STATE v. SAMPATH — 1993 DIGILAW 156 (MAD)

Judgment :- K.M. NATARAJAN, J. ( 1 ) THE State after obtaining special leave has preferred this appeal against the order of acquittal of the respondents in S. C. No. 87 of 1983 passed by the learned Principal Sessions Judge, Coimbatore Division. The respondents herein after referred to as the accused were tried for two charges on the allegations that on 5/2/1983 at about 10. 00 p. m. , within the compound of Devaki Cinema theatre, the first accused Sampath stabbed the deceased Pemmalan alias Pommalayan with a knife on the left side of the back as a result of the Same, the deceased died. During the course of same transaction, the accused 2 and 3, caught hold of the hands of the deceased and thereby they are liable for the offence punishable under Section 302 read with 109 I. P. C. To substantiate the above charges, the prosecution examined P. Ws. 1 to 12, filed Exs. P. 1. to P. 12 and marked M. Os. 1 to 10. ( 2 ) THE case of the prosecution as revealed from the oral and documentary evidence which are necessary for the disposal of this case, can briefly be stated as follows: P. Ws. 1,2,3, the deceased and the accused are residents of Kovilpalayam Village. On 4/2/1983, at about 8. 30 p. m. , near Veeramachiamman Temple, P. W. 1. the deceased, his younger brother, P. W. 2. Mohan, Vasu, elder brother of P. W. 1. Duraisami, Sivasami Prabhakaran, P. W. 3. and others were conversing. At that time, the deceased called P. W. 3. as Thambi. The accused 1 and 2 came there at that time on a cycle. The first accused questioned the deceased as to whom he called as Thambi thinking that the deceased called him as Thambi and thereby he was insulting him. The deceased told him that he only called P. W. 3. as Thambi. All the persons present there, pacified the first accused and the second accused and thereupon, they left We place. This is stated to be the motive for the occurrence. ( 3 ) ON 5/2/1983 night at about 10. 00 p. m. P. W. 1, P. W. 2, the deceased, Sivasami and Prabhakaran went to Devaki Cinema Theatre. They asked one Siva to purchase tickets and P. Ws. This is stated to be the motive for the occurrence. ( 3 ) ON 5/2/1983 night at about 10. 00 p. m. P. W. 1, P. W. 2, the deceased, Sivasami and Prabhakaran went to Devaki Cinema Theatre. They asked one Siva to purchase tickets and P. Ws. 1, 2 and the deceased went to the place where the tickets were being collected and tom. At that time, the second accused came there and called the deceased by saying that they wanted to talk to him separately and took him. P. Ws. 1 and 2 followed them. The accused 1 and 3 were standing near the Cabin. The first accused after reaching the place saying Yesterday you insulted me on the road. If you can, you can do now. T So saying, he went near him. The accused 2 and 3, caught hold of the hands of the deceased. The first accused took out M. O. I. from his waist and stabbed him on the left back; Thereupon all of them ran towards west. The deceased after receipt of the stab chased them and fell down. Thereupon P. Ws. 1 and 2 took the injured to P. W. 4 Dr. Prabhu. He bandaged the wound and asked them to take him to Government Hospital, Coimbatore. Accordingly, they took the injured to the government Hospital. P. W. 5 Assistant Surgeon attached to Coimbatore Medical College Hospital who was in the casuality ward at about 11. 00 p. m. examined the injured and found him already dead. Thereupon, he sent the body to the mortuary and sent intimation Ex. P. 2 to the Outpost Police Station in the Government Hospital. P. W. 9 who was the had Constable of Out post Police Station at Government Hospital, on receipt of Ex. P. 2 intimation, went to the hospital recorded the complaint Ex. P. 1 from P. W. land he sent the same along with a memo Ex. P. 9 to the concerned Kovilpalayam Police Station. P. W. 10 Sub Inspector of Police, Kovilpalayam Police Station at about 4. 00 p. m. got Ex. P. 1 and Ex. P. 2 and Ex. P. 9 through the constable and on the basis of the same, he registered a case in Cr. No. 21/83 under Sections 302 and 342 I. P. C. and prepared First Information Report Ex. p. 10 and copies thereof. He sent Ex. 00 p. m. got Ex. P. 1 and Ex. P. 2 and Ex. P. 9 through the constable and on the basis of the same, he registered a case in Cr. No. 21/83 under Sections 302 and 342 I. P. C. and prepared First Information Report Ex. p. 10 and copies thereof. He sent Ex. p. 1, F. I. R. (Ex. p. 10) to the court and copies to the higher officials. Thereupon he reached the scene place at about 5. 30 p. m. prepared observation mahazar Ex. P. 11 and drew rough sketch Ex. p. 12. At about 7. 00 a. m. he seized blood stained earth M. 0. 9 and sample earth M. O. 1o under a cover of mahazar Ex. P. 13. P. W. 11 the Inspector of Perianaya kanpalayam Police Station at about 6. 00 a. m. on 6. 2. 