Judgment :- Janarthanam, J. This appeal is directed against the judgment dated 27th August, 1984 of the Court of Session, Madurai in Sessions Case No.15 of 1983. 2. It arises from these facts: (i) Accused 1 to 4 are the residents of Thummalappatti situate within the jurisdiction of Balagundu Police Station. Accused 2 is the husband of accused 4. Accused 1 and 3 are their sons. The family of the accused is residing adjacent to the house of P.W.4. Accused 4 is the daughter of P.W.4 (sic.) through his wife. P.W.1 is the daughter (sic.) P.W.7 is the second wife. Her husband is Mayandi Thevar (since deceased). P.Ws.2 and 3 are respectively her brother and sister. P.W.3 is also married and she has been residing with her husband at Palarpatti. (ii) P.W.4 owns a garden land at Konarkulam. The total extent of the garden land comprises of four acres. P.W.(sic.) 4 and on Maya Thevar are having equal shares in the said thottam. There is a common well with pumpset for irrigation of those lands. Out of the two acres belonging to his share, P.W.4 conveyed one acres to accused 4 and the other one acre to P.W.1. (iii) Accused 1 subsequently married the daughter of Maya Thevar. Thereafter, there was irrigation dispute between the family of P.W.1 and that of the family of accused 4. Maya Thevar being the father-in-law of accused 1, joined with the family of accused 4 and offered stiff resistance to the land being irrigated with water from the common well by the family of P.W.1. (iv) With regard to taking of the water from the common well, a wordy altercation arose between the two families on 14.6.1982 at 5.30 P.M., resulting in mutual fight leading to the filing of a complaint before P.W.11, Sub Inspector of Police. The complaint given by the deceased against the accused was registered as Crime No.318 of 1982 by P.W.11 under Secs.323 and 324, I.P.C. The complaint given by accused 2 regarding the same occurrence was also registered as Crime No.118 of 1982 under Secs.323 and 324, I.P.C. against the family members of P.W.1. After investigation, the case in Crime No.118 of 1982 was referred as mistake of fact and the case in Crime No.318 of 1982 resulted in the filing of the report under Sec.173, Crl.P.C., before Court, which resulted in conviction and sentence of the accused. After investigation, the case in Crime No.118 of 1982 was referred as mistake of fact and the case in Crime No.318 of 1982 resulted in the filing of the report under Sec.173, Crl.P.C., before Court, which resulted in conviction and sentence of the accused. Since then, there were feelings of animosity and embittered relationship between the two families. (v) On 7.8.1982 at 10 P.M. accused 1 went to the house of P.W.4, shouted and created a pell-mell situation by demanding that his mother, accused 4 should be given a share in the family properties. P.W.4 was then not available in the house. P.Ws.2 and 3 were then present in the house. P.W.1, who had been there to have a courtesy call on his mother, pacified accused 1, besides telling him that he should not behave in such a fashion. (vi) On 8.8.1982, at about 7 A.M. the deceased went to his field in Idayankulam in connection with certain agricultural operations. At about 2 P.M. accused 1 to 4 emerged at the house of P.W.4 and created a calamitous situation by making a hell of noise. Then P.Ws.1 to 3 were in their house. At that time, the deceased came returning from his fields. He asked them the reason for the shouting. Immediately accused 4 went to her house, brought an aruval and knife. She gave the aruval to accused 2 and knife to accused 1. After handing over the weapons to them, she instigated them to do away with the deceased. Accused 2 inflicted a cut on the back of the deceased with aruval. On receipt of the cut, he ran towards north. Accused 1 chased him and stabbed twice on his chest. He fell down. Thereafter, accused 3 hit his chest. P.W.2 snatched a stick lying there and beat accused 1 and twice and accused 2 once on their head. Accused 4 came there. She was also beaten by P.W.2 on her mouth with the stick. Accused 1 to 4 ran towards west carrying away the weapons with them. Attracted by the hue and cry emerging from the scene, P. Ws.5 and 6, residing in the vicinity in the scene of occurrence, ran there and saw the accused running away from there, carrying the weapons with them. Accused 1 to 4 ran towards west carrying away the weapons with