Judgment : R. Balasubramanian, J. The appellant five in number stands convicted in S.C. No. 42 of 2003 on the file of the First Additional Sessions Judge, Erode. The conviction of A1 and A3 to A5 is under Section 147 I.P.C., the conviction of A2 is under Section 142 I.P.C. and the conviction of all the accused is under Section 302 read with Section 34 I.P.C. For the gravest offence among the three, each of the accused stands sentenced to undergo imprisonment for life with a fine of Rs.1,000/- carrying a default sentence. Therefore, they are challenging their conviction in this appeal. Heard V. K. Muthusamy, learned Senior counsel appearing for A1, A2 and A4; A.Kumarasamy for A3 and A5 and V. Arul, learned Government Advocate (Criminal side) for the State. 2. The prosecution case is that at about 6.00 p.m. on 29.05.2002 all the accused by forming themselves into members of unlawful assembly (A2 alone armed with a deadly weapon) assaulted Ramasamy to his death and therefore, punishable as referred to earlier. To substantiate their case, the prosecution examined P.Ws. 1 to 15 besides marking Exs.P.1 to P.19 and M. Os. 1 to 13. A1 and A4 are husband and wife, A2 is their son; A.3s father and A.1 are brothers; A5 is the mother of A.3; P.Ws. 1 and 2 are wife and daughter of the deceased. The deceased and A1 are agnates. There is admittedly, a property dispute between the two groups. Their lands are lying contiguous to each other separated by a common ridge. About a year prior to the occurrence, over that property dispute A1, A2 and A4 caused grievous hurt to P.W.1s husband, namely he suffered a fracture. However, having regard to the thick relationship between the parties and with a view to have the problem solved by convening a panchayat, no complaint was given to the police. At 5.30 p.m. an 29.05.2002, P.W.1 would state that, her husband left for the lands to cut grass and cholam crops. He left asking P.W.1 and their daughters to follow him to bring back the harvested load. P.Ws.1 and 2 followed him five minutes later. At that time all the accused were working in their contiguous land. Her husband was cutting grass in his lands. He left asking P.W.1 and their daughters to follow him to bring back the harvested load. P.Ws.1 and 2 followed him five minutes later. At that time all the accused were working in their contiguous land. Her husband was cutting grass in his lands. The accused objected stating as to why he is cutting grass in the common ridge and saying so they came running towards him. Her husband fearing danger ran towards west hotly chased by the accused. In the lands of one Palanisamy Gounder all the accused surrounded her husband. The first accused, picking up a wood used for fencing the lands and A3 and A4, picking up dry coconut stalk available there, assaulted her husband. A2 with aruval in his hands also attacked him. The first accused repeatedly assaulted her husband. All the accused criminally intimidated them not to near the place and, therefore, P.Ws.1 and 2 were standing at a distance and watching. She would admit that, therefore she cannot specifically give the overt act of each of the accused and the situs of the injury. However, she would add that A2 with aruval caused injuries on her husbands head and when P.W.1 raised a hue and cry, the second accused threatened her saying that he would kill her. A.3 and A.4 repeatedly attacked her husband with dry coconut leave stalks and A.5 kicked repeatedly on her husbands stomach and neck. He also stood on her husbands body. All. the five accused repeatedly kicked her husband. The accused threatened P.Ws.1 and 2 that they would harm them also and, therefore, out of fear P.W.1 went back home with her daughters which included P. W.2. They were waiting till 10.00 p.m. for Ramasamy, since deceased, to return. But he did not return at all. Therefore, they went to the house of P.W.3 who is the elder brother of Ramasamy (his house is at a distance of one furlong) and in his company they went to the scene of occurrence. It was 11.00 p.m. at that time and they found Ramasamy lying down motionless. Around him the dry coconut leave stalks and the aruval, (weapon of offence in the hands of A2) was also there. They found Ramasamy dead. It was 11.00 p.m. at that time and they found Ramasamy lying down motionless. Around him the dry coconut leave stalks and the aruval, (weapon of offence in the hands of A2) was also there. They found Ramasamy dead. There is no bus facility during night time and, therefore at 7.00 a.m. in the next day morning they went to the police station where she gave the complaint, Ex.P.l. She identified M.Os. 1 to 3 as the weapon of offences in the hands of the accused; M.O.4, the sickle used by her husband in cutting the grass; M.O.5, her husbands towel, M.O.6 pair of chappel used by her husband; M.O.7 loin cloth and M.O.8 waist chord. P.W.2 the daughter of P.W.1 and the deceased had given evidence regarding the property dispute between the two groups and the occurrence proper more or less on the same lines as deposed by P.W.1. 