Judgment :- (Criminal Appeal filed under Section 378 of Criminal Procedure Code against the judgment of the Court of the Principal Sessions Judge, Namakkal made in S.C. No.61 of 2002 dated 26.08.2002.) M. Jeyapaul, J. This appeal has been filed against the judgment of the Court of the Principal Sessions Judge, Namakkal made in S.C. No.61 of 2002 dated 26.08.2002. 2. The first and third accused, who received a verdict of conviction on the file of the Principal Sessions Judge, Namakkal in Sessions Case 61 of 2002, moved the present appeal. The second accused who was also convicted by the Sessions Judge, has chosen not to prefer any appeal before this Court. 3. The learned Principal Sessions Judge, Namakkal, convicted A1 to A3 for offences under Section 364 of the Indian Penal Code and Section 302 read with Section 34 of the Indian Penal Code, and sentenced them to undergo ten years rigorous imprisonment for offence under Section 364 of the Indian Penal Code and life imprisonment for offence under Section 302 read with Section 34 of the Indian Penal Code, and the sentence has been ordered to run concurrently. 4. The charges against A1 to A3 is that, on 09.08.1999 at about 8.00 p.m. at Pallipalayam Village, they abducted one Muthu Koya Thangal with an injury to commit murder and thereby they committed offence punishable under Section 364 I.P.C. In the course of the same transaction, A1 to A3, in furtherance of the common intention to cause the death of Muthu Koya Thangal, ripped open his private part, while A2 and A3 assisted him by catching hold of Muthu Koya Thangal, and caused his death and thereby they committed offence under Section 302 r/w Section 34 I.P.C. 5. The case in brief, of the prosecution, as found from the evidence adduced on their side is as under: 5.1. Akbar Ali, P.W.4 is running a Biriyani Stall at Kumarapalayam. He had some affair with one Kanchana about one month prior to the occurrence which took place on 09.08.1999. When P.W.4 was not on talking terms with the said Kanchana, the latter developed some intimacy with the first accused Mani and the first accused Mani started involving Kanchana in prostitution. Kanchana, in turn, having decided to retrive herself from this immoral trade, wanted to marry Muthu Koya Thangal, since deceased. When P.W.4 was not on talking terms with the said Kanchana, the latter developed some intimacy with the first accused Mani and the first accused Mani started involving Kanchana in prostitution. Kanchana, in turn, having decided to retrive herself from this immoral trade, wanted to marry Muthu Koya Thangal, since deceased. The first accused, who had already developed some illicit intimacy with Kanchana, came to know of the design of Kanchana. The first accused informed the second accused Nazar to get rid of Muthu Koya Thangal, and the said information was parted with by the second accused to P.W.4, when he was busy in his Biriyani Shop. 5.2. On 09.08.1999, at about 9.30 p.m., all the three accused came along with Muthu Koya Thangal to the shop of P.W.4. Muthu Koya Thangal was in an inebriated mood. Having taken food stuff in the shop of P.W.4, all of them left towards North Gandhipuram. P.W.4 saw the accused 1 to 3 returning at about 11.00 p.m. By that time, the Muthu Koya Thangal was not found in the company of A1 to A3. 5.3. Mani, P.W.3, resided in the house opposite the house of the accused. He witnessed the accused 1 to 3 quarelling with Kanchana and Muthu Koya Thangal about four days prior to the occurrence. Though the prosecution has cited Mani, P.W.3 to speak about the alleged extra judicial confession of the second accused, Nazar, Mani had turned hostile on the version of the prosecution. 5.4. Joseph, P.W.2, Village Assistant, serving under Thangavelu, village Administrative Officer, P.W.1, spotted a dead body at about 7.00 a.m. on 10.08.1999 in a thorny bush on the way to his office at Kumarapalayam Agraharam. He came down to the office and informed P.W.1 about the dead body left stranded in the thorny bush. P.W.1 went along with Village Assistants to the said location and found the dead body and thereafter, he prepared a complaint, Ex.P.1 and submitted the same at about 9.30 a.m. on the said day, before the Sub-Inspector of Police Mr.Radhakrishnan, P.W.9, who registered a case in Crime No.855/99 under Section 302 I.P.C. He prepared printed First Information Report Ex.P.18 and despatched the same to the learned Judicial Magistrate and the copies thereof to the higher officials concerned. 