JUDGMENT Kanwaljit Singh Ahluwalia, J. - Instant appeal has been filed by Madan Lal son Hardeo, by caste Gurjar, resident of Makhupura, Tehsil Ajmer, District Ajmer, to assail the impugned judgment dated 31.10.1990 rendered by the Court of Additional Sessions Judge No. 1, Ajmer, in Sessions Case No. 104 of 83(41 of 83) whereby the appellant was held guilty of offence under Section 302 IPC and vide a separate order of even date, was sentenced as under:- "U/s. 302 IPC: Life Imprisonment, to pay a fine of Rs. 1000/-, in default thereof, to undergo one year additional imprisonment." 2. It is an old adage that the witnesses may tell a lie, but the documents will not speak so. In peculiar facts and circumstances, we shall first refer to the documents relied by the prosecution, then ocular evidence, medical evidence and other circumstances relied by the prosecution to secure conviction of the appellant. 3. Dr. V.D. Kaviya (PW.2) on 6.7.1983 had sent an information which was entered into daily diary register (Ex. P.1) vide Entry No. 197. The said entry when translated into English, reads as under:- "Copy of report daily diary register, Police Station Sadar Kotwali, Ajmer, dated 6/7/83 197/12 PM Contents: At this time a telephonic information has been received from Dr. V.D. Kaviya from JLN Hospital, Ajmer. As per the information, one person namely Sheoji Pahalwan was found lying in unconscious condition and at the crossing of medical college, he had suffered many injuries on the body. He was got admitted in the hospital by unknown persons (emphasis supplied). He is resident of Hathibhata, Ajmer. He has been admitted in Casualty Ward. Information is being sent. Action be taken." 4. After recording the above information, Constable 220 Pukhraj (not examined) had sent the information to ASI, Pooran Singh (PW. 4). Vide Exhibit-P. 3, ASI Pooran Singh on receipt of copy of Daily Diary Report Entry No. 197, reached at the police station and learnt that Shivraj s/o Balu, caste Gurjar, aged 27 years, r/o. Hathibhata, resident of Civil Lines, Ajmer, had expired. He carried inquest/Panchayatnama (Ex. P.4) and noted that there is presence of injury on right side of abdomen caused by incised weapon on the person of Shivraj and another injury on right shoulder. Two abrasions were also found present on right hand and left hand wrist. Pooran Singh noted in the report (Ex. He carried inquest/Panchayatnama (Ex. P.4) and noted that there is presence of injury on right side of abdomen caused by incised weapon on the person of Shivraj and another injury on right shoulder. Two abrasions were also found present on right hand and left hand wrist. Pooran Singh noted in the report (Ex. P.3) that as per opinion of the Doctor, Shivraj had died due to above injuries. 5. Inquest proceedings/Panchayatnama (Ex. P.4) was carried. In the Panchayatnama/inquest (Ex. P.4) even though dead body was identified to be of Sheoji, but it was stated therein that his death has been caused by unidentified persons. Inquest proceedings were concluded on 6th July, 1983 at 8.40 AM. After inquest proceedings were carried, post-mortem was conducted on the dead body on 6.7.1983 at 10.00 AM vide post-mortem report (Ex. P.25). 6. On 6.7.1983 at 4.30 PM formal FIR (Ex. P.21) bearing No. 112 of 83 was registered at Police Station Sadar, Kotwali, Ajmer, for offence under Section 302 IPC. In the head note of the FIR (Ex. P.21), date and time of occurrence has been noted as 5.7.1983 at 11.40 PM. Formal FIR (Ex. P.21) when translated into English, reads as under:- "To, Shri SHO Sahab, Police Station Sadar Kotwali, Ajmer. It is submitted that I ASI Pooran Singh after receipt of copy of report No. 197 dated 5/6.7.1983 had gone to JLN Hospital where I found that Shivraj s/o Balu, caste Gurjar, aged 27 years, r/o. Hathibhata, at present resident of Civil Line, Ajmer, had expired. I carried further proceedings and prepared Panchayatnama. During above proceedings, I noted one incised injury on right side of abdomen of Shivraj and another incised injury on his right shoulder. From both the injuries blood was oozing. They were caused by incised weapon. On wrist of left hand and on right shoulder and right elbow I have found abrasions. Doctor Sahab has noted in the post-mortem report that Shivraj had died due to these injuries. After investigation, it has been found to be a case of murder. Report is presented for legal action. Sd/- Pooran Singh ASI, In-charge, Police outpost Kesar Bag, P.S. Sadar Kotwali, Ajmer. 