Judgment :- N.DHINAKAR, J. Crl.A.No.827 of 2000 is by A5, Cr.A.No.881 of 2000 is by A8, Crl.A.No.939 of 2000 is by A6 and A9, Crl.A.No.979 of 2000 is by A1 to A3 and A7, and Crl.A.No.1136 of 2000 is by A4 in Sessions Case No.51 of 1997 on the file of the learned Additional Sessions Judge, Nagercoil, Kanyakumari, and in this judgment, the appellants will be referred to as A1 to A9 in the same order as they were arrayed before the learned Sessions Judge, for the sake of convenience. 2. A1, A2, A4 and A5 and A7 were charged under Section 148 IPC and A3, A6, A8 and A9 were charged under Section 147 IPC. A1 to A5 were charged under Section 449 IPC. A1 to A9 were charged under Section 364 IPC (two counts) under Charge Nos.4 and 5 for kidnapping the deceased Kannan and P.W.1 Dhanasingh. A1, A2, A4 and A5 were charged under Section 302 IPC for committing the murder of Kannan and A3 and A6 to A9 were charged under Section 302 r/w 149 IPC for sharing the common object of A1, A2, A4 and A5 in committing the said offence. A6 to A9 were charged under Section 307 IPC for attempting to murder P.W.1 and A1 to A5 were charged under Section 307 r/w 149 IPC for sharing the common object of A6 to A9 in committing the above offence. 3. The learned Sessions Judge, on the evidence adduced, finding A1, A2, A4, A5 and A7 guilty under Section 148 IPC, sentenced each one of them to suffer rigorous imprisonment for three years. He convicted A3, A6, A8 and A9 under Section 147 IPC and sentenced each one of them to undergo two years' rigorous imprisonment. A1 to A5, on being convicted under Section 449 IPC, were sentenced each to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- with a default sentence of six months' rigorous imprisonment. He convicted A3, A6, A8 and A9 under Section 147 IPC and sentenced each one of them to undergo two years' rigorous imprisonment. A1 to A5, on being convicted under Section 449 IPC, were sentenced each to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- with a default sentence of six months' rigorous imprisonment. A1 to A9 were convicted under Section 364 IPC (two counts) for kidnapping the deceased Kannan and P.W.1 Dhanasingh and each one of them was sentenced to rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- and in default of payment of the fine amount, each accused was directed to undergo rigorous imprisonment for six months, under each count.A1, A2, A4 and A5 were convicted under Section 302 IPC and sentenced each to imprisonment for life and to pay a fine of Rs.5000/- with a default sentence of rigorous imprisonment for one year. A3 and A6 to A9 were convicted and similarly sentenced under Charge No.7 framed under Section 302 r/w 149 IPC on the allegation that they shared the common object of A1, A2, A4 and A5 in committing the murder of the deceased. A6 to A9, on being convicted under Section 307 IPC for attempting to murder P.W.1, were sentenced each to undergo 7 years' rigorous imprisonment and to pay a fine of Rs.1000/- and if the fine amount is not paid, each one of them was directed to suffer rigorous imprisonment for six months. A1 to A5, on being convicted under Section 307 r/w 149 IPC for sharing the common object of A6 to A7 in committing the above offence, were similarly sentenced.The above appeals by the respective accused challenge the conviction and sentence imposed upon them. 4. The facts necessary to dispose of the appeals, as could be discerned from the oral and documentary evidence, can be briefly summarised as follows:- P.W.1 and the deceased were friends. P.W.1 was eking his livelihood by doing coolie work and he was a resident of Nagercoil. At 5.15 p.m. on 2.3.1994, P.W.1 and the deceased went to the auto-stand, which was near L.L.P. School, and engaged the auto of A1. They went to the bus-stand, where they alighted. A1 asked for the fare and the the deceased told A1 that since he had to go to some other place, he (A1) should wait. At 5.15 p.m. on 2.3.1994, P.W.1 and the deceased went to the auto-stand, which was near L.L.P. School, and engaged the auto of A1. They went to the bus-stand, where they alighted. A1 asked for the fare and the the deceased told A1 that since he had to go to some other place, he (A1) should wait. He also told A1 that he will pay the fare only at 8.00 p.m. A1 got annoyed with the deceased and told him that he should pay the fare and leave, which resulted in a quarrel between A1 and the deceased. A2, A5 and other auto-drivers supported A1 and abused the