Judgment :- N. DHINAKAR, J. C.A.No. 898 of 1997 is by the first accused and C.A.No.899 of 1997 is by the second and third accused in Sessions Case No. 40 of 1997 and in this judgement, the appellant in C.A.NO. 898 of 1997 and the appellants in C.A.No. 899 of 1997 will be referred to as "A.1 to A.3" in the order they were arrayed before the learned Sessions Judge. They were tried along with three other accused, who were arrayed as "A.4 to A.6" and the allegation against A.1 to A.6 is that at 8.00 a.m. on 14.2.1993, they formed themselves into an unlawful assembly and that A.1 to A.3 were armed with deadly weapons and they committed rioting and during the course of the same transaction, A.1 to A.3 murdered Chitravel by cutting him with aruvals and that Thiruvanandhaperumal, the brother of Chitravel, also sustained injuries in the course of the same transaction and that A.4 and A.5 shared the common object of A.1 to A.3 and that A.6 instigated them to cause the murder of Chitravel. 2. The learned Sessions Judge, while acquitting A.1 to A.3 under Section 148 IPC and A.4 to A.6 under Section 147 IPC., also acquitted A.4 and A.5 under Section 302 read with 149 IPC. and A.6 under Section 302 read with 109 IPC. He found A.1 guilty under Section 302 under charge No.4 and A.2 and A.3, though were also charged under the said charge, were found guilty only under Section 324 IPC. A.1, though was charged under charge No.3 under Section 302 IPC. on an allegation that he caused the death of Thiruvanandhaperumal, the learned Sessions Judge acquitted him of the said charge holding that Thiruvanandhaperumal died not on account of the injury sustained by him; but on account of natural casus and the learned Judge held him guilty for offence punishable under Section 326 IPC., since according to the prosecution, the injuries, which Thiruvanandhaperumal suffered at the hands of A.1, were grievous in nature. On being convicted under charge No.4 for the offence of murder, A.1 was sentenced to imprisonment for life and for the offence under Section 326 IPC. he was directed to suffer rigorous imprisonment for a period of five years. A.2 and A.3, who were convicted under Section 324 IPC. On being convicted under charge No.4 for the offence of murder, A.1 was sentenced to imprisonment for life and for the offence under Section 326 IPC. he was directed to suffer rigorous imprisonment for a period of five years. A.2 and A.3, who were convicted under Section 324 IPC. under charge No.4, were each sentenced to three years rigorous imprisonment and the appeals are against the said conviction and sentence. 3. The facts necessary to dispose of the appeal can be briefly summarised as follows:- The deceased, Chithiravel and Thiruvanandhaperumal, are brothers. P.W.1 is the son of Thiruvanandhaperumal. P.Ws.5 and 6 are the brothers of the deceased. A.1 and A.2 are brothers and A.3 is their neighbour. They are residents of Puviyur. The deceased and P.W.1 were carpenters by profession. P.W.1 was living with his parents. At about 6.30 a.m. on 14.2.1993 he found his cycle missing from the compound wall. He questioned the neighbours; but they could not give any information about the missing of the cycle. At about 7.30 a.m. P.W.1, accompanied by the deceased and Thiruvananthaperumal, went to the tea stall along with P.W.2. At the tea stall, he found all the six accused, who were taking tea. P.W.2 told A.5 that the cycle of P.W.1 is found missing and questioned them whether anyone had seen it. A.1 took objection to the manner in which they were questioned, asking the witnesses as to why they suspect them to be the thieves. He also threw the glass, which he was having in his hand, which fell on P.W.2 and caused an injury on his forehead. The deceased and Thiruvanandhaperumal, pacified the parties and they were returning to their house. When they were proceeding near Sivan Koil Street and were nearing the house of P.W.5, Samuthrapandian, A.1 to A.6 came from behind. A.1, who had a vetaruval kept concealed, took it out and cut Thiruvanandhaperumal on the left shoulder and on the stomach. A.1 inflicted another cut on the deceased, Chithiravel, on the back of his head and also inflicted two more cuts on the stomach and on the right knee. The deceased fell down. A.3 cut the deceased, Chithiravel, on the right hand and also on the right forearm. A.2 cut him on the face near the nose. P.W.1 raised