Judgment :- (Criminal Appeal is filed under Section 374 (2) of Cr.P.C. against the judgment passed by Additional District & Sessions Judge, Fast Track Court II in Sessions Case No.293 of 2000 dated 05.07.2002.) J.A.K. Sampathkumar, J. These appeals arose out of conviction and sentence imposed by the Additional Sessions Judge, Fast Track Court II, Chennai in S.C.No.203 of 2000 convicting the appellants in the following manner: 2. Appellant (A1) in C.A.No. 1240 of 2002 was convicted under Section 302 I.P.C and sentenced to suffer life imprisonment and also to pay a fine of Rs.5,000/- in default 6 months rigorous imprisonment. 3(i). Appellant (A2) in Crl.A.No. 616 of 2003 was convicted under Section 302 I.P.C. and sentenced to undergo life imprisonment and also to pay a fine of Rs.5,000/- in default 6 months rigorous imprisonment . 3(ii). He was also convicted under Section 201 I.P.C. and sentenced to suffer rigorous imprisonment for 7 years and also to pay a fine of Rs.2,000/- in default 3 months rigorous imprisonment. 3(iii). He was also Convicted under Section 382 I.P.C. and sentenced to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs.2,000/- in default 3 months rigorous imprisonment. The sentences shall run concurrently. 4(i).First Appellant (A3) in Crl.A.1247 of 2002 namely Mustak Ali was convicted under Section 201 I.P.C. and sentenced to suffer rigorous imprisonment for 7 years and also to pay a fine of Rs.3,000/- in default 3 months rigorous imprisonment. 4(ii). The second appellant (A5) namely Imithaz Ahmed @ Samsuddin in Crl.A.No.1247 of 2002 was convicted under Section 414 I.P.C. and sentenced to suffer rigorous imprisonment for years. 5. The case against A4 namely Sudhakar ended in acquittal. 6.1. The case of the prosecution is as follows: The deceased is the wife of P.W.1 and mother of P.W.2 and P.W.3. P.W.8 is the junior paternal uncle of P.W.1. Deceased Anusuya was having finance dealing. She gave loan to several persons. 6.2. Similarly, Anusuya gave loan of Rs.3,00,000/-to the first accused. She also gave loan of Rs.30,000/- to the second accused. But neither A1 nor A2 repaid the loan amount to the deceased. Therefore, the deceased demanded A1 and A2 to repay the loan amount. 6.3. On 10.11.1998, A2 telephoned and stated that he would get money from P.W.15, Akbar and settle the amount due to the deceased on 12.11.1998. She also gave loan of Rs.30,000/- to the second accused. But neither A1 nor A2 repaid the loan amount to the deceased. Therefore, the deceased demanded A1 and A2 to repay the loan amount. 6.3. On 10.11.1998, A2 telephoned and stated that he would get money from P.W.15, Akbar and settle the amount due to the deceased on 12.11.1998. On 12.11.1998 at about 10.30 a.m. A4 Sudhakar came to the house of the deceased and took her in the car wherein, two more persons were also present. Then they proceeded to P.W.15, Akbar's house at Anna Nagar. They waited there but could not get any amount. Then they took her to various places and returned to her house at about 5.00 p.m. The Deceased informed about the day's happening to P.W.1. 6.4. On 13.11.1998 at about 9.00 p.m. deceased informed to P.W.1 that she is going to A1 Indira @ Indira Kala's house for collection of loan amount. The deceased went to A1 house at 10.15 a.m. P.W.4 Meena, the servant maid of A1 was present at the time when the deceased came there. P.W.6 being the watchman of the apartment wherein A1 is living saw the deceased entering the house of A1 but did not noticed when she left the house as he was sent out to metro office to pay the bill. 6.5. Then A1 mixed some powder in the bread with vegetables and gave it to the deceased Anusuya. P.W.4 Meena questioned about the same. A1 Indira @ Indira kala replied that it is only Holy Ash. Deceased consumed the same and sat on the sofa. P.W.4 Meena applied some oinment for the leg paid suffered by the deceased. Then A1 Indira @ Indira Kala took the deceased inside the house and asked P.W.4 Meena to bring A2 Shapudeen. P.W.4 Meena went and brought A2 Shabudeen. A2 came along with two other persons to A1's house. 6.6. Thereafter, the deceased was asked to lay down on a pillow. Immediately A1 caught hold the deceased hands and A4 and A5 caught hold of the legs of the deceased. A2 pressed the pillow M.O.1 on the face of the deceased. A3 Mustak Ali was very much present at the time. Thereafter A3 went out and brought M.O.11 Car, to the house of the first accused. Thereafter, A2 to A5 taken the deceased in the car M.O.11 brought by A2. A2 pressed the pillow M.O.1 on the face of the deceased. A3 Mustak Ali was very much present at the time. Thereafter A3 went out and brought M.O.11 Car, to the house of the first accused. Thereafter, A2 to A5 taken the deceased in the car M.O.11 brought by A2. This was seen by P.W.7 Ramadoss. 6.7. P.W.4 Meena infact questioning the attitude of the first accused for which, the first accused asked P.W.4 Meena not to tell to any one regarding the occurrence. 