JUDGMENT 1. - Rafiq Ahmad Khan (P.W.9) son of deceased Shamsher Ali Khan had presented a written report (Ex.P.6) before Ugam Chand (P.W.25) who was then posted Station House Officer, Laxmangarh. On the basis of said written report, formal FIR (Ex.P.7) bearing FIR no.37/03 was registered at Police Station Laxmangarh, District Sikar for offences under Sections 143, 341, 307, 382 IPC. Subsequently, offence under Section 302 IPC was also added. Investigating agency had sent eight persons namely Shiv Bhagwan S/o. Laxman Singh, Vidyadhar S/o. Harphool, Mahesh Kumar S/o. Debu Ram, Ramotar S/o. Sewaram, Srichand @ Shiv Chand S/o. Bhinwaram, Nemi Chand @ Arvind S/o. Surajmal, Shiv Chand S/o. Lachharam and Sri Ram S/o. Motaram as accused for the trial. The trial of the case was conducted by the Additional Sessions Judge No.2, Sikar. The said court vide impugned judgment dated 17.8.2010 convicted Shiv Chand S/o Lachha Ram, Shiv Bhagwan s/o Laxman Singh and Nemi Chand @ Arvind s/o Surajmal for offences under Sections 302/149, 148 and 341 IPC. The said accused were acquitted of offence under Section 323 IPC. Remaining accused Vidyadhar S/o. Harphool, Mahesh Kumar S/o. Debu Ram, Ramotar S/o. Sewaram, Srichand @ Shiv Chand S/o. Bhinwaram and Sri Ram S/o. Motaram were acquitted of offences under Section 302 or 302/149, 148, 323, 341 IPC. State of Rajasthan has not filed any appeal to assail the acquittal of the acquitted accused.2-3. Aggrieved against their conviction and sentence, Shiv Chand and Shiv Bhagwan have preferred D.B. Criminal Appeal No.656/2010 and Nemi Chand @ Arvind has instituted D.B. Criminal Appeal No.742/2010. Since in both the appeal common judgment has been assailed and it has been prayed that conviction and sentence awarded by the trial court be set aside, we shall decided both the appeals together. Written report (Ex.P.6) presented by Rafiq Ahmad Khan (P.W.9) when translated into English reads as under:- "To, The S.H.O., P.S. Laxmangarh. Sir, It is submitted that I Rafiq Ahmad Khan, Kayamkhani, is resident of Jalod. In the night my father Shamsher Ali Khan who had retired as a police constable, received a telephonic call from daughter of Buddha Ram Jat from Balara. She informed that 3-4 persons in the evening at dark time, had taken Budhha Ram to liquor vend and after wrongfully confining him in a room, had given him beating. My father had remained posted at Balara Police Chowki on many occasions for long. She informed that 3-4 persons in the evening at dark time, had taken Budhha Ram to liquor vend and after wrongfully confining him in a room, had given him beating. My father had remained posted at Balara Police Chowki on many occasions for long. Therefor, he was having good friendly and family relations with Buddha Ram. My father called Jeep of Yunus Khan son of Ummed Khan resident of our village and in the night at about 9.30 PM after taking me along in Bolero Jeep of Yunus Khan proceeded towards Balara. Yunus Khan driver was present in the Jeep. At about 10.15 PM we reached at the house of Buddha Ram at Balara which is situated near to the police post. We have parked the Jeep in front of the police post. Buddha Ram met us at his house and informed that Srichand Jat r/o Posani, Pappu s/o Srichand r/o Posani, Nemi Chand Jat r/o Gadhwalo Ki Dhani Tan Rangwa had forcefully taken him to the liquor vend and had wrongfully confined him in a room. After sometime, a fat boy named Shiv Bhagwan had given him beating. After sometime Vimal Kumar Joshi, Sarpanch of the village came and after prevailing over Srichand and Nemi Chand etc., he got Buddha Ram released. We had a talk with Buddha Ram and his family for 10-15 minutes. Thereafter we returned to the police post. My father told me since we have come in a vehicle, his personal belongings are lying in the