yadav (PW-2), Dheerendra Kumar Thakur (PW-3), ASI P.S.Sen (PW-4), Ram Prasad Kanwar (PW-5), Sona Ram Lanja (PW-6), Ram Kumar Kashyap (PW-7), Derha Prasad Sahu (PW-8), Dr. Mamata Thakur (PW-9), Head Constable Balram Patel (PW-10), Inspector Baldev Singh (PW-11) and Dr. F.R. Nirala (PW -12). The appellant did not examine any witness in his defence. 3. Mamata Thakur (PW-9), Head Constable Balram Patel (PW-10), Inspector Baldev Singh (PW-11) and Dr. F.R. Nirala (PW -12). The appellant did not examine any witness in his defence. 3. Shri J.R. Verma, learned counsel appearing for the appellant argued that the appellant has been falsely implicated. The prosecution has relied upon evidence of Ram Kumar Kashyap (PW-7), but on the basis of his evidence the prosecution has not been able to prove that the appellant killed the deceased. The statement of Ram Kumar Kashyap (PW-7) under Section 161 Cr.P.C. was recorded after three days of the incident. Ram Kumar Kashyap (PW-7) did not assign any reason for his 3 days late disclosure, therefore, his conduct is unnatural and highly suspicious; he is untrustworthy and the conviction based upon his such testimonies cannot be sustained. Learned counsel for the appellant placed reliance on Mohamed Ankoos and others Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94 , Dharam and others Vs. State of Haryana, (2007) 15 SCC 241 , Bihari Rai Vs. State of Bihar, (2008) 15 SCC 778 and Nafe Singh Vs. State of Haryana, (2009)12 SCC 408 . 4. On the other hand, Shri Adil Minhaj, learned Panel Lawyer appearing on behalf of the State/respondent opposed these arguments and supported the impugned judgment passed by the learned Additional Sessions Judge. 5. We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No.456/2006. The conviction of the appellant is based on the evidence of Ram Kumar Kashyap (PW-7), memorandum statement of the appellant and recovery of the lathi. 6. In Kusti Mallaiah Vs. State of Andhra Pradesh 2013 Cri. L.J. 3098 (SC), the Hon'ble Supreme Court held as follows: "17. It has been held in catena of decisions of this Court that there is no legal hurdle in convicting a person on the sole testimony of a single witness if his version is clear and reliable, for the principle is that the evidence has to be weighed and not counted. In Vadivelu Thevar v. The State of Madras ( AIR 1957 SC 614 ), it has been held that if the testimony of a singular witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. In Vadivelu Thevar v. The State of Madras ( AIR 1957 SC 614 ), it has been held that if the testimony of a singular witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. In the said pronouncement it has been further ruled 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 the testimony of a single witness. 18. Similar view has been expressed in Lallu Manjhi and another v. State of Jharkhand (2003) 2 SCC 401 : ( AIR 2003 SC 854 ) : (2003 AIR SCW 308), Prithipal Singh and others v. State of Punjab and another (2012) 1 SCC 10 : (2012 AIR SCW 594) and Jhapsa Kabari and others v. State of Bihar (2001) 10 SCC 94 : ( AIR 2002 SC 312 ) : (2001 AIR SCW 5037)." 7. In Ranjit Singh and others Vs. State of Madhya Pradesh, AIR 2011 SC 255 , the Hon'ble Supreme Court held as follows : "19. ........ "There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same when the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident, ........." 8. In Namdeo Vs. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same when the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident, ........." 8. In Namdeo Vs. State of Maharashtra, (2007) 14 SCC 150 , the Hon'ble Supreme Court held that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. It is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. 9. Ram Kumar Kashyap (PW-7) deposed that he had gone to Village Saloni for selling wood along with Ramayan (deceased). The appellant also met them. On being inquired by the appellant, they told that they were searching for a customer for selling the wood. He further deposed that they sold the wood for a consideration of Rs.400/-. Thereafter, they returned to their village. The appellant also came back along with them. He further deposed that the appellant asked Ramayan (deceased) for liquor. The deceased gave a sum of Rs. 100/- to the appellant and asked him to keep Rs.30/- for liquor and return rest of the amount to him. The appellant answered that he had no change, he would return rest of the amount after sometime. He further deposed that they went to the house of the appellant where they had taken tea and he and the deceased proceeded for their village. The appellant also followed them on the way. The appellant refused to return the money to the deceased and some quarrel took place between the deceased and the appellant on the way. The appellant assaulted the deceased with a lathi. The deceased sustained injuries on the temporal region. The deceased fell down and became unconscious. Thereafter, the appellant put his leg on the chest of the deceased and pressed. The appellant assaulted the deceased with a lathi. The deceased sustained injuries on the temporal region. The deceased fell down and became unconscious. Thereafter, the appellant put his leg on the chest of the deceased and pressed. When he tried to intervene and save the deceased, the appellant threatened him of life. 10. Now, we shall examine whether the evidence of Ram Kumar Kashyap (PW-7) is reliable and can be based for conviction? 11. Merg intimation (Ex.-P/13) was recorded on 18-10-2006 at about 15:00 hrs, the dead body was sent to CHC, Palari for postmortem examination, Dr. F.S. Nirala (PW-12) conducted the postmortem examination and gave his report (Ex.