6.8. Meanwhile P.W.1 Ekambaram, husband of the deceased returned to the house at 11.00 a.m. The deceased was not there. Then he enquired one Narendran about the deceased. He informed P.W.1 that deceased left at about 10.00 a.m. Then P.W.1, Ekambaram waited till evening, but the deceased did not turn up. Then at about 6.00 to 7.00 p.m. P.W.1 Ekambaram telephoned to A1's house and enquired about the deceased. A1 stated that the deceased was there around to one to 1 ½ hours. After that she left the place, saying that she had some work to attend. Again at about 7.30 p.m. P.W.1 Ekambaram, husaband of the deceased and P.W.2 Ravichandran, son of the deceased went to the house of A1 and enquired about the deceased. A1 informed that the deceased left the place saying that she had to attend some work. 6.9. On 14.11.1998, at about 10.00 a.m. P.W.1 went to Vepery Police station and gave a report Ex.P.1. At about 10.15 am. P.W.39, Head Constable registered a case of women missing in Crime No.3136 of 1998 under the caption women missing. Ex.P.14 is the F.I.R. 6.10. On hearing the news from the village that a women body is found at Pandur Aeri within the jurisdiction of Tiruvallur Taluk, P.W.20 along with P.W.21 and P.W.22 went there and seen the corpus and thereafter went to Tiruvallur Taluk Police station and gave a report Ex.P.2, which was received by p.w.38 Sub Inspector of Police who inturn registered the same in Cr.No. 922 of 1998 under Section 174 Cr.P.C. Ex.P.11 is the printed F.I.R. P.W.23 to P.W.25 have also seen the corpus at the said place. 6.11. Then P.W.38 Inspector of Police went to the scene of occurrence and prepared a rough sketch Ex.P.12. He prepared Observation Mahazar Ex.P3 and conducted inquest on the body of the deceased Anusuya. Ex.P.13 is the inquest report. 6.11. Then P.W.38 Inspector of Police went to the scene of occurrence and prepared a rough sketch Ex.P.12. He prepared Observation Mahazar Ex.P3 and conducted inquest on the body of the deceased Anusuya. Ex.P.13 is the inquest report. Then he sent the body for postmortem through P.W.32. P.W.37 R. Muthulakshmi is the postmortem doctor attached to Government Hospital, Ranipettai. On 15.11.1998 on receipt of requisition from P.W.38 Inspector of Police, P.W.37 postmortem doctor conducted autopsy on the body of the deceased Anusuya and gave postmortem certificate Ex.P.10. Since, the dead body was highly decomposed, he could not give any opinion regarding the cause of death. Thereafter, P.W.37 received the questionnaire to give opinion regarding the cause of death of the deceased Anusuya from P.W.43 for which, she gave answer for the same. Ex.P.17 is the report. This Ex.P.17 would amount to recording of evidence under Section 161 Cr.P.C. In fact Ex.P.17 was marked subject to admissibly. After postmortem, the blood stained cloth of the deceased was recovered under Form 95 by P.W.42. Then he sent the same through Court for serological test. Blood stained cloth of the deceased was spoken to in detail by P.W.27 Murali. M.O.2 is saree. M.O.3 is blouse. M.O.4 is inskirt. 6.12. In the meantime, P.W.38 Inspector of Police on 14.11.1998 gave a news to the papers for publication about the death of Anusuya. On 15.11.1998, P.Ws 1 and 2 after seeing the paper came to Tiruvallur Taluk police station to identify the corpus. So, P.W.38, Inspector of Police took them to Government Hospital, Tiruvallur for identification of the deceased. They identified the body of the deceased. 6.13. In pursuance of the identification, P.W 42 Inspector of Police attached to Tiruvallur Taluk Police station, on 15.11.1998 came to know about the case registered under Section 174 Cr.P.C. and hence he altered the offence under Section 174 Cr.P.C. into Sections 302 and 379 I.P.C. He also examined P.Ws 1, 2 and 20 and other witnesses and recorded their statements. Ex.P.15 is the altered F.I.R. Ex.P.16 is the requisition given by P.W.42 to conduct serological report in respect of the blood stained clothes. 6.14. Ex.P.15 is the altered F.I.R. Ex.P.16 is the requisition given by P.W.42 to conduct serological report in respect of the blood stained clothes. 6.14. So much so, P.W.43, Inspector of Police, G1, Veppery Police Station, Chennai on the orders of the Commissioner of Police on 18.4.1999, received the case in Crime No.922 of 1998 on the file of Tiruvallur Police station under Section 174 Cr.P.C. which was altered to Section 302 I.P.C. and clubbed the same together with the case in Crime No. 3136 of 1998 on the file of the G1, Veppery Police Station which was filed for women missing and took up investigation. Ex.P.20 is the altered F.I.R. 6.15. On 19.4.1999, P.W.43 Inspector of Police received information that the accused Indira @ Indira Kala had obtained Anticipatory Bail in this Court under Criminal O.P. No.1621 of 1999. On 20.4.1999, he went to Tiruvallur Pandur Village and inspected the place of occurrence. Threafter, he examined the witnesses pertaining to this case. On 26.4.1999 he sent the questionnaire to P.W.37 Dr.Muthulakshmi to find out the cause of death of the deceased Anusuya and obtained a report as per Ex.P.17. 6.16. On 29.4.1999 at about 8.30 a.m. on information, in the presence of witnesses P.W.30 Kandaswamy and Ganesh Kumar, he arrested the accused Shabudeen (A2) and Mustak Ali (A3) at Purasaiwakkam Town Junction and obtained confession statement from them. The statement were attested by the said witnesses. Ex.P.18 is the confession statement of the accused Shabudeen (A2). Ex.P.19 is the confession statement of the accused Mustak Ali (A3). On the same day, he produced them before the XIV Metropolitan Magistrate, Chennai and obtained police custody from 29.4.1999 to 02.4.1999. on the same day, on the identification by the accused P.W.43 Inspector, in the presence of P.W.30 Kandaswamy and witness Ganesh Kumar, seized M.O.11 Maruti Omni Van T.C.V.7808, on production by Bala Murugan at No.8, Venkataraman Street, T.Nagar, Chennai-17 under mahazar Ex.P.7. In fact the said vehicle was given by the accused namely Mustak Ali to P.w.31 Kumar for service on 13.11.1998 and taken the same on 14.11.1998. 