JUDGMENT S. NAGAMUTHU, J. 1. The appellants in Criminal Appeal (MD) No. 610 of 2005 are accused Nos. 1 and 3 and the appellant in Criminal Appeal (MD) No. 135 of 2006 is the second accused in S.C. No. 622 of 2004, on the file of the learned Additional District and Sessions Judge, Fast Track Court No. I, Madurai. Altogether, there were four accused in this case including these appellants. By judgment dated 24.10.2005, the trial Court convicted all the four accused under Section 302 read with 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each, in default to undergo rigorous imprisonment for six months. Challenging the same, the appellants, who are accused Nos. 1 to 3, have come up with these two appeals. 2. The fourth accused Kutty Rowdi @ Selvam filed Criminal Criminal Appeal (MD) No. 226 of 2006 before this Court, challenging the conviction and sentence imposed on him. The said appeal has been dismissed by this Court as abated, as he died during the pendency of the appeal. Thus, now, before this Court, these two appeals in Criminal Appeal (MD) Nos. 610 of 2005 and 135 of 2006 are available for disposal. 3. The case of the prosecution, in brief, is as follows: The deceased, in this case, was one Mr.Ramachandran. P.W.1 is the brother of the deceased. On 13.7.2003, the deceased had gone to a wine shop known as “Roja Wine Shop”. P.W.2 was also in the wine shop taking liquor. Around 10.30 p.m., when the deceased was inside the bar of the wine shop, four persons (later on identified to be these four accused) came to the spot, all armed with aruvals. They attacked the deceased indiscriminately. He sustained injury and fell down. P.Ws.1 and 5 went to the place of occurrence and shifted the deceased to the hospital. When he was brought to Madurai Medical College, Madurai, the doctor on duty, after examining him, declared him as dead. P.Ws.1 and 5 were waiting outside the hospital. 3.1. On receiving intimation from the hospital authorities, P.W.32, Mr. Jayaraman, the then Sub Inspector of Police, attached to Karimedu Police Station, proceeded to the hospital and recorded the statement of P.W.1. Exhibit P-1 is the said statement. P.Ws.1 and 5 were waiting outside the hospital. 3.1. On receiving intimation from the hospital authorities, P.W.32, Mr. Jayaraman, the then Sub Inspector of Police, attached to Karimedu Police Station, proceeded to the hospital and recorded the statement of P.W.1. Exhibit P-1 is the said statement. On returning to the police station, he registered a case in Crime No. 873 of 2003, under Section 302 of the Indian Penal Code at 24 hours. Exhibit P-17 is the First information Report. He forwarded the First Information Report and the complaint to the Court and handed over the case diary to the Inspector of Police for investigation. 3.2. P.W.33 was the then Inspector of Police attached to Karimedu Police Station. Taking up the case for investigation, he proceeded to the place of occurrence at 00.45 hours, on 14.7.2003. In the presence of two witnesses, he prepared an observation mahazar and a rough sketch. He also recovered the broken bottles, bloodstained earth and sample earth from the place of occurrence under Exhibit P-3-mahazar, in the presence of P.W.12 and another witness. Then, he conducted inquest on the body of the deceased. Exhibit P-19 is the inquest report. He examined P.Ws.1 to 7 and recorded their statements. Then, he examined P.Ws.8 and 9 in respect of the earlier occurrence, which was the motive for the present occurrence. Then, he examined few more witnesses in respect of the previous occurrence. On 15.7.2003, at 3.00 p.m., he arrested the first accused at Kochadai Muthaiah Temple. On such arrest, he gave a voluntary confession. In pursuance of the same, he produced an aruval (M.O.5) from Vaigai Kamarajar bridge. The same was recovered under Exhibit P-5-mahazar. On 17.7.2003, at 8. a.m., he arrested the second and third accused in the presence of P.W.19 and another witness. They also gave voluntary confessions. They were reduced into writing separately by P.W.33 in the presence of the witnesses. In pursuance of the said confession statement, the second accused produced a bloodstained shirt (M.O.9) and the same was recovered in the presence of witnesses under Exhibit P-20-mahazar. At 10.30 a.m., he produced M.O.6 and M.O.7 from Madurai Koodalpudur Kanmoi. On returning to the police station, he forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. The fourth accused surrendered before the Court concerned. At 10.30 a.m., he produced M.O.6 and M.O.7 from Madurai Koodalpudur Kanmoi. On returning to the police station, he forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. The fourth accused surrendered before the Court concerned. On 25.7.2003, at 12.30 p.m., he took custody of the fourth accused, on the orders of the learned Judicial Magistrate No.5, Madurai. While in custody, accused No.4 gave a voluntary confession. In pursuance of the same, he produced an aruval (M.O.10) from Pallavan Nagar. P.W.33 recovered the same under Exhibit P-22-mahazar. Then, he returned to the police station along with the accused and forwarded the accused to the Court for judicial remand. On 30.7.2003, he made a request for identification parade. On 1.8.2003, the learned Judicial Magistrate conducted identification parade, in which, P.Ws.3 and 4 participated. In the said identification parade, P.W.3 identified Accused No. 1 and Accused No. 4 alone. He was not able to identify the rest of the accused. Similarly, P.W.4 identified Accused No. 3 and Accused No. 4. Continuing the investigation, P.W.33 made a request to the Court for sending the material objects for chemical examination. Exhibit P-10 is the chemical analyst report and Exhibit P-11 is the serology report. On completing the investigation, P.W.33 laid charge sheet against all the four accused. 