Judgment :- Common Judgment: (M. Chockalingam, J.) This judgment shall govern these two appeals in C.A.No.206/2005 by A-1 to A-3 and in C.A.No.208/2005 by A-4 and A-5. 2. The appellants in both these appeals stood charged and tried for the following offences: I. A-1 to A-3 – under Sec.148 of I.P.C. II. A-4 and A-5 – under Sec.147 of I.P.C. III. A-1 to A-5 – under Sec.302 read with 34 of I.P.C. 3. On trial, they were found guilty as per the charges. A-1 to A-3 were awarded 2 years Rigorous Imprisonment under Sec.148 of I.P.C. A-4 and A-5 were awarded 1 year Rigorous Imprisonment under Sec.147 of I.P.C. A-1 to A-5 were awarded life imprisonment along with a fine of Rs.1,000/- and default sentence under Sec.302 read with 34 of I.P.C. 4. The short facts necessary for the disposal of these appeals can be stated thus: (a) A-1 and A-2 are the sons of A-3. A-4 and A-5 were closely related to A-1 to A-3. A-1 to A-3 belonged to Sangampatti, while A-4 and A-5 belonged to the nearby village. P.W.1 is the mother of the deceased Malaichamy. Malaichamy was living with his family members at Arasanoor. P.W.3 was running a petty shop nearby the house of Malaichamy. P.W.4 is the cousin brother of Malaichamy, who is also a resident of the said village and whose house is situated near the place of occurrence. P.W.5 was working as Driver under P.W.8, who is the former Panchayat President of Arasanoor. P.W.5 was having agricultural lands adjacent to the lands belonging to A-3. In the past, A-3 was watering his lands by taking water from the well situated in P.W.5s lands. Since the water drained, P.W.5 could not give water to A-3. Over that, A-3 was aggrieved. While the matter stood thus, A-3s daughter Booma, fell in love with the brother of P.W.5, Tiruselvam. They wanted to marry, and A-3 was also amenable for that. But, the family members of P.W.5 were objecting to the same. Thus, A-3 became further angry. While the matter stood thus, the sugarcane field of P.W.5 was ripe for harvest. When P.W.5 made his attempt to harvest, it was objected to by A-3. Under the circumstances, P.W.5 had the help of the deceased Malaichamy for the harvest. Malaichamy took sufficient man power and went over to the field. Thus, A-3 became further angry. While the matter stood thus, the sugarcane field of P.W.5 was ripe for harvest. When P.W.5 made his attempt to harvest, it was objected to by A-3. Under the circumstances, P.W.5 had the help of the deceased Malaichamy for the harvest. Malaichamy took sufficient man power and went over to the field. Despite the objections by A-3, he cut the sugarcane from the field. By this, A-3 developed animosity against Malaichamy. (b) On the date of occurrence, that was on 4. 2002, A-3 along with A-1, A-2, A-4 and A-5 proceeded to Arasanoor in two two-wheelers marked as M.Os.4 and 7 respectively, A-1 and A-2 in one vehicle and A-3 to A-5 in the other. They proceeded to the house of the deceased Malaichamy. at about 9.00 P.M., when Malaichamy was taking food in his house being served by his daughter-in-law. At that time, P.W.1 was actually standing in front of the house. Both these vehicles were stopped. The accused got down. A-3 shouted "The person who harvested the sugarcane, must come out." Malaichamy on hearing this, came out and questioned why the accused who belonged to a different place, came there to quarrel with them. At that time, A-1 and A-2 were armed with knives, and A-3 had an aruval in hand. Both of them attacked him, while A-3 attacked on his head; but it fell on his arms. Malaichamy sustained severe injuries, and he fell down. This was witnessed by P.Ws.1, 2 and 3. All the accused persons ran away from the place of occurrence. In the Ambassador Car belonging to P.W.8, Malaichamy was taken to Meenakshi Mission Hospital at Madurai by P.Ws.1 and 4. P.W.12, the Doctor, who was on duty at that time, admitted Malaichamy on 4. 2002 at 10.09 P.M., and the accident register copy in this regard is marked as Ex.P9. The x-ray taken is marked as Ex.P12. .(c) An intimation was given to Othakadai Police Station and in turn, sent to the respondent police. P.W.11, the Sub Inspector of Police, proceeded to Meenakshi Mission Hospital, Madurai, where he recorded the statement of P.W.1, marked as Ex.P1, on the strength of which a case came to be registered by the respondent police in Crime No.24/2002 under Sections 147, 148, 341, 324 and 307 of I.P.C. The printed First Information Report, Ex.P7, was despatched to the Court. .