Dharnidhar Jha, J. – The solitary appellant was put on trial by the learned 7th Additional Sessions Judge, Bhagalpur after being charged with committing offences under Sections 148, 302/149, 379/149, 364/149 and 201/149 of the Indian Penal Code besides being charged also under Section 27 of the Arms Act. He was convicted of all the offences he had been charged with, except that under Section 379/149 of the Indian Penal Code. The appellant was heard on sentence on 9.11.2009 and was directed to suffer rigorous imprisonment for life under Sections 302/149 as also to pay a fine of Rs. 5,000/- else to suffer simple imprisonment for six months. The order of sentence passed upon the appellant under Section 148 of the Indian Penal Code directed him to suffer rigorous imprisonment for three years. The appellant was directed to suffer rigorous imprisonment for five years and to pay a fine of Rs. 2,000/- else to suffer simple imprisonment for three months on account of having been convicted under Sections 364/149 of the Indian Penal Code. As regards the conviction of the appellant under Sections 201/149 of the Indian Penal Code, the learned trial judge directed him to suffer rigorous imprisonment for five years and also to pay a fine of Rs. 2,000/- else to suffer simple imprisonment for three months. On account of being found guilty of committing the offence under Section 27 of the Arms Act, the appellant was directed to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- else to suffer simple imprisonment for three months. The appellant has appealed against the judgment of conviction and order of sentence which was passed by the learned trial judge against him. 2. Nasiruddin (P.W.4) filed a typed report addressed to the Superintendent of Police, Bhagalpur alleging that on 24.10.1989 at about 3.30 P.M. a mob of 200 persons entered in the Gali near his house abusing persons of muslim community and at the same time exploding bombs. Hearing the hulla and the sound of explosion of bombs, he came out to find that his son Md. Qayumuddin @ Qayum, aged about 15 years had been caught by the rioters and this appellant fired at Md. Qayum as a result of which he fell down and started shouting. Hearing the hulla and the sound of explosion of bombs, he came out to find that his son Md. Qayumuddin @ Qayum, aged about 15 years had been caught by the rioters and this appellant fired at Md. Qayum as a result of which he fell down and started shouting. P.W.4 stated that when he and others attempted to save him, the rioters started firing indiscriminately and some of the shots had hit his wall. The mob dragged and took away Qayumuddin, the son of P.W.4. 3. The informant suspected that the rioters had disposed of the dead body of his son. He further stated that he had identified at least 10 persons by their face, but did not know their names and knew this appellant only from before because he was a resident of his village and was also a notorious fellow of the locality. 4. As regards the delay in lodging the report, the informant stated that curfew had been imposed and he could not reach the police station out of fear. While concluding his report, the informant stated that the rioters had looted away the properties from the shop of one Md. Nasir and had also set the same at fire as a result of which loss of Rs. 35,000/- due to burning of the shop and further loss of Rs. 15,000/- for burning the stationary shop of Md. Nasir had been caused to him. 5. It appears that the First Information Report on the basis of the typed report of P.W.4 was drawn up on 07.02.1999 and the investigation was handed over to S.I. S.D. Singh by the Officer-in-Charge of Kotwali (Katarpur) police station in Bhagalpur. The Investigating Officer S.I. S.D. Singh has not been examined and in his place the other Investigating Officer, namely, Javed Mahmood deposed in the court. He stated that he took over the investigation from one Vinod Kumar, the Officer-in-Charge of Katarpur police station on 21.06.2006 and perused the case diary in respect of the investigation carried out by the previous Investigating Officer. He also perused the description of the place of occurrence noted in the case diary and again put down the details of the same in the case diary. He also perused the description of the place of occurrence noted in the case diary and again put down the details of the same in the case diary. He recorded the further statement of the informant and statements of other witnesses and also got the statements of the informant recorded by a Magistrate under Section 164 Cr.P.C. and after concluding the investigation submitted charge-sheet in the case for the trial of the accused. The investigation which was taken up by P.W.8 S.I. Javed Mahmood was in fact ordered by the Director General of Police, Bihar after 16 years of submission of the final form in the case which was also accepted by the Chief Judicial Magistrate, Bhagalpur by his order dated 25.06.2005. The Director General of Police, Bihar wrote a letter on 25.03.2006 to the Superintendent of Police, Bhagalpur as appears from the record of the case that too after 16 years of the incident and this was how the further investigation under Section 173(8) Cr.P.C. was ordered which was taken up by P.W.8 S.I. Javed Mahmood on 29.06.2009. He submitted charge sheet on 07.10.2006 which culminated into the trial. 6. The defence of the appellant was of innocence and non participation. 7. The prosecution examined as many as nine witnesses in support of the case out of whom Md. Javed (P.W.1) was standing to take betel at a betel shop and he found that a mob came from the side of Nathnagar and went into the direction of Ashanandpur Chwok and the members of that mob were armed with weapons. This appellant Kameshwar Prasad Yadav was carrying a gun and they all went towards Tatarpur. P.W.1 stated that he himself went to his house and nothing had happened in his presence. He subsequently heard that son of Nasir, i.e., the informant (P.W.4) and one Munna had been killed. Md. Mohsin (P.W.2) stated that the occurrence had taken place on 24.10.1989 and that he saw from a betel shop that a mob of rioters was coming from Parbati Chowk. The rioters were shouting “maro kato” and the shutters of the shops were pulled down and every one fled from there and subsequently he heard that deceased Qayum was killed along with Munna. P.W.2 stated that after two hours he came back to his house and while he was fleeing he learnt about the killing of Munna. The rioters were shouting “maro kato” and the shutters of the shops were pulled down and every one fled from there and subsequently he heard that deceased Qayum was killed along with Munna. P.W.2 stated that after two hours he came back to his house and while he was fleeing he learnt about the killing of Munna. He further stated that he did not know as to from where the mob had come and the fact that he had seen Kameshwar Prasad Yadav carrying a gun was not correct. Md. Rasid (P.W.3) who stated that on 24.10.1989 in the afternoon he was sitting at his house at Ashanandpur which was situated contiguous east of Parbati Chowk and he heard that a mob shouting “Jai Sri Ram, Jai Kali” was coming. He came out of his house and saw that the rioters were carrying lathi, etc. and this appellant Kameshwar Prasad Yadav was