3. P.W.12 is the Sub-Inspector of Police in the investigating police station who would state that at 7.30 a.m. on 30.05.2002, P.W.1 appeared before him and gave a written complaint which he registered as Ex.P.1 in Crime No. 340 of 2002 for offences under Sections 147, 148, 341, 302 and 506 (II) I.P.C. Ex.P.12 is the printed First Information Report which he sent to the higher officials as well as to the Court. Since the Inspector of Police attached to Perundurai police station was on other duty, he informed the Inspector of Police Arasalur who was incharge of the investigating police station at that time. P.W.10 is the police constable who carried the express records handed over to him at 9.00 a.m. on 30.05.2002 and handed over the same to the Judicial Magistrate at Perundurai at 10.30 a.m. on the same day. Then, he proceeded to hand over the express records to the higher officials. P.W.13 is the Inspector of Police who, on receipt of the information of the crime over wireless, reached the investigating police station at 9.45 a.m. where he collected the relevant records and commenced investigation by proceeding to the scene of occurrence at 9.15 a.m. There, in the presence of P.W.6 and another, he prepared Ex.P.2, the observation mahazar and Ex.P.13, rough sketch. He caused photographs of the scene of occurrence to be taken. P.W.9 is the photographer who took photographs of the dead body from different angles. He caused photographs of the scene of occurrence to be taken. P.W.9 is the photographer who took photographs of the dead body from different angles. M.O.12 series and M.O.13 series are the photographs and the negatives. At the scene of occurrence from 10.30 a.m. till 2.00 p.m. on that day, P.W.13 conducted inquest over the dead body in the presence of Panchayatdars and witnesses. Ex.P.14 is the inquest report. During inquest, he examined P.Ws. 1, 2, 3 and others by recording their statements. Then he sent the dead body, with a requisition, through P.W.11 to the Government Hospital, Erode, for post mortem. 4. P. W. 11 is the police constable who, with the requisition, went to the hospital with the dead body for post-mortem. He identified the dead body to the Doctor. He was present throughout post-mortem. After post-mortem, he removed M.Os. 7 and 8 from the dead body and handed over the same to the investigating officer along with his Special Report. P.W.8 is the Doctor who, on receipt of Ex.P.9 requisition for post-mortem and the dead body, commenced post mortem at 4.00 p.m. on 30.05.2002. During post-mortem, he found various symptoms an noted by him in Ex.P.10, the postmortem report. The symptoms noted therein are as hereunder: “External Injuries: 1. An incised wound 3 × 1½ cm bone deep on the right frontal area. 2. An incised wound ½ × ½ × ½ cm over the right zygomontic region. 3. A contusion smelling 2 × 2 cm over the left frontal area. 4. An incised wound 2 × 1 cm × bone deep over the posterior parietal area left side present. 5. Left arm incised wound 6 × 2 cm × bone deep on the left upper arm on the posterior aspect of elbow. 6. A lacerated injury 1 × ½ × ½ cm over the lateral aspect of left elbow joint. 7. An incised wound ½ × ½ × ½ cm on the medial aspect of left middle finger with fracture of proximal phalanx. 8. Fracture lower end of radius and ulna on the left hand present. 9. Multiple abrasions on the left upper arm with dislocation of Head of humerus from the shoulder joint present. 10. An incised wound 1 × ½ × ½ cm the lateral aspect of right elbow joint. 11. Fracture right metacarpal bone. 12. 8. Fracture lower end of radius and ulna on the left hand present. 9. Multiple abrasions on the left upper arm with dislocation of Head of humerus from the shoulder joint present. 10. An incised wound 1 × ½ × ½ cm the lateral aspect of right elbow joint. 11. Fracture right metacarpal bone. 12. An incised wound 1 × ½ × ½ cm on the base of right middle finger with fracture of proximal phalanx. 13. An incised wound 4 × 1 cm × bone deep on the anterior aspect of left leg 15 cms below the knee joint. 14. Abrasion 4 × 1 cm on the anterior aspect of left leg 1 cm below the knee joint. 15. Abrasion 4 × 1 cm over the right knee. 16. Multiple abrasions over right upper arm. Internal Examination: Fracture right side 5th rib present. (2006) 2 MLJ (Crl) 418 at 423 Heart: 250 gms, pale, chambers: empty. Lungs: Rt:300 gms, Left: 275 gms, both pale Hyoid: intact, Stomach: contains 300 ml of undigested food material. Liver: Pale 1300 gms. Spleen: pale, 100 gms, Kidneys: Pale 150 gms both, Bladder: empty. Skull: Cephal haematoma found on the left temporal area. Brain: 1400 gms normal spintal column: intact” The Doctor is of the opinion that death would have occurred 16 to 20 hours prior to autopsy due to shock and haemorrhage sustained due to multiple injuries. According to him, weapon like M.Os. 1 to 3 could have caused the injuries found on the dead body and the cumulative affect of all the injuries is sufficient to cause death and no injury by itself would have been sufficient to cause death. 