Judgment : ARUMUGHAM, J. ( 1 ) THIS appeal is directed against the judgment rendered by the learned XI Additional Sessions Judge, Madras, finding the appellant guilty under Section 302 I. P. C. and the consequent sentence of imprisonment for life in Sessions Case No. 69 of 1985 on 110. 1985. Along with the appellant, one accused by name Babu was also tried by the learned Sessions Judge for an offence punishable under section 302 r/w 34 I. P. C. but he was acquitted of the said charge. ( 2 ) THE case of the prosecution as spoken to by witnesses examined by the prosecution in brief are extracted as hereunder: P. W. 1 Velu was living with his parents near Murugan Theatre. His mother used to provide meals on the receipt of calls among the labourers of the Kothavalchavadi and for the said purpose, he used to take her in Meenbadi cart (herein after referred to as cart) to Kothavalchavadi market. The deceased in this case Theivasigamani was the sisters husband of P. W. 1. He was also doing cooli work in a plantain mandi at Kothavalchavadi. The deceased with his wife namely the sister of P. W. 1 was also living in the nearby house of P. W. 1. ( 3 ) WHILE that being so, 5 months prior to his deposing in the witness box, on a Sunday at about 7 p. m. at the instruction of Theivasigamani, he travelled in the cart driven by Theivasigamani. When the cart came near the junction of Varadhamuthiappan Street and Annapillai Street at about 8. 30 p. m. that night, it rubbed a person. With a view to avoid further rubbing, P. W. 1 who was sitting in the cart pushed side that person. Consequently, that person caught hold of the shirt of P. W. 1 which was followed by the deceased getting down from the cart. The deceased questioned the person by referring his name Sekar about his beating P. W. 1. The deceased beat Sekar, the first accused in the instant case. During that time, a person who was nearby came there and questioned the deceased as to why he beat Al Sekar. Then, according to P. W. 1, the deceased accosted A2 Babu by name and asked whether he too came to beat him. Following this his uncle, the deceased beat Babu the second accused. During that time, a person who was nearby came there and questioned the deceased as to why he beat Al Sekar. Then, according to P. W. 1, the deceased accosted A2 Babu by name and asked whether he too came to beat him. Following this his uncle, the deceased beat Babu the second accused. Then the second accused Babu took out a knife and pretended to stab him. When the deceased tried to escape from the stab, the deceased sustained injury on the right shoulder with the knife which was in the hands of A2 Babu. Then according to P. W. 1, his uncle the deceased overpowered him and twisted his hands behind his back. It was at that time, the appellant herein, snatched the knife from the hands of Babu and stabbed the deceased on his neck, chest and stomach. Then he fell down. Both the accused Sekar and Babu ran away with the knife. ( 4 ) THEN with the help of Alagiri, P. W. 2, P. W. 1 took the deceased to the side of the main road and took him to the Kothavalchavadi Police Station. There P. W. 1 gave a complaint Ex. P. 1 to Head Constable, who reduced it into writing and explained to him. P. W. 1 affixed his thumb impression. P. W. 2 attested the same. Then he took the deceased accompanied by a Police Constable to Stanley Hospital, Madras along with P. W. 2. On seeing his uncle, the doctor pronounced him dead already. According to this witness, the occurrence took place at about 8. 30 p. m. and there the street light was burning near the place of occurrence. He has identified the full sleeves shirt and full pant worn by Sekar at the time of occurrence and the shirt worn by Babu as M. O. 1, M. O. 2 and M. O. 3 respectively. He has also identified the knife M. O. 4, the weapon of offence. ( 5 ) P. W. 2 is also an ocular witness. He was a co-worker with the deceased in the plantain mandi in Kothavalchavadi. He knew both the accused as well as the deceased, P. W. 1 and their relationship. He claims that on 28/4/1985 at 8 or 8. ( 5 ) P. W. 2 is also an ocular witness. He was a co-worker with the deceased in the plantain mandi in Kothavalchavadi. He knew both the accused as well as the deceased, P. W. 1 and their relationship. He claims that on 28/4/1985 at 8 or 8. 30 p. m. at the junction of Varadhamuthiappan Street and Annapillai Street when he was sitting near a tea shop, he heard the noise of Theivasigamani, the deceased. When he reached there, he saw 4 persons and among whom the appellant, the second accused and the deceased were engaged in a quarrel. According to him, the deceased beat the second accused Babu indiscriminately with his hands. Not able to bear the beatings, Babu took out a folding knife and pretended to stab the deceased. When the deceased tried to escape from the stab, he sustained injury on his right shoulder. Then the deceased overpowered A2 Babu, by twisting the hands of Babu behind his back and caught hold of him. Then, the appellant snatched the knife from Babu and stabbed the deceased on his neck. When the deceased was about to fell down, stabbed the deceased on his stomach and chest. Theivasigamani fell down. Then according to him, he along with P. W. 1 took Theivasigamani to the Police Station. He speaks to the fact of his having attested Ex. P. 1. Afterwards accompanied by one Police Constable, they took deceased to Stanley Hospital, Madras where the doctor on examination pronounced that the deceased had already breathed his last. According to this witness, in the place of occurrence, street light as well as the light in the tea shop were burning. ( 6 ) P. W. 4 Pushpanarayanan is also one of the eye witnesses for the occurrence proper. He is the brother of the deceased Theivasigamani and was working along with him in the plantain mandi in Kothavalchavadi. He corroborates the evidence of P. W. 1 and P. W. 2 with regard to the occurrence proper. He claims that when he was coming through Varadhamuthiappan Street, the cart which was driven by the deceased rubbed a passerby and P. W. 1 who was sitting in the cart, pushed him aside with a view to avoid further rubbing which was followed by the passer-by catching hold of the shirt of P. W. 1. He claims that when he was coming through Varadhamuthiappan Street, the cart which was driven by the deceased rubbed a passerby and P. W. 1 who was sitting in the cart, pushed him aside with a view to avoid further rubbing which was followed by the passer-by catching hold of the shirt of P. W. 1. The deceased got down and beat that person, whose name was Sekar, the appellant herein. Sekar also beat the deceased with hands. At that time, another man who came running there questioned the deceased as to why he was beating Sekar. Therefore, according to this witness, there was a fight between the deceased and the said person. Then the said person took out a knife from his waist and pretended to stab his brother, the deceased. His brother evaded the assault. When A2 Babu tried to stab the deceased, it caused injury on the right shoulder of the deceased. The deceased overpowered Babu (A2) and twisted his hands. Al Sekar, the appellant herein snatched the knife from Babu and stabbed the deceased on his neck, chest and stomach. The deceased fell down with a cry and the assailants ran away in different directions P. W. 1 and P. W; 2 took his brother to the Police Station in a rickshaw because he was frightened on seeing the blood and he sat down. Then he took the cart to his house and along with his relatives, he had been to the Stanley Hospital. He claims that in the place of occurrence, there was light from the street lights as well as lights in the neighbouring tea stall. ( 7 ) P. W. 3 by name Yuvaraj, P. W. 5 by name Seenan, P. W. 6 Nedunchezhian, P. W. 8 Sankaran and P. W. 9 Unnikrishnan though claiming to be the eye witnesses, since they did not support the prosecution Case in the witness box, they were treated as hostile by the prosecution. ( 8 ) P. W. 7 Nagarajan was a resident of Kosha Sahib Street near Varadhamuthiappan Street, doing the job of turner at Royapettah. He claims that he knew the appellant and the second accused Babu. According to him at about five months prior to his deposition, on a Sunday at about 8. 00 or 8. ( 8 ) P. W. 7 Nagarajan was a resident of Kosha Sahib Street near Varadhamuthiappan Street, doing the job of turner at Royapettah. He claims that he knew the appellant and the second accused Babu. According to him at about five months prior to his deposition, on a Sunday at about 8. 00 or 8. 30 p. m. when he came out of his house, he saw the appellant herein stabbing one stout person on his neck, chest and stomach with knife at the junction of Varadhamuthiappan Street and Annapillai Street and then both the accused ran away. The injured fell down. On witnessing the occurrence, he became afraid and went into his house. He is certain that he was examined by police after two days of the occurrence. ( 9 ) P. W. 10 Muthu, a resident of Varadhamuthiappan Street and employed in Rajini tea stallt claims that he knew the appellant as well as the second accused for the last 8 years as they were his regular customers to the shop. According to him at about 8. 45 p.m. on 28. 4. 1985 when he was sitting in front of his room, the appellant came and demanded a shirt. When he obliged, the appellant took his shirt and gave the shirt which he wore at that time which was blood stained. This witness claims that as the shirt given by the appellant was stained with blood, he threw it in the dust bin. At about 10. 45 p. m. he narrated the handing over of the blood stained shirt by the appellant to the Police and pursuant to that, Police recovered the same from the dustbin. M. O. 1 is the bloodstained shirt which was given by the appellant and M. O. 3 is the shirt which he gave to the appellant. ( 10 ) P. W. 11 was examined by the prosecution as corroboration to the evidence of P.W. 10. He claims that he is a resident of Thevarasa Mudhali Street and he knew the appellant, the second accused and P. W. 10. Five months prior to his examination at about 8. ( 10 ) P. W. 11 was examined by the prosecution as corroboration to the evidence of P.W. 10. He claims that he is a resident of Thevarasa Mudhali Street and he knew the appellant, the second accused and P. W. 10. Five months prior to his examination at about 8. 