6.7.1983" 7. Thus, from the above documents, it is apparent that the occurrence in the present case had taken place on 5.7.1983 at 11.40 PM and till 6.7.1983 at 4.30 PM when formal FIR (Ex. Report is presented for legal action. Sd/- Pooran Singh ASI, In-charge, Police outpost Kesar Bag, P.S. Sadar Kotwali, Ajmer. 6.7.1983" 7. Thus, from the above documents, it is apparent that the occurrence in the present case had taken place on 5.7.1983 at 11.40 PM and till 6.7.1983 at 4.30 PM when formal FIR (Ex. P.21) was recorded, name of the assailant was not known. It was a case of blind murder and the prosecution was groping in dark. Name of witnesses who had seen the occurrence were also not available. 8. Having noted the above broad feature, on the basis of documents, we now proceed to notice the prosecution evidence. 9. Prosecution, in all, examined 22 witnesses, namely Banshilal (PW.1), Dr. V.D. Kaviya (PW.2), Bhoop Singh (PW.3), Pooran Singh (PW.4), Manohar Lal (PW.5), Bakshi (PW.6), Heeralal (PW.7), Laxman (PW.8), Bhanwar Lal (PW.9), Kalu (PW.10), Heera Lal s/o Gajmal (PW.11), Bharat Bhushan (PW.12), Jagdish (PW.13), Madan Lal (PW.14), Ramavtar (PW.15), Mahendra Singh (PW.16), Virendra Singh (PW.17), Nannumal (PW.18), Ram Singh (PW.19), Kailash (PW.20), Pooran Mal Raigar (PW.21) and Ravikant Mittal (PW.22). 10. Thereafter statement of the accused was recorded under Section 313 Cr.P.C., 1973 He denied all incriminating circumstances put to him and examined one Kalu Singh (DW.1) as defence witness. 11. It will be pertinent to notice here that alongwith the present appellant Madan Lal, one Mohan Singh was also sent for the trial, but since he died during pendency of the trial, proceedings were dropped against him as having abated. 12. The best case of the prosecution in the present case rest upon the testimony of Laxman (PW.8) who has been cited as eyewitness. 13. Laxman (PW.8) in court stated that on 5.7.1983 at about 9.30 PM he was sitting alongwith Sheoji at the hotel of Jagdish where he used to supply milk. He and Sheoji had taken the bidi. At 9.30 PM he proceeded to go to his house when Sheoji called him and offered him to show the movie, upon which the witness stated that he is not having the money, therefore, he will go to his house, upon which Sheoji said that he is having money and he will show the movie to him. Then he and Sheoji had gone to see picture at Prabhat Cinema. On the way Sheoji had handed over him tiffin and langot. Then he and Sheoji had gone to see picture at Prabhat Cinema. On the way Sheoji had handed over him tiffin and langot. When they reached at Prabhat Cinema, the same had closed and gate was also closed. On asking of Sheoji, watchman opened the gate. He and Sheoji went inside the theater. While they were watching the movie, Sheoji said that he is feeling uneasy. Then they came to the hotel where Sheoji asked him whether he will drink the tea. The witness agreed, upon which Sheoji gave an order for a tea and cold drink. Tea was taken by Laxman witness (PW.8), whereas Sheoji took the cold drink while stading. After 15 minutes they left the theater for proceeding towards the house, as Sheoji was feeling uneasy. They kept standing at the theater for half an hour because it was raining. After rain stopped at about 11.00 PM they started going on foot towards Civil Lines where Sheoji used to stay. On the passage, Sheoji had taken his tiffin and langot. When they had gone towards the street, two persons came on bicycles. One bicycle went ahead, another bicycle stopped near them. From the cycle which stopped, Madan Gurjar alighted. It is stated that Madan caused two knife blows on flank of Sheoji. He caused two other injuries also. Sheoji raised noise by saying "bachao-bachao". When witness stepped forward, Madan asked him to run away, otherwise he will be finished. The witness due to fear ran away. Laxman (PW.8) stated that other person who had accompanied Madan was identified by him in test identification parade vide memo (Ex. P.11). The witness identified Mohan Singh as the one who was identified by him in the Jail. The witness also identified pant (Article-1), vest (Article-2), pair of shoes (Article-3), pair of socks (Article-4) which were worn by Sheoji deceased. The witness also identified tiffin as Article-5. This statement in examination-in-chief was recorded on 28.9.1984 and on the request made by the learned Public Prosecutor, cross-examination was deferred and further cross-examination was carried on 1.7.1987, after about two years and 10 months. 