JUDGMENT Per R.Balasubramanian, J. The appellant in this appeal is A1 in SC No.54 of 1999 on the file of Principal Sessions Judge, Chengalpattu. In that sessions case he was tried along with five other accused under Sections 364; 148; 302 read with 34 and 149 IPC. At the end of trial, the learned Judge found A1 alone guilty for the offence under Sections 302 read with 34 IPC and accordingly sentenced him to undergo imprisonment for life. Rest of the accused were acquitted. The State had not challenged the judgment of the learned Sessions Judge acquitting A2 to A6 of all the offences and A1 under Sections 364 and 148 IPC and therefore the said judgment had become final. A1 aggrieved over his conviction as referred to above, is before this Court in this appeal. Heard Mr.N.Dorisamy learned counsel appearing for the appellant and Mr.V.M.R.Rajendran learned Additional Public Prosecutor for the State. 2. Akram Khan is the elder brother of the deceased in this case by name Afzal Khan. The case of the prosecution is that A1 was collecting rowdy mamool, which was not liked by Akram Khan. Akram Khan, Afzal Khan and other family members appeared to be the members of Jihad Committee. When the first accused was questioned by Akram Khan about his collecting rowdy mamool, the first and second accused did not like it and the prosecution case is that in that context, the first accused had caused injury on Akram Khan, which had resulted in deprivation of his right eye. Therefore the prosecution proceeds on the basis that the accused are inimically disposed of towards the prosecution party. In the above factual scenario, the occurrence is shown to have taken place at about 7 p.m. on 27.5.1998 by the accused kidnapping Afzal Khan (since deceased) in an auto-rickshaw accomplished the object of the unlawful assembly by murdering Afzal Khan and leaving his dead body on the west of ‘F’ Road. To substantiate their case the prosecution examined PWs 1 to 13 besides exhibiting ExP1 to ExP22 and marking MO1 to MO11. There is a planning committee for managing Koyambedu Whole Sale Vegetable Market. PW1 was working as the Assistant Planning Officer in that committee during the relevant time. To substantiate their case the prosecution examined PWs 1 to 13 besides exhibiting ExP1 to ExP22 and marking MO1 to MO11. There is a planning committee for managing Koyambedu Whole Sale Vegetable Market. PW1 was working as the Assistant Planning Officer in that committee during the relevant time. He was informed at about 4.30 p.m. on 28.5.1998 that a body of a male is lying dead west of ‘F’ Road, which made him to go over there where he observed a 25 year old male lying dead. He gave ExP1 complaint and handed over MOs 1 and 4 - a full sleeves shirt and a jeans pant, which were on the dead body to the Investigating Officer. PW13 is the Investigating Officer in this case. At 4.30 p.m. on 28.5.1998 PW1 appeared before him and gave a written complaint ExP1 which he registered in his police station Cr No.753 of 1998 for the offence under Section 302 IPC. ExP14 is the printed first information report. He sent the material records to the Court as well as to the higher officials. He reached the scene of occurrence and in the presence of PW2 and another prepared the observation mahazar ExP2 and the rough sketch ExP15. PW2 in his evidence had stated that he is selling tender coconuts; he did not know why he signed; he did not see anything and as he was asked to sign he put his signature. He admits his signature in the observation mahazar as well as recovery mahazar. He was treated as hostile. Even at this stage we would like to point out that the evidence of this witness which was recorded prior to he being treated as hostile and after he was treated as hostile is of no use either to the State or to the defence. At 5.50 p.m. on the same day PW13 recovered blood stained earth MO8; sample earth MO9; a bail order copy MO10 from the pant pocket of the deceased under ExP17 in the presence of PW2 and another. 