JUDGMENT Hon’ble Rekha Dikshit, J.—This appeal assails the correctness of the judgment dated 08 November, 1983 passed by VIII Additional Sessions Judge, Bareilly, in State of U.P. v. Roshan Lal and others, the Additional Sessions Judge has convicted accused Roshan Lal, Piarey Lal, Bankey Lal and Kali Charan are convicted under Section 302 I.P.C. read with Section 34 I.P.C. and each one of them is sentenced to undergo imprisonment for life and also to pay a fine of Rs. 500/- each. If they fail to deposit the fine they will undergo R.I. for one year each. 2. The appellant No. 2 Piarey Lal son of Baldeo Prasad and appellant No. 4 Kali Charan son of Puran Lal died, during the pendency of appeal, the report of Chief Judicial Magistrate dated 18.4.2012 in this context is on record, therefore, the appeal against appellant No. 2 Piarey Lal and appellant No. 4 Kali Charan stands abated vide order dated 15.5.2012 of the Court, accordingly. 3. Now, we proceed with the appeal of appellant No. 1 Roshan Lal and appellant No. 3 Bankey Lal. 4. Narrated concisely, prosecution case against the appellant is that in the year 1979 complainant Chhotey Lal and the deceased Kunwar Sen had a quarrel with Roshan Lal accused and his brother Dhakan Lal on account of water dispute and after that incident Dhakan Lal was murdered. The deceased Kunwar Sen was an accused in the murder case of Dhakan Lal but he was acquitted from the Court in that case. Due to this account the family members of Dhakan Lal bore enmity to Kunwar Sen and complainant Chhotey Lal. On 14.9.1982 Chhotey Lal and deceased Kunwar Sen were cutting ‘chari’ from the field of Pandit Rameshwar which they had purchased from him. Nearby Rameshwar was also cutting his ‘chari’. At about 09:30 am. accused Roshan lal armed with a pistol, accused Piarey Lal and Bankey Lal armed with a Bhala and accused Kali Charan armed with a Kanta appeared on the spot from the western side of the field and Roshan Lal said loudly that their enemies were present and they should be killed and should not be allowed to escape. Hearing it complainant Chhotey Lal and his brother Kunwar Sen at once ran to save themselves. However, the accused persons followed Kunwar Sen and caught him at the chak road near the village. Hearing it complainant Chhotey Lal and his brother Kunwar Sen at once ran to save themselves. However, the accused persons followed Kunwar Sen and caught him at the chak road near the village. They pulled him down and the accused persons inflicted several injuries to him. 5. The dead body of the Kunwar Sen was sent for post mortem where he was examined by Dr. S.K. Khare (P.W.-3), Exhibit ka-10 is post mortem report, in which ante mortem injuries are as follows: (i) Multiple incised wound ten in number on the top of the scalp of varying sizes from 3 cm to 2 cm x ½ cm scalp deep extending from the fore head to the superior Nuchal line transversely 6 cm above the right year to 10 cm above left ear. (ii) Two punctured wound 1 cm x ½ cm bone deep on the right mastoid region. (iii) Punctured wound 1 cm x ½ cm x muscle deep on the back of neck right side 7 cm behind right ear. (iv) Incised wound 6 in number varying 2 ½ cm x ½ cm muscle and mouth cavity deep smallest wound length is 1 cm on the left side of the face. (v) Incised wound through and through the upper lip 2 cm in the middle. (vi) Two incised wounds 2 cm x ½ cm x bone deep x 3 cm x ½ cm x bone deep separated ½ cm from each other on the front of the chin. (vii) Seventeen multiple punctured wound infront of the neck varying sizes 2 cm x ½ cm x tranchea deep and 1 cm x ½ cm x muscle deep. (viii) Eleven punctured wound scattered on the whole abdomen and lower part of the chest varying sizes 3 cm x 1 cm and 2 cm x ½ cm x muscle and cavity deep. (ix) Punctured wound two ½ cm x ½ cm x muscle deep on the back of right fore arms in the middle. (x) Incised wound 2 cm x ½ cm x muscle deep on the back of right arm 2 cm above elbow joint. (xi) Three incised wound on the darven of the left hand sizes 1 cm x ½ cm and ½ cm x ½ cm x skin and muscle deep. (x) Incised wound 2 cm x ½ cm x muscle deep on the back of right arm 2 cm above elbow joint. (xi) Three incised wound on the darven of the left hand sizes 1 cm x ½ cm and ½ cm x ½ cm x skin and muscle deep. (xii) Two punctured wound 1 cm x ½ cm and ½ cm x ½ cm x muscle deep on the root of the neck on the back. (xiii) Punctured wound ½ cm x ½ cm x muscle deep on the middle of back right side 2 cm from median. (xiv) Punctured wound 2 cm x ½ cm x muscle deep on the right back 2 cm. above iliac crest. 6. The case was investigated by S.O. Mahesh Chandra Chaturvedi P.W-4 who submitted charge-sheet Exhibit ka-15, after completing the investigation. 7. To bring whom the guilt of the appellants, the prosecution has examined six witnesses, no evidence oral or documentary has been adduced in defence. 