Judgment :- (Appeal filed under Section 374 Cr.P.C. against the judgment made in S.C.No.48/95 dated 5.1.1996 on the file of the Sessions Judge, Dindigul.) M. Thanikachalam, J. The challenge in this criminal appeal is the conviction and sentence suffered by the accused in S.C.No.48/95 on the file of the Principal Sessions Judge, Dindigul. 2. The Inspector of Police, Dindigul Police Station, by filing a final report, compelled the accused/appellant, to face the trial, for an offence under Sections 420 and 302 I.P.C. on the grounds, that the accused had borrowed a sum of Rs.3,000/- from one Sandhiyagu, that later on, when the dispute had arisen between the accused and Sandiyagu, regarding the nonpayment of the amount, the accused in order to cheat the deceased and with an intention to commit murder, assaulted him on 22.4.1994, during mid night, and in this view, he should be dealt with appropriately. 3. The learned trial Judge, having satisfied himself to proceed further, framed charges, questioned the accused. The accused denied the offences, thereby compelled the prosecution to examine 11 witnesses, seeking support from 14 documents as well as 11 material objects. The evaluation of the above materials in the wisdom of the learned trial Judge, brought to surface the guilt of the accused under both the charges and in this view, he convicted and sentenced the accused, to undergo R.I for five years for the offence under Section 420 I.P.C; and life imprisonment for the offence under Section 302 I.P.C., thereby giving cause of action for the accused, to come to this Court. 4. Brief facts of the prosecution case, leading to conviction, as exposed by the prosecution witnesses. (a) Tmt. Kesammal (P.W.1) is the mother of Sandhiyagu and Tmt. Nambikai Mary is the wife of the said Sandhiyagu. They are residing at Sirumalai Village, which lies within the Sessions Division of Dindigul. The accused is a Ceylone refugee. In order to have a home of his own, it is said, the accused had borrowed a sum of Rs.3,000/- from Sandhiyagu, promising to return the same within 10 days. The request was complied with by Sandhiyagu. On his failure to keep up the promise in returning the amount within 10 days, P.W.1 and Sandhiyagu demanded the amount, accusing the accused, that he is delaying the payment, in the presence of P.W.3. The request was complied with by Sandhiyagu. On his failure to keep up the promise in returning the amount within 10 days, P.W.1 and Sandhiyagu demanded the amount, accusing the accused, that he is delaying the payment, in the presence of P.W.3. Then, the accused promised to pay the amount on 22.4.1994 during midnight at 12’o clock. (b) As undertaken by the accused, on 22.4.1994 at 12.00 midnight, he came to the house of Sandiyagu and knocked the door. On hearing the knocking, Sandhiyagu, P.W.1 who is said to be residing near the house of Sandhiyagu and P.W.2 woke up. The accused reported to Sandhiyagu that the amount is with a person, who is standing outside and if he comes with him, the amount will be paid. Despite the protest by P.Ws.1 & 2, believing the words of the accused, Sandiyagu followed the accused. P.Ws.1 & 2 doubting the conduct of the accused followed them. When they have reached near Suriya Estate, the delay caused by the accused was questioned and immediately, the accused took M.O.1 knife, stabbed Sandhiyagu over the chest and caused stab injuries. When P.W.1 raised alarm, which was witnessed by P.W.2 also, along with others, the accused took his heels from the scene of crime, leaving the cover of M.O.1 viz., M.O.2 as well as his chappals M.O.3. Thereafter, with the help of Manivelu, P.Ws.1 & 2 took the injured to Dindigul Hospital, through a bypass lorry. (c) P.W.5, the doctor who had seen the injured, noticed no life and declared so, making arrangement to keep the body in the mortuary. The mother of the deceased thereafter, went to the police station and informed the matter to the then Sub Inspector of Police. P.W.9 who had reduced the same into writing and registered a case in Cr.No.442/94 under Section 302 I.P.C. (d) P.W.11, on receipt of the copy of F.I.R., commenced the investigation and in that process, went to the scene of crime, prepared observation mahazar, in the presence of P.W.4 and another witness, recovered M.Os.2 to 5 also from the scene of crime. He had also conducted inquest over the body of Sandiyagu in the hospital and the result is incorporated in Ex.P.14. In continuation of the investigation, he had examined P.Ws.1 to 4 and recorded their statements. He had also conducted inquest over the body of Sandiyagu in the hospital and the result is incorporated in Ex.P.14. In continuation of the investigation, he had examined P.Ws.1 to 4 and recorded their statements. (e) At the request of the investigating officer, P.W.10 conducted autopsy over the body of Sandiyagu and noted the following injuries, as indicated in Ex.P.12: “A sharp edged incised wound 8cm length transverse wound gapping in the middle 2cm epigartic region, more on left side. Probe passed went upwards and left into the thoracic cavity. Opening of the wound, soft (nc) and subcutaneous tissue, intercostal muscles injured found lacerated at 4th and 5th intercostals space