JUDGMENT : (Delivered by Hon'ble Mrs. Vijay Lakshmi,J.) 1. Challenge in this appeal is to the judgment and order dated 25.7.2012 passed by the Additional Sessions Judge, Court No. 2, Varanasi, in S.T. No. 96 of 2005, State of Uttar Pradesh Vs. Lal Chandra Dixit and others, whereby the trial court has convicted the appellants u/s 304 read with 34 I.P.C. and has sentenced them to life imprisonment. Each of the appellants has also been convicted and sentenced u/s 324 read with 34 I.P.C. with R.I. for three years and u/s 325 read with 34 I.P.C. with R.I. for five years and fine of Rs. 10,000/-; in default of payment of fine, three months' additional imprisonment and u/s 504 I.P.C. with imprisonment of one year. All the sentences have been directed to run concurrently. 2. Heard Sri Harish Chandra Tiwari assisted by Sri A.K. Srivastava, learned counsel appearing for the appellants as well as Sri Saghir Ahmad and Sri J.K. Upadhyay, learned A.G.A. representing the State. Perused the lower court's record. 3. The background facts in brief are that on 16.6.2004 at 11.05 P.M. an FIR was lodged by the informant/ injured Chavinath Dixit mentioning therein that the informant were four brothers, out of whom one brother namely Sakal Narayan Dixit had died earlier at young age and his widow Smt. Bela Devi was living with the informant. Partition had taken place among all the brothers about one year prior to the occurrence and all of them were living separately. On 16.6.2004 at about 7.30 A.M. the younger brother of informant namely Lal Chandra Dixit (accused-appellant no. 1), who after the partition had enclosed his portion by constructing a boundary wall which he started breaking so as to open a door in it making way through the land of the informant. When the informant tried to prevent him from opening the door and making the way through his land, accused Lal Chandra Dixit and his son Ashok Dixit attacked him with a 'Ramma' (a lathi with an iron ring put around it). When Bela Devi came to rescue him, she was also assaulted by the appellant Lal Chandra Dixit. As a result both of them sustained grievous injuries. The cousin brother of the informant namely Ramesh Dixit and a distant relative Santosh Dixit took them to P.H.C., Badagaon, from there they were referred to Kabir Chaura Hospital, Varanasi. When Bela Devi came to rescue him, she was also assaulted by the appellant Lal Chandra Dixit. As a result both of them sustained grievous injuries. The cousin brother of the informant namely Ramesh Dixit and a distant relative Santosh Dixit took them to P.H.C., Badagaon, from there they were referred to Kabir Chaura Hospital, Varanasi. A written report of the incident along with medical examination reports was sent to the Station Officer, P.S. Badagaon, Varanasi, by the informant with prayer to lodge the FIR. As the condition of Bela Devi was serious and she was unconscious due to head injury, she was admitted in B.H.U. Hospital, there her treatment continued till 26.6.2004. However, on 26.6.2004 she succumbed to her injuries. The information about her death was sent to P.S. Badagaon, Varanasi, on 29.6.2004 by the informant whereupon section 304 I.P.C. was added against the appellants. 4. The matter was investigated. The Investigating officer recorded the statements of witnesses, prepared site plan and submitted charge sheet against the appellants and one Patharu (co-accused), who has also been convicted by the trial court in the case, however, he is not an appellant in the present appeal. 5. In the trial court, charges u/s 304/34, 324, 325/34 and 504 I.P.C. were framed against the appellants, who denied the charges and claimed their trial. 6. The prosecution in order to prove its case produced ten witnesses in all, out of which three witnesses are witnesses of fact and rest are of formal character. A short description of the witnesses is as under: PW1 is the first informant/ injured Chavinath Dixit. PW2 Lalji Pandey is the brother of deceased Bela Devi. PW3 is Ramesh Chandra Dixit, who is said to have taken the injured to the hospital for medical treatment. PW4 Rajnath Dubey and PW5 Jai Singh are witnesses of inquest. PW6 is Dr. V. K. Dubey, who was posted at PHC Badagaon and who had medically examined the injured Bela Devi and Chavinath Dixit on 16.6.2004 and had referred them to Kabir Chaura Hospital, Varanasi. PW7 is Dr. O.P. Singh, who had conducted postmortem on Bela Devi. PW8 is S.I. Shivram, who had prepared the inquest report of deceased Bela Devi. PW9 is Dr. PW7 is Dr. O.P. Singh, who had conducted postmortem on Bela Devi. PW8 is S.I. Shivram, who had prepared the inquest report of deceased Bela Devi. PW9 is Dr. S. P. Singh, who was posted as Radiologist at Kabir Chaura Hospital, Varanasi, and had prepared the x-ray report of injured Chavinath Dixit on 17.6.2004 and PW10 is Sanjay Kumar Singh, who is the investigating officer of this case. 7. Apart from the above mentioned oral evidence, the prosecution has produced the following documents in proof of its case, written report (Ext. Ka-1), check FIR (Ext. Ka-4), application about death of Bela Devi (Ext. Ka-2), injury report of Bela Devi (Ext. Ka-9), injury report of Chavinath Dixit (Ext. Ka-10), x-ray report of Chavinath Dixit (Ext. Ka-14), inquest report (Ext. Ka-3), Postmortem report (Ext. Ka-12), charge sheet (Ext. Ka-15) and site plan (Ext. Ka-16). 