6.17. On the same day P.W.4 Meena came to the police station and identified the accused Shabudeen and Mustak Ali. In fact the said vehicle was given by the accused namely Mustak Ali to P.w.31 Kumar for service on 13.11.1998 and taken the same on 14.11.1998. 6.17. On the same day P.W.4 Meena came to the police station and identified the accused Shabudeen and Mustak Ali. On 02.5.1999 at about 10 a.m., on the identification by the accused Shabudeen P.W.43 Inspector went to the house of the accused Indira @ Indira Kala situated at No.41, 'C' Block, Kadambari Apartment, Ritherdon Road, Purasaiwakkam and prepared observation mahazar and sketch. Ex.P.21 is the sketch. On the identification by the accused Shabudeen, he also seized M.O.1 Pillow under mahazar. 6.18. Thereafter, the accused Shabudeen took P.W.43 along with other witnesses to the pawn broker shop of P.W.29 and informed about the sale of M.Os 5 to 10. P.W.29 who in turn informed P.W.43 Inspector that the accused Immthiyas Ahmed @ Samsudeen (A5) came to his shop and sold the same in the year 1998. P.W.43 Inspector who in turn seized the same under mahazar. 6.19. On 19.5.1999, P.W.43 Inspector examined Mr.Sekar, Inspector of Police (Crime),G1, Vepary police station and came to know that the absconding accused Immthiyas Ahmed @ Samsudeen (A5) concerned in another crime case and lodged in central prison, Chennai. So, on 20.5.1999, he gave a requisition to XIV Metropolitan Magistrate, Chennai for police custody of Immthiyas Ahmed @ Samsudeen (A5) and obtained orders for 2 days police custody. He also obtained confession statement from the accused Immthiyas Ahmed @ Samsudeen in the presence of witnesses Ganesh kumar and Parthasarathy. 6.20. P.W.43 Inspector also taken necessary steps to for recording of 164 statement of P.W.4 from Chief Metropolitan Magistrate, Chennai and obtained orders for the same. Ex.P.8 is the order dated 12.5.1999 issued by the Chief Metropolitan Magistrate, Chennai for recording of 164 statement of P.W.4 by VII Metropolitan Magistrate. In pursuance of the said order, P.W.35 Civil Judge examined P.W.4 Meena under Section 164 Cr.P.C. and obtained her statement. Ex.P.9 is the 164 statement of P.W.4 Meena. 6.21. On 21.5.1999 at about 7.30 a.m., on information, P.W.43 Inspector arrested the accused Sudhakar (A4) at the junction of Purasaiwakkam Perambur Barax Road in the presence of witnesses Parthasarathy and Ganesh Kumar and obtained confession statement from them. P.W.4 Meena also identified the accused Immthiyas Ahmed @ Samsudeen to P.W.43 Inspector. Thereafter, P.W.43 was transferred from that station. 6.21. On 21.5.1999 at about 7.30 a.m., on information, P.W.43 Inspector arrested the accused Sudhakar (A4) at the junction of Purasaiwakkam Perambur Barax Road in the presence of witnesses Parthasarathy and Ganesh Kumar and obtained confession statement from them. P.W.4 Meena also identified the accused Immthiyas Ahmed @ Samsudeen to P.W.43 Inspector. Thereafter, P.W.43 was transferred from that station. He also examined Inspector of Police, Tiruvallore Police station under Section 161 Cr.P.C. and came to know that the deceased would have been murdered after kidnapping her from Purasaiwakkam Abirami Theatre. He examined P.W.1 and witness Ravi Chandran under Section 161 Cr.P.C. and recorded their statements. Exs.D.1 & D.2 are the dates mentioned in their statement. Though P.W.43 Inspector examined P.W.4 Meena for four times, she did not divulge any of the information. 6.22. Thereafter, P.W.44 Inspector took up further investigation in this matter, perused the case file completed the investigation and filed a final report on 26.7.1999 under Sections 302, 201, 382, 414 read with 120 (B) & 34 I.P.C. against the accused namely Indira@Indira Kala (A1), Shabudeen (A2), Mustak Ali (A3), Sudhakar (A4) and Immthiyas Ahmed @ Samsudeen (A5). 7.Thereafter, prosecution examined P.Ws.1 to 44, marked 21 Exhibits and 11 material objects to prove the guilty act of the accused. Exs.D1 and D2 were marked by the defence side to disprove the case of the prosecution. 8. The trial court, after analysing the entire facts on record came to the conclusion that the accused namely Indira@Indira Kala (A1), Shabudeen (A2), Mustak Ali (A3), and Immthiyas Ahmed @ Samsudeen (A5) have committed the offence (1) under Section 302 (2) 302, 201, 382 I.P.C. (3) 201 I.P.C. and (4) 414 I.P.C. respectively and convicted and sentenced them accordingly for the period referred therein. At the same time, the trial Court acquitted the fourth accused Sudhakar, as he was not found guilty for the charges levelled against him. 9. Heard both sides. 10. Now, we have to find out whether the finding of the trial Court in convicting and sentencing the accused referred above for the offences narrated therein is on the basis of the evidence available on record. 