JUDGMENT : Ratnaker Bhengra, J. The present appeal is directed against the judgment of conviction and order of sentence dated 24th February, 2003 passed by learned 2nd Additional Sessions Judge, Seraikella in Sessions Trial No. 320 of 1990 whereby and whereunder the appellants have been convicted and sentenced in the following manner:- i. Appellant No. 1 Mohan Majhi was convicted under section 304 part II of the Indian Penal Code and sentenced to undergo R.I. for 7 years and to pay fine of Rs. 10,000/- and in default to undergo S.I. for 2 months. ii. Appellant no. 2, Gajam Majhi, was convicted under sections 436, 447 and 143 of the Indian Penal Code and was sentenced to undergo R.I. for 4 years and a fine of Rs.5,000/-under Section 436 of the Indian Penal Code and to suffer S.I. for one month in default of payment of fine. He was further sentenced to undergo S.I. for two months and a fine of Rs.500/- under Section 447 of the Indian Penal Code and further S.I. for 10 days in default of fine. He was further sentenced to undergo S.I. for 3 months and a fine of Rs.500/- under Section 143 of the Indian Penal Code and in default of fine to undergo further S.I. for 10 days. iii. Appellant no. 3, Bidu Majhi was convicted under sections 447 and 143 of the Indian Penal Code and he was sentenced to undergo S.I. for 2 months and a fine of Rs. 500/- under Section 447 of the Indian Penal Code and further S.I. for 10 days in default of payment of fine. He was further sentenced to undergo S.I. for three months and a fine of Rs.500/- under Section 143 of the Indian Penal Code and in default of payment of fine to undergo further S.I. for 10 days. 2. The prosecution case as per the fardbeyan of the informant Sarla (P.W. 2) is that she was sleeping in her house along with two younger sisters. Her father Sohrai Majhi and brother (P.W. 5) had gone to watch Kali Puja in the village. It is stated that the accused Mohan Majhi on 28.10.1989 in the mid-night came and pushed the door of the house, whereupon the informant raised halla but no one came to her rescue as because of the loudspeakers volume. Her father Sohrai Majhi and brother (P.W. 5) had gone to watch Kali Puja in the village. It is stated that the accused Mohan Majhi on 28.10.1989 in the mid-night came and pushed the door of the house, whereupon the informant raised halla but no one came to her rescue as because of the loudspeakers volume. Thereafter, the informant went to the Kali Puja Pandal to call her father and she told him about the incident and then she and her father returned home. On reaching home her father told the informant to go inside and she went inside leaving her father standing outside. It is stated that Mohan Majhi along with 5-6 others was standing beside the house. Mohan Majhi released an arrow that hit her father on the chest and her father fell on the ground. On raising halla several neighboures came at the spot and the father was taken to T.M.H. for treatment. It is stated that thereafter the accused persons set her house ablaze on fire and fled away. Informant’s father was declared dead at T.M.H. the same day on 29.10.1989. 3. On the basis of the fardbayan of informant, P.W. 2, Gamharia P.S. Case No. 61 of 1989 was registered against the accused persons and after investigation, the police submitted charge sheet. Cognizance of the offence was taken and the case was committed to the court of sessions. Charges were framed against the accused persons to which the accused pleaded not guilty and claimed to be tried. 4. The learned court below after considering the materials available on record convicted and sentenced the appellant as aforesaid. Hence this appeal. 5. During the course of trial, the prosecution examined altogether 11 prosecution witnesses. 6. P.W. 2 Sarla is the informant and daughter of the deceased. She deposed that the incident is of 2 years ago, on a Saturday night. She along with her younger sister were asleep at home. Her brother and her father had gone to mela in the village. At night Mohan Majhi came and pushed the door. She shouted but no one came because loud speaker was blaring. Then she went to call her father and on meeting him, she told him about the incident. They returned home together. Her father stood in the courtyard and told her to go inside. At night Mohan Majhi came and pushed the door. She shouted but no one came because loud speaker was blaring. Then she went to call her father and on meeting him, she told him about the incident. They returned home together. Her father stood in the courtyard and told her to go inside. She sensed that Mohan Majhi, Gajam Majhi, Kora, Bidu, Birbal and Gopal were there. Mohan shot arrow at her father which hit him on his chest and he fell down. On alarm, village persons came at which the accused persons fled away. She further deposed that village people carried away her injured father to the TMH hospital. She stayed at home. After her father was taken to the hospital then the above named accused came and set fire to the house and fled away. Her father died at hospital and on hearing it she went to the hospital and saw her father dead. Police had come to the hospital and there her statement was taken and it was read aloud and she understood it and thereafter she put her thumb imprint on it. On the same day, police came from Gahmaria police station and took her restatement. In