Judgment Raja Elango, J. 1. This appeal arises out of the judgment made in S.C.No.110 of 2007 by the learned Principal Sessions Judge, Dharmapuri convicting the appellant/accused for an offence under Section 302 IPC., and sentencing him to undergo life imprisonment and also to pay a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for two years. He was also convicted for the offence under Section 449 IPC., and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one year. The sentence imposed as against the accused was ordered to run concurrently. 2. Brief facts of the prosecution case are as follows: (i) The deceased Manjula is the wife of P.W.6 Chandrasekara Reddy. The accused is the cousin brother of P.W.6. The accused had been compelling the deceased Manjula several times for sexual intercourse. Since she had not heeded for that he decided to do away with her life. On 19.05.1998 at about 8.45 a.m. in the house of the deceased Manjula at Nanjapuram in the absence of P.W.6 Chandrasekara Reddy who is the husband of the deceased Manjula, the accused with a criminal intention of committing the offence of murder had trespassed into her house and pushed on her back on the cot, sat over her chest and strangulated her neck with hands and stuffed her mouth with hands so as to prevent any alarm and as a result of which she had died instantaneously due to asphyxia due to strangulation. (ii) When P.W.1 came back to his home he heard hue and cry from the house of Manjula. His daughter Radhammal had also made alarm and on hearing the sound of his daughter, he rushed to the house of the deceased Manjula, While so, the accused Ramesh was present in the house of Manjula. When the accused Ramesh was questioned by P.W.1, he had replied as if Manjula had voluntarily committed suicide and that he had brought her down and gave some water and subsequently she had died. At about 10.00 a.m. when P.W.3, P.W.4 were present near the Village temple they were called by P.W.1 who is the Oor Gounder of the village. When they went nearer to the house of the deceased Manjula, they saw the accused Ramesh was standing by the side of the dead body of Manjula. At about 10.00 a.m. when P.W.3, P.W.4 were present near the Village temple they were called by P.W.1 who is the Oor Gounder of the village. When they went nearer to the house of the deceased Manjula, they saw the accused Ramesh was standing by the side of the dead body of Manjula. the Body of the Manjula found lying on the cot. Thereafter the accused had run way from the place of occurrence. When P.W.6 Chandrasekara Reddy had alighted from the bus at Shoolagiri Police Station at about 5.00 p.m. he was informed by one Chandrappa saying that his wife was dead. Immediately, he had rushed to his native place in an auto and saw his wife made to lie on her back on the cot. He had also seen an injury on the left side of her neck. When he asked P.W.1 as to what happened to his wife, then P.W.1 had disclosed the incident. After having deliberation with elders P.W.1 went to Shoolagiri Police Station to lodge a complaint Ex.P1. (iii) On the basis of complaint given by P.W.1, on 19.05.1998 at about 10.00 p.m. P.W.13 the Inspector of Police received a complaint and Registered a case in Crime No.304/98 under Section 174 of Cr.P.C., in Ex.P5 printed First Information Report. The express first information report was sent to the police higher officials. In the meantime at about 10.00 a.m, P.W.6 had enquired with Radhammal as to what was happened? She had also narrated the incident which took place in the morning. On the same day, at about 11.00 P.M. P.W.13 Inspector of Police went to Nanjapuram Village and inspected the place of occurrence in the light of petromax lamp as well as in the light of electronic lamp in the presence of P.W.12 Maranapalli Village Administrative Officer and his village menial and prepared an observation Mahazar (Ex.P13) and he had also drawn a rough sketch (Ex.P.16). Then P.W.13 examined the witnesses and recorded their statements. Thereafter he had started conducting of inquest on the dead body of the deceased in the presence of Panchayatars and after completion of inquest he had also prepared inquest report which was marked as Ex.P17. During the course of Investigation, it came to light that the accused Ramesh had committed the murder of Manjula who is the wife of P.W.6. Thereafter he had started conducting of inquest on the dead body of the deceased in the presence of Panchayatars and after completion of inquest he had also prepared inquest report which was marked as Ex.P17. During the course of Investigation, it came to light that the accused Ramesh had committed the murder of Manjula who is the wife of P.W.6. Therefore, he had altered the section of law into one under Section 302 I.P.C. Further, he had sent the dead body to Hosur Government Hospital for post mortem examination along