Judgment :- A.S.VENKATACHALAMOORTHY, J. The appellants/accused were tried by the First Additional Sessions Judge-cum-Chief Judicial Magistrate, Salem, in Sessions Case No.94 of 1999, for causing the death of one Murugan @ Keerikutti in Ayodhyapattinam-Arur Main Road, Perur, on 17th August, 1996. By Judgment dated 4th February, 2000, the learned trial Judge found A-1 to A-5 guilty under Section 302 read with 149 IPC and sentenced them to undergo life imprisonment. The Court also found A-1 to A-3 guilty under Section 148 IPC. and A-4 and A-5 guilty under Section 147 IPC. Questioning the correctness of the judgment, the above appeal has been filed. 2. The case of the prosecution can be set out as under:- PW-1 is the brother of the deceased. PW-4 is the wife of the deceased. PW-3 is owning a tea-stall near Subramania Koil at Nandavanam Street in Ayodhyapattinam. ` PW-1 Thangaraj was running a tea shop at Ayodhyapattinam. PW-3 Ayyavoo and PW-7 Raju Nadar were also having shops at Ayodhyapattinam. The deceased by name Murugan alias Keerikutti was involved in smuggling of sandalwood and originally, he was associated with one Sakthivelu. Some misunderstandings arose between them about six months prior to the occurrence with reference to sharing of money they got, with the result their relationship got strained. As usual, PW-1 was in his tea-stall on 17.8.1996. As there was no customer at about 6 p.m., he came out of his tea shop and was standing in the road. At that time, the deceased Murugan @ Keerikutti came in a Yamaha Motor-cycle at a good speed. PW-1 stopped the deceased and enquired him as to where he was proceeding at such a high speed. The deceased replied that he had stabbed one Sakthivelu in the course of a quarrel with him at Thathanur and that he was on his way to bring a Doctor to treat Sakthivelu. The deceased then proceeded further to some short distance and after parking his two-wheeler in front of Murugan Temple, he was walking back towards the shop of PW-1. As the deceased was nearing the flag-post, all the accused came there and A-4 and A-5 caught hold of the hands of the deceased and at that time, A-1 was armed with suri knife, A-2 with veechu knife and A-3 with koduval. First, A-1 stabbed the deceased with suri knife on his stomach. As the deceased was nearing the flag-post, all the accused came there and A-4 and A-5 caught hold of the hands of the deceased and at that time, A-1 was armed with suri knife, A-2 with veechu knife and A-3 with koduval. First, A-1 stabbed the deceased with suri knife on his stomach. When A-2 came to stab the deceased, the latter raised his hand appealling A-2 not to cut and the cut fell on the hands of the deceased. A-3, with the koduval, cut the deceased on the head twice or thrice. Seeing this, PW-1 ran raising alarm. PW-2 Murugan, one Venkatesh and others in the nearby shops also came running. Seeing this, all the accused ran away, taking the weapons with them. PW-1 noticed injuries all over the body of the deceased. The deceased died on the spot. PW-1 then sent a word to the parents and wife of the deceased. A complaint was written in the shop of PW-1 and thereafter, he proceeded to the police station to hand over the same. PW-13 is the then Sub Inspector of Police in Karipatti Police Station. At about 7 P.M. on 17.8.1996, PW-1 appeared before him and gave the complaint Ex.P-1. PW-13 registered Cr. No.714/96 under Section 302 IPC. etc. and prepared Express F.I.R. Ex.P-22. He sent the original of the report to Judicial Magistrate No.II and copies to his superiors. Since the Inspector was on some other duty, wireless message was sent to him. PW-14 is the Inspector of Police, who, on receipt of the wireless message, proceeded to the scene of occurrence, where he reached at 8 P.M. There, the Inspector was given copies of the Express First Information Report by Police Constable-1105. The Inspector then prepared observation mahazar Ex.P-2 and sketch Ex.P-23, attested by witnesses. He held inquest over the body of the deceased between 8 p.m. and 12 midnight on 17.8.1996 and Ex.P-24 is the inquest report. The Inspector then took steps to send the body of the deceased along with a requisition to the Doctor to conduct the post-mortem examination. At the scene of occurrence, the Investigating Officer seized ordinary earth and bloodstained earth MOs-4 and 5 respectively under Ex.P-5 mahazar in the presence of witnesses. The other witnesses by name Mani and Arumugam were examined and their statements were recorded. At the scene of occurrence, the Investigating Officer seized ordinary earth and bloodstained earth MOs-4 and 5 