1983 got a copy of F. I. R. , Ex. P. 10. At about 7. 10 a. m. he went to the scene place and learnt that the Sub Inspector of Police had already gone to the hospital and he went there and held inquest over the dead body of the deceased between 8. 00 a. m. to 12. 00 noon and during inquest, he examined P. Ws. 1 and 2. Ex. P. 14 is the inquest report prepared by him. After completing inquest, he entrusted the dead body with P. W. 7 with a requisition EX. P. 3 to the medical officer to conduct autopsy. He continued the further investigation at 9. 30 a. m. He seized M. O. 2 from P. W. I under mahazar EX. P. 15 and M. Os. 3 and 4 from P. W. 2 under Ex. P. 16 Mahazar. ( 4 ) P. WS. 6 is the Professor of Forensic Medicine of Coimbatore Medical College Hospital. In pursuance of the requisition received from P. W. 11, the conducted autopsy over the dead body of the deceased about 2. 00 p. m. on 6/2/1983 and he found the following external injuries: Multiple small abrasions on the middle of forehead, nose and front of both knees. Horizontal stab wound about 3. 2. cm. x 1. 5. c. m. cavity deep situated in the back of the chest wall below the inferior angle of the scapula on the left side close to mid line blood stained fluid oozing from the wound. Horizontal stab wound about 3. 2. cm. x 1. 5. c. m. cavity deep situated in the back of the chest wall below the inferior angle of the scapula on the left side close to mid line blood stained fluid oozing from the wound. On exploration of the above injury, it has pierced the chest wall posteriorly through the 7th left intercostals pace and has entered into the plural cavity on the left side, and has gone through the lower lobe of left lung close to the pulmonary blood vessels and has penetrated the pericardial membrane of the heart and pierced the base of the left ventricle of the heart and entering the cavity of left ventricle. Injury in the Lung: The pericardium contains about 200 cc blood Plural cavity contains 700 cc. of fluid blood. Heart: Both chambers empty. Lungs: Congested. Stomach: Partially digested rice and ragi particles, Mucosa: Normal. Intestine: empty; Liver, Spleen and Kidneys: congested. T P. W. 6 was of the opinion that the deceased would appear to have died of haemorrhage as a result of stab injury. Ex. P. 4 is the post mortem certificate issued by him. It is his further evidence that the abrasions noticed on the back could have been caused due to fall. The injury on the back could have been caused due to stab with a weapon like M. O. 1, and the death is only due to injury on the back and the said injury is sufficient to cause death. P. W. I conducted further investigation. He arrested the accused 2 and 3 on the night of 6. 2. 1983 at about 11. 30 p. m. at Sathi road. On 7/2/1988 at 11. 00 a. m. he seized M. O. I knife from the Pandal of Cattle shed of the first accused in front of the first accuseds house under a cover of mahazar Ex. P. 17. He examined P. Ws. 3,4,7, and 9 on 7/2/1983. On 8/2/1993 he examined P. W. 6, the Medical Officer who conducted autopsy. On 9/2/1993, the first accused surrendered before the Judicial First Class Magistrate I, Coimbatore. He sent Ex. P. 5 to the Court. Thereupon he was transferred to some other station. It is the evidence of P. W. 8. Head Clerk attached to Judicial First Class Magistrate II that in pursuance to Ex. On 9/2/1993, the first accused surrendered before the Judicial First Class Magistrate I, Coimbatore. He sent Ex. P. 5 to the Court. Thereupon he was transferred to some other station. It is the evidence of P. W. 8. Head Clerk attached to Judicial First Class Magistrate II that in pursuance to Ex. P. 5 requisition, material objects were sent for chemical analysis. Exs. P. 7 and P. 8 are the report of the Chemical Examiner and the Serologist respectively. P. W. 12 succeeded P. W. 11 and he laid the charge sheet against the accused on 31/5/1983. ( 5 ) WHEN the accused were examined with reference to the incriminating piece of evidence, they totally denied the prosecution evidence. In addition, they stated that the deceased is rowdy and further produced publication in respect of the incident in the newspapers, namely, Dhinakaran and Daily Thanthi and prayed that they may be treated as part of their statement. The second accused further stated that he belongs to D. M. K. Party while the deceased belonged to A. L. A. D. M. K. Party. On account of political rivalry, this case has been foisted. No witness was examined on the side of the accused. Learned Trial Judge, after taking into consideration the oral and documentary evidence and for the reasons assigned by him in the ORDER, came to the conclusion that the prosecution has not proved the guilt of the any of the accused beyond reasonable doubt and consequently acquitted all of them. Hence this appeal by the State. ( 6 ) LEARNED Additional Public Prosecutor took us through the recorded evidence and the ORDER of the trial Court and made his submission. According to the learned Additional Public Prosecutor, the trial court is wrong in acting on the news in the two newspapers produced by the first accused along with the statement under Section 313 Cr. P. C. in order to reject the evidence of P. Ws. 1 and 2, the eye witnesses to the occurrence as those newspaper publications cannot be taken as evidence since they have not been proved. He vehemently argued that the learned trial Judge is not correct in holding that there is variation between the evidence of P. Ws. 1 and 2 and that of medical testimony. 