Judgment :- A.S.VENKATACHALAMOORTHY, J. A-1 in Sessions Case No.19 of 1999 on the file of the I Additional Sessions Judge, Tirunelveli, is the appellant in Cr. Appeal No.646 of 2000 while A-2 and A-3 are the appellants in Cr. Appeal No.647 of 2000. They, along with two other accused, were tried by the learned First Additional Sessions Judge for various charges including one under Section 302 IPC. (2 counts) read with 149 IPC. for causing the murder of one Durai Kutti @ Sowri Raj and Lourdu Micheal at about 3 P.M. on 25.12.1997 at Elandakulam. The Sessions Court, while acquitting the other two accused, found the appellant in C.A. No.646/2000 guilty under Section 302 IPC. (2 counts) and sentenced him to undergo life imprisonment and to pay a fine of Rs.5,000/-. The appellants in C.A. No.647 of 2000 were found guilty under Section-326 IPC. (2 counts) and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- 2. Questioning the correctness of the said Judgment, Criminal Appeal Nos.646 and 647 of 2000 have been filed. The State of Tamil Nadu has filed Criminal Appeal No.134 of 2001, praying the Court to convict A-2 and A-3 under Section-302 read with Section 34 IPC (two counts). As all the above appeals have been filed as against the judgment in Sessions Case No.19/2000, the same can be disposed of by Common Judgment. 3. Duraikutti @ Sowri Raj (hereinafter referred to as "the 1st deceased"), Lourdu Michael (hereinafter referred to as "the 2nd deceased") and PW-4 Paulsamy are brothers. PW-1 is the wife of the first deceased. A-1's sister's husband is A-2. A-3 is A-2's brother's wife. The other accused, who have been acquitted, are closely related to these accused. The first deceased was a resident of Elandakulam, carrying on the business of tree-tapper. PW-1 has been engaged in the manufacture of hand-made beedis. About one month prior to the occurrence, PW-4 Paulsamy purchased some seedlings from Cheellappa viz., the husband of A-3 for which he had paid Rs.22/-. As the said amount only represented part of the sale price, Chellappa asked Paulsamy to pay the remaining amount and that was on a Monday. On the next day, Chellappa had beaten PW-4 Paulsamy in a paddy field at Velakulam. In this regard, there was a panchayat in the village. Chellappa refused to attend the panchayat. As the said amount only represented part of the sale price, Chellappa asked Paulsamy to pay the remaining amount and that was on a Monday. On the next day, Chellappa had beaten PW-4 Paulsamy in a paddy field at Velakulam. In this regard, there was a panchayat in the village. Chellappa refused to attend the panchayat. On that day, PW-4 Paulsamy had a guest from Pondicherry. On the next day, to give him a 'send-off', Paulsamy went to the bus-stand at about 2.15 P.M. and at that time, Chellappa had beaten Paulsamy. Immediately, Paulsamy complained about this to PW-3, the community leader in the village. Hearing about this incident, the 2nd deceased and PW-5 each armed with aruval ran towards west. Before that, PW-1 and the first deceased requested them not to go, but however, they did not heed to their request. Fearing that something untoward might happen, PW-1 and her husband went to meet PW-4 Paulsamy. But, Paulsamy was not available in his house. Thereafter, PW-1 and the first deceased ran towards west, near the bus-stand. At that time, they saw A-1 running with a velkambu, A-2 & A-3 with palai aruval and A-4 & A-5 with stones. Near the corner leading to Thalaikulam, A-2 attempted to cut PW-5. The first deceased asking A-2 not to cut, tried to catch him. At that time, A-1 with velkambu stabbed the first deceased on the chest and thereafter on the left and right hands and the first deceased fell down. Then, A-2 cut the deceased with aruval on the right shoulder. A-1 again with velkambu stabbed the 2nd deceased on his right hand, left hand, head, cheek and other places. While A-2 cut the 2nd deceased on the right hand, A-3 on the hip twice and other parts of the body. Thereafter, A-3 cut the first deceased on the neck, face etc. A-4 and A-5 threw stones aiming at both the deceased. Both the first and second deceased died on the spot. A-3 and A-5 then came to attack PW-1, but she somehow managed to escape, and went to Mukkudal Police Station. At the police station, she gave complaint Ex.P-1 and the same was reduced to writing and her signature was obtained. PW-18, the Sub Inspector of Police registered Cr. No.223/97 under Sections 147, 148, 323, 324 and 302 IPC. and prepared Ex.P-29, the Express FIR. At the police station, she gave complaint Ex.P-1 and the same was reduced to writing and her signature was obtained. PW-18, the Sub Inspector