Judgment :- Arunachalam, J. ( 1 ) A. 1 to A. 3 in S. C. No. 121 of 1985 on the file of the First Additional Sessions Judge, Coimbatore, are the appellants. They were charged under Section 302 read with Section 34 Indian Penal Code, on the allegation that at or about 4 P. M. on 30-4-1985, at Velayutha Gounder Pudu, they caused the death of deceased Kumaraswami Gounder by beating him with hands and kicking him on his chest and abdomen with legs. The learned trial Judge, after an elaborate trial, found the appellants guilty as charged and sentenced each one of them to undergo imprisonment for life. ( 2 ) THE prosecution case in brief is as follows:-P. W. 1 Thirumalaisamy is the son of the deceased, P. W. 1 was living along with his mother at Ponneri Ayyan Palayam, situated 7 miles away from Velayutha Gounder Pudur, where his father, the deceased, was living alone in the Garden salai. Deceased used to visit P. W. 1 periodically, sometimes once in (*sic Matter) a week and on other occasions once in a month. Deceased was cultivating 2-1/2 acres of land and he possessed two cows also. It appears from evidence that the deceascd was living with one pappal. Deceased Kumaraswamy Gounder at or about the time of death was aged about 50 years. ( 3 ) AL and A 2 are brothers, aged about 85 years and 80 years respectively. A. 3, a middle aged man, 41 years old, is the son-in-law of P. W. 2 Kaliammal, who was treated hostile by the prosecution. P. W. 6 Eswarasamy Gounder, had his lands, south of the lands belonging to the deceased. P. W. 6 had harvested the horse-gram crop in his land, twenty days prior to occurrence. On the request of the deceased, P. W. 6 had permitted the former, to graze his cows, since after harvest horse-gram stems alone remained in his land. Two days later, when P. W. 6 happened to visit Velayutha Gounder Pudur, the deceased complained to him, that the cattle of A. 1 and A. 2 had grazed the formerts land and that he apprehended the cattle, to be sent to the pound. However A. 1 and A 2 took back the cattle. P. W. 6 Pacified the deceased and agreed to inform A. 1 an A. 2 of his displeasure. However A. 1 and A 2 took back the cattle. P. W. 6 Pacified the deceased and agreed to inform A. 1 an A. 2 of his displeasure. ( 4 ) WHILE so, on 30-4-1985 at or about 4 P. M. when P. W. 4 Veeran and P. W. 5 pallani were engaged in digging a well in the land (*sic Matter) of Teacher Subramania Gounder, situated half a furlong away from the scene of occurrence, they heard some noise and looked in that direction. They noticed the appellants beating and pushing down the deceased and later kicking him. Deceased Kumaraswami Gounder did not get up. He breathed his last at the same spot. P. Ws. 4 and 5 colly went away to their respective houses. ( 5 ) ONE Nataraja Gounder (not examined) informed P. W. 1 at or about 10 or 11 a. m. on 1-5-1985, that the corpse of the deceased was found on the western side of the Salai of the deceased. P. W. 1 along with his mother and another rushed to the scene and found the deceased dead, rase upwards. P. W. 1 also noticed injuries on the right and left wrists of his father. P. W. 1 and his mother went inside the Salai of the deceased, but no one was available. Both of them, along with Appachee Gounder made enquiries and learnt from P. W. 2 Kalianmal and P. W. 3 Kannakarani, that on the earlier day, when they were ploughing the land, they notice A. 1 and A. 2 chasing and beating the deceased. P. Ws. 2 and 3 informed P. W. 1, that A. 1 and A. 2 not only beat the deceased, but also stamped on him. P. W. 1 was also informed that thereafter A. 1 and A. 2 ran away from the scene. ( 6 ) P. W. 4 along with appachee Gounder proceeded to Kundimangalar Police Station situated 6 Kms. away from the scene and P. W. 1 narrated the facts to Sivasami, P. W. 10, the then Sub-Inspector of Police. P. W. 10 reduced into writing the statement of P.W. 1 and on Ex. P. 1, the statement so recorded, be obtained the signature of P. W. 1 and had crime no. 50 of 1985 registered under Section 302 Indian Penal Code Ex. P. 9 is the printed first information report. He forwarded Ex. P. W. 10 reduced