left. Fracture complete 5th rib left new sternocostil margin. On opening of the thorax about 1-1/2 of litres of blood found on the pleural cavity. Clean transverse cut wound pericardiam 4 cm left a clean cut 3 cm wound right atriam.” He had also opined that Sandiyagu died on shock and hemorrhage due to the injuries to vital organs. (f) P.W.11 in continuation of the investigation, on information, arrested the accused in the presence of P.W.6 and another, obtained a disclosure statement, then on that basis, recovered M.O.1 and thereafter, from his person, he recovered the dresses M.Os.6 to 11 also. The conclusion of the investigation revealed that the accused had not only committed cheating, but also committed murder with intention and in this way, a final report came to the filed, as aforementioned, leading to trial, ending in conviction, as requested, which is under challenge before us. 5. The learned trial Judge, despite the objections, taken by the accused that P.Ws.1 & 2 could not be the eye witnesses, accepted them as eyewitnesses. The delay in preferring complaint as well as the in the F.I.R. reaching the court was also questioned, but the same was ignored by the learned trial Judge, as insignificance. Rejecting all the defence and abruptly coming to the conclusion, that the accused had failed to return a sum of Rs.3000/-, which would come within the meaning of cheating, convicted the accused, in addition for 302 I.P.C. also. 6. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor. 7. Rejecting all the defence and abruptly coming to the conclusion, that the accused had failed to return a sum of Rs.3000/-, which would come within the meaning of cheating, convicted the accused, in addition for 302 I.P.C. also. 6. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor. 7. On the following grounds, a strenuous argument was made by the learned counsel for the accused/appellant, to dislodge the findings of the trial court, causing abrasion and dark cloud over the prosecution case, that (1) The motive part leading to the alleged incident has not been proved. (2) The oral evidence of P.Ws.1 & 2 is highly artificial and unbelievable, (3) The arrest and recovery said to have been made in this case must be false, even to the knowledge of the investigating officer. (4) Important independent witnesses said to have been present at the time of the alleged incident have not been examined, including the lorry driver, who helped P.Ws.1 & 2 to bring the injured to the hospital. (5) There is an inordinate delay in the F.I.R. reaching the court. 8. Per contra, the learned Additional Public Prosecutor submits, that though P.Ws.1 & 2 are interested witnesses, in the sense being mother and wife of the deceased, no case is made out to eclipse their inspiring evidence, which proves not only motive, but also the actual incident. In this view, supporting the findings of the trial Court, in its entirety, a submission was made for the dismissal of the appeal. 9. The prosecution case that the accused borrowed a sum of Rs.3000/- prior to six months from the date of incident, from the deceased, the non payment of the same amounts to cheating and this non payment of the amount alone had given cause of action for the subsequent incident. Unless the borrowing is proved, in our opinion, the entire edifice of the prosecution case should collapse. 10. The learned trial Judge, without going through the ingredients for Section 420 I.P.C., in our opinion, erroneously convicted the accused, which requires certainly, eraser. An offence under Section 420 I.P.C. could be made out, if the ingredients required for Section 415 are proved. Section 415 says there should be deceiving any person fraudulently or dishonestly, inducing that person to deliver any property, etc. An offence under Section 420 I.P.C. could be made out, if the ingredients required for Section 415 are proved. Section 415 says there should be deceiving any person fraudulently or dishonestly, inducing that person to deliver any property, etc. Here, even as per the case of the prosecution, a sum of Rs.3,000/- was borrowed by the accused as a hand loan. Therefore, the non payment of the said amount will not come within the meaning of cheating, attracting Section 420 I.P.C. It is not the case of the prosecution even at the inception of borrowing the money, the accused had the intention to cheat the deceased in order to attract Section 415 I.P.C. followed by Section 420 I.P.C. Assuming the worst, the accused had borrowed a sum, which is not proved, the non payment of amount would not attract Section 420 I.P.C. and in this view, we are inclined to set aside the conviction and sentence slapped upon the accused under Section 420 I.P.C. 11. The case of the prosecution that the accused had borrowed a sum of Rs.3000/- remains as dead letters, since we are unable to find out any inspiring, acceptable evidence, to prove this money transaction. The accused is a cylone refugee and he is staying in the camp. The case projected through P.Ws.1 & 2 is that the accused had borrowed a sum of Rs.3000/- for the purpose of purchasing a house. If the accused had purchased a house, after the date of the alleged hand loan, on that basis, it could be presumed that there