11. To find out truth or otherwise of the prosecution case, the following points are to be proved. 1. Whether Cropus delicti of the accused Anusuya is proved? 2. 11. To find out truth or otherwise of the prosecution case, the following points are to be proved. 1. Whether Cropus delicti of the accused Anusuya is proved? 2. Whether the death of Anusuya is due to homicide or suicide under the influence of the accused or suicide on her own accord or natural death? 3. If the death is due to homicide, whether the appellants herein are responsible for the same? Point No.1: 12. Corpus delicti of the accused Anusuya have been proved on the identification by P.W.1 to 3 and P.W.8 who are none other than the husband, son, daughter and junior paternal uncle of P.W.1. In fact, P.W.1 husband of the deceased Anusuya gave a complaint to Vepary Police Station about the missing of his wife Anusuya on 14.11.1998 itself. The complaint of P.W.1 and registration of F.I.R. were marked as Exs.P.1 and P.14. On 14.11.1998, unidentified corpus was found by P.W.20 Village Administrative Officer at Pandur village, Tiruvallur Taluk. Unidentified corpus was seen by P.W.20 to P.W.26. They have also seen that the corpus wearing M.Os 2,3 and 4. So much so, P.W.20 being the village administrative officer gave a report about the unidentified dead body to P.W.38 being the Sub Inspector of Police, Tirvallur police station who in turn registered a case in Crime No. 922 of 1998. Ex. P.20 is the complaint and Ex.P.11 is the printed F.I.R. The photo of Anusuya has also been published in all papers. So much so, P.W.38 also gave a news to the papers for publication on 14.11.1998 about the unidentified corpus found at Pandur village. On seeing the paper publication P.W.1 and 2 went to Tiruvallur Taluk Police Station and on their instruction went to Government Hospital and identified the body of the deceased Anusuya in the mortuary. From the narration of events, we are satisfied that the corpus delicti of Anusuya has been proved by prosecution beyond reasonable doubt. There is no contrary evidence on this aspect. There is also no confrontation about his aspect by the defence. Point No.2: 13. The body of the deceased Anusuya was subjected for postmortem. P.W.37, being the postmortem doctor, conducted autopsy on the body of the deceased Anusuya and submitted the report Ex.P.10. Since, the body was highly decomposed he could not give any opinion regarding the cause of death. There is also no confrontation about his aspect by the defence. Point No.2: 13. The body of the deceased Anusuya was subjected for postmortem. P.W.37, being the postmortem doctor, conducted autopsy on the body of the deceased Anusuya and submitted the report Ex.P.10. Since, the body was highly decomposed he could not give any opinion regarding the cause of death. Serological report also does not reveal that the death was due to consummation of any poisonous substance. It is the prosecution case that the accused Indira @ Indira Kala has applied some poisonous substance on the eatable namely bread and vegetable and given it to the deceased for consumption. But the serological report does not reveal anything about the poisonous substance contained in the internal organ of the deceased Anusuya. The statement of P.W.37 regarding this aspect reads as follows: 14. This statement was recorded by the learned Magistrate on 04.04.2002. More so, It is evident on record that on 26.4.1999, P.W.37 postmortem doctor gave answer for the questionnaire sent by the Inspector of Police law and order, Tiruvallur Police station to ascertain the cause of death of the deceased Anusuya. That answer to the questionnaire is marked as Ex.P.17. This Ex.P.17 was marked on 16.5.2002 through P.W.37 postmortem doctor. Answer to Question Nos. 8 and 17 by P.W.37 the postmortem doctor are as follows: " ....... 8. In the history of the case furnished by the Police along with the post-mortem May be due to certificate requisition, a strangulation or contusion injury in the neck strangulation was mentioned by the police, extraversation of please state that whether it blood in the was due to strangulation, superficious soft smotheration or hanging. Also tissues. furnish the internal findings of the contusion. 17. With your above findings what is your opinion about Died of asphyxia the cause of death due to smothering. Mrs. Anusuya .. .. .." P.W.37 was subject to cross examination regarding this aspect. Her evidence reads as follows: The assertive statement of P.W.37, would show that the cause of death of the deceased Anusuya was not ascertained by the investigation officer beyond any doubt in this case. Further, Ex.P.17 is nothing but his statement recorded under Section 161 Cr.P.C. It is not admissible law. Her evidence reads as follows: The assertive statement of P.W.37, would show that the cause of death of the deceased Anusuya was not ascertained by the investigation officer beyond any doubt in this case. Further, Ex.P.17 is nothing but his statement recorded under Section 161 Cr.P.C. It is not admissible law. From the narration of events, we are of the opinion that the cause of death of the deceased Anusuya was not proved by the prosecution beyond any reasonable doubt less Ex.P.17, statement obtained under Section 161 Cr.P.C. which is in admissible in evidence. Since P.W.37 has given evidence on 04.4.2002 to the