Order.-Criminal Revision Case No. 239 of 1976 is a revision against the convictions of A-3 to A-8 in Sessions Case No. 108 of 1975 on the file of the Assistant Sessions Judge, Ramanathapuram at Devakottai. Criminal Revision Case No. 387 of 1976 is a revision filed by P.W. 1, the victim, against the acquittal of A-1 and A-2. 2. Accused 1 to 8 in S.C. No. 108 of 1973 aforesaid were tried on five charges. The first charge was for an offence of rioting punishable under section 147, Indian Penal Code, against A-1 to A-7. The second charge was for an offence or rioting armed with deadly weapons punishable under section 148, Indian Penal Code, against A-1 to A-8. The third charge was for an offence of wrongful confinement punishable under section 342, Indian Penal Code, against A-8. The fourth charge was for an offence of attempt to murder punishable under section 307, Indian Penal Code, against A-1 to A-7. The fifth charge was for constructive liability for attempt to murder by A-1 to A-7, punishable under section 307 read with section 149, Indian Penal Code against A-8. 3. The prosecution case, as revealed by P.W. 1 and others, is as follows: P.W. 1 is the headman of Udayachi at Iravuseri village. He knows all the eight accused from his childhood. Accused 1 to 3 are related to each other. Accused 3 and 4 are brothers. Likewise, the other accused are related to each other. 4. On 18th June, 1974, there was an election for Devakottai Panchayat Court. In that election, the younger brother of P.W. 1 and A-4 contested. The brother of P.W. 1 won that election. From that time onwards, according to P.W. 1, there was enmity between P.W. 1’s party and the accused party. 5. Apart from this motive, it is alleged by P.W. 1, there was an auction of lease of cattle shandy. In that connection, the brothers of P.W. 1 bid for the lease. One Samyadi belonging to. A-1’s party also bid at the auction. Since the bid amount was raised at the auction due to the competition, it is alleged by P.W. 1, there was enmity between P.W. 1’s party and the party of the accused. 6. P.W. 1 has further stated that in the mandagapadi at the Perumal Temple festival during the month of May, 1975, A-1 demanded special honours from the temple. Since the bid amount was raised at the auction due to the competition, it is alleged by P.W. 1, there was enmity between P.W. 1’s party and the party of the accused. 6. P.W. 1 has further stated that in the mandagapadi at the Perumal Temple festival during the month of May, 1975, A-1 demanded special honours from the temple. P.W. 1 objected to the same. A petition was submitted to the Revenue Divisional Officer. The Revenue Divisional Officer, after enquiring into the petition, ruled that only the important person of the village has to get the special honours, and not A-1. According to P.W. 1, this decision rendered by the Revenue Divisional Officer aggravated the enmity between A-1’s party and P.W. 1’s party. 7. This was the background, according to P.W. 1. On 16th May, 1975, while P.W. 1 was coming from Iravuseri to Devakottai via Melakanmoi Road, at about 7-30 p.m., A-1 to A-8 were standing near that place. All the accused obstructed P.W. 1 who was coming on his cycle. The accused were armed with aruvals at that time. Accused 8 caught hold of P.W. 1 from behind. Accused 1 gave a cut on the front portion of the forehead of P.W. 1 with the aruval. Accused 2, with the aruval in his hands, cut P.W. 1 on the right side of his face. Accused 3 shouted "Beat, kick". Accused 4 and 8 threw P.W. 1 into a thorny bush. Accused 5, 6 and 7 shouted saying "Be done with this". As soon as A-5, A-6 and A-7 shouted like that, all the eight accused repeatedly cut on the person of P.W. 1. At that time, P.Ws. 5, 6 and 7 came running to the spot shouting. P.W. 1 also shouted. Immediately a crowd, gathered, and on seeing the crowd, all the accused ran away towards south. 8. P.Ws. 5, 6 and 7, along with others, lifted P.W. 1 and took him to a Naicker’s house and placed him in front of that house. Within about ten minutes’ time, P.W. 1’s brother Chockalingam and one Swarnalingam came there and brought a taxi and took P.W. 1 to the hospital. At the Devakottai hospital, the doctor examined P.W. 1 and later the Sub-Inspector of Police recorded Exhibit P-1 report from him. 9. P.W. 2, the. Within about ten minutes’ time, P.W. 1’s brother Chockalingam and one Swarnalingam came there and brought a taxi and took P.W. 1 to the hospital. At the Devakottai hospital, the doctor examined P.W. 1 and later the Sub-Inspector of Police recorded Exhibit P-1 report from him. 9. P.W. 2, the. Medical Officer, Government Hospital, Devakottai, saw the injured P.W. 1 at 8 p.m. on 16th May, 1975 and issued a memo, of intimation to the Police under Exhibit P-2. He issued Exhibit P-3 the wound certificate noting down the following injuries which he found on the person of P.W. 1: 1. A cut injury, 6 cm. x 1 cm. x 2 cm. on the dorsal aspect of the left wrist. 