Judgment :- T.S. Arunachalam, J. Appellants are brothers. They were A-1 to A-3 in S.C.No.74 of 1986, on the file of the Court of Sessions Anna District, Dindugal. First appellant was charged under Sec.302, I.P.C., simpliciter for having caused the death of deceased Pethakilavan by throwing a stone on his head at or about 9.30 p.m. on 12. 1985 at Cukkarakkal Odai. A-2 and A-3 were charged for murder with the aid of Sec.34, Indian Penal Code for having held the fallen down deceased to facilitate commission of murder by A-1. All the appellants were convicted on the basis of the charges framed against them and each one of them was sentenced to undergo imprisonment for life. 2. Appellants as well as the deceased were residents of Kalathupatti Village. First appellant and Pethakilavan were adjacent land owners and there was ridge dispute between them. There was animosity between them on other grounds as well. In 1981, Pethakilavan cut the first appellant and he was prosecuted. Further mother of Pethakilavan preferred a complaint against first appellant at or about the same time alleging that he and others had set fire to her house. However, the complaint of mother of the deceased, was referred ‘as mistake of fact’. Due to existence of case and counter, there was bitter animosity between the deceased and the first appellant. Ten days prior to occurrence, there was a wordy altercation between Pethakilavan and first appellant in respect of trespass of latter’s cattle into the former’s field. In this background, the impugned occurrence had taken place. On 12. 1985 at or about 4 p.m. (occurrence evening) P.W.1. Adaikkan who is the younger brother of the deceased in the company of the deceased, went over to Natham Shandy. After buying some vegetables, certain grocery items and pesticides, they boarded a bus at Natham at 8 p.m. They arrived at Kannimarpuram bus stand around 9 p.m. and were proceeding towards their village through Cukkarakkal Odai. On either side of the Odai, there are hills called Murungakuttu Hills. Deceased was walking ahead of P.W.1. carrying a gunny bag on his head. P.W.1 was flashing a torch light from behind. Suddenly P.W.1, heard the command of the appellants, calling out Pethakilavan to stop. Almost simultaneously appellants 2 and 3 sprang upon the deceased, pushed him down and pressed him on the ground. Deceased was walking ahead of P.W.1. carrying a gunny bag on his head. P.W.1 was flashing a torch light from behind. Suddenly P.W.1, heard the command of the appellants, calling out Pethakilavan to stop. Almost simultaneously appellants 2 and 3 sprang upon the deceased, pushed him down and pressed him on the ground. First appellant then picked up a big stone available at that place and threw it on the face and head of the deceased. P.W.1., who was in distress, raised an alarm. Fearing that in the secluded place, he may also be beaten, he rushed to his village. He informed, of this occurrence, to his parents and P.W.2, Chinnammal, wife of the deceased. He returned to the scene of occurrence in their company. They found Pethakilavan dead. His legs were tied with Oonankodi. P.W.1. was unable to set the law in motion immediately, since during night time, bus service to Natham was not available. P.W.1 waited at the venue of crime till dawn, in the company of others, before he chose to proceed to Natham Police Station by the earliest bus. He preferred Ex.P-1 complaint to P.W.11 Pechimuthu, then Sub Inspector of Police, Ex.P-1 was scribed to the dictation of P.W.1.. On Ex.P-1 Crime No347 of 1985 was registered under Sec.302, Indian Penal Code, at or about 8 a.m. on 12. 1985. Ex.P-10 is the express printed first information report. P.W.11 despatched Exs.P-1 and P-10 to the concerned Magistrate through Police Constable Sadayandi, who was examined as court witness by us on 27. 1993, during the course of hearing of this appeal. P.W.11 forwarded copies of Ex.P-10 to his superior officers. 3. P.W.12, Balakrishnan, Inspector of Police, Natham on receipt of a copy of Ex.P-10 took up investigation and reached the venue of crime at 9.45 a.m. He prepared observation Mahazar Ex. P-2 in the presence of P.W.6 Manivel, Village Administrative Officer and also prepared Ex. P-11, to rough scene sketch. Between 10.30 a.m. and 2 p.m., he conducted inquest over the corpse of Pethakilavan. Ex.P-12 is the inquest report. From the dead body he seized M.O.7 White shirt under Mahazar Ex.P-3 attested by P.W.6. He then despatched the dead body to the Government Hospital, Melur for conduct of post mortem through police constable Ponniah (P.W.7). P-11, to rough scene sketch. Between 10.30 a.m. and 2 p.m., he conducted inquest over the corpse of Pethakilavan. Ex.P-12 is the inquest report. From the dead body he seized M.O.7 White shirt under Mahazar Ex.P-3 attested by P.W.6. He then despatched the dead body to the Government Hospital, Melur for conduct of post mortem through police constable Ponniah (P.W.7). From the scene he seized Gunny bag M.O.2 which contained M.Os.3 to 6 (cummin seeds pocket sombu, dried brinjals and pesticides) under Mahazar Ex.P-4 attested again by P.W.6. He also seized blood stained earth M.O.8, and samples earth M.O.9, a big stone M.O.10, another stone M.O.11 and small stones M.O.12 series from the same scene. 4. P.W.9 Dr. Muthuswami commenced autospy on the dead body at 6.30a.m.on l0.12.1985.Hefound the following external injuries: “1. An incised looking wound 4 cm. x 1cm. x 1 cm on the chin. 2. An incised looking wound 7 cm. x 2 cm. x 1 cm on the back of head. 3. An incised looking wound 1 cm. x 1 cm. x 1/ 2 cm. on the nose. 4. An abrasion 2 cm. x 1 cm. on the left ear. 5. An abrasion 2 cm. x 1 cm. on the left shoulder. 