Honble SAXENA, J.—These appeals have been directed against the judgment dated 15.9.87 passed by learned Additional Sessions Judge No. 1, Hanumangarh, whereby, he found appellants Gora Singh and his wife Smt. Manjeet Kaur Alias Mummy guilty of the offences under Sections 302/34 & 404 I.P.C. and sentenced each of them to life imprisonment and a fine of Rs. 100/- in default to further undergo simple imprisonment for 15 days under the first count and to three years rigorous imprisonment and a fine of Rs. 100/- in default to further undergo 15 days simple imprisonment for the second offence and also directed that both the substantiate sentences shall run concurrently. (2). Since aforesaid appeals arise out of a common judgment, these are being together by this common judgment. (3). The facts necessary for the disposal of these appeals are short and simple and can be recapitulated within a narrow compass. The prosecution story is that appellants Smt. Manjeet Kaur Alias Mummy along with her husband appellant Gora Singh was staying in the house of her maternal-uncle deceased Chimmanlal in Sadulshahar about 10 days prior to alleged incident, which occurred on the night intervening 11th & 12th August 1982. It is the case of the prosecution that on that fateful night Chimmanlal was sleeping on a cot along with his son P.W. 7, Kala Singh aged about 7-8 years and daughter Rani alias Guddi aged about 3 years in the court yard @ Bakhal) of his house. Appellants were also sleeping on different cots nearly. At about 4.00-4.30 A.M., P.W.-3, Suchha Singh, who is the brother of deceased. Chimman Lal and was sleeping in his house situated on the northern side of the road at a distance of 30 Ft, heard the screams of Kala Singh and Guddi. Shortly thereafter Kala Singh also came to Suchha Singh and informed him that blood was oozing out from head of his father Chimmanlal and that the latter was not speaking. Thereupon, Suchha Singh rushed towards the house of Chimmanlal. It is alleged that at that time, he saw appellants Gora Singh and Manjeet Kaur going on a cycle along with their daughter. Suchha Singh asked them to slop, but they went away. Suchha Singh went to the house of Chimmanlal and found that letters dead-body was lying in a pool of blood due to injuries sustained on his head. It is alleged that at that time, he saw appellants Gora Singh and Manjeet Kaur going on a cycle along with their daughter. Suchha Singh asked them to slop, but they went away. Suchha Singh went to the house of Chimmanlal and found that letters dead-body was lying in a pool of blood due to injuries sustained on his head. It is alleged that at that point of time, Kala Singh told Suchha Singh that appellants Gora Singh and Manjeet Kaur Alias Mummy had inflicted injuries to his father. On a search of articles made by Suchha Singh, it transpired that one tape-recorder, one wrist watch and a shirt of the deceased were missing. Suchha Singh lodged an oral report on 12.8.82 at 6.00 A.M., at Police Station Sadul Shahar. P.W.-3, Abdul Aziz, S.H.O., reduced the same in writing vide FIR Ex.P/4. Shri Abdul Aziz inspected the site and prepared site plan Ex.P.6 and its memos Ex.P.2A. He did not find any foot-prints at the place of occurrence. However one black leather boot and one pair of Sandles of a child were found lying near the cot of the deceased. One blood- stained Ghota (a wooden stick) about 2 1/2 feet in length was also found lying near that cot. Shri Abdul Aziz seized and sealed that wooden Ghota, leather-boot and pair of sandles view seizure memos Ex. P/7 and Ex. P/8 respectively. One pair of shoes of the deceased was also seized vide seizure memo Ex. P/9. The Investigation Officer also seized and sealed a sample of the blood stained soil and the control sample vide seizure memo Ex.P/10. The blood stained Dari was also seized by the Investigation Officer vide seizure memo Ex. P/12. (4). P.W.