1 and 2, the eye witnesses to the occurrence as those newspaper publications cannot be taken as evidence since they have not been proved. He vehemently argued that the learned trial Judge is not correct in holding that there is variation between the evidence of P. Ws. 1 and 2 and that of medical testimony. Learned Additional Public Prosecutor also submitted the other reasons given by the trial Judge for rejecting the evidence of P. Ws. 1 and 2 are trivial. He would submit that the learned Judge is not correct in inferring that there was prior statement obtained from P. W. 2. He would submit that on the evidence on record the learned Trial Judge ought to have found the accused guilty in respect of both the charges as the finding rendered by the court below is perverse. ( 7 ) PER contra, learned counsel for the respondents vehemently argued that this is a case where the learned Trial Judge has considered each and every aspect in proper perspective with reference to the evidence available in this case and arrived at a correct conclusion and no interference is called for. He vehemently argued that even in respect of the very First Information Report, it has been demonstrated that it was not the one given by P. W. 1 and that his signature has been forged. The medical testimony in this case do not support the prosecution evidence and it clearly establishes that the occurrence could not have taken place in the manner in which it has been spoken to by the prosecution witnesses. He would also vehemently argue that there is no motive at all for the accused to commit murder. Further, though the occurrence is stated to have taken place in the permanent theatre where admittedly employees of the theatre and two constables were there and the non-examination of independent witnesses is fatal to the case of the prosecution. He would further submit that the learned trial Judge has not rightly placed reliance on the material objects which were not seized on any confession made by the accused. Further the weapon seized did not contain blood of human origin and there is also no mahazar witness for the seizure in the said place. He would also vehemently argue that no doubt the publication in the newspapers themselves are not admissible. Further the weapon seized did not contain blood of human origin and there is also no mahazar witness for the seizure in the said place. He would also vehemently argue that no doubt the publication in the newspapers themselves are not admissible. But in the instant case, the investigating officer has fairly conceded that he came to know about the said publication. He has also categorically admitted that he did not enter into the theatre and make any investigation and there is absolutely no investigation as 10 whether the occurrence took place inside the theatre or within the compound of the theatre or outside the theatre and in the circumstances, it assumes much importance. Learned counsel also vehemently argued that once the medical testimony is at variance with the ocular testimony it clearly establishes that the occurrence could not have taken place in the manner spoken to by the prosecution witnesses and the benefit of doubt should be given to the accused. He further submitted that when the trial court has considered all the aspects in the proper perspective, there is nothing to hold that the ORDER of the court below is perverse. ( 8 ) THE point for consideration is whether the order of acquittal passed by the learned trial Judge suffers from any infirmity or illegality so as to warrant this court to interfere with the same. Now as regards the motive aspect is concerned, it is the case of the prosecution that on the previous day of theoccurrenceatabout8. 