Judgment :- A.S.VENKATACHALAMOORTHY, J. The Appellants in the above appeals were tried in S.C.No.99 of 1998 on the file of the Additional Sessions Judge, Kanyakumari at Nagercoil in connection with the murder of one Antony Chandra on 17.1.1997 at 7.30 p.m. in the hotel known as New Pandian Cafe in Kanyakumari. They were charge sheeted for the offences under Section 302 read with 149 I.P.C. etc. The trial Judge found the second accused guilty under Section 302 I.P.C. etc., and A-1, A-3 to A-5 guilty under Section 302 read with 149 I.P.C. etc. The accused were sentenced to undergo life imprisonment for the conviction under Section 302 (against A-2) and under Section 302 read with 149 I.P.C. (against A-1, A-3 to A-5) and lesser sentences were awarded in respect of other offences. 2. C.A.87 of 2000, 538 of 2000 and 999 of 1999 have been filed by A-1, A-2 and A-5 respectively questioning the correctness of the judgment of the trial Judge. C.A.No.16 of 2000 has been filed by A-3 and A-4. 3. The case of the prosecution is as follows, (a) PW-12 Kennady is the son of the deceased. PW-1 Selvam is the close friend of the deceased and he used to go and help the deceased in his running the hotel business. PW-3 Sahayadhas is a resident of Arockiapuram. All the accused are auto-rickshaw drivers. (b) About 2½ years prior to the occurrence, as a person in the village was unwell, PW-3 came to the point where the road takes a turn in Arockiapuram, when he saw A-3 dropping a passenger near a hotel. PW-3 approached A-3 to hire the said auto-rickshaw, but however A-3 told that he could come only after taking his food in the hotel. PW-3 questioned A-3 about his conduct in not giving importance to the sick person and preferring to take his food and in this regard there was a wordy quarrel. The persons, who were present nearby, pacified them. After the incident, PW-3 felt sad over the incident and he went to the auto stand after two days to meet A-3 to tender his apology. But however, A-3 was not there and only A-1 was present. (c) One week thereafter, PW-3 desired to take his friend, who had come from Kollam, around the city. At that time he saw A-3 coming in an auto-rickshaw. But however, A-3 was not there and only A-1 was present. (c) One week thereafter, PW-3 desired to take his friend, who had come from Kollam, around the city. At that time he saw A-3 coming in an auto-rickshaw. PW-3 informed A-3 about his earlier attempt to meet him to tender his apology. A-3 did not respond to what PW-3 said and he had left the place. On the same day, at about 6.30 p.m., PW-3 after giving send-off to his friend, came near Shankar Lodge and got down from the bus for the purpose of going to another place to meet a person. Before he could take four or five steps, A-2 and A-3 parking the auto-rickshaw in front of him, beat him with hands. PW-3 then told them that it is not fair on their part to beat him even after tendering apology. At that time, PW-4 and Antony Chandra (deceased) came from the coffee hotel (i.e.) New Pandian Cafe and pacified and separated them. Thereafter, Antony Chandra went back to the hotel. (d) Shortly thereafter, all the five accused came to the shop in an auto-rickshaw and came inside the shop, dragged the deceased outside the shop shouting, "ePjhdlh v';fis tpyf;F jPh;j;jha; js;isa xHp A-2 further said that the deceased will be finished off on that day. A-2 stabbed the deceased on the stomach and A-1 with a knife in his hand, attacked on the right shoulder, right thigh and left knee and because of which the deceased sustained bleeding injuries. PW-1 then asked the accused as to why they have stabbed the deceased. A-2 saying to PW-1 that he can also receive one, stabbed PW-1, which fell on the left wrist of PW-1. When the deceased and PW-1 shouted, the accused ran away. Before so doing, A-3 to A-5 damaged the table, chair, glass box, etc., in the hotel. The employee in the shop by name one Raju and another boy working in the adjoining shop by name Andrews witnessed the entire occurrence. The wife of the deceased and his son reached the scene of occurrence 15 minutes thereafter. PW-12, the son of the deceased hired a taxi and in that taxi, the deceased and PW-1 were taken to the Government Headquarters Hospital. The wife of the deceased and his son reached the scene of occurrence 15 minutes thereafter. PW-12, the son of the deceased hired a taxi and in that taxi, the deceased and PW-1 were taken to the Government Headquarters Hospital. (e) PW-6 Dr.Ramachandran is the Civil Surgeon at the Government Head Quarters Hospital, Nagercoil, who examined the deceased at about 9.20 p.m. on 17.1.1997 and to whom the deceased informed that he was attacked by three known persons with aruval and knife at about 7.30 p.m. The deceased was conscious and he was able to answer the questions of the Doctor at that time. The deceased