JUDGMENT : Shree Chandrashekhar J. 1. Ramgarh P.S. Case No. 15 of 2011 was lodged against Krishna Singh, Puneshwar Singh and Brij Kishore Singh under section 302/34 of the Indian Penal Code for committing murder of Amar Singh in the night of 27.08.2011. In his fardbeyan which was recorded at 09:00 am on 28.08.2011 at village Serka, Satyalok Singh who is the son of Amar Singh has stated that at about 08:30 PM he heard a sound of firing and in the meantime Surendra Singh, his cousin brother, came running there and told him that Krishna Singh, Puneshwar Singh and Brij Kishore Singh have fired at his father - at that time Satyalok Singh was at his new house. He has further stated that his cousin brother has identified the accused persons in the torch light. He has seen gunshot injury on the person of his father who was lying dead at his old house. The accused persons were litigating a land dispute since last 8-9 years and they had a grudge against his father because he had made a complaint about irregularity in distribution of mid-day meal to the children. During the investigation, Deolal Singh and Bhaironath Singh who are the co-villagers stated before the police that they were told that Krishna Singh had shot dead Amar Singh. Dr. Vijay Kumar Singh who conducted the post-mortem examination on 28.08.2011 at 03:00 PM has found four lacerated wounds two corresponding wounds of entry and exit, one over right shoulder and another over left axilla. 2. The doctor has found the following injuries on the person of Amar Singh: I. (i) Lacerated wound over right shoulder 1 cm x 1/2 cm margin inverted chest Cavity deep. Margin blackened wound of entry (ii) Lacerated wound over right shoulder inverted, blackened of size 1.5 cm X 1/2 cm chest cavity deep about 1" above the wound no. 1 which is also wounded entry. (iii) Lacerated wound over left axilla margin inverted size 1 cm x 1 cm with a metallic body pipping out of wound by wound of exit. (iv) Lacerated wound over left axilla below wound no. (iii) about 1" with metallic body pipping out of the wound. II. On dissection of chest right and left lung lacerated with chest cavity full of blood. Laceration of heart pericardial cavity full of blood. 3. (iv) Lacerated wound over left axilla below wound no. (iii) about 1" with metallic body pipping out of the wound. II. On dissection of chest right and left lung lacerated with chest cavity full of blood. Laceration of heart pericardial cavity full of blood. 3. A charge-sheet was filed against the accused persons and they were sent up for trial. In the trial the prosecution has examined seven witnesses - the informant is PW-5. The learned 1st Additional Sessions Judge-I, Palamau at Daltonganj has held that the prosecution has established the charge under section 302/34 of the Indian Penal Code against the accused persons. However, the charge under section 27 of the Arms Act was not found proved against Puneshwar Singh and Brij Kishore Singh. In sessions Trial o. 325 of 20 12, the appellants were convicted and sentenced to RI for life and a fine of Rs. 5000/- each under section 302/34 of the Indian Penal Code, with a default stipulation to undergo six months' imprisonment. Krishna Singh was convicted and sentenced to RI for three years and a fine of Rs. 1000/- under section 27 of the Arms Act and in default of payment of the fine amount he shall undergo fur1her imprisonment of one month. 4. PW-l and PW-2 who are the co-villagers have turned hostile in the trial, they stated in the Court that their statement was not recorded by the police. Though PW-5 and PW-6 are not the eyewitnesses, PW-5 has fully supported PW-7 who is the only eyewitness in the case. PW-5 has narrated the events in the evening of 27.08.2011 when according to him he heard sound of bomb explosion. He has reiterated in the Court what he had stated in his fardbeyan. He said that PW-7 informed him that his father was murdered by gunshot and in the torch light he saw the accused persons fleeing away. PW-6 has stated that he heard sound of firing in the night of 27.08.20 II and next day morning he has gone to the house of PW-7 where he has seen the dead body of Amar Singh. He has further stated that he was informed that 2-3 persons had fired at Amar Singh. PW-6 has stated that he heard sound of firing in the night of 27.08.20 II and next day morning he has gone to the house of PW-7 where he has seen the dead body of Amar Singh. He has further stated that he was informed that 2-3 persons had fired at Amar Singh. PW-7 who is the nephew of Amar Singh has deposed in