Judgment :- C.Shivappa, J. Eight accused persons were sent up for trial before the Additional Sessions Court, Nagercoil, in S.C.No.97 of 1996 on charges under Secs. 148, 149, 341 and 302, I.P.C. Accused No.8 was also charged separately under Sec.304, I.P.C. The learned Sessions Judge by order dated 9. 1997 convicted all the accused, viz., A-1 to A-8 and found them guilty for offences under Secs. 148, 341 and 302, I.P.C. and sentenced them to undergo imprisonment for life for offence under Sec.302, I.P.C. and three years imprisonment for the offence under Sec.148, I.P.C. and simple imprisonment for one month for the offence under Sec.341, I.P.C. and all the sentence to run concurrently. But, he acquitted accused No.8 on the charge under Sec.304, I.P.C. Except accused No.8, accused Nos.l to 7 are appellants in all these appeals. 2. The prosecution case maybe stated as follows: On 28. 1993, at about 8.15 p.m., when P.W. 1 and the deceased were standing and conversing in front of A.B.T. Parcel Office, in Karungal Kurumbanai Road, all the appellants herein, armed with vettukathies formed an unlawful assembly and encircled the deceased with intention to kill him. When encircled, accused No.1 instigated the other accused, stating that Alphones lost the election on account of the deceased and directed them to kill him and he also inflicted injuries on his left jaw, left rib and again on the head twice. The dhoti of the deceased fell down. Accused No.2 caused two cuts on the back of the head of David (deceased) with vettukathi. The 3rd accused, stating, “Are you a big rowdy?”, cut the deceased on his right shoulder thrice and on the front portion of his neck. Accused No.4 cut twice on the upper portion of the thigh of the right leg. Accused No.5 cut on the left leg and ankle. Then the deceased fell down and accused No.6 cut on the right leg, four times. Accused No.7 cut the ankle with vettukathi. Accused No.8 caused three cuts on the right buttock and another cut below the right buttock, thus causing four cut injuries and again a cut injury on the left arm on the upper portion of the right arm. The cut made at the right back of the deceased fell on his chest. Accused No.7 cut the ankle with vettukathi. Accused No.8 caused three cuts on the right buttock and another cut below the right buttock, thus causing four cut injuries and again a cut injury on the left arm on the upper portion of the right arm. The cut made at the right back of the deceased fell on his chest. When P.W.I attempted to ward off the blow aimed by accused No.3 on his head, since P.W. 1 bent down, it fell on the back of his head and caused injury. P.W.3 came to the scene of occurrence making loud noise. P.W.2 also claims that he witnessed the occurrence. P.W.3 also witnessed the occurrence. P.W.3, witnesses Paul Daniel and his wife Thankabai and also came to the scene of occurrence, crying. Then, the accused left the spot with their respective weapons. While going, they threatened the neighbouring shop keepers that they would be extinguished if they speak about the incident. P.W.I and Paul Daniel took the deceased David to C.S.I. Hospital at Neyyoor and David died at the Hospital at 9.35 p.m. P. W. 1, since he was also injured took treatment in the same hospital. 3. On 28. 1993, at about 10.00 hours, P.W.11, Neelakandapillai, Headconstable, of Eraniel Police Station, received the information that David died in the C.S.I. Hospital, Neyyoor and that P. W. 1 was under treatment. He went to C.S.I. Hospital, Neyyoor and recorded the statement of P.W.1, which is marked as Ex.P-1. P.W.11 despatched Ex.P-1 through Constable 192, to Karungal Police Station, at about 12.30 hours. 4. P.W.12 Varghese, First Grade Constable in Karungal Police Station, received on 28. 1993 at about 1.30 a.m., a letter from Eraniel Police Station, bearing No. 144 of 1993, Exs.P-I, P-6 and registered a case in Crime No.337 of 1993 under Secs. 147, 148, 302 and 307, I.P.C. Ex.P-16 is the Printed First Information Report. Exs.P-1 and P16 were sent to P.W.13, the Inspector of Police, Eraniel Police Station and the Judicial Magistrate, Eraniel, through Grade I Constable 346, by P.W.12 at 3.00 hrs. 5. P.W.8 Dr.Hubert, of Neyyoor C.S.I, hospital, treated the deceased David for the injuries sustained by him at 9.15 p.m. on 28. 1993. According to the history sheet, the injuries were said to be sustained at Karungal, at 8.40 p.m. He noticed the smell of arrack from the face of David. 5. P.W.8 Dr.Hubert, of Neyyoor C.S.I, hospital, treated the deceased David for the injuries sustained by him at 9.15 p.m. on 28. 1993. According to the history sheet, the injuries were said to be sustained at Karungal, at 8.40 p.m. He noticed the smell of arrack from the face of David. According to him there were several cut injuries on the body of David. He noticed the following injuries: .(1) There were a 8 inches long cut injury on the left side of his face. .(2) On the neck above the wind pipe, there was a cut injury. There were several injuries on his body. Both the bones in the right leg were broken. Blood was oozing from all the injuries. David died at 9.30 hrs. Ex.P-5 is the wound certificate. P.W.8 also treated P.W.1 Kingsley, aged about 25 years and found the following stitched wound: On the right side of his head there was a stitched wound of size 4 cm. x 1 cm. it was a simple injury. Ex.P-7 is the wound certificate issued by P.W.8. 6. P.W.9 Dr.Kumar, conducted autopsy on the dead body of David on 28. 1993 at Kolachal Government Hospital on the requisition of the Inspector, Eraniel Police station. The said requisition is Ex.P-8. The injuries found are detailed in the certificate as follows: 1. Incised wound 5 cm. x 1 cm. skin deep on the occipital region. 2. Incised wound 3 cm. x 1/2 cm. on the right parietal region. 3. Incised wound 1 cm. x 1/4 cm. on the right side of forehead. 4. Incised wound 3 cm. x 2 cm. on the upper part of back of neck. 5. Incised wound 2 cm. x 1/4 cm. on the right side of lower jaw with masseter muscle cut. 6. Incised wound 8 cm. x 1 cm. on the left side of face extending from 2 cm. in front of left ear to the chin underlying muscles and lower jaw cut. 7. Incised wound 2 cm. x 1/4 cm. in front of neck with thyroid cartilage out. 8. Incised wound 4 cm. x 1 cm. on the back of right shoulder with underlying muscles cut. 9. Incised wound 2 cm. x 1 cm. on the right scapular region. 10. Incised wound 1 cm. x 1/4 cm. on the inner aspect of upper part of right arm with muscles exposed. 11. 8. Incised wound 4 cm. x 1 cm. on the back of right shoulder with underlying muscles cut. 9. Incised wound 2 cm. x 1 cm. on the right scapular region. 10. Incised wound 1 cm. x 1/4 cm. on the inner aspect of upper part of right arm with muscles exposed. 11. Incised wound 3 cm. x 1/4 cm. skin deep on the inner side of right below. 12. Lacerated wound 3 cm. x 1 cm. on the back of right elbow. 113. Incised wound 1 cm. x 1/2 cm. on the inferior angle of left scapula. 114. Incised wound 3 cm. x 1 cm. on the outer aspect of left below. 115. Abrasion 3 cm. x 1 cm. on the back of left wrist. 116. Linear sratch on the left side of abdomen just above the level of umbilicus. 117. Incised wound 6 cm. x 3 cm. on the outer aspect of upper part of right thigh underlying muscles cut. 118. Incised wound 10 cm. x 3 cm. with muscles cut on the outer aspect of middle of right thigh. 119. Incised wound 7 cm. x 1 cm. skin deep on the right buttock. 20.20. Incised wound 3 cm. x 1/4 cm. on the back of middle of right thigh. 221. Incised wound 3 cm. x 1/4 cm. on the back of lower 1/3 of right thigh. 222. Incised wound 8 cm. x 4 cm. on the lower part of outer aspect of right thigh. 223. Incised wound 3 cm. x 1 cm. skin deep in front of right leg 5 cm. below knee. 224. Incised wound 3 cm. x 1 cm. skin deep 6 cm. below injury No.23. 225. Incised wound 5 cm. x 2 cm. skin deep just below injury No.24. 226. Incised wound 7 cm. x 3 cm. with muscles cut and both bones cut 8 cm. above right ankle. 227. Incised wound 4 cm. x 2 cm. on the back of left ankle with tender cut. 228. Incised wound 5 cm. x 1 cm. on the upper part of inner aspect of left leg. 229. Incised wound 4 cm. x 1 cm. on the back of left ankle just below injury No.27. Stomach contained about 200 ml. of undigested food particles. Liver, spleen and kidney-pale. Hyoid bone intact. Skull and Brain and spine-normal. 