police post and he shall pick-up the same. We had gathered the goods and had kept them in the Jeep. At the police post we had spent 1-11/2 hours while talking with others and collecting goods. At about 11.15 PM we left in the Jeep for our village. While we had gone a little ahead and were about to go on the main road, we found that in the way big stones were kept and 3-4 persons were standing there. My father asked the driver to stop the vehicle and we both alighted from the vehicle and found that Srichand Jat, his son Pappu both residents of Posani, Nemi Chand Jat r/o Gadwalo Ki Dhani and one fat boy named Shiv Bhagwan were standing there with lathies. Srichand told father that Shamsher Ji as to why you had gone to the house of Buddha Ram. Srichand told father that Shamsher Ji as to why you had gone to the house of Buddha Ram. He is selling illicit liquor. We had brought him in the liquor vend and threatened him. You should not have come. My father told him that he received a telephonic call therefore, he had come to acquaint himself with the facts and thereafter gathering my goods from the police post, I am going to my village. Meanwhile from the side of Mukandgarh four Jeeps loaded with persons armed with lathis, spears and sword came. They came on two D.I. Jeeps, one small Jeep and one half body Jeep. Immediately after arrival 2-3 persons each had caught hold of me, Yunus Khan and my father. They started giving us beating. They gave injuries to me and the driver with slaps and fists. Two persons had caught hold of hands of my father. Shiv Chand, Pappu, Nemi Chand and Shiv Bhagwan were causing injuries with lathis. Srichand gave a blow with lathi in his both hands forcefully on the head of my father with an intention to kill him. Nemi Chand also had given 2-3 blows with lathi on the head of my father. My father stopped the blows with his hands. Pappu, Shiv Bhagwan etc. caused injuries with lathi on the shoulder and waist of my father due to which he fell down. Nemi Chand said to other people that he should not escape otherwise he will get us killed. While my father was lying fallen, others also caused him injuries with lathis. Then they left me and Yunus, we ran towards the police post Balara. All accused left the place of occurrence in respective Jeeps towards Laxmangarh. Number of persons had gathered. After inquiry, it was learnt that the above said persons who gave beating included Srichand Jat Bidsar, Mahesh Jat Sankhu, Vidyadhar, Mahaveer Jat r/o Posani. 20-30 persons were involved in giving beating. Their names are not known to me. After seeing them I can identify them. In the lights of the Jeep and in moonlight night, I have seen them very well. I used to often visit my father in police post. Near to the police post is liquor vend. Hence, Srichand, Pappu, Nemi Chand and Shiv Bhagwan are known to me. I and Yunus had brought my father. Legal action be taken. In the lights of the Jeep and in moonlight night, I have seen them very well. I used to often visit my father in police post. Near to the police post is liquor vend. Hence, Srichand, Pappu, Nemi Chand and Shiv Bhagwan are known to me. I and Yunus had brought my father. Legal action be taken. My father received many injuries and blood is oozing from his head. He is unconscious. Watch of his hand and money from his pocket are missing. Regarding the amount of pocket, he can only disclose. Sd/- Rafiq Ahmad Khan dated 16.2.2003" 4. It is to be noted that occurrence in the present case has taken place on the intervening night of 15.2.2003 and 16.2.2003. As per the FIR, the Jeep was stopped on 15.2.2003 at 11.15 PM. Rafiq Ahmad Khan (P.W.9) had submitted the written report (Ex.P.6) on 16.2.2003 at 12.50 AM. After the FIR was registered, said report had reached the Ilaka Magistrate on 18.2.2003 at 3.00 PM. It