of Police registered Cr. No.223/97 under Sections 147, 148, 323, 324 and 302 IPC. and prepared Ex.P-29, the Express FIR. Thereafter, the Express FIR and Ex.P-1 complaint were sent to the court of Judicial Magistrate and copies were sent to his superiors. PW-19 was the Inspector of Police at the relevant time in charge of Mukkudal police station. On 25.12.1997, he received a wireless message about the incident and proceeded to Mukkudal Police Station. After getting copy of the Express FIR, he proceeded to the scene of occurrence and reached there at about 5.30 P.M. After inspecting the scene, he prepared observation mahazar Ex.P-2 and sketch Ex.P-30 in the presence of witnesses PW-6 and others. Bloodstained earth MO-1 and ordinary earth MO-2 (in respect of 2nd deceased) were seized by him under Ex.P-3 mahazar in the presence of witnesses. Similarly, bloodstained earth MO-3 and ordinary earth MO-4 (in respect of first deceased) were seized by the Inspector under Ex.P-4 mahazar. Inquest over the body of the first deceased was conducted and Ex.P-31 is the inquest report. Similarly, he conducted inquest over the body of the 2nd deceased and Ex.P-32 is the inquest report. Both the bodies were sent to the Government Hospital, Ambasamudram with necessary requisitions. PW-12 is the Doctor attached to Ambasamudram Government Hospital. On the basis of the requisition Ex.P-23 from the Inspector of Police, she conducted post mortem on the body of the first deceased on 26.12.1997 at 1 P.M.. Ex.P-24 is the post mortem certificate issued by her, wherein she had noted the following:- " Its condition then was Rigor Mortis present in all four limbs. Post Mortem commenced at 1.00 P.M. on 26.12.1997. Appearances found at the post mortem: A male body lies on its back, moderately nourished, eyes closed. Ear & Nose no discharge, mouth opened, tongue inside. Teeth 8 + 8 8 + 8 External Injuries:- 1. A obliquely placed stab injury of size 10 x 5 x 12 cm. injuring spleen & stomach present in left side of back 8 cm. below vertebra (confirmed on opening the abdomen). 2. An abrasion on lower 1/3rd of left fore arm 3 x 1 cm x ½ cm. 3. A cut injury of size 3 x 2 x 2 cm. injuring spleen & stomach present in left side of back 8 cm. below vertebra (confirmed on opening the abdomen). 2. An abrasion on lower 1/3rd of left fore arm 3 x 1 cm x ½ cm. 3. A cut injury of size 3 x 2 x 2 cm. present on outer aspect of upper 1/3rd of right arm. 4. A cut injury on left side of neck 7 cm. above the collar bone of size 5 x 3 x 3 cm. 5. A cut injury on left side of neck 1 cm. above the 4th injury of size 4 x 2 x 3 cm. 6. A cut injury on lateral aspect of left eye-brow of size 4 x 1 x 3 cm. 7. A cut injury on left fore head 5 cm. above the 6th injury of size 2 x 1 x ½ cm. 8. A cut injury below the left eye of size 3 x 2 x 3 cm. 9. A cut injury of size 2 cm. x ½ cm. x 2 cm. on middle 3rd of outer aspect on left upper arm. Internal Examination:- Hyoid bone intact, Heart pale, channel's empty. Lungs pale. Liver pale, Spleen injured size 3 cm. x ½ cm. Kidney pale. Stomach injured, partially digested food particles of about 400 gms. expelled to peritoneal cavity through the Rest in stomach by size 10 cm. x ½ cm. Intestines distended with gas. Peritoneal cavity contains clots & partially digested food particles. Bladder empty X the rib fractured on left side. " The Doctor had opined therein that the deceased would have died of shock and haemorrhage due to the injuries sustained. The further opinion is that injury No.1 is fatal and that death would have occurred about 20 to 24 Hours prior to post mortem. PW-10 is the Doctor attached to the same Hospital, who, on the basis of the requisition Ex.P-17 received from the Inspector of Police, conducted post mortem on the body of the 2nd deceased on 26.12.1997 at 11.40 A.M. Ex.P-18 is the post mortem certificate issued by him, wherein, he has noted as under:- " A moderately nourished body. Eyes partially closed. No discharge from mouth and nostrils. Teeth 8 + 8 Tongue inside mouth. 8 + 8 External injuries:- 1. A curved out injury of 20 x 4 x 10 cm. Eyes partially closed. No discharge from mouth and nostrils. Teeth 8 + 8 Tongue inside mouth. 8 + 8 External injuries:- 1. A curved out injury of 20 x 4 x 10 cm. just below lower jaw in front of upper part of cheek. extending left angle of mandible to right angle at depth of wound. Trachea opened. Pharynx seen food material oozes out. Hyoid intact. 2. A horizontal cut injury 10 x 4 x 7 just below injury No.1 right carotid vessels and trachea cut. 3. An oblique cut injury of 10 x 6 x 5 cm. at the lateral aspect of right upper arm just below deltoid underneath muscles cut. 4. An oblique cut injury of 6 x 2 x 2 cm. on the anterior aspect of right elbow, underlying muscles cut. 5. A cut injury of 3 x 2 x 2 cm. on the lateral aspect of right elbow. 