her cross examination she deposed that it was the occasion of Kali Puja Mela and her father and brother had gone to the mela. They had shut the door and were sleeping and on the push of the door she had raised alarm. The door opened on being pushed because from inside there was no latch. The person pushing the door did not come inside. Her mother and sister remained inside. She went out in the courtyard and saw Mohan. She did not ask Mohan anything and he also said nothing. Then she went to the mela to call her father. On meeting her father she informed that Mohan had pushed open the house. She did not search for her brother in the mela and returned home with her father. On returning home with her father, Mohan was standing in front of the courtyard but her father did not see him. Her father remained in the courtyard while she went inside. Gajam, Bidu, Komra, Birbal and Gopal were also standing there with Mohan but her father had not seen the rest of them. They had concealed themselves. When she went inside the house her mother and sister were sleeping. Her father remained in the courtyard while she went inside. Gajam, Bidu, Komra, Birbal and Gopal were also standing there with Mohan but her father had not seen the rest of them. They had concealed themselves. When she went inside the house her mother and sister were sleeping. She kept the door open. When she made alarm, then they awoke. She screamed “tir vinda” “tir vinda” i.e. “Arrow Shot” “Arrow Shot”. When her father was shot by the arrow, she was at a distance of 8 -10 steps away. She was near her father when she made alarm and Mohan was about 8 to 10 ft. away in front of her father. When she made alarm then many village persons came, however, the accused remained hidden. She did not tell the village people that the accused had hidden themselves. The village people took her father to hospital on a motor vehicle. Till the time the people were taking her father to hospital, she had not told them that the accused were hiding there. Then the accused fled away. After her father had been taken to the hospital, then her mother, her sister and she went inside. After the villagers had taken away her injured father then the accused persons came again from where they were hiding and set aflame the house. The accused set aflame the straw made house. The fire was set by Gajam with the help of matchbox. After setting aflame the house, the accused returned. On alarm being made by her again, Arjun, Bisram, Digu and others came and put off the fire. There is a pit in front of the house and with water from that pit, fire was put out. When the villagers had come, no accused person was there. She further deposed that there was a dispute with Gajam, Bidu and others. Gopal had taken away her sister three years ago and that there was a dispute and appellants had friendship with Gopal. In cross examination P.W. 2 in paragraph no. 18 deposed that she saw Mohan and the other accused before she returned with her father from the mela and accused were concealing themselves in the bushes in front of courtyard. They were hiding at a distance of 8-10 ft. in front of courtyard. In cross examination P.W. 2 in paragraph no. 18 deposed that she saw Mohan and the other accused before she returned with her father from the mela and accused were concealing themselves in the bushes in front of courtyard. They were hiding at a distance of 8-10 ft. in front of courtyard. She deposed about Mohan pushing the door of the house and further said that from the time Gopal had taken her sister Kusum away from that time there was dispute. In paragraph no. 20, she deposed that chala was about 20 hand long and that in the chala there was bamboo sticks which also was burnt. 7. P.W. 5 is Sukhram Majhi. He is the brother of the informant. He deposed that the incident is of four years ago. It was a Monday night and the time of Kali Puja and he had gone to see the puja. His mother and sister were at home, his sister name is Sarla and mother’s name is Thakurayan Majhian. At night, he came to know that his father was shot arrow by Mohan Majhi and his friends. On hearing this news, he went home. He met his sister, his sister Sarla told him that father was shot arrow by Mohan Majhi, Bidu, Gajam, Birbal, Gopal and Madho Majhi. He further deposed that he took his father to the Tata hospital. When his father was taken to hospital then the accused set aflame his house. His father died during treatment in the hospital. Gopal Majhi had taken his sister Kusum to Borhadih. We had brought back Kusum forcefully from there. This is the reason, the accused people together killed his father. In his cross-examination in paragraph no. 8 he has deposed that his sister Kusum was not married before and he had not told before the police that Kusum was married at Buradih village. Gopal had taken his sister forcefully against her will. His father and he had not lodged a case against Gopal. They had not told the police in their statement that Gopal had forcibly took away his sister. In paragraph no. 9 he has deposed that his house was burnt to the extent of two hands, one wood was burnt. Village people had put off the flames with water before he reached there. He had seen Mohan, Birbal burning the house. 