deceased. The deceased got angry and tore tarpaulin portion of several autos and thereafter, left the place accompanied by P.W.1. At about 7.30 p.m., he and the deceased went to a hotel, which was situate in P.W.D. Road, where P.W.4 was working as a supplier. While they were in the hotel, A1 to A5 went there and abused the deceased in filthy language and thereafter, A1 to A3 beat him. P.W.1 was beaten by A4 and A5. Thereafter, P.W.1 and the deceased were forcibly brought out and placed in the auto of A3. A3 drove the auto. The said auto was followed by another auto. While P.W.1 and the deceased were in the auto, they were beaten by the accused. The auto, in which P.W.1 and the deceased were seated, was stopped near a railway track. A3 got down and pulled out P.W.1 and the deceased. A1, A2, A4 and A5 were seen having vettukkathis in their hands. A1 cut him on the forehead and A4 cut him on the left side of his head. A2 cut him on his nose. A5 cut him on the right side of his head. On account of the cut injuries inflicted by the above accused, the brain matter came out and Kannan fell down dead. Thereafter, A1, A2, A4 and A5 dragged the dead body of the deceased and pushed it into a small pit. Four persons, A6 to A9, alighted from the auto which followed the auto, in which the deceased and P.W.1 were taken. On seeing P.W.1, A6 to A9 saying that he will not be left alive, attacked him. A7 stabbed him on the back. A6 with a stick beat him on his legs. Four persons, A6 to A9, alighted from the auto which followed the auto, in which the deceased and P.W.1 were taken. On seeing P.W.1, A6 to A9 saying that he will not be left alive, attacked him. A7 stabbed him on the back. A6 with a stick beat him on his legs. A8 beat him on the left cheek with a firewood log. A9 with a firewood log, which he had in his hand, beat him on the cheek and on the left hand. P.W.1 fell down and pretended as if he is dead. Thereafter, P.W.1 was also dragged towards the rails and after throwing him into a bush, the accused went away. P.W.1 waited at the spot till 12.15 a.m. on the night of 2/3.4.1994 and thereafter, proceeded to Kottar Police Station, where he gave a complaint to P.W.20, the Sub-Inspector of Police, at 12.30 a.m. P.W.20, on the basis of Ex.P-1 given by P.W.1, registered a case in Crime No.270 of 1994 against the accused under Sections 147, 148, 364, 307 and 302 IPC and prepared express reports. Ex.P-20 is a copy of the printed first information report A copy of the printed first information report was given to P.W.1, after obtaining his signature. The express reports were despatched to the higher officials and the officers were informed. 5. On receipt of the information about the registration of a grave crime, P.W.24, Inspector of Police, Crime Branch, Nagercoil, reached the police station at 12.45 a.m. on 2/3.3.1994, where he was handed over a copy of the printed first information report. P.W.24 left the police station taking along with him some police officers and reached the scene of occurrence at 1.15 a.m., where in the presence of witnesses, prepared an observation mahazar, Ex.P-7, and drew a rough sketch, Ex.P-21. He seized the brain matter as well as blood-stained earth and sample earth under a mahazar, Ex.P-8. He seized blood-stained tar portion and sample tar portion under the same mahazar. Inquest was conducted between 2.00 a.m. and 3.45 a.m. over the dead body of Kannan with the help of a petromax light and at the time of inquest, P.W.1 and others were questioned and their statements were recorded. Ex.P-22 is the inquest report. After the inquest, the dead body was handed over to a police constable with a requisition to the doctor for conducting autopsy. 6. Ex.P-22 is the inquest report. After the inquest, the dead body was handed over to a police constable with a requisition to the doctor for conducting autopsy. 6. On receipt of the requisition, P.W.6, the Civil Assistant Surgeon attached to Government Hospital, Kottar, conducted autopsy on the body of Kannan and found the following two injuries, which he noted in Ex.P-6, the post-mortem certificate:- 1.Lacerated injury over the head left side extending from the forehead to the occipital region about 9" x 2" in size the floor of the skull. Small portion of the brain was seen in the skull. 2.Multiple fracture left frontal left parietal right, right parietal, left occipital and nasal bone present. In Ex.P-6, the doctor has opined that the deceased died on account of the head injury. 