8. P.W. 1 Chhotey Lal the complainant has corroborated his F.I.R. and stated that in the year 1979, he and his brother Kunwar Sen had a quarrel with accused Roshan Lal and DhakanLal, over water dispute and after this tiff DhakanLal was murdered. Kunwar Sen (deceased) the brother of P.W. 1 was an accused in the murder case of DhakanLal but he was acquitted in the murder case by the Court prior to this occurrence. Roshan Lal was enimical to Kunwar Sen due to this case. 9. On the day of the alleged occurrence at about 09:30 am, the complainant and his brother Kunwar Sen, were cutting ‘chari’ on the field of Pandit Rameshwar Dayal, which they had purchased from him, when the four accused came there. Roshan Lal was armed with a pistol, Bankey Lal and Piarey were armed with Bhalas while Kali Charan was having a small Kanta. Roshan Lal fired a shot from the pistol and challenged the killing of their old enemies present there on hearing this P.W.1 and his brother ran towards the village on the northern side, followed by the accused persons. When Kunwar Sen reached near the chak road he was caught by the accused persons close to the field of Dharamveer on the chak road and was beaten by them. At that time the complainant, who had gone a little ahead, raised an alarm. When Kunwar Sen reached near the chak road he was caught by the accused persons close to the field of Dharamveer on the chak road and was beaten by them. At that time the complainant, who had gone a little ahead, raised an alarm. However, he did not go to save his brother due to fear. The accused persons inflicted several injuries to Kunwar Sen by Kanta and Bhala on account of which he died on the spot. At the alarm of the complainant, witness Rameshwar Lal, Mohan Lal and Dharamveer arrived and they saw the occurrence. 10. P.W-2, Sub Inspector Jagdish Prasad Tyagi prepared inquest report of dead body of Kunwar Sen and proved the same as Exhibit ka-3, he also proved other documents related to further procedure concerning post mortem of dead body, i.e., from Exhibit ka-4 to Exhibit ka-9. 11. P.W-3, Dr. S. K. Khare has stated that on 15 September 1982 he conducted the post mortem of dead body Kunwar Sen. The report of which Exhibit K-10 is proved by him. He has also stated that the death could have been caused on 14 September 1982 at 09:30 am. and the injuries found on the dead body of the deceased could have been caused by small Kanta and bhala. 12. P.W-4, Mahesh Chandra Chaturvedi Investigating Officer of this case, has proved relevant prosecution papers, namely, recovery memo Exhibit ka-2, Chik F.I.R. Exhibit ka-11, GD Exhibit ka-12, site plan Exhibit ka-13 and ka-14. He recorded the statement of witnesses and after completing investigation, submitted charge-sheet Exhibit ka-15 in Court. 13. P.W-5, Constable Chandra Pal Singh alongwith Constable Harnath Singh brought the dead body in the sealed condition to Bareilly for post mortem on 15.9.1982. 14. P.W-6, H/M Jhandu Singh Yadav has proved F.I.R. Exhibit ka-11 prepared on the basis of written report of complainant and GD No. 25 Exhibit ka-12. 15. Incriminating evidence and circumstances were put to the appellants under Section 313 Cr.P.C. who denied the allegations of the prosecution. Appellant No. 1 Roshan Lal admitted that Dhakan Lal was murdered over water dispute and in that murder case deceased Kunwar Sen was an accused and he himself was a complainant. He also admitted that the deceased Kunwar Sen was acquitted in that case prior to the present occurrence. Appellant No. 1 Roshan Lal admitted that Dhakan Lal was murdered over water dispute and in that murder case deceased Kunwar Sen was an accused and he himself was a complainant. He also admitted that the deceased Kunwar Sen was acquitted in that case prior to the present occurrence. He has, however, denied that on this account he bore enmity with Kunwar Sen and has committed the murder of Kunwar Sen. He has also stated that Kunwar Sen was involved in immoral activities, as such, several persons bore enmity with him. However, the complainant and other Brahmins were under the impression that he (Roshan Lal) had implicated Kunwar Sen in the murder case of Dhakan Lal falsely and, due to this account the Brahmins bore enmity with him. He has further stated that Kunwar Sen was murdered in the night and he has been falsely implicated. Appellant Bankey Lal has stated that he was a witness in the murder case of Dhakan Lal, that is why the complainant was enimical to him. 16. The trial Court held that appellants committed the murder of deceased Kunwar Sen and the prosecution established the circumstance, proving the appellant’s guilt under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced them to undergo imprisonment for life and also to pay a fine of Rs. 500/- each, in default to undergo rigorous imprisonment for one year each, respectively. Aggrieved by the verdict of conviction, the appellants preferred this appeal. 