6. A cut injury 3 x 1 x 1 cm. just above left eyebrow. 7. A cut injury 3 x 1 x 1 just lateral to left eye. 8. A cut injury of 3 x 1 x ½ cm. on the left parietal region of scalp. 9. A stab injury of 3 x 1 x 5 cm. on the lateral aspect of right shoulder. 10. A horizontal cut injury of 10 x 4 x 6 cm. on the upper part of back of neck 4" below posterior hair line underneath cervical vertebra No.2 and 3 cut. 11. A stab injury of 6 x 3 x 8 cm. on the left side of neck. 12. A horizontal cut injury of 6 x 3 x 5 cm. just above the injury No.11. 13. A stab injury of 2 x 1 x 3 just above the dorsal aspect of left wrist. Internal Examination:- Heart-empty. Liver, Lungs, Kidneys, Spleen-pale. Bladder-empty. Stomach about 500 gms. partially digested food materials present. Smell of alcohol present. Intestine – bellowed. Brain-pale. Death would appear to have occurred about 18 to 24 hrs. prior to post-mortem examination." The Doctor had opined therein that the deceased would have died of shock and haemorrhage due to the injuries sustained by him. At about 6.15 P.M. on 27.12.1997, near a bridge close to Singamparai village, the Inspector arrested A-3 to A-5 in the presence of PW-7 and others. All the accused gave separate confession statements. prior to post-mortem examination." The Doctor had opined therein that the deceased would have died of shock and haemorrhage due to the injuries sustained by him. At about 6.15 P.M. on 27.12.1997, near a bridge close to Singamparai village, the Inspector arrested A-3 to A-5 in the presence of PW-7 and others. All the accused gave separate confession statements. Ex.P-5 is the admissible portion in the confession statement of A-3 while Ex.P-6 is that of A-4. Both A-3 and A-4 took the police party and produced MOs-5 and 6 respectively and the same were recovered under mahazars Exs.P-7 and P-8 respectively in the presence of witnesses. Since the cloths of A-3 were found bloodstained, the same were seized in Form-95. A-1 and A-2 surrendered before the Judicial Magistrate, Nanguneri and the Inspector secured police custody by moving the Court. A-1 and A-2 were examined in the presence of PWs-8 and 9. They also gave separate confession statements. A-1 offered to produce the weapon velkambu, which he used to attack the deceased and the admissible portion in his confession statement is Ex.P-33. The admissible portion in the confession statement of A-2 is Ex.P-34. Both the accused took the police party and produced MOs-15 and 16 respectively and the same were recovered under mahazars Exs.P35 and P36. The material objects recovered were produced before Court with a requisition to send the same for chemical analysis. The Inspector of Police proceeded with the investigation and examined the witnesses on various dates. Ex.P-21 is the chemical analysis report while P-22 is the report of the Serologist. The Inspector, after completing the investigation, filed his final report. 4. When the accused were questioned under Section 313 Cr.P.C., they pleaded total ignorance and denied having any complicity in the commission of the crime. 5. PW-12 is the Doctor attached to Ambasamudram Government Hospital. She, on receiving the requisition Ex.P.23 from the Inspector of Police, conducted post mortem on the body of the first deceased. She commenced post mortem on 26.12.1997 at about 1 P.M. Ex.P-24 is the post mortem certificate. We have already extracted the relevant portion from the post mortem certificate, which would give us an idea about the nature of injuries, which the first deceased suffered. The Doctor, both in the post mortem certificate as well as before court, has opined that the deceased died of shock and haemorrahge. We have already extracted the relevant portion from the post mortem certificate, which would give us an idea about the nature of injuries, which the first deceased suffered. The Doctor, both in the post mortem certificate as well as before court, has opined that the deceased died of shock and haemorrahge. According to her, the deceased would have died about 20 to 24 hours prior to autopsy and that the injuries on the deceased could have been caused by weapons like MOs-15 and 16. 