(d) P.W.14, the Inspector of Police of the Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex.P2, the observation mahazar, and Ex.P14, the rough sketch. Pending the investigation, he first arrested A-5, who gave a confessional statement. The admissible part of the same is marked as Ex.P4. M.Os.1 to 3, the weapons of crime, namely aruval and knives respectively, produced by him, were recovered under a cover of mahazar. A-5 was sent for judicial remand. The Investigating Officer came to know that all other accused surrendered before the Judicial Magistrates Court. Despite the treatment, Malaichamy died in the hospital on 14. 2002 at 8.10 A.M. Then, the case was altered to Sec.302 of I.P.C. The express report, Ex.P15, was despatched to the Court. The Investigator made an inquest on the dead body of Malaichamy in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16. The dead body was sent to Rajaji Government Hospital, Madurai, along with a requisition, Ex.P6, for the purpose of autopsy. .(e) P.W.13, the Tutor in Forensic Medicine, Madurai Medical College, Madurai, on receipt of the said requisition, conducted autopsy on the dead body of Malaichamy and found 6 injuries. The Doctor has issued a postmortem certificate, Ex.P13, with his opinion that the deceased would appear to have died of complications due to injuries No.1 and 2 sustained by him. .(f) All the material objects recovered from the place of occurrence, and the weapons of crime recovered from A-5, were subjected to chemical analysis by the Forensic Sciences Department, which resulted in Ex.P19, the Chemical Analysts report. The Investigating Officer completed the investigation and filed the final report. 5. The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 14 witnesses and also relied on 19 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of the defence one Veerayee was examined as D.W.1; but no documents were marked. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of the defence one Veerayee was examined as D.W.1; but no documents were marked. The trial Court heard the arguments advanced on either side, and on scrutiny of the materials available, took the view that the prosecution has proved the case beyond reasonable doubt. The trial Court entered a judgment of conviction and imposed the punishment referred to above. Hence, these two appeals at the instance of the appellants. 6. Advancing his arguments on behalf of A-1 to A-3, the learned Senior Counsel Mr.AR.L.Sundaresan, would submit that in the instant case, all lacunas and infirmities are noticed in the prosecution case; that despite the same, the trial Court has taken an erroneous view and found these appellants guilty; that according to the prosecution, the occurrence has taken place at about 9.00 P.M. on 4. 2002, and an intimation was given to Othakadai Police Station, and in turn, the Officials attached to Othakadai Police Station, should have given information to the respondent police; but, according to the Sub Inspector of Police, P.W.12, he came to Meenakshi Mission Hospital and recorded the statement of P.W.1, and in turn, registered the case under Sec.307 of I.P.C. at about 11.30 A.M. on the next day; that under the circumstances, there was a long delay in registration of the case; that apart from this, while the case was registered on 4. 2002, the FIR was sent to the Judicial Magistrates Court only on 4. 2002, the FIR was sent to the Judicial Magistrates Court only on 4. 2002 at 6.50 P.M., and this would be indicative of the fact that all embellishments and improvements have also been made in the FIR before it reached the Court; that all these suspicions in this delay would become strengthened by the evidence given by the Investigating Officer; that according to the Investigating Officer, when the deceased was under treatment, he gave a statement to him, which was also recorded, and thus, it would be quite clear that in the instant case, there was an occasion for the victim himself to give a statement, and the same was recorded by the Investigating Officer; that had it been placed before the Court, the actual truth of the case would have been unfolded, but not done so; that in such circumstances, the Court has to draw an adverse inference available under Sec.114 of the Evidence Act; and that this would go against the prosecution case. 7. Added further the learned Senior Counsel that so far as the scene of occurrence is concerned, discrepant versions have been brought forth; that according to P.W.1, the occurrence has taken place in front of her house; that according to P.W.2, it has taken place on the west of the cement road; that according to P.W.3, it has taken place near the house of Thangathi; that under the circumstances, the prosecution was unable to fix the place of occurrence at all; but, according to the witnesses, they are different; and that if to be so, it would indicate that the so-called eyewitnesses P.Ws.1 to 3, could not have seen the occurrence at all. 8. 