Judgment :COMMON JUDGMENT Per M. CHOCKALINGAM, J. 1. This judgment shall govern these two appeals in C.A. Nos. 607 of 2000 and 77 of 2003, the former by A-1 to A-5 while the latter by the single accused whose case was split up by a separate trial. 2. The appellants in CA 607/2000 stood charged, tried and found guilty as follows: A-1 to A-5 under Sec. 147 IPC - convicted I Charge : and sentenced to 1 year R.I. A-1 to A-5 under Sec. 449 IPC - convicted II Charge : and sentenced to 2 years R.I. and a fine ofRs. 1,000/- with default sentence of 3 months S.I. III Charge : A-1 to A-5 under Sec. 302 IPC - convicted and sentenced to life imprisonment under Sec. 302 read with 149 I.P.C. and a fine of Rs. 10,000/- with default sentence of 1 year S.I. IV Charge : A-1 to A-5 under Sec. 427 IPC - convicted and sentenced to 1 year RI. V Charge : A-1 to A-5 under Sec. 427 IPC - convicted and sentenced to 1 year RI. VI Charge : A-1 to A-5 under Sec. 427 IPC - convicted and sentenced to 1 year RI. VII Charge : A-1 to A-5 under Sec. 427 IPC - convicted and sentenced to 1 year RI. VIII Charge : A-1 to A-5 under Sec. 427 IPC - convicted and sentenced to 1 year RI. 3. The appellant in C.A. No. 77 of 2003 stood charged, tried and found guilty as follows: I Charge : A-1 to A-5 under Sec. 148 IPC - convicted and sentenced to 1 year RI. A-1 to A-5 under Sec. 449 IPC - convicted and II Charge : sentenced to 7 years RI. and a fine of Rs. 5,000/- with default sentence of 1 year R.I. Under Sec. 302 IPC - convicted and sentenced to III Charge : life and a fine of Rs. 5,000/- with default sentence of 1 year R.I. IV Charge : Under Sec. 427 IPC - acquitted. V Charge : Under Sec. 427 IPC - convicted and sentenced to 1 year R.I. VI Charge : Under Sec. 427 IPC - convicted and sentenced to 1 year R.I. VII Charge : Under Sec. 427 IPC - convicted and sentenced to 1 year R.I. VIII Under Sec. 427 IPC - convicted and sentenced to Charge : 1 year R.I. 4. These appellants were arrayed as A-1 to A-6 in the F.I.R. and subsequently, the case was split up in respect of the sixth accused who is the appellant in CA 77/2003. Both the appeals are heard together though there were separate judgments rendered by the Court below on two separate trials. 5. The short facts as per the evidence adduced by the prosecution in S.C. No. 29/99 which are necessary for the disposal of these appeals, can be stated thus: [a]P.W.1 is the brother-in-law and P.W.2 is the brother of the deceased Nesamony. P.W. 4 is the wife of the deceased. The deceased was running a tea shop in the village and residing there also. A 5 was having a petty shop in the same village namely Paloor. He was selling Aristam in his petty shop which was situated near by the house of the deceased. The conduct of A-5 was questioned by the deceased and the villagers by raising objections since the consumers of Aristam used filthy language among themselves. One month prior to the date of occurrence, such an incident took place where objections were raised by the deceased. [b]On the date of occurrence i.e. 9.6.1996, at about 6.00 p.m. P.Ws. 1 and 2 were taking tea at the shop of P.W.3. At that time, A-1 to A-5 and the appellant in the other appeal namely Sasi @ Gopalakrishnan, came to the shop of P.W.3 and quarrelled with him and damaged the materials kept in the shop of P.W.3. P.Ws. 1 and 2 came out from the shop and witnessed the occurrence. Immediately all the accused entered into the house of the deceased when A-1 caught hold of the deceased and dashed him on the wall. The accused Sasi beat the deceased on the right collar bone by a wooden log. A-3 beat the deceased on his right cheek and right flank and also on his head with a wooden log. A-4 beat the deceased on the right eye and also right shoulder by a wooden log. A-5 beat the deceased on his left flank and left hand by a wooden log. P.Ws. 1 to 4 witnessed the entire occurrence and raised alarm. The accused came out from the house and went to the provisional shop of P.W.2 and caused damage to the shop. A-5 beat the deceased on his left flank and left hand by a wooden log. P.Ws. 1 to 4 witnessed the entire occurrence and raised alarm. The accused came out from the house and went to the provisional shop of P.W.2 and caused damage to the shop. Thereafter, they went to the house of P.W.6 and damaged the materials in his house which were worth Rs. 25,000/-. Then, they went to the house