Judgment :- K.M. NATARAJAN, J. ( 1 ) C. A. No. 662 of 1986 is directed by accused 3, 5 and 7 in S. C. No. 134 of 1985 on the file of the II Additional Sessions Judge, Salem, while C. A. , No. 669 of 1986 is directed by accused 1 and 4 and C. A. No. 671 of 1986 is directed by the second accused in the above case. C. A. No. 985 of 1986 is by the State against the order of acquittal of accused 1 to 4 in respect of certain charges framed against them. The appellants in C. A. Nos. 662, 669 and 671 of 1986; hereinafter referred to as accused according to their rank given before the lower court, were tried under nine charges under sections 120b, 364, 302, 120b read with sections 302, 201, 201 read with section 120b, 201 read with section 114 or 109, 404 and 193 I. P. C. on the allegation that in between 5. 4. 1984 and 15. 4. 1984 at Mettur and Salem Town in Salem District and at Vemandapalayam and Nambiyoor in Periyar District all the seven accused hatched a criminal conspiracy in order to murder the deceased Selvi Kala, and in pursuance of, the said conspiracy, all of them abducted her at about 7 A. M. on 13. 4. 1984 from Sales to Nambiyoor, and on the next day (14. 4. 1984) at 8 P. M. thiopentone medicine was administered to her by means of injection in the clinic of the second accused and as a result of the same she died. Accused 3,5 and 7 committed theft of jewels and watch worn by the said Kala. In order to cause disappearance of murder and to screen the offence and escape from the legal punishment, all the accused threw the dead body in the Lower Bavani Canal. The first accused made false entries in the records maintained in his police station. To substantiate the above charges, the prosecution examined P. W s. 1 to 91, filed Exs. P1 to P244 and marked M. Os. 1 to 57. The first accused made false entries in the records maintained in his police station. To substantiate the above charges, the prosecution examined P. W s. 1 to 91, filed Exs. P1 to P244 and marked M. Os. 1 to 57. K. M. Natarajan, J.-C. A. No. 662 of 1986 is directed by accused 3, 5 and 7 in S. C. No. 134 of 1985 on the file of the II Additional Sessions Judge, Salem, while C. A. , No. 669 of 1986 is directed by accused 1 and 4 and C. A. No. 671 of 1986 is directed by the second accused in the above case. C. A. No. 985 of 1986 is by the State against the order of acquittal of accused 1 to 4 in respect of certain charges framed against them. The appellants in C. A. Nos. 662, 669 and 671 of 1986; hereinafter referred to as accused according to their rank given before the lower court, were tried under nine charges under sections 120b, 364, 302, 120b read with sections 302, 201, 201 read with section 120b, 201 read with section 114 or 109, 404 and 193 I. P. C. on the allegation that in between 5. 4. 1984 and 15. 4. 1984 at Mettur and Salem Town in Salem District and at Vemandapalayam and Nambiyoor in Periyar District all the seven accused hatched a criminal conspiracy in order to murder the deceased Selvi Kala, and in pursuance of, the said conspiracy, all of them abducted her at about 7 A. M. on 13. 4. 1984 from Sales to Nambiyoor, and on the next day (14. 4. 1984) at 8 P. M. thiopentone medicine was administered to her by means of injection in the clinic of the second accused and as a result of the same she died. Accused 3,5 and 7 committed theft of jewels and watch worn by the said Kala. In order to cause disappearance of murder and to screen the offence and escape from the legal punishment, all the accused threw the dead body in the Lower Bavani Canal. The first accused made false entries in the records maintained in his police station. To substantiate the above charges, the prosecution examined P. W s. 1 to 91, filed Exs. P1 to P244 and marked M. Os. 1 to 57. The first accused made false entries in the records maintained in his police station. To substantiate the above charges, the prosecution examined P. W s. 1 to 91, filed Exs. P1 to P244 and marked M. Os. 1 to 57. ( 2 ) THE case of the prosecution as disclosed from the oral and documentary evidence, which is necessary for the disposal of these appeals, can be briefly stated as follows: The first accused was the Sub Inspector of Police attached to Mettur Police Station. The second accused was a registered medical practitioner possessing M. B. B. S. degree having passed in First Class and running a nursing home at Nambiyoor. The third accused apart from being a neighbour of the second accused is also a procurer of patients for the second accused. The fourth accused is the Village Administrative Officer and he married the cousin of the first accused. The fifth accused is a patient in the nursing home of the second accused and is a relation of the third accused. The sixth accused is the compounder under the second accused. The seventh accused is the husband of the third accused. P. W. 1 is the elder brother of the deceased Kala. P. W. 49 is the younger brother of the deceased. The deceased was working as a Woman Grade I constable at Mettur Police Station. ( 3 ) ACCORDING to the prosecution, the first accused was having an affair with the deceased Kala and they visited together about 9 or 10 places and stayed in lodges and hotels, both on days and nights. They had gone upto Kanyakumari in the south and Yercaud in the north. All the while the first accused did not know that the deceased belonged to a lower caste. When the deceased got pregnant, the first accused wanted to abort. The deceased refused to do so since she had a desire to marry the first accused. It is stated that because of this the first accused is said to have conspired with the other accused to get rid of the deceased. As regards their visit and stay, it is the case of the prosecution that the first accused was in the habit of engaging the cars from P. W. 6 who was running Madurai Tourist Centre at Salem. P. Ws. 2, 7, 8 and 9 were all drivers in the above concern. As regards their visit and stay, it is the case of the prosecution that the first accused was in the habit of engaging the cars from P. W. 6 who was running Madurai Tourist Centre at Salem. P. Ws. 2, 7, 8 and 9 were all drivers in the above concern. ( 4 ) ON 24. 12. 1983 at about 6. 15 p. m. the deceased and the first accused checked into the National Hotel, Salem and occupied cottage No. C-4. P. W. 24, Manager of the said hotel, has deposed about the same and about the entries in the register Ex. P69 and the carbon copy of the cash bill Ex. P70 dated 26. 12. 1983 to the effect that the room was vacated on 26. 12. 1983 at 4. 30 p. m. On 11. 1. 1984 at 7. 15 a. m. the first accused and the deceased checked into a lodge known as Kaveri Lodge at Kanyakumari. The room was vacated on 13. 1. 1984 at 7. 30 p. m. by the first accused. The entries were marked as Ex. P44 in the register. On 18. 2. 1984 at about 9 a. m. the deceased and the first accused checked into a place called Glass House at Yercaud. Again, on 11. 3. 1984 they went to Yercaud and stayed in the same place. This is spoken to by P. W. 2, driver of M. O. 7 Ambassador car. According to P. W. 2, the next day the first accused and the deceased got into the Ambassador car M. O. 7 TDL 5599 and asked him to proceed to Vemandapalayam. They went to the house of the fourth accused at Vemandapalayam; but he was not there. Thereafter the first accused sent P. W. 2 to his (first accuseds) house at Mettur to bring the fourth accused. Accordingly he went to Mettur and brought the fourth accused to Vemandapalayam on the next day morning that is on 13. 3. 1984 early morning. The first accused and the deceased were sitting in the house of the third accused, which is adjoining the house of the fourth accused. At about 1. 30 p. m. as per the instructions of accused 1, 3 and 4 and the deceased, he took them to Nambiyoor in his car M. O. 7 and they all took their lunch in India. At about 1. 30 p. m. as per the instructions of accused 1, 3 and 4 and the deceased, he took them to Nambiyoor in his car M. O. 7 and they all took their lunch in India. Hotel where P. W. 31 was the supplier: On the evening of 13. 3. 1984 P. W. 2 took accused 1, 3 and 4 and the deceased Kala to Nambiyoor. While they were travelling in his car, they were discussing about D and C to be performed on the deceased. At about 5 p. m. they all went to the second accuseds nursing home. At about 8. 30 p. m. the first accused alone came out and asked P. W. 2 to take him to Mettur. Accordingly P. W. 2 took him in his car M. O. 7 and dropped the first accused at Mettur at 2. 30 a. m. in the night and then he left for Salem. On, 14. 3. 1984 at about 11. 30 a. m. accused 1 and 4 went in P. Ws. 2s car to Neikarapatti to the house of P. W. 53 Subramania Pillai whose daughter was proposed for the first accused. Thereafter, the fourth accused was dropped at Vemandampalayam and the first accused and P. W. 2 came to Salem. ( 5 ) ON 16. 3. 1984 at about 6. 30 p. m. the first accused left for Anjalur in P. W. 9s car and proceeded to Sathiamangalam after taking one Venkatachalam (seventh accused) from Anjalur. At Sathiamangalam, they picked up the third accused and the deceased Kala and returned to Anjalur. They stayed for the night at Anjalur and on the next day morning accused 1 and 4 and the deceased went in P. W. 9s car to Woraiyur, Tiruchi and there they dropped the deceased. Thereupon P. W. 9 took the first accused and the fourth accused to Mettur and after dropping them there he returned to Salem. On 28. 3. 1984 at about 9 a. m. the first accused picked up the deceased Kala at Salem near Ponni Supermarket in P. W. 2s, car and proceeded to coimbatore where they checked into a hotel known as Seetharam Lodge, where P. W. 19 was working as Manager. The next, day, they vacated the room and left Coimbatore. On 28. 3. 1984 at about 9 a. m. the first accused picked up the deceased Kala at Salem near Ponni Supermarket in P. W. 2s, car and proceeded to coimbatore where they checked into a hotel known as Seetharam Lodge, where P. W. 19 was working as Manager. The next, day, they vacated the room and left Coimbatore. They proceeded to Tiruchi at 3 p. m. P. W. 2 stopped the car near Teppakulam at Tiruchi. The deceased and the first accused went and returned at 11 p. m. and thereupon they all came to Salem National Hotel where the first accused and the deceased stayed during the night. P. W. 2 left after leaving them at National Hotel. ( 6 ) ON 1. 4. 1984 the deceased Kala went on medical leave and went to the house of her brother P. W. 1. P. W. 1 told the deceased about his intention to get her married to one Mani P. W. 60. But the deceased Kala refused marrying him by saying that the said Mani was not good looking and he was short. She wanted a good looking bridegroom though his salary was less than the one she was drawing. On 5. 4. 1984 early morning ataqout3. 30 a. m. accused 1 and 4 and P. W. 64 constable attached to the Mettur police station, came to Salem, and from there they went in the Ambassador car driven by P. W. 2 to Tiruchi. They stopped the car at Woraiyur. The fourth accused and P. W. 64 went and returned and reported to the first accused that the deceased was in her house. Thereupon accused 1 and 4 and P. W. 64 stayed at Ajantha Lodge where P. W. 14 was the receptionist. The next day they vacated the room at about 6 p. m. It is stated that on 5. 4. 1984 early morning when they were going to Tiruchi in P. W. 2s car, the first accused was telling the fourth accused that he had sexual contact with the deceased and the deceased being a low caste woman told him that she was a Chettiar. The first accused further told the fourth accused that he somehow or other wanted to get rid of the deceased. The fourth accused assured the first accused that he would find somebody suitable for his marriage. On 6. 4. The first accused further told the fourth accused that he somehow or other wanted to get rid of the deceased. The fourth accused assured the first accused that he would find somebody suitable for his marriage. On 6. 4. 1985 they stayed in the house of the first accuseds senior paternal uncle and had seen another girl for the purpose of marriage. At about 11. 30 p. m. on the same day the fourth accused got down at Vemandapalayam while the first accused got down at Mettur. ( 7 ) ON 10. 4. 1984 at about 5. 30 a. m. a telegram was sent by the first accused to the deceased and that it was received by P. W. 49 who happens to be the brother of the deceased. It is written in the telegram Start Immediately. The deceased immediately started for Mettur. It is stated that at the time when she left for Mettur, she was wearing M. O. 1, ladys wrist watch and M. O. 2 gold chain. ( 8 ) ON 11. 4. 1984 at about 7. 30 p. m. P. W. 64, Constable attached to Mettur police station, met the deceased Kala in front of the Lakshmi Photo Studio where she was standing. At that time the deceased told him that she did not like her brother looking for an alliance as she was having an affair with the first accused. She also told him that she would get married to the first accused and asked P. W. 64 to speak about this to the first accused. When P. W. 64 discussed this matter with the first accused, the first accused immediately asked him to mind his business and. go away in an angry mood. On 11. 41984 the deceased informed P. W. 66, another woman constable who was her roommate, that she was going to Tiruchi on the early morning of 12. 4. 1984 at 5. 30 a. m. and so saying she took her saree in M. O. 22 bag and left thy room. On 11. 4. 1984 the deceased was treated by P. W. 37, who was a doctor attached to the Government Hospital, Mettur, and the relevant entry is marked as Ex. P79 in the passport Ex. P78 which was issued to her. P. W. 38 doctor treated the deceased on 31. 3. 1984 and made the relevant entry Ex. On 11. 4. 1984 the deceased was treated by P. W. 37, who was a doctor attached to the Government Hospital, Mettur, and the relevant entry is marked as Ex. P79 in the passport Ex. P78 which was issued to her. P. W. 38 doctor treated the deceased on 31. 3. 1984 and made the relevant entry Ex. P81 in the passport Ex. PSO which was issued to her. P. W. 39, Dr. Kandasami attached to the Government Hospital, Mettur, treated her on 1. 4. 1984 and he made the entry Ex. P82 in the said passport Ex. P80. On 12. 4. 1984 P. W. 40, Dr. Gunasekaran attached to the Government Hospital Karur, treated the deceased and made the entry Ex. P83 in the passport Ex. P78. P. W. 41, Dr. Madhanagopal attached to the Government Hospital, Karur, after examining the deceased recommended 15 days medical leave for the deceased on 13. 4. 1984. After this the deceased left for Trichy, via Salem. P. W. 70 is a Woman Constable attached to Namakkal Police Station. It is her evidence that the deceased came to Namakkal Police Station and, thereafter she left for Karur and again got into a bus bound for Salem. At about 6. 30 p. m. on 13. 4. 1984 P. W. 71, Traffic Constable who was on duty opposite to Vasantha Vihar Hotel, Salem, at the request of the deceased, tried to contact the first accused through phone; but she could not get line. Hence, at the request of the deceased, he went in person to Jayamurugan Lodge in which the first accused was staying and informed him about the arrival of the deceased. On 12. 4. 1984 the deceased and the first accused went in P. W. 8 scar to Yercaud and stayed in Glass House and they returned to Salem on the next day. ( 9 ) ON 13. 4. 1984 at 7 p. m. P. W. 7, as per the instructions of P. W. 6, picked up the first accused and the deceased from near the Salem Head Post Office, in the car and went to Vemandampalayam at about 10 p. m. The first accused dropped the deceased and he came back to Salem in the same car at 2 a. m. On 14. 4. 4. 1984 the first accused went in P. W. 2s car M:o. 7 TDL 5599 and picked up the deceased and the fourth accused at Nambiyoor and, thereafter, they all proceeded in the same car to Gobichettipalayam and on that day, the deceased appeared sad. At Gobichettipalayam, the fourth accused got down from the car and brought P. W. 4 who was a maternity assistant. The fourth accused requested P. W. 4 to help him for arranging for abortion of a girl who was brought by him. Since P. W. 4 did not know any doctor, she contacted P. W. 25, another nurse and got the address of P. W. 3, a Gynecologist. Thereupon the deceased was taken to P. W. 3. But, she went there with reluctance and that it was at about 11 A. M. P. W. 3 examined the deceased and found that she was not at all pregnant. P. W. 3 then asked the deceased as to why she wanted to have an abortion to which the deceased told P. W. 3 that she had already had an experience of abortion once and that she wanted to marry. The deceased quested P. W. 3 to talk to others, namely P. W. 4 and the fourth accused so that she may not be compelled to undergo abortion. Accordingly P. W. 3 informed the fourth accused that the deceased wanted marriage and that she did not want abortion. The fourth accused told P. W. 3 not to bother about marriage and asked her to make arrangement for abortion saying that they will come back in the evening. Thereafter, they returned in the car and on the way P. W. 4 got down. Accused 1 and 4 and the deceased went to Vembandampalayam. There at the request of the first accused, P. W. 2 fetched the third accused. Then accused 1, 3 and 4 and the deceased went to Nambiyoor where they went to the hospital of the second accused. It is stated that the deceased along with accused 1, 3 and 4 entered into the hospital of the second accused and at that time, the deceased was wearing M. O. 1 wrist watch and M. O. 2, gold chain. It is stated that the deceased along with accused 1, 3 and 4 entered into the hospital of the second accused and at that time, the deceased was wearing M. O. 1 wrist watch and M. O. 2, gold chain. At about 9 p. m. On the same day accused 1 and 4 came out of the nursing home of the second accused and gave a prescription to P. W. 2 along with Rs. 35/asking him to get medicine from Gobichettipalayam. The first accused asked P. W. 2 to leave the car M. O. 7 with the key there itself. ( 10 ) P. W. 5 is a jeweller near the nursing home of the second accused. He was in the habit of driving the car of the second accused whenever requested. On 14. 4. 1984 at about 9 p. m. the sixth accused went to the house of P. W. 5 and told him that the second accused wanted him to come immediately. When P. W. 5 went to the room of the second accused, accused 1 to 4 were there. There the second accused told P. W. 5 that accused 1, 3 and 4 brought a girl to his clinic so that abortion maybe done and in the process, she died due to reaction of the injection given to her. He then told P. W. 5 to take the car and dispose of the body of the girl at Bavani Sagar Dam. P. W. 5 refused to do the same saying that he will not drive the car for such purpose. In the meantime, the third accused fetched the fifth accused, his brother-in-law, who was a patient in the said hospital, saying that he could drive car. Thereupon accused 3 to 5 removed the body of the deceased which was found in M. O. 4 photo, with the help of stretcher M. O. 8 to M. O. 7 car. Thereupon the fifth accused drove the car. All of them joined together and threw the body in the Lower Bavani Canal. The act of disposal of the body was evidenced they P. W. 36 who had gone to see a movie on that day. P. W. 62 also speaks about P. W. 36 having gone to see the movie. P. W. 34, booking clerk of the cinema theatre also, certifies the issue of tickets for the movie at 10. The act of disposal of the body was evidenced they P. W. 36 who had gone to see a movie on that day. P. W. 62 also speaks about P. W. 36 having gone to see the movie. P. W. 34, booking clerk of the cinema theatre also, certifies the issue of tickets for the movie at 10. 30 p. m. every-day. P. W. 29 also testified to the fact that the fifth accused could drive the car. ( 11 ) IN the meantime P. W. 2 had gone to Gobichettipalayam to get some medicine and came back at 11. 30 p. m. in P. W. 35s auto. He found the car parked in a different place near the nursing home of the second accused. When P. W. 2 asked the first accused about the same, he was informed that the car was taken to a nearby village. Thereupon the first accused and P. W. 2 went t9 Mettur at about 230 a. m. in the same night. When P. W. 2 asked the first accused about, the deceased, the first accused said that she is not feeling well and that she will be discharged in 2 days. After the first accused left, the second accused told P. W. 5 that the deceased was one Kala working as a police constable attached to Mettor Police Station and that the death was due to allergic reaction of an injection given to her. Thereupon P. W. 5 took accused 2 to 4 to the car of the second accused and on the way since the car went into repair, the second accused got down. Thereupon he dropped accused 3 and 4 in their a respective houses and went to his house and later left the car in the house of the second accused. ( 12 ) SINCE there was no letter from the deceased, her brother P. W. I sent Ex. P2 letter dated 17. 4. 1984 to which also there was no reply. He booked a trunk call to the police station on 22. 4. 1984. He then learnt that the deceased was on medical leave till 28. 4. 1984. On 29. 4. 1984, P. W. 1 went to the police station and enquired about the deceased as the deceased was missing. Though he wanted to enquire this from the first I accused, he was not available. 4. 1984. He then learnt that the deceased was on medical leave till 28. 4. 1984. On 29. 4. 1984, P. W. 1 went to the police station and enquired about the deceased as the deceased was missing. Though he wanted to enquire this from the first I accused, he was not available. He then met P. W. 66 on 1. 5. 1984 who gave him a few pieces of letters which were sent by the first accused to the deceased and which were torn off by the deceased and they are Exts. P4 to P6. On 12. 5. 1984 P. W. 1 contacted the first accused and enquired about his giving a telegram to the deceased. But the first accused denied having given any telegram to the deceased. Thereupon P. W. 1 gave a report to the Inspector of Police, Mettur. The Inspector told him that he would take proper action. and search for her and inform him. On 13. 5. 1984 P. W. 1 gave, a complaint Ex. P7 to the, Superintendent of Police, Salem. P. W. 63, District Special Branch Inspector, Salem, enquired into Ex. P7 complaint and obtained the report Ex. P103 from the Inspector of Police, Mettur, on 14. 5. 1984 and again another report Ex. P104 on 5. 6. 1984. Thereupon, as per the instructions given by the Superintendent of Police, Salem, P. W. 87, Inspector of Police, Mettur, registered a case on the basis of Ex. P7 as Man Missing on Crime No. 214 of 1984 on 8. 6,1984. On 10. 6. 1984 he examined P. Ws. 46, 47 and 68 and also examined various other witnesses including some of the accused and then handed over the records along with photographs of the accused to the Inspector of Police, Crime Branch, C. I. D. (P. W. 91) who took up investigation on 24. 6. 1984. On 4. 7. 1984 P. W. 91 examined P. Ws. 5, 10, 16 and 17. On the basis of their statements, he altered the First Information Report into one under sections 120b read with 302, 201 and 109 I. P. C, wherein accused 1 to 6 were arrayed as accused. Ex. P228 is the altered First Information Report. On 5. 7. 1984 at about 4 p. m. he arrested accused 1 to 6. On 7. 7. 1984 at about 8. Ex. P228 is the altered First Information Report. On 5. 7. 1984 at about 4 p. m. he arrested accused 1 to 6. On 7. 7. 1984 at about 8. 30 a. m. he seized Exxts, P4 to P6 which were tom pieces o[letters produced by P. W. 1. On 7. 7. 1984 he seized various drugs from the consulting room of the second accused. On the same day, be searched the residence of the second accused During the search, P. W. 18, Drugs Inspector was also present. P. W. 18 stated that Thiopentone was a drug which will induce deep sleep to the patients during short operation. He further stated that this drug should be injected with care as it would otherwise be fatal to the patient. According to him Megimide and Bemigride are antidotes of the above drug and these antidotes were not found in the, clinic of the Second accused. He has given a report to this effect to P. W. 9 and the said report is marked as Ex. P48. On 8. 7. 1984 M. O. 7 car was seized from P. W. 6. On 11. 7. 1984 he seized various general diaries of the constables. On 21. 7. 1984 he held inquest near the channel of Bavanisagar in Pungambadi village where he found M. O. 39 skull. Ex. P232 is the inquest report. Four feet away, from this place, there was another skull and this is marked as M. O. 40. Ex. , P233 is the inquest report pertaining to that skull. On 22. 7. 