8. The learned Senior Counsel would further add that the occurrence has taken place at about 9.00 P.M.; that there is no light at that time; that though P.Ws.1 to 3 claimed that there was light, the existence of light was not proved by the prosecution; that it would be quite clear that no light was available, which would also be clear from the two documents namely observation mahazar and rough sketch; that if actually light was available, a duty was cast upon the prosecution to examine someone from the Electricity Board to show that there was electric energy and light was also burning at the time of the occurrence, but not done so; that this would also indicate that the eyewitnesses could not have seen the occurrence at all; that P.W.1 is the mother; that P.W.2 is called to be an independent witness; that P.W.3 is a tea shop wallah nearby the house; that according to the prosecution, they are eyewitnesses; that needless to say that P.W.1 is the mother of the deceased, and hence, she is an interested witness; that as far as P.W.3 was concerned, at the time of the occurrence, after hearing the cry, he took a torch light and came out; that this would be indicative of the fact that no light was available in the street and also P.W.3 could have come to the occurrence place only after the occurrence was over, and thus, P.W.3 could not have seen the occurrence at all; that it remains to be stated that the statements of these witnesses under Sec.161 Cr.P.C., have reached the Court only on 14. 2002, and there was a delay of more than a week; that had they been really examined immediately at the time of inquest or afterwards, there was no reason why it was despatched to the Court after a week; that it is pertinent to point out that the prosecution has claimed that at the time of the occurrence, his wife, son, daughter and other witnesses were also present, and their statements under Sec.161 were also recorded by the Investigating Officer; that apart from that, the prosecution claimed that the occurrence has taken place in front of the house of Malaichamy; that if to be so, they were all material witnesses; but, no one was examined; and that this would be fatal to the prosecution case. 9. 9. The learned Senior Counsel would further add that in the instant case, the motive attributed by the prosecution for the crime, was too remote; that P.W.1 has admitted that the sugarcane field was harvested by Malaichamy just before six months; that they are all nearby villages; that if really A-3 was aggrieved over the act of Malaichamy, he would have taken him to task immediately; that there was no reason for them to come to the house of Malaichamy, that too after a period of six months, to attack him; that it is highly remote; that in this regard, Ex.P1 is thoroughly silent; and that it would be quite clear that it was a subsequent development by the prosecution pending the trial. 10. The learned Senior Counsel would further add that in the instant case, at the time of the operation, it was one Munusamy, who was present, and who gave consent for the operation to be done; that it would be quite clear that there were two rival groups in the panchayat election; that under the circumstances, Malaichamy should have sided one of them; that this would indicate that they wanted to take revenge, and therefore, the names of the accused have been roped in, and for all these reasons, they are entitled fore acquittal; but, the lower Court has not considered any one of the aspects of the matter, but has taken an erroneous view. 11. 