45 p. m. when he was going through Varadhamuthiappan Street, he saw the appellant with the blood stained shirt came running to his opposite direction and took the shirt from P. W. 10 who was in a room near a Kalyana Mandapam and that the appellant changed his shirt and ran away. ( 11 ) P. W. 12 Ramalingam, is an employee of a tea stall at Varadhamuthiappan Street. He speaks to the factum of Police preparing the observation mahazar Ex. P. 2 at about 10 p. m. on a day and he had attested the same. According to him during that time electric lights in the streets were burning. He further speaks about the recovery of the blood stained earth from the place of occurrence under the cover of mahazar and the blood stagnated in the scene of occurrence in a separate mahazar which were marked as Ex. P. 3 and Ex. P. 4 respectively. He along with one Ramakrishnan attested the same. M. O. 6 is the collection of stagnated blood in a tin. M. O. 7 is the blood stained earth. He speaks further about the recovery of blood stained shirt M. O. 1 recovered by the Police under the cover of Ex. P. 5 mahazar attested by this witness which was shown by P. W. 10. ( 12 ) P. W. 13 Muthukrishnan, a resident of Muthu Maistry Street and watchman of Tomato Merchants Association at Kdthavalchavadi claims that at about 2 p. m. on 30/4/1985 Police took him along with one Murugan to exhibition ground at Madras and arrested the appellant herein who was sitting underneath a tree. Police enquired the appellant and reduced it into writing in which he along with the said Murugan affixed their signature. Then he was taken to some other place and he got down near Dharbar Hotel. Then, this witness was treated as hostile and cross-examined by the Public Prosecutor. He admits his signature Ex. Police enquired the appellant and reduced it into writing in which he along with the said Murugan affixed their signature. Then he was taken to some other place and he got down near Dharbar Hotel. Then, this witness was treated as hostile and cross-examined by the Public Prosecutor. He admits his signature Ex. P. 6 in the statement and that he had told the investigating officer, that the appellant had told in his confession that he would show the place where the knife was concealed. ( 13 ) P. W. 14 Jeganathan is also an attester to the mahazar for the recovery of M. O. 4 knife as pointed out by the appellant herein from a place in a drainage situated at Kosha Sahib Lane in Varadhamuthiappan Street. In Ex. P. 7 mahazar he and Perumal attested the same. He was present along with Perumal at the house of the appellant herein where he produced a shirt which belongs to P. W. 10 which was also recovered by the Police under the cover of mahazar Ex. P. 8. ( 14 ) P. W. 15 Anser, a resident of Anderson Street and a rickshaw puller claims that on 1/5/1985 at about 10. 30 p. m. when he was going near the museum, A2 was arrested by the Police and recovered his shirt with blood dots under the cover of mahazar Ex. P. 9 and that shirt was M. O. 8. ( 15 ) P. W. 16 Murugan speaks to the factum of the voluntary confession statement given by the appellant, the admissible portion of which is Ex. P. 8, leading to the recovery of M. O. 4. ( 16 ) P. W. 17 Dr. Adalarasan is the Medical Officer attached to the Stanley Hospital, Madras. He claims that on 26. 4. 1985 at about 9. 02 p. m. P. W. 1, P. W. 2 and P. W. 4 brought one Theivasigamani. P. W. 1 had stated that at the junction of Varathamuthiappan Street and Annapillai Street at about 8. 45 p. m. on that day, Theivasigamani was attacked. Intimation was given to the Police. Ex. P. 11 is the copy of the accident register. When he examined Theivasigamani, he found absence of pulse and heart beat. He found him brought dead. He found the following injuries:1) 3 x 2 411 Incisive wound front Neck Tracheal Rings. 45 p. m. on that day, Theivasigamani was attacked. Intimation was given to the Police. Ex. P. 11 is the copy of the accident register. When he examined Theivasigamani, he found absence of pulse and heart beat. He found him brought dead. He found the following injuries:1) 3 x 2 411 Incisive wound front Neck Tracheal Rings. 2) Two Adjacent similar 3) Incisive wound 3 x 4 x 2 over xiphi sternum 4) 311 x 1/2 x 1 (2 incisive (R) Posterior upper arm. He sent the body to the mortuary. He sent Ex. P. 12 reply to the Police. According to him, the injuries found on the person of Theivasigamani could have been caused by a knife and at the time and manner which he was informed by the person who brought the body. ( 17 ) P. W. 18 Dr. Mrs. Sulochana received requisition Ex. P. 13 from the Inspector of Police, Kothavalchavadi to conduct autopsy on the corpse of Theivasigamani at 11. 15 a. m. on 29. 4. 1985 through P. C. 690 Periasamy attached to Kothavalchavadi Police Station and commenced autopsy at about 11. 30 a. m. on that day. She found the following injuries:1) Incised wound in the middle of neck at the level of thyroid cartilage 2 x 1 (2 x 4 cms. On opening the wound she found that it ran obliquely upwards and towards the right side cutting the trachea Gust below the circoid cartilage) 2 cms in length and causing an incised wound on the right internal Jugular vein 1 x 1 cms. 2) Incised wound at the level of 6th inter costal space left side adjoining the midline 3 x 1 x 4 cms. (running forwards under the skin) cutting the skin and muscle tissue. 3) Incised wound at the level of 9th inter costal space left side 2 1/2 cms from the midline 3 x 1 cms with tailing of the wound cutting through skin. 4) Incised wound on the inner aspect of right upper arm 7 cms. above the right elbow joint 3 x 1/4 cms. skin deep (Linear incised wound ). On internal examination the heart was dissected. Under water escape of air bubbles was noted, on dissecting the right side of heart. On opening the heart, she found that the right side contained frothy blood. above the right elbow joint 3 x 1/4 cms. skin deep (Linear incised wound ). On internal examination the heart was dissected. Under water escape of air bubbles was noted, on dissecting the right side of heart. On opening the heart, she found that the right side contained frothy blood. According to this doctor, the deceased would appear to have died of Air Embolism as a result of the injury to the internal jugular vein right side. Ex. P. 14 is the post mortem certificate given by this witness. According to this doctor also, all the injuries found on the person of the deceased could have been caused by a weapon like M. O. 4 and that injury No. 1 with its corresponding internal injury is necessarily fatal and injury No. 2, 3 and 4 are simple in nature. She further opines that after the first injury, the man could survive only for a few minutes. Because of the cut to the internal jugular vein as well as the trachea, outside air penetrated inside the resulted in Air Embolism. She further opines that injury No. 1 is likely to cause death in the ordinary course of nature. ( 18 ) P. W. 19 is Periasamy, Police Constable 690 attached to Kothavalchavadi Police Station. He was entrusted with the taking of Theivasigamani to Stanley Hospital at about 850 p. m. on 28. 4. 1985. Accordingly, he took him in a rickshaw and produced before the Medical Officer. On examination, Theivasigamani was pronounced dead. Ex. P. 12. death intimation was given by doctor. He handed over the same to the Police station and the section was altered in the F. I. R. As per Ex. P. 13, requisition given by the Inspector of Police, he escorted the dead body of Theivasigamani and guarded during autopsy by P. W. 18 in the Government Stanley Hospital. ( 19 ) P. W. 20, Mr. M. Thiagarajan is the Deputy Cashier working in Metropolitan Magistrates Court. He claims that on 30. 4. 1985 he received the case properties sent by the Inspector of Police, M. O. 5 lungi, M. O. 2 trouser, M. O. 9 red colour waist cord, M. O. 6 blood in a tin, M. 0. 7 blood stained earth, M. O. 1 full sleeves shirt and as per requisition Ex. P. 15 he sent the M. Os for chemical examination. Ex. 7 blood stained earth, M. O. 1 full sleeves shirt and as per requisition Ex. P. 15 he sent the M. Os for chemical examination. Ex. P. 16 is the office copy of the letter of the learned Magistrate. Then on 2. 5. 1985 M. O. 4 knife, M. O. 3 shirt, M. O. 8 shirt were produced under Form 95. As per requisition given by the Inspector of Police, he packed the M. Os separately and sent the same to chemical examiner along with the letter of the learned Magistrate Ex. P. 16. On 14. 5. 1985 he received the report of the Chemical Examiner Ex. P. 18 relating to M. Os. 5, 2, 9, 6, 7,1. According to him in Ex. P. 18 item No. 5 if M. O. 3, item No. 2 is M. O. 2, item No. 6 is M. O. 1. The concerned serologists report is Ex. P. 19. In Ex. P. 19 item No. 1 is M. O. 5, item No. 2 is M. O. 2, item No. 6 is M. O. 9. On 15. 5. 1985 the Chemical Examiners report for M. O. 4 knife was received which is Ex. P. 20. On the same day, Chemical Examiners report for M. Os. 3 and 8 were received which is Ex. P. 21. The Serologists report for those Material Objects was Ex. P. 22. ( 20 ) P. W. 21, K. M. Sundaram, Head Constable 957 attached to Kothavalchavadi Police Station speaks to the fact that on 28. 4. 1985 at about 8. 