Judgement K. N. BASHA, J. :- Karumpandi alias Muthupandi is a sole accused in this case has come forward with this appeal challenging his conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No. I, Tirunelveli, made in S.C. No. 63 of 2002 dated 29-4-2003 convicting him of the offence under Section 302, I. P.C. and sentencing him to undergo life imprisonment and also imposing a fine of Rs. 500/-, in default, to undergo two years' rigorous imprisonment and also convicting him under Section 397, I. P. C. and sentencing him to seven years' rigorous imprisonment. 2. (a) It is alleged by the prosecution that the accused said to have entered into the house of the deceased-Pandi, who is the husband of P. W. 2, the injured witness in this case and thereafter attacked the deceased and also removed the ear studs of P. W. 2 viz., M. Os. 1 to 3. The occurrence in this case said to have taken place on 12-5-2001 at 3.30 a.m. and at that time, the deceased was sleeping with his wife, P. W. 2, and their children. The only eye-witness available on record, as per the prosecution case is P. W. 2, who is claimed to have witnessed the occurrence. According to P. W. 2, on the fateful day of occurrence, viz., on 12-5-2001, the deceased and herself along with their children were sleeping in the house. There is a theatre nearby to their house. It is claimed by PW 2 that after the night show public were returning from the theatre and due to that sound the deceased, the husband of P. W. 2 woke up and asked P. W. 2 for food and after taking food both P. W. 2 and her husband, the deceased were sleeping on the verandha of their house. At that time she heard the murmuring sound of her husband and while she woke up the accused was removing her studs from her left ear. Thereafter P. W. 2 raised hue and cry. The accused immediately cut her with aruval, M. O. 11 on her left side face and also on her left shoulder. Thereafter she found her husband the deceased lying dead with bleeding cut injuries on his neck. The neighbours came to her house on hearing the hue and cry of P. W. 2. The accused immediately cut her with aruval, M. O. 11 on her left side face and also on her left shoulder. Thereafter she found her husband the deceased lying dead with bleeding cut injuries on his neck. The neighbours came to her house on hearing the hue and cry of P. W. 2. P. W. 2 said to have informed them that an unknown person aged about 25 years with 4½ feet height came and cut her husband and ran away from the scene. It is further claimed by P. W. 2 that she was able to see the assailant through the moon light. (b) P. W. 1, who is the uncle of the deceased and who is residing adjacent to the house of the deceased claimed that at 3.30 a.m. he heard hue and cry and rushed to the scene of occurrence and found the deceased lying dead with a cut injury on his right neck and P. W. 2 also found with a cut injury on the left cheek. It is claimed by P.W.1 that while he questioned P. W. 2, she informed him that she can identify the assailant. It is pertinent to be noted at this juncture that P. W. 2 has not whispered a word about the arrival of P. W. 1 soon after the occurrence. Though P. W. 1 claimed that he has made arrangements for an auto and sent the injured P. W. 2 to the hospital for treatment, P. W. 2 has not stated any such endeavour taken by P. W. 1. But she has stated that her neighbour one Subbaiah brought the auto and thereafter she left for Tirunelveli Medical College Hospital. (c) P. W. 1 stated that thereafter he went to Mukkodal Police Station and gave a report, Ex. P.1 to P. W. 12, Sub-Inspector of Police, at 4.30 a.m. on 12-5-2001. Ex. P. 1 was recorded by P. W. 12 and the left thumb impression was obtained from P. W. 1 as attested by one Paul Raj. P. W. 12, registered the case in Crime No. 47 of 2001 under Sections 302 and 307 of I. P. C. He sent the First Information Report through the Constable, P. W. 7 to the Judicial Magistrate Court, Cheranmahadevi, and also to the higher officials. P. W. 12, registered the case in Crime No. 47 of 2001 under Sections 302 and 307 of I. P. C. He sent the First Information Report through the Constable, P. W. 7 to the Judicial Magistrate Court, Cheranmahadevi, and also to the higher officials. (d) Meanwhile, the Doctor, P. W. 10, on 12-5-2001 at 6.25 a.m. examined P. W. 2 who was brought by her relative one Muthammal and found the following injuries : 1. A transverse cut injury 8 cm. x 3 cm. x depth not accessible with bleeding left side face. 2. A cut injury (transverse) 8 cm. x 2 cm. x depth not accessible left shoulder. It is stated by the Doctor, P. W. 10, that the injured P. W. 2 informed him that she was assaulted by an unknown person while she was inside her house. It is further mentioned by the Doctor, P. W. 10, in Ex. P. 11, Accident Register that the occurrence is said to have taken place at 2.00 a.m. (e) P. W. 13, Inspector of Police, attached to the Mukkoodal Police Station received the message about the occurrence on 12-5-2001 and also received the First Information Report copy. Thereafter he went to the scene of occurrence at 5.50 a.m. He prepared the Rough Sketch, Ex. P. 14 and also prepared the Observation Mahazar, Ex. P. 2 in the presence of P. W. 3 and another. He also recovered the blood-stained