Judgment :- M. Chockalingam, J. Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.4, Periyakulam dated 28.11.2007 made in S.C.No.163/2006 whereby the appellants 7 in number were found guilty for the offences under Sections 120(b), 302 r/w 149, 402 and 398 r/w 149 of the I.P.C. and each of them were awarded life imprisonment and fine of Rs.5,000/- in default to pay, six months rigorous imprisonment for the offence under Section 120(b) IPC; life imprisonment and fine of Rs.5,000/- in default to pay, six months rigorous imprisonment for the offence under Section 302 r/w 149 IPC; 7 years rigorous imprisonment and fine of Rs.2,000/-in default to pay, three months rigorous imprisonment; and seven years rigorous imprisonment for the offence under Sections 398 r/w 149 IPC. The sentence was directed to run concurrently. 2. The short facts that are necessary for the disposal of the appeal can be stated as follows: (i) PW.2 is the wife of Seenipandi, since deceased in the incident. He was employed as a watchman in a Co-operative Bank at Kadirnarasingapuram. PW.1 was working as its Secretary. While PWs.6, 7, 8, 11 and 12 were also working in different capacities in the bank. They had 342 sovereign gold jewels in the locker and out of the two locker keys, PW.1 and PW.11 had each key. The residential house of the deceased was situated just 100 metres away from the said bank. (ii) On 15.5.2006 at about 9.00 p.m. Seenipandi after his dinner, proceeded to the bank. At about 12.30 p.m,(midnight), PW.2 came outside to feed cattle. At that time, she heard a noise break opening of the bank. Immediately, she rushed over there and found two persons standing inside the bank and three persons standing outside the bank and she found her husband in a pool of blood. PW.3 and PW.4 came over there and PW.4 informed to PW.12 and in turn, he informed to others. (iii) Immediately, PW.1 proceeded to the respondent police station and gave a complaint Ex.P.1 and on the strength of the complaint Ex.P.1, PW.21 Head Constable registered a case in Crime No.77/2006 under Sections 302, 457, 511 IPC on 16.5.2006 at 2.00 a.m.,. F.I.R. Ex.P.22 was sent to the Court through Head Constable PW.19. (iii) Immediately, PW.1 proceeded to the respondent police station and gave a complaint Ex.P.1 and on the strength of the complaint Ex.P.1, PW.21 Head Constable registered a case in Crime No.77/2006 under Sections 302, 457, 511 IPC on 16.5.2006 at 2.00 a.m.,. F.I.R. Ex.P.22 was sent to the Court through Head Constable PW.19. (iv) On receipt of the copy of the F.I.R, PW.23, Inspector of Police took up investigation on 16.5.2006 at 2.45 a.m., and proceeded to the spot and made an inspection in the presence of witnesses. He prepared an Observation Mahazar Ex.P.27 in the presence of V.A.O. and also prepared a rough Sketch Ex.P.28 and following the same, he recovered Material Objects available from the place of occurrence. He conducted inquest over the dead body of the deceased in the presence of panchayatdars and prepared an Inquest Report Ex.P.29. (v) The dead body of the deceased was subjected to post-mortem by Doctor PW.10. Ex.P.3 was the post-mortem certificate issued by her wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to injury to vital organ brain - due to injury No.1 about 1012 hours prior to autopsy. (vi) Pending investigation, PW.23 Inspector of Police arrested the fourth accused in the presence of V.A.O PW.13 and the fourth accused gave a confessional statement and the admissible part of the confessional statements were marked as Exs.P.25 and P.30 and Material Objects were recovered. On 30.5.2006, A.2 surrendered before the Judicial Magistrate No.6, Madurai. On 31.5.2006 A.1 and A.3 were arrested in the presence of V.A.O PW.13. On 5.6.2006, A.2 surrendered before the Judicial Magistrate, Andipatti and he was taken into police custody. Pursuant to the confessional statement of A.1, the other accused were arrested and remanded for judicial custody. A requisition was forwarded to conduct identification parade. Accordingly, PW.22, Judicial Magistrate, conducted identification parade in the Central Prison, Madurai. PW.2 and PW.17 were taken to identify the accused. PW.2 could not identify any one. PW.17 identified A.3 and A.4 in the identification parade. The report of the Identification Parade was marked as Ex.P.24. Materials Objects recovered from the place of occurrence and from the dead body and also weapons which were recovered, were sent for chemical analysis, which resulted in two reports viz., Chemical Analysis Report Ex.P.19 and Serological Report Ex.P.35. PW.17 identified A.3 and A.4 in the identification parade. The report of the Identification Parade was marked as Ex.P.24. Materials Objects recovered from the place of occurrence and from the dead body and also weapons which were recovered, were sent for chemical analysis, which resulted in two reports viz., Chemical Analysis Report Ex.P.19 and Serological Report Ex.P.35. (vii) On completion of the investigation, the investigator filed a final report against all the accused for the offence punishable under Sections 302, 120(b), 402, 398 r/w 149 of the IPC. The case was committed to the Court of Sessions and necessary charges were framed against the accused/appellants. 