Judgment :- P. Sathasivam, J. For the sake of convenience, in this judgment the appellants will be referred to as A.1, A3 and A.4, who were tried before the learned Principal Sessions Judge, Nagapattinam in S.C.No.156 of 1994. 2. Originally, there were four accused and charges against A.1 to A.4 were framed on 02.08.1995 and thereafter A.2 Mariyappan committed suicide on 08.08.1995. The Inspector of Police, Velanganni filed a charge sheet against A.1 to A.4 for the offences punishable under Sections 449 and 302 r/w 34 IPC. By the impugned judgement, A.1, A.3 and A.4 were each convicted under Sections 449 and 302 read with 34 IPC and sentenced to undergo R.I. for five years and life imprisonment respectively and the sentences were ordered to run concurrently. 3. The case of the prosecution is briefly stated hereunder: (a) The deceased Nagarajan and Accused 1 to 4 were residents of South Poigainallur Village. A.1 Ravi is a neighbour of the deceased. On the night of 26.08.1993, the deceased was sleeping on the pial of his house. At that time, A.1 attempted to steal the hen of the deceased. The deceased woke up and caught hold of A.1. Then, the deceased scolded A.1 and sent him away. (b) In the morning of 27.08.1993, the deceased saw A.1 going by the side of his house. The deceased caught hold of him; tied him to a Elanthai tree and beat him with hands. The mother of A.1, by name, Savithri came there and released A.1 from the deceased and took him away. (c) On the night of 27.08.1993, after taking meals, PW.1 and the deceased were sitting on the pial of their house and chatting with each other. At that time, PW.2 Savithri and her husband Muniappan came there. They are also residing in the same Village. The house of PW.2 is situate at a distance of 200 feet from the house of PW.1. (d) PW.2's husband is Aunt's son of the deceased. Both PW.2 and her husband told the deceased that since the deceased beat A.1, A.1 was collecting men to cut the deceased and hence, they warned him. For this the deceased replied that could discuss it in the morning and requested Muniappan, husband of PW.2 to sleep with him. The deceased slept on the eastern pial and Muniappan slept on the western pial of the house. For this the deceased replied that could discuss it in the morning and requested Muniappan, husband of PW.2 to sleep with him. The deceased slept on the eastern pial and Muniappan slept on the western pial of the house. PW.1, PW.2 and the children of the deceased slept inside the house, but the door remained open. An electric light was burning in the front portion of the house, however, they switched off the electric light inside the house. The house of the deceased was also surrounded by thorn fence on all four sides. (e) At about 10.30 p.m. PW.1 heard the voice of A.1 Ravi telling to others, who came there along with him to remove the fence and throw away. On hearing the noise, PW.1 switched on the Veranda electric light. After throwing away the fence, A.1 to A.4 entered the pial of the house. A.1, A.3 and A.4 were armed with casurina sticks and A.2 was armed with aruval. A.2 to A.4 were the friends of A.1. After entering the pial of the house, A.1, A.3 and A.4 with the casurina sticks beat the deceased repeatedly on various parts of his body. A.2 with Aruval inflicted several cut injuries on the head of the deceased. A.1 beat the deceased saying why he (deceased) beat him as if he (A.1) committed theft of hen. (f) As soon as the accused entered the house of the deceased, Muniappan out of fear went inside the house, P.W.1 and others saw the occurrencefrom inside the house through the door which was not closed completely and when all of them shouted, all the accused ran away with the weapons. The deceased was lying in a pool of blood. Muniappan brought a taxi and the deceased was taken to Nagapattinam Government Hospital. PW.1, PW.2 and Muniappan accompanied the deceased. (g) PW.9 Doctor Nagarajan, Assistant Civil Surgeon attached to Nagapattinam Government Hospital examined the injured Natarajan at 1.30 a.m. on 27/28.08.1993. PW.9 Doctor found 16 internal injuries. He issued wound certificate Ex.P.7. According to PW.9, when he questioned the injured Natarajan, he told him that when he was sleeping in his house, at 10.30 p.m. on 27.08.1993, 4 persons armed with knife and casurina sticks attacked him. (h) PW.9 Dr. Nagarajan, sent Ex.P.5 requisition to the Judicial Magistrate, PW.8 to record the dying declaration from the Natarjan. He also sent intimation to the police. (h) PW.9 Dr. Nagarajan, sent Ex.P.5 requisition to the Judicial Magistrate, PW.8 to record the dying declaration from the Natarjan. He also sent intimation to the police. (i) PW.8 Mr. R. Shanmugam, who was the Judicial Magistrate No.II, Nagapattinam, on receipt of Ex.P.5 at 2.30 a.m. on 28.08.1993, visited Nagapattinam Government Hospital at 2.40 a.m. PW.17 Dr. Rajendran, identified Natarajan as the injured from whom