3. PW3 is the father of the deceased, who would admit that his elder son Akram Khan is the Secretary of State Youth Jihad and he knew the first accused. He would then state that the first accused was collecting rowdy mamool in his residential area. 3. PW3 is the father of the deceased, who would admit that his elder son Akram Khan is the Secretary of State Youth Jihad and he knew the first accused. He would then state that the first accused was collecting rowdy mamool in his residential area. His elder son Akram Khan objected to it and advised A1 to that if he continues to collect rowdy mamool, he would give complaint to the police. The first accused challenged Akram Khan to do whatever he wanted and then followed it up saying that if he does anything like that, then he would eliminate his family. About eight months prior to the occurrence in question, A1assualted his elder son Akram Khan resulting in deprivation of his right eye and therefore there was enmity. On the occurrence day at about 9 p.m. when he was in his house PW7 appeared before him and told him that A1, A2 and their associates kidnapped his son Afzal Khan (since deceased) in an auto-rickshaw from near the tea shop of one Thomas. PW3 tried to locate his son and as he failed, he went to the police station and gave a complaint stating that A1, A2, and their associates had kidnapped his son. In this context we would like to point out that PW7 - the source of information about the crime to PW3 turned hostile and a perusal of his evidence recorded till he was treated as hostile and after he was treated as hostile is of no use at all to the State or to the defence. Thomas had been examined as PW4 to speak about kidnapping of Afzal Khan, which is stated to have been disclosed to PW7 and PW3. Thomas also turned hostile. PW4 had stated that he knew Akram Khan and Afzal Khan (since deceased); he did not know the accused; on the occurrence day after his day’s work he went home at 6’o clock and on the next day morning he came to know that Afzal Khan had been kidnapped in an auto-rickshaw. Once again we will have to state that his evidence both prior to he being treated as hostile is of no use either to the State or to the defence. 4. PW13 continued the investigation further. Once again we will have to state that his evidence both prior to he being treated as hostile is of no use either to the State or to the defence. 4. PW13 continued the investigation further. Between 5.30 and 8.30 p.m. on 28.5.1998, he conducted inquest over the dead body in the presence of panchayatdars and witnesses and prepared ExP18 the inquest report. To find out the cause of death he sent the dead body through a police constable along with requisition ExP8 for post-mortem to the Government Medical College and Hospital, Kilpauk. PW9 is the doctor on duty in the Government Hospital, who on receipt of the dead body and requisition ExP6, commenced post-mortem at 2 p.m. on 29.5.1998. During post-mortem he found various symptoms as noted by him in ExP9 the post-mortem certificate. The symptoms noted by him are as hereunder: "1. An oblique cut injury with regular margin 25 x 5 cms x bone deep on the front right side of the neck and back of the neck, the anterior and upper end of the wound was 6 cms below the left mastoid prominence 7 cms above the inner end of the left clavicle, the lower end posterior end of the wound was 8 cms below the occipital protuberance. This injury cutting the skin platysma subcutaneous tissues, trachea, oesophagus, both carotid arteries, jugular veins, muscles and other soft tissues of the neck. 2. An oblique cut injury 10 x 4 cms x bone deep on the front and right side of the neck, the anterior upper end of the wound 2.5 cms below the angle of left mandible and the outer posterior end of the wound is 1.5 cms below the chin. The injury cutting skin, muscles, larynx and pharynx of the neck. 3. An oblique cut injury 8 x 3 cms x bone deep on the right side parietal area of the scalp. On dissection 6cms cut injury fracture on the right side parietal bone. 4. An oblique cut injury 6 x 2 cms x bone deep on the right side occipital area of the scalp. 5. An oblique cut injury 12 x 3 cms x bone deep on the right of the face extending from the angle of mouth to the right ear. 6. An oblique cut injury 4 x 2 cms x muscle deep on the middle of right forearm. 7. 5. An oblique cut injury 12 x 3 cms x bone deep on the right of the face extending from the angle of mouth to the right ear. 6. An oblique cut injury 4 x 2 cms x muscle deep on the middle of right forearm. 7. An oblique cut injury 1 x 1/2 cms x bone deep on the dorsal aspect of proximal phalanx of the right index finger. 8. An oblique cut injury 3 x 1 cms x bone deep on the top of right side shoulder joint. 9. A cut injury 2 x 1 cms x bone deep on the back of the left wrist joint. 