Judgment :- (Appeals against the judgment dated 19.11.2002 made in S.C.No.158 of 2002 on the file of Additional Sessions Judge (Fast Track Court No.II), Salem.) M. Karpagavinayagam, J. Appellants are accused, who are A-1 to A-9. They were convicted for the offences under Sections 147,148,302,302 read with 149,342, and 325 read with 34 IPC. Challenging the same, A-5 Mani and A-6 Shanmugam filed Criminal Appeal No.1715 of 2002. The other accused, namely, A-1 Chinnapaian @ Rathinavel, A-2 Palanisamy, A-3 Aanji and A-8 Ayyakannu filed Criminal Appeal No.1753 of 2002 and A-4 Gopal, A-7 V.M. Kuppusamy and A-9 Mohan filed Criminal Appeal No.1762 of 2002. 2. The short facts, leading to the conviction, are as follows: "(i) Deceased Ravi, P.W.1 Kangeyan and P.W.5 Kumar are brothers. They belong to D.M.K.Party. The accused A-1 to A-9 also belong to the same political party, but to different groups. The accused party belongs to the group, headed by one Ammasi, and the deceased party belongs to the group, headed by one Marimuthu. (ii) The occurrence took place on 13.06.2000. On that day, at about 09.00 p.m., the deceased Ravi, P.W.1 Kangeyan, P.W.3 Meenselvam and P.W.4 Rajasekaran were standing in front of Anna Statue and engaged in a conversation. Then, all the accused appeared at the scene with weapons and picked up a quarrel with the deceased and P.W.1. They questioned the deceased as to why he abused their leader Ammasi without any reason. There was a wordy quarrel between them. (iii) A-1 took a knife M.O.1 and stabbed the deceased on the right chest. A-2 beat the deceased with a wooden reaper M.O.2, causing injury on the lips. A-3 attacked the deceased with a stone on the right hand and legs. A-8 attacked the deceased on the head with a casuarina stick M.O.3. A-4, A-5 and A-9 caught hold of P.W.1 and A-6 and A-7 attacked P.W.1 with a stone and hands. Then, all the accused left the scene with weapons. (iv) Since the deceased was in a dangerous condition, P.W.4 took the deceased on a motorcycle to Government Hospital, Salem. (v) P.W.11, doctor, attached to M.K.M. Government Hospital, Salem, examined the deceased at about 10.10 p.m. He sent intimation Ex.P-8 to Omalur Out-post Police Station. (vi) P.W.5, brother of the deceased, took P.W.1 to Shanmugha Hospital, Salem, and got him admitted, where he was examined and given treatment by P.W.17, doctor. (v) P.W.11, doctor, attached to M.K.M. Government Hospital, Salem, examined the deceased at about 10.10 p.m. He sent intimation Ex.P-8 to Omalur Out-post Police Station. (vi) P.W.5, brother of the deceased, took P.W.1 to Shanmugha Hospital, Salem, and got him admitted, where he was examined and given treatment by P.W.17, doctor. (vii) On receipt of intimation, P.W.18, Head Constable, attached to Taramangalam Police Station, went to Government Hospital, Salem, where the deceased was unable to give any statement. On coming to know that P.W.1, injured, was admitted to Shanmugha Hospital, P.W.18 proceeded to the said hospital at 11.30 p.m. He obtained a statement Ex.P-1 from P.W.1. The same was registered for the offences under Sections 147,148,324,341 and 307 IPC. (viii) In the meantime, the hospital authorities sent a requisition to the Judicial Magistrate to come to hospital and record the dying declaration of the deceased. (ix) Accordingly, P.W.10, Judicial Magistrate, after receipt of requisition, went to hospital and recorded the statement of the deceased at 11.45 p.m. Ex.P-6 is the dying declaration of the deceased. (x) P.W.20 Inspector of Police, took up further investigation at 01.00 a.m. in the early morning on 14.06.2000; proceeded to the scene of occurrence and observed all the formalities. He prepared rough sketch Ex.P-22 and observation mahazar Ex.P-5. On that day at about 03.30 a.m., he arrested A-1 and recovered M.Os.2 and 3 from him under Ex.P-12 mahazar. (xi) On 14.06.2000, P.W.19, Sub-Inspector of Police, received an intimation that the deceased died. Therefore, he altered the F.I.R. into the offence under Section 302 IPC. (xii) P.W.17, doctor, attached to Shanmugha Hospital, issued wound certificate Ex.P-19, with reference to the injuries found on P.W.1. (xiii) P.W.20, Inspector of Police, went to Government Hospital, conducted inquest, examined the witnesses and sent the dead body for post-mortem, after issuing requisition Ex.P-10 to the doctor. (xiv) On 14.06.2000 at