1984 he found another skull M. O. 41 near the same place. Ex. P181 is the inquest report pertaining to that skull. Three feet away from that place, he found two pieces of skull and they were marked as Ex. P42. Ex. P182 is the inquest report pertaining to that skull. Two feet west of that place, he found five pieces of human skull. Ex. P183 is the inquest report pertaining to M. O. 43 the said five pieces of human skull. On 7. 1984 P. W. 73, Judicial Second Class Magistrate, Omalur, recorded the 164 statements of P. Ws. 5 and 10. On 12. 7. 1984 he recorded the 164-statements from P. Ws. 2 to 4. On 21. 8. 1984. he recorded the 164-statements of P. Ws. 36, 65 and 67. On 25. 9. 1984 P. Ws. On 7. 1984 P. W. 73, Judicial Second Class Magistrate, Omalur, recorded the 164 statements of P. Ws. 5 and 10. On 12. 7. 1984 he recorded the 164-statements from P. Ws. 2 to 4. On 21. 8. 1984. he recorded the 164-statements of P. Ws. 36, 65 and 67. On 25. 9. 1984 P. Ws. 1, 2, 66 and 68 correctly identified M. Os. 1 and 2. On 20. 7. 1984 at 3 p. m. an identification parade was conducted, by P. W. 72, Judicial Second Class Magistrate-in, charge, Omalur, in respect of accused 1, 2 and 4. In this parade P. W. 3 identified the fourth accused Correctly. P. W. 4 identified the fourth accused. P. Ws. 2 and 5 identified accused 1, 2, and 4. Further, P. Ws. 2, 5 and 10 also identified M. O. 4 which is the photo of the deceased. The proceedings of the identification parade is marked as Ex. P150. On 24. 7. 1984 P. W. 72 conducted an identification in respect of the third accused, wherein P. Ws. 2, 5 and 10 identified the third accused correctly and the proceedings are marked as Ex. P152. ( 13 ) ON 23. 7. 1984 the various skulls, M. Os. 39 to 43 and the photographs of the deceased were sent for superimposition test to the Forensic Department and the report is Ex. P180. On 25. 7. 1984 P. W. 91 examined P. W. 27 and recorded his statement. On the same day, he went to Lower Bhavani Channel and from one of the bushes he seized a bunch of hair under cover of mahazar Ex. P234. He also seized a similar bunch of hair from two other places. On 29. 7. 1984 he prepared a rough sketch of Skew Bridge Ex. P238. The sketches pertaining to the clinic of the second accused are Exs. P239 and 240. The report of the Forensic Expert with regard to the bunches of hair given by P. W. 75 is Ex. P179. P. W. 76 found that M. O. 49 skull matched with that of M. O. 50 which was the photograph of the deceased. The report with regard to the superimposition test is marked as Ex. P180. P. W. 74, Hand Writing Expert, gave his report Ex. P177 with regard to the signatures found in. the various hotel registers. P179. P. W. 76 found that M. O. 49 skull matched with that of M. O. 50 which was the photograph of the deceased. The report with regard to the superimposition test is marked as Ex. P180. P. W. 74, Hand Writing Expert, gave his report Ex. P177 with regard to the signatures found in. the various hotel registers. He found that they were the signatures of the first accused. On 16. 8. 1984 P. W. 91 went to Vemandapalayam branch of the Bank of Madurai where P. W. 21 (Branch Manager) produced the gold chain M. O. 2, which was later identified by P. W. 68. P. W. 91 seized the records connected with the seventh accused. P. W. 21 told P. W. 91 that M. O. 2 was pledged by the seventh accused on 25. 4. 1984. On 5. 9. 1984, P. W. 91 arrested the seventh accused al Coimbatore. P. W. 43, Professor of Forensic Medicines, Coimbatore Medical College gave his opinion Ex. P89 regarding the drug Thiopentone. On 17. 8. 1984 the 164-Statements of P. Ws. 35, 36, 65 and 67 were recorded. After completing the investigation, P. W. 91 laid the charge-sheet against the accused to 27. 12. 1984 under Sections 120b read With Section 364, 302, 302 read with Sections 114, 404, 201, 210 read with ll4and 167 I. P. C. ( 14 ) WHEN the accused were examined with reference to the incriminating piece of evidence under section 313 Cr. P. C. the first accused while denying the allegations as false would state that the deceased was employed as Grade I constable at Mettur Dam. Beyond that, he does not know anything about her and that he never gave any telegram or wrote any letter to her. He stayed at Yercaud, Kanyakumari and coimbatore in lodges along with his relations and that he never stayed there with the deceased Kala. While he was arrested and kept at the Salem Town police station, he was shown to the witnesses by the police for the purpose of identifying him later at the identification parade, that he had never seen P. W. 4, and that the evidence of P. W. 6 is false and he engaged the taxi in P. W. 6s concern only on two occasions and cash bills were issued. He did not go to Yercaud on 12. 4. He did not go to Yercaud on 12. 4. 1984 and he never stayed with the deceased. He filed a detailed written statement setting out his plea. In the written statement, he would further state that the evidence of P. Ws. 2 and 6 to 9 is false. On 14. 4. 1984 between 8 A. M. and 1. 30 P. M. he was only at Mettur Police Station. He again went to the police station at 5 p. m. and, thereafter, he went for rounds and returned at about 8 p. m. and was there till 1. 30 p. m. and thereupon he left for his house. Accordingly he made entries in the general diary and those entries are true. He would further state that he never took the deceased to the second accuseds clinic and that the deceased used to discuss her family affairs with the Head Constable 1337 Susindran. The second accused filed a written statement and he denied the evidence of the prosecution witnessed as false. He too would stat that he was shown to the witnesses at the Salem Town Police Station. According to him, P. W. 5 is deposing falsely on account of enmity between him and the said witness, that there were antidotes available in his Nursing Home, that he docs not know anything about the evidence of other witnesses and that he was taken from the village on 27. 6. 1984 by police. He would state that since P. W. 5 used to take his customers to the hospital run by one Dr. Palaniappan, there was a panchayat in which he beat P. W. 5 and hence there was enmity between them. There was competition in the profession and his enemies have implicated him falsely in this case. The third accused while denying the prosecution evidence as false would state that she does not know the second accused, that her elder sisters husband (fifth accused) was ailing and he was taking treatment in the nursing home of the second accused, that she used to take meals to him in the said clinic and that she was not acquainted with the second accused. M. O. 2 gold chain was presented to her by her elder brother Chidambaram during her marriage and that her husband, the seventh accused, pledged the same for agricultural expenses in bank and that she too was shown to the witnesses while she was kept in the police station. The fourth accused, while denying the prosecution evidence as false would state that he is staying with his family members at Ajantha Hotel, Tiruchi and while he was in the police custody, he was shown to the witnesses. He did not meet P. W. 4 on 14. 4. 1984, that he did not know the other witnesses, that he was arrested on 27. 6. 1984 and that this case has been foisted against him. The fifth accused while denying the evidence as false would state that he does not know to drive car, that on 14. 4. 1984 he was laid up and was not in a position to move out, that P. W. 5 is deposing falsely, and that nothing was recovered from him by the Inspector. He filed a written statement to that effect. The sixth accused while denying the allegations as false would state that he did not bring P. W. 5 on the date of occurrence, that he never drove the car for the second accused and that it is false to allege that the third accused used to visit the hospital of the second accused often. To that effect he has also filed a written statement the seventh accused also denied the prosecution evidence as false. He would the that M. O. 2 chain was presented to his wife, the third accused, at the time of marriage and he pledged the same in bank. He has also filed a written statement. ( 15 ) ON the side of the accused, 8 witnesses were examined as D. Ws. 1 to 8. D. W. 1 Dr. Sarojadas deposed that she is employed as Civil Assistant Surgeon at the Government Hospital, Gobichettipalayam and that on 12. 4. 1984 he has done family planning operation for one Dhanalakshmi and has entered the same at page 5 of Ex. Dli and that the entry is marked as EX. D12. Ex. D13 is the out-patient ticket issued to the patient while she was sent out of the hospital. D. W. 2 Dr. Raju deposed that on 12. 4. 4. 1984 he has done family planning operation for one Dhanalakshmi and has entered the same at page 5 of Ex. Dli and that the entry is marked as EX. D12. Ex. D13 is the out-patient ticket issued to the patient while she was sent out of the hospital. D. W. 2 Dr. Raju deposed that on 12. 4. 1984 he did blood test for the second accused in his clinic known as Saravana Surgery at Coimbatore and that Ex. D 14 is his report with regard to blood examination. On 13. 4. 1984 x-ray of the stomach and chest of the second accused was taken. Ex. D 15 series were the x-rays and Ex. D16 is the report of the Radiologist. D. W. 3 Palanisami deposed that he knew that there was enmity between the second accused and P. W. 5 and that there was a panchayat on the ground that P. W. 5 had taken the patients who were coming to the Nursing Home of the second accused, to some other hospital, and in that panchayat, P. W. 5 was beaten and at that time P. W. 5 threw challenges and took a vow that he will see to him in his own way. D. W. 4 deposed that he knew P. W. 5, that about two years prior to his evidence in the month of January he went to P. W. Ss house to invite him in connection with ear-boring ceremony of his grand-daughter. At that time, he noticed that one Murugesan took P. W. 5 to the Nursing Home of the second accused. He too went there. D. W. 3 and others were there. D. W. 3 questioned P. W. 5 whether it is a fact that he was taking the patients coming to the Nursing Home of the second accused, to the Nursing Home of Palaniappan, to which P. W. 5 replied that he had not taken the patients by dragging their hands and that he advised only those persons who came and asked his advice to go to Dr. Palaniappan. There was a wordy quarrel between D. W. 3 and P. W, 5 and that Murugesan and D. W. 3 slapped P. W. 5. At that time, P. W. 5 threw challenge on the second accused that he would see to he when time comes and so saying he left the hospital. Palaniappan. There was a wordy quarrel between D. W. 3 and P. W, 5 and that Murugesan and D. W. 3 slapped P. W. 5. At that time, P. W. 5 threw challenge on the second accused that he would see to he when time comes and so saying he left the hospital. D. W. 5 is a resident of Kodaka Uupalayam, about six miles from Nambiyoor. It is his evidence that he knew the second accused. Two years prior to his evidence, on $e first of Chitrai he went to the clinic of the second accused and he stayed for days for treatment regarding his stomach pain. On the Tamil New Year Day, the second accused did poor feeding. On the next day, the second accused examined him at 12 noon. When he wanted to leave the hospital at 5 p. m. the second accused did not come to the hospital till about 8 p. m. He gave money to the nurse and since there was deficit, the nurse asked him to pay the money to the doctor. At about 8 p. m. he was informed that the doctor the second accused was unwell and he mayor may not attend the hospital. Thereupon D. W. 5 went to his house and found that the doctor was lying in a cot in his house as he was unwell. He informed him what the nurse told him. Thereupon he gave the money and left for his house. D. W. 6 would state that he was a driver employed under the second accused. D. W. 7 would depose that M. O. 2 chain was purchased by them and that it was presented to his younger sister the third accused, at the time of marriage. D. W. 8 would depose that accused 3 and 7 belonged to their village, that the seventh accused pledged M. O. 2 chain in Bank of Madurai, that he stood as surety and that the third accused was wearing M. O. 2 chain for 5 or 6 years. On behalf of the defence. Exs. Dl to 16 were marked. ( 16 ) THE learned trial judge after taking into consideration the oral and documentary evidence, for the reasons assigned in his judgment came to the conclusion that there is no acceptable evidence for the alleged abortion on 13. 3. On behalf of the defence. Exs. Dl to 16 were marked. ( 16 ) THE learned trial judge after taking into consideration the oral and documentary evidence, for the reasons assigned in his judgment came to the conclusion that there is no acceptable evidence for the alleged abortion on 13. 3. 1984 in the Nursing Home of the second accused, for the deceased Kala. The trial judge also come to the conclusion that the charge of conspiracy under section 120b I. P. C. has not been established against any of the accused. The learned Judge came to the conclusion that the prosecution has not established the charge of kidnapping under section 364 I. P. C. The learned judge came to the conclusion that the second accused is liable for conviction under section 304 A. I. P. C. for rash and negligent act of giving injection and not for murder under section 302 IPC. Accused 3 to 5 were liable for the offence under section 201 IPC for carrying the dead body and throwing the same in Lower Bavani Channel. Accused 1 and 2 are liable for the offence under section 201 read with section 120b IPC and also under section 201 read with section 114 IPC. The first accused is also liable for the offence under section 193 IPC for making false entries in the general diary in order to escape from punishment. Accused 3 and 7 are liable for the offence under section 404 I. P. C. Consequently, the second accused is convicted under section 304a I. P. C. and sentenced to undergo R. I. for two years; accused 3 to 5 are convicted under section 201 I. P. C. and sentenced to undergo R. I. for six months; accused 1 and 2 are convicted under section 201 read with section 114 I. P. C. and sentenced to undergo R. I. for six months; accused 3 and 7 are convicted under section 404 I. P. C. and sentenced to undergo R. I. for two years and the 1st accused is convicted under section 193 I. P. C. and sentenced to undergo R. I. for five years. No separate sentenced was awarded to accused 1 and 2 under section 201 read with section 120b I. P. C. The sixth accused was acquitted in respect of all the charges. No separate sentenced was awarded to accused 1 and 2 under section 201 read with section 120b I. P. C. The sixth accused was acquitted in respect of all the charges. AS already stated, the first accused was acquitted under charge No. 1 for the offence under section 364 I. P. C. Accused 1, 3 and 4 were acquitted under charge No. 4 for the offence under section 302 read with section 120b I. P. C. The fifth accused was acquitted under charge No. 8 for the offence, under section 404 I. P. C. Hence, the convicted accused have preferred the respective appeals. The State has preferred the appeal against the order of acquittal of accused 1 to 4 in respect of offences under sections 364, 302 and 302 read with section 120b I. P. C. ( 17 ) LEARNED Senior Counsel for accused 1 and 4, Mr. N. T. Vanamamalai took us through the recorded evidence and made various submissions. According to the learned Senior Counsel, though the prosecution mainly relied on the alleged stay of the first accused arid the deceased at various places, it miserably failed to establish the same and the said evidence has been demolished by the materials which are available on the side of the prosecution and once It is held that there is no acceptable evidence with regard to the alleged stay, the main fabric of the prosecution case would collapse. He would submit that the trial court erred in holding that the offence under section 193 I. P. C. against the first accused has been made out. The learned Senior Counsel vehemently argued that the available materials do not constitute an offence, under section 304a I. P. C. He would submit that the evidence adduced in this case is highly interested and discrepant in material particulars. According to him, the finding that the second accused had administered the drug Thiopentone Sodium to the deceased Kala and that he administered the same rashly and negligently is without any evidence and that it is not sustainable either in an evidence or on facts. He would submit that no value could be attached to the identification parade as the accused were shown to the witnesses even prior to the identification parade. The learned Senior Counsel also vehemently urged that the evidence of P. Ws. 37 to 41 coupled with the certificates Exs. He would submit that no value could be attached to the identification parade as the accused were shown to the witnesses even prior to the identification parade. The learned Senior Counsel also vehemently urged that the evidence of P. Ws. 37 to 41 coupled with the certificates Exs. P79, 81, P82 and Exs. P83 would possibly establish that the deceased Kala was ill and was getting treatment and taking rest. He would submit that there is no acceptable evidence even with regard to the offence under section 201 I. P. C. and it has been clearly established that the evidence of P. W. 36 cannot be relied on as he is a stock witness for police. He would submit that the evidence of P. W. 76 that M. O. 49 skull is that of the deceased Kala cannot be accepted. The learned Senior counsel submits that the reasons given by the trial court for convicting the accused are unsound and unsustainable in law. The learned counsel appearing on behalf of the second accused, Mr. K. V. Sridharan, while adopting the arguments of the learned Senior Counsel appearing for accused 1 and 4, also took us through the evidence of the witnesses who have spoken to the specific charges against the second accused and also the evidence of the defence witnesses and would submit that P. W. 2 is a tutored and false witness and his evidence is contradicted by his own documentary evidence Ex. P19. His evidence that he went to Nambiyoor was found false by the lower court. No value could be attached to the identification of this witness as he has not given any identification features or marks to the Investigation Officer at the time of examination and the case of the second accused- was that he was shown to the witnesses at the police station. Further, though according to the prosecution he was arrested on 5. 7. 1984, the second accused filed a writ petition before this court to the been full be was arrested even on 27. 6. 1984 and that has been probablised by the evidence of P. W. 5 that he was examined on 4. 7. 1984 and even two days prior to his examination, the second accused was taken into custody. He would submit that P. W. 2 was unable to give the physical features and topography of the nursing home. 6. 1984 and that has been probablised by the evidence of P. W. 5 that he was examined on 4. 7. 1984 and even two days prior to his examination, the second accused was taken into custody. He would submit that P. W. 2 was unable to give the physical features and topography of the nursing home. The various answers elicited Show that he could not have gone there either on 13. 4. 1984 or on 14. 4. 1984. He would submit that P. W. 5 is a motivated witness and that it has been clearly established that there was enmity between this witness and the second accused and as such he is deposing falsely. No weight could be attached to the extra-judicial confession of the second accused to P. W. 8 as it has not been stated to the investigating officer and that version is an improvement just to implicate this accused. Even in the remand report Ex. P8 there is absolutely no reference at all about the alleged extra-judicial confession. He would submit that as regards the offence under section 304 A, I. P. C. there is absolutely no evidence on the side of the prosecution to show that Thiopentone sodium injection was given to the deceased and as a result of the same, she died. According to him antidotes for Thiopentone sodium was ever available in his dispensary. There is absolutely no evidence that Thiopentone injection was not given properly. According to him, the alleged extra judicial confession is not true. Further, it is retracted and that there is no independent corroboration and it cannot be relied on for convicting the accused. The learned counsel cited various decisions to the effect that giving injection itself by a registered medical practitioner which resulted in death would not amount to an offence under section 304a I. P. C. unless it is established that the negligence was culpable gross; but negligence based upon error of judgment would not amount to an offence. The learned counsel cited various decisions to the effect that giving injection itself by a registered medical practitioner which resulted in death would not amount to an offence under section 304a I. P. C. unless it is established that the negligence was culpable gross; but negligence based upon error of judgment would not amount to an offence. He would submit that since it is not the case of the prosecution that the first accused is a friend of the second accused or that he is any way interested in the first accused and in the absence of any evidence of conspiracy to kill the deceased, he cannot be convicted for the offence under section 304a I. P. C. According to the doctor P. W. 3,the deceased was not pregnant if charge No. 1 fails, the entire case of the prosecution collapses. The prosecution has not established any of the charges against the second accused much less charges 2,3,6 and 7 and his convictions are not sustainable. As regards accused 3,5 and 7, Mr. V. Srinivasan, while adopting the arguments of the learned, counsel appearing for the other accused in the other two appeals, would submit that the trial court has grossly erred in holding that the gold chain M. O. 2 was Wearing by Kala and that it was made by P. W. 23 whose evidence is wholly unbelievable. The test identification parade held in respect of M. O. 2 is totally bad. The conviction under section 404 I. P. C. of accused 3 and 7 is unwarranted as the court below ought to have accepted the testimony of D. Ws. 7 and 8 and held that M. O. 2 belonged to the third accused. The learned counsel also submitted that there is no iota of evidence to prove that the second accused did administer Thiopentone drug on the deceased Kala and that she died as a result of the same and as such erred in convicting this accused under sections 201 and 304-A I. P. C. The lower court again committed an error in believing P. W. 29, in the absence of the evidence of Madappan who was cited as a witness on the side of the prosecution. Though he was summoned, he was not examined. Though he was summoned, he was not examined. There is no other evidence to connect this accused with the crime and the said evidence of P. W. 23 is proved to be untrustworthy and no conviction can be awarded. Per contra the learned Additional Public Prosecutor would submit that there is enough evidence to prove the conspiracy and the finding of the lower court with regard to conspiracy is not sound and the court below ought to have convicted the first accused for the offence under sections 364 and 302 read with 120b I. P. C. while the second accused under section 302 I. P. C. He would submit that the court below ought to have relied on the evidence of P. Ws. 2, 3 and 6 and convicted the accused for the charges framed against them. According to the learned Additional Public Prosecutor, the extra-judicial confession said to have been made by the second accused to P. W. 5 can also be the basis for conviction. According to him, corpus delicti is not a must for conviction and that if the other evidence is acceptable, certainly, even in the absence of corpus delicti, conviction can be given. ( 18 ) THE points that arise for consideration in these appeals are: 1. Whether the conviction of the appellants-accused is sustainable? 2. Whether the order of acquittal is legal and correct or whether it requires any interference. ( 19 ) WE have set out the details of the case in extenso while narrating the case and we do not propose to reiterate the same once again except those that are necessary for consideration of the points raised in these appeals. The prosecution mainly relied on the evidence with regard to the association of the first accused with the deceased and their movements prior to this alleged incident. As already discussed in the narrative part, according to the prosecution, the first accused was the S lib Inspector of Police, Mettur Police Station and the deceased was a Grade I Constable. They developed intimacy and on account of the same, they used to stay in various places, namely, lodges and hotels after engaging a taxi from Madurai, Tourist Centre a concern at Salem where P. W. 6 was the Manager. The first stay, according to the prosecution was between 24. 