Judgment :- M.Karpagavinayagam, J. Samsu alias Samsudeen, the appellant in Crl.A.No.401 of 2000 and Sarafudeen and Hakkim alias Abdul Hakkim, the appellants in Crl.A.No.469 of 2000 are the accused 1 to 3. They have filed these two appeals, seeking to set aside the judgment of conviction imposed on them by the trial Court for the offence under Section 302 IPC and sentence to undergo life imprisonment each. 2. Short facts leading to conviction are as follows: (a) Two days prior to the date of occurrence, one Constable Selvaraj was done to death by some Muslim fundamentalists. In retaliation, the Muslim people were attacked and there was a law and order problem throughout the area. The Police also announced that public should not come out, in view of the said law and order problem. (b) On the date of occurrence, i.e. on 1.12.1997, the deceased Ramasamy, along with his wife, P.W.2 Parvathamani, went to the Government Sewerage Farm to cut grass. P.W.1 Subramanian, the elder brother of the deceased, was working as an employee in the Municipality. After the work was over, P.W.1, who came by that way, accompanied P.W.2, the wife of the deceased and the deceased, while returning home. (c) At that point of time, A-1 to A-3, who belong to a Muslim association, way-laid the deceased and questioned him as to what is his name so as to know his religion. The deceased replied that his name is Ramasamy. From the name of the deceased, the accused found out that the deceased is a Hindu. Then he shouted that some Hindus must be finished off in order to teach a lesson to them. (d) Then, A-1 stabbed on the left chest, A-2 stabbed on the stomach and A-3 stabbed on the chest of the deceased with knives. When the deceased shouted, A-3 took a reaper wood and beat on the head of the deceased. Then, he threw the reaper wood in a nearby ditch. Since P.Ws.1 and 2 cried aloud, all the accused persons ran away from the scene. (e) The deceased fell down on the ground. On seeing that the intestines of the deceased came out from the stomach, P.W.1 Subramanian tied a towel around the stomach of the deceased and took him to the Government General Hospital, Coimbatore. (f) P.W.9 Doctor found that the deceased was dead. He issued Ex.P-18 accident register. (e) The deceased fell down on the ground. On seeing that the intestines of the deceased came out from the stomach, P.W.1 Subramanian tied a towel around the stomach of the deceased and took him to the Government General Hospital, Coimbatore. (f) P.W.9 Doctor found that the deceased was dead. He issued Ex.P-18 accident register. (g) Then, P.W.1 Subramanian went to the Police Station and gave Ex.P-1 complaint to P.W.10 Head Constable, who registered a case for the offence under Section 302 IPC and then, P.W.10 sent the message to the superior officers. (h) P.W.11 Inspector of Police went to the scene of occurrence. There was no sufficient light. Therefore, on 2.12.1997 at about 6.00 a.m., he prepared observation mahazar, drew rough sketch and observed all the other formalities. (i) Then, P.W.11 Inspector of Police went to the hospital and conducted inquest over the body of the deceased. During the course of inquest, he examined the witnesses. He prepared Ex.P-21 inquest report. (j) P.W.8 Doctor conducted post-mortem on the body of the deceased and found as many as four external injuries and three internal wounds. He issued Ex.P-17 post-mortem certificate and opined that the deceased would appear to have died of haemorrhage and shock of wound Nos.2 and 3 and corresponding internal appearances described thereunder. (k) On 3.12.1997, P.W.12, the Special CB-CID Officer (Inspector of Police) took up further investigation and examined P.W.3 and others. On 27.12.1997, P.W.12 Inspector of Police arrested all the three accused and on their confession, M.Os.2,3 and 4, the bloodstained knives, were recovered. He sent the material objects for chemical analysis. After completion of the investigation, he filed the charge sheet against the accused persons for the offence under Section 302 read with 34 IPC. (l) During the course of trial, P.Ws.1 to 12 were examined, Exs.P-1 to P-21 were filed and M.Os.1 to 7 were marked. (m) When the accused persons were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. They stated that they were taken to custody ten days earlier to the date of arrest and had been illegally detained in the Police Station. However, no evidence was adduced on the side of defence. (n) The trial Court, after assessing the evidence adduced by the prosecution, found all the accused guilty of the offence under Section 302 IPC and convicted and sentenced them as stated above. Hence, these appeals. However, no evidence was adduced on the side of defence. (n) The trial Court, after assessing the evidence adduced by the prosecution, found all the accused guilty of the offence under Section 302 IPC and convicted and sentenced them as stated above. Hence, these appeals. 