10. An oblique stab wound 4 x 2 cms x peritoneal cavity on the right hypochondrium (front of upper part of right side of abdomen) the upper inner end of the wound is 4 cms from the midline of the abdomen and 1 cms below the right side costal margin. 11. An oblique stab wound 4 x 2 cms x peritoneal cavity on the front of right side of the abdomen 2 cms below the injury No.11. 12. An oblique stab wound 4 x 2 cms x peritoneal cavity on the front of midline of the abdomen and 3 cms above the umbilicus. 13. An oblique stab wound 4 x 2 cms x peritoneal cavity on the middle part of front of abdomen (lumber) 5 cms from and below the umbilicus. 14. An oblique stab wound 3 x 2 cms x muscle deep on the front of middle, of the upper part of abdomen (epigastrium) - 1 cm below xiphisternum. 15. An oblique stab wound 5 x 3 cms x peritoneal cavity on the front of left side of abdomen, left lumber region the wounds through which coils of intestine protruded out. Other Findings: Brain - cut section pale; Hyoid bone - intact; Lungs - cut section pale on both sides; Heart - all chambers empty; Stomach contained 200gms of partly digested cooked rice particles without any characteristic smell, mucosa pale; Small intestine contained 30 ml of bile stained fluid without any characteristic smell, mucosa pale; Bladder empty; All other internal organs on cut section found pale." The doctor is of the opinion that death would have occurred due to shock and haemorrhage due to cut injuries to both carotid arteries of the neck. A weapon like MO5 shown to him in Court could have caused the injuries found on the dead body and all the injuries noted by him in the dead body would cause death instantaneously. 5. PW13 by examining PWs 1, 2, 5 and others recorded their statements. The written material (i.e.) MO10 recovered from the pant pocket of the deceased shows that the deceased was on condition bail to sign in the morning and evening in Kothavalsavadi Police Station and it gave the clue regarding the identity of the dead body. He deputed a police constable to that police station. Then he went to Kothavalsavadi Police Station on 29.5.1998 and examined the Inspector of Police therein in the context of the present crime. From a perusal of the general diary and the other records available in that Police Station, he fixed the name of the person connected with MO10 as Afzal Khan, S/o. Ayub Khan and their address. Accordingly he went to MMDA Colony and examined PW3, whose evidence we have already referred to. PW5 is a fruit vendor in Koyambedu market. He along with his friend Rajendiran was sitting in a culvert in ‘F’ Road after taking their evening snacks. It was around 8 p.m.. His evidence shows that from the eastern side an auto-rickshaw entered ‘F’ Road and its registration number is TN-01-K 4622. He saw two or three persons seated inside the auto-rickshaw and after some time the auto rickshaw returned in the same direction. He identified MO4 as that auto- rickshaw. PW6 would depose that he and his brother Mathivanan went to a tea shop near Rohini Theatre to supply milk and at that time they saw police enquiring there. At that time an auto rickshaw came which was intercepted. A2 and A4 were in that auto-rickshaw and they were examined by the police. The registration number of that auto- rickshaw was TN-01-K-4622 which was recovered under a mahazar. MO4 is the auto-rickshaw and the mahazar is ExP5, attested by him and his brother. 6. After fixing PW3 as the father of Afzal Khan (since deceased) PW13 took PW3 to the Government Medical College and Hospital, Kilpauk where PW3 indentified the dead body as that of his son. He examined PW3 and recorded his statement. PW3 produced the copy of the complaint given by him in Arumbakkam Police Station on 27.5.1998 complaining missing of his son. He examined PW3 and recorded his statement. PW3 produced the copy of the complaint given by him in Arumbakkam Police Station on 27.5.1998 complaining missing of his son. He examined PWs 4, 7 and 10 by recording their statements. He recovered MOs 1, 2, 9 and 10 produced by the constable, which were earlier removed from the dead body under ExP19. On the same day he came to know that A3, A5 and A6 surrendered before Thirteenth Metropolitan Magistrate, Chennai. He examined PW5 and another by recording their statements. On 5.6.1998 he took A3, A5 and A6 into police custody and A3 at that time gave a voluntary confession statement, which was recorded in the presence of PW8 and another. ExP20 is the admissible portion of the statement given by A3 and pursuant to ExP20, MO5 came to be recovered under ExP6 attested by PW8 and another. PW8 gave evidence regarding the arrest of A3 and the recovery of MO5 under ExP6. PW8 also admitted his signature in the confession statement of A3 as ExP7. 