14. In cross-examination Laxman (PW.8) stated that he had attended the cremation of Sheoji. Police made inquiries from him after cremation was held. In cross-examination the witness shifted stand and stated that he had not seen anybody causing injuries to Sheoji with his own eyes. 14. In cross-examination Laxman (PW.8) stated that he had attended the cremation of Sheoji. Police made inquiries from him after cremation was held. In cross-examination the witness shifted stand and stated that he had not seen anybody causing injuries to Sheoji with his own eyes. The witness stated that he was kept detained by the police for 3-4 days and thereafter police informed him as to what statement is to be given and who is to be identified. The court had put the statement made by the witness in the court on 28.9.1984 to the witness (PW.8) and the witness (PW.8) replied that on 28.9.1984 he had given wrong statement. When the court asked for the reason, witness (PW.8) replied that the statement was given due to fear of police. The witness further stated that police had shown him Mohan Singh to whom he identified in test identification parade before the Magistrate. The court further asked a question whether he informed anybody on 28.9.1984 that he had given statement in court because of fear of police, the witness replied that on that day police was with him and was standing outside the court. 15. We may notice here that statement of Laxman (PW.8) under Section 161 Cr.P.C., 1973 (Ex.D.2) was recorded by the police on 6.7.1983. However, no time is mentioned as to when this statement was recorded. We may notice here that there is no assurance whether the statement was purportedly recorded on 6.7.1983 or subsequent thereto. 16. Now we shall refer to the medical evidence. 17. As earlier stated, Dr. V.D. Kaviya appeared in court as PW. 2 He proved on record sending telephonic information to the SHO, P.S. Sadar Kotwali, Ajmer, regarding admission of Sheoji in injured and unconscious condition. 18. Prosecution has proved on record post-mortem report as Exhibit-P.25. As per postmortem report (Ex.P.25), Sheoji had suffered six injuries. Injuries No. 2, 3, 4 and 5 were stab wounds on shoulder and in abdomen. We need not notice the injuries as it is admitted case that Sheoji had died because of violence. As per opinion of Dr. B.L. Bhatia (not examined), cause of death was hypovolumic shock due to excessive hemorrhage as a result of ante mortem injuries to vital organs (lung and blood supply of kidney). 19. Evidence of remaining witnesses is also required to be mentioned briefly. As per opinion of Dr. B.L. Bhatia (not examined), cause of death was hypovolumic shock due to excessive hemorrhage as a result of ante mortem injuries to vital organs (lung and blood supply of kidney). 19. Evidence of remaining witnesses is also required to be mentioned briefly. Bansilal (PW.1) has stated that on 6.7.1983 he was posted as a Sweeper at Municipal Council. His duty was in the morning from 5.30 AM to 10.30 AM and in evening from 3.00 PM to 6.00 PM. The witness stated that Bakshi s/o Prabhu Harijan was working under him and when he was cleaning the drain, he found one brass tiffin and informed that same has been found in the drain of Kala Bag. The witness further stated that Bakshi also handed over to him one steel Katori and a pair of shoes. The above goods were recovered in the morning between 6.45 AM to 7.00 AM. Bansilal (PW.1) in court identified tiffin (Article-5), steel Katori (Article-6) and pair of shoes as Article-7. 20. Bhoop Singh (PW.3) in court stated that on 6.7.1983 he was posted as Head Moharir. He had made an entry in Roznamcha regarding the telephonic information received in the night at 12.00 O''clock from Dr. V.D Kaviya regarding admission of Sheoji and he had sent the report through Pukhraj Constable No. 220 to Incharge, Police Chowki Kesar Bag. In cross-examination the witness admitted that the doctor had informed him that injuries have been caused by unidentified persons to the patient admitted. 