-P/22). In Ex.-P/22, it is mentioned that the time passed since death was about within 2 to 3 days. The postmortem was conducted on 19-10-2006. It appears that the deceased died between 16th - 17th of October 2006. Ex.D/2 is case diary statement of Ram Prasad Kashyap (PW-7). According to Ex.-D/2, the date of incident was 17-10-2006. His case diary statement under Section 161 Cr.P.C. is recorded on 19-10-2006. 12. Ram Kumar Kashyap (PW-7) is an important and material witness for the prosecution. His statement was recorded after 3 days of the incident. 13. In Lahu Kamlakar Patil and another Vs. State of Maharashtra (2013) 6 SCC 417 , the Hon'ble Supreme Court observed thus: "23. In Mohd. Khalid v. State of W.B. (2002) 7 SCC 334 : 2002 SCC (Cri) 1734 (SCC pp. 349-50, para 12) .......... The Court observed that mere delay in examination of the witnesses for a few days cannot in all cases be termed fatal so far as prosecution is concerned. There may be several reasons and when the delay is explained, whatever the length of delay, the court can act on the testimony of the witnesses, if it is found to be cogent and credible. ....,...." 26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded." 14. In Balakrushna Swain Vs. The State of Orissa, AIR 1971 SC 804 , the Hon'ble Supreme Court held that unjustified and unexplained long delay on the part of investigating officer in recording statement of material eye-witness u/s 161 Cr.P.C. during investigation of murder case will render evidence of such witness unreliable, because the delay would give an opportunity to concoct a different version than what actually took place. 15. In State of Orissa Vs. Mr. Brahmananda Nanda, AIR 1976 SC 2488 , the eye-witness did not disclose the name of assailant for a day and a half. The Hon'ble Supreme Court held that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be an eye-witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, such nondisclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and the High Court was correct in rejecting it as untrustworthy and in acquitting the accused. 16. In Bachhu Narain Singh Vs. Naresh Yadav and others, AIR 2004 SC 3055 , for over period of one hour while investigating officer was preparing inquest report, no one came before him claiming to be an eye-witness and to lodge report about the occurrence though there were alleged to be an eye-witnesses. 16. In Bachhu Narain Singh Vs. Naresh Yadav and others, AIR 2004 SC 3055 , for over period of one hour while investigating officer was preparing inquest report, no one came before him claiming to be an eye-witness and to lodge report about the occurrence though there were alleged to be an eye-witnesses. The report was lodged after more than one and half hour after the investigating officer came to the place of occurrence. The Hon'ble Supreme Court observed that the presence of informant and alleged eye-witness at the time of occurrence appears to be doubtful. There was serious doubt about presence of the eyewitness at the time of occurrence. 17. We have no doubt to say that no straight-jacket formula can be applied in all cases of late disclosure by eye-witnesses and the credibility of the witnesses is to be judged in the prevailing facts and circumstances of each case. However, the finding should be arrived at keeping in mind the normal human conduct and the probable circumstances including the explanation offered regarding non disclosure of the facts relating to commission of such a heinous offence. 18. Ram Kumar Kashyap (PW-7) deposed that it is true that only he and the deceased had gone to sell wood at Village Saloni. It is also true that he and the deceased were residents of same village and their houses were adjacent to each other. In para-5 of his cross-examination, he deposed that it is true that he did not disclose the incident to anybody for 2 days. It is also true that he was close to the deceased and the deceased taught Ramayan to his daughter. In para 12 of his cross-examination, he deposed that he did not disclose the incident to widow of the deceased and he told a lie to her. In para 11 of his cross-examination, he deposed that on the 3rd day of the incident, at about 4:00 am, he disclosed the incident before Village Sarpanch. But the prosecution did not examine the Village Sarpanch. 19. Ram Kumar Kashyap (PW-7) deposed that the appellant assaulted the deceased with lathi and the deceased fell down. Thereafter the appellant put his leg on the chest of the deceased and pressed the neck of the deceased. But the prosecution did not examine the Village Sarpanch. 19. Ram Kumar Kashyap (PW-7) deposed that the appellant assaulted the deceased with lathi and the deceased fell down. Thereafter the appellant put his leg on the chest of the deceased and pressed the neck of the deceased. But, Doctor F.S. Nirala (PW-12), who conducted the autopsy on the dead body of the deceased, deposed that it is true that there was no sign of throttling. It is also true that there was no injury on the neck of the deceased and specifically deposed that the deceased died due to head injury. The medical evidence also did not support the statement of Ram Kumar Kahsyap (PW-7). There is material contradiction in ocular evidence arid medical evidence. 20. Ram Kumar Kashyap (PW-7) deposed that having seen the assault, he scared and ran away from the place of occurrence and went to his house. He did not disclose about the incident to his family members and also did not disclose to the widow of the deceased and he told a lie to her. He did not try to contact to police. He informed the police on the 3rd day of the occurrence. Therefore, the evidence of Ram Kumar Kashyap (PW-7) cannot be treated as trustworthy and impeccable to record a conviction against the appellant. 