7. In the meantime, P.W.24 continuing with his investigation, sent P.W.1 to the hospital as he had injuries on his person. On being referred, P.W.5, the medical officer attached to Government Hospital, Kottar, examined him and found on him the following injuries:- 1.Incised wound in the posterior aspect of hip in the midline 6 cm x 3 cm x bone-deep. 2.Laceration seen in the anterior aspect of left knee 3 x 2 cm x 1 cm. 3.Laceration 4 cm below the left knee anterior aspect 2 cm x 1 cm x ½ cm. 4.Abrasion 2 cm x 1 cm – upper 1/3 of anterior aspect of right leg. 5.Abrasion left ear 1 cm x 1 cm in the pinna. 6.Laceration in the left temporal region of scalp, oblique in direction 4 cm x 1 cm x bone-deep (Blood was seen dried up in all these wounds). 7.Abrasion left cheek 3 cm x 2 cm. 8.Abrasion left hand 4 cm x 1 cm. 9.Abrasion 2 x 1 cm on a linear contusion 3 cm x 1 cm in the left forearm. The doctor issued Ex.P-4, the wound certificate, in respect of the injuries found on P.W.1. When questioned, P.W.1 informed the doctor that he was attacked by three known and six unknown persons. The said statement of P.W.1 was also incorporated in the wound certificate, Ex.P-4. 8. P.W.24 continuing with his investigation, questioned the witnesses on 4.3.1994 and recorded their statements. On 6.3.1994, the autos bearing Registration Nos.TNK-2709 and TAD-976 driven by some of the accused, were seized. Further investigation was taken up by his successor, P.W.25, on 7.3.1994. The said statement of P.W.1 was also incorporated in the wound certificate, Ex.P-4. 8. P.W.24 continuing with his investigation, questioned the witnesses on 4.3.1994 and recorded their statements. On 6.3.1994, the autos bearing Registration Nos.TNK-2709 and TAD-976 driven by some of the accused, were seized. Further investigation was taken up by his successor, P.W.25, on 7.3.1994. P.W.25, on taking up investigation from P.W.24, verified the investigation conducted by his predecessor and searched for the accused as they were found absconding. He came to know that A1 surrendered before the Judicial Magistrate, Shencottah, on 4.3.1994 and that A4 surrendered before the Judicial Magistrate, Ambasamudram, on 8.3.1994. On 10.3.1994, he questioned P.W.9 and recorded his statement. On 16.3.1994, he filed a petition before the Judicial Magistrate No.2, Nagercoil, to take A1 and A4 into police custody and on 17.3.1994, on the orders of the court, A1 and A4 were taken into police custody and brought to the police station, where they were questioned at 3.45 p.m. in the presence of P.W.11 and another. Both the accused gave statements. Thereafter, the accused took the police party to a place and A1 produced an auto bearing Registration No.TN-74-7701 and the same was seized under a cover of mahazar attested by the witnesses. Thereafter, they were sent back to court for remand. On 21.3.1994, some more witnesses were examined and their statements were recorded. On 23.3.1994, P.W.25 examined P.W.1 and other two witnesses and recorded their statements. On the same day, an auto bearing Registration No.TCK-0113 was seized a mahazar Ex.P-23 and the same stands marked as M.O.14 in the case. On 18.4.1994, the material objects seized in the case were sent to court with a requisition to forward them for analysis. On 22.4.1994, he examined the Head Constable No.1234 and on 9.5.1994, A8 was arrested when he was near Thiruvalluvar Bus-stand at Meenakshipuram. He was brought to the police station and later, sent to court for remand. On 10.5.1994, two witnesses were examined and on 12.5.1994, he gave a requisition to the court to send item No.5, an auto, which was seized and sent to court earlier, for inspection by the motor vehicle inspector. On 13.6.1994, he questioned the doctor, P.W.5, who examined P.W.1, and recorded his statement. Later, the investigation was taken up by his successor, Kumarasamy, who laid the final report against the accused on 18.4.1995 after the completion of investigation. 9. On 13.6.1994, he questioned the doctor, P.W.5, who examined P.W.1, and recorded his statement. Later, the investigation was taken up by his successor, Kumarasamy, who laid the final report against the accused on 18.4.1995 after the completion of investigation. 