50 p. m. when he was on duty in the Police Station, P. W. 1 came to the Station and gave an oral complaint. It was reduced into writing by his assistant and P. W. 1 affixed his thumb-impression and P. W. 2 Alagiri attested the same. The complaint is Ex. P. 1. He sent medical memo through P. W. 19. P. W. 1 took Theivasigamani in rickshaw accompanied by P. W. 2. He registered a case in Crime No. 214/1985 on the basis of the complaint under section 326 I. P. C. and prepared the printed copy of F. LR. Ex. P. 23. Within a few minutes P.W. 22 came to the Station and he handed over the records to the Inspector for further investigation. ( 21 ) P. W. 22 Mr. He registered a case in Crime No. 214/1985 on the basis of the complaint under section 326 I. P. C. and prepared the printed copy of F. LR. Ex. P. 23. Within a few minutes P.W. 22 came to the Station and he handed over the records to the Inspector for further investigation. ( 21 ) P. W. 22 Mr. T. A. Lolan, Inspector of Police, attached to CS Police Station Madras claims that on 28. 4. 1985 he returned to the CS Police Station after patrolling at about 9 p. m. He got information about the registration of the case through P. W. 21 and verified it. Then by 9. 20 p. m. P. C. 690 P. W. 19 brought the death intimation Ex. P. 12 and copy of Accident Register Ex. P. 11. He altered the section from 326 I. P. C. to 302 I. P. C. He prepared the express report Ex. P. 24 to the Court. He sent Ex. P. 1, Ex. P. 23, Ex. P. 24, Ex. P. 11 and Ex. P. 12 along with the express report to Court. He sent copies of express report to higher officials. He reached the scene of occurrence at about 9. 30 p. m. and prepared observation mahazar Ex. P. 2 in the presence of P. W. 12 and one Ramakrishnan. He prepared a rough sketch Ex. P. 2s. Then at about 10 p.m. on that day, he recovered M. a. 7 blood stained earth under mahazar Ex. P. 4 in the presence of witnesses who attested it. Then at a distance of 20 feet from that place, he collected stagnation of the blood (M. 0. 6) by 10. 15 p. m. in the presence of P. W. 12 and one Ramakrishnan under Ex. P. 3. At about 10. 45 p. m. in the presence of P. W. 10 and on his information, he recovered the blood stained full sleeves shirt wrapped in English newspaper (M. O. 10) in the presence of P. W. 15 and Ramakrishnan in the dust bin near Guruvaiya Choultry Kalyana Mandapam in Varadhamuthiappan Street under Ex. P. 5. From 11 p. m. to 12 p. m. he searched for the accused in the said area and investigated further. At about 12. 00 p. m. he had been to the Stanley Hospital and examined P. W. 1 and P. W. 2. At about 1. P. 5. From 11 p. m. to 12 p. m. he searched for the accused in the said area and investigated further. At about 12. 00 p. m. he had been to the Stanley Hospital and examined P. W. 1 and P. W. 2. At about 1. 00 p. m. he examined P. W. 3. On 29. 4. 1985 between 6. 00 a. m. and 10. 00 p. m. conducted the inquest and examined P. Ws. 1 to 3 and examined other witnesses. His inquest report is Ex. P. 26. He gave requisition Ex. P. 13 for the conduct of autopsy on the corpse through P. W. 13. On 29/4/1985 at about 2. 30 p. m. he recovered LUNGI (M. O. 5), trouser (M. O. 2) and waist cord (M. O. 9) from the dead body under mahazar Ex. P. 27. On 30/4/1985 at about 3 p. m. on information, in the presence of P. W. 13 he arrested the appellant herein on the northern bank of Goovam River near the Island exhibition ground underneath a tree and recorded the statement given by him voluntarily in which he had stated that he would show the place of concealment of M. O. 4 knife and that he would hand over the shirt belonging to Muthu. That admissible portion was marked as Ex. P. 28. ( 22 ) THEN on the same day at about 4 p. m. the appellant showed a pit in the drainage situated on the northern side comer of Kosha Sahib Lane in Varadhamuthaiappan Street. The appellant searched and he got nothing. Followed by the search made by P. W. 14 the witness took from that place M. O. 4 knife which was recovered under Ex. P. ? in the presence of P. W. 14 and witness Perumal. Then at about 5 p. m. on that day, the appellant produced the shirt belonging to Muthu (M. O. 3) under mahazar Ex. P. 8. He sent the appellant to judicial custody on 1. 5. 1985. Then, on information, he arrested the second accused and from him he recovered clothes (M. O. 8) in the presence of P. W. 15 and P. W. 9 under mahazar Ex. P. 9. He sent him to judicial custody on 2/5/1985. After examination the doctor who conducted autopsy over the dead body, he gave requisition to the Court to send M. Os. P. 9. He sent him to judicial custody on 2/5/1985. After examination the doctor who conducted autopsy over the dead body, he gave requisition to the Court to send M. Os. 1,2,6,7,9 and 5 for chemical examination. On 2. 5. 1985 he sent requisition to send M. Os. 4, 3 and 8 for chemical examination. On 3. 5. 1985 he examined Dr. Adalarasan P. W. 1?, P. W. 4, P. W. 8, P. W. 9 and other witnesses. Then on verifying with the Chemical Examiners report received by the Court and completing the investigation, he laid charge-sheet against the accused in the Court on 22. 5. 1985. ( 23 ) WHEN the accused were examined by the learned trial Judge on the basis of the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime and further added that when they were in their house, the Inspector took them to the Police Station and foisted a case. But they did not choose to examine any witnesses on their side. ( 24 ) ON assessing and considering the entire evidence tendered by the prosecution against both the accused, the learned trial Judge found that the prosecution has not established the case against the second accused namely Babu for the offence charged under Section 302 read with 34 I. P. C. and thereby acquitted him. But found the appellant guilty under section 302 I. P. C. convicted and sentenced him to imprisonment for life as already referred (supra ). ( 25 ) WE have heard the arguments of the learned Senior Counsel Mr. N. Natarajan on behalf of the appellant and of the learned Additional Public Prosecutor, Mr. S. Shanmughavelayutham for the State. ( 26 ) MR. N. Natarajan, the learned Senior Counsel contended that firstly the oral testimony of P. W. 1, P. W. 2 and P. W. 4 who spoke to occurrence proper in detail are not at all reliable and they were not the witnesses speaking the truth and that besides their interestedness, they were all planted by the investigating staff for the purpose of the prosecution case; and that secondly, even so, the First Information Report marked as Ex. P. 1 and the inquest report prepared by P. W. 22 the investigating officer on 24. 1985 clearly expose the falsity of the claim made by the ocular witnesses namely P. Ws. P. 1 and the inquest report prepared by P. W. 22 the investigating officer on 24. 1985 clearly expose the falsity of the claim made by the ocular witnesses namely P. Ws. 1,2 and 4; and that thirdly, in this context, the documentary evidence available through Ex. P 1 and Ex. P. 26 are in direct conflict and inconsistent with the oral testimony of the ocular witnesses P. Ws. 1, 2 and 4, and that fourthly, the second accused Babu has been found not guilty of any offences charged on the same pauern of evidence given by P. Ws. 1, 2 and 4 quite contrary to the documentary evidence of Ex. P. 1 and Ex. p. 26. The said documentary evidence led in by the prosecution destroys the whole fabric of the case against the appellant herein and that fifthly, the learned Senior Counsel attacks the arrest of the appellant and the consequent voluntary confession statement alleged to have been given by the appellant leading to the recovery of M. O. 4 from the drainage and that as a whole, the said aspect of the recovery under Section 27 of the Indian Evidence Act was a mere mockery and cannot be relied on for sustaining the conviction of the appellant and lastly that the prosecution had virtually failed to establish the guilt of the appellant herein for the offences charged against him and that apart the investigation done in this case also rendered equal contribution in the failure to prove the guilt of the appellant. In all, the learned Senior Counsel pleaded that the appeal is to be allowed and the appellant acquitted. ( 27 ) PER contra, Mr. S. Shanmughavelayutham, learned Additional Public Prosecutor placed his reliance on the testimony of P. Ws. 1, 2 and 4 plus the medical evidence and the perfect investigation done in this case all projected towards the establishment of the guilt of the appellant in causing the death of deceased Theivasigamani on the relevant night and time and that therefore the finding by the learned Sessions Judge of the appellant guilty under Section 302 I. P. C. and the consequent conviction and sentence is to be maintained. ( 28 ) BEFORE analysing the oral testimony of the ocular witness who support the prosecution case viz. P. W s. 1,2 and 4, we feel it proper to scrutinise the complaint Ex. ( 28 ) BEFORE analysing the oral testimony of the ocular witness who support the prosecution case viz. P. W s. 1,2 and 4, we feel it proper to scrutinise the complaint Ex. P. 1 given by P. W. 1 on 28. 4. 1985 and then the inquest report Ex. P. 26 prepared by P. W. 22 on 29/4/1985. It is the claim of P. W. 1 that after the occurrence was over on 28. 4. 1985, he along with P. W. 2 Alagiri took the injured Theivasigamani in a cycle rickshaw to C. 5 Kothavalchavadi Police Station and there he gave the oral complaint to the Head Constable P. W. 21 which was reduced into writing by the assistant of P. W. 21, read over and explained to P. W. 1, then his thumb impression was obtained. P. W. 2 Alagiri who accompanied P. W. 1 attested the same: Therefore, the evidence of P. W. 1, P. W. 2 and P. W. 21 Head Constable clearly project the fact that at about 8. 50 p. m. on 28. 4. 