228. Incised wound 5 cm. x 1 cm. on the upper part of inner aspect of left leg. 229. Incised wound 4 cm. x 1 cm. on the back of left ankle just below injury No.27. Stomach contained about 200 ml. of undigested food particles. Liver, spleen and kidney-pale. Hyoid bone intact. Skull and Brain and spine-normal. The doctor opined that all the injuries are antemortem and that the deceased would appear to have died of shock and haemorrhage due to multiple injuries. 7. P.W.13 Natarajan, Inspector of Police, Eraniel Police Station was in charge of Kolachal Police Station also, on 28. 1993 and 28. 1993, when he received the information about the incident at about 2.30 a.m. from Karungal Police Station over telephone. He went to Karugal Police Station, along with P.W.11 and police constable 1288. After receiving the documents relating to the case from Karungal Police Station, he went to the scene of occurrence at 3.00 a.m. and in the presence of P.W.4, prepared observation mahazar Ex.P-2 and also the rough sketch of the scene of occurrence, Ex.P-17 and seized the blood stained dhoti and blood-stained earth under mahazar Ex.P-3 and examined witnesses and thereafter went to C.S.I. hospital. From 2.00 a.m. to 10.30 a.m., he conducted inquest on the dead body of the deceased. Ex.P-18 is the inquest report. He also examined P.W.3 and 8. At the inquest, he examined P.W.1 and 2 and Paul Daniel. He also caused seizure of M.O.1 produced by P.W.1 in the presence of witness Lenin and Sundaresan, on 28. 93 at 5.00 p.m. On the same day evening, at about 6.00 p.m., he seized M.O.2, produced by P.W.7, in the presence of Jayaraja, examined him and recorded his statement, sent the material objects to the Court and later entrusted the investigation to the Inspector, Karungal Police Station, who rejoined duty. 8. P.W.14, Maruthaian was Inspector of Police, Karungal, from 1. 1995 to 15. 1995. From 1. 1995, he took over the investigation, examined P.W.1 and 2 and witnesses Paul Daniel, Alphones, Lenin, P.W.6 and P.W.9 and recorded their additional statements. 9. P.W.15 Selvarajan was the Inspector of Police Karungal from 1993 to 1996. He conducted further enquiries, examined P.W.12, witness Dhamodharan, Constable Nesamani, P.W.11, witness Kumaresan and recorded their statements vide Ex.P-15. As per Ex.P-15, he requested the properties to be sent for chemical-examination. Ex.P-12 is the requisition letter. 9. P.W.15 Selvarajan was the Inspector of Police Karungal from 1993 to 1996. He conducted further enquiries, examined P.W.12, witness Dhamodharan, Constable Nesamani, P.W.11, witness Kumaresan and recorded their statements vide Ex.P-15. As per Ex.P-15, he requested the properties to be sent for chemical-examination. Ex.P-12 is the requisition letter. Ex.P-13 is the letter from the Magistrate’s Court, Eraniel, evidencing despatching of the materials for chemical examination. Ex.P-14 is the chemical-examination report. Ex.P-15 is the blood examination report. After completing enquiry P.W.15 laid the chalan against the accused. 10. The prosecution examined in all 15 witnesses on its side. P.W.1 and P.W.2 claimed as eye-witnesses. P.W.5 Manohar owns a tailoring shop in the place of occurrence. P.W.7 Jayaraj speaks about the motive. P.Ws.8 and 9 are doctors. P.Ws. 11 to 15 are police officers, connected with the investigation. P.W.4 is the witnesses for observation mahazar Exs.P-2 and P-3. P.W.6 is the witness for mahazars Exs.P-3 and P-4. In all, the prosecution has produced M.Os.l to 5 and there are 19 documents marked on its behalf, including the complaint, mahazars, report of the chemical examiner, sketch, post-mortem certificate etc. and other correspondences. 11. The defence has examined one witness and also marked 26 documents. 12. The learned Public Prosecutor acceded to the contention of the counsel for the appellants that there is no evaluation of evidence by the learned Sessions Judge and the reasons not detailed in the judgment, except referring the contentions. Therefore, we were taken through the entire evidence in detail both by the learned counsel for the appellants as well as by the Public Prosecutor. 13. The learned counsel Mr.Selvaraj, appearing for the appellants herein inter alia contended that, (1) the F.I.R. is bereft of spontaneity, fabricated after due deliberation at in the instance of the brother of the deceased who is an Head Constable, attached to Karungal Police Station and the father-in-law of the deceased by name, Gnanadiraviam, Inspector of police (retired); (2) P.Ws.1, 2 and 3 being relatives of the deceased, their evidence is not only interested but they are also enimically disposed and their evidence is artificial and improbable; (3) The evidence of P.Ws. 1 and 2 is inconsistent and improbabilises their version when tested from the evidence of the medical witnesses; (4) From the point of recording of F.I.R. till the filing of the challan, the investigation was not on proper lines and defying the directions of the higher authorities and does not inspire confidence; (5) The evidence of D.W.I and Ex.D-26 probabilises the non-participation of A-3 and his absence; (6) Though indepenpent and disinterested witnesses were examined during investigation, their non-examination during trial and non-examination of material witnesses who were there at the initial stage indicates suppression of truth and in the absence of explanation, fatal to the prosecution; and (7) having regard to the totality of the circumstances, keeping in view the scene of offence, antecedents of the material witnesses and the deceased, improbabilises the case as projected. 14. The learned Public Prosecutor contended that there is no delay in filing the F.I.R., evidence is to be weighed and not to be counted and non-examination of some of the witnesses is not fatal to the prosecution, the evidence of interested witnesses need not be discarded as unreliable and having regard to the evidence of P.W.1, who is an injured witness, the prosecution version appears to be more probable and justified the conviction and sentence imposed on the appellants. 15. The incident had taken place in a busy business place and the police station, according to the evidence of P.W.I 2, who is Head Constable 808, is at a distance of half a furlong from the place of occurrence." The deceased was taken to the hospital at about 8.40 p.m. and he died at 9.35 p.m. P.W.I was also admitted in the hospital, treated and discharged on 28. 93 at 9.00 p.m. Ex.P-6 is the intimation of death. It contains particulars such as, the deceased was taken by Paul Daniel, the brother of the deceased; Place of occurrence Karungal; Nature of injury grievous; Alleged cause-assault, patient expired at 9.35 p.m. and the time of admission at 8.50 p.m. It is seen in Ex.P-8 that the condition of the patient was not unconscious and according to the evidence of Dr.Kumar, P.W.9, the injured could have been conversing for about 1/2 to 1 hour and he did not name any of the assailants. In Ex.P-8, he had also noted that the patient smelt alcohol. The medical register pertaining to P.W.1. In Ex.P-8, he had also noted that the patient smelt alcohol. The medical register pertaining to P.W.1. Ex.P-9, shows that P.W.I was taken by Paul Daniel; Relationship to the patient-friend, Place of occurrence karungal; Nature of injury (left blank); Alleged Cause assault and Discharge at 9.00 p.m. on 28. 1993. The name of the assailants not disclosed even by P.W.1. 16. Paul Daniel is the brother of the deceased David, who took both David and P.W.1 to the hospital in a taxi. None among these three disclosed the names of other appellants herein as assailants, at the earliest point of time. 17. P.W. 1 has stated that after intimation by the hospital, he reached C.S.I, hospital, Neyyoor at 10.30 p.m. and recorded the statement of P.W.1. Ex.P-8 shows that he was discharged at 9.00 p.m. and again he came to the hospital at 1.45 a.m. on 28. 1993. The statement of P.W.11 indicates that the F.I.R. was written at 10.30 hrs. in the hospital when P.W.1 was an in-patient and thereafter, he registered the F.I.R. at 1.30 hrs. When Ex.P-8 discloses that he was discharged at 9.00 p.m., the fact that he recorded the F.I.R. at 10.30 p.m. in the hospital is a material contradiction in the testimony of P.W.11. 