Judgment :- MARUTHAMUTHU, J. This appeal arisen from the judgment of the learned Principal Sessions Judge, Ramanathapuram at Madurai in Sessions Case No. 105 of 1985 dated 10-10-1985. In the aforestated Sessions Case, the appellant stood charged under Section 302 read with Section 34, I.P.C. on the allegation that at or about 2.30 p.m. on 27-10-1983 at Oduvanpatti, within the limits of S. V. Mangalam Police Station, in furtherance of the common intention of committing the murder of Karuppiah, son of Vellaisami, the appellant caught hold of deceased Karuppiah while the absconding accused Karuppiah committed the said murder by cutting the deceased with an aruval indiscriminately on his head, neck, chest and other parts of the body and caused his death. Since the other accused Karuppiah was absconding, the case was split up, and charge as stated above, was framed against the appellant alone and he was tried by the learned Sessions Judge. The appellant pleaded not guilty to the charge. After trial, the learned Sessions Judge found the appellant guilty of the offence as charged, convicted and sentenced him to imprisonment for life. 2. Briefly stated, the prosecution case is as follows. (i) Vellaisami (P.W. 1), his deceased son Karuppiah, wife Nallammal, daughter Vijaya (P.W. 2) and another daughter Ponnalagu were residing in a hut in the land about one mile away from Oduvanpatti village. P.W. 1 owns dry lands. He was also cultivating the lands of one Veerasami Naicker on waram basis. Deceased Karuppiah used to graze his cattle in the lands. The appellants Sadasivam is the son-in-law of the absconding accused Karuppiah. They belong to Sirungakotti village, which is situate south-east of the scene of occurrence. P.W. 1 and the absconding accused Karuppiah are pangalis. The absconding accused Karuppiah had murdered his father and was sentenced to imprisonment for life. While he was in Vellore Central Jail as Convict No. 3858, he was said to be mentally sick. He was admitted in Kilpauk Mental Hospital on 29-8-1978. He escaped from the hospital on 12-5-1979 as mentioned in the list (Ex. P-12) produced by Ganesan (P.W. 9), Junior Assistant in Vellore Central Jail. A complaint (Ex. P-16) was preferred at Kilpauk Police Station in this regard and the same was being registered as Crime No. 859 of 1979 under Section 224, I.P.C. Ex. P-17 is the first information report. P-12) produced by Ganesan (P.W. 9), Junior Assistant in Vellore Central Jail. A complaint (Ex. P-16) was preferred at Kilpauk Police Station in this regard and the same was being registered as Crime No. 859 of 1979 under Section 224, I.P.C. Ex. P-17 is the first information report. Jothilingam (P.W. 11), Sub-Inspector of Police, Kilpauk has stated that the absconding accused Karuppiah is not traceable. While so, the absconding accused Karuppiah went to his native village Sirungakottai and started cultivating his lands(ii) On 27-10-1983, at about 1.00 p.m. Vairavan (P.W. 3) saw the absconding accused Karuppiah cutting the fence of P.W. 1 and the deceased and heard the deceased to complain that the absconding accused was unlawfully cutting his fence. P.W. 3 suggested that the dispute might be settled later. Deceased Karuppiah was tending his cattle in his lands. For him, his sister, P.W. 2 carried food. At about 2.30 p.m. the absconding accused was again cutting the fence in the land of P.W. 1 and the deceased. Deceased Karuppiah asked the absconding accused Karuppiah as to why he was doing like that. It was about 2.30 p.m. The absconding accused retorted and abused the deceased vulgarly and stated that he will cut the fence only like that. At that time, the appellant caught hold of deceased Karuppiah strongly and the absconding accused Karuppiah cut the deceased on his hand, head, throat, chest and other parts of the body indiscriminately with an aruval. P.Ws. 1 and 2 and P.W. 1's wife and another daughter Ponnalagu were also present at the scene. When P.W. 2 went near raising an alarm and asking the absconding accused not to cut the deceased, the absconding accused beat P.W. 2 on her right knee with the blunt portion of the aruval. P.W. 2 sat down due to severe pain. Deceased Karuppiah died instantaneously as the result of the injuries. The appellant and his father-in-law, the absconding accused Karuppiah, ran away from the scene with the aruval. (iii) P.Ws. 1 and 2 proceeded to S. V. Mangalam Police Station where P.W. 1 gave a statement (Ex. P-1) to Robert (P.W. 7), Sub-Inspector of Police. On Ex. P-1, a case was registered by P.W. 7 in Crime No. 367 of 1983 under Sections 341, 302 and 324, I.P.C. P.W. 7 prepared the printed first information report (Ex. P-7) and sent Exs. P-1) to Robert (P.W. 