21. Ram Kumar Kashyap (PW-7) is a material witness. The prosecution has not offered any proper and plausible explanation relating to delay in recording the statement of Ram Kumar Kashyap (PW-7). In the absence of aforesaid explanation, evidence of Ram Kumar Kashyap (PW-7) appears to be doubtful and cannot be based for conviction. 22. Now, we shall examine whether the prosecution has been able to prove the evidence of extra judicial confession? 23. Feku Ram Yadav (PW-2) and Ram Prasad Kanwar (PW-5) deposed that the appellant made extra judicial confession before them and admitted that he killed the deceased with a Lathi and he left the Lathi at the place of occurrence. Ram Prasad Kanwar (PW-5) deposed that the appellant admitted before the Panchas that he assaulted the deceased with the lathi and legs. He further deposed that the extra judicial confession was recorded vide EX.P.-4. 24. ASI P.S. Sen (PW-4) deposed that he had recorded extra judicial confession of the appellant vide Ex.P.-4. EX.P-4 bears signatures of the appellant and witnesses. Ram Prasad Kanwar (PW-5) deposed that the appellant admitted before the Panchas that he assaulted the deceased with the lathi and legs. He further deposed that the extra judicial confession was recorded vide EX.P.-4. 24. ASI P.S. Sen (PW-4) deposed that he had recorded extra judicial confession of the appellant vide Ex.P.-4. EX.P-4 bears signatures of the appellant and witnesses. But, looking to the evidence of ASI P.S. Sen (PW-4), it appears that Ex.P-4 was recorded by ASI P.S. Sen (PW-4). 25. In Madhu Vs. State of Kerala, (2012) 2 SCC 399 , the Hon'ble Supreme Court observed thus: "47. The most significant issue in the present controversy is the veracity of the confessional statements made by the accused Madhu and Sibi before P.J. Thomas PW-21, Circle Inspector of Police on 13-5-1998. It is evident that the aforesaid statements were made by the accused before a police officer while the accused were in custody of the police. Section 25 of the Evidence Act, postulates that a confession made by an accused to a police officer cannot be proved against him. Additionally, Section 26 of the Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him. It is evident from the factual position narrated hereinabove, that the statements made by the accused Madhu and Sibi were made to a police officer while the accused were in police custody. It is, therefore, apparent that in terms of the mandate of Section 25 and 26 of the Evidence Act, the said statements could not be used against accused Madhu and Sibi. But then, there is an exception to the rule provided for by Section 25 and 26 aforesaid, under Section 27 of the Evidence Act." 26. In the instant case, the so called extra judicial confession was made by the appellant in presence of police officer, therefore, the extra judicial confession recorded vide Ex.P-4 is not admissible in evidence. In view of the above, it cannot be said that the appellant made extra judicial confession. 27. The evidence adduced by the prosecution against the appellant is the memorandum statement of the appellant and the recovery of lathi. 28. ASI P.S. Sen (PW-4) deposed that memorandum statement of the appellant was recorded by him under Section 27 of the Evidence Act, vide Ex.P-3. At the instance of the appellant, the lathi was seized vide Ex.P-6. 27. The evidence adduced by the prosecution against the appellant is the memorandum statement of the appellant and the recovery of lathi. 28. ASI P.S. Sen (PW-4) deposed that memorandum statement of the appellant was recorded by him under Section 27 of the Evidence Act, vide Ex.P-3. At the instance of the appellant, the lathi was seized vide Ex.P-6. Feku Ram Yadav (PW-2), also deposed that the memorandum statement of the appellant was recorded by the Police vide Ex.P-3. Dheerendra Kumar Thakur (PW-3) deposed that the lathi was seized. At the instance of the appellant, the lathi was seized from the Forest. But, in para-3 of his cross-examination, he deposed that it is true that no lathi was seized from the appellant. The lathi was seized from the place of occurrence. 29. The Lathi and other seized articles were sent to Forensic Science Laboratory (FSL), Raipur for chemical examination. But, the prosecution could not produce any report of the FSL. The prosecution has not been able to prove that the seized lathi was stained with human blood. The prosecution has also not been able to prove the origin of the blood on the seized lathi, therefore, merely seizure of the lathi, at the instance of the appellant, is not sufficient for conviction for the crime in question. 30. The evidence of Ram Kumar Kashyap (PW-7) is suspicious and not reliable and the evidence of extra judicial confession is not admissible in evidence. The memorandum of the appellant and recovery of lathi at his instance are not of conclusive nature. The evidence of Ram Kumar Kashyap (PW-7) is not trustworthy and clinching, therefore, cannot be based for conviction. Hence, even by a stretch of imagination, it cannot be held that the aforementioned circumstances clearly point towards guilt of the appellant. 31. Thus, after looking the matter from all angles, we are of the considered opinion that the conviction of the appellant cannot be upheld. 32. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are hereby set aside. The appellant is acquitted of the charge framed against him. It is stated that the appellant is in jail. He be set at liberty forthwith, if not required in any other case. Appeal Allowed.