Judgment :- The appellant, who is the first accused (A1) in S.C. No. 153 of 1993 on the file of II Additional Sessions Judge, Tiruchirapalli, along with three other accused, were tried before the learned Sessions Judge for the offence under Sections 302 read with Section 34 IPC. and 506 II I.P.C. for committing murder. 2. The learned Judge, on convicting A1 for the offence punishable under Section 326 IPC., sentenced him to undergo rigorous imprisonment for five years and acquitted A2 to A4 of all the charges. Hence, the appeal. 3. The case of the prosecution is as follows: On 3.5.1992, P.Ws.1 to 4 went to Rukmani Theatre at Uraiyur to view the second show cinema. At that time, a quarrel ensued between A1 to A4 on one side and P.Ws.1 to 4 on the other side which resulted in a panchayat; that on 4.5.1993 at about 8.30 p.m., when they were proceeding for panchayat, A1 along with the other accused, with an intention of causing death to the witnesses, attacked Ramalingam, the deceased in the case, who accompanied the witnesses, with a knife and caused injury to him; that at that time, A2 and A3 caught hold of the deceased, Ramalingam, to enable A1 to stab him; that A1 stabbed the deceased on the thigh and just below abdomen; that the deceased was immediately admitted in the hospital and at 9.30 p.m he succumbed to injury on the same day. 4. P.W.1, Balu, who gave First Information Report in this case, though has stated that on 04.05.1992 at about 8.30 p.m. when he was proceeding with the deceased Ramalingam and three others for a panchayat in relation to the quarrel, which took place on the previous day, in front of A.1's Shop, an altercation has arose and in that altercation A2 and A3 caught hold of the deceased Ramalingam and A.1 stabbed the deceased with the knife and caused injury to him. Immediately, they took the deceased to the hospital and thereafter he went to the police station and gave a complaint. But before the Court as P.W.1, he has denied having stated so. Therefore, he was treated as hostile. Similarly, P.Ws.3 and 4, also turned hostile. 5. Immediately, they took the deceased to the hospital and thereafter he went to the police station and gave a complaint. But before the Court as P.W.1, he has denied having stated so. Therefore, he was treated as hostile. Similarly, P.Ws.3 and 4, also turned hostile. 5. P.W.2, Kannan, gave evidence and stated that he is residing at Telugu Chetty street, Trichy; that he knew P.W.1, A1, A2 and the deceased Ramalingam; that he knew about the occurrence, which took place on 04.05.1992; that he did not have any problem with the accused; that one day prior to the date of occurrence, there was some altercation between A2 and P.W.1 and another, which resulted in a Panchayat and to attend the said Panchayat P.W.2 went there; after the panchayat, when he was returning, he heard a sound and when he went back to the place of panchayat, he found Ramalingam with injury on his thigh; that A.1 was standing nearby with a knife; A.2 to A.4 were also there at that time; that P.W.1, one Krishnamurthy residing at Telugu Chetty Street and Ramalingam were present on the spot; that he went to the police station to give a complaint; that the injured was taken to the hospital by somebody; that after closing his shop, he came to know that Ramalingam died and that police seized the blood stained clothes of the deceased and P.W.1 under Ex.P.2 mahazar attested by P.W.2. 7. P.W.5, Rajadurai, deposed that he is residing at Mettu street; that on 4.5.1992 at about 11.30 p.m., police came to the scene of occurrence and prepared observation mahazar Ex.P.3 attested by himself and others and that the police seized blood stained earth under Ex.P.4; and marked the sample earth as M.O.3, blood stained earth as M.O.4. 8. P.W.6, Helper, working in Trichy Municipality, gave evidence and stated that there was no power cut throughout the day on 4.5.1992 and that he was examined by the police. 9. P.W.7, Dr. 8. P.W.6, Helper, working in Trichy Municipality, gave evidence and stated that there was no power cut throughout the day on 4.5.1992 and that he was examined by the police. 9. P.W.7, Dr. Kandasamy, who is now working in Government Hospital, Srirangam, deposed that when he was working in Government Headquarters Hospital at Trichy, on 4.5.1992 at about 9.15 p.m., one Ramalingam was brought to the hospital by his brother Mani and that he examined the said Ramalingam, who said that he was stabbed by a known person at about 8.30 p.m. at Thiruthanthoni road; he found an incised wound measuring 7 cm x 5 cm x depth on the right side of the lower abdomen; that after some time, the patient gasped and became unconscious; that he was given first aid; that the patient Ramalingam was admitted in the Accident and Emergency Ward; Ex.P.5 is the copy of Accident Register; that the patient Ramalingam died at about 9.30 p.m on the same day and that thereafter, the doctor sent death intimation under Ex.P.6 to the Police Station. 