18. The evidence on record and the attendant circumstances indicate that the F.I.R. was not recorded at 10.30 p.m. in the hospital or lodged at 1.30 hrs. In other words, it can be said that the F.I.R. was not recorded or lodged at the time it purports to have been lodged. If lodging of F.I.R. raises suspicion having regard to the proximity of the police station, it enables the court to view that the F.I.R. was recorded much later than the stated hour affording sufficient time to the prosecution to introduce improvements and fix the accused looking to the injuries on the deceased after the death of the deceased, which amounts to setting up a distorted version about the occurrence. 19. The F.I.R. in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. Its importance cannot be under-estimated from the stand point of the accused. 19. The F.I.R. in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. Its importance cannot be under-estimated from the stand point of the accused. The object of insisting upon a prompt report to the police is to obtain early information regarding circumstances under which the crime was committed, the names of the actual assailants, the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Any delay in loading the F.I.R. often results in embellishment which is a creature of after thought and there may be danger of introduction of a coloured version, exaggerated account or a concocted story as a result of deliberation and consultation. 20. In the instant case, when the police station is at a distance of half-a-kilometer, that too, the scene of occurrence is in a busy market area, and the house of the accused, according to the topography, is at a distance of 150 ft. and the incident had taken place in front of the A.B.T. parcel office and it is in evidence that the shopkeepers and about 30 people were present at the time of the incident, especially when means of communication are there, when there is no fear or atmosphere of terror, when the accused have already left the place, when there is no attempt whatsoever, to approach the police station either by P.W.1 or by P.W.2 who are the relatives of the deceased, that too, when they knew the assailants. Delay by itself may not be fatal to the prosecution case and it depends upon variety of circumstances in a given case. A delay of few hours may be fatal and delay of number of days, if explained what prevented to reach the police may not be fatal. In the present case, having regard to the proximity of the police station to the scene of occurrence, when accused persons were not there, non-disclosing to the police, or, at the earliest opportunity to the doctor who examined P.W. 1 and the deceased, detracts the credibility or the genuineness of the information and creates an impression that it might be after due deliberation in order to fix those who are not well disposed to the deceased. In such circumstances, delay assumes, importance and may become fatal to the prosecution case. 21. In such circumstances, delay assumes, importance and may become fatal to the prosecution case. 21. In A.I.R. 1988 S.C. 1158, the Apex Court has taken the view that where the police station is only 2 furlongs away, the delay in lodging the F.I.R. is highly suspicious. 22. P.W.12 has stated that he sent the F.I.R. to P.W.13 at 3.00 p.m. and P.W.13 reached the Karungal Police Station when he got the telephone message at 2.30 p.m. According to P.W.12 he did not telephone to P.W.13. Therefore, the fact whether he received the F.I.R. at 3.00 p.m. and thereafter left is suspicious. The F.I.R. had reached the Magistrate at 5.00 hrs. at his residence, on 28. 1993. 23. P.W.12 has stated that he recorded Ex.P-16 in the General Diary. Ex.D-2 is the General Diary, dated 28. 1993 and he despatched the same. He has further stated that in Ex.D-2, it is not mentioned that the copy of the F.I.R. was given to the Inspector. This shows that the Inspector was very much in the police station before 3.00 a.m. and the information reached the residence of the Magistrate at 5.00 a.m. In this context, it is not inappropriate to conclude that Ex.P-16 is a creature of after thought, especially, when the means of communication are there and opportunity to go to the police station was there. The F.I.R. being a vital document, acts as a check on improvements at a later stage and it is a valuable document from the point of the accused and serves as a touchstone from the point of appreciating the evidence be that of eye-witnesses or medical evidence or investigating officers. If it is bereft of spontaneity, that too, when the police station is at the nearest proximity, the prosecution case sounds incredible. 24. The material witnesses in this case are, P.W.1, P.W.2 and P.W.3 P.W.1 is the brother of the deceased, P.W.2 is the relative of the deceased, and P.W.3 is the wife of the deceased. Therefore it is contended that the material witnesses since related, inimical, interested and partisan, their testimony cannot be made the sole basis for conviction. 25. 24. The material witnesses in this case are, P.W.1, P.W.2 and P.W.3 P.W.1 is the brother of the deceased, P.W.2 is the relative of the deceased, and P.W.3 is the wife of the deceased. Therefore it is contended that the material witnesses since related, inimical, interested and partisan, their testimony cannot be made the sole basis for conviction. 25. The learned Public Prosecutor refuted the argument inter alia contending that the said prosecution witnesses though related, they would not spare the actual assailants and that too, when P.W.I is an injured witness and their evidence should be viewed with broad angles and should not be weighed in golden scales and any lapse in their capacity for absorption and retention has to be viewed keeping in view their anxiety and concern and it is impossible for any person to recount with meticulous exactitude the various individual acts done by each assailant. In Ram Ashrit v. State of Bihar, 1981 Crl.L.J. 484, the Apex Court has held thus: “When all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In the absence of corroboration, to a material extent hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and material infirmities.” 26. P.W.1 Kingsley has stated that on the day of the incident, the deceased and himself were standing before the A.B.T. parcel office at the Karungal Mandy Market Road, chatting. Then, from the west of the parcel office of Kurubanai road, all the 8 accused who are appellants herein came and encircled them. There was light in front of the A.B.T. parcel office and also in the house of the advocate at that time. So also in the electric post which is just about 50 feet from the place where they standing. All the accused persons were armed with vettukathies. A-1 stated that Alphones lost the election on account of the deceased, hence he should be killed. So saying, he cut on the left cheek and further inflicted to cuts on the right side of the head with the vettu kathi. The deceased shouted and lifted his hand. All the accused persons were armed with vettukathies. A-1 stated that Alphones lost the election on account of the deceased, hence he should be killed. So saying, he cut on the left cheek and further inflicted to cuts on the right side of the head with the vettu kathi. The deceased shouted and lifted his hand. Again, A-1 cut the deceased David with vettukathi on his left rib. At that time, the dhoti of the deceased slipped and fell. Devadoss, A-2, who was standing behind the deceased, inflicted 2 cut injuries on the back portion of the head. A-3, Sobitharaj addressing him, “Are you a big rowdy?”, with the vettukathi, inflicted three cuts on the right shoulder and also on the front portion of his neck. A-4, Stanley, cut twice on the upper portion of the right thigh of the deceased. A-5, Jose caused injury on the knee of the left leg and again on the left heel of the deceased with vettukathi. Then the deceased fell down. Jayaraj Singh, A-6, inflicted, 4 cut injuries on the right knee joint of the deceased. A-7, Kumar cut the left ankle of the deceased. Dharmar, A-8 cut on the right buttock of the deceased, so also, below the buttock. He had inflicted 3 cuts on the buttock and another cut below the buttock. He also cut on the left elbow and right shoulder of the deceased. The injury inflicted on the right shoulder fell on the chest. At that time, he shouted, “don’t cut and kill my uncle” and tried to prevent him. Sobitharaj, A-3 shouted stating “why do you support?” and so saying, inflicted an injury on the head of P.W.I Since, he bent, the blow fell on the back of his head and caused injury. Then the wife of the deceased, P.W.3 came there shouting. So also, at the same time, Selvakumar, Usha Gracy, Paul Daniel and his wife Thankabai came to the spot shouting. Immediately thereafter, all the accused left the scene of occurrence with their weapons. While leaving the spot, they threatened the shopkeepers that if they speak about the occurrence, they would be done away with. Then, the traffic came to a halt. At that time, Paul Daniel stopped a tourist ambassador taxi TCK:2124 and took the deceased to the C.S.I. Hospital, Neyyoor. After admitting in the hospital, within a short time, the deceased died. While leaving the spot, they threatened the shopkeepers that if they speak about the occurrence, they would be done away with. Then, the traffic came to a halt. At that time, Paul Daniel stopped a tourist ambassador taxi TCK:2124 and took the deceased to the C.S.I. Hospital, Neyyoor. After admitting in the hospital, within a short time, the deceased died. He was also given treatment. Later when the Headconstable of the Eraniel Police Station made an enquiry about the incident, he gave a statement and the said statement is Ex.P-1. 