8. After conclusion of prosecution evidence the statements of the appellants and co-accused Patharu were recorded u/s 313 Cr.P.C. in which they denied the truthfulness of the prosecution story and stated that they were not present at the time of the occurrence in their house and they do not know as to how Bela Devi and Chavinath Dixit had sustained injuries. However, they have admitted the fact that the partition had taken place between the brothers and after the partition, the appellants were residing separately. They have also admitted that Bela Devi died after ten days from the date of the incident. Appellant Lal Chandra Dixit has admitted the fact that the FIR was scribed by Tara Prasad Dixit. He has also admitted that Ramesh Chandra Dixit and Santosh Dixit had taken the injured to the Hospital. 9. No defence witness was produced by the appellants. 10. However, the learned trial court found the prosecution evidence reliable and worthy of credence. Accordingly, it held the appellants guilty and punished them as aforesaid, by the impugned judgment. 11. The legality and correctness of the impugned judgment has been challenged by the appellants on the following grounds: 1. All the prosecution witnesses are highly interested witnesses. There is no eyewitness of the occurrence except PW3 Ramesh Chandra Dixit, who has turned hostile. Despite that, the court below has convicted the appellants on the sole testimony of the informant Chavinath Dixit. 2. All the prosecution witnesses are highly interested witnesses. There is no eyewitness of the occurrence except PW3 Ramesh Chandra Dixit, who has turned hostile. Despite that, the court below has convicted the appellants on the sole testimony of the informant Chavinath Dixit. 2. The investigating officer has not collected the blood stained soil from the place of occurrence and has not prepared any memo of blood stained soil or blood stained lathis, which belies the prosecution case. 3. The iron rod namely 'Ramma', the weapon of assault, has not been taken into possession by the investigating officer. 4. The doctor has found the injury of Bela Devi caused by sharp edged weapon, whereas "Ramma" being a blunt object, the manner of occurrence becomes wholly doubtful. 5. No motive has been assigned to the appellants for causing such a heinous offence except that they were trying to open a door in their boundary wall, which was objected to by the informant Chavinath Dixit. There was absolutely no motive to cause such a grievous injury to Bela Devi, who is said to have come forward just to pacify the quarrel between the two brothers. 6. The statements of the witnesses suffer from material contradictions, improvements and embellishments but the trial court has not paid any attention towards it. In the FIR and in the statement recorded u/s 161 Cr.P.C. the role of inflicting injury by "Ramma" on Bela Devi has been specifically assigned to the appellant Lal Chandra Dixit and co-accused Patharu has been assigned the role of exhortation. However, the informant improved his statement and for the first time during his testimony he assigned the role of assaulting to Patharu also, which makes his statement unreliable. 7. Bela Devi had survived for more than ten days after the incident, which clearly indicates that the injuries sustained by her were not fatal. 8. Learned trial court has not considered the defence case about which suggestion was given to PW1 that one day prior to the incident Bela Devi had executed a will deed of her entire share in the property in favour of the daughter-in-law of the appellant Lal Chandra Dixit. Bela Devi was living with the informant Chavinath, his younger brother Devi Prasad Dixit, and Smt. Suman Devi, i.e. the wife of the informant Chavinath Dixit. Bela Devi was living with the informant Chavinath, his younger brother Devi Prasad Dixit, and Smt. Suman Devi, i.e. the wife of the informant Chavinath Dixit. But when she bequeathed her entire share in the property to the daughter-in-law of the appellant Lal Chandra Dixit, Suman Devi, wife of Chavinath Dixit and Devi Prasad Dixit, got annoyed and assaulted her. When Chavinath Dixit tried to rescue Bela Devi, he also sustained injuries. Thereafter in order to mount pressure and to save his wife Suman Devi and his brother Devi Prasad Dixit, who was living with him, the informant falsely implicated the appellants in this case. 9. Devi Prasad Dixit and Suman Devi, who admittedly were living with the complainant Chavinath Dixit and were present inside the house at the time of the incident and both of whom could be the most important witnesses in this case, have not been examined by the prosecution for the reasons best known to it. The suppression of these two most important material witnesses raises big question mark on the reliability of the prosecution story. 10. Learned counsel has further contended that there is delay in lodging the FIR. There is no description of broken wall or bricks of the broken wall in the site plan, which totally belies the prosecution case. Per contra, learned AGA has vehemently opposed the aforesaid contentions by arguing that the delay in lodging the FIR has been properly explained, which is evident from the statement of PW1/ complainant, who has categorically stated that he had gone to the police station but "Darogaji" said that first go to hospital and get the first aid thereafter he would lodge the FIR. Learned AGA has contended that thus the delay has been properly explained and somewhat delay which has been caused is only due to the reason that firstly the injured were sent to the hospital for medical treatment and after that the FIR was lodged. 