respectively under Ex.P-5 mahazar in the presence of witnesses. The other witnesses by name Mani and Arumugam were examined and their statements were recorded. On the subsequent day, that was on 18.8.1996, other witnesses were examined by the Investigating Officer. PW-11 is the Doctor attached to Salem Medical College and Hospital, who, pursuant to the requisition received from the Inspector of Police, commenced the post-mortem at 10.45 a.m. on 18.9.1996. Ex.P-13 is the post-mortem certificate, wherein, the Doctor has noted the following:- " Injuries:- 1. A vertical incised wound, on the right temple region 2 cms. x 0.5 cm. x bone deep. 2. An oblique incised wound, on the right side of forehead, 2.5 cms. x 0.5 cm. x bone deep, 2 cms. above the right eye brow. 3. An oblique incised wound, on the right side of forehead, 3 cms. x 1 cm. x bone deep, 2.5 cms. outer to the mid line. 4. A coronal is placed incised wound, on the right parietal region 6 cms. x 1 cm. x bone deep. 3.5 cms. outer to the midline. 5. A Transverse incised wound on the right side of occipital and right temporal region of scalp, 11 cms. x 2 cms. x bone deep, the inner end lies on the midline, 3 cms. above the external occipital protuberance. O/E, the underlying right parietal and temporal bones are found cut [cut fracture]. Diffusion of blood in the underlying tissues present. 6. An oblique incised wound, on the back of upper 3rd of right arm, 5 cms x 1 cm. x muscle deep. 7. An oblique stab wound, on the back of lower 3rd of right arm, 3 cms. x 1 cm. x bone deep. On examination, the shaft of lower 3rd of right humerus is found partially cut (cut fracture) with blood clots in the vicinity. The upper inner end of the wound is sharp, the lower outer end is curved, edges clean out. 8. An oblique incised wound, on the back of lower 3rd of right forearm, 7 cms x 4 cms. x bone deep. O/E, the shaft of underlying ulna bone is found completely cut (cut fracture) with blood clots in the vicinity. 9. An oblique incised wound, on the back and palmar aspect of right hand 13 cms. 8. An oblique incised wound, on the back of lower 3rd of right forearm, 7 cms x 4 cms. x bone deep. O/E, the shaft of underlying ulna bone is found completely cut (cut fracture) with blood clots in the vicinity. 9. An oblique incised wound, on the back and palmar aspect of right hand 13 cms. x 7 cms. x exposing the underlying structures with a tailing of 1 cm. on the palmar aspect. On examination, the underlying 2nd, 3rd, 4th and 5th metacarpal bones blood vessel nerves muscles and tendons are found cut. Diffusion of blood in the surrounding area present. 10. An incised wound, on the inner aspect of lower 3rd of right forearm, 4 cms. x 2.5 cm. x skin deep. 11. An oblique incised wound, on the back of middle 3rd of left forearm, 4 cms. x 2.5 cms. x bone deep. O/D, the shaft of left ulna is found cut (cut fracture) the blood vessels, nerves are found cut with blood clots in the vicinity. 12. A transverse incised wound, on the back of lower 3rd of left forearm, 1 cm. above the left elbow, 6 cms. x 4 cms. x bone deep. O/E, shaft of lower 3rd of both the bones of left forearm is completely cut, (cut fracture) blood vessels, nerves and muscles and tendons are completely cut. Skin is intact on the front. Diffusion of blood in the vicinity. 13. An oblique incised wound 2 cms. x 1 cm. x muscle deep on the inner aspect of left elbow. 14. A transverse incised wound, on the back and palmar aspect of left hand, 16 cms. x 5 cms. exposing the underlying structures. O/D, the metacarpal bone, 2, 3, 4 and 5 are found cut, the blood vessels, nerves and muscles are found cut. Diffusion of blood in the vicinity.] 15. An oblique incised wound, on the front and inner aspect of lower 3rd of left forearm and left hand, 7 cms. x 4 cms. exposing the underlying structure. O/E, the underlying carpal bone is found partially cut, the blood vessels and nerves and muscles and found clean cut. Diffusion of blood in the vicinity. 16. An incised wound, on the back of middle of left index finger, 3 cms. x 1 cm. x exposing the underlying structures. x 4 cms. exposing the underlying structure. O/E, the underlying carpal bone is found partially cut, the blood vessels and nerves and muscles and found clean cut. Diffusion of blood in the vicinity. 16. An incised wound, on the back of middle of left index finger, 3 cms. x 1 cm. x exposing the underlying structures. O/E, the 2nd phalanx is found completely cut, blood vessels, nerves and tendons are found cut, skin intact on the front. Diffusion of blood in the vicinity. 