7), Sub-Inspector of Police. On Ex. P-1, a case was registered by P.W. 7 in Crime No. 367 of 1983 under Sections 341, 302 and 324, I.P.C. P.W. 7 prepared the printed first information report (Ex. P-7) and sent Exs. P-1 and P-7 to the Judicial Second Class Magistrate, Tirupattur and sent P.W. 2, the injured, to the Government Hospital, Singampuneri. He inspected the scene of occurrence and prepared and observation mahazar (Ex. P-3) in the presence of Nagalingam (P.W. 5), talayari of the village. He gave information to Saminathan (P.W. 13), Inspector of Police, of the occurrence(iv) At 4.30 p.m. Dr. Jayapal Narayanan (P.W. 10) examined P.W. 2 for injuries said to have been caused at 2.30 p.m. due to assault with 'aruval pudangu' and found on her the following injury. "A contusion 3" x 2 1/2"on the right knee, tender and swollen." Ex. P-14 is the wound certificate issued by P.W. 10. P.W. 2 was sent to Government Rajaji Hospital, Madurai for further treatment. Dr. Chandraprakasam (P.W. 12) admitted P.W. 2 on 31-10-1983 as in-patient and got X-Ray photo taken for the injury found on the right knee of P.W. 2 where swelling was found. On 12-11-1983, a surgery was conducted on the injury and P.W. 2 was discharged from the hospital on 25-11-1983. M.O. 6 (series) are the skiagrams and Ex. P-2 is the report of P.W. 10. P.W. 10 issued the wound certificate (Ex. P-14) on the basis of M.O. 6 and Ex. P-2 that the injury on P.W. 2 was grievous (v) On 27-10-1983, the date of occurrence, at 7.00 p.m., P.W. 13 who received a copy of Ex. P-7 took up investigation. He inspected the scene of occurrence at 8.00 p.m., prepared observation mahazar (Ex. P-5) and a rough sketch of the scene (Ex. P-20). He conducted inquest on the dead body of Karuppiah between 8.00 and 10.00 p.m. and prepared the inquest report (Ex. P-19). He seized the bloodstained earth (M.O. 7), sample earth (M.O. 8) and the parts of the plants in the fence which were cut (M.O. 9 series) under a mahazar (Ex. P-4) in the presence of P.W. 5 at 10.30 p.m. He entrusted the dead body of deceased Karuppiah with a requisition (Ex. P-19). He seized the bloodstained earth (M.O. 7), sample earth (M.O. 8) and the parts of the plants in the fence which were cut (M.O. 9 series) under a mahazar (Ex. P-4) in the presence of P.W. 5 at 10.30 p.m. He entrusted the dead body of deceased Karuppiah with a requisition (Ex. P-6) to the police constable Mayilvahanan (P.W. 6) for taking it for post mortem examination (vi) On the next day (28-10-1983), at 11.05 a.m. P.W. 10 conducted autopsy on the dead body of deceased Karuppiah and found the following injuries(1) A clean incised wound extending from the cricoid cartilage to back dissecting the hyoid bone, muscles, carotid artery, jugular vein; head hanging from the skin of the back of the neck on the nape of the neck (2) First cervical vertebra cut (3) A clean incised wound 5"x 1" cutting both the ramus of the mandibular, injuring platysna muscle mandibular artery (4) A clean incised wound 1"x 1/2" on the root of right sterno-mastoid muscle (5) A clean incised wound 6"x 1" sagitally extending from the right frontal prominence to occipital bone; skull opened (6) A clean incised wound 1 "x skin deep on the lateral aspect of left forearm in the middle (7) A clean incised wound 1" * x skin deep in the left deltoid (8) A clean incised wound 3"x 1" on the anterior axillary fold dissecting pectoral muscles On internal examination, he found the abdomen distended. There was no fluid in the thoracic cavity and the abdomen. Heart weighed 2 oz. and was pale. Right lung weighed 4 oz. and the left lung 3 oz. They were pale, collapsed and shrinked. On dissection, dark brown clots were found along with sand and dust in the larynx, glottis, trachea and bronchi. Oedematous was present. Hyoid bone was found cut horizontally. Oesophagus was cut horizontally near cricoid cartilage. Liver weighed 15 oz. and was pale and flabby. Gall bladder was empty. Spleen weighed 3 1/2 oz. and was pale. Stomach and intestines were empty. Extravasation of blood was seen in the scalp. Membranes of the brain were injured in the right cerebral hemisphere. Brain weighed 43 oz. Blood clots and haematoma were present. First thoracic vertebra in the spinal column was cut. and was pale and flabby. Gall bladder was empty. Spleen weighed 3 1/2 oz. and was pale. Stomach and intestines were empty. Extravasation of blood was seen in the scalp. Membranes of the brain were injured in the right cerebral hemisphere. Brain weighed 43 oz. Blood clots and haematoma were present. First thoracic vertebra in the spinal column was cut. P.W. 16 opined that the deceased would appear to have died of hypovolemic shock and respiratory