5. P.W.13continued with the investigation further by examining the witnesses and recording their statements. From the scene of occurrence at 2.50 p.m. on 30.05.2002, he recovered M.Os. 1 to 3, 4, 5, 6, 9, 10 and 11 under Ex.P.3 attested by P.W.6 and another. At 4.00 p.m. on 31.05.2002 he arrested A1 to A3 in the presence of P.W.6 and another. On examination, A2 gave a voluntary confession statement, the admissible portion of which is Ex.P.4. Pursuant to Ex.P.4, M.O.3 came to be recovered under Ex.P.5 attested by the same witnesses. Then he brought the arrested accused to the police station along with the material objects recovered and then sent the accused for judicial remand. On examination, A2 gave a voluntary confession statement, the admissible portion of which is Ex.P.4. Pursuant to Ex.P.4, M.O.3 came to be recovered under Ex.P.5 attested by the same witnesses. Then he brought the arrested accused to the police station along with the material objects recovered and then sent the accused for judicial remand. On 1.6.2002 at 7.30 a.m. he arrested A4 and A5 in the presence of P.W.6 and another. On examination, A4 gave a voluntary confession statement, the admissible portion of which in Ex.P.6, pursuant to which M.O.2 series came to be recovered under Ex.P.7. The arrested accused were brought to the police station along with the case properties and then the accused were sent for judicial remand. The case properties, were sent to the Court with a requisition Ex.P.15 to subject the same for chemical examination. As an enclosure to Courts letter Ex.P.16, the case properties ware sent to the laboratory. P.W.15 is the Magisterial clerk who speaks about those facts. Ex.P.15 is the Chemical Examiners report and Ex.P.18 and P.19 are the serologists’ report. P.W.14 took up further investigation from him on 2.6.2002. 6. P.W.3 is the elder brother of the deceased. He would also depose about the property dispute between the parties. He would state that on the occurrence day at about 10.00 p.m. P.Ws.1 and 2 informed him that his younger brother had bean assaulted and accordingly he went to the scene of occurrence; they reached that place about 10.00 p.m. there he saw his younger brother lying dead with injuries; immediately he went to the house of P.W.1, as it was night time they did not give any complaint and on the next day morning he gave the complaint to the police. P.Ws. 4 and 5, who ware examined to speak about the convening of the earlier panchayat regarding the fracture caused to the deceased, turned hostile. P.W.7 is the radiologist who had examined the X.Rays taken for Ramasamy in respect of the injury sustained by him on 2.3.2001 and he had applied plaster of paris on his hand. Ex.P.9 is the certificate which shows that Ramasamy had suffered a grievous injury on the earlier occasion. P.W.14 verified the investigation already done by P.W.13, and then examined further witnesses and recorded their statements. Ex.P.9 is the certificate which shows that Ramasamy had suffered a grievous injury on the earlier occasion. P.W.14 verified the investigation already done by P.W.13, and then examined further witnesses and recorded their statements. After completing the investigation, he filed the final report in Court against the accused on 29.7.2002 for the offences referred to earlier. 7. When the accused were questioned under Section 313 Cr.P.C. on the basis of the incriminating materials made available against each one of them, they denied each and every circumstance as false and contrary to facts. As already stated, neither any oral nor any documentary evidence was brought before Court at their instance. 8. V.K. Muthusamy, learned senior counsel attacked the prosecution case stating that Ex.P.1 is not a genuine complaint. There is inordinate delay in lodging the complaint viz. nearly 12 hours after the occurrence. Though prosecution attempted to explain the delay, the said explanation is far from convincing. There are enough materials in the evidence of P.W.3 to start with and then in the evidence of P.Ws.2 and 1 to show that Ex.P.1 could not have come into existence in the manner and at the time spoken to by the prosecution. According to the learned senior counsel, there was a prior information to the police about the crime and that is the reason why police have arrived at the scene at 12 in the night on the date of occurrence itself. By taking us through the evidence of P.Ws. 3 and 2, the learned senior counsel would contend that Ex.P.1 had come to be prepared after the police arrived at the scene and after the police observed the dead body with the injuries and in such circumstances, this Court has to necessarily doubt Ex.P.1 as not the true information. Learned senior counsel for this purpose would rely upon the judgment of the Hon’ble Supreme Court reported in 1994 Supplement (1) S.C.C. 590. Learned senior counsel proceeded to argue that once the very origin of the prosecution case is doubted then whatever may be the number of witnesses including the eye witnesses, examined to speak about the occurrence yet, this Court would not be committing any illegality in doubting the entire prosecution case and for this purpose he relies upon the judgment of the Supreme Court reported in A.I.R. 1980 S.C. 638. Finally, learned senior counsel would, without prejudice to the above argument, submit that in any event there is no evidence to show the existence of an unlawful assembly and, therefore, even if this Court believes the prosecution case, yet, in the absence of an unlawful assembly, each of the accused must be dealt with only for their respective act. There is also nothing on record to show that any common intention subsisted between the parties at the time of the commission of crime or even prior to the crime. A. K. Kumarasamy, the learned counsel appearing for A3 and A5, had adopted the arguments of V.K. Muthusamy, learned senior counsel. 