was some money transaction. There is no evidence of any kind, to establish that the accused utilizing the amount said to have been borrowed by him, purchased the house, fixing the sale. There is no exchange of notices also between the parties, though it is said the debt was alive for six months or so. Except the inconsistent evidence of P.Ws.1 & 2, mother and wife of the deceased, there is no other evidence. P.W.1 would state that the accused requested her son a hand loan of Rs.3000/-, promising to repay the same within 10 days. It is not her case that the amount was borrowed by the accused for the purpose of purchasing a house. P.W.2 would state that the accused had borrowed a sum of Rs.3000/- for a purchase of house. P.W.1 would state that the accused requested her son a hand loan of Rs.3000/-, promising to repay the same within 10 days. It is not her case that the amount was borrowed by the accused for the purpose of purchasing a house. P.W.2 would state that the accused had borrowed a sum of Rs.3000/- for a purchase of house. If that is so, at least after the lapse of 10 days, i.e. after the passing of the deadline, there should have been exchange of notices or some demand. P.W.1 would state that on one Friday, when she and her son requested the amount at about 12.00 noon from the accused, in the presence of P.W.3 and others, there was a dispute and thereafter, the accused promised to repay the amount during midnight. 12. P.W.3 had not spoken about the assurance given by the accused, regarding the repayment of the amount on the same night. She had also not stated about the quantum of amount. The case spoken by P.W.1 that the accused promised to pay the amount at mid night itself, creates a considerable doubt in the prosecution case. Since it seems, Sandhiyagu died during night hours, a false case is constructed, as if the accused promised to return the amount during night hours, which is known to P.W.1. This artificial evidence is not even supported by P.W.2, since she was admittedly not present. Hence, the evidence of P.W.1 that the deceased promised to pay the amount at around 12.00 mid night, appears to be highly unbelievable and unacceptable. In this view of the matter, the motive alleged is also vanishes, compelling us to think that the accused would not have come to the residence of the deceased, in order to call him, pretending to pay the amount, which he is said to have borrowed. The contention of the learned counsel for the appellant, that P.Ws. 1 & 2 could not have witnessed the incident being present, is well acceptable to us, considering the facts and circumstances of the case. The Accident Register issued after the admission of Sandiyagu would indicate that one Manivelu had brought the injured to the hospital. If really, P.Ws 1 & 2 had admitted the injured in the hospital being present at the time of the incident, then naturally their names should have found place in the medical record, which is not so. The Accident Register issued after the admission of Sandiyagu would indicate that one Manivelu had brought the injured to the hospital. If really, P.Ws 1 & 2 had admitted the injured in the hospital being present at the time of the incident, then naturally their names should have found place in the medical record, which is not so. This is one of the ground, to exclude these two from the area of eye witnesses. 13. P.Ws.1 & 2 would state that after the incident, they took the injured to the hospital in a lorry, which came through that way. It is the further case of P.Ws.1 & 2 that in order to stop the oozing of the blood from the injury, they tied a cloth. If this is the fact, then in the dresses worn by P.Ws.1 & 2, the blood of the injured should have stained. Then, the case P.Ws.1 & 2 accompanied the injured from the scene of crime, must be known to the lorry driver, an independent witness. It is the case of P.W.1 also, that after the accused took the deceased, Arulanandam also accompanied her. She further says, on hearing the alarm raised by her, Rajammal (P.W.3), Samanu, Arulanandam and her eldest son Manivelu came there. The lorry driver or the other witnesses said to have been present, as spoken by P.W.1, have not been examined. The only other witness examined, P.W.3 had not stated that she went to the scene of crime on hearing the noise of P.W.1, though she had spoken something about the incident, which took place at 12.00 midday. The evidence, so given by P.W.3 regarding previous incident also proved to be false, by the oral evidence of P.Ws.1 & 2. P.W.1 says that the previous incident took place at about 12.00 noon, was not known to P.W.2 directly and it is the case of P.W.2 also, who says that she came to know about the incident only through her mother-in-law. The fact being so. P.W.3 went to the extent of saying, that at the time of the pellmell, she had seen P.W.2 also. In this view, P.W.3’s evidence fails to inspire us, and even taking the evidence as such, it does not improve the case of the prosecution. For the non examination of the lorry driver and other persons present, no explanation is also forthcoming from the prosecution side. In this view, P.W.3’s evidence fails to inspire us, and even taking the evidence as such, it does not improve the case of the prosecution. For the non examination of the lorry driver and other persons present, no explanation is also forthcoming from the prosecution side. If the lorry driver had been examined or the dresses worn by P.Ws.1 & 2, at the time of seeking the incident are produced, it will definitely establish the presence of P.Ws.1 & 2 at the scene of crime. For this inaction, an adverse inference has to be drawn as if P.Ws.1 & 2 were not present and that is why neither the lorry driver was examined nor other witnesses said to have been present, is examined, nor the dresses of P.Ws.1 & 2 produced, which should contain the blood, if they had been present, witnessing the incident, then taking the injured to the hospital. 