of P.W.2 and caused damage to the extent of Rs. 20,000/-Thereafter all the accused went to the house of P.W.10 and caused damage to the house. Then, all the accused fled away from the scene of occurrence. [c]The deceased was taken to Kottar Government Hospital in a van driven by P.W.5 P.Ws. 1 and 2 accompanied the deceased to Kottar Government Hospital. P.W.12, the Doctor, attached to Kottar Government Hospital, at about 8.00 p.m. examined he deceased and declared him dead. The Doctor sent the dead body to the mortuary. An intimation, Ex.P7 was sent to the Sub Inspector of Police, Nagerocil. P.W.16, the Head Constable, attached to Kottar Police Station, at about 8.15 p.m. received the intimation, Ex.P7, and in turn, sent an intimation through VHF to Karungal Police Station. P.W.19, the Head Constable, attached to Karungal Police Station, at about 9.30 p.m. went to Kottar Government Hospital and recorded the statement of P.W.1 marked as Ex.P.1. At about 11.00 p.m. he returned to Karungal Police Station and registered a case in Crime No. 310/96 under Sections 147, 148, 323, 452, 427 and 302 of I.P.C. The printed First Information Report, Ex.P.13 was despatched to the Court. (d) On receipt of the copy of F.I.R. the Inspector of Police, by name Rajendran took up investigation at about 5.30 a.m. on 10.6.1996, visited the scene of occurrence and prepared an Observation Mahazar, Ex.P.6 in the presence of witness and a rough sketch, Ex.P.14. He also sized the material objects from the place of occurrence. Thereafter, he proceeded to Nagerocil Government Hospital and conducted inquest on the dead body of Nesamony and prepared an inquest report, Ex.P.15. [e]P.W.13 the Assistant Surgeon, attached to the Government Head Quarters Hospital Nagerocil, on receipt of the requisition, conducted autopsy on the dead body of Nesamony and gave a postmortem certificate, Ex.P.9. Thereafter, he proceeded to Nagerocil Government Hospital and conducted inquest on the dead body of Nesamony and prepared an inquest report, Ex.P.15. [e]P.W.13 the Assistant Surgeon, attached to the Government Head Quarters Hospital Nagerocil, on receipt of the requisition, conducted autopsy on the dead body of Nesamony and gave a postmortem certificate, Ex.P.9. The Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries mainly to the chest including ribs and injury to lung and head injury. [f]On 10.10.1996, the investigator arrested A-2, A-4 and A-5 near Thickanom Junction, and they wee sent for judicial remand. On 11.6.1996, P.W.20 the Inspector of Police, took up further investigation, examined the witnesses and recorded their statements. On 12.6.1996, he examined the Photographer, P.W.14 and other witnesses and recorded their statements. On 18.7.1996, P.W.21, the Inspector of Police, took up further investigation, examined the witnesses further and recorded their statements. P.W.22 the Inspector of Police, took up further investigation on 7.1.1997, examined the Doctors and recorded their statements. After completing the investigation, P.W.22 filed the final report against all the accused on 29.9.1997. 6. The case was committed to Court of Session. Since A-6 did not appear and was absconding, the case was split up in his regard. As far as A-1 to A-5 were concerned, it was taken up in S.C. No. 29/99, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 22 witnesses and relied on 16 exhibits and 15 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 witness. They denied them as false. No defence witness was examined. After hearing the Counsel on either side and also scrutiny of the materials available, the trial Court took the view that the prosecution has proved the case beyond reasonable doubt, found them guilty and sentenced to imprisonment as referred to above. Hence, the appeal in C.A. No. 607 of 2000. 7. Insofar as the absconding accused, the case was tried in S.C. No. 532 of 2002 after framing necessary charges. In order to substantiate the charges, the prosecution examined 19 witnesses and also relied on 15 exhibits and 15 material objects. Hence, the appeal in C.A. No. 607 of 2000. 7. Insofar as the absconding accused, the case was tried in S.C. No. 532 of 2002 after framing necessary charges. In order to substantiate the charges, the prosecution examined 19 witnesses and also relied on 15 exhibits and 15 material objects. On completion of the evidence on the side of the prosecution the accused was procedurally questioned under Sec. 