effect that she could not detect the cause of death of Anusuya, against all principles, Ex.P.17, which was obtained on 26.4.1999, was marked on 16.5.2002 subject to objection by recalling P.W.37, though it is inadmissible in evidence. Point No.3 15. It is true that the deceased Anusuya had financial dealings with several persons. P.Ws.10 to 19 have spoken to in detail about the money transaction of the deceased Anusuya with various persons. Like that the deceased Anusuya has also given loan to the accused Indira @ Indira Kala (A1) and accused Shabudeen (A2). Point No.3 15. It is true that the deceased Anusuya had financial dealings with several persons. P.Ws.10 to 19 have spoken to in detail about the money transaction of the deceased Anusuya with various persons. Like that the deceased Anusuya has also given loan to the accused Indira @ Indira Kala (A1) and accused Shabudeen (A2). It is the specific case of the prosecution that the deceased Anusuya was demanding A1 and A2 to repay the loan amount for which they were postponing and that the first accused Indira @ Indira Kala in consultation with A2 Shabudeen planned to murder Anusuya for which, A1 Indira @ Indira Kala gave 50,000/- to A2 Shabudeen for execution of their proposal and that on the fateful day i.e. on 13.11.1998 at about 10.30 a.m. deceased Anusuya came to the house of the first accused Indira @ Indira Kala for collection of loan amount and that the first accused administered some powder on food substance namely bread and vegetable and gave the same to the deceased Anusuya and that some time later, the deceased Anusuya got some pain on the leg for which, P.W.4 Meena applied Thailam on her leg to relieve the pain and thereafter, A1, A2, A4 and A5 in the presence of A3 executed their plan by pressing pillow on the face of the deceased Anusuya resulting her death and thereafter A2 to A5 took the corpus in the car M.O.11 and abandoned the same at Pandur Village after removing M.Os 5 to 10 from the body of the deceased and sold the same to P.W.29 and misappropriated the sale proceed. 16. The prosecution examined P.W.5 to prove the conspiracy theory. But the witness turned hostile. So, no reliance can be based on the evidence of P.W.5 to sustain conspiracy theory. The main eye witness for the murder of Anusuya by A1 to A5 is only P.W.4. The fact that the deceased came to the house of the first accused at about 10.00 a.m. on 13.4.1998 was infact proved by the prosecution. P.Ws 1 to 3 and P.W.6 asserted the visit of the deceased Anusuya to the house of the first accused on the morning on 13.11.1998. P.W.6 is none other than the watch man of the Kadambari Apartment, No. 41, Ritherdon Road, Purasaiwakkam wherein, the first accused was living. P.Ws 1 to 3 and P.W.6 asserted the visit of the deceased Anusuya to the house of the first accused on the morning on 13.11.1998. P.W.6 is none other than the watch man of the Kadambari Apartment, No. 41, Ritherdon Road, Purasaiwakkam wherein, the first accused was living. According to the prosecution the act of murder took place between 10.30 am and 11.30 a.m. on 13.11.1998 in the house of the first accused situated at Kadambari Apartment, No.41, Ritherdon Road, Purasaiwakkam. 17. The only evidence on record to substantiate this aspect is evidence of P.W.4. According to the prosecution, women missing complaint was given on 14.11.1998 by P.W.1 husband of the deceased. First Information Report has been marked in this case. So much so, the corpus of Anusuya abandoned was seen by P.Ws 20 to 25 at Pandur Village within the jurisdiction of Tiruvallur taluk police station on 14.11.1998 itself. A complaint was also lodged and the same was registered under Section 174 Cr.P.C. Corpus was identified by the deceased P.Ws 1,2 & 8 at the mortuary of Government Hospital, Tiruvallur. So, the main point for consideration is whether the deceased Anusuya was murdered between 10.30 a.m. and 11.30 a.m on 13.11.1998 at the house of the first accused Indira @ Indira Kala. 18. Even the evidence on record would show that the deceased Anusuya came to the shop of P.W.13 Magesh on 13.11.1998 at about 3.30 p.m. In the absence of P.W.13, she enquired about P.W.13 from the shop attendant. The evidence of P.W.13 regarding this aspect reads as follows: 19. It was ascertained through the witness by P.W.43 that the deceased Anusuya could have been murdered after kidnapping her from Purasaiwakkam Abirami theatre. The evidence of P.W.43 Inspector regarding this aspect reads as follows: The altered report of P.W.43 is marked as Ex. P.20. There is a reference about the cause of death of the deceased Anusuya which reads as follows: 20. Moreover, P.W.4 Meena at the time of cross examination has stated that the deceased Anusuya on her own accord on 13.11.1998 left the house of the accused. Her evidence reads as follows: This part of evidence of P.W.4 Meena goes into the very root of the prosecution case and demolishes the prosecution theory setup through P.W.4. 21. Moreover, P.W.4 Meena at the time of cross examination has stated that the deceased Anusuya on her own accord on 13.11.1998 left the house of the accused. Her evidence reads as follows: This part of evidence of P.W.4 Meena goes into the very root of the prosecution case and demolishes the prosecution theory setup through P.W.4. 