earth-M. O. 9, sample earth-M. O. 10, Saree-M. O. 4, Blanket-M. O. 5 and blood-stained mat-M. O. 6 under Ex. P. 3. Thereafter he held inquest on the dead body of the deceased from 6.30 a.m. to 8.30 a.m. Ex. P. 15 is the inquest report. Thereafter he examined P. W. 1 and recorded his statement and sent the body for post-mortem through P. W. 8. (f) The Doctor, P. W. 9, attached to the Government Hospital, Ambasamuthiram, conducted post-mortem on the dead body of the deceased at 11.50 a.m. on 12-5-2001. He found the following injury : "A cut injury right side neck 11 x 7 x 5 cm. below the angle of jaw cutting the muscles, vessels and bone underneath". The Doctor, P. W. 9 is of the opinion that the deceased would appear to have died of shock and haemorrhage due to injury No.1. He found the following injury : "A cut injury right side neck 11 x 7 x 5 cm. below the angle of jaw cutting the muscles, vessels and bone underneath". The Doctor, P. W. 9 is of the opinion that the deceased would appear to have died of shock and haemorrhage due to injury No.1. (g) In continuation of his investigation P. W. 13, examined some more witnesses and recorded their statements including the Sub-Inspector of Police, P. W. 12. P. W. 13 examined some other witnesses and recorded their statements including the Doctor, P. W. 10 on 13-5-2001. He went to the Madurai Government Hospital on 21-5-2001 and examined P. W. 2 and recorded her statement. On 22-5-2001 he altered the offence from Section 302, I. P. C. to Sections 302 and 397, I. P. C. and thereafter he sent the Express F. I. R. to the Judical Magistrate, Cheranmahadevi. On 22-5-2001 at 5.00 p.m., P. W. 13 arrested the accused at Vadaku Ariyanayakipuram Anaikattu Junction. In pursuance of the admissible portion of the confessional statement of the accused, Ex. P. 16, P. W. 13 recovered the ear studs viz., M.Os. 1 to 3 in the presence of the witnesses, P. Ws. 4 and 5 under Ex. P. 17 and also recovered the avural, M. O. 11 from the accused under Ex. P. 18 in the presence of the same witnesses viz., P. Ws. 4 and 5. Thereafter, he remanded the accused to judicial custody. On 25-5-2001, P.W. 13 examined the Doctor, P. W. 9, and P. W. 10 and recorded their statements. On 18-7-2001 he sent the requisition for conducting the identification parade to the Judicial Magistrate Court, Ambasamuthiram. After completion of the investigation P. W. 13 filed the charge-sheet against the accused for the offence under Sections 302 and 397 of I. P. C. 3. The prosecution, in order to bring home the charges against the accused examined P. Ws. 1 to 13, filed Exs. P. 1 to P.18 and marked M. Os. 1 to 11. 4. When the accused was questioned under Section 313, Cr. The prosecution, in order to bring home the charges against the accused examined P. Ws. 1 to 13, filed Exs. P. 1 to P.18 and marked M. Os. 1 to 11. 4. When the accused was questioned under Section 313, Cr. P. C., in respect of the incriminating materials made appearing against him through the evidence adduced by the prosecution, the accused has come forward with the version of total denial and stated that he has been falsely implicated in this case and the accused has not chosen to examine any witness on his side. 5. Mr. M. K. Subramanian, learned counsel appearing for the appellant contended that the prosecution has not come forward with clear, cogent and consistent version. It is submitted by the learned counsel for the appellant that the entire prosecution case rests on the sole testimony of P. W. 2, who is the alleged eye-witness in this case and her evidence also suffers from serious infirmities. It is submitted by the learned counsel for the appellant that P. W. 2 claimed before the Court that while she was sleeping along with her husband at the verandha of the house, the occurrence took place. On the other hand, her earliest statement to the Doctor, P. W. 10 is to the effect that she was assaulted while she was inside the house. It is further brought to the notice of this Court by the learned counsel for the appellant that the earliest version of P. W. 2 to the Doctor is that the occurrence said to have taken place at 2.00 a.m. and the present version is that the occurrence said to have taken place at 3.30 a.m. It is contended by the learned counsel for the appellant that P. W. 2 was very much conscious after the occurrence and she claimed that she informed the neighbours who came after hearing hue and cry that the assailant is aged about 25 years and he was 4½ feet (in) height and that she claimed to have seen the assailant through the moon light at the time of the occurrence. It is pointed out by the learned counsel for the appellant that though she claimed that she was sustained cut injury with an aruval she has not stated to the Doctor, P. W. 10 with that weapon she was attacked by the accused. It is pointed out by the learned counsel for the appellant that though she claimed that she was sustained cut injury with an aruval she has not stated to the Doctor, P. W. 10 with that weapon she was attacked by the accused. The learned counsel for the appellant contended that such version of P. W. 2, on the face of it, is unbelievable. 