is to be noted that in the FIR, Buddha Ram, Yunus Ali besides the complainant Rafiq Ahmad Khan are stated to be eye-witnesses of the occurrence.5. In the present case, Shamsher Ali Khan as per post-mortem report (Ex.P.34) had died on 20.4.2003 at 2.15 PM. Thus, in the present case death had taken place after two months and five days of the occurrence. Two other eye-witnesses namely Buddha Ram (P.W.2) and Yunus Ali (P.W.5) had turned hostile and have not supported the prosecution case. 6. Shri Biri Singh Sinsinwar learned senior counsel appearing for the appellants Shiv Chand and Shiv Bhagwan and Shri A.K. Gupta learned counsel appearing for the appellant Nemi Chand @ Arvind relying upon the medical evidence have seriously doubted presence of Rafiq Ahmad Khan (P.W.9) who remain to be solitary eye-witness who had deposed against the accused. Therefore, before we proceed to examine the testimony of the eye-witness, we shall take note of the medical evidence.7. Dr. Mohammad Farooq (P.W.33) on 16.2.2003 at 2.30 AM had medico-legally examined Shamsher Khan son of Fareed Khan and as per injury report (Ex.P.41) had noted following injury on his person:- "Lacerated wound 4 x 1/2 x skin deep on vertex of scalp anterior." 8. Dr. Dr. Mohammad Farooq (P.W.33) on 16.2.2003 at 2.30 AM had medico-legally examined Shamsher Khan son of Fareed Khan and as per injury report (Ex.P.41) had noted following injury on his person:- "Lacerated wound 4 x 1/2 x skin deep on vertex of scalp anterior." 8. Dr. Mohammad Farooq (P.W.33) has further stated that the injured was got admitted at 2.00 AM, he had examined him at 2.30 AM and B.P. and pulse of the injured was normal, but he was unconscious and he was referred to the SMS Hospital, Jaipur. 9. Dr. Ashok Gupta (P.W.37) while appearing in the court stated that on 16.2.2003 he was posted as Assistant Professor in the Department of Neurosurgery, Unit-2 of SMS Hospital, Jaipur. On the said date, Shamsher Khan was admitted in emergency ward of Neurosurgery Department and he was operated on 16.2.2003 and he died in the hospital on 20.4.2003. This witness proved on record operation notes (Ex.P.38). This witness further stated that operation notes are in the hands of Dr. Shankar who was assisting him. The witness also proved the bed head ticket (Ex.P.39). The witness admitted that in the bed head ticket, a query has been raised regarding aspiration pneumonia. The doctor admitted that as per record, patient was treated for tuberculosis. In exact words, the witness stated ;g lgh gS fd fjdkMZ ds vuqlkj ejht dks Vhch dk bykt fn;k x;k FkkA 10. The doctor further stated that as per record, patient was referred to Cardiology Department. The witness further stated that in ECG qua the patient, tachycardia was recorded. The witness further admitted that on 8.4.2003 the patient was referred for chest review to Dr. Virendra Singh and on 8.4.2003 his pulse was feeble. Witness further admitted that due to damage to the lungs, the patient was diagnosed for pneumothorex. He was referred to the Heart Department. 11. Dr. P.C. Vyas (P.W.16) being posted as Assistant Professor and being member of the medical board on 28.2.2003 had prepared the injury report of Shamsher Khan and as per injury report (Ex.P.32), he had found following nine injuries on the person of Shamsher Khan:- "1. Stitched wound 31 cm. long extending from Lt. frontal region, then vertically to Lt. parietal region and then downwards to Lt. temporal region, ending near tragics of Lt. ear. 2. Stitched wound 4 cm. long, present on Rt. fronto-parietal regions. 3. Stitched wound 31 cm. long extending from Lt. frontal region, then vertically to Lt. parietal region and then downwards to Lt. temporal region, ending near tragics of Lt. ear. 2. Stitched wound 4 cm. long, present on Rt. fronto-parietal regions. 