8. P.W. 10 is Arbind Kumar Sinha. In paragraph no. 9 he has deposed that his house was burnt to the extent of two hands, one wood was burnt. Village people had put off the flames with water before he reached there. He had seen Mohan, Birbal burning the house. 8. P.W. 10 is Arbind Kumar Sinha. He is the Investigating Officer of the case. He has deposed that on 28.10.1989 he was posted at Gamharia police station. He deposed that he knew Sri B.N. Singh the then ASI, Bistupur, Jamshedpur Police Station. He further deposed that the fardbayan was recorded at the TMH and was in the handwriting and bears the signature of Sri B.N. Singh which has been marked as Ext.-2. He further deposed that the place of occurrence was related to his police station and therefore B.N. Singh had sent the fardbayan to his police station. He had made endorsement of the case which was in his writing and signature and marked as Ext.-2/1. After registering the case, he took over the investigation and took the restatement of the informant and visited the place of occurrence. The place of occurrence is at Raptcha village in the courtyard of the house of the deceased Sahrai Majhi. The courtyard is open from all four sides. In the northeast corner of the courtyard there is a custard apple tree and below this tree the deceased was shot by arrow. The incident was reported to him 3-4 days after the incident because of treatment at the TMH. During inspection of the place of occurrence, he saw the straw roof and the corner burnt to the extent of about one feet. He did not seize anything, but the burnt portion could be clearly seen. He further deposed he took the statement of the wife of the deceased and she has said that when she was sleeping in the night then Mohan and seven to eight other persons had come to their house and pushed at the door of the house. Due to loudspeaker blaring on the occasion of Kali puja, no men had come then. She then instructed her daughter Sarla to call her husband. She told that when her husband returned then accused were hiding somewhere and on being challenged by her husband, Mohan Majhi shot an arrow which hit her husband on his chest. Her husband was taken for treatment to Tata where he died. She then instructed her daughter Sarla to call her husband. She told that when her husband returned then accused were hiding somewhere and on being challenged by her husband, Mohan Majhi shot an arrow which hit her husband on his chest. Her husband was taken for treatment to Tata where he died. In cross examination in para 10 he said that roof was made of straw and in the corner it was burnt to the extent of one feet and the burnt portion was hanging. The bamboo had not burnt. He had not found burnt straw on the ground. In paragraph no. 11, he has further deposed that the informant Sarla had in her statement informed about the incident and the arrow being shot by the accused Mohan Majhi and the presence of 6-7 other persons but she had not taken their names. However, she had taken their names in her later statement. In paragraph no. 14 he deposed that he did not find any arrow in the place of occurrence. 9. P.W. 1 Dr. Yogendra Nath is the Doctor who conducted post mortem on the dead body of the deceased. He found stab wound with arrow in position 2 cm x 1cm chest cavity, situated over left chest pricodial region 7 c.m. above and midial to left nipple and 15 c.m. below the shoulder line. He has said that the arrow after piercing the clothing and skin passed into left chest cavity cutting the 3rd and 4th rib, the arrow then pierced the left lung pericardium and heart. He said that there was blood and blood clots in the chest cavity. He opined that stab wound was ant mortem caused by arrow. He opined that time since death within 12 to 36 hours from the time of post mortem. He also opined that the death was due to haemorrhage and shock. At para 6 the doctor has categorically said he found the iron portion inside the chest cavity. Vide para 8 he said that total heart of the deceased was pierced. He proved the post mortem which was written and signed by him which was marked as Ext.1. 10. Learned counsel for the appellant submitted that the case against the accused is only based upon the doubtful evidence of simply one person, the informant P.W-2 Sarla and should not be believed. He proved the post mortem which was written and signed by him which was marked as Ext.1. 10. Learned counsel for the appellant submitted that the case against the accused is only based upon the doubtful evidence of simply one person, the informant P.W-2 Sarla and should not be believed. More so when the serious allegation result in conviction of the appellant under section 304 Part-II of the I.P.C. and appellant was sentenced to seven years. 11. According to the informant P.W. 2 Sarla, who is the daughter of the deceased, said that on the day of occurrence accused came and pushed the door at night. P.W.2 then goes to call her father, who is then shot by an arrow by appellant no. 1. Her father is taken to hospital, then the other accused including the appellants came and try to burn the house. Counsel argues that it was festive night that is occasion of Kali Puja and people are awake, but informant P.W.-2 is the sole eyewitness. Arguing further appellants’ counsel says, no motive or intention has been attributed towards the appellants, so why will they commit the crime. 