JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. In Sessions Trial No. 297 of 2011, Suleman Marandi, Naiki Marandi and Ishwar Marandi who are sons of late Chhoto Marandi were convicted and sentenced to RI for life and fine of Rs. 10,000/- each under section 302/34 of the Indian Penal Code for causing death of Sufal Marandi. 2. On the basis of fardbeyan of Anil Marandi which was recorded at 09:30 AM on 29.08.2011 near Pipra Pahar, Littipara PS Case No. 29 of 2011 was lodged against Suleman Marandi, Naiki Marandi, Ishwar Marandi, Baneshwar Marandi and Motisir Marandi. The informant who is the nephew of Sufal Marandi has started before Awadhesh Thakur, Officer Incharge of Littipara PS that in the morning around 06:00 AM his uncle left home to collect straw feeds for cattle and on way back home Suleman Marandi, Ishwar Marandi, Naiki Marandi, Baneshwar Marandi and Motisir Marandi surrounded and assaulted him near Pipra Pahar. Information about the occurrence was given to the family by Munshi Tudu who has seen the accused assaulting Sufal Marandi. He has stated that there was a land dispute between his uncle and the accused persons and about six months ago a panchayati was convened to resolve the dispute. In the records we do not find any reference about Motisir Marandi but in so far as the other four accused are concerned vide order dated 31.01.2012 a common charge under section 302/34 of the Indian Penal Code was framed against them. 3. During the trial the prosecution has examined eleven witnesses out of whom PW2-Munshi Tudu is an eyewitness. PW11, Dr. Shyam Prasad Bhagat who conducted the postmortem examination has found four lacerated wounds on different parts of the body of the victim all caused by hard and blunt substance. In his opinion the injury nos. (iv) and (v) over vertex of scalp and occipital region were grievous in nature and cause of death of Sufal Marandi was head injury. The learned Additional Sessions Judge, 1st, Pakur has held that Munshi Tudu is a reliable witness and testimony of other prosecution witnesses fully supports him. In the middle of the trial, before statement of the accused was recorded under section 313 of the Code of Criminal Procedure, by virtue of order dated 06.06.2016 Baneshwar Marandi was held juvenile and his trial was separated. In the middle of the trial, before statement of the accused was recorded under section 313 of the Code of Criminal Procedure, by virtue of order dated 06.06.2016 Baneshwar Marandi was held juvenile and his trial was separated. The other three accused were found guilty for causing death of Sufal Marandi in furtherance of common intention. 4. During pendency of the criminal appeal, Suleman Marandi and Naiki Marandi committed suicide in jail and when this fact was brought to the notice of the Court on 06.01.2021 with a view to give opportunity to the surviving legal heirs/survivors of Suleman Marandi and Naiki Marandi to implead themselves and pursue this criminal appeal on their behalf, hearing of Criminal Appeal (DB) No. 1168 of 2016 was deferred for 08.02.2021. On the date fixed, this criminal appeal was listed for hearing and thereafter remained on Board awaiting its turn, in seriatim. No application for substitution in place of Suleman Marandi and Naiki Marandi has been filed and Mr. Gautam Kumar, the learned counsel for the appellants has not pressed the appeal qua these two appellants and, accordingly, as regards Suleman Marandi and Naiki Marandi this criminal appeal is dismissed as not pressed. 5. Mr. Gautam Kumar, the learned counsel appearing for the surviving appellant, namely, Ishwar Marandi has referred to the judgments in "Lallu Manjhi v. State of Jharkhand)" (2003) 2 SCC 401 , "Jagdish Prasad v. State of M.P." 1995 SCC (Cri) 160 and "Joseph v. State of Kerala" (2003) 1 SCC 465 to submit that in the circumstances testimony of Munshi Tudu, the solitary eyewitness, is not trustworthy and on the basis of his uncorroborated testimony, Ishwar Marandi cannot be convicted for murder. The learned counsel would further submit that from the prosecution evidence it is not established that Ishwar Marandi shared common intention with other accused to cause death of Sufal Marandi and therefore at best the appellant can be convicted and sentenced under section 325 of the Indian Penal Code. 6. The occurrence has taken place early morning on 29.08.2011 and it is not the defence set-up by the accused that it was so dark outside as to identify a person from a distance. Munshi Tudu is the son-in-law of Sufal Marandi who had recently come to village Pipra Jetke Tola to stay with the family of his wife. The prosecution has projected him as an eyewitness. Munshi Tudu is the son-in-law of Sufal Marandi who had recently come to village Pipra Jetke Tola to stay with the family of his wife. The prosecution has projected him as an eyewitness. In law, there is no legal impediment to act on the testimony of a single witness and record conviction provided the solitary witness is wholly reliable. 7. In "Jagdish Prasad" the Hon'ble Supreme Court has observed as under: "8. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated provided the testimony of that single witness is found out entirely reliable. In that case, there will be no legal impediment for recording a conviction. But if the evidence is open to doubt or suspicion, the court will require sufficient corroboration. In this connection, reference may be made to a decision of this Court in Vadivelu Thevar v. State of Madras wherein this Court has classified the testimony of a witness into three categories viz. (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable and observed that although in the first two categories of classification, there may not be any difficulty in coming to a conclusion either accepting or rejecting the testimony, it is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony either direct or circumstantial." 