9. The accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them and they denied all the incriminating circumstances. They did not examine any witness on their side. 10. The respective learned counsel appearing for the appellants/accused in the above appeals strenuously contend that the first information statement, Ex.P-1, could not have come into existence at 12.30 a.m. on the night of 2/3.3.1994 and it must have been prepared much later and after the examination of P.W.1 by the doctor, and it must have also been prepared after due deliberation between the witnesses and the police. The learned counsels further submit that the evidence of P.W.1 cannot be accepted since he had no consistent case and had come out with a false version implicating several accused and therefore, it has to be rejected. The further contention of the learned counsels is that the evidence of P.W.3 cannot also be accepted since his statement though was alleged to have been recorded on 4.3.1994 by the investigating officer, was received by the learned Magistrate only on 7.6.1994 and therefore, P.W.3 must have been projected as a witness to support the prosecution theory put forth through P.W.1. The learned counsels also submit that the evidence of P.W.1 is not supported by the medical evidence and that the accused are entitled for an acquittal. On the above contentions, we have heard the learned Additional Public Prosecutor and perused the entire recorded evidence. 11. The cause of the death of Kannan is not disputed. P.W.6, who conducted autopsy and who issued Ex.P-6, the post-mortem certificate, gave evidence and stated that the head injury found on the dead body of Kannan, when he conducted autopsy, is fatal in nature and the said injury could have been caused with a sharp-edged weapon. Therefore, we hold that Kannan died on account of homicidal violence, which fact is also not disputed before us by the accused. 12. Therefore, we hold that Kannan died on account of homicidal violence, which fact is also not disputed before us by the accused. 12. P.W.1 was examined to establish that A1, A2, A4 and A5 caused the death of Kannan by inflicting the injuries on the deceased Kannan and that in respect of the incident, a complaint was laid at Kottar Police Station at 12.30 a.m. on the night of 2/3.3.1994. As we stated earlier, according to P.W.1, the occurrence took place at about 7.30 p.m. on 2.3.1994 near a railway track. He has further stated that after the deceased was cut by A1, A2, A4 and A5 on the head, he was also beaten by A6, A8 and A9 and that A7 also stabbed him on the back of his chest. He has also stated that after the accused left, he waited for some time and thereafter, left for the police station and gave a complaint at 12.30 a.m. It is the admitted case that the distance between the scene of occurrence and the police station is one kilometer. Therefore, the fact remains that though, according to the prosecution, the occurrence took place at 7.30 p.m., the complaint, Ex.P-1 was given to P.W.20, the Sub-Inspector of Police, only at 12.30 a.m. on the next day, which means that the complaint was given after a delay of five hours. The said complaint was received by the learned Magistrate only at 2.30 a.m. though admittedly, the distance between the police station and the residence of the learned Magistrate is only 2 ½ kilometers. We are fully aware that mere delay in laying the complaint and its delayed receipt by the learned Magistrate by itself may not be a reason to reject the prosecution version if the evidence infuses confidence in the mind of the court. We have perused the evidence of P.W.1, keeping in mind the contentions raised by the respective learned counsel. We may, even at the outset, say that we are unable to accept the evidence of P.W.1. Though P.W.1 has claimed that he went to the police station from the scene of occurrence and gave a complaint, we are unable to accept that the said complaint must have been given in the manner stated by P.W.1. We may, even at the outset, say that we are unable to accept the evidence of P.W.1. Though P.W.1 has claimed that he went to the police station from the scene of occurrence and gave a complaint, we are unable to accept that the said complaint must have been given in the manner stated by P.W.1. A perusal of Ex.P-1 shows that P.W.1 has mentioned the names of A1 to A5 in the complaint and according to him, after he gave the complaint, he was sent to the hospital by P.W.20 with a memo. P.W.5, the doctor attached to Government Hospital, Kottar, examined him at about 2.00 a.m. and found on his person the injuries which he noted in Ex.P-4, the wound certificate, which we have already extracted in the earlier part of the judgment. The doctor