21. ASI Pooran Singh (PW.4) in court proved receipt of daily diary report (Ex. P.1) regarding admission. The witness had visited casualty ward No. 8 where he was informed by Dr. V.D. Kaviya that Shivaji Ram (hereinbefore called Sheoji) had expired. He proved the report (Ex. P.3) and Panchayatnama/inquest (Ex. P.4) and submission of FIR (Ex. P.21). The witness stated that Laxman and Jagdish Singh are not known to him. He presented the FIR (Ex. P.21) at 4.30 PM. The witness stated that he cannot say as to why between 11.45 AM to 4.30 PM he could not present the report. 22. Manohar Lal (PW.5) stated that he was posted as L.C. On 29.7.1983 he was handed over sealed packets by Head Moharir Incharge Malkhana, Kotwali for onward deposit in the Forensic Science Laboratory. On the same day he deposited the samples in the Forensic Science Laboratory, Jaipur. 22. Manohar Lal (PW.5) stated that he was posted as L.C. On 29.7.1983 he was handed over sealed packets by Head Moharir Incharge Malkhana, Kotwali for onward deposit in the Forensic Science Laboratory. On the same day he deposited the samples in the Forensic Science Laboratory, Jaipur. This witness proved the receipt given by the Forensic Science Laboratory as Exhibit-P.6. The witness further stated that he received two bottles of viscera on 12.8.1983 and on the same day he sent the same to FSL, Jaipur vide receipt (Ex. P.7). 23. Bakshi (PW.6) has stated that he found one steel Katori, brass tiffin, one pair of shoes, one brass hanger and he handed over the same to his In-charge Jamadar Bansilal (PW.1). 24. Heeralal (PW.7) has stated that he has passed M.A. L.LB. Exhibits-P.9 and P.10 both site plans bear his signatures. One site plan is regarding where the post-mortem was conducted. This witness was declared hostile as he has not stated in examination-in-chief that the site where murder had occurred, was got identified by the accused. 25. In cross-examination by the Public Prosecutor, Heeralal (PW.7) stated that the site plan (Ex. P.10) was prepared at the instance of the accused. In further cross-examination by the defence counsel, the witness stated that he is not aware whether the site plan (Ex. P.10) was prepared in his presence or not. We have already dealt with the testimony of Laxman (PW.8), solitary eye-witness examined by the prosecution. Bhanwarlal (PW.9) stated that he is working as a cobbler. The witness stated that in his presence Madan had not worn any pair of shoes. He had not taken size of the feet of Madan and he had not prepared shoes. This witness was declared hostile to the prosecution. Since this witness has not supported the prosecution, recovery of shoes from the spot to the effect that the same belong to the accused has fallen on the ground. 26. Kalu (PW.10) stated that accused Madan is resident of his Village Makhupura. The witness stated that Madan was married at Ajmer, but he is not aware to whom he was married. The witness stated that Madan had not returned the cycle. When the cycle was taken, he was alone. The witness stated that colour of seat of his cycle was black. 27. This witness was declared hostile to the prosecution. The witness stated that Madan was married at Ajmer, but he is not aware to whom he was married. The witness stated that Madan had not returned the cycle. When the cycle was taken, he was alone. The witness stated that colour of seat of his cycle was black. 27. This witness was declared hostile to the prosecution. This witness was examined to identify the cycle used by Madan in the crime, but since this witness has not identified the cycle, this witness has not advanced the case of the prosecution. 28. Another Heeralal s/o Gajmal (PW.11) has stated that the accused are known to him. He stated that 3-4 years ago police had called him from his shop. The witness stated that he is not aware who were accompanying the police. The witness stated that in his presence no recovery was affected. This witness was also declared hostile to the prosecution. 29. Bharat Bhushan (PW.12) stated that on the day of occurrence, Sheoji deceased was sitting outside the Boby restaurant. The witness stated that Sheoji was present alongwith Laxman. He was aged 17-18 years. He was wearing Dhoti and Bushirt. The witness stated that he had seen Sheoji at the hotel and 2-3 days later police recorded his statement. The witness stated that he is not aware as to why in his police statement (Ex. D.3) name of Laxman was not stated. 