with a requisition Ex.P2 through P.W.8 Grade I Police Constable Gopal. Then P.W.13 also examined P.W.6 and other witnesses and recorded their statements. (iv) P.W.8 had entrusted the dead body along with the requisition to the hospital authority. On the next day at about 30. a.m, on his identification P.W.7 Dr. Jayaraman conducted post mortem on the dead body of the deceased. In this regard, P.W.7 had issued a post mortem certificate which is marked as Ex.P3. PW7 had sent Hyoid bone, vaginal smear and viscera for chemical analysis. Bone expert – Professor of Forensic Medicine, Government Medical College, Salem examined Hyoid bone and found Hyoid bone fractured. Professor Forensic Medicine opined that Hyoid bone fracture was antemortem. No spermatozoa was detected in the vaginal smear, poison was not detected in the viscera. After perusal of Bone expert report and chemical analysis report, PW7-Dr.Jayaraman had given his opinion that the deceased would appear to have died of asphyxia due to strangulation about 26 to 28 hours prior to autopsy. (v) After the completion of post mortem at 1.30 p.m, the dead body was handed over to P.W.8. After receiving the dead body he had seized the cloths from the dead body. In this regard P.W.8 had given a special report to P.W.13. On 22.05.1998 P.W.13 had arrested the accused at the mango groves of one Thottur Srinivasa Iyangar in the presence of P.W.12 Village Administrative Officer and his village menial Ramachandran. When he was interrogated the accused had voluntarily come forward and given a confession statement which was reduced into writing by P.W.13 in the presence of the same witnesses. Thereafter, the accused was sent to judicial custody. (vi) On requisition from PW13 and on direction by Chief Judicial Magistrate No.1 Krishnagiri-PW15 recorded Sec.164 Cr.P.C statement of witness Radhammal. When he was interrogated the accused had voluntarily come forward and given a confession statement which was reduced into writing by P.W.13 in the presence of the same witnesses. Thereafter, the accused was sent to judicial custody. (vi) On requisition from PW13 and on direction by Chief Judicial Magistrate No.1 Krishnagiri-PW15 recorded Sec.164 Cr.P.C statement of witness Radhammal. Ex.P20 is the statement of witness Radhammal(since dead) recorded U/s.164 Cr.P.C. (vii) On 25.03.2001, P.W.14 the Inspector of Police took up the case and he had also examined the Doctor who conducted post mortem on the dead body of the deceased Manjula and other witnesses. After completion of his investigation, he had laid a final report against the accused under Section 449 and 302 of I.P.C. on 30.10.2001. 3. To substantiate charges against the accused, the trial Court prosecution examined P.Ws.1 to 15, Exs.P.1 to P.21 were marked. 4. When the accused was questioned under Section 313 Cr.P.C., in respect of the incriminating materials appearing against him, he denied the same as false and pleaded not guilty. Upon analysis of evidence, the trial judge convicted the appellant/accused for the offence under Section 302 IPC., and Section 449 I.P.C. and sentenced to imprisonment and imposed fine as aforesaid in para No.(1). 5. The learned trial Judge relied on the following circumstances to convict the accused for the above said offences:- (i) Motive; (ii) Section 164 statement given by Radhaammal, Daughter of P.W.1 (since dead) has been marked as Ex.P20 through P.W.15 Judicial Magistrate; (iii) The presence of accused at the place of occurrence; (iv) The oral evidence of eye witnesses in connection with the incriminating circumstances against the accused; 6. The learned trial Judge on the basis of evidence of PWs.1,2 and 6 arrived at conclusion that the accused had teased the deceased and compelled her to have illicit relation with him. But in our considered view that the evidence of above said witnesses not cogent or convincing. Further the said motive is very feeble in nature. Hence, it cannot be taken as a ground to convict the accused. 7. The learned trial Judge very much relied on Section 164 Cr.P.C. statement recorded by P.W.15, on the basis of requisition given by investigating officer. The said 164 Cr.P.C., statement is given by one Radhammal, who is daughter of PW.1 & 2. Hence, it cannot be taken as a ground to convict the accused. 7. The learned trial Judge very much relied on Section 164 Cr.P.C. statement recorded by P.W.15, on the basis of requisition given by investigating officer. The said 164 Cr.P.C., statement is given by one Radhammal, who is daughter of PW.1 & 2. Since the said Radhammal died prior to the commencement of trial, she could not be examined as a witness in the trial Court. The statement recorded under Section 164 Cr.P.C. is not a substantive evidence and it can be used only for the purpose of corroboration and contradiction. Un-corroborated testimony under Section 164 Cr.P.C. statement is no evidentiary value and cannot form basis to convict a person. The learned trial Judge relied on Section 281 and 299 of Cr.P.C., and under 33 of the Evidence Act to rely the statement made under Section 164 of Cr.P.C. We are of the considered opinion that the provisions relied on by the learned trial Judge is totally irrelevant and the trial Judge mis-construed the purport of the above said provisions. 