JUDGMENT : Shree Chandrashekhar J. 1. In Sessions Trial No.86 of 2010, the appellant has faced the charge under section 302 of the Indian Penal Code (in short 'IPC') and section 27 of the Arms Act for committing murder of Anup Prajapati. He was convicted and sentenced to RI for life and a fine of Rs. 5000/- under section 302 IPC and RI for 5 years and a fine of Rs. 1000/- under section 27 of the Arms Act. 2. Garhwa P.S. Case No. 30 of 2010 was lodged on 10.02.2010 against Vikash Gaur @ Vikash Gond, the appellant. The informant who is the mother of Anup Prajapati has stated in her fardbeyan which was recorded at 07:00 AM on 10.02.2010 in OPD of Sadar Hospital, Garhwa that in the evening of 09.02.2010 she had gone with her son to attend marriage ceremony of the daughter of Bharat Mahto. At about 10:00 PM, when Dwarpuja was being performed Vikash Gaur @ Vikash Gond who was walking with her son fired at him. When she raised hulla (cries) that Vikash Gaur has shot her son the persons around there including few on the side of the bridegroom carried her son on a Jeep to Sadar Hospital, Garhwa, where he was declared brought dead. During the investigation the elder son of the informant and her neighbours including the sons of Bharat Mahto were examined and they supported the informant that Vikash Gaur had fired at Anup Prajapati. Dr. Ram Naresh Singh Diwakar who conducted the post-mortem examination has found one lacerated wound of the size of 1 "x 1/2", cavity deep, on the right iliac fossa. On dissection, he removed one metallic piece from the iliac bone. In his opinion, the death was caused due to shock and haemorrhage caused by firearm injury. After the investigation a charge-sheet was filed against the appellant and, as noticed above, a charge under section 302 IPC and section 27 of the Arms Act was framed which he has denied and claimed the trial. 3. In the trial, the prosecution has examined eight witnesses out of whom the informant is PW6. Three witnesses viz. PW1-Vinay Mahto, PW2-Pradeep Prajapati and PW3-Ramashish Mahto are the sons of Bharat Mahto; PW4-Ashok Prajapati is cousin brother of the deceased and; PW5-Pradeep Prajapati is elder son of the informant. 3. In the trial, the prosecution has examined eight witnesses out of whom the informant is PW6. Three witnesses viz. PW1-Vinay Mahto, PW2-Pradeep Prajapati and PW3-Ramashish Mahto are the sons of Bharat Mahto; PW4-Ashok Prajapati is cousin brother of the deceased and; PW5-Pradeep Prajapati is elder son of the informant. PW5 has claimed that his brother told him name of the assailant and he was with him when his brother was taken to the hospital by Ashok Prajapati and others. On behalf of the accused four witnesses were examined who have deposed in the Court that Vikash Gaur was not present at the place of occurrence and there was firing by the barratis at the time of Dwarpuja. The learned Sessions Judge-II, Garhwa has held that PW4 and PW5 have fully supported the informant who is a reliable and trustworthy witness; there was no delay in lodging the First Information Report; ocular evidence is sufficiently corroborated by medical evidence, and; defence witnesses have not spoken the truth. The learned trial Judge has discussed testimony of the informant in the following manner: "14. During the course of argument, it was also submitted on behalf of the accused person that PW 6 Kumaria Kuwar is not fully reliable. It was submitted that she has once stated that her son Anup Prajapati had died on the spot and on the other place, she says that he died during the course of treatment at the hospital. Besides, it was further submitted that she is the sole eye witness. Therefore, her evidence should be taken carefully. But in my view, she is reliable witness. On perusal of her statement it appears that she has given a natural scene of the occurrence. There was a marriage of the daughter of Bharat Mahto and she had been invited as has been stated by her. She has stated, in para 4 of her statement that first she went in the house of Bharat Mahto. But thereafter, she returned out. At that time, she had gone alone. She had come out before the Dwarpuja was to be performed. It was at about 9.45 PM. There were 100-150 people including men and women. She was standing with her son. She has given name of some persons of the village, who were present at the time of Dwarpuja. At that time, she had gone alone. She had come out before the Dwarpuja was to be performed. It was at about 9.45 PM. There were 100-150 people including men and women. She was standing with her son. She has given name of some persons