5.5. 5.5. The Inspector of police Mr.Lakshmanan, P.W.12, who received a copy of the First Information Report from P.W.9, proceeded to the scene of occurrence and prepared Observation Mahazar, Ex.P.2 in the presence of the Village Administrative Officer, P.W.1. He also drew rough sketch Ex.P.22, reflecting the scene of occurrence. He engaged a photographer Paramakrishnan, P.W.6 to take photograph of the dead body. P.W.12, held inquest on the dead body in the presence of panchayatars and prepared Inquest Report, Ex.P.23. He also seized blood stained earth, M.O.1 and Sample earth, M.O.2 under Seizure Mahazar, Ex.P.3 in the presence of P.W.1. 5.6. He engaged Grade-1 Constable Annamalai, P.W.11 to take the dead body for the purpose of postmortem examination. Dr.Chandramohan, P.W.10, having received requisition, Ex.P.19 from P.W.11, commenced postmortem examination at 10.45 a.m. on 11.08.1999. He found the following external injuries and other features on the dead body of Muthu Koya Thangal. "(1) 3" x 1-1/2" x 1" two incision on the left side of middle of neck. (2) A incised wound extending from right side back of neck. Extending to left side Carotid Region 9"x2"x4" depth. External Injuries: (1) Right side Hyoid Bone broken. (2) Two incisions 2-1/2" x ½" x ½" Right Scrotum. (3) Left side Testes crushed ½" x ½" ½" (4) Right side normal 2-1/2" x 1-1/2" x 2" Internal organs: (1) Heart weight 250 grms, Cross Section Pale (2) Lungs: Right 450 grms Left 400 grms C/s: Pale. (3) Stomach: undigested food particles 300 grms Reddish in colour. (4) Liver 1400 grms C/s: Pale. (5) Spleen 150 gms C/s: Pale (5) Kidneys both 150 gms C/s: Pale (6) Intestine: filled with gas (6) Bladder empty (7) Brain: normal 1200 gms C/s: Pale" 5.7. He issued Postmortem Certificate, Ex.P.20 reserving his opinion, pending Chemical Analysis Report on viscera. After obtaining the report, he expressed final opinion in Ex.P.21, that Muthu Koya Thangal could have died due to shock on account of the crush injury found in the testicles. The doctor has also opined that the injury has been caused to the neck which was postmortem in nature. On 12.08.1999, at about 6.30 a.m., the first and second accused were arrested at Vattamalai Bus Stop in the presence of Village Administrative Officer, Mr.Ganesan, P.W.5. Supermax blade, M.O.7, blood stained shirt, M.O.9 and lungi, M.O.8 were recovered under Seizure Mahazar Ex.P.4. On 12.08.1999, at about 6.30 a.m., the first and second accused were arrested at Vattamalai Bus Stop in the presence of Village Administrative Officer, Mr.Ganesan, P.W.5. Supermax blade, M.O.7, blood stained shirt, M.O.9 and lungi, M.O.8 were recovered under Seizure Mahazar Ex.P.4. In the presence of the aforesaid witnesses, at about 7.30 a.m., the second accused, Nazar gave a confession statement. At his instance, a Supermax blade with wrapper M.O.6 was recovered under Seizure Mahazar, Ex.P.5. Thereafter, P.W.12 arrested the third accused Subramani at about 9.30 a.m. at Shanthamani Tea Stall, Kumarapalayam. Stainless Supermax blade, M.O.10, was recovered under Recovery Mahazar Ex.P.6 in the presence of P.W.5. All the three accused along with the material objects, recovered at their instance, were remanded to judicial custody by P.W.12. 5.8. Dhandapani, P.W.8, Head Clerk, attached to the learned Judicial Magistrate No.1, Sankari, has spoken to the requisitions Ex.P.7 and Ex.P.8 submitted by the Inspector of Police, P.W.12 and the covering letters Ex.P.9 and Ex.P.10, despatched to the Chemical Examiner, with a request to examine the material objects sent for analysis. The chemical report Ex.P.11 and Serology Report, Ex.P.12, were received by the learned Judicial Magistrate No.1, Sankari. Sridhar, P.W.7, a shop keeper at Kumarapalayam has spoken to the sale of Supermax blade, to A1 to A3. P.W.12, having completed the investigation, lodged final report, as against A1 to A3 under Section 302 read with Section 34 I.P.C. on 31.01.2000. 