2. A cut injury, 6 cm. x 1 cm. x 2 cm. in front of the chest in between the nipples 3. A cut injury at the root of the left index finger on the dorsal aspect, 2 cm. x 5 cm. x 5 cm. 4. A transverse cut injury across the right maxilla extending from 1" below the right eye just in front of the right ear. 5. A transverse cut injury just above the right ear, 6 cm. x 2 cm. x 5cm. 6. Another cut injury extending from the right ankle of the mouth to the point just below the right ear. 7. The right ear (helix and louble) had been cut and removed. 8. A cut injury on the right side of the lower end of the neck, 3 cm. x 2 cm. x 3 cm. 9. A cut injury on the outer aspect of the left arm, 4 cm. x 2 cm. x 3 cm. 10. A cut injury, 15 cm. x 2 cm. x bone deep, extending from a point, 1" above the left eye-brow to the middle of the occipital bone. 11. Cut injury, 5 cm. x 1 cm. x bone deep, extending from a point 2" just above the left ear, extending posteriorly. 12. Cut injury, 3 cm. x 2 cm. x bone deep, over the posterior end of the right parietal bone. 13. Cut injury, 2 cm. x 1 cm. x bone deep just below injury No.-12. 14. A cut injury at the lower border of the upper jaw across the jum removing incissor, canine and premolar teeth of right. 15. A cut injury, .4 cm. x 3 cm. x bone deep, over the posterior end of the right parietal bone. 13. Cut injury, 2 cm. x 1 cm. x bone deep just below injury No.-12. 14. A cut injury at the lower border of the upper jaw across the jum removing incissor, canine and premolar teeth of right. 15. A cut injury, .4 cm. x 3 cm. x 2 cm. on the centre of the back of chest. 16. A cut injury, 2 cm. x 1 cm. x 3 cm. on the left side of the abdomen. 17. A cut injury, 2 cm. x 1 cm. x 2 cm. just medial to injury No. 16. 18. Complaints of pain in the abdomen. Later, P.W. 1 was sent to the Madurai Hospital for further treatment. While P.W. 1 was in the Devakottai Government Hospital, the statement Exhibit P-1 and also a dying declaration Exhibit D-2 was recorded from him. According to the Doctor P.W. 2, injury Nos. 7, 12 and 14 are grievous and the other injuries are simple in nature. 10. P.W. 3, the Medical Officer, at the Erskine Hospital, Madurai, treated P.W. 1 as an inpatient. According to this doctor, P.W. 1 would not have survived but for the timely medical treatment, and P.W. 1 was discharged from the hospital only on 14th July, 1975. According to P.W. 4, the Radiologist at the Erskine Hospital, Madurai, Exhibits P-7 to P-11 are the X-Ray films taken by him relating to the injuries on P.W. 1. Exhibit P-4 is the report signed by the Resident Medical Officer. 11. On the evidence appearing against the accused, the Assistant Sessions Judge, Ramanathapuram Division at Devakottai, found A-1 to A-7 guilty under sections 147, 148, 307 and 341 read with section 149, Indian Penal Code and found A-8 guilty under sections 147, 148, 307 read with section 149 and section 341, Indian Penal Code. He convicted them thereunder and sentenced each of A-1 to A-7 to undergo rigorous imprisonment for one year under section 148, Indian Penal Code, five years under section 307, Indian Penal Code, and one month under section 341 read with section 149, Indian Penal Code, with a direction that the sentences will run concurrently. He convicted them thereunder and sentenced each of A-1 to A-7 to undergo rigorous imprisonment for one year under section 148, Indian Penal Code, five years under section 307, Indian Penal Code, and one month under section 341 read with section 149, Indian Penal Code, with a direction that the sentences will run concurrently. He sentenced A-8 to undergo rigorous imprisonment for one year under section 148, Indian Penal Code, five years under section 307 read with section 149, Indian Penal Code and one month under section 341, Indian Penal Code with a direction that the sentences will run concurrently. 12. Aggrieved by the convictions and sentences, all the accused preferred an appeal to the Sessions Judge of Ramanathapuram at Madurai. The learned Sessions Judge after dealing with the alibi set up by A-1 to A-3 and also discussing the evidence on record, allowed the appeal of A-1 and A-2 in full by setting aside the convictions and sentences imposed on them under sections 147, 148, 307 and 341 read with section 149, Indian Penal Code. As regards the convictions and sentences imposed on A-3 to A-8, the learned Sessions Judge confirmed the conviction and sentence under section 148, Indian Penal Code imposed on them, and in view of the conviction under section 148, Indian Penal Code he felt that there was no need for a conviction under section 147, Indian Penal Code also. In respect of the conviction and sentence imposed on A-3 to A-7 under section 307, Indian Penal Code by the trial Court, the learned Sessions Judge, altered the conviction into one under section 307 read with section 149, Indian Penal Code and maintained the sentence of rigorous imprisonment for five years on each of them. The learned Sessions Judge set aside the convictions and sentences imposed on A-3 to A-7 under section 341 read with section 149, Indian Penal Code but confirmed the conviction and sentence under section 341, Indian Penal Code imposed on A.8. He also confirmed the conviction and sentence under section 307 read with section 149, Indian Penal Code imposed on A-8. The learned Sessions Judge directed the sentences imposed on the respective accused (A-3 to A-8) to run concurrently. With the above modification he dismissed the appeal of A-3 to A-8. 