10. P.W.8, Head Constable, deposed that on 4.5.1992 at about 09.20 p.m, he received Ex.P.6, death intimation, from Trichy Government Headquarters Hospital and went to the hospital and found Ramalingam dead. He examined P.W.1 and recorded his statement under Ex.P.8 (Ex P.8 was marked subject to objections). P.W.8 returned to the Police Station and registered a case in Crime NO. 390 of 1992 under Sections 341 and 302 IPC on the basis of Ex.P.8 and prepared first information report, Ex.P.9. He sent the originals to the Court and the copies to the higher officials. Further investigation was taken up by the Inspector of Police. 11. P.W.9, the Inspector of Police, went to the Government Hospital and held inquest over the dead body in the presence of witnesses on 5.5.1992 at about 10.30 a.m. and prepared inquest report under Ex. P.16 and he sent the body for postmortem. 12. P.W.11, Dr. Sivasubramanian, deposed that when he was working in Trichy Government Headquarters Hospital, he received a requisition from the Inspector of Police, Woraiyur on 5.5.1992 at about 11.15 a.m. to conduct autopsy on the dead body of the deceased, Ramalingam, and he conducted autopsy on the death body of the deceased Ramalingam at about 11.30 a.m. and found the following injuries: "6 cm x 3 cm incised wound just below (R) inguinal ligament. Depth 3 cm. oblique – medial end lower than lateral end by 1 cm. The ® adductor longus is cut at its lateral end. The pectineous iliopsoas completely severed. The scrotum (R) medial end is severed. The femoral artery and arterial profonda are completely severed. The proximal end is seen. The distal end retracted. The femoral vein and nerves severed.” The doctor opined that the deceased would appeared to have died of shock and haemorrhage due to injuries sustained about 12 to 16 hours prior to post mortem. He issued the postmortem certificate under Ex. P.14. 13. P.W.12, who was working as Inspector of Police in Woraiyur Police Station at the time of occurrence, stated that on 4.5.1992 at about 11.30 p.m. on the basis of the first information report, took up the case for investigation; that he went to the scene of occurrence at about 11.45 p.m. on the same date; that he prepared observation magazar under Ex.A.3; that he prepared a sketch under Ex.P.15; that he seized the sample earth and blood stained earth under M.O.4 and M.O.3, respectively, in the presence of the witnesses. He also seized M.O.1, blood stained shirt and M.O.2, lungi, in the presence of witnesses. He held inquest over the dead body and prepared inquest report, Ex.P.15 that P.W.12 also examined P.W.3, P.W.4, Babu and Mani and recorded their statements; that A1 Kumar surrendered before learned Magistrate, Pattukkottai on 6.5.1992; that P.W.12, examined Dr. Kandasamy and Dr. Sivasubramanian on 8.9.1992 and recorded their statements; that on 11.5.1992, A2 surrendered before the Judicial Magistrate, Ariyalur; that on 15.5.1992, the Sub Inspector of Police arrested A.3 and A.4 and produced them for judicial custody; that on 10.06.1992 he examined P.W.6 and recorded his statement; that he sent the seized articles for chemical analysis on 10.06.1992 and that charges were framed against the accused on 24.08.1992. 15. When questioned under Section 313 of Code of Criminal Procedure, on the incriminating circumstances appearing against the accused, he denied all the circumstances and stated that a false case had been foisted against him. 16. The case of the prosecution is that the deceased Ramalingam died on account of the stab injury inflicted by A1. To prove the same, P.Ws. 1 to 4 were examined and of them, P.Ws.1,3 and 4 turned hostile. 16. The case of the prosecution is that the deceased Ramalingam died on account of the stab injury inflicted by A1. To prove the same, P.Ws. 1 to 4 were examined and of them, P.Ws.1,3 and 4 turned hostile. P.W.2 has stated that on 4.5.1992 about 8.30 p.m. when they were proceeding along Thiruthanthoni Road the incident had occurred. P.W.2 has also attended the panchayat. At that time, he heard a sound and went back to the place where panchayat, was held; he found Ramalingam with injury on the thigh. At that time he saw A.1 standing nearby with a knife. A.2 and A.4 were also present at the scene. Thereafter he proceeded to the police station to give a compliant. The injured was taken to the hospital by some other person. 18. P.W.7, Dr. Kandasamy, has stated that on 4.5.1992 at about 9.15 p.m., the injured Ramalingam was brought to the hospital by his brother Mani. He found one injury on the upper portion of the thigh. After his examination, the patient became unconscious. The injured told the doctor that he was stabbed by a known person. Thereafter he was admitted to the hospital and on the same day at about 9.30 p.m, he died in the hospital. 