of the village, who were present at the time of Dwarpuja. Besides, it has come in her evidence that when the accused fired on her son, she did not caught the accused but she started to raise hulla that the accused had shot fire on her son. Carrying of the injured on the jeep of baratis. going directly to the hospital and not to the Police station, declaration of death of her son by the doctor, reaching of Police in the morning, statement of the informant Kumaria Kuwar PW 6 to the police and registration of F.I.R. on the basis of that, investigation and filing of charge sheet etc, all the acts have been done naturally. Therefore. I do not find substance in the argument of the learned lawyer for the accused." 4. The initial case projected by the prosecution was that PW1, PW2, PW3, PW4 and PW6 have seen firing at Anup Prajapati, however, during the trial PW1, PW2 and PW3 have flatly denied to have made any statement before the police. PW4 when stated in the Court that his statement was not recorded by the police, at that point, he was declared hostile at the instance of the prosecution. In the trial when a witness deposes contrary to his statement under section 161 CrPC or denies to have made any statement or a part of the statement under section 161 CrPC with the permission of the Court the prosecution can cross-examine him and make a formal request to the Court to declare him hostile. The statement of a hostile witness in the examination-in-chief and cross-examination can be used by the prosecution to the extent the hostile witness supports its case, and by the defence if it probablizes the defence story. In "Syad Akbar v. State of Karnataka" (1980) 1 SCC 30 , the Hon'ble Supreme Court has observed that evidence of a hostile witness cannot be rejected wholesale merely on the ground that the prosecution has dubbed him hostile and cross-examined him. In "Syad Akbar v. State of Karnataka" (1980) 1 SCC 30 , the Hon'ble Supreme Court has observed that evidence of a hostile witness cannot be rejected wholesale merely on the ground that the prosecution has dubbed him hostile and cross-examined him. The evidence of PW 1, PW2 and PW3 is of no worth for the prosecution, however, a part of the examination-in-chief of PW4 who was also declared hostile supports the prosecution case. His evidence that at about 10:30 p.m. Anup Prajapati suffered a firearm injury on his waist in the marriage ceremony of the daughter of Bharat Mahto and that Anup Prajapati was taken to hospital for treatment can be used by the prosecution. His evidence in cross-examination by the defence where under he has made certain statements favorable to the accused cannot be used by the defence - the evidence of a hostile witness in the cross-examination by the defence is in the realm of hearsay, and that is so primarily for the reason that it remains untested in the absence of any further cross-examination by the prosecution. 5. PW5 is the elder brother of Anup Prajapati. His evidence is that in the fateful night he was sleeping in his house and on hearing hulla had rushed to the place of occurrence. He has stated that on inquiry his brother told him that Vikash Gaur has fired at him. He is an inquest witness who has claimed that the police has recorded his statement. He has affirmed in his cross-examination that several persons including Ashok Prajapati were also present there. His statement that his brother told him name of the assailant, if proved, would be highly incriminating material against the appellant. An accused can be convicted solely on the basis of a dying declaration and it is not necessary that a dying declaration must be corroborated by independent evidence, though the Court as a matter of prudence may seek corroboration. In "Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684 , the Hon'ble Supreme Court has observed that a statement made by a person on the verge of his death must be accorded a special sanctity because at that solemn moment the person is most unlikely to make any untrue statement. In "Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684 , the Hon'ble Supreme Court has observed that a statement made by a person on the verge of his death must be accorded a special sanctity because at that solemn moment the person is most unlikely to make any untrue statement. What we gather from the prosecution evidence is that the statement of PW5 that his brother has disclosed name of the assailant is highly doubtful. His own statement is that several persons were present at the place of occurrence, however, except him no other witness, not even his