JUDGMENT MRS. V. K. TAHILRAMANI, J.:- The appellant/original accused has preferred this Appeal against the judgment and order dated 3rd April, 2007 passed by the learned Adhoc Additional Sessions Judge-1, Wardha in Sessions Trial No.40/2006. By the said judgment and order, the learned Sessions Judge convicted the appellant under section 302 of the IPC for causing death of Chandrakant and under section 323 of the IPC for causing injury to Ravindra. For the offence punishable under section 302, the appellant was sentenced to RI for life and fine of Rs. 1,000/- in default to suffer RI for one month For offence punishable u/s 323 he was sentenced to suffer RI for three months and to pay a fine of Rs.200/- in default, R.I. for 15 days. The learned Sessions Judge directed that both the substantive sentences of imprisonment shall run concurrently. 2. The prosecution case briefly stated, is as under: Ravindra Gadre (PW 7) was residing in village Shelgaon. Tq. Karanja. Dist. Wardha along with his father Shalikram (PW8), his mother Sushila and his brother PW 1 Vasanta. On 14.11.2005 at about 2.30 p.m., Ravindra was returning home from his field, at that time the accused told him that Shalikram i.e. father of Ravindradid not give hand loan to him, saying so, the accused started assaulting Ravindra by means of fist and kick blows. Due to the assault, Ravindra received injury on his lips. In the meantime, Shalikram (PW 8), father of Ravindra reached the spot. The accused threatened that as Shalikram did not give loan of Rs. 500/- he will assault him by means of a knife. Ravindra & Shalikram rescued themselves and returned back to the village. Then Ravindra PW 7 and PW 8 Shalikram left in an auto-rickshaw to go to the Karanja Police Station to lodge the report. Seeing that Sushilabai was alone, the accused assaulted her with Ubhari, which is like a wooden log. Sushilabai was taken to the Hospital. She died at about 11.00 p.m., while undergoing treatment. In the meantime PW 1 Vasant who is the son of Sushilabai lodged the FIR. Thereafter investigation commenced. The body of Sushilabai was sent for post-mortem. PW 10 Dr. Deokate conducted the post-mortem on the dead body of Sushilabai. According to him, the cause of death was head injury. After completion of investigation, the charge-sheet came to be filed. 3. In the meantime PW 1 Vasant who is the son of Sushilabai lodged the FIR. Thereafter investigation commenced. The body of Sushilabai was sent for post-mortem. PW 10 Dr. Deokate conducted the post-mortem on the dead body of Sushilabai. According to him, the cause of death was head injury. After completion of investigation, the charge-sheet came to be filed. 3. Charge was framed against the appellant/original accused under section 302 of the IPC. He pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge held the accused guilty under section 302 and 323 IPC and punished him as stated in para 1 above, hence, this appeal. 4. We have heard Mr. M. B. Naidu, learned Advocate for the appellant and Smt. S.S. Jachak, learned APP for the State. We have perused the judgment and order convicting and sentencing the accused and the record in this case. After carefully considering the matter, for the reasons mentioned hereinbelow, we are of the opinion that this appeal deserves to be allowed. 5. As far as assault on Sushilabai is concerned, there is only one eye witness i.e. PW 11 Devkabai. Devkabai has stated that when Suhsilabai reached near the house of Venkati Bagde at 4.15 p.m., the accused assaulted Sushilabai by means of Ubhari. She claims that she had seen the incident. However, Devkabai has admitted that on the day of the incident when police came to the village she did not disclose to the police about the incident. Her further admission is even more damaging i.e. on the next day also, the police came to the village, that time too she did not disclose about the incident to the Police. After two days, the sons of Sushilabai took her to the Police Station for giving her statement. Thereafter she has given her statement. Not only the statement of this witness is recorded belatedly, but we find the conduct of this witness is also highly unnatural. According to her, she had very good relations with Sushilabai yet when the incident occurred near the house of one Venkati Ragde, she watched the incident standing near her courtyard, she did not go towards the house of Venkati Ragde. According to her, she had very good relations with Sushilabai yet when the incident occurred near the house of one Venkati Ragde, she watched the incident standing near her courtyard, she did not go towards the house of Venkati Ragde. Even on hearing commotion even when people gathered she did not go near Sushilabai nor did she go to the house of Sushilabai and inform about the incident. What is even more strange is that the fact that she had witnessed the incident was not even mentioned by her to her husband. All this creates grave doubt in the mind as to whether Deykabai had really witnessed the incident. This coupled with the conduct of this witness of not disclosing the name of assailant to anyone including Police and keeping mum though the police were in fact enquiring with the villagers regarding the assailant for a period of about 2 days creates grave doubt about her testimony. 6. In this connection, the learned Advocate for the accused has brought to our notice the decision of the Supreme Court. in the case of Naba Kumar Das vs. State of West Bengal: AIR 1974 SC 777 , wherein also the eye witness had not disclosed the name of the assailant for a period of about 20 hours, though he had met several persons during that period at several places. In these circumstances, the Apex Court held that testimony of such person cannot be held to be reliable. This authority clearly supports the defence. 7. It is also the prosecution case that the accused had assaulted Ravindra with fists and kick blows and Ravindra sustained injuries in the incident. As far as this aspect is concerned, it is noticed that Ravindra was not sent for medical examination. There is no medical certificate on record to corroborate that Ravindra was assaulted by the accused at about 2.30 p.m. Looking to the overall nature of the evidence, we are of the opinion that in the facts of the present case, conviction under section 323 IPC cannot be sustained. 8. The prosecution has also relied on the recovery of weapon i.e. Ubhari at the instance of the accused. On the aspect of recovery it is noticed that no Panch witness has been examined. The Investigating Officer PW 9 : API Bahadure has deposed on this aspect. On the point of recovery Mr. 8. The prosecution has also relied on the recovery of weapon i.e. Ubhari at the instance of the accused. On the aspect of recovery it is noticed that no Panch witness has been examined. The Investigating Officer PW 9 : API Bahadure has deposed on this aspect. On the point of recovery Mr. Naidu, learned Advocate submitted that the recovery of Ubhari is shown to have taken place on 18.11.2005, however, the evidence of PW 14 PSI Dongre shows that in fact the wooden log was lying in the Nali situated near the spot and it was stained with blood. This clearly raises doubt about the recovery of Ubhari at the instance of the accused and we do not think it to be safe to rely on this circumstance of recovery of Ubhari at the instance of the appellant. The only other material which connects the appellant with the death of Sushilabai is the evidence of Devkabai. We have already observed earlier that her evidence is not at all worthy of reliance. Thus, we find that there is no cogent, reliable and convincing material to connect the appellant with the offences with which he has been charged. Thus, we are inclined to allow the appeal. Hence the following order: ORDER The conviction and sentence of the appellant for offence punishable under sections 302 and 323 IPC is set aside. The appellant is acquitted of the said offences. He be set at liberty if not required in any other case. Appeal is allowed accordingly. Appeal allowed.