9. The learned Government Advocate (Crl. side) would meet this point by stating that the explanation given by P.Ws.1 and 3 for not giving the complaint immediately after the occurrence deserves acceptance at the hands of the Court. There was nothing unusual in this case in P.Ws.1 and 3 not going to the police station within a short time. To test whether delay had occasioned in this case in giving the complaint, several subsisting circumstances at the scene of occurrence and at or about the time must be taken into account and these circumstances are sufficiently spoken to by P.Ws. 1 and 3. In the face of those circumstances, this Court has to ignore the time taken by the prosecution party in lodging the complaint. If the suspicion surrounding the belated complaint is removed from the mind of the Court, then there is no reason at all as to why this Court should disbelieve the evidence of P.Ws.1 and 2 who are examined as eye witnesses to the occurrence. 10. In the light of the above submissions made by the learned senior counsel for the appellant and the learned Additional Public Prosecutor of the State, we went through the entire materials an record. Since the attack to the prosecution case is on the origin of the prosecution case itself, we have to apply our mind as to whether the point raised by V.K. Muthusamy, learned senior counsel, that the origin of the prosecution case must be doubted as any substance or not. P.W.12 is the Sub-Inspector of Police whose evidence shows that at 7.30 a.m. an 30.05.2002, P.W.1 appeared before him and gave the complaint. P.W.12 is the Sub-Inspector of Police whose evidence shows that at 7.30 a.m. an 30.05.2002, P.W.1 appeared before him and gave the complaint. The prosecution wants the Court to believe that the complaint came to be lodged only at that time and not earlier than that. Even to him a suggestion has been put in the cross-examination that Ex.P.1 is not the first information but however, it had come to be brought about after much deliberation and the said suggestion was denied. Now let us examine the other materials available on record. In P.W.1s evidence itself we have substantial material of importance which may enable this court to doubt the origin of Ex.P.l. In her evidence in chief itself she says that she and P.W.2 were threatened by the accused while they were committing the crime; they decided to stay at a distance and then watch the whole crime. She has also emphatically stated even in her evidence in chief that only the distance factor, disabled her from observing the places where each of the accused caused injuries on her husbands body. Then, she would state, after giving the explanation for the delay, that she went to the police station where she gave Ex.P.l. But in her cross examination she has given answers opposite to her evidence in chief. We state here under what she had stated in her cross examination: “I went to the police station and told them about the incident; Inspector of Police Perundurai was informed to come; after he came all of us went to the scene of occurrence to observe the dead body; the police after observing the dead body and noting down the injuries examined me and then reduced into writing the complaint and took my signature; that complaint is Ex.P.1; that complaint came to be recorded at the spot at 7.00 a.m.” 11. P.W.3 in his evidence in chief would state that he went to the police station to give the complaint meaning thereby that it is he who personally gave the complaint. P.W.3 in his evidence in chief would state that he went to the police station to give the complaint meaning thereby that it is he who personally gave the complaint. In his evidence in cross, he had stated as hereunder: “At 12 in the night on the date of the occurrence police had arrived; 1 do not know who gave the information to the police; the police from the scene of occurrence sent word and accordingly all of us went there; after seeing us police examined him and others present at the scene of occurrence and then left the place stating that the complaint can be recorded on the next day morning; before dawn people from Kunjaramadai had reached; those people are from the family of the father-in-law of the deceased; after they came, there was a discussion among ourselves about giving the case; all of us went to the police station, people who came from Kunjaramadai also gave the details to the police; the police reduced that information into writing in which they have taken his signature and also the signature of P.W.1.” In Ex.P.1 we find that P.W.1 had put her signature and it does not contain the signature of P.W.3 as the author and attested by P.W.1. P.W.2 is the daughter of the deceased. She had stated in her evidence in cross that on the next day morning