Judgment :- (Appeal filed under Section 374 Cr.P.C. against the judgment of conviction and sentence rendered by the Principal Sessions Judge, Namakkal in S.C.No.145/2002 dated 31.01.2003.) M. Karpagavinayagam, J. The appellants are Accused 1 to 5. A1 to A3 have been convicted for the offences sunder Sections 147,341,302 read with 34 and 307 read with 34 IPC and each sentenced to undergo One year rigorous imprisonment for the offence under Section 147 IPC; life imprisonment for the offence under Sections 302 read with 34 IPC and to pay a fine of Rs.1,000/-, in default to undergo two years SI and seven years RI for the offence under Section 307 read with 34 IPC. No separate sentence was imposed on them for the offence under Section 341 IPC. A4 and A5 have been convicted for the offences under Sections 147 and 324 IPC and each sentenced to undergo SI for six months for the offence under Section 147 IPC and one year RI for the offence under Section 324 IPC. The sentences were ordered to run concurrently. Challenging the above conviction and sentence, this appeal has been filed. 2. The facts leading to the conviction are as follows:- a) The deceased Periyannan is the elder brother of P.W.1 Periyasamy. P.W.2 injured Murugan is the resident of Vadukapatti village. P.W.1 and the deceased belong to the same village. Accused 1 to 5 also belong to the same village. b) On 7.10.2000 at about 2.00 p.m., the deceased Periyannan and P.W.5 Ramamurthy proceeded to the wine shop belonging to one Thalapathi at Sendamangalam to consume liquor. At that time, A1 Chandran and A4 Thangavelu were consuming liquor in the said shop. At that time, A1 Chandran and A4 Thangavelu made sarcastic remarks against the deceased, as a result of which, a wordy quarrel ensued between them. Then, the shopkeepers drove both of them out of the shop. The deceased Periyannan narrated this incident to his younger brother P.W.1. Periyaswamy. In the evening at about 6 0' clock, P.W.6 Mani was informed about the incident. So, he called both of them and compromised the matter. c) At about 9.30 p.m. on 7.10.2000, the deceased Periyannan proceeded to his land for watering the field. P.W.1 Periyasamy followed him in a cycle. P.W.2 Murugan came along the road for purchasing some articles. P.Ws. 3 and 4 were there standing near the shop. So, he called both of them and compromised the matter. c) At about 9.30 p.m. on 7.10.2000, the deceased Periyannan proceeded to his land for watering the field. P.W.1 Periyasamy followed him in a cycle. P.W.2 Murugan came along the road for purchasing some articles. P.Ws. 3 and 4 were there standing near the shop. At that time, A1 to A5 assembled there near the grocery shop at Indira Nagar, Vaduagapatti. When all of them saw the deceased Periyannan coming along the road, waylaid him and A1 shouting asgave a cut on the head of the deceased with a Koduval, A2 stabbed the deceased on the right side of his forehead twice, A3 Senthil stabbed the deceased on the right side of his abdomen with Kuthukol and A4 Thangavelu and A5 Baskaran assaulted the deceased with sticks. d) Meanwhile, P.W.2 Murugan, who was standing nearby, intervened. Then, A1 to A3 armed with Koduval and A4 and A5 armed with sticks attacked P.W.2 also. When the other witnesses tried to come near the deceased, they were threatened by all the accused. Immediately, P.W.1 dropped the cycle and rushed to the village to inform about the occurrence. A1 to A5 ran away from the spot. In the mean time, P.W.7 Mamundi and P.W.8 Tamilarasan took the deceased and P.W.2 Murugan to Namakkal General Hospital. e) P.W.10 Dr. Elango attached to Government Hospital, Namakkal examined the deceased on 7.10.2000 at 10.10 p.m. and issued Ex.P.3 wound certificate. He also examined P.W.2 Murugan and issued Ex.P.13 wound certificate. Since both of them were serious, they were sent to Salem Hospital. f) In the meantime, P.W.1 Periyaswamy went to Sendamangalam Police Station and gave Ex.P.1 complaint at 11.00 p.m. on 7.10.2000. P.W.14 Inspector of Police, Sendamangalam Police Station, registered the complaint in Crime No.714/2000 under Sections 147, 148, 341, 324 and 307 IPC. He went to the place of occurrence on the next day morning at 6 0' clock. He drew the rough sketch Ex.P.21 and prepared the observation mahazar Ex.P.4. On 8.10.2000 at 