JUDGMENT : SAMARENDRA PRATAP SINGH, J. 1. The appeal is directed against the judgment and order, dated 26.4.1993, passed by the 1st Additional Sessions Judge, Muzaffarpur, in Sessions Trial No. 242 of 1988/46 of 1990, whereby the learned trial Court, while acquitting the two other co-accused, namely, Shyam Sundar Singh and Radha Devi, convicted the appellant, Chandeshwar Singh, under Sections 302 and 307 of the Indian Penal Code and sentenced him, for his conviction under Section 302 of the Indian Penal Code, to suffer imprisonment for life and, for his conviction under Section 307 of the Indian Penal Code, suffer rigorous imprisonment for seven years. However, the sentences have been directed to run concurrently. 2. The prosecution’s case, as made out in the fardbeyan of Shashi Bhushan Singh, son of late Gulzar Singh, recorded by Sub Inspector, Shri G.N. Singh of Town Police Station, Muzaffarpur, at Sadar Hospital, at 6:00 P.M., on 10.07.1987 is, in short, as follows:- (i) On 10.07.1987, the informant was repairing his Marai (thatched roof of fodder room). After repairing, he had to re-fix the bamboo stand as it had got damaged due to rain. In the meantime, co-villager, Chandeshwar Singh, armed with bamboo tona (a piece of bamboo) and accompanied by his son, Shyam Sundar Singh, aged about 28 years, arrived and protested against fixing of the Marai. Both the informant and his father reminded them that Marai had already existed from before and they were merely repairing the same for putting it back in its place. The accused were adamant not to allow the Marai to be raised. An altercation ensued. On hearing hulla, informant’s mother, Roopmati Devi, and his co-villagers, including Kirat Paswan and Ganesh Singh, came to the place of occurrence. In the mean-time, Chandeshwar Singh assaulted informant’s father, Gulzar Singh, by a bamboo tona, who fell and became unconscious. There was bleeding from Gulzar Singh’s head. When the informant tried to save his father, accused Shyam Sundar Singh and Radha Devi, mother of accused Shyam Sundar Singh, and Suchitra Kumari, son of Shyam Sundar Singh, caught the informant, whereas Chandeshwar Singh struck a blow by a bamboo tona on the head of the informant. As a result of assault, the informant fell down and Chandeshwar Singh assaulted on the informant’s left thigh. Informant yelled in pain. Blood trickled from wounded part of his head. As a result of assault, the informant fell down and Chandeshwar Singh assaulted on the informant’s left thigh. Informant yelled in pain. Blood trickled from wounded part of his head. As villagers began to gather, the accused fled away towards the village. One Ganesh Singh carried the informant’s father, Gulzar Singh, on a hired Jeep, to Sadar Hospital. Informant’s mother, Roopmati Devi, and co-villager, Kameshwar Singh, also accompanied them in the Jeep. On the way to Sadar Hospital, the informant’s father died. The informant, however, was treated at Sadar Hospital. (ii) On the fardbeyan of the informant, Saraiya P.S. Case No. 90 of 1987, under Sections 302/341/323/34 of the Indian Penal Code, was registered against four accused persons. Charge sheet was submitted also under the same penal provision. (iii) At the trial, when charges, under Sections 302 and 307 read with Section 34 of Indian Penal Code, were framed against the appellant, Chandeshwar Singh, and his coaccused Shyam Sundar Singh, both of them pleaded not guilty thereto. As a charge was framed, under Section 307 read with Section 34 of the Indian Penal Code, against accused Shyam Sundar Singh and Radha Devi, both the accused aforementioned pleaded not guilty. 3. The prosecution examined altogether 9 witnesses in support of its case, namely, P.W. 1 (Nirmala Devi), wife of the informant, P.W. 2 (Badai Sahani), a labourer, P.W. 3 (Mahadeo Sahani), a labourer, P.W. 4 (Roop Kanti Devi), wife of the deceased, P.W. 5 (Vinod Kumar Singh), son of the deceased, P.W. 6 (Shashi Bhushan Singh), the informant, P.W. 7 (Dr. Manoranjan Kumar Shrivastava), is the doctor who had performed post mortem examination, P.W. 8 (Dr. Yadunath Giri) is the doctor who had examined the injured, Shashi Bhushan Singh and P.W. 9 (Shobha Kant Pathak), the Investigating Officer. Out of these 9 (nine) witnesses, P.W. 1, P.W. 2, P.W.3, P.W.4 and P.W.6 are said to be eye witnesses. P.W. 1 is wife of the informant (P.W. 6) and P.W. 4 is mother of the deceased. 4. The defence did not choose to examine any witness. The case of the defence, as discernable from the statements recorded under Section 313 Cr.P.C., is complete denial of the occurrence. P.W. 1 is wife of the informant (P.W. 6) and P.W. 4 is mother of the deceased. 