alarm and asked them not to cut them. The accused threw stones. A crowd gathered. The deceased fell down. A.3 cut the deceased, Chithiravel, on the right hand and also on the right forearm. A.2 cut him on the face near the nose. P.W.1 raised alarm and asked them not to cut them. The accused threw stones. A crowd gathered. A.6 was heard shouting not to leave any of them alive. On seeing the crowd gathering, A.1 to A.3 ran away towards west followed by A.4 to A.6. P.W.2 also ran away from the place. P.W.3 and others were also standing there. Thiruvanandhaperumal and the deceased, Chithiravel, were placed in a taxi and taken to Thamaraikulam Police Station, where Thiruvanandhaperumal gave a complaint, Ex.P.12, to P.W.13, the Head Constable, who registered a case in Crime No. 38 of 1993 under Sections 147, 148, 307 IPC. Ex.P.13 is a copy of the printed first information report. The express reports were sent to the higher officials. P.W.2 was sent to the hospital by the police. 4. P.W.17, the Inspector of Police (Law and Order), Suchindram Circle, took up investigation in the crime and reached the scene of occurrence at 11.15 a.m., where an observation mahazar, Ex.P.2, was prepared in the presence of P.w.8. A rough sketch, Ex.P.16 was also drawn. M.os.1 and 2, the blood-stained earth and sample earth respectively, which were found in front of the house of P.W.5 were seized under a mahazar Ex.P.3. At 12.10 p.m., he seized the blood-stained earth and sample earth from other places in Sivan Koil Street under a mahazar Ex.P.4. He went to Kottar Government Hospital and recorded the statements of Chithiravelu and Thiruvanandhaperumal. Thereafter, he questioned P.Ws.1 to 6, 8 and 13 and recorded their statements. At about 6.30 p.m. an information was received by him that Chithiravelu, who was undergoing treatment at hospital, died and on receipt of the death intimation, Ex.P.17, the crime was altered to one under Section 302 IPC. Ex.P.18 is the express report in the altered crime. On 15.2.1993 in the presence of Panchayatdars, inquest was conducted over the body of Chithiravelu between 7.30 a.m. and 9.30 a.m. and at the time of inquest, P.Ws.1 and 5 were questioned and their statements were recorded. Ex.P.19 is the inquest report. Thereafter, a requisition, Ex.P.14, was issued to the doctor for conducting autopsy. 5. On 15.2.1993 in the presence of Panchayatdars, inquest was conducted over the body of Chithiravelu between 7.30 a.m. and 9.30 a.m. and at the time of inquest, P.Ws.1 and 5 were questioned and their statements were recorded. Ex.P.19 is the inquest report. Thereafter, a requisition, Ex.P.14, was issued to the doctor for conducting autopsy. 5. On receipt of the requisition, P.W.16, the Civil Assistant Surgeon attached to Government Head Quarters Hospital, Nagercoil, conducted autopsy on the body of Chithiravel and he found the following external injuries:- 1.Sutured wound over the right knee joint 8 cm in length. 2.Sutured wound over the left side neck and back of the head (behind left ear) vertical 8 cm in size. 3.Sutured swound left side of the nose and cheek 2 cm in size. 4.Sutured wound over the right forearm – lower third – radial border – dorsal aspect 9 cm in length. 5.Sutured wound over right hypochordium 6 cm in length. 6.Sutured wound left upper arm 4 cm vertical direction. Middle 1/3rd. He issued Ex.P.15, the post-mortem certificate, with his opinion that the deceased would appear to have died of hypovalamic shock due to head injury and multiple injuries and death would appear to have occurred about 17 to 18 hours prior to autopsy. 6. In the meantime, P.W.17, continuing with his investigation, seized the blood-stained clothes of Thiruvanandhaperumal, and Chithiravel, M.Os.5 and 6 respectively, and on 17.2.1997 he arrested A.1, A.3, A.5 and A.6 near Punnaiyadi Kannimarkulam. A.1 gave a statement and in pursuance of the admissible portion, Ex.P.20, given by him, A.1 took the police party and produced M.O.7, weapon, which was seized under a mahazar Ex.P.20. He was later sent to Court for remand. At 9.30 p.m. on 18.2.1993 he arrested A.4 and he was sent to Court for remand. On 24.2.1993 he arrested A.2 and he was also sent to court for remand. The material objects were sent to Court with a requisition to forward them for analysis. Exs.P.24 and .P.25 are the reports of the chemical analyst and the serologist respectively. 