dying declaration had to be recorded. (j) PW.8 recorded the dying declaration from Natarajan between 2.40 and 2.55 a.m. on 28.08.1993. Ex.P.6 is the dying declaration. Along with the dying declaration PW.17 has appended a certificate to the effect that the patient was conscious throughout the recording of dying declaration statement and that was recorded in his presence. (k) On receipt of information from Nagapattinam Government Hospital, one Sivasaminathan, Sub-Inspector of Police, Velankanni Police Station proceeded to Nagapattinam Government Hospital at 3.00 a.m. on 28.08.2003 and recorded the statement from Natarajan and obtained his thumb impression and registered a case in Cr.No.635/93 under Sections 452, 325, 324 and 323 IPC at 4.00 p.m. Ex.P.10 is the F.I.R. (l) Sivasaminathan, Sub-Inspector of Police, took up investigation and proceeded to the scene of occurrence; prepared observation mahazar in the presence of PW.6 and another. He also seized Mos.7 to 9 at the scene of occurrence under Ex.P.2 Mahazar, attested by PW.6 and another. He drew rough sketch Ex.P.16 and seized Mos.1 and 2 from PW.1 under Ex.P.17. (m) On 28.08.1993 at 7.10 p.m. Natarajan died. PW.11 - Constable who was on duty at Nagapattinam Government Hospital received intimation of the death of Natarajan. In turn, he sent information to Velanganni Police Station over telephone. (n) PW.12 Head Constable, Velanganni Police Station received the information of the death of Natarajan from PW.11 at 8.00 p.m. Thereafter, he proceeded to Nagapattinam Government Hospital, received the death intimation at 9.30 p.m., handed over the same to the Sub Inspector of Police, Velanganni at 11.00 p.m. Then the Sub Inspector of Police, altered the case into one under Section 302 IPC. Ex.P.11 is the Express FIR. (o) On receipt of Ex.P.11, Inspector of Police PW.16 proceeded to Nagapattinam Government Hospital at 11.30 p.m. on 28.08.1993. He conducted inquest over the dead body of Natarajan on 29.08.1993 between 6.00 to 9.30 a.m. and examined Pws.1 to 5 and others. Ex.P.18 is the inquest report. Ex.P.11 is the Express FIR. (o) On receipt of Ex.P.11, Inspector of Police PW.16 proceeded to Nagapattinam Government Hospital at 11.30 p.m. on 28.08.1993. He conducted inquest over the dead body of Natarajan on 29.08.1993 between 6.00 to 9.30 a.m. and examined Pws.1 to 5 and others. Ex.P.18 is the inquest report. He proceeded to the scene of occurrence and examined PW.6 and others. PW.10 Dr. Veeraraghan, who was the Assistant Civil Surgeon attached to Nagapattinam Government Hospital received requisition for post mortem through PW.13 and conducted post mortem on the dead body of Natarajan on 29.08.1993 at 11.30 a.m. He found 17 external injuries and he was of the opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained 16 to 18 hours prior to post mortem. Ex.P.8 is the post mortem certificate. On information, PW.18 Inspector of Police proceeded to Ayya Thope at South Poigainallur and arrested A.1 to A.4 at 2.00 p.m. on 02.09.1993 in the presence of PW.7. A.2 voluntarily gave a confession statement; Ex.P.3 is the admissible portion of his confession statement. A.2 took the police party to his house and from underneath a neem tree, he produced MO.3 aruval which was buried there. He also produced Mos.4 to 6 (casurina sticks) from a haystack. PW.18 seized them under Ex.P.4 in the presence of PW.7. PW.18 examined Pws.9 to 12 and Dr. Charles; examined PW.1 showing the weapons to him. On 07.09.1993, he examined Pws.13 and 14. On 23.12.1993, a requisition was sent to the Court to send the Material Objects for chemical examination. Ex.P.14 is the chemical examiner's report; Ex.P.15 is the serologist's report. After completing the investigation, PW.18 filed a final report against A.1 to A.4 under Section 449 and 302 r/w 34 IPC on 30.12.1993. 3. When the accused were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence, they denied the same. They did not examine any witness and no document was marked on their side. On considering the evidence, the learned Principal Sessions Judge found the accused 1, 3 and 4 guilty, convicted and sentenced each of them to undergo imprisonment for life under Section 302 r/w 34 IPC and RI for five years under Section 449 IPC. They did not examine any witness and no document was marked on their side. On considering the evidence, the learned Principal Sessions Judge found the accused 1, 3 and 4 guilty, convicted and sentenced each of them to undergo imprisonment for life under Section 302 r/w 34 IPC and RI for five years under Section 449 IPC. Aggrieved by the conviction and sentence, the accused 1, 3 and 4 have filed the above appeal. 4. Heard Mr. K.V. Sridharan, learned counsel appearing for the appellants / accused and Mr. V.M.R. Rajendran, learned Additional Public Prosecutor for the respondent. 