them. Attracted by the hue and cry emerging from the scene, P. Ws.5 and 6, residing in the vicinity in the scene of occurrence, ran there and saw the accused running away from there, carrying the weapons with them. The victim-deceased was then placed in a cot near the cattle shed of one Veeraswami and after a short-while he breathed his last. (vii) P.W.1 accompanied by his brother P.W.2 reached Batlagundu Police Station at 4.30 P.M. and laid Ex.P1 complaint to P.W.12, Sub Inspector of Police, who in turn, registered the same in Crime No.400 of 1982. Under Sec.302, I.P.C. He prepared express reports and sent the same to the concerned officials through the Constable P.W.9. He also sent a V.H.F. message to P.W.16, Inspector of Police. (viii) At 6 P.M., Accused 1, 2 and 4 appeared before P.W.12 and give Ex.P11 complaint which was registered in Crime No.401 of 1982. Under Sec. 324, I.P.C. P.W.12 arrested them and sent them to the hospital. (ix) P.W.15, on receipt of the message, proceeded to the police station and on the way he met P. W.9 andgot the copy of the express F.I.R. He then reached the station at 6.30 P.M. and got the copy of the F.I.R. in Crime No.400 of 1982. He reached the scene at 6.45 P.M. After inspecting the scene, he prepared the observation mahazar, Ex.P6. He also drew a rough sketch, Ex.P14, of the scene. Between 7 and 10 P.M., he held inquest over the body of the deceased. During inquest he examined P.Ws.1, 2, 3 and others. Ex.P15 is the inquest report. After the inquest was over, he handed over the body of the deceased to P.W.10 Constable along with the requisition, Ex.P12 for the purpose of autopsy. He seized from the scene M.Os.6 and 7 under Ex.P7 mahazar. Exs.P6 and P7 were attested by P.W.8. He also examined P.Ws.1 to 4 and 6 in connection with the case in Crime No.401 of 1982. (x) P.W.13, the doctor attached to the Government Hospital, Dindigul, examined accused 2 at 6.45 P.M. and treated him for the injuries. Ex.P8 is the wound certificate. At 6.55 P.M. he examined accused 1 and treated him for the injuries. Ex.P9 is the wound certificate. At 7.05 P.M., he examined accused 4 and treated her for the injuries. (x) P.W.13, the doctor attached to the Government Hospital, Dindigul, examined accused 2 at 6.45 P.M. and treated him for the injuries. Ex.P8 is the wound certificate. At 6.55 P.M. he examined accused 1 and treated him for the injuries. Ex.P9 is the wound certificate. At 7.05 P.M., he examined accused 4 and treated her for the injuries. Ex.P10 is the wound certificate. (xi) P.W.15 went to the hospital and examined accused 1, 2 and 4 who were taking treatment there and made arrangements to send them to Court for remand. (xii) P.W.14, the doctor attached to the Government Hospital, Batlagundu conducted autopsy over the body of the deceased at 8.30 A.M. on 9.2.1982. Ex.P13 is post-mortem certificate. He opined that the injuries No.1 and 3 could have been caused by infliction of a stab with a knife. Injury No.5 could have been caused by the tip of the aruval. He further opined that injury No.1 is necessarily fatal. After autopsy, P.W.10 seized from the body M.Os.1 to 5 and handed over the same at the police station. (xiii) P.W.15came to know that accused 3 surrendered before the Judicial Second Class Magistrate No.II, Madurai on 26.8.1982. (xiv) On 29.8.1982 P.W.15 sent Ex.P2 requisition to the Judicial Second Class Magistrate, Nilakkottai for sending the incriminating articles to the Chemical Examiner for the purpose of analysis. P.W.7, the Assistant attached to the said Court sent them under the original of Ex.P3, office copy of letter, to the chemical examiner, Exs.P4 and P5 are the reports of the Chemical Examiner and Serologist respectively. (xv) After completing the formalities of the investigation, P.W.15 laid the report under Sec.173, Crl.P.C., before Judicial Second Class Magistrate, Nilakkottai on 6.11.1982 for the offence under Sec.302, I.P.C. appeared to have been committed by the accused, after referring the case in Crime No.401 of 1982 as ‘mistake of fact’. (xvi) Learned Sessions Judge, upon committal framed charges under Sec.302 read with Sec.34, I.P.C., against 1 and 2; under Sec.302 read with Sec.109, I.P.C., against accused 4 and under Sec.323, I.P.C. against accused 3. The accused denied the charges and claimed to be tried. (xvii) The proposition examined P.Ws.1 to 15, and marked M.Os.1 to 7, in proof of