JUDGMENT :- R. Regupathi, J. The appellant is the first accused among the three accused in SC.No.327 of 2002 on the file of the Additional Sessions Judge-cum-Fast Track Court, Dharmapuri. The appellant was convicted under Sections 450, 302 and 201 IPC and was sentenced to undergo imprisonment for one year, life sentence and two years respectively and a fine of Rs.500/-Rs.1000/- and Rs.500/-respectively, in default to undergo three months rigourous imprisonment. A.2 and A.3 were acquitted from all the charges. The appellant, A.1, aggrieved over the conviction and sentence preferred this appeal before this Court. 2. The case of the prosecution is that the appellant and the deceased-accused by name Krishnan and the deceased by name Madhesh are brothers. There was a marriage arrangement for the sister of the appellant. Apprehending that there may be expenditure for the purpose of performing the marriage, the deceased wanted either his marriage to be performed earlier, or an amount of Rs.20,000/-must be given to him. A quarrel ensued on account of that, in which the deceased beat his parents and they were crying. The appellant and the deceased-accused Krishnan reached home and found the parents were crying. It is further alleged that the deceased was working and was living separately and was not acceding to the advice of the parents as well as the brothers. Therefore, the appellant and his family members wanted to teach him a lesson. Accordingly, on 6. 1994 both the accused armed with Iron Rod and a Thonnai (an instrument used for cooking) reached the place where the deceased was living at 11.00 p.m., and repeatedly assaulted the deceased and the deceased succumbed to the injuries. Thereafter, it was informed to the parents and after coming to know about the death of the deceased, the dead body of the deceased was shifted to the burial ground, for which, A.2 and A.3 also accompanied the appellant by carrying the body for cremation and it was cremated during the same night. It is the further case of the prosecution that the appellant on 16. 1994 i.e., 11 days after the occurrence appeared before P.W.1, the Village Administrative Officer of the Village and has confessed about the murder committed by him along with others. The VAO took the appellant to P.W.12, Sub Inspector of Police and a case has been registered and taken on file. 3. 1994 i.e., 11 days after the occurrence appeared before P.W.1, the Village Administrative Officer of the Village and has confessed about the murder committed by him along with others. The VAO took the appellant to P.W.12, Sub Inspector of Police and a case has been registered and taken on file. 3. As per the evidence of P.W.1, Village Administrative Officer, the appellant on 16. 1994 appeared before him at the time when he was in his office and has given a statement that he committed the murder of his brother, the deceased, and subsequently the dead body was burnt. Ex.P.1 is the statement. Thereafter, he took the appellant to the Police Station and handed over Ex.P.1 along with the appellant. On receipt of the complaint, Ex.P.1, on 16. 1994 at 8.00 p.m., P.W.8, Sub Inspector of Police registered a case in Crime No.305 of 1994 for an offence punishable under Sections 302, 201 IPC. Ex.P.9 is the printed FIR. P.W.8 despatched copy of the FIR to the learned Magistrate and to his superior officers. P.W.12, Inspector of Police, on receipt of copy of the FIR took up the investigation. The accused has given Ex.P.6, confession statement in the presence of witnesses and took P.W.12 to the cremation ground and identified the place where the dead body was cremated. The ashes and bone scrambles were recovered and they are M.O.3 and M.O.4 respectively. M.O.5 and M.O.6 are sample earth. P.W.12 prepared Observation Mahazar Ex.P.2 and Rough Sketch, Ex.P.13 and conducted inquest at the cremation ground and examined the witnesses present. Ex.P.14 is the Inquest Report. The Government Medical Officer was summoned to the place where the dead body was burnt on request and the ashes and scrambles of the bone were collected by the Medical Officer. Thereafter the appellant took the Inspector of Police to the residence of the co-accused A.2 and produced the iron rod and the same was recovered. P.W.12 also prepared the observation mahazar and rough sketch, Ex.P.15. The other co-accused were also arrested and in pursuance of the statement given by the deceased-accused Krishnan, weapon of offence, namely Thonnai has been recovered on production. Thereafter, the accused were remanded to judicial custody. On 16. 1994 P.W.12 has examined P.W.6, an employee of the Electricity Board to substantiate that there was power supply and the lights were burning at the time of occurrence. Thereafter, the accused were remanded to judicial custody. On 16. 1994 P.W.12 has examined P.W.6, an employee of the Electricity Board to substantiate that there was power supply and the lights were burning at the time of occurrence. Statement from the Medical officer has been recorded and material objects have been despatched to the Forensic Sciences Laboratory for the purpose of receiving the opinion from the chemical analyst. 