30. Jagdish (PW.13) stated that he is running a restaurant called Boby Restaurant. He knew Sheoji. He has died. The witness stated that he knew Laxman also. On the date of occurrence, Sheoji in the evening was sitting on the bench of his restaurant and after sometime Laxman also came and sat there. After half an hour or quarter to hour, a person with a beard came. His age was 24-25 years. He left the restaurant after talking with them for 5-7 minutes. 31. Since this witness has not identified the person who was having beard, he has not advanced the case of the prosecution. 32. Madanlal (PW.14) stated that he knew Bakshi (PW.6). In his presence he presented one tiffin, one steel Katori. He attested Exhibit-P.8 in this regard. 33. Ramavtar (PW.15) stated that in his presence police prepared the site plan (Ex. P.17). He also attested the site plan (Ex. P.18) of the place from where old cycle was recovered. 34. 32. Madanlal (PW.14) stated that he knew Bakshi (PW.6). In his presence he presented one tiffin, one steel Katori. He attested Exhibit-P.8 in this regard. 33. Ramavtar (PW.15) stated that in his presence police prepared the site plan (Ex. P.17). He also attested the site plan (Ex. P.18) of the place from where old cycle was recovered. 34. Mahendra Singh (PW.16) stated that he had prepared site plan (Ex. P.10). 35. Virendra Singh (PW.17) stated that police had prepared site plan (Ex. P.9) of the place where the dead body was lying. The witness in cross-examination stated that at the time when the proceedings were carried, Laxman was not present. Nannumal (PW.18) stated that he was In-charge of Malkhana. This witness was examined to prove the link evidence. Ram Singh (PW.19) stated that on 6.7.1983 he was posted as ASI at P.S. Kotwali, Ajmer. On that day, ASI Pooran Singh (PW.4) had presented a report on the basis of which formal FIR No. 112 of 83 (Ex. P.21) was registered. 36. Kailash (PW.20) has stated that in his presence knife was recovered by the police vide memo (Ex. P.15) at the instance of Madan accused in pursuance of disclosure statement made by him. 37. Pooranmal Raigar (PW.21) stated that he was posted as Judicial Magistrate No. 2, Ajmer. Laxman (PW.8) identified Mohan Singh accused who died during pendency of the trial, in test identification parade. The witness further stated that on 1.9.1983 tiffin, steel Katori and one pair of leather shoes were got identified before him. The witness stated that Savitri (not examined) identified the tiffin, Katori. However, shoe were got identified from Bhanwarlal (PW.9), who stated that the same were worn by the accused Madan. 38. Ravikant Mittal (PW.22) being Investigating Officer has proved various facets of investigation. 39. In cross-examination the witness admitted that after registration of FIR, name of Laxman had surfaced as an eyewitness. The witness stated that he is not aware whether Laxman was arrested by the police or not. We reproduce the exact lines from the crossexamination of Ravikant Mittal (PW.22), as under:- 40. The witness further stated that he learnt from the informant that Laxman was an eye-witness. However, the witness stated that he has not noted the information in the case diary. Relevant portion of cross-examination of the witness reads as under:- 41. We reproduce the exact lines from the crossexamination of Ravikant Mittal (PW.22), as under:- 40. The witness further stated that he learnt from the informant that Laxman was an eye-witness. However, the witness stated that he has not noted the information in the case diary. Relevant portion of cross-examination of the witness reads as under:- 41. However, the witness denied that he detained Kalu and Laxman in the police station. The witness was asked to consult the case diary, but he refused to do so. 42. As stated earlier, the accused in his statement recorded under Section 313 Cr.P.C., 1973 denied all incriminating circumstances put to him and pleaded false implication. The witness also denied any recovery at his instance. 43. Kalu Singh (DW.1) stated that he had lodged a report regarding loss of cycle and on the cycle his name was engraved. 