3. Lesion 1 x 3/4 cm on Lt. side occipital region with partly peeled off blackish hard scab. 4. Abrasion 11/2 x 1/2 cm on Rt. tibial skin upper ⅓rd with partly peeled off blackish hard scab. 5. Abrasion 2 x 11/2 cm on Lt. Tibial skin middle ⅓rd with partly peeled off blackish hard scab. 6. Faint bruise 4 x 11/2 cm, faint yellowish in colour on Lt. side nape of neck just above supra clavicular region. 7. Bruise 41/2 x 2 cm, faint yellowish in colour, present on Rt. side of back of chest lower ⅓rd portion. 8. Abrasion 11/2 x 1/2 cm with blackish hard retracted scab, on tip of Rt. middle finger, on palmer aspect. 9. Lesion 7 x 6 cm on Rt. buttock with slough formation and pus at places." 12. As stated earlier, Shamsher Ali Khan had expired in the hospital on 20.4.2003. In the post-mortem report, Doctor had noticed ten injuries. Most of the injuries specify surgical wounds. As per opinion of the medical board, cause of death of Shamsher Khan was injury to head and secondary infection. 13. Thus, from the above medical record, it is evident that at the time of first examination of deceased Shamsher Khan on the intervening night on 15.2.2003 and 16.2.2003 at 2.30 AM only one injury was found on the head of Shamsher Khan. He was immediately taken to the SMS Hospital, Jaipur where he was operated by the Neurosurgeon and is skull was opened and he was operated. On 28.2.2003, Dr. P.C. Vyas (P.W.16) had noted nine injuries on the person of deceased Shamsher Khan. A perusal of the injuries reveal that injuries No.1 and 2 were stitched wounds and others were abrasions and bruises on the non-vital parts of the body. Shamsher Khan had expired on 20.4.2003. In the post-mortem report, ten injuries were noted and most of the injuries were surgical wounds and abrasions and bruises.14. Now we shall note the testimony of material witnesses.15. Shamsher Khan had expired on 20.4.2003. In the post-mortem report, ten injuries were noted and most of the injuries were surgical wounds and abrasions and bruises.14. Now we shall note the testimony of material witnesses.15. Chhoti @ Goti daughter of Buddha Ram who as per written report (Ex.P.6) had made a telephonic call to Shamsher Ali Khan, while appearing as P.W.1 in the court, stated that she had not talked with anybody. This witness was declared hostile by the prosecution and was confronted with her previous statement. In cross-examination by the learned Public Prosecutor, she admitted that she knew Shamsher Khan. She further admitted that her father knew liquor contractor. She admitted having made telephonic call to Shamsher Khan. She admitted that at 10.30-11.00 PM Shamsher Khan had come to her house and after taking tea, he left her house. Thus, this witness admits that Shamsher Khan in pursuance of telephonic call made, came to her house and left the house at about 10.30 or 11.00 PM. This witness has not stated anywhere that Shamsher Khan was accompanied by Rafiq Amhad Khan (P.W.9).16. Buddha Ram (P.W.2) stated that name of his son is Bhanwarlal and he was doing work at liquor contractor. 4-5 years ago he was taken to the godown of liquor, but as to who had taken him he had not disclosed. He further stated that person of liquor contractor had said nothing to him. The witness was declared hostile and was cross-examined by the learned Public Prosecutor. It is to be noted that Buddha Ram (P.W.2) has also not stated anything regarding presence of Rafiq Ahmad Khan (P.W.9) 17. Bhanwarlal (P.W.3) however, has admitted that Shamsher came in a vehicle to his house. He was accompanied by his driver Yunus and the complainant Rafiq Ahmad Khan (P.W.9). This witness stated that 30-40 persons came. They caused injuries, but he cannot identify the persons because at that time it was night. The witness was declared hostile to the prosecution