17. An oblique incised wound, on the 3rd inter digital space, 7 cms. x 3 cms. exposing the underlying structures, the left ring finger is found completely cut at the level of proximal phalanx, the distal portion is found missing. On further examination, the proximal phalangeal bone of left middle finger is found completely cut. Diffusion of blood in the vicinity. 18. A transverse incised wound, on the palmar aspect of left hand at the base of left thumb, 3 cms. x 1 cm x muscle deep. 19. An oblique incised on the front of right side of chest, 8.5 cms. x 3 cms. deep to the cavity 1 cm. outer to the midline. 20. An oblique incised wound, on the front of left side of chest and front of left side of abdomen, 13 cms. x 4 cms. x deep to the cavity. The upper inner end lies on the midline. 21. An oblique incised wound, on the front of lower part of right side of chest and front of right side of abdomen 16 cms. x 7 cms. deep to the cavity, 1 cm. outer to the midline, 1.5 cms upper and outer to the umbilicus,1.5 cms. lower and outer to the wound no.19. 22. A transverse incised wound, on the back of right side of chest 3 cms. x 1 cm x cavity deep. ON OPENING THE THORAX AND ABDOMEN:- 23. On dissection of wound No.19, the 4th and 5th ribs close to the sternum on the right side are found completely cut (cut fracture) along with the intercostal muscles blood vessels and nerves. Diffusion of blood in the surrounding area present. 24. On dissection of wound NO.20:- the Xyphisternum and lower part of the body of the sternum are found completely cut (cut fracture). Diffusion of blood in the surrounding area present. 25. Diffusion of blood in the surrounding area present. 24. On dissection of wound NO.20:- the Xyphisternum and lower part of the body of the sternum are found completely cut (cut fracture). Diffusion of blood in the surrounding area present. 25. On dissection of wound No.21:- 6th and 7th and 8th ribs on the front of right side of chest are found completely cut. Diffusion of blood in the surrounding area present. 26. Two incised wounds, on the right lobe of liver, each measuring 8 cms. x 0.5 cm x 3 cms. 27. An incised wound, on the left lobe of liver, 7 cms. x 0.5 cms. x 4 cms. The peritoneal cavity contains 100 ml. of fluid blood with clots. 28. A stab wound, on the lower lobe of right lung, 4 cms. x 3 cms. x 0.5 cms. The right side of thoracic cavity contains, 200 ml. of fluid blood, the left side – empty. Right lung – vide injury column. Left lung on c/s.-pale. 29. A stab wound, on the lesser curvature of stomach, 3 cms. x 1 cm. x deep to the cavity. 30. A stab wound on the front of body of stomach. 1 cm. above the greater curvature 1.5 cms. x 0.5 cm. x. deep to the cavity. 31. 3 tears on the jejunum each measuring 4 cms. x 2 cms. x lumen deep through which intestinal contents are coming out. 32. On opening the scalp, sub scalpular bruising of right parietal and temporal regions – Dark red. 33. Fissured fracture of right parietal and temporal bones communicates with the cut fracture. 34. An incised wound, 4 cms. x 1 cm. of right occipital lobe. 35. Intra cerebral haemorrhage on the right occipital lobe, present. 36. Fracture separation of lambdoid suture on both sides and right middle cranial fossa, posterior crania fossa communicates with the external fracture, in a single line. All are antemortem in nature." The Doctor had opined in the said certificate that the deceased died of shock and haemorrhage due to multiple injuries. On 18.8.1996, the Inspector recovered bloodstained cloths of the deceased and started searching for the accused. On 21.8.1996, he came to know that all the accused surrendered before Judicial Magistrate No.4. The Investigating Officer then made a requisition to the Court to secure police custody of the accused and on 30.08.1996, the accused were handed over for police custody. On 18.8.1996, the Inspector recovered bloodstained cloths of the deceased and started searching for the accused. On 21.8.1996, he came to know that all the accused surrendered before Judicial Magistrate No.4. The Investigating Officer then made a requisition to the Court to secure police custody of the accused and on 30.08.1996, the accused were handed over for police custody. The accused were taken to Karipatti Police Station and at 9 A.M. on 31.8.1996 A-1 was enquired in the presence of witnesses Murugan and Kandasamy when he gave a voluntary confession statement and the admissible portion of the same is Ex.P-25. Thereafter, the 2nd accused gave a voluntary confession statement and the admissible portion of the same has been marked as Ex.P-26. A-3 also separately gave a voluntary confession statement and the admissible