12. Learned counsel for the appellants then submitted that even if we accept that informant and her mother were sleeping and her brother had also gone to the mela or fair with her father, then why she did not also inform her brother about the push on the door of the house and he could have also accompanied his father and sister on returning. This means that the allegations are thought up. Appellants’ counsel says that, on returning, P.W. 2 saw the accused, including the appellants concealed, but it is strange her father did not see them. Nevertheless, her father tells her to go inside. Learned counsel then submitted that her father was allegedly shot by arrow after P.W. 2 went in, so how can she definitely say it was Mohan Majhi, or the appellant no. 1 who shot the arrow at him. No other was convicted of offence under section 304 Part II or have been acquitted, so he should get the same benefit. Likewise informant has not seen who initially pushed the door of the house. Counsel for the appellant, then argued that no incriminating article was seized that could have implicated the appellants in the crime. No other was convicted of offence under section 304 Part II or have been acquitted, so he should get the same benefit. Likewise informant has not seen who initially pushed the door of the house. Counsel for the appellant, then argued that no incriminating article was seized that could have implicated the appellants in the crime. The arrow that had fatally injured the deceased was not seized and exhibited in court. So there is lack of evidence for convicting the appellant no. 1 under section 304 Part-II. No burnt material or residue were seized and exhibited in the court. So, conviction of the appellant no. 2 under section 436 of the Indian Penal Code is not proper and is without the evidence. Similarly conviction of the appellant no. 2 and appellant no. 3 under Section 143 I.P.C. and Section 447 I.P.C. is also not sustainable due to lack of evidence. Appellants’ counsel further submits that that the wife of the deceased has been declared hostile. Finally, it was submitted that the incident is of the night between 28/29.10.1989, but FIR was lodged on 2.11.1989 at 4.00 p.m. and there is no explanation for the delayed FIR. Learned counsel for the appellants has also argued, though not conceding guilt that Mohan Majhi was already around 50 years at the time of conviction now he is much older, around 65 years, and faced vigors of trial, so he may be given the period undergone as sentence. Regarding the other two appellants Gajam Majhi and Bidu Majhi, learned counsel has also stated they have already spent reasonable time in custody and they also be allowed the period undergone. 13. Learned APP on the other hand argued that the occurrence is of the night between the 28/29, October, 1989, the fardbayan is of the 30.10.1989, and the FIR is of the 02.11.1989, so there is no delay in the lodging of the FIR. He has argued that informant P.W. 2 has confirmed about the identity of accused Mohan Majhi and from the evidence there is no confusion that he was the one who shot the arrow. The appellants were very desperate and adamant persons. They wanted to kill the deceased, and burn the entire family in absence of any adult male member. He has argued that informant P.W. 2 has confirmed about the identity of accused Mohan Majhi and from the evidence there is no confusion that he was the one who shot the arrow. The appellants were very desperate and adamant persons. They wanted to kill the deceased, and burn the entire family in absence of any adult male member. When informant came out of the house when door was pushed Mohan Majhi was there, he was also there when she returned with her father, and since the door of her house was not shut she also saw Mohan Majhi shot arrow on her father. Counsel further says informant is the sole eye witness, but, she is reliable and there is no reason to doubt her testimony. 14. Learned APP also argues that from the evidence, it is clear that there was prior dispute and enmity ever since Gopal, one of the accused had forcibly taken one of the daughters of the deceased to his house. APP further says that P.W. 1 or the Doctor has found the arrow injury and the iron portion of the arrow on the body of the deceased. Hence, ocular evidence is corroborated by medical evidence. 15. Having heard both counsels; gone through the records of the case and in the facts and circumstances, the central issue is whether there is sufficient evidence to attribute the guilt on any one person or persons. This is a case of evidently a single eye-witness. Hence, the question that will need to be addressed is whether this sole evidence is trustful and reliable. 