and was cross-examined by the learned Public Prosecutor. However, this witness was confronted with his previous statement (Ex.P.3A and P.4A) recorded by the police under Section 161 Cr.P.C. wherein presence of Rafiq Ahmad was not mentioned. They caused injuries, but he cannot identify the persons because at that time it was night. The witness was declared hostile to the prosecution and was cross-examined by the learned Public Prosecutor. However, this witness was confronted with his previous statement (Ex.P.3A and P.4A) recorded by the police under Section 161 Cr.P.C. wherein presence of Rafiq Ahmad was not mentioned. The relevant portion of the testimony of Bhanwarlal (P.W.3) reads as under:- " eSaus esjs iqfyl c;ku izn'kZ ih&4, dk fgLlk th ls ,p esa eSaus 'ke'ksj [kka ds lkFk jQhd dk vkuk Hkh fy[kk;k Fkk] izn'kZ ih&4, esa th ,p fgLlk esa vdsys 'ke'ksj dk uke gh D;ksa fy[kk eq>s irk ughaA " 18. Thus, it is to be noted that Chhoti @ Goti (P.W.1), Buddha Ram (P.W.2) have stated nothing regarding presence of Rafiq Ahmad Khan (P.W.9) at the place of occurrence, whereas Bhanwarlal (P.W.3) admitted his presence, but he was confronted with his previous statement (Ex.P.4A) recorded under Section 161 Cr.P.C. by the police where presence of Rafiq Ahmad Khan (P.W.9) was not mentioned. 19. Vimal Kumar (P.W.4) stated that at the relevant time his wife was Sarpanch of Balara. Before four and a half years, he had got Buddha Ram released from the godown of liquor contractor. Later he was informed by the police that Shamsher Khan had died. This witness has also not stated anything regarding presence of Rafiq Ahmad (P.W.9).20. Yunus Ali (P.W.5) driver of the vehicle in court categorically stated that only he and Shamsher Khan had left the village for Balara. The witness stated in court that he had accompanied Shamsher Khan and except him and Shamsher, nobody else was present. The witness in court stated as under:- " gekjs nks ds vykok gekjs lkFk vkSj dksbZ ugha FkkA 'ke'ksj flag esjs ls fdlh ls feyus dh dgdj ikap feuV ds fy, ogka ls pyk x;k eSa ugha ij xkM+h esa jgkA " 21. Thus, Yunus Ali (P.W.5) has specifically denied presence of Rafiq Ahmad Khan (P.W.9) at the spot.22. Now we shall take note of testimony of Rafiq Ahmad (P.W.9) solitary eye-witness. This witness in court stated that his father was employed in police. He received telephonic call from daughter of Buddha Ram at 8.45 PM. Thus, Yunus Ali (P.W.5) has specifically denied presence of Rafiq Ahmad Khan (P.W.9) at the spot.22. Now we shall take note of testimony of Rafiq Ahmad (P.W.9) solitary eye-witness. This witness in court stated that his father was employed in police. He received telephonic call from daughter of Buddha Ram at 8.45 PM. She informed that her father was taken away by Shiv Chand, Nemi Chand, Pappu and he is confined in the godown of liquor contractor and was given beating. His father alongwith him and Yunus Ali left in a Jeep for Balara. His father was having family relations with Buddha Ram. The witness further stated that after meeting Buddha Ram, his father went to the police post where goods of his father were lying. After gathering the goods, they left the police post. After some distance, passage was blocked, by keeping stones on the road and Shiv Chand, Nemi Chand, Shiv Bhagwan, Pappu were standing there armed with lathi. Shiv Chand told his father that he should not have come as Buddha Ram (P.W.2) was selling liquor. He further stated that four vehicles came and number of persons came armed with lathis. This witness stated that Shiv Chand, Nemi Chand, Pappu, Shiv Bhagwan had caused lathi blows on the person of his father. The witness further stated that Shiv Chand gave two lathi blows on the head of his father, Nemi Chand also gave lathi blow on the head of his father, Shiv Bhagwan and Pappu