13. He also confirmed the conviction and sentence under section 307 read with section 149, Indian Penal Code imposed on A-8. The learned Sessions Judge directed the sentences imposed on the respective accused (A-3 to A-8) to run concurrently. With the above modification he dismissed the appeal of A-3 to A-8. 13. Aggrieved by the convictions and sentences imposed on them, A-3 to A-8 have preferred Criminal Revision Case No. 239 of 1976. Aggrieved by the acquittal of A-1 and A-2 made by the learned Sessions Judge, the victim P.W. 1 has preferred Criminal Revision Case No. 387 of 1976. For the sake of convenience, I shall be referring in this judgment the parties by their rank in the sessions case. 14. Mr.T.S. Arunachalam, the learned Counsel appearing for A-3 to A-8, submitted that inasmuch as P.Ws. 5, 6 and 7 have been disbelieved the appellate Court is not right in convicting A-3 to A-8 on the sole and interested testimony of P.W. 1. It was further contended that inasmuch as P.W. 1 has been disbelieved to the extent he has implicated A-1 and A-2 and to the extent he has stated that P.Ws. 5, 6 and 7 are eye-witnesses, the appellate Court should have in toto rejected the evidence of P.W. 1 as untrustworthy. Mr.T.S. Arunachalam submitted that the substratum of the case itself has been given a go-by when P.W. 1 has implicated A-1 and A-2 falsely in the case and as such A-3 to A-8 ought to have been acquitted. He also submitted that the scene of occurrence alleged by the prosecution cannot be true in the light of the evidence on record. Finally, the learned Counsel submitted that A-3 to A-8 having been convicted by the appellate Court constructively for the offence committed by A-1 and A-2, and inasmuch A-1 and A-2 have been acquitted, it is not correct on the part of the appellate Court to hold A-3 to A-8 guilty under section 307 read with section 149, Indian Penal Code. 15. Mr.N.T. Vanamamalai, the learned Counsel appearing for P.W. 1, in Criminal Revision Case No. 387 of 1976, which is the revision against acquittal of A-1 and A-2, submitted that the appellate Court has relied on inadmissible evidence such as Exhibits D-3, D-4, D-5, D-6, D-9, D-10, D-18, D-19 and D-20 in acquitting A-1 and A-2. 15. Mr.N.T. Vanamamalai, the learned Counsel appearing for P.W. 1, in Criminal Revision Case No. 387 of 1976, which is the revision against acquittal of A-1 and A-2, submitted that the appellate Court has relied on inadmissible evidence such as Exhibits D-3, D-4, D-5, D-6, D-9, D-10, D-18, D-19 and D-20 in acquitting A-1 and A-2. The alibi set up by A-1 and A-2, according to the learned Counsel, is flimsy, and the evidence of D.Ws. 1 to 9 cannot be believed. 16. Mr.G. Gopalaswami, the learned Counsel appearing for A-1 and A-2 in Criminal Revision Case No. 387 of 1976, reiterated the observations of the appellate Court and urged that the so-called inadmissible evidence as suggested by Mr.N.T. Vanamamalai, can, in any event, be used as corroborative evidence though it may not be a substantive evidence. Mr.G. Gopalaswami pointed out the clinching evidence given by the doctors examined by the defence for the presence of A-1 and A-2 at their respective nursing home during the occurrence time and states that these evidence clearly establish the alibi set up by A-1 and A-2. Finally, the learned Counsel laid stress on the limited sphere in which the High Court can revise an order of acquittal; and, in this case, according to the learned Counsel, there is absolutely no ground to interfere with the order of acquittal of A-1 and A-2 made by the appellate Court. 17. Mr. Govindarajulu appearing on behalf of the Public Prosecutor submitted that the evidence of P.W. 1 can be believed to the extent he implicates A-3 to A-8 and it is clear case where the chaff can be separated from the grain and the evidence of P.W. 1 can be believed when he implicates A-3 to A-8. Mr. Govindarajulu also submitted that the acquittal of A-1 and A-2 could at least be construed only by giving the benefit of doubt to them and not on the ground of conclusive proof of the alibi set up by them. Inasmuch as the State has not preferred any appeal against the acquittal of A-1 and A-2, Mr. Govindarajulu has not advanced any arguments with respect to them. 18. I shall first take up Criminal Revision Case No. 239 of 1976, which is the revision case against the conviction of A-3 to A-8. Inasmuch as the State has not preferred any appeal against the acquittal of A-1 and A-2, Mr. Govindarajulu has not advanced any arguments with respect to them. 18. I shall first take up Criminal Revision Case No. 239 of 1976, which is the revision case against the conviction of A-3 to A-8. I have extracted in the paragraphs supra the eighteen injuries found on P.W. 1 and described by the doctor P.W. 2 in the wound certificate Exhibit P-3. The injuries as seen from Exhibit P-3 clearly spell out that whoever caused those injuries definitely intended to cause the death of P.W. 1. Hence I have to see whether A-3 to A-8 are guilty of the offences with which they have been convicted. 