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. On the side of the defence, one witness was examined namely the Bill Collector of Paloor Panchayat, and on his side, three documents wee marked as Exs. D1 to D3. The lower Court heard the arguments advanced, found the accused/appellant in C.A. No. 77/2003 guilty and awarded the imprisonment which is the subject matter of challenge in that appeal. 8. Both the appeals are taken up for enquiry jointly. The arguments advanced, are heard together, and the Court renders the following judgment. 9. D1 to D3. The lower Court heard the arguments advanced, found the accused/appellant in C.A. No. 77/2003 guilty and awarded the imprisonment which is the subject matter of challenge in that appeal. 8. Both the appeals are taken up for enquiry jointly. The arguments advanced, are heard together, and the Court renders the following judgment. 9. Learned Senior Counsel appearing for the appellants in CA No. 607 of 2000, would submit that according to the prosecution, the occurrence has taken place on 9.6.1996 at about 6.00 p.m. inside the house of the deceased Nesamony that as per the prosecution case, immediately after the occurrence, he was taken to Kottar Government Hospital where he was declared dead by the Doctor P.W.12, and an intimation was given to Kottar Police Station, and P.W.16, the Head Constable, who received the intimation, in turn, informed to Karungal Police Station, where P.W.19, the Head Constable, received the same, and he proceeded to the Government Hospital, Kottar, recorded a statements, Ex.P.1 form P.W.1, came back to Karungal Police Station and registered a case at about 11.00 p.m. and on receipt of the information, the investigation was proceeded by one Rajendran, who was the Inspector of Police of that Circle, at about 5.30 a.m. on 10.6.1996; that it is highly doubtful whether Ex.P1 is the first information as put forth by the prosecution for more reasons than one; that according to the witness, the police came to the spot on the very night at about 8.00 or 8.30 p.m. along with the Sub Inspector and the Head Constable, and it was the Police Officials who informed that Nesamony has already died; that if to be so, this fact was strongly fortified by the evidence of P.W.19, who has categorically admitted that immediately at about 9.30 p.m. they got the information and proceeded to the spot along with the Sub Inspector of Police that had it been true that the Police Officials were present at the place of occurrence at the night hours on 9.6.1996, and further, all these witnesses have spoken to the fact that they have also narrated to the police what has happened, the first information can not be the one what was placed before the lower Court, that further, as regards the prosecution witnesses, they have got inconsistent versions; that the prosecution case was that the deceased was taken from the place of occurrence directly to Kottar Government Hospital but, P.W.1 would say that he was taken originally to a private hospital, and thereafter to Kulachal Government Hospital, and from there, he was taken to the Government Hospital, Kottar and the doctors in those hospitals were informed about the occurrence; but, the other witness who claimed to be the eyewitnesses, were certain in their evidence that Nesamony was directly taken to the Government Hospital, Kottar and that not only this was in consistent, but also it is doubtful whether these witnesses could have been present at the time of the occurrence. 10. Added further, the learned senior Counsel that as far as the narration of the incident is concerned, there is a lot of inconsistencies in their evidence; that the prosecution witnesses have stated that the injury was not sustained by anybody; but, P.W.2 would say that she not only sustained injury but, the other witnesses also sustained injury; and that in such circumstances, it would be indicative of the fact that these witnesses could not have seen the occurrence at all. 11. The learned Senior Counsel would further contend that P.W.4 would state that at the time of the occurrence, she gave an alarm, and only thereafter, P.Ws.1 to 3 came inside the house and that under the circumstances, they could not have seen the occurrence at all. 12. It is the further submission of the learned Senior Counsel that the