8. In a later judgment, in "Lallu Manjhi" the Hon'ble Supreme Court has referred to the judgment in "Vadivelu Thevar v. State of Madras" AIR 1957 SC 614 and held as under: "10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly' unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (See: Vadivelu Thevar v. State of Madras)" 9. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (See: Vadivelu Thevar v. State of Madras)" 9. In his testimony, PW2 has stated that in the morning around 06:00-07:00 AM he was returning from his field (khet). Near Pipra Pahar the accused Suleman Marandi, Ishwar Marandi, Naiki Marandi, Baneshwar Marandi and Motisir Marandi who were armed with sabal, axe and lathi committed murder of his father-in-law. He ran towards the village and informed the family. Along with the village head and other villagers he again went to the place of occurrence but by that time his father-in-law had died and the accused had fled away. He has further stated that his father-in-law had a land dispute with the accused. In his cross-examination he has admitted that he did not raise hulla when saw the accused assaulting his father-in-law rather fled away to a distant village. He has further stated that due to fear he did not save Sufal Marandi. 10. Mr. Gautam Kumar, the learned counsel for the appellants has contended that conduct of PW2 in not raising hulla and informing the police is sufficient to discredit him. 11. Mrs. Priya Shreshtha, the learned Spl.PP has contended that conduct of PW2 who was faced with five accused armed with deadly weapons was not unnatural rather natural because first reaction of a close relative would be to inform the family members. The learned Spl.PP has relied on the judgment in "State of U.P. v. Devendra Singh" (2004) 10 SCC 616 . 12. In "Devendra Singh" the Hon'ble Supreme Court has observed as under : 6. In view of the rival submissions, it has to be first seen whether the prosecution has established its case. Strictly speaking, the case is not of circumstantial evidence. Human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Some may remain tightlipped, overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon a variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. (See Rana Partap v. State of Haryana.) 13. The conduct of a witness is examined in the facts and circumstances of the case and as observed in Rana Partap v. State of Haryana (1983) 3 SCC 327 there is no set rule of natural reaction by a person. As a legal preposition this is also well-settled that conduct of a witness per se is not a ground to I discard his evidence. On a glance, PW2 does not appear to be a wholly reliable witness. What makes his evidence doubtful is not only his conduct in not raising hulla but also because the other circumstances in the case do not corroborate his testimony. PW2 has stated that the place where the occurrence took place was a thoroughfare and at that time several villagers were working in their field. Still, he did not raise hulla. The prosecution has examined co-villagers but none of them has claimed that they saw the accused assaulting Sufal Marandi. No witness who was working in the nearby fields has come forward to say that he has seen the accused armed with deadly weapon going towards Pipra Pahar, or that the accused were fleeing away from the place of occurrence. 14. The other witnesses have tendered hearsay evidence. PW1 who is son of the deceased has admitted in the cross-examination that he has not seen the occurrence. PW3, a co-villager was at home when he heard hulla. 14. The other witnesses have tendered hearsay evidence. PW1 who is son of the deceased has admitted in the cross-examination that he has not seen the occurrence. PW3, a co-villager was at home when he heard hulla. He has stated that Munshi Tudu informed the villagers about the occurrence. PW4 and PW6 have also deposed in the Court on similar lines. PW5, another co-villager, was also in his house on the day of the occurrence. He has stated that on hearing hulla he came out of his house and came to know that Sufal Marandi was Murdered on the roof of the school. PW8 is the informant who on information by PW2 had gone to the place of occurrence and found the dead body of his uncle. From the evidence of these witnesses, we do not get any significant material to rely upon the evidence of PW2. These witnesses have stated in the Court that PW2 informed the villagers about the occurrence but from such evidence no inference can be drawn that PW2 has seen the accused assaulting Sufal Marandi. 