19. Mr.T.S. Arunachalam, the learned Counsel for A-3 to A-8, correctly submitted that there is a faction between P.W. 1’s party and that of A-1, that A-3 to A-8 belong to A-1’s party, that the prosecution witnesses who have now been disbelieved by the appellate Court belong to P.W. 1’s party and that the enmity between these two parties was due to the Devakottai Panchayat Court election, bidding at the shandy lease and due to the fight for the priority for honours in Perumal temple. These have been spoken to by P.W. 1 the victim himself. Hence, the motive, being a double edged weapon and there being a faction in the village concerned, it is absolutely necessary for the Court to carefully scan the evidence let in by the prosecution before any conviction is based upon it, With this background in view both the Courts below have approached the case levelled against the accused. 20. As regards the place of occurrence, P.W. 1, in his evidence, has stated that it is hundred feet away from Pidariyar temple. P.W. 1 has also stated in his cross-examination that the distance between Mummudinathar temple and the Pidariyar temple is four furlongs. Mr.T.S. Arunachalam pointed out the averment in the dying declaration Exhibit D-2 and submitted that the incident took place near the Mummudinathar temple. If that be so, there is contradiction between the evidence given by P,W. 1 and the information furnished in the dying declaration Exhibit D-2 as regards the scene of occurrence. 21. Mr.T.S. Arunachalam pointed out the averment in the dying declaration Exhibit D-2 and submitted that the incident took place near the Mummudinathar temple. If that be so, there is contradiction between the evidence given by P,W. 1 and the information furnished in the dying declaration Exhibit D-2 as regards the scene of occurrence. 21. I have carefully gone through the evidence of P.W. 1 and also Exhibits P-1 and D-2 along with the evidence of P.W. 10, the Inspector of Police. The Inspector of Police, P.W. 10, visited the scene of occurrence by about 10-30 p.m. on 16th May, 1975 and prepared the observation mahazar Exhibit P-16. From the scene of occurrence, P.W. 10 recovered blood-stained earth M.O. 9, broken teeth M.O. 8, part of the ear, a cycle M.O. 1, a blood stained torn dhoti M.O. 3 and a pair of chappals M.O. 7 under Exhibit P-15 attested by P.W. 8. P.W. 10 also prepared a rough plan Exhibit P-17 showing the place of occurrence. It is seen from the observation mahazar Exhibit P-16 that the place of occurrence is definite and it is on the road leading to Iravuseri from Devakottai. Further, the place of occurrence is about two furlongs away from Iravuseri village, and the Inspector of Police, W. 10 was alone to seize all the above said articles under the mahazar Exhibit P-15. He also found blood-stained earth and seized it, 22. In Exhibit D-2 the dying declaration. P.W. 1 has stated that A-8, A-1, A-3, A-2, A-4, A-5 and A-7 were near the Mummudinathar temple while P.W. 1 was coming by about 7-30 p.m. on the occurrence day to Devakottai from his house. In the next sentence in Exhibit D-2, P.W. 1 has stated that the above accused persons obstructed him while he was coming on his cycle and lifted and threw him. After throwing him, it is stated by P.W. 1, they cut and stabbed him. From Exhibit D-2 it cannot be definitely said that the occurrence took place near Mummudinathar temple. 23. In his evidence, P.W. 1 has stated that Mummudinathar temple is about four furlongs from Pidariyar temple, that P.W. 1’s house is four furlongs from Mummudinathar temple and that the place of occurrence is about hundred feet from Pidariyar temple. Reading these pieces of evidence Mr. 23. In his evidence, P.W. 1 has stated that Mummudinathar temple is about four furlongs from Pidariyar temple, that P.W. 1’s house is four furlongs from Mummudinathar temple and that the place of occurrence is about hundred feet from Pidariyar temple. Reading these pieces of evidence Mr. Arunachalam appearing for A-3 to A-8 stated that the scene of occurrence has been shifted by the prosecution. I am not able to appreciate this argument. The evidence of P.W. 10 and the observation mahazar clearly fix the scene of occurrence. P.W. 1’s evidence cannot be taken as contradicting the place of occurrence fixed by the prosecution through the evidence of P.W. 10 and the observation mahazar. Apart from the fact that P.W. 1 has a fancy for four furlongs while stating the distance between Mummudinathar temple and the Pidariyar temple and also the distance from his house and Mummudinathar temple, he has not stated in Exhibit D-2 that the occurrence took place near Mummudinathar temple except for stating that he saw some of the accused persons near Mummudinathar temple. Hence I am convinced that the prosecution has categorically proved the place of occurrence and there is no question of shifting the scene of occurrence as suggested by Mr.T.S. Arunachalam. 