11. Advancing his arguments on behalf of A-4 and A-5, the learned Counsel would submit that in the instant case, so far as A-4 and A-5 are concerned, no motive is attributed; that mere relationship of these two accused with A-1 to A-3 cannot be a reason to sustain a conviction; that merely because they were relations, they have been roped in falsely; that even as per the evidence of P.W.1, both of them were catching hold of the deceased at the time of occurrence in the front and back; that if to be so, the injuries that were found, could not have been caused at all; that at the time of occurrence, A-5 was fully in a drunken mood; that according to P.W.2, A-5 was unconscious, and he fell down 20 feet away from the place of occurrence; that if a person like A-5 was under intoxication and fell down, he could not have been a participant at the time of the occurrence; that he has been falsely roped in; that according to the prosecution, they have come in two motorbikes, and one of them has been recovered from A-5, while the other has been recovered from the owner of the vehicle namely P.W.6; that from the evidence of P.W.6, it would be quite clear that he used to keep the vehicle outside, and the vehicle was taken on that day; but, he did not know by whom it was taken; that it was recovered from him; and that if the vehicle was actually taken by the accused at the time of the occurrence, how P.W.6 happened to possess the vehicle subsequently is made unknown. 12. Added further the learned Counsel that in the instant case, it is a matter of surprise to note that A-5 was the only person arrested; that according to the prosecution, he volunteered to give a confessional statement, and he produced all the weapons of crime, which were held by A-1 to A-3; that it is not only false, but also this part of the evidence as to the confession and recovery cannot, but be false; that this part of the evidence cannot bind A-1 to A-3 legally or A-4 and A-5 factually, and hence, they are entitled for acquittal in the hands of this Court. 13. 13. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 14. It is not a fact in controversy that one Malaichamy following an incident that took place at about 9.00 P.M. on 4. 2002 at Arasanoor Village, sustained injuries, and he was directly taken by P.Ws.1 and 4 to Meenakshi Mission Hospital, Madurai, where despite treatment, he died on 14. 2002. Originally, the case was registered under Sec.307 of I.P.C. by the respondent police, and on his death, it was converted to Sec.302 of I.P.C. Following the inquest conducted by the Investigating Officer, the dead body was subjected to postmortem by P.W.13, the Doctor, and he has given his categorical opinion that Malaichamy died of complications due to injuries No.1 and 2 sustained by him. Hence, factually, the Court feels no impediment in recording that he died out of homicidal violence. 15. In order to substantiate the case of the prosecution, three witnesses have been examined as eyewitnesses namely P.Ws.1 to 3. P.W.1 is the mother of the deceased. P.W.2 is an independent witness. P.W.3 is the tea shop wallah. Before analyzing the evidence of these three witnesses to find out whether it could be accepted, the Court has to analyze all the incidents that took place preceding the occurrence. The case of the prosecution was that P.W.5 had lands adjacent to that of A-3, and A-3 was taking water from the well situated in P.W.5s land, and P.W.5 did not help him thereafter, and A-3 developed animosity against him, and this is the direct motive for the crime. According to the prosecution, there was a love affair between the daughter of A-3 Booma and the brother of P.W.5. Following the love, the family members of A-3 were amenable for the marriage, while P.W.5s family members were not amenable. This is the second part of the motive, according to the prosecution. But, this is also not the immediate motive for the occurrence, since the deceased person in the instant case was one Malaichamy and no one else and in particular, not the members of P.W.5s family. This is the second part of the motive, according to the prosecution. But, this is also not the immediate motive for the occurrence, since the deceased person in the instant case was one Malaichamy and no one else and in particular, not the members of P.W.5s family. According to the prosecution, the specific motive for the occurrence was when there was an attempt made by P.W.5 to harvest his sugarcane field, it was stopped by A-3, and at that juncture, P.W.5 had no option than to leave it to be harvested by the said Malaichamy, a contractor, and accordingly, Malaichamy with sufficient manpower went over to the field and harvested the same despite the objections made by A-3, and thus, Malaichamy, a person belonging to a different village, came over there and harvested the land of P.W.5, despite the objections made by A-3, and the same was the real reason for A-3 to commit the offence with his sons A-1 and A-2 and two of his relations who are A-4 and A-5, at the time of