14. It is not the case of the prosecution that P.Ws.1, 2 and the deceased were living under the same roof. It is the case of the prosecution, that P.W.2 and the deceased, being the husband and wife were living under the same roof and P.W.1 is living separately. The house of P.W.1 is not shown near the house of the deceased, either in the sketch or in the observation mahazar. According to prosecution, when the accused went to the house of the deceased, knocked the door, hearing the noise, P.W.1 woke up and came to the spot. Unless it is proved that P.W.1’s house is near the house of the deceased and the sound of knocking would reach to that house, believing the oral evidence of P.W.1 as if she had come to the house of the deceased, then followed the deceased and the accused, is impossible. To prove the above facts, practically there is no evidence and therefore, the case spoken by P.W.1 as if on hearing the noise of knocking the door by the accused, she came out and followed them, is beyond our imagination. 15. The incident is said to have taken place at 12.00 mid night, within the vision of P.Ws.1 & 2. Admittedly, the thatched houses of the deceased and P.W.2 is not electrified. There is no electrical light also in and around the scene of crime. 15. The incident is said to have taken place at 12.00 mid night, within the vision of P.Ws.1 & 2. Admittedly, the thatched houses of the deceased and P.W.2 is not electrified. There is no electrical light also in and around the scene of crime. It is also not the case of the prosecution, that there was bright moon light, where one could identify another, in the absence of light. In order to overcome this light aspect, an attempt is made, to hand over an harican light to P.W.1 and a battery light to P.W.2, which is spoken by P.W.1. If that is the true case, it should have the corroboration of P.W.2. She had not stated about the harican light or the battery light, though she would state she and P.W.1 followed the accused and the deceased. The lights were not recovered by the investigating officer also. Therefore, it is unimaginable to think that P.Ws.1 & 2 would have identified the accused, during midnight either at the time of the alleged knocking of the door or at the time of stabbing the deceased. In this view also, a doubt is created about the acceptability of the oral evidence of P.Ws.1 & 2. 16. P.W.1 would state that on the date of the incident, on hearing noise, when she came out, she had seen the accused, who is said to have asked Sandhiyagu to come with him. It is the evidence of P.W.1, that she apprehended some fear, because of the previous dispute and therefore, she followed them along with P.W.2. But P.W.2 would state that the accused came to the house at 11.00 p.m. (night) and called the deceased, which compelled her husband to come out, where the accused informed him, to come with him, to receive the amount. She further says, immediately, she and P.W.1 as well as her servant, followed them. That servant has not been examined. Thus, we find total contradictory evidence, regarding the incident said to have taken place and other things at 11.00 p.m. or 12.00 mid night. If the accused had the intention to take away the deceased in order to commit murder. When it is noticed that mother and wife along with others are following, certainly the accused would not have stabbed the deceased. If the accused had the intention to take away the deceased in order to commit murder. When it is noticed that mother and wife along with others are following, certainly the accused would not have stabbed the deceased. The evidence given by P.Ws.1 & 2 contrary to the normal course, compels us to think that P.Ws.1 & 2 are not speaking the truth and they would not have gone behind the accused and the deceased, in order to witness the incident. As suggested on behalf of the accused, it seems, somebody might have stabbed the deceased and only on information, at later point of time, P.Ws.1 & 2, if at all would have went to the scene of crime and would not have witnessed the incident at all. Since the police were unable to find out the actual culprit. It seems to our mind, fixed a Ceylone refugee, as a culprit and had planted P.W.1 & 2 as eye witnesses and therefore, placing reliance upon them, convicting the accused is highly unsafe. Where the actual incident of stabbing had taken place also, differs from the statement and the scene of crime shown in the sketch. In this view of the matter, we conclude P.Ws.1 & 2 are not the eyewitnesses and their evidence is liable to be eschewed. If the evidence of P.Ws.1 & 2 goes, nothing is on record to connect the accused and in this view, the accused is entitled to an acquittal, concluding, that the prosecution has failed to prove the offence beyond any reasonable doubt. 