27. P.W.2 Selvakumar is residing at Poovansanthai, Karungal, and he is a distant relative of the deceased. He has stated that he wanted to go to a second show picture on that day and he came near the bus stop. When he found the accused persons armed with vettukathies going towards the deceased, he followed them apprehending some danger to the accused. All the accused jointly encircled David, the deceased, and Kingsley, P.W. 1 At that time, A-1 said, “because of this man, Alphones was defeated, he should not be left alive, cut and kill him.” So saying he caused cut injuries on the left and right jaws, right cheek repeatedly and caused bleeding injuries. Then the deceased raised his hands and shouted “ayyo”. A-1 again with the same vettukathi caused injury near the left arm pit. The polyested dhoti of David fell down. Devadoss, A-2 standing behind David inflicted to cut injuries on the back of his head by repeatedly cutting him. Sobitharaj, A-3 questioning whether he was big rowdy. Cut on the back of his right shoulder twice and an another cut on the knee joint with the Vettukathi. Again he caused a cut injury on his neck. A-4, Stanley, caused two cut injuries on the right leg thigh of the deceased. At that time, Jose, A-5 caused bleeding injuries on the inner side of the left knee joint and also on the left heel. Then David fell down. When David fell down, Jayaraj Singh, A-6 repeatedly caused for injuries above the right ankle twice. A-3 Dharmar caused cut injuries below the right buttock and the back portion of the thigh and caused four cut injuries. Again, he caused injuries on the left knee joint and right shoulder. He further caused cut injuries on the right chest which was a bleeding injury. A-3 Dharmar caused cut injuries below the right buttock and the back portion of the thigh and caused four cut injuries. Again, he caused injuries on the left knee joint and right shoulder. He further caused cut injuries on the right chest which was a bleeding injury. Kingsley, P.W. 1 who was standing with the deceased shouted that his uncle was killed. Immediately, A-3 Sobitharaj aimed at him and cut him stating, “are you supporting him?” and he should be extinguished. When Kingsley, P.W. 1, bent, the cut fell on the back of his head and he suffered a bleeding injury. At that time, Paul Daniel, his wife, Usha Gracy wife of the deceased and himself raised an alarm. The accused saying that the deceased was finished, left towards the west with vettukathies. While leaving, they threatened the persons who were waiting for the bus, stating that if any one would give evidence they would also meet the same fate. 28. If we compare the evidence of P.W.1 and P.W.2, along with the medical evidence viz., P.W.8 and P.W.9 regarding the assault on the deceased, there are several contradictions on the manner of participation, for instance: .(a) In the F.I.R. it is mentioned that A-1 sustained injury on the left cheek, so also, in the evidence before court, P.Ws.l and 2 have stated in the examination-in-chief that A-1 cut the deceased on the left arm-pit. P.W.1 has also stated in his examination-in-chief that A-1 cut twice on the right side of the head of the deceased. .(b) On the right side of the head, there is only one injury, Therefore, the evidence of P.Ws.1 and 2 that A-1 caused two injuries on the head is false. The version of P.W.I that A-1 sustained cut injury on the left rib is false, because, according to the evidence of the doctor, there is no such injury on the left side of the rib. .(c) In the F.I.R. it is stated that A-2 caused two cut injuries on the back of the head. P. .W. 1 has also stated in the examination in-chief that A-1 caused two cuts on the right side of the head. If the evidence of P.Ws.l and 2 are taken into consideration, regarding the participation of A-2, there ought to have been four injuries according to them, on the head of the deceased. P. .W. 1 has also stated in the examination in-chief that A-1 caused two cuts on the right side of the head. If the evidence of P.Ws.l and 2 are taken into consideration, regarding the participation of A-2, there ought to have been four injuries according to them, on the head of the deceased. But, so many injuries are not there as per the evidence of the doctor. In the F.I.R. it is stated that A-3 caused three cuts on the right shoulder, so also, .P.W. 1 in his evidence has reiterated the same version. P.W.2 has stated that there were two cut injuries on the back of the right shoulder. But, there is only one injury on the back of the right shoulder. According to the evidence of P.Ws.l and 2, the injuries must be more than one. This injury also could not have been caused by A-3 while attacking the deceased by standing in front of him, as spoken to by P.Ws.1 and 2. So also, injury Nos.7 and 8 could not have been caused by standing in front of the deceased. This improbabilises the participation of A-3. According to the F.I.R. the evidence of P.Ws. 1 and 2, A-4 inflicted two cuts on the upper portion of the thigh. These injuries are also improbable, when A-4 was standing in front of the deceased, as spoken to by the witnesses. In the F.I.R. and in the evidence of P.Ws.1 and 2, they have stated that A-5 cut at the inner part of the left knee, but no such injury is found on the left knee or on the heel. In the F.I.R. and in the evidence of P.Ws. 1 and 2 it is mentioned that A-6 caused cut injuries on right leg below the knee. In the F.I.R. it is stated that it is on the right leg below the knee, the injury was caused, In the evidence of P.W. 1 it is stated that there were four cut injuries below the right knee. But, there were no such four injuries below the right knee. But, in the cross examination, P.W.1 has stated that A-6 caused injuries on the right knee below, but later improved the version and stated that there were injuries on the right thigh. (d) Except injury No.26, all other injuries are simple in nature. But, there were no such four injuries below the right knee. But, in the cross examination, P.W.1 has stated that A-6 caused injuries on the right knee below, but later improved the version and stated that there were injuries on the right thigh. (d) Except injury No.26, all other injuries are simple in nature. In the F.I.R. it is mentioned that A-7 caused one cut injury on the left ankle. P.W.1 has stated in the examination-in-chief that A-7 caused one cut on the ankle but there is no such injury on the left ankle as stated by P.W.1, P.W.2 in the examination-in-chief has stated that there were two cut injuries above the right ankle, but there is only one injury. That injury is not mentioned in the F.I.R. and there is difference between the evidence of P.Ws. 1 and 2 on the citus of the injury and totally left out in the F.I.R. So far as A-8 concerned, P.W.2 has attributed injury Nos. 17,18,21 and 22 and injury No.8 to A-8. So also, the injury No.8 is attributed to both A-3 and A-8 and injury No.18 to A-4 and A-8. The grievous injury is assigned to A-7 but because of the contradiction in the citus and non-mentioning in the F.I.R. it is not proper to place reliance on the version of P.Ws.l and 2 to conclude that A-7 has caused that injury. 