7. In the meantime, Thiruvananthaperumal, who was undergoing treatment at Kotar Government Hospital, died on 24.4.1993 at 8.00 a.m. and death intimation was sent by the medical authorities to the police. The material objects were sent to Court with a requisition to forward them for analysis. Exs.P.24 and .P.25 are the reports of the chemical analyst and the serologist respectively. 7. In the meantime, Thiruvananthaperumal, who was undergoing treatment at Kotar Government Hospital, died on 24.4.1993 at 8.00 a.m. and death intimation was sent by the medical authorities to the police. On receipt of the intimation, P.W.12, the Trainee Inspector of Police, Suchindram Circle, proceeded to the hospital and conducted inquest over the dead body of Thiruvanandhaperumal between 10.30 a.m. and noon. Ex.P.11 is the inquest report. At the time of inquest, P.Ws.1 to 6 were questioned and their statements were recorded. Thereafter, a requisition was issued to the doctor for conducting autopsy. 8. On receipt of the requisition, P.W.9, the Assistant Surgeon attached to Government Head Quarters Hospital, Nagercoil, conducted autopsy on the body of Thiruvanandhaperumal and found the following:- 1.Bed sore wound over the Sacral region irregular shape of about 4" x 5" bone xposed pus present. 2.Wound No.1: Bed sore over the right hip exposing hip joint irregular shape of about 4" x 3" pus present. 3.Wound No.3: Healed wound scar over the left shoulder at the level of spine of the left scapula on deep dissection. 4.Wound No.3: Fracture of the spine on the left scapula at the upper end (towards the shoulder joint) present. On deep dissection of the spine from cervical to T5 spinal cord – nothing abnormal detected. The doctor issued Ex.P.6, the post-mortem certificate, with his opinion that the deceased appeared to have died of septicemia due to infected bed sores caused by prolonged bed ridden due to injuries sustained. 9. In the meantime, further investigation was taken up by P.W.17's successor-in-office, P.W.18, who on taking up investigation and after verifying the investigation conducted by P.W.17, questioned P.Ws.14 and 15 and recorded their statements and filed the final report against the accused on 8.3.1996. 10. When questioned under Section 313 of the Cr.P.C. on the incriminating circumstances appearing against them, all the accused denied all the incriminating circumstances. They did not examine any witness on their side, nor did they file any written statement. 11. The case of the prosecution is that Thiruvananthaperumal died on account of homicidal violence and A.1 was charged under Section 302 IPC. under charge No.3 for the said death of Thiruvanandhaperumal. They did not examine any witness on their side, nor did they file any written statement. 11. The case of the prosecution is that Thiruvananthaperumal died on account of homicidal violence and A.1 was charged under Section 302 IPC. under charge No.3 for the said death of Thiruvanandhaperumal. To prove the said fact, the prosecution examined P.W.9, the doctor, who conducted autopsy and who issued Ex.P.6, the post-mortem certificate. The doctor, in his evidence, has stated that at the time of post-mortem, he found healed injuries and that the deceased died on account of bed sores and he also did not find any internal injury corresponding to external injury No.3 and since the doctor came out with a version that Thiruvanandhaperumal died not on account of the injuries sustained; but on account of natural causes, the learned Sessions Judge has rightly acquitted A.1 under Section 302 IPC. under the said charge. Instead, the learned Judge found him only guilty under Section 326 IPC. by holding that he has caused grievous injury to Thiruvanandhaperumal. The prosecution examined P.W.16, the doctor who conducted autopsy on the body of Chithiravel, to establish the cause of death of Chithiravel, by coming out with a version that Chithiravel died on account of homicidal violence. P.W.16, in his evidence, stated that he conducted autopsy on the body of Chithiravel and found the injuries, which he noted in Ex.P.15, the post-mortem certificate, and according to him, Chithiravel would have died on account of external injuries 1, 2 and 5 with their corresponding internal injuries. On the medical evidence, we hold that Chithiravel died on account homicidal violence, which is not disputed by the defence. 