time of occurrence is highly doubtful that according to the prosecution, the occurrence has taken place at about 6.00 p.m. on 9.6.1996; that P.W.4 the wife of the deceased, was certain that the deceased had lunch at about 12.00 or 12.30 p.m. and thereafter, he did not have any food, and he was given coffee, and it was also taken partly by him at the time of occurrence, and the occurrence has taken place; that P.W.13 the postmortem Doctor, has given evidence that semi digested food particles were found in the stomach of the deceased; that he would further add that the deceased should have taken food just 1 or 2 hours prior to the occurrence; and that from the evidence of both these witnesses namely P.Ws. 4 and 13, it would be quite clear that the occurrence could not have taken place at 6.00 p.m. as put forth by the prosecution. 13. Added further the learned Senior Counsel that according to the prosecution, the petty shops and houses of P.Ws. 6 to 10 have been damaged; that out of them, P.W.6 has turned hostile; that as far as the other shops are concerned, there is no reason why these accused have entered into the respective houses and shops and damaged the goods; that according to the prosecution, no separate complaint was given; and that according to P.W.2 he gave a separate complaint; but, no complaint is produced before the trial Court. 14. 14. The learned Senior Counsel would submit that A-1 according to the prosecution, dashed the deceased on the wall; but, there is not corresponding injury on the head or on the neck as could be noticed from the postmortem certificates as external injury that it is highly doubtful whether these witnesses could have been present at all, and thus, in short, the prosecution has not proved the case beyond reasonable doubt, but the lower Court has not considered any one or all the aspects mentioned above, and hence, they have got to be acquitted. 15. The Court heard the learned Additional Public Prosecutor on the above contentions and made a thorough scrutiny of all the materials available. 16. It is not a fact in controversy that one Nesamony, the husband of P.W.4, was done to death in an incident that took place on 9.6.1996. After the dead body was taken to the Government Hospital, Kottar, he was declared dead by P.W.12, the Doctor,. Thereafter, a case came to be registered by Kottar Police Station. Following the inquest made by the Inspector of that Circle, namely Rajendran, the dead body was subjected to postmortem by P.W.13, the Doctor, and he has given his opinion that the deceased died out of shock and haemorrhage due to the external and corresponding internal injuries. The fact that Nesamony died out of homicidal violence was not in controversy before the trial Court, and hence, it has got to be recorded so. 17. In the instance case, the prosecution has rested its case on the direct evidence by examining P.Ws.1 to 4 as eye witnesses. It is true that they have spoken about the prosecution story. This Court is able to notice a motive that prior to the occurrence, A-5 was carrying on his petty shop, where he was selling Aristam. It was a residential colony and hence, objections were raised due to which they were on inimical terms. But, in a given case like this, merely alleging the motive and proving the same by itself will not bring home the guilt of the accused. 18. According to the prosecution, the occurrence has taken place at about 6.00 p.m. on 9.6.1996, inside the house of the deceased Nesamony when P.W.4 alone was present along with him, and other witness were standing. 18. According to the prosecution, the occurrence has taken place at about 6.00 p.m. on 9.6.1996, inside the house of the deceased Nesamony when P.W.4 alone was present along with him, and other witness were standing. On hearing the alarm raised by P.W.4 they rushed inside, and they have also witnessed the occurrence. At the outset, it has to be pointed out whether Ex.P.1 the complaint, would have come into existences put forth by the prosecution. The case of the prosecution in that regard was that severely injured Nesamony was taken to Kottar Government Hospital, where he was declared dead by the Doctor P.W.12, that an intimation was given to Kottar Police Station; that in turn, P.W.16, the Head Constable, gave intimation to Karungal Police Station; and that P.W. 19, the Head Constable, proceed to Kottar Government Hospital