30p. m. P. Ws. 1,2,3, the deceased and three others were conversing in Veerachiamman temple and at that time, it is stated that the deceased called P. W. 3 as Thambit when the accused 1 and 2 happened to come there at that time and it is stated that the 1st accused questioned the deceased as to whether he called him as Thambit and the deceased replied immediately by saying that he did not call him as Thambi and he called P. W. 3 only as Thambi. Thereupon, the accused left the scene place. This is stated to be the motive for the occurrence. Thereupon, the accused left the scene place. This is stated to be the motive for the occurrence. As rightly observed by the learned trial Judge and as contended by the learned counsel for the accused that if that is the incident which has been relied upon by the prosecution, it cannot be stated that there is sufficient motive for commission of the offence of murder. What is alleged was that the deceased called P. W. 3 as thambi and that the first accused took it that the deceased called him as Thambi and because of that the first accused asked the deceased as 10 why he called him as thambi. It has been clearly stated that immediately, the deceased himself replied that he called P. W. 3 only as thambi and he never called the first accused as thambi. As rightly found by the learned trial Judge, this cannot be the motive for the commission of murder on the next day. ( 9 ) LEARNED Additional Public Prosecutor vehemently argued that when there are direct eye witnesses motive does not assume any importance and the aspect of motive will only be academic. That proposition is not disputed. Now the question to be considered is whether there is any acceptable and trustworthy evidence with regard to actual occurrence on the side of the prosecution. In the absence of motive, those evidence have to be scrutinised with utmost care and caution. Now let us analyse the evidence adduced on the side of the prosecution with regard to the actual occurrence. The prosecution relied upon the evidence of P. W s. 1 and 2. Admittedly, P. Ws. 1,2 the deceased and their friends went to cinema theatre and that P. Ws. 2 and 3 are interested witnesses. It is admitted that P. W. 3 is mother than the brother of the deceased. It is stated that P. Ws. and the deceased belonged to A. I. A. P. M. K. Party. P. W. 2. emphatically denied the same. P. W. 2 also denied having put up any statue for tie deceased in his memory on behalf of A. I. A. D. M. K. Party. P. W. 3 has admitted the same. From this, learned trial Judge rightly commented upon even on the admitted fact P. W. 2 went the extent of denying the same. emphatically denied the same. P. W. 2 also denied having put up any statue for tie deceased in his memory on behalf of A. I. A. D. M. K. Party. P. W. 3 has admitted the same. From this, learned trial Judge rightly commented upon even on the admitted fact P. W. 2 went the extent of denying the same. Learned trial Judge has also observed that the evidence of P. W. 3 is interested and therefore, no reliance can be placed on his evidence. It is also to be noted that in respect of the same occurrence, according to the prosecution. , it is this P. W. 1 who is stated to have launched a complaint before the police at about 4. 00 a. m. and on the basis of the same, a case has been registered and the entire investigation has been started and a charge sheet has been filed. The Police Station is about a furlong from the Scene place. P. W. 1 himself has admitted that the cinema theatre where the occurrence has taken place, there is a phone and at the time of occurrence two police-constables also were on duty in the cinema theatre and they came to their assistance when P. W. 1 narrated about the incident to them. It is the evidence of P. W. 2 that when he went to P. W. 4 doctor, he instructed him to give a report and accordingly, he and his father went to give a report. It is the evidence of P. W. 3 that immediately after the murder, the police came to the cinema theatre. It is not in dispute that the police station is one furlong from the scene place and P. W. 1 himself has admitted the same and he has stated that necessarily one has to pass through the police station to bring a taxi. According to defence, the earlier report given to the police has been suppressed. Above all it has been vehemently argued on behalf of the accused that Ex. p. 1 which is now before the court stated to have been given by P. W. 1. Sundarasami is not the one which was given by him as the signature in Ex. According to defence, the earlier report given to the police has been suppressed. Above all it has been vehemently argued on behalf of the accused that Ex. p. 1 which is now before the court stated to have been given by P. W. 1. Sundarasami is not the one which was given by him as the signature in Ex. p. i namely, as Sundaram when compared with that of the signature of P. W. 1 in his deposition and that the signature in the inquest report clearly shows that the signature in Ex. p. 1 is not that of P. W. 1 and his signature has been forged by somebody else. In this connection, learned counsel for the accused wanted us to peruse Ex. P. 1, the inquest report as well as the deposition of P. W. 1 before court where he has signed in each pages. We find that P. W. 1 was signed as M. Sundarasami in his deposition as well as in