JUDGMENT 1. - This appeal is directed against the judgment of the learned Sessions Judge, Churu dated 18-12-1984, whereby he has found the appellant Todia @ Todu Rain guilty of offence under section 302 Indian Penal Code and has sentenced him to undergo imprisonment for life and to pay a fine of Rs. 2000/-and in default of payment of fine to undergo further imprisonment of one year. 2. Briefly stated, the case of the prosecution is that on 4-5-1984, PW 4 Smt. Rekha and her husband Tiku Ram (deceased) were weaving cloth at about 2 p.m at their house in the town of Sujangarh. The appellant, who is son of brother of the deceased, resided in the vicinity. At that time he came to the house of the deceased. The deceased asked Smt. Rekha to bring a 'lota' of water, upon which she went inside the house to bring water. She came with water and at this her husband (deceased) again asked her to bring 'bidis', upon which she again went in to bring 'bidis'. Meanwhile wife of the appellant also came there and wife of the appellant went inside the house. When Rekha (PW 4) and wife of the appellant were busy in conversation, Rekha heard some hue and cry At this Rekha came out and she saw. the appellant giving one blow on the head of her husband Tiku Ram with a 'mogri'. After giving the blow, the appellant went away. She raised an alarm, upon which PW 5 Bhera Ram, PW 6 Nanu Ram and PW 7 Jora Ram came there. She along with these witnesses took her husband to the hospital at Sujangarh, where PW 1 Dr. Bhanwar Lal Verma examined Tiku Ram. Tiku Ram was admitted to the hospital Dr. Bhanwar Lal enquired from the attendants of Tiku Rain as to how he had received injuries, upon which he was informed that Tiku Ram had fallen causing injuries to him. However. Dr. Bhanwar Lal Verma was not satisfied with this explanation and he informed the police on telephone of the fact that Tiku Ram had been admitted to the hospital in an unconscious condition and had two injuries on his head. This information was recorded by PW 8 Shri Bhanwar Lal, SHO in the daily diary of the Police Station (Ex. P 12). This information was recorded by PW 8 Shri Bhanwar Lal, SHO in the daily diary of the Police Station (Ex. P 12). Shri Bhanwar Lal, SHO went to Hospital at Sujangarh, where he met Smt Rekha. He recorded her statement Ex. P 4 and got a case registered under section 307. Indian Penal Code. It appears that Tiku Ram breathed his last in the hospital at about 6 30 p m. PW 8 Shri Bhanwar Lal went to the place of occurrence and arrested the appellant, the same day and prepared arrest memo (Ex P 14). He also inspected the site and prepared site plan Ex. P 9 and inspection memo Ex. P 16. 3. Shri Bhanwar Lal examined the dead body and got an inquest made and prepared panchnama Ex. P 6 and Ex. P 7 in this regard. An autopsy was conducted by Dr. B.L. Verma on 5-5-84 at about 9 a.m. and a post-mortem report Ex. P 1 was prepared in this regard. The investigating officer examined various witnesses and also recovered a `ghode or a 'mogri' from the possession of the appellant After completion of due formalities of investigation, he challaned the accused-appellant before Judicial Magistrate, First Class. Churu. The learned Magistrate committed the accused-appellant to stand trial for offence under scction 302, Indian Penal Code before the learned Sessions Judge, Churu. 4. The learned Sessions Judge framed due charge against the accused-appellant for offence under section 302, Indian Penal Code. The accused-appellant pleaded not guilty and claimed trial. 5. At the trial, the prosecution examined as many as eight witnesses in support of its case. In his statement recorded under section 313, Criminal Procedure Code, the accused-appellant claimed ignorance about the occurrence and pleaded that he was not in a fit condition of mind. Initially, the accused-appellant took some time for producing witnesses in his defence but eventually he declined to examine any witness in defence. The learned Sessions Judge after hearing the learned Public Prosecutor for the State and the learned Amicus Curiae for the appellant arrived at the conclusion that Tiku Ram died a homicidal death and accused Todia was responsible for committing this crime. Hence, he convicted and sentenced the accused appellant as indicated above. 6. The learned Sessions Judge after hearing the learned Public Prosecutor for the State and the learned Amicus Curiae for the appellant arrived at the conclusion that Tiku Ram died a homicidal death and accused Todia was responsible for committing this crime. Hence, he convicted and sentenced the accused appellant as indicated above. 6. In the present appeal, the learned Amicus Curiae had urged that there is no reliable evidence that the accused-appellant committed murder of Tiku Ram by inflicting injuries to his person. He has submitted that the testimony of Smt. Rekha does not inspire confidence and her statement is vacillating. It appears that she might not have seen the occurrence, as claimed by her and hence at best it is a case of suspicion against the accused appellant. He further submits that the alleged recovery of a 'mogri' or ghodi' at the instance of the appellant has not been proved beyond shadow of reasonable doubt Moreover, this recovery is not connected with the crime inasmuch as no blood was detected on the same in the Forensic Science Laboratory. He therefore. urges that the appeal should be accepted and the appellant should be acquitted of charge under section 302, Indian Penal Code and the sentence passed upon the appellant be set aside. 