4. The defence did not choose to examine any witness. The case of the defence, as discernable from the statements recorded under Section 313 Cr.P.C., is complete denial of the occurrence. The learned trial Court, on consideration of the materials on record, acquitted Shyam Sundar Singh and his mother, Radha Devi, of the charges framed against them, whereas convicted the appellant, Chandeshwar Singh, under Sections 302 and 307 of the Indian Penal Code and passed sentences against him as already mentioned above. 5. As noticed in earlier paragraphs, the prosecution examined 9 (nine) witnesses in support of its case. Before we examine the ocular evidence, it would be relevant to note the medical evidence brought on record by the prosecution. P.W. 7 (Dr. Manoranjan Kumar Srivastava), who held post mortem (Ext.4), found the following ante mortem injuries:- “(1) Lacerated wound 4” x ¼” x scalp deep found on left side of parietal bone. On dissection fracture of left parietal bone was found. Blood clot was also found behind the fracture.” 6. In the opinion of the doctor (P.W.7), the injuries were caused by hard and blunt substance, such as, bamboo pole made of thick end of bamboo. It is also the opinion of the doctor (P.W.7) that the cause of death was shock and hemorrhage resulting from the injuries aforementioned. 7. P.W. 8 (Dr. Yadunath Giri) examined the informant, Shashi Bhusan Singh, and found the following injuries on his person:- “1. Lacerated wound over anterior part of the vertex 1” x ¼.” 2. A long painful swelling over left thigh 8” long 2” wide.” 8. According to the doctor (P.W.8), injury No.1, on the person of Shashi Bhushan Singh, was dangerous to life and the said injury was grievous in nature too, but Injury No.2 was simple in nature and that both the injuries were caused by hard and blunt substance, which may be a thick end of a bamboo piece. 9. It is evident from the post mortem report and the evidence of P.W. 7 that the death of Gulzar Singh was homicidal in nature and it was neither natural nor accidental and as far as the informant, Shashi Bhushan Singh, was concerned, he had sustained the injuries as described by P.W.8. 10. 9. It is evident from the post mortem report and the evidence of P.W. 7 that the death of Gulzar Singh was homicidal in nature and it was neither natural nor accidental and as far as the informant, Shashi Bhushan Singh, was concerned, he had sustained the injuries as described by P.W.8. 10. The main issue would, however, remain: whether the prosecution has succeeded in proving that it is the appellant, who had committed the murder of Gulzar Singh, and made an attempt to commit murder on the life of the informant, Shashi Bhusan Singh. 11. In order to bring home the charges, the prosecution examined P.W.1, P.W. 2, P.W. 3, P.W. 4 and P.W. 6 as eyewitnesses to the occurrence. 12. P.W. 1 is wife of the informant and daughter-in-law of the said deceased. In her examination-in-chief, she has stated that the occurrence took place on the fateful day at 12.30 P.M., she was in her house along with her mother-in-law Roop Kanti Devi (P.W. 4) and around that time, she heard hulla emanating from the palani side and when she peeped through window of her room, she saw her father-in-law and her husband repairing palani after bringing the palani down for purposes of re-fixing the same and at that time, Badai Sahani (P.W. 2), Mahadeo Sahani (P.W.3) and Hari Charan (not examined), local labourers, were engaged in repairing of the palani and were helping in its repair. It is the evidence of P.W. 1 that her father-in-law and her husband and others were prevented by accused Chandeshwar Singh and his son, Shyam Sundar Singh, from fixing the palani, which led to altercations. Accused Chandeshwar Singh picked up a tona of bamboo and assaulted her father-in-law (Gulzar Singh) on his head and as her husband (P.W.6) tried to save him, Shyam Sundar Singh, his mother and sister caught him, whereupon accused Chandeshwar Singh hurled a blow on her husband’s head with the same piece of bamboo tona. On account of the injuries caused to him, her husband fell down, whereupon accused Chandeshwar Singh hit on the left thigh of her husband with a bamboo tona. 13. P.W. 2 and P.W. 3 are labourers. On account of the injuries caused to him, her husband fell down, whereupon accused Chandeshwar Singh hit on the left thigh of her husband with a bamboo tona. 13. P.W. 2 and P.W. 3 are labourers. They have stated that they were repairing the roof of the hut, which led to hot exchange of words between late Gulzar Singh and Chandeshwar Babu, the latter assaulted Gulzar Babu with a piece of bamboo on his head and when his son, Shashi Bhushan, tried to save his father, he, too, was assaulted. 