its case. (xviii) The accused when examined under Sec.313, Crl.P.C., as regards the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. The accused denied the charges and claimed to be tried. (xvii) The proposition examined P.Ws.1 to 15, and marked M.Os.1 to 7, in proof of its case. (xviii) The accused when examined under Sec.313, Crl.P.C., as regards the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. Accused 1 would however file a written statement in a detailed fashion narrating the circumstances under which the occurrence had happened. They did not choose to examine any witness on their side. However, they chose to mark Exs.D1 and D2. (xix) Learned Sessions Judge, on consideration of the materials placed before him and after hearing the arguments of learned Public Prosecutor and learned counsel for the defence found accused 1 and 2 guilty under Sec.302 read with Sec.34, I.P.C. and accused 4 under Sec.302 read with Sec.109, I.P.C. convicted them thereunder and sentenced each of them to imprisonment for life. He found accused 3 guilty under Sec.323, I.P.C., convicted him thereafter and sentenced to undergo rigorous imprisonment for one year. Aggrieved by the conviction and sentence, the accused have come forward with this appeal. 3. Learned counsel appearing for the appellants would submit that the 2nd appellant-accused 2 died on 14.1.1986 during the pendency of the appeal. Therefore, the appeal preferred by him abates. 4. Learned counsel for the appellants would assail the conviction and sentence of the appellants by pressing the following points: (1) Theoccurrence could not have happened in the manner projected by the prosecution and there are intrinsic and in built materials on record pointing out that the ocular witnesses could not have witnessed the occurrence at all and they, being the near and close relations of the deceased, were pressed into service suiting to the exigency of the case of the prosecution. (2) The theory of instigation by accused 4 of accused 1 and 2 to cause the death of the deceased, having been propounded for the first time during the course of trial, cannot be expected to command acceptance at the hands of the Court; and (3) In acriminal trial, it is of prime importance for the accused to know as to what the exact prosecution case is. If the pivot of the case of the prosecution is not accepted, a new prosecution case cannot be made to imperil the case of the defence. If the pivot of the case of the prosecution is not accepted, a new prosecution case cannot be made to imperil the case of the defence. The case of the prosecution has to be tested independently of the defence version and in a case of the present nature, which depends for its proof on direct testimony, falsity of the defence will not help the prosecution to establish its own case. In amplification of this point, it is further submitted that the Court below having rejected the fundamental details of the prosecution version and having held that the true version of the occurrence was not presented by the prosecution erred in convicting the accused by constructing a new case. 5. There is no manner of doubt whatever that the ocular witnesses, P.Ws.1 to 3 are closely related to the deceased, in the sense of P.W.1 being wife, P.Ws.2 and 3 being brother and sister-in-law. It is also not in dispute thatP.W.1 was already married and she had been living with her husband separately in the same village. Yet another fact, about which there is no controversy at all, is that P.W.3 was also married and she had been living with her husband at Palarpatti, away from the scene village. As such P.Ws.1 and 3 cannot be presumed as natural witnesses, in the sense of their having been present in the house of P.W.4 thereafter in the normal run of things and if at all they can be termed as chance witnesses. Their otherwise inexplicable presence, in the scene is sought to be explained by creating certain circumstances so as to enable them to have been present in the scene and had the opportunity to have a glimpse of the occurrence. If the circumstances, which impelled these witnesses to go to the house of P.W.4 is not above reproach and beyond suspicion, then their evidence has to necessarily fall to the ground. The presence of these witnesses in the scene, in the absence of examination of the witnesses emerging from the locality creates a cloud in the case of the prosecution. 