carrying a gun. He pulled the shutter of his shop down and fled into his house. He again came out at about 3.30 P.M. and saw that this appellant was catching hold of Qayum and that after ten steps he fired a shot and killed him. P.W.3 also stated that he was also fired at by this appellant but he fled into Arabia Madarsa located in Mohdipur. He stated that the dead body of his brother Kayum had not yet been traced. In cross-examination P.W.3 stated that the occurrence took place at a place 50 cubits away from Ashanandpur railways. The shouting was heard from a distance of 70-80 yards and everyone at that time was running to save his life and the witness P.W.3 also ran to save his life but again stated that he ran away only after the occurrence to save himself. He also stated that he started running away after the shot was fired and at that time also his father was standing behind him and no other person was there. He was frightened after hearing the cries of the rioters and he did not know as to who from his own mohalla had seen the occurrence and he could also not say as to who had fled in which direction to save himself. He himself ran towards south and did not meet anyone until he had reached the place where he had hid himself. He himself ran towards south and did not meet anyone until he had reached the place where he had hid himself. He admitted that the police had recorded his statement one year prior to the day he had deposed in court and he could not say as to what was his statement which was recorded by the police. It was suggested to him that he had been tutored by the prosecutor as also the higher police officials for deposing in the court. P.W.4 was the informant Nasiruddin himself who stated that his son Qayamuddin @ Qayumuddin was killed on a Tuesday 17-18 years ago. He did not remember the date and he was killed on Parbati Chowk at the railways at about 3 P.M. At that time he was at his house. He came out of his house on hulla and found persons coming armed with lathi, bhala, sword and guns raising slogans. His son ran towards his house but was captured by the rioters. He was shot dead by appellant Kameshwar Yadav. Guns started blazing and bombs were detonated. As such, he ran away from his house to Mohdipur. Curfew was imposed and he went to the police station but he was driven away from there. He, then, got his report written by Md. Javed (P.W.1) and got it typed by one Muslim (not examined) and after putting his L.T.I. sent the same to the Superintendent of Police. His statement was recorded by a Magistrate where also he had put his L.T.I. His shop was also burnt and he had received compensation in that behalf. 8. In cross-examination P.W.4 stated that he had seen Tatarpur police station which was situated at a distance of about one kilometer from his house. He denied the suggestion given to him that it was not that the said police station was located only at a distance of ten steps from his house. He admitted that Tatarpur was the part of Ashanandpur and further that Kotwali police station was at a distance of one kilometer and that if one had travelled to Kotwali police station, then he could cross through Tatarpur police station which could be lying in the middle. P.W.4 stated that a road runs to Nathnagar and Bhagalpur which passes through Tatarpur and that he cannot state the distance between Tatarpur Chowk and Bhagalpur station. P.W.4 stated that a road runs to Nathnagar and Bhagalpur which passes through Tatarpur and that he cannot state the distance between Tatarpur Chowk and Bhagalpur station. He stated that he cannot say the date of a day ten days prior to the occurrence. He had given his statement before the police twice and the last statement was given by him one year prior to deposing in court. P.W.4 stated that he did not remember as to when he had first given the statement before the police nor does he remember as to when he had first made the report earlier (P.W.4, paragraph-4) about the riots and denied that the case which was lodged by him had been reported not true and as appears from his cross-examination in paragraph-4, the defence had also challenged that he was not the resident of the locality. He was put some questions regarding the document showing the place of his residence and in that course he stated that he cannot point out the details of the land adjoining, his house nor he could say as to how many persons of his mohalla were known to could be identified by him. About seventeen years prior to his evidence four-five boys, two girls, grandsons and granddaughters were residing in his house and that his sons Naim, Qayum, Nijamuddin were also there. P.W.4 stated that he and his two sons ran after hearing the shouts and he did not produce his family members for their statement before the police when they had visited them. One of the most important lines of his evidence was that his son was coming from Parbati Chowk and that he reached fifteen-twenty minutes after his son had been hit by the shot and that too when he heard the hulla in that behalf. When he reached, the rioters also tried to assault him but he fled away from there and there were marks of gun shot on the wall of his house. His son had died and as such, he could not talk to him. What was the time at that moment, he could not say. He had been questioned by one Javed Babu (S.I. of Police) and before that he had also been questioned by S.I. R.B. Singh. His son had died and as such, he could not talk to him. What was the time at that moment, he could not say. He had been questioned by one Javed Babu (S.I. of Police) and before that he had also been questioned by S.I. R.B. Singh. His attention was drawn and he was suggested that he had not stated that this appellant had fired the shot before him and it was also suggested that he had not made the same statement before the Magistrate in his statement under Section 164 Cr.P.C. 9. P.W.4 Md. Khalil was a rickshaw puller. It appears from his evidence that he used to carry children to and from the school. He stated that on 24.10.1989 at about 2-2.30 P.M. he was coming from St. Joseph School by taking the children in his rickshaw and he was passing through Ashanandpur when he saw a mob raising slogans which was armed variously. P.W.5 stated that he did not remember as to what slogans were being raised, but stated that it was this appellant Kameshwar Yadav who was leading them. However, P.W.5 did not state that as to what was the arm this appellant Kameshwar Yadav was carrying. In his cross-examination he stated that he was never examined by the police and he was still pulling his rickshaw. He had crossed the mob with the children in the rickshaw and the children were seen by the rioters. The children were also comprised by the sons and daughters of one Asfaq Sah but he did not state anything to the said Asfaq Sah as regards the occurrence and delivered the children at his house and went away. He admitted that he had not stated that the occurrence took place on 24.10.1989 and in fact he had never given any statement to the police. Md. Nesar (P.W.6) was a formal witness who had stated that the typed report was typed in his presence by one Md. Muslim. It was typed at the dictation of P.W.4, the contents of which after typing were read over to him and he put his L.T.I. over it. Thus, the report was marked Ext.1. 