the inquest report while in Ex. P. 1 it has been signed as Sundaram as if it has been signed by an illiterate person. Whereas in Ex. P. 14 the signature as Sundarasami shows that as if it has been signed by a very much literate person. We find every difference and variation in respect each letter between the two signatures. Learned Additional Public Prosecutor also on going through the signatures fairly concedes that the signatures differ. Learned Trial Judge also rightly observed that he could not accept that P. W. I is a person who has signed Ex. P. 1 and further Ex. P. 1 contains four pages and minute details and therefore, P. W. 1 could not have been the author of the same. We find every justification in the reasoning of the learned trial Judge in his ORDER and sufficient force in the contention of the learned counsel for the accused/respondents. In this connection, we wish to observe that it is settled proposition of law that when once the very First Information Report itself is very suspicious and when it has been established that it was not the one given by the informant and it was fabricated and created for the purpose of the case, the whole edifice of the prosecution case collapse and certainly no conviction can be given on the basis of the case set out in Ex. P. 1 and on the basis of the evidence given by the informant. Further, in this case, we have also got materials to show that Ex. P. 1 will not be the First Information Report as it is seen that immediately after the occurrence, the police also came there as could be seen from the evidence of P. W. 7. The occurrence was somewhere about 10. 00 p. m. in the night and the police station is only one furlong away from the cinema theatre where the occurrence is stated to have taken place. It is also the evidence of P. W. 1 as seen above that two police constables were also on duty in the cinema theatre to whom the incident is stated to have been told. Further, the injured was taken to the doctor and the doctor has also directed P. W. 1 to give a report and accordingly, the witnesses-also proceeded to the police station to give a report. That was at about 10. 30 p. m. The injured was taken in a taxi to the Government hospital and admittedly they have to pass through only the police station. In the circumstances, we find every force in the contention put forward on behalf of the defence that Ex. P. 1 is not the First Information Report and earlier a report was given and that has been suppressed and this Ex. P. 1 has been subsequently fabricated for the reasons best known to the prosecution. Further, it is in evidence that one Krishnan who was employed in the theatre and who was collecting tickets at the entrance, witnessed the occurrence, according to P. Ws. 1 and, 2. That Krishnan have been cited as a witness. But he was not examined in court. The non-examination of Krishnan and other employees in the theatre where the occurrence has taken place, is certainly fatal to the case, of the prosecution, especially in the circumstances of the case where the evidence of P. Ws. 1 and 2 are not trustworthy besides interested. ( 10 ) THE medical testimony in this case also does not support the ocular testimony and the version of the prosecution. According to the evidence of P. W. 1, after receipt of the injuries the deceased was alleged to have run to a distance of 150 feet and fell down. 1 and 2 are not trustworthy besides interested. ( 10 ) THE medical testimony in this case also does not support the ocular testimony and the version of the prosecution. According to the evidence of P. W. 1, after receipt of the injuries the deceased was alleged to have run to a distance of 150 feet and fell down. In this connection, the learned counsel for the respondent accused drew the attention of this court to the evidence of P. W. 6. Medical Officer who conducted autopsy. P. W. 6 would state that there are holes in the left lung and left ventricle and the death would have been instantaneous on receipt of the injuries to the lung and heart and he could not have run beyond 1 or 2 yards after receipt of the injuries. Not even reexamination was done with regard to the above evidence of the doctor in cross-examination. This falsifies the evidence of P. W. 1 that the deceased after receipt of the injuries ran 150 feet and then fell, down. The learned counsel for the respondents vehemently argued that the evidence of P. Ws. 1 and 2 is false and they could not have witnessed the occurrence. According to him, the evidence of P. W. 1 that the deceased ran 150 feet after receipt of the injuries and then fell down cannot be true. The medical evidence clearly falsifies the evidence of P. W. 1 that the deceased ran 150 and then fell down. The learned counsel for the respondents also drew the attention of this court to the absence of bloodstains at the scene place where the deceased was stabbed. According to the defence, the investigating officer did not see any bloodstains from the cabin to the place where the deceased ran and fell down. In this connection the evidence of P. W. 4. Medical Officer who had seen the deceased at about 10. 