6. It was PW-10 Dr.Arunachalam, who conducted post mortem on the body of the 2nd deceased on 26.12.1997 at 11.40 A.M. and issued Ex.P-18, the post mortem certificate. We have already referred to the nature of injuries sustained by this deceased by extracting relevant portion from the post mortem certificate. The Doctor has opined that the deceased would have died of shock and haemorrhage about 18 to 24 Hours prior to post mortem and that injury Nos.9, 11 and 13 could have been caused by velkambu while the others by aruval. The medical evidence placed before Court would amply prove that both the deceased died only due to homicidal violence. 7. The question for consideration is as to whether, the prosecution has proved its case beyond all reasonable doubts? 8. According to PW-1, the wife of the first deceased, her husband's brother PW-4 Paulsamy had purchased seedlings from Chellappa, the husband of A-3 and for which he paid Rs.22/- and that was considered by Chellappa as not the full payment due to him. On that score, there was enmity between them and that on the fateful day, when Paulsamy went to the Bus-stand along with his guest to see him off at about 2.15 P.M., the said Chellappa beat Paulsamy. Hearing about this, the 2nd deceased and PW-5 ran towards the place where such incident took place, taking aruvals with them. The appeal made to them by PW-1 and her husband, the first deceased did not yield any result. Thereafter, PW-1 and her husband went to inform PW-4, but however, he was not available. This made them to proceed towards the place near the Bus-stand where the occurrence took place. According to PW-1, A-1 armed with velkambu; A-2 & A-3 with palai aruval and A-4 & A-5 with stones, attacked both the deceased. The occurrence was witnessed by PWs-2 and 13 also. This made them to proceed towards the place near the Bus-stand where the occurrence took place. According to PW-1, A-1 armed with velkambu; A-2 & A-3 with palai aruval and A-4 & A-5 with stones, attacked both the deceased. The occurrence was witnessed by PWs-2 and 13 also. According to PW-1, when she went near the deceased with tears, A-3 to A-5 came to attack her and somehow, she managed to run away to the police station to give complaint. Complaint was given at 4.30 P.M. and police arrived at the spot at 5.30 P.M. and then investigation started. 9. We may straight away point out that PW-2 by name Manonmani has turned hostile. As far as other witness PW-13 Sebastian is concerned, he has not spoken to anything in his evidence about the occurrence. That being so, the evidence of PWs-2 and 13 is not helpful to this court and the entire case rests upon as to whether the testimony of PW-1 is reliable and can be safely acted upon. We will now proceed to consider the same. 10. Deceased-1 and 2 and PW-4 are brothers. PW-5 is the son of PW-4. On the accused's side, all the three accused are closely related. Admittedly, there has been enmity between these two groups. We have to examine the testimony of PW-1 in this background. Also to be mentioned is that just prior to this occurrence, there was another incident, where A-3's husband Chellappa was done to death and a complaint was lodged against the first deceased, 2nd deceased and PWs-4 and 5. Trial went on only against Paulsamy and Chinnadurai in Sessions Case No.411/1998 on the file of the learned I Additional Sessions Judge, Tirunelveli since other two also died on the same day ie., 25.12.1997. Certified copy of the Judgment in the above case is produced by the learned Additional Public Prosecutor and it is seen that PW-4 Paulsamy and PW-5 Chinnadurai have been convicted under Section 324 read with 34 IPC. and sentenced to undergo rigorous imprisonment for three years. 11. The occurrence about which we are concerned took place nearly within half an hour from that occurrence. What we are trying to impress upon is that there was bitter enmity between both these groups. and sentenced to undergo rigorous imprisonment for three years. 11. The occurrence about which we are concerned took place nearly within half an hour from that occurrence. What we are trying to impress upon is that there was bitter enmity between both these groups. Hence, for the reason that PW-1 is none else than the wife of the first deceased, and that there has been bitter enmity between these two groups, this Court has to be very cautious while examining the testimony of PW-1. By so doing, if the testimony of PW-1 infuses confidence, this Court would proceed to consider as to what is the offence that has been committed by A-1 to A-3. 12. The evidence of PW-1 is to the effect that Chellappa beat PW-4 Paulsamy and the latter immediately informed the leader of the village PW-3. According to PW-1 hearing about the incident, the 2nd deceased and PW-5 each armed with aruval ran, saying that they will go and finish off Chellappa. The further evidence is that PW-1 and first deceased's efforts to prevent them failed and hence they went to inform this to Paulsamy. According to PW-1, as Paulsamy was not there, she and the first deceased proceeded to the place where the 2nd deceased and PW-5 rushed ie., to the scene of occurrence. 