Judgment :- (This Criminal Appeal has been preferred against the judgment and conviction passed by the Learned Additional District and Sessions Judge, Madurai District in S.C.No.163 of 2001, dated 19.4.2002.) S. Ashok Kumar, J. The appellants are the accused, who were convicted by the learned Additional District and Sessions Judge, Madurai for an offence punishable under Section 302 r/w Sec.34 IPC imprisonment for life and 5 years imprisonment for alleged offence punishable under Section 307 r/w. Sec.34 IPC. Aggrieved over the said judgment and conviction, this appeal has been preferred by the appellants. 2. The brief facts of the case are follows: - The appellants were residents of Servaikaranpatti, within Kallikudi Police Station Limits, Madurai District. A.1 is the father of A.2 and A.4, and husband of A.6 (since acquitted). A.2 is the younger brother of A.4. A.3 is the son of elder brother of A.1. A.5, since acquitted is the brother-in-law of A.3. A.6, since acquitted, is the wife of A.1 and mother of A.2 and A.4. P.Ws.1 and 2 are brothers. P.W.3 is mother of P.Ws.1 and 2 and P.W.4 is their father. P.W.5 is the daughter of deceased Chidambaram. Deceased Chidambaram is the husband of P.W.4's niece. (sister's daughter). They were also residing in the same village. The accused had enmity with P.W.4's family over a vacant land lying south of A.1's land and north of P.W.4's house. There was a quarrel and a police complaint was also registered regarding the said land dispute. Therefore, A.1 and his family members left the village in 1995. The house of A.1 remained unoccupied. 3. On 3.6.1997, P.W.1 and P.W.4 were sleeping in the front yard of their house in an open area. At about 2.00 a.m., On 4.6.1997 when they woke up as usual for milking the cows and switched on the light, they saw A.1 to A.6. A.1 to A.3 were armed with Aruval, A.4 and A.5 were armed with Velsticks. At that time, P.W.4 was lying on a cot. Then A.1 cut with Aruval, M.O.3 on the left thigh of P.W.4. A.4 stabbed with the Velstick M.O.5 on the left side back of P.W.4. At that time A.6 shouted "Leave him (P.W.4) and cut Chidambaram." The accused cut the deceased Chidambaram who was sleeping in the nearby house. Thereafter the accused fled from the scene. Chidambaram died on the spot. A.4 stabbed with the Velstick M.O.5 on the left side back of P.W.4. At that time A.6 shouted "Leave him (P.W.4) and cut Chidambaram." The accused cut the deceased Chidambaram who was sleeping in the nearby house. Thereafter the accused fled from the scene. Chidambaram died on the spot. P.W.1 went to Virudhunagar and brought a van to take P.W.4 to hospital at Thirumangalam and admitted him in the hospital at about 7.35 a.m., Thereafter, P.W.1 went to Kallikudi Police Station and lodged Ex.P.1 complaint to P.W.15, Inspector of Police,who registered a case in Cr.No.99 of 1997 and the printed FIR is Ex.P.14. 4. P.W.15, the Inspector of Police immediately proceeded to the scene of occurrence, where at 7.00 a.m., he prepared Ex..2, Observation Mahazar, Ex.P.15, Sketch in the presence of Panchayatdars. Between 7.30 a.m., and 11.30 a.m. he conducted inquest on the body of the deceased Chidambaram and prepared Ex.P.16 Inquest Report. He also seized bloodstained earth M.O.1 and sample of earth M.O.2 under a cover of mahazar Ex.P.9. He sent a requisition for autopsy of the body of the deceased. P.W.12 Dr.Marudhu Pandian who received the request from the Inspector of Police conducted autopsy on the body of the deceased at 2.30 pm., on the same day and found the following injuries: - "External Injuries: 1. Lacerated injury 4 x 2 x 6 cm over the left side of the neck about 7 cm below he left ear lobule. 2. A Lacerated injury 4 x 2 x 4 cm over the left side of the neck 4 cm below wound No.1. 3. Lacerated injury 3 x 1 x 3 cm over left side neck 3 cm above left clavicle. 4. Abrasion 4 x 3 cm left side upper scapular region. 5. Abrasion 3 x 1 cm over left mid scapular region. 6. Abrasion 6 x 1 cm over left shoulder region. 7. Cut injury 10 x 4 x 6 cm over left upper arm upto the level of bone dividing muscles. 8. Cut injury 15 x 5 x 10 cm over left upper arm 4 cm below wound No.7 dividing muscles and bone. 9. Lacerated injury 18 x 10 x 7 cm over the left elbow region dividing all the muscles, tendens and bones. 10. Lacerated injury 15 x 6 x 4 cm over left upper chest. 11. 