1985 when P. W. 21 was in the Police Station on duty, P. W. 1 and P. W. 2 came to the Station along with the deceased in a cycle rickshaw and gave the oral complaint which was reduced in writing by the assistant of P. W. 21. After having read over and explained to him it was registered in Kothavalchavadi Police Station Crime No. 214 of 1985 under Section 326 I. P. C. against the appellant and the accused who was acquitted by the learned trial Judge. Ex. P. 23 is the original First Information Report prepared by P. W. 21. In Ex. P. 1 as rightly pointed out by the learned Senior Counsel for the appellant P. W. 1 was so specific about the complicity of both the accused viz, the appellant and, the acquitted accused. For the purpose of appreciating this aspect, we feel it better to extract the very words stated to have been given by P. W. 1 reduced in writing. Matter in Regional Language From the above extract of Ex. P. 1 it is very clear that both the appellant and the acquitted accused assaulted the uncle of P. W. 1, the deceased indiscriminately. Matter in Regional Language From the above extract of Ex. P. 1 it is very clear that both the appellant and the acquitted accused assaulted the uncle of P. W. 1, the deceased indiscriminately. Then A2 stabbed the deceased indiscriminately with the knife in his hand, then getting that knife the appellant also indiscriminately stabbed his uncle. His uncle came running with bleeding injuries and fell down in the street. Then both the persons ran in different directions. The oral testimonies of P. W. 1 when examined before the trial Court during Chief Examination are extracted. Matter in Regional Language In Ex. P. 1 P. W. 1 has stated at the earliest point of time viz, at about 8. 50 p. m. on 28. 4. 1985 immediately after the occurrence to P. W. 21 that when he was in the Meen-body cart driven by his deceased uncle and came at the junction of Annapillai Street in front of Pillaiyar temple, the cart rubbed against one person and with a view to avoid further rubbing, P. W. 1 had pushed him aside by sitting in the cart itself followed by the e gave person pushed aside catching hold of the shirt of W. 21 P. W. 1 with abusive language. When the deceased questioned him, got down from the cart and beat him, another person who came along with him beat his uncle. At that time, according to P. W.1 his uncle referred his name Sekar and said Sekar, you too beat me. Then the overt-act of both the appellant and the acquitted accused followed, namely the said two persons beat his uncle indiscriminately with their hands and the acquitted accused stabbed his uncle indiscriminately with his knife, then with the same knife, the appellant also stabbed his uncle-indiscriminately. Then, according to P. W. 1, the injured came running to the road and fell down. Then both the persons ran away in different directions. Then, according to P. W. 1, the injured came running to the road and fell down. Then both the persons ran away in different directions. But it is seen that during testimony before trial Court P. W. 1 had absolved the second accused from his overt-act contrary to his earlier statement made in the complaint by claiming that when the cart in which P. W. 1 was sitting and driven by the deceased approached the junction of Annapillai Street and Varathamuthiappan Street, it rubbed against one he person and with a view to avoid further rubbing, P. W. 1 pushed him aside by sitting in the cart itself. It was followed by the said person pushed aside catching hold of the shirt of P. W. 1. Then, his uncle got down from the cart and referred that person as Sekar, the first accused/the appellant herein and asked him why he beat P. W. 1. It is seen that P. W. 1 has shifted the overt-act to the appellant herein instead of the acquitted accused. The appellant was claimed to have been present in Court and he was identified as the first accused by P. W. 1. P. W. 1 further claimed that his uncle beat the appellant also and that at that juncture A2 came running and questioned his uncle why he beat the appellant and for which he claims that his uncle had asked the acquitted accused as to whether he too intended to beat him. By claiming so, P. W. 1 has identified the second acquitted accused as Babu in Court. Then he claims that his uncle beat Babu also. ( 29 ) THEN P. W. 1 manifestly developed or improved his imaginary theory during the box by stating that the second acquitted accused Babu took a knife and pretended to stab his uncle and that when his uncle attempted to escape, he sustained injury on his right shoulder followed by his uncle over powering the second accused by twisting both the hands of the second accused on his back. Then, at that time, the appellant herein snatched the knife from the second accused and stabbed his uncle on his neck, chest and stomach which caused his uncle to fall down. Then, at that time, the appellant herein snatched the knife from the second accused and stabbed his uncle on his neck, chest and stomach which caused his uncle to fall down. ( 30 ) THUS, it is clear from the above extract that P. W. 1 has improved his theory of overt-act of the accused by shifting the complicity from the second accused to the appellant herein, during his performance before the trial Court for the reasons best known to himself. ( 31 ) OF course, the above version of P. W. 1 is totally inconsistent and in direct conflict with his statement given in Ex. P. 1 and Ex. P. 23. It is significant to note that even with regard to the back drop of the occurrence proper, there is a major and vital change with regard to the complicity and the overacts of both the accused according to the evidence of this witness. It is seen that in Ex. P. 1, the person against whom the vehicle in which P. W. 1 and the deceased came rubbed was the second accused in the complaint Ex. P. 1 and consequently the second accused was pushed aside by P. W. 1 with a view to avoid further rubbing, upon which the second accused caught hold of the shirt of P. W. 1, followed by the deceased getting down from the cart and questioning the second accused and beating him. Then, the appellant also came to the rescue of the second accused who was also equally beaten by the deceased which is prior to the actual attack perpetrated upon the deceased by lethal weapon like knife. But in the evidence before the trial Court, such kind of overt-act namely, the rubbing and the earlier quarrel and beating with hands has been attributed to the appellant herein for the obvious reasons known to P. W. 1 after a lapse of five months from Ex. P. 1. 31. But when he was cross-examined, P. W. 1 admits that when the back drop incident of rubbing the persons going in the street happened, the appellant alone was present and the second accused was not in the scene but he came there within five minutes. He was so definite in pushing aside the appellant when his cart rubbed him and that consequently the appellant caught hold of his shirt and beat him. He was so definite in pushing aside the appellant when his cart rubbed him and that consequently the appellant caught hold of his shirt and beat him. He went one step further that the appellant had not only abused him but also beat him and claimed that he had stated so in Ex. P. 1. also. This aspect of the oral testimony of P. W. 1 is a new claim not found either in the First Information Report or in his chief examination. But subsequently in his cross examination, he admits that he had stated that the cart rubbed against A2 and consequently he caught hold of his shirt which was followed by his uncle stopping the cart and beating him. (The note put by the trial Judge was that P. W. 1 claims that he has stated so by slip of the tongue ). But he claims that he had stated in his complaint that the second accused pretended to stab with his knife. It is pertinent to note that he was so categoric that he has not stated so in his complaint that the second accused stabbed the deceased indiscriminately. ( 32 ) P. W. 2 another ocular witness claimed before the trial Court that the deceased Theivasigamani beat the second accused in this case indiscriminately with his hands ,and that not able to bear the beatings, the second accused took a knife but pretended to stab him. When the deceased tried to escape, he sustained injury on his right shoulder, followed by the deceased twisting both the hands of the second accused behind his back and that the appellant snatched the knife from the hands of the second accused and stabbed the deceased on his neck. When the deceased put his hand on the stab on his neck and was about to fall down, the appellant stabbed him on his chest and stomach, then he fell down. It is seen that this witness merely endorsed the oral claim of P. W. 1 relating to the stabbing of the deceased by the appellant but absolved the second accused from any overt-acts except catching hold of the shirt of P. W. 1. It is seen that this witness merely endorsed the oral claim of P. W. 1 relating to the stabbing of the deceased by the appellant but absolved the second accused from any overt-acts except catching hold of the shirt of P. W. 1. But the embellishment in so far as this witness P. W. 2 is concerned is that he has claimed that the deceased Theivasigamani beat the second accused indiscriminately with his hands immediately prior to the stab and that not able to withstand the beatings, the second accused took a knife and pretended to stab him. This aspect of the evidence is a new story narrated by this witness not spoken by P. W. 1 or any other witness. When he was confronted with the above said aspect during cross examination, he has claimed so. But it has to be seen that this witness had claimed that he had not stated so during inquest that the second accused had stabbed the deceased indiscriminately with the knife as well as both the accused abused him. But he admits that he has stated during inquest that the appellant had snatched the knife from the second accused and stabbed the deceased. But he qualifies his answer that he had not stated that the appellant had not stabbed Theivasigamani during the inquest. ( 33 ) FROM the above testimony of P. W. 2, it has been made very clear that for the purpose of private defence A2 had taken the knife when he was beaten indiscriminately by the deceased and when he pretended to stab the deceased who beat him, he was overpowered. Then, the appellant came, snatched the knife and stabbed the deceased indiscriminately. This aspect of beating the second accused by the deceased was not the claim of the other ocular witnesses and it is