occurrence. As far as the motive part is concerned, according to P.W.1, the harvest of the land had taken place six months before. If to be so, had it been the real grievance of A-3, he would have taken Malaichamy to task immediately, and he would not have waited for a period of six months. It remains to be stated that the villages are adjacent to each other, and they had got occasion to meet either, or one cannot expect anybody to wait for period of six months and come forward with such a motive to commit the crime. In such circumstances, the motive attributed by the prosecution, is too remote. Therefore, this Court is unable to agree with the case of the prosecution in that regard. .16. So far as the occurrence is concerned, the prosecution has examined P.Ws.1 to 3, as referred to above. According to the prosecution, the occurrence has taken place in front of the house of Malaichamy. As far as the scene of occurrence is concerned, the witnesses have got different versions. According to P.W.1, it was really in front of the house. As far as P.W.2 is concerned, it was on the western part of the cement road. As regards P.W.3, he came out on hearing the cry with the torch light to see the occurrence. As far as the scene of occurrence is concerned, the witnesses have got different versions. According to P.W.1, it was really in front of the house. As far as P.W.2 is concerned, it was on the western part of the cement road. As regards P.W.3, he came out on hearing the cry with the torch light to see the occurrence. All put together would go to show that till the end of the trial, the prosecution was unable to fix the scene of occurrence. Now, at this juncture, this Court wanted for the purpose of guidance, two documents used to be prepared by the Investigating Officer. One is the sketch, and the other is the observation mahazar. A perusal of the observation mahazar would indicate that the occurrence has taken place in front of the house of Malaichamy. But, P.Ws.2 and 3 have given different versions, and in no way, Ex.P14, the so-called sketch, had helped the Court to fix the scene of occurrence. Thus, the scene of occurrence is not fixed. 17. Added circumstance in the instant case is that while the Investigator has examined the wife, son, daughter and other independent witnesses, who were all present at the time of the occurrence, and their statements have been recorded under Sec.161 of Cr.P.C., for the reasons best known to the prosecution, no one witness was examined in Court. .18. There are other circumstances also. According to the prosecution, the occurrence has taken place at 9.00 P.M., and the deceased was immediately taken from the place of occurrence namely Arasanoor, to Meenakshi Mission Hospital, Madurai, where P.W.12, the Doctor, has medically examined him and has given the accident register. According to P.W.12, the Doctor, immediately an intimation was given to Othakadai Police Station nearby. P.W.9, the Head Constable, attached to Othakadai Police Station, would claim that he received the intimation the next morning at about 7.15 A.M. In order to substantiate the fact that this was received by him by way of a written intimation either, or thereafter, he gave information to the respondent police, no acceptable evidence is before the Court. If such an intimation was actually received, the regular procedure of the Police Station in the usual course would be to record the same in the General Diary; but, no documentary evidence was produced. If such an intimation was actually received, the regular procedure of the Police Station in the usual course would be to record the same in the General Diary; but, no documentary evidence was produced. According to the Sub Inspector of Police, on receipt of the information, he proceeded to Meenakshi Mission Hospital, and he found that the injured Malaichami could not speak, and thereafter, he recorded the statement of P.W.1. In the case on hand, while the occurrence has taken place at about 9.00 P.M., the F.I.R. has come into existence at about 11.30 A.M. on 4. 2002, i.e., 14 ½ hours late. Thus, the evidence adduced by the prosecution that there was a written intimation received by Othakadai Police Station, and in turn, it was given to the respondent Police Station, and thereafter, the Sub Inspector of Police rushed over there is highly doubtful. It may be in order to cover the delay that has already been caused. Now, at this juncture, the Court can comment that the delay of 14 ½ hours in recording the First Information Report remained unexplained by the prosecution. 