she went to the police station with P.Ws.1 and 3 and by that time people from her maternal grand fathers family had come there, all of them came to the police station; police came to the place where the dead body was lying stating that after seeing the dead body, complaint can be given and after observing the dead body, complaint was prepared Therefore, we have no hesitation at all in holding that from the evidence of P.Ws.1 to 3 referred to above, that Ex.P.1 could not have come into existence in the manner and at the time spoken to by P.W.12 and P.W.1 before the court. It is clear that police could have received information about the crime long prior to 7.30 a.m. on 30.05.2002 when Ex.P.1 is shown to have been brought into existence; they have reached the scene of occurrence on the midnight itself; they have seen the dead body with the injuries and then left the place stating that next day morning complaint can be recorded. The evidence also shows that people from the place of the father-in-law of the deceased have come; there was discussion among themselves about giving the complaint and then the complaint had come to be given. Ex.P.1 contains specific overt acts attributed to each of the accused and the place where each of the accused is shown to have attacked. P.W.1 we have already noted, had admitted in her evidence in chief itself that she was at a distance it was not possible for her to say at which place on the body of her husband, the respective accused attacked. If that is so and if police have not arrived at the scene of occurrence at night itself and P.W.1 had gone to the police station only for the first time at the next day morning, it in not possible to conclude as to how she could have given various overt acts to each of the accused in Ex.P.1 with corresponding situs of the injuries. This is yet another circumstance which strengthens our conclusion that Ex.P.1 could not have been brought into existence in the manner spoken to and at the time alleged by the prosecution but, it could have come into existence only after the arrival of the police at the scene of occurrence and after, discussion. In the decision Marudanal Augusti v. State of Kerala A.I.R. 1980 SC 638: 1980 (4) SCC 425 , the Hon’ble Supreme Court while dealing with an appeal against conviction held as follows: “The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F.I.R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence.” This judgment squarely applies to the case on hand. In the other judgment brought to our notice by the learned senior counsel for the appellant, namely State of Andhra Pradesh v. Punati Ramulu and others AIR 1993 SC 2644 : 1994 Supp. (1) SCC 590, the Supreme Court rendered a finding that the complaint had not come into existance in the manner spoken to, but had been brought into existence at the scene of occurrence itself after due deliberation. On that finding, the Supreme Court went on to hold that, “Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, and had prepared the first information report after reaching the spot after due deliberations, consultation and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues.” This judgment also, in our respectful opinion, squarely applies to the case on hand. 12. Therefore, we have no hesitation at all to conclude that Ex.P.1 is a fabricated instrument not reflecting the true state of affairs that could have been present at the time when the crime was committed. Admittedly, there is enmity between the two groups. Once we suspect Ex.P.1 as a fabricated one, then, when the possibility of false implication cannot be ruled out on the facts of this case, it is impossible for this Court to point out as to who are all falsely implicated and who are all the real culprits. When it is not possible for this Court to decide that, then the only inescapable conclusion is that the accused are definitely entitled to the benefit of such a serious doubt which is running through our mind at all times. In the light of our discussion referred to above, though in the evidence of P.Ws.1 and 2 show that they had observed the appellants committing the crime from a distance, yet, it will be unsafe to rely upon their evidence to render a conviction in a grave offence like murder. Therefore, we are not inclined to accept the evidence of P.Ws.1 and 2 at their face value regarding the occurrence proper. 13. Therefore, we are not inclined to accept the evidence of P.Ws.1 and 2 at their face value regarding the occurrence proper. 13. For all the reasons stated above, we find that the judgemnt under challenge suffers from the above referred to legal infirmities which had escaped the attention of the learned trial Judge. Accordingly, the judgment under challenge is set aside and the appeal is allowed. All the accused are acquitted of all the charges for which they were tried and convicted. Fine amount, if any, paid by any of the accused is directed to be refunded to them. This Court is informed that A2 is still in prison. Accordingly, we direct that A2 shall be released forthwith unless he is required in connection with any other case. Bail bond if any executed by A1, A3 to A5 would stand terminated forthwith.