was admitted as inpatient. PW-6 sent an intimation Ex.P-10 to the Police station at 9.45 p.m. and the same was received by the Sub Inspector of Police at 10.00 p.m. Ex.P-11 is the wound certificate issued by the Doctor. Thereafter, the Doctor examined PW-1 at about 9.30 p.m. and on whom he noticed single incised wound. PW-1 informed the Doctor that he was attacked by known persons, whom he can identify, with knife. Ex.P-12 is the wound certificate issued by the Doctor with respect to the wounds on PW-1. (f) PW-11 Subramaniam, Head Constable in the Police Station received telephonic information from Kottar Police Station at about 9.00 p.m. and proceeded to the said Police station and received the intimation. Then he proceeded to the Government Head Quarters Hospital and at about 10.15 p.m., recorded the statement of PW-1. As the deceased was in the surgery ward, he could not examine him. Thereafter, he went back to the police station and at about 11.00 p.m., registered a case in crime No.19 of 1997 under Section 147, 148, 324, 427, 307 I.P.C. and sent copies of the first information report to his superiors and to the Court of Judicial Magistrate. Ex.P-20 is the printed first information report. (g) The Inspector of Police proceeded to the scene of occurrence and reached there at 00.30 hours on 18.1.1997 and prepared observation mahazar Ex.P-2 and sketch Ex.P-21 in the presence of witnesses. Thereafter, in the afternoon at about 1.30 p.m., from the scene of occurrence, recovered glass pieces, wooden pieces under mahazar. Subsequently at about 3.00 p.m., went to Kottar Government Head Quarters Hospital and enuired PW-1 and the deceased, after obtaining permission of the Doctor. He recovered Mos.1 and 2 cloths of the deceased at that time. Thereafter, in the afternoon at about 1.30 p.m., from the scene of occurrence, recovered glass pieces, wooden pieces under mahazar. Subsequently at about 3.00 p.m., went to Kottar Government Head Quarters Hospital and enuired PW-1 and the deceased, after obtaining permission of the Doctor. He recovered Mos.1 and 2 cloths of the deceased at that time. Thereafter he examined two eye witnesses viz., Raju and Andrews and recorded their statements. Other witnesses viz., Sivalingam, Mani and others were also examined. At the hospital, PW-7 Doctor operated the deceased at 1.30 hours on 18.1.1997 and all efforts were taken to save the deceased. However, the deceased died at 2.15 p.m. on 19.1.1997 and Ex.P-13 is the case sheet. At about 2.25 p.m. on 19.1.1997, information was received that the deceased had passed away. The Inspector of Police thereafter proceeded to the hospital and between 3.00 and 4.45 p.m., conducted inquest over the body of the deceased Antony Chandra in the presence of Panchayatdars. Ex.P-22 is the inquest report. Statements of Selvam, Raju, Andrews, Bernard Chandra and Esu Amma were recorded by the Inspector of Police on the same day. The Inspector thereafter took steps to send the body of the deceased to the Government Hospital for the purpose of conducting post mortem. The charge originally registered under Section 307 I.P.C. was altered as one under 302 I.P.C. and express F.I.R. was sent to the Court. The Inspector of Police again examined and obtained the statement of Selvam. (h) PW-8 is the Doctor at the Nagercoil Head Quarters Hospital, who conducted post-mortem at the request of the Inspector of Police and the same was commenced at 4.45 p.m. on 19.1.1997. Ex.P-15 is the Post Mortem certificate issued by him. In the said certificate, the Doctor has noted the following:- " Injuries:- 1. Sutured wound right arm lower third lateral aspect transverse 6 sutures in situ, 8 cm. length. 2. Sutured wound over right thigh upper 3rd lateral aspect 5 cm. in length and 5 sutures in situ. 3. Sutured wound over midline of abdomen from epe gastrium to umbilicus 21 cm. in length and 14 sutures in situ. 4. Healed abrasion left knee joint 2 cms. diametere. 5. Surgical wound for drainage with tube and sutures in situ length 2 cm. in right iliac fossa. 6. Surgical wound for drainage with sutures and tube in left iliac fossa. Sutured wound over midline of abdomen from epe gastrium to umbilicus 21 cm. in length and 14 sutures in situ. 4. Healed abrasion left knee joint 2 cms. diametere. 5. Surgical wound for drainage with tube and sutures in situ length 2 cm. in right iliac fossa. 