29. In Anneppa v. State of Karnataka, 1978 M.L.J. (Crl.) 393 at para 14, it has been held thus: "This Court in Pampa v. State, (1973)2 Mys. L.J. 13, thus observed: "Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed in the ways. A court can either believe the prosecution witnesses unreservedly and explain away the conflict between their evidence and medical evidence by holding mat the witnesses have merely exaggerated the incident or rely upon the medical evidence and approach the oral testimony with caution testing it in the light of the medical evidence. The first method can be applied in cases where the oral evidence is not open to any doubt and creates confidence. Where the evidence is not of that character, when the medical evidence is not open to any doubt or suspicion, the only and judicial way of assessing the evidence is the second method." 30. The first method can be applied in cases where the oral evidence is not open to any doubt and creates confidence. Where the evidence is not of that character, when the medical evidence is not open to any doubt or suspicion, the only and judicial way of assessing the evidence is the second method." 30. In Gurdial Singh v. State of Punjab, A.I.R 1994 S.C. 1072, it has been held that ocular version of injuries in conflict with medical evidence material discrepancies introduce fairly serious infirmities. According to P.Ws. 1 and 2, it is the case of the prosecution that all the accused were armed with vettukathies and it is also the evidence of P.Ws.l and 2 that all the accused persons assaulted the deceased forcibly with vettukathies. If their evidence that all the accused inflicted injuries on the deceased with their respective weapons, is to be accepted, then there would be incited wounds all over the body of the deceased. P.W.9 the doctor in his evidence has stated that except injury No.26 all the injuries are simple in nature. Even P.W.8, the doctor who treated the deceased, has stated in Ex.P-5 that except injuries on the right leg where the bones were broken, all other injuries are shown as simple in nature. And so far as injuries on P.W.1, he has described it as minor injury. P.W.8 has further stated that the injuries found on P.W.1 would have been caused by himself. Thus, the evidence of P.Ws.1 and 2 is totally inconsistent with the medical evidence. 31. In Ramnarain v. State of Punjab, A.I.R.1975 S.C. 1727, the Apex Court has laid down that if the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, this a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. 32. In Amar Singh v. State of Punjab, A.I.R. 1987 S.C. 826, the Apex Court has taken the view that when the opinion of the doctor is inconsistent with the testimony of the eye-witnesses and the other circumstances, it is indicative of the fact that the eyewitnesses had not seen the actual occurrence, and in such a situation, conviction is improper. 33-35. 33-35. In 1987 Crl.L.J. 479, the Delhi High Court has taken the view that the person stated to have received injuries at the occurrence, his version could not by itself be token to be true, more so, when other circumstances, cause suspicion on the prosecution case. The evidence of P.Ws.1 and 2 appear article, improbable and inconsistent, regarding participation, having regard to the positions in which the accused and the witnesses stood at the time of the alleged occurrence, according to their evidence. Since the ocular evidence is inconsistent with the medical evidence, we are of the view that the direct testimony of P.Ws.1 and 2 is suspect and is unsafe to rely on such eye-witnesses. .36. The next contention of the learned counsel for the accused is that the prosecution has failed to examine the witnesses, who were examined during investigation and also those independent and disinterested witnesses in the vicinity. Ofcourse, it is held in several decisions that evidence is not to be counted on number of witnesses that may be examined, but has to be weighed on the quality of evidence. It is also true that prosecution has discretion as to whom it has to examine in proof of its case. It is also true that evidence need not be duplicated, but prosecution has a duty to explain the reason for non-examination before court, of the witnesses examined during investigation. It is the essential requisite of criminal justice that all those witnesses who were present at the earliest point of time in the scene of occurrence and who have participated in shifting the deceased or being with the deceased at the hospital, that too, when they are relations, they will be the last persons to falsely implicate any person or to screen the real offender. Therefore, examination of such witnesses lends assurance to the prosecution case. 37. Paul Daniel, the brother of the deceased arrived at the scene of occurrence along with the wife of the deceased, and it was he, who shifted the deceased to the hospital. He was examined during the investigation and he was not examined before court. Therefore, examination of such witnesses lends assurance to the prosecution case. 37. Paul Daniel, the brother of the deceased arrived at the scene of occurrence along with the wife of the deceased, and it was he, who shifted the deceased to the hospital. He was examined during the investigation and he was not examined before court. This goes to show that, even though a material witness, who is none other than the brother of the deceased who had played crucial role, who accompanied the deceased when the deceased was conscious, till he was taken to the hospital, if he has not been examined, it amounts to non-examination of material witness though available, and amounts to suppression of the material. Under such circumstances, the court is justified to draw an adverse inference against the prosecution. Even one Rajasekar, an advocate whose house is just opposite to the scene of occurrence was examined during the investigation, but he was not examined during trial. At least, the prosecution should have explained as to why such an independent witness was withheld when he was enquired during investigation. The witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution whether in the result, the effect of their testimony is for or against the case of the prosecution. Omission to produce important witnesses detracts the credibility of the prosecution case and creates an impression of suppression of the material essential for finding out the truth. .38. Another feature of the case which makes us to doubt the credibility of the witnesses is the photographic and some what dramatic account which they gave of the incident with minute details of attack. According to the account of the witnesses P.Ws.1 and 2, it was, as if each of the accused attacked the deceased one after the other and each of them assaulted with vettukathi being followed by the next accused. This account sounds obviously invented to allow each witnesses to give evidence of the entire attack. But, in the cross examination, the witnesses themselves have admitted that the entire incident went on within five minutes and simultaneously. If so, it is not possible for each one of them to have noticed the attack minutely. 39. P.W.4 who is a document writer, was present at 2.45 a.m. on 28. But, in the cross examination, the witnesses themselves have admitted that the entire incident went on within five minutes and simultaneously. If so, it is not possible for each one of them to have noticed the attack minutely. 39. P.W.4 who is a document writer, was present at 2.45 a.m. on 28. 