portion of the same is Ex.P-27. All the accused were enquired separately, but in the presence of witnesses. The accused then took the police party in the afternoon at about 1.30 P.M. to the Mettupatti-Thathanur burial ground. A-1 produced MO-1 suri knife from a thorny bush in the burial ground and the same was recovered under Ex.P-28 mahazar. Similarly, A-2 produced MO-2 veechu aruval from a different bush, but in the same burial ground and that has been recovered under Ex.P-29 mahazar. Thereafter, A-3 also produced MO-3 Koduval, which he had hidden earlier in an another bush, in the same land and that was recovered under Ex.P-30. These mahazars were attested by Kandasamy and Murugan. The Investigating Officer then sent the accused for remand. Steps were taken to send the weapons for chemical analysis. Ex.P-20 is the report received from the Forensic Sciences Department. The Investigating Officer, after completing the investigation, filed his final report on 14.11.1996. 3. At the trial, the prosecution examined PWs-1 to 14, marked Exs.P-1 to P-30 and produced Mos.1 to 8. On behalf of the defence, Exs.D-1 to D-3 were marked. The General Diary of Veeranam Police Station for the period between 18.7.1996 and 24.8.1996 has been marked as a Court Exhibit. 4. The accused, when questioned under Section 313 of Cr.P.C., denied any complicity in the commission of the offence. The learned Sessions Judge, after considering the materials available on record, came to the conclusion that all the accused are guilty as referred earlier. 5. 4. The accused, when questioned under Section 313 of Cr.P.C., denied any complicity in the commission of the offence. The learned Sessions Judge, after considering the materials available on record, came to the conclusion that all the accused are guilty as referred earlier. 5. PW-11 is the Doctor, then attached to Salem Medical College and Hospital, who conducted post mortem on 18.8.1996, pursuant to the requisition by the Investigating Officer. The Doctor noticed as many as 36 injuries on the body of the deceased. We have already extracted the relevant portion from the post mortem certificate and it is unnecessary to repeat the same over and again here. The Doctor has deposed before Court that the injuries could have been caused by weapons like Mos-1 to 3 at the time and in the manner alleged and that the deceased died of shock and haemorrhage due to multiple injuries. The only suggestion that has been put to the Doctor is that at the time of post mortem, he did not notice the injuries as noted in the post mortem certificate and that he had written the same only on his own imagination. This has been stoutly denied by the Doctor. Needless to mention that no motive has been suggested to the Doctor as to why he should resort to such an act. We have absolutely no hesitation whatsoever to accept the medical evidence placed before this Court by the prosecution and come to the conclusion that the deceased died only of homicidal violence. 6. Now, the question for consideration is as to whether the prosecution has proved beyond all reasonable doubts that the occurrence took place in the manner as spoken to by the prosecution witnesses. 7. The evidence of the sole eye witness now available for consideration is PW-1, who is none else than the brother of the deceased. PW-1 is running a tea stall about 70' north of the Murugan Temple. According to him, on the fateful day, that was on 17.8.1996, as there was no customer at about 6 p.m., he was standing in front of the shop and at that time, the deceased came in a two wheeler at a high speed, and seeing this, he stopped him and enquired as to where he was proceeding. According to him, on the fateful day, that was on 17.8.1996, as there was no customer at about 6 p.m., he was standing in front of the shop and at that time, the deceased came in a two wheeler at a high speed, and seeing this, he stopped him and enquired as to where he was proceeding. According to PW-1, the deceased then told that he had stabbed one Sakthivel at Thathanur in the course of a wordy quarrel and that he was on his way to fetch a doctor for the purpose of treating Sakthivel. PW-1 would say that the deceased proceeded further for a short distance and after parking his two-wheeler in front of the Murugan Temple, he started walking back towards PW-1's tea stall and when he was nearing the congress flag-post, the accused came and attacked him. The specific case is that A-4 and A-5 caught hold of the deceased and A-1 to A-3 attacked him, causing serious injuries and that when PW-1 raised alarm, neighbours came there and the accused ran away. Murugan (examined as PW-2), according to PW-1, was an eye witness to the occurrence, but, he has turned hostile. At this juncture, it may also be mentioned that the other piece of evidence is recovery of weapons MOs-1 to 3, pursuant to the confession statements made by A-1 to A-3. Ex.P-20, the Serologist's report would reveal that all the three weapons were stained with human blood. PW-8, the mahazar witness has also turned hostile. 