5.9. The incriminating circumstances found in the testimony of prosecution witnesses were put to the accused in the form of a questionnaire under Section 313 of the Code of Criminal Procedure. The accused 1 to 3 have denied each and every incriminating circumstance, spoken to, by the witnesses. They have also stated that a false case was foisted on them. 5.10. On the side of the defence, neither oral nor documentary evidence was let in. The learned Principal Sessions Judge, Namakkal, having adverted to the testimony of Mani, P.W.3, Akbar Ali, P.W.4 and Sridhar, P.W.7 in the background of the chemical report received from the Chemical Examiner, had come to the conclusion that A1 to A3, having abducted Muthu Koya Thangal with an intention to cause his death, committed murder in furtherance to the common intention and thereby they committed offences under Sections 364 and 302 read with Section 34 I.P.C. 6. The learned counsel for the first and third accused, who are the appellants before us, would contend that the "last scene theory" projected by the prosecution through P.W.4 was completely demolished by the defence during the course of cross examination. He had been examined as per the prosecution on 11.08.1999, but the statement recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure has reached the portals of the learned Judicial Magistrate No.1, Namakkal only on 01.02.2000 along with the charge sheet issued by the Investigating Agency. Therefore, the testimony of Akbar Ali, P.W.4 does not inspire judicial confidence. If we eschew the last scene theory put forth by the prosecution through P.W.4, the prosecution is virtually left in the lurch. There is no legal evidence to connect the accused to the crime alleged by the prosecution. It is his further submission that the recovery of three blades from the pockets of the respective accused on the date of arrest, appears to be quite artificial. When the recovery part of the case of the prosecution is rejected, the Court cannot fall upon the Chemical Examiner's Report which of course, say that the apparels and the blades alleged to have been recovered from the accused were found with human blood of B-Group. The last submission made by the learned counsel for the first and third accused is that the dead body itself was not identified by any of the witnesses, when a complaint was given by the Village Administrative Officer, stating that an unidentified dead body was found on the scene of crime. Therefore, the learned counsel for A1 and A3 would submit that the Trial Court had erred in convicting A1 and A3 when there is no legal evidence on record. 7. The learned Additional Public Prosecutor would submit that the last scene theory is found reinforced by the Serology Report marked by the prosecution, Ex.P.12. The recovery part of the case also has been established through the Village Administrative Officer, P.W.5 who was present at the time of arrest and the recovery made from the respective accused. The Trial Court has rightly returned the verdict of conviction based on available evidence. 8. We find that the Village Administrative Officer, P.W.1 has lodged the complaint, Ex.P.1. The recovery part of the case also has been established through the Village Administrative Officer, P.W.5 who was present at the time of arrest and the recovery made from the respective accused. The Trial Court has rightly returned the verdict of conviction based on available evidence. 8. We find that the Village Administrative Officer, P.W.1 has lodged the complaint, Ex.P.1. On a perusal of the complaint, Ex.P.1, it is found that the Village Administrative Officer has categorically stated that an unidentified male dead body was found at Pirandhar Forest. The Inquest Report would also reflect that only an unidentified dead body was subjected to investigation by the Investigating Officer, P.W.12. The Requisition, Ex.P.19, submitted by P.W.12 to the Doctor for postmortem examination would also disclose that the dead body had not been identified till then. It is not as if the investigating agency had not located any person to identify the dead body. The Investigating Agency, P.W.12, has categorically deposed before the Court that he did examine Bindhu Omana, who is the wife of the deceased and one Veerammal who identified the dead body, but unfortunately, none of these witnesses was examined before the Court to speak to the identification of the dead body, more especially, when the accused has come out with a defence that the dead body was not that of Muthu Koya Thangal. We find that the prosecution has failed to establish that the dead body found by the Village Administrative Officer, P.W.1, was that of Muthu Koya Thangal. 