5. Mr. K.V. Sridharan, learned counsel appearing for the appellants after taking us through the entire material would contend that the Court below failed to consider that there is no strong motive to commit the murder and ought to have rejected the case of theft by A.1 as alleged by prosecution. He further contended that the Court below ought to have seen that except the theft of hen, there was no enmity. According to him, there are three different versions relating to the occurrence, one made by the deceased in the dying declaration before PW.9; second in Ex.P.6 before PW.8; and third one is before one Sivasaminathan, then Sub Inspector of Police (since died) FIR Ex.P.9, which raise a doubt regarding dying declaration itself and the Court below ought not to have relied on the same. The Court below failed to see that the name of A.4 is absent in the dying declaration Ex.P.6, whereas name of Murugesan, who is not an accused is found mentioned and there is no reference with regard to the morning occurrence in the dying declaration or in the FIR. 6. On the other hand, Mr. V.M.R. Rajendran, learned Additional Public Prosecutor would contend that inasmuch as the prosecution has established the motive and the common intention, and the Court below rightly relied on the eye witnesses Pws.1 to 3, and convicted all the accused of the charges levelled against them, there is no ground for interference. 7. We have carefully considered the rival submissions. 8. Let us consider whether there is any strong motive to commit murder. There is no dispute that the deceased Natarajan and accused A.1 to A.4 were residents of South Poigainallur village. Among the four accused, A.1 Ravi is a neighbour of the deceased. 7. We have carefully considered the rival submissions. 8. Let us consider whether there is any strong motive to commit murder. There is no dispute that the deceased Natarajan and accused A.1 to A.4 were residents of South Poigainallur village. Among the four accused, A.1 Ravi is a neighbour of the deceased. According to PW.1, wife of the deceased, on the night of 26.08.1993, the deceased was sleeping on the pial of his house. PW.1 and her children were sleeping in side the house. At that time, A.1 attempted to steal a hen of the deceased. The deceased woke up and after scolding A.1, sent him away. It is also her evidence that in the morning of next day i.e., on 27.08.1993 when A.1 was going by the side of the house of the deceased, the deceased caught hold of him, tied him in a Elanthai tree and beat him with hands. On intervention by one Savithri, mother of A.1, the deceased released A.1. It is also her evidence that on 27.08.1993, after finishing dinner, she was chatting with her husband by sitting on the pial. At that time, Savithri PW.2 and her husband one Muniappan, who is related to PW.1's husband, came there and informed the deceased that in view of the incident that took place in the morning, where the deceased beat A.1, A.1 was planning to kill the deceased. In view of the said threat, PW.2 and her husband stayed in the house of PW.1. The said Muniappan, slept along with the deceased on the pial of the house and others slept inside the house. Even if we accept the motive as alleged by the prosecution, it would apply only to A.1 and absolutely there is no motive against other accused. Even the motive alleged, namely theft of hen by A.1 on 26.08.1993 cannot be claimed as a strong motive to commit the murder, as claimed by the prosecution. 9. Now, coming to the occurrence, as rightly pointed out by the learned counsel for the appellants there were lot of inconsistencies in the evidence of the prosecution witnesses and there were different versions in the dying declaration and F.I.R. by the deceased. 10. PW.1 wife of the deceased has stated that at the time of occurrence, namely on the night of 27.08.1993, after finishing dinner, the deceased was sleeping on the pial of their house. 10. PW.1 wife of the deceased has stated that at the time of occurrence, namely on the night of 27.08.1993, after finishing dinner, the deceased was sleeping on the pial of their house. In chief examination, she had stated that one electric light was burning at the Courtyard of her house. In cross examination she herself admitted that while the accused entering their house, the electric light at Courtyard was not burning. Even in chief examination, at a later point of time, she stated that on hearing noise, she put the Courtyard light burning. PW.2 wife of Muniappan, who is related to the deceased, in chief examination has stated that one electric light was burning in the Courtyard. In cross examination, she admitted that outside the house of the deceased no Panchayat light was burning. PW.3 daughter of the deceased in chief examination has stated that the electric light in the Courtyard was burning, at that time when they heard a noise. The eye witnesses therefore are not consistent, whether any light was burning at that time when the accused entered the house and beat the deceased. 