8. Hence, the evidence that is available for the prosecution to prove its case is that of the oral evidence of PW-1. In other words, if this Court accepts the oral evidence of PW-1, who would claim that he saw the occurrence, the conviction and sentence can be sustained, otherwise it cannot. 9. Learned Senior Counsel Mr.B.Sriramulu, appearing for appellants-1 to 3, in his endeavour to persuade this Court to reject the testimony of PW-1, would put forth the following submissions. Firstly, it is contended that PW-1 is none else than the brother of the deceased and that being so, in view of the close relationship and in the absence of any other evidence, it would not be safe to rely on his testimony. Firstly, it is contended that PW-1 is none else than the brother of the deceased and that being so, in view of the close relationship and in the absence of any other evidence, it would not be safe to rely on his testimony. Secondly, he would contend that PW-1 is not consistent as to how many persons were the assailants, and this could be seen from what he had stated in Ex.P-1 complaint and his deposition before the Court. Yet another submission has been made to the effect that since PW-1 himself was an accused and is an accused and this being a fight between two rival groups, it would not be safe to accept his testimony. Learned Senior Counsel would also make a comment on the conduct of the deceased, in that, when according to PW-1 the deceased was proceeding to get a doctor, he suddenly abandoned it and parked the vehicle in front of Murugan Temple. A question is raised, namely, that when the deceased was surrounded by the accused (five in number), as to how PW-1, by standing from a distance of more than 50 ft., was able to give a vivid narration as to who attacked on which part of the body of the deceased. A serious criticism has also been levelled against the police in not tracing out the bike and its owner and also in not going to the other police station where a complaint was given against the deceased, because according to the prosecution, that was the starting point of the trouble. Learned counsel for the defence would submit that cumulative effect of the above would certainly dissuade this Court to place reliance on the evidence of PW-1. Finally, the learned counsel contended that in the facts and circumstances of the case, the appellants would be entitled for a benefit of doubt. 10. Time and again, the Supreme Court of India has repeatedly held that the testimony of a witness need not be rejected on the sole ground that he is closely related to the deceased. If, after due consideration, the Court is satisfied that the testimony of such witness is worthy of acceptance, nothing should stand in the way to accept and act upon. Refer: i. 2000 SCC (Cri) 1416 – Hukam Singh v. State of Rajasthan. ii. 2002 SCC (Cri) 175 – Munshi Prasad v. State of Bihar. iii. If, after due consideration, the Court is satisfied that the testimony of such witness is worthy of acceptance, nothing should stand in the way to accept and act upon. Refer: i. 2000 SCC (Cri) 1416 – Hukam Singh v. State of Rajasthan. ii. 2002 SCC (Cri) 175 – Munshi Prasad v. State of Bihar. iii. 1999 (3) SCC 97 – Rachamreddi Chenna Reddy v. State of A.P. 11. The main question arises for consideration is as to whether the testimony of PW-1 infuses confidence of the Court and it would be safe to act on his testimony. Let us proceed to examine the oral testimony of PW-1. According to the prosecution, the complaint was given by PW-1 to the Sub Inspector of Police and the same has been marked as Ex.P-1. In the said complaint, PW-1, after mentioning the names of all the five accused and also about the weapons A-1 to A-3 had, has stated as follows:- But however, before Court, PW-1 would mention only the names of A-1 to A-5 as the persons, who came near the deceased and encircled him. In the cross examination, PW-1 would depose that apart from the accused nobody came and further proceed to say that he had mentioned in the complaint that apart from A-1 to A-5 others also came and encircled the deceased. Thus there is a vital contradiction with regard to the number of assailants between Ex.P-1 authored by PW-1 and the deposition of PW-1 himself. There is yet another contradiction which we do see. In Ex.A-1 complaint, PW-1 has mentioned that A-3 and A-4 caught hold of the deceased and others attacked, whereas what he has deposed before Court is that the deceased was caught hold of by A-4 and A-5 and A-1 to A-3 attacked the deceased. 