Judgment :- K.N. Bahsa, J. 1. The Appellants viz., A1 preferred Crl.A.No.308 of 2005, A2 preferred Crl.A.No.807 of 2002, A3 preferred Crl.A.No.1854 of 2003 and A4 preferred Crl.A.No.1356 of 2002. 2. A2 died during the pendency of his Appeal on the file of this Court and as such the said Appeal viz., Crl.A.No.807 of 2002 preferred by A2 has been abated as per the orders passed by this Court. Therefore, the Appeals preferred by A1, A3 & A4 are pending as on date and they have come forward with the said Appeals challenging their conviction and sentence passed by the learned Principal Sessions Judge, Dindigul by the judgment dated 24.04.2002 made in S.C. No.110 of 2001, convicting all the Appellants/Accused under Section 364, IPC and sentencing each of them to undergo two years RI with a fine of Rs. 200/-, in default to undergo six months’ RI, convicting A1 under Section 302, IPC and A2 to A4 under Section 302 r/w 34, IPC and sentencing each of them to undergo life imprisonment with a fine of Rs.1,000/- in default to undergo six months’ RI and also convicting all the Appellants/Accused under Section 201, IPC and sentencing each of them to undergo two years’ RI with a fine of Rs. 200/-, in default to undergo six months’ RI. The sentences are ordered to run concurrently. 3. The Accused faced the trial under the following backdrop: (a) The deceased-Krishnan, P.Ws.1 & 2 and A1 are friends. On 24.09.2000 at 9.30 a.m. PW1 was chatting with his friend PW2. At that time A1 to A4 came along with deceased. They have also called PW1 and the deceased for panchayat, but PW1 stated that he is having other work and as such he would come after some time. They have called them to go to Sababathi garden. Thereafter, A1 gave money to A2 to get brandy bottle. A1 left from that place along with A3 and deceased in a TVS two wheeler towards south side. A2 & A4 after getting money from A1 left towards western side. PWs.1 & 2 returned to their house. Thereafter, PWs.1 & 2 went near the banyan tree at 4.00 p.m. and from there, they went to Sababathi garden. PW1 was standing near a motor pump room. The deceased and A1 were quarrelling with each other in respect of the money transaction. PWs.1 & 2 returned to their house. Thereafter, PWs.1 & 2 went near the banyan tree at 4.00 p.m. and from there, they went to Sababathi garden. PW1 was standing near a motor pump room. The deceased and A1 were quarrelling with each other in respect of the money transaction. On hearing the shouting, watchman one Subramani, milkman one Arumugam and PWs.1 & 2 rushed to the scene. Due to the wordy quarrel the deceased pulled the shirt of A1. A1 immediately took out aruval from his back and cut the deceased on his neck. A1 also instigated the other Accused to cut the deceased. A2 cut the deceased again on his neck with his knife. The deceased fell down. A3 & A4 cut the deceased with knives repeatedly on his stomach and chest. The deceased died on the spot. At that time, one Manimekalai was also present at the scene. PWs.1 & 2 have frightened and left for their house. (b). PW8, wife of the deceased stated that on 24.09.2000 at 9.00 a.m. A1 to A4 came and called the deceased for panchayat and the deceased accompanied with them. As the deceased not returned 3, 4 days, PW8 enquired about the deceased in the house of the Accused. The parents of the Accused stated that they are also searching for their son. Thereafter, on 30.09.2000 PW8 along with PW10 went to Palani Town Police Station and gave a report to PW18. (c) The Head Constable, PW18 recorded the statement under Ex.P1 from PW8 on 30.09.2000 at 2.00 p.m. He registered the case in Crime No. 936 of 2000 for man missing and placed for perusal of PW21, Sub-Inspector of Police. Ex.P23 is the FIR. (d) PW21, Sub-Inspector of Police took up the investigation and went to scene of occurrence at 3.00 p.m. on 30.09.2000. He prepared the Observation Mahazar and also Rough Sketch-Ex.P26. He has examined PW2 and others. PW21 searched for the deceased and the Accused. At that time he was informed by PW22 that a case was registered for the offence under Sections 302 and 201, IPC. He handed over the records to PW22. (e) PW7, Auto Driver stated that on 11.10.2000 at 3.00 p.m. A4 came to Palani Bus-stand and stated that he along with A1 to A3 took the deceased and burned him at Sababathi garden. PW7 took A4 to PW11, Village Administrative Officer. He handed over the records to PW22. (e) PW7, Auto Driver stated that on 11.10.2000 at 3.00 p.m. A4 came to Palani Bus-stand and stated that he along with A1 to A3 took the deceased and burned him at Sababathi garden. PW7 took A4 to