6. The evidence of P.W.1 would reveal that her husband in the earlier morning of the day of occurrence had been to the fields in connection with the agricultural operations informing the inmates of the house that he would return for lunch. 6. The evidence of P.W.1 would reveal that her husband in the earlier morning of the day of occurrence had been to the fields in connection with the agricultural operations informing the inmates of the house that he would return for lunch. Finding the deceased not returning to the house for lunch, she would say that she went to the house of her father P.W.4 to ascertain the reason. Her evidence would further reveal that she came to know from her sister P.W.3 that the food she had taken to P.W.4 had actually been served to the deceased, as P.W.4was not inclined to take lunch due to some stomach disorder. It is only at this juncture, the occurrence was stated to have taken place. It was not as if the deceased went to his fields in the early morning of the day of occurrence in the company of P.W.4. The sordid fact is that he went alone. It is also not in evidence that P.W.4 subsequently went to the fields where the deceased had gone. In such circumstances, if the deceased had not returned from the fields, there was no question of P.W.1 going to the house of P.W.4 to ascertain the whereabouts of her husband, the deceased. The further astonishing factor is that P.W.3’s taking lunch to the fields for P.W.4 was not at all stated in her earlier version during the course of investigation and this aspect of the matter was projected for the first time during her examination in Court. This apart, the presence of P.W.3 in the scene is sought to be explained by a convenient contumacious explanation that her mother was not at all well then. Of course, it is but natural for a daughter like P.W.3 to have visited the house of her father for making a courteous call on her ailing mother. But, in the circumstances, in the absence of specific mention of the illness from which her mother was suffering, demanding her immediate presence in the scene when especially none of the witnesses of the locality had been examined, creates a cloud of suspicion, in the mind of the Court. These things apart, their version regarding the occurrence did not inspire confidence of Court. 7. These things apart, their version regarding the occurrence did not inspire confidence of Court. 7. When the attack had been mounted on the deceased, none of them went to the rescue of the deceased till upto the successful termination of the attack, almost leading to the death of the deceased. P.W.2 was stated to have beaten accused 1, 2 and 4 by means of a stick, causing injuries on their persons. It is not as if the beating of the accused P.W.2 was done, when they were mounting an attack on the deceased. The evidence of P.Ws.1 and 3 would not reveal as to what necessitated P.W.2 to mount an attack on the accused. But P.W.2 alone would say that the accused attempted to mount an attack on P.Ws.1 and 3 and at that juncture seizing a stick lying there he beat the accused obviously with a view to prevent them from causing injuries to P.Ws.1 and 3. The evidence of P.W.2 on this aspect of the matter spells out volume of suspicion when P.Ws.1 and 3, as earlier stated, did not speak anything at all as to any attempt having been made by the accused to amount an attack on them. 8. There is one more disquieting factor emerging from the testimony of P.Ws.2 and 3 point out that P.W.2 could not have witnessed the occurrence at all. P.W.2 would candidly admit during the course of cross examination that when he came out of the house, on hearing the hue and cry, he saw the deceased lying on the ground with injuries and gathered from P.W.2 as to how the occurrence had happened. P.W.3 also would to the line of version as projected by P.W.2 on this aspect of the matter. 9. Above all the version of P.Ws.1 to 3 as to the sustaining of the injuries by the accused is contradicted by the medical testimony available on record, thereby pointing out the falsity of the version projected by the prosecution as regards the occurrence. The doctor P.W.13, who examined accused 1, 2 and 4 would opine that the incised injuries he found on the persons of the accused could not have been caused by a blunt weapon like a stick and that the same could have been caused only by a weapon having clean-cut edges. The doctor P.W.13, who examined accused 1, 2 and 4 would opine that the incised injuries he found on the persons of the accused could not have been caused by a blunt weapon like a stick and that the same could have been caused only by a weapon having clean-cut edges. From this, it is crystal clear that these ocular witnesses were prepared to project a different version before the Court. 