into writing the statement of P.W. 1 and on Ex. P. 1, the statement so recorded, be obtained the signature of P. W. 1 and had crime no. 50 of 1985 registered under Section 302 Indian Penal Code Ex. P. 9 is the printed first information report. He forwarded Ex. P. 1 and P. 9 to the Judicial II Class Magistrate, Udunelpet, wile forwarding copies of Ex. P. 9 to his superior Officers. P. W. 10 further informed P. W. 11 Murgiayan, the then Inspector of Police, Udumalpet Circle, over telephone, of the registration of this crime. P. W. 11 soon thereafter proceeded to kudimangalam, obtained a copy of the first information report and took up investigation. He reached the scene at 6 P. M. and prepared the observation mahazar Ex. P. 1 and the scene sketch Ex. P. 11 at 6. 30 P. M. he seized-from dre-scene, blood stained earth M. O. 5 and sample earth M. 06 under mahazar Ex. P. 12. Between 6 p.m. and 10 p. m. , he conducted inquest over the corpse of the deceased Kumaraswami Gounder during the course of which he examined P. Ws. Ito 3 and 6. Ex. P. 13 is the inquest report. After inquest, he forwarded the dead body with are question Ex. P. 12 through police constable Suthanthiranathan (P. W. 8) to the Government, hospital, Udamelpet for the conduct of the postmortem. ( 7 ) P. W. 7 Dr. C. Dharmalingarn conducted autopsy on the dead body at 11. 20 a. m. on 2nd May, 1985. The following external injuries were noticed. 1. An abrasion i" x i" over the left cheek 1 below the left eye. 2. An abrasion 2 x i" on the right side chest horizontal, just above the nipple. 3. An Abrasion l/2" x 1/2 over the left wrists lateral side. 4. An abrasion 1 x i" over the right leg 3 above the unkle joint on the lateral surface. Few blood cloth were seen on all the above injuries, and the colour of the injuries was reddish. The doctor further noticed signs of decomposition on the body. Rigor Mortis had passed away. House files were present. Blisters were noticed. There was peeling of skin on neck, legs and chest. Serotum and penis were found swollen. Abdomen Nas slightly distended. Few blood cloth were seen on all the above injuries, and the colour of the injuries was reddish. The doctor further noticed signs of decomposition on the body. Rigor Mortis had passed away. House files were present. Blisters were noticed. There was peeling of skin on neck, legs and chest. Serotum and penis were found swollen. Abdomen Nas slightly distended. Eye-lids were partially closed, while the mouth was partially open, Tongue was in position. Right upper third molar Nas absent all the upper incors were shaky and redish fluid was oozing from the roots. In the abdomen subcutaneous echymosis was seen or he right upper quadrant. Diaphargam was found raised. Partially digested cereal meal with about 100 m. l. in fluid state was found. There was and rertical tear of 3 x 1/2 x 1/2 on the anterior surface of the right lobe of the liver. The peritoneal cavity contained 2-1/2 litres of dark fund blood with few blood clots. Neck and hyoid bone were intact. There was sub-cutaneous echymosis of upper half of the chest. The right and left 4th ribs were found fractured 2-1/2 away from the sternal ends. Head bones and membranes were normal. 3rain was found pulpy and semi solid. Ex. P. 3 is he postmortem certificate. In the opinion of the doctor, the deceased would appear to have died of injury to the vital organ, liver, shock and haemorrhage, 44 to 46 hours prior to autopsy, external injury Nos. Ito 4 could have been caused by coming into contact with the rough surface. The injury to the liver was vital to cause death in the ordinary course of nature. The death could have occurred at the time and in the manner alleged. However, the doctor had not chosen to connect any of the external injuries to the fracture of the ribs. He had not even expressed any opinion, as to what exactly the cause was, for the injury on the liver. ( 8 ) ON 2-5-1985, P. W. 11 examined P. Ws. 4 and 5 at Velayutha Gounder Pudur village. Only after the statements of P. Ws. 4 and 5 were recorded, P. W. 11 found the involvement of A. 3 in this crime. A search for the accused did not yield any fruit P. W. 11 received information that the appellants had surrendered before the Judicial First Class Magistrate, Dharapuram. 