PW11, Village Administrative Officer. (f) PW7 and A4 appeared before PW11. One 11.10.2000 at 5.00 p.m. A4 stated to PW11 that he along with A1 to A3 took the deceased to Sababathi garden and burned him and thereafter absconded. A4 requested him to produce before the Police. PW11 recorded the said statement of A4 under Ex.P3 PW11 took A4 and produced before PW22, Investigating Officer at 6.30 p.m. on 11.10.2000 along with the statement of A4, Ex.P3 and his endorsement, Ex.P4. On production of A4 and on receipt of Exs.P3 & P4, PW22 altered the offence in Crime No.936 of 2000 to under Sections 302 and 201, IPC. Ex.P27 is the altered FIR. In pursuance of the admissible portion of the confession of A4 under Ex.P5, A4 identified the place of occurrence on 12.10.2000 to PW22. He has prepared the Observation Mahazar and Rough Sketch, Ex.P28 in the presence of PW11 and another. PW22 also recovered MO.2 knife at the instance of A4. (g) PW15, Tahsildar received the intimation from the Police on 11.10.2000 for exhuming the body of the deceased. He has also given a requisition under Ex.P20 to the Rajaji Government Hospital, Madurai. Thereafter, PW15 went to the scene along with medical team and A4. A4 identified the place of occurrence. At that place by digging the ground, they found bones at one feet depth. The bones have been handed over to the medical team with requisition Ex.P21 for conducting Postmortem. Ex.P22 is the Inquest Report. (h) PW19, Professor of the Forensic Science, Madurai Medical College, on receipt of requisition-Ex.P21, was present along with the medical team at the time of inquest held by the Thasildar, PW15. He has examined the bones produced by PW15. He has issued the Post-mortem Certificate-Ex.P25. He is of the opinion that the portions of burnt and brittle bones by its configuration and shape and characteristic features suggest that they belong to human, male of aged about 30 to 40 years. (i) PW22 in continuation of his investigation produced A4 before the Court for remand. He has examined the photographer on 16.10.2000. He is of the opinion that the portions of burnt and brittle bones by its configuration and shape and characteristic features suggest that they belong to human, male of aged about 30 to 40 years. (i) PW22 in continuation of his investigation produced A4 before the Court for remand. He has examined the photographer on 16.10.2000. A1 & A3 surrendered before the Magistrate Court. PW22 has taken the Police custody of A1 & A3 as per his requisition-Exs.P29 and P30 on 19.10.2000. He has recovered M.O.1, Aruval, at the instance of A1 pursuant to his admissible portion of confession. He has also recovered TVS-50 two wheeler M.O.3, at the instance of A1. At the instance of A3, he has recovered M.O.4, knife. On 08.11.2000 A2 surrendered before the Magistrate Court No.III, Trichy, He was also taken into police custody by PW22. He recovered M.O.5 knife, at the instance of A2. He has examined the Doctor PW19 and received the Post-mortem Certificate-Ex.P25. He has also received the exhumation report of the Medical Officer-Ex.P24, Chemical Examination Report, Ex.P18 and Serelogist Report Ex.P19. On completion of the investigation, he laid the charge-sheet against the Accused on 02.02.2001 for the offence under Section 302 and 201 r/w, 34 IPC. 4. The prosecution in order to substantiate its case examined PWs.1 to 22 and filed Exs.P1 to P31, besides marking M.Os.1 to 7. 5. When the Accused were questioned under Section 313 of the Criminal Procedure Code in respect of the incriminating circumstances appearing against each of them, all the Accused have come forward with the version of total denial. They have stated that they have been falsely implicated in the case. They have not examined any witnesses on their side, but marked Ex.D1 on their side. 6.0. Mr. Thirumalairaj, learned Senior Counsel appearing for A1, Mr.V.Kathirvelu, learned Senior Counsel appearing for A3 and Mr.D. Venkatesh, learned Counsel appearing for A4 would contend that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence. 6.1. The learned Senior Counsel appearing for the Appellants would submit that there is inordinate and unexplained delay in giving report to the Police as the occurrence is said to have taken place on 24.09.2000 and report Ex.P1 was given by PW8, wife of the deceased only 30.09.2000 and a case of man missing was registered on that basis. 