failure due to multiple injuries inflicted on the body and the deceased would have died 20 to 22 hours prior to autopsy. He added that injuries 1 to 3 and 5 are fatal and that the injuries to the larynx, bronchi and hyoid bone correspond to external injury No. 1. Extravasation of blood, injury to membrane of the brain and the right cerebral hemisphere and clots found therein and the blood-clots correspond to external injury No. 5. Injuries Nos. 3 and 4 are possible by an aruval. They could be caused due to different cuts. Ex P-15 is the postmortem certificate issued by P.W. 10. After postmortem examination, P.W. 6 removed the banian (M.O. 1), underwear (M.O. 2), lungi (M.O. 3), towel (M.O. 4) and the waist-chord (M.O. 5) from the dead body and delivered them at the police station(vii) P.W. 13 arrested the appellant on 30-10-1983 at 8.00 p.m. and sent him for remand. On 7-11-1983, he gave a requisition (Ex. P-8) to the Judicial Second Class Magistrate for sending the material objects for chemical analysis. Accordingly, P.W. 8, Muthusami, the Head Clerk of that Court forwarded the material objects to the Chemical Examiner with the covering letter (Ex. P-9) of the Magistrate. After analysis, the report of the Chemical Examiner (Ex. P-10) and the report of the Serologist (Ex. P-11) were received in Court. P.W. 13 laid the final report in the committal Court on 25-2-1984 on completion of the investigation against the absconding accused Karuppiah (A-1) and the appellant (A-2). But, the case was split up and proceeded only against the appellant. 3. When the appellant was examined under Section 313, Cr.P.C., he denied his complicity in the crime. He denied that he caught hold of deceased Karuppiah when the absconding accused Karuppiah cut the deceased with aruval. He stated that he had no knowledge of the occurrence and he has been falsely implicated. 3. When the appellant was examined under Section 313, Cr.P.C., he denied his complicity in the crime. He denied that he caught hold of deceased Karuppiah when the absconding accused Karuppiah cut the deceased with aruval. He stated that he had no knowledge of the occurrence and he has been falsely implicated. He added that he surrendered at Singampunari police station of his own accord on 30-10-1983 and was not arrested as alleged. No defence witness was examined. 4. After considering the evidence and the documents, the learned Sessions Judge accepted the case of the prosecution, rejected the plea of the appellant, found the appellant guilty of the offence under Section 302 read with Section 34, I.P.C., convicted and sentenced him as mentioned earlier. The appellant has preferred the present appeal challenging the said verdict of the learned Sessions Judge. 5. Mr. K. R. Thiagarajan, learned counsel for the appellant strenuously contended that the appellant is an innocent person and that he was not at all concerned in the crime. He submitted that the evidence of P.Ws. 1 and 2 adduced in this case, as eye-witnesses, is absolutely unreliable and that the appellant has been simply implicated for the reason that he is the son-in-law of the absconding accused Karuppiah and a close relation of his. He pointed out the discrepancy in the evidence of P.W. 2 that Thirunavukarasu, son of the absconding accused was pressing the leg of the deceased when the absconding accused cut him with aruval. He contended that the finding of guilt recorded by the learned Sessions Judge under Section 302 read with Section 34, I.P.C. against the appellant is not at all sustainable and that he has to be acquitted. 6. Mr. B. Sriramulu, learned Public Prosecutor resisted the contentions raised on behalf of the appellant and contended that the evidence of P.Ws. 1 and 2, the ocular witnesses, proves the overt acts of the appellant while the absconding accused Karuppiah dealt cuts with aruval indiscriminately on the deceased and that the conviction of the appellant under Section 302 read with Section 34, I.P.C. is valid. He pointed out that there is ample evidence to show that the appellant caught hold of the deceased when the absconding accused Karuppiah cut the deceased with aruval and when the deceased died. We heard the submissions of both sides. 7. He pointed out that there is ample evidence to show that the appellant caught hold of the deceased when the absconding accused Karuppiah cut the deceased with aruval and when the deceased died. We heard the submissions of both sides. 