8. Cut injury 15 x 5 x 10 cm over left upper arm 4 cm below wound No.7 dividing muscles and bone. 9. Lacerated injury 18 x 10 x 7 cm over the left elbow region dividing all the muscles, tendens and bones. 10. Lacerated injury 15 x 6 x 4 cm over left upper chest. 11. Lacerated injury 4 x 2 x 3 cm right mid chest. 12. Lacerated injury 8 x 4 x 2 cm over fight upper arm 13. Lacerated injury 10 x 3 x 6 cm over the right palm dividing muscles and bones. 14. Lacerated injury 3 x 2 x 3 on dividing right thumb into pieces. 15. Lacerated wound 12 x 5 x 8 cm over the right thigh region dividing the muscles and the bones. 16. Lacerated wond4 x 1 x 2 cm over left mid thigh region. 17. Abrasion 5 x 2 cm over the upper back. Internal Examination: Head and neck: skull bone, brain congested, Neck: intact, Brain c/s pale. Thorax: Fracture 3, 4, 5th ribs on right side of chest, Lungs intact, C/s.pale. Heart Chambers empty. Abdomen: Stomach contains 200 ml digested. Liver, spleen both kidneys c/s pale. Bladder empty (nc) dialated." 5. P.W.12 also gave the opinion that the deceased would appear to have died due to shock and haemorrhage due to multiple injuries about 10 to 16 hours prior to autopsy. The postmortem certificate issued by P.W.12 is Ex.P.13. 6. Continuing his investigation, on 11.6.1997 at about 7.00 a.m., P.W.15, arrested A.3 and A.4 at Avalsurampatti Junction in the presence of P.Ws.7 and 8. A.3 volunteered to give the confession statement, admissible portion of which is Ex.P.17. In pursuance of the said confession, A.3 has produced M.O.4 Aruval from a bush, south of Servaikaranpatti Village, which was recovered under a cover of mahazar Ex.P.18. In pursuance of the confession given by A.4 M.O.5, Velstick was recovered under a cover of mahazar Ex.P.19. Thereafter on 19.7.1997, P.W.16, Thiru Murugesan conducted further investigation and examined the witnesses. On 26.10.1997, at 1.00 p.m., in the presence of P.W.8 and 9 he arrested A.1 near Nallamanayakanpatti Road and he volunteered to give confession, admissible portion of which is Ex.P.20. In pursuance of the said confession, A.1 produced M.O.3 Aruval which was seized under a cover of mahazar Ex.P.11. On 26.10.1997, at 1.00 p.m., in the presence of P.W.8 and 9 he arrested A.1 near Nallamanayakanpatti Road and he volunteered to give confession, admissible portion of which is Ex.P.20. In pursuance of the said confession, A.1 produced M.O.3 Aruval which was seized under a cover of mahazar Ex.P.11. All the properties were sent to the Judicial Magistrate Court, Thrumangalam, with a requisition to send them for chemical analysis. The Chemical Analysis Report is Ex.P.22. Serologist Report is Ex.P.23. After completing the investigation, P.W.16, filed a final report against the accused. 7. Before the trial court, on behalf of the prosecution P.Ws 1 to 16 were examined and Exs.P.1 to P.23 and M.O. 1 to M.O.5 were marked. On behalf of the accused, no witness was examined, but Ex.D.1 was marked. When the accused were questioned under section 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, the accused denied all such evidence as false. On a consideration of the oral and documentary evidence produced on behalf of the prosecution, the learned Additional District and Sessions Judge, (Fast Track Court NO.1) Madurai, came to the conclusion that the offences punishable under Sections 307 r/w. Sec.34 and 302 r/w Sec 34 IPC were proved and for offence Under Section 302 r/w Sec.34 IPC sentenced the accused for life imprisonment and for the offence under Section 307 r/w Sec.34 IPC sentenced rigorous imprisonment for 5 years, to undergo both the imprisonment concurrently. Aggrieved over the said judgment and conviction, this appeal has been preferred. 8. Mr.Shanmughasundaram, Learned Senior Counsel appearing for the appellants would contend that P.Ws 1 to 3 could not have been the eyewitnesses. Even the injured evidence of P.W.4, eye witness, should not be believed because there were various discrepancies; the documents have been created much later to implicate these petitioners. The alleged recovery of weapons after the arrest followed by a confession is also not believable, because the witnesses who signed in the seizure mahazar have turned hostile. Per contra, the learned Public Prosecutor would contend that there is an injured eyewitness whose evidence cannot be simply brushed aside as one without substance. 