6. Contusion with abrasion 4 cm. x 3 cm. on the right upper leg with fracture of both bones Right leg upper one third.” On internal examination, he noticed a depressed fracture of skull bone on the occipital region. Clotted blood was present below the skull bone on the (backside) occipital part. Internal organs were normal. In the opinion of the doctor, decease would appear to have died of shock and haemorrhage as a result of head injury about 30 to 33 hours prior to autospy. Ex.P-9 is the postmortem Certificates. Injuries 1 to 3 and 6 could have been caused by a heavy stone, thrown with force, Injuries 4 and 5 could have been caused by coming into contact, with rough surface. Injury No.2 was necessarily fatal and it could have been caused by throwing a heavy stone with force. 5. P.W.12 arrested appellants 2 and 3 on 112. 1985 at or about 3.30 a.m. in the forest situated west of Ayyanarpuram, and forwarded them for remand. First appellant surrendered before Judicial II Class Magistrate, Melur on 212. 1985. Material objects seized during investigation were forwarded through the Magistrate for chemical analysis. Exs. 5. P.W.12 arrested appellants 2 and 3 on 112. 1985 at or about 3.30 a.m. in the forest situated west of Ayyanarpuram, and forwarded them for remand. First appellant surrendered before Judicial II Class Magistrate, Melur on 212. 1985. Material objects seized during investigation were forwarded through the Magistrate for chemical analysis. Exs. P-7 and P-8 are the report of Chemical Examiner and serologist respectively, marked through P.W.8, Thamizhiah, Head Clerk, Court of Judicial Magistrate, Melur. 6. P.w.3 Chinnan Ambalam, P.W.4 Syed and P.W.5 Vellai examined to provide resgestae evidence, were treated hostile by the prosecution. 7. On completion of investigation P.W.12 laid the charge sheet on 2. 1986. 8. When the appellants were examined under Sec.313, Crl.P.C. to explain in the incriminating circumstances, appearing against them in evidence, they denied their complicity in the crime. They went on to add that they had no motive whatever against the deceased. The deceased was a bad character in the village with several enemies and one or other of them could have murdered him. Unfortunately for them, this prosecution had been concocted against them. No evidence was adduced in defence. 9. On assessment of oral and documentary evidence, learned trial Judge accepted the prosecution case, rejected the defence and dealt with the appellants as stated earlier. 10. Mr.J.R.K. Bhavanantham, learned counsel appearing on behalf of the appellants contended, that there was a delay of 11 hours in preferring the first information report and there was a further delay of 8 hours in receipt of the same document by the Magistrate and on that sole ground the case of the prosecution will have to be thrown out, more so, when the foundation of the prosecution case is based on the sole ocular version of P.W.1., an interested and inimical witness. He then argued, that there was substantial doubt about the scene of occurrence, which was one more factor lending assurance that the prosecution had not placed the entire truth regarding the incident before court. He submitted, that the evidence of P.Ws.1 and 2 was totally improbable and on mere surmises, appellants cannot be found guilty of murder. As far as appellants 2 and 3 are concerned, he emphatically contended, that on the available evidence, they could not have been convicted for murder with the aid of Sec.34, Indian Penal Code. 11. On these contentions, we have heard Mr.B.Sriramulu, learned Public Prosecutor. As far as appellants 2 and 3 are concerned, he emphatically contended, that on the available evidence, they could not have been convicted for murder with the aid of Sec.34, Indian Penal Code. 11. On these contentions, we have heard Mr.B.Sriramulu, learned Public Prosecutor. He submitted that there was no divergence whatever regarding the venue of crime. Though there has been some delay in the preferring of the first information report and its receipt by the Magistrate, acceptable explanation has been offered by the prosecution. He contended, that the occurrence had taken place in a forest area and due to lack of bus transport, it was possible to prefer the complaint, only on the next morning, as soon as transport facility was available. As far as appellants 2 and 3 are concerned, he contended that this Court may have to decide if they had common intention along with the first appellant to kill the deceased more so, when it cannot be predicated with certainty, that they could have been aware that the first appellant would suddenly pick up a stone and throw it on the head of the deceased. He argued, that the evidence of P.Ws.1 and 2 had no infirmity whatever and further recoveries made at the scene, of a gunny bag containing several articles intended for household, would be sufficient to proclaim the truth of P.W.1’s version. 