7. It is not in dispute that on 27-10-1983 deceased Karuppiah sustained cut injuries with the result, he died instantaneously at the spot. P.W. 10 who has conducted the postmortem examination on the dead body of deceased Karuppiah has found as many as eight injuries, most of which were on the vital parts of the body, and has opined that injuries Nos. 1 to 3 and 5 were fatal and that death could have been instantaneous. It appears that the head of the deceased has almost been severed and that the skin was the connecting factor. The prosecution case is that the appellant caught hold of the deceased and that the absconding accused Karuppiah cut the deceased indiscriminately with aruval on the head, neck and other parts of his body and that as the result the deceased Karuppiah died instantaneously. The appellant remains charged under Section 302 read with Section 34, IPC on the basis that he along with the absconding accused Karuppiah had the common intention of committing the murder of the deceased and that is why the appellant caught hold of the deceased and facilitated the commission of the murder. Unfortunately, the absconding accused Karuppiah who is alleged as the assailant and who dealt the several cuts with aruval on the deceased is not before us and the trial has proceeded only against the appellant who is alleged to have caught hold of the deceased to facilitate the attack made by the absconding accused. 8. There is no dispute with regard to the circumstances in which the occurrence took place. The lands of the absconding accused are situate on the north and south while that of the deceased is situate in between them. There is a live fence in between the lands of the deceased and the absconding accused over which the absconding accused has laid a claim as against the claim of the deceased and P.W. 1 that the fence belonged to them. There is a live fence in between the lands of the deceased and the absconding accused over which the absconding accused has laid a claim as against the claim of the deceased and P.W. 1 that the fence belonged to them. On 27-10-1983, the date of occurrence, the absconding accused Karuppiah who made good his escape from the Mental Hospital, Kilpauk, when he was undergoing life imprisonment on conviction for the murder of his own father, has started cutting of the live fence for which the deceased, son of P.W. 1, has raised protest. The evidence of P.Ws. 1 to 3 shows that it was only when the absconding accused Karuppiah was cutting the live fence and when the deceased Karuppiah objected to it, the absconding accused had cut the deceased with aruval. The appellant is also said to have caught hold of the deceased to facilitate cutting of the deceased by the absconding accused at that time. No other motive for the occurrence is seen in this case. 9. On the allegation that it was the appellant who caught hold of the deceased when the absconding accused Karuppiah cut the deceased with aruval, the prosecution has adduced evidence of P.Ws. 1 and 2 who are respectively the father and sister of the deceased. We are not very much concerned with the question whether the absconding accused Karuppiah cut the deceased with aruval and brought about his death, as we are not deciding the charge against him at present. A careful consideration of the evidence of P.Ws. 1 and 2 reveals that their testimony is not reliable with regard to the role attributed to the appellant. Their evidence bristles with contradictions and infirmities affecting the truth of the allegation. P.W. 1 has stated in his evidence that when the deceased questioned the absconding accused Karuppiah and asked him not to cut the trees in the live fence, the absconding accused ran towards the deceased with aruval with a view to attack him and that the deceased who became afraid of the absconding accused ran to some distance with a view to escape, but that the appellant caught hold of the deceased in order that he should not run and escape and that it was only thereafter the absconding accused attacked the deceased with aruval. His version is not so in Ex. P-1 given by him after the occurrence. His version is not so in Ex. P-1 given by him after the occurrence. What he has stated in Ex. P-1 is that the appellant ran towards the deceased who was remaining at the scene of occurrence by questioning the absconding accused about the cutting of the live fence and caught hold of the deceased by his waist strongly. P.W. 1 has not stated in Ex. P-1 that the deceased tried to run some distance and that he was held by the appellant. 