9. The alleged recovery of weapons after the arrest followed by a confession is also not believable, because the witnesses who signed in the seizure mahazar have turned hostile. Per contra, the learned Public Prosecutor would contend that there is an injured eyewitness whose evidence cannot be simply brushed aside as one without substance. 9. As claimed by the prosecution, the motive for the occurrence is said to be some dispute with regard to the vacant site lying between the house of the deceased and the accused and after a quarrel, the accused family has left the village in 1995 itself and have said to have come only 4.6.1997 to cause attack on P.W.4 and the deceased. Except the averment in the oral evidence and in Ex.P.1 Complaint, no other document is produced on behalf of the prosecution to prove the motive. 10. However, whether the FIR could have been registered at 6.30 a.m., on 4.6.1997 as claimed by the complainant is to be decided. According to the case of the prosecution, P.W.1, who is the Van Driver and son of P.W.4, injured eye witness, after the occurrence he went to Virudhunagar, which is 7 kilometers from Kallikudi, brought a Van, took the injured to Thirumangalam Hospital. Virudhunagar is 7 kilometers south of Kallikudi Police Station and Thirumanglam is 15 kilometers north of Kallikudi Police Station. The place of occurrence is 9 kilometers south west of Kallikudi Police Station. In Ex.P.1, Complaint, P.W.1, has stated that after the occurrence he went to Virudhunagar, brought a Van, took his father to Thirumangalam Government Hospital and admitted him and thereafter he lodged a complaint at Kallikudi Police Station at 6.30 a.m., P.W.15, Inspector of Police has also made an endorsement that he recorded the statement at 6.30 hrs on 4.6.1997 and registered a case in Cr.No.99/97 based on Ex.P.1, complaint. 11. A perusal of Ex.P.12, Wound Certificate issued to P.W.4, would show that he was admitted in the Hospital at 7.35 pm., on 4.6.1997. But, during evidence, P.W.11, who issued Ex.P.12 has clarified that instead of 7.35 a.m., he has mentioned as 7.35 pm., The inadvertent error cannot be taken as an advantage for the accused. However, even assuming that at 7.35 a.m., P.W.4 injured witness was admitted in the Hospital, then it falsifies the time of complaint before the Police. But, during evidence, P.W.11, who issued Ex.P.12 has clarified that instead of 7.35 a.m., he has mentioned as 7.35 pm., The inadvertent error cannot be taken as an advantage for the accused. However, even assuming that at 7.35 a.m., P.W.4 injured witness was admitted in the Hospital, then it falsifies the time of complaint before the Police. According to P.W.1 and P.W.15, Ex.P.1 complaint was recorded at 6.30 a.m., and in Ex.P.1 complaint, it is stated that P.W.1 admitted the injured at Thirumangalam Government Hospital. Therefore Ex.P.1, complaint and the consequent FIR should have been come into existence only much later after 8.00 a.m., or 8.30 a.m., because, only at 7.35 a.m., P.W.4 was admitted in the Hospital. Thereafter, P.W.1 travelled about 15 kilometers from Thirumangalam to go to Kallikudi Police Station and therefore, Ex.P.1 complaint should have come into existence only any time after 8.00 a.m., But, according to P.W.15, Inspector of Police, Ex.P.1 was recorded at 6.30 a.m., he reached the place of occurrence at 7.00 a.m., and prepared Ex.P.2, Mahazar and also Ex.P.15 sketch and he started inquest on the dead body of Chidambaram and completed by 11.30 a.m., . If really Ex.P.1 could have come into existence only after 8.00 a.m., all the statements, Ex.P.2, P.15, and Inquest report Ex.P.16 should have been prepared and ante timed for the purpose of the case. There is a probability that at 6.30 a.m., P.W.1 might have given the complaint at Kallikudi Police Station, because while coming to Thirumangalam Government hospital by taking the injured P.W.4 in his van P.W.1 has to cross Kallikudi Police Station which is on the main road, on the way P.W.1 might have given the complaint before the Police. That is why in Ex.P.12, wound certificate it is mentioned as "police informed". Who informed the Police is not mentioned in Ex.P.12 wound certificate. If the Medical Officer P.W.11 sent intimation to Police, the same would have been produced in the court. But the same has not been actually produced. If that is so, the said complaint alleged to have been given prior to the admission of P.W.4 in the Hospital has been suppressed by the prosecution. If the Medical Officer P.W.11 sent intimation to