about 12.15 p.m., P.W.13, doctor, conducted post-mortem on the body of the deceased and issued post-mortem certificate Ex.P-11 and found 11 external injuries. He gave an opinion that the deceased would appear to have died of shock and haemorrhage due to stab injury on the chest. (xv) On 16.06.2000, P.W.20 arrested A-8 and A-9 and sent the material objects for chemical examination. (xvi) After completion of investigation, charge sheet was filed against all the accused for the offences under Sections 147,148,302,302 read with 149,342, and 325 read with 34 IPC. (xv) On 16.06.2000, P.W.20 arrested A-8 and A-9 and sent the material objects for chemical examination. (xvi) After completion of investigation, charge sheet was filed against all the accused for the offences under Sections 147,148,302,302 read with 149,342, and 325 read with 34 IPC. (xvii) During the course of trial, on the side of prosecution, P.Ws.1 to 20 were examined; Exhibits P-1 to P-25 were filed and M.Os.1 to 4 were marked. On the side of defence, D.W.1 was examined and Ex.D-1 was marked. (xviii) When the accused were questioned under Section 313 Cr.P.C. with regard to the incriminating materials, they denied their complicity in the crime in question. (xix) According to D.W.1 Arulmozhi Chettan, A-1 Chinnapaian was in his house on 13.06.2000, attending a pooja from 02.00 p.m. to 12.00 midnight. (xx) The trial Court, rejecting the evidence of D.W.1, projected by the defence, and relying upon the materials placed by the prosecution, convicted the accused. (xxi) The said conviction is the subject matter of challenge before this Court in these appeals." 3. We have heard the learned counsel appearing for the appellants and also the learned Additional Public Prosecutor. That apart, Mr. R. Srinivas, learned counsel appearing for P.W.1, who is permitted to assist the prosecution, is also heard. We have also given our thoughtful consideration to the rival contentions. 4. The prosecution mainly relied upon the evidence of P.Ws.1 to 4, eye witnesses, and the dying declaration Ex.P-6, given by the deceased to the Judicial Magistrate, P.W.10. Unfortunately, P.Ws.2 to 4 turned hostile. Therefore, the prosecution is constrained to place reliance only upon the evidence of P.W.1, who is the author of the complaint Ex.P-1, and the dying declaration Ex.P-6, given by the deceased. 5. According to the prosecution, through Ex.P-1, the earliest document, which was registered by P.W.18 on 13.06.2000 at about 09.00 a.m., when the deceased, P.W.1 and other witnesses were talking with one another in front of Anna Statue, the accused persons A-1 to A-9 came and attacked the deceased and P.W.1. As per Ex.P-1, given by P.W.1, A-1, A-2, A-3 and A-8 attacked the deceased with a knife, stick and stone and A-6 and A-9 attacked P.W.1. While deposing, P.W.1 would give those particulars and further add that A-4 also was present at the scene of occurrence and he caught hold of P.W.1, when he was attacked by A-6 and A-9. As per Ex.P-1, given by P.W.1, A-1, A-2, A-3 and A-8 attacked the deceased with a knife, stick and stone and A-6 and A-9 attacked P.W.1. While deposing, P.W.1 would give those particulars and further add that A-4 also was present at the scene of occurrence and he caught hold of P.W.1, when he was attacked by A-6 and A-9. Ex.P-1 complaint and Ex.P-20 F.I.R., which were prepared by P.W.18 at about 11.30 p.m., reached the Judicial Magistrate at 05.00 a.m. on 14.06.2000. The documents would indicate that all the accused were present at the scene of occurrence and they attacked both the deceased and P.W.1 and caused injuries. 6. Besides the evidence of P.W.1, who has given the complaint Ex.P-1, the another set of evidence projected by the prosecution is the dying declaration, given by the deceased to the Judicial Magistrate. 7. On receipt of intimation, P.W.10 Judicial Magistrate went to hospital at about 11.45 p.m. and recorded the dying declaration Ex.P-6 of the deceased in the presence of the doctor, who appended the certificate that the deceased is in a fit state of mind. 8. As per Ex.P-6, statement of the deceased, the deceased came to know that his brother P.W.1 was attacked one hour before and, therefore, he went to the scene of occurrence and questioned the accused for having attacked his brother. At that time, 15 persons came and surrounded him and, since it was dark, he could not identify all the accused but identified three persons, namely, Chinnapaian/A-1, Palanisamy/A-2 and Aanji/A-3, who attacked him with stones and sticks. In other words, Ex.P-6 would indicate that P.W.1 was attacked one hour before and, on hearing the news, the deceased rushed to the scene in order to question the accused and, at that time, the deceased was attacked by the accused persons. 