6.40 a.m. the deceased Periyannan died at the Salem Hospital. At about 11.00 a.m., P.W.14 received the death intimation and altered the offence into one under Section 302 IPC. Then, he came to the Salem Hospital and conducted inquest. He examined P.Ws. 1,2,4,7 8 and 9. The body was handed over to the Doctor for conducting post-mortem examination. g) P.W.11 Dr. At about 11.00 a.m., P.W.14 received the death intimation and altered the offence into one under Section 302 IPC. Then, he came to the Salem Hospital and conducted inquest. He examined P.Ws. 1,2,4,7 8 and 9. The body was handed over to the Doctor for conducting post-mortem examination. g) P.W.11 Dr. Ravishankar, attached to Salem Government Hospital, on receipt of the requisition Ex.P.14 from P.W.14 conducted autopsy on the body of the deceased Periyannan on 8.10.2000 at 2.00 p.m. He found as many as 16 injuries. Ex.P.15 is the post-mortem certificate. According to him, the deceased would appear to have died of shock and haemorrhaqe due to head injuries. h) P.W.14, Inspector of Police arrested A3 Senthil on 14.10.2000 at 6.30 a.m. and on his confession, he recovered M.O.3 Kuthukol. A1 Chandran and A5 Baskaran were surrendered before the Judicial Magistrate No.3, Salem on 20.10.2000. A4 Thangavelu surrendered before the Judicial Magistrate No.2, Kallakurichi on 12.10.2000. P.W.14 took police custody of A1 to A5. On the confession of A1, M.O.1 bloodstained iron Kodovual was recovered. Similarly, on the confession of A2, M.O.2 bloodstained knife was recovered. A5 gave a confession and in pursuance of the same, M.Os. 4 and 5 were recovered. The material objects were sent for chemical examination. P.W.14, after completing the investigation, laid the charge sheet against the accused 1 to 5 under Sections 147, 148, 341, 307 and 302 I.P.C. i) During the course of trial, the prosecution examined P.Ws.1 to 14, filed Exhibits P.1 to P.25 and marked M.Os.1 to 7 before the trial Court. j) When the accused were questioned under Section 313 Cr.P.C. with reference to the incriminating materials, they denied their complicity in the crime. On the side of defence, D.Ws. 1 to 5 were examined and Exs. D.1. to 3 were marked. k) The trial Court, having regard to the circumstances available on record, concluded that the prosecution has established its case beyond reasonable doubt and convicted and sentenced accused 1 to 5 as stated above. This is the subject matter of challenge in this appeal before this Court filed by the appellants. 3) We have heard Mr. K.V.Sridharan, learned counsel appearing for the appellants and Mr. V.R.Balasubramaniam, learned Government Advocate appearing for the respondent State and also gone through the records. 4. This is the subject matter of challenge in this appeal before this Court filed by the appellants. 3) We have heard Mr. K.V.Sridharan, learned counsel appearing for the appellants and Mr. V.R.Balasubramaniam, learned Government Advocate appearing for the respondent State and also gone through the records. 4. According to the prosecution, on 7.10.2000, all the accused 1 to 5 surrounded the deceased and attacked him causing serious injuries. A1 to A3 attacked the deceased with sharp edged weapons and A4 and A5 attacked with sticks. When P.W.2 intervened, he was also attacked by A1 to A5. Both were taken to the Namakkal Government Hospital by P.Ws.7 and 8 and they were admitted. Thereafter, they were taken to Salem Hospital. The deceased Periyannan died on 8.10.2000 at 6.40 a.m. In the meantime, the Complaint was given by P.W.1 to P.W.14 Inspector of Police, who registered the case for the offence under Section 307 I.P.C. After receipt of the death intimation, the case was altered into one under Section 302 I.P.C. 5. In order to prove its case, the prosecution has chosen to examine P.Ws. 1 to 4, the eye witnesses. P.W.2 Murugan is an injured eye witness. P.W.1 Periyasamy is the author of the First Information Report. P.Ws.3 and 4 are chance witnesses. In Ex.P.1 the names of all the accused are mentioned. The complaint, which was given at 11.00 p.m. on 7.10.2000, reached the Magistrate on 8.10.2000 at 8.15 a.m. 6. The important document which is to be considered in this case is Ex.D.1, the statement given by the injured witness to the Judicial Magistrate. Though this Ex.D.1 has not been marked on the side of the prosecution, the same was marked during the course of cross-examination of P.W.2. This has not been disputed by the prosecution. On the other hand, P.W.14, the Investigating Officer would admit in the cross-examination that he never knew that such a statement had been recorded by the Judicial Magistrate D.W.4 from P.W.2. As a matter of fact, it is the case of P.W.14 that he came to the hospital to obtain the statement of P.W.2 on 8.10.2000 during the course of inquest over the body of the deceased. 