10. P.W.7 was Girijanandan Sharma who had supervised the case vide Kotwali (Tatarpur) P.S. Case No. 77 of 1990. Muslim. It was typed at the dictation of P.W.4, the contents of which after typing were read over to him and he put his L.T.I. over it. Thus, the report was marked Ext.1. 10. P.W.7 was Girijanandan Sharma who had supervised the case vide Kotwali (Tatarpur) P.S. Case No. 77 of 1990. He stated that final report had been submitted in the case and further that the reinvestigation was ordered by the D.G.P. by his Letter No. 38 dated 20.02.2006 (Confidential). Other cases were also further investigated into by the order of the D.G.P. contained in the above letter. He had brought on record the letter of the D.G.P. (Ext.2) and had further stated that the Superintendent of Police, Bhagalpur had issued his Memo No. 916 dated 23.02.2006 directing the further investigation of the case. The letter of the Superintendent of Police was also brought on record by P.W.7 as Ext.2/1. It appears from the evidence of P.W.7 in examination-in-chief that he had reproduced the statement of P.W.4 which was recorded by him. In our opinion that part of his evidence is inadmissible. He stated that the further investigation was ordered after 17 years of the occurrence and he had further admitted that he had supervised the case without going to the place of occurrence and merely by seeing the case diary and that the earlier investigating officer, S.I. Binod Kumar, was changed without any reason and P.W.8 Javed Mahmood was ordered to investigate the case. 11. Shri Subodh Kumar Jha, the learned counsel appearing on behalf of the appellant took us through the evidence of the witnesses and submitted that P.W.1 Md. Javed was not an eye witness to the real part of the occurrence and had heard about the killing of Md. Qayum. P.W.2 Md. Mohsin had also not seen this appellant firing any shot to kill Md. Qayum but both P.Ws. 1 and 2 stated that the appellant was leading the mob. P.W.3 Md. Rasid who happened to be the son of P.W.4 the informant Nasiruddin and the brother of the deceased appears a set up witness as his evidence does not inspire confidence. P.W.3 stated, submitted Shri Jha, that seeing the mob coming he ran for his life and he had ran to a long distance to hid himself in a madarsa. Rasid who happened to be the son of P.W.4 the informant Nasiruddin and the brother of the deceased appears a set up witness as his evidence does not inspire confidence. P.W.3 stated, submitted Shri Jha, that seeing the mob coming he ran for his life and he had ran to a long distance to hid himself in a madarsa. P.W.4 Nasiruddin during his cross-examination also appears having not seen the occurrence as he stated that he reached 15-20 minutes after hearing the sound of gun-shot and he could not talk to his son who had been killed and that he also ran away from there as attempt was made to assault him. P.W.5 Md. Khalil did not state anything about the incident except that this appellant was leading a mob and he was very categorical that he was never questioned by the police thus, the evidence of P.W.5 was not admissible. 12. Shri Md. Salauddin Khan, the learned Special Public Prosecutor appearing in the appeal on behalf of the State submitted that the delay in lodging the F.I.R. was of no consequence as the court has held in an earlier decision in a case of similar nature reported in 2005 (1) PLJR 357 (State of Bihar vs. Chunna Rajak) at page 372 that on account of the imposition of curfew it was not possible for the informant to approach the police station. The learned counsel also cited AIR 1980 SC 1269 (Babu Krishna Kamble & Ors. vs. The State of Maharashtra) and submitted that if the participation of an accused is duly established then the conviction by virtue of Section 34 of the IPC could not be set aside. Yet another decision on delayed lodging of F.I.R. not being a good ground for rejecting the prosecution case was cited by Shri Khan which is reported in 2011 (2) BBCJ - IV - 302 (Ravi vs. Badrinarayan). Yet another submission of Shri Khan was that mere improvement or variations made by the witnesses in their later statements alone cannot be sufficient ground to reject their otherwise reliable testimony. In support of the above view, Shri Khan was citing before us (1983) 1 SCC 218 (Maqsoodan & Ors. vs. State of Uttar Pradesh) and 1997 (1) PLJR 24 (SC) (Binay Kumar Singh vs. State of Bihar). 13. In support of the above view, Shri Khan was citing before us (1983) 1 SCC 218 (Maqsoodan & Ors. vs. State of Uttar Pradesh) and 1997 (1) PLJR 24 (SC) (Binay Kumar Singh vs. State of Bihar). 13. It is true that Shri Khan has placed reliance upon the Supreme Court decisions in Ravi (supra) and State of Bihar vs. Chunna Rajak (supra) to submit that the delay in lodging the F.I.R. may not be fatal to the prosecution case, the court is very clear that even if Shri Khan had not cited these judgments, the prevailing law could have been followed by this Court that delay do not necessarily demolish legitimately established charges and mere contradictions at the fringes may also not be material as regards proof of the charges if the evidence of the witness appeared trustworthy. Thus, the cases reported in Maqsoodan & Ors. (supra) and Binay Kumar Singh (supra) do not really lay down something unusual which was never propounded by any court of law. However, merely placing citations of the Supreme Court or this Court may not be sufficient to hold that the charges were framed as legal citations are not magical incantations which when shown to the facts of a case would cause the result to jump out of it. These were the words spoken by the Chief Justice of India Hon’ble Shri Justice Y.V. Chandrachud in Prem Thakur vs. State of Punjab [(1982) 2 SCC 462]. The facts of the case are material in a criminal trial and they are material only when they raise a probability regarding the proof or non proof of the charges. Proof beyond doubt is not a fetsh rather it has to be on the basis of acceptable evidence and the evidence of witnesses could be acceptable only when the court is satisfied and convinced of many parts of his evidence–the most important part of the evidence being the claim of the witness of having been present at the scene of occurrence and thus, to have seen the real part of the occurrence being committed by the accused persons. It is true that witnesses, like, P.Ws. 1, 2, 3 and 4 as also P.W.5 had seen that this appellant had been seen leading the mob and P.Ws. It is true that witnesses, like, P.Ws. 1, 2, 3 and 4 as also P.W.5 had seen that this appellant had been seen leading the mob and P.Ws. 2, 3 and 4 also stated that he was carrying a gun but, P.W.1 was merely a hearsay witness and that too not impleading this appellant as a killer of the deceased Md. Qayumuddin who happened to be the son of P.W.4 Nasiruddin. Mohsin (P.W.2) was again not an eye witness to the occurrence as he stated that seeing the mob of rioters proceeding towards the betel shop where he was standing was as frightened as to run away from there after pulling the shutter of his shop and hid himself in his house. When he came out quite later on out of his hiding place, he could learn that Qayum had been killed and one Munna had also been killed. He was very categorical that he had