4 and 5 at Velayutha Gounder Pudur village. Only after the statements of P. Ws. 4 and 5 were recorded, P. W. 11 found the involvement of A. 3 in this crime. A search for the accused did not yield any fruit P. W. 11 received information that the appellants had surrendered before the Judicial First Class Magistrate, Dharapuram. On 6-5-1985, P. W. 11 forwarded M. Os. 1 to 6 to Court with a requisition to send, them for chemical analysis. Ex. P. 7 and P. 8 are the reports of the Chemical Analyst and Serologist respectively. After completion of investigation P.W. 11 laid the chargesheet against the appellants before the committal court on 29-5-1985. ( 9 ) WHEN the appellants were questioned under Section 313 Cr. P. C. on the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime. A. 1 went on to add, that there was enmity between him and P. W. 6 and that at the instance of P. W. 6 P. Ws. 4 and 5 had chosen to falsely depose against him. A. 2 stated that he is a resident of Kollupalayam. At the instance of P. W. 6, he had been falsely implicated in this crime. He also stated that he did not have any cattle, which could have grazed in the land of P. W. 6 A. 3 stated that he was residing 10 miles away from the scene of occurrence and. he was not aware of this incident. He did not know P. Ws. 4 to 6. P. W. 6 had chosen to implicate him in this crime. ( 10 ) THE learned Sessions Judge on a consideration of the oral and documentary evidence accepted- the prosecution case, rejected the defence and dealt with the appellants in the manner indicated earlier. ( 11 ) MR. N. Natarajan, learned Senior Counsel representing the appellants contended that there was no legal evidence to sustain the convictions recorded against the accused. He contended, that of the four eye witnesses examined, P. Ws. 2 and 3 were treated hostile, while the evidence of P. Ws. 4 and 5, by any standard cannot be held to be creditworthy. Ex. P. 1 was preferred by P. W. 1 on the information furnised by P. Ws. 2 and 3, who themselves have not supported the prosecution case. 2 and 3 were treated hostile, while the evidence of P. Ws. 4 and 5, by any standard cannot be held to be creditworthy. Ex. P. 1 was preferred by P. W. 1 on the information furnised by P. Ws. 2 and 3, who themselves have not supported the prosecution case. At best, the evidence of P. W. 1 is hear-say and obviously not admissible. He pointed out that a specific attempt had been made by P. Ws. 4 and 5 to implicate A. 3 in the crime for the first time, two days later, whereas P. Ws. 2 and 3 had not chosen to implicate him. The involvement of A. 3 was not even known during inquest. ( 12 ) ON these contentions, we have heard Mr. S. Shanmughavelayutham, learned additional Public Prosecutor. He contended, that P. W. 2 had not chosed to implicate A. 3 in the crime since the latter was her son-in-law. P. W. 3 is the daughter of P. W. 2 and sister-in-law of A. 3 and naturally had fallen in line with her mother, in not supporting the prosecution case. He contended that the evidence of P. Ws. 4 and 6 was acceptable and the judgment of the learned trial Judge needed no i nte rfe ren ce. ( 13 ) WE have carefully considered the rival contentions placed before us by the defence and prosecuting counsel. ( 14 ) EVEN at the outset, we have to state that there is no worthwhile motive for the appellants to attack deceased Kurnaraswamy Gounder, leading to his death. The only motive sougt to put forth by. the prosecution is that in the land of P. W. 6, where crops had already been harvested the deceased had obtained permission to graze his cows, where A. 1 and A. 2 allowed their cattle to graze without the permission of P. W. 6 or his own. Naturally the deceased had complained to P. W. 6 who pacified him and promised to talk with A. 1 and A. 2. This happened about 20 day prior to occurrence. The motive put forth is so feeble, to lead to the commission of this capital crime. Irrespective of the motive, if there is acceptable ocular version, the appellants