1993, according to the evidence of himself and that of P.W.13. It is stated that the distance between Karungal Police Station and the place where P.W.4 resides is about 8 kms. and it is unnatural and improbable that he came by walk from the place of his residence to the scene of occurrence, that too, at the odd hour of 2.45 a.m. 40. P.W.3 who claims to have witnessed the incident did not accompany the decease to the hospital or approached the police or informed this incident to anybody. This conduct is so unnatural. P.W.2 is the relation of the deceased and he was one of the eyewitnesses. When his close friend and a relation was beaten mercilessly he would have accompanied the deceased to the hospital or approached the police immediately. But, till the next day he did not approach anybody, nor did he tell this incident to anybody. His house is situate at a considerable distance where there is a bus stop and he wanted to go to a second show picture on that day and he stated that when he came near the bus stop, where the buses do not stop and noticed the accused persons going towards the deceased and followed them and witnessed the incident. When he found that they were armed with vettukathi. In all, 8 persons surrounded him and when he apprehended some danger to the deceased, that too, when the police station is just at half-a-kilome-ter distance, the normal conduct is to report to the police, in order to avoid the incident or to see that they will not come near the scene of occurrence at the earliest point of time or to raise alarm to attract others to prevent the incident or to inform the deceased. This passive attitude of the witness and even after the incident, not evidencing interest to accompany the deceased or to report to the police gives an impression probabilising his absence at the time of occurrence. .41. This passive attitude of the witness and even after the incident, not evidencing interest to accompany the deceased or to report to the police gives an impression probabilising his absence at the time of occurrence. .41. P.W.2 has stated that all the accused out the deceased one by one and did not act simultaneously. He has also stated that P.W.1 was inside the circle and did not attempt to go. He has further stated that Neyyoor hospital is at about 8 kms. away, whereas, there are 5 to 6 small hospitals at the nearby places, and one hospital is near the Syndicate Bank, which is 400 ft. from the west of the place of occurrence and it is a famous hospital. P.W.1 has also stated that all the accused encircled him and attacked the deceased one time simultaneously and another time one by one. He says that he did not raise alarm when the accused cut and caused injuries on the deceased. He has further stated that he did not attempt to prevent the accused from attacking the deceased. The statement that all the accused cut one by one in que. though encircled did not attempt to go out and not taking the deceased to the nearest hospital and not raising alarm or resisting or attempting to prevent when attacked is unnatural conduct of any person who is near the accused or within the circle when the deceased was attacked. According to P.W.2, all the injuries were accused by forcibly attacking the deceased standing in front of him. If they were forcibly attacking the deceased and caused the injuries with deadly weapons like vettukathies, the injuries must have been serious, grievous and incised. Whereas, P.W.8 the doctor, has said that all the injuries except No.26 on the right leg, below the knees, which resulted in fracture, were simple in nature. 42. When P.W.3 went near the scene of occurrence, when she saw her husband lying on the ground with cut injuries, she has stated, she did not in any way help her husband on that day and she did not lift him, did not talk to him and he also did not talk to her. This is something unnatural conduct of a wife, that too, when her brother-in-law is a Head Constable and father-is-an Inspector of Police, not intimating them is also an unnatural conduct. 43. This is something unnatural conduct of a wife, that too, when her brother-in-law is a Head Constable and father-is-an Inspector of Police, not intimating them is also an unnatural conduct. 43. It is in the topography and the evidence of the prosecution witnesses mat the incident took place on the mud portion of the road, and the deceased sustained as many as 29 injuries which were bleeding and when he was found lying on the ground with cut injuries, according to the doctor, no foreign particle like earth was found in any of the injuries. 44. The arrival of P.W.13 without receipt of the telephonic message as stated by P.W.12 and without receipt of the F.I.R. Ex.P-16 to the police station gives a suspicion that he must have had the knowledge of the occurrence earlier and the real case has been suppressed. 45. The deceased was the uncle of P.W.1 and Paul Daniel is the own brother of the deceased. Thangabai is the wife of Paul Daniel. Witness Selvakumar is also related to the deceased. P.W.1 has stated that Paul Daniel has a brother by name, Selvaraj, whose wife one Swernathammal is the daughter of the maternal uncle of P.W.1. He has also stated that the wife of the deceased David is his maternal uncle’s daughter. Selvaraj, the brother of the deceased is the Head Constable attached to the Karungal Police Station. The father-in-law of the deceased by name, Gnanadiraviam is a retired Inspector of Police. It is in evidence that there are several cases against P.W.1 In Cr.No.203 of 1993, he is an accused along with others. In Cr.No.268 of 1995 also he is an accused. Whereas, P.W.2 is an accused in Cr.No.35 of 1993 and Cr.No.180 of 1992. Exs.D-17 and D-18 are the F.I.Rs. about P.Ws.1 and 2. Where the witnesses are interested, having criminal cases and that too, as in the instant case, (on the file of the very same police station), the evidence of such witnesses has to be approached cautiously with greater scrutiny, because they are at the mercy of the police and having regard to their background apprehending involving them in other criminal cases, may resort to even employ ingenuity to bolster up an untruth as truth and the evidence of such witnesses should not be made the basis for conviction. .46. .46. The learned counsel for the appellant contended that there are serious lapses in the investigation. In support of his contention, he invited our attention to Ex.P-6, the intimation of death received by P.W.11. P.W.1 has stated that he went to C.S.I. Hospital, Neyyoor at 10.30 p.m. and recorded the statement of P.W.1. Whereas, Ex.P-8 discloses that he was discharged at 9.00 p.m. P.W.2 has stated that he sent the F.I.R. to P.W. 13 at 3.00 p.m. P.W.13 stated that he got the telephone message at 2.30 p.m. But, P.W.12 has asserted that he did nottelephone to P.W.13. Therefore, the fact that he received the F.I.R. at 3.00 p.m. and thereafter, he left to the Karungal Police Station is incorrect. The F.I.R. has reached the Magistrate at 5.00 a.m. and till then, i.e., 5.00 a.m., there was ample time for deliberation. The incident has taken place in a busy locality and it is a market place and according to the evidence of P.W.2 and also that of the police witnesses, it is just within a distance of half-a-kilometer. Normally, there will be police officers to regulate the traffic in busy places. Having regard to the time of occurrence, it was not difficult for the police to place material from the disinterested source, that too, when the place is inhabited by respectable people, shop-owners, doctors and lawyers. 47. “Investigation” is defined under Sec.2(h), Crl.P.C. as including of all the proceedings for the collection of evidence conducted by the police officer. Sec.36, Crl.P.C. confers power upon a superior officer. The power that is conferred on the police officer in charge of a police station when petition was submitted to the higher police authorities stating that one of the accused was innocent and falsely implicated in the case and that too, when there was a confidential probe into the conduct of the local police and to the method of investigation and when very many witnesses were examined and a report was submitted stating that A-3 was innocent, when there was an order dated 31. 1994 by the Deputy Inspector General of Police to set right the investigation in the interest of justice, that too, when a copy was marked to him, nothing prevented the investigating officers to further re-investigate taking into consideration the material in the report. 1994 by the Deputy Inspector General of Police to set right the investigation in the interest of justice, that too, when a copy was marked to him, nothing prevented the investigating officers to further re-investigate taking into consideration the material in the report. The Supreme Court in Ral Lal Narang v. State, A.I.R. 1979 S.C. 1791, which was a case which arose prior to the introduction of Sec. 173(8), has stated that it is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualize a case where fresh material may come to light, which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit the report of the Magistrate? After all, the investigating agency has greater resources at its command than a private individual. Similarly where the involvement of persons who are not already accused, comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. In the said case, the Supreme Court has further observed that in the interests of the independence of the Magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and the institutions entrusted with different stages of such administration it would ordinarily be desirable that the police should inform the Court and seel formal permission’ to make further investigation when fresh facts come to light. 