44. Having noted the documents, testimony of prosecution witnesses, statement of the accused recorded under Section 313 Cr.P.C., 1973 and the defence evidence, we have heard Shri A.K. Gupta, learned counsel appearing for the appellant who was duly assisted by Ms. Sakshi Swami and Shri Prakash Thakuriya, learned Public Prosecutor. 45. Before we deal with the circumstances relied by the prosecution, we shall deal with the evidence of Laxman (PW.8), solitary eye-witness relied by the prosecution as prosecution case primarily rest on his testimony. 46. The Supreme Court in the case of Vadivelu Thevar vs. The State of Madras, reported in A.I.R. 1957 S.C. 614 (V 44 C 91 Sept.) , qua solitary eye-witness had laid following rules of appreciation of evidence :- "Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:- (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution." 47. In the context of law laid by the Supreme Court, while appreciating the evidence of solitary eye-witness, Laxman (PW.8), we shall have to ponder whether he is wholly reliable or wholly unreliable or partly reliable or partly unreliable. 48. As stated earlier, in the present case occurrence had taken place on 5.7.1983 at 11.40 PM as per head note given in the FIR (Ex. P.21). As per telephonic information relayed to the police station, Sheoji was brought to the hospital by unidentified persons. This information was relayed on the intervening night of 5th and 6th July, 1983 at 12.00 AM. Inquest proceedings were carried in the intervening night of 5th and 6th July, 1983 at 1.00 AM. Post-mortem was carried on 6.7.1983 at 10.00 AM. FIR (Ex. P.21) was recorded on 6.7.1983 at 4.30 PM. Special report reached Ilaka Magistrate on 7.7.1983 at 3.25 PM. Thus, on 6.7.1983 till 4.30 PM name of eye-witness and the accused were not known. Inquest proceedings were carried in the intervening night of 5th and 6th July, 1983 at 1.00 AM. Post-mortem was carried on 6.7.1983 at 10.00 AM. FIR (Ex. P.21) was recorded on 6.7.1983 at 4.30 PM. Special report reached Ilaka Magistrate on 7.7.1983 at 3.25 PM. Thus, on 6.7.1983 till 4.30 PM name of eye-witness and the accused were not known. Till then it was a case of blind murder and prosecution was groping in dark. Purportedly on 6.7.1983 after 4.30 PM statement of Laxman (PW.8) was recorded. 49. Ravikant Mittal (PW.22), Investigating Officer, in court stated that Laxman (PW.8) himself had not come forward to lodge the report. Rather, from special informant, information was received. The information received from the special informant has not been noted in the daily diary register. Investigating Officer refused to consult the case diary. Thus, it can be safely said that till 7.7.1983 at 3.25 PM when the special report reached the Ilaka Magistrate, name of Laxman (PW.8) had not surfaced in the investigation. From the evidence of Investigating Officer (PW.22), an inference can be drawn that Laxman (PW.8) was interrogated. He was also main suspect as the prosecution witness Bharat Bhushan (PW.12) has stated that deceased Sheoji was last seen with Laxman at Boby Restaurant. To same effect is the statement of Jagdish (PW.13) owner of Boby Restaurant. No explanation is coming forward as to why Laxman (PW.8) who was present at the spot, on 6.7.1983 till 4.30 PM had not come forward to lodge the report. Conduct of Laxman (PW.8) is improbable. Only version given by Laxman (PW.8) not to lodge the report to the police is that he was under the fear. Investigating Officer (PW.22) in categorical terms stated that he cannot remember 50. Repeatedly, the Investigating Officer (PW.22) was asked to consult the case diary, but he refused to do so. Therefore, it is to be safely assumed that Laxman (PW.8) was arrested, interrogated and in order to save his own skin, he named the accused. Thus, Laxman (PW.8) fall under the category of a witness who in order to exculpate himself, has named the accused. This conduct of the witness make testimony of the witness unreliable. After injuries were caused to the deceased, he went to his home. He did not disclose to anybody regarding the incident. It is only when the police interrogated him, he had divulged the version. This conduct of the witness make testimony of the witness unreliable. After injuries were caused to the deceased, he went to his home. He did not disclose to anybody regarding the incident. It is only