24. It is unnecessary for me to cite all the decisions which are clear to the effect that the Court must shift the chaff from the grain and try to find out the truth as regards the occurrence proper. The leading decision on this subject is the one reported in Balaka Singh v. State of Punjab1, wherein the Supreme Court has held- "All these (eight) witnesses have with one voice and with complete unanimity implicated even the four accused persons, acquitted by the High Court, equally with the appellants making absolutely no distinction between one and the other. A perusal of the evidence of the prosecution witnesses would show that the prosecution case against the appellants and the four accused is so inextricably mixed up that it is not possible to sever one from the other. It is true that, as laid down by the Court in Zwinglee Ariel v. State of Madhya Pradesh1, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. It is true that, as laid down by the Court in Zwinglee Ariel v. State of Madhya Pradesh1, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of "separation" the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context . and the background against which they are made, then this principle will not apply. We are satisfied that in the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses who can implicate the appellants and the four accused equally with regard to the assault on the deceased it is not possible to reject the prosecution case with respect to the four accused and accept it with respect to the other five appellants. If all the witnesses could in one breath implicate the four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to Balaka Singh, Joginder Singh, Pritam Singh, Darbara Singh and Jarnail Singh may have been conveniently made to suit the needs of the prosecution case having regard to the animus which the witnesses as also Banta Singh bore against the appellants. In these circumstances, therefore, we are satisfied that in view of the finding of the High Court that the F.I.R. was a belated document having come into existence much later than the time it is said to have been recorded and which adds the names of "the four accused against whom the prosecution case is absolutely identical with the appellants, the case of the appellants cannot at all be distinguished from that of the four accused in any respect. If the case against the four accused fails, then the entire prosecution will have to be discarded and it will not be possible for this Court to make out a new case to convict the appellants as has been done by the High Court........... If the case against the four accused fails, then the entire prosecution will have to be discarded and it will not be possible for this Court to make out a new case to convict the appellants as has been done by the High Court........... In view of these circumstances and the evidence discussed above, we are clearly of the opinion that the prosecution case against the five appellants has also not been proved beyond reasonable doubt and the manner in which the F. I. R. and the inquest report have been made throws considerable doubt on the complicity of the five appellants in the crime. The result is that the appeal is allowed and the order of conviction and sentence passed on all the appellants is set aside. The appellants are acquitted of the charges framed against them and are directed to be released forthwith". Thus, in the above decision, there was a belated F.I.R. apart from the fact that some of the accused persons in the case were added subsequently. As far as the present case is concerned, both in the F.I.R. recorded immediately after the occurrence and also in the dying declaration A-3 to A-8 have been implicated. 25. Another decision is the one reported in K.N. Virji v. State of Gujarat2. The Supreme Court has held therein: "Having come to the conclusion that right from the beginning a prosecution witness was giving a distorted version of the incident, the appellate Court is not right in holding that any portion of the evidence deposed by such prosecution witness can be relied upon merely because some portion of his testimony in Court accords with the version given by him to another prosecution witness. It is true that often times the Courts have to separate the truth from falsehood. But where the two are so intermingled as to make it impossible to separate them, the evidence has to be rejected in its entirety“. For the reasons already stated when I referred to the decision in Balaka Singh v. State of Punjab1, the above decision also is not applicable to the facts of the present case. But where the two are so intermingled as to make it impossible to separate them, the evidence has to be rejected in its entirety“. For the reasons already stated when I referred to the decision in Balaka Singh v. State of Punjab1, the above decision also is not applicable to the facts of the present case. As observed by me already, the acquittal of A-1 and A-2 on the plea of alibi can be purely by giving them the benefit of doubt, and the observation of the learned Sessions Judge cannot in my opinion is correct when he says that P.W. 1 has falsely implicated A-1 and A-2 and has introduced P.Ws. 5, 6 and 7 as eye-witnesses. The evidence of P.W. 1 is true, trustworthy and straightforward and it is fortified by the first information report Exhibit P-1 and the dying declaration Exhibit L-2. In these circumstances, I am of the view that the chaff can be definitely separated from the grain in the case on hand, and the evidence of P.W. 1 can be safely accepted when he implicates A-3 to A-8. 