also gave blows on his shoulder and waist. His father fell down. This witness further stated that he and Yunus were given slaps and fists blows.23. What is to be noted is that the witness has made departure from the written report (Ex.P.6). In Exhibit-P.6, this witness had stated that first Srichand gave a lathi blow on the head of his father. But in court this witness has omitted name of Srichand. This witness further stated that he and Yunus were given slaps and fists blows.23. What is to be noted is that the witness has made departure from the written report (Ex.P.6). In Exhibit-P.6, this witness had stated that first Srichand gave a lathi blow on the head of his father. But in court this witness has omitted name of Srichand. The witness was confronted with the written statement (Ex.P.6) and the witness had stated as under: " esjs firk th xkM+h jksddj uhps mrjs rc eSaus f'kopan dk ogka [kM+k gksuk vkSj f'kouan }kjk esjs firk th dks ;g dguk fd vki Hkwnkjke ds ?kj D;ksa vk;s fy[kk fn;k Fkk] fjiksVZ izn'kZ ih&6 esa ;g rF; D;ksa ugha fy[kk gS esjs dks irk ugha gSA eSaus fjiksVZ izn'kZ ih&6 ds fgLlk th ls ,p esa " Jhpan tkV-----[kM+s Fks " esa Jhpan dk uke ugha fy[kk;k A eSaus rks f'kouan dk uke fy[kk;k FkkA izn'kZ ih&6 dk fgLlk vkbZ ls ts Hkh Jhpan dk uke ugha fy[kk;k f'kouan dk uke fy[kk;k FkkA " 24. Thus, it is apparent that the witness has substituted the author of the fatal injury. As per written report (Ex.P.6), the first injury was caused by Srichand. However, in court this witness omitted name of Srichand and substituted the name of Shiv Chand. As per Dr. Mohammad Farooq (P.W.33) who at first in time on 16.2.2003 at 2.30 AM had examined deceased there was only one injury on the head of Shamsher Khan deceased. Author of said injury in court stand substituted. What is required for us to be noted is the material evidence of two witnesses Constable Jaipal Singh (P.W.11) and Ganesh Singh (P.W.12). 25. Jaipal Singh (P.W.11) stated that on 15.2.2003 he was posted as Constable at Police Post, Balara. This witness stated that in night at 11.00 PM, Shamsher came at the Police Post. He stayed for 5-10 minutes. He had come to pick up his luggage. After 10-15 minutes driver of the Jeep came and stated that Shamsher was beaten by the men and liquor contractor. The witness further stated that he ran towards the place of occurrence and found Shamsher unconscious. They brought Shamsher to Laxmangarh Hospital. Thus, this witness ruled out presence of Rafiq Ahmad Khan (P.W.9).26. Ganesh Singh (P.W.12) also stated that on 15.2.2003 he was posted as Constable at Police Post Balara. Shamsher came at police post Balara. The witness further stated that he ran towards the place of occurrence and found Shamsher unconscious. They brought Shamsher to Laxmangarh Hospital. Thus, this witness ruled out presence of Rafiq Ahmad Khan (P.W.9).26. Ganesh Singh (P.W.12) also stated that on 15.2.2003 he was posted as Constable at Police Post Balara. Shamsher came at police post Balara. He picked up his luggage. After 15-20 minutes driver of the vehicle came and stated as under:- " eq'kh th Bsds okyksa us 'ke'ksj dks ekjihV fy;kA ;g dgdj og Hkkx x;kA eSa o t;iky mBdj x;s rc foey th ljiap ds ?kj ds ikl VsyhQksu dk iksy gS mlds ikl 'ke'ksj us iksy ds xQ~Qh ?kky j[kh Fkh mldks cryk;k og cksyk ughaA " 27. The witness further stated that entry was made in the Roznamcha that he along with Jaipal had taken Shamsher to Laxmangarh Hospital. The witness further stated that Roznamcha has not been produced in the court. Thus, Ganesh Singh (P.W.12) also rule out present of Rafiq Ahmad Khan (P.W.9) at the spot. Both Constable Jaipal (P.W.11) and Constable Ganesh Singh (P.W.12) who were erstwhile colleagues of deceased Shamsher Khan impliedly contradict Rafiq Ahmad (P.W.9) who deposed in court that he