7. When we go through Ex.D.1 given by P.W.2, it is clear that there are materials to show that he was in a fit condition to give such a statement. 7. When we go through Ex.D.1 given by P.W.2, it is clear that there are materials to show that he was in a fit condition to give such a statement. As a matter of fact, the Doctor at Salem Hospital, who attested the document Ex.D.1, has been examined as D.W.5 and the Judicial Magistrate, who recorded the statement of P.W.2 has been examined as D.W.4. The evidence of D.Ws. 4 and 5 would indicate that such a statement had been given by P.W.2 when he was in a fit condition and the statement has been recorded by D.W.4 after observing all the formalities. In our view, this must be the earlier statement given by the injured witness. The contents of Ex.D.1 would make it clear that P.W.2 made a categoric statement that he was attacked by one Chandran with knife, causing injuries all over the body. He did not mention about the attack on the deceased and he did not refer to the presence of other witnesses. There is no reference about the part played by the other accused. As a matter of fact, a reading of the statement, as a whole, would indicate that the occurrence has taken place only in Vadugapatti main road at about 8.45 p.m. on 7.10.2000 in which, he alone was attacked by A1 Chandran. 8. It is true that this statement is not admissible under Section 32 of the Evidence Act as the maker of the statement is alive. But, as held by the Supreme Court in STATE OF U.P. VS VEER SINGH AND OTHERS ( 2004 SCC (Crl) 1672), this can be used either by the Prosecution or by the defence under Section 157 of the Evidence Act. The Supreme Court in para 5 stated that " it is trite law that when the maker of a purported dying declaration survives, the same is not a statement under Section 32 of the Indian Evidence Act, 1872, but is a statement in terms of Section 164 of the Code, and it can be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 for the purpose of contradiction. For the reasons best known to the prosecution, this has not been marked to support the case of the prosecution. For the reasons best known to the prosecution, this has not been marked to support the case of the prosecution. On the other hand, it has been marked as defence document through the maker of the statement for the purpose of contradiction. Therefore, it is permissible in law to act upon such statement. 9. As indicted above, the statement of the injured witness is Ex.D.1 It was recorded by the Judicial Magistrate D.W.4 in the presence of the Doctor D.W.5 on 8.10.2000 at 8.45 a.m. This statement would clearly indicate that the maker P.W.2 alone was attacked by A1 Chandran with knife. According to the prosecution, P.W.1 who is stated to be one of the eye witnesses, gave the complaint Ex.P.1 to P.W.14. As per Ex.P.1, the complaint given by P.W.1, all the accused surrounded the deceased and A1 to A3 attacked the deceased with sharp edged weapons, causing injuries on the body of the deceased and A4 and A5 attacked the deceased with sticks causing injuries and when P.W.2 intervened, he was also attacked by all the accused with their respective weapons. There is dispute with regard to the fact that the contents of Ex.P.1 is in consonance with the deposition given by P.W.1 Similarly, P.Ws. 2 to 4 also would state corroborating the evidence of P.W.1 as stated in Court or as mentioned in Ex.P.1. But unfortunately, no explanation has been given either by P.W.2 or by any other witness as to why in the earlier statement given by P.W.2 only one person was implicated. 