12. 1983 and 26. 12. 1983 at National Hotel, Salem. They developed intimacy and on account of the same, they used to stay in various places, namely, lodges and hotels after engaging a taxi from Madurai, Tourist Centre a concern at Salem where P. W. 6 was the Manager. The first stay, according to the prosecution was between 24. 12. 1983 and 26. 12. 1983 at National Hotel, Salem. As far as this stay is concerned, the prosecution relied on the evidence of P. W. 24 who is the manager of the said National Hotel. In chief-examination he would state that the first accused and the deceased Kala who was identified from the photo M. O. 4 shown to him, came 24. 12. 1983 at 6. 15 p. m. and checked into C-4 cottage and stayed there till 26. 12. 1983 at 4. 30 p. m. and thereupon they vacated. A rent of Rs. 142. 50 was paid. According to him, entry was made in Ex. P69 register and the carbon copy of the bill is Ex. P70. Ex. P69 does not show that the deceased also came along with the, first accused and stayed with him in C-4 cottage as the column No. of persons is left blank. The bill Ex. P70, as against the column Extra guest is left blank. Thus, there is absolutely nothing to show that besides the first accused, any other person stayed with him during that period. In this connection the learned counsel for the appellants drew the attention of this court to the evidence of P. W. 69, who is a Woman Sub Inspector of Police attached to the Mettur Police Station. Though her, the pocket diary of the deceased for the period from 25. 11. 1983 to 31. 12. 1983 Ex. P139 was marked. This shows that on 25. 12. 1983 she was, on off duty from morning. From 26. 12. 1983 she was back on duty. The deceased could not have been in National, Hotel between 24. 12. 1983 and 26. 12:1983. As far as this stay is concerned, we have got only the oral evidence of P. W. 24. But that has been falsified by the documentary evidence as the register and other documents maintained at the said hotel do not show that except the first accused, anybody else was there and his evidence is contradicted by the entries in the records. But that has been falsified by the documentary evidence as the register and other documents maintained at the said hotel do not show that except the first accused, anybody else was there and his evidence is contradicted by the entries in the records. Further, the general diary entry for the relevant date maintained in the Mettur Police Station, which is marked as, Ex. P141 shows that at about 7 a. m. for the roll call the deceased Kala, whose number is Woman Grade I. P. C. 1595, was present. Again, at 20. 00 hours, the deceased Kala along with others were sent from the police station to their respective residences. To the same effect similar entries were made by the deceased in her pocket note book Ex. P139 for the date 24. 12. 1983. Hence, she could not have accompanied the first accused to the National Hotel from 24. 12. 1983 to 26. 12. 1983. Further, even as per the general diary entry dated 26. 12. 1983 at about 7 a. m. she was present for the roll call. At about 20. 30 hours, she was allotted beat duty along with, others. To the same effect entries were made in Ex. P139. According to the learned counsel, Ex. P139 was under the control of Woman Sub Inspector, P. W. 69. She checked and signed the entries in Ex. P139 also. The General Diary was written by her these records of the prosecution, kept contemporaneously by the Sub Inspector and by the deceased herself belie the evidence of P. W. 24. This clearly establishes that the case of the prosecution that she stayed with the first accused from 24. 12. 1983 to 26. 12. 1983 at the National Hotel could not be true as rightly contended by the learned counsel for the appellants. ( 20 ) NEXT comes the stay on 18. 2. 1984 from 9 p. m. at Yercaud. It is stated that both the first accused and the deceased checked into a place called House of Peace at Yercaud and, they remained there till the next day at 7 a. m. on 19. 2. 1984. The prosecution relied on the evidence of the watchman of the said House of Peace, P. W. 26 and the register Ex. P. 76 maintained in the said House of Peace. 2. 1984. The prosecution relied on the evidence of the watchman of the said House of Peace, P. W. 26 and the register Ex. P. 76 maintained in the said House of Peace. It is the evidence of P. W. 26 that he is the watchman of the said House of Peace which was originally known as Glass House and that he knew the first accused since he was the Sub Inspector of Police, Yercaud already; According to him, on 18. 2. 1984 the first accused along with a woman came to the House of Peace at about 9 p. m. and on the next day they left at 7 a. m. and that he himself wrote in his own handwriting in the register Ex. P76. According to him, the woman found in M. O. 4 is that of the same woman who came along with the first accused. In this connection, the learned counsel drew the attention of this court to EX: D7 special report submitted by the Head Constable 1337 Saseendran. As per the said report, on 18. 2. 1984 the deceased was in the house of P. W. 61, who was employed in Public Works Department whom the deceased proposed to marry. In connection with recruitment of her younger brother in police, she had been to his house. According to him (H. C; 1337) the deceased herself told him about her stay and when he expressed that it is not desirable for her to stay in that house, she told him that she would not go there till her marriage. Thereafter she went on sick leave. This report was made by H. C. 1337 to the Inspector of Police on 24. 5. 1984. P. W. 87, who is the then Inspector of Police, Mettur, deposed in his evidence that he sent Head Constable Saseendran on special duty in search of Kala, as per the order of the D. I. G. and on the basis of his report, he sent the report Ex. P104 to the Salem District Special Branch Inspector. Even in Ex. P104 it is stated that the Woman Sub Inspector and the. Head Constable got information that during the constabulary selection on 18. 2. P104 to the Salem District Special Branch Inspector. Even in Ex. P104 it is stated that the Woman Sub Inspector and the. Head Constable got information that during the constabulary selection on 18. 2. 1984, Woman Police Constable Kala stayed along with one Muthukumar P. W. 61, a P. W. D. worker, his relative boy Maialagan with two other persons in the house of P. C. 356 Thangavel rented by the said four persons. Kala was found talking with Maialagan who is now at Madurai, whom her brother wanted to take as her life partner. P. W. 69 in her special report has stated to the same effect that the deceased Kala and her brother stayed in the house of one Thangavelu on 18. 2. 1984 from 10 p. m. till the next day in connection with the selection of her brother for constabulary post and about her leaving on the next day. P. W. 87 and 61 also corroborated the version mentioned in Exs. D7, P104 and P148. P. W. 61 confirmed her stay with her brother in his house in connection with the selection of her brother for constabulary post on 18. 2. 1984 and he also recommended for the selection of her brother to the Reserve Inspector; but he was not selected. P. W. 61 was employed as Assistant Engineer, in P. W. D. This clearly falsifies the case of the prosecution and the evidence of P. W. 26 that the first accused and the deceased came to Yercaud and stayed in House of Peace on 18. 2. 1984 from 9 p. m. till 19. 2. 1984, 7 a. m. ( 21 ) NEXT comes their alleged stay in House of Peace at Yercaud between 11. 3. 1984 (9. 45 a. m.) to 12. 3. 1984 (5 a. m. ). This has been spoken to by P. W. 26 and the prosecution relied on the entry made in the register which is marked as Ex. P77. It is the evidence of P. W. 69 that the deceased Kala presented a petition for leave for two days on 9. 3. 1984 and 10. 3. 1984 to go to Trichi in order to take her parents at Tiruchi to temple. It is so stated in Ex. P129. Again, she sent a telegram under Ex. P130 on 10. 3. 1984 for extension of leave for four days from 11. 3. 3. 1984 and 10. 3. 1984 to go to Trichi in order to take her parents at Tiruchi to temple. It is so stated in Ex. P129. Again, she sent a telegram under Ex. P130 on 10. 3. 1984 for extension of leave for four days from 11. 3. 1984. Ex. P131 is another telegram praying for extension of 3 days casual leave Horn 15th. Ex. P132 is an other telegram for extension of leave for 2 days and that was issued on 18. 3. 1984. All these telegrams were sent from, Tiruchi. It is clear that she was at Tiruchi all these days in her brothers house. While such is the fact, it is a figment of imagination that she stayed in House of Peace at Yercaud on 11. 3. 1984 and 12. 3. 1984. In this connection the prosecution relied on the evidence of P. W. 2 also, who is the driver working under P. W. 6, who is running Madurai Tourist Centre at Salem. It is the evidence of P. W. 2 that on 11. 3. 1984 P. W. 6 asked him to take the first accused in his car at about 8. 15 A. M. Accordingly the first accused got into the car. Thereupon he asked him to go to Samundi Supermarket and from there the deceased was taken. He called the woman Kala and she got into the car. They were taken to Yercaud to the Glass House. They stayed there from 10. 30 a. m. till the next day at 9. 30 a. m. Later, the first accused asked him to drive the car to Vemandampalayam to the house of the fourth accused. His evidence is proved to be false in the face of the leave application submitted by the deceased Kala and the various telegrams sent from Tiruchi extending leave, as they clearly show that she could not have stayed at Glass House on 11. 3. 1984 and 12. 3. 1984 as alleged. Next comes the stay of the first accused and the decease9 at Coimbatore on 28. 3. 1984 and 29. 3. 1984. According to P. W. 2, on 28. 3. 3. 1984 and 12. 3. 1984 as alleged. Next comes the stay of the first accused and the decease9 at Coimbatore on 28. 3. 1984 and 29. 3. 1984. According to P. W. 2, on 28. 3. 1984 the first accused took the deceased Kala from near Ponni Supermarket, Salem, in his car M. O. 7 to Coimbatore and near the bus stand, the first accused took a lodge where they stayed, and on the next day on 29. 3. 1984 at 3 p. m. they got into the car and asked him to proceed to Tiruchi. They reached Tiruchi and near Teppakulam, he was asked to stop the car. They returned same time later and again they proceeded to Salem at about 11 p. m. and they got down near the National Hotel. He was paid Rs. 668/- as hire charges. In this connection, the learned counsel for the appellants drew the attention of this court to Ex. P7 report made by the brother of the deceased (P. W. 1) to the Superintendent of Police, Salem, wherein he has stated that the deceased after obtaining medical leave came to his house at Tiruchi on 28. 3. 1984, and on 9. 4. 1984 she got a telegram from the first accused asking her to start immediately and accordingly she left. This clearly shows that on 28. 3. 1984 she was at Tiruchi in her brothers house after obtaining medical leave and hence she could not have travelled in P. Ws. 2 scar to various places as alleged along with the first accused. P. W. 69, Woman Sub Inspector attached to the Mettur Police Station has categorically stated in her evidence that 28. 3. 1984 was a rest day for the deceased and on 29. 3. 1984 she sought two days leave through phone on the ground that her elder brother was unwell and that she entered the same in the General Diary which is marked as Ex, P125. She joined duty on 3 1. 3. 1984 and reported that she was unwell. She abated sick passport and was getting treatment as an outpatient. She went on medical leave from 1. 4. 1984 to 10. 4. 1984. The sick pass port is Ex. P78 Ex. D5 is the leave application submitted by her. She joined duty on 3 1. 3. 1984 and reported that she was unwell. She abated sick passport and was getting treatment as an outpatient. She went on medical leave from 1. 4. 1984 to 10. 4. 1984. The sick pass port is Ex. P78 Ex. D5 is the leave application submitted by her. It shows that she was not well and she was taking treatment in a private nursing home and hence -she praye4 far two days leave, namely, On 29. 3. 1984 and 30. 3. 1984. This was addressed to P. W. 69 and her address was given as that of her place at Woraiyur, Tiruchi. The learned counsel for the appellants vehemently argued that from these documentary evidence it is clear that in this case P. W. 6 contributed number of witnesses viz. P. Ws. 2,7,8 and 9, the alleged drivers employed under him, in support of the prosecution case and their evidence is contrary to the truth of the documentary evidence. He would submit that no identification parade was held in proof of their stay in any hotels in various places -. Hence it is clear that the alleged stay of the deceased with the first accused at Coimbatore after travelling in P. W. 6s Car is proved to be false on the face of the documents produced by the prosecution. ( 22 ) NEXT in the series of stays comes the alleged stay at National Hotel from 30. 3. 1984 at 2. 10 a. m. to 31. 3. 1984 at 10. 55 p. m. The evidence of P. W. 24 as well as the register maintained in the said hotel Ex. P71 and the carbon copy of the bill Ex. P72 are relied on. In this connection the attention of this court was drawn to the entries made in Exs. P71 and P72. In Ex. P71, against column No. 13 (Number of persons), it is shown as. . . In Ex. P72 bill as against the column Extra Guest, it is left blank. The learned counsel for the appellants would submit that whatever is submitted by them in respect of the previous day, will equally apply here also as it is the same register and it is the same witness whose evidence has already been disbelieved in respect of the previous stay on the basis of the documentary evidence. The learned counsel for the appellants would submit that whatever is submitted by them in respect of the previous day, will equally apply here also as it is the same register and it is the same witness whose evidence has already been disbelieved in respect of the previous stay on the basis of the documentary evidence. In this connection the learned counsel drew the attention of this court to the very report submitted by P. W. 1, brother of the deceased, which is marked as Ex. P7, wherein he has categorically stated that from 28. 3. 1984 she was on medical leave till 9. 4. 1984 when she got a telegram in his house and only thereafter she left the house. Hence her stay on 30. 3. 1984 and 31. 3. 1984 at National Hotel is not true. Further, she herself sent leave letter from Tiruchi in her brothers house for extending the leave for 29. 3. 1984 and 30. 3. 1984. The said leave letter was sent from Tiruchi. In this case also, the driver involved is P. Ws. 2 and we have already seen how far his evidence is acceptable as true. In the face of the documentary evidence available on the side of the prosecution, the prosecution has miserably failed to establish their stay (deceased and the first accused) on these two days, 30. 3. 1984 and 31. 3. 1984 at the National Hotel. The next in the series comes the alleged stay on 3. 4. 1984 from 12. 45 a. m. to 4. 20 a. m. in the same National Hotel. Here again the prosecution relied on the evidence of P. W. 24 the same manager and the register Ex. P73 maintained by him and the carbon copy of the bill Ex. P74. To the same effect P. W. 24 has stated that the deceased along with the first accused came and stayed in the hotel on 3. 4. 1984. As already stated, even P. W. I brother of the deceased says that the deceased was with him at Tiruchi on that date and even prior to it. As such no reliance could be placed on the said evidence of P. W. 24 and the evidence of P. W. 1, the brother of the deceased. Hence the prosecution has failed in their attempt to establish the alleged stay. As such no reliance could be placed on the said evidence of P. W. 24 and the evidence of P. W. 1, the brother of the deceased. Hence the prosecution has failed in their attempt to establish the alleged stay. On the other hand, on the basis of the documents, it is proved to be not true. Next, it is stated that on 5. 4. 1984 from 6 a. m. to 4 p. m. P. W. 64 and accused 1 and 4 stayed in Ajantha Lodge, Tiruchi. According to the first accused, he and his friends were at It hapoor on that date. It is the evidence of P. W. 64 Constable that he along with the accused 1 and 4 came from Mettur and went by M. O. 7 Ambassador car driven by P. W. 2 and reached Tiruchi at 6 a. m. and stayed at Hotel Ajantha at Tiruchi and the room was booked in the name of the fourth accused and the relevant entry is Ex. P42, Hotel Register. In its evidence that after taking bath at 10. 30 a. m. they all went to the house of Kala at Woraiyur and after meeting Kala, they went to Srirangam temple, and after vacating the room, they returned to Reddipalayam: The deceased Kala was on medical leave from 1. 4. 1984 at Tiruchi. While they were travelling in the car, P. W. 64 was seated by the side of the driver while accused 1 and 4 were seated on the back side. At that time the first accused was telling to the fourth accused about his sexual contact with the deceased. He further told him that the deceased was representing that she belongs to Chettiarcaste and subsequently he came to know that she belongs to a Schedule Caste (Ckalkar caste ). He further told him that he wanted to severe his connection with her and do away with her, to which the fourth accused replied that he need not worry, that the deceased would be done away with and that he would arrange for his marriage. According to him, this was stated while they were proceeding from Salem to Tiruchi. He could state that after reaching Reddipalayam, they stayed in the house of the senior paternal uncle of the first accused on the night of 5. 4. 1984. According to him, this was stated while they were proceeding from Salem to Tiruchi. He could state that after reaching Reddipalayam, they stayed in the house of the senior paternal uncle of the first accused on the night of 5. 4. 1984. , On the next day, they went to Bungalow Pudur to see a girl for alliance and, thereafter, they return to Mettur at 11. 30 p. m. , On the way, the fourth accused got down at Vembandamplayam. Learned counsel for the appellants vehemently argued that if really the first accused has stated to the fourth accused in the car on 5. 4. 1984 as alleged by P. W. 64, it is highly improbable that the deceased would have declared to P. W. 64 himself about her intention to marry the first accused on 11. 4. 1984 and asked him to make arrangements for marriage and thereupon, P. W. 64 would have approached the first accused and informed the same and the first accused asked him to go away. In that context the normal conduct of P. W. 64 would be that he would have immediately informed the deceased about what transpired in the car on 5. 4. 1983 and further he would not have mooted the idea of marriage of the deceased to him. If the version of P. W. 64 that on 11. 4. 1984 at about 7. 30 p. m. the deceased told him that her brother was looking for a bridegroom for her and she did not like the same and she wanted to marry the first accused and that she requested P. W. 64 to inform the same to the first accused and accordingly P. W. 64 informed the same to the first. accused and the first accused asked him not to interfere with the same and the deceased was shocked on being apprised of the same, then his version that on 5. 4. 1984 there was a conversation between accused 1 and 4 in the car with regard to the idea of thy first accused to sever his connection with the deceased and do away with her and then marrying a lady could not be true. 4. 1984 there was a conversation between accused 1 and 4 in the car with regard to the idea of thy first accused to sever his connection with the deceased and do away with her and then marrying a lady could not be true. Further, the driver P. W. 2, in whose side P. W. 64 was seated, did not support his version and he did not corroborate the evidence of P. W. 64 and he did not say the alleged conversation between accused 1 and 4. According to P. W. 64, he met the deceased on-that day. But, he did not inform her about the same or inform the same to anybody till the police examined him long after 5. 4. 1984. The whole evidence regarding the stay at Ajantha Lodge is not reliable since there is no identification parade for P. W. 14 who is the receptionist at Ajantha, Lodge and who deposed about checking of the first accused in the room on 5. 4. 1984. Further, the T. A. Bill Ex. P105 and the entries made therein Ex. P106 from. 5. 4. 1984 to 10. 4. 1984 falsifies the version of P. W. 64, as, according to Ex. P106, he visited different places during those days and not Tiruchy. According to the entries in Ex. P106 he had been to Kolathur, Madeswaramalai Kollakal, Andhiyur and Coimbatore and he claimed travelling allowance for visiting those places on those dates and not Tiruchi. Further, while P. W. 64 was examined by P. W. 87 Inspector, admittedly he did not say about his visit to Tiruchi and, thereafter to Reddipalayam. Similarly when he was examined for the second time also, he did not depose about the same. Only when P. W. 91 Prakasam, Inspector, examined him, he has deposed all these facts. The only explanation is that he was afraid of the first accused. Such explanation could not be accepted. According to the first accused, he left Mettur even on 5. 4. 1984 to his village after applying for two days casual leave for 5. 4. 1984 and, 6. 4. 1984 and that he was in his village. Further, to the Investigating Officer, P. W. 64 has stated that they, went to the house of the deceased at Tiruchi on 6. 4. 1984 and not on 5. 4. 1984. 4. 1984 to his village after applying for two days casual leave for 5. 4. 1984 and, 6. 4. 1984 and that he was in his village. Further, to the Investigating Officer, P. W. 64 has stated that they, went to the house of the deceased at Tiruchi on 6. 4. 1984 and not on 5. 4. 1984. This completely falsifies the case of the prosecution that they went to Tiruchi on 5. 4. 1984 and they saw the deceased on that date and that on that day there was conversation between accused 1 and 4. When P. W. 64 was confronted with the above statement to the investigating officer, he would state that he did not remember. The investigating officer in his evidence categorically admitted that P. W. 64 has stated so that he went to Tiruchi only on 6. 4. 1984 and not on 5. 4. 1984. Thus as regards this aspect also, the prosecution has miserably failed to establish that the first accused went to Tiruchi on 5. 4. 1984 and, thereafter, went to Reddipalayam etc. ( 23 ) NEXT in the series is the alleged stay at the House of Peace at Yercaud from 12. 4. 1984, 8. 30 a. m. to 13. 4. 1984, 6 a. m. The prosecution relied on the evidence of the driver P. W. 8 who was employed under P. W. 6 and that of the watchman P. W. 26. Though P. W. 26 would state in his, evidence in chief that the first accused along with a man came and stayed on 12. 4. 1984 and left on the next day, in cross-examination he has admitted that on 12. 4. 1984 one Subramaniam who was employed in the Judicial Second Class Magistrates Court, Salem, stayed in the said House of Peace and he vacated only on 17. 4. 1984 morning as per the entries in the register maintained there. We have already found that his evidence with regard to the other stay is proved to be false on the basis of the documentary evidence, and even on the basis of his own register in the House of Peace, his evidence is proved to be false: There is no corresponding entry in the register about the stay of the first accused. He has not spoken to anything about the entry with regard to their stay. But, Ex. He has not spoken to anything about the entry with regard to their stay. But, Ex. P167, the entry in the register maintained in House of Peace has been marked through P. W. 74, Examiner of Questioned documents. In Ex. P 167, the handwriting is marked as Q. 16 and the, signature is marked as Q. 17. As per the opinion of P. W. 74, the signature found therein is not the signature of the first accused. It is not the signature of the first accused. Similar to S. 26 and 5. 27 as per the report Ex. P177 submitted by P. W. 74. Further, we have got clinching documentary evidence on the side of the prosecution that the deceased could not have accompanied the first accused and both of them could not have stayed at Yercaud during those days. P. W. 40 Dr. Gunasekaran was employed as Civil Assistant Surgeon, Government Hospital, Karur at that time and it is his evidence that the deceased met him on 12. 4. 