17. The investigation said to have been done in this case also, is not worthy of acceptance. The weapon said to have been recovered, on the basis of the arrest and confession, does not contain the human blood – blood group of the deceased. From the scene of crime, it is said, the cover of the knife was recovered. The investigating officer had not made any attempt to prove that M.O.2 is the cover of M.O.1, by the any demonstration or scientific evidence. It is said from the scene of crime, the chappals of the accused were recovered and it is also spoken by P.Ws.1 & 2 as if the accused ran away from the scene of crime, leaving his chappals viz., M.O.3. It is said from the scene of crime, the chappals of the accused were recovered and it is also spoken by P.Ws.1 & 2 as if the accused ran away from the scene of crime, leaving his chappals viz., M.O.3. If that is true, easily the accused could have been fixed, by examining foot print and the impression available in the chappals. The Investigating officer had not taken any pain, to investigate the case scientifically, when scientific methods are available, since it is said, some of the materials were left by the accused, while committing the offence. Instead of following the proper investigation, to fix the accused, a short cut method is adopted to plant P.Ws.1 & 2 as if they have witnessed the incident, which is proved to be false by countless contradictions, elicited during the examination of P.Ws.1 & 2. A mere reading of the evidence of P.Ws.1 & 2 and the contradictory statement elicited from them, which are confirmed by the investigating officer, would make it abundantly clear, in addition to unnaturality, that they are not the persons, who witnessed the incident and that is why omissions and commissions are available, cutting the root of the prosecution case, creating so much of spontaneous doubt, which is not clarified by the investigation, thereby compelling the court, to give the benefits of doubt. 18. Ex.P1 is the complaint said to have been given by P.W.1 to P.W.9 on 23.4.1994 at about 8.00 a.m. The death of Sandhiyagu was informed to the Police Station at about 4.45 a.m. as spoken by P.W.5. It is the case of P.W.1 also that immediately after the information given by the doctor, regarding the death of Sandhiyagi, she went to the police station and informed the incident. The police station and the hospital is very near. Therefore, as rightly suggested to P.W.9, P.W.1 would have given an information even before 8.00 a.m. which might have been suppressed and that could be inferred from the delayed submission of the complaint to the court concerned, which is very near to the police station. The F.I.R. said to have been recorded by 8.00 a.m. reached the Judicial Magistrate at about 11.45 a.m. Considering the nearness of the court and the police station, the delay appears to be enormous, which is not explained. In this way also, a doubt had arisen. 19. The F.I.R. said to have been recorded by 8.00 a.m. reached the Judicial Magistrate at about 11.45 a.m. Considering the nearness of the court and the police station, the delay appears to be enormous, which is not explained. In this way also, a doubt had arisen. 19. The doctor’s evidence and the postmortem certificate Ex.P.12 proves that Sandhiyagu met with homicidal death; but who caused the fatal injury to the deceased, is not at all proved, beyond all reasonable doubt, for the reasons assigned by us supra. Unfortunately, the trial Court, without considering the dependability of the evidence given by P.Ws.1 & 2, without analyzing the same from the answers elicited during the cross examination, had accepted the unnatural evidence, given by P.Ws.1 & 2, which is not acceptable to us. 20. As rightly submitted by the learned counsel for the appellant, P.Ws.1 & 2 are not dependable persons and that could be seen from the answers elicited during the cross examination. During the cross examination, it was suggested to P.W.1 that there are number of cases against Sandhiyagu, giving crime numbers, where he admitted the offence and paid fine etc. The investigating officer admits that Sandiyagu involved in a number of crimes. Even this admitted facts are not admitted by P.W.1 and therefore, accepting the case of P.W.1 regarding the incident, which is highly artificial, should be against the established appreciation of evidence. 21. In the light of the observation made by us, we conclude that none of the charges against the accused is proved beyond all reasonable doubt and giving the benefits of the same, we would choose to acquit him allowing the appeal. In the result, the appeal is allowed, setting aside the conviction and sentence of the trial Court, acquitting the accused giving the benefits of doubt. The bail bond executed by the accused shall stand cancelled, discharging the sureties also. The fine amount, if any, paid by the accused, is ordered to be returned to the accused.