-l, Dr. S.N. Goyal, conducted the post mortem examination of the dead body of Chimmanlal on 12.8.82 at 9.45 A.M. He found two incised wounds causing fractures to right parietal and right frontal bones, severely damaging meanings and brain tissues. He also noticed two lacerated wounds on the right eye-brow severely damaging the right eye and right side of face, one contusion on the right maxillary region causing fractures. The doctor opined that cause of death was due to brain injury and that death had occurred within 24 hours of post-mortem examination. (5). He also noticed two lacerated wounds on the right eye-brow severely damaging the right eye and right side of face, one contusion on the right maxillary region causing fractures. The doctor opined that cause of death was due to brain injury and that death had occurred within 24 hours of post-mortem examination. (5). Appellants could not be apprehended and as such the Investigation Officer submitted a charge-sheet on 31.12.1982 against them under section 299 Cr.P.C. in the court of Munsif & Judicial Magistrate, Shri Ganganagar, who committed the case. The learned Addl. Sessions Judge, Sri Ganganagar, recorded the statements of prosecution witnesses under Sec. 299 Cr.P.C. In April, 1986 appellants were arrested under Sec. 109 Cr.P.C. and when they were released on bail, they were arrested in this case on 17.4.86 vide arrest memos P/2 & P/3. However, no recovery was made at their instance and after further investigation an supplementary charge-sheet was filed against them. The learned trial Judge framed charges for the offences under Sections 302/34 & 404 IPC against the appellants, who pleaded not guilty and claimed trial. During trial the Public Prosecutor submitted an application for examining Kala Singh, the alleged sole eye witness, who was previously not cited as a prosecution witness in the charge sheets. The trial Judge allowed that application and examined Kala Singh as P.W.-7. The prosecution examined 7 witnesses. The appellants in their plea recorded under section 313 Cr.P.C. denied all the circumstances appearing against them. However they did not examine any witness in defence. The learned trial Judge relied on the testimony of P.W. 7, Kala Singh, a child witness and held that his testimony was duly corroborated by the testimony of P.W.-6 Suchha Singh. He accordingly by his impugned judgment found appellants guilty and sentenced them in the manner detailed ad ultra. Hence this appeal. (6). We have heard Shri H.S. Kharlia, the learned counsel for the appellant and Shri Vishal Raj Mehta, learned Public Prosecutor at length and carefully perused the record of the lower court in extenso. (7). Shri Kharlia has strenuously contended that the Investigation Officer had neither examined Kala Singh, the alleged sole- eye-witness under Sec. 161 Cr.P.C, nor his name was included as a prosecution witnesses in the calendar of witness. Even in the supplementary charge-sheet, Kala Singh was not listed as a prosecution witness. (7). Shri Kharlia has strenuously contended that the Investigation Officer had neither examined Kala Singh, the alleged sole- eye-witness under Sec. 161 Cr.P.C, nor his name was included as a prosecution witnesses in the calendar of witness. Even in the supplementary charge-sheet, Kala Singh was not listed as a prosecution witness. At the time of alleged incident, the age of Kala Singh was hardly 6-7 years and that was examined by the court on 19.5.87 i.e. after 4 years and 9 months of the first time. According to him, since Kala Singh was not examined under sec. 161 Cr.P.C. a valuable right of the appellants to test his veracity by cross-examining and confronting him with his previous statement has been snatched away, which has caused great prejudice to them. On the other hand Kala Singh has stated that he had gone to the Police Station immediately after the incident and that he was examined by the police and that his thumb impressions were also taken. He has submitted that as per statement of Kala Singh the latter was sleeping along with his sister Guddi by the side of his father deceased Chimmanlal on the same court, but surprisingly no stains of blood were found on his clothes. He has further submitted that as per testimony of Kala Singh at the time of alleged incident, it was a dark-night and, therefore, it was not at all possible for him to have seen the appellants inflicting injuries to the deceased. On the cries raised by Kala Singh, neighbors Krishan & Ram Krishan had come on the shot, but Ram Krishan has not been produced by the prosecution and P.W. 4 Kishan Lal, has not corroborated the testimony of Kala Singh on this count. Shri Kharalia has argued that due to darkness, it was also not possible for P.W.