1984 at the Government Hospital. He examined her in the afternoon and made entry in the passport Ex. P78 and the entries are marked as Ex. P83. Admittedly Karur is far away from Yercaud. The learned counsel for the appellants vehemently argued that in view of the above circumstances it is clearly established that the prosecution wants to introduce false evidence through P. W. 26 with regard to various stay at Yercaud and also through the drivers of the concern of P. W. 6 and the drivers arc examined as P. Ws. 2, 7 and 8 and in the instant case P. W. 8 is the driver under P. W. 6. According to the learned counsel the drivers have gone to the extent of giving false evidence in support of the prosecution case. It is clear that they were introduced to speak falsehood in respect of those charges in this case. We have no hesitation in holding that the version of the prosecution that the first accused stayed with Kala at Yercaud on 12. 4. 1984 and he vacated the room on the next day on 13. 4. 1984 is also not established and on the other hand it is preyed to be untrue even on the basis of the documents and the evidence adduced on the side of the prosecution. 4. 1984 and he vacated the room on the next day on 13. 4. 1984 is also not established and on the other hand it is preyed to be untrue even on the basis of the documents and the evidence adduced on the side of the prosecution. ( 24 ) THE prosecution also relied on one other stay at Kanyakumari in Kaveri Lodge during the month Of January, 1984, that is, on 11. 1. 1984 to 13. 1. 1984. In support of this allegation, the prosecution examined P. W. IS, Assistant Manager of the said lodge. It is his evidence that on 11. 1. 1984 at about 7. 15 a. m. the first accused and one woman checked into the double room No. 32 and the relevant entry in the register is marked as Ex. P44. They stayed there for 2-1/2 days. However, P. W. 15 charged room rent only for two days. According to him, the woman found, in M. O. 4 is the said woman: When he was confronted with the entry in the register in cross-examination and questioned whether from the entry could say as to how many male and female stayed in the hotel, he fairly concede that he cannot say from the entries. There is absolutely nothing in the entry Ex. P44 that one male and one female stayed there and that the deceased also stayed there. He also fairly conceded that he did not give any identification features of the woman to the Inspector of Police while he was examined. According to him, Kanyakumari is a tourist centre and people used to. come from different places in order to see Kanyakumari. The learned counsel argued that no identification parade was held with regard to this witness and that this is not the way of investigation by showing a photo and asking whether that particular woman in the photo stayed there or not, without ascertaining the identification marks and that sort of evidence is Got of much value. He would further submit that we have already seen that in respect of 8 other instances the prosecution, has introduced false evidence through drivers of a particular firm and also through a particular lodge or hotel. They were only introduced and they gave evidence contrary to the documents and that it is highly dangerous to accept the evidence also. He would further submit that we have already seen that in respect of 8 other instances the prosecution, has introduced false evidence through drivers of a particular firm and also through a particular lodge or hotel. They were only introduced and they gave evidence contrary to the documents and that it is highly dangerous to accept the evidence also. Further, this evidence is nut of much value and as such the evidence adduced by the prosecution may not carry any weight and there is no acceptable evidence with regard to the stay of the first accused with the deceased at various places from 24. 12. 1983to 13. 4. 1984 as alleged. ( 25 ) EVEN the trial court came to the conclusion that as regards the case of the prosecution that the deceased stayed with the first accused at Yercaud, there is no possibility of the alleged stay and held accordingly. As regards the stay at National Hotel on 3. 4. 1984 the trial court held that the evidence adduced on the side of the prosecution is not acceptable with regard to the stay of the first accused with Kala; similarly the stay at Yercaud on 12. 4. 1984 in view of the opinion of the Handwriting Expert and the fact that the deceased was seen and examined by the doctors of the Government Hospital at different places, that is, from 24. 12. 1983 to 26. 12. 1983 at National Hotel, 11. 1. 1984 and 12. 1. 1984 at Kaveri Lodge, Kanyakumari, 18. 2. 1984 to 19. 2. 1984 at Yercaud, 28. 3. 1984 and 29. 3. 1984 at Coimbatore and 30. 3. 1984 and 31. 3. 1984 at National Hotel at Salem, the trial court found that there is some evidence with regard to their stay and the trial court has accepted the same. But, we have already found that even with regard to those stays, there is not acceptable evidence. According to the prosecution, the entries in the pocket diary of the deceased could have been made falsely and since Yercaud and Mettur is about 60 k. m. and likewise Salem is about 60 k. m. , they could have gone to duty also. We do not find any merit in this contention. Since we have found that the evidence of the watchman of the Glass House and that of the Manager of the National. We do not find any merit in this contention. Since we have found that the evidence of the watchman of the Glass House and that of the Manager of the National. Hotel is proved to be false on the basis of the documentary evidence adduced on behalf of the prosecution regarding their stay, certainly no reliance could be placed on their stay in those places. Similarly in the absence of any identification parade and in the face of the defence taken by the first accused that he stayed with his relations at Kanyakumari and other places, there is absolutely nothing to show that there is evidence that the first accused and the deceased stayed in those places. There is no conclusive proof of their stay and on the other hand, the very documents produced on behalf of the prosecution disproves the stay of the first accused and the deceased at different places on those days. ( 26 ) NEXT the case of the prosecution was that the deceased aborted a child in the second accuseds Nursing Home on 13. 3. 1984. This has been disbelieved by the trial court itself. The prosecution relied on the evidence of P. W. 2 driver of the taxi whose evidence we already found as untrue as he was speaking at the instance of P. W. 6 who supplied as many number of drivers as possible in this case. According to the case of the prosecution, P. W. 2 heard the conversion of accused 1, 3 and 4 while they were travelling in his car that D and C has to be done to Kala. But he did not say that he was also present when D and C was given to Kala. He is not personally aware that D and C was done to Kala. The trial court has given convincing reasons for rejecting this aspect of the case. P. W. 10, a witness cited by the prosecution, did not support the case of the prosecution on this aspect. Further it is seen from the documents produced by the prosecution that the deceased Kala went on medical leave on 9. 3. 1984 and extended the leave by sending telegrams. As per Ex. P125 casual leave register relating to the casual leave taken by the deceased Kala, she was at Tiruchi on that day on medical leave upto 20. 3. 1984. 3. 1984 and extended the leave by sending telegrams. As per Ex. P125 casual leave register relating to the casual leave taken by the deceased Kala, she was at Tiruchi on that day on medical leave upto 20. 3. 1984. The various telegrams sent by her namely, Exs. P130 to P132 besides the leave application Ex. P129 and the evidence of the Woman Sub Inspector P. W. 69 and the entries in the register Ex. P125 falsify the case of the prosecution that the deceased Kala was at Nambiyoor in the hospital of the second accused and she got abortion. The learned Additional Public Prosecutor is unable to make out any case against the finding of the trial court with regard to this aspect. ( 27 ) NEXT we have to see the charge regarding conspiracy levelled against these accused. In respect of the conspiracy charge, the prosecution relied on the evidence of P. W. 64 constable. We have already seen his evidence. The only piece of evidence relied on by the prosecution regarding conspiracy was adduced by P. W. 64. According to P. W. 64, while travelling in the car M. O. 7 driven by P. W. 2, accused 1 and 4 brought out a conspiracy to do away with the deceased. It is his evidence that the first accused told the fourth accused that he was having sexual contact with the deceased, that the deceased told him that she belongs to Chettiar case and subsequently he learnt that she belongs to Arunthathiar caste and that he wanted to sever her connection and do away with her, for which the fourth accused replied that he need not worry and that he would see 10 it and that he would arrange for his marriage with a woman. This version of P. W. 64 was not accepted even by the trial court as it is highly improbable that accused 1 and 4 would have conversed like that while they were travelling in the car of P. W. 6 driven by P. W. 2. P. W. 2 did not corroborate this version. Further, the subsequent conduct of P. W. 64 falsifies the said evidence. According to P. W. 64, on 11. 4. 1984 at about 7. P. W. 2 did not corroborate this version. Further, the subsequent conduct of P. W. 64 falsifies the said evidence. According to P. W. 64, on 11. 4. 1984 at about 7. 30 p. m. the deceased Kala met him and told him that her brother has seen a bridegroom for her, that she did not like that, and that he could inform the first accused so that he could marry her soon. According to him, he knows the affair between the deceased and the first accused. It is his further evidence that he had apprised this fact to the first accused and that the first accused also asked him to mind his own business in an angry mood. If really there was a conspiracy between accused 1 and 4 while travelling in the car on 5. 4. 1984 and if really. the deceased had asked him on 11. 4. 1984 to inform the first accused that her brother was seeing an alliance which she did not like and that the first accused could marry her soon, P. W. 64 would not have gone to the first accused and told him of what the deceased had told him on 11. 4. 1984. The learned counsel for the appellants vehemently argued that P. W. 64 would not have gone to the first accused and told him of what the deceased had told him on 11. 4. 1984, if there was already a conspiracy to murder her on 5. 4. 1984. He would not have gone to the first accused and requested him to marry the deceased. Further, he has not deposed about the same while he was examined by the Inspector of Police on two previous occasions. Only to the Inspector Prakasam who examined him just prior to the filing of the charge-sheet, he conveyed this information. There is absolutely no explanation for the delay. The present statement of P. W. 64 is that he was afraid of the first accused and he did not inform this aspect initially. The fact is that he has stated many things against the first accused. Since it is stated that he is interested in the deceased, he could have warned the deceased if really there was any such conspiracy. The fact is that he has stated many things against the first accused. Since it is stated that he is interested in the deceased, he could have warned the deceased if really there was any such conspiracy. Further, it has been proved that on that particular day, according 10 the T. A. bill claim made by him, he had been 10 Kolathur and not to Tiruchi. Thus the documentary evidence produced by the prosecution also falsifies the case of the prosecution. The lower court also found that there is no evidence to prove the criminal conspiracy between accused 1 and 4 to do away with the deceased. Before the lower court, the decision in Lennart v. Director of Enforcement was relied on. Therein it was held: The first of the offences defined in section 120a, Penal Code which. is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or legal act by illegal means subject however to the proviso that where the agreement is not an agreement to commit an offence the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means. If in the furtherance of the conspiracy certain persons are induced to do an unlawful act without the knowledge of the conspiracy of the plot they cannot be held 10 be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. An agreement to do an illegal act which amounts to a conspiracy will continue as long as members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered into the agreement. An agreement to do an illegal act which amounts to a conspiracy will continue as long as members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered into the agreement. In Parith Pillai v. State, it has been held:when two or more persons agree to do, or cause to be done an illegal act or an act which is not illegal, by illegal means such an agreement is designated a criminal conspiracy. The offence consists in the combining. So long as such a design rests in intention only, it is not indictable. When two agree to carry it in to effect, the very plot is an act in itself. The offence is complete though no further act is done in pursuance of the agreement or even where the parties do not settle the means to be employed. For a conviction to be entered on conspiracy, per se there must be evidence of the combination or agreement as between various members conspiring. In order to establish the charge of conspiracy the prosecution has to prove an agreement between the persons charged to do the illegal act and the proof of the existence of conspiracy is generally a matter of inference deducted from certain criminal acts of the accused done in pursuance of an. apparent criminal purpose in common, between the. Direct evidence might be difficult to prove such an agreement; but such a conspiracy may be proved by evidence other than oral; it may be proved by the evidence of surrounding circumstances and the conduct of the accused both before and after the alleged commission of the crime. In this connection the learned Additional Public Prosecutor drew our attention to certain decisions. In Major E. G. Barsay v. State of Bombay it has been held:it is not an ingredient of the offence under section 120a that all the parties should agree to do a single illegal act it may comprise the commission of a number of acts. Where the accused are charged with having conspired to do three categories of illegal acts, the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. Where the accused are charged with having conspired to do three categories of illegal acts, the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They can all be held guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable. In Lennart v. Director of Enforcement (supra) it has been held:held (per Majority, Mitter and Hegde, JJ. contra), on the allegations in the complaint both the accused could be charged under section 120b, Penal Code as it seemed that the several alleged acts of both the accused were in furtherance of the alleged conspiracy to obtain foreign exchange illegally. (Para 10) Held, further that the alleged agreement between the two accused was not one which transgressed section 21 (1) of the Foreign Regulation Act. Hence section 120b would apply. Agreement between P and the foreign company if Proved, would however, fall within the mischief of section 21 (1 ). (para8) The combined effect of the several provisions of section 21 does not lead to the view that sub-section (1) docs not lead to the view that sub-section (1) covers a case of criminal conspiracy similar to section 120b. Section 21 docs not in terms deal with an agreement to commit an offence or a legal act in an illegal way but merely provides that an agreement or contract by itself ought not to evade or avoid the provisions of the Act. The contracts or agreements contemplated under section 21 are those which are entered into during the course of commercial transactions and it is the intention of the legislature to prohibit that such contracts or agreements ought not to provide for the evasion or avoidance of any of the provisions of the Act either directly or indirectly. The words directly or indirectly do not take in any agreement to do illegal acts in future. In Yash Pal Mittal v. State of Punjab, it has been held;the offence of criminal conspiracy under section 120a is a distinct offence introduced for the first time in 1913 in Chapter V A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. In Yash Pal Mittal v. State of Punjab, it has been held;the offence of criminal conspiracy under section 120a is a distinct offence introduced for the first time in 1913 in Chapter V A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performance in the chain of actions with one object to achieve the real end of which, i every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences, may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. In R. K. Dalmia v. Delhi Administration, it has been held at page 1874 It is not necessary that each member of a conspiracy must know all the details of the conspiracy. In Kehar Singh v. State (Delhi Admn.), it has been held:generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. The learned Additional Public Prosecutor submitted that there may not be direct evidence for conspiracy and if there are circumstances they themselves are sufficient to infer conspiracy. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. The learned Additional Public Prosecutor submitted that there may not be direct evidence for conspiracy and if there are circumstances they themselves are sufficient to infer conspiracy. Further mere meeting of minds of agreement by, itself is an offence and it is not necessary that each member must knew all the details of the conspiracy and there must be oven act for each accused. The proposition of law laid down in those decisions is not disputed. The question is whether there are circumstances to hold that there was conspiracy in this case. The learned Additional Public Prosecutor is unable to substantiate his contention except quoting the decisions. We do not find any material to substantiate the charge of conspiracy either by direct or circumstantial evidence on behalf of the prosecution. The learned Additional Public Prosecutor drew the attention of this court to Ex. P104 report submitted by the Inspector of Police, Mettor Crime Circle (P. W. 87) to the Superintendent of Police, wherein it is stated that the enquiry among the constabulary of both women wing and men wing of Mettor Police Station revealed that the missing of woman police constable Kala was in friendly terms with the Sub Inspector Madhavan and that she even approached P. C. 838 of Mettur Police Station to tell the Sub Inspector to marry her. The learned Additional Public Prosecutor submitted that the said report Ex. P104 corroborates the evidence of P. W. 64. It may be stated that the said report has been based on the statement of P. W. 64. When once it is found that the evidence of P. W. 64 is not reliable and acceptable, the question of corroborating his evidence by the report Ex. P104 does not arise and cannot be pressed into service by the prosecution as a piece of corroborative evidence as Ex. P104 is only a report based on the enquiry made by P. W. 87 and on the information collected by him. That cannot be a substantive evidence. Hence that is not in any way helpful to the case of the prosecution to prove the said charge. P104 is only a report based on the enquiry made by P. W. 87 and on the information collected by him. That cannot be a substantive evidence. Hence that is not in any way helpful to the case of the prosecution to prove the said charge. Hence, I hold that the prosecution has failed to prove the charge of criminal conspiracy by any satisfactory evidence and leameq trial judge is justified in holding that the said charge has not been established and no interference is called for. ( 28 ) AS regards the charge of kidnapping, the trial court has found that there is absolutely no evidence to show that the deceased was compelled or any violence was used to leave her place and accompany the first accused, that the first accused took her to various places and that she was abducted by any body much less by the first accused. Charge No. 1 was that on 13. 4. 1984 at 7 p. m. the deceased was kidnapped from Salem to Nambiyoor in Periyar District with the intention to murder her. It is the evidence of P. W. 7 that on 13. 4. 1984 at about 7 p. m. P. W. 6, his proprietor, called him and asked to take the car on hire to a place near the Head Post Office. Accordingly he went there and took the first accused and the deceased in his car to Gobichettipalayam. He deposed that after the first accused and the deceased got into the car, they asked him to go to Gobichettipalayam. From Gobichettipalayam, they asked him to go to Vembandampalayam and reached Vembandampalayam at 10 p. m. P. W. 7 took bed in the car and the deceased and the first accused, left the car. Then at 2 a. m. the first accused alone came. He took him in the car and left him at Salem. According to him, he entered this trip in the trip sheet book Ex. P31 and the entry is Ex. P33. His evidence is challenged on the ground that when he was examined by the Inspector, he told him that when they got into the car, they asked him to take the vehicle to Vemandainapalayam and he did not tell that the first accused asked him to take the vehicle to Gobichettipalayam. P31 and the entry is Ex. P33. His evidence is challenged on the ground that when he was examined by the Inspector, he told him that when they got into the car, they asked him to take the vehicle to Vemandainapalayam and he did not tell that the first accused asked him to take the vehicle to Gobichettipalayam. This has been falsified by the evidence of the investigating officer who has stated that P. W. 7 has stated to that effect. Though he would state that he went up to Vemandamapalayam, in the entry in the trip sheet there is no mention about Vemandampalayam at all in Ex. P33. This evidence of P. W. 7 has been falsified by the evidence of P. W. 65 Head Constable who would state that he was a Head Constable attached to the Mettur Dam Police Station, that on 13. 4. 1984 night at about 10. 30 p. m. for night rounds, he came to the police station and, thereafter, in order to check the constables he came out of the police station at 12 mid night At that time, the first accused also accompanied him. Both of them went to Madhayankuttai and reached there at 12. 30 a. m. and there the first accused checked the constable Nos. 961 and 228. The rounds duty report is marked as Ex. P107. The entry made by the first accused in the pocket note book of P. C. 961 is marked. Ex. P108. In Ex. P107, P. W. 65 has also signed. He has also noted in his pocket note book (Ex. P109) about the checking of constables Nos. 228 and 961 at 3. 15 a. m. on 14. 4. 1984. At about 7 a. m. he completed the General Diary entries on 13. 4. 1984 and commenced the entry for the day 14. 4. 1984 and at 8 a. m. the first accused took custody of the General Diary of the police station. These documents produced on behalf of the prosecution coupled with the evidence of P. W. 65 clearly falsifies the evidence of P. W. 7 and the trip sheet Ex. P33. We have already found that P. W. 7 and other drivers were all witnesses furnished to the police by P. W. 6, the proprietor of the tourist car firm in this case, to prove the various charges. P33. We have already found that P. W. 7 and other drivers were all witnesses furnished to the police by P. W. 6, the proprietor of the tourist car firm in this case, to prove the various charges. But they miserably failed to establish the same. In this connection the learned counsel for the appellants drew our attention to the evidence of P. W. 68, Woman Constable attached to Namakkal Police Station who was a woman constable in Mettur in 1981 along with the deceased and P. W. 66 and others. It is her evidence that she has been living at Karur along with her husband. On 13. 4. 1984 her child was unwell and hence she took two days casual leave and came to the bus stand to Karur. At that time she met the deceased there. The deceased also accompanied her to Karur. At about 1. 20 p. m. both the deceased and P. W. 68 came to P. W. 68s house. At that time the deceased was having M. O. 22 bag and another red colour fancy bag. She called her to accompany her to the Government Hospital, Karur in order to obtain extension of her medical leave. The husband of P. W. 68, namely P. W. 46, was-in the house as that day happened to be Tamil New Year Day, a holiday. P. W. 68 along with her husband P. W. 46 and the deceased went to Karur Police Station. After obtaining sick passport, the deceased Kala came out along with one Muthusami, constable. Thereafter all of them went to the Government Hospital, Karur. Sometime later P. W. 68 was sent to her house by her husband to take care of the child. At about 4 p. m. her husband alone returned. When she enquired, her husband told her that Kala went away saying that she would go to Salem and, thereafter, return to Tiruchi and on the way to Tiruchi, she would come to their house and take the bag M. O. 22. P. W. 41 is the Medical Officer attached to the Government Hospital, Karur. It is his evidence that the deceased came to him on 13. 