48. 48. This Court had an occasion to deal with an identical situation and held that nothing prevented to submit a supplemental report under Sec. 173(8), Crl.P.C. The effect of the said section is that notwithstanding the fact that a report has already been forwarded to the Magistrate under Sub-sec.(2) of Sec.173, Crl.P.C. It will be open to the police officers to make further investigation in respect of an offence if circumstances so warrant. As and when such investigation is made and further evidence, oral or documentary, is obtained, the police officer is under a duty to forward to the Magistrate a further report or reports regarding such evidence in the form prescribed. This section is based on the necessity to confer express power on the police to make further investigation. Where there is material in the form of a report showing the noninvolvement of one of the accused, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons or otherwise of that accused. In either case, it is for the Magistrate to decide upon the future action depending upon the stage at which the case is before him. If he had better reason than the one expressed in the report, nothing prevented him to state so, instead of totally suppressing the direction of the higher officers. There was no further investigation on the basis of the report, was indeed a very extraordinary conduct on the part of the investigating officer defying and direction of the higher officer. It is in this context the prosecution has not come out with the whole or unvarnished truth so as to enable the court to judge where the rights of wrongs of the whole incident or set of incidents lay or how the incident took place and the court can only try to guess or conjecture to decipher the truth if possible. The suppression or non-production of pertinent and cogent evidence necessarily raises a strong presumption against the party who with holds such evidence when he has it is his power to produce it. But it is settled law that the investigation must be beyond suspicion and where it is tainted with suspicion or lapses it cannot inspire confidence in the judicial mind about the credibility of the prosecution case itself. But it is settled law that the investigation must be beyond suspicion and where it is tainted with suspicion or lapses it cannot inspire confidence in the judicial mind about the credibility of the prosecution case itself. 49. The Judicial Magistrate’s Court, Eraniel is in the same compound, where the Eraniel Police Station is situated. In Ex.P-6, the names of the accused have not been mentioned against the column meant for it, as per the evidence of P.W.12. He sent the F.I.R. to the Inspector and to the Court only through I Grade PC.346. The place of occurrence is about half-a-furlong from the police station. The the General Diary, dated 26,8.1993, nothing is recorded to show that the police officials or constables went to the place of occurrence. In Ex.P-1, it is stated that traffic was disrupted, if so, presence of policemen to regulate the traffic was imminent, having regard to proximity of the police station. 50. It is the deposition of P.W.13 that he went to the Karungal Police Station at 2.30 a.m. and obtained the F.I.R. from P.W.12 and proceeded to the scene of occurrence. He did not take the Head Constable or any other constable from the Karungal Police Station. When he reached the scene of occurrence none was there safeguarding the place of occurrence. P.W.4 came to the scene of occurrence only after he reached there. From Ex.P-5, it is evidence that the deceased had consumed liquor. He has also admitted in his evidence that there is discrepancy between Exs.P-12 and P-18 with respect to the nature of injuries and the number of injuries. He has further stated that in Cr.No.290 of 1988, registered in Eraniel Police Station, the deceased was the accused and Ex.D-19 is the charge sheet. In Cr.No.135 of 1993, the deceased was the accused, Ex.D-20 is the F.I.R. and the charge sheet is Ex.D-21. It is in evidence that the deceased was a history-sheeted rowdy on the file of Karungai Police Station. There are several cases against the deceased. Some of them are: Cr.No.289 of 1996, the F.I.R. of which is marked as Ex.D-3; Cr.No.79 of 1988)(Ex.D-5 and Ex.D-6 are F.I.R. and chargsheet respectively); Cr.No.82 of 1988 (Exs.P-7 and P-8 are F.I.R. and charge sheet); Cr.No.221 of 1988 (Exs.D-9 and D-10 are F.I.R. and chargsheet); Cr.No.299 of 1988 (Exs.D-11 and D-12 are F.I.R. and chargsheet). Some of them are: Cr.No.289 of 1996, the F.I.R. of which is marked as Ex.D-3; Cr.No.79 of 1988)(Ex.D-5 and Ex.D-6 are F.I.R. and chargsheet respectively); Cr.No.82 of 1988 (Exs.P-7 and P-8 are F.I.R. and charge sheet); Cr.No.221 of 1988 (Exs.D-9 and D-10 are F.I.R. and chargsheet); Cr.No.299 of 1988 (Exs.D-11 and D-12 are F.I.R. and chargsheet). In C.C.No.170 of 1989 the deceased was the complainant, the judgment of the Judicial Magistrate is Ex.D-22. In C.C.No.302 of 1989, on the file of the Judicial Magistrate, Eraniel, A-2 is an accused and Ex.D-23 is the chargsheet and Ex.D-24 is the F.I.R. In C.C.No.206 of 1989, on the file of the Eraniel Magistrate’s Court, the judgment of which is Ex.D-25, the deceased was P.W.I. The case of the accused is that having regard to his rowdy temperament, the deceased might have sustained injuries somewhere else and using those injuries on the body of the deceased, counting them, me father-in-law of the deceased, who is a retired Inspector of Police and the brother of the deceased who is an Headconstable attached to the Karungai Police Station have foisted a false case against the accused due to enmity. 51. The defence examined one witness, Mr.Barathan as D.W.1. In the deposition, he has stated that he was working as Deputy Superintendent of Police, CBCID., at Tirunelveli between 1991 and 1994. He was ordered by the DGP (Crime) to enquire into the complaint given by the wife of Mr.Sobitharaj (A-3) at Karungai Police Station. In pursuance of the said order, after examining several witnesses, viz., Arumairaj, Russel Raj, Yesudoss, Kingsley, Kumar Selvakumar, Usha Gracy and Prabha and after perusal of the documents relating to the investigation, he gave a report as per Ex.D-26 (report comprising of 40 pages). According to his report, it came to light that on account of prior enmity between the family of Sobitharaj and David, he was wantonly implicated in the case. The DGP on the basis of the said report required the DIG. to review the case and to take suitable action to set right the investigation. That order is in Ex.P-26 file. At the relevant time, he was in charge of the investigation of cases in Tuticorin, Tirunelveli and Kanyakumari Districts. In the re-examination, he has stated that the real accused should be identified. The order was passed on 31. to review the case and to take suitable action to set right the investigation. That order is in Ex.P-26 file. At the relevant time, he was in charge of the investigation of cases in Tuticorin, Tirunelveli and Kanyakumari Districts. In the re-examination, he has stated that the real accused should be identified. The order was passed on 31. 1994 directing the investigating officer to set right the investigation on the basis of the report of D.W.1, dated 21. 1994. 