7. PW10 is one of the brothers of the deceased. He knew the accused. He had given evidence about the enmity, which the accused had for his another brother Akram Khan as spoken to by PW3 and the injury caused to Akram Khan also. He would then state that at about 6.30 p.m. on 27.5.1998 when he was near M.R.Hospital at Aminjikarai the accused came in an auto-rickshaw bearing Reg.No.TN-01-K-4622 and then attempted to cut him. However he made good his escape. MO4 is the auto-rickshaw. As he had escaped, the accused gave an open threat that somebody in their family would be killed that day. Then he sent a person to his house by way of caution. At 9.30 p.m. on that night he went home. When he saw his mother crying, on enquiry his mother told him that A1 and his associates kidnapped Afzal Khan (since deceased) from the place where he normally used to sit. He was asked by his mother to go and search, which he did. He had come that his father PW3 had already gone to lodge a complaint. He identified the dead body of his brother in the mortuary. PW11 is the photographer, who took photographs of the deceased at 5 p.m. on 29.5.1998. He was asked by his mother to go and search, which he did. He had come that his father PW3 had already gone to lodge a complaint. He identified the dead body of his brother in the mortuary. PW11 is the photographer, who took photographs of the deceased at 5 p.m. on 29.5.1998. PW13 speaks about the arrest of A2 and A4 on 11.6.1998 near Rohini Theatre as spoken to by PW6. He also deposed about the recovery of MO4 under ExP5 at that time. PW13 sent the arrested accused to judicial remand. He came to know that A1 surrendered before Fifth Metropolitan Magistrate, Chennai and took him into police custody on 31.7.1998. On examination the first accused gave a voluntary confession statement, the admissible portion of which is ExP21. Pursuant to ExP21, MO11 came to be recovered under ExP22 attested by Sekar and Marimuthu. It must be noticed here that Sekar and Marimuthu were not examined in this case at all. After completing the investigation PW13 filed the final report against the accused in Court as referred to above. 8. When the accused was questioned under Section 13 of the CrPC on the basis of incriminating materials made available against him (We refer to A1’s stand alone in this case for the reasons stated earlier) he denied each and every circumstance put against him as false and contrary to facts. He would state that he had been falsely implicated in this case and since the police was on the look out for him, he surrendered in Court. Mr.N.Doraisamy, learned counsel appearing for the appellant would submit that there is absolutely no legal evidence to connect the accused with the crime though the prosecution might have established the cause of death. Therefore the conviction is bad in law. We heard the learned Additional Public Prosecutor on the above point. 9. Let us now examine the entire case records in the context of the submission made by the learned counsel for the appellant. Even at the outset, we have no hesitation to state that the submission made by the learned counsel appearing for the appellant that there is no legal evidence to connect the accused with the crime is well founded. Two persons, who can speak about kidnapping the victim by A1 and his associates are PW7 and PW4. Even at the outset, we have no hesitation to state that the submission made by the learned counsel appearing for the appellant that there is no legal evidence to connect the accused with the crime is well founded. Two persons, who can speak about kidnapping the victim by A1 and his associates are PW7 and PW4. The case of the prosecution is that just from the tea shop of PW4 the accused kidnapped the victim. PW4 turned hostile. PW7 is shown to have witnessed the actual kidnapping from the place near the tea shop of PW4 and it is he who is shown to have informed PW3 about what had happened. PW7 also turned hostile. Therefore it is clear that there is actually no evidence at