6.1. The learned Senior Counsel appearing for the Appellants would submit that there is inordinate and unexplained delay in giving report to the Police as the occurrence is said to have taken place on 24.09.2000 and report Ex.P1 was given by PW8, wife of the deceased only 30.09.2000 and a case of man missing was registered on that basis. It is contended that though eyewitnesses PWs.1 & 2 claimed to have witnessed the occurrence, in spite of the fact that they are friends of the deceased, they have not disclosed about the occurrence to any one till their examination by the Police on 11.10.2000 and their conduct is highly unnatural raising serious doubt about their presence at the time of occurrence. It is further contended that both the eyewitnesses PWs.1 & 2 have not given any explanation for non-disclosure of the occurrence to anyone till their examination by the Police as per their categorical admission in their cross-examination and as such their evidence is unbelievable and unreliable. 6.2. It is pointed out by the learned Senior Counsel for the Appellants that the prosecution also placed reliance on the extra-judicial confession said to have been recorded from A4 by PW11. Village Administrative Officer and the oral extra-judicial confession said to have been given by A4 to PW7, Auto Driver. It is contended that both PW7, Auto Driver and PW11, Village Administrative Officer are total strangers to A4 and further PW7, Auto Driver stated in his cross-examination that the Accused are not his friend and he cannot state the reason as to why A4 had given such on oral extra-judicial confession to him. It is also contended that though PW7 claimed that he has taken A4 and produced before PW11. PW11, Village Administrative Officer, in spite of claiming that he has recorded the extra-judicial confession in writing under Ex.P3, he has not obtained any attestation from PW7. It is further contended that even as per the admitted version of PW7 and PW11, they are total strangers to A4 and as such it is highly improbable for A4 to repose confidence on PW7 and PW11 to give extra-judicial confession. 6.3. It is further contended that even as per the admitted version of PW7 and PW11, they are total strangers to A4 and as such it is highly improbable for A4 to repose confidence on PW7 and PW11 to give extra-judicial confession. 6.3. The learned Senior Counsel would submit that the alleged arrest and recovery of weapons are also unbelievable, in view of the fact that the Investigating Officer has chosen to examine only the Village Administrative Officer, PW11 to speak about the recovery and only bones have been recovered and even the said bones not confirmed to be that of the deceased and such being the position, there is no blood available for comparing he blood group found in the weapon. Therefore, it is submitted that no reliance can be placed on the recoveries of weapons said to have been made by the prosecution. 7. Per contra, the learned Additional Public Prosecutor would submit that the prosecution has proved it case by adducing clear and cogent evidence through PWs.1 & 2. It is contended that merely because PWs.1 & 2 are happened to be the friends of the deceased their evidence cannot be discarded. It is further submitted that PWs.1 & 2 have given reasonable explanation for not disclosing the occurrence to any one till their examination by the Police, as they have frightened after the occurrence. It is further contended that the prosecution has placed reliance on the extrajudicial confession given by A4 to PW7 and PW11, and there is no reason for PW7 and PW11 to implicate the Accused falsely and as such the extra-judicial confession, Ex.P3 cannot be discarded. The learned Additional Public Prosecutor would further submit that the Accused were lastly seen with the deceased as per the clear version of PW8, wife of the deceased as she has stated that only A1 to A4 came to her house and took the deceased on 24.09.2000 and thereafter the deceased not returned back to the house. Therefore, it is submitted that the prosecution has proved its case in all aspects. 8. We have given our careful and thoughtful consideration to the rival contentions put forward by either side and thoroughly scrutinized the entire evidence available on record and also perused the impugned judgment of conviction. 9. At the outset, it is to be stated that the entire prosecution case surrounded by suspicious circumstances. 8. We have given our careful and thoughtful consideration to the rival contentions put forward by either side and thoroughly scrutinized the entire evidence available on record and also perused the impugned judgment of conviction. 