mother, has claimed that Anup Prajapati had made dying declaration before his brother telling him name of the assailant. No one has stated, and the doctor and nurse who attended him were not examined to support PW5 that after sustaining the firearm injury Anup Prajapati was in a fit condition to talk. In fact the statement of PW5 that he has accompanied his brother to hospital is also doubtful for the other witnesses do not speak about his presence at the place of occurrence after Anup Prajapati suffered firearm injury. In the cross-examination, PW5 has stated that his house is at about ten steps away from the place of occurrence and, as noticed above, this is his statement that on hearing hulla he had rushed to the place of occurrence. However, he did not find any blood marks there though he says that when he reached the place of occurrence his brother was lying injured on the ground. He further says that the blood stains were washed off. If his statement that on hearing hulla he had reached the place of occurrence which is just about ten steps away from his house is to be accepted it is unbelievable that in such short span of time the blood marks were washed off. He has failed to state name of the driver and number of the vehicle on which his brother was carried to hospital. What is more important to note is that in his cross-examination he says that besides him his mother and Dilip Prajapati had taken Anup Prajapati to hospital and he has stated that PW4 was also with him but PW4 has not stated that the elder brother of Anup Prajapati was also with him when Anup Prajapati was taken to hospital. What is more important to note is that in his cross-examination he says that besides him his mother and Dilip Prajapati had taken Anup Prajapati to hospital and he has stated that PW4 was also with him but PW4 has not stated that the elder brother of Anup Prajapati was also with him when Anup Prajapati was taken to hospital. It has appeared in his cross-examination that Garhwa police station falls on the way to hospital and he has admitted that he did not send information to the police station. However, he has tried to cover up and next said that in the night at about 11:00 - 11:30 PM he himself had gone to the police station and lodged the information. Quite contrary to his stand, the Investigating Officer has deposed in the Court that when a body slip was received from Sadar hospital, Garhwa he had gone to hospital where he recorded the fardbeyan of the mother of Anup Prajapati. The Investigating Officer has said that PW5 did not state before him that on hearing hulla near his house he had gone there and found his brother lying injured, and that his brother told him that Vikash Gaur had fired at him. In our opinion, on such contradictory evidence PW5 has rendered himself an unreliable witness and the story of a dying declaration by his brother floated by him in the Court cannot be believed and, accordingly, his evidence must be excluded from consideration. 6. The prosecution has projected the informant as an eyewitness. Sri A.K. Kashyap, the learned senior counsel for the appellant has referred to the testimony of PW6 in extenso and contended that besides being an unreliable witness PW6 is not an eyewitness as her presence at the place of occurrence and at the time of occurrence are not proved. 7. 6. The prosecution has projected the informant as an eyewitness. Sri A.K. Kashyap, the learned senior counsel for the appellant has referred to the testimony of PW6 in extenso and contended that besides being an unreliable witness PW6 is not an eyewitness as her presence at the place of occurrence and at the time of occurrence are not proved. 7. The learned counsel for the appellant has referred to and relied upon the following judgments: (i) Bhimapa Chandappa Hosamani and another v. State of Karnataka, (2006) 11 SCC 323 (Para 1 4, 17, 23, 24 and 25) (ii) Dudh Nath Pandey V State of U.P. (I981) 2 SCC 166 (Para 19); (iii) State of Haryana V Ram Singh, (2002) 2 SCC 426 (Para 9), (iv) State of UP V Babu Ram (2000) 4 SCC 515 (Para 11, 12, 13); (v) Bunnilal Chaudhary V State of Bihar (2006) 10 SCC 639 , (vi) Kunwar Pal V State of Uttrakhand (2014) 12 SCC 434 (para 71014) (vii) Shyam Sharma V State of 'Madhya Pradesh and Ors. (2017) 9 SCC 362 8. In the Court, PW6 has stated that she has seen Vikash Gaur firing at her son. Presumably to a suggestion by the defence that she did not tell the police that Vikash Gaur had fired at her son in her presence rather such statement was incorporated in her fardbeyan by the police, she has stood to her grounds and said that