3. In order to substantiate the charges levelled against the accused, the prosecution examined 23 witnesses and relied on 36 Exhibits and 17 MOs. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances found in the evidence of the prosecution witnesses, which was denied on the part of the accused. No defence witness was examined. The trial Court after hearing the arguments advanced by either side and on considering the materials available on record, took the view that the prosecution has proved its case beyond reasonable doubts and found the accused guilty as per the charges and awarded punishments as referred to above, which is the subject matter of challenge before this Court. 4. Advancing his arguments on behalf of the appellants, the learned counsel appearing for the appellants, would submit as follows:- (i) The entire case commenced with the theory of conspiracy hatched among the accused 1 to 7, who are the appellants before this Court. It is the case of the prosecution that no one witness was placed pointing to the alleged conspiracy. Though the prosecution miserably failed, the trial Court has found the charges proved and hence, the judgment of the trial Court has got to be set aside. (ii) Insofar as the attempt to commit robbery and also murder, the prosecution has rElied on the evidence of PW.2, wife of the deceased and also PWs.1, 6, 7, 8, 11 and 12 apart from PW.3 and PW.5. Out of the said witnesses, from the evidence of PW.2, it would be quite clear that she raised alarm and only thereafter all the witnesses 3, 4, 5 arrived there. Out of the said witnesses, from the evidence of PW.2, it would be quite clear that she raised alarm and only thereafter all the witnesses 3, 4, 5 arrived there. It is not the case of PWs.3, 4, and 5 that they witnessed the occurrence. Thus, the evidence of PWs.3, 4 and 5 was not useful to the prosecution case. Equally, it was PW.4 who have intimation to the bank officials and other witnesses viz., PWs.1, 6, 7, 8, 11 and 12 gathered there after some time. Thus, they were not competent to speak about the incident either attempt of dacoity or the crime of murder. Hence, their evidence should have been eschewed. (iii) Added further the learned counsel that, the entire case rests upon the evidence of PW.2. According to PW.2, she was actually sleeping in the house, which was situated 100 metres away from the bank. At the time of occurrence, she came out to feed the cattle and she could see the broke opening of the bank on the road side where three persons were standing outside the bank and two persons were standing inside the bank and light was there. If to be so, at the time of identification parade, she should have identified at least any one. She has categorically stated before the Court she could not identify any body. Hence, the evidence of PW.2 cannot be relied on at all. (vi) Added further the learned counsel that in the instant case, finger prints were taken. When compared, it did not contain the finger prints of any of the accused. The investigating officer categorically admitted this fact. Under the circumstances, it was not produced before the Court. (v) In the instant case, the case of the prosecution is that a bunch of keys of the bank was found below the pillow of the deceased. If to be so, the accused could have used for the purpose of opening the bank but did not do so. Hence, the preparation of dacoity had to be rejected by the prosecution cannot be denied. (vi) Added further in the instant case, the VAO, PW.13 was examined for the alleged arrest, confession and recovery. He has categorically admitted that the confessional statements of A.1 and A.2 were prepared in the Police Station. Insofar as the other accused are concerned, he did not know where it was actually prepared. (vi) Added further in the instant case, the VAO, PW.13 was examined for the alleged arrest, confession and recovery. He has categorically admitted that the confessional statements of A.1 and A.2 were prepared in the Police Station. Insofar as the other accused are concerned, he did not know where it was actually prepared. (vii) All those alleged material objects were only recovered from A.2. (viii) All these would go to show that the alleged arrest, confession and recovery were all false. Hence, the prosecution has miserably failed to prove its case beyond reasonable doubts. The accused are entitled for acquittal in the hands of this Court. 