the Court that in the night of 27.08.2011, at about 08: 15 PM, he was standing at his doors when he heard a sound of gunshot. He flashed the torch light and saw Krishna Singh, Puneshwar Singh and Brij Kishore Singh fleeing away along with 2-3 persons. Thereafter he ran to the other house of his uncle (new house) and informed PW-5 about the occurrence. He has further stated that he has seen firearm injuries on the stomach ( isV/ikatj ) of his uncle. Mr. Manoj Kumar Mishra, the learned APP has referred to the judgment in "Shivaji Sahabrao Bobade & Another v. State of Maharashtra " (1973) 2 SCC 793 to submit that the testimony of PW-7 is sufficient to affirm conviction of the appellants. In "Shivaji Sahabrao Bobade", the Hon'ble Supreme Court has observed that: "even if the case against the accused hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration". As a general rule, the Court can rely upon the testimony of a solitary eyewitness to record conviction. Section 134 of the Evidence Act which provides that no particular number of witnesses is required in a trial for proof of any fact clearly indicates the legislative intendment that plurality or multiplicity of witnesses is not a requirement under the Indian Evidence Act. The test is whether the quality of the evidence of a solitary eyewitness is of such sterling quality that leaves no manner of doubt on the prosecution case; the intrinsic truthfulness in his evidence must be found flowing naturally, and; his evidence is not surrounded by any suspicious circumstance or suffers from inherent improbabilities. 5. On a closer scrutiny of the testimony of PW-7, we find that on the basis of his evidence conviction of the appellants cannot be recorded for committing murder of Amar Singh in furtherance of the common intention. 6. 5. On a closer scrutiny of the testimony of PW-7, we find that on the basis of his evidence conviction of the appellants cannot be recorded for committing murder of Amar Singh in furtherance of the common intention. 6. The case of the prosecution is that Amar Singh was shot dead by firing from a muzzle loading gun by Krishna Singh and Puneshwar Singh and Brij Kishore Singh were found fleeing away with him from the place of occurrence. It was a dark night and PW-7 has claimed that in the torch light he could see the accused persons fleeing away. In his cross-examination, he has admitted that he has seen the accused persons from a distance of about 15-20 yards. Mr. Jitendra S. Singh, the learned counsel for the appellants has relied on a judgment in "Durbal v. State of UP" (2011) 2 SCC 676 to submit that identification of the appellants by PW-7 is highly doubtful, particularly for the reason that the torch carried by PW-7 was not produced. The appellants are the co-villagers and there would have been little doubt on their identification by PW-7 had the evidence come on record that there was any other source of light, may be faint light or moonlight. The prosecution evidence is conspicuously silent on this aspect, rather it is definite case of the prosecution that PW-7 has identified the accused persons in the torch light. The evidence of PW-7 becomes suspicious and looses its credibility for several other reasons. It has come in his evidence that the village comprises of 70-80 families and the appellants are residing nearby - PW-5 has stated in his cross-examination that the house of Krishna Singh and Puneshwar Singh is just at a distance of 15-20 ft. Narayan Singh, Chintawan Singh, Gyan Korwa are the neighbours and there are other persons staying nearby. However, no one from their families has come forward to support the prosecution case that the appellants were involved in the occurrence. PW-5 has admitted in the Court that at the time of the occurrence his mother and elder aunt were present in the house. At the time of the trial they had passed away but it is a matter of record that during the investigation the statement of his aunt was not taken by the Investigating Officer. PW-5 has admitted in the Court that at the time of the occurrence his mother and elder aunt were present in the house. At the time of the trial they had passed away but it is a matter of record that during the investigation the statement of his aunt was not taken by the Investigating Officer. PW-5 has further stated that his younger brothers, namely, Suresh and Surendra and their wives were present in the house at the time of the occurrence but why they have not come to the Court to support the prosecution has not been explained by the prosecution. It also