8. Section 33. of Evidence Act lays down the conditions under which secondary evidence of the testimony of a witness given in a former proceeding, civil or criminal, is rendered admissible in a subsequent proceedings or in a later stage of the same proceeding. The question of their admissibility under this section depends not as in S 32 on the intrinsic character of the statement and its subject-matter, but on the circumstances in which they were made. Previous deposition is admissible in a subsequent judicial proceeding in proof of the facts stated therein, when the conditions stipulated in Sec.33 are fulfilled. 9. Analysing scope of Sec.33 in 2004 SCC (Cri) 1077 Sahi Jena vs. Khadal Swain Honble Supreme Court summarised the conditions in Sec.33 which reads as under: "8. Previous deposition is admissible in a subsequent judicial proceeding in proof of the facts stated therein, when the conditions stipulated in Sec.33 are fulfilled. 9. Analysing scope of Sec.33 in 2004 SCC (Cri) 1077 Sahi Jena vs. Khadal Swain Honble Supreme Court summarised the conditions in Sec.33 which reads as under: "8. From a bare perusal of the aforesaid provision, it would appear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three prerequisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are:(i) that the earlier proceeding was between the same parties;(ii) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (iii) that the questions in issue in both the proceedings were substantially the same, and in the absence of any of the three prerequisites aforestated, Sec. 33 of the Act would not be attracted. 10. One of the essential condition of Sec.33 is that where already against whom deposition is tendered had right and full opportunity for cross-examining the deponent when the deposition was taken. It is well settled that when statement of a witness is recorded U/s.164 Cr.P.C by Judicial Magistrate, the accused would have no opportunity of cross-examining the witness. Hence we are of the opinion that in the present case, Sec.164 Cr.P.C statement of witness Radhammal recorded by PW15 cannot be acted upon. 11. In 2004 SCC (Cri) 1077 Sashi Jena vs Khadal Swain question came up for consideration whether statement recorded from the witness U/s. 202 Cr.P.C can be received in evidence U/s. 33 of Evidence Act. Observing that in proceedings U/s.202 Cr.P.C. accused has no right to participate and cross examine prosecution witness and holding that such statement is not admissible in evidence U/s. 33 of the Act, Honble Supreme Court has held as under: "10. Observing that in proceedings U/s.202 Cr.P.C. accused has no right to participate and cross examine prosecution witness and holding that such statement is not admissible in evidence U/s. 33 of the Act, Honble Supreme Court has held as under: "10. Thus, we have no difficulty in holding that as during the cours of inquiry U/s.202 of the Code an accused has no right much less opportunity to cross-examine a prosecution witness, statement of such a witness recorded during the course of the inquiry is not admissible in evidence U/s.33 of the Act and, consequently, the same cannot form the basis of conviction of an accused." 12. Applying the ratio of the above decision we have no difficulty in holding that statement of Radhammal recorded by PW15-Judicial Magistrate U/s.164 Cr.P.C is not admissible in evidence U/s.33 of Evidence Act. In our considered view the learned sessions Judge was not right in acting upon Ex.P20 statement of Radhammal recorded U/s. 164 Cr.P.C. 13. The learned trial Judge considered the presence of the accused at the place of occurrence as one of the strong circumstance to convict the accused for the alleged offence. The perusal of evidence clearly indicates that the accused is also a relative of the deceased as that of the P.W.1 and 2. Mere presence of the accused in the scene of occurrence alone will not be a ground to convict the accused, unless otherwise the other circumstance connecting the accused with guilt unerringly. 14. The learned Senior counsel Mr. V. Gopinath appearing for the accused argued that there is an inordinate delay in registering the complaint. The evidence of P.W.1 and 2 and according to the case of the prosecution, the time of occurrence was on 19.05.1998 at about 9.00 a.m., the complaint received by the investigating officer only at about 10.00 p.m. and there is more than 12 hours delay in lodging the complaint. 