3. Mr.R.Sankara Subbu and Mr.A.K.S.Thahir, learned counsel for the appellants in the respective appeals, would submit that the evidence adduced by the prosecution, would not be sufficient to prove the case of the prosecution; the testimony tendered by eye-witnesses, is not trustworthy; in the absence of conducting test identification parade, their evidence cannot be accepted. Both the learned counsel would further point out that the evidence adduced by P.Ws.1 and 2, is full of improvements from the statement made by them before the Doctor as well as the Police Officer during the course of investigation and hence, the appellants/A-1 to A-3 are liable to be acquitted of the charges. In support of their contentions, both the learned counsel for the appellants would cite the following authorities: (a) 1982 S.C.C. (Cri) 334 (Mohanlal Gangaram Gehani vs. State of Maharashtra); (b) 1997 S.C.C. (Cri) 486 (Paramjit Singh vs. State of Punjab); (c) 1994 (2) CRIMES 875 (Madras High Court) (Mathy and Anr. vs. State by Public Prosecutor) and (d) 2004 S.C.C. (Cri) 456 (State of Rajasthan vs. Kishan Singh). 4. On the above aspects, we have heard learned Additional Public Prosecutor. He would strenuously argue that the conviction and sentence imposed on the appellants/A-1 to A-3 by the trial Court, are justified, in view of the formidable materials produced by the prosecution. Learned Additional Public Prosecutor would rely upon the following authorities in support of his submissions: (i) 2003 (4) SUPREME 394 (Malkhansingh & Ors. vs. State of Madhya Pradesh); (ii) 2003 S.C.C. (Cri) 165 (Alamgir vs. State (NCT, Delhi) and (iii) 2004 (1) CRIMES 117 (SC) (Ashfaq vs. State (Govt. of NCT of Delhi). 5. We have carefully considered the submissions made by learned counsel for the parties and also gone through the records. 6. On a perusal of the entire records and on consideration of the respective submissions made by learned counsel on either side, we are of the view that the prosecution has not been able to bring home the guilt of the accused, as the evidence adduced by the prosecution, would not inspire confidence. 6. On a perusal of the entire records and on consideration of the respective submissions made by learned counsel on either side, we are of the view that the prosecution has not been able to bring home the guilt of the accused, as the evidence adduced by the prosecution, would not inspire confidence. As such, the appellants/accused 1 to 3 are liable to be acquitted of the charges. The reasons for our conclusion are as follows. 7. According to prosecution, when P.Ws.1 and 2 accompanied the deceased, all the three accused way-laid them and on coming to know that he belongs to Hindu religion, they attacked the deceased. 8. The occurrence took place at about 5.00 p.m. on 1.12.1997. The deceased was taken to hospital by P.W.1 Subramanian and other witnesses at about 5.45 p.m. Ex.P-18 is the accident register relating to the injuries on the deceased, issued by P.W.9 Doctor. It is mentioned in Ex.P-18 that P.W.1 told P.W.9 Doctor that some one attacked the deceased and the deceased was found with injuries in the place of the incident and that he and P.W.2, the wife of the deceased, brought the deceased. 9. From the evidence of P.W.9 Doctor and Ex.P-18 accident register, it is clear that P.Ws.1 and 2 did not tell P.W.9 Doctor as to the details of the occurrence; as to how the deceased sustained injuries, the number of persons involved in the occurrence and the identity of those persons. Only after receipt of information about the death of the deceased from the Doctor, P.W.1 Subramanian went to the Police Station and gave Ex.P-1 complaint. 