9. At the outset, it is to be stated that the entire prosecution case surrounded by suspicious circumstances. The undisputed fact remains that in spite of the deceased not seen after 24.09.2000, when he left from his house along with A1 to A4, the report was given only on 30.09.2000 to the Police by PW8, wife of the deceased. There is absolutely no explanation whatsoever forthcoming for such inordinate delay in giving report to the Police. It is pertinent to note that admittedly all the four Accused are friends of the deceased and PW8, wife of the deceased not whispered a word about the Accused A1 to A4 for causing the death of the deceased in the earliest document, Ex.P1 and not even a suspicion raised against he Accused. It is merely stated by PW8 in Ex.P1 that both the deceased and A1 to A4 are friends and the deceased left with them on 24.9.2000 and thereafter not returned and she has requested the Police to enquire those persons to trace the whereabouts of the deceased. It is pertinent to note at that stage only a man missing case was registered on the basis of report Ex.P1 given by PW8, wife of the deceased. 10.0. The prosecution heavily placed reliance on the evidence of the eyewitnesses PWs.1 & 2. It is the admitted version of PWs.1 & 2 that both of them are the close friends of the deceased. It is their categorical version that when A1 to A4 came along with the deceased can called them for a Panchayat, both of them stated that they would come only after some time and they have not accompanied with the deceased and A1 to A4 to the place of the occurrence viz., Sababathi garden. However, it is curious to note that they have come forward with the version that after some time, they went to Sababathi garden, but they have not given any reason for going to that place at that time. However, it is curious to note that they have come forward with the version that after some time, they went to Sababathi garden, but they have not given any reason for going to that place at that time. It is seen that PWs.1 & 2 claimed that they found A1 and the deceased were quarrelling with each other and on hearing their shouting watchman one Subramani and milkman one Arumugam also came to the scene and at that time A1 to A4 attacked the deceased. It is relevant to note that both the witnesses viz., watchman one Subramani and milkman one Arumugam have not been examined by the prosecution. It is further curious to note that PWs.1 & 2 claimed that after the occurrence, they merely left back to the house. They neither raised hue and cry nor went to rescue the deceased at the time of the alleged attack by A1 to A4. Added to all these infirmities and inconsistencies, it is seen that they have not disclosed about the occurrence to any one till their examination by the Police on 11.10.2000. PW 1 admitted in his cross-examination that he is aware about PW8 giving a report to the Police. 10.1. We have already pointed out that the report Ex.P1 was given by PW8 on 30.09.2000, but even then it is strange for PW1 to claim that he has not whispered a word about the occurrence to the wife of the deceased viz.,PW8. PW2 on the other hand stated in his cross-examination that he was not aware about PW8, wife of the deceased giving a report to the Police. It is also admitted by PW2 that he has informed about the occurrence only after ten days to the Police and till such time he has not disclosed any one about the occurrence, including to PW8, wife of the deceased or the relatives of the deceased. The fact remains that even the Investigating Officer has not come forward with any explanation as to how he has traced the so called eyewitnesses PWs.1 & 2 in this case. 10.2. The Honorable Apex Court in a catena of decisions held that the conduct of the eyewitnesses not disclosing about the occurrence to any one for a long time till their examination by the Police would destroy the credibility of the version of such eyewitnesses. 10.2. The Honorable Apex Court in a catena of decisions held that the conduct of the eyewitnesses not disclosing about the occurrence to any one for a long time till their examination by the Police would destroy the credibility of the version of such eyewitnesses. In State of Orissa v. Brahmananda Nanda, AIR 1976 SC 2488 , the Honorable Apex Court has held hereunder: “Where is a murder case the entire prosecution case depended on the evidence of a person claiming to be eyewitness and this witness did not disclose the name to the assailant for a day and half after the incident and the explanation offered for non-disclosure was unbelievable, held that such nondisclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the Accused.” 