10. Further, Ex.P.13 wound certificate, which relates to P.W.2, would indicate that he gave statement to P.W.10 that he was attacked by twenty persons. The wound certificate issued by P.W.10 relating to the deceased would also indicate that he was attacked by twenty persons with various weapons. Ex.P.13 accident register copy was prepared at 10.45 p.m. on 7.10.2000 and Ex.D.3 relating to the deceased was prepared by P.W.10 at 10.10 a.m. on 7.10.2000. Ex.P.1 was registered at 11.00 p.m. on 7.10.2000. Ex.D.1 was recorded by D.W.4 at 8.40 a.m. on 8.10.2000. These documents would indicate that in some of the statements, it is stated that 20 persons were involved and in some statements, it is stated that only 5 and odd were involved and the statement given by P.W.2 to D.W.4 Judicial Magistrate would show that only one person was involved. Ex.D.1 was recorded by D.W.4 at 8.40 a.m. on 8.10.2000. These documents would indicate that in some of the statements, it is stated that 20 persons were involved and in some statements, it is stated that only 5 and odd were involved and the statement given by P.W.2 to D.W.4 Judicial Magistrate would show that only one person was involved. So, virtually a contrary case has been projected by the prosecution, without making an attempt to give explanation with reference to the statement given by P.W.2 implicating one accused alone. 11. The preposterous feature which could be noticed is the admission of P.W.14, who stated that he never knew that such a statement had been given by P.W.2 to the Judicial Magistrate, If this is really true, it is quite unfortunate on the part of the Investigating Officer who have not investigated this aspect properly even though P.W.2 is said to have been examined by P.W.14 on the same day, i.e. on 8.10.2000. In our view, the statement could not be true because he must have come to know about such a statement implicating one person alone and in order to suppress the said document implicating only one person, he has not chosen to examine the Salem Doctor in whose presence, the learned Judicial Magistrate recorded the statement. 12. In this context, we have to analyze the credibility of the ocular witnesses. According to P.W.2, in his presence, the deceased was attacked. If really P.Ws. 1, 3 and 4 were present at the time of occurrence, they would have intervened. As a matter of fact, P.W.1 is the blood brother of the deceased. It is also noticed that P.W.3 and 4 were accused in a case in which, A1 and A2 sustained injuries at the hands of P.Ws. 3 and 4. When such is the case, P.Ws. 3 and 4 also would have intervened and would have sustained injuries. Further, it is seen that P.W.2 did not make any reference about the presence of P.W.1 either during the course of statement or in the deposition or in the dying declaration Ex.D.1 statement given to the Judicial Magistrate. So, this conduct of P.Ws. 1, 3 and 4 in not having intervened and in not taking immediate steps to take them to the hospital would create a doubt about their presence in the spot. Considering the evidence of D.Ws. So, this conduct of P.Ws. 1, 3 and 4 in not having intervened and in not taking immediate steps to take them to the hospital would create a doubt about their presence in the spot. Considering the evidence of D.Ws. 1 to 3, it is clear that participation of A1 to A5 is highly doubtful. 13. In short, the entire case of the prosecution falls to the ground on two vital aspects; 1) the earlier document viz., Ex.D.1 given by P.W.2 to D.W.4, the Judicial Magistrate is quite contradictory to the prosecution case and 2) failure on the part of the Investigating Officer to investigate about the contents of Ex.D.1 and also the attempt made by the Investigating Officer to suppress the fact that P.W.2 has given such a statement to D.W.4. So, all these aspects put together would make us to conclude that the prosecution has not presented a true version before the trial Court and as such, we are of the considered opinion that the prosecution has miserably failed to prove its case beyond all reasonable doubt. Therefore, the appellants/accused are liable to be acquitted as they are entitled to be given the benefit of doubt. 14) In fine, the appeal is allowed and the conviction and sentence imposed upon the appellants/accused 1 to 5 by the trial Court are set aside and the appellants are acquitted of the charges. The fine amounts, if paid, shall be refunded to them. Bail bonds executed by the appellants shall stand cancelled.