not seen anyone killing either of the two. Md. Rasid (P.W.3), who happened to be the son of the informant and brother of the deceased, claimed that he had seen the present appellant catching Qayum and further that the appellant shot and killed him after taking him up to the distance of ten steps and that the dead body was never found out. During cross-examination P.W.3 was put many questions and what appears is that he was quite away from the place where as per him the murder had been committed and the distance was filled with rioters who were dangerously armed and he was frightened deeply so much so that he ran away towards south not even to go to his house, rather he went into a madarsa for hiding himself. He might have claimed that had seen the occurrence, which fact was challenged by drawing his attention to that fact that he had never stated the above fact but we are more convinced that the very fright which had been created by the mob of rioters into P.W.3 on merely seeing them must not have caused him to stay there. He might have claimed that had seen the occurrence, which fact was challenged by drawing his attention to that fact that he had never stated the above fact but we are more convinced that the very fright which had been created by the mob of rioters into P.W.3 on merely seeing them must not have caused him to stay there. P.W.3 was indeed showing a brave face during his evidence that he fled only after the shot had been fired, which fact is contrary to his evidence initially appearing in his deposition when he stated that, seeing the mob of rioters, dangerously armed and shouting slogans, he was so much frightened that he pulled down the shutter of his shop to run to his house to secure himself. He made a very absurd statement that he came out of his house at about 3.30 P.M. and saw the occurrence. If he was frightened and had gained safety of his house, we find it difficult to believe that he would come out again to the place of occurrence to see his brother being murdered. Moreover, he had also stated that he had, after seeing the dangerously armed and belligerent rioters ran into a particular madarsa to save himself. The contradictory evidence of P.W.3 renders him a witness unreliable. 14. P.W.4 also stated that at about 3 P.M. when he came out of his house on hearing hulla, he found the mob of rioters carrying lathi, bhala, sword and guns and shouting slogans seeing which his son started running away but was caught by the rioters and it was this appellant who had killed him. His evidence of seeing his son being killed is demolished by his own evidence in cross-examination when he stated that he reached at the place of occurrence after 15-20 minutes of hearing the hulla and firing of the shot by which his son was killed. Thus, what appears is that at one place he claims to have seen the occurrence as in his cross-examination but at the other as again in his cross-examination appears stating that he could never have seen the occurrence as he had appeared at the scene of occurrence after 15-20 minutes of firing of the shot. 15. Thus, what appears is that at one place he claims to have seen the occurrence as in his cross-examination but at the other as again in his cross-examination appears stating that he could never have seen the occurrence as he had appeared at the scene of occurrence after 15-20 minutes of firing of the shot. 15. In State of Bihar vs. Chunna Rajak (supra), the evidence had come that there was curfew imposed all over and it was not possible for anyone to move to the police station to lodge the report. The informant does state in his written report as also in his evidence that on account of curfew being imposed, he could not go out to lodge the case for the incident dated 24.10.1989 and could file his report only on 07.02.1990, i.e., after about four months of the incident. Police officers, like, the D.S.P. Girijanandan Sharma (P.W.7) and the investigating officer S.I. Javed Mahmood (P.W.8) had appeared in the witness box and they did not state that it was as impossible for anyone as to approach them or any other police officer to lodge a report. From the cross-examination evidence of P.W.4 the informant, it appears that the police stations were very near to his house. There is no evidence that curfew was imposed throughout for a period of four months or so, restricting the human movement out of their respective houses. This appears impossible also as it never happens that curfew is imposed for such a long period. There is no evidence on record that the riot – like – condition was persisting in the township of Bhagalpur or its locality for such a long time not permitting the ordinary citizens to come out of their house for any purposes and particularly for approaching the police for redressal of their grievance. In absence of the evidence to the above effect it does not appear acceptable to us that the informant could not lodge the report for that particular reason. 16. The case had been found not true and the final report had also been accepted on 24.06.2005 but the D.G.P., Bihar, all of a sudden, was directing the further investigation and the officer who was investigating the case was divested of the charge of investigating the case and P.W.8 was directed to investigate the same. 16. The case had been found not true and the final report had also been accepted on 24.06.2005 but the D.G.P., Bihar, all of a sudden, was directing the further investigation and the officer who was investigating the case was divested of the charge of investigating the case and P.W.8 was directed to investigate the same. His own evidence indicates that he did not go to the place of occurrence to inspect it and he merely copied the description of it recorded by the earlier investigating officer in his case diary. P.W.7 Girijanandan Sharma who was the D.S.P., also appears supervising the case merely by going through the case diary. These are some of the unusual aspects of the case which indicate unusual interest of some of the police officers to direct the submission of the charge sheet in the case without clearly investigating or supervising the case. This Court restrains itself from making any comments on the conduct of P.W.7 Girijanandan Sharma and P.W.8 S.I. Javed Mahmood. 17. It is true that witnesses have stated that the appellant was identified leading the mob but in face of the evidence which was available on the record, it appears doubtful that he had committed the act which was directly alleged against him that he had fired shot. Moreover the allegation was supported by witnesses who appear not seeing the incident taking place as we have found after analyzing their individual evidence on the know standards of appreciating evidence. 18. In the result, the appeal succeeds and the same is allowed. The conviction of the appellant for charges, for which he had been held guilty of, is hereby set aside along with the sentences upon him. The appellant is in custody, he shall be released forthwith, if not wanted in any other case. Ahsanuddin Amanullah. J. – 19. I have had the privilege of going through the judgment of my esteemed brother but most humbly am not able to agree with the same and accordingly record a separate judgment. 