12. Learned AGA has further contended that if the Investigating Officer has not shown the broken wall in the site plan or has not collected the blood stained soil from the place of occurrence or has not recovered the weapon of occurrence, all these are lacunae on the part of the investigating officer and as per settled legal position the accused would not get any advantage of it. It is also contended by learned AGA that there was no grudge against Bela Devi in the mind of the complainant, which is evident from the fact that the complainant himself is a marginal witness in the will deed. 13. It is further argued by learned AGA that the subsequent conduct of the appellants is also doubtful as the case diary shows that they were not found at their residence after the occurrence and had surrendered in the court after so many dates. Their abscondance from their residence clearly indicates their guilt. 14. On the aforesaid grounds the trial court has rightly convicted the appellants and no interference is required in the impugned judgment by this court in this appeal. 15. We have considered the rival contentions of the learned counsel for the parties. 16. To arrive at a correct conclusion it appears expedient to have a glance on the statements of the witnesses produced by the prosecution. 17. It has been mentioned earlier that the prosecution in this case has produced only three witnesses of fact and rest are of formal character. Out of the three witnesses of fact, apart from the injured witness (PW1 Chabinath, who is also the complainant) there is only one eyewitness, who is Ramesh Chandra Dixit, (PW3), who is said to have taken the injured to the hospital. However, PW3 has turned hostile and has not supported the prosecution case. He has denied the truthfulness of his earlier statement recorded u/s 161 Cr.P.C. and has stated that he never gave such statement to the investigating officer. He has categorically stated that the complainant/ injured Chavinath never told him as to who had assaulted him. PW2 Lalji Pandey is the brother of Bela Devi. He is not an eyewitness. He has stated that Bela Devi became widow only within six months of her marriage. She did not perform second marriage. He had further stated that he did not know whether any dispute existed between Bela Devi and the appellants. He used to visit the matrimonial home of Bela Devi but Bela Devi had never made any complaint against the appellants Lal Chandra Dixit and Ashok Dixit to him. PW2 has denied having any knowledge about the land dispute between the brothers. He used to visit the matrimonial home of Bela Devi but Bela Devi had never made any complaint against the appellants Lal Chandra Dixit and Ashok Dixit to him. PW2 has denied having any knowledge about the land dispute between the brothers. He has stated that whatever he knows about the incident was told to him by Chavinath and on the basis of the information given by Chavinath he is stating before the court. 18. Thus, the statement of PW2, who is not an eyewitness of the occurrence and who has categorically stated that he came to know about the incident on the basis of the information given to him by the complainant Chavinath, being hearsay, is not relevant and is of not much help to the prosecution. 19. Now, it is very clear that the prosecution case in the present appeal rests only on the testimony of PW1, who is the complainant and also an injured witness and who has supported the prosecution case. 20. It is well settled legal principle that an accused may be convicted on the basis of the solitary evidence and it is the quality and not the quantity of the evidence, which is important. However, it is also well settled that the sole witness should be wholly reliable and of sterling quality. 21. Explaining/ elaborating the meaning of 'sterling witness', Hon'ble Supreme Court in the case of Rai Sandeep Vs. State (NCT of Delhi) (2012) 8 SCC 21 has observed as under:- "In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of prosecution qua the accused. There should be not be any prevarication in the version of such a witness." 22. It should be natural and consistent with the case of prosecution qua the accused. There should be not be any prevarication in the version of such a witness." 22. Now testing the statement of PW1 on the touchstone of the above cited legal principle, it appears that PW1 has first stated that he is unable to tell whom he had dictated the FIR. Later on he stated that he had dictated the FIR to Tara Prasad Dixit. However, Tara Prasad Dixit i.e. the scribe of the FIR has not been produced by the prosecution as a witness. PW1 has admitted the fact that no policemen accompanied them to PHC, Badagaon, Varanasi. He has first stated that accused Patharu had exhorted and the appellants Lal Chandra Dixit and Ashok Dixit had inflicted injury. However, later on he had improved his version by stating that co-accused Patharu had exhorted and assaulted too. He has admitted the fact that one day prior to the occurrence Bela Devi had executed a will deed of her entire share in the property in favour of Aarti Devi, who is daughter-in-law of the appellant Lal Chandra Dixit. He has also admitted the fact that Bela Devi was residing with him. He has stated that Bela Devi, he himself and Devi Prasad were combined and they were living together. He has also admitted that Suman Devi is his wife with whom he had performed marriage at the age of more than 50 