not the case put forward in the First Information Report or the complaint. Therefore, it has been very clear that this witness P. W. 2 is not speaking the truth because he could not have witnessed the occurrence proper and that was the reason why, he was not able to narrate the occurrence proper. Therefore, it has been very clear that this witness P. W. 2 is not speaking the truth because he could not have witnessed the occurrence proper and that was the reason why, he was not able to narrate the occurrence proper. If really this witness could have witnessed the occurrence proper, there is no reason why his claim that the deceased beat the second accused indiscriminately has not been claimed by P. W. 1 either ill the complaint or in the evidence before the trial Court. ( 34 ) THE accounting of P. W. 1 also seems to be very artificial and unnatural and bristles with very serious doubt for the simple reason that there is direct conflict and inconsistency with his claim in the complaint and First Information Report on the one hand and the oral testimony given before the trial Court after a lapse of five months from the date of Ex. P. 1 and Ex. P. 23 on the other hand. When P. W. 2 was confronted in the cross-examination by the learned counsel for the accused, he claims that he has not stated so during inquest that the second accused Babu had stabbed the deceased indiscriminately as well as both the accused abused the, deceased. But he admits that he had stated during inquest that the appellant had snatched the knife from the second accused and stabbed the deceased, in the same breadth. It has to be noted that P. W. 2 has stated that during inquest he has not stated that the appellant stabbed the deceased indiscriminately with the knife in his hand. With regard to this aspect of the claim of P. W. 2, P. W. 22 the Inspector of Police has stated that he has prepared the inquest report on the basis of the statement given by the ocular witnesses who were examined during inquest and that accordingly P. W. 22 admits that in the inquest report Ex. P. 26 in Column 15 it was stated that both the appellant and the acquitted accused stabbed the deceased indiscriminately with the knife and that the said witnesses gave statement before P. W. 22 that both the accused stabbed the deceased indiscriminately. P. 26 in Column 15 it was stated that both the appellant and the acquitted accused stabbed the deceased indiscriminately with the knife and that the said witnesses gave statement before P. W. 22 that both the accused stabbed the deceased indiscriminately. When further qualified, P. W. 22, the Investigating Officer admitted that the ocular witnesses stuck to their claim during inquest as they gave a statement before him with regard to both the accused stabbing the deceased indiscriminately with the knife. Thus, it is seen that P. W. 2 also like P. W. 1 shifted his stand very materially from that of his statement given before P. W. 22 to that of his oral testimony before the trial Court and that whereupon P. W. 2 has joined hands with P. W. 1 in attributing the major culpability only to the appellant herein and absolved the complicity of the second accused in the crime. ( 35 ) THE next ocular witness to the actual occurrence proper is P. W. 4, Pushpanarayanan. He is admittedly the younger brother of the deceased Theivasigamani and was living with him and his parents, doing cooli work at the plantain mandi at Kothavalchavadi. He also supported the oral testimony of P. Ws. 1 and 2 as was given before the trial Court. But he claims that after the occurrence, he did not do anything because he sat down as he was terribly afraid of the incident. Admittedly, he was examined by the Inspector of Police only after 3 days. He did not evince any interest to go and give any statement before the Police for about 3 days. It is significant to note that he failed to give any statement or inform P. W. 22 even during inquest on the next day when the major portion of investigation was done in the scene of occurrence. The only explanation as per this witness was that he was not keeping well and that, therefore, he was notable to give any statement before the investigating officer. But it has to be seen that he was present all along. The only explanation as per this witness was that he was not keeping well and that, therefore, he was notable to give any statement before the investigating officer. But it has to be seen that he was present all along. While analysing the evidence of P. W. 4, we find it very difficult to accept his oral claim for the simple reason that he has not come forward to give any statement before the investigating officer but he was examined by P. W. 22 only after 3 days, even though he was present all through, if such a person was fixed as one of the occurrence witnesses as claimed. That apart, though the person who was stabbed by third parties and caused bleeding injuries, was taken in a rickshaw to the Police Station and hospital, it has to be noted that this witness took the Meen-body cart to his own house and thereafter went to the hospital along with his relatives. He claims in his cross-examination that he did not know to which place his deceased brother was taken in the rickshaw. The very attitude and the conduct of this witness creates very serious suspicion over his oral testimony and it has to be noted further that he has narrated actually the versions of P. Ws. 1 and 2. ( 36 ) THUS, on a careful perusal of the accounting of P. Ws. 1, 2 and 4 who according to the learned trial Judge supported the prosecution case were uniform in attributing the overt act only to the appellant herein, namely the first accused in stabbing the deceased through their oral testimony. But their case narrated to the investigating officer namely P. W. 22 at the earliest point of time during their interrogation and inquest report, it is seen that both the appellant and the second accused indiscriminately stabbed the deceased with the knife in their hands as was clearly evident from the inquest report Ex. P. 26. In this respect, as we have already observed, Ex. P. 1 the complaint given by P. W. 1 and attested by P. W. 2 at the earliest point of time in setting the law in motion against the culprits was on par with Ex. P. 26 the inquest report which was prepared on the basis of their statement given prior to and during inquest conducted by P. W. 22. P. 1 the complaint given by P. W. 1 and attested by P. W. 2 at the earliest point of time in setting the law in motion against the culprits was on par with Ex. P. 26 the inquest report which was prepared on the basis of their statement given prior to and during inquest conducted by P. W. 22. ( 37 ) P. W. 3 Yuvaraj, P. W. 5 Seenan, P. W. 6 Nedunchezhian, P. W. 8 Sankaran, P. W. 9 Unnikrishnan though they were cited as ocular witnesses, since they did not support the prosecution with regard to the complicity of the appellant and the other accused they were treated as hostile. On a perusal of their evidence, no part of their testimony can be relied on. ( 38 ) THE oral testimony of P. W. 7 Nagarajan also requires strict scrutiny. Though he claims that he was one of the occurrence witnesses, he has claimed that at the junction of Annapillai Street and Varathamuthiappan Street, the appellant stabbed one stout person on his neck, chest and stomach and that afterwards both the accused ran away and the stabbed person fen down, it is seen that out of fear this witness claims that he ran into his house. Thereafter, he did nothing. But only after two days, he was examined by Police. The explanation for his inaction was that he was affected with fever. On a careful scrutiny of the evidence of this witness, we feel totally unsafe to place any reliance on the evidence of this witness for the simple reason that he was examined by the Police only after two days and his subsequent conduct and inaction did not place him in a better position than P. W. 4. Moreover, though he claims that he knew both the accused, he has not identified the person who was assaulted at the relevant time of occurrence. In so far as establishing the guilt of the accused, in our firm view, the testimony of this witness P. W. 7 did not render any help to the prosecution. ( 39 ) AS we have already pointed out, there is a major and material shifting in the case of the prosecution from the one narrated at the time of Ex. ( 39 ) AS we have already pointed out, there is a major and material shifting in the case of the prosecution from the one narrated at the time of Ex. P. 1 and during investigation on the next day of occurrence, namely, the inquest and the examination of the ocular witnesses to the oral testimony tendered before the trial Court after a lapse of five months. This assumes every significance and importance in the sense that the culpability of the second accused namely Babu as was referred to and stated in Ex. P. 1 and Ex. P. 26 has been changed totally by the prosecution through the ocular witnesses P. Ws. 1, 2and4 presumably with a view to save or enable the second accused to have an escape from the clutches of law for the offences committed and that was the reason why the ocular witnesses had chosen their shifting during their performance before the trial Court. This conclusion of ours is fortified by the fact that on seeing the Accident Register Ex. P. 11 given by P. W. 17 Dr. Adalarasan and his description of the wounds as well as the postmortem certificate Ex. P. 14 the prosecution has fixed the overt acts of both the accused preferably to save the second accused. It has become relevant to note that in Ex. P. 11 and Ex. P. 14, the medicos P. W. 17 and P. W. 18 have found only four ante-mortem injuries. It has become necessary to note that according to P. W. 18 the autopsy doctor, injury No. 1 with its corresponding internal injury alone was necessarily fatal and would cause death in a few minutes after it was inflicted. The first injury is an incised wound found in the middle of neck at the level of