12. Since the sheet anchor of the defence, was, the delay in preferring of the first information report and its receipt by the Magistrate. We looked into the original documents. We found that the initials of the Magistrate found is Ex.P-1 and its printed from Ex.P-10 were different from the initials of the Magistrate found in other documents. We were of the firm opinion that it was necessary to examine as a court witness police constable Sadayandi who had taken the first information report to the Magistrate. We were also certain that by examination of Sadayandi as a court witness, appellants cannot be prejudiced since the statement recorded during investigation had already been furnished to the appellants during the courts of trial. Further we also deemed it necessary to recall P.W.8 Thamizhiah, Court Clerk to depose about the differences on initials of the Magistrate found in Exs.P-1 and P-10 and the other documents. Further we also deemed it necessary to recall P.W.8 Thamizhiah, Court Clerk to depose about the differences on initials of the Magistrate found in Exs.P-1 and P-10 and the other documents. If need be we felt, that after the examination of Sadayandi and Thamizhieh, the investigating officer must be available before us for being tendered for cross-examination. Therefore, we summoned Sadayandi, Thamizhiah and the investigating officer to be present before us, since their evidence appeared to be essential to the just decision of the case. On 27. 1993, Sadayandi was examined as C.W.1 and he was cross-examined by the defence counsel. P.W.8 was recalled and examined on 27. 1993 and again on 27. 1993, with some more documents which have been marked as Exs.C-1 to C-4. Defence counsel also cross examined the investigating officer, who was examined as P.W.12 during sessions trial. After examination of these witnesses, we again listened to the arguments, advanced by, the defence counsel and prosecutor, which were almost in reiteration of their earlier submissions. 13. We have already carefully considered the submissions made by either counsel. The prime attack was on the genesis of the first information report, which is the foundation of the prosecution case, on which the whole edifice had been sought to be built. 14. We will initially dispose of the evidence regarding motive. P.W.10, Ilangovan, Sub-Inspector of Police attached to Natham Police station, in 1981, has spoken under registration of Crime No.142 of 1981 under Secs.323 and 324, I.P.C. against P.W.1. and the deceased, on a complaint preferred by the first appellant. He has further deposed, that both the accused in that crime were convicted. He has further spoken about the Crime No.181 of 1981 under Sec.436, I.P.C., having been registered, on the complaint of Chinna Gandhi mother of the deceased, against first appellant and 5 others. He has further added, that after investigation the said crime was referred as the real accused could not be detected. He has also spoken about the existence of land dispute, between the first appellant and Pethakilavan, the deceased. Animosity raising out of such litigastion, had been spoken to in his substantive evidence by P.W.1.. P.W.1. has also stated that 10 days prior to occurrence, there was an alteration between the first appellant and the deceased, regarding grazing of cattle. He has also spoken about the existence of land dispute, between the first appellant and Pethakilavan, the deceased. Animosity raising out of such litigastion, had been spoken to in his substantive evidence by P.W.1.. P.W.1. has also stated that 10 days prior to occurrence, there was an alteration between the first appellant and the deceased, regarding grazing of cattle. P.W.2, Chinnammal, who is none other than the wife of the deceased, has also spoken about the existence of animosity between the first appellant and her husband. On the aforestated. material, we can safely hold, that there was existence of strained feelings between first appellant and the deceased and therefore the appellants, who are brothers, did have a motive to commit the impugned crime. Hostility of P.W.3, examined to speak about motive, can be of no consequence, when the other evidence would clinchingly suffice. The stage is now set to scrutinise the ocular version, of sole eye witness P.W.1 . P.W.1 who is none other than the younger brother of the deceased. We have already seen that P.W.1 was also a co-accused with the deceased in Crime No,142 of 1981 registered on the complaint of the first appellant. Further his mother had initiated a complaint for arson including the first appellant as the main accused. These factors will tend to show that interest P.W.1 was also an inimical witness. Hence a great burden is cast on us, to scrutinise the evidence of P.W.1. with utmost care and caution, and finally audit its credibility. Law enunciated on this aspect is clear and consistent, that the evidence of an interested inimical witness cannot be put right rejected, on that score alone, and the court will have to put itself on guard to thread bare analyse such evidence, before arriving at a conclusion one way or other about its acceptability. That is the exercise we intend adopting in the process of analysing P.W.1’s version. 15. The most important circumstance, would be the possibility of the claimed presence of P.W.1., at the scene, when his elder brother was attacked. The scene of occurrence appears to be an isolated Forest area surrounded by hills and the nearest habitation appears to be Kannimarpuram, where the bus stand is situated at which place P.W.1 and the deceased, had allegedly alighted from the bus, having boarded it at Natham. The scene of occurrence appears to be an isolated Forest area surrounded by hills and the nearest habitation appears to be Kannimarpuram, where the bus stand is situated at which place P.W.1 and the deceased, had allegedly alighted from the bus, having boarded it at Natham. In that backdrop, it will be futile to expect independent ocular witnesses or even resgestae witnesses, to have been put into the witness-box, by the prosecution. It appears to be, asking for the almost impossible. One clinching circumstances, which probabilises the presence of P.W.1 at the scene, is the recovery of a gunny bag M.O.2, from the vicinity of the dead body which contained Cummin seeds sombu, dried brinjals and pesticides (Mos.3 to 6) which, P.W.1. had deposed, were bought by him and the deceased at Natham Shandy, in the company of his brother, he would not have been in a position, to have detailed about buying of these articles at 4 p.m. on the evening at Natham Shandy and then having tied them up together in a gunny bag (fertiliser bag). At the time, when the contents in Ex.P-1, were narrated by P.W.1, we cannot credit him with such ingenuity, that he had purposefully mentioned those details. So that the recovery of these articles from the scene later by Mahazar Ex.P-3, after referring to them in Ex.P-2, would lend an undeniable support for his claimed presence at the scene, P.W.1 is a rustic witness. Exs.P-2 and P-3 (observation and seizure mahazars) were prepared much later at 10 a.m. and 2 p.m. on 12. 1985. Therefore the narration in the first information report by P.W.1, about his having left in the company of his elder brother to Natham, their purchase of M.Os.3 to 6 at the Shandy, which they were carrying home, would all be extremely significant circumstances, pointing out the truthfulness of the claim of P.W.1 of his having been present along with his brother when the later was done to death by the first appellant in the company of the other co-accused, co-appellants. When cross-examined, P.W.1, had not hesitated, to admit his having been prosecuted along with his elder brother, in a criminal case at the instance of the first appellant, and he and his brother having been convicted, in that case. He has further affirmed, that there was enmity between him, his elder brother and first appellant. When cross-examined, P.W.1, had not hesitated, to admit his having been prosecuted along with his elder brother, in a criminal case at the instance of the first appellant, and he and his brother having been convicted, in that case. He has further affirmed, that there was enmity between him, his elder brother and first appellant. He has further admitted that the prosecution case preferred at the instance of his mother, against the first appellant and others, had been dropped even at the investigation stage. The conduct of P.W.1, in the witness-box shows, that he was not hiding certain features, which of course, could have certainly been established, even if he had chosen to deny those facts. Quite often, we come across witnesses hesitating to admit some of certain basic facts, which are capable of being proved, on the wrong notion, that by such admission, the truth of the impugned case, in which they were deposing, could get affected. That fear admittedly P.W.1 did not have and he had decided to laybare the whole truth. P.W.1 had been subjected to a very lengthy and strenuous cross-examination. As far as the basic facets of the prosecution cases are concerned, we do hot find any dent, in his version. The only exaggeration we find in his evidence is about the role attributed to appellants 2 and 3. In the first information report while referring to appellants 2 and 3, he had stated as follows: Hence, in court, he had chosen to add, that appellants 2 and 3 held the deceased Pethakilavan by using pressure to facilitate throwing of the stone on his head and face by the first appellant. Even during investigation, P.W.1 does not appear to have stated about appellants 2 and 3 holding of the fallen down victim, solely with a view to help the first appellant to do away with the victim. This. portion of the evidence of P.W.1 is certainly an embellishment. But that alone will not be sufficient to reject his evidence in its entirety, though it is bound to benefit appellants 2 and 3. 16. In so far as the challenge, regarding acceptability of the version of P.W.1, on the basis of the delay in preferring the first information report, we will consider it, when we analyse arguements advanced, about the earliest document. 16. In so far as the challenge, regarding acceptability of the version of P.W.1, on the basis of the delay in preferring the first information report, we will consider it, when we analyse arguements advanced, about the earliest document. Whether there would have been an earlier information by Pazhani and Marisa’n (both not examined) prior to Ex.P-1, we will refer to it, while reasoning out the truthfulness or otherwise of the coming into being of the first information report. 17. Evidence of P.W.1, in so far as it relates to the overtacts attributed to the first appellant is fully corroborated by medical evidence. Further the contents of the first information report are fully in tune with substantive evidence offered by him in court. These are certainly relevant circumstances which tend to enhance the credibility of P.W.l’s version. 18. P.W.2, wife of the deceased, was not an eye witness, but she arrived at the scene, only on the basis of information furnished to her, by P.W.1. Disparity, about the scene of occurrence, pointed out by the appellants counsel, is mainly based on her version. She has deposed that on the information furnished by P.W.1, she along with her parents-in-law proceeded to Murungakattu Odai, where she found her husband dead, with injuries on his face and head. During cross-examination she has stated as follows: It is only on this basis, that the appellants counsel submitted, that the scene of occurrence cannot be Cukkarakkal Odai, as spoken to by P.W.1. It was also elicited from P.W.2, that during investigation, she had not stated, that P.W.1 had informed that her husband been attacked at Cukkarakkal Odai. This portion of the evidence of P.W.2 has been contradicted by P.W.12 investigating officer, who has stated, that P.W.2 had stated during investigation, that her brother-in-law P.W.1, came rushing to her, and informed her that her husband had been attacked at Cukkarakkal Odai. It is therefore very clear, that when the memory of P.W.2 was fresh, since she was one of those witnesses, who was examined during inquest, or there abouts, she had very clearly stated, that her husband was attacked at Cukkarakkal Odai and not else where. It is therefore very clear, that when the memory of P.W.2 was fresh, since she was one of those witnesses, who was examined during inquest, or there abouts, she had very clearly stated, that her husband was attacked at Cukkarakkal Odai and not else where. Even otherwise, there does not appear to be any real divergence regarding venue of crime for, P.W.12, when cross-examined, has categorically, stated that Cukkarakkal Odai and Murugakuttu Odai were one and the same, though he has admitted, that his diary does not reveal the said fact. This admission docs not enure in favour of the appellants for, Ex.P-2, observation mahazar, prepared at 10 a.m. on 12. 1985, while detailing the location of venue of crime reads as follows: This entry in Ex.P-2 puts an end to any controversy that Murungakuttu Odai and Cukkarakkal Odai were so different, necessarily leading to an inescapable conclusion, that there was a vital divergence regarding the scene of occurrence. Blood stains were found in Cukkarakkal Odai, where the corpse also was found. Even then, on the basis of the deposition of P.W.6, the Village Administrative Officer, appellants counsel contended, that Murungakkuttu Odai and Cukkarakkal Odai were easily distinguishable. P.W.6 has deposed as hereunder: This piece of evidence of P.W.6, though discloses, that two odais were distinguishable, does not go against the prosecution case, that the occurrence was at Cukkarakkal odai, north of Murungakkatu hills. It appears that unnecessary confusion, regarding the scene of occurrence has been sought to be created, without minimum material to cast any doubt even remotely, about the venue of crime. 19. It will be very difficult for us to hold, that the evidence of P.Ws.1 and 2 borders on artificiality especially, when the chain of events, spoken to them from the time of deceased was attacked, till the police men arrived at the scene are so natural and corroborated by, leading assurance material. 20. The final and substantial ground, emphatically urged, is about the delay in the preferring of the first information report and its belated receipt of the Magistrate. It is the accepted case of the prosecution, that the occurrence has taken place around 9.30 p.m., we have already noticed, that this night occurrence, was in an isolated place, in a hilly area, and therefore sufficient hurdles were there, prohibiting prompt action, to set the law in motion. It is the accepted case of the prosecution, that the occurrence has taken place around 9.30 p.m., we have already noticed, that this night occurrence, was in an isolated place, in a hilly area, and therefore sufficient hurdles were there, prohibiting prompt action, to set the law in motion. P.W.1 was questioned about availability of bus service, between the venue of crime and Natham. He has also spoken about the frequency of such bus service. While denying, that it would take only 20 minutes to reach Kannimarpuram and Sen-durai, Nallamani bus service, Krishna bus service; Dandalmurugan bus service, Rajasekaran bus service and Rani Mangammal Town bus service were available. From Natham to Sendurai, town Bus Service was available every 45 minutes. The earliest bus facility was available from Kannimarpuram to Natham only at 5.30 or 6 a.m. in the morning. It has no where been elicited from P.W.1 that bus service was available during night time, and inspite of it, P.W.1 did not choose to proceed to Natham and prefer a complaint and the time lag had been utilised for confabulation and fabrication of the first information report, implicating the appellants with an ulterior motive. It was also suggested to him, that 11/2 kms. away from his village at Manangkattur, hire cycle shops were available and further at the same place in housing colony of Sarvodaya Sangh, there was a jeep, van and tractor. Obviously the intention behind these suggestions was, that any one of such transportations, could have been utilised by P.W.1, to set the law in motion. It will odd to expect any person placed in the situation of P.W.1., who claims that he was in absolute right, to have decided to move from place to place situated a few kilo meters away during night time, in search of possible hire cycles or benevolent owners of jeep, van or tractor, to readily offer their help to assist P.W.1, to lay a complaint at the police station, situated quite some distance away from the scene of crime. Though P.W.1 had admitted that carts used to ply on the Natham-Sendurai road, he has added that those carts could not be utilised to proceed to Natham. It is possible to visualise on the evidence of P.W.1 that those carts, if at all, were engaged in carrying flowers, fruits and vegetables from far off villages to Natham market. Though P.W.1 had admitted that carts used to ply on the Natham-Sendurai road, he has added that those carts could not be utilised to proceed to Natham. It is possible to visualise on the evidence of P.W.1 that those carts, if at all, were engaged in carrying flowers, fruits and vegetables from far off villages to Natham market. We should position ourselves, in the contingency in which P.W.1 was placed while appreciating his evidence; The availability of public transport system, which could be utilised right royally, will be different from the availability of other facilities, which obviously will not be readily utilisable and it does not even look possible that all these thoughts, would have gone into the rustic mind of P.W.1., that other transport systems, which probably could be obtained, either due to pressure or out of sympathetic consideration, ought to have been sought for. P.W.1. who was in fear of attack had rushed from the scene of occurrence to his village and had come back, with his parents and sister-in-law, to the scene place. He has more than secure in the company of others. It is not as though P.W.1 who has witnesses the occurrence had kept idle, for, after he had arrived at the scene, he had gone to the scene vicinity, where he had alighted from the bus, and mentioned to those living adjacent to the bus stand about this occurrence. The argument was, that before informing his parents and sister-in-law, P.W.1. should have informed residents of Kannimarpuram. This arguments does not appear to have any weight attached to it. The suggestion, that P.W.1. could have walked to the police station or utilised other means of transportation probably available at some distance, on request, only tends to portray imaginary possibilities rather than practical certainties. Police station is situated at a distance of 15 kms. from Kannimarpuram-Cuk-karakkal odai. Hence the registration of Ex.P-1 at 8 a.m. on 12. 1985, after bus facilities were available cannot be held to be the outcome of delay, unexplained. We are impressed with the evidence of P.W.1 and as a matter of fact, reasonable explanation offered by him does appear to be meaningful and trustworthy. Therefore, the first fact of delay in preferring of the complaint by P.W.1 does not enure in favour of the appellants. We are impressed with the evidence of P.W.1 and as a matter of fact, reasonable explanation offered by him does appear to be meaningful and trustworthy. Therefore, the first fact of delay in preferring of the complaint by P.W.1 does not enure in favour of the appellants. Even at this stage, it will be proper to dispose of the contention, that there must have been an earlier complaint, on the information provided by Pazhani and Marisan, which was sought to be suppressed. Defence counsel pointed out the admission of P.W.1. that Marisan, Pazhani, Mandaian and his mother were with him at the police station and Sub Inspector of Police enquired Pazhani and Marisan about the occurrence and they too offered information within their knowledge which was reduced into writing by the said police officer. Initially P.W.1. had stated that he was not aware if the signatures of Pazhani and Marisan were taken at the police station by the police officer, but later volunteered to depose that thumb impressions were taken. This admissions was sought to be connected with the evidence of P.W.2 that at the scene of occurrence police officers were scrutinising the parts of the body in which her husband had sustained injuries. At that time, police men enquired her as to how the occurrence had happened. While she was so stating, Pazhani and marisan were present there and they informed the police Officer as follows: She has further stated, that Pazhani and Marisan had informed her, about their having noticed her husband lying with injuries. These portions of evidence pointed outby the learned defence counsel have been torn out of context for, the other material available, in the evidence of these two witnesses, clearly indicates, lack of merit in this contention. Police had arrived at the scene later in the morning and when they were examined the dead body, naturally they had questioned P.W.12 who was present. At the same time Pazhani and Marisan were also present. P.W.2 has admitted that even earlier to the enquiry by the policemen bear the dead body P.W.1. had proceeded to the police station, to prefer a report. At the same time Pazhani and Marisan were also present. P.W.2 has admitted that even earlier to the enquiry by the policemen bear the dead body P.W.1. had proceeded to the police station, to prefer a report. That the enquiry of Pazhani and Marisan must have been much later and they should have been present at the police station with P.W.1, during the course of investigation, is also apparent from the evidence of P.W.1, in another portion of his evidence, not sought to be connected by the defence counsel, with the admissions he had pointed out. As soon as P.W.1. had preferred his complaint, policemen had proceeded to the scene and it was some time later, that P.W.1 had joined them. At the scene, he was enquired about the occurrence over-again, which was reduced into writing, but signature was not obtained, in such statement obtained from him at the scene. He has also qualified that in signature was obtained earlier, when he narrates his complaints at the Natham police station. It is thus evident, that the second statement taken near the dead body was in the course of investigation recorded under Sec.161, Crl.P.C. He has then deposed, that again he went along with the police officer to the Natham Police station, at which time, Pazhani, Marisan and his mother joined him. Not only these persons, but also neighbouring villagers were enquired by Sub Inspector of Police. It was then that the statement of Pazhani and Marisan were obtained. These statements recorded during investigation; cannot be elevated to the position of first information report, which the defence counsel claims to have been suppressed. We are unable to hold, that there was any prior complaint before Ex.P-1, which had been kept out of court’s scrutiny. This argument does not have any merit at all. 21. The travel of Ex.P-1, from the police station to the concerned Magistrate and delay if any, in such travel, will have to now engage our attention. There is no dispute that the concerned Magistrate is the Judicial II Class Magistrate, Melur. The evidence of P.W.1. and the investigating officer clearly shows, that the distance between Natham and Melur is about 35 kms. The bus facility between Natham and Melur is poor, and the frequency would be about one and half hours. According to C.W.1 he received Exs.P-1 and P-10 at 9.30 a.m. on 12. The evidence of P.W.1. and the investigating officer clearly shows, that the distance between Natham and Melur is about 35 kms. The bus facility between Natham and Melur is poor, and the frequency would be about one and half hours. According to C.W.1 he received Exs.P-1 and P-10 at 9.30 a.m. on 12. 1985 from his police station. Due to lack of frequency of buses, he was able to reach Melur court only between 1 and 1.30 p.m. It was then, that he was told by the court clerk, that Judicial II Class Magistrate, Melur was on leave, and Judicial II Class Magistrate at Madurai,was in charge. After obtaining this information, C.W.1 had travelled from Melur to Madurai situated 22 kms away. Madurai Magistrate had received the first information report at 4 p.m., as his initials confirm, the said time of receipt. Again the evidence of C.W.1 and P.W.12 would show, that approximately between Madurai and Melur, depending on the bus taken, town bus or long distance bus, the travel time would range between 45 minutes and 75 minutes. Therefore it cannot be said, that there has been any want on delay. P.W.8, Thamizhaiah, Court Clerk, has affirmed, in his evidence, the despatch of Exs.P-1 and P-10 and their receipt, by the Magistrate at Madurai, on the strength of initials found therein. On the basis of Exs.C-1 to C-4 be deposed that Judicial II Class Magistrate, Melur was on casual leave on 12. 1985. The docket sheets of certain calender cases marked as Exs.C-2 to C-4 show, that the Melur Magistrate was on leave on 12. 1985 and hence those proceedings were adjourned. Ex.C-1, which is the fine collection register shows, that no fine amount was collected on 12. 1985. That was so, because, as spoken to by P.W.8, the Judicial II Class Magistrate, Melur was on leave. If the concerned Magistrate was on leave, fine amounts were not collected. We are able to see from Ex.C-1, that after 12. 1985, fine amounts were collected only on 12. 1985. 7th and 8th December were holidays being Saturday and Sunday. On 12. 1985, the Magistrate was on casual leave. Ofcourse P.W.8 was unable to remember, at this distance of time, approximately 8years after the commission of this crime, if C.W.1 had met him at or about 1.30 p.m. On 12. 1985, and he had directed him to proceed to Madurai. 7th and 8th December were holidays being Saturday and Sunday. On 12. 1985, the Magistrate was on casual leave. Ofcourse P.W.8 was unable to remember, at this distance of time, approximately 8years after the commission of this crime, if C.W.1 had met him at or about 1.30 p.m. On 12. 1985, and he had directed him to proceed to Madurai. This admission of P.W.8 is quite understandable. However, after looking at Exs. P-1 to P-10, he was able to identify, initials put in there, as that of Muthiah who was then Judicial II Class Magistrate, Madurai. He was acquainted with the initials of the said Muthiah as well as the Melur Magistrate S.Karpurasundaram. He has worked under both the Magistrates. Initials of Karupurasundaram have not been affixed in Exs. P-1 and P-10. They contain the initials of Muthiah. P.W.8 is also certain, that only in the absence of Judicial II Class Magistrate, Melur, documents would be forwarded to Judicial II Class Magistrate, Madurai, who would be the incharge Magistrate, on the occasions. When P.W.8 was questioned about the absence of seal of Judicial II Class Magistrate, Madurai, in Exs.P-1 and P-10, he stated that such seal of the incharge Magistrate will be affixed only in the event of documents being forwarded to the regular court by post, and that if the documents were returned through the messenger, who had carried them, after affixing of initials, the seal of the incharge Magistrate will not be affixed. It is the categoric evidence of C.W.1, that the incharge Magistrate of Madurai handed over the documents Exs.P-1 and P-10 to him, to be delivered, in the Court of Judicial II Class Magistrate, Melur, which he did. Therefore it is not surprising, that in Exs.P-1 and P-10, wherein the initials of the incharge Magistrate, Madurai are found, the seal of Judicial II Class Magistrate, Melur has been affixed. The evidence of C.W.1 and P.W.8, further erases the doubt we had entertained, as to why two different Magistrates had put in initials, one in Exs.P-1 and P-10, and the other in all the other documents. We are not prepared to hold, that the time taken between 1.30 p.m. and 4 p.m., on 12. 1985, to handover Exs.P-1 and P-10 to the Madurai incharge Magistrate after visiting the Melur Court, by C.W.1, has not been satisfactorily explained. We are not prepared to hold, that the time taken between 1.30 p.m. and 4 p.m., on 12. 