21. Now, we have to ascertain whether the evidence of P.W.4 Meena, as spoken to, by implicating A1 to A5 for death of the deceased Anusuya, is trust worthy? P.W.4 Meena alleged that she was very much present at the time of murder of the deceased Anusuya by A1 to A5. In fact, P.W.4 Meena was examined by P.W.43 Inspector, on four occasions. She has not divulged any of these facts to P.W.43 which she has stated before the Magistrate who recorded the same under Section 164 Cr.P.C. which is marked as Ex.P.9. The evidence of P.W.43 regarding this aspect reads as follows: 22. It implies that P.W.4 Meena divulged her alleged information to P.W.35 for the first time, only on 20.5.1999. P.W.4 Meena did not state any reason for not divulging the alleged incident to P.W.43, though she was subjected for examination on four occasions by him. 23. The trial Court, while accepting the evidence of P.W.4, has stated that P.W.4 could not divulge such information to P.W.43 as she was under threat by the first accused. Whereas, P.W.4 Meena has not stated that out of threat by the first accused, she did not divulge the alleged facts to P.W.43 or to any one. Without any basis, the trial Court has accepted the evidence of P.W.4 as if P.W.4, out of threat by A1, could not divulge the alleged facts to P.W.43. 24. Apart from that P.W.4 admitted in her evidence that the deceased Anusuya on her own accord left the house of the first accused on 13.11.1998. so much so, as per the prosecution case, the deceased Anusuya was found at 5.30 p.m. on the same day at Purasaiwakkam Abirami Theatre and from there only she was kidnapped and murdered. Therefore, the case of the prosecution that Anusuya was murdered on 13.11.1998 between 10.30 to 11.30 a.m at the house of the first accused situated at No.41, 'C' Block, Kadambari Apartment, Ritherdon Road, Purasaiwakkam has to be disbelieved, as the same is contra to the prosecution case referred in Ex.P.20 by P.W.43. Therefore, the case of the prosecution that Anusuya was murdered on 13.11.1998 between 10.30 to 11.30 a.m at the house of the first accused situated at No.41, 'C' Block, Kadambari Apartment, Ritherdon Road, Purasaiwakkam has to be disbelieved, as the same is contra to the prosecution case referred in Ex.P.20 by P.W.43. 25. Apart from that, the deceased Anusuya seen alive on the same day at about 3.30 p.m. at the shop of P.W.13 from the narration of events we are of the view that there is no evidence on record to show that the appellants herein have committed the act of murder of the deceased Anusuya on 13.11.1998 between 10.30 a.m. to 11.30 a.m. at the house of the first accused situated at No.41, 'C' Block, Kadambari Apartment, Ritherdon Road, Purasaiwakkam. 26. The lower Court erred in accepting the evidence of P.W.4 to come to a conclusion, by implicating the appellants herein for the death of Anusuya. We do not find any evidence to rope the appellants herein with the offence of murder of the deceased Anusuya, as spoken to by the prosecution. So much so, the prosecution failed to prove the cause of death of Anusuya in this case. The trial Court has not looked into the evidence in right prospective, while arriving at a conclusion that the appellants have committed the act of murder of the deceased Anusuya. 27. There is also a reference in Ex.P.1 that the deceased Anusuya has left the house of the first accused in between 10.00 a.m. to 11.00 a.m. on 13.11.1998. This reference reads as follows: The reference about the visit of the deceased Anusuya to the house of the first accused at 10.00 a.m. and left at 11.00 a.m on 13.11.1998 is corroborative to the evidence of P.W.4 Meena. In this context also, we can safely come to a conclusion that the appellants are not responsible for the death of the deceased Anusuya. 28. Contra to the prosecution case it is evident that the deceased was seen alive at 3.30 p.m. and also at about 5.30 p.m. as spoken to by the witnesses. Apart from that, P.W.4 Meena has specifically stated that the deceased Anusuya left the house of the first accused on her own accord stating that she had to attend to some other work. Apart from that, P.W.4 Meena has specifically stated that the deceased Anusuya left the house of the first accused on her own accord stating that she had to attend to some other work. It implies that the deceased Anusuya was alive at about 11.30 a.m on fateful day, while leaving the house of the first accused. In this context also, we can safely come to a conclusion that the appellants are not responsible for the death of the deceased Anusuya. 29. The prosecution then relied on the evidence of P.W.29 Namechanth, pawn broker coupled with the seizure of M.Os 5 to 10 to connect the fifth accused with the offence alleged by the prosecution. P.W.1 stated that M.Os 5 to 10 belongs to the deceased Anusuya. He also stated that she was wearing the same before she was murdered. It is also stated that M.Os 5 to 10 were sold by the fifth accused Immthiyas Ahmed @ Samsudeen to P.W.29 pawn broker and that the said M.Os were seized, on identification by A2 and A3 after their arrest, from P.W.29. But there are many deficiencies and contradictions in this aspect. If M.Os 5 to 10 is really belongs to the deceased, then the said M.Os ought to have been identified by P.W.1 husband of the deceased and marked the same in Court. 