thyroid cartilage 2 x 1/2 x 4 cms with its corresponding internal injury cutting the internal jugular vein and so on. Injury Nos. 2, 3 and 4 were found on the 6th intercostal space left side adjoining the midline 3 x 1 x 4 cms cutting the skin and muscle tissue, 6th inter costal space left side 2 1/2 cms from the midline 3 x 1 cms and on the inner aspect of right upper arm 7 cms above the right elbow joint 3 x 1/4 cms, respectively injury Nos. 2, 3 and 4 were simple in nature Injury No. 1 alone with its corresponding internal injury was necessarily fatal. This claim of the autopsy doctor was fortified by the claim of P. W. 17 Dr. Adalarasan who had seen the deceased at the first instance and noted down injuries in the Accident Register Ex. P. 11. Therefore, it was made clear that there were four injuries found on the body of the deceased and among which injury No. 1 alone was fatal and injuries 2 to 4 were simple in nature. Except these 4 injuries, no other injuries were found on the person of the deceased. ( 40 ) IF we take the claim of the prosecution case found in Ex. P. 1 and Ex. P. 26 which came into existence at the earliest point of time immediately after the occurrence and before seeing Ex. P. 11 and Ex. P. 14, it has to be noted that there would have been a number of injuries found on the person of the deceased because it was the consistent and uniform claim of P. W. 1 and P. W. 2 and P. W. 4 that both the accused namely the appellant and the acquitted accused stabbed the deceased indiscriminately with the knife in their hands. Therefore, keeping in view the object of helping the second accused from the clutches of law, after having perused the Accident Register Ex. P. 11 and the post mortem certificate Ex. P. 14, it was manifest that the ocular witnesses namely P. Ws. 1, 2 and 4 had decided to take the major shifting of their own version in order to help the second accused by attributing the entire overt acts upon the first accused and that pursuant thereto, they had come forward with a different story before the Sessions trial. ( 41 ) IN Ex. P. 1 it was made specific by P. W. 1 that both the accused beat the deceased indiscriminately and during the said sojourn, the second accused Babu stabbed the deceased indiscriminately with the knife in his hand and with the knife snatched from his hand, the appellant stabbed him indiscriminately. On the basis of this complaint, according to the evidence of P. W. 22, P. Ws. 1,2 and 4 had given statement before him and during the inquest only on the basis of which Ex. On the basis of this complaint, according to the evidence of P. W. 22, P. Ws. 1,2 and 4 had given statement before him and during the inquest only on the basis of which Ex. P. 26 was prepared by him. Significant at this stage to note that P. W. 2 was present when the complaint Ex. P. 1 was given, reduced in writing: read over and explained and admitted by P. W. 1 as correct and affixed his thumb impression and P. W. 2 has attested the same. ( 42 ) ONE another important aspect found in Ex. P. 1 is that either P. W. 1 or P. W. 2 have not fixed the place atleast one or two over which the stabbing given by both the accused fell upon the body of the deceased. But it has to be seen that while swearing in the box during trial, the author and attester of Ex. P. 1 claim and identify the places on which the stabbing by the accused fell as neck, chest and stomach. This aspect of the evidence clearly demonstrates and fortifies our view that the performance by the ocular witnesses viz. P. Ws. 1,2 and 4 was only after seeing the Accident Register as well as post mortem certificate. That was the reason why P. Ws. 1 and 2 were not able to fix even the place where the injuries caused by the stabbing of either of the accused at the earliest point of time. ( 43 ) WE may now proceed to consider the inquest report Ex. P. 26 prepared by P. W. 22 after the inquest between 7 a. m. and 10 a. m. on 29/4/1985. It is seen in column No. 9 it has been stated that while the deceased was driving the Meen-bodyt cart coming through the junction of Annapillai Street and Varathamuthiappan Street, it rubbed both the accused. Both the accused and the deceased indulged in exchange of harsh words, created enmity and whereupon, both the accused Babu and Sekar joined together and stabbed Theivasigamani with the bichuwa-knife in their hand upon neck, chest and other places and caused injuries and due to which Theivasigamani died. In column 15 also, it has been stated that both Babu and Sekar stabbed Theivasigamani with bichuwa-knife in their hands indiscriminately upon his neck, chest and right hand and caused injuries. In column 15 also, it has been stated that both Babu and Sekar stabbed Theivasigamani with bichuwa-knife in their hands indiscriminately upon his neck, chest and right hand and caused injuries. With regard to the completion of this document Ex. P. 26, P. W. 22 drew his testimony before the trial Court claims that only on the basis of the ocular witnesses and their statement given to him, he had stated so in column 9 and 15 of the inquest report Ex. P. 26. It has to be noted that Ex. P. 26 inquest report bears the signature of the learned Magistrate and the date seal of the Court on 1/5/1985. Therefore, it is seen that this document has reached the Court only on 1. 5. 1985. Thus, there is a delay of two days for this document to reach the Court. However, the ocular witnesses P. Ws. 1, 2 and 4 and other witnesses who were examined during the inquest made P. W. 22 who examined them and prepared the inquest report to fix the overt acts for both the accused as having stabbed the deceased with bitchuwa knife in their hands indiscriminately. But significantly in this inquest report, the injuries found on the body of the deceased have been fixed in column Nos. 9 and 15. Pertinent at this stage to note that Ex. P. 11 the copy of the Accident Register was given by P. W. 17 on 28/4/1985 itself and on perusal of the same, the investigating staff and other prosecution witnesses were able to see the number of injuries found on the person of the deceased and the portion of his body where the injuries were found. We would make it clear that only after seeing the copy of the accident register Ex. P. 11, the inquest report was prepared on the next day namely 29/4/1985 and in which the places where the injuries were found was fixed and before that nobody knew about the number of injuries, the places or parts of the body where they were caused, the nature and who caused the injury among both the accused and that was the reason why P. W. 1 and P. W. 2 were not able to give the above details in Ex. P. 1. P. 1. ( 44 ) WE are fully conscious of the fact that in a First Information Report, there exists no need to describe each and every aspect of the prosecution case in detail but with regard to the material and very vital aspects namely, fixing up of the identity of the accused who caused the fatal injury and the place where it has been caused and the number of injuries, are very vital aspects to have been stated by the eye witnesses at the earliest point of point. In this regard, we are of the definite view that P. W s. 1, 2 and 4 were not aware of the identity of the actual accused among both, who caused the fatal injury by stabbing with knife or a bitchuwa knife and the other injuries in numbers and the portions of the body where the said injuries had been caused and that only afterwards on coming to know of the said details through Ex. P. 11, the same was stated to some extent on the next day only when the inquest report Ex. P. 26 was prepared. ( 45 ) HOWEVER, the major shifting of the overt acts among the accused by the ocular witnesses of the prosecution came into existence subsequently during trial and consequently the second accused was acquitted by the learned trial Judge and the case ended in conviction of the appellant herein for the charges framed against him. ( 46 ) IN para 10 of the judgment rendered by the learned trial Judge, the learned trial Judge found that the testimony of P. W. 1 the ocular witness and the author of Ex. P. 1 was varied to a large extent from that of his complaint Ex. P. 1 and that the accounting of P. Ws. 1,2 and 4 also were varied in respect of the claim that the rubbing of the cart driven by the deceased and P. W. 1 sitting against the identity of the accused and the consequent quarrel that happened among themselves. The learned trial Judge found further that P. Ws. 1, 2 and 4 gave their oral testimony against the appellant herein very seriously but so lightly against A2 during their evidence before him. While finding so, it was unfortunate that the learned trial Judge came to the conclusion that the evidence of P. Ws. The learned trial Judge found further that P. Ws. 1, 2 and 4 gave their oral testimony against the appellant herein very seriously but so lightly against A2 during their evidence before him. While finding so, it was unfortunate that the learned trial Judge came to the conclusion that the evidence of P. Ws. 1 and 4 were similar and concurrent relating to the overt acts of the first accused, namely the appellant herein and thereby recording a finding against him and acquitted the second accused. At this stage, we have to point out that the observation of the learned trial Judge at the end of paragraph 10 of his judgment that in Ex. P. 1 it has been stated that the first accused namely the appellant herein snatched the knife from the second accused and stabbed Theivasigamani indiscriminately which was consistent with the claim of P. W. 1 tendered before him during the trial also. But it was very unfortunate that the learned trial Judge has ignored the narration of the other portion of the aspect that both the accused beat the deceased discriminately and then Babu stabbed the deceased with the knife he was having indiscriminately and having snatched that knife then Sekar stabbed the deceased indiscriminately. Then the deceased ran towards the road and fell down. The