12. The prosecution before the trial Court examined P.Ws.1 to 6 as eye witnesses to the incident. Of them, P.Ws.2 and 3 turned hostile and therefore, the prosecution had to rely upon the evidence of P.Ws.1, 4, 5 and 6 alone. 13. The learned counsel appearing for the appellants strenuously contends that in view of the evidence of P.Ws.4, 5 and 6, it cannot be said that they were witnesses to the incident. In support of his plea, he drew our attention to the admission made by P.W.4 in the cross-examination. 13. The learned counsel appearing for the appellants strenuously contends that in view of the evidence of P.Ws.4, 5 and 6, it cannot be said that they were witnesses to the incident. In support of his plea, he drew our attention to the admission made by P.W.4 in the cross-examination. P.W.4, though, in chief, stated that he saw the accused attacking Chithiravel, in cross-examination admitted that he came to Sivan Koil Street and on hearing the cries, he went to the scene and found two persons lying with injuries on the road and that he took the injured persons to the hospital. He has also admitted that he did not tell the police that he saw Chithiravel being cut by A.1. He was not treated hostile. Therefore, the evidence of P.W.4 is not useful to the prosecution in view of his admission in cross-examination that he came to the scene of occurrence after the incident and that he did not also inform the police during the course of investigation that he was an eye witness to the incident. 14. We are also unable to accept the evidence of P.W.5. P.W.5, in chief itself, has stated that while he was in the house, he heard some noise and therefore, came out of the house only to find Chithiravel and Thiruvanandhaperumal lying on the ground. According to him, P.Ws.1, 3 and 4 were present at the place. But, we are unable to accept the prosecution version on the basis of the evidence of P.W.5 to hold the accused guilty, since by his own admission, he came out of the house after the incident and at best, the evidence can be considered only to find out whether P.W.1 was present at the scene of occurrence for him to have witnessed the incident. We are unable to accept P.W.5's evidence even to hold that P.W.1 was present at the time of incident and witnessed the incident, since the investigating officer, P.W.17, admitted in cross-examination that P.Ws.4 to 6 did not mention the presence of P.W.1 at the scene of occurrence, when they were examined during the course of investigation and that he did not also mention the name of P.W.1 as one of the witnesses to the incident in the inquest report, Ex.P.19, prepared by him. Therefore, the evidence of P.W.5 is not useful to the prosecution to establish that he was an eye witness to the incident and that P.W.1 was present at that time. Since P.W.5 himself is not an eye witness and by his won admission, came after the incident, he is not competent to say that P.W.1 has witnessed the incident and in view of the admission of P.W.17, which we have also extracted, it is difficult to hold that P.W.5 found P.W.1 witnessing the incident and therefore, we do not place any reliance upon the evidence of P.W.5 to hold the accused guilty or even to hold that P.W.1 was present. 15. Similarly, we are unable to accept the evidence of P.W.6 to hold that he witnessed the incident, in view of the admission of P.W.17 in the cross-examination. As we stated earlier, P.W.17 has admitted in cross-examination that P.W.6, in his statement, did not say that he saw A.1 stabbing the deceased. Therefore, P.W.6, who had no case that he saw the occurrence, during the course of investigation but later came out with a version that he saw A.1 stabbing the deceased, which shows that he was made to improve his version in Court. This improvement by P.W.6, therefore, creates a doubt in the mind of the Court about the veracity of his version. In this background, the fact that the statements of P.Ws.1 to 6 reached the Court only on 25.4.1993 assumes importance. If P.Ws.1 to 6 were really eye witnesses, then there is no explanation as to why their statements should reach the Court belatedly, that too, after two months, for which there is no explanation. This creates a doubt in the mind of the Court that these witnesses could not have been examined on the date of incident. 