when the police interrogated him, he had divulged the version. Taking above conduct of Laxman (PW.8) into account, we cannot assign credibility to the witness. Thus, Laxman (PW.8) is a wholly unreliable witness. We cannot ignore that even if we accept the reasoning of the trial Judge that after examination-in-chief, crossexamination of Laxman (PW.8) was deferred for two years and ten months, during the said period, he was pressurize to change the version, yet initial version given in examination-in-chief, in no way inspire confidence of the court. We also can not become oblivious of the fact that in cross-examination conducted at belated stage, the witness stated that earlier statement is not correct, he has not seen the accused causing the injuries. Thus, this witness has been shifting the stand. Therefore, we term him wholly unreliable witness. 51. Once we ignore the testimony of Laxman (PW.8), we also ignore recovery of knife, recovery of Jutti and recovery of cycle at the instance of the accused. 52. Bhanwarlal (PW.9) who being a cobbler had prepared Juttis in court has not identified the pair of shoes (Juttis). He has turned hostile to the prosecution, even though Bhanwarlal (PW.9) has identified the Juttis of the accused in test identification parade conducted by the Magistrate. We cannot ignore that test identification parade (Ex.P.13) cannot be termed as a substantive evidence and testimony of the witness in court is only substantive evidence and thus, in court Bhanwarlal (PW.9) has not supported the prosecution. Recovery 53. of cycle is also doubtful as Kalu (PW.10) has not advanced the case of the prosecution. 54. Regarding identification of spot by the accused, Heeralal (PW.7) has not 55. The witness further stated that before he signed Exhibit- P.10, the entire writing was already prepared. So far recovery of knife is concerned, another Heeralal s/o Gajmal (PW.11) has not supported the prosecution. This witness was declared hostile to the 56. Thus, even the circumstances have not been proved by the prosecution. 57. The witness further stated that before he signed Exhibit- P.10, the entire writing was already prepared. So far recovery of knife is concerned, another Heeralal s/o Gajmal (PW.11) has not supported the prosecution. This witness was declared hostile to the 56. Thus, even the circumstances have not been proved by the prosecution. 57. Taking totality of the prosecution case, i.e. the testimony of Laxman (PW.8) is wholly unreliable and other circumstances have not been proved by the prosecution, we have no other option except to allow the present appeal. 58. Consequently, we accept the present appeal by setting aside the conviction and sentence of the appellant. He is acquitted of the charge. 59. From the record, we find that shortly after admission of the appeal, sentence awarded upon the appellant was suspended and he was ordered to be released on bail. Therefore, we discharge his bail bonds and surety bonds and direct the trial court to comply with the provisions of Section 437-A Cr.P.C. 60. A copy of this judgment alongwith record be sent back to the trial court forthwith to comply with the provision of Section 437-A Cr.P.C. 61. In the present case, prosecution has failed to prove that Sheoji @ Shivraj s/o Balu was murdered by the accused on the intervening night of 5th and 6th July, 1983, however factum of murder is undeniable though by whom it was caused has not been proved. Therefore, we hold that under Section 357-A Cr.P.C., legal heirs of deceased Sheoji are entitled to compensation. A bare reading of Section 357-A Cr.P.C. makes it apparent that award of compensation under Victim Compensation Scheme to the legal heirs of the deceased is not dependent upon conviction or acquittal. Even in a case of acquittal, for rehabilitation of family of the victim, Court can recommend compensation. Sub-clauses (3) and (4) of Section 357-A Cr.P.C. manifest intention of the legislature. 62. Thus, in these circumstances, we direct the Secretary, Rajasthan State Legal Services Authority to disburse compensation to family members of the deceased Sheoji in consonance with Victim Compensation Scheme framed by the State of Rajasthan. 63. A copy of this judgment be also sent to the Secretary, Rajasthan State Legal Services Authority, Jaipur, for disbursement of compensation.