Judgment :- M. ARPAGAVINAYAGAM,J) The appellants in both the appeals are Accused 1 to 3. Accused-2 has filed Crl. Appeal No.1060/98, while Accused 1 and 3 have filed Crl. Appeal No. 3/99. Appellants were convicted under Section 302 read with 149 I.P.C. and each sentenced to undergo life imprisonment each. 2. Initially, five accused were charge sheeted and tried for the offences under Sections 147,148,302, and 302 read with 149 I.P.C. Accused 4 and 5 have been acquitted. Accused 1 to 3 alone were convicted under Section 302 read with 149 I.P.C. Hence, both these appeals. 3. The case of the prosecution in brief, is as follows: a)The deceased Palaniswamy is the father of P.W.1 Arumuga Udaya Bommukani. P.W.2 Anthoniammal is the step daughter of the deceased. Accused 1 to 3 are brothers. Accused-4 is the brother-in-law of the first accused. Accused-5 is a close associate of the first accused. b) In the year 1984, Palaniswamy, the deceased filed a suit against the first accused Sundararaj for declaration and permanent injunction in respect of the landed property. The said suit was dismissed. The deceased Palaniswamy filed an appeal before appellate Court, which in turn dismissed the same. Therefore, the deceased filed the Second Appeal before this Court. In the mean time, the first accused, who was in possession of the land in question, applied for electricity connection. The deceased sent a petition to the electricity authorities objecting to give electricity connection for the pumpset installed in the disputed property in favour of the first accused. Despite the objection, electricity connection was given in favour of the first accused. On having aggrieved due to the act of the deceased in filing a suit and raising the objection for electric connection, the first accused had developed a grudge against the deceased. c) On 10.9.1992, the deceased left his home and went to Shanmuga Nadar's field in his village Mudukkalankulam for grazing his sheep. At about 12.30 p.m., P.W.1 Arumuga Udaya Bommukani went to the filed in order to relieve him, so that the deceased could take mid-day meal in his house. At that time, P.W.2 Anthoniammal was cutting grass in the adjacent field belonging to Mariappan. At that point of time, the accused 1 to 5 came with weapons, surrounded the deceased and scolded him. Accused 1 to 3 were armed with aruvals and accused 4 and 5 were armed with sticks. At that time, P.W.2 Anthoniammal was cutting grass in the adjacent field belonging to Mariappan. At that point of time, the accused 1 to 5 came with weapons, surrounded the deceased and scolded him. Accused 1 to 3 were armed with aruvals and accused 4 and 5 were armed with sticks. Then, all the accused began to attack the deceased. Accused-1 with aruval cut on the neck of the deceased, while the Accused -2 cut the deceased on his right hand and right side chest. After the deceased fell down, Accused-3 gave a cut on the back and chin of the deceased. Accused 4 and 5 beat the deceased with sticks. On seeing this occurrence, P.Ws. 1 and 2 cried aloud. Then, all the accused, after threatening the witnesses, ran away from the scene along with their weapons. The deceased died on the spot. d) Leaving P.W.2 Anthoniammal near the dead body, P.W.1 went to the village and gave a complaint Ex.P.1 to P.W.5 Village Administrative Officer. On receipt of the complaint, P.W.5 made an endorsement in the said complaint and sent Thalayari Subramaniam to Nallattinputhur Police Station. P.W.6 Sub-Inspector of Police, who received the complaint at 5.00 p.m., registered a case in Crime No. 218/1992 under Sections 147,148,324,323 and 302 I.P.C. He sent the printed First Information Report Ex.P.8 to the Court as well as to his superior officers. e) P.W.8, Constable went and handed over Ex.P.1 complaint and Ex.P.8 printed F.I.R. to the Court and copies of the same to P.W.10 Inspector of Police, who was in additional charge. On receipt of the same, P.W.10 took up investigation and came to the scene of occurrence at about 8.00 p.m., prepared observation mahazar Ex.P.5 and drew rough sketch Ex.P.16. Then, he recovered the blood stained earth and sample earth M.Os.1 and 2 under mahazar Ex.P.17. He examined P.Ws 1 and 2 and others. Thereafter, the body was sent with a requisition to the Doctor to conduct post- mortem. f) P.W.3 Dr. Alagesan commenced the post mortem on 11.9.1992 at about 6.30 a.m. and noticed seven cut injuries on various parts of the body. He gave opinion in Ex.P.3, the post-mortem certificate that the deceased would appear to have died of shock and hemorrhage due to