-6, Suchha Singh, to have seen and identified the appellants going on a cycle at a distance above 30 feet. Shri Kharalia has also asserted that FIR Ex. P/4 is a post investigation document, which was scribed later on and sent to the Magistrate as late as on 13.8.82, after completion of the investigation. According to him the learned trial Judge has mis-read the evidence and committed an illegality in convicting the appellants on the basis of surmises and conjectures and, as such their conviction cannot be sustained. (8). According to him the learned trial Judge has mis-read the evidence and committed an illegality in convicting the appellants on the basis of surmises and conjectures and, as such their conviction cannot be sustained. (8). On the other hand, Shri V.R. Mehta, the learned Public Prosecutor has reiterated the reasoning given by the learned Trial Judge and supported the impugned judgment. (9). We have bestowed our anxious and careful consideration to the rival contentions. The whole case hinges on the testimony of alleged eye-witness Kala Singh. As per observations made by the learned trial Judge, on the date of his examination i.e. 19.5.87, the age of P.W. 7 Kala Singh was above 13-14 years. Thus at the time of alleged incident his age was above 8-9 years. However P.W.-6, Suchha Singh, in his statement dated 1.11.1985 recorded by the learned Addl. Sessions Judge, Sri Ganganagar under sec. 299 Cr.P.C. had deposed that at the time of alleged incident the age of Kala Singh was 5 years. Be that as it may, the age of Kala Singh at the time of alleged incident was above 8-9 years only. It is true that his name finds mention in the FIR Ex. P/4, but it is surprising to note that PW-3, Abdul Aziz, Investigation Officer, did neither care to examine this witness under Sec. 161 Cr.P.C. nor got his statements recorded by a Magistrate under section 164 Cr.P.C. Since Kala Singh was the sole alleged eye- witness, he was the most material witness. It was the bounden duty of the Investigation Officer to have recorded his statement under sec. 161 Cr.P.C. or produced him before a Magistrate for recording his statement under Sec. 164 Cr.P.C. This is also an admitted fact that the Investigation Officer did not cite him as a prosecution witness either in the charge-sheet filed under Sec. 299 Cr.P.C. or in the supplementary charge-sheet filed on 30.4.86 after the arrest of the appellant. (10). In Ram Lakhan vs. State of Rajasthan (1), a material witness was not examined under sec. 161 Cr.P.C. during investigation but was produced by the prosecution during trial. (10). In Ram Lakhan vs. State of Rajasthan (1), a material witness was not examined under sec. 161 Cr.P.C. during investigation but was produced by the prosecution during trial. It was held that though the evidence of such a witness cannot be held to be inadmissible, but it can hardly be disputed that the accused was denied his valuable right to cross-examine a witness previous statement recorded under section 161 Cr.P.C. It was also emphasized that statement of such material witnesses should have been recorded under section 161 Cr.P.C. during investigation. (11). In G.P. Patel Vs. State of Maharashtra (2), the Apex Court has observed that though delay of a few hours, simplicitor, in recording the statement of witnesses, may not by itself, amount to a serious infirmity in the prosecution case, but it may assume such a character, if there are concomitant circumstances, that the Investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. It was further held that delay in recording the statement of material witnesses casts a cloud of suspicion on the credibility of the entire wars and whoof of the prosecution story. (12). Therefore the testimony of Kala Singh, who is a child witness and whose statement was not recorded under section 161 Cr.P.C. or under section 164 Cr.P.C. has to closely scanned and scrutinised with care and caution. P.W. 7, Kala Singh has deposed that he had accompanied his grand-father, Amar Singh to the Police Station, where his Statement was recorded by the Police and that his impressions were also got affixed thereon. Amar Singh has not been produced by the prosecution and P.W.