6. The learned counsel for the appellant further contended that it is highly improbable for P. W. 2 to identify the accused two months after the occurrence as the identification parade itself was conducted only on 23-7-2001 whereas, the occurrence itself is said to have taken place on 12-5-2001. It is further brought to the notice of this Court by the learned counsel for the appellant that the accused has stated even before the learned Magistrate who conducted the identification parade that his photograph was taken earlier and therefore the possibility of showing the photograph to the witness, P.W.2, cannot be ruled out in this case. 7. It is also contended by the learned counsel for the appellant that according to the evidence of the auto driver, P. W. 6, P.W.1 was very much present at the scene of occurrence at 5.00 a.m. while he was taken P. W. 2, injured to the hospital. That being the position, P. W. 1's claim that he has given the report, Ex. P. 1 to P. W. 12, Sub-Inspector of Police, at 4.30 a.m. is unbelievable. It is also contended by the learned counsel for the appellant that P. W. 1 has categorically admitted in his cross-examination that the police came to the scene of occurrence at 7.00 a.m. and thereafter enquired him and recorded his statement and obtained his thumb impression and that statement was also attested by one Paul Raj and therefore the learned counsel for the appellant contended that the prosecution has deliberately suppressed that report and the present report must have been prepared subsequently. In support of his contention the learned counsel for the appellant pointed out that the report, Ex. P.1 is said to have registered by P. W. 12 at 4.30 a.m. but the F. I. R. reached the Magistrate Court, which is only within a distance of 5 kilometers, at 9.05 a.m. nearly more than 4 hours delay. In support of his contention the learned counsel for the appellant pointed out that the report, Ex. P.1 is said to have registered by P. W. 12 at 4.30 a.m. but the F. I. R. reached the Magistrate Court, which is only within a distance of 5 kilometers, at 9.05 a.m. nearly more than 4 hours delay. Such delay assumes importance in view of the admission of P. W. 1 that the police came to the scene of occurrence at 7 a.m. and recorded the statement from P. W. 1. Therefore it is vehemently contended by the learned counsel for the appellant that the prosecution has suppressed the earliest report which is fatal to the prosecution case. 8. The learned counsel for the appellant further contended that the prosecution also miserably failed to prove the recovery of MOs. 1 to 3, the ear studs of P. W. 2 as well as M. O. 11 aruval said to have been recovered from the accused as the witnesses to speak about the recovery viz., P. Ws. 4 and 5 have not supported the prosecution case. The learned counsel for the appellant also further pointed out that there is no whisper or any mention about the missing of the ear studs in Ex. P. 1 which is the earliest document. It is further submitted by the learned counsel for the appellant that though P. W. 2 has claimed that she woke up at the time of the accused removing the ear studs from her ear, there is absolutely no injury found on the left ear of P. W. 2 and only on injury found on the left cheek. Therefore, the version of P. W. 2 is unbelievable. 9. Per contra, the learned Additional Public Prosecutor submitted that the prosecution has come forward with the acceptable evidence. It is contended by the learned Additional Public Prosecutor that the evidence of P. W. 2, eye-witness in this case is quite natural and there is no serious infirmity found in her evidence. It is further contended by the learned Additional Public Prosecutor that the evidence of P. W. 2 also corroborated by the medical evidence through the Doctor, P. W. 10. It is further contended by the learned Additional Public Prosecutor that the evidence of P. W. 2 also corroborated by the medical evidence through the Doctor, P. W. 10. The learned Additional Public Prosecutor further submitted that the accused was arrested only on 22-5-2001 and only thereafter the Investigating Officer, P. W. 13, has made arrangements to conduct identification parade and therefore the delay in conducting identification parade is not fatal to the case of the prosecution. 10. We have given our careful and anxious considerations to the rival contentions put forward by either side. 11. The prosecution in this case heavily placed reliance on the sole testimony of the alleged eye-witness P. W. 2 who is none else than the wife of the deceased and therefore P. W. 2 is an interested witness and thereby this Court has to consider the evidence of P.W. 2 with great care and caution. As rightly pointed out by the learned counsel for the appellant, the prosecution case suffers from serious infirmities. The earliest version of P. W. 2 before the Doctor, P. W. 10 at the time of admission for treatment is that she was assaulted by the accused while she was inside the house but the present version before the Court is that the occurrence said to have taken place in front of her house viz., in verandha. It is also relevant to note that P. W. 2 stated to the Doctor that the occurrence is said to have taken place at 2.00 a.m. and now her present version is that the occurrence is said to have taken place at 3.30 a.m. Though P. W. 2 claimed before the Court that she has assaulted by the accused with an aruval she has not stated anything about the weapon during her examination by the Doctor, P. W. 10. 