26. I can usefully refer in this context the decision reported in Ugar Ahir v. The State of Bihar2, wherein the Supreme Court has held: ”The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution or the material parts of the evidence and reconstruct a story of its own out of the rest.“ As far as the present case is concerned, the substratum of the prosecution case has not been destroyed and the material parts of the evidence given by P.W. 1 are cogent and trustworthy to implicate A-3 to A-8. As I have observed already, the acquittal of A-1 and A-2, in my opinion, can only be by giving the benefit of doubt to them. 27. As I have observed already, the acquittal of A-1 and A-2, in my opinion, can only be by giving the benefit of doubt to them. 27. Mr.T.S. Arunachalam next contended that inasmuch as A-1 and A-2 have been acquitted by the appellate Court, the conviction of A-3 to A-8 must also be set aside. He read out paragraph 54 of the trial Court’s judgment wherein the trial Court has stated- ”...... Hence A-3 to A-8 are not liable under section 149 of the Indian Penal Code but they are liable for the constructive liability for the overt act of cutting by A-1 and A-2 as members of unlawful assembly armed with deadly weapons under section 149 of the Indian Penal Code“. Inasmuch as the appellate Court has acquitted A-1 and A-2, Mr. Arunachalam states, the conviction of A-3 to A-8 for the constructive liability for the overt acts of cutting by A-1 and A-2 must also fail. But then, I see that the appellate Court after observing that the hard core and the basis of the case of P.W. 1 with regard to A-3 to A-8 is sound, held- ”I therefore hold that accused 3 to 8 formed themselves into an unlawful assembly with deadly weapons with the “common object of doing away with P.W. 1, waylaid him and attacked him indiscriminately and caused him the injuries found on his person. When all these accused have pounced upon P.W. 1 and attacked him simultaneously, it is not possible to say which of the accused inflicted which of the injuries. All these accused are therefore guilty under section 148, Indian Penal Code and section 307 read with section 149, Indian Penal Code”. The learned Public Prosecutor pointed out Exhibits P-1 and D-2 and wanted this Court) to read both these documents together. It has been further stated that in the light of the evidence given by P.W. 1, it is clear that the offences committed by A-3 to A-8 are proved. 28. In Exhibit P-1 which was given by about 8-40 p.m. on 16th May, 1975 to P.W. 9, I find P.W. 1 stating that A-1 and A-2 stood near Mellakankoi, that A-3 to A-8 caught hold of P.W. 1, that A-1 cut him with an aruval, that A-2 cut him with an aruval, that A-3 shouted “Beat, kick, cut” and that A-4 threw him into a thorny bush. P.W. 1 has also stated therein that he shouted, and on hearing his shouts a crowd gathered and lifted him. P.W. 1 has also stated that A-7 and A-5 shouted Then I see Exhibit D-2 the dying declaration recorded by the Magistrate from P.W. 1 by about 11-40 p.m. on 16th May, 1975, P.W. 1 specifically stating that by about 7-30 p.m. while he was coming, he saw A-8, A-1, A-3, A-2, A-4, A-5 and A-7 near Mummudinathar temple, that they obstructed his cycle, that then they lifted him from the cycle and threw him down and cut and stabbed him, that A-1 cut him with an aruval, that A-3 was standing with an aruval and that A-2 shouted saying “cut, beat, fist”. It is further stated in Exhibit D-2 that P.W. 1 was thrown into a thorny shrub and that A-6 shouted saying “Beat, fist, kick”. In the light of Exhibits P-1 and D-2, we have to see the wound certificate Exhibit P-3. I have already extracted the details of the injuries described by the doctor in Exhibit P-3, which are as many as eighteen in number. In this background, we have the evidence of P.W. 1. The acquittal of A-1 and A-2 by the appellate Court, even if it is upheld, can only be on the ground of giving them the benefit of doubt and not completely disbelieving P.W. 1 as regards their participation. One could easily see from the injuries on P.W. 1 that there was a gruesome attack on P.W. 1. He has lost one of his ear and several teeth. Inasmuch as there were several cut injuries, some of them being grievous in nature, there is no difficulty in coming to the conclusion that A-3 to A-8 are liable under section 307 read with section 149, Indian Penal Code, even though A-1 and A-2 are acquitted giving them the benefit of doubt. The evidence of P.W. 1, in my view, cannot be disbelieved and there was absolutely no time for him to concoct a case against A-3 to A-8. Thus, on the available evidence on record I have absolutely no hesitation in coming to the conclusion that A-3 to A-8 are guilty under sections 148 and 307 read with section 149, Indian Penal Code. 29. Thus, on the available evidence on record I have absolutely no hesitation in coming to the conclusion that A-3 to A-8 are guilty under sections 148 and 307 read with section 149, Indian Penal Code. 29. Considering the gruesome attack made on P.W. 1, I do not find any ground to reduce the sentence imposed on A-3 to A-8 by the Court below. 30. In these circumstances, Criminal Revision Case No. 239 of 1976 is dismissed. 