20. The appeal is directed against the judgment of conviction dated 06.11.2009 and order of sentence dated 09.11.2009 by which the appellant was convicted under Sections 148, 302/149, 164/149 and 201/149 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life and fine of Rs. 20. The appeal is directed against the judgment of conviction dated 06.11.2009 and order of sentence dated 09.11.2009 by which the appellant was convicted under Sections 148, 302/149, 164/149 and 201/149 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life and fine of Rs. 5000/- under Sections 302/149 of the Indian Penal Code and in default to undergo simple imprisonment for six months; rigorous imprisonment for three years under Section 148 of the Indian Penal Code; rigorous imprisonment for five years and fine of Rs. 2000/- and in default simple imprisonment for three months under Sections 364/149 of the Indian Penal Code; rigorous imprisonment for five years and fine of Rs. 2000/- and in default simple imprisonment for three months under Sections 201/149 of the Indian Penal Code and three years rigorous imprisonment and fine of Rs. 2000/- and in default simple imprisonment for three months under Section 27 of the Arms Act. The sentences were directed to run concurrently. 21. As per the written fardbeyan of the informant Nasiruddin (P.W. 4) addressed to the Superintendent of Police, Bhagalpur, on 24.10.1989 at about 3.30 P.M. a mob of 200 persons entered the lane near his house abusing persons of the minority community and exploding bombs. Upon hearing the hue and cry and the sound of explosion when the informant came out he saw his son Md. Qayumuddin @ Qayum, aged about 15 years had been caught hold by the rioters and the appellant fired at him due to which he fell down and started shouting. It has been stated that when he and others tried to save his son, the rioters started firing indiscriminately and some shots also hit his wall. It is stated that the mob had dragged and taken away his son Md. Qayumuddin. The informant suspected that the mob had thrown away the dead body somewhere. He claimed that he could identify 10 persons by face but not their names and that he had identified the appellant only because he was from the village of the informant and an old bad character. The delay in informing was attributed to curfew and fear of even going to the police station. It was also stated that one shop worth Rs. 35,000/- and another of stationary worth Rs. 15,000/- of Md. Nasir were looted and burnt. The delay in informing was attributed to curfew and fear of even going to the police station. It was also stated that one shop worth Rs. 35,000/- and another of stationary worth Rs. 15,000/- of Md. Nasir were looted and burnt. Based on the said written complaint Kotwali (Tatarpur) P.S. Case No. 77 of 1990 dated 07.02.1990 was instituted under Sections 147, 148, 149, 379, 302/201/153(b) of the Indian Penal Code, 27 of the Arms Act and 3/4 of the Explosive Substances Act. 22. The investigation was entrusted to Sub Inspector S.D. Singh (not examined). After making some investigation, the said I.O. was transferred and another person took charge of investigation. The A.S.P., Bhagalpur supervised the case on 11.03.1990. He found the case true under Section 364 of the Indian Penal Code and the Investigating Officer was directed to verify the fact of the written information (Exhibit-1) from the informant. After concluding the investigation final report was submitted showing the case true under Section 364 of the Indian Penal Code but false against accused. The said report was submitted on 31.03.1990 before the learned Chief Judicial Magistrate, Bhagalpur which was seen by him on 17.05.1990 and accepted on 24.06.2005. On 25.03.2006, a petition was filed before the learned Chief Judicial Magistrate, Bhagalpur under Section 173(8) of the Code of Criminal Procedure, 1973 stating therein that ‘some important materials and new facts are expected in the case’ and thus prayer was made for permission to further investigate. The letter of the Director General of Police, Bihar addressed to the Superintendent of Police, Bhagalpur directing for re-investigation of certain cases was produced before the Court and marked Exhibit-2. Based on the same, investigation proceeded and finally Javed Mahmood took over the investigation on 21.06.2006. After completing the investigation chargesheet was submitted on 30.09.2006 under Sections 147, 148, 149, 379, 364/201/153(b) of the Indian Penal Code and 27 of the Arms Act. The learned Chief Judicial Magistrate, Bhagalpur took cognizance on 07.10.2006 and the case was committed to the Court of sessions on 10.01.2007 leading to commencement of Sessions Trial No. 54 of 2007. 23. Altogether 9 witnesses have been examined on behalf of the prosecution. 24. P.W. 1, Md. The learned Chief Judicial Magistrate, Bhagalpur took cognizance on 07.10.2006 and the case was committed to the Court of sessions on 10.01.2007 leading to commencement of Sessions Trial No. 54 of 2007. 23. Altogether 9 witnesses have been examined on behalf of the prosecution. 24. P.W. 1, Md. Javed has stated that he was standing for taking betel (Pan) at the betel shop near Kali Asthan Parbatti when he saw that a procession came from Nathnagar and moved towards Asanandpur armed with weapons and the appellant was having a gun and they moved towards Tatarpur. He stated that he had gone to his house and nothing happened before him and heard that Qayum and Munna, son of Md. Nasir and others were killed. He identified the appellant in Court. 25. P.W. 2, Md. Mohsin has stated that the incident took place on 24.10.1989 and he saw from the betel shop at Parbatti that a mob was coming armed with weapons shouting ‘Maro, Kato, Looto’ and also hurling abuses. He further stated that the appellant having gun was leading. He also said that after closing the shop he ran away and heard that Qayum and Munna were killed but he did not see anyone killing. He identified the appellant in Court. In the cross-examination he denied the suggestion that he had not seen the appellant in the procession. 26. P.W. 3, Md. Rashid, who is the son of the informant has stated that the incident occurred on 24.10.1989 when in the afternoon he was in his shop at Asanandpur adjoining East to Parbatti Chowk, when he heard slogan of ‘Jai Sri Ram’ and ‘Jai Kali Maa’. When he came out he saw people armed with lathi etc. and the appellant having gun. Due to fear the deponent closed the shop and went home. He has stated that at about 3.30 P.M. upon hearing shouting when he came out he saw Qayum was being held by the appellant and when the deponent moved 10 paces, the victim was shot and the deponent ran away to Mohidipur Arabia Madarsa. He stated that the body of Qayum was not recovered till date. He also identified the appellant in Court. In his cross-examination he stated that he had told the police that Qayumuddin was dragged away and the body was made traceless. He stated that the body of Qayum was not recovered till date. He also identified the appellant in Court. In his cross-examination he stated that he had told the police that Qayumuddin was dragged away and the body was made traceless. He stated that while running away his father was with him and had seen the killing. He has denied the suggestion that he has given false evidence on the pressure of the police and administration. 