and recorded the statement of P.W.1. The evidence of P.W.19 at the time of the cross-examination, puts an end to the above part of the case of the prosecution. He has candidly admitted that they came to know about the occurrence at about 8.00 p.m. and accompanied by the Sub Inspector of Police, all went over to the village immediately, and it was the Police Officials who informed to the villagers that Nesamony already died. Now, the prosecution story that P.W.19 only after getting the information from P.W.16 the Head Constable, attached to Kottar Police Station, went over to the Government Hospital, Kottar, and recorded the statement of P.W.1 at 9.30 p.m. cannot be believed. 19. Further it is highly doubtful whether P.Ws. 1 to 4 could have been present at the time of the occurrence for more reasons than one. Firstly all these witnesses cannot give a consistent narration as to the overt acts attributed. Secondly, P.W.1 would say that the deceased Nesamony was taken to private hospital and then to the Government Hospital, Kulachal, and thereafter, to the Government Hospital at Nagercoil. But the other witness have statement that he was directly taken to Nagerocil Government Hospital. Thirdly, as far as the time of occurrence is concerned, as rightly pointed out by the learned Senior Counsel for the appellants, the same is highly doubtful. But the other witness have statement that he was directly taken to Nagerocil Government Hospital. Thirdly, as far as the time of occurrence is concerned, as rightly pointed out by the learned Senior Counsel for the appellants, the same is highly doubtful. P.W.1 was very certain in her evidence that her husband, the deceased Nesamony, took lunch at about 12.00 or 12.30 p.m. and thereafter, he did not take any food; but, he had partly taken coffee at the time of the occurrence. P.W.13 the postmortem Doctor, has not only given a certificate, but also deposed before the Court that semi digested food particles were found in his stomach, and he should have taken food 1 or 2 hours prior to the occurrence. If to be so, the prosecution theory that the occurrence has taken place at 6.00 p.m. cannot be believed. This would also be indicative of the doubt whether P.Ws. 1 to 4 could have seen the occurrence at all. 20. Apart from the above, in the instant case, out of the witness who have been examined regarding the damages, namely P.Ws. 6 to 10, P.W.6 has turned hostile. All these witnesses have spoken to the fact that they have given independent complaints but, no complaint was forthcoming before the Court below, and what was the motive for the accused to enter into the different houses or different shops and damage the materials remained unknown. The investigation in that regard was not done properly. The same is quite evident because according to the prosecution, there was enmity between A-5 and Nesamony who raised objections in that regard. It is not the case of the prosecution anywhere in the entire case papers that either P.Ws.6 to 9 or P.W.10 raised objections regarding the sale of Aristam by A-5. Under the circumstances, the investigation in that regard has not been conducted at all. But, witnesses have been added to show that there were damages. But, no motive is shown. Further, the complaints alleged to have been given by them, have not seen the light of the day. While it is doubtful whether the first information before the Court was the information, and whether P.Ws. But, witnesses have been added to show that there were damages. But, no motive is shown. Further, the complaints alleged to have been given by them, have not seen the light of the day. While it is doubtful whether the first information before the Court was the information, and whether P.Ws. 1 to 4 could have seen the occurrence, and whether the time of occurrence was correct as put forth by the prosecution, this court is of the considered opinion that finding the appellants guilty would be unsafe to sustain a conviction. Hence, the judgments of the trial Courts have got to be set aside, and they are entitled for acquittal. 21. In the result, both the criminal appeals are allowed, setting aside the judgements of the Courts below. The appellants in both the appeals are acquitted of the charges levelled against them. The bail bonds executed by them, shall be terminated. The fine amounts if any paid by the appellants, will be refunded to them.