30 p. m. immediately after the occurrence, is important. Even in chief examination he says that he saw the injured with bleeding injury, and that he bandaged the wound with cotton and sent him to the Government Hospital, Coimbatore. In cross-examination also, he would categorically state that there was lot of bleeding from the injury and he suspected that there would have been an injury to the lung. Even in chief examination he says that he saw the injured with bleeding injury, and that he bandaged the wound with cotton and sent him to the Government Hospital, Coimbatore. In cross-examination also, he would categorically state that there was lot of bleeding from the injury and he suspected that there would have been an injury to the lung. This is confirmed by the doctor who conducted post-mortem, Thus it is seen from the evidence of the doctors that there should have been profuse bleeding from, the injury sustained by the deceased. If really the occurrence took place as alleged by P. Ws. 1 and 2 and the deceased was stabbed near the cabin, certainly there would have been bloodstains at the place where he was; stabbed, If it is a fact that the deceased after receipt of the injury ran to a distance of 150 feet, there should have been bloodstains on the way also, But significantly the investigating officer admitted that he did not notice any bloodstains. Either in the place where the deceased is alleged to have been stabbed or from the cabin up to the place where the accused fell down, he did not notice bloodstains. Only in the place where fie fell down in the road he noticed bloodstains. This falsifies the version of P. W s. 1 and 2 that the occurrence took place near the cabin and the deceased ran to a distance of 150 feet. ( 11 ) THE learned Additional Public Prosecutor would vehemently argue that the learned trial Judge relied on the paper publication in respect of the incident, which has been filed along with the statement of the first accused. In the paper publication the occurrence is said to have taken place inside the theatre. According to the learned Additional Public Prosecutor, the report in the newspaper is only hearsay evidence and that unless somebody 10 prove the contents of the newspaper has been examined, no reliance could be placed on the same. According to him, in the instant case the learned trial Judge mainly relied on the paper publication to reject the testimony of P. Ws. 1 and 2. According to him, in the instant case the learned trial Judge mainly relied on the paper publication to reject the testimony of P. Ws. 1 and 2. The learned Additional Public Prosecutor drew our attention to the decision of the apex court in S. N. Balakrishnan v. Fernandaz wherein it has been held: A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but no independently. In Laxmi Raj Shetty v. State of Tamil Nadu the apex court held: Judicial notice cannot be taken of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a news paper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78 (2) of the Evidence Act by which an allegation of fact can be proved. The presumption of genuiness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. A. I. R. 1969 S. C. 120 1. Rel. on. (Para 25) The learned counsel appearing for the respondents-accused did not dispute this proposition. What all he argued was that the above paper publication was put to the investigating officer who did not say that the paper publication is false. Further, the investigating officer fairly conceded that he did not enter into the theater and did not make any investigation in respect of this case. Only in that way the paper publication assumes importance. What all he argued was that the above paper publication was put to the investigating officer who did not say that the paper publication is false. Further, the investigating officer fairly conceded that he did not enter into the theater and did not make any investigation in respect of this case. Only in that way the paper publication assumes importance. According to the learned Additional Public Prosecutor, the finding of the learned trial Judge that the publication in the papers Dinakaran and Daily Thanthi in respect of the incident, which were only filed along with the statement of the accused and which is contrary to the evidence of P. Ws. 1 and 2, can be relied on is not sustainable in view of the ratio laid down by the apex court that the paper publication cannot be relied on in the absence of any evidence to prove the said fact which was published in newspaper. But, as rightly pointed out by the learned counsel