multiple injuries sustained. f) P.W.3 Dr. Alagesan commenced the post mortem on 11.9.1992 at about 6.30 a.m. and noticed seven cut injuries on various parts of the body. He gave opinion in Ex.P.3, the post-mortem certificate that the deceased would appear to have died of shock and hemorrhage due to multiple injuries sustained. g) Then, on 16.9.1992, P.W.10, the in-charge Investigating Officer came to know that all the accused had surrendered on 14.9.1992 before the Court. On the same day he handed over charge to the regular Inspector P.W.11 since he joined duty. P.W.11 Inspector of Police took up further investigation. Then he arranged to send the material objects for chemical examination through requisition to the Court. After completing the investigation, P.W.11 filed the charge sheet against all the accused for the offences under Sections 147,148,302 read with 149 I.P.C. 4. During the course of trial, P.Ws. 1 to 11 were examined, Exs. P.1 to P.17 were filed and M.Os.1 to 5 were marked. 5. When the accused were questioned under Section 313 Cr.P.C., they simply denied their complicity in the crime. On the side of defence, D.W.1 was examined and Exs. D1 and 2 were marked. 6. On considering the materials available on record, the trial Court, though acquitted the accused 4 and 5, convicted the accused 1 to 3 for the offence under section 302 read with 149 I.P.C. The trial Court however acquitted the accused 1 to 3 in respect of the offence under Section 148 I.P.C. Accused 1 to 3, having aggrieved by the judgment of conviction and sentence, have filed these two separate appeals. 7. Mr. Syed Fasiuddin, learned counsel appearing for the appellants in Crl. Appeal No.3/1999, who are accused 1 and 3 took us through the entire evidence and pointed out various discrepancies in order to establish that P.Ws.1 and 2 could not have seen the occurrence and as such, their evidence is unreliable. He would also read out various portions of evidence to show that F.I.R. could not have been prepared at the time as alleged by the prosecution. 8. Mr. G.R. Edmund, learned counsel appearing for the appellant in Crl. Appeal No.1060/1998, who is Accused-2 would submit that the evidence of P.Ws. He would also read out various portions of evidence to show that F.I.R. could not have been prepared at the time as alleged by the prosecution. 8. Mr. G.R. Edmund, learned counsel appearing for the appellant in Crl. Appeal No.1060/1998, who is Accused-2 would submit that the evidence of P.Ws. 1 and 2 is inconsistent with the contents of Ex.P.1 with reference to the overt acts attributed to each of the accused and as such, the evidence of P.Ws.1 and 2 has to be rejected in toto, especially when their evidence was rejected by the trial Court in respect of the acts committed by the accused 4 and 5. 9. In reply to the above submissions, Mr. E. Raja, the learned Additional Public Prosecutor, would contend that the materials available on record would be sufficient to hold that the appellants had committed the murder of the deceased and therefore, the conviction and sentence imposed on the appellants by the trial Court have to be sustained. 10. We have assessed the inherent merits of the respective contentions urged by the counsel for the parties. 11.The motive for the occurrence as projected by the prosecution is that there was a civil dispute between the deceased and the first accused. According to P.W.1, the civil suit filed by the deceased against the first accused was dismissed by the trial Court and ultimately, the deceased filed Second Appeal before this Court and the same is pending. He would also state that the deceased sent objection petition to the electricity authorities asking them not to give electricity connection to the pumpset installed in the land in question in favour of the first accused, as the civil case is pending in the High Court and due to this, the accused had developed a grudge against the deceased and his family members. 12. On going through the materials placed before the Court, it is clear that the evidence adduced by P.W.1 and 2 in relation to the motive aspect, is not factually correct. D.W.1, Head Clerk of the Court stated through Ex.D.2 that the Second Appeal which was filed by the deceased in S.A. No.1378/1985 was dismissed by the High Court on 23.8.1985 itself. D.W.1, Head Clerk of the Court stated through Ex.D.2 that the Second Appeal which was filed by the deceased in S.A. No.1378/1985 was dismissed by the High Court on 23.8.1985 itself. Further, P.W.4, an Engineer from the Electricity Department would state that the objection petition sent by the deceased on 4.12.1991 was considered and ultimately, on seeing the judgment rendered by the High Court in favour of the first accused, the Electricity Department permitted the electricity connection to the pumpset installed in the land in question on 14.5.1992 itself. This is evident from the evidence of P.W.4. 