in her fardbeyan she did say that Vikash Gaur had fired at her son. There is not impediment in convicting a person on the basis of the testimony of a solitary eyewitness and as a general rule the Court may act upon his testimony. Section 134 of the Indian Evidence Act provides that no particular number of witnesses is required in any proceeding in proof of a fact. 9. There is not impediment in convicting a person on the basis of the testimony of a solitary eyewitness and as a general rule the Court may act upon his testimony. Section 134 of the Indian Evidence Act provides that no particular number of witnesses is required in any proceeding in proof of a fact. 9. In Shivaji Sahabrao Bobade & another v. State of Maharashtra AIR 1973 SC 2622 , 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", In yet another judgment, in Bhimapa Chandappa Hosamani v. State of Karnataka (2006) 11 SCC 323 on which the learned senior counsel for the appellant has placed heavy reliance the Hon'ble Supreme Court has observed as under: "24. We have undertaken a very close and critical scrutiny of the evidence of PW 1 and the other evidence on record only with a view to assess whether the evidence of PW 1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eyewitness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness." 10. From the testimony of PW6, it is gathered that there was a large crowd near the house of Bharat Mahto, the baratis had moved to his house for Dwarpuja and were bursting firecrackers, but she has denied that baratis were firing in celebration. From the testimony of PW6, it is gathered that there was a large crowd near the house of Bharat Mahto, the baratis had moved to his house for Dwarpuja and were bursting firecrackers, but she has denied that baratis were firing in celebration. In the context of her statement in the Court, it is significant to observe that the Investigating Officer has deposed in the Court that the informant stated before him that at the time of Dwarpuja she heard sound of firing and then there was a huge commotion at the house of Bharat Mahto. The defence witnesses have also stated about bursting of firecrackers and firing by the baratis. 11. The learned Sessions Judge has disbelieved the defence witnesses for the following reasons: "15. The defence has examined as many as four witnesses in all. All the witnesses have stated that son of informant was not shot fire at the place of occurrence, rather he came from other place, Kumaria Kuwer was not there and the accused was not there. All the witnesses have given negative evidence. None of the defence witnesses have stated as to where the deceased was shot. There is no evidence of defence as to where the deceased was shot. If he reached the place of occurrence, where he fell on the earth after the bullet was fired on him, there should have been bleeding from that place to this place. But none of the witnesses have stated that there was bleeding from the place of occurrence to the place where he fell down. It will be a natural conduct of a person that if the fire was shot on him, he would like to run, if it is so possible, to his house and not in the crowded barat. As to the absence of Kumaria Kuwer is concerned, the scene produced by her during her cross-examination of the place of occurrence, denied her absence from the spot. Though the defence witnesses have stated that the accused was not there, but no witness has come to say that where the accused was. Thus, negative evidence was given that the accused was not there. None of the witnesses have stated that the accused had not come in the barat. Though the defence witnesses have stated that the accused was not there, but no witness has come to say that where the accused was. Thus, negative evidence was given that the accused was not there. None of the witnesses have stated that the accused had not come in the barat. Under these circumstances, I find that the defence witnesses have stated a lie in respect of the absence of Kumaria Kuwer at the spot, absence of accused at the spot and firing on the deceased at some other place, than the front side of the gate of Bharat Mahto where Dwarpuja to be performed." 12. Though we are of the opinion that the defence witnesses have also not spoken the true facts, their evidence that there was firing in the barat is corroborated by the statement of the Investigating Officer. 13. In "Dudh Nath Pandey v. State of U.P. (1981) 2 SCC 166 the Hon'ble Supreme Court has observed as under: "19 Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses." 14. In State of Haryana v. Ram Singh, (2002) 2 SCC 426 the Hon'ble Supreme Court has observed as under: "19 Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually. by the High Court." 