may still be guilty of murder. ( 15 ) UNFORTUNATELY for the prosecution two of the four eye witnesses, namely P. Ws. This happened about 20 day prior to occurrence. The motive put forth is so feeble, to lead to the commission of this capital crime. Irrespective of the motive, if there is acceptable ocular version, the appellants may still be guilty of murder. ( 15 ) UNFORTUNATELY for the prosecution two of the four eye witnesses, namely P. Ws. 2 and 3, on whose information the first information was preferred by P. W. 1, had chosen not to support the prosecution, leading to their being treated hostile. Merely because P. Ws. 2 and 3 are related to A. 3, the prosecution cannot expect to gain any advantage whatever. The evidence of P. Ws; 2 and 3, not being available to the prosecution, we will have to scrutinise the evidence of the other eye witnesses, P. Ws. 4 and 5. P. Ws. 4 and 5 are residents of the same village, Velayutha Gounder Pudur, where the deceased was living. It is their claim, that on the occurrence evening, they were working in the land of Teacher Subramania Gounder, which facilitated their witnessing the occurrence. It is the specific case of P. W. 4, that after the appellants beat and pushed down the deceased, the latter did not get up and he died on the spot. The appellants went away east-wards. Even after seeing this occurrence, in which the fallen down deceased did not get up, he did not choose to go near the victim and find out as to what had really happened. He did not even think it necessary to inform P. W. 1 or set the law in motion. He claims to have told his employer teacher Subramania Gounder, who asked him to set the law in motion. In spite of such advice, he chose to return home without taking any further steps. It is rather amazing, that P. W. 4 did not even tell his wife as to all that he had seen, till he was examined three days later, on 2-5-1985 by the investigating officer, P. W. 11. P. W. 4 claims to have worked in another land belonging to teacher Subramania Gounder on the next day. He is certain, that Subramania Gounder did not ask him on Wednesday if he had preferred a complaint, of the death of Kumaraswami Gounder. P. W. 4 claims to have worked in another land belonging to teacher Subramania Gounder on the next day. He is certain, that Subramania Gounder did not ask him on Wednesday if he had preferred a complaint, of the death of Kumaraswami Gounder. In Cross-examination, he has stated, that someone went near Kumaraswami Gounder and informed him on Tuesday, that the later was dead. A little later he corrected himself and deposed that he was not aware on Tuesday if the deceased was dead. It is not known how P. W. 4 was traced by the investigating officer, since he is certain that P. W. liexamined him at his residence and question him if he had any information on the death of Kumaraswami Gounder. ( 16 ) THE evidence of P. W. 5, who was a companion of P. W. 4, on the fateful evening, contradicts, certain material portions of the evidence of P. W. 4. According to him, the scene of occurrence was separated from the well in which he was working by about half a furlong. He was able to witness the occurrence only from such a long distance. He was able to see A. 1 to A. 3, having pushed down the deceased, after beating him. He would further add that when he looked in that direction, deceased was already on the floor. Even though he and P. W. 4 had seen the occurrence, he would claim, that they did not talk about it while returning. While they were returning, enroute, there was movement of the villagers. They did not choose to inform anyone of them about this occurrence. The house of Teacher Subramania Gounder was situated one furlong away from his residence. He is categorize that on Tuesday, the date of occurrence, Subramania Gounder was not in the village. If that be so, P. W. 4 could not have informed Subramania Gounder about this occurrence and the latter could not have asked him to set the law in motion. P. W. 5 is also sure that between Tuesday and Thursday Subramania Gounder was not available in the village. Though P. W. 5 is certain, that there was no