appears from the evidence of PW-7 that at the time of the occurrence one of his brothers was standing with him, however, that brother has remained elusive and the inquest witnesses were not examined by the prosecution. There is some doubt on the place of occurrence as PW-4 and PW-7 have given different descriptions about the place of occurrence. PW-5 has stated that lot of blood was spilled on the ground but during the investigation blood soaked earth was not collected from the place of occurrence. The presence of two entry wounds with corresponding exit wounds would indicate that the bullets had passed through the body but no trace of bullets or any pellet was found at the place of occurrence. 7. In "Baleshwar Mandal v. State of Bihar" (1997) 7 SCC 219 , the Hon'ble Supreme Court has observed that it is not sufficient to show that mistakes were committed during the investigation the defence must demonstrate that serious prejudice was caused to the accused on account of failure on the part of the Investigating Officer to investigate material aspects of the case. The case of the prosecution against the appellants is primarily based on circumstantial evidence. In a case like the present one in which the best piece of evidence produced by the prosecution is that the appellants were seen fleeing away from the place of occurrence, the prosecution must offer a plausible and acceptable explanation why blood stained soil, blood stained clothes of the deceased, bullets/pellets and, above all, the crime weapon were not seized. The appellants are the co-villagers and they were arrested the same day when the First Information Report was lodged. The appellants are the co-villagers and they were arrested the same day when the First Information Report was lodged. It was, therefore, highly improbable that they would have destroyed the crime weapon or concealed at a place where the Investigating Officer could not reach. In absence of the connecting materials which would have conclusively established whether the appellants were involved in the killing of Amar Singh, the lapses during the investigation have certainly weakened the prosecution case. 8. The conduct of PW-7 has also come in for serious criticism. In his evidence PW-7 has admitted that after his uncle suffered firearm injury he did not raise hulla. It is not a case set up by the prosecution that the inmates of the house have raised hulla; PW-5 has also not claimed that he raised hulla or called the neighbours. An unusual or unnatural conduct of a witness alone is not a ground to discard his testimony, but then, the witness must offer some explanation for his unusual conduct and that too when he has seen a close relative being attacked. In "Lahu Kamalakar Paril vs. State of Maharashtra" reported in (2013) 6 SCC 417 the Hon'ble Supreme Court has observed as under: "26. …..it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock. some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that of the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded". 9. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that of the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded". 9. Though in the fardbeyan there is a hint of possible motive on the part of Krishna Singh to cause death of Amar Singh, in the court the prosecution witnesses particularly the informant is completely silent about the land dispute and complaint regarding mid-day meal distribution in the school. In "Shivaji Sahabrao Bobade", the Hon'ble Supreme court has observed that proof of motive satisfies the judicial mind about the likelihood of the authorship but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. In a case based on circumstantial evidence motive plays an important role [refer: "Surinder Pal Jain v. Delhi Administration" (1993) Supp. (3) SCC 681] and absence of motive is a factor that weighs in favour of the accused [refer: "Pannayar v. State of Tamil Nadu" (2009) 9 SCC 152 ]. In the case at hand absence of proof of motive is definitely a circumstance leaning towards innocence of the appellants, especially for the reason that the solitary eyewitness is found treading on a slippery ground. 10. Mr. Azeemuddin, the learned APP has referred to the judgment in "Anwar Ali v. State of H.P" (2020) 10 SCC 166 to submit that the circumstances proved by the prosecution are of definite character and conviction of the appellants is well founded. 