6. Surgical wound for drainage with sutures and tube in left iliac fossa. On dissection on injury No.3 intestine look pale. On examination a) sutured wound in mesocolon 3 sutures in situ length 6 cm. b) sutured wound in transverse colon 4 sutures in 4 situ and 4 cm. in length. c) sutured wound in jejunum 10 sutures in situ 8 cms. in length. d) sutured wound in jejunum 2 feet away from the previous one. 4 sutures in situ and 4 cm. length. e) sutured wound over mesentery 4 cm. in either side 12 sutures in situ." The Doctor has, in the said certificate, opined that injury No.3 is fatal and that injury Nos.5 and 6 are surgical wounds. According to the Doctor, the deceased would appear to have died of shock and haemorrhage. Shock is due to haemorrhage and septicemia is due to extensive injury to intestines. (i) On the following days, various witnesses were examined and their statements were recorded. (j) On 21.1.1997 at about 9 a.m., A-5 was arrested while he was travelling in the Auto-Rickshaw bearing Registration No.TN-74-A-5842. The said Auto-Rickshaw was seized under Ex.P-5 mahazar. However, the same has not been marked as a material object. On 21.1.1997 at about 10.30 a.m., A-4 was arrested while he was driving the Auto-Rickshaw bearing Registration No.TN-74-B-612 (MO-7). The said Auto-Rickshaw was seized under Ex.P-7. A-1 was arrested at about 5.30 a.m. on 26.1.1997 at Vathikottai To Hasthinapur Road. On arrest, he gave a confession statement and the admissible portion of the same has been marked as Ex.P-8. A-1 took the police party to his Aunt's house and produced two knives MOs-3 and 4, which were recovered under Ex.P-9 mahazar. On 28.1.1997, A-3 surrendered himself before Court. Similarly, on 31.1.1997, A-2 also surrendered before Court. The Investigating Officer examined the Doctors and obtained certificates. PW-7, the Doctor, who operated, was examined on 30.4.1997. The trip sheet of the Ambassador Car TD-2493, in which the deceased was taken to the hospital, was seized by the Investigating Officer. After completing the investigation, the Investigating Officer filed the final report before Court. 4. The Investigating Officer examined the Doctors and obtained certificates. PW-7, the Doctor, who operated, was examined on 30.4.1997. The trip sheet of the Ambassador Car TD-2493, in which the deceased was taken to the hospital, was seized by the Investigating Officer. After completing the investigation, the Investigating Officer filed the final report before Court. 4. The prosecution has examined Pws.1 to PW-13, marked Exs.P-1 to P-25 and produced Mos.1 to 7. The accused when questioned under Section 313 of Code of Criminal Procedure, denied any involvement in the commission of the offence. 5. The question for consideration is whether the prosecution has brought home the guilt of the accused/appellants. 6. PW-8 Dr.Nagarajan conducted post mortem on the body of the deceased on 19.1.1997 at about 4.45 p.m. Ex.P-15 is the post mortem certificate issued by him. The nature of injuries as noted by the Doctor has already been referred to in the earlier part of this judgment. The Doctor has opined that injury No.3 is fatal and that the injuries 5 and 6 are surgical wounds. According to the Doctor, the deceased would appear to have died of shock and haemorrhage and that the shock is due to haemorrhage and scepticemia is due to extensive injury to intestines. PW-8 was not subjected to any serious cross examination. Thus, there is abundant evidence available before this Court to come to the conclusion that the death was due to homicidal violence. 7. The case of the prosecution is that there was a quarrel between PW-3 on the one hand and A-2 and A-3 on the other hand near Pandian Hotel and that the deceased and one Francis – PW-4, who were in the said hotel, came out and pacified both the parties and separated them and that the accused left and shortly thereafter all the five accused came in an auto, entered into the hotel, dragged the deceased outside, who was in the cash counter and was attacked by A-1 and A-2 with knife while the other accused ransacked the hotel. PW-1 got injured when he questioned A-1 and A-2 as to why they were attacking the deceased. Further case of the prosecution is that this was witnessed by two persons by name Raju and Andrews. The first information was given by PW-1 at about 10.15 p.m. in the hospital. PW-1 got injured when he questioned A-1 and A-2 as to why they were attacking the deceased. Further case of the prosecution is that this was witnessed by two persons by name Raju and Andrews. The first information was given by PW-1 at about 10.15 p.m. in the hospital. The further case of the prosecution is that the deceased also gave a statement to the Inspector of Police on the next day at about 4.00 p.m. and that he ultimately succumbed to the injuries on the third day that was on 19.1.1997 at about 2.15 p.m. 8. Thus, the only eye witness who has been examined by the prosecution is PW-1. The other two eye witnesses viz., Raju and Andrews, though were examined by the Police and statements and further statements were recorded from them on 18th and 19th respectively, have not been examined before the Court. The reasons for the non-examination are not known. That being so, if the Court comes to the conclusion that the testimony of PW-1 infuses confidence, even though he is close friend of the deceased, the conviction and sentence can be sustained. Even then the question would arise as to whether this Court can, with the available evidence on record, confirm the conviction and sentence as far as A-3 to A-5 are concerned. 