19. Apart from the above, according to the Investigator, he has recorded the statement of Malaichamy when he was under treatment at Meenakshi Mission Hospital. If to be so, that document should have seen the Court; but, till the end, it has been thoroughly suppressed. As rightly pointed out by the learned Senior Counsel for the appellants, this document, in the opinion of this Court, is actually very vital to the prosecution case. Once the victim himself has given a statement, and it has also been recorded by the Sub Inspector of Police, such document should have been produced before the Court in order to enable the Court to know about the case; but, it has been suppressed. The suppression of the document itself is fatal. In such circumstances, the Court has to draw an adverse inference so far as the non-production of the document is concerned. 20. The further circumstance is that the statements of the witnesses recorded by the Investigating Officer under Sec.161 of Cr.P.C., were sent to the Court after one week. This would be indicative of the fact that after the death of the concerned person, these statements should have been recorded to suit the prosecution case, and thereafter, it should have been sent. 21. This would be indicative of the fact that after the death of the concerned person, these statements should have been recorded to suit the prosecution case, and thereafter, it should have been sent. 21. Added circumstances are that as far as A-4 and A-5 were concerned, according to the eyewitnesses, they were catching hold of the deceased in the front and back. If to be so, such injuries as found in the postmortem certificate, could not have been caused. Further, it is highly doubtful whether P.Ws.1 to 3 could have been eyewitnesses as claimed by the prosecution. It remains to be stated that all the weapons of crimes namely M.Os.1 to 3, were recovered from A-5 immediately on his arrest. The case of the prosecution is not that A-5 was armed with any weapon or he wielded the same. On the contrary, the evidence of P.W.2 was that he was in a drunken mood and fully unconscious, and immediately after the occurrence, he fell down about 20 feet away. Needless to say that the recovery made from A-5 pursuant to his confession, would not in any way legally bind A-1 to A-3. As regards A-5, it is highly doubtful whether he would have given such a confession leading to the recovery of one of M.Os.1 to 3 and also M.O.7. 22. Now, the crowing circumstance in respect of the recovery is the recovery of M.O.4, the motorcycle. According to the prosecution, A-1 and A-2 in one bike and A-3 to A-5 in another bike went to Arasanoor Village. According to P.W.6, he is the owner of M.O.4. If to be so, when his vehicle was taken at the time of occurrence remained unknown. This was not recovered by the police; but, P.W.6 was found to be in possession and from him, it was recovered. Thus, the investigation should have gone in that line. According to P.W.6, he got it back from the accused. But, there is no evidence in this regard. Thus, it becomes doubtful whether M.O.4 was one of the vehicles used by the accused at the time of the occurrence. All these infirmities and lacunas are noticed by the Court. Thus, the investigation should have gone in that line. According to P.W.6, he got it back from the accused. But, there is no evidence in this regard. Thus, it becomes doubtful whether M.O.4 was one of the vehicles used by the accused at the time of the occurrence. All these infirmities and lacunas are noticed by the Court. This Court is of the considered opinion that merely because P.Ws.1 to 3 happened to be the eyewitnesses, in view of the suspicious circumstances attendant over the same, it would be highly unsafe to accept the evidence of P.Ws.1 to 3 to sustain a conviction in a case of murder like this. But, the lower Court has not considered any one of the aspects of the matter, as rightly pointed out by the learned Senior Counsel for the appellants. Under the circumstances, this Court is of the view that the prosecution has not proved the case beyond reasonable doubt, and the appellants are entitled for acquittal. 23. In the result, both these criminal appeals are allowed, setting aside the judgment of the lower Court. The appellants are acquitted of the charges levelled against them. The bail bonds executed by A-4 and A-5, shall stand terminated. The fine amounts if any paid by the appellants, will be refunded to them.