15. Further, the informant has admitted in her cross-examination that her son was standing just by her side and on her right Vikash Gaur was standing with her. She has further stated that Vikash Gaur fired from a pistol which hit her son on the right side of his waist. There is a certain disquietening silence in her testimony because after stating about firing at her son she does not say what happened thereafter. Though she has stated in her fardbeyan that she raised hulla, in the Court she does not say so. There is a certain disquietening silence in her testimony because after stating about firing at her son she does not say what happened thereafter. Though she has stated in her fardbeyan that she raised hulla, in the Court she does not say so. In either case, her statement that she has seen firing at her son appears to be doubtful. If she has raised hulla someone must come forward to corroborate her and if she has not raised hulla after seeing firing at her son her conduct must be held quite unnatural. There was a large crowd at the house of Bharat Mahto and in her cross-examination PW6 has admitted that people were standing close to each other. If that is so, it is highly improbable that any person could have fired and sneaked away. This is not the prosecution story that after firing at Anup Prajapati the people gathered there tried to apprehend the appellant, or that taking benefit of the crowd he had escaped away. PW6 has stated that her house and the house of Bharat Mahto are in the same lane in front of each other, but Bharat Mahto was not examined during the trial and her own statement was recorded about eight days after the occurrence. The statement of the informant to the effect that Vikash Gaur had fired at her son from a distance of about 2 feet is not supported by the medical evidence. PW8 has not observed any blackening or charring mark around the wound and to a definite suggestion by the defence he has stated that the victim was shot from a distance of more than 3 feet. In the aforesaid factual scenario, we find that the evidence of PW6 is surrounded by suspicious circumstances. The case of the prosecution has been weakened further, to a certain extent, by the evidence of the Investigating Officer. At one place he says that fardbeyan of the informant was recorded at 07:00 a.m., inquest was prepared at 07:30 a.m. and the First Information Report was lodged at 10:00 a.m. on 10.02.2010. In the cross-examination, he says that he reached the place of occurrence at about 12:00 noon where he recorded statement of the informant. At one place he says that fardbeyan of the informant was recorded at 07:00 a.m., inquest was prepared at 07:30 a.m. and the First Information Report was lodged at 10:00 a.m. on 10.02.2010. In the cross-examination, he says that he reached the place of occurrence at about 12:00 noon where he recorded statement of the informant. He admits that he did not find trace of blood at the place of occurrence and admits that he has not recorded statement of Bharat Mahto nor has he conducted investigation on the point of enmity. 16. The aforesaid state of affairs indicate that the prosecution has not disclosed the true manner of occurrence. Several persons had gathered near the house of Bharat Mahto on the date of occurrence for attending marriage of his daughter, firecrackers and gunshots were fired, but, how Anup Prajapati has suffered firearm injury is not established. The presence of the informant at the place of occurrence even though accepted, her testimony that she has seen firing at her son by the appellant does not inspire confidence and on that basis the appellant cannot be convicted for murder. 17. For the aforesaid reasons, we are inclined to extend the benefit of doubt to the appellant and, accordingly his conviction and sentence under section 302 IPC and section 27 of the Arms Act are set-aside. 18. Mr. Ravi Prakash, the learned Spl.PP states that the appellant who has served more than fourteen years of imprisonment, with remission, is in custody. 19. Accordingly, the appellant, namely, Vikash Gaur @ Vikash Gond shall be set free forthwith, if not wanted in connection to any other case. 20. In the result, Cr. Appeal (D.B.) No. 451 of 2012 is allowed. 21. LA. No. 1883 of 2020 stands disposed of. 22. Let lower Court records be transmitted to the Court concerned, forthwith. 23. Let a copy of the Judgment be transmitted to the Court concerned through ‘FAX'.