9. It is the case of the prosecution that immediately after the occurrence, the deceased and PW-1 were taken to the hospital in a taxi. At the hospital they were examined by the same Doctor viz., PW-6 Dr.Ramachandran. As could be seen from Ex.P-11 and also from the testimony of the Doctor, the deceased was first examined by him and that was at 9.20 p.m. PW-6 is positive that the deceased only told him that he was attacked by three known persons. In Ex.P-11 also the Doctor has made a clear noting that the deceased was conscious and that it was stated to him that the deceased was attacked by three known persons. The Doctor in his cross examination has categorically stated that the deceased told him that he was attacked by three known persons with knife and aruval. PW-6 thereafter examined PW-1 and that was at about 9.30 p.m. He had told the Doctor that he was assaulted by a person whom he can identify and to quote the exact words, "ghh;j;jhy; bjhpaf;Toa egh;". PW-6 thereafter examined PW-1 and that was at about 9.30 p.m. He had told the Doctor that he was assaulted by a person whom he can identify and to quote the exact words, "ghh;j;jhy; bjhpaf;Toa egh;". However, later on, when PW-1 was examined by the Police, he has mentioned the names of A-1 and A-2 specifically and three persons who he can identify if he sees them. It is rather surprising that how within a span of 45 minutes PW-1 was able to give the names of A-1 and A-2. According to the prosecution, PW-1 was attacked by A-2. It has to be noted that not only in Ex.P-1 PW-1 gives the name of A-2, but also gives the details as to the colony wherein A-2 resides. It is not the case of the prosecution that between 9.20 p.m. and 10.15 p.m. on 17.1.1997, PW-1 had occasion to verify from others the name of A-2 and the area where he resides by giving a vivid description of the appearance of A-2. Equally, it is not as if that during that interregnum A-2 was arrested and was shown to PW-1 and PW-1 identified him. At this juncture it has to be pointed out, to say that a person was attacked by known person and to say that he was attacked by someone whom he can identify if he sees are entirely different. In the latter case, it is the bounden duty of the prosecution to conduct identification parade and that was not done in this case. According to the Doctor, the deceased told him that he was attacked by three known persons. Now the case of the prosecution is that the deceased was attacked by only two known persons, of course three others were also present. Thus, as to how many persons attacked the deceased and who attacked PW-1 are clear from the evidence let in by the prosecution. 10. In Ex.P-1, PW-1 has not given the names of A-3, A-4 and A-5 and what all he has stated is, if he sees those persons, he will be able to identify them. As already stated, no identification parade was conducted to enable PW-1 to identify the assailants. That apart, before the Court this witness has given different versions. 10. In Ex.P-1, PW-1 has not given the names of A-3, A-4 and A-5 and what all he has stated is, if he sees those persons, he will be able to identify them. As already stated, no identification parade was conducted to enable PW-1 to identify the assailants. That apart, before the Court this witness has given different versions. In one place he would state that because he gave complaint Ex.P-1 in a hurry, he was not remembering the names of other three persons and in yet another place he would depose, since the police did not ask him, he did not give those names and again would say that he did not know their names clearly. 11. PW-12 is the son of the deceased. He has deposed that the Police arrived at the hospital even at 9.00 p.m. and that the Sub-Inspector examined his father viz., the deceased and he also recorded a statement from him. He has also stated that even before that, police officials recorded his statement. Again he would depose that even though the police examined the deceased he was not in a position to speak. Thus, PW-1 has come forward with two different versions as to whether the deceased gave a statement to Police or not on 17.1.1997. 12. According to the prosecution, the Inspector of Police recorded the statement of the deceased at 4.00 p.m. on 18.1.1997 at the hospital and at that time the deceased gave the names of all the five accused. The said statement has been marked as Ex.P-25. A serious doubt would arise as to whether any such statement could have been recorded by the Inspector as claimed. 