work to be done on the next day in the land of Subramania Gounder, P. W. 4 claims to have worked in yet another land of the said Subramania Gounder. P. W. 5 is also sure that between Tuesday and Thursday Subramania Gounder was not available in the village. Though P. W. 5 is certain, that there was no work to be done on the next day in the land of Subramania Gounder, P. W. 4 claims to have worked in yet another land of the said Subramania Gounder. If Subramania Gounder has not been available in the village. P. W. 4 could not have been assigned any work. P. W. 4 is further certain, that prior to the occurrence date, he had not gone to work in Teacher Subramania Gounders land. Equality it is very surprising how P. W. 5 was traced. Both P. Ws. 4 and 5, are stated to have been examined by P. W. 11, on 2-5-1985. However their statements have reached the Magistrate only on 31-5-1985. No explanation has been offered for the delay in forwarding the statements of two material eye witnesses, so belatedly. It is not as though no record was forwarded to court by the investigating agency between 2-5-1985 and 31-5-1985. The case records show that certain documents including form 95 had been received by the Magistrate in the interregnum. The conduct of P. Ws. 4 and 5, if in fact that they had witnessed the occurrence, is totally strange and is opposed to normal human behaviour. We are not impressed with the evidence of these two witnesses and for a variety of reasons stated by us, we hold that their evidence does not inspire confidence. ( 17 ) IF the evidence of P. Ws. 4 and 5 has to be rejected, there is nothing more left to salvage this prosecution. The evidence of P. W. 1 has no value whatever, for the information furnished by him in the first information report, is based on the facts stated by P. Ws. 2 and 3, whose evidence is not available now, to the prosecution. Thus the evidence of P. W. 1 becomes totally in admissible. Ex. P. 1 is not substantive evidence and will have to share the same fate as that of the version of P. W. 1 we find sufficient force in the contention of Mr. N. Natarajan, learned Senior Counsel that an attempt had been made to introduce A. 3 in this crime very belatedly, through P. Ws. 4 and 5. The reason therefore is not very clear. N. Natarajan, learned Senior Counsel that an attempt had been made to introduce A. 3 in this crime very belatedly, through P. Ws. 4 and 5. The reason therefore is not very clear. However, we see, that appellants 1 and 2 are very old, and probably it was felt that young blood may also be required to cause the death of the 50 year old deceased Kumaraswami Gounder. Any how we need not have to probe into causes, which led to the implication of A. 3 also, very belatedly in this crime, for, we are satisfied that the prosecution case is not entitled to acceptance. ( 18 ) THE medical evidence furnished by P. W. 7 shows only abrasions on the left cheek, right side chest, left wrist and right leg. The abrasions by themselves would not have caused the death of the deceased. Prosecution owed a duty to connect the death of the deceased with the injuries found on the deceased. The Medical Officer owed a duty to connect the external injuries with the internal appearances, which he had noticed. The fracture in the ribs has not been connected with any external injury. Similarly the tear in the liver has also not been connected with any external injury. The doctor has further stated, there must be heavy hit by stick or a stone to cause injury on the livertt. It is not the prosecution case that any weapons were used by any of the appellants. The medical evidence also does not fit in with the oral evidence placed through P. Ws. 4 and 5. ( 19 ) LOOKED at from any angle, there is total lack of evidence to connect the appellants with the crime. The learned Sessions Judge has totally overlooked these material infirmities. We are unable to sustain the convictions recorded and the sentence imposed on the appellants by in a trial court. We set aside the convictions and sentences imposed, on the appellants, for murder and acquit them. This appeal is allowed. Appeal allowed.