years. He has also stated that on the day of occurrence he, Bela Devi, Devi Prasad and his wife Suman Devi were present in his house. He has admitted the fact that before the occurrence, his wife Suman Devi and his younger brother Devi Prasad had received the knowledge about the execution of the will deed by Bela Devi in favour of Aarti Devi, daughter-in-law of the appellant Lal Chandra Dixit. However, PW-1 has denied the suggestion given by the defence that due the reason that Bela Devi, who was residing with the informant and his younger brother Devi Prasad, but had executed the will deed of her entire share in the property, in favour of Aarti Devi, daughter-in-law of the appellant Lal Chandra Dixit, his wife Suman Devi and brother Devi Prasad got annoyed and assaulted Bela Devi causing fatal injuries on her body. When the informant came to rescue Bela Devi, he also suffered injuries. It is also worth mentioning that PW1 has admitted the fact that one person namely Nanhe was also present at the place and time of the occurrence, but he has neither tried to save them nor he accompanied them to the police station or PHC, Badagaon. 23. It appears strange to us that Suman Devi, Devi Prasad and Nanhe, who were admittedly present in the same house at the time when the occurrence had taken place and who could have been the most important witnesses in this case, have not been produced by the prosecution. 24. We have also perused the case diary available on the original record, which shows that even the investigating office has not bothered to record the statements of Suman Devi or Devi Prasad or Nanhe. The non-examination of all these three important witnesses even by the Investigating officer makes the prosecution story doubtful. 25. The motive, as assigned by the prosecution that the appellants were trying to break open a door in the boundary wall, does not find corroboration either from the site plan or the statement of any of the eyewitnesses. 26. There is no doubt that the well settled legal position is that the latches and lacunae on the part of the investigating officer will not provide any benefit to the accused in a criminal case but if the investigating officer while preparing the site plan at the instance of the complainant, has not shown it in the site plan, complainant had the opportunity to make a complaint against him or to move an application for fair investigation, but nothing was done by the complainant in this case. 27. The burden was entirely on the prosecution to prove its case beyond shadows or reasonable doubts. However, the prosecution in this case has miserably failed to discharge the burden. 28. The sole testimony of PW1 suffers from several embellishments, improvements and contradictions and it neither appears safe nor proper to convict the appellants on the basis of the sole testimony of PW1 in this case. Under these circumstances and in preponderance of probabilities, the defence case inspires more confidence than that of the prosecution case. 28. The sole testimony of PW1 suffers from several embellishments, improvements and contradictions and it neither appears safe nor proper to convict the appellants on the basis of the sole testimony of PW1 in this case. Under these circumstances and in preponderance of probabilities, the defence case inspires more confidence than that of the prosecution case. However, the learned trial court, by the impugned order has found the appellants guilty only on the basis of the fact that the appellants did not take the injured to the hospital for treatment and they absconded from the place of occurrence. 29. We do not find that the aforesaid two grounds were sufficient to hold the accused- appellants guilty specially in a criminal case, which is based on the sole testimony in view of the well settled legal position. 30. In State of Karnataka Vs. Venketesh, AIR 1992 SC 674 , the Hon'ble Apex Court has held as under: The failure of the accused to appear before the police cannot give rise to any inference of their guilt and therefore, the alleged circumstance of absconding was not rightly used by the learned Sessions Judge against the accused. In Saheb Lal Jumassha Sayyad Vs. State of Maharashtra, 2010 All MR (Cri) 766 it has been held that mere abscondence by itself is not conclusive either of guilt or guilty conscience. A person may abscond on account of fear of being involved in the offence or for any other allied reason. 31. In view of the above discussions, the impugned judgment of the trial court is liable to be set aside and the appellants deserve to be acquitted from the charges leveled against them. 32. Accordingly, this appeal succeeds and is allowed. The impugned judgment and order of conviction dated 25.7.2012 passed by the trial court is hereby set aside and the appellants are acquitted of all the charges. The appellants are in jail. They be released forthwith, if not wanted in any other case. 33. Keeping in view the provisions of section 437-A Cr.P.C. each appellant is directed to forthwith furnish a personal bond in the sum of Rs. The appellants are in jail. They be released forthwith, if not wanted in any other case. 33. Keeping in view the provisions of section 437-A Cr.P.C. each appellant is directed to forthwith furnish a personal bond in the sum of Rs. One Lakh and two reliable sureties each in the like amount before the trial court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 34. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance.