Judgment : JANARTHANAM, J. ( 1 ) ALL these Criminal Appeals arise out of two distinct and independent trials involving recording of evidence of like nature -in Sessions Case Nos. 43 and 44 of 1985 on the file of Court of Session, South Arcot Division at Cuddalore, relatable to -if colloquially described a common occurrence -or if pithily and aptly put, by the usage of a legal jargon, a single transaction -of a heinous crime of murder, involving participation of a juvenile accused, along with other adult accused. ( 2 ) THE former case pertains to adult accused - nine in number - namely, Pappu Samutiyar (accused 1), Viruppalingam (accused 2), Murugan (accused 3), Rosappa Samutiyar (accused 4), radhakrishnan (accused 5), Ramalingam (accused 6), Thangam alias Muthukrishnan (accused 7), dhandapani (accused 8) and Vadakku Meluran alias Selvaraj (accused 9), who faced trial on charges for various offences, as detailed below: Charge No. Against which accused Offences under Indian Penal Code Firstly, Accused 1 to 9 120-B Secondly, Accused 1,2,5& 6 148 ( 3 ) ON trial, accused 2, 5 and 6 were each, though found not guilty under Sections 120- Band 148 of the Indian Penal Code, but, however, found guilty under Section 302 read with Section 34 of the Indian Penal Code, convicted thereunder and sentenced to imprisonment for life. Aggrieved by the said conviction and sentence, they filed Criminal Appeal No. 744 of 1986. ( 4 ) REST of the accused, namely, accused 1, 3, 4, 7, 8 and 9 were found not guilty of the offences with which they stood charged, resulting in their acquittal, besides accused 2, 5 and 6 in respect of the offences under Sections 120-B and 148 of the Indian Penal Code, as aforesaid, against which Criminal Appeal No. 1184 of 1986 had been filed by the State against accused 1 to 7, alone. ( 5 ) ACCUSATIONS for offences under Sections 120-B, 148 and 302 read with Section 34 of the Indian Penal Code or alternatively under Section 302 read with Section 149 of the Indian Penal Code were levelled against the juvenile accused Kulandaivel, who, on trial, was found not guilty thereof, culminating in his acquittal, against which Criminal Appeal No. 419 of 1989 had been filed by the State. ( 6 ) AUGURS well, we feel, in such a situation, to render a common judgment in all these appeals and we accordingly do so. ( 7 ) THE case of the prosecution, in brief, may be stated thus: (a) One Chandran alias Ramachandran (since deceased) and adult accused 1 to 9, besides juvenile accused Kulandaivel, are all residents of Samutikuppam village, which is within the jurisdiction of Kullanchavadi Police Station. The deceased and accused are interrelated to each other. Soalso P. Ws. 2and 3, the eye witnesses. Accused 1 and4 are brothers. Accused 2 and 3 are sons of accused 1. Accused 5, 6, 7 and the juvenile accused are the sons of accused 4. Accused 8 and 9 are said to be the associates and confederates of the other accused. (b) The deceased is the maternal uncle of P. W. 1. This apart, accused 1 is related to P. W. 1, as his grandfather. Accused 1 is also related to P. W. 2 as his brother. (c) Samuttikuppam and Puliyar are adjacent villages. These two villages, it is said, are connected by a motorable road, called as Samuttikuppam-Puliyur Road, which runs east- west. The deceased, apart from owning and cultivating his lands, was also stated to have cultivated the lands belonging to P. W. 6. All those lands arc situate two KM5. away from Samuttikuppam, lying on either side of the east-west road. There were standing crops in those fields at the relevant point of time. The deceased was said to have cultivated sugarcane, tapioca and paddy in those fields. Sugarcane field is said to lie on the north of the cast-west road, while tapioca garden lies on the south of the said road. Adjacent to the topioca garden, the field belonging to P. W. 6 is situate, in which paddy had been cultivated and it was ripe for harvest. (d) The deceased was functioning sometime prior to the occurrence whichever happened on 22. 9. 1984, as Private Secretary to the then Honourable Minister for Electricity, Mr. Panruti Ramachandran. He somehow or other resigned the job and got settled in the village. He undertook contract works and for the assistance of which, he got engaged one Jayapal. He also became a partner in the arrackshop located at Kullanchavadi and taken on auction by one Pandiyan of Cuddalore. Panruti Ramachandran. He somehow or other resigned the job and got settled in the village. He undertook contract works and for the assistance of which, he got engaged one Jayapal. He also became a partner in the arrackshop located at Kullanchavadi and taken on auction by one Pandiyan of Cuddalore. He also became a partner of the arrackshop located at Ambalavanankuppam, taken on auction by one Kandasamy, who is none-else Thirdly Accused 3, 4 & 7 147 Fourthly Accused 2 302 Fifthly Accused 8 & 9 302 read with 120-B Lastly Accused 1 & 3 to 7 302 read with 34 OR alternatively 149 than the father of P. W. 1. (e) Sometime prior to the occurrence, accused 4 was engaged in selling arrack, in a clandestine way, thereby affecting the regular business of the arrackshop. The deceased, utilizing his inference caused accused 4 to be arrested by the Sub Inspector of Police, Kullanchavadi and a case under the Prohibition Act had been booked. Consequently, there came to prevail feelings of animosity and want of cordiality between the deceased and accused vahayara. It also so happened that accused vahayara a few months prior to the occurrence, were stated to have inflicted harm on the person of Jayapal and the deceased was stated to have intervened, utilised his influence and caused the arrests of accused 1, 2, 5 and 6 and ultimately, a case against them for various offences had been booked. On this account also, enmity between the deceased and accused vahayara got nurtured to estatic height. (f) On 18. 9. 1984, it is said, a criminal conspiracy was hatched with the active connivance, consultation and confabulation of accused 8 and 9, to murder the deceased and the Subinspector of Police as well, who had been rendering a helping hand to the deceased in foisting cases upon accused vahayara and such conspiracy was stated to have been hatched by sitting under a banyan tree situate opposite to Mariamman temple in Sumuttikuppam at 6 P. M. that day and such a conspiracy, it is said, came to be perceived by P. W. 15. (g) The deceased, on the morning of the day of occurrence, namely, 22. 9. 1984, appeared to have gone to his paddy field to procure labourers for the purpose of harvesting the paddy crops. (g) The deceased, on the morning of the day of occurrence, namely, 22. 9. 1984, appeared to have gone to his paddy field to procure labourers for the purpose of harvesting the paddy crops. He appeared to have given instructions to P. W. 4 for procuring labourers from Puliyoor. On the morning of the day of occurrence, P. W. 1, it is said, was mandated by his father Kandasamy to procure bullock carts and bulls from Puliyur for transporting tapioca roots to be harvested from their fields. Accordingly, P. W. 1 was stated to have made an onward march towards Puliyoor in his bicycle. (h) When he was going along the road near the fields of the deceased, he sighted accused 1 to 7 crossing the main road, by marching from the sugarcane field, situate on the north of the road and going towards the topioca field, obviously to take ambush in the said field. All of them, it is said, were armed with deadly weapons, such as Veecharuval. koduval, Sulukki and stick. Even at that time, P. W. 1 perceived perilous consequences to ensue to the life of the deceased, whom he happened to see in the nearby paddy fields. Therefore, he went there and apprised the deceased of the presence of accused in the vicinity of the area, arming themselves with all lethal weapons. He also, it is said, warned the deceased that in case, he proceeded towards the direction of his village, there was every likelihood of imminent danger to his life. The deceased did not, however, view the situation so seriously and consequently, he proceeded to go to his village in the scooter, he was having in the field at that time. (i) When the deceased was going along the road towards east, in his scooter, P. W. 1 watched the situation, daunted by curiosity. All the accused suddenly emerged to the main road, arming themselves with all lethal weapons in their hands. On seeing them, the deceased, feeling panicky, attempted to turn round and proceeded towards west. (i) When the deceased was going along the road towards east, in his scooter, P. W. 1 watched the situation, daunted by curiosity. All the accused suddenly emerged to the main road, arming themselves with all lethal weapons in their hands. On seeing them, the deceased, feeling panicky, attempted to turn round and proceeded towards west. In the process of applying brake, so as to take a turn, the scooter somehow or other tumbled down, with the result, he was unable to proceed further and the only course or option available was to run for his life and in such a process, even the chappals he was wearing were abandoned and he took to his heels. (G) All the accused chased him and in the process of such chasing, accused 4, who was in possession of M. O. 1 stick in his hand, hit on the right hand of the deceased. Accused 3 and 7 somehow or other caught hold of him and restrained his movements any further. Whilst the deceased was in the grip and hold of accused 3 and 7, accused 2 was stated to have given two cuts with M. O. 2 Veecharuvalon his head. The deceased then was stated to have cried aloud and craved and cringed for his life to be spared. Notwithstanding such agonising cries, accused 2 further inflicted with M. O. 2, two more cuts on his neck. Then it was the turn of accused 5 and he was stated to have inflicted two cuts with M. O. 3 Veecharuval on his neck. Accused 1, with the aid of M. O. 4 sulukki, he was then having, was stated to have given a stab on his right leg below the knee. Unable to bear the pain, as a result of the infliction of such cuts and stabs and beatings, he turned aside and at that time, accused 6, with M. O. 5 koduval, was stated to have inflicted two cuts, one on his left armpit and another on his left upper arm. The juvenile accused was also stated to have given two cuts with M. O. 6 Knife on his chest and face. During the mangling operation by all these accused, the deceased was stated to be in standing posture, by his being caught hold of by accused 3 and 7. The juvenile accused was also stated to have given two cuts with M. O. 6 Knife on his chest and face. During the mangling operation by all these accused, the deceased was stated to be in standing posture, by his being caught hold of by accused 3 and 7. Then the deceased fell down and he was pushed into a pit lying on the margin of the road. Thereafter, all the accused ran away from the scene, carrying the weapons. (k) At the time of occurrence, apart from P. W. 1, who was stated to be standing on the road, P. W s. 2, 3 and 5 were there and had the fortuitous opportunity of witnessing the occurrence. P. W. 2 was stated to have been present, few yards away on the east, where the occurrence took place while P. W. 3 was stated to have been present in the paddy field and P. W. 5 was stated to have been standing at a distance of one and a half furlongs away from the place of occurrence. The time then was stated to be 6. 30 or 7. 00 A. M. (I) At about 7. 00 or 7. 30 A. M. the Village Administrative Officer, P. W. 12 and his thalaiyari P. W. 10, on hearing the dastardly murder of the deceased came to the scene. P. W. 1 was stated to have given Exhibit P. 1 statement, as respects the occurrence to P. W. 12. P. W. 12 also prepared his report, Exhibitp-5. He then handed over Exhibits P-I and P-S to P. W. 10, with a direction to hand over the same to the Station House Officer, Kullanchavadi. (m) P. W. 17 was the then Sub-Inspector of Police, Kullanchavadi-P. W. 10 reached the police station at 9 A. M. and handed over Exhibits P-I and P-S to P. W. 17, who, in turn, registered the case, in Crime No. 259184 for the alleged offences under Sections 147, 148, 341 and 302 I. P. C. Exhibit P-3 is the printed F. LR. He sent VHF message to P. W. 18, Inspector of Police, Cuddalore. He also despatched express F. I. R. to the officials and the Court concerned. He then proceeded and reached the scene of occurrence at 10. 30 AM. (n) PW. He sent VHF message to P. W. 18, Inspector of Police, Cuddalore. He also despatched express F. I. R. to the officials and the Court concerned. He then proceeded and reached the scene of occurrence at 10. 30 AM. (n) PW. 18, on receipt of the VHF message, sent messages to the Sub-Inspector of Police, Kuringippadi directing him to proceed to the scene with a photographer. He then reached Kullanchavadi Police Station, got the express F. I. R and then reached the scene at about 10. 30 AM. He inspected the spot and prepared Exhibit P-6 observation mahazar. He also prepared Exhibit P-14 rough sketch of the scene. He caused photographs of the scene to be taken by P. W. 8 photographer. M. Os. 7, 8 and 12 are the photographs and M. Os. 13, 14 and 15 are the negatives. The body of the deceased was ,lifted from the pit, with the assistance of P. W. 7 and one Kaliyan. In the process of retrieving the body from the pit, the body was state do have fallen down once and in such process, it is said, skin on its left leg and right thigh got peeled off. Between 11-30 A. M. and 2-30 P. M. , P. W. 18 held inquest over the body of the deceased. Exhibit P-is is the inquest report. During inquest, he examined P. Ws. 1 to 3 and 12. He handed over the body to the police constable, P. W. 11, along with Exhibit P-12, requisition for the purpose of autopsy. At 2-30 P. M. he seized M. O. 18 bloodstained earth from the road and also M. O. 19 bloodstained earth from the place-where the corpse was lying, besides sample earth M. Os. 21 and 22, under Exhibit P7 mahazar, attested by P. W. 13. He also seized pair of chappals (M. O. 11 series) and the scooter (M. O. 20) under Exhibit P-8 mahazar, attested by P. W. 1 ). He then examined P. W,s. 4, 10 and others. Thereafter, he proceeded to Samuttikuppam village and examined P. Ws. 7 and 13. He then proceeded to Krishnapalayam and examined P. W. 5, and, thereafter returned back to the police station at Kullanchavadi. (0) P. W. 16 is the then AD. M. O. , Government Headquarters Hospital, Cuddalore. He then examined P. W,s. 4, 10 and others. Thereafter, he proceeded to Samuttikuppam village and examined P. Ws. 7 and 13. He then proceeded to Krishnapalayam and examined P. W. 5, and, thereafter returned back to the police station at Kullanchavadi. (0) P. W. 16 is the then AD. M. O. , Government Headquarters Hospital, Cuddalore. On receipt of Exhibit P-12 requisition, he commenced autopsy over the body of the deceased at 4-45 P. M. Exhibit P-il is the postmortem certificate he issued. He opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained by him about 6 to 10 hours prior to postmortem. (p) After the autopsy was over, P. W. 11 seized from the body of the deceased M. O. 9 shirt, M. O. 10, lungi, M. O. 16 banian and M. O. 17 jatti. He handed over those seized material objects to P. W. 18 at 9-15 P. M. at the-police station, who seized the same under Form No. 95. P. W. 18 then examined P. W. 11 and 8 and proceeded to Cuddalore and examined P. W. 16. On 23. 9. 1984, he handed over the records of the case to P. W. 19, Inspector of Police, CB, cm, South Arcot district at Cuddalore, as per the directions of the Superintendent of Police and further investigation had been taken up by him. Thereafter, P. W. 19 reached the scene and examined P. W. 15 and others. On 27. 9. 1984, he came to know that accused 1, 2, 4, 5, and 6 surrendered before the Judicial Second Class Magistrate, Vellore. On 30. 9. 1984 at 11-45 A. M. he arrested accused 8 near the bus stand at Kurunjippadi. At 2-30 P. M. on the same day, he arrested accused 9 at Kammapuram. He sent both accused 8 and 9 to Court for purpose of remand. On 1. 10. 1984, he gave requisition to the Judicial Second Class Magistrate, Portonovo for transfer of accused to Cuddalore Central Prison. On 5. 10. 1984, he gave Exhibit P-16 requisition to the Judicial Second Class Magistrate, Portonovo for police custody of accused 1, 2, 4, 5, 6 and the juvenile accused. On the Saqie day, a favourable order, Exhibit P-17 had been passed by the said Magistrate, giving them police custody. On 6. 10. On 5. 10. 1984, he gave Exhibit P-16 requisition to the Judicial Second Class Magistrate, Portonovo for police custody of accused 1, 2, 4, 5, 6 and the juvenile accused. On the Saqie day, a favourable order, Exhibit P-17 had been passed by the said Magistrate, giving them police custody. On 6. 10. 1984, he took all the accused to Samuttikuppam Ayyanar Temple and when they reached, it was about 3. 30 P. M. , group gathered and before the crowd, accused 6 was stated to have given a confession statement, the admissible portion of which is Exhibitp9. Pursuant to Exhibit P-9 confession, accused 6 to6k them to the motor shed situate inside the cashew tope belonging to one Anugampattu Naidu, wherefrom he took out and produced stick (M. O. 1), bloodstained Veecharuval (M. O. 2), another Veecharuval (M. O. 3), sulukki (M. O. 4), kuduval (M. O. 5) and knife (M. O. 6) kept hidden in the intermittent space between the wall and bamboo that and all such material objects were seized under Exhibit P-b mahazar. Exhibits P-9 and P-b, were attested by P. W. 14 and another. He examined and recorded statements of r. ws. 1, 2, 3, 5 and 16, by showing the material objects to them. On the next day, he transferred all those accused back to judicial custody. (q) On 8. 10. 1984, he sent a requisition to the Judicial Second Class Magistrate Cuddalore, for forwarding the material objects to the Chemical Examiner for the purpose of examination. P. W. 9 was the then Headclerk attached to the Court of the Judicial Second Class Magistrate, Cuddalore. On receipt of such requisition from P. W. 19, all those material objects, as required to be sent, as per the requisition, were separately packed and sent to the Chemical Examiner under the original of Exhibit P-2 letter, as per the directions of the Magistrate. Exhibits P3 and P-4 arc respectively the reports of the Chemical Examiner and the Serologist. (r) On 10. 10. 1984, P. W. 19 came to know that accused 3 had surrendered before the Judicial Second Class Magistrate, Salem. On 11. 10. 1984 at 1-15 P. M. , he arrested accused 7 near the bus stand at Cuddalore. He sent him to Court for remand on 12. 1o. i984. (r) On 10. 10. 1984, P. W. 19 came to know that accused 3 had surrendered before the Judicial Second Class Magistrate, Salem. On 11. 10. 1984 at 1-15 P. M. , he arrested accused 7 near the bus stand at Cuddalore. He sent him to Court for remand on 12. 1o. i984. He gave Exhibit P-19 requisition to the Judicial Second Class Magistrate, Cuddalore for recording statement of P. Ws. 1,2 and 5 and others under Section 164, Cr1. P. C. He completed the investigation and laid a final report before the Judicial Second Class magistrate, Cuddalore on 5. 12. 1985 against accused (both adult and juvenile) for the aforesaid offences. ( 8 ) ON committal charges, as aforesaid, as against adult accused 1 to 9 were framed. When questioned as respects those charges, they denied the same and claimed to be tried. ( 9 ) SIMILARLY, on submission of records, the juvenile accused also was questioned as respects the accusations levelled against him, as aforesaid, and he, in turn, denied the same and claimed to be tried. ( 10 ) IN both the cases, despite independent trial, witnesses examined, documents filed, besides material objects marked are one and the same. The prosecution examined P. Ws. 1 to 19, filed Exhibits P-I to P-19 and marked M. Os. 1 to 22. ( 11 ) THE adult accused as well as the juvenile accused were questioned in their respective trial with respect to incriminating evidence and circumstances appearing against them under Section 313, Cr. P. C. They denied their complicity in the crime. They did not choose to examine any witness on their side; but, however, chose to mark Defence Exhibits D-l to D-7. Exhibits D-l and D-2 relate to the portions marked in the Section 164, Cr1. P. C. statement of P. W. 1 while Exhibits D-3 to D-5 relate to portions of such statement of P. W. 2. Exhibit D-6 is the inquest summon containing the signature of P. W. 15. Exhibit D- 7 is the remand report of the accused. ( 12 ) LEARNED Sessions Judge, on consideration of the materials placed, rendered the verdicts, as stated above, giving rise to these actions. Exhibit D-6 is the inquest summon containing the signature of P. W. 15. Exhibit D- 7 is the remand report of the accused. ( 12 ) LEARNED Sessions Judge, on consideration of the materials placed, rendered the verdicts, as stated above, giving rise to these actions. ( 13 ) IN pits and substance from the submissions of learned Counsel for the accused and learned Additional Public Prosecutor, the sole and lone point that arises for consideration is as to whether the approach of the trial Court in sustaining the conviction on certain accused on salvage bits of testimony of some witnesses and rendering the verdict of acquittal of others, on the remnant bits thereof, is correct and proper, in the facts and circumstances of the case. ( 14 ) THE prosecution, in a bid to prove all facets of its case, placed on record, evidence, direct, res gestae and documentary. ( 15 ) IN establishing conspiracy, P. W. 15 had been examined. For some reason or other, P. W. 15 turned wholesale hostile to the prosecution, in the sense of resiling from what he has stated during the course of investigation. Consequently, the prosecution, of course, elicited by way of contradiction, the statement he had given before the police and brought the same on record. But, none-the-less, though the prosecution technically proved the statement he had made during the course of investigation, yet the evidentiary value to be attached to such a testimony is practically nil and such being the case, it goes without saying that no, reliance, to any extent whatever, can be placed upon the testimony of P. W. 15 for the proof of conspiracy. ( 16 ) AS respects the actual occurrence, reliance had been placed by the prosecution on the testimonies of P. Ws. 1 to 5, the so-called direct testimonies. Of them, just like P. W. 15, P. Ws. 3 and 4 turned wholesale hostile. Consequently, their evidence is practically useless in advancing or projecting the case of the prosecution to any extent whatever. 1 to 5, the so-called direct testimonies. Of them, just like P. W. 15, P. Ws. 3 and 4 turned wholesale hostile. Consequently, their evidence is practically useless in advancing or projecting the case of the prosecution to any extent whatever. Similarly, the testimony of P. W. 5 is also not helpful to the prosecution and what all he had stated was that he happened to see the presence of accused 2 and 5 in the crowd by standing at a distance of one and a half furlongs away and in such a situation, we are at a loss to understand the credibility attached to such a testimony. ( 17 ) WHAT remains for consideration is the testimony of P. Ws. 1 and 2. As already stated, they are related both to the accused and the deceased. This apart, they are inimically disposed of towards accused vahayara. It is not in dispute that Kandasamy is the father of P. W. 1, who took the arrack shop at Ambalavanankuppam on auction, in which the deceased was a partner and the business in the arrackshop got affected by the clandestine sale of arrack by accused 4. For such clandestine sale, it is the case of the prosecution that a prohibition case had been booked against him and he faced trial therein. This apart, accused 1, 2, 5 and 6 also faced prosecution for causing harm to one Jayapal, accountant of the deceased. looking after his contract work. This apart, it is also elicited in the course of cross-examination of P. W. 2 that in respect of that of cashew-nuts by accused 6 and 7 from the cashew tope belonging to the family of P. W. 2, a panchayat had been convened and to such a panchayat, accused 6 and 7 were not amenable and thereafter, it is said, accused 6 and 7 beat P. W. 2, leading to the filing of a police complaint against them. Such being the case, it is rather clear that there was no love lost between accused vahayara and P. Ws. 1 and 2. ( 18 ) ADMITTEDLY, the occurrence took place two KM5. away on the east-west Samuttikuppam - Puliyoor Road. P. Ws. 1 and 2 reside in Samuttikuppam village itself. Such being the case, it is rather clear that there was no love lost between accused vahayara and P. Ws. 1 and 2. ( 18 ) ADMITTEDLY, the occurrence took place two KM5. away on the east-west Samuttikuppam - Puliyoor Road. P. Ws. 1 and 2 reside in Samuttikuppam village itself. Therefore, ordinarily, their presence in the scene at or about the relevant time of occurrence cannot at all be expected, unless otherwise, they are having valid reasons for their presence in the scene. The reason for the presence of P. W. 1 had been explained this way. His father mandated him to procure requisite bulls and bullock carts from Puliyoor for transporting the tapioca roots to be harvested from their fields. Whether such a reason, as contrived by him to explain his otherwise inexplicable presence in the scene, could be accepted, in the facts and circumstances of the case? It is not as if the family of P. W. 1 is not in possession of bullock carts. It is his candid admission that his family owns bulls and carts, for agricultural operations. It is not at all the case of the prosecution that the family of P. W. 1 wanted one more bullock cart for transport operations. This apart, the sixteenth day ceremony of P. W. ls sister, who happened to commit suicide, actually fell on the date of the occurrence and such being the case, we feel, it is highly doubtful that he could have been mandated by his father to go to Puliyoor for the purpose of procuring the bullock carts and bulls for transporting the tapioca roots to be harvested from their fields. ( 19 ) P. W. 2 also contrived a reason for his contumacious presence in the scene at or about the relevant time of occurrence. What he would say is that at about 6. 30 A. M. , on the day of occurrence, he wanted to go to Puliyoor to have the small farmerts card intended for him from the Village Administrative Officer, P. W. 12, It is to be noted at this juncture that P. W. 12 is resident of Virupakshipuram, situate ten KM5 away from Puliyoor and he was manning an office only at Puliyoor. Though P. W. 12 would make an attempt that he was virtually having his office-cum-residence at Puliyoor, yet such an attempt had been knocked to pieces by the candid admission made by P. W. 10, his thalayari. If at all P. W. 2 thought of procuring the small farmers card from the Village Administrative Officer, P. W. 12, he could have made a march direct to Virupakshipuram, a different village and there was no need for him to make an onward march, along Samuttikuppam-Puliyoor Road, that too at the early morning hours of the day of the occurrence. Plain it is, we feel, that he had invented such a reason for the purpose of explaining his presence in the scene, tnabling him to have the fortuitous opportunity of witnessing the occurrence. This apart, he being closely related to the family of P. W. 1, his presence could, in the normal run of things, be expected in the house of P. W. 1 to share the grief of the unfortunate death of the sister of P. W. 1. ( 20 ) BESIDES, the sequence of events that had happened, leading to the occurrence beset with such pitfalls and inherent improbabilities as we narrate here. It is the positive evidence of P. W. 1 that he had seen accused 1 to 7 and the juvenile accused arming with all sorts of lethal weapons in their hands and on seeing them, he entertained a feeling that some perilous consequence is to ensue to the life of the deceased at their hands. Such being the case, could we expect the deceased to make a drive on his scooter towards the place where all the accused were lying in wait for the avowed arrival of the deceased to be slaughtered and mangled. Instinct of self-preservation could have been there, in the mind of the deceased and in such a situation, going by the adage, discretion is better part of valour, he could not have chosen to drive on his scooter, towards the direction where the accused were stated to be hiding and awaiting his arrival, to mount an attack on him. Instinct of self-preservation could have been there, in the mind of the deceased and in such a situation, going by the adage, discretion is better part of valour, he could not have chosen to drive on his scooter, towards the direction where the accused were stated to be hiding and awaiting his arrival, to mount an attack on him. He, in such a circumstance, as a man of ordinary prudence, would have driven the scooter towards Puliyoor and escaped from the perilous consequence, expected of at the hands of the accused, when especially it is the admitted case of the prosecution that there is also a road (via) Puliyur to Samuttikuppam through Pethunaickenkuppam and Ambalavananpettai. ( 21 ) YET other inherent improbability to be taken note of at this juncture is this. Admittedly, the deceased was proceeding in his scooter. It is not as if all the accused armed with all sorts of weapons were waiting for the arrival of the deceased in the main road itself. As already stated, they were in ambush in the topioca fields situate on the southern side of the road. By the time all the accused reached the road, the plausibility of the deceased, escaping from their clutches cannot at all be ruled out. To put it more explicitly, there was no need for him, on the emergence of the accused to the road, to take a turn and in such process, falling on the ground, probably on the application of brake, and thereby making him run for his life and being caught and mangled at the hands of the accused and he would have sped away at brake-neck speed from the scene straight to his village unscathed. ( 22 ) COMING to the occurrence proper, we rather feel it is highly improbable for the mounting of the on-slaught by all the accused, not simultaneously, but in turn one by one. The prosecution would make us believe, when P. Ws. 1 and 2 would say that when the deceased ran for his life, he being chased by all the accused, accused 4 hit on his right hand by means of a stick; accused 3 and 7 caught hold of him in such a way as he is not escaping from their clutches and subsequently allowed the rest of the accused to have their turn in inflicting injures with the weapons they possessed. In the normal run of things, we would expect such an attack to happen simultaneously. It is also puzzling for us to note as to how it could have been possible for all the accused to have inflicted cuts and stabs on the person of the deceased on various portions of his body, when especially he was in the pretty hold of accused 3 and 7, without even causing the slightest harm on the person of either accused 3 or 7. ( 23 ) COMING to the specific overacts of all the accused 1 was stated to have inflicted a stab, by means of a sulukki on the right leg below the knee of the deceased. A corresponding injury on such portion of the body of the deceased was unable to be found out by the doctor, P. W. 16, who issued the post-mortem certificate, Exhibit P-li. This aspect of the matter had been taken into account by learned trial Judge, who disbelieved such portion of the testimony of P. Ws. 1 and 2 as relatable to the overacts of accused 1. ( 24 ) SIMILARLY he also disbelieved the version projected by P. Ws. 1 and 2, as relatable to the overtacts of accused 4 by hitting the deceased by means of a stick on his right hand, on account of the fact that such overtacts has not been stated in the earliest information, Exhibit P-I. Similarly, their version has been disbelieved as relatable to the overtacts of the juvenile accused, who was stated to have inflicted two cuts, by means of knife on the face arid chest of the deceased, for the reason that their earlier version, at the time of giving their Section 164, Cr1. P. c. statements is quite contrary, in the sense of such a statement revealing that the juvenile accused stabbed the deceased below the left eye. Pertinent it is to mention here that definite questions had been hurled in the cross-examination of P. Ws. 1 and 2, as to their deciphering the distinction between stabbing and cutting. ( 25 ) AS respects the overtacts relatable to accused 3 and 7, in the sense of their catching hold of the deceased at the time of the occurrence, the picture painted by P. W s. 1 and 2 had also been disbelieved by the trial Court. 1 and 2, as to their deciphering the distinction between stabbing and cutting. ( 25 ) AS respects the overtacts relatable to accused 3 and 7, in the sense of their catching hold of the deceased at the time of the occurrence, the picture painted by P. W s. 1 and 2 had also been disbelieved by the trial Court. Learned trial Judge having disbelieved the version as unfolded by the prosecution witnesses, particularly P. Ws. 1 and 2 as respects the overtacts of the other accused, however, came to the conclusion that their evidence is believable in respect of the overtacts attributable to accused 2, 5 and 6. To the approach of learned trial Judge on this aspect of the matter, we are, however, unable to affix our seal of approval, in the facts and circumstances of the case. The overtact attributed to accused 6 was that he, with M. O. 5 koduval was stated to have inflicted cut under neath the left armpit and the left upper arm of the deceased. If really the deceased was within the hold and clutches of accused 3 and 7, in such a way as it being not possible for wriggle the deceased to wriggle himself out of their clutches, it is beyond ones comprehension how accused 6 could have inflicted a cut underneath the left armpit of the deceased and another on his left upper arm. As respects the holding of the deceased, we are able to decipher from the testimony of these witnesses that there is no specific version projected as to the manner of the holding of the deceased by them in the earlier information, except to the extent that the deceased was caught hold of by accused 3 and 7, and what was revealed by specific averments therein was that he was caught hold of in so tight a fashion that he was unable to wriggle out of their clutches. It is quite conceivable, understanding the predicament position, in which the prosecution was facing, as regards the feasibility or plausibility of infliction of cuts and stabs by various accused on the parts of the deceased, those witnesses were made to say, during the course of their evidence, that they were catching hold of the hands of the deceased in a stretched position so as to make it appear that the cutting on his person at specified places had been possible. But, this sort of an evidence, as respects the catching hold of the deceased by accused 3 and 7 had, however, been disbelieved by learned trial Judge. Such being the case it is not understandable as to how, learned trial Judge was able to come to the conclusion that it could have been possible for, accused 6 to have incited cuts on various parts of the body of the deceased, as stated above. Appreciation in this respect by learned trial Judge, we are firmly of the opinion, is nothing short of mis-or-mal-appreciation, as the same cannot be stated to be in accord with probabilities. ( 26 ) COMING to the overacts of accused 2 and 5, as already stated, accused 2 was responsible for giving two cuts with the veecharuval on the head of the deceased, besides inflicting two more cuts on the neck of the deceased with the same weapon and accused 5 was responsible for the infliction of two further cuts on the neck of the deceased with another veecharuval he was having in his hands. Thus, the positive assertion of P. Ws. 1 and 2 as to the overacts of accused 2 and 5 bristles to the receipt of four cuts by the deceased on his neck, that is, two by accused 2 and two by accused 5. It is not at all their version that while the cuts were inflicted, the deceased, in the process of wriggling out, made movements in such a way that the cuts they have aimed at the neck did not at all fall on the neck, but fell on different portions of the body of the deceased. Such being the case, in the normal run of things, if really they were the eye witnesses to the occurrence, then what they have stated must get reflected in the receipt of as many injuries by the deceased, as stated by-them. Such being the case, in the normal run of things, if really they were the eye witnesses to the occurrence, then what they have stated must get reflected in the receipt of as many injuries by the deceased, as stated by-them. ( 27 ) UNFORTUNATELY, when we peruse the postmortem report, Exhibit P-il, the deceased had only one cut on his neck and that sort on cut injury had been described as injury No. 3 therein it is to the following effect: an incised wound 12 cm. x 4 cm. starting from right side of the middle of the neck tapering on left side laterally 6 cm. in the beginning of the wound 1/2 cm. laterally cutting the wind pipe and front of the oesophogus just below the thyroid cartilege level. Even from the description of the aforesaid wound, we arc able to say that there could not have been the possibility of super-imposition or overlapping of different cuts inflicted on the neck of the deceased. Inasmuch as the description indicates it is a clear-cut incised wound, it could have been possible by infliction of ingle cut alone. But the explanation trotted out by learned trial Judge that the possibility of the deceased receiving the cuts on the check, mandible and chest portions of the deceased cannot be ruled out of consideration is not at all acceptable, inasmuch as that is not the case of anybody, except tile special case introduced by learned trial Judge, without any factual foundation for the same. Therefore, their version, as respects the overtacts of accused 2 and 5, as relatable to the cuts, inflicted on the neck of the deceased cannot at all be absorbed with certainty that they were responsible for the infliction of such cuts. ( 28 ) NO doubt true it is that after the filing of the appeal, an affidavit sworn to by the Sub Inspector of Police, Kullanchavadi has been filed, by learned Additional Public Prosecutor that accused 2 died on 16. 3. 1992. By reason of his death, the appeal has to abate as against him. But, however, learned Counsel appearing for accused 2 would urge us to consider the merits of the case, as relatable to accused 2 also, in order to vindicate the family honour and prestige. 3. 1992. By reason of his death, the appeal has to abate as against him. But, however, learned Counsel appearing for accused 2 would urge us to consider the merits of the case, as relatable to accused 2 also, in order to vindicate the family honour and prestige. He would also elaborate that in case there is no satisfactory evidence for his involvement in the crime, then naturally the finding to that effect has to be recorded thereby removing stigma of his involvement in a crime of heinous murder, in rather abid for viniction of his family honour. Otherwise, if there is clinching evidence as to his involvement, nothing is to follow, except the abatement of the appeal as against him. In view of the projection of such an argument, we happened to consider the evidence, as respects the participation of accused 2 also in the occurrence. ( 29 ) THERE are also certain disturbing and disquieting features in the case of the prosecution, which had dealt all been dealt with by learned trial Judge; though factual foundation has been laid by the defence during the course of cross examination. One such disturbing feature is the peeling off of the skin on the left leg and right thigh of the deceased and this we are able to infer from the description of injury No. 10 in the postmortem certificate, Exhibit P-li and it is described as below: the skin of left leg, right thigh peeled off superficially in the front aspect. T in a bid to explain the peeling off the skin, the prosecution tried its level best to explain the same by examination of P. W. 7. He would, of course, state that in the process of the body being lifted up from the pit laying on the road margin of the place of occurrence, along with another, person by name Kaliyan, the body, got supped off from their hands and fell and certain portions of the skin on the person of the deceased got peeled off. To such an explanation, we are unable to subscribe our view. The reason is rather obvious. The postmortem doctor P. W. i6 did not at all state anything as to the said injury being ante-mortem or postmortem. To such an explanation, we are unable to subscribe our view. The reason is rather obvious. The postmortem doctor P. W. i6 did not at all state anything as to the said injury being ante-mortem or postmortem. In the absence of any evidence forthcoming on this aspect of the matter from him, the possibility of the injury having been caused even when the deceased was alive cannot be ruled out of consideration. The explanation offered through P. W. 7 by the prosecution shows its anxiety to explain each injury on the person of the deceased. Though they had taken such care, unfortunately, they faced colossal failure, in the sense of not eliciting proper answer from the doctor, P. W. i6, who conducted autopsy. ( 30 ) THERE is one more disquieting factor and the same is referable to the fracture of the 9th and it ribs on the left side of the deceased, which were found out during the course of autopsy. The doctor P. W. 16 did not also either probe or dissect injury Nos. 6 and 7, as found on the person of the deceased 1 which were incised wounds found on the left side of the chest of the deceased one below the other. But somehow or other, the doctor would simply say that the fracture of those ribs correspond to injury Nos. 6 and 7. We are unable to understand how the doctor could say so, without any further probe or dissection there of that the fracture is relatable or corresponding to the external injuries 6 and 7. No doubt true it is that he would say that during the course of autopsy, he was able to find fractures of those ribs. But that is not sufficient to positively assert that the fractures are relatable to or corresponding to the external injuries 6 and 7, in the absence of any further probe or dissection, thereof. From those factors, we are of the view that the prosecution had been trying its level best to explain the injuries found on the person of the deceased either by-distributing to various persons accused of offences, or giving one reason or other for causation thereof. From those factors, we are of the view that the prosecution had been trying its level best to explain the injuries found on the person of the deceased either by-distributing to various persons accused of offences, or giving one reason or other for causation thereof. ( 31 ) TOP of all, though the prosecution would proclaim that apart from P. W. i, P. W. 2 is also a direct witness to the occurrence, such sort of an assertion is without any factual foundation and this sort of an assertion gets exposed, if we carefully peruse the earliest information, Exhibit P-i. A careful perusal of Exhibit P-I would reveal that not only P. W. 2, but also P. W. 3 could not at all be eye witnesses to the occurrence. Their presence in the scene had been referred to -therein as being attracted to the scene, obviously on hearing the hues and cries and reaching there immediately after the entire occurrence was over. It could at best be stated that their evidence cannot be anyone other than that of res gestae. But such an evidence had been bolstered up by the prosecution, as they are the eye witnesses to the occurrence. ( 32 ) ONE other puzzling factor, we are able to perceive from the materials available on record is that if really P. Ws. i and 2 were the eye witnesses to the occurrence and both of them were present at the time when the Village Administrative Officer, P. W. 2 reached the scene, there is no reason why a responsible village official like P. W. 12 resorted to obtain the first information, Exhibit P-i from P. W. 1, who is after all, a child witness. P. W. i would, however, state in the evidence that in order to limit P. W. 2 to the status of eye witness that he was bodily present, right from the beginning of the occurrence, till upto the time P. W. i2 came to the scene of occurrence. He would further state that P. W. i2 also examined P. W. 2, as respects the manner and mode of occurrence and P. W. 2 also narrated as to how the occurrence took place to the Village Administrative Officer. He would further state that P. W. i2 also examined P. W. 2, as respects the manner and mode of occurrence and P. W. 2 also narrated as to how the occurrence took place to the Village Administrative Officer. It is quite astonishing to find from the evidence of P. W. 12 that he did not at all enquire P. W. 2 as to how the occurrence had happened. Such a calculated attempt on the part of P. W. 12, we feel, is not without any reason and so to say, the reason is rather obvious. In Exhibit P-5 report he said to P. W. 12, he would initially write the name of P. W. 2, as having been present, along with others. But somehow or other, the name of P. W. 2 in Exhibit P-5 had been scored off and the quixotic explanation he would resort to give during the course of evidence is that apart from P. W. 2, many a person were present and therefore, it was, he struck out the name of P. W. 2. We, however, feel, in the context in which the striking off took place, there is a mystery behind such striking off and the mystery being that the prosecution was not certain as to whether P. W. 2 would be a willing witness for the prosecution to be lifted to the status of an eye witness. ( 33 ) THE view that we derived in these appeals is that learned trial Judge gave good and convincing reasons for rejecting the testimony of the prosecution witnesses and wrote what in effect amounted to a judgment of acquittal. For some reason, however, he though it the better part of wisdom; to convict some at least of the accused (accused 2, 5 and 6), who had been put on their trial before him. We are treating the judgment as one of acquittal and addressed ourselves to the question whether in a case of appeal by the State, we would have been justified in upsetting the judgment, as it already possessed the substance of a judgment of acquittal. Approaching the question from that point of view, for the reasons we have given as above, we are clearly of opinion that on record as it stands, there is nothing to support the conviction of accused 2, 5 and 6, which must also be set aside. Approaching the question from that point of view, for the reasons we have given as above, we are clearly of opinion that on record as it stands, there is nothing to support the conviction of accused 2, 5 and 6, which must also be set aside. ( 34 ) THEREFORE, we accept the former appeal as relatable to accused 5 and 6, acquit them of the offences with which they stood charged and direct that the bail bonds, if any, executed by them shall stand cancelled forthwith and the said appeal, as relatable to accused 2, gets abated by his death, by virtue of the salient provisions adumbrated under Section 394 Cr. P. C. ( 35 ) SO far as the latter two appeals are concerned, the former one against the acquittal of certain adult accused and the latter one as against the juvenile accused by the State, they shall stand dismissed. State Appeal against acquittal dismissed. Appeal against conviction allowed.