for the respondents -accused the occurrence is said to have taken place near the cabin and it is also in evidence that the ticket -collector one Krishnan was present and he was an eye witness. The said Krishnan was not examined. At that time the cinema show was also in progress. None of the persons connected with the theatre was examined. Admittedly no investigation was done by the investigating officer in connection with the occurrence inside the theatre. In that way, the paper publication assumes importance. We agree with the learned Additional Public Prosecutor that the reasoning given by the trial Judge for rejecting the evidence of P. Ws. 1 and 2 relying on the paper publication is not correct. Further we are not relying on the paper publication for not accepting the evidence of P. Ws. 1 and 2, an independently we consider the evidence of P. Ws. 1 and 2 with respect to the occurrence as already discussed. ( 12 ) AS rightly observed by the learned trial Judge, no reliance can be placed on the recovery of M. O. I knife, weapon of offence, as it was not recovered at he instance of the first accused in pursuance of a confession of the first accused. But it was seized from the open cattle shed of the first accused during the course of investigation. In respect of the said recovery, nobody was examined. But it was seized from the open cattle shed of the first accused during the course of investigation. In respect of the said recovery, nobody was examined. Further though the knife was sent to the Chemical Examiner for analysis and it was found to contain human blood, the group of blood could not be ascertained as the result of the test was inconclusive. No reliance can be placed on the recovery of M. O. I as it is not an incriminating piece of evidence against the first accused. M. O. I was recovered from the open cattle shed in front of the house of the first accused. As rightly pointed out by the learned counsel for the respondent, it has not been recovered in pursuance of any confessional statement of the first accused. Further, the person who was present at the time of recovery of M. O. 1 was not examined. This also creates a doubt as to the recovery of M. O. 1. ( 13 ) THE learned counsel for the respondents vehemently argued that in this case the material witnesses have not been examined and the non-examination of material witnesses is fatal to the case of the prosecution. The learned counsel for the respondents pointed out that one Sivasami is said to have purchased a ticket and he was also there. He was cited as a witness in the charge sheet; but he was not-examined. If he was examined, the origin of the occurrence could be ascertained. The prosecution has not examined material witnesses in this case. We have already observed that the non-examination of Krishnan, who is an eye-witness to the occurrence according to Ex. p. 1, is certainly fatal to the case of the prosecution. If he was examined, the origin of the occurrence could be ascertained. The prosecution has not examined material witnesses in this case. We have already observed that the non-examination of Krishnan, who is an eye-witness to the occurrence according to Ex. p. 1, is certainly fatal to the case of the prosecution. ( 14 ) THE learned counsel for the respondents -accused drew the attention of this Court to the cope of interference in appeal against the order of acquittal and he drew the attention of this court to the decision of the apex court reported in K. Lakshmana Rao v. State of A. P. wherein it was observed: At any rate having considered the ORDER of the Sessions Judge and of the High Court and the evidence of the complainant we are satisfied that the view taken by the Sessions Judge was, undoubtedly, one which could be taken on the evidence and even if the High Court may not have agreed with that view and was prepared to take another view, that however was. no ground to reverse the ORDER of the acquittal passed by the learned Sessions Judge, as has been held by this Court in several cases. Taking an overall picture of the fundamental aspects of the prosecution case, we are unable to uphold the ORDER of the High Court. The result is that the appeal is allowed. The ORDER of the High Court is set aside and the appellant is acquitted of the charges framed against him. ( 15 ) ON a careful consideration of the entire evidence on record, we find that the view taken by the trial judge for acquitting the accused is perfectly legal and correct. We do not find any infirmity or illegality in the order of acquittal and we hold that the finding rendered by the court below is neither perverse, nor unreasonable so as to interfere with the order of acquittal recorded by the trial Judge. ( 16 ) IN the result, the order of acquittal passed by the court below is confirmed and the appeal fails and stands dismissed. Appeal dismissed.