30. Moreover, P.W.1 being the complainant ought to have given the particulars regarding the jewels worn by the deceased while leaving the house. But in his complaint Ex.P.1 there is no reference about M.Os 5 to 10 worn by the deceased Anusuya while leaving the house. So much so, M.Os 5 to 10 were not identified and marked in Court either by P.W.1 or by the relatives of the deceased. Because of the deficiencies regarding the identification of M.Os 5 to 10 the case of the prosecution asserting that they belongs to the deceased Anusuya has to be rejected. 31. The prosecution next asserted that M.Os 5 to 10 were seized from P.W.29 pawn broker on the identification by A2 and A3. It is worthy to mention that A2 and A3 were arrested on 29.4.1999 and in pursuance of their confession statements, M.Os 5 to 10 were seized on the same day at 4.00 p.m. from P.W.29. 31. The prosecution next asserted that M.Os 5 to 10 were seized from P.W.29 pawn broker on the identification by A2 and A3. It is worthy to mention that A2 and A3 were arrested on 29.4.1999 and in pursuance of their confession statements, M.Os 5 to 10 were seized on the same day at 4.00 p.m. from P.W.29. The evidence of P.W.43 regarding this aspect reads as follows: The assertion of P.W.43 is that M.Os 5 to 10 were recovered from P.W.29 on 29.4.1999 at about 4.OO P.M. at the shop of P.W.29 on the identification by A2 Shabudeen. Whereas, the evidence of P.W.29 is contra to the prosecution case on the point of seizure of M.Os 5 to 10. 32. The evidence of P.W.43 Inspector regarding the arrest of A5 reads as follows: P.W.43 asserts that A5 Immthiyas was taken into police custody only on 20.5.1999. The evidence of P.W.29 regarding the seizure of M.Os 5 to 10 reads as follows: The evidence of P.W.29 coupled with the evidence of P.W.43 sated supra would reveal that M.Os 5 to 10 were recovered from P.w.29 only on 20.5.1999 after the arrest of the fifth accused Immthiyas. 33. There are two different version in the prosecution case regarding the seizure of M.Os 5 to 10 by P.W.43. 1. M.Os 5 to 10 were seized from the shop of P.W.29 on 29.4.1999 on the identification of A2. 2. M.Os 5 to 10 were seized from the shop of P.W.29 only on 20.5.1999 on the identification of A5. So much so, neither P.W.1 nor other relatives of the deceased have identified M.Os 5 to 10 in Court and marked the same as M.Os. Apart from that P.W.1. has not stated anything in his complaint Ex.P.1 about the jewels worn by the deceased while leaving from the house. Because of the discrepancy and variance between the evidence of the prosecution witness regarding seizure of M.Os 5 to 10 during the course of investigation, we are are unable to agree with the contention of the prosecution that the said M.Os were seized only during the course of investigation. 34. Therefore, we are of the opinion that, the case of the prosecution in connecting the fifth accused Immthiyas along with M.Os 5 to 10 to establish the offence of murder of Anusuya, against the accused cannot be accepted. 35. 34. Therefore, we are of the opinion that, the case of the prosecution in connecting the fifth accused Immthiyas along with M.Os 5 to 10 to establish the offence of murder of Anusuya, against the accused cannot be accepted. 35. While summing up the prosecution case, we have culled out the proved facts of prosecution case and the latches in the prosecution case in the following ways: (i)The deceased Anusuya was having financial dealings with several persons including the first and second accused is evident from the evidence of P.Ws 10 to 19. A2 and A5 also have financial dealings as per evidence of PW.14 & 15. (ii) The corpus of the deceased Anusuya was found on 14.11.1998 at Pandur village within the jurisdiction of Tiruvallur Taluk has been spoken to in detail by P.W.s 20 to 26. (iii) Though it is alleged that M.Os 5 to 10 belongs to the deceased Anusuya, they were not identified and marked either by P.W.1 or by the relatives of the deceased Anusuya. But they were marked by P.W.28, which is fatal to the prosecution case due to non identification of M.Os by the concerned persons. (iv) It is the specific case of the prosecution that the deceased was murdered on 13.11.1998 between 10.30 a.m to 11.30 a.m. at the house of the first accused. The charge against the accused reads as follows: (v) The charge implies that the deceased was done to death on 13.11.1998 at about 11.00 a.m at the house of the first accused. But the evidence on record is otherwise. The evidence of P.W.1 husband of the deceased regarding this aspect reads as follows: (vi) The evidence of P.W.2, son of the deceased implies that the deceased Anusuya left alive from the house of the first accused at the relevant point of time. The evidence of P.W.2 regarding this aspect reads as follows: The evidence of P.W.2 implies that the deceased Anusuya left alive from the house of the first accused on the fateful day. (vii) The evidence of P.W.3 daughter of the deceased also shows that the deceased left alive from the house of the first accused at about 10.00 a.m. on 13.11.1998. Her evidence reads as follows: (viii) It is also evident that the first accused informed P.Ws 1 and 3 that she has not received any loan from the deceased Anusuya. (vii) The evidence of P.W.3 daughter of the deceased also shows that the deceased left