10. The substratum of accusation against accused 4 is that she was stated to have instigated accused 1 and 2 to cause the death of the deceased by proclaiming The ocular witness did not at all state anything on this aspect of the matter during the course of investigation. They would for this first time adduce such evidence during the course of trial. The investigating officer, P.W.15 would candidly admit that the ocular witnesses did not at all speak anything on this aspect of the matter during the course of investigation. Admittedly, accused 4 did not in fact do any harm on the person of the deceased by doing any overact. We feel, in such a circumstance, that the ocular witnesses projected before the Court an improved version so as to see penal consequences also to flow upon accused 4 for her act of instigation. 11. Regarding the occurrence, no doubt true it is, that two versions were placed before the investigating machinery, one by the prosecution party as found adumbrated in Ex.P1 and another by accused party, as detailed in Ex.P11. A perusal of Ex.P1 would reveal that the occurrence had happened at 2 P.M. On the other hand, Ex.P11 would reveal that an occurrence had happened at 1.30 P.M. in which accused 1, 2 and 4 got injured at the hands of the prosecution party. The police, after due investigation, arriving at a conclusion that the occurrence is one and indivisible and had happened at the same time and place, filed the report under Sec.173, Crl.P.C. against accused for various offences. The defence also would dispute the contents of Ex.P1l by stating that when the accused went to the police station with injuries on their persons, the police referred them to the hospital for treatment after taking signature of accused 1 in a blank sheet of paper and prepared Ex.P11 utilising such a piece of paper. The defence also would dispute the contents of Ex.P1l by stating that when the accused went to the police station with injuries on their persons, the police referred them to the hospital for treatment after taking signature of accused 1 in a blank sheet of paper and prepared Ex.P11 utilising such a piece of paper. Now, the fact remains that both according to the prosecution as well as according to defence, the transaction is one and indivisible. In such state of affairs, it was rather unfortunate for the trial Court to have constructed a new case for the prosecution. 12. The discussions in paragraphs 25 arid 26 of the judgment of the trial Court would point out that there were two occurrences. The first occurrence had happened at 1.30 P.M. in which accused 1, 2 and 4 were injured at the hands of the prosecution party which wielded weapons like cutting instruments. The second occurrence, which took place at 2 P.M. was sequel to the first occurrence and the accused mounted the attack on the prosecution party, in which the deceased received fatal injuries. While constructing such a new case, the trial Court rejected the ocular testimony of P.Ws.1 to 3 as to the version regarding the causation of the injuries P.W.2 on accused 1, 2 and 4. The trial Court while giving such a finding forgets the rudimentary fundamental principle of criminal jurisprudence that the prosecution has to stand on its own legs and prove its case beyond any shadow of doubt. The trial Court rejected the fundamental details of the case of the prosecution as regards the sustaining of the injuries by accused 1, 2 and 4 and held that true version of the occurrence was not presented by the prosecution, but nonetheless constructing a new case of its own, it found the accused guilty of various offences and convicted them thereunder which in the eye of law is not permissible. 13. For the foregoing reasons, we allow the appeal, set aside the conviction and sentence and acquit accused 1, 3 and 4. Accused 1 is directed to be set at liberty forthwith, unless he is required to be detained in connection with any other case. The bail bonds of other accused will stand cancelled. The appeal preferred by accused 2 abates.