17. Heard Sri Anees Ahmad, learned counsel for the appellants, Sri Ashish Pandey, learned AGA for the State and perused the record. 18. Learned counsel for the appellants has submitted that Roshan Lal has been assigned only the role of exhortion and firing in the air which did not hurt the deceased. This averment has been made in the F.I.R. also, but in his oral testimony he further improved upon the case by stating that appellant Roshan Lal caught hold of deceased Kunwar Sen and rest of the accused assaulted him by Bhala and Kanta. It has been emphasised that there is no recovery of alleged country made pistol though firing in air has been assigned to appellant Roshan Lal. He has further argued that the injuries as per post mortem report of the deceased, do not commensurate with the weapon alleged to have been used by appellant Bankey Lal, i.e., Bhala. 19. It has been emphasised that there is no recovery of alleged country made pistol though firing in air has been assigned to appellant Roshan Lal. He has further argued that the injuries as per post mortem report of the deceased, do not commensurate with the weapon alleged to have been used by appellant Bankey Lal, i.e., Bhala. 19. Further it has been argued that no public witness other than the complainant has been adduced to corroborate the alleged averment and deposition of the complainant, single testimony of complainant cannot be relied upon as he is the brother of deceased as such an interested witness. 20. Per contra, learned A.G.A. for the State has argued that the prosecution has established the guilt of appellants in the murder of deceased Kunwar Sen in this case. The F.I.R. version has fully been supported by ocular testimony based on the said evidence, the Court below rightly convicted the appellants and the impugned judgment warrants no interference. 21. We have considered the rival contentions and perused the impugned judgment and material on record. 22. In the instant case deceased Kunwar Sen received as many as 14 injuries on his body which includes incised and punctured wounds. The said fact is substantiated by the averments in First Information Report lodged by eye-witness count and medical evidence. Learned counsel for the appellants has raised vital question regarding recovery of country made pistol alleged to have been used by appellant Roshan Lal at the time of commission of crime. Though the appellant Roshan Lal has been assigned the role of exhortion and firing from country made pistol but admittedly, neither the country made pistol nor used cartridges have been recovered by the investigating agency. This fact creates a little suspicion regarding the role assigned to him as no other corroborative evidence is on record to substantiate the allegation of exhortion and firing by appellant No. 1. 23. The complainant is the sole witness of the alleged incident but his testimony against Roshan Lal appears to be too exaggerated as he has stated in his statement as prosecution witness that while running forward intermittently he looked back and saw Roshan Lal exhorting and firing in air. The mental state of a person running to save himself cannot expected to be such to see the factual circumstances while looking back. The mental state of a person running to save himself cannot expected to be such to see the factual circumstances while looking back. Therefore his uncorroborated version does not appear to be convincing enough to prove the role of Roshan Lal. The sole testimony of the complainant against appellant No. 1 does not have appeal to hold Roshan Lal guilty, especially in view of the presence of other witnesses at the time of commission of crime, who have not deposed before the Court. 24. Further, the deposition of complainant (P.W. 1), vis-a-vis, Roshan Lal that he caught hold of deceased Kunwar Sen, which facilitated the commission of crime, has been mentioned for the first time before the Court. Such averment neither find place in the First Information Report nor in his statement during investigation. No recovery of country made pistol also creates a serious doubt regarding the alleged averment against Roshan Lal, therefore, it may be concluded that the prosecution has failed to establish the guilt of appellant No. 1 Roshan Lal beyond reasonable doubt. If more than one inferences can be drawn, then the accused must have the benefit of doubt. In the facts and circumstances of the case, we are satisfied that the conviction of appellant No. 1 Roshan Lal cannot be sustained and his appeal ought to be allowed. 25. As far as the evidence against appellant No. 3 Bankey Lal is concerned, the First Information Report itself contains the averment regarding use of Bhala by him during the commission of crime, which is corroborated by the ocular as well as medical evidence. 