15. FIR in criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating oral evidence adduced at the trial. Object of insisting upon prompt lodging of the report to the police is to obtain early information regarding :-(i) circumstance in which crime is committed; (ii) names of actual culprits; (iii) parts played by them; (iv) names of eye-witnesses. Delay very often leads to embellishment which is a creature of an after thought. 6. Object of insisting upon prompt lodging of the report to the police is to obtain early information regarding :-(i) circumstance in which crime is committed; (ii) names of actual culprits; (iii) parts played by them; (iv) names of eye-witnesses. Delay very often leads to embellishment which is a creature of an after thought. 6. Delay in lodging the complaint is normally viewed by Courts with suspicion because there is possibility of concoction of evidence against accused. 17. The evidence of P.W.1, 2 and 3 deposed before the Court would reveal that they were informed by Radha ammal regarding the complicity of the accused in murdering the deceased Manjula. None of the witnesses explained before the Court, why they have not chosen to lodge a complaint before police from 9.00 a.m, to 10.00 p.m. for the alleged offence committed by the accused. 18. The delay is always not fatal to the prosecution case, if it is properly explained. In the instant case, delay has not been satisfactorily explained by the prosecution. 19. In the present case, admittedly the presence of police officers even prior to registration of complaint at the place of occurrence was spoken to by P.W.1 & 2. Even in the Ex.P15, the offence registered by the investigating officer only under Section 174 Cr.P.C. The evidence of P.W.1, 2 and P.W.6 clearly shows that Radha Ammal (not examined) informed every one regarding the involvement of the accused in committing murder of the deceased. While so, there is no explanation as to why the Investigating Officer failed to register the case under Section 302 I.P.C. 20. Further the perusal of evidence of P.W.1, 2 and 6 indicates that the accused and P.W.1s family were inimical towards each other. P.W.1 also deposed in the Court that he consulted with every one and lodged a complaint in the evening at 5.00 p.m, whereas the evidence of P.W.13 shows that he received the complaint only by 10.00 p.m. Hence, the evidence of P.W.1 & 2 clearly suggested that they are inimical towards each other and lodged the complaint after consultation with others. 21. The evidence of P.W.13 is totally contradicting the evidence of P.W.1 & 2, since according to him, he received the complaint only by 10.00 p.m, and then registered the case. 21. The evidence of P.W.13 is totally contradicting the evidence of P.W.1 & 2, since according to him, he received the complaint only by 10.00 p.m, and then registered the case. The evidence of P.W.13 is also highly unreliable, because he deposed before the Court that he altered the Section 174 Cr.P.C. into Section 302 I.P.C. after the conclusion of inquest. The perusal of records clearly shows that in the Observation Mahazar, Rough Sketch and Inquest report prepared on 19.05.1998 contains the crime number and also the section of law under section 174 Cr.P.C. altered into section 302 I.P.C. Considering the evidence of P.W.1,2 and 13, the F.I.R. registered after a lapse of 13 hours. We are of the considered view that there is every possibility of consultation and deliberation among the relatives of the deceased and the prosecution witnesses more particularly P.W.1 and 2 who are inimical towards the accused. For the above said reasons we are of the view that the delay in lodging the complaint and registration of F.I.R. in the present case causes prejudice to the accused. Hence, the point of delay should be considered in favour of the accused. 22. The medical evidence spoken by P.W.7 Dr. Jayarama Raju and the document in Ex.P3 Post mortem certificate marked through him indicates that the death due to asphyxia due to strangulation. Whereas the case of the prosecution is death caused by throttling of the neck by the accused. The entire reading of the evidence of P.W.7 Doctor is against the other ocular evidence. In the absence of eye witness, the inconsistently between Medical and ocular evidence assumes importance. 23. In a case based upon circumstantial evidence the question that need to be determined is whether prosecution has established the circumstances and whether all the links in the chain of circumstances is complete and unerringly proving the guilt of the accused. We are of the opinion that the prosecution failed to connect the accused with the crime by ocular and documentary evidence. 24. Accordingly, the judgment under challenge is set aside and the appeal is allowed. The accused is acquitted of the offence for which he was charged, tried and convicted. Fine amount paid by him is ordered to be refunded to him.