11. Though PW.2 and her husband Muniappan went to the house of the deceased and alerted them that A.1 took vengeance on him, stayed there and slept along with the deceased on the pial of the house of the deceased, the said Muniappan was not examined on the side of the prosecution and there is no explanation for the same. Further, according to Pw.1, 2 and 3, when the accused entered the house after destroying the fence, the said Muniappan, husband of PW.2, went inside the house. Though PW.2 has stated that she and her husband came there to alert the deceased and stayed there to protect the deceased and his family, it is ununderstandable why the said Muniappan went inside. When PW.1 says that on the night of 27.08.1993, they kept the door open for free air and slept, it is highly unbelievable, because every one were aware of the fact that there is likelihood of danger at the hands of A.1. Further, according to the prosecution witnesses Pws.1 to 3, they saw the accused beating the deceased through the gap by party closed door. Their statement with reference to the said aspect is also not believable. PW.4 and PW.5, neighbours turned hostile. 12. Further, according to the prosecution witnesses Pws.1 to 3, they saw the accused beating the deceased through the gap by party closed door. Their statement with reference to the said aspect is also not believable. PW.4 and PW.5, neighbours turned hostile. 12. It is the consistent case of the prosecution that after destroying the fence put up around the house of the deceased, the accused entered the house and beat the deceased. Even in the FIR Ex.P.9, which was given by the deceased at 4.00 a.m. on 28.08.1993, while taking treatment at the Hospital, he referred to the fact that after damaging the fence, all the accused entered his house. Pws.1 to 3 also mentioned that they heard the voice of A.1 shouting for the removal of the fence. It is clear that the house of the deceased was surrounded by fence on all four sides. According to the prosecution, on instruction by A.1, others entered the house of the deceased, after damaging the fence. In this regard it is relevant to note that PW.16 Inspector of Police on receipt of Ex.P.11 Express F.I.R. proceeded to Nagapattinam Government Hospital at 11.30 p.m. on 28.08.1993 and on 29.08.1993, he conducted inquest over the body of the deceased Natarajan between 6.00 to 9.30 a.m. He examined Pws.1 to 5 and others. Ex.P.18 is the inquest report. Thereafter, he proceeded to the scene of occurrence and examined PW.6 and others. Absolutely there is no reference to the damage to the fence surrounded by the house of the deceased either in his evidence or in the inquest report Ex.P.18. As rightly contended by the learned counsel for the appellants, when it is the assertion of all the prosecution witnesses, including the statement of deceased in Ex.P.9 that after damaging the fence the accused entered the house of the deceased, it is surprising that the same has not noticed or referred to by PW.16, either in his evidence or in his inquest report Ex.P.18. It also gives doubt regarding the case of prosecution as claimed. 13. Now, we shall consider the statement by the deceased on three occasions i.e., at 1.30 a.m., 2.55 a.m., and 4 a.m., on 28.08.1993. It is seen that immediately after the occurrence, Muniappan - husband of PW.2 brought a taxi and the deceased was taken to Nagapattinam Government Hospital. PW.1, Pw.2 and Muniappan accompanied the deceased. 13. Now, we shall consider the statement by the deceased on three occasions i.e., at 1.30 a.m., 2.55 a.m., and 4 a.m., on 28.08.1993. It is seen that immediately after the occurrence, Muniappan - husband of PW.2 brought a taxi and the deceased was taken to Nagapattinam Government Hospital. PW.1, Pw.2 and Muniappan accompanied the deceased. It is relevant to refer Ex.P.7 wound certificate, wherein there is a specific reference to the statement of the accused which reads as follows. The above statement was recorded at 1.30 a.m. on 28.08.1993 by Dr. D. Nagarajan, PW.9. 14. Ex.P.6 is the dying declaration of the deceased recorded by PW.8 Judicial Magistrate. The statement was recorded by PW.8 on the intimation by the Doctor and the same was recorded at 2.55 a.m. on 28.08.1993. With reference to the question how the incident occurred and who were responsible, the deceased has stated that, The Duty Medical Officer PW.17 has certified that the deceased was conscious throughout the recording of statement and that was recorded in his presence. It is relevant to note that the deceased though referred A.1, A.2, A.3 has not stated about A.4 in the dying declaration. In other words, the name of A.4 is absent in the dying declaration before the Judicial Magistrate PW.8. On the other hand, he referred to one Murugesan, S/o. Chidambaram, who alleged to have beat his left hand with casurina stick. Admittedly, the said Murugesan is not an accused. Likewise, according to prosecution, Pws.1 to 3 and one Muniappan, husband of PW.2 witnessed the occurrence. However, in the dying declaration, Ex.P.6 the deceased had referred to PW.1 his wife, one Ramalingam and his wife, who were not examined as witnesses. He did not mention about Pws.2 and 3, though they witnessed the occurrence, as claimed by the prosecution. 