found no contusion on his person though he found three lacerations and five abrasions and also one incised wound on the posterior aspect of the head in the midline. If, as claimed by P.W.1, he was beaten with sticks by A6, A8 and A9 and thereafter, stabbed by A7, then the doctor would have noticed contusions and a stab injury. On the contrary, as we stated earlier, the doctor found neither a stab wound nor a contusion. Even if it is to be assumed that injury No.1 found on P.W.1 is a stab wound, then there is no explanation as to why P.W.1 did not have any contused injury on his person since, according to him, he was beaten with sticks on various parts of his body including the face and head. The evidence of P.W.1 is, therefore, not supported by the medical evidence. In this background, we have to consider the evidence of the doctor, P.W.5. According to him, P.W.1 appeared before him with a memo issued by the police authorities and that he questioned him as to how he suffered the injuries. According to P.W.5, P.W.1 informed him that he was attacked by three known and six unknown persons which means that at the time when he gave the information to the doctor, he knew only the names of three persons and the names of six other persons were not known to him. According to P.W.5, P.W.1 informed him that he was attacked by three known and six unknown persons which means that at the time when he gave the information to the doctor, he knew only the names of three persons and the names of six other persons were not known to him. If that be the case, we are unable to comprehend as to how P.W.1 could have given a complaint earlier at 12.30 a.m. to P.W.20, the Sub-Inspector of Police, mentioning the names of A1 to A5. If P.W.1 knew the names of A1 to A5 and was able to mention their names in the complaint, Ex.P-1, then he would have informed the doctor that he was attacked by five known persons and four unknown persons. On the contrary, the statement of P.W.1 to the doctor, P.W.5, is totally against the prosecution version and creates a doubt whether Ex.P-1 could have been given at 12.30 a.m. as claimed by P.W.1. It is to be remembered at this stage that while P.W.1 was examined by the doctor, he has stated that he suffered injuries at Ootuvalmadam and P.W.25, who subsequently took up investigation, has admitted that the distance between Ootuvalmadam and the railway track, where the deceased was cut to death, is three kilometers. This creates a doubt whether P.W.1 was present along with the deceased when he was cut to death by the assailants and in view of the above, the possibility of P.W.1 suffering the injuries at some other place at the hands of some other persons, is not ruled out. 13. At this juncture, we cannot but refer to the contents of Ex.P-1. In Ex.P-1, P.W.1 has not only mentioned the names of five accused but also mentioned their fathers' names. In cross-examination, P.W.1 has stated that he did not know the names of the fathers of A2 and A5, but he knew the names of the other accused. He has also admitted in cross-examination that he knew A7 even before the occurrence and A8 from his childhood. He went on to add that A8 was running a petty shop in front of a school. If P.W.1 knew A7 before the occurrence and also A8 from his childhood, then there is no explanation as to why he did not mention the names of those two persons in the complaint, Ex.P-1. He went on to add that A8 was running a petty shop in front of a school. If P.W.1 knew A7 before the occurrence and also A8 from his childhood, then there is no explanation as to why he did not mention the names of those two persons in the complaint, Ex.P-1. P.W.1, who had taken the trouble of giving the names of A1 to A5 along with their fathers' names in the complaint, had no reason to suppress the names of A7 and A8 without mentioning their names, more so when he was allegedly attacked by A7, who was known to him even before the date of incident. If P.W.1 was really stabbed by A7 and if A8 was known to him from his childhood, as claimed by him, then certainly he would have mentioned at least their names along with the names of A1 to A5 in the complaint. The fact remains that he did not mention the names of A6 to A9 in the complaint, but he has given the names of A6 to A9 two weeks after the incident to the investigating officer, P.W.24, who initially conducted the investigation. It is not known as to why P.W.1 should wait for two weeks to give the names of the other accused