7. The learned P.P. supports the judgment of the learned Sessions Judge, Churu and submits that even though testimony of Smt. Rekha is vacillating, yet it should be relied upon for upholding the conviction of the accused persons 8. We have considered the rival contentions and have perused the record of the learned trial court. 9. We have no doubt that the deceased Tiku Ram died an unnatural death. The earliest version of this incident. which was given by the attendants of the injured to Dr. Bhanwar Lal Verma was to the effect that injured bad fallen down, with the result that he sustained injuries which caused his death Dr. Bhanwar Lal Verma bad deposed that there were two injuries on the person of the deceased, viz., (I) a contusion wound I"x1/10"x skin deep on the scalp, (2) bruise 11/2" x 1" on the left temple with a haematoma thereon. Upon autopsy, he found that there were fractures of left parietal, frontal and right parietal bones. Bhanwar Lal Verma bad deposed that there were two injuries on the person of the deceased, viz., (I) a contusion wound I"x1/10"x skin deep on the scalp, (2) bruise 11/2" x 1" on the left temple with a haematoma thereon. Upon autopsy, he found that there were fractures of left parietal, frontal and right parietal bones. According to him deceased have died due to injury to vital organ, the brain, due to extra dural hemorrhage and fracture of skull bones. 10. The prosecution case principally rests upon the testimony of Smt. Rekha and the alleged recovery of a 'ghodi' or 'mogri' at the instance of the accused-appellant. We may first take up the second circumstance. According to PW 8 Bhanwar Lai. Investigating Officer, the accused appellant was arrested at 8 p.m., the same day and he was standing out side the house of the deceased and he was carrying a 'ghodi' in his hand, which he produced before the S.H.O. The testimony of Shri Bhanwar Lal, Investigating Officer is highly unreliable and unworthy of credence. It is strange and surprising that the accused appellant would keep on standing in front of the house of the deceased with a 'ghodi' or 'mogri' in his hand even after six hours of the alleged incident Ex. P. 14 is the arrest memo prepared by Shri Bhanwar Lal, which specifically recites that except the wearing apparel nothing else was found on the person of the accused appellant. There are two attesting witnesses of Ex. P. 14, viz PW 6 Nanu Ram and PW 7 Jora Ram. PW 6 Nanu Ram does not support the story given by Shri Bhanwar Lal that accused-appellant was arrested in his presence and was carrying a 'Oath' or 'mogri' in his hand. PW 7 Jora Ram also does not support the statement of Bhanwar Lal on this aspect. The statement of Shri Bhanwar Lal, Investigating Officer is contradicted by Ex. P. 14, which specifically recites that except wearing apparel nothing else was recovered from the accused at the time of arrest A separate recovery memo in respect of 'ghodi' had been prepared being Ex. P 15. This is again attested by PW 6 Nanu Ram and PW 7 Jora Ram but none of them was asked to prove this document. P. 14, which specifically recites that except wearing apparel nothing else was recovered from the accused at the time of arrest A separate recovery memo in respect of 'ghodi' had been prepared being Ex. P 15. This is again attested by PW 6 Nanu Ram and PW 7 Jora Ram but none of them was asked to prove this document. Hence, we are of the view that alleged recovery of 'ghodi' or 'mogri' from the possession of the accused appellant has not been proved beyond reasonable doubt. 11. Moreover, the report of the Forensic Science Laboratory does not show that any human blood was found on the alleged 'ghodil or 'mogri' Hence, for this reason also this recovery is of no assistance to the prosecution and cannot be used against the accused appellant. 12. We are thus left with the testimony of Smt. Rekha. We may here state that admittedly accused appellant bad no enmity with the deceased. He had no motive to commit murder of Tiku Ram, who was his uncle. Smt. Rekha has categorically admitted that there was no enmity between the accused appellant and her deceased husband. She has also admitted that there was not even slightest dispute between them. When it is so, it is surprising that the accused appellant would have committed murder of his own uncle. In examination-in-chief Smt. Rekha has deposed about the prosecution case as narrated above. In cross examination she stated that when she came out of the room, she saw her husband lying on the ground. In the next breath she gives a good bye to this story and states that when she came out, her husband was sitting. She has further stated that the first blow to her husband had been given in her presence but she admitted in the next breath that she had only heard