alive from the house of the first accused at about 10.00 a.m. on 13.11.1998. Her evidence reads as follows: (viii) It is also evident that the first accused informed P.Ws 1 and 3 that she has not received any loan from the deceased Anusuya. Whereas, motive for the occurrence is that since A1 and A2 could not repay the loan amount received from the deceased they planned to murder Anusuya. The evidence of P.W.3 regarding this aspect reads as follows: (ix). It is also evident that the deceased Anusuya was in the habit of drinking beer and that on the fateful day the deceased Anusuya came to A1's house and left. The evidence of P.W.4 regarding this aspect reads as follows: (x) It is evident that the deceased left alive from the house of the first accused on the fateful day. It is also evident from P.W.4 Meena that she made a statement under Section 164 Cr.P.C. to the Magistrate about the alleged occurrence on 13.11.1998. She has not divulged the same to anyone till that time much less to the police officer. The evidence of P.W.4 regarding this aspect reads as follows: (xi) It is also evident that the cause of death of the deceased was not proved beyond any doubt by the prosecution.The evidence of P.W.37 regarding this aspect reads as follows: (xii) Ex.P.17 marked subject to objection cannot be relied on, as it is nothing but a statement recorded under Section 161 Cr.P.C. (xiii) It is also evident that the deceased Anusuya was seen alive on 13.11.1998 at about 3.30 p.m. by one Saravanan S/o. Venkatesan. The evidence of P.W.42 regarding this aspect reads as follows: P.W.13 corroborates the statement of PW.42. (xiv) It is also evident that the deceased Anusuya was found alive at Purasaiwakkam Abirami theatre on 13.11.1998 at about 5.30 p.m. The evidence of P.W.42 regarding this aspect reads as follows: (xv) The altered report Ex.P.20 sent by Inspector of Police G.1, Vepery Police Station, would also indicate that the deceased Anusuya was seen alive at about 5.30 p.m. on 13.11.1998. The averments regarding this aspect reads as follows: (xvi). It is also evident that the deceased who was wearing nose ring at the time of occurrence, was not recovered by the police nor anything said about the same. The averments regarding this aspect reads as follows: (xvi). It is also evident that the deceased who was wearing nose ring at the time of occurrence, was not recovered by the police nor anything said about the same. The evidence of P.W.20 regarding this aspect reads as follows: 36. The evidence of P.W.4 Meena cannot be relied, as she admitted at the time of cross examination that the deceased Anusuya left alive from the house of the A1 Indira @ Indira Kala on the fateful day contra to her chief evidence. 37. Whereas the trial Court without taking cognizance of the discrepancy and contradiction culled out from the evidence as narrated supra, came to a wrong conclusion that the appellants/accused have committed the offence referred in the judgment and sentenced them accordingly, resulting into miscarriage of justice and as such, the finding of the trial Court in convicting and sentencing the appellants/accused for the offences referred in the judgment are liable to set aside and accordingly, we set aside the same. 38. In view of the above discussion, the appellants namely Indira @ Indira Kala (A1), Shabudeen (A2), Mustak Ali (A3) and Immthiyas Ahmed @ Samsudeen (A5) are found not guilty and they are acquitted accordingly. Since Indira @ Indira Kala (A1), Mustak Ali (A3) and Immthiyas Ahmed @ Samsudeen (A5) have already been released on bail, the bail bonds executed by them shall stand cancelled and Shabudeen (A2), who is in jail, is ordered to be released forthwith provided there is no detention order pending against him in respect of any other case. The fine already paid, if any, by the accused are ordered to be returned to them. 39. Before parting with the case, we make the following observations: 1. The prosecution has failed to sustain the ground on which the case had been built. 2. Two Propositions are possible from the evidence adduced by the prosecution. (i) Anusuya Wife of P.W.1 has been murdered on 13.11.1998 at about 10.30 am at the house of A1 or (ii) Anusuya, wife of P.W.1 has been kidnapped from Abirami theatre Purasaiwakkam on 13.11.98 at about 5.30 p.m has been murdered thereafter. If the first proposition is true, then the investigating officer, with a view to help the accused, has fabricated the case as if Anusuya was found alive on 13.11.98 at 5.30 p.m. at Purasaiwakkam Abirami cinema theatre. If the first proposition is true, then the investigating officer, with a view to help the accused, has fabricated the case as if Anusuya was found alive on 13.11.98 at 5.30 p.m. at Purasaiwakkam Abirami cinema theatre. or If the second proposition is true, then investigating officer, with a view to help the persons concerned with the offence of kidnapping and murder of Ausuya after 5.30 p.m. on 13.11.1998, has fabricated a case against the accused concerned in the case as if the deceased Anusuya was murdered at the house of A1 on 13.11.1998 at about 11.00 a.m. In either way the investigating officer concerned in the case has acted in a manner detrimental to public interest, resulting in miscarriage of justice for which necessary action should be taken against him.