13. P.W.10 and P.W.11 also would admit that they did not know about the disposal of the civil case and the objection petition sent to the Electricity Department by the deceased. As a matter of fact, P.W.1 herself would admit in her cross examination that the electricity connection was given by the Electricity Department to the pumpset installed in the land in question in favour of the first accused on 14.5.1992 itself. Therefore, the pendency of the civil case and the objection petition sent by the deceased with regard to electricity connection, cannot be the motive for the occurrence which took place on 10.9.1992, as those matters were disposed off and ended in favour of the first accused. 14. Furthermore, there is no material placed by the prosecution as to what was the immediate motive for the accused to come to the place of occurrence as a group and to attack the deceased. In such circumstances, it has to be held that the motive for the occurrence as projected by the prosecution, has not been established by adducing any acceptable evidence. 15. It is settled law, as laid down by this Court as well as by the Supreme Court that merely because motive has not been established or due to the absence of any motive for the attack, we cannot throw out the entire prosecution case particularly, when the evidence relating to the main occurrence through the eye witnesses is held to be acceptable. In the light of the above legal situation, let us now analyse the evidence of P.Ws.1 and 2, who are said to be the eye witnesses in this case. 16. P.W.1 is the daughter of the deceased. According to P.W.1, the deceased went to the field in the morning for the purpose of grazing his sheep. In the light of the above legal situation, let us now analyse the evidence of P.Ws.1 and 2, who are said to be the eye witnesses in this case. 16. P.W.1 is the daughter of the deceased. According to P.W.1, the deceased went to the field in the morning for the purpose of grazing his sheep. At about 12.30 p.m., P.W.1 went to the field in order to relieve the deceased so that he could go home to take mid-day meals. Strangely, in the cross-examination, P.W.1 admitted that the deceased took food (idly) at 11.00 a.m. before leaving home to the field. P.W.3 Doctor stated that he found partly digested food particles in the stomach as well as in small intestine. P.W.3 Doctor would admit in the cross examination that the deceased would have taken food two hours prior to his death. In such circumstances, we are unable to accept the evidence of P.W.1 who stated that she went to the field at about 12.30 p.m. in order to relieve the deceased to go home in order to take his mid-day meals. Admittedly, he had taken food at 11.00 a.m. in the morning. As seen from the evidence of P.W.3, the Doctor and Ex.P.3 post mortem certificate, partially digested food particles were found in the stomach. In those circumstances, it is not necessary for P.W.1 to go to the scene of occurrence to ask the deceased to go home to take mid-day meals. 17. According to the prosecution, P.W.1 on seeing the occurrence went to the Village Administrative Officer P.W.5 and gave a complaint. In the complaint, she specifically stated that the accused 1 to 3, who were armed with aruvals, inflicted injuries on the body of the deceased and the accused 4 and 5, who were armed with sticks, beat the deceased repeatedly. This is evident from the evidence of P.W.1 given in the Court. But, strangely P.W.2 would state that though the accused 4 and 5 beat the deceased with stick(kambu), the beating did not fall on the body of the deceased. This has been stated by P.W.2 even in the chief examination. On going through the records, it is clear that P.W.1 and Ex.P.1 would refer to the presence of the accused 4 and 5 with sticks and beating the deceased and causing injuries is only on the basis of the observation mahazar Ex.P.5. This has been stated by P.W.2 even in the chief examination. On going through the records, it is clear that P.W.1 and Ex.P.1 would refer to the presence of the accused 4 and 5 with sticks and beating the deceased and causing injuries is only on the basis of the observation mahazar Ex.P.5. According to P.W.10, observation mahazar was prepared at 8.00 p.m. on 10.9.1992. It is mentioned in the observation mahazar that the stick injuries were found all over the body of the deceased ("clk;g[ KGtJk; fk;go fhak; cs;sd/@). 