13. According to the prosecution, the deceased was operated at 1.30 a.m. on 18.1.1997 and the statement of the deceased was recorded at 4.00 p.m. The inspector of Police would claim that before taking the statement he obtained the permission of the Doctors. But however, he has deposed that he cannot give the name of the Doctor from whom he obtained permission. Normally, in such circumstances what is expected from the Inspector is he should have requested some Doctor to be present while recording the statement. It is not known as to why he did not do that. That apart, PW-7 is the Doctor who speaks about the surgery performed on the deceased in the early hours of 18.1.1997. Normally, in such circumstances what is expected from the Inspector is he should have requested some Doctor to be present while recording the statement. It is not known as to why he did not do that. That apart, PW-7 is the Doctor who speaks about the surgery performed on the deceased in the early hours of 18.1.1997. He has not spoken to in his chief examination as to when he regained consciousness after surgery and whether he was in a position to give a statement by 4.00 p.m. on 18.1.1997. It is further interesting to note that the statement runs to two pages giving various details. One wonders whether really such a statement could have been given by the deceased as claimed by the prosecution. 14. Above all, what is more disturbing us is, the deceased was taken to the hospital on 17.1.1997 at about 19.20 hours and he was seen by the Doctor and in the case sheet we find there is a noting by the Doctor as, "D.I.L. on 17.1.97 at 10.00 p.m." and on the same day the son of the deceased was informed about the bad condition of the deceased. Rightly the medical officer had also reduced the same to writing to the effect that the son is aware about the bad condition of his father and he has no objection for giving anesthesia for the purpose of conducting operation. When the Doctor saw the deceased at 9.30 p.m. he had noted that the patient was conscious and was answering to the questions. If that is so, it is not known as to why the Doctor did not take steps for recording dying declaration. Again there is an entry in the case sheet dated 18.1.1997 mentioning the time as 1.30 a.m. and that was after the surgery since PW-7 has stated that Surgery was completed at 1.30 a.m. There is a clear noting that the patient is dangerously ill. It is claimed by the Inspector of Police that he came to the hospital and recorded the statement of the deceased at 4.00 p.m. after obtaining permission from the Doctor. Strangely, none took any steps to get the dying declaration of the deceased recorded prior to 4.00 p.m. on 18.1.1997 or even thereafter by the Judicial Magistrate. This Court considers this as a serious lapse on the part of the concerned Doctor and Police official. 15. Strangely, none took any steps to get the dying declaration of the deceased recorded prior to 4.00 p.m. on 18.1.1997 or even thereafter by the Judicial Magistrate. This Court considers this as a serious lapse on the part of the concerned Doctor and Police official. 15. What remains is the discussion with regard to motive and the contradictions with regard to the weapon used. According to the prosecution, the motive for the accused to attack the deceased is that when there was a quarrel between PW-3 on the one hand and A-2 and A-3 on the other hand, the deceased and PW-4 came and pacified them and separated them. Further case of the prosecution is, A-2 and A-3 went and came back with other accused and dragged the deceased from the cash counter and stabbed him. We do not find any motive as such for the accused to attack the deceased. The motive suggested does not seem to be convincing. Of course, if the ocular evidence is clear and acceptable, then the fact that the motive is flimsy, will not be of any consequence in favour of the accused. But as we have already pointed out, this Court is of the opinion that the evidence of PW-1 does not infuse confidence. As far as the weapon used is concerned, while the deceased told the Doctor at about 9.20 p.m. on 17.1.1997 that he was attacked with knife and aruval, the case of the prosecution spoken through PW-1 is that the deceased was attacked by A-1 and A-2 with knife. 16. This Court is not inclined to accept the testimony of PW-1 and consequently hold that the prosecution has not brought home the guilt of the accused. Once we come to such a conclusion, all the accused have to be acquitted of all the charges framed against them. 17. In the result, the above appeals are allowed. The conviction and sentence imposed by the learned Additional Sessions Judge, Kanyakumari at Nagercoil against all the appellants/accused are hereby set aside. The appellants/accused are acquitted of all the charges framed against them. All the appellants/accused shall be set at liberty forthwith unless they are required in connection with some other cases.