31. Next, I have to consider Criminal Revision Case No. 387 of 1976 filed by P.W. 1. Mr.N.T. Vanamamalai, the learned Counsel appearing for P.W. 1, criticised the judgment of the appellate Court stating that Exhibits D-3 and D-4 which are prescriptions issued by Dr. Kameswaram ought to have been rejected inasmuch as the said doctor has not been examined in the case, that Exhibit D-5 report cannot be admitted in evidence since none of the doctors who attended on the patient has been examined to prove the same, and that Exhibit D-18 the history sheet for the son of A-1 maintained at Padma Clinic has not been proved and there is over-writing in Exhibit D-7 the arrival register maintained at Vijaya Lodge, Madras. The learned Counsel further submitted that the observation of the appellate Cour, to the effect that the testimony of D.Ws. 1 and 2 and Exhibits P-18 and D-3 to D-8 satisfactorily prove that A-1 was in Madras between 12th May, 1975 and 18th May, 1975 is vitiated. 32. Mr.G. Gopalaswami, the learned Counsel appearing for A-1 and A-2 submitted that Exhibit P-18 is the history-sheet for the son of A-1 and the doctor D.W. 1 who operated on A-1’s son has stated that the procedure of operation was written by him in Exhibit P-18 were written by others. No doubt, Mr.G. Gopalaswami has conceded that even though Exhibits D-3, D-4 and D-5 cannot be taken as substantive evidence, he would urge that they could be used as corroborative evidence. No doubt, Mr.G. Gopalaswami has conceded that even though Exhibits D-3, D-4 and D-5 cannot be taken as substantive evidence, he would urge that they could be used as corroborative evidence. According to Mr.N.T. Vanamamalai the observation of the Sessions Judge to the effect that the Inspector of Police had sent his Deputy to Madras to enquire into the matter and it has been elicited from the Inspector of Police in cross-examination that the Deputy Inspector who went to Madras examined the doctors and came to know that the first accused’s son was admitted for operation on 14th May, 1975 and discharged on 18th May, 1975 and that the Deputy Inspector made enquiry at Vijaya Lodge and came to know that the first accused took residence in the Lodge on 12th May, 1975 and vacated it on 18th May, 1975, is not sound in law. I am in complete agreement with Mr.N.T. Vanamamalai on this point. 33. Mr.N.T. Vanamamalai next cited Srinivasan, In re1, which followed Mahendra Pratap v. Sarju Singh,2states that the High Court can interfere in revision, where- (1) there is an error on a point of law; (2) there is no appraisal of the evidence at at; (3) there is no jurisdiction to try; (4) material evidence has been shut out improperly; (5) inadmissible evidence has been acted upon; (6) material evidence has been overlooked; or (7) there is any other analogous defect in the judgment similar in character to the six points already described. Quoting the above two decisions, Mr.N.T. Vanamamalai submitted that the appellate Court has acted upon inadmissible evidence and as such the High Court has to interfere and set aside the order of acquittal by remanding the case to the Court below. Mr. N.T. Vanamamalai also submitted that the relevant document the defence ought to have produced would be the consent letter given by A-1 for the operation on his son by D.W. 1. D.W. 1 has stated that such consent letter used to be taken. The failure to produce that clinching document which will conclusively prove the presence of A-1 in Madras on the operation date, viz., 15th May, 1975, is fatal to the defence of alibi set up by A-1. 34. As regards A-2, Mr.N.T. Vanamamalai, apart from criticising the evidence of D.Ws. The failure to produce that clinching document which will conclusively prove the presence of A-1 in Madras on the operation date, viz., 15th May, 1975, is fatal to the defence of alibi set up by A-1. 34. As regards A-2, Mr.N.T. Vanamamalai, apart from criticising the evidence of D.Ws. 7, 8 and 9, submitted that Exhibit D-20 has not been proved since D.W. 8 himself has stated that he does not know as to who wrote Exhibit D-20. It is the further evidence of D.W. 8, according to Mr.N.T. Vanamamalai, that what all he stated was on the basis of Exhibit D-20. According to D.W. 8, A-2 was in the hospital on the 15th, 16th and 17th of May, 1975. Mr.N.T. Vanamamalai, stressing the evidence of D.W. 8 to the effect that he gave the evidence on the basis of Exhibit D-20, which according to the learned Counsel is inadmissible in evidence, would urge that the evidence given by D.W. 8 has to be rejected. The learned Counsel further submitted that the conclusion arrived at by the Court below on the basis of the evidence given by D.W. 8 and Exhibit D-20 has to be construed as having been arrived at on the basis of inadmissible evidence. 35. Mr.G. Gopalaswami, the learned Counsel appearing for A-2 submitted that D.W. 8 only refreshed his memory with reference to Exhibit D-20 and this cannot in any way affect the veracity of the evidence given by D.W. 8. The learned Counsel also cited cases which limit the powers of the High Court in interfering in revision with orders of acquittal. 