14. P.W. 4 is the widow of the said deceased. She states that on the fateful day, at around 12.30 p.m., she (PW 4) and daughter-in-law, Nirmala Devi (PW 1), was in their house and that her husband and son were repairing thatched roof of palani, P.W.2 (Badai Sahani) and P.W. 3 (Mahadeo Sahani) were engaged as labourers, who were helping in repairing the palani and, in the meantime, the appellant and his son came and prevented them from putting the palani on the roof and, as a result thereof, altercation took place and, in course of altercation, accused Chandeshwar Singh and her husband, Gulzar Singh, moved on to the road, Chandeshwar Singh assaulted her husband with a bamboo tona (a piece of bamboo), whereupon her husband (Gulzar Singh) fell down on the ground and when her son, Shashi Bhushan Singh, tried to intervene, he, too, was assaulted on his head and thigh. 15. The informant (P.W. 6) supported the prosecution’s case as narrated in the First Information Report. 16. Besides the ocular evidence on the point of occurrence, the prosecution examined P.W. 5 (Vinod Kumar Singh), who was a witness to the seizure and inquest, and P.W. 9 (Shobha Kant Pathak), the Investigating Officer of the case. 17. P.W. 9 (Investigating Officer) has deposed that he was posted as Officer-in-Charge of Saraiya P.S. on 11.7.1987, he received fardbeyan and inquest report from Town P.S., Muzaffarpur. He proved the fardbeyan as Exhibit 6 and Inquest report as Exhibit 1). According to his evidence, on the basis of the fardbeyan, he drew a formal F.I.R. as Exhibit 1), he inspected the place of occurrence, which is a Kaccha road in village Govindpur Bahilwara, he found three trees of “Tar” and a “Nad” and contiguous to it, there was a Marai of Late Gulzar Singh, where the roof was erected. According to his evidence, on the basis of the fardbeyan, he drew a formal F.I.R. as Exhibit 1), he inspected the place of occurrence, which is a Kaccha road in village Govindpur Bahilwara, he found three trees of “Tar” and a “Nad” and contiguous to it, there was a Marai of Late Gulzar Singh, where the roof was erected. He noticed that an attempt was made to wipe off the blood stains with the aid of kudal, which he seized, and was marked as Exhibit 8, at the trial, the distance of palani and the house of the deceased being about 35 yards and that the window of the house of the deceased was visible from the place of occurrence. 18. On the strength of the evidences so adduced, the learned Addl. Public Prosecutor submits that the prosecution has been able to establish the guilt against the appellant under Section 302 of the Indian Penal Code for committing the murder of Gulzar Singh and under Section 307 of the Indian Penal Code for inflicting grievous injury on the informant with intent to commit his murder. 19. We have heard counsel for the parties and perused the materials on record. We would examine one by one the points raised by the defence. 20. The case of the defence is that P.W.2 and P.W. 3 have been set up as eye witnesses as an after-thought to improve the case and, as such, their evidence should be discarded. To our mind, there is substance in this submission of defence. We find that neither the informant, Shashi Bhushan Singh (P.W.6), in his fardbeyan, nor P.W. 1 (Nirmala Devi), his wife, and/or P.W. 4 (Roop Kanti Devi), mother of the informant, in their earliest statements before the police, mentioned that P.W.2 and P.W. 3 were also repairing Marai along with the informant and the deceased at the relevant point of time, when the occurrence took place. Later on, these witnesses, in their testimony, in the Court, for the first time, deposed that P.W.2 and P.W. 3 were also present at the time of occurrence. The Investigating Officer (P.W.9), in his cross-examination, supports the defence version that P.W.s 1, 4 and 6 did not name P.W.2 and P.W. 3 as witness to the occurrence in their statements made before him. 21. The Investigating Officer (P.W.9), in his cross-examination, supports the defence version that P.W.s 1, 4 and 6 did not name P.W.2 and P.W. 3 as witness to the occurrence in their statements made before him. 21. In view of evidence discussed, it is difficult for us to come to a conclusion that non-mentioning of the names of P.W.2 and P.W. 3, particularly, by the informant, in his First Information Report, are mere omissions. In our view, if P.W. 2 and P.W. 3 were engaged in re-fixing of Marai along with the informant and his father, when the incident took place, omission to mention their names cannot be considered as a mere omission inasmuch as their presence ought not to have escaped the informant’s attention, while lodging the First Information Report, being a very relevant and vital aspect. The Supreme Court, in the case of Arulvelu and Another v. State and Another, reported in 2010 Cri.L.J. 433, observed, at paragraph 16, that the First Information Report should, at least, mention broad story of the prosecution and not mentioning of material and vital facts may affect the credibility of the First Information Report. Furthermore, P.W. 2 and P.W. 3 were examined after 5 days and 21 days of the occurrence respectively, yet there is no explanation for the delay in their examinations, when they were, according to them, repairing Marai and witnessed the occurrence. 