10.3. In yet another decision in Harbans Lal v. State of Punjab, 1996 SCC (Cri) 312 the Honorable Apex Court has held as under: “Thus, these two witnesses deposed about two stages of the occurrence they had seen through the window. Their evidence appears to be rather artificial. These two witnesses appear to us to be got up witnesses. They saw gruesome murder being committed with their own eyes and yet for reasons best known to them, they did not raise any alarm but their way and did not disclose about the occurrence to anyone, not only that evening but even till the third day after the occurrence. Their conduct was thus most unnatural. This creates a serious doubt about their creditworthiness.” 10.4. The principle laid down by the Honorable Apex Court in the decisions cited supra is squarely applicable to the facts of the instant case as it is seen in the decisions cited supra, the Honorable Apex Court has held in the first case that the delay of 1-1/2 days in disclosing about the occurrence and in respect of the second case, the delay of three days in disclosing about the occurrence, to the Police would definitely destroy the credibility of the version of such eyewitnesses. As far as the case on hand is concerned, it is already pointed out that the so called eyewitnesses PWs.1 & 2 have not disclosed about the occurrence about 17 days and they have not given any reason for such nondisclosure. As far as the case on hand is concerned, it is already pointed out that the so called eyewitnesses PWs.1 & 2 have not disclosed about the occurrence about 17 days and they have not given any reason for such nondisclosure. It is seen that among PWs.1 & 2, only PW1 made a feeble attempt to give some explanation to the effect that as he has been frightened, he has not disclosed the occurrence to any one till his examination by the Police, Such explanation, on the face of it, is unbelievable and unacceptable, more particularly it is categorically admitted by PW1 that he is aware about PW8 giving report to the Police on 30.09.2000 and at least he could have informed PW8 on that day. In view of these facts, we are of the considered view that the evidence of PWs.1 & 2, eyewitnesses are unreliable and untrustworthy. 11.0. The next piece of evidence relied by the prosecution is oral extra judicial confession said to have been given to PW7 by A4 and the extra judicial confession. Ex.P3 recorded by PW11, Village Administrative Officer from A4. It is pertinent to note that both PW7, Auto Driver and PW11, Village Administrative Officer are total strangers to A4. PW7 categorically admitted in his cross-examination that he is not the friend of A4 or friend of any other Accused. He has further admitted in his cross-examination that he is not aware about the reason for A4 to give such extra judicial confession to him. It is also relevant to note that PW7 admitted that he is having close acquaintance with the deceased and PW1, and if such version is true, nothing, prevented PW7 to inform PW1 immediately about the extra-judicial confession given by A4 to him. But, curiously it is claimed by PW7 that he has taken A4 and produce before PW11, Village Administrative Officer. At this juncture, it is relevant to point out that the said Village Administrative Officer, PW11 is not having jurisdiction to the scene village and he working in some other village and he has not stated that he know the Accused earlier. Further PW11 admitted in his cross-examination that he has not stated during the course of investigation by the Investigating Officer that A4 was produced by PW7 and he has also not obtained attestation of PW7 in Ex. P3, extra-judicial confession recorded from A4 by him. Further PW11 admitted in his cross-examination that he has not stated during the course of investigation by the Investigating Officer that A4 was produced by PW7 and he has also not obtained attestation of PW7 in Ex. P3, extra-judicial confession recorded from A4 by him. In view of all these admitted facts, it is highly doubtful, whether PW7 has produced A4 before PW11 at all. It is also curious to note that the said extra-judicial confession Ex.P3 runs to several pages containing minute and photographic details. Above all, as we have already pointed out, both PW7 and PW11 being total strangers to A4, it is highly improbable for A4 to repose confidence on PW7 and Pw11 to give such extra-judicial confession. 