4. 1984 along with the passport Ex. P78 and he examined her and recommended medical leave for 15 days and made entry Ex. P84 in Ex P78. He also treated him as out-patient. P. W. 41 is the Medical Officer attached to the Government Hospital, Karur. It is his evidence that the deceased came to him on 13. 4. 1984 along with the passport Ex. P78 and he examined her and recommended medical leave for 15 days and made entry Ex. P84 in Ex P78. He also treated him as out-patient. In cross-examination, he would state that only after satisfying that she required 15 days medical leave, he recommended leave for 15 days. P. W. 70 is a woman constable attached to the Namakkal Police Station. It is her evidence that on 13. 4. 1984 between 7. 30 a. m. and 8 a. m. at the time of the roll call, the deceased came there. Both of them took break-fast at the police station. Thereafter, the deceased told her that she wanted to go to Karur in order to obtain leave and she left by 10. 30 a. m. bus bound for Karur. At about 5. 30 p. m. she again got down from the bus from Karur at Namakkal bus stand and she was telling her that she was proceeding to Salem. Accordingly she and another constable Jayanthi sent her in Salem bus. P. W. 71 is a traffic constable attached to the Salem Town Traffic Circle. On 13. 4. 1984 at about 6. 30 p. m. while he was on traffic duty near Salem bus stand, at Namakkalsankari Road, the deceased came at about 6. 30 p. m. and told him that the first accused was staying in Jayamurugan Lodge, that she wanted to talk to him by phone and that permission may be got to speak on the phone from a nearby place. Accordingly he took her to the nearby Vasuki Hotel and talked to the manager and arranged for speaking through phone. But she could not get line. Thereupon she asked him to go to the place where the first accused was and ask him to come to that place. When he enquired as to what is the matter, she told him that she has come in respect of court matter. Accordingly he went to Jayamurugan Lodge and informed the first accused about the arrival of the deceased and at that time the first accused was taking tiffin. The first accused told him that after taking tiffin, he would come and contact. Accordingly he went to Jayamurugan Lodge and informed the first accused about the arrival of the deceased and at that time the first accused was taking tiffin. The first accused told him that after taking tiffin, he would come and contact. Accordingly he informed the deceased and went for his duty. P. W. 51 is the Manager of Jayamurugan Lodge. It is his evidence that he knew the first accused and that the first accused came to his lodge on 13. 4. 1984 at 5. 30 p. m. and wanted to wash his face. He gave him the key of room No. 2. The first accused stayed there for one hour. No entry was made in any register and no rent was collected. The learned counsel for the appellant vehemently argued that it is highly improbable that P. W. 71 would have left his duty for about 15 minutes without putting another constable in charge, as it was a busy place near bus stand where there is heavy traffic and that it was also evening time. Further, there is nothing on record to show that any room was booked for the first accused in Jayamurugan Lodge and that the first accused came to Jayamurugan Lodge on that date. There is also no evidence that the deceased met the first accused there. Even according to P. W. 51 no room was booked and no rent was charged. There is no record to show that the first accused came to the lodge on that date. P. W. 51 would state that nowhere has he made any entry about the visit of the first accused on that date. He cannot say which of the rooms was vacant on different dates. Police officials used to stay in his lodge. But he frankly admitted that without seeing the register; it is not possible for him to say the visit of any of the officials. When a suggestion was put that he is deposing falsely at the instance of police, he denied. According to the learned counsel, this witness was introduced only to connect the first accused with the deceased, -and to prove the said charge, the prosecution failed to establish the same. It is highly improbable that the deceased would have met the first accused at Salem on that date and from there he kidnapped her to Vemandapalayam and on the next day injection was. It is highly improbable that the deceased would have met the first accused at Salem on that date and from there he kidnapped her to Vemandapalayam and on the next day injection was. given and she died. From the entries made in the General Diary of the Police Station and the evidence of P. W. 64, the charge that the first accused kidnapped the deceased on 13. 4. 1984 at about 7 p. m. to Vemandamapalayam cannot be accepted. Further, there is no evidence for the alleged kidnapping from Salem to Vemandampalayam. Even P. W. 7 did not say that she was forcibly taken in the taxi. There is absolutely nothing to hold that the finding of acquittal with regard to charge under section 364 I. P. C. recorded by the learned trial judge suffers from any infirmity or illegality or perversity for this court to interfere. On the other hand, it is perfectly legal and correct and supported by valid and acceptable reasons. ( 29 ) NOW let us consider the main charge of conspiracy and murder between 5. 4. 1984 and 14. 4. 1984 under charges 3 and 4. It is the case of the prosecution that the deceased was kidnapped from Salem on 13. 4. 1984 and that Thiopentone injection was given to her and as a result of the same, she died. It is the further case of the prosecution that Thiopentone injection was given in pursuance of the conspiracy hatched between accused 1 to 4 at Mettur and Salem Town in Salem District and at Vemandampalayam and Nambiyoor in Periyar District. As regards the charge of conspiracy, we have already held that there is no evidence and the finding of the learned trial judge that there is no criminal conspiracy is perfectly legal and no interference is called for. Now the learned trial judge found the second accused guilty under section 304a I. P. C. undercharge No. 3 and convicted him thereunder while acquitting him of the charge under section 302 I. P. C. Now let. us-consider the evidence which is available on the side of the prosecution in respect of the said charge and see whether there is any acceptable evidence to prove the said charge. It is the evidence of P. W. 2 that on 14. 4. us-consider the evidence which is available on the side of the prosecution in respect of the said charge and see whether there is any acceptable evidence to prove the said charge. It is the evidence of P. W. 2 that on 14. 4. 1984 he took the vehicle M. O. 7 Ambassador car to Mettur in pursuance of the telephonic call received by his office from the first accused. He reached Mettur at 8. 15 a. m. The first accused got into the car and asked him to go to Vemandapalayam and at Vemandapalayam, they went to the house of the third accused. A little later the first accused returned and asked him to go to Nambiyoor bus stand. There the fourth accused and the deceased Kala got into the car. As per the instructions of the first accused, he took them to Gobichettipalayam. At that time, the deceased looked gloomy. At Gobichettipalayam, the fourth accused got down from the car and brought a nurse. She also sat in the car. All of them went to Devi Nursing Home as per the direction of the fourth accused. The nurse went to the nursing home first and, thereafter, came out and asked the deceased to come into the nursing home. She did not agree. Later accused 1 and 4 took her into the nursing home at about 11 a. m. About one hour later, all the four returned to the car. The car went to a certain distance. The nurse alone got down and went away. Thereafter, accused 1 and 4 and the deceased were taken to Bavani Sagar Dam and stayed there for about 1-1/2 hours and, thereafter, returned to Vemandampalayam. At Vemandampalayam all of them got down from the car. They asked him to fetch the third accused in the car. Accordingly he went and brought the third accused. Again, accused 1,3 and 4 and the deceased got into the car and went to Nambiyoor. Even at that time the deceased looked gloomy. At Nambiyoor they asked him to stop the car near the nursing home of the second accused. All of them got down and went inside the nursing home of the second accused. At about 9 p. m. accused 1 and 4 alone came from the nursing home of the second accused. The first accused gave a prescription chit along with Rs. All of them got down and went inside the nursing home of the second accused. At about 9 p. m. accused 1 and 4 alone came from the nursing home of the second accused. The first accused gave a prescription chit along with Rs. 35/-to him and asked him to go to Gobichettipalayam and purchase the medicine. The first accused asked him to leave the car M. O. 7 and the key there itself. Accordingly he went to Gobichettipalayam and enquired in 4 of 5 medical shops and the said medicines were not available. Thereupon he returned to the bus stand and he was told that the last bus has left. He spent Rs. 25/- for an auto and came to Nambiyoor to the nursing home of the second accused and told the second accused that the medicine was not available. At that time he noticed accused 1 to 4 in a sullen mood. After paying the hire charges, he sent the auto. At that time he noticed his car parked in a different place. The first accused got into the car and asked him to go to Mettur and they reached Mettur at 2. 30 a. m. According to him, he enquired the first accused as to why the car was parked in a different direction, to which he replied that it was taken to a village. When he enquired about the deceased, he told him that she was not well and he would come in 2 or 3 days and take her back. P. W. 4 is a maternity, assistant at the sub-centre of Vemandapalayam. It is her evidence that she knew the fourth accused (Village Administrative Officer) for about three years. On 14. 4. 1984 at about 9. 30 a. m. the fourth accused met her at the Government Hospital, Gobichettipalayam, where she had taken some persons for family planning operation. The fourth accused asked her to come out saying that he wanted to talk to her with regard to some important matter. Accordingly she came out. The fourth accused told her that he brought a woman for abortion and he wanted her assistance. At that time, he noticed a white car standing outside in which a male and a female were sitting and that the said Ambassador car is M. O. 7. She also identified the woman as that in M. O. 4. The fourth accused told her that he brought a woman for abortion and he wanted her assistance. At that time, he noticed a white car standing outside in which a male and a female were sitting and that the said Ambassador car is M. O. 7. She also identified the woman as that in M. O. 4. She would state that she can identify the male also if he was shown and accordingly she identified the first accused as the person. She told the fourth accused, that she does not know much about abortion and that she would consult her chief nurse, Susila who was inside. So saying, she went inside and found that Susila did not attend the hospital. Thereupon she along with the fourth accused went to the house of Susila, P. W. 25. The first accused and the deceased also came in that car. P. W. 25 was in her house. After hearing the details, she advised them to go to P. W. 3 as she would do the needful. Thereupon all of them went to P. W: 3s nursing home. After parking the car at a distance P. W.-4 alone went inside the nursing home and introduced herself as one who was sent by P. W. 25 and she also informed her of the details of her presence. Thereupon P. W. 3 asked her to bring that girl. Accordingly she along with the fourth accused took the deceased to the nursing home. Though the deceased did not go at the first instance, subsequently, after exchange of words with the first accused, came inside. P. W. 4 took her to the consulting room. After half-an-hour, P. W. 3 came out and called her and told that the deceased was not pregnant. At that time, the deceased was telling to P. W. 3 that no operation need be done and she wanted only marriage. When P. W. 3 enquired P. W. 4 whether anybody has come, she told her that the Village Administrative Officer has come. In the meantime, the fourth accused himself came inside. P. W. 3 told him that the deceased does not want any operation and she wants marriage, to which, the fourth accused replied that P. W. 3 could do operation and, the marriage can be considered later. In the meantime, the fourth accused himself came inside. P. W. 3 told him that the deceased does not want any operation and she wants marriage, to which, the fourth accused replied that P. W. 3 could do operation and, the marriage can be considered later. The - fourth accused told her not to interfere in the matter and promised to come in the evening and accordingly left the place. All the three left the nursing home and got into the car. Thereupon P. W. 4 was dropped near the hospital at Gobichettipalayam. It is the further evidence of P. W. 4 that 10 days later, she met the fourth accused at Gobichettipalayam and enquired about, the operation. The fourth accused told her that everything went on well. P. W. 3 also corroborated her evidence, so also P. W. 25. The evidence of P. Ws. 3 and 4 is not in any way, helpful in proving the case of the prosecution against the first accused with regard to this charge. P. W. 4 would state that she told the Inspector that she had taken a person to Gobichettipalayam Hospital for family planning surgery on 14. 4. 1984; but the Inspector denied P. W. 4 having stated go to him. According to P. W. 4 on 14. 4. 1984 she was at Gobichettipalayam till about 5 p. m. According to her, she had taken one Dhanalakshmi for family planning operation. But she has no entered the same in the register maintained by her and she did not sign to that effect in the hospital. In the identification parade, on both the occasions she identified only the fourth accused and not the first accused. Her explanation that out after she did not show the first accused cannot be accepted. As already stated, her evidence does not in any way advance the case of the prosecution in respect of this charge. As regards P. W. 2, though it is his present version that when he came back after he could not get medicine, accused 1,3 and 4 were at the nursing home of the second accused, he did not say so either before the Inspector or before, the Magistrate. But he asserted having stayed so. That ascension has been falsified by the evidence of the Inspector as well as his statement before the Magistrate. But he asserted having stayed so. That ascension has been falsified by the evidence of the Inspector as well as his statement before the Magistrate. He fairly admitted that when he was examined by police, he did not give any identification marks about accused 1 to 4. Even though he has stated that he has given details of the trip on 14. 4. 1984 to the investigating officer, the evidence of the investigating officer is contrary. To the same effect, his statement with regard to the details of the prior trips is contrary to the evidence of the investigating officer. With regard to the identification of accused 1 to 4, a specific suggestion was put to him that accused 1 to 4 were shown to him at the Salem Town Police of Station when they were taken for remand. He would state that when he went to Nambiyoor, he came to know of the name of the second accused as Dhariasekaran. But he did not refer to the name of the second accused in his statement before the investigating officer even though he asserted having stated so. He is unable to give the topography of the nursing home of the second accused where he is alleged to have gone. He did not give any identification marks of the deceased as well. But, according to him. , when M. O. 4 photo was shown to him and asked whether he knew that woman, he nodded hist head as Tyest. He fairly admitted that he did not go to Vemandampalayam prior to 13. 3. 1984. He did not know the third accused on prior occasions. He cannot say anything about Vemandampalayam. Though his present version before court is that the deceased was wearing M. Os. 1 and 2, he did not say so before the investigating officer. When he was confronted with the maintenance of two trip sheets for the car in question TDL 5599, he is unable to say and said that it has to be enquired only at the office. ( 30 ) P. W. 3 doctor, as already referred to, in the chief-examination itself has categorically stated that the patient, who was examined by her on the day in question, did not give her name to her, and by examining the abdomen of the patient, she found that she was not pregnant. ( 30 ) P. W. 3 doctor, as already referred to, in the chief-examination itself has categorically stated that the patient, who was examined by her on the day in question, did not give her name to her, and by examining the abdomen of the patient, she found that she was not pregnant. But the patient started telling that she does not want any abortion. Though she would state that she is maintaining a register in which all the names of the patients are amerced, she fairly admitted that in this particular case, no entry is made in the register. According to her, the reason for note Altering the name of the patient in the register is that the, maternity assistant, namely, witness Lakhsmi (P. W. 4) and the patient were in a hurry. This explanation cannot be accepted. The investigating officer, according to her, did not seize the said register. When she was asked about the name of any other patient whom she examined on that date apart from the person in the photograph M. O. 4, she would state that she would have examined about 20 persons on that day. But the is not sure whether she entered all those names in the register. She did not remember the name of any other patient whom she examined on that date. Though she has now referred to the fourth accused as the person who entered into her consulting room, she has not referred to the name of the fourth accused in her statement to the police; she only stated that one person came and introduced himself as the Village Administrative Officer. The investigating officer denied P. W. 3 having stated so. She has also fairly admitted that she used to do therapeutic operations, and for that, among other medicines, Thiopentone is also one of the common medicines used as anesthesia for conducting minor operations. If a person is pregnant only by a month, abdominal examination will not be a conclusive test to find out whether the woman was pregnant. She has also fairly admitted that she used to do therapeutic operations, and for that, among other medicines, Thiopentone is also one of the common medicines used as anesthesia for conducting minor operations. If a person is pregnant only by a month, abdominal examination will not be a conclusive test to find out whether the woman was pregnant. To a court question, as to whether she had asked the patient whether she had sexual intercourse in between the first abortion and the time she came for consultation, she answered, The patient told me that one Sub Inspector of Police her uncle, was responsible for her pregnancy on the previous occasion, The learned counsel for the appellants argued that the patient did not tell P. W. 3 specifically that the first accused was responsible for her pregnancy, and further she has referred only to the previous pregnancy and not for the subsequent pregnancy at the time she came for consultation. It is clear from her evidence that Thiopentone is commonly used as a medicine as anesthesia for conducting minor operations. ( 31 ) AS regards P. W. 5, it is his evidence that he is a neighbour of the second accused. He is having his jewellery shop near the nursing home of the second accused. He knew to drive car and whenever the second accused used to go for cinema, he used to drive his car. According to him, on the next day of Tamil New Year Day, namely, on 14. 4. 1984 at about 9 p. m. the second accused sent world to him through his compounder (sixth accused ). When he entered the room of the second accused, he saw accused 1 to 4. At that time, the second accused told him; that a woman was brought for abortion, that the gave an injection, and that due to reaction, the woman died. He further told him pointing out accused 1, 3 and 4 that they wanted to take the body and throw the same in Bavani Sagar Dam and that they have brought an Ambassador car. He further asked him to take the body along with them to Bavani Sagar Dam. He refused to do so. Thereupon the fifth accused, who was related to the third accused, drove the car. He further asked him to take the body along with them to Bavani Sagar Dam. He refused to do so. Thereupon the fifth accused, who was related to the third accused, drove the car. According to him, the body of a woman was brought in the stretcher M. O. 8 and put in the Ambassador Car M. O. 7 in the back seat. He identified the woman as that found in M. O. 4 photo. About 45 minutes later, the car came and at that time, the dead body of the woman was not found. Some time later, the car left. After the car left, the second accused was discussing with him. At that time the second accused was giving out the name of the deceased as woman constable Kala and when an injection was given, she died due to reaction. His evidence was challenged on the ground that there is absolutely nothing to show that he knew to drive car as no licence has been produced. He further admitted that the alleged incident has taken place in the new nursing home of the second accused and that there are no houses and shops near the new nursing home. It was suggested to him that one Dr. M. M. Palaniappan is practising at the same place for 20 years and that he (the witness) used to take the patients who come to the hospital of the second accused to the hospital of Dr. M. M. Palaniappan and in respect of the same, there was dispute. He also admitted-that such dispute arose between him and the second accused. That there was dispute between the second accused and P. W. 5 is clearly established from his own admission. According to him, the second accused was having his car for about 4 or 5 years, that he himself drove the car and that he was not having any driver. He does not know whether the fifth accused belongs to New Velliampalayarri. When a question was put whether the fifth accused was having any licence, he pleaded ignorance. Though he would state that the second accused has stated to him about giving of injection and death due to reaction, while he was in his room and outside the room again, and he told the same to the Inspector, the Inspector denied P. W. 5 having told him any such thing. Though he would state that the second accused has stated to him about giving of injection and death due to reaction, while he was in his room and outside the room again, and he told the same to the Inspector, the Inspector denied P. W. 5 having told him any such thing. This itself falsifies his evidence. The learned counsel for the appellants pointed out all these infirmities and submitted that he is not a reliable witness, that he is interested in the prosecution and that he is inimically disposed towards the second accused. The learned counsel submitted that the version of P. W. 5 has been proved to be false even as regards the second accused and that it cannot be used against accused 1, 3 and 4 also in law. We find every force in the said contention. ( 32 ) NEXT, the prosecution relied on the evidence of P. W. 10, Rajammal, who is employed as a nurse in the nursing home of the second accused. This witness did not support the case of the prosecution and she was treated as hostile. The next witness relied on by the prosecution is P. W. 13 who is the manager in the Bavani Auto Service, Bavani. It is his evidence that on 14. 4. 1984 night, he supplied 15 litter diesel for M. O. 7 car after receiving Rs. 52. 