JUDGMENT H.G. Vaidyanatha, J. - This is an Appeal filed by the State challenging the acquittal of the respondents/accused as per the judgment of the trial Court dated 26th November, 1992 in Sessions Case No. 65/90 on the file of Sessions Judge, Panaji. We have heard the learned Public Prosecutor in support of the Appeal and the learned counsel for the respondents. It may be noted that the 5th accused could not be served in this Appeal and hence in the Appeal we are only concerned with Appeal as against respondent Nos. 1 to 4 and Appeal against respondent No. 5 has been separated. The respondents were charged with offences punishable under Sections 143, 148, 302 and 427 r/w Section 149 I.P.C. 2. The prosecution case is that on 8-41990, the deceased Querino and one Gurudas had gone to see a movie at Samrat theatre. It appears that P.W. 6 Michael Gonsalves had also gone to the said cinema. According to the prosecution, when the cinema was running, there was some commotion and disturbance which resulted in the accused chasing the deceased Querino. There it appears Querino ran towards the market and near Kismet Lodge and accused is said to have assaulted him by using weapons like iron rods, stones, etc. As a result of the assault, Querino sustained injuries and was lying in a pool of blood Then it appears the injured was removed to the Hospital by 4.30 p.m. and ultimately he succumbed to the injuries by about 5.00 P.M. It appears one Gurudas went to the Hospital and saw the deceased's body and gave the F. I. R on the basis of which the police registered the case and started the investigation. In the course of investigation many witnesses including two eye witnesses came to be examined. The accused were also arrested during investigation. After investigation was complete, charge-sheet has been filed alleging that the accused committed the offences mentioned above. 3. The defence of the accused was one of total denial. After trial the learned Sessions Judge held that the prosecution case is doubtful and the case against the accused is not proved and, therefore, acquitted all the accused. Being aggrieved by the judgment of the trial Court, the State has come with this Appeal. 4. The learned Public Prosecutor appearing in support of the Appeal contended that the acquittal of the accused is erroneous. Being aggrieved by the judgment of the trial Court, the State has come with this Appeal. 4. The learned Public Prosecutor appearing in support of the Appeal contended that the acquittal of the accused is erroneous. He took us through the evidence and in particular commended to us the evidence of the two eye witnesses P.W. 15 and P.W. 19 and contended that their evidence is sufficient to connect the accused with the crime. On the other hand, the learned Senior Counsel appearing for the respondents supported the impugned judgment and contended that no case is made out for interfering with the impugned judgment. 5. As far as homicidal death of Querino is concerned, there is no dispute at all. We also have the evidence of Dr. Reddy who conducted the post-mortem examination. He has told the Court that he found as many as 17 external injuries on the dead body. He has given opinion that all the injuries were caused by blunt force and were anti-mortem and were fresh. On internal examination he noticed contusion of scalp and both temporal muscles were contused. There was a communited fracture in the left temporo-parietal region of the scalp. This corresponds to external injuries Nos. 8 and 9. The Doctor has given opinion that the death was due to cerebral damage as a result of impact of blunt force regarding injuries Nos. 8 and 9. That the injuries Nos. 8 and 9 were sufficient to cause death in the ordinary course of nature. His post-mortem report has been marked as Exhibit P.W. 23/A. The Doctor's evidence regarding the nature of the injuries and the cause of death has not been challenged in cross-examination. 6. The most difficult question is to find out as to who was the author of this crime. As already stated, one Gurudas lodged the F.I.R. but unfortunately, he has not been examined in this case and the prosecution version is that his whereabouts are not known. Even otherwise, we find that as far as the actual assault is concerned, he is not an eye witness. He has mentioned in the complaint about the information he got from an eye witness who was present near the scene of offence. It is well settled that the F.I.R is not substantive evidence. It can be used to corroborate or contradict the maker. He has mentioned in the complaint about the information he got from an eye witness who was present near the scene of offence. It is well settled that the F.I.R is not substantive evidence. It can be used to corroborate or contradict the maker. But unfortunately, the maker of the F.I.R. has not been examined. 7. Though a number of witnesses have been examined in this case, we find that unfortunately most of them have turned hostile. Some of those witnesses are purely formal witnesses. Some of the witnesses do not speak about the occurrence at all. The prosecution case can be divided into three parts. The first part was in the Cinema theatre, the next near the canteen and the third near the Kismet Lodge. As far as the first incident is concerned, there is general evidence that there was some commotion and disturbance in the Cinema Hall, but unfortunately, none of the witnesses speak about accused and about the identity of the culprits. The vague evidence is not sufficient to connect the accused with the crime. P.W. 5, P.W. 7, P.W. 8, P.W. 11 and P.W. 12 speak about the incident inside the Theater but they do not throw light on the question as to who was the assailant or who caused the disturbance. Then we have the evidence of P.W. 13 and P.W. 14 who speak about the incident near the canteen but they also do not speak about the accused at all. P.W. 6 is the person who had gone to the picture with the deceased and Gurudas, but unfortunately, he has also turned hostile and some of the witnesses