9. Mani, P.W.3, has been examined to speak to the alleged extra judicial confession given by the second accused. P.W.3 has failed to support the said extra judicial confession alleged to have been given by the second accused to him. He has simply spoken about the quarrel between the accused and the deceased, about four days prior to the occurrence. His testimony does not indicate the involvement of the accused in the crime. 10. P.W.4, who is running a Biriyani Stall at Kumarapalayam has come out with a last scene theory projected by the prosecution. P.W.4, during the course of cross examination, has stated that he was not aware as towards which direction the accused had left after taking food stuff in his Biriyani Stall. Therefore we find that there is a dent in the theory of last scene together put forth by the prosecution. P.W.4, during the course of cross examination, has stated that he was not aware as towards which direction the accused had left after taking food stuff in his Biriyani Stall. Therefore we find that there is a dent in the theory of last scene together put forth by the prosecution. That apart, we find that P.W.4 has been reportedly examined on 11.08.1999 by the Investigating Officer. The explanation given by Akbar Ali, P.W.4 is that he had gone out on a business trip and come down only on 11.08.1999 and assisted the Investigating Officer in this case. The statement recorded under Section 161 of the Code of Criminal Procedure from Akbar Ali, P.W.4 has reached the learned Judicial Magistrate No.1, Namakkal only on 01.02.2000 along with the charge sheet laid by the Investigating Officer. It create a doubt in our mind whether the Investigating Officer would have subjected the aforesaid witness, P.W.4, to examination on 11.08.1999 itself. For all the aforesaid reasons, we conclude unhesitatingly that the testimony of Akbar Ali, P.W.4 does not inspire judicial conscience. 11. The recovery part of the case of the prosecution now remains to be scanned by us. The shop keeper, Sridhar,P.W.7 would state during the course of chief examination that, he sold Supermax blades to A1 to A3. Very strangely, he had also identified those blades as that of the blades he sold to those three accused. All the Supermax blades would appear quite similar and one cannot distinguish the blades produced by Supermax Company. We really wonder how this witness could distinguish the blades at ease. Further the statement of Sridhar, P.W.7, recorded under Section 161 Cr.P.C. was also reached the portals of the learned Judicial Magistrate No.1, Namakkal only on 01.02.2000 along with the charge sheet. For all these reasons, we find that the testimony of Sridhar, P.W.7 also cannot be safely relied upon. 12. Ganesan, P.W.5, serving as Village Administrative Officer was a witness to the arrest of the accused and the recovery alleged to have been made from the accused. The case of the prosecution is that all the three accused having used the blades for the commission of the offence, kept them very safely in the respective pockets. This story does not appear to be believable. The case of the prosecution is that all the three accused having used the blades for the commission of the offence, kept them very safely in the respective pockets. This story does not appear to be believable. As rightly pointed out by the learned counsel for the appellants, the recovery portion of the testimony of the prosecution evidence smacked of artificiality. 13. Therefore we are not inclined to accept the recovery of the material objects from the possession of the respective accused. When the recovery part of the prosecution story is disbelieved by us, we cannot rely upon the Serology Report, Ex.P.12, marked on the side of the prosecution. 14. Of course, the testimony of Dr.Chandramohan, P.W.10, would establish that a male had died a violent death. But the prosecution has failed to fundamentally establish that the dead body was that of Muthu Koya Thangal. The other evidence adduced on the side of the prosecution also has not proved the case of the prosecution to the hilt. We find that the appellants herein, figured as A1 and A3 before the Trial Court, are entitled to acquittal for all the reasons stated by us above. 15. In the result, the judgment of conviction and sentence recorded by the Trial Judge for offences under Sections 364 and 302 r/w Section 34 of the Indian Penal Code, is set aside and the appellants A1 and A3 are acquitted of the charges under Sections 364 and 302 r/w Section 34 of the Indian Penal Code. The appellants A1 and A3 shall be set at liberty forthwith.