4. P.Ws 2 to 5 were examined as eye witnesses in the case and none of them supported the case of the prosecution and therefore, they were treated as hostile witnesses. P.w.7 who was examined to speak about the shifting of the dead body to the cremation ground, also did not support the case of the prosecution and he was treated as hostile witness. P.W.9 is the Court Clerk who received the requisition from the Investigating Officer for sending the Material Objects and it was accordingly despatched to the chemical analyst. Subsequently, reports were received and Ex.P.12 series are the reports received. P.W.10 is Police Constable who delivered the copy of the First Information Report Ex.P.9 to the learned Judicial Magistrate. P.W.11 is the Head Constable who speaks about the delivery of the FIR from P.W.8 to P.W.12 and further speaks about the collection of sample of ashes and bone scrambles from the cremation ground. P.w.13, Inspector of Police, took over further investigation from P.W.12 and filed the final report on 211. 1998 against the appellant, deceased-accused Krishnan and three others for the offence punishable under Sections 302, 120B, 450 and 147 IPC. 5. The appellant and other accused were questioned under Section 313 Cr.P.C., for which they denied the commission of the offence and claimed innocence. The prosecution examined P.Ws 1 to 13, marked Exs.1 to 15 and produced material objects before the trial court to substantiate the offence. Neither oral, nor documentary evidence adduced on behalf of the accused. The learned Trial Judge, on a perusal of the oral and documentary evidence and after hearing the counsel appeared on either side, convicted the appellant as aforementioned and acquitted A.2 and A.3. The appellant aggrieved against the conviction and sentence, preferred this appeal. 6. Learned counsel for the appellant submits that the offence as put forth by the prosecution has not been substantiated. The appellant aggrieved against the conviction and sentence, preferred this appeal. 6. Learned counsel for the appellant submits that the offence as put forth by the prosecution has not been substantiated. At the first instance, it is submitted that the eye witnesses for the commission of the offence are P.Ws 2 to 5 and P.W.7 has been examined for the purpose of substantiating that the dead body was shifted from the scene of occurrence to the burial ground. All these witnesses are important witnesses put forth by the prosecution to substantiate the motive as well as the commission of the offence and shifting of the dead body to the burial ground. But, none of these witnesses supported the version of the prosecution and under such circumstances, when the other witnesses are formal and official witnesses, their evidence is only of supportive in nature and based on their evidence, since there is no material to connect the appellant with the crime, the offence is not substantiated and the accused is entitled for acquittal. 7. It is further contended by the learned counsel for the appellant that the extra judicial confession allegedly given to P.W.1, Village Administrative Officer was given after 11 days and till then none of these witnesses divulged anything about the occurrence to the police. It is submitted that the Village Administrative Officer did not follow the procedure prescribed in the Village Administrative Officers Manual. P.W.1, VAO, on receipt of the statement from the accused person should have prepared a report by himself and on verification of the commission of the offence, should have taken the accused to the Police Station. But, in the case on hand, it is the evidence of P.W.1 that simply he has recorded Ex.P.1 statement and handed over Ex.P.1 and the appellant to the Police Officer. Under such circumstances, the very appearance of the appellant before the VAO is highly unacceptable and Ex.P.1 itself would have been created at the Police Station with the assistance of P.W.1, VAO. It is submitted that the alleged eye witnesses and material evidence were examined only after 11 days and till then nothing was divulged to the police. Under such circumstances, the evidence of the eye witnesses cannot be taken as true even if they positively speak to implicate the accused in the case. It is submitted that the alleged eye witnesses and material evidence were examined only after 11 days and till then nothing was divulged to the police. Under such circumstances, the evidence of the eye witnesses cannot be taken as true even if they positively speak to implicate the accused in the case. Strangely, in the case on hand, all the eye witnesses did not even support the case of the prosecution and therefore they have been treated as hostile. It is further submitted that even the identity of the body is in question since even after examination of the bone scrambles, the report received is also is of no use to substantiate the case of the prosecution, at least to fix up the identity of the deceased. Therefore, it is submitted that the conviction and sentence imposed against the appellant is erroneous and it is submitted that the accused is entitled for acquittal. 8. Per contra, the learned Additional Public Prosecutor submits that though all the eye witnesses 2 to 5 turned hostile, the evidence of P.W.2 can be looked into for the purpose of substantiating the case of the prosecution. In the Chief Examination, it has been stated that the appellant armed with Axe initially caused injury and subsequently with knife and severed the head of the deceased with the knife. The deceased-accused Krishnan also caused injury on the deceased. Since the accused threatened P.W.2 he did not inform the same to the police. Though he has been treated as hostile, the substratum of the prosecution story has been spoken to by him as to the weapon of offence used and only the overt act is wrongly stated. The examination of this witness in the court after 10 years must be taken into account. The occurrence took place during 1994 and P.W.2 was examined on 8. 