very statement that the second accused Babu first stabbed the deceased with the knife indiscriminately has been overlooked and ignored by the learned trial Judge while coming to the above conclusion. Therefore, the finding of the learned trial Judge in paragraph 10 of his judgment that the evidence tendered by P. Ws. 1 when he was in the box against the appellant as since been narrated in Ex. P. 1 also cannot be brushed aside is clearly erroneous and cannot be accepted in our considered view. In this regard, we are inclined to observe that the learned trial Judge had clearly fallen into error in analysing the oral and documentary evidence led in by the prosecution through P. W. 1 more particularly, the vital material and total shifting adopted by the author of Ex. P. 1 from his original stand to the one during witness box is not to be accepted in any event and that was also followed by the evidence tendered by P. Ws. P. 1 from his original stand to the one during witness box is not to be accepted in any event and that was also followed by the evidence tendered by P. Ws. 2 and4 on par with the claim of P. W. 1 relating to the shifting of the culpability of the second accused to that of the first accused namely the appellant herein. ( 47 ) IF any legal credence is to be attached upon the theory of the prosecution witnesses on the basis of Ex. P. 23 and Ex. P. 26, we find the medical evidence rendered by P. W. 17 and P. W. 18 through Ex. P. 11 and Ex. P. 14 is not rendering any support to the claim of the ocular witnesses in the context that no injuries barring the injuries found in Ex. P. 11 and Ex. P. 14 are available. Therefore, this aspect fortifies our observation that only after coming to know of the number and place of injuries found in Ex. P. 11 and with a view to save the second accused, the ocular witnesses namely P. Ws. 1,2 and 4 have decided to help the second accused to have an escape from the clutches of law for having stabbed the deceased and that therefore, it was manifest that they had entertained the above referred shifting in their mind foisting the entire liability on the first accused namely the appellant herein in attributing the injuries found on the body of the deceased as per Ex. P. 11 and Ex. P. 14 which under law cannot be permitted. ( 48 ) AT this stage, we may note that the interval between Ex. P. 1 and Ex. P. 26 and the trial during which the eye witnesses had accounted the overt acts of the accused was about 5 months and in the middle of that period the ocular witnesses had determined their shifting of the complicity of the accused in the crime mainly to the first accused viz, the appellant herein. ( 49 ) IT has to be seen that the trial Judge also found that the overt act of both the accused in its individual mode has not been noted in Ex. P. 26 by P. W. 22. ( 49 ) IT has to be seen that the trial Judge also found that the overt act of both the accused in its individual mode has not been noted in Ex. P. 26 by P. W. 22. The learned Judge has also accepted the right thing to be followed in preparing the inquest report by the investigating officer and that noting down in column 9 and 15 of the inquest report of his own opinion by the investigating officer was accepted as not correct. There cannot be any two views that the inquest report expected to be mandatorily prepared was only with the avowed object of bringing true facts to the Court after ascertaining the cause of death on the basis of the evidence and statement given by the witnesses examined during the inquest at the earliest point of time. But however, the reasoning given by the learned trial Judge in accepting the entirely changed version of the inquest witnesses during their performance in the trial quite contrary to the complaint and the inquest report namely Ex. P. 1 and Ex. P. 26 cannot be accepted for any purpose. Having accepted Ex. P. 1 the complaint and the printed First Information Report Ex. P. 23, we are of the definite view that the learned trial Judge failed to appreciate the major and considerable shift of their stand from their case at the earliest point of time to the one subsequently as was found during the examination before the trial Court. It, therefore, follows that we are constrained to hold that having accepted the complaint Ex. P. 1 and printed copy of First Information Report Ex. P. 23 and Ex. P. 26 the inquest report as claimed by P. W. 22 the investigating officer, accepting the oral testimony of P. Ws. It, therefore, follows that we are constrained to hold that having accepted the complaint Ex. P. 1 and printed copy of First Information Report Ex. P. 23 and Ex. P. 26 the inquest report as claimed by P. W. 22 the investigating officer, accepting the oral testimony of P. Ws. 1, 2 and 4 inherent with the major shifting and change of their version during the subsequent performance during trial that the learned judge has not given the reasoning or finding, but however, fallen into error in accepting their twisted and changed ocular testimony which no law will recognize in sustaining a conviction for an offence under Section 302 I. P. C. ( 50 ) COMING to the aspect of recovery, more particularly with regard to M. O. 1 made by P. W. 22, the shirt claimed to have been worn by the appellant herein on the night of occurrence, we may observe that the claim of P. W. 10 who led to the recovery of the said M. O. 1 by P. W. 22 cannot be accepted for the simple reason, that the moment the appellant demanded a shirt from P. W. 10 Muthu, he obliged by giving him his shirt and that in return the appellant gave his blood stained shirt but the witness allowed the appellant to go away with his shirt and that afterwards, P. W. 10 threw the shirt with blood stains in the dust bin because it was found stained with blood. Time for this incident according to this witness was at about 8. 45 p. m. on 28. 4. 1985 but it is strange and against natural human conduct that even after he noticed the shirt with blood stains he never questioned the appellant as to how the blood stains were found in his shirt. Even so, this witness claims that he threw it away in the dust bin, and kept quiet without informing anybody. But curiously enough, on seeing the Inspector of Police and his party going through the said road, at about 10. 45 p. m. on that night, he claims that he informed the Inspector of his throwing the blood stained shirt in the dust bin, then took the Police and produced M. 0. 1 which was recovered by P. W. 22, the Inspector of Police under mahazar Ex. P. S attested by P. W. 12 and one Ramakrishnan. 45 p. m. on that night, he claims that he informed the Inspector of his throwing the blood stained shirt in the dust bin, then took the Police and produced M. 0. 1 which was recovered by P. W. 22, the Inspector of Police under mahazar Ex. P. S attested by P. W. 12 and one Ramakrishnan. The fact of recovery of M. O. 1 has also been spoken to by P. W. 12 Ramalingam. On a careful perusal of the evidence of P. W. 22 as well as Ex. P. S recovery mahazar for M. 0. 1 it is seen that it has been stated in the mahazar itself that P. W. 10 threw the blood stained shirt M. p. 1 after having wrapped it in an English Newspaper and he threw the same in the dust bin. This aspect of the statement has not been spoken by P. W. 10 when he was in the box. He has not stated that he threw M. O. 1 after having wrapped it in an English Newspaper nor in the dust bin. But Ex. P. S clinches the fact that it was found among the waste papers, discharged eaten leaves and dust but particularly not in the dust bin. The introduction of the dust bin instead of the heap of waste papers and leaves is conspicuously distinct and that, therefore, the evidence of P. W. 10 runs contrary to the documentary evidence Ex. P. S and the oral testimony of P. W. 22. That apart, the claim of P. W. 10 that out of fear, he threw M. O. 1 into the dust bin cannot be accepted because on seeing the Police at about 10. 30 p.m. in the road, he volunteered in showing the place where he threw the blood stained shirt M. O. 1. He deposed during cross-examination that the Police never recovered M. O. 1 under the cover of mahazar nor the fact that he has shown the place where he threw the shirt M. O. 1 was written by them in the mahazar. In the context of the blabbering version of this witness P. W. 10, we are not inclined to attach any legal credence to the oral testimony of P. W. 10 in respect of Ex. P. S for the recovery of M. O. 1. In the context of the blabbering version of this witness P. W. 10, we are not inclined to attach any legal credence to the oral testimony of P. W. 10 in respect of Ex. P. S for the recovery of M. O. 1. ( 51 ) IT has to be noted that to prove this recovery of M. O. 1 under Ex. P. 5 prosecution examined P. W. 11 also but admittedly this witness P. W. 11 Ravi was examined by the Police after 4 days of the occurrence. Even so, he claims that he saw the appellant coming with blood stained shirt approaching P. W. 10 and exchanged his blood stained shirt with P. W. 10s shirt and went away and that he never informed the Police or made any enquiry with third parties. It is manifest that after 4 days of the occurrence P. W. 11 was chosen by the Police to speak in support of the prosecution case. Therefore, we are of the definite view that this aspect of the evidence of P. W. 10 and P. W. 11 cannot be accepted as they did not inspire any confidence through their conduct which would follow that we have rejected their oral testimony and that we are satisfied to hold that the prosecution has miserably failed to prove the recovery of the blood stained shirt M. a. 1 providing the link for the complicity of the appellant herein in the crime. ( 52 ) COMING to the recovery of M. O. 4 knife, we get the documentary evidence relied on by the prosecution, recovery mahazar Ex. P. 7. We find that this recovery mahazar Ex. P. 7 requires necessary comment. With regard to the preparation of this mahazar by P. W. 22, apart from his evidence, P. W. 14 the attester also spoke about it. The claim of both the above witnesses with regard to EX. P. 7 was that at about 4 p. m. on 30. 