15. The medical evidence also does not come in aid to the prosecution. PW 11, Dr. Shyam Prasad Bhagat has found one bruise and four lacerated injuries over the dead body of Sufal Marandi - out of four lacerated injuries two were simple in nature. The injury no. (iv), a lacerated injury, was over vertex of scalp of the size of 2"x½", bone deep. The injury no. (v), another lacerated injury, was caused on left side of occipital region of the size of 2"x2", skin deep. The injury no. (iv) has a corresponding internal injury causing fracture of left parietal bone and injury no. (v) had also caused fracture of occipital bone. The doctor has found subcutaneous extensive and subdural haematoma and muscle tear. These two injuries were definitely dangerous and likely to cause death but the point is as observed by the Hon'ble Supreme Court in "Lallu Manjhi", that five accused who were carrying sabal, axe and lathi have caused only two grievous injuries. The injures found on the dead body of Sufal Marandi do not indicate that whoever has assaulted him did act with cruelty. There is no evidence coming forth on the individual role played by the accused and the prosecution has failed to establish who was the author of injury nos. (iv) and (v). The injures found on the dead body of Sufal Marandi do not indicate that whoever has assaulted him did act with cruelty. There is no evidence coming forth on the individual role played by the accused and the prosecution has failed to establish who was the author of injury nos. (iv) and (v). In our opinion, on the basis of the medical evidence though it cannot be held that manner of occurrence is contradicted but a doubt has certainly arisen on reliability of PW2. 16. The identification of an accused as the person who was involved in the occurrence must be established by the prosecution and, therefore, the witnesses produced by the prosecution must identify the accused in the dock unless the defence waives of or does not challenge identification of the accused. If the witness has previous acquaintance with the accused, or name of the accused was disclosed in the First Information Report, or the witness had sufficient time and opportunity to observe physical features of the accused, failure of the prosecution to conduct Test Identification Parade is not fatal. However, if a witness who has made a person an accused by name fails to identify him in the Court his evidence cannot be used by the prosecution. In a case where there are number of eyewitness and if one of them wrongly identifies one witness still the prosecution case can be accepted as true [" Simon v. State of Karnataka" (2004) 2 SCC 694 ], but a case based on testimony of a solitary eyewitness wrong identification of the accused is fatal without any exception. 17. In the present case, five persons were made accused out of whom except Motisir Marandi other four have faced the trial. 18. On 21.09.2012, when PW2 was examined in the Court Baneshwar Marandi, Ishwar Marandi, Naiki Marandi and Suleman Marandi were present in the dock. Out of four accused Motisir Marandi was not present in the dock, but PW2 has said that he was one of the accused who was present in the dock. He has said that Baneshwar Marandi, Ishwar Marandi, Naiki Marandi and Motisir Marandi were present in the Court and he does not remember name of the fifth one. The accused whom he has identified as Baneshwar Marandi was infact Ishwar Marandi. His identification of Ishwar Marandi was also wrong because he has identified Ishwar Marandi as Baneshwar Marandi. He has said that Baneshwar Marandi, Ishwar Marandi, Naiki Marandi and Motisir Marandi were present in the Court and he does not remember name of the fifth one. The accused whom he has identified as Baneshwar Marandi was infact Ishwar Marandi. His identification of Ishwar Marandi was also wrong because he has identified Ishwar Marandi as Baneshwar Marandi. Apparently, identification of all four accused by PW2 who were present in the dock on 21.09.2012 was wrong. In "Krishna Mochi v. State of Bihar" (2002) 6 SCC 81 , PW19 claimed to have identified Krishna Mochi but in the Court he wrongly identified Rajinder Paswan as Krishna Mochi, and PW20, another witness, identified Nand Lal Mochi as Krishna Mochi. The Hon'ble Supreme Court has held that evidence of PW19 and PW20 was of no avail to the prosecution to show participation of Krishna Mochi in the crime and no reliance can be placed on evidence of such witness. To the same effect is the judgment in "Ramesh v. State of M.P." 1994 Cri LJ 1390 and "Pravin v. State of M.P." (2008) 16 SCC 166 . Now once evidence of Munshi Tudu is excluded from consideration there is no substantive evidence on record to hold Ishwar Marandi guilty for murder. In the circumstances, we must hold that the prosecution has failed to produce clinching evidence on participation of Ishwar Marandi in the occurrence and, therefore, his conviction under section 302/34 of the Indian Penal Code is not sustainable. 19. Accordingly, the judgment of conviction dated 21.09.2016 and the order of sentence dated 23.09.2016 against the appellant no.3, namely, Ishwar Marandi of R.I for life and fine of Rs.10,000/- under section 302/34 of the Indian Penal Code, passed by the learned Additional Sessions Judge 1st, Pakur in Sessions Trial No. 297 of 2011, are set-aside. 20. Mrs. Priya Shreshtha, the learned Spl.PP states that the appellant, namely, Ishwar Marandi is in custody. 21. Accordingly, the appellant, namely, lshwar Marandi who is In custody shall be set-free forthwith, if not wanted in connection to any other criminal case. 22. In the result, Criminal Appeal (D.B) No. 1168 of 2016 is allowed qua the appellant no.3, namely, Ishwar Marandi. 23. I.A. No. 1076 of 2020 stands disposed of. 24. Let the lower Court records be sent to the Court concerned forthwith. 25. 22. In the result, Criminal Appeal (D.B) No. 1168 of 2016 is allowed qua the appellant no.3, namely, Ishwar Marandi. 23. I.A. No. 1076 of 2020 stands disposed of. 24. Let the lower Court records be sent to the Court concerned forthwith. 25. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through 'Fax'.