18. Curiously, as per the medical evidence, there are no stick injuries on the body of the deceased. A perusal of Ex.P.3 post-mortem certificate and the evidence of P.W.3. would make it clear that there were no other injuries, except the cut injuries. Probably that was the reason for P.W.2 to say even in the chief examination that even though the accused 4 and 5 beat the deceased with kambu(stick), the said beating did not fall on the body of the deceased. This is quite contradictory to the evidence of P.W.1. As a matter of fact, the trial Court, on a consideration of the evidence of P.Ws.1 and 2, disbelieved their evidence in respect of the part played by the accused 4 and 5. 19. It is the case of the prosecution that all the accused 1 to 5 in prosecution of the common object of murdering the deceased, came with weapons, but the trial Court specifically held that the accused 4 and 5 did not come to the scene of occurrence and had not participated in the occurrence. On the basis of the said finding, the trial Court acquitted the A4 and A5. Not only that. In the light of the said finding, the trial Court acquitted A1 to A3 also for the offences under Sections 147 and 148 I.P.C. However, the trial Court strangely convicted the accused 1 to 3 for the offence under Section 302 read with 149 I.P.C. It is clear that the specific finding given by the trial Court is that the accused 4 and 5 were not present at the scene of occurrence, while the attack was made on the deceased. From this, it is obvious that the evidence of P.Ws.1 and 2 to the effect that all 5 accused came to the scene of occurrence and attacked the deceased at the same time, cannot be true. 20. As rightly pointed out by the learned counsel for the appellants, there is a contradiction with reference to the place of occurrence. According to P.W.1, the deceased was grazing his sheep at Shanmuga Nadar Thottam and P.W.2 was cutting grass in Mariappan Nadar's Thottam. Contrary to this, P.W.2 would state that the deceased went to Mariappa Nadar Thottam to graze his sheep and she was cutting grass in Shanmuga Nadar Thottam. From this it is clear that P.W.2 did not give the correct details of the exact place where the occurrence had taken place and where the deceased was grazing his sheep. 21. According to P.W.1, she went to P.W.5, the Village Administrative Officer and gave a complaint. According to P.W.5. after recording the complaint, he made an endorsement and sent Thalayari Subramaniam to the police station. But strangely, P.W.5 would state that after giving the report to P.W.5, Thalayari Subramaniam came to the scene and he was there till the police came in the night. P.W.2 would also state that Thalayari Subramaniam came to the scene of occurrence at about 1.00 p.m. But, it is the specific evidence of P.W.5 that he sent Subramaniam to police station at about 1.30 p.m. 22. P.W.6, the Sub-Inspector of Police would state that he received Ex.P.1 from Thalayari Subramaniam at about 5.00 p.m. Admittedly, the distance between Mudukkalankulam and Nallaltinputhur Police Station is 14 kms. According to P.W.5, Thalayari went to the police station in a bicycle. Strangely P.W.5 would state that Subramaniam came back to the village at 5.00 p.m. itself. But, Thalayari Subramaniam handed over the complaint Ex.P.1 to P.W.6 at 5.00 p.m., as per the evidence of P.W.6 Sub Inspector of Police. Therefore, it cannot be said that Thalayari Subramaniam came back to the village which is situate about 14 kms away from the Police station at 5.00 p.m. itself. Unfortunately, Thalayari Subramaniam who went to the police station to hand over Ex.P.1 to P.W.6, was not examined since he was no more. 23. Therefore, it cannot be said that Thalayari Subramaniam came back to the village which is situate about 14 kms away from the Police station at 5.00 p.m. itself. Unfortunately, Thalayari Subramaniam who went to the police station to hand over Ex.P.1 to P.W.6, was not examined since he was no more. 23. Another suspicious feature in this case is that when P.W.1 went to P.W.5 and gave Ex.P.1 complaint, there was no reason as to why P.W.5 did not take P.W.1 to the police station to give the complaint. According to the evidence available on record, as soon as P.W.1 gave Ex.P.1 complaint, even without verification of the facts, P.W.5 sent the complaint to P.W.6 Sub Inspector of Police through Thalayari and immediately after receipt of the complaint, P.W.6 the Sub Inspector of Police, hastened to register the case and send the copy of the F.I.R. to the Superior Officer. 