1985, to handover Exs.P-1 and P-10 to the Madurai incharge Magistrate after visiting the Melur Court, by C.W.1, has not been satisfactorily explained. If we take note of the pooravaila-bility of bus service at Natham, and the travel time to Melur, it will not be possible to conclude, that there has been any sinister or unexplained delay, in the movement of Exs.P-1 and P-10, from Natham to Melur. It can be ofcourse argued , that there could have been a little more speed but that will be a relative factor depending on variables. After anxious consideration, we are prepared to hold, unhesitatingly, that though there had been delay in the preferring of the first information report and its receipt by the Magistrate, both delays have been properly explained, and the appellants on the ground of delay. Courts have often held, that every delay if satisfactorily explained will be a point in support of the prosecution. 22. Defence counsel placed for our consideration judgement of the Supreme Court in Peddireddy Subbareddy v. State of Andhra Pradesh, A.I.R. 1991 S.C.1356, to contend, that delay of 15 hours in lodging the first information report was sufficient to discard the prosecution case. That was a case, where the eye witness after witnessing the incident, did not report about it to any of the villagers and his testimony was clouded with strong suspicion. Further false implication of the accused was not completely ruled out. It was in that context, the Supreme Court observed, that the delay in lodging the first information report, in that prosecution, was open to grave doubt. It was not, on the ground of mere delay alone, that the case was thrown out, but also on other factors, like lack of explanation for the delay, conduct of eye witness, and his testimony being clouded with strong suspicion. Obviously in the instant appeal, facts are completely distinguishable. 23. In Johny and five others v. State, 1990 L.W. (Crl.)175, a Division Bench of this Court to which one of us (Arunachalam, J.) was a party, held that a belated first information report would give rise to a suspision and put the court on guard, to look for possible and acceptable explanation for delay, for the possibility of false implication, may then look large. That was a case where apart from an unexplained delay of 25 hours in receipt of first information report by the Magistrate, the details of travel of the first information report had not been placed for court’s scrutiny. The investigation in that case, was found to be totally callous, shocking the conscience of the court. On the basis of facts placed before the said Division Bench, it commented about the fatal delay in the receipt of the first information report by the magistrate and adding the same with other infirmities held in favour of the appellants therein. Needless to add, that every case has its own specific horoscope, its planets being the facts placed, and the ultimate decisions depends upon the totality of facts available for scrutiny. The principle of law enunciated in one case, will not automatically apply to another case, totally divorced from the facts. Neither the law laid down, nor the facts available, help the appellants in this prosecution. 24. We have already found, that appellants 2 and 3 cannot be convicted for murder for the aid of Sec.34, I.P.C. on the basis of the sole evidence of P.W.1, who has embolished his version in court, contrary to his own case in the first information and during investigation. The overtact of pressing down of the deceased now alleged against these two appellants the prosecution would have it, was to facilitate murder of the deceased by A-1 and that was the outcome of entertainment of common intention. If we take the facts as found in the first information report all that is alleged is that appellants 2 and 3 pushed the deceased down. In the context in which the occurrence had taken place, more so, when there was admitted enmity between the first appellant and the accused 2 and 3, could very well have been to prevent any right between their brother and thevictim. None of the appellants were armed at the time of occurrence. It would be odd to expect, that A-2 and A-3 could have possibly known, that the first appellant would pick up a big stone and throw it on the road and face of the deceased and kill him. It will be very hazarduous to convict appellants 2 and 3 with the aid of Sec.34, Indian Penal Code, on the limited facts placed by the prosecution. It will be very hazarduous to convict appellants 2 and 3 with the aid of Sec.34, Indian Penal Code, on the limited facts placed by the prosecution. We are able to notice, from the evidence of P.W.1, that he had also pushed his brother on the appellants, with a view to save him. The conduct of P.W.1 and appellants 2 and 3, in such process, one wanting to save the deceased and the other two probably wanting to avoid a fight between the first appellant and the deceased, will clearly show, that this is one more circumstance which will enure in favour of appellants 2 and 3. It is clear that P.W.1 has added some more material with greater enthusiasm, in court, to implicate with more vigour, appellants 2 and 3. It should be possible for the court to separate chaff from grain. Adopting such process we find only chaff and no grain against appellants 2 and 3 who are thus entitled to the benefit of doubt. Conviction and sentences imposed on appellants 2 and 3 by learned trial Judge are set aside and they are acquitted. Insofar as they are concerned, this appeal is allowed. 25. As far as the first appellant is concerned we agree with the findings recorded by the trial Judge and hold him guilty of murder. Sentence imposed being the lesser penalty, cannot be interfered with. This appeal shall stand dismissed in so far as it relates to first appellant.