13. Now, first we have to examine whether this part of evidence of PW-1 is true, since that will answer the question whether PW-1 has satisfactorily explained for her presence at the scene of occurrence. PW—3 Sudan is the leader of the Nadar Community in that village. Though he would say that there was misunderstanding between Chellappa and Paulsamy with reference to sale of seedlings, but he has not spoken to about any complaint lodged by Paulsamy on the fateful day. Secondly, according to PW-1, when the second deceased and PW-5 rushed to attack Chellappa, she and the first deceased followed them. PW-4 has not supported the case of the prosecution and he has turned hostile. PW-5 Chinnadurai is none else than the son of PW-4. We find that PW-5 has deposed that he was not beaten on the fateful day and thus he has also not supported the prosecution case. Admittedly, the incident took place away from the house of PW-1, somewhere near the bus stand. PW-5 Chinnadurai is none else than the son of PW-4. We find that PW-5 has deposed that he was not beaten on the fateful day and thus he has also not supported the prosecution case. Admittedly, the incident took place away from the house of PW-1, somewhere near the bus stand. Thus, As to how PW-1 happened to be there at the scene of occurrence at the relevant time has not been satisfactorily proved. In the complaint Ex.P-1, it is clearly stated that when PW-1 and the first deceased rushed to the scene, PW-2 Manonmani and PW-13 also followed them. We have already pointed out that PWs-2 and 13 have not supported the prosecution case. In the said complaint, it is stated that when they neared the bus stand, the accused attacked the deceased. PW-1, in the cross examination, has clearly admitted that invariably, near the bus stand, there will be 15 to 20 persons standing, probably waiting for bus. When that being so, non-examination of independent witnesses would be a factor, which this Court will take note of. Yet another contradiction this Court finds is that both according to Ex.P-1 and the chief examination of PW-1, PW-1 went to the police station and gave the complaint. But however, in the cross examination, she has stated as under:- This would only suggest that with reference to the earlier incident, police might have been informed and that is how they came there and PW-1 happened to see them on her way to the police station. Now, coming to the occurrence as such, there are some contradictions with reference to the weapons used and injuries caused. According to the complaint Ex.P-1, A-4 was armed with aruval and she cut the first deceased on the left eye and backside of the head. But, in the evidence, this has been given a go-bye and the weapon given to A-4 is only a stone. We also find that only with reference to one weapon, blood group had been detected. Further, the mahazar witnesses for recovery have turned hostile. As to when A-3 was arrested, there is a contradiction. While according to the police she was arrested on 27.12.1997, PW-13 an independent witness has categorically deposed before court that she was arrested on the very same day. 14. Further, the mahazar witnesses for recovery have turned hostile. As to when A-3 was arrested, there is a contradiction. While according to the police she was arrested on 27.12.1997, PW-13 an independent witness has categorically deposed before court that she was arrested on the very same day. 14. On the basis of the above discussion, can it be said that the testimony of PW-1 is reliable and it infuses confidence of the Court and can it be acted upon without any corroboration whatsoever?; and Can it be said that the prosecution has proved its case beyond all reasonable doubts? Our answer is emphatically "No". 15. Having come to the above conclusion, we are of the considered view that the prosecution has not established its case beyond all reasonable doubts. 16. In the result, Crl. Appeal Nos.646 and 647 of 2000 are allowed. The conviction and sentence imposed on the appellant in Crl. Appeal 646/2000 (A-1 in S.C. No.19/99) under Section-302 IPC (2 counts) and on the appellants in Crl. Appeal No.647/2000 (A-2 and A-3 in S.C. No.19/99) under Section-326 IPC. (2 counts) are hereby set aside. They shall be set at liberty forthwith, unless they are required in connection with any other case. The fine amount paid by them shall be refunded to them. The appeal preferred by the State in Criminal Appeal No.134 of 2001 shall stand dismissed.