26. P.W.3 Dr. S. K. Khare has categorically stated in his oral testimony that the injuries on the body of the deceased could have been caused by small Kanta and Bhala, thus, corroborating the factum of use of bhala in the crime. The guilt of appellant No. 3 Bankey Lal is fully corroborated and substantiated by the oral as well as the documentary evidence and prosecution has efficiently established its case against appellant No. 3. 27. This is a broad day light murder in which the accused persons have brutally killed Kunwar Sen in a planned manner due to previous enmity, the solitary witness of this gruesome murder is the brother of the deceased, complainant Chhotey Lal (P.W. 1) who has narrated the entire incident in detail in the Court. 27. This is a broad day light murder in which the accused persons have brutally killed Kunwar Sen in a planned manner due to previous enmity, the solitary witness of this gruesome murder is the brother of the deceased, complainant Chhotey Lal (P.W. 1) who has narrated the entire incident in detail in the Court. The other three witnesses alleged to have seen the occurrence, namely, Mahesh Lal, Dharamveer and Pandit Rameshwar have not been produced in the Court by the prosecution, as they were reported to have colluded with the accused persons, hence, they were, accordingly, discharged. 28. P.W-1, has categorically stated that out of the four accused, Roshan Lal was armed with the pistol by which he fired a shot in the ‘chari’ field in the beginning, he did not use pistol afterwards. The other three accused who attacked and caused injuries to Kunwar Sen they were Kali Charan who was armed with a Kanta, Piarey Lal and Bankey Lal who were armed with bhala each. Dr. S. K. Khare (P.W-3) who conducted the post mortem of the deceased found 14 ante mortem injuries on the dead body which included punctured and incised wounds. The doctor has also stated that all these injuries could have been caused by a small Kanta and bhala, thus, corroborating the allegation of use of bhala in the commission of crime by appellant No. 3 Bankey Lal. 29. The First Information Report of this case was lodged promptly at 03:05 p.m. and the incident took place in broad day light, at about 09:30 am, and it cannot be believed that the complainant who is real brother of the deceased would spare the real murderers and will implicate accused falsely. The testimony of complainant (P.W-1), who is eye-witness of the alleged incident, against Bankey Lal is very specific that he assaulted the deceased with ‘bhala’ which is corroborated by medical evidence also. The complainant was present during the commission of crime and his testimony against Bankey Lal is so clinching and cogent which leads to no other inference than to his guilt. 30. It is well-settled that the accused can be convicted on the testimony of a solitary witness if the testimony is reliable and trustworthy. The complainant was present during the commission of crime and his testimony against Bankey Lal is so clinching and cogent which leads to no other inference than to his guilt. 30. It is well-settled that the accused can be convicted on the testimony of a solitary witness if the testimony is reliable and trustworthy. In the instant case the solitary witness of this murder is Chhotey Lal who was cutting ‘chari’ with his brother deceased Kunwar Sen when the accused appeared in the field of Rameshwar and subsequently when followed by the accused persons, he ran a bit faster than his brother Kunwar Sen and hence he saw the occurrence from some distance as a helpless spectator. To emphasize Chhotey Lal is the sole eye-witness of the crime, therefore, there appears no reason as to why his testimony should not be believed against Bankey Lal to establish his guilt. 31. Thus, the trial Court has rightly arrived at the conclusion on the basis of the prosecution evidence that appellant No. 3 Bankey Lal was involved in the murder of the deceased and he took active participation through the use of bhala in murdering the deceased. The finding recorded by the trial Court for convicting the appellant No. 3 does not call for any interference by this Court and the conviction of appellant No. 3 is hereby upheld. 32. On an overall analysis, we find present appeal of Bankey Lal being devoid of any merit and liable to be dismissed, hence, dismiss it by confirming conviction and sentence awarded to appellant No. 3 Bankey Lal through impugned judgment and order. 33. The appellant No. 3 Bankey Lal is in jail. He shall remain in jail to serve out sentence awarded by the trial Court in pursuance of the impugned judgment and order. 34. The conviction of appellant No. 1 Roshan Lal under Section 302 I.P.C. read with Section 34 I.P.C. is set aside and the appeal is allowed. The appellant No. 1 is in jail and he is ordered to be set at liberty forthwith, if not required in any other case. 35. This appeal stands partly allowed. 36. Registrar General is directed to ensure the compliance by forwarding the copy of the judgment to the District Judge, Bareilly.