12. Apart from the abovesaid infirmities, the identification of the accused by P. W. 2 in the identification parade also unbelievable. P. W. 2 claimed that she was able to identify the accused in the moon light and that too while she was in tension as she herself said to have sustained an injury at the hands of the accused and further her husband also found lying with a cut injury and such being the position it is very curious as to how she identified the accused in the identification parade. Further it is relevant to note that as per her earliest version the occurrence is said to have taken place inside the house and that being the position, it is improbable for P. W. 2 to see the assailant through the moon light as claimed by her in the absence of any light burning inside the house. It is pertinent to be noted at this juncture that the identification parade itself was conducted two months after the occurrence as the occurrence is said to have taken place on 12-5-2001 and the identification parade was conducted by the Magistrate, P. W. 11 only on 23-7-2001. Apart from delay, it is also relevant to note that the accused informed the Magistrate while the Magistrate questioned him whether he is having any objection for conducting identification parade, the accused informed the Magistrate that the police has already taken his photograph and took him to the police station. Therefore, it is clear that P. W. 2 could have seen the photograph as could have been shown by the police even before the identification parade. 13. The learned counsel for the appellant also rightly placed reliance on the decision of the Hon'ble Supreme Court of India in Wakil Singh v. State of Bihar, reported in 1981 SCC (Cri) 634 : (1981 Cri LJ 1014). In that decision, the Apex Court has held that the delay in conducting identification parade for about 3½ months is fatal to the prosecution case. The Apex Court has also held that, "2. In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoities whom they have alleged to have identified in the decaoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial Court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial Court. For these reasons, therefore, the trial Court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial Court. The High Court, however has chosen to rely on the evidence of a single witness, completely overlooking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T. I. Parade about 3½ months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness." The above said principle laid down by the Apex Court is squarely applicable to the facts of the instant case. 14. There is also yet another infirmity in the prosecution case regarding Ex. P. 1 said to have been recorded by P. W. 12, Sub-Inspector of Police, from P. W. 1 at the Mukkoodal Police Station. P. W. 1 also admitted in his cross-examination that the police came to the scene of occurrence at 7.00 a.m. and thereafter enquired him and recorded his statement and obtained his thumb impression. It is further admitted that one Paul Raj also attested the report, Ex. P. 1. Therefore, it is very clear that the report recorded at the scene of occurrence from P. W. 1 must have been suppressed by the police and the present report, Ex. P. 1 is likely to be prepared at the later stage at the police station. In this context, the delay in F. I. R. reaching the Magistrate Court assumes importance. Though P. W. 12 claimed that the F. I. R. was registered at 4.30 a.m., the same reached the Magistrate Court, which is within a distance of 5 kilometers, at 9.05 a.m. which probabilises the defence theory that the earliest report given is suppressed by the prosecution and the present report must have been prepared belatedly and not as claimed by the prosecution at 4.30 a.m. Therefore, in this case there is serious doubt about the genuineness of Ex. P. 1. 15. P. 1. 15. The prosecution also miserably failed to prove the yet another piece of evidence viz., the recovery of the ear studs, M. Os. 1 to 3 and the aruval, M. O. 11 said to have been recovered as the witnesses to speak about the recovery viz., P. Ws. 4 and 5 have not supported the prosecution case and also turned hostile completely. 16. Therefore, for the foregoing reasons, it is most unsafe to place reliance on the uncorroborated and inconsistent solitary testimony of P. W. 2 coupled with the other infirmities in the prosecution case, as stated above, to convict the accused. 17. The appeal is, therefore, allowed and the conviction and sentence imposed on the appellant are set aside. The appellant is directed to be released forthwith unless he is required in connection with any other case. Fine amount paid, if any, is ordered to be refunded to the appellant. 18. Before parting with this appeal, we have to place it on record the commendable services rendered by Mr. M. K. Subra-manian, who has appeared as legal aid counsel on behalf of the appellant in this case and argued very effectively by taking us through the entire evidence meticulously. The learned counsel is entitled to get remuneration from the Legal Aid Centre, Madurai Bench of Madras High Court. Appeal allowed.