27. P.W. 4, Nasiruddin is the informant. He has stated that his son Qayamuddin @ Qayumuddin was killed on Tuesday at Parbatti Chowk at 3.30 P.M. He has further stated hat he was at home and there was shouting outside and everybody was armed with sticks, spears, swords and guns. His son was running towards the house when the rioters caught hold of him and the appellant shot him. Firing and explosion of bomb started and the deponent ran away to Mohidipur and curfew had been imposed. He had stated that when he went to the police station he was turned away. He has further stated that he had got his statement written and typed and then sent it to the Superintendent of Police and his statement was also recorded before the Magistrate and at both places he had put his thumb impression. He has further stated that his shop was burnt for which he had got compensation. He has identified the appellant in Court. He has also described the place of occurrence. In the cross examination he has stated that he had not seen the police in the procession and has also stated that he did not remember after how many days, months or year the police had taken his statement. He has stated that he had seen Tatarpur Police Station which was more than 1 Kilometer from his house and further that Kotwali Police Station was also more than 1 Kilometer away and that for reaching Kotwali, Tatarpur was in the way. He has stated that the occurrence was 17 years ago and he could not say with regard to the date prior to or after the occurrence. He had made a statement before the Officer (‘Hakim’) once and the police twice. He has stated that he did not remember when he first reported to the police station but further says that he did the same during the riots. He had made a statement before the Officer (‘Hakim’) once and the police twice. He has stated that he did not remember when he first reported to the police station but further says that he did the same during the riots. He has denied the suggestion that the case was made final. He has stated that he had not given any receipt relating to his house to the police and could not give details of adjoining land and has not counted the number of persons of his locality whom he recognizes and had also not given any paper with regard to his son also living in the locality. He has stated that 17 years ago, 4-5 boys, girls, grand-sons, grand-daughters, wife etc. were living in the house. He has stated that Rashid, Nayeem, Kalam, Nizamuddin are his sons and out of them Rashid and he and two boys had run. He has further stated that the police had come to his house a year ago and that he had not got the statement of those persons recorded. He has stated that his son Qayumuddin was coming from Parbatti Chowk and 15-20 minutes after he was hit there was shouting and when he reached he was also chased and he ran away. He has stated that there is mark of gun shot on the wall and his son had died and he was not able to talk to him. He could not tell the time at that moment and said that he could do so by looking at the watch and had stated that at that time also he had no watch. He had stated that for the first time Javed Babu of Nathnagar (Sub Inspector of Police and P.W.8) had taken his statement and he did not remember whether R. B. Singh had taken his statement or not. He has stated that he had told the police that the appellant had fired but not to the Magistrate. He has stated that the rioters had burnt the licence of the shop and looted the shop. He has stated that Hidayat is dead and thus his evidence cannot be recorded. He has stated that he had not given the name of the injured in his application. He has stated that the rioters had burnt the licence of the shop and looted the shop. He has stated that Hidayat is dead and thus his evidence cannot be recorded. He has stated that he had not given the name of the injured in his application. He had denied the suggestion that the incident did not occur and that he had influenced Senior Police Officers to get the matter re-investigated and that he was giving false evidence. 28. P.W. 5, Md. Khalil has stated that on 24.10.1989 at 2.30 P.M. on rickshaw he was bringing children from St. Joseph school to Ashanandpur when there were many people in a procession who were raising slogans which he did not remember and were armed. He has stated that the appellant was moving in front but did not remember what he was carrying. He has identified the appellant in the Court and stated that on that day son of Nasiruddin was killed but he did not remember his name. In the cross he had stated that he had come to the Court at 12.30 P.M. and was standing outside the Court since 12.00 noon. He denied meeting the Advocate. He has also stated that he has three sons and four daughters and the youngest one is a boy whose date of birth he did not remember. He has stated that the police had not taken his statement and that he was still plying rickshaw. He has stated that he had seen the appellant from a distance nearer than the distance at which the accused was standing in court while he was taking the children in the rickshaw. He denied the suggestion that no such incident took place. 29. P.W. 6, Md. Nesar is a formal witness who has stated that the fardbeyan was typed in his presence by one Md. Muslim. He has further stated that what the informant had dictated was typed and after typing the same was read over to the informant who had put the thumb impression. He has stated that Md. Muslim had died. Thus, written report was marked as Exhibit-1. In the cross-examination he had stated that he did not know the son of Nesar and has further stated that he knows the house of Nesar and his house is also located there. He has denied the suggestion that he was giving false evidence. 30. He has stated that Md. Muslim had died. Thus, written report was marked as Exhibit-1. In the cross-examination he had stated that he did not know the son of Nesar and has further stated that he knows the house of Nesar and his house is also located there. He has denied the suggestion that he was giving false evidence. 30. P.W. 7, Girijanandan Sharma had stated that he had supervised Kotwali P.S. Case No. 77 of 1990 in which final form had been submitted and the case was again reopened for investigation pursuant to the order of the Director General of Police under Letter No. 38 dated 20.02.2006 (Confidential) and under the same order many cases were opened. He has identified the signature of the then D.G.P. Accordingly, the same was marked Exhibit-2. He has further stated that the Superintendent of Police, Bhagalpur had issued Memo No. 916 dated 23.02.2006 directing for further investigation of the case. The signature of the then Superintendent of Police, Bhagalpur was also identified by him and the same was marked Exhibit 2/1. He has stated that he had again recorded the statement of informant Nasiruddin who reiterated his statement given in the written report. He has stated that the reason given for re-investigation was that in the past there were many shortcomings in the investigation and has given the reason that from reading the report of the previous investigation it was found that even the statement of the informant was not recorded as was told by the informant and the informant had also given a protest petition. He further