-3, Abdul Aziz, SHO, has refuted thing. He has miserably failed to give any explanation as to why he did not record the statement of Kala Singh under sec 161 Cr.P.C. Kala Singh has deposed that at the time of alleged incident he and his sister Guddi were sleeping along with deceased Chimmanlal on the same cot, that at about 120 Clock in the mid-night, he was awakened by a feeble voice of his father, and that at that time he had seen his sister Manjeet Kaur Alias Mummy having a ghota and his brother-in-law Gora Singh having a Gandasi. He has stated that Mummy and Gora Singh inflicted 3 blows on the head of his father and that thereafter they went away. In his cross-examination he has admitted that he did not raise any alarm at that time and that he kept lying silently due to fear. He was deposited that after the appellants were not away, he got up and raised alarm, which attracted Kishan & Ram Kishan, who are his neighbours, and that thereafter he also went to his uncle Suchha Singh. But P.W.-4 Kishanlal has not corroborated the testimony of Kala Singh on this count and Ram Kishan has not been examined by the prosecution. (13). Admittedly Kala Singhs clothes were not stained with blood. It appears quite improbable that when he was sleeping with his father and sister on the same cot and deceased Chimmanlal had received extensive injuries on his face, head and other parts of his body and was profusely bleeding with the result that the Dari was droused with blood, this witness did not get any stain of blood. In normal circumstances, the, clothes of Kala Singh and Guddy should have been stained with blood. This casts suspicion in the prosecution story. Apart from it, in FIR Ex.P/4, there is no mention that appellant Manjeet Kaur Alias Mummy had inflicted injuries by Ghota, while appellant Gora Singh had dealt Gandasi blows on the head of deceased. More-over Gandasi was not recovered either from the place of Occurrence or at the instance of appellant Gora Singh. The blood stained Ghota recovered from the place of incident, was also not sent for Chemical Examination to the Forensic Laboratory by the Investigating Officer, PW-7, Suchha Singh has also not stated that he had seen appellant Gora Singh going away along with a Gandasi. It appears that later on when the doctor conducted the post mortem examination of the dead body of Chimmanlal, he found two incised wounds caused by a sharp edged weapon. On the head of the deceased, the story of appellant Gora Singh inflicting injuries by a Gandasi has been subsequently introduced. Kala Singh has specifically stated that the alleged incident had taken place in the mid-night at about 12.00 O Clock and at that time it was a dark night. On the head of the deceased, the story of appellant Gora Singh inflicting injuries by a Gandasi has been subsequently introduced. Kala Singh has specifically stated that the alleged incident had taken place in the mid-night at about 12.00 O Clock and at that time it was a dark night. He has further stated that he had gone to Police station and that when the police came to the place of incident, it was dark. However he later on changed his version and stated that by the time police came there and had dawned. In the FIR also, there is no mention that there was some light in the house of deceased Chimmanlal. In such circumstances, it appears quite improbable that Kala Singh could have seen appellants inflicting injuries to the deceased. (14). By not examining Kala Singh under sec. 161 Cr.P.C. a valuable right of the appellants to cross-examine and confront him with his previous statement has been taken away and this has caused grave prejudice to the appellant. The alleged incident took place in the night intervening 11th & 12th August 1982. Kala Singh kept mum and after more than 4 years and 9 months he has for the first time given his version about the alleged incident. His statement is also inconsistent and wavering, which reflects a confused state of his mind. (15). It is suffice to add that the evidence of a child witness is notoriously dangerous, unless it is immediately available and is received before any possibility of coaching and tutoring. In the case on hand, the evidence tendered by Kala Singh has been inordinately belated and possibility of his tutoring cannot be ruled out. We carefully scanned his statement. Keeping in view, his tender age at the time of alleged incident and version given by him in the court about the incident for the first time after about 4 years and 9 months as also his inconsistent statement, which has not been duly corroborated. We are of the considered opinion that he is not at all a credible and reliable witness. (16). PW-4, Kishanlal has not stated anything about the incident. On the other hand he has simply proved memo of dead body and in quest report Ex.5 as a motbir. He has not stated that on the alarm raised by Kala Singh, he had rushed to the house of the