10. P.W. 2's evidence is still more different. She would state that the appellant caught hold of the deceased strongly, abused the deceased and asked the absconding accused to cut the deceased with aruval and thereupon the absconding accused cut the deceased. This is not the evidence of P.W. 1 or the statement of P.W. 1 in Ex. P-1. Nothing has been stated by P.W. 1 that the appellant instigated the absconding accused to cut the deceased after catching hold of the deceased. Thus, the evidence of P.W. 2 is found to be an embellishment which has not been stated by her even during investigation. That apart, she would add that one Thirunavukarasu also pinned the deceased down by pressing him with the leg and that thereafter the absconding accused death the cuts on the deceased. This is an innovation in the evidence of P.W. 2. She has not stated during investigation anything about Thirunavukarasu as the person who also joined the appellant. This piece of evidence of P.W. 2 shows that she has got the tendency to implicate persons while making embellishments in the allegation made against the appellant. 11. The testimony of P.W. 3 will indicate that P.W. 1 was not present at the scene of occurrence when the deceased and the absconding accused had quarrelled earlier between 12.00 noon and 1.00 p.m. P.W. 3 says that he went to the place where the quarrel between the deceased and the absconding accused over the cutting of the fence was taking place and that P.W. 1 was remaining in his house at that time. He would specifically say that it was between 12.00 noon and 1.00 p.m. and that the quarrel between the deceased and the absconding accused took place in the garden land. He would specifically say that it was between 12.00 noon and 1.00 p.m. and that the quarrel between the deceased and the absconding accused took place in the garden land. When evidently P.W. 3 says that P.W. 1 was not at the scene of occurrence when the quarrel took place and that P.W. 1 was remaining in his house as he had gone there to obtain groundnut seeds from P.W. 1, the latter may have come to the scene of occurrence later at 2.30 p.m. Evidence of P.W. 3, that none else was present during the quarrel at 12.00 or 1.00 p.m. except the deceased, the absconding accused and himself, will also enure in favour of the appellant. The inconsistency and the embellishment in the evidence of P.Ws. 1 and 2 may lend support to the view that their evidence with regard to the appellant cannot be accepted. 12. Further, the medical evidence also gives a go-by to the prosecution version that the appellant caught hold of the deceased, while the absconding accused attacked the deceased with aruval. P.W. 10 has categorically stated in his evidence that the injuries on the deceased would not have been caused on the deceased while the deceased was being caught hold of by a person by his waist. He would affirm that the person who caught hold of the deceased to facilitate the attack by another with aruval on the deceased, should also have sustained injuries, if the deceased was caught hold of as stated above. Even if look at the seats of the various injuries, they will show that the appellant would not have caught hold of the deceased when the absconding accused attacked the deceased with aruval. Evidently, the appellant has not sustained any injury on his person though he is said to have caught hold of the deceased at the time when the absconding accused attacked the deceased indiscriminately with aruval. The appellant is the son-in-law of the absconding accused and he might or might not have been present at about the time of occurrence. But, to allege that he also participated in committing the murder of the deceased, does not look credible. There is no material whatsoever to show that the appellant and the absconding accused Karuppiah had acted in consort or that there was existence of a pre-arranged plan or common intention to commit the murder of the deceased. But, to allege that he also participated in committing the murder of the deceased, does not look credible. There is no material whatsoever to show that the appellant and the absconding accused Karuppiah had acted in consort or that there was existence of a pre-arranged plan or common intention to commit the murder of the deceased. So far as the injury sustained by P.W. 2 is concerned, the appellant herein is not called upon to answer, as the same is said to have been inflicted by the absconding accused. The only charge against the appellant that he shared the intention with the absconding accused in committing the murder of deceased Karuppiah, has not been proved in this case. The learned Sessions Judge has not properly appreciated the evidence with regard to the charge against the appellant and his finding that the appellant is guilty under Section 302 read with Section 34, I.P.C. is not correct. 13. In the result, we find the appellant not guilty of the offence under Section 302 read with Section 34, I.P.C. and set aside the conviction and the sentence imposed on the appellant by the learned Sessions Judge. This appeal shall stand allowed.