16. P.W. 2 Sarla, who is the daughter of the deceased is the informant. She has fully supported her fardbayan, particularly as to the main accused or the appellant no. 1 or Mohan Majhi. She deposed that she saw him at the first instance, soon after when someone had pushed the door, and then she again saw him when she returned with her father. She had kept the door of the house open on entering her house when she returned with her father. She claims to have heard the shooting of the arrow on her father “tir vinda” “tir vinda” i.e. “Arrow Shooting” “Arrow Shooting”. She also deposed that she was at a distance of estimated 8-10 feet when the arrow which was shot. So the distance does not seem very far and since appellant no. She claims to have heard the shooting of the arrow on her father “tir vinda” “tir vinda” i.e. “Arrow Shooting” “Arrow Shooting”. She also deposed that she was at a distance of estimated 8-10 feet when the arrow which was shot. So the distance does not seem very far and since appellant no. 1 or Mohan was known from before she easily identified him. Other accused were also present at the place of occurrence and there is no reason, why she would wrongly name the wrong person for the fatal assault on her father. None of the other accused or appellants are alleged in the shooting of the arrow else than Mohan Majhi. Mohan Majhi himself, though making a denial of the offences, does not attribute the shooting to anyone else, and in the categorical naming by informant P.W. 2, the daughter of the deceased for the shooting of the arrow to Mohan Majhi, makes it evident. P.W. 1, Yogandra Nath, the doctor who had conducted the post mortem examination on the dead body of the deceased has deposed that the arrow after piercing the clothing and then passed into the left chest cavity and then pierced the left lung. Thus the doctor has attributed ante-mortem injury caused by arrow and therefore ocular evidence of P.W. 2 is corroborated by the medical evidence. So, the informant P.W. 2 is a reliable witness. The background of the case is important, in the sense that reference to some prior incidents as deposed by the informant P.W.-2 i.e. taking away of her sister Kusum by one of the accused Gopal and these appellants had friendship with Gopal resulting in inimical terms or enmity and this explains the presence of other accused including these appellants. Hence, the learned court-below has rightly convicted appellant No.1 Mohan Majhi under Section 304 Part-II of the Indian Penal Code. 17. P.W. 2, has in her deposition attributed the setting aflame of the house to Gajam Majhi. The I.O., P.W.-10 has in his evidence deposed that he had seen the burnt portion of the house. Gajam Majhi, appellant no. 2 had also been convicted for the offence under section 436 of the Indian Penal Code and sentenced accordingly. Regarding section 436 of the Indian Penal Code, P.W. 2, who is the informant has deposed in para 13 of her evidence, that the house was set aflame by Gajam. Gajam Majhi, appellant no. 2 had also been convicted for the offence under section 436 of the Indian Penal Code and sentenced accordingly. Regarding section 436 of the Indian Penal Code, P.W. 2, who is the informant has deposed in para 13 of her evidence, that the house was set aflame by Gajam. However, P.W. 5, Sukhram Majhi who is her brother has in para 9 deposed that he had seen Mohan and Birbal burning the house. In such defective and conflicting evidences of P.W. 2 and P.W. 5 casts doubt about the alleged burning. 18. However for section 143 and 447 of the Indian Penal Code, the deposition of P.W. 2 in para 2 is indicative that there was an unlawful assembly including appellant no 2 Gajam Majhi and appellant no. 3 Bidu Majhi and that the accused were trespassing. The subsequent shooting by arrow, resulting in the death of the deceased, makes out both the offences under section 143 and 447 of the Indian Penal Code. The evidence pertaining to the offences as against these two appellants is also made out as per para 10 in the evidence of P.W. 2, wherein the informant has also stated that 5-6 persons were lurking beside the house at night. Moreover, there was a Kali Puja function going on. Their presence there in such circumstances was totally suspicious and at fault. 19. Hence, based on the aforesaid reasoning the conviction of appellant no. 1 Mohan Majhi, for the offence under section 304 Part II of the Indian Penal Code is upheld. However, for the mitigating circumstances mentioned, his sentence is reduced to half the sentence, that is 3 and a half years, any period already undergone to be subtracted from the reduced sentence. His bail bond is cancelled. Learned court below or successor court is directed to issue process against the appellant to serve out the modified sentence. Accordingly, his criminal appeal is dismissed with modification in sentence. 20. Regarding appellant no. 2 Gajam Majhi, his conviction under section 436 of the Indian Penal Code is doubtful because of conflicting evidence, and he is acquitted of the same. However, his conviction under section 143 and under section 447 of the Indian Penal Code remains and is upheld. However, his sentence is restricted to his period already undergone in custody so far. He is thus discharged of his liabilities of bail bond. However, his conviction under section 143 and under section 447 of the Indian Penal Code remains and is upheld. However, his sentence is restricted to his period already undergone in custody so far. He is thus discharged of his liabilities of bail bond. Accordingly, his criminal appeal is dismissed with above modification in conviction and sentence. 21. Similarly, for appellant no. 3 Bidu Majhi, his conviction under section 143 and 447 of the Indian Penal Code also remains, however, his sentence is restricted to the period already undergone by him. He is also thus discharged from the liability of bail bond. Accordingly, his appeal is dismissed with modification in sentence. 22. Accordingly, this appeal is dismissed with the aforesaid modification in conviction and sentence.