alongwith police post had stayed for 1 or 11/2 hour and had chatted with persons present at police post.28. In this context, we will notice the testimony of Ugam Chand (P.W.25) who in cross-examination stated that in the occurrence only one injury was there on the head of Shamsher and he was unconscious and at the time of presenting FIR, there was no injury on the person of Rafiq Ahmad (P.W.9). The witness stated as under:- " ysfdu 'ke'ksj ds flj esa ,d pksV Fkh og csgks'k gkyr esa FkkA ;g lgh gS fd ,Q0vkbZ0vkj0 nsrs le; jQhd ds 'kjhj ij Hkh dksbZ pksV ugha Fkh vkSj u gh mlus eq>s dksbZ pksV gksuk crk;k FkkA " 29. It is to be further noted that Ugam Chand (P.W.25) had examined and prepared the site plan (Ex.P.5) on 16.2.2003. Site plan (Ex.P.5) bear date 16.2.2003 but Ugam Chand (P.W.25) in court says he prepared the same on 18.2.2003.30. Learned counsel for the appellants have in alternative submitted that only one injury was noticed on the head of deceased Shamsher Khan. He died after more than two months of the occurrence due to secondary infection. Site plan (Ex.P.5) bear date 16.2.2003 but Ugam Chand (P.W.25) in court says he prepared the same on 18.2.2003.30. Learned counsel for the appellants have in alternative submitted that only one injury was noticed on the head of deceased Shamsher Khan. He died after more than two months of the occurrence due to secondary infection. It is further submitted that author of the fatal injury as per FIR is Srichand who has been acquitted by the trial court. Therefore, it is contended that in the present case, no offence under Section 302 IPC is made out. At the most, the offence if any will fall under Section 304 Pt.I IPC.31. We shall first deal with the first argument raised by the learned counsel for the appellants regarding presence of Rafiq Ahmad Khan (P.W.9) at the spot. Having taken note of entire prosecution evidence, we are of the view that Rafiq Ahmad Khan (P.W.9) had not witnessed the occurrence. He was imported as a witness at highly belated stage. The above conclusion is based on the following circumstances:- (a) Chhoti @ Goti (P.W.1) and Buddha Ram (P.W.2) have not stated anything regarding presence of Rafiq Ahmad Khan (P.W.9) at the spot. Bhanwarlal (P.W.3) though admitted his presence, but he was confronted with his statement recorded under Section 161 Cr.P.C. by the police where presence of Rafiq Ahmad Khan (P.W.9) was not mentioned. Yunus Ali (P.W.5) driver of the vehicle has specifically stated that he alone was present at the place of occurrence with Shamsher Ali. Vimal Kumar (P.W.4) has also not stated anything regarding presence of Rafiq Ahmad Khan (P.W.9). Thus, from no source presence of Rafiq Ahmad Khan (P.W.9) has been corroborated. (b) Rafiq Ahmad Khan (P.W.9) stated in court that in four vehicles, 20-25 persons came armed with iron rod, sword and sphere. At the behest of this witness, eight persons were sent for trial and five have been acquitted. Therefore, qua five acquitted accused, Rafiq Ahmad Khan (P.W.9) has not been believed. Furthermore, this witness in court has substituted author of the solitary fatal injury. In the written report (Ex.P.6) he stated that Srichand had given first lathi blow on the head of his father. However, in court this witness stated the name of accused who caused first injury on the head of deceased as Shiv Chand. Furthermore, this witness in court has substituted author of the solitary fatal injury. In the written report (Ex.P.6) he stated that Srichand had given first lathi blow on the head of his father. However, in court this witness stated the name of accused who caused first injury on the head of deceased as Shiv Chand. We have reproduced the relevant portion in the earlier part of this judgment. Thus, the witness has substituted the author of the fatal