85 being the price of the diesel. Ex. P40 is the carbon copy of the cash bill and it was seized under cover of mahazar Ex. P41 by the Inspector the fairly admitted that in Ex. P40 mention is made about a car and not its number. Even in his statement to the Inspector he did not refer to the number of the car as TDL 5599, Ambassador car, for which diesel was supplied. The suggestion to the witness was that out of fear for police, he is deposing falsely. His evidence also does not in any way advance the case of the prosecution as regards this charge. P. W. 16 is a nurse in the nursing home of the second accused and she too was treated as hostile. P. W. 16 has staled that the second accused used to give injection to important patients and for ordinary patients, she (P. W. 16) used to give injection. P. W. 16 is a nurse in the nursing home of the second accused and she too was treated as hostile. P. W. 16 has staled that the second accused used to give injection to important patients and for ordinary patients, she (P. W. 16) used to give injection. Though this witness was treated as hostile, the trial court is of the view that her evidence that accused to give injection would probablised the case of the prosecution that the second accused gave injection to the deceased and she died due to reaction. We do not find any merit in the said reason but no canucha. There must be some evidence to connect the 2nd accused with the said act. As regards the third accused, P. W. 16 has only stated that only she used to bring only patients of his family for treatment of the ailment and she does not say that the third accused would bring patients even from outside. ( 33 ) BEFORE going to the medical evidence, we will consider the effect of the oral evidence. As we have already considered, the evidence of P. W. 2 is tutored and false one. His evidence is contradicted by the very trip, sheet, Ex. P19 which is the documentary evidence relied on by the prosecution which shows that he left Mettur at 8. 25 p. m. and reached Nambiyoor at 10. 25 p. m. Thereafter, he left Nambiyoor at 10. 30 a. m. and reached Mettur at 2. 15 a. m. This shows that his evidence that he went to Gobichettipalayam is false. He straightaway went to Nambiyoor and, thereafter, he returned to Mettur. This falsifies his case about various movements of the accused and his further case that he was asked to go to Gobichettipalayam to purchase medicine as per prescription and, thereafter, he returned and in the meantime the car which was parked by him was taken away and placed in some other place etc. are all false. Further, his evidence regarding the identity of the second accused is proved to be unbelievable as he himself was unable to give identification features of the second accused to the investigating officer at the time on his examination. It was the case of the second accused that he was shown to P. W. 2 at the police station. Further, his evidence regarding the identity of the second accused is proved to be unbelievable as he himself was unable to give identification features of the second accused to the investigating officer at the time on his examination. It was the case of the second accused that he was shown to P. W. 2 at the police station. If P. W. 2 has not stated the identification features of the second accused at the time of his examination by the investigating officer, his subsequent identification in court is useless as per the settled proposition of law. According to the second accused, he filed a writ petition before this court alleging that he was taken by police on 27. 6. 1984, that he was wrongfully kept at the Salem Police Station and that he was shown to P. W. 2 and other witnesses. According to P. W. 91, investigating officer, the second accused was arrested only on 5. 7. 1984. That has been falsified by the evidence of P. W. 5 as, according to him, he was examined on 4. 7. 1984 and a few days prior to his examination, the second accused was taken to custody. Thus, according to him, a few days prior to 4. 7. 1984 the second accused was arrested. This clearly probablised the version of the second accused that he was kept in illegal custody at the police station and he was shown to the witnesses and, thereafter, the identification was done. The evidence of P. W. 2 that he took the deceased to the hospital of the second accused even on 13. 3. 1984 for abortion has been disbelieved by the trial Court We have already observed that if really P. W. 2 was there from 5 p. m. to 6 p. m. on 13. 3. 1984 and subsequently also he visited the hospital on more than two occasions, he would not have given-a different topography of the hospital and that itself falsifies his evidence. We have already considered the evidence of P. W. 5 and came to the conclusion that no reliance could be placed on his evidence. Yet another reason for not accepting the evidence of P. W. 5 is the attitude of this witness of not informing the occurrence to anybody till the police examined him. This throws considerable doubt with regard to the veracity of this witness. Yet another reason for not accepting the evidence of P. W. 5 is the attitude of this witness of not informing the occurrence to anybody till the police examined him. This throws considerable doubt with regard to the veracity of this witness. Apart from that, admittedly he was inimically disposed towards the second accused and he was interested in taking patients to the adjacent nursing home of one Dr. Palaniappan. Further, the alleged extra-judicial confession said to have been made by the second accused to P. W. 5 that the girl died as a result of the reaction due to the injection given by him, was not stated by him to the investigating officer. P. W. 5 was not even shown as a witness in the very remanded on Ex. P191 which was sent after examining all the important witnesses when especially the gist of the cases and the names of the witnesses were mentioned. In Piara Singh and Ors. v. State of Punjab, it has been observed that law does not require that the evidence of an extra judicial confession should, in all cases, be corroborated. In Narayan Singh v. State of M. P. , it has been observed that it is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. In State of U. P. v. M. K. Anthony, it has been observed that there is neither any rule of law nor of prance that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon. In Palanisamy v. State of T. N. , it has been observed that when retracted confession by accused is found to be tainted and not supported by independent corroboration, benefit of doubt can be extended to accused. In Palanisamy v. State of T. N. , it has been observed that when retracted confession by accused is found to be tainted and not supported by independent corroboration, benefit of doubt can be extended to accused. In Chandrakant Chimanlal Desai v. State of Gujarat, it has been observed that court should first marshal the evidence against the accused excluding the confession from consideration and if on such consideration conviction can safely be based then only the confession can be used to support that belief or conclusion. In Darshan Lal v. State of J. and K. , the extrajudicial confessions made by the accused to the uncle and the cousin of his wife were found to be free from legal infirmity as they were not the persons in authority. In Maghar Singh v. State of Punjab, it has been held that the evidence furnished by the extrajudicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant caution. In Baldev Raj v. State of Haryana, it has been pointed out that an extra judicial confession. If voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. On a careful reading of the above decisions, it is clear that if the witness is trustworthy and beyond reproach, the evidence of extra judicial confession is reliable. It also depends upon the reliability of the witness. We have found that the evidence of P. W. 5 is not reliable for various reasons. For the reasons already stated above, we have no hesitation in coming to the conclusion that the alleged extra-judicial confession is not established and; the second accused cannot be convicted on the basis of the alleged extra judicial confession. ( 34 ) NOW let us consider the effect of conviction of a co-accused on the basis of the extra judicial confession made by one accused. ( 34 ) NOW let us consider the effect of conviction of a co-accused on the basis of the extra judicial confession made by one accused. In Han Charan Kurmi v. State of Bihar, it has been held:though a confession mentioned in section 30 of the Indian Evidence Act is not evidence as defined by section 3 of the Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non-technical way. But in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to lend assurance to the conclusion of guilt which to judicial mind is about to reach on the said other evidence. In Nathu v. State of Uttar Pradesh, it has been held that confessions of co-accused are not evidence as defined in section 3 and no conviction can be founded thereon, but if there was other evidence on which a conviction can be based, they can be referred to as lending assurance to that conclusion and for fortifying it. In Bhuboni Sahu v. Emperor it has been observed: Their Lordships whilst not doubting that such a conviction is justified in law under section 133, Evidence Act, and whilst appreciating that the coincidence of a number of confessions of co-accused all implicating the particular accused given independently, and without an opportunity of previous concert, might be entitled to great weight, would nevertheless observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence implicating the particular accused. The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue In Haroon Haji Abdulla v. Slate of Maharashtra, it has been held:an accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false. But the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborative evidence first of the offence and next connecting the accused, against whom the accomplice evidence is used, with the crime. Such, corroborative evidence could be direct or circumstantial. On such circumstance may be the making of confessions by more than one accused, provided there was no Chance for prior consultation between the confessing co-accused for implicating another, and they inspire confidence both in their content and in the manner and circumstances of their making. If a confessing co-accused is tried jointly, within the meaning of section 30 of the Evidence Act, with the accused against whom the accomplice evidence is sought to be used for basing a conviction, the confession could be referred to as lending some assurance to the verdict. The fact that the confession was later retracted would make no difference unless the admissions made in the confession are satisfactorily withdrawn, or, the making of it explained as having proceeded from fear, duress, promise or the like, of some one in authority. The ratio laid down in these decisions clearly establish that the confession of an accused cannot be used against the co-accused except when there is evidence to connect the co-accused in the crime. In the absence of evidence the confession cannot be used against the co-accused. In the instant case we have found that there is no evidence with regard to the extra-judicial confession said to have been made by the second accused to P. W. 5. In the absence of evidence the confession cannot be used against the co-accused. In the instant case we have found that there is no evidence with regard to the extra-judicial confession said to have been made by the second accused to P. W. 5. Admittedly P. W. 5 and the second accused are on inimical terms and the second accused could not have made any confession to P. W. 5 and the evidence of P. W. 5 cannot be accepted. ( 35 ) NEXT, the prosecution relied on the evidence of the Drug Inspector who has been examined as P. W. 18 and also the search and seizure of medicines in the nursing home of the second accused. P. W. 18 is the Drug Inspector. It is his evidence that on 7. 7. 1984 at 3. 45 p. m. he was taken to the nursing home of the second accused by the Inspector P. W. 91 and the said nursing home was searched in his presence. The second accused was also present at that time. P. W. 91 seized certain medicines from the drawer of the table which include 8 x. 5 gm Thiopentone injection medicines syringes, besides other medicines and articles. Medicines and other articles were also found in the maternity room. He prepared the house search list Ex. P46. He also seized M. O. 8, M. O. 9 series, M. O. 10 series, M. O. 11, M. O. 12 and M. O. 17 under Ex. P46 in which the second accused has attested. The house of the second accused was searched and the house search list is Ex. P47 and nothing incriminating was recovered from there. According to P. W. 18, Thiopentone sodium injection used to be given as anaesthesia for a short term operation in order to relieve pain. But it has to be injected slowly and in case it was given hurriedly and if there is any difficulty in breathing, the antidote was Bemigride and Megimide. Those antidotes were not available. In respect of the nature of the medicines seized, P. W. 18 gave the report Ex. P48. According to him, Thiopentone injection was given intravenously. He has clearly admitted that he did not tell when he was examined by police that the antidotes were not available in the nursing home of the second accused at the time of search. In respect of the nature of the medicines seized, P. W. 18 gave the report Ex. P48. According to him, Thiopentone injection was given intravenously. He has clearly admitted that he did not tell when he was examined by police that the antidotes were not available in the nursing home of the second accused at the time of search. When he was asked about the name of the book which referred to Megimide and Bemigride as antidotes he is unable to give the name of the book. He also fairly admitted that he did not specifically state to the Inspector that Megimide and Bemigride are the antidotes for Thiopentone injection. He admitted that the medicines seized from the nursing home of the second accused are available in all the ordinary nursing homes. He also fairly admitted that Coramine injection is a similar antedate to that of Bemigride and Megimide which would induce the breaching. The learned counsel for the appellants vehemently argued that there is absolutely no evidence of the effect that the second accused gave Thiopentone injection and as a result of the same, the deceased died. Even accepting the case of the prosecution and the evidence of P. W. 5 with regard to the alleged extra-judicial confession, no offence under section 304a I. P. C. is made out. Even accepting the case of prosecution, it is only due to reaction as a result of the injection, the patient died and that it is not a case of rash and negligent, but it is only a mistake. In this connection, the learned counsel drew the attention of this court to the 313 statement of the second accused wherein he would state that antidotes including Megimide and Bemogride were available. He pointed out that the search was on 7. 7. 1984 while the incident was in April 1984 and that it is not the case of the prosecution that they were not available at the time of the incident on 14. 4. 1984. In this connection, our attention was also drawn to the evidence of P. W. 43, Professor of Forensic Medicines. He was asked to give opinion about the action and reaction of the medicines contained in the search list and he gave his opinion in Ex. P89. 4. 1984. In this connection, our attention was also drawn to the evidence of P. W. 43, Professor of Forensic Medicines. He was asked to give opinion about the action and reaction of the medicines contained in the search list and he gave his opinion in Ex. P89. In chief-examination he has stated that among the list of medicines in the list, if Thiopentone sodium was injected intravenously very rapidly without inhalational anaesthesia, nitrous oxide and oxegeon on the operation table, it may cause sudden death leading to cardiac and hypertension leading to cardiac arrest within few minutes. The said injection should be administered very slowly. To that, the antidote was Megimide or Bemigride, both are the same. He would state that Coramine is not an antidote but it is a respiratory stimulant. In cross-examination he fairly admitted that he has not taken any degree or Diploma in anaesthesia. Thiopentone sodium is used by doctors to induce surgical anaesthesia. Its main actions are on the central nervous system as hyphotic and narcotic and on the cardio vascular system and respiratory system. A synopsis of Anaesthesia by Alfred Leo and Atkension is a standard book. To a question put in cross-examination, he has stated that he does not accept the opinion of the said doctor that Bemigride has lost its popularity. He has fairly admitted that he has not stated to the Investigating Officer that Megimide or Bemigride is the only exact antidote for Thiopentone sodium. He has not stated to the investigating officer that if Thiopentone sodium was injected intravenously very rapidly without inhalational anesthesia nitrous, oxide and oxygen on the operation table, it may cause death. He would admit that in the list of medicines furnished to him, Thiopentone sodium is the only drug which may cause death and none of the other medicines may cause death under any circumstances. When a suggestion was put to him that Coramine is also an antidote and that he was giving wrong opinion at the instance of the police, he denied the same. According to the learned counsel, P. W. 43 is not qualified in anaesthesia as he has not admittedly obtained a Diploma or Degree. Though he admitted that T1a synopsis of anaesthesiat by Alfred Lee and Atkension is a standard book, he does not accept the opinion of the said doctor given therein. According to the learned counsel, P. W. 43 is not qualified in anaesthesia as he has not admittedly obtained a Diploma or Degree. Though he admitted that T1a synopsis of anaesthesiat by Alfred Lee and Atkension is a standard book, he does not accept the opinion of the said doctor given therein. He would state that according to the standing book, Coramine is an antidote. He would fairly admit that in case there are facilities for providing oxygen then the reaction can be set right. In this connection the learned counsel for the appellant submitted that even accepting the case of the prosecution, it would not amount to an offence and in support of his contention he relied on the following decisions. In Juggankhan v. State, it has been held:where the doctor is a qualified person, and administers a drug which after due research and experiment is accepted on all hands as the appropriate remedy, he also administers it in the prescribed quantity and manner, that is to say, orally or by injection as the case may be, and with due precautions indicated in the science and still the patient dies on account of a surprising and unexpected personal idiosyncrasy in such a case, unfortunate as the event may be the doctor would not be liable for any criminal offence. In Syad Akbar v. State of Karnataka, it has been held:in civil proceedings, a mere preponderance of probability is sufficient and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. (here negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937)2 All E. R. 552 : 1937 A. C. 576, simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law Ta very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied reckless most nearly covers the case. Probably, of all the epithets that can be applied reckless most nearly covers the case. In John Oni Akerele v. The King, it was observed that the doctor was a duly qualified medical practitioner and had given an injection of Sobita, which consists of sodium bismuch tartrate. It was alleged that the doctor had given a dose stronger than the proper dose. On the above facts Their Lordships came to the conclusion that criminal negligence, had not been proved. In the instant case, the learned counsel for the appellants vehemently argued that there is absolutely no evidence on the side of the prosecution to show that Thiopentone Sodium was administered to the deceased. Further, we have got the positive evidence of P. W. 3 that giving of Thiopentone Sodium injection is common and is used as anesthesia in all hospital. P. W. 18, Drug Inspector, also deposed to that effect. It is the case of the prosecution that on 14. 4. 1984 the second accused administered the Thiopentone injection. The search of the nursing home of the second accused was made on 7. 7. 1984. Though it is stated that on 7. 7. 1984 the antidotes Megimide and Bedigride were not available in the nursing home, it is the consistent version of the second accused that those drugs were available. There is absolutely nothing on the side of the prosecution to show that those antidotes were not available in the nursing home of the second accused. ( 36 ) IN this case, the corpus delicti was not available and there is no medical evidence to the effect that the patient died only as a result of reaction of the injection Thiopentone. P. W. 87 Inspector in his evidence admitted that during his investigation he came to know that prior to the missing of Kala, she was found dejected in life. He suspected that she might have committed suicide. It is the evidence of P. W. 76, Senior Scientific Assistant, Forensic Science Department, he received M. Os. 41,42 and 43 skull along with other items for superimposition test. According to him, M. O. 42 skull sent in two pieces alone was taken for comparison with enlarged photos and that he submitted his report Ex. P1so. It is the evidence of P. W. 76, Senior Scientific Assistant, Forensic Science Department, he received M. Os. 41,42 and 43 skull along with other items for superimposition test. According to him, M. O. 42 skull sent in two pieces alone was taken for comparison with enlarged photos and that he submitted his report Ex. P1so. Though in chief-examination he would state that the photo of the skull M. O. 47 and the skull M. O. 42 when compared with M. O. 49 photo were found tallied with the superimposition photo M. O. 50 taken and on the basis of the same. Ex. P180 report was given he fairly admitted that he produced M. Os. 47 to 52 for the first time in court only on the date of his examination and he did not take separate photos for the two broken pieces of the skull M. O. 42. He also did not mention the features which did not tally when compared with M. Os. 47 and 49. Since there was no nose, it-was hot compared. Only the lower portion of the upper jaw was taken for comparison. He did not give any reasons for his conclusion in Ex. P180. Since the lower jaw was not available, he cannot definitely say by cent per cent that the skull is that of the person found in M. O. 49 photo He could only say that it might be. He has stated in his report that it is likely. When his attention was drawn to the observations in Essentials of Forensic Medicine and Toxicology, this witness says that he did not agree with the observation that the value of the test is one of negative value. The evidence of P. W. 77 shows that it is usual that dead bodies could be floating under the railway bridge in the Lower Bavani Canal after they were decomposed and that too in pieces. According to him, on 22. 7. 1984 at 2 p. m. the C. B. C. I. D. police came there in search of a body of a woman known as Kamalam and took a skull near Oonchalur branch channel. That is M. O. 41 and he attested the seizure of the mahazar. About 4 feet distance, there was another skull which was found broken into two pieces and it was also seized. That is M. O. 41 and he attested the seizure of the mahazar. About 4 feet distance, there was another skull which was found broken into two pieces and it was also seized. That was marked as M. O. 42 and it was seized under Ex. P182 where he attested. At a little distance, 5 skull pieces were found and they were also seized. They are marked as M. O. 43 series. In cross-examination, he admitted that generally there used to be skulls in that area which were floated in water. Hence, it has not been established conclusively that the skull which was seized more than 3 months after the incident is that of the deceased Kala. In this connection, the learned Additional Public Prosecutor submitted that corpus delicti is not a must for conviction relying on the decision in Ram Chandra v. U. P. State, where it was held:it is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable. In Rama Nand v. State of H. P. , it has been held:it is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused caused the deatht of the person alleged to have been killed. However, discovery of the dead body of the victim bearing physical evidence of the violence is merely a rule of caution and has never been considered as the only mode of proving, the corpus delicti in murder. Indeed very many cases are of such a nature where the discovery of the dead body is impossible. (paras 26, 27) Where the dead body of the victim in a murder case is not found other cogent and satisfactory proof of homicide death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both. But wt ere the fact of corpus delicti, i. e. homicidal death is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to? the interference that the victim concerned has met a homicidal death. But wt ere the fact of corpus delicti, i. e. homicidal death is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to? the interference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. (Para 27)WHERE according to defence version the victim had committed suicide while prosecution proved the case of murder of basis of circumstantial evidence, held that conviction could be ordered even in absence of corpus delicti. (para 27) On a careful consideration of the said decisions, I find that they are not helpful to the prosecution in the instance case, as in the above quoted cases, there were voluminous circumstantial evidence to prove the guilt of the accused and hence it was held that conviction can be caused in the absence of corpus delicti. In this case we do not find any evidence with regard to the alleged offence under section 302 or 304a I. P. C. for causing the death of the deceased. The facts in this case are different. Hence those decisions are not helpful to the case of the prosecution. ( 37 ) THE learned counsel for the appellants drew the attention of this court to the evidence of the defence witnesses and submitted that the said evidence also disproves the case of the prosecution in all respects so far as the charge leveled against the second accused. The learned counsel for the second accused would submit that those witnesses gave evidence in conformity with the consistent stand taken by the accused and also with the written statement of the second accused filed along with his 313tstatement. It is the evidence of D. W. 2, Dr. Raju, that he is running a private hospital under the name and style of Saravana Surgery at Coimbatore. for the last 16 years and that he knew the second accused. According to him, on 12. 