12. From the materials available on record, it is fairly clear that both the parties had been indulging in sandalwood smuggling activities. PW-1, in his chief examination, has stated that the accused had murdered two of his brothers and that a case is still pending. It is also the case of the prosecution that the deceased was associated closely with one Sakthivel in the said illegal activities and that they fell out six months prior to the occurrence. Now, a question would arise as to what sort of a person PW-1 is? It is also the case of the prosecution that the deceased was associated closely with one Sakthivel in the said illegal activities and that they fell out six months prior to the occurrence. Now, a question would arise as to what sort of a person PW-1 is? In the cross examination, PW-1 has initially deposed that there are no criminal cases against him. But, when he was confronted with reference to a case that was over by then before Judicial Magistrate No.II, he admitted that he was found guilty for setting fire to a house and that he paid a fine of Rs.2,700/-. Again, a specific question was put to him with reference to a case against him with a charge under Section 307 IPC. For this question, he replied as under:- This Court is not prepared to accept this kind of evasive answer by PW-1 and this Court is rather willing to readily accept that PW-1 was, at the time of deposing before Court, involved in a case, under Section 307 IPC. In fact, he has also admitted that earlier there was a murder case against him and of course, he would claim that he was acquitted. In these circumstances, this Court is rather inclined to come to the conclusion that it cannot be said that PW-1 is a law abiding citizen and that his testimony can be safely accepted and acted upon. 13. Two circumstances, which this Court find it difficult to get an answer. They are:- (i) Admittedly, the deceased was carrying on illegal activities, in short, a criminal. Whether the case of the prosecution as spoken to by PW-1 that the deceased was proceeding to fetch a Doctor to treat Sakthivel can be believed, when he himself was the assailant? The prosecution has not made it clear as to which Doctor the deceased was intending to bring to treat Sakthivel. (ii) When the deceased was stopped by PW-1, the former surprisingly abandoned the idea of going to the Doctor, as could be seen from his conduct viz., by parking the vehicle in front of Murugan Temple. 14. We also have to make some comment on the investigation made by the police. According to the prosecution, the deceased came there in the vehicle belonging to Sakthivel and he parked the vehicle in front of Murugan Temple. What happened to the vehicle is not known. 14. We also have to make some comment on the investigation made by the police. According to the prosecution, the deceased came there in the vehicle belonging to Sakthivel and he parked the vehicle in front of Murugan Temple. What happened to the vehicle is not known. The evidence available before Court would show that the vehicle's number was TN-67 Z-0037. The Investigating Agency did not take steps to verify as to whether Sakthivel was the real owner of that vehicle. Equally, the Investigating Agency failed to go to Veeranam Police Station, where a complaint was registered with reference to the murder of Sakthivel, mentioning the deceased as the accused in that case. 15. For all the reasons stated above, we are of the considered view that it would be totally unsafe to act on the oral testimony of PW-1 to come to the conclusion that the accused committed the offence as alleged by the prosecution. We have already pointed out that even the recovery of weapons from the three accused has not been satisfactorily proved by the prosecution. The witness who has been examined to prove the recovery has turned hostile. In these circumstances, we have no hesitation to come to the conclusion that the prosecution has not proved its case beyond all reasonable doubts. 16. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on all the accused/appellants for all the offences are hereby set aside. The appellants/accused are acquitted of all the charges and they shall be set at liberty forthwith unless they are required in connection with any other case.