36. In Chinnaswamy v. State of Andhra Pradesh3, it has been stated that only in exceptional cases the High Court will interfere in revision with an order of acquittal and if it interferes it should not consider the evidence in such detail as the High Court has done in that case and such detailed consideration of evidence amounts to loading the dice against the accused, when the case goes back for retrial. In Akalu Ahir v. Ramdeo Ram4, the Supreme Court has held that in revision against acquittal by a private complainant the High Court cannot re-appraise evidence for itself as if it is acting as a Court of appeal and then order a re-trial. In Akalu Ahir v. Ramdeo Ram4, the Supreme Court has held that in revision against acquittal by a private complainant the High Court cannot re-appraise evidence for itself as if it is acting as a Court of appeal and then order a re-trial. In Satyendra Nath v. Ram Narain5, the Supreme Court has held that where the judgment of the Sessions Judge did not suffer from any manifest illegality and the interests of justice did not require the High Court to interfere with the order of acquittal passed by the Sessions Judge, the setting aside of the acquittal and order a re-trial is a transgression of the narrow limits of the revisional jurisdiction under section 439(4), Criminal Procedure Code, and hence the order has to be quashed. In the abovesaid background, I have to consider the case of A-1 and A-2. 37. No doubt, Mr.N.T. Vanamamalai is correct in stating that Exhibits D-3, D-4 and D-5 should not have been taken into consideration by the Sessions Court. He is also correct when he states that a witness may refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned. This is manifest in section 159 of the Evidence Act. On this basis, Mr.N.T. Vanamamalai would question the evidence of D.W. 8 when he refreshed his memory from Exhibit D-20 which was not written by him. This objection ought to have been raised at the time the witness was allowed to refresh his memory. D.W. 8 has in his evidence specifically stated that he is a doctor working in Swedish Mission Hospital at Tiruppattur, that A-2 came to his hospital and that he was an in-patient in the hospital from 15th May, 1975 upto 17th May, 1975. No doubt, in cross-examination this witness has stated that he does not know as to who wrote Exhibit D-20 and that what all he stated is on the basis of Exhibit D-20. Exhibit D-20 is the entry at page 16 in the In-patient Register for Ward D at the Swedish Mission Hospital. No doubt, in cross-examination this witness has stated that he does not know as to who wrote Exhibit D-20 and that what all he stated is on the basis of Exhibit D-20. Exhibit D-20 is the entry at page 16 in the In-patient Register for Ward D at the Swedish Mission Hospital. In the absence of any objection to the doctor D.W. 8 referring to Exhibit D-20 at the time of his giving evidence, it is too late for P.W. 1 now to contend that the evidence given by the doctor D.W. 8 cannot be acted upon on the basis of section 159, Evidence Act. The evidence of D.W. 8 is specific to the effect that A-2 was admitted in the hospital on 15th May, 1975 and was in the hospital on the 15th, 16th, and 17th of May, 1975. Apart from the evidence of D.W. 8 we have the evidence of D.Ws. 7 and 9. There is, at any rate, a doubt as to whether A-2 would have been present at the scene of occurrence on 16th May, 1975. 38. In the same way: There is the evidence of D.W. 1 the doctor who operated on the son of A-1 at Madras. He has stated that A-1 was present at Padma Clinic in Madras on the 15th, 16th, 17th and 18th of May, 1975. This doctor has written the operation procedure himself in Exhibit P-18. Coupled with this, there is the evidence of the Manager of Vijaya Lodge at Royapettah, Madras, who is D.W. 2, which goes to show that A-1 was at Madras from the 15th to 18th of May, 1975. Even eschewing the inadmissible evidence as suggested by Mr.N.T. Vanamamalai the evidence of D.Ws. 1 and 2 and the record Exhibit P-18 probabilise the case of the defence, or, at any rate, creates an element of doubt as regards the presence of A-1 at the scene of occurrence as alleged by the prosecution. 39. The cardinal principle in Criminal Jurisprudence is that an accused person is entitled to the benefit of a doubt, however insignificant it may be, if it is pertinent in point and material in nature. When there is a doubt as regards the presence of A-1 and A-2 at the scene of occurrence, they are entitled to the benefit of the doubt and on that basis they have to be acquitted. When there is a doubt as regards the presence of A-1 and A-2 at the scene of occurrence, they are entitled to the benefit of the doubt and on that basis they have to be acquitted. The fact that the consent letter given by A-1 is not forthcoming will not in any way, in my opinion, affect the doubt created in my mind on the strength of the evidence given by D.Ws. 1 and 2 and Exhibit P-18 as regards the presence of A-1 at the scene of occurrence on 16th May, 1975. Taking all these aspects into consideration, I am convinced that the acquittal of A-1 and A-2, though not on the ground of completely disbelieving P.W. 1 in regard to them, but on giving them the benefit of the doubt raised on the strength of the evidence discussed above, has to be upheld. 40. In these circumstances, Criminal Revision Case No. 387 of 1976 is dismissed.