Police, the same would have been produced in the court. But the same has not been actually produced. If that is so, the said complaint alleged to have been given prior to the admission of P.W.4 in the Hospital has been suppressed by the prosecution. If Ex.P.12, wound certificate is taken as true, then Ex.P.1 complaint could not have been made at 6.30 a.m., because according to Ex.P.12, wound certificate, P.W.4, injured witness was admitted only at 7.35 a.m., whereas in Ex.P.1, complaint there is a mention about the admission of P.W.4 in the hospital and therefore this complaint could not have been given before 7.35 or 8.00 a.m., If Ex.P.1 complaint and consequently Ex.P.14 FIR came into existence any time only after 8.15 a.m., then the averment of P.W.15 that he reached the scene of occurrence 7.35 a.m., prepared Ex.P.2 observation mahazar and Ex.P.15 Sketch and also conducted inquest between 7.35 a.m., and 11.30 a.m., are all false. 12. Another important factor to show that Ex.P.1 could not have been registered at 6.30 a.m., is the time at which the FIR has reached the Court. According to the prosecution case Ex.P.1, complaint was registered at 6.30 a.m., in Crime No.99/97 and Ex.P.14, printed FIR was prepared. P.W.14 Head Constable, who received the Express Report at 8.30 a.m., has produced the same before the learned Judicial Magistrate, Thirumangalam only at 4.30 pm., During cross examination P.W.14 has admitted that the distance between Kallikudi Police Station and the Court of Learned Judicial Magistrate at Thirumangalam is about 15 kilometers and by bus one can reach the court in half an hour from Kallikudi Police Station. It is also admitted that there is bus facility between the two places for 24 hours. If really, the FIR was ready at 8.30 a.m., it would have reached the learned Judicial Magistrate atleast around 9.30 a.m., On the other hand, the FIR has reached only at 4.30 pm., as seen from the endorsement made by the learned Magistrate. The delay in the FIR reaching the Court has not been explained and such delay only strengthen the contention of the accused that the FIR was prepared much later after much deliberations. In this context, it would be useful to refer to the decision in Mehraj Vs. The delay in the FIR reaching the Court has not been explained and such delay only strengthen the contention of the accused that the FIR was prepared much later after much deliberations. In this context, it would be useful to refer to the decision in Mehraj Vs. State of U.P., reported in 1994 SCC (Cri) 1390, wherein the value of FIR and the effect of delay in lodging the FIR has been discussed by the Hon'ble Supreme Court: - "FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps n of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the incept report. Even though the inquest report, prepared ;under Section 174 Cr.PC., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. Even though the inquest report, prepared ;under Section 174 Cr.PC., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR." 13. Whether the accused could be the real assailants? The police filed the final report against 6 persons i.e., A.1 and his wife A.6, their sons A.2 and A.4 and A.3, son of A.1's elder brother, and A.5, brother in law of A.3. Of the six accused, A.6 is a woman. In Ex.P.1 complaint, it is stated that A.1, A.2 and A.3 and two or three unknown persons came to the place of occurrence and committed the offence. Further, it is stated in Ex.P.1 complaint that A.1 cut P.W.4 on his left thigh, A.2 stabbed with Velstick on P.W.4's back and thereafter A.1 and others attacked Chidambaram and caused his death by indiscriminately cutting him. If really, the occurrence was witnessed by P.W.1, P.W.2 and their mother P.W.3, if among the six persons, one was a lady, they would have definitely mentioned that three known persons and a lady also came to attack them. Further, A.4 is son of A.1 and A.6 and A.5 is brother-in-law of A.3, who are close relatives. A.6 is wife of A.1 and they were native of the same village and their house was also just on the northern side of the house of P.Ws 1 to 4 and the motive is to be dispute regarding some vacant land lying in between their houses. If that is so, if P.Ws 1 to 4 would have seen A.1 to A.6, they would have definitely mentioned the names of A.4 and A.5 and A.6 also. But on the other hand in Ex.P.1 complaint, they have mentioned the names of only A.1 to A.3 