and there is also no evidence as to how P.W.1 came to know the names of A6 to A9. The facts remains that the names of A7, who was known to him even before the occurrence, and A8, who was known to him even from his childhood, are not mentioned as the assailants in the complaint and that they were added as accused at a later point of time along with A6 and A9 by P.W.1 and that P.W.1 had no explanation also to offer as to why he did not mention the names of A7 and A8 in the complaint, Ex.P-1, and as to how he came to know the names of A6 and A9 after he gave the complaint. The absence of the names of A6 to A9 in the complaint, Ex.P-1, and the fact that the fathers' names of some of the accused, whose names are not known to him, were mentioned in the complaint, therefore, show that Ex.P-1 could not have been given by P.W.1 at 12.30 a.m. and must have been prepared at a later point of time after due deliberation. 14. We have already observed that P.W.1 had taken more than five hours to go to the police station, though it was situate only at a distance of one kilometer from the scene of occurrence. The statement of P.W.1 to the doctor, P.W.5, in the background of the delay in laying the complaint creates a doubt in the mind of the court about the time and manner in which the complaint, Ex.P-1, came into existence. Though the prosecution claimed through P.W.24 that inquest was conducted over the dead body of Kannan between 2.00 a.m. and 3.45 a.m. and that at the time of inquest, P.W.1 was questioned and his statement was recorded, we are unable to accept even the said version in view of the evidence of P.W.5. P.W.5, the doctor, in his evidence, has stated that after examining P.W.1, he was admitted as an in-patient and he was in the hospital. The evidence of P.W.5 is supported by the contemporaneous record, Ex.P-4, the wound certificate, wherein it is found mentioned that P.W.1 was admitted at 2.50 a.m. on 3.3.1994 and was discharged only at 8.00 a.m. on 11.3.1994. If P.W.1 was an in-patient from 2.50 a.m. on 3.3.1994 till 6.00 a.m. on 11.3.1994 at the hospital, then we are unable to understand as to how the investigating officer was able to examine him near the dead body, which was lying near a railway track, during the course of inquest. 15. The evidence of P.W.1 is also not supported by the medical evidence. The doctor, P.W.6 found one laceration on the head of the deceased and noted multiple fractures on the left frontal, left parietal, right parietal and left occipital bones. The doctor did not specifically say that injury No.1 would have caused the fractures which are found noted as injury No.2. Even if it is to be assumed that injury Nos.1 and 2 are independent injuries, the case of the prosecution as brought out through P.W.1, is not supported by the medical evidence, as, according to P.W.1, the deceased was cut by A1, A2, A4 and A5 on the head. If that be the case, the doctor would have found at least four injuries on the head, but he found only one injury and was emphatic in giving his answer in cross-examination that he found only one injury on the head of the deceased. If that be the case, the doctor would have found at least four injuries on the head, but he found only one injury and was emphatic in giving his answer in cross-examination that he found only one injury on the head of the deceased. On the discussion made above, we are not able to accept the evidence of P.W.1 and accordingly, we reject it. 16. The evidence of P.W.3 cannot also be accepted since his statement, though was alleged to have been recorded on 4.3.1994 by the investigating officer, was received by the learned Magistrate only on 7.6.1994 and there is no explanation from the side of the prosecution for the said delay. Though P.W.4 was examined to say that P.W.1 and the deceased were kidnapped from the hotel, he turned hostile and therefore, there is no other evidence which can be taken into consideration by this court for finding the accused guilty at least under Section 364 IPC. 17. In view of the discussion made above, we acquit the appellants/accused of all the charges and they are acquitted. The appeals are allowed. It is reported that A1, A2, A4 and A5 are in jail. If so, they are directed to be released forthwith unless they are wanted in connection with any other case. The bail bonds, if any executed by A3 and A6 to A9, who are reportedly on bail, shall stand cancelled. The fine amount, if any, paid by the appellants/accused shall be refunded.