11.1. At this juncture, it is relevant to refer to a decision of the Honorable Apex Court in Jaswant Gir v. State of Punjab, 2005 (12) SCC 438 . In the said decision, the Honorable Apex Court has held hereunder: “7. The first and foremost aspect which needs to be taken note of is that PW9 is not a person who had intimate relations or friendship with the Appellant. PW9 says that he knew the Appellant “to some extent” meaning thereby that he had only acquaintance with him. In cross-examination, he stated that he did not visit his house earlier and that he met the Appellant once or twice at the bus-stand. There is no earthly reason why he should go to PW9 and confide to him as to what he had done.” 11.2. In yet another decision, the Honorable Apex Court in Jaspal Singh v. State of Punjab, AIR 1997 SC 332 : 1997 SCC (Cri) 358, has held hereunder: “15. The third contention of Mr. Sodhi viz., that it is highly improbable that Jaspal Singh (A1) would have gone to this witness along with his co-Accused to confess the guilt, is egually formidable. Chhota Singh (P.W.7) has not given any reason as to why and how Jaspal singh (A1) and other co-Accused have reposed such a confidence in him and confessed their guilt. After going through the evidence of Chhota Singh (P.W.7), we do not find it safe to hold any of the Appellants guilty in the present crime.” (emphasis added) 11.3. Chhota Singh (P.W.7) has not given any reason as to why and how Jaspal singh (A1) and other co-Accused have reposed such a confidence in him and confessed their guilt. After going through the evidence of Chhota Singh (P.W.7), we do not find it safe to hold any of the Appellants guilty in the present crime.” (emphasis added) 11.3. InRavi @ Ravichandran and another v. State, represented by Inspector of Police, Steel Plant Police Station, Salem, 2007 (1) LW (Crl.) 555, the Division Bench of this Court has held as follows: “28. But, in this case, it is found that there is not evidence to show that the Village Administrative Officer was known to A1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straight way reject the untrustworthy testimony of the Village Administrative Officer, PW9 that A1 voluntarily confessed the crime to him.” 11.4. The principle laid down by the Honorable Apex Court as well as the Division Bench of this court in the decisions cited supra is squarely applicable to the facts of the instant case as in this case also both PW7 & PW11 are total strangers to A4 and as such it is inherently improbable for A4 to repose confidence on PW7 & PW11 to give the extra-judicial confession. In view of the above said factors, we are of the considered view that it is most unsafe and hazardous to place reliance on the extra-judicial confession said to have been given by A4 to PW7 & PW11. 12. The yet another material relied by the prosecution is recovery of weapons viz., M.O.1, aruval and M.Os.2,s 4 & 5, knives at the instance of the Accused. The fact remains that the prosecution has chosen to place reliance only on the evidence of PW11, Village Administrative Officer to speak about the said recoveries and the Investigating Officer has not chosen to examine any independent witnesses to speak about the said recoveries. It is pertinent to note that in two weapon viz., knives bloodstains were found and the same were deducted as human blood, but the same was not useful to advance the case of the prosecution as in the case on hand only bones of the s deceased said to have been recovered. It is pertinent to note that in two weapon viz., knives bloodstains were found and the same were deducted as human blood, but the same was not useful to advance the case of the prosecution as in the case on hand only bones of the s deceased said to have been recovered. It is also relevant to point, out that even the prosecution miserably failed to prove that the bones are that of the deceased. Therefore, the above said recoveries not at all helpful to advance the case of the prosecution. 13. The yet another disturbing feature found in the prosecution case is the non-examination of independent witnesses. We have already pointed out that even as per the version of PW1 at the time of occurrence watchman one Subramani, milkman one Arumugam were present and both of them have been withheld by the prosecution and as such we have no hesitation to draw adverse inference against the prosecution case. 14. For the aforesaid reasons, we have come to the irresistible conclusion that the impugned judgment of conviction is unsustainable. Accordingly, the Appeals are allowed. The conviction and sentence imposed on the Appellants by the learned Principal Sessions Judge, Dindigul, by the judgment dated 26.04.2002 made in S.C. No.110 of 2001 are set aside. The Appellants/Accused are acquitted of the charges framed against them in this case. Fine amounts paid, if any, are directed to be refunded to the Appellants. Bail bonds, if any, executed by them shall stand terminated.