24. According to P.W 1, P.W.2 continued to be there near the dead body. P.W.5 would state that he went to the place of occurrence after sending the complaint to the police station and nobody was found there near the dead body. Therefore, the evidence about the presence of P.W.2 in the scene of occurrence is doubtful. 25. According to P.W.6, the Sub-Inspector of police, he sent P.W.8 Constable to hand over Ex.P.1 and Ex.P.8 to the Court at Kovilpatti. In the cross- examination he would also admit that he sent Exs.P.1 and Ex.P.8 to the Judicial Magistrate No.1, Kovilpatti. But Ex.P.1 and P.8 would show that the same were not received by the Judicial Magistrate No.1, Kovilpatti, but they were received by the Special Judicial Magistrate, Kovilpatti. P.W.8 constable would state that he gave Exs.P.1 and P.8 only to the Special Judicial Magistrate, Kovilpatti as he was told that the Special Judicial Magistrate, Kovilpatti was in-charge of the Judicial Magistrate No.1, Kovilpatti. 26.The prosecution has failed to elicit from P.W.9, the Court Clerk as to who was the Officer in-charge of the Court on 10.9.1992. A perusal of Exs.P.1 and P.8 would show that the Special Judicial Magistrate, Kovilpatti put the signature on 10.9.1992 at 7.30 p.m. The same was received by the regular Judicial Magistrate only on 11.9.1992. 26.The prosecution has failed to elicit from P.W.9, the Court Clerk as to who was the Officer in-charge of the Court on 10.9.1992. A perusal of Exs.P.1 and P.8 would show that the Special Judicial Magistrate, Kovilpatti put the signature on 10.9.1992 at 7.30 p.m. The same was received by the regular Judicial Magistrate only on 11.9.1992. So, this also would create a suspicion as to whether the complaint would have been registered at 5.00 p.m.on 10.9.1992, on receipt of the same from Thalayari Subramaniam, who was actually present at 5.00 p.m. at the village as stated by P.W.5. 27. Another disturbing feature in this case is that the Investigating Officer, on coming to know that all the accused surrendered before the Court, never cared to file any application to get police custody of the accused to recover the weapons used for committing the offence. According to P.W.10 Inspector of Police(in-charge), the accused surrendered before the Court on 14.9.1992 and he came to know about the same on 16.9.1992. He would also state that he informed the same to P.W.11 on the very same day, i.e. on 16.9.1992. According to P.W.11, he took up further investigation on 16.9.1992. There is no reason as to why either P.W.10 or P.W.11 never made any application before the Court concerned to obtain police custody of the accused to recover the weapons used in the commission of the offence. 28. Due to the failure to recover the weapons, the prosecution was unable to elicit the evidence from P.W.3 Doctor by showing the weapons as to whether these weapons could have caused the injuries on the deceased. So, the failure on the part of the police officer in not getting the accused under police custody to recover the weapons would be a very serious flaw in the investigation. Thus, the Investigating Officer have not performed their duty promptly and correctly. So, the failure on the part of the police officer in not getting the accused under police custody to recover the weapons would be a very serious flaw in the investigation. Thus, the Investigating Officer have not performed their duty promptly and correctly. 29) In view of the above discussion, it is to be stated that when the main portion of the evidence in respect of the part played by the accused 4 and 5 was disbelieved by the trial Court and when it was held that the accused 4 and 5 were not present at the scene place and did not participate in the occurrence, we are unable to believe the other portion of the evidence of P.Ws.1 and 2 in respect of the acts committed by the accused 1 to 3 as it would suffer from various infirmities . 30. Thus, this Court has no other option except to conclude that the evidence of P.Ws.1 and 2, which has been disbelieved partly by the trial Court, has to be rejected in entirety, as their evidence is not impressive and consequently, the accused 1 to 3 are entitled to be acquitted by giving the benefit of doubt. 31. In fine, both the appeals are allowed and the appellants are acquitted of the charges. The appellants in both the appeals are directed to be set at liberty forthwith, unless they are required in connection with any other case.