injury. (c) Dr. Mohd. Farooq (P.W.33) in the first medico-legal examination in injury report (Ex.P.41) had noted only one injury on the head of deceased Shamsher. For this injury in court Rafiq Ahmad Khan (P.W.9) has named four persons. Pappu son of Srichand who was not sent for the trial. Srichand was absolved by the witness himself and in the court witness attributed fatal injury to Shiv Bhagwan and Nemi Chand @ Arvind. Thus, by naming various persons, the witness kept the room open to implicate, or absolve or name the accused according to his own whim. (d) In the present case, even though it is stated that statement of the accused was recorded on 16.2.2003 at 12.50 AM, special report had reached the Ilaka Magistrate on 18.2.2003 at 3.00 PM. Investigating Officer as per his deposition in court also prepared site plan of the spot on 18.2.2003, though site plan (Ex.P.5) bear date 16.2.2003. Thus, it can be safely inferred that the FIR was lodged at a belated stage by introducing Rafiq Ahmad (P.W.9) as witness. (e) Rafiq Ahmad (P.W.9) who had accompanied his father and in whose presence father was being caused injury had not suffered any scratch in the occurrence. It is highly improbable that the witness who had intervened to save his father, will not receive any injury. Though the witness stated that he was given slaps and fists blows, he was not medico-legally examined. (f) Final blow to rule out the presence of the witness Rafiq Ahmad Khan (P.W.9) has been given by two constables, Jaipal Singh (P.W.11) and Ganesh Singh (P.W.12) in their testimony in the court. They have admitted presence of Yunus Ali (P.W.5) and have stated that driver of the vehicle informed them regarding causing of injury to Shamsher and they had brought Shamsher Khan to the hospital at Laxmangarh. They have admitted presence of Yunus Ali (P.W.5) and have stated that driver of the vehicle informed them regarding causing of injury to Shamsher and they had brought Shamsher Khan to the hospital at Laxmangarh. It is to be noted that statement (Ex.D.4) of Ganesh Singh (P.W.12) was also recorded by the investigating agency under Section 161 Cr.P.C. In Exhibit-D.4, Ganesh Singh (P.W.12) has stated that he has made entry in the Roznamcha regarding taking Shamsher to the hospital. But the said Roznamcha was withheld from the court. 32. Thus, Rafiq Ahmad (P.W.9) was not present at the place of occurrence and was introduced later as a witness.33. We may note that Rafiq Ahmad (P.W.9) is a solitary witness regarding sequence of injuries and injuries caused by the present appellants. The Hon'ble Supreme Court in the case of Vadivelu Thevar v. The State of Madras, reported in A.I.R. 1957 S.C. 614 (V 44 C 91 Sept.), qua solitary eye-witness has observed as under:- "Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:- (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution." 34. For numerous reasons given by us above and taking into consideration the parameters given by the Hon'ble Apex Court qua solitary eye-witness, we are of the view that presence of Rafiq Ahmad (P.W.9) at spot is highly doubtful. It is belied by his conduct, and quality of evidence Once we disbelieve the testimony of solitary eye-witness Rafiq Ahmad (P.W.9), no case is made out to sustain the conviction of accused-appellants in the present case.35. Consequently, we accept both the appeals. The conviction and sentence awarded upon the appellants Nemi Chand @ Arvind, Shiv Chand and Shiv Bhagwan by the trial court is set aside. They are acquitted of the charges framed against them.36. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellants, namely Nemi Chand @ Arvind, Shiv Chand and Shiv Bhagwan, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount each, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal allowed. *******