5. The Court heard the learned Additional Public Prosecutor on the above contention. The Court paid its utmost attention to the submissions and made a thorough scrutiny on the entire materials available on record. 6. It is not in controversy that the dead body of one Seenipandi in the premises of Co-operative Bank in Narasingapuram was found and following the inquest, the dead body was subjected to postmortem by a Doctor PW.10. She has categorically admitted in Ex.P.3 Post-Mortem Certificate that the deceased died out of shock and haemorrhage due to injuries sustained. Insofar as this aspect is concerned, the Court has no impediment to record so. 7. Insofar as the theory of conspiracy, as rightly pointed out by the learned counsel for the appellants, a scrutiny of the materials placed before the Court did not indicate any where that the prosecution has any evidence. It is needless to say that, in order to prove the theory of conspiracy, the prosecution need not only adduce direct evidence, even it could be inferable. The conspiracy, which is put-forth by the prosecution should be inferable from the circumstances placed and proved before the Court. In the instant case, in the considered opinion of the Court, the theory of conspiracy put-forth before the trial Court was neither proved by the direct evidence nor by the circumstantial evidence from which it could be inferred. 8. In the instant case, PW.2 was the only eye-witness. According to PW.2, her husband left for the bank at 9.00 p.m. and that she was sleeping in her house. At about 12.30 p.m.(mid-night), she came outside to feed the cattle. It is quite unnatural as put-forth by the learned counsel for the petitioner. 8. In the instant case, PW.2 was the only eye-witness. According to PW.2, her husband left for the bank at 9.00 p.m. and that she was sleeping in her house. At about 12.30 p.m.(mid-night), she came outside to feed the cattle. It is quite unnatural as put-forth by the learned counsel for the petitioner. Even assuming that if she came out of the house at 12.30 p.m.,(mid-night), the noise of break opening of the Bank could not be heard since her house was situated 100 metres away from the Bank. According to her, after hearing the noise, she made an alarm over the incident and she found three persons standing outside and two persons standing inside the bank and all the five were immediately returned. In the instant case, an identification parade had taken place after arrest of the accused. According to the evidence of PW.22, Judicial Magistrate, PW.2 could not identify any of the assailants that would be sufficient to reject her evidence. Relying on the evidence of PW.2, the Court cannot found guilty or sustain the conviction. 9. As rightly pointed out by the learned counsel for the appellants, finger prints taken out did not tally with that of any of the accused. The Investigating Officer has categorically admitted that they did not tally with that of any of accused but it tallied with that of PW.11, who was a bank employee. Thus, the theory of preparation for break opening of lock of the bank would negative the case of the prosecution. 10. Thus, the prosecution has miserably failed to prove conspiracy theory or any part of other charges levelled against them. The lower Court had taken an erroneous view in coming to the conclusion that the prosecution has proved its case beyond reasonable doubts. Hence, the judgment of the lower Court is set aside and the accused/appellants are acquitted of all the charges leveled against them. This Criminal Appeal is allowed. It is reported that the appellant Nos.1 and 6 i.e. A.1 and A.6 are in jail and the appellant Nos.4 and 5 i.e. A.4 and A.5 are in Borstal School. Hence, they are directed to be released forthwith unless their presence is required in connection with any other case. Fine amount, if any, was paid by the appellants, the same should be refunded to them. Hence, they are directed to be released forthwith unless their presence is required in connection with any other case. Fine amount, if any, was paid by the appellants, the same should be refunded to them. Bail bonds executed by the appellants in the case shall stand cancelled.