10. In the complaint, P.W.1 Subramanian stated that himself and P.W.2 were the eye-witnesses to the occurrence and they saw that one among the three identifiable accused, caused injury on the deceased and all the three accused ran away from the scene. This is a new case projected by P.W.1 through Ex.P-1. The same statement has been made by P.W.1 Subramanian to P.W.11 Inspector of Police during the course of investigation. Similar statement was made by P.W.2 Parvathamani also to P.W.11 Inspector of Police. Strangely, P.Ws.1 and 2 would depose in the Court that they saw A-1 stabbing on the left chest of the deceased; A-2 on the stomach of the deceased and A-3 on the right chest of the deceased. 11. Similar statement was made by P.W.2 Parvathamani also to P.W.11 Inspector of Police. Strangely, P.Ws.1 and 2 would depose in the Court that they saw A-1 stabbing on the left chest of the deceased; A-2 on the stomach of the deceased and A-3 on the right chest of the deceased. 11. Thereafter, A-3 took out a reaper wood and caused injury on the hand of the deceased and then, ran away. This is yet another new case projected by P.Ws.1 and 2 for the first time before the Court. 12. Thus, there are three varied versions projected by the prosecution. Thus, it is obvious that the case of the prosecution is not consistent. Further, no investigation has been done by the investigating officer as to how such a statement was made by P.W.1 to P.W.9 Doctor, to the effect that some one attacked the deceased, as evident from Ex.P-18. 13. It is contended by learned Additional Public Prosecutor that Ex.P-18 accident register cannot be said to be a substantive piece of evidence. But, as laid down by the Supreme Court in 1982 S.C.C. (Cri.) 334 (cited supra), the earliest document which contains the statement of the victim to the Doctor should be taken into consideration while comparing the statement subsequently made before the Police Officer. Relevant portions of the observation by the Supreme Court in paragraph 17 of the said judgment are as follows: "17. Thus, the reason given by the High Court for distrusting the evidence of Dr.Heena is wholly unsustainable. Moreover, the statement of the injured to Dr.Heena being the first statement in point of time must be preferred to any subsequent statement that Shetty may have made. In fact, the admitted position is that Shetty did not know the appellant before the occurrence nor did he know his name which was disclosed to him by one Salim. Therefore, Salim who is now dead, being the source of information of Shetty would be of doubtful admissibility as it is not covered by Section 32 of the Evidence Act. And, once we believe the evidence of P.W.11, as we must, then the entire bottom out of the prosecution case is knocked out." These observations of the Supreme Court have been followed by a Division Bench of this Court in the decision reported in 1994 (2) CRIMES 875 (cited supra). 14. And, once we believe the evidence of P.W.11, as we must, then the entire bottom out of the prosecution case is knocked out." These observations of the Supreme Court have been followed by a Division Bench of this Court in the decision reported in 1994 (2) CRIMES 875 (cited supra). 14. In view of the above ratio laid down by the Supreme Court, we are unable to place any reliance on Ex.P-1 complaint or the evidence of P.W.1 Subramanian. Further, as pointed out above, even P.Ws.1 and 2 did not stick to their earlier statements made before the Police Officer. On the other hand, they attributed clear overt acts to each of the accused, as if all the three accused caused injuries. While deposing further, P.Ws.1 and 2, for the first time in the Court, would state that the reaper wood was also used by A-3 causing injuries on the deceased. This was never stated by any of the witnesses to the Police Officer. 