deceased. (16). PW-4, Kishanlal has not stated anything about the incident. On the other hand he has simply proved memo of dead body and in quest report Ex.5 as a motbir. He has not stated that on the alarm raised by Kala Singh, he had rushed to the house of the deceased. He, therefore, does not corroborate the testimony of Kala Singh. (17). The learned Judge has committed yet another illegality in believing the testimony of PW-6 Suchha Singh, who has claimed that he had seen appellants along with their daughter going oh a cycle at a distance about 30 feet. As per statement of Kala Singh, at that time it was quite dark. Therefore, it was not possible for Suchha Singh to have identified the appellants. If Suchha Singh had actually seen the appellants going away on a cycle at a distance of 30 feet, he could have very well apprehended them. Suchha Singh has also not stated that he had seen the appellants taking away the tape-recorder, wrist watch and shirt of the deceased. Admittedly no recovery of these articles have been made in this case. (18). PW-6, Suchha Singh has admitted in his cross-examination that when he had gone to lodge the report in the Police Station, his thumb impressions were not taken by the police on any papers. On the other hand the police had taken his thumb impressions at the house of the deceased. A perusal of site plan Ex-P/2 and seizure of memo of blood stained soil and control sample. Ex. P/6 mistakenly reveals that these memos were prepared on 12.8.82, by therein FIR no. 109 was inserted lateron, that too by a different ink. This shows that when PW-3 Abdul Aziz inspected the site the FIR number was not available, that the case was not registered and that the FIR was scribed lateron. This fact also stands established by a perusal of FIR Ex.P/4 which was received at 11.00 A.M. on 13.8.82 by the Magistrate. This undue delay in dispatch to the FIR to the Magistrate has also not been explained at all by the Investigation Officer. Thus, it is abundantly apparent that FIR Ex.P/4 was scribed much later and that it is a post investigation document. (19). The investigation in this case has been conducted in a faculty and ship shod manner. This undue delay in dispatch to the FIR to the Magistrate has also not been explained at all by the Investigation Officer. Thus, it is abundantly apparent that FIR Ex.P/4 was scribed much later and that it is a post investigation document. (19). The investigation in this case has been conducted in a faculty and ship shod manner. The medical evidence is also inconsistent with the version given in FIR P/4. As mentioned earlier the Investigation Officer did not care to send the sample of blood incident soil, blood stained ghota and the blood stained Dari for Chemical Examination. He also did not take any step to collect the evidence to establish that the leather-boot, which was recovered from the place of occurrence, belonged to appellant Gora Singh. Thus the recovery of the boot, pair of sandle and blood stained ghota are meaningless and those do not connect the appellants with the crime. (20). The facts that the appellants were staying in the house of the deceased and were sleeping in the night in his house, is not sufficient to conclusively prove that they had a common intention to commit the murder of Chimmanlal and that in furtherance thereof they had inflicted grievous injuries to the deceased and committed his murder. (21). In our considered opinion the learned trial Judge has not correctly discussed analysed and evaluated the prosecution evidence and convicted the appellants on mere surmises and conjectures. Suspicion how so ever strong it may be, cannot take the place of proof. In the case on hand the prosecution has miserably failed to adduce clear, cogent, convincing and clinching evidence to success only bring home the guilt against the appellants beyond reasonable doubt. Hence the conviction and sentence imposed against the appellants cannot be sustained. (22). In the premise of the above discussion, we allow this appeal, quash the impugned judgment, and set-aside the conviction and the sentence imposed against the appellants and acquit them for the offences under sections 302/34 & 304 I.P.C. The appellants be released forthwith if they are not required in any other case. Their release orders be sent to Superintendents Jail, Jaipur and Bikaner, where appellants Smt. Manjeet Kaur Alias Mummy & Gora Singh respectively are lodged, immediately.