states that the informant had told him that nobody’s statement was recorded. He has stated that after finding materials upon review he had ordered for submitting chargesheet. In the cross examination he has stated that complete investigation was done after 17 years and in the meantime many officers of Bhagalpur had come before him and that he had not asked them why previous officers were not told about this. He has stated that he had read the previous diary and had the occasion to see letter dated 20.03.2006. He stated that he had left Bhagalpur on being promoted to the post of I.G. on 30.10.2007. He has stated that he had read the previous diary and had the occasion to see letter dated 20.03.2006. He stated that he had left Bhagalpur on being promoted to the post of I.G. on 30.10.2007. He has stated that the case was earlier investigated by Binod Kumar and later on he was changed by Javed Mahmood by the order of the S.P. and he had not changed him. He has stated that the re-investigation was under his purview. He has stated that he had gone to the place of occurrence but had not said about it. He has further stated that one copy of the investigation is not sent to the D.I.G. but he had supervised after going through the diary. He has stated that in the diary there is no mention of P.O. He did not remember the name of other witnesses. He has also stated that he did not remember after how many days of re-investigation the statement of witnesses were taken but he had seen the statement of witnesses. He said that at that moment he does not remember as to whether for wrong doing by the junior officers there is provision for recommending departmental enquiry. He further stated that he does not remember whether he had recommended for departmental action against the previous investigating officer or not. He says that though he was not aware as to under what circumstances the D.G.P. had written the letter but the letter was received by him. He has denied the suggestion that because his promotion was due, under Government pressure he had opened the case. He has further stated that he was Government of India employee and his promotion is done from there only. 31. One more P.W. Rajeshwar Prasad Singh (wrongly numbered as P.W.8) has proved the formal F.I.R. as Exhibit-3. 32. Mr. Sumod Kumar Jha, learned counsel for the appellant, referring to the evidence of witnesses has submitted that P.W.1 was not an eye witness and had only heard about the killing of the son of the informant and P.W.2 had also not seen the appellant firing any shot killing the son of the informant and that P.W.3 was the son of the informant (P.W.4) and brother of the deceased and thus was a tutored witness since he has stated that on seeing the mob, he had ran away to a Madersa to save his life. Learned counsel submitted that P.W.4, the informant, could not have seen the occurrence as in the cross examination he has stated that after 15-20 minutes of his son being shot, upon shouting he had reached and that he had also ran away as attempt was made to attack him. Learned counsel submitted that as P.W.5 had only stated that the appellant was leading a procession and that he had never given any statement to the police, his evidence should not be considered. He thus submits that the impugned judgment is fit to be set aside and the appellant deserves to be acquitted. 33. On the other hand Mr. Md. Salauddin Khan, learned Special Public Prosecutor, appearing on behalf of the State, submitted that mere delay in lodging of the F.I.R. could not be fatal for the prosecution. For such proposition he has referred to a division bench decision of this Court under similar circumstances in the case of State of Bihar vs. Chunna Rajak reported in 2005(1) PLJR 357, in which the Court has taken note of the fact that in a case of similar nature relating to the same period and the same town, due to curfew having been promulgated, there was delay in reporting of matters to the police. In this context learned counsel has also relied on a decision of the Hon’ble Supreme Court in the case of Ravi vs. Badrinarayan reported in 2011(2) BBCJ IV-302, where delay in lodging of the F.I.R. was more than three and a half months and the Supreme Court had held that there could be a variety of reasons in genuine cases for delay in lodging of the F.I.R. as unless the kith and kin of victim are able to regain a certain level of tranquility of mind and are composed only then they can lodge the F.I.R. and even if there is delay it deserves to be condoned. Learned counsel has urged that as the role of the appellant has been established by various witnesses, the conviction is fit to be upheld. For such proposition he has relied upon the decision of the Hon’ble Supreme Court in the case of Babu Krishna vs. State of Maharashtra reported in A.I.R. 1980 SC 1269. Learned counsel has urged that as the role of the appellant has been established by various witnesses, the conviction is fit to be upheld. For such proposition he has relied upon the decision of the Hon’ble Supreme Court in the case of Babu Krishna vs. State of Maharashtra reported in A.I.R. 1980 SC 1269. Learned counsel has also relied for this proposition on the decision of this Court in the case of State of Bihar vs. Chunna Rajak (supra) which was a case relating to the same sequence of events, that is, communal conflict in the town of Bhagalpur of which the present incident is also part of, that if witnesses are trustworthy and consistent and incident taking place in broad daylight thereby facilitating identification of accused appellant involved in the incident, mere interestedness is not a ground to reject the evidence and further that belated recording of evidence by the police in a volatile law and order situation can be well appreciated. Learned counsel has submitted that even if the witness disowns having made any statement inconsistent with his deposition in Court, such testimony in Court on that score is not vitiated until cross examination proceeds to comply with procedure prescribed in the second limb of Section 145 of the Indian Evidence Act, 1872 since so long as attention of prosecution witness is not drawn to statement attributed to him related by officer-in-charge of police station, his evidence cannot be rejected. For such proposition learned counsel has relied upon a decision of the Hon’ble Supreme Court in the case of Binay Kumar Singh vs. State of Bihar reported in 1997(1) PLJR 24 (S.C.). Learned counsel has lastly submitted that improvement or variations made by witnesses in their earlier and later statements alone is not sufficient ground to reject their otherwise reliable testimony and that minor inconsistency in statements of witnesses and F.I.R. would not make the testimony of the witnesses unreliable and rather on the contrary, they show that the witnesses were not tutored. In support of his contention learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of Maqsoodan vs. State of U.P. reported in (1998) 1 SCC 218 as well as Binay Kumar Singh vs. State of Bihar (supra). In support of his contention learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of Maqsoodan vs. State of U.P. reported in (1998) 1 SCC 218 as well as Binay Kumar Singh vs. State of Bihar (supra). Learned counsel has urged before the Court that due to collusion of the police, specially the Investigating Officer, at the initial stage when the F.I.R. was lodged, with the accused, the investigation was sham and thus any development consequent to such final form submitted as a result of such investigation, even if it is followed by acceptance of the final form by the Court, cannot be a bar to further investigation. He refers to the testimony of P.W.7 in this connection indicating that the first Investigating Officer had not taken the statement of either the informant or any witness. He submitted that the fact that F.I.R. was lodged on 07.02.1990 and final report was prepared on 31.03.1990 is a clear indicator of the undue haste shown to somehow close the case against the accused. 