15. With regard to the contention that P.Ws.1 and 2 have improved upon their versions in their deposition, the Supreme Court in 2004 S.C.C. (Cri.) 456 (cited supra) held that the prosecution witnesses improving upon their evidence at the trial in order to bring their testimony in line with the medical evidence, will result in the doubtfulness as to who was the author of the fatal injury and in that case, the common intention on the part of the accused to cause death of the deceased, has not been made out, and in the circumstances, it was held that the High Court was justified in acquitting the accused of the charge under Section 302/34 IPC. 16. Yet another monstrous feature that could be noticed in this case is the evidence of P.W.3 Munusamy. As stated above, the names of the accused persons have not been mentioned by P.Ws.1 and 2, either in Ex.P-1 complaint or in the statement made during the course of investigation. The occurrence took place on 1.12.1997. P.W.12 Inspector of Police took up investigation only on 3.12.1997. According to prosecution, one other eye-witness, P.W.3, came to the Police Station on 4.12.1997 and gave the names of the accused. The occurrence took place on 1.12.1997. P.W.12 Inspector of Police took up investigation only on 3.12.1997. According to prosecution, one other eye-witness, P.W.3, came to the Police Station on 4.12.1997 and gave the names of the accused. Strangely, P.W.3, though gave the names of all the three accused in the Court, would depose that he was not able to identify the accused standing in the Court, and as such, the evidence of P.W.3 has become useless. 17. According to P.W.12 Inspector of Police, he got the statement of P.W.3 for getting the names of the accused and thereafter all the three accused were arrested on 27.12.1997. There are no details as to how P.W.12 Inspector of Police was able to trace out the identity of the accused persons. As a matter of fact, P.W.12 Inspector of Police, would admit that he never examined P.Ws.1 and 2 after he had taken charge and took up investigation. 18. P.Ws.1 and 2 would admit that they knew the accused persons earlier, both in Ex.P-1 complaint and in their deposition. Despite this, no effort had been taken by P.W.12 Inspector of Police to verify the identity of the accused persons by showing them to P.Ws.1 and 2. Further, there is no evidence to show that P.W.3 identified the accused persons, while they were being arrested. 19. According to prosecution, while the deceased was way-laid, the accused asked the name of the deceased in order to verify as to whether he belongs to Hindu religion. But, both P.Ws.1 and 2 would state that the accused as well as the witnesses had known each other. If that was so, there was no necessity for the accused persons to ask the name of the deceased. It is also the case of the prosecution that all the three accused wanted to attack all the Hindu persons who were available then. If that be the case, there is no reason as to why the accused spared P.Ws.1 and 2, who were standing nearby, crying aloud. 20. In Ex.P-21 inquest report, in columns 9 and 15, it is noticed that the investigating officer wrote as if out of three, only one stabbed. This shows that during the course of investigation, the investigating agency was able to conclude that three persons participated and out of three, only one attacked the deceased. 20. In Ex.P-21 inquest report, in columns 9 and 15, it is noticed that the investigating officer wrote as if out of three, only one stabbed. This shows that during the course of investigation, the investigating agency was able to conclude that three persons participated and out of three, only one attacked the deceased. On the contrary, P.Ws.1 and 2 had stated before the Court that all the three accused persons attacked. Thus, it is manifestly clear that the investigating agency has not done their job properly to find out as to who are the real assailants. 21. As such, this Court is left with no other alternative except to give the "benefit of doubt" to all the accused persons. Therefore, the conviction and sentence imposed on the appellants/A-1 to A-3 are liable to be set aside. 22. Accordingly, the appeals are allowed, setting aside the conviction and sentence imposed on the appellants/A-1 to A-3. They are acquitted of the charges. Since the appellants (A-2 and A-3) in Crl.A.No.469 of 2000 are in jail as per the order of cancellation of bail, vide order dated 21.8.2003 in Crl.M.P.No.5561 of 2002 in Crl.M.P.No.9045 of 2001 in Crl.A.No.469 of 2000, they are directed to be set at liberty forthwith, unless they are required in connection with any other case. The bail bond, if any executed by the appellant (A-1) in Crl.A.No.401 of 2000, shall stand cancelled.