2005. It is further submitted that the evidence of P.w.1, VAO, must be taken as a corroborative piece of material. It is his evidence that the accused voluntarily surrendered before him and has given Ex.P.1 statement and given extra judicial confession implicating himself and other accused for guilty of the offence. The evidence of P.Ws 1 and 2 corroborate with each other and if the other official witnesses are taken up together, the offence against the appellant is proved beyond reasonable doubt. 9. The evidence of P.Ws 1 and 2 corroborate with each other and if the other official witnesses are taken up together, the offence against the appellant is proved beyond reasonable doubt. 9. We have perused the materials available on record and carefully considered the rival submissions advanced by either side. 10. This is a peculiar case where none of the eye witnesses viz., P.Ws 2 to 5 and P.W.7 who speak about the shifting of the dead body to the cremation ground supported the case of the prosecution. Though the learned Additional Public Prosecutor invited the Court to look into the evidence of P.W.2 and made persuasive submissions that the evidence of P.W.2 could be relied inspite of the reason that he has been treated hostile since he has spoken about the commission of the offence by the appellant and other accused, but, on a careful scrutiny of the evidence of P.W.2, we find that the version given by him in his evidence is totally different from the version of charges levelled against the appellant. The weapon of offence is also different. As per the charge, it is stated that the appellant alleged to have caused injury with an iron rod. But, P.W.2 has stated that the appellant has used an Axe and subsequently a Knife. The overt acts attributed also differ from the allegations made as per the charges. 11. Moreover, P.W.2 is a neighbour who is alleged to have witnessed the occurrence, kept quiet without divulging the same for about 11 days. Not only P.W.2, the other witnesses also did not divulge anything about the occurrence. It is stated by P.W.2 that he did not do so on account of threat from the accused. The delay in the examination of P.W.2, coupled with the fact of contradictory versions, we are of the considered view that it is impossible to place any reliance upon the testimony of P.W.2. If the evidence of P.W.2 is disbelieved as untrustworthy, then the only material which is left out is the evidence of P.W.1, Village Administrative Officer. A Village Administrative Officer is supposed to strictly follow the procedures which are adumbrated in the Manual for the Village Administrative Officers. On a careful perusal of his evidence, it appears that he simply recorded the extra judicial confession and handed over the accused to the police officer. A Village Administrative Officer is supposed to strictly follow the procedures which are adumbrated in the Manual for the Village Administrative Officers. On a careful perusal of his evidence, it appears that he simply recorded the extra judicial confession and handed over the accused to the police officer. It appears that the same has been done for the purpose of creating an extra judicial confession with the VAO and therefore his evidence suffers from infirmities and this material cannot be taken as corroborative material along with the evidence of P.W.2. Unfortunately, all the eye witnesses who were examined have turned hostile and a similar situation has been taken into account for consideration in the decision in State of Orissa Vs. Brahmananda, reported in 1976 Crl.L.J., 1985, wherein the Honble Supreme Court has held as follows:- "...The murders were committed in the night of 13th June, 1969 and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name o the respondent as the assailant earlier than 15th June 1969 on account of fear of the respondent. There could be no question of any far from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on 4th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the morning of 1tth June, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are in our opinion, valid and cogent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case." 12. After examination of the bone scrambles recovered from the cremation ground, a report in Ex.P.12 has been received in which opinion has been given which reads as follows:- "We examined the above item for origin, but it was found to be disintegrated" 13. Even the opinion given is not definite as to whether the bone scrambles collected belongs to a human being, much less, about the deceased. The other witnesses are official witnesses and they do not improve the case of the prosecution any more. Therefore, we are of the considered opinion that it is not a fit case for conviction against the appellant. Therefore, the conviction and sentence passed by the Trial Court are set aside and the accused is acquitted from all the charges. The bail bond executed by the appellant shall stand cancelled. The fine amounts paid are directed to be refunded to the appellant. 14. In the result, the Criminal Appeal is allowed setting aside the judgment dated 11. 2005 made in S.C.No.327 of 2002 by the learned Additional Sessions Judge-cum-Fast Track Court, Dharmapuri.