are purely formal in this case. 8. We have three or four Investigating Officers who have taken part in the investigation. Then we are left with the evidence of only two eye witnesses P.W. 15 and P.W. 19. As far as P.W. 19 is concerned, though he is styled as eye witness, unfortunately for the prosecution he has also turned hostile. P. W. 19 Virendra Naik states that on that day he and P.W. 15 had gone to Samrat Theater but could not get admission since the house was full. Then both of them went towards Miramar beach and-while returning they saw some maramari near Kismet Lodge. He says that there were many persons fighting and the injured was lying on the ground. Then both of them went towards Miramar beach and-while returning they saw some maramari near Kismet Lodge. He says that there were many persons fighting and the injured was lying on the ground. He does not say that the accused were the persons who were assaulting the deceased. Then after seeing the incident, he and P.W. 15 went to the village and informed the sister of the deceased. Since the witness did not speak about the participation of the accused in the crime and did not identify the accused, he was treated hostile by the prosecution and was cross-examined with the leave of the Court. In cross-examination he has denied portions of his statement before the police. Then he says that he came to know the names of the accused from PW. 15 and on his own admission he did not know the identity of the accused persons except the names supplied by P.W. 15. In the very nature of things it purports to be hearsay evidence. Had he identified the accused as persons involved in the crime, then it would be positive evidence against the accused. His evidence does not help us in any way to connect the accused with the crime. It may be that he made a contrary statement before the police. His statement before the police recorded under Section 161 Cr. P.C. cannot be treated as legal evidence. It is only the evidence given on oath before the Court that can be treated as legal evidence. Unfortunately, therefore, we are constrained to hold that the evidence of P.W. 19 does not help the Court to connect the accused with the crime. We may say that he is not a reliable witness in view of the conflicting statements made before the police but that will not help the prosecution in proving the case against the accused. 9. Then we are left with the solitary evidence of PW. 15 Alex. No doubt, P.W. 15 has deposed before the court that when he and P.W. 19 were returning from Miramar beach and when they came near the Municipal market they saw accused persons assaulting the deceased near Kismet Hotel. He identified all the five accused before the Court. Then he also says that the accused Henry had a spear. The accused Mohan had a stone and other accused had iron rods. He identified all the five accused before the Court. Then he also says that the accused Henry had a spear. The accused Mohan had a stone and other accused had iron rods. That accused Mohan hit the deceased with a stone on his head. Then after the incident he went to the village and informed the sister of the deceased about this incident. In cross-examination he admits that he is residing at Merces. Then in cross-examination he explained to his coming to Panaji on that day. We will comment on this little later. Then he admits that his statement was recorded by the police two or three days later. He also says that the deceased was known to him from childhood and he is his relative. He has been confronted with two portions of this statement before the police which he has denied. He admits that after the incident he did not go to the Police Station to inform the police. It is also admitted by him that accused No.1 Henry assaulted the deceased with the weapon arrow which is referred to as spear in the evidence. He admits that on that day he had come to see a picture but P.W. 19 accompanied him by chance. 10. Now the question is whether the evidence of P.W. 15 stands the test of scrutiny and can be safely accepted. The learned Sessions Judge who had occasion to record evidence and observe the demeanour of the witness has given number of reasons as to why P.W. 15 cannot be believed. The learned Public Prosecutor contended that in spite of the observations made by the learned Sessions Judge, the evidence of PW. 15 can be safely accepted and it is sufficient to connect the accused with the crime. The learned counsel for the respondents has repeated the same observations made by the learned trial Judge in his judgment. The glaring defect is about the delay in examination of the eye witness by the police. The incident took place on 8-4-1990. This eye witness has been examined by the police on 12-4-1990. It is not known as to how and on what basis the Investigating Officer got information that this witness is an eye witness on 12-4-1990. The glaring defect is about the delay in examination of the eye witness by the police. The incident took place on 8-4-1990. This eye witness has been examined by the police on 12-4-1990. It is not known as to how and on what basis the Investigating Officer got information that this witness is an eye witness on 12-4-1990. Even the Investigating Officer has conceded in his evidence that he cannot say on what basis and on whose information he secured this witness as eye witness on 12-4-1990. The trial Judge was, therefore, justified in observing that this witness was secured for the first time on 124-1990. It is in evidence that this witness went to inform the sister of the deceased about the incident immediately after the incident. In the usual course we would expect the sister or members of the family to inform the police that one person had seen the incident. According to the Investigating Officer till 12-4-1990 there was no information that there was any eye witness to the occurrence. This witness had attended the funeral of the deceased on the next day but had not volunteered to inform the police. His silence for 4 days creates doubt in the mind of the