all before Court to show that the accused and the accused alone had kidnapped the deceased in the auto-rickshaw. The prosecution fixed MO4 as the auto-rickshaw in which the accused is shown to have kidnapped the victim. PW5 had been examined to prove the use of the auto-rickshaw in committing the crime. His evidence shows that when he was seated in the culvert around 8 p.m. from the eastern side, an auto-rickshaw entered ‘F’ Road and its registration number is TN-01-K 4622. He had also stated that two or three persons were seated in the auto-rickshaw and after some time the auto-rickshaw returned in the same direction. From a perusal of his evidence itself we find that his evidence is artificial. We see no reason at all as to why a person sitting in the culvert on the road side should have noticed the number of an auto-rickshaw, when nothing apparent is available to show that the auto- rickshaw was used in the proposed commission of crime. He would also admit in his evidence in cross that he could not tell the numbers of each and every auto-rickshaw which he sees. He identified MO4 as the auto-rickshaw used for the commission of offence on the night of 27.5.1998. All the auto-rickshaws have similar features, viz., paints and upholstery and therefore it is very difficult to believe the evidence of PW5 that MO4 is the auto- rickshaw which he saw on the night of 27.5.1998. He had identified the auto-rickshaw only on 28.6.2000. All the auto-rickshaws have similar features, viz., paints and upholstery and therefore it is very difficult to believe the evidence of PW5 that MO4 is the auto- rickshaw which he saw on the night of 27.5.1998. He had identified the auto-rickshaw only on 28.6.2000. He does not speak about any distinguishing features of that auto-rickshaw, which would enable him to remember the number and therefore we have no hesitation to hold that the evidence of PW5 does not take the case of the prosecution any further. His evidence also do not show the commission of a crime by using the auto. PW6 witnessed the recovery of MO4 about 14 or 15 days later. Assuming for a minute that MO4 came to be recovered, yet unless there is any came to be recovered, yet unless there is any material to connect the said auto-rickshaw in commission of the crime, which is totally lacking in this case, we have no doubt at all that mere recovery of the auto-rickshaw may not be of any use at all to sustain the judgment under challenge. PW10 is the elder brother of the deceased. PW13 in the course of cross- examination admitted that PW10 did not tell him during investigation that his mother informed him that her other son Afzal Khan had been kidnapped by A1 and his associates. The mother of PW10 and the deceased had not been examined at all in this case. Therefore from where PW10 got information about the involvement of the accused in kidnapping his younger brother is a mystery and therefore his evidence also cannot be made use of to sustain the conviction of the accused. Akram Khan the other son of PW3 had not been examined at all. The prosecution case is that out of enmity, which the accused had against Akram Khan, they kidnapped Afzal Khan. PW13 in his evidence in cross admitted that PW3 did not tell him that A1 gave an open threat to his son Akram Khan that he would kill somebody in their family. Therefore it is clear that there is no evidence regarding the actual kidnapping by the accused nor the involvement of the accused in the murder. PW13 in his evidence in cross admitted that PW3 did not tell him that A1 gave an open threat to his son Akram Khan that he would kill somebody in their family. Therefore it is clear that there is no evidence regarding the actual kidnapping by the accused nor the involvement of the accused in the murder. Recovery of the weapon of offence at the instance of A1 had not been proved in a manner known to law validly by examining the witnesses who were stated to be present at the time of recovery. Therefore the recovery evidence also goes. For the reasons stated above we have no doubt at all that there is no legal evidence to connect the accused with the crime. 10. Accordingly the judgment under challenge is set aside. The appeal is allowed. The appellant/accused is acquitted of the offence for which he was charged; tried and convicted. He is directed to be released forthwith unless his presence is required in connection with any other case.