16. In this background, we have to refer to the evidence of P.Ws.3 and 5, who, in cross-examination, admitted that when they came out of the house, they found all the houses of the accused damaged and that they are unable to say as to how these houses were damaged. This shows that the occurrence could not have taken place in the manner suggested by the prosecution. 17. We will now take up the evidence of P.W.1 to find out whether he could have been present at the scene of occurrence. This shows that the occurrence could not have taken place in the manner suggested by the prosecution. 17. We will now take up the evidence of P.W.1 to find out whether he could have been present at the scene of occurrence. P.W.1, in cross-examination, admitted that on hearing the cries, he went to the place and found his father, Thiruvananthaperumal, and his junior paternal uncle, Chithiravel, lying on the road and that thereafter, they were removed to the hospital. This admission of P.W.1, therefore, shows that he came to the scene of occurrence, much later to the incident and in this background, the admission of P.W.17 that neither P.W.4, nor P.W.5, nor P.W.6 have stated that P.W.1 was present at the scene of occurrence, when they were examined under Section 161 Cr.P.C., clearly indicates that P.W.1 could not have been present and would have come to the scene much later. The suggestion made to P.W.1 is to the effect that he was not present at the scene of occurrence and he came to the scene only on coming to know of the incident and the said suggestion, in our view, is not without any substance, in view of the admission of P.W.1 in cross-examination and in view of the evidence of P.W.17 that neither P.W.4, nor P.W.5 nor P.W.6 mentioned about the presence of P.W.1 at the scene. 18. We are unable to look at Ex.P.12, the statement made by Thiruvanandhaperumal, in view of the evidence of the doctor that Thiruvanandaperumal died of natural causes and not on account of the injury sustained. The statement of a person, who is dead, can be taken and considered relevant under Section 32 of the Evidence Act only if it relates to the cause of death or as to any of the circumstances of the transaction, which resulted in his death and if the person dies of natural causes, the statement of that person cannot be made admissible under Section 32 of the Evidence Act. The Supreme Court in MOTI SINGH -vs- STATE OF U.P. (AIR 1964 SUPREME COURT 900 has held that Clause (1) of S.32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and in cases in which the cause of that person's death comes into question and when the cause of death of that person is not proved to have died on account of the injuries received by him in the incident, his statement relating to that incident cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. A Division Bench of this Court in KALIMUTHU AND PALANISAMY -vs- STATE (1989 L.W.(CRL.) 295), relying upon a judgment of Mysore High Court, took a similar view. We, therefore, hold that Ex.P.12, alleged to have been given by Thiruvanandhaperumal to P.W.13, is not a statement admissible under Section 32 of the Evidence Act and cannot be made use of by the prosecution. 19. Similarly, though P.W.17 claimed that he examined the deceased, Chithiravel, at the hospital, the said statement was not marked by the prosecution. It is also doubtful whether, the deceased, Chithiravel, could have been in a position to give a statement to the doctor, in view of the admission of P.W.1, who in his evidence, has stated that Chithiravel was unconscious after the receipt of the injuries and died in that stage and he never regained his conscious till his death. In view of this admission of P.W.1, the evidence of the investigating officer that he recorded the statement of the deceased, Chithiravel, which is also not marked in the case, cannot be made use of by the prosecution to find the accused guilty. 20. On the above reasons, we do not place any reliance upon the evidence of P.Ws.1, 4 and 6 to find the accused guilty and they are, accordingly, acquitted. Both the appeals are allowed. It is reported that A.1 is in jail. He is directed to be released forthwith unless he is wanted in connection with any other case. It is also reported that A.2 and A.3 are on bail. Both the appeals are allowed. It is reported that A.1 is in jail. He is directed to be released forthwith unless he is wanted in connection with any other case. It is also reported that A.2 and A.3 are on bail. Their bail bonds shall stand cancelled.