22. In view of the discussions held above, it is doubtful if P.W. 2 and P.W. 3 were present at the place of occurrence and, as such, it would not be safe to rely on their evidence. 23. The next limb of argument of the defence is that P.W.1 and P.W. 6 have not seen the occurrence as they have not been able to fully establish the place of occurrence beyond all doubts. According to P.W.1, wife of the informant, and P.W.6, the occurrence took place at the place of palani, whereas according to P.W. 4 (the mother of informant), the occurrence took place on the kachcha road. The Investigating Officer found blood on the road and no mark of assault was found at the place of palani. The finding of blood mark on the road supports the version of P.W. 4 that the occurrence took place on the road and contradicts thereby the evidence of P.W.1 and P.W. 6 that the occurrence took place near the Marai. The Investigating Officer found blood on the road and no mark of assault was found at the place of palani. The finding of blood mark on the road supports the version of P.W. 4 that the occurrence took place on the road and contradicts thereby the evidence of P.W.1 and P.W. 6 that the occurrence took place near the Marai. The place of occurrence, pointed out by the P.W. 1 and P.W. 6, is not established in view of the evidence of Investigating Officer and P.W. 4. It has been argued by the prosecution that katchcha road, where blood was found, is not very far from the place, where Marai was being erected, and, as such, it would not be very unnatural that they might have stepped on the road in course of their brawl. 24. We find that the Investigating Officer, in his evidence, while inspecting the place of occurrence, has mentioned the katchcha road, where blood stains were found, was located at a distance of 45 feet away from the place, where the Marai was erected. We are of considered opinion that the evidence of P.W. 1 and P.W.6 are not free from doubt and not reliable. 25. According to the prosecution, P.W. 4, in her evidence, has stated that her deceased husband was assaulted on the road and, as such, has correctly stated the place of occurrence. It is true that P.W. 4, in her deposition, has stated that marpit took place on the road, where the police, eventually, found blood stains. It is equally true that conviction can be sustained on the basis of solitary evidence, but such evidence has to be scrutinized with caution and has to inspire confidence. 26. P.W. 4, in her evidence, has stated that when her son, Shashi Bhushan Singh, went to save his father, he was caught by the accused Radha Devi, Shyam Sundar Singh and Suchitra Kumari. However, P.W. 9, the Investigating Officer of this case, has stated, at paragraph 29 of his evidence, that P.W. 4 did not make any such statement before him that when Shashi Bhushan Singh had gone to save his father, he was caught by accused Shyam Sunder Singh, Radha Devi and Suchitra Kumari. P.W. 4, in her evidence, has stated that she saw the occurrence by peeping through the window of her room. P.W. 4, in her evidence, has stated that she saw the occurrence by peeping through the window of her room. However, when her attention was drawn that before police, she had stated that after seeing the occurrence from the window, she, in fact, went to the place of occurrence, where she saw the incident, she made an evasive reply. Again, as regards statement before the police, she has deposed that she does not remember whether she had stated that the appellant assaulted her son on the left thigh or not. Further-more, P.W.4, in her statement before the Police, did not state that P.W. 2 and P.W. 3 were present at the place of occurrence, whom she tried to introduce subsequently as eye witnesses to the occurrence to improve the prosecution’s case. 27. We find that the evidence of P.W. 4 suffers from material contradictions and is not of unflinching nature to sustain conviction solely on her testimony. 28. Thus, in view of materials on record, we find that the evidence of witnesses, who have claimed to be the eye witnesses, are not credible and reliable. Accordingly, we hold that the prosecution has failed to establish the guilt of the appellant beyond all reasonable doubt. 29. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused appellants and the sentences passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences, which he stands convicted of, and he is hereby acquitted of the charges framed against him. 30. As the appellant is already on bail, his bail bonds are hereby cancelled and his sureties shall stand discharged. 31. Let the Amicus Curiae be paid a fee of Rs. 5,000/-. 32. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records. I.A. Ansari – I agree.