Court about the veracity of the witness. No explanation is coming forth from the prosecution about the delay of 4 days in examining such an important and solitary eye witness. The next criticism about this witness is that he is a chance witness and, therefore, could not be believed. The learned Public Prosecutor is right in his submission that a witness cannot be branded as chance witness and cannot be rejected altogether and placed reliance on State of Uttar Pradesh v. Kishori Lal Minocha1. It is true that a witness cannot be branded as chance witness and discarded altogether. But in a given case if it is shown that the witness had no occasion to be present at the time and place alleged by the prosecution, then it may be taken as one of the circumstances to doubt his reliability. In the present case the witness is a resident of Merces village which is in the outskirts of Panaji. The incident has taken place in Panaji city near Kismet Lodge. In the present case the witness is a resident of Merces village which is in the outskirts of Panaji. The incident has taken place in Panaji city near Kismet Lodge. The witness has stated that he came to Cinema Theater at about 1.30 P.M. along with P. W. 19 and since no tickets were available he and P.W. 19 went to Miramar beach and spent time. The learned counsel for the respondents commented on this artificial explanation since nobody would go to beach during noon. Then, further, after, spending some time near Miramar beach this witness along with P. W. 19 came and again took deviation to take lassi when the incident was going on. The witness is not a resident of Panaji city. The incident has taken place in the midst of the city and the witness is residing outside the city. Therefore, we can safely treat this witness as chance witness, though on that ground alone his evidence cannot be discarded altogether. 11. Then the conduct of the witness does not appear to be natural. He is a relative of the deceased. On his own admission he did not want to interfere. Even after the incident he and P.W. 19 go on motor-cycle without bothering to inform the Police Station which is at a short distance from the place incident. Even after going home and having informed his sister, he keeps quiet till he is called by the police on 12-41990. This conduct on the face of it appears to be unnatural and artificial. The learned trial Judge has also pointed out that the evidence of this witness is also in conflict with medical evidence. According to this witness, accused. No.1 assaulted the deceased with a spear. Spear is a sharp pointed weapon. The Doctor admits that in case of assault with such weapon, there will be a stab injury which is a penetrating one. But in the present case there was no such stab injury or penetrating wound. Hence the contradiction between oral evidence and the medical evidence is also a circumstance which creates doubt in the mind of the Court about the version given by this witness. We must bear in mind that we are sitting in appeal against a judgment of acquittal. But in the present case there was no such stab injury or penetrating wound. Hence the contradiction between oral evidence and the medical evidence is also a circumstance which creates doubt in the mind of the Court about the version given by this witness. We must bear in mind that we are sitting in appeal against a judgment of acquittal. As rightly argued by the learned counsel for the respondents placing reliance on Ganesh Bhavan Patel and another v. State of Maharashtra2, the power of the appellate Court regarding acquittal judgments is limited. The presumption of innocence of an accused in a criminal case is reinforced by the judgment of acquittal by the trial Court. Though the appellate Court has all the powers to re-assess and review the evidence and take an independent decision, still the appellate Court will have to give due regard to the views of the trial Judge who is a fact finding Judge. The Apex Court has further observed that if two reasonable conclusions could be drawn on the evidence, then the one found in favour with the accused has to be accepted. Merely because other view is possible, it is no ground for the High Court to interfere with the order of acquittal. We have carefully considered the reasoning given by the trial Judge who has given very good reasons as to why he has not relied upon the evidence of P.W. 15. After re-appreciating the evidence we do not find any reason to take a different view. The learned trial Judge has also commented on the Investigating Agency not conducting test of identification parade though many of the witnesses did not know the accused persons. 12. The cumulative effect of all the above circumstances leads us to a conclusion that evidence of P.W. 15, the solitary eye witness, cannot be taken at its face value and implicitly accepted to convict the accused for a serious offence of murder, which is punishable with death or imprisonment for life. 13. We regret to note that a very gruesome murder which has taken place in the midst of the city in broad day light is going unpunished and the accused are going scot free for want of legal evidence. It is because many of the witnesses have turned hostile and many witnesses did not support the prosecution. 13. We regret to note that a very gruesome murder which has taken place in the midst of the city in broad day light is going unpunished and the accused are going scot free for want of legal evidence. It is because many of the witnesses have turned hostile and many witnesses did not support the prosecution. As rightly observed by the learned trial Judge, the evidence on record may create some suspicion against the accused. But it is well settled that suspicion, however strong, cannot take the place of legal proof. Hence we are constrained to say that the prosecution has failed to prove its case and no ground is made for interference with the order of acquittal. 14. In the result, the Appeal fails and is dismissed. Appeal dismissed. 1. AIR 1980 SC 680 . 2. AIR 1979 SC 135 .