19. P.W.8, who was the Head Constable of Woraiyur Police Station, received information about the injury sustained by Ramalingam. He proceeded to the hospital immediately. When he reached the hospital, Ramalingam was dead. After getting death intimation, he recorded the statement, Ex.P.8, from P.W.1. He returned to the police station and registered a case under Crime NO. 390 of 1992 under Section 302 read with 34 of IPC and prepared Express First Information Report and sent the same to the Court as well as to the Higher Officials. 20. P.W.12, the Inspector of Police on receipt of complaint, took up investigation at about 11.30 p.m. on the same day and went to the scene of occurrence at about 11.45 p.m and prepared observation magazar and seized blood- stained earth and sample earth from the scene of occurrence under M.Os. 4 and 3, respectively. At 1.30 a.m. he went to the General Hospital and examined P.W.1. Thereafter he examined P.W.2. He gave a requisition for conducting autopsy and sent the body along with the Constable, P.W.9. 21. 4 and 3, respectively. At 1.30 a.m. he went to the General Hospital and examined P.W.1. Thereafter he examined P.W.2. He gave a requisition for conducting autopsy and sent the body along with the Constable, P.W.9. 21. P.W.11, the doctor, conducted postmortem and issued Ex.P.14, postmortem certificate, and he opined that the injured ought to have died due to injury sustained by him and the injuries are sufficient to take away his life. 22. The trial Court, after considering the evidence on record, convicted A.1 under Section 326 of Indian Penal Code and sentenced him to undergo five years rigorous imprisonment. Aggrieved by the conviction and sentence, this appeal has been filed. 23. Learned counsel appearing for the accused submitted that there is absolutely no evidence to prove that A.1 has committed an offence under Section 326 of IPC. The only evidence available on record is that of P.W.2, who has stated that he saw the deceased with injuries and A.1 was standing nearby with a knife. Apart from this, there is no other evidence. He has not even stated as to the size of the knife and the knife was blood stained. The knife was not recovered at all. Therefore, merely because the person was found to be standing with the knife near the injured, it cannot be concluded that he is the person, who caused injury on the victim. 24. Learned counsel further submitted that the learned Sessions Judge relying upon Ex.P.8, the first information report, given by P.W.1, has held that it was A.1, who caused injury to the deceased. The First Information Report is not a substantive piece of evidence and, therefore, the contents of the first information report cannot be relied upon and on that basis, the conviction cannot be sustained. 25. I find some force in the argument of the learned counsel for the appellant. There is absolutely no evidence except the evidence of P.W.2. Even P.W.2 stated that he saw A.1 standing nearby the deceased with the knife. No where he has stated that he saw the knife with blood stains. Further, he has stated that even after seeing Ramalingam found injured, he did not accompany him to the hospital though he is a friend of him, but he went to the police station to give a complaint. No where he has stated that he saw the knife with blood stains. Further, he has stated that even after seeing Ramalingam found injured, he did not accompany him to the hospital though he is a friend of him, but he went to the police station to give a complaint. According to him, he went to the police station, informed the police and gave a complaint and thereafter finding no time, he proceeded to the hospital and there he gave the First Information Report and only thereafter P.W.1 gave a complaint to P.W.8. P.W.1 denied this portion of the evidence of P.W.2. 26. Further, if the learned Judge was convinced that the statement given by P.W.1 before police under Ex.P.8 was true, he should have convicted A.1 under Section 302 IPC. But instead, he acquitted A.1 of the offence under Section 302 IPC and there is no reason to convert the offence into 326 IPC, considering the nature of injuries sustained by him. Therefore, the findings of the learned Sessions Judge are not acceptable as legal and valid. Even to convict A1 under Section 326 IPC, there is no sufficient evidence to hold that it was A.1, who caused injury on the deceased. P.W.2 also does not state that it was A.1, who caused injury. Under the circumstances it is only on the basis of surmise and suspision, it has been held by the learned Sessions Judge that A.1 caused the injury. This finding of the learned Sessions Judge is not legal. The evidence is not sufficient to hold that it was A.1, who caused injury on the deceased. There is absolutely no evidence to conclude that it was A.1, who caused the injury on the deceased. Therefore, the conviction of A.1 under Section 326 of Indian Penal Code is not legal and, therefore, conviction and sentence are set aside and A.1/appellant is acquitted. 27. In the result, the appeal is allowed.