the impact of the blow and only second blow was inflicted in her presence. She categorically stated that first blow had not been given in her presence. She then admitted that her husband was lying on left side of the body and the accused appellant gave a second blow on the right temple of her husband. We may state that medical evidence does not support the allegation that the blow had been given on the right side of the temple of the deceased. As already stated, Dr. She then admitted that her husband was lying on left side of the body and the accused appellant gave a second blow on the right temple of her husband. We may state that medical evidence does not support the allegation that the blow had been given on the right side of the temple of the deceased. As already stated, Dr. B.L. Verma has stated that this injury was on the left temple and not on the right temple. This makes the story given by Smt. Rekha highly unsatisfactory. 13. We may state that the Investigating Officer did not find any tell-tale marks of bleeding of Tiku Ram on the spot as would be evident from Ex P. 16. This makes the prosecution story unreliable that Tiku Ram was assaulted in his house as alleged. 14. We may state that no spontaneous report of the incident was made by Smt. Rekha or by any of the person accompanying the deceased. Neither, Smt. Rekha nor any of the attendants of the deceased informed Dr. B.L. Verma in respect of the alleged complicity of the accused in the crime. The earliest version of the incident as given to Dr. B.L. Verma was that the injured had fallen and had sustained injuries because of such fall. We may point out that the statement of Dr. B.L Verma is corroborated by the report recorded in the dialy dairy of police station by Shri B L. Verma, S H.O., copy whereof is Ex. P. 13A Had Rekha seen the alleged occurrence. she would have informed those, who took her husband to hospital about the occurrence and then they would not have given the version to Dr. B.L. Verma, as deposed to by him. The statement of Dr. Verma about the earliest version given to him by attendants of injured Tiku Ram militates against the varacity of the prosecution case. 15. The incident is said to have taken place at about 2 p.m. and soon after the injured (deceased) was admitted to the hospital but statement of Smt. Rekha (Ex. P 4) is said to have been recorded only at about 6 p.m. The formal FIR recorded in this case is Ex. 15. The incident is said to have taken place at about 2 p.m. and soon after the injured (deceased) was admitted to the hospital but statement of Smt. Rekha (Ex. P 4) is said to have been recorded only at about 6 p.m. The formal FIR recorded in this case is Ex. P I8 and it was not sent to the concerned Magistrate the same day, even though a court of Munsif Magistrate is located at Sujangarh itself and the Police Station was only at a distance of 2 kms. from the scene of occurrence. The endorsement on the FIR Ex. P 18 shows that it reached the Magistrate next day at about 7 a.m. No explanation, good, bad or indifferent has been assigned for this delayed transmission of the FIR to the concerned Magistrate. By itself such delayed transmission may not be of any significance but in the facts and circumstances of this particular case, this delayed transmission assumes importance and we find that the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellant. We may here state that conviction of an accused is possible on the testimony of a single witness but in such an event, the testimony of the witness should be of sterling worth and should be compatible with other circumstances available on record. In the present case, the statement of Smt. Rekha is not of sterling worth. She has vacillated on material paints and is contradicted by medical evidence Moreover, site inspection memo does not corroborate her story. The FIR, not being spontaneous cannot be used to corroborate her statement. 16. Hence, at best, there remains only a grave suspicion against the accused-appellant about complicity in the crime. We may state that suspicion, however, strong it may be, cannot take the place of cogent and reliable proof. In the present case the prosecution has failed to adduce such cogent and reliable evidence regarding the complicity of the accused appellant in the crime. We, therefore, find it difficult to sustain the conviction of the appellant for offence under section 302, Indian Penal Code and the sentence passed against the accused appellant by the learned trial court. 17. No other point was pressed before us. 18. We, therefore, find it difficult to sustain the conviction of the appellant for offence under section 302, Indian Penal Code and the sentence passed against the accused appellant by the learned trial court. 17. No other point was pressed before us. 18. In view of what we have stated above, we accept this appeal, set aside the judgment and the conviction and sentence recorded against the accused-appellant and acquit him of charge under section 302, Indian Penal Code by extending him benefit of doubt. The accused-appellant is in jail and shall be released forthwith if not required in any other case.Appeal allowed. *******