52. Of all kinds of exculpatory evidence, that of an alibi, if clearly established by unsuspected testimony, is the most satisfactory and conclusive. It is obviously, essential to the proof of an alibi that it should cover and account for the whole of the time of the transaction in question, or, at least, for such of it as to render it impossible that the accused could have committed the imputed act. The credibility of an alibi is greatly strengthened if it be set up at the moment when the accusation is first made, and be consistently maintained throughout the subsequent proceedings as has been done in the instant case. 53. Of course, it is the duty of the accused to prove the plea of alibi to the satisfaction of the court and to substantiate the plea and make it reasonably probable. The standard of proof about the alibi is the same, as it is for the prosecution to establish its case. In A.I.R. 1978 S.C. 191 at page 201 in para 15, it has been held that the burden of substantiating such a plea and make it reasonable probable is open to him. In A.I.R 1991 S.C. 911, at page 960, para 10, it is stated that the plea can therefore succeed only if it is shown that the accused was so far away at the relevant time and that he could not be present at the place where the crime was committed. According to the report of D.W.1, A-3 was falsely implicated due to enmity. According to the report of D.W.1, A-3 was falsely implicated due to enmity. That report was based on the materials collected after examining several witnesses including those witnesses examined by the investigating officer and after perusal of the records, the learned Public Prosecutor contended that the result of the investigation cannot be made on the basis of records relating to the guilt or innocence of the accused as the court is required to base its conviction only on the basis of the evidence adduced during trial and relied on a decision reported in Dalip Singh v. State of Punjab, (1997)3 Crime. 6. At para 8, the Apex Court while commenting on the evidence of D.W.5, the DSP., who said after interrogating some of the accused and other persons that Shabeg Singh and Arjan Singh were innocent and the Apex Court held that the designated court ought not have permitted to adduce the above evidence as it is not legally admissible. In that case, there was no order by the police officer of higher rank on behalf of the accused imputing bais to the investigation. There was also no report by the competent person. Sec.36 of the Crl.P.C. empowers police officer of a higher rank also to investigate and look into the investigation. With that authority, the order was made to set right the investigation. When the order was from a proper source and based on materials, communicated more than one year prior to the filing of the challan, if that was not looked into, the accused has every right to make use of the material collected by the police. In the case cited above, under what authority the DSP., deposed on behalf of the accused persons was not stated. Therefore, the Apex Court made such an observation that the evidence adduced before court and the materials collected and produced alone are to be looked into. It is not the position in the present case. Having regard to the direction of the DGP, the materials collected by D.W.1 and also according to his evidence, it was the daily routine of A-3 to go to the shop along with his brother at 9.00 a.m. in the morning and to remain there till 9.30 p.m. in the night. It is not the position in the present case. Having regard to the direction of the DGP, the materials collected by D.W.1 and also according to his evidence, it was the daily routine of A-3 to go to the shop along with his brother at 9.00 a.m. in the morning and to remain there till 9.30 p.m. in the night. When such a material was available in the file of the police officer in the form of a report it becomes a relevant piece of material, which raises doubt in the mind of the court about the presence of A-3 at the time of occurrence. P.W.13 has also admitted that P.W.2 did not tell him that A-3 cut the deceased on the front portion of the neck of the deceased. Even if a doubt is raised in the mind of the court that the accused may or might not have been present at the time of occurrence, even then, the accused is entitled to the benefit of doubt. It is also settled by the Apex Court in Bengali v. State of Orissa, 1985 Crl.L.J. 580, that if a person falsely implicates, it is hazardous to accept any part of his testimony. .54. Because of the lapses on the part of the investigating officer, we cannot, however, definitely come to the conclusion as to how the incident had occurred. But left only to guess or conjecture from the facts and circumstances projected in the case. From the beginning of receipt of report, mahazar proceedings, non-examining the important witnesses who arrived at the scene at the earliest point of time, depending upon a document-writer who was within the premises of the police station for recovery proceedings not probing in the light of the report, having regard to the fact that one of the Head Constables attached to Karungal Police Station is the brother of the deceased and his father-in-law being a retired Inspector of Police, there is ample doubt about the credibility of the investigation. 55. It is true that this Court has to observe restraint or be slow to dislodge the view expressed by the learned trial Judge on the ground that he had an opportunity to observe the demeanour of the witnesses and his view has to be given due consideration. But, in the instant case, there is no evaluation of the evidence placed before the trial Court. But, in the instant case, there is no evaluation of the evidence placed before the trial Court. He has not weighed the evidence of P.Ws.1 and 2, who are relations of the deceased, keeping in view the evidence of P.Ws.8 and 9, the doctors who attended on the deceased and P.W.1, and failed to notice the contradictions, artificiality and improbabilities in their evidence. The learned Judge has lost sight of the lapses in the investigation and the effect of non-examination of the material witnesses. In the absence of cautious scrutiny of all the totality of the circumstances, the order becomes perverse order leading to presume criminality. Criminality, therefore, never to be presumed but to be proved strictly on the basis of legally admissible evidence. Conclusively, the proof of the case against the accused must depend for its support upon the positive or affirmative evidence of the guilt but not want of any explanation on the part of the accused. The injudicious conviction imposes evil, civil and social consequences attaching stigma to the accused. The approach of the learned Sessions Judge is perverse, opposed to the facts and circumstances, probabilities and the evidence placed before Court and hence unsustainable in law. .56. Before parting with this case, we may express our displeasure at the manner the capital offence is being investigated. In spite of the order of the DGR, earlier to an year of filing of the challan to set right the investigation, the investigating officer took it in a more casual manner without evincing any sort of keenness on his part to locate the truth. This is high time that those concerned should give a serious thought to the matter and introduce all remedial measures. To our mind, it appears that proper control and supervision by the senior officers coupled with due respect being shown to the advice of the prosecuting agency may go a long way in arresting this deteriorating trend. We wish and hope our suggestions would not go unnoticed. 57. For reasons aforestated, we are of the opinion that the prosecution had not been able to prove its case against any of the accused beyond reasonable doubt and the appellants are therefore entitled to an acquittal. 58. Accused No.8, Dharmar has not challenged the conviction and sentence imposed on him. 57. For reasons aforestated, we are of the opinion that the prosecution had not been able to prove its case against any of the accused beyond reasonable doubt and the appellants are therefore entitled to an acquittal. 58. Accused No.8, Dharmar has not challenged the conviction and sentence imposed on him. Since the findings in these appeals are inter-dependent and inextricably integrated, notwithstanding the non-filing of an appeal, the conviction against him also cannot be sustained. Kameshwar Singh and Ram Babu Singh and others v. State of Bihar, J.T. (1992)6 S.C. 85 and Hari Nath v. State of U.P., A.I.R. 1988 S.C. 345, followed. 59. The appeals are allowed. The conviction and sentences on all the accused by the learned Additional Sessions Judge, Nagercoil in S.C.No.97 of 1996 dated 9. 1997 are set aside and the appellants and A.P. shall be set at liberty forthwith unless they are required in connection with any other case or cases.