34. The Court has gone through the evidence of witnesses and has considered the submissions made by learned counsel for the parties. The present incident cannot be looked in isolation and in a hyper technical way for the simple reason that a situation where two communities were daggers drawn against each other and there was a sense of insecurity and lawlessness all around, the position of a victim who is pitted against a much more powerful opponent i.e., the accused, which prevents him from getting justice cannot be overlooked. In the present case, the incident being the result of communal violence in the town of Bhagalpur it has to be appreciated that the informant’s first priority after losing his son would be ensure the safety and security of his own as well as of his other family members. It is also an admitted position that there was curfew in the town for a long period. Further, the informant has also stated in his testimony that he had gone to the police station from where he was turned away. It is also an admitted position that there was curfew in the town for a long period. Further, the informant has also stated in his testimony that he had gone to the police station from where he was turned away. In this context the Court finds it relevant to refer to the decision of the Hon’ble Supreme Court in the case of Zahira Habibulla H. Sheikh vs. State of Gujarat reported in (2004) 4 SCC 158 , where it has been observed that in killings arising out of communal frenzy and there is failure of State machinery to protect citizens life, liabilities and property and the investigation conducted is in a manner helpful to accused persons, it is the duty of the Courts to maintain confidence of the public in the judicial system and ensure that accused persons are punished and the might and authority of the State are not used to shield itself or its men. The Hon’ble Supreme Court has also held that the trial should be a search for truth and not a bout over technicalities. The Court is also tempted to draw an analogy of the reasoning given by the Hon’ble Supreme Court in the said case where it was found on facts that there were serious infirmities, telltale even to the naked eye for an ordinary man, arbitrariness, where truth has become a causality, it was necessary to prevent its recurrence and therefore a fit and proper case for retrial. In the present case it is only further investigation, for which there is amble justification as has been clearly brought out from the deposition of the witnesses. The then range D.I.G. (P.W.7) clearly indicating that for all practical purposes there was no investigation, the further investigation was not only appropriate but also the requirement for upholding the law and ensuring public confidence in the criminal justice system. 35. The Court would further like to refer to the judgment of the Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh (5) vs. State of Gujarat reported in (2006) 3 SCC 374 relating to a criminal trial. Paragraph-37 of the judgment is relevant in the present context and quoted herein below for ready reference: – “37. 35. The Court would further like to refer to the judgment of the Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh (5) vs. State of Gujarat reported in (2006) 3 SCC 374 relating to a criminal trial. Paragraph-37 of the judgment is relevant in the present context and quoted herein below for ready reference: – “37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.” 36. The strongest point advanced on behalf of the appellant was that the informant (P.W.4) in his cross examination has stated that ‘after 15-20 minutes of being hit by gun shot upon shouting he reached’, cannot be read in isolation. It cannot be lost sight of that P.W.4 is a rustic layman and the position he was in while being grilled by an aggressive and expert defence counsel. Also the sentence preceding the aforesaid statement was that ‘his son Qayumuddin was coming from Parbatti Chowk’ and the statement made immediately after the statement in question is that ‘he ran away on being threatened’. Thus, it clearly shows that he was witness to the incident. Moreover, P.W.3 even in the cross examination has stated that his father was along with him and that he had also seen the appellant and that he was standing and saw the occurrence and only when he was also fired upon he had run away. 37. Thus, it clearly shows that he was witness to the incident. Moreover, P.W.3 even in the cross examination has stated that his father was along with him and that he had also seen the appellant and that he was standing and saw the occurrence and only when he was also fired upon he had run away. 37. Applying the law laid down by the Hon’ble Supreme Court in the case of Manu Sharma vs. State (NCT of Delhi) reported in (2010) 6 SCC 1 , on the point of credibility of witnesses, to the facts of the present case, it is clear that the presence of the appellant leading the mob and possessing a fire arm leading to the son of the informant being shot and the body taken away not to be recovered, leads the Court to the inescapable conclusion of the culpability of the accused in the alleged offence. Further, as has been held by the Hon’ble Supreme Court in the case of Binay Kumar Singh vs. State of Bihar (supra) as well as a Division Bench of this Court in the case of State of Bihar vs. Chunna Rajak (supra), the evidence is not to be counted but weighed and it is not quantity of evidence but quality that matters for even testimony of one single witness, if wholly reliable, is sufficient to establish identification of accused. In the present case, the Court finds that there is consistency with regard to the identification of the appellant and slight and minor discrepancy in their testimony is not of a nature so as to discredit their testimony. Thus, on a careful consideration of the entire facts and circumstances of the case and the genesis of the event in totality, the Court also finds that the conviction of the appellant by the trial Court is based on sound and cogent reasoning and appreciation on facts in their correct perspective and that the prosecution has been able to bring home the charge and prove it against the appellant beyond reasonable doubt. The decisions relied upon by learned Special Public Prosecutor are relevant and support the prosecution case. 38. In light of the discussions made hereinabove, the Court does not find any ground for interfering in the judgment of conviction and order of sentence against the appellant and accordingly the appeal being devoid of merit, stands dismissed.