4. 1984 and 13. 4. 1984 the second accused came to his hospital complaining that he was suffering from stomach pain. On 12. 4. Raju, that he is running a private hospital under the name and style of Saravana Surgery at Coimbatore. for the last 16 years and that he knew the second accused. According to him, on 12. 4. 1984 and 13. 4. 1984 the second accused came to his hospital complaining that he was suffering from stomach pain. On 12. 4. 1984 his blood test was done and Ex. D14 is the blood test report. On 13. 4. 1984 xray of his abdomen and chest were taken. Ex. D15 series are the x-ray photos, wherein the name of the second accused was written. The report of the Radiologist is Ex. D16. According to him, he studied F. R. C. S. of Edinbourah University. Nothing was elicited in his cross-examination to discredit his testimony. He admitted that the second accused was his student Merely because the second accused was a student of D. W. 2, it cannot be presumed that D. W. 32 is deposing falsely. His evidence proves that the second accused was at Coimbatore for his ailment on 12. 4. 1984 and 13. 4. 1984. D. W. 5, Mayilal, is a resident of Kodakkattupalayam. It is her evidence that on the first of Chitrai, about two years prior to her deposition, that is, on 14. 4. 1984, she was in the nursing home of the second accused, as she was suffering from stomach pain. On 14. 4. 1984 the second accused did poor feeding. On the next day, at about 12 noon, the second accused examiner her, and she wanted to leave the nursing home at about 5 p. m. At that time the second accused did not come to the hospital. She waited till 8 p. m. Thereafter when she enquired the nurse, she asked her to pay the bill and leave the nursing home and she was informed that the doctor was unwell. D. W. 5 went to the house of the second accused and at that time he was lying in a bed. She paid the money and went to her village. Thus the evidence of these two witnesses shows that the second accused was unwell on 12. 4. 1984 and 13. 4. 1984 and hence the was at Coimbatore and attending the hospital of D. W. 2 and on the evening of 15. 4. She paid the money and went to her village. Thus the evidence of these two witnesses shows that the second accused was unwell on 12. 4. 1984 and 13. 4. 1984 and hence the was at Coimbatore and attending the hospital of D. W. 2 and on the evening of 15. 4. 1984 also he was not well and he did not attend his nursing home as he was unwell. Some other witnesses were also examined on his side. D. W. 3 was examined to speak about the panchayat in respect of P. W. 5 taking the patients of the second accused to the dispensary of one Dr. Palaniappan and in the panchayat D. W. 3 assaulted P. W. 5. D. W. 4, a retired constable, corroborated the evidence of D. W. 3. , According to the second accused, there is enmity between him and P. W. 5. The evidence of D. Ws. 3 and 4 clearly establishes that there was enmity between P. W. 5 and the second accused on account of the said act of P. W. 5, that there was a panchayat in that connection and that in the said panchayat P. W. 5 was also beaten by D. W. 3 and another panchayatdar Murugesan. It is also the case of the second accused that he did not require the service of P. W. 5 as his driver. He submitted that he did not ask P. W. 5 to drive his car on that particular date or any other date. In that connection, he examined D. W. 6 who has deposed that he is the driver of the car of the second accused and that there was no necessity for the second accused to send for P. W. 5. Nothing was elicited in the evidence of D. W. 6 to discredit his testimony. ( 38 ) THAT the second accused is a fully qualified doctor and that he was a brilliant student is also established by production of various degrees and certificates produced by him along with his 313 statement which show that he passed M. B. B. S. in First Class. The Professor of Operative Surgery, Coimbatore Medical College, Coimbatore and the Assistant Professor of Surgery, Coimbatore Medical College have given certificates about his quality of work as well as character and conduct. The Professor of Operative Surgery, Coimbatore Medical College, Coimbatore and the Assistant Professor of Surgery, Coimbatore Medical College have given certificates about his quality of work as well as character and conduct. The Additional Professor of Medicine, Coimbatore Medical College has also given a certificate about his excellent work. He has also produced extracts from the text books, namely, Goodman and Gilmans Pharmacological Basis of Therapeutics (sixth edition) pages 292 to 294 wherein the use of Thiopentons sodium and the Tmethod of Intravenous Anaesthetics has been dealt with, and with regard to the dis-advantages while using Thiopentone Sodium, it is stated that most of the complications associated with TPN are minor and can be avoided, and with-respect to clinical use it is stated that TPN is used for induce Anaesthesia as a single dose/intermittent dose/continuous infusion by T. V. The learned counsel for the appellants relied on the above passages and various other passages in other books and submitted that Thiopentone sodium can be used as an anesthesia and that it is being used freely and that Thiopentone may be used as the sole anesthetic agent for brief surgical procedure when anesthesia can be attained with moderate does. Again, in another place, it is observed that if the procedure is to last longer than 15 minutes, respiratory function requires strict attention. In such cases, it is recommended that oxygen be administered as a precautionary measure rather than to rely on air for adequate oxygenation. The learned counsel for the appellants submitted that the second accused in his 313-statement has stated that antidotes were available in his nursing home. He also submitted that there is no contra evidence and as such it cannot be said that antidotes or other things which are necessary for operation were not available in the said hospital. The learned counsel also submitted that only after receipt of the report Ex. P89, the prosecution has now come forward with the version that Thiopentone was administered and as a result of the same, death, has occurred. The report Ex. P89 dated 19. 9. 1984, it is stated that Thiopentone was administered. The learned counsel would submit that if really it was the case of the prosecution that the deceased died as a result of Thiopentone sodium, they would have asked for the opinion with regard to the Thiopentone injection itself in Ex. P88 requisition dated 5. 9. P89 dated 19. 9. 1984, it is stated that Thiopentone was administered. The learned counsel would submit that if really it was the case of the prosecution that the deceased died as a result of Thiopentone sodium, they would have asked for the opinion with regard to the Thiopentone injection itself in Ex. P88 requisition dated 5. 9. 1984 by the Investigating Officer. On the other hand, in Ex. P88 dated 5. 9. 1984, it is stated that During the course of investigation the following drugs were seized from the dispensary of the accused doctor (12 items of medicines have been mentioned and they are items of injections, and medicines. They are omitted here ). Among these medicines which medicine could cause death if it is administered to a normal person, deceased A. Kala in this case. The dosages, period of death and other causes may also be opined. Is there any other drug which could cause such death. Any other opinion, if any, may also kindly be given. To such a requisition, for the first time, the Professor of Forensic Medicine has stated in his report Ex. P89 that Among the medicines which has been seized from the Doctors Nursing Home and listed in your requisition, Thiopentone 0. 5 gm (or) Sodium Thiopental would have been administered to the deceased resulting in death. On the basis of the same, the case has been built up. Beyond that, there is nothing to show that Thiopentone sodium injection was given and as a result of the same, the deceased died. Though an attempt has been made to establish the same by introducing the extra judicial confession said to have been made by the second accused to P. W. 5, the prosecution has failed. Beyond that, there is no evidence to establish the administration of Thiopentone injection to the deceased Kala. Hence, we have no hesitation in holding that the prosecution has miserably failed to establish this charge. ( 39 ) SINCE we have held that this charge of murder has not been established, the charge of conspiracy for the commission of this offence does not arise. Even otherwise, there is absolutely no evidence. Hence, we have no hesitation in holding that the prosecution has miserably failed to establish this charge. ( 39 ) SINCE we have held that this charge of murder has not been established, the charge of conspiracy for the commission of this offence does not arise. Even otherwise, there is absolutely no evidence. The learned counsel for the appellants would submit in this connection that if the accused conspired together to do away with the deceased, they would not have taken her to the clinic of P. W. 3 for the purpose of D and C; but they could have straightaway taken her to the second accuseds clinic and they would not have created evidence of conspiracy and murder. Further there is absolutely no evidence on the side of the prosecution to show that the second accused and the first accused are friends. There is nothing in common between them. They have no motive to do away with the deceased. We have already held that the evidence of P. W. 64 with regard to the conspiracy is not acceptable. As a last straw it was contended on behalf of the prosecution that when the second accused was questioned with regard to the award of sentence, he has stated that the deceased died as a result of reaction of giving of injection and hence he could be let off on tendering apology, and from that statement it was argued that the second accused admitted the offence. To that, the learned counsel for the appellants submitted that the answer given under section 235 (5) Cr. P. C. , in respect of question of sentence cannot be taken into consideration for deciding the guilt as it was the answer only after recording the finding of guilt. In support of his contention, he drew the attention of this court to the decision in Muniappan v. State of T. N. wherein it was held as follows:the obligation to hear the accused on the question of sentence which is imposed by section 235 (2) is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself seldom furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of section 235 (2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under section 235 (2) and the answers which the accused makes to those questions are beyond the narrow constrains of the Evidence Act. The Court, while on the question of sentence is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction (Para 2) We find much force in the said contention of the learned counsel for the appellants. We have no hesitation in holding that the prosecution has miserably failed to prove the conspiracy also. .( 40 ) IT is the settled proposition of law that where a case rests on circumstantial evidence, the circumstances must be so clear and cogent, before the conviction based solely on such evidence can be sustained. It must conclusively prove the guilt of the accused and must be incapable of explanation of any hypothesis consisting with the innocence of the accused. In the instant case, we have held that even accepting the circumstances, it will not in any way conclusively establish that it was the second accused who gave the Thiopentone Sodium injection in a rash and negligent manner and as a result of the same the deceased died. On the other hand, there are enough circumstances in this case to prove the contrary. The evidence adduced by the prosecution is that P. W. 1 wanted the deceased to marry a bridegroom which the deceased did not like and she was aggrieved. Further, she was also suffering from chest pain and the possibility of her death due to suicide and other causes cannot be ruled out. The evidence adduced by the prosecution is that P. W. 1 wanted the deceased to marry a bridegroom which the deceased did not like and she was aggrieved. Further, she was also suffering from chest pain and the possibility of her death due to suicide and other causes cannot be ruled out. .( 41 ) NOW let us come to charges 5 to 7 which are in respect of the alleged removal of the dead body from the second accuseds nursing home by accused 3 to 6 in pursuance of the alleged conspiracy, which act was abetted by accused 1 and 2 and throwing the body in the lower Ravani Canal. In support of this aspect, the prosecution relied on the evidence of P. Ws. 2,5, 29, 34 and 36. We have already held while considering the other charges that the evidence of P. Ws. 2 and 5 is not reliable and no credence could be attached to their evidence. As far as the evidence of P. W. 2 is concerned, he has not deposed about the removal of the body. But the prosecution has relied on his evidence as a piece of circumstantial evidence, namely, he was asked to go to Gobichettipalayam by giving a prescription to purchase medicines as he would not agree for the removal of the body in his car. In respect of his evidence, we have already held under the other charges that Ex. P19 the trip sheet is found contradicted by Ex. D2, another trip sheet. He was there only for about 5 minutes and he was asked to go to Gobichettipalayam and, thereafter, he came and on the face of Ex. P19 and Ex. D2, his evidence could not be true. Hence his evidence is of no use to prove this charge. Besides that, we have also held that P. W. 2 is one of the drivers supplied by the Madurai Tourist Centre wherein P. W. 6 was the manager and that they were examined to prove various charges and they miserably failed in their attempt It was found that they were witnesses falsely introduced to support the case of the prosecution. Besides that, we have also held that P. W. 2 is one of the drivers supplied by the Madurai Tourist Centre wherein P. W. 6 was the manager and that they were examined to prove various charges and they miserably failed in their attempt It was found that they were witnesses falsely introduced to support the case of the prosecution. As regards the evidence of P. W. 5, we have already held that no reliance could be placed on the extrajudicial confession said to have been made by the second accused to him, for the reasons stated in regard to the charge of murder. In regard to this charge also, the same reasonings will hold good as it has been clearly established that he was taking the patients who were coming to the nursing home of the second accused, to the adjacent hospital which was run by one Dr. Palaniappan, in respect of which a panchayat was held and this witness was beaten. He admitted such dispute between him and the second accused. This has been spoken to by the defence-witnesses examined on behalf of the second accused. Thus he is inimically disposed towards the second accused and his service has been utilised to prove the charge as is evident from the various answer elicited in his evidence. Further there is no necessity for his presence at the nursing home of the second accused, as, even according to his evidence, the second accused himself knew driving as he used to drive car. According to him, he was running a jewellery shop. D. W. 6 is the driver employed under the second accused and hence there was no necessity for him to be present at the time when the body was said to have been removed in M. O. 7 car by accused 3 to 6. In his evidence he deposed only about accused 1 to 5 and not about the 6th accused and hence the sixth accused was acquitted even by the trial court. Though he would state that he has got driving licence from 1984, he has not produced the same in court or before the investigating officer. The conduct of this witness in not informing the matter to anyone for number of months till the police examined him clear shows that he was falsely introduced and no reliance could be placed. Though he would state that he has got driving licence from 1984, he has not produced the same in court or before the investigating officer. The conduct of this witness in not informing the matter to anyone for number of months till the police examined him clear shows that he was falsely introduced and no reliance could be placed. Though he deposed in court that the second accused told him that accused 1,3 and 4 have stated that the body has to be thrown into the Bavani Sagar and asked him to go with him, and he stated so to the inspector, he did not do so to the Inspector to that effect and also to the Magistrate as is evidence by Ex. D3. He admitted that he did not know the car number. It is not known how he was able to identify the car M. O. 7. For the reasons stated and also the various answers elicited in cross-examination and for the reasons for which his evidence has been rejected as untrustworthy in respect of the other charges, his evidence cannot be relied on for proving this charge. Next the prosecution relied on the evidence of P. W. 36. It is the evidence of P. W. 36 that on the next day of the Tamil New Year day (two years prior to his examination) he was returning after attending a cinema at Kurumanthor, along the Lower Ravani Canal bridge at about 10. 45 p. m. Kurumanthoor is about 3 k. m. from Nambiyoor. At that time he noticed a white Ambassador car. Three males and one female hurriedly got down from the car and threw a body of one woman in the canal. Out of fear he stood there for a minute and, thereafter, the car went towards Nambiyoor. When he was questioned in cross-examination as to when he was examined by the police, he would state that he was examined three months after the said incident. He did not remember the date or month in which he was examined by the Inspector. He fairly admitted that he did not tell the Inspector that he saw the incident on the next day of the Tamil New Year day. He admitted that he figured as a witness in two cases filed by Nambiyoor Police. He did not remember the date or month in which he was examined by the Inspector. He fairly admitted that he did not tell the Inspector that he saw the incident on the next day of the Tamil New Year day. He admitted that he figured as a witness in two cases filed by Nambiyoor Police. In one case he deposed that he was employed as a compounder in Kubedar Nursing Home. In another case, he deposed that he was working as a cody, and he denied that he deposed that he was working as a lorry broker. He fairly admitted that even after seeing the publication in the newspaper about this case, he did not inform anybody. According to him, a few days prior to his examination, the second accused and others were arrested in connection with the missing of the woman constable Kala. He would state that within a short period, the second accused came out successfully and he has established profession. His junior uncle was a doctor under whom he was employed as a compounder. According to him, the bridge was 7 k. m, from Nambiyoor. From the various answer elicited in cross-examination it is seen that he was only a stock witness for police and he was prepared to depose to suit the case of the prosecution. Further, according to him, 3 males and one lady hurriedly got down from the car while the evidence of P. W. Sis that there were two males and one lady in the car. Thus the evidence of P. W. 36 is materially contradicted by the evidence of P. W. 5. He did not identify anyone of the accused or the dead body. Hence his evidence is not worthy of any acceptance and no credence could be given to his evidence. P. W. 34 is the booking clerk in Muthukumarani Touring Talkies in Kurumanthoor. According to him, on 14. 4. 1984, the Tamil film adutha varisu was screened in the said theatre and the first show will be over by 10 p. m. and the second show will commence at 1 0. 30 p. m. and it will be over by 1. 30 a. m. He has only generally stated and his evidence is not of any help to the case of the prosecution. 30 p. m. and it will be over by 1. 30 a. m. He has only generally stated and his evidence is not of any help to the case of the prosecution. P. W. 29 was examined to show that he has seen the fifth accused driving the Fiat car of one Marappan. His evidence is relied on just to show that the fifth accused knows car driving. If the fifth accused has got a licence for driving car, nothing prevented the prosecution to produce the licence or examine the said Marappan under whom the fifth accused was said to be employed. The case of the fifth accused is that he was only a patient undergoing treatment in the nursing home of the second accused at that time and that he does not know to drive. No acceptable evidence was adduced to show that he knew driving and on the day in question, he actually drove the vehicle in question. P. W. 62 was examined to show that on the day in question he had been to a shop in front of Muthukumaran Theatre, Kurumandur. At that time, he saw P. W. 36. It was about 6. 15 p. m. P. W. 36 came in a cycle fitted with dynamo light. P. W. 36 told him that he came to see the cinema. In cross-examination he would state that he remembered to have told the police that he has seen P. W. 36 on the next date of Tamil New Year Day. He would again state that daily he has been seeing P. W. 36. He would also state that when he saw P. W. 36 in front of the cinema theatre, nobody was present. Even accepting the entire evidence adduced by the prosecution, it would not conclusively establish that these accused in pursuance of the conspiracy and the abetment by accused 1 and 2, removed the dead body in order to screen the murder and thereby committed the offence under section 201 I. P. C. We have found that the prosecution has miserably failed to establish the offence of murder or the offence under section 304a I. P. C. as alleged. Hence the question of screening the offence does not arise. Even otherwise, there is no acceptable evidence for the removal of the dead body and throwing it in the Lower Bavani Canal in order to screen the offence. Hence the question of screening the offence does not arise. Even otherwise, there is no acceptable evidence for the removal of the dead body and throwing it in the Lower Bavani Canal in order to screen the offence. The skull pieces seized in this case do not conclusively establish that they were skull of the deceased Kala. There is absolutely nothing to show that the dead body of the deceased Kala was thrown in Lower Bavani Canal near the railway bridge. There is no evidence. for the alleged abetment or conspiracy. Hence charge No. 5 and the charges Nos. 6 and 7 against accused 1 and 2 have not been established beyond reasonable doubt. ( 42 ) NOW comes charge No. 8 which is under section 404 I. P. C. in respect of the removal of the jewel M. O. 2 from the body of the deceased Kala by accused 3, 5 and 7 on 14. 4. 