and rest two or three unknown persons, particularly they have omitted to mention that one among them was a woman. But on the other hand in Ex.P.1 complaint, they have mentioned the names of only A.1 to A.3 and rest two or three unknown persons, particularly they have omitted to mention that one among them was a woman. More curiously in Ex.P.12 wound certificate, which is prepared on the basis of the Accident Register at the time of admission of P.W.4, injured eyewitness has stated that he was attacked by 10 unknown persons. As far as this case is concerned Ex.P.12, wound certificate which is based on Accident Register (not produced before the Court), which is the earliest document which speaks about the occurrence, the earliest version of P.W.4, who was taken by P.W.1 to Hospital is 10 unknown persons attacked them. Only after admitting P.W.4 in the Hospital at Thirumangalam, P.W.1 has come back to Kallikudi Police Station and lodged Ex.P.1, complaint. Because in Ex.P.1 complaint, the admission of P.W.4 in the Hospital is also mentioned and therefore as already held, Ex.P.1 complaint could not have been recorded at 6.30 a.m., and it should have been recorded only much later after much deliberations to implicate A.1 to A.3. 14. More curious is the fact that in Column 15 of the inquest report, the name of one Maranadu, another son of A.1 and brother of A.2 and A.4 is also mentioned as one of the accused. None of the statements of any of the witness would speak that Maranadu was present at the time of occurrence. If that is so, the prosecution has to explain as to why Maranadu was shown as one of the accused in column 15 of the inquest report. So also in the final report, the name of Maranadu has been deleted. On what reason his name is deleted is not known to us. We are surprised to see on whose statement or on what evidence Maranadu was shown as an accused in the inquest report and why his name was excluded in the final report. 15. The inquest report is said to have been prepared between 9.00 a.m., and 11.30 a.m., on 4.6.1997. But the date is originally mentioned as 11.6.1997 and altered as 4.6.1997 both at the end of the inquest report and also in the summons signed by the Panchayatdars. 15. The inquest report is said to have been prepared between 9.00 a.m., and 11.30 a.m., on 4.6.1997. But the date is originally mentioned as 11.6.1997 and altered as 4.6.1997 both at the end of the inquest report and also in the summons signed by the Panchayatdars. The contention that the inquest report was not prepared on 4.6.1997 is fortified by the fact that the counterfoil of the summons signed by the Panchayatdars and the inquest report have reached the learned Judicial Magistrate, Thirmangalam only at 11.45 a.m., on 12.6.1997, even though it is mentioned in the inquest report that the date of despatch is 4.6.1997. Even Ex.P.19, dated 11.6.1997, Seizure Mahazar, for seizure of Velstick from A.4 on 11.6.1997 on 9.45 a.m., has reached the court on the same day at 4.15 pm., But the inquest report said to have been prepared on 4.6.197 morning has reached the court only on 12.6.1997 which would only show that the inquest report has been prepared much belatedly after the body was sent for postmortem and the inquest report should have been prepared without the dead body. 16. As regards the recovery of M.Os 4 and 5, Aruval, in pursuance of the confession said to have been made by A.3 and A.4 on 11.6.1997, the two independent witnesses, P.Ws. 7 and 8 have not supported the prosecution case and they have turned hostile, as such with regard to recovery of M.Os.4 and 5, the evidence of the Investigating Officer alone is available. 17. As far as this case is concerned all documents have been stage-managed, prepared belatedly, but ante timed to implicate the entire family members of A.1. The whole story as unfounded by P.Ws 1 to 4 is not reliable. The earliest version at the time of admission by P.W.4 in the Hospital at 7.35 a.m., on 4.6.1997 is that 10 unknown persons attacked them. Later, by deliberations of some of the relatives of P.W.4 and the deceased, the family members of the appellants have been implicated. The evidence adduced on behalf of the prosecution does not inspire confidence and the same cannot be acted upon. Therefore, the appeal deserves to be allowed and therefore the judgment and conviction of the appellants by the trial court is set aside and consequently, the appeal is allowed.