9. Thus, it is clear that P.W.1 would not have been present when the deceased was attacked. Similarly, the deceased was not present when P.W.1 was attacked. 10. On going through Ex.P-6, it is manifestly clear that these occurrences, namely, the attacks made on P.W.1 and the deceased, took place at two different places at two different times. But, this is not the case of the prosecution through Ex.P-1, which has been given by P.W.1. 11. Similarly, the deceased was not present when P.W.1 was attacked. 10. On going through Ex.P-6, it is manifestly clear that these occurrences, namely, the attacks made on P.W.1 and the deceased, took place at two different places at two different times. But, this is not the case of the prosecution through Ex.P-1, which has been given by P.W.1. 11. As indicated above, P.W.1 would categorically state in Ex.P-1, which is the earliest document registered at 11.30 p.m, that both deceased and P.W.1 were attacked by all the accused at the same time and at the same place. As a matter of fact, P.W.1 would state that the deceased was attacked first in front of Anna Statue and when he intervened the accused persons attacked him and caused injuries. However, this is not the case, as projected by the prosecution through Ex.P-6. 12. As already stated, the deceased was not present, when P.W.1 was attacked. Similarly, P.W.1 was not present, when the deceased was attacked. Thus, it is clear that the prosecution has given two sets of evidence, contradicting each other. 13. In the said factual situation, it would be appropriate to refer to the judgment of the Supreme Court in Harchand Singh and another v. State of Haryana (1974 CRI.L.J. 366 = AIR 1974 SUPREME COURT 344), wherein it is held as under: "10.......It would thus appear that the eye-witness upon whose testimony the prosecution wants to sustain the conviction of the appellants is shown to be an unreliable witness by the other evidence produced by the prosecution. The present is a case wherein one set of prosecution evidence condemns the other set of evidence produced by the prosecution. In the above state of affairs, we find it difficult to secure a firm ground upon which to base the conviction of the accused appellants. 11........If in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based." 14. The above observation, which is a ratio decidendi, made by the Supreme Court, would, in our view, apply to the facts of the present case in all fours. The above observation, which is a ratio decidendi, made by the Supreme Court, would, in our view, apply to the facts of the present case in all fours. In this case, as indicated above, the prosecution has led two sets of evidence, each of which contradicts the other. 15. It is contended by the learned Additional Public Prosecutor that this Court can rely upon Ex.P-6, dying declaration alone, and, on that basis, at least, the accused, whose names are mentioned therein, can be convicted. 16. We are afraid, we cannot accept such a contention, in view of the fact that mere consistency in some of the names of the accused in Ex.P-6, dying declaration, and Ex.P-1, complaint, would not make us to believe that the occurrence had taken place, as projected by the prosecution. As mentioned above, one set of evidence would indicate that there were two occurrences, which took place at different times, and another set of evidence would indicate that there was only one occurrence, in which both the deceased and P.W.1 were attacked. 17. Thus, it is clear that the prosecution has not come with clean hands, especially in the light of the fact that the genesis of the occurrence had not been clearly brought out by the prosecution. So, inevitably, all the accused would be entitled to be given the benefit of doubt, in such a factual situation. 18. Accordingly, all the appeals are allowed. The conviction and sentence imposed on the appellants/accused is set aside. Fine, if any paid, shall be refunded and the bail bonds shall stand discharged.