1984 night. At the outset it is to be noted that in respect of this charge, the fifth accused was acquitted. The third accused and her husband the seventh accused alone were convicted. The prosecution relies on the evidence of P. W. 1, brother of the deceased, P. W. 23 Meyyappan, goldsmith, P. W. 2 driver of the taxi and the woman constables P. Ws. 66, 68 and 70 and the evidence of P. W. 21 regarding the seizure of the pledged jewel from Bank of Madurai. It is the evidence of P. W. 1, brother of the deceased, that he made M. O. 2 gold chain through P. W. 23 Meyyappan and the same was weighed in an appraisers shop and it would weigh 24. 530 grms and Ex. P1 is the weighment receipt. P. Ws. 66 and 68, woman constables would state that the deceased Kala was wearing M. O. 2 gold chain. To the same effect, P. W. 70 also deposed. According to the prosecution, as per the evidence of P. W. 21, M. O. 2 was pledged with the Bank of Madurai, Vemandampalayam Branch for Rs. 2,200/- by the seventh accused and out of the pledge amount, Rs. 1,000/-was deposited in Savings Bank and the rest was utilised by the seventh accused. According to the prosecution the rest was utilised by the seventh accused for agricultural expenses. 2,200/- by the seventh accused and out of the pledge amount, Rs. 1,000/-was deposited in Savings Bank and the rest was utilised by the seventh accused. According to the prosecution the rest was utilised by the seventh accused for agricultural expenses. This clearly establishes that they have misappropriated the jewel M. O. 2 after the death of the deceased Kala. The case of the appellants, namely, accused 3 and 7 is that the same was presented to the third accused at the time of her marriage by her brother D. W. 7 and that she was wearing it. D. W. 7 deposed in support of the same. As per Ex. P1, the weight of M. O. 2 has been given as 24. 530 grams. M. O. 2 now produced before court is found to weigh 24. 500 grams as is seen from the description of property received in court. Except stating that the deceased was wearing the gold chain, P. Ws. 1,2,66,68,70 and 23 have not given any identification marks of the gold chain. When they were shown M. O. 2, they simply stated that it was the one which was worn by the deceased. The learned counsel for the appellants submitted that to identify an object, three similar objects should be put up for identification; otherwise no value could be attached to the said identification. In this connection the learned counsel drew the attention of this court to the decision reported in State v. Ram Bilas, wherein it has been held:so far as identification of a person is concerned, at least five similar persons and occasionally a large number of persons should be mixed before the identification is held to be reliable. In the identification of property frequently only two or three similar articles are mixed and although it is desirable that a larger number of similar articles should be mixed; still the identification of property is not disbelieved if the witnesses are credible and they have been subjected to a fair test, merely because the similar articles mixed were only two or three in number. This is only to illustrate that the identification of property stands on a different footing than the identification of person. No such procedure has been followed in this case and as such, no importance could be attached to their evidence-on this aspect. Further, P. W. 1 has not stated in Ex. This is only to illustrate that the identification of property stands on a different footing than the identification of person. No such procedure has been followed in this case and as such, no importance could be attached to their evidence-on this aspect. Further, P. W. 1 has not stated in Ex. P7 report that when she left the house at Tiruchi, she was wearing M. O. 2 chain and the wrists watch M. O. 1. Though P. W. 23 would state that P. W. 1 ordered him for manufacturing M. O. 2 chain and that P. W. 1 paid him a sum of Rs. 4,200/- at the time when the order was placed, he himself has admitted that no receipt was issued by him arid that it has not been entered in his account. The name of this witness is given as Meyyappant. Now in order to suit the case of the prosecution, he has stated that his alias name is Palanisami. When he was questioned as to whether he has stated so to the investigating officer and the Magistrate, he admitted that he has not stated to that effect in his statement to the police as well as to the Magistrate. One Palanisami was examined by police as he is alleged to have manufactured the jewel but not Meyyappan. P. W. 23 was examined in court and he was asked to say that he was got an alias name, when he was not stated so to the police or in his evidence. A suggestion was put that his son was employed under P. W. 1 and On his recommendation he is deposing falsely. He did not deny the suggestion that his son was employed under P. W. 1. But he denied the suggestion that on the recommendation of his son, he is giving evidence. It was specifically put to this witness that he did not manufacture M. O. 2. Though P. Ws. 66,68 and 70 have deposed before court that the deceased was wearing M. O. 2, they have not stated so before the investigating officer. When they were asked as to why they have not stated to the investigating officer, they have stated that since they were not asked, they have not stated so. Hence, no reliance could be placed on their evidence. P. W. 73 is the Magistrate who held identification proceedings in respect of M. Os. When they were asked as to why they have not stated to the investigating officer, they have stated that since they were not asked, they have not stated so. Hence, no reliance could be placed on their evidence. P. W. 73 is the Magistrate who held identification proceedings in respect of M. Os. 1 and 2. He simply placed M. Os. 1 and 2 and asked the witnesses to identify them and submitted his report EXT. P160. As already stated, in view of the decision cited above (State v. Ram Bilas (supra), no value could be attached to the evidence of the witnesses with regard to the identification of M. Os. 1 and 2 and the evidence of P. W. 73 is not helpful to the case. In Ex. P1 also, the description of the jewel has not been given. It is simply mentioned as one gold item, 1, weighing 24. 530 grams. That cannot be said to be in any way useful to the case of the prosecution for identifying M. O. 2. In Ex. P1 neither the name of P. W. 1 nor the name of P. W. 23 or anybody else was given. There is nothing to connect M. Os. 1 and 2 with the deceased or P. W. 1 or P. W. 23. Ex. P63 said to have been given by P. W. 23 also does not show that it was issued in the name of P. W. 1 or the deceased by P. W. 23 or it was issued in respect of M. O. 2. Hence it is not in any way helpful to the prosecution. As per the evidence of D. W. 7, who is none other than the brother of the third accused, M. O. 2 was presented to his sister at the time of her marriage and that it was being worn by her. According to him they have presented jewels weighing about 40 sovereigns to the third accused. He has got 3 acres of nanja land irrigated by channel. Nothing was elicited in cross-examination to discredit his testimony. His evidence has been corroborated by the evidence of D. W. 8 who is a resident of Anjanur. He knows accused 3 and 7 and he is a neighbour of the land of the seventh accused. He owns 10 acres of land. He pays kist of Rs. 300/ -. Nothing was elicited in cross-examination to discredit his testimony. His evidence has been corroborated by the evidence of D. W. 8 who is a resident of Anjanur. He knows accused 3 and 7 and he is a neighbour of the land of the seventh accused. He owns 10 acres of land. He pays kist of Rs. 300/ -. It is his evidence that his house is about a furlong from the house of the third accused. He stood as surety for the pledge of the jewel in the Bank of Madurai by the seventh accused in Ex. P60. He knew that the 3rd accused was wearing the chain M. O. 2 for 5 or 6 years. He used to go to the house of the third accused and whenever he had gone to her house, he noticed the same. Except eliciting that the seventh accused is his relation, nothing was elicited in cross-examination. The learned counsel for the appellants/accused 3 and 7 would submit that the defence witnesses are to be treated as prosecution witnesses and in this connection he relied on the decision of the Supreme court in Dudh Nath v. State of U. P. , wherein it was observed:defence witnesses are entitled to equal treatment with those of the prosecution. And Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. In Ex. P61 also, in respect of the jewel which was pledged with the bank, no description has been given and it is simply stated that one chain worth Rs. 3,600/-was pledged and the pledge amount of Rs. 2,200/- was advanced. Thus on the basis of the above discussion, we have no hesitation in holding that the prosecution has failed to establish any of the ingredients of the offence under section 404 I. P. C. for convicting accused 3 and 7. There is absolutely nothing to show that M. O. 2 was in the possession of the deceased at the time of the incident and that these accused dishonestly converted the same into there private use. Hence, we have no hesitation in holding that this charge also fails as there is no acceptable evidence with regard to the same. There is absolutely nothing to show that M. O. 2 was in the possession of the deceased at the time of the incident and that these accused dishonestly converted the same into there private use. Hence, we have no hesitation in holding that this charge also fails as there is no acceptable evidence with regard to the same. ( 43 ) LASTLY comes charge No. 9 under section 193 I. P. C. against the first accused alleging that he was connected with the offence undercharge No. 3, namely, murder of Kala, and to create evidence that he was at Mettur Police Station though he was in a different place, he made false entries in the general diary and thereby committed the said offence. At the outset it is to be noted that we held that charge No. 3 has not been established and the second accused was acquitted in respect of the said charge. We also disbelieved the evidence of the prosecution witnesses that the first accused went to the nursing home of the second accused along with the deceased and that he arranged for the abortion in the nursing home of the second accused and in pursuance of the conspiracy, she was done to death etc. In the face of the finding in respect of other charges, this charge is not sustainable as the question of fabricating false evidence for the purpose of using at any stage of judicial proceedings would not arise. In respect of this charge, the prosecution mainly relied on the evidence of P. W. 65, Head constable attached to the Mettur Police Station, P. W. 67 constable attached to the said police station and the evidence of P. W. 2 driver of the taxi M. O. 7 which is alleged to have taken him and the entry in Ex. P19 trip sheet. The relevant document which is said to have been fabricated is the general diary for the date of 14. 4. 1984 maintained in Mettur Police Station which is marked as Ex. P115. It is the evidence of P. W. 65 that he was the Head Constable of the Mettur Police Station from 19. 10. 1980 to 30. 6. 1984. On 13. 4. 1984 night at about 10. 4. 1984 maintained in Mettur Police Station which is marked as Ex. P115. It is the evidence of P. W. 65 that he was the Head Constable of the Mettur Police Station from 19. 10. 1980 to 30. 6. 1984. On 13. 4. 1984 night at about 10. 30 p. m. he came to the police station in connection with round duty and left the station at 12 midnight in order to check the constables who were on duty. At that time the first accused also accompanied him. Both of them went to Mathayankuttai and reached there by 12. 30 a. m. and the first accused checked P. C. Nos. 961 and 228. Ex. P107 is the report in respect of the round duty. At page 16, the first accused has made endorsement. He too signed on the same. The relevant endorsement made by the first accused in the pocket note book of P. C. 961 is Ex. P108. The first accused has also made entry in the pocket note book of P. W. 65 and the entry with regard to the checking of P. C. Nos. 961 and 228 is Ex. P109 and it was made at about 3. 15 a. m. At about 7 a. m. on 14. 4. 1984 after completing the general diary relating to the date 13. 4. 1984, he opened the entry for the date 14. 4. 1984. At about 8 a. m. the first accused came to the police station and took the general diary. The first accused deputed him to enquire one Jayaraman son of Ramasami who was inpatient in the Government Hospital as per the accident intimation Ex. P110. Thereupon he went to the hospital and examined Jayaraman and returned the station at 9. 30 a. m. At that time, he did not notice the first accused. He did not find the general diary. He enquired the constables who were there. But those constables said that they /lave no knowledge of the same. Constable Jayapal attached to the said station reported sick and he issued the sick passport Ex. P112. According to him till about 8 p. m. he was in the police station. Since the General Diary was not there, he recorded his proceedings in a rough duly roaster and it is, marked a Ex. P114. Constable Jayapal attached to the said station reported sick and he issued the sick passport Ex. P112. According to him till about 8 p. m. he was in the police station. Since the General Diary was not there, he recorded his proceedings in a rough duly roaster and it is, marked a Ex. P114. In respect of the transfer of the First Information Report to Mecheri Police Station regarding Crime No. 146 of 1984, the carbon copy is Ex. P113. He met the first accused only the next morning (15. 4. 1984) at 7 a. m. On that day he recorded the proceedings which happened on 14. 4. 1984 to his dictation. He too made certain entries in the general diary in his own handwriting. According to him, at 7 a. m. on 15. 4. 1984 the first accused wrote the proceedings pertaining to 14. 4. 1984 from 8 a. m. to 4. 35 p. m. , and subsequently he and the first accused wrote and that is Ex. P115. When he enquired about the general diary which was not available during his search, he was informed by the first accused, that he had kept it in the drawer. According to P. W. 65, the drawer was found locked on 14. 4. 1984. P. W. 65 was cross-examined at length and he fairly admitted that the entries mage in his pocket note book are true and correct. The time, Hour and date are also correct. He would state that the entry Ex. P115 was made only with reference to his pocket note book and that it is written that from 8 a. m. to 1. 30 p. m. and from 5 p. m. they were on round duty and, thereafter, returned to the station at 8 p. m. and till 11. 30 p. m. the first accused was in the police station. He fairly admitted that he did not tell the Inspector Chennamallan when he was examined by him that the entries in Ex. P115 were made only on 15. 4. 1984 and he did not tell that on 14. 4. 1984 the first accused was not in the police station. According to him, the first accused was with him till about 3. 15 a. m. on 14. 4. 1984 and, thereafter, he went to his house. P115 were made only on 15. 4. 1984 and he did not tell that on 14. 4. 1984 the first accused was not in the police station. According to him, the first accused was with him till about 3. 15 a. m. on 14. 4. 1984 and, thereafter, he went to his house. It has been written in the diary that he came to the station at about 8. 45 p. m. on 13. 4. 1984 and that is correct. He also admitted that in his pocket note book Ex. P109 the time of his arrival at the police station and also the departure from the police station were not mentioned. He would state that on 13. 4. 1984 night, he went to Madhayankuttai, Chekkanoor and Nattamangalam and other villages for check and the first accused also came to those villages accompanying him. P. W. 65 was asked whether he has reported or informed the missing of the general diary in the police station to the Inspector whose office is put up in the same building, he fairly conceded that he did not tell him. When he was asked whether he was opened any new book after finding that the general diary was not available and that the first accused did not come till about 10. 30 A. M. he fairly conceded that he did not do so. He would state that he wrote the entire entries in Ex. P114 on 14. 4. 1984. A suggestion was put to this witness that the entire entries in Ex. P114 are fabricated while the entries in Ex. P115 are true and the first accused was present in the station throughout on 14. 4. 1984. We have already found that the evidence of P. W. 2 that he went to Mottur on 14. 4. 1984 at 8. 15 a. m. and took the first accused to various places including Nambiyoor and, thereafter left him at Metter on 15. 4. 1984 early morning is not reliable and acceptable. Further the very trip sheet Ex. P19 is falsified by his evidence as well as the trip sheet Ex. D2 and the duplicate trip sheet maintained by him under Ex. D2 falsifies the evidence of P. W. 2 with regard to the trip and clearly establishes that they were all put up witnesses. Further the very trip sheet Ex. P19 is falsified by his evidence as well as the trip sheet Ex. D2 and the duplicate trip sheet maintained by him under Ex. D2 falsifies the evidence of P. W. 2 with regard to the trip and clearly establishes that they were all put up witnesses. P. W. 67 was a constable attached to the Mettur Police Station at that time, It 1024 is his evidence that on 14. 4. 1984 at 8. 30 a. m. he was relieved by one Krishnan who took charge of; the duty at the office of the Deputy Inspector of Schools. Thereupon at 9 a. m. he went to the Mettor Police Station. At that time he did not see the first accused. P. W. 65 Head Constable was incharge of the station. Then he reported to him for duty. P. W. 65 directed him at about 10 a. m. to do the sentry duty at the police station and accordingly he relieved one Jayaraman and assumed duty. At about 12 noon after obtaining permission from P. W. 65, he went to his house for lunch and, I thereafter, returned to the station and from 1 p. m. to 7 p. m. he was on sentry duty and the first accused did not come there. The relevant entry in para book is Ex. P118. He admitted having signed the general diary for the date 14. 4. 1984, Ex. P115, as per the direction of the first accused. From the various answers elicited in the evidence of P. W. 67, it is seen that his evidence is not helpful. He would state that he signed the entries in Ex. P115. According to him, as per the entries in Ex. P115 even on 14. 4. 1984 at 4. 30 p. m. one Natarajan son of Anappa Gounder was beaten and he got information and it was so entered. He cannot say who wrote those entries in Ex; P115 and he did not sign the entries in the register in respect of the said complaint. When he was asked whether it was received by one Saraswathi, he pleaded ignorance of the same. When he was asked whether it was received at about 4. 30 p. m. he would state that he does not remember. He would state that there was an entry at about 6. 10 p. m. on 14. When he was asked whether it was received by one Saraswathi, he pleaded ignorance of the same. When he was asked whether it was received at about 4. 30 p. m. he would state that he does not remember. He would state that there was an entry at about 6. 10 p. m. on 14. 4. 1984 in respect of Sukumar, an in-patient in the hospital, and that it is not known who received that intimation and it has been so entered in the general diary. According to him, he knew that the general diary was not available at 10 p. m. on 14. 4. 1984. He admitted that he made some entries in his own hand writing for the date in question in Ex. P115 at page 107. From the various answers, it was vehemently contended that the version of this witness that they were written on the next day could not be true. The prosecution tried to strengthen its case through P. W. 57. It is the evidence of P. W. 57 that he was an important pattadar in the village and that whenever constables happen to visit his village for round duty, they used to sign the patta book kept in his house. Sometimes the Sub Inspector also used to sign in the patta book which is marked as Ex. P96. On 13. 4. 1984 and 14. 4. 1984 no entry was made. That will not help the case of the prosecution as even according to P. W. 65 from 13. 4. 1984 right till 14. 4. 1984 morning they visited various villages and checked the constables who were on rounds duty therefore, the fact that the first accused failed to sign in the patta book kept in the house of P. W. 57 could not in any way falsify the entry in the general diary or his case that he was in the police station on 14. 4. 1984 and on the previous day he visited various villages. Even according to P. W. 57 it is only the constables who used to sign and the Sub Inspector used to sign only on some occasions and not on all occasions. In this connection the learned counsel drew the attention of this court to Ex. P80 passport issued by P. W. 69 Woman Sub Inspector, Mettur -Dam, to the deceased on 1. 4. In this connection the learned counsel drew the attention of this court to Ex. P80 passport issued by P. W. 69 Woman Sub Inspector, Mettur -Dam, to the deceased on 1. 4. 1984 at 9 a. m. wherein it is stated that the deceased has been directed to get treatment for chest pain as per her special report, and as per Ex. P82, she was advised 10 days complete rest on medical ground. The learned counsel vehemently argued that it is nobodys case that the doctor, the second accused intended to commit murder. Even according to the prosecution, various persons were consulted for doing abortion. While P. W. 3 doctor was consulted, she diagnosed that the deceased was not pregnant and that there was no necessity for abortion. Even according to the prosecution, the second accused had given her injection and as a result of re-action, she died. According to the learned counsel, even accepting the entire case of the prosecution it would not amount to an offence and section 88 I. P. C. would square applies to the case. When there is no offence at all, there is no necessity to fabricate or create any false evidence. Even according to P. W. 65, when he returned to the, police station at 9. 30 a. m. on 14. 4. 1984, the first accused was not there and the general diary was not found and immediately after the first accused returned, he questioned him and the first accused told him that he kept the general diary in the drawer of the table. But the said drawer was found locked. It is not the case of P. W. 65 that the general diary was not at all there or it was not kept in the drawer as alleged. If really the general diary was not there, one would expect him to open another general diary or inform the Inspector who was put up in the same office building. On the other hand, he himself has written the entries in Ex. P115. It shows that the first accused was in the police station during the relevant day, namely, on 14. 4. 1984. On the other hand, he himself has written the entries in Ex. P115. It shows that the first accused was in the police station during the relevant day, namely, on 14. 4. 1984. The various answers elicited in the evidence clearly establish that no offence under section 193 I. P. C. has been made out is there is nothing to show that any false entries have been made in the general diary in order to escape from the offence even though he knew that it would be used in judicial proceedings. There is I no acceptable evidence to show that the first accused was in any other place, as already held by us. In the circumstances, we have no hesitation in I holding that the prosecution has failed to establish. I this charge also against the first accused. It is to be noted that it is the well settled proposition that I suspicion however strong will not take the place of legal proof. The prosecution has to establish the guilt of the accused beyond all reasonable doubt. In this case, we find that though an attempt was made to prove the charges against the accused, they miserably failed to establish the same by acceptable evidence and in any event beyond reasonable doubt. Consequently, in view of our findings on all the charges, we hold that the appeals filed by the accused have to be allowed and that one filed by the State has to be dismissed. ( 44 ) IN the result, C. A. Nos. 662, 669 and 671 of 1986 are allowed and the appellants/accused are acquitted. Their bail bonds shall stand cancelled. C. A. No. 985 of 1986 filed by the State shall stand dismissed. M. O. 2, seized from P. W. 21 who was the Manager of the Bank of Madurai, Vemandampalayam branch, and which was pledged by the seventh accused, is directed to be returned to the Bank of Madurai, Vemandamapalayam, branch and the seventh accused is entitled to redeem the same by paying the necessary dues due to the Bank of Madurai as per pledge. Appeals allowed, Appellants acquitted.