15. Now, let us consider the statement of the deceased Ex.P.9, which was recorded by one Sivasaminathan, then Sub Inspector of Police, who died during the pendency of the above case. He recorded the statement of the deceased at 4.00 a.m. on 28.08.1993. In that statement the deceased had referred to the names of A.1 to A.4, who beat him with casurina sticks and aruval. He recorded the statement of the deceased at 4.00 a.m. on 28.08.1993. In that statement the deceased had referred to the names of A.1 to A.4, who beat him with casurina sticks and aruval. However, he has not mentioned the name of Murugesan, though he referred to his name while making Ex.P.6 statement before PW.8 at 2.55 a.m. Only before the Sub Inspector of Police i.e., at 4.00 a.m. he referred to the name of Ottacheri, A.4 for the first time. He also referred to PW.1, PW2 and Muniappan - husband of PW.2 though not mentioned their names in Ex.P.6, except PW.1. It is not disputed that the deceased died at 7.00 p.m. on 28.08.1993. A perusal of the statement of the deceased Ex.P.7 before Doctor PW.9 at 1.30 a.m. on 27/28.08.1993, the second statement Ex.P.6 before the Judicial Magistrate PW8 at 2.55 a.m. and the statement Ex.P.9 before the then Sub Inspector of Police at 4.00 a.m. show that different versions were made by the deceased with reference to the involvement of the accused, presence of prosecution witnesses, etc., In other words, as rightly argued by the learned counsel for the appellants, the contradictions as mentioned above should have disturbed the mind of the Court and it cannot be said that dying declaration made to the Judicial Magistrate PW.8 inspires full confidence of the Court. The prosecution witnesses Pws.1 to 3 are also not consistent regarding beating and cutting of the deceased and use of weapons by each one of the accused. The learned counsel for the appellants relied on a Division Bench decision of this Court in the case of Packiam vs. State rep. by the Inspector of Police, Oomachikulam P.S., Madurai District reported in 2004 (1) MWN (Cr.) 21. After referring to various decisions of the Apex Court regarding dyeing declaration, evidentiary value of the same, etc., the Division Bench has summed up the legal position as under: "7. by the Inspector of Police, Oomachikulam P.S., Madurai District reported in 2004 (1) MWN (Cr.) 21. After referring to various decisions of the Apex Court regarding dyeing declaration, evidentiary value of the same, etc., the Division Bench has summed up the legal position as under: "7. From the above rulings, the legal position can be summed up as under, (a) In a murder trial, scrutiny of evidence should be effected with more than ordinary care, so as not to affect "dispassionate judicial scrutiny"; (b) Dying declaration recorded by Judicial Magistrate by itself is not a proof of truthfulness of the dying declaration and the same to earn acceptability has still to pass the test of scrutiny of the Court; (c) There is no initial presumption that the dying declaration contains only the truth; (d) For dying declaration can form the sole basis of conviction, it must be free from any kind of doubt. Or in other words, dying declaration must inspire full confidence and should be free from any infirmity, however, negligible it be." We have already pointed out the contradictions regarding name, involvement of the accused and the persons who are said to have witnessed the occurrence at three times, namely at 1.30 a.m. before PW.9; 2.55 a.m. before PW.8 and 4.00 a.m. before one Sivasaminathan, then Sub-Inspector of Police, who recorded Ex.P.9. We are satisfied that the contradictions are writ large and the dying declaration recorded by PW.8 cannot form the basis for conviction. We also satisfied that it does not inspire full confidence and is not free from any infirmity. All the above infirmities were not considered by the learned trial Judge who committed an error in convicting the accused on all the charges levelled against them. Consequently, we are of the view that the prosecution has not proved its case beyond all reasonable doubts and the appellants/accused are entitled for the benefit of doubt. In the result, the criminal appeal is allowed. The conviction and sentence under Sections 449 and 302 r/w 34 IPC imposed on the accused / appellants by the learned Principal Sessions Judge, Nagapattinam by his judgement dated 06.02.1996 in S.C.No.156 of 1994 are hereby set aside. The appellants / accused are acquitted of the charges framed against them. The bail bonds if any executed by the accused shall stand discharged.