4. 1985 in the drainage pit situated near Kosha Sahib Lane in Varathamuthiappan Street, from the drain water by making Ii search in the same with hands upto his elbow P. W. 14, is shown by the appellant herein under the instruction of P. W. 22 searched for the second time, and recovered M. O. 4 knife which was recovered under the cover of mahazar Ex. P. 7. P. 7. A cursory perusal of Ex. P. 7 clinches the fact that M. O. 4 was found in a suspend with full of drainage water. In the last portion of Ex. P. 7, it is noted that M. O. 4 contains dried blood 10 a length of about 3 inches on the tip portion of the same. But significantly, P. W. 14 who identified and took this knife M. O. 4 never speaks about the dried blood on the tip portion of M. O. 4. But even so, if we accept Ex. P. 7 and the evidence of P. W. 22 along with the evidence of P. W. 14, the recitals found in Ex. P. 7 with regard to the dry blood stains on the tip portion of M. O. 4 differs very vitally with the oral claim of P. W. 14 and P. W. 22. M. O. 4 was sent for chemical analysis. As per Ex. P. 20 blood was not detected on it. Considering the above aspect, we are not satisfied to believe the evidence of P. W. 14, Ex. P. 7 and the corresponding evidence of P. W. 22. With the result, the alleged recovery of M. O. 4 knife by the prosecution fails as unconducive and not proved. ( 53 ) IT is true that the blood stained earth and the collection of blood stagnated in the scene of occurrence and other connected recoveries made by the Investigating Officer P. W. 22 was made immediately in the scene of crime which has been subjected to chemical examination including the shirt claimed to have been recovered from A2 after his arrest and human blood was detected. The evidence of doctors P. W. 17 and P. W. 18 clearly render support and corroboration to the only fact that the deceased Theivasigamani was done to death on the alleged night and time due to the homicidal violence namely by stabbing with a sharp edged weapon like M. OA by the assailants whoever it may be and that is not in dispute in this case. We are fully satisfied to accept the medical evidence through P. W. l7andp. W. 18 along with the recoveries of M. O. 2, 3, 5 to 9 and accept the reports of the Chemical Examiner and Serologist with its requisitions Ex:p. 15, 16, 17 to 22. We are fully satisfied to accept the medical evidence through P. W. l7andp. W. 18 along with the recoveries of M. O. 2, 3, 5 to 9 and accept the reports of the Chemical Examiner and Serologist with its requisitions Ex:p. 15, 16, 17 to 22. But this aspect of the proof alone does not establish the complicity of the appellant herein. We have to see whether the prosecution has established the complicity of the appellant beyond all reasonable doubt. ( 54 ) REGARDING the investigation in this case, we are constrained to hold that a thorough and perfect investigation has not been done by the investigating agency in booking the real culprits. It mayor may not be that the appellant/accused is the guilty person in this case. But however it is the cardinal principle of criminal jurisprudence that the guilt of the accused must be proved and established beyond all reasonable doubt by letting in acceptable, convincing and implicitly reliable evidence for otherwise grave injustice would be the result if the Court chooses to punish the wrong person on moral satisfaction. In this context, we are forced to choose one aspect from-the evidence of P. W. 1 and P. W. 2. It was the consistent claim of these two witnesses that immediately after the occurrence namely the deceased Theivasigamani fell down, they took him to the side of the main road and that subsequently they took him to the Police Station in a rickshaw and to the Government Hospital and that during the said sojourn, their shirts and clothes were stained with the blood of the deceased and that has been noticed by the Constable and the Police in the hospital, even at the second instance when P. W. 22 visited the hospital at about 12 mid night on the night of occurrence. But it is strange that the investigating agency did not recover the blood stained clothes from P. W. 1 and P. W. 2 either at the Police Station or at the hospital or at any point of time subsequently to provide the complete link and proof that the said witnesses were involved from the time of occurrence itself and subsequently. With regard to P. W. 4, it appears, the investigating agency has not examined P. W. 4 properly with reference to the Meenabadit cart which is the pivotal thing for the entire occurrence. With regard to P. W. 4, it appears, the investigating agency has not examined P. W. 4 properly with reference to the Meenabadit cart which is the pivotal thing for the entire occurrence. Similarly the rickshaw which was used by P. W. 1 and P. W. 2 to transport the deceased Theivasigamani to the Kothavalchavadi Police Station and then to the hospital though claimed to have been driven by P. W. 1, has not been seized for the purpose of finding blood stains which is so material piece of evidence which would assume every importance in proving the claim of prosecution witnesses. But, we are shocked to see that the investigating agency did not evince any interest in probing to that extent which amounts to serious flaws in the investigation and the prosecution theory. In the context of the above flaws and serious defects which we have pointed out already, we are not inclined to close our eyes ignoring of the said infirmities and flaws in the investigation which in our view cut the very root of the prosecution case bringing down to the ground. ( 55 ) IT is true in a catena of cases, our Apex Court has held that if part of the prosecution story is found doubtful; it would not necessarily falsify the whole account, but in such cases, the rest of the story claimed by the alleged eye witnesses then be examined carefully by the Court of law before it is relied on and on doing so, if the rest of the story is so convincing, then it can be accepted notwithstanding the questionable part of it by applying the principle of falsus in uno, falsus in omnibus. ( 56 ) IN Salaka Singh v. State of Punjab the Apex Court has observed as follows: It is true that 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 background against which they are made, then this principle will not apply. His seen that the learned trial Judge, after full trial has found the second accused not guilty and acquitted of the charge framed against him on the ground that there is no legal and acceptable evidence to prove the guilt of the accused. At this juncture, we have to observe that the learned Sessions Judge has ignored and overlooked the documentary evidence of Ex. P. 1, Ex. P. 23 and Ex. P. 26 which came into existence at the earliest point of time and upon the basis of which the entire fabric and edifice of the prosecution case had to be built up. But that was not done. A major deviation in the story of the prosecution from the second accused to the first accused, namely the appellant herein was implemented during trial, and that has been accepted 2nd consequently, the second accused was acquitted by the trial Court. Apparently, there is no appeal preferred by State against the acquittal of A2, the second accused. We are entirely in agreement with the arguments advanced by Mr. N. Natarajan, the learned Senior Counsel that the documentary evidence which came into existence at the earliest point of time, namely Ex. P. 1, Ex. P. 23 and Ex. P. 26 did not fix the identity of the accused who caused the fatal injury No. 1, perhaps with a view to take undue advantage of the said aspect readily available in Ex. P. 1 and Ex. P. 26, the witnesses thought of the major and material deviation as we have pointed out earlier. But however for the foregoing reasons which we have adverted to we are constrained to hold that the accounting of P. Ws. 1,2 and 4, the so-called ocular witnesses and even the evidence of P. W. 7, res-gestae witness and P. W. 10 and P. W. 11 leading to the recovery of M. O. 1 are not speaking the truth but suppressed the real incident due to which the deceased was done to death by perpetrating the homicidal violence, whoever it may be. In short, the accounting of the ocular witnesses as well as res-gestae witnesses did not inspire any confidence or belief in our mind which we have come across, the above opinion on a careful scrutiny and analysis of their testimony in toto. Since we have disbelieved the alleged recovery of M. O. 4 under Ex. In short, the accounting of the ocular witnesses as well as res-gestae witnesses did not inspire any confidence or belief in our mind which we have come across, the above opinion on a careful scrutiny and analysis of their testimony in toto. Since we have disbelieved the alleged recovery of M. O. 4 under Ex. P. 7 and the evidence of P. W. 14, we are constrained to hold that the prosecution failed to prove the complicity of the appellant in the crime beyond all reasonable doubt and the benefit of doubt has necessarily to go to the appellant/accused. It is an unfortunate incident in which the deceased was killed by homicidal violence but the real culprit who caused the death of the deceased had not been booked and the edifice of the prosecution has been destroyed by their own version which follows that the ocular witnesses are not the truth speaking witnesses. Therefore, we are fully satisfied to reject the evidence of the accounting of the ocular witnesses as well as res gestae witness and the alleged recoveries made by the investigating agency. Consequently, we are not satisfied with the findings of the learned Sessions Judge under this appeal, with the result the entire prosecution case has to be rejected. ( 57 ) IN the result, the present appeal is allowed. The conviction and sentence imposed against the appellant are set aside. His bail bond stands cancelled.