11. In "Anwar Ali" the Hon'ble Supreme Court has observed as under: "15 ..... in case of a circumstantial evidence, the circumstances. taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should nor only be consistent with the guilt of the accused but should be inconsistent with his innocence." 12. In "Krishnan v. State" (2008) 15 SCC 430 , the Hon'ble Supreme Court has observed as under: "15. In "Krishnan v. State" (2008) 15 SCC 430 , the Hon'ble Supreme Court has observed as under: "15. Before adverting to the above stated arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offences and the prosecution case entirely rests on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypo the is than that of the guilt of the accused and such evidence should nut only be consistent with the guilt of the accused but should be inconsistent 'with his innocence. (See Gambhir v. State of Maharashlra.) See also Rama Nand v. State of H.P., Prem Thakur v. State of Punjab, Earabhadrappa v. State of Karnataka, Gian Singh v. State of Punjab and Balwinder Singh v. Slate of Punjab." 13. On reappraisal of the materials on record, we find that the only circumstance on which the prosecution has rested its case against the appellants is that immediately after PW-7 heard sound of firing he has seen the appellants fleeing away - though the testimony of PW-7 is surrounded by suspicious circumstances. This is also of considerable importance that PW-7 has himself admitted in the Court that along with the appellants 2-3 other persons were also found fleeing away. This is also of considerable importance that PW-7 has himself admitted in the Court that along with the appellants 2-3 other persons were also found fleeing away. Now, in this scenario when it is not established that who has caused the gunshot injury to Amar Singh and the prosecution has failed to establish that the firearm with which injury was caused to Amar Singh either belonged to accused persons or found in their possession, in our opinion, the prosecution's evidence falls Short of the requirement in law to hold them guilty for causing death of Amar Singh. Under section 114 (a) of the Indian Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The statutory illustration which reads as under supplies ample information to what extent a presumption under section 114(a) of the Indian Evidence Act can be raised against an accused: "(a) that a man who is in the possession of stolen goods soon after the theft i either the thief or has received the goods knowing them to be stolen, unless he can account for his possession" 14. We are of the definite opinion that a circumstance that an accused was found fleeing away carrying a weapon from the place of occurrence is by itself not enough to raise a presumption on his culpability. 15. In view of the aforesaid discussions, we hold that on the basis of the evidence of PW-7, the appellants cannot be convicted on the charge of committing murder of Amar Singh. The prosecution has failed to prove the charges against them and, therefore, conviction and sentence of the appellant, namely, Krishna Singh [in Cr. Appeal (DB) o. 778 of 2016], Brij Kishore Singh [in Cr. Appeal (DB) No. 604 of 2016] and Puneshwar Singh [in Cr. Appeal (DB) o. 771 of 2016] passed in Sessions Trial No.325 of 2012 are set-aside. 16. Mr. Azeemuddin and Mr. Manoj Kumar Mishra, the learned APPs have informed the Court that the appellant, namely, Krishna Singh [in Cr. Appeal (DB) No. 778 of 2016] who has served the sentence of more than eleven years, with remission, is in custody and the appellants, namely, Brij Kishore Singh [in Cr. 16. Mr. Azeemuddin and Mr. Manoj Kumar Mishra, the learned APPs have informed the Court that the appellant, namely, Krishna Singh [in Cr. Appeal (DB) No. 778 of 2016] who has served the sentence of more than eleven years, with remission, is in custody and the appellants, namely, Brij Kishore Singh [in Cr. Appeal (DB) No. 604 of 2016] and Puneshwar Singh [in Cr. Appeal (DB) No. 771 of 2016] are on bail. 17. Accordingly, the appellant, namely, Krishna Singh [in Cr. Appeal (DB) No. 778 of 2016] shall be set free forthwith, if not wanted in connection to any other case. 18. The appellants, namely, Brij Kishore Singh [in Cr. Appeal (DB) No. 604 of 2016] and Puneshwar Singh [in Cr. Appeal (DB) No. 771 of 2016] who are on bail shall stand discharged of liability of the bail bonds furnished by them. 19. In the result, Cr. Appeal (DB) No. 778 of 20 16, Cr. Appeal (DB) No. 604 of 2016 and Cr. Appeal (DB) o. 771 of 20 16 are allowed. 20. Let lower Court records be transmitted to the Court concerned, forthwith. 21. Let a copy of the judgment be transmitted to the Court concerned through IF AX'.