4. Based on the above materials, the trial Court framed a lone charge against all the accused under Section 302 read with 34 of the Indian Penal Code. The accused denied the same as false and, therefore, they were put on trial. The trial Court examined as many as 33 witnesses on the side of the prosecution and 25 documents were marked, besides 11 material objects. 5. Out of the above stated witnesses, P.Ws.2, 3 and 4 are the eye witnesses. They have spoken to about the occurrence and they also identified all the four accused before the Court. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, the accused denied the same as false. They did not choose to examine any witness on their side. However, two documents were marked on their side. 6. Having considered the above, the trial Court found all the four accused guilty under Section 302 read with 34 of the Indian Penal Code and accordingly, punished them. They did not choose to examine any witness on their side. However, two documents were marked on their side. 6. Having considered the above, the trial Court found all the four accused guilty under Section 302 read with 34 of the Indian Penal Code and accordingly, punished them. That is how, these appeals are before this Court, at the instance of accused Nos. 1 to 3. 7. We have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor and perused the records carefully. 8. As we have already pointed out, in respect of the motive, there is enormous evidence. Admittedly, there was enmity between the accused party and the deceased party. To this extent, in our considered opinion, the prosecution has proved the motive. But, coming to the actual occurrence, the prosecution relies only on the evidences of P.Ws.2 to 4. P.Ws.2 to 4 claim to be the eye witnesses. But, the learned counsel for the appellants would submit that these three witnesses would not have been present at the time of occurrence at all and their evidences cannot be used against the accused to sustain the conviction. 9. We have considered the above rival submissions. 10. A perusal of the evidences of P.Ws.3 and 4 would go to show that they have stated they were employed in the Wine Shop, where the occurrence had taken place. Even in chief-examination, they have stated that they found four people entering into the Wine Shop and all the four assailants attacked the deceased indiscriminately. They have identified all the four accused in Court as the assailants. Of course, in the identification parade, some of the accused have been identified by them. Exhibit D-1 is the statement recorded under Section 164 of the Code of Criminal Procedure from P.W.4 and Exhibit D-2 is the statement recorded under Section 164 of the Code of Criminal Procedure from P.W.3. In both statements, they have categorically stated that they did not see the occurrence at all. They have stated that they were in a different portion of the wine shop and on hearing the noise, they rushed towards the place of occurrence. They have further stated that when they arrived at the place of occurrence, they found the deceased lying in a pool of blood and they did not see the assailants. They have stated that they were in a different portion of the wine shop and on hearing the noise, they rushed towards the place of occurrence. They have further stated that when they arrived at the place of occurrence, they found the deceased lying in a pool of blood and they did not see the assailants. These two statements have been duly used by the defence for contradicting P.Ws.3 and 4. There is no explanation at all by P.Ws.3 and 4 in respect of these contradictions. Thus, the material contradiction goes to the very root of the case of the prosecution. Therefore, in our considered opinion, the evidences of P.Ws.3 and 4 cannot be believed. Therefore, on the basis of the evidences of P.Ws.3 and 4, it cannot be safely held that the assailants were these accused. As per the earlier statement, they did not see the assailants at all. 11. Now, coming to the evidence of P.W.2, according to him, he saw the occurrence and immediately, rushed to the house of P.W.1. He has further stated that he knew all the four accused. He has stated in chief-examination, itself that it was the first accused, who cut on the head of the deceased and others cut him indiscriminately. He has specifically stated that he mentioned the name of the first accused to P.W.1. It is, after this information, P.Ws.1 and 5 had again gone to the place of occurrence and then, to the hospital. When they were waiting in the hospital, the Sub-Inspector of Police came to the hospital, on intimation from the hospital authorities and recorded the complaint from P.W.1. Had it been true that P.W.2 knew the identity of the assailants, and had he informed the same to P.W.1, certainly, in Exhibit P-1, the names of these four accused should have been mentioned. But, a perusal of Exhibit P.1 would go to show that he has only stated that the assailants are identifiable persons, but their names are not known. This would clearly go to show that P.W.2 would not have witnessed the occurrence at all. We have got every reason to believe that P.W.2 has been planted as an eye witness by the prosecution. 12. If the evidences of P.Ws.2, 3 and 4 are rendered unbelievable, there is no other evidence available on record to hold these accused guilty. This would clearly go to show that P.W.2 would not have witnessed the occurrence at all. We have got every reason to believe that P.W.2 has been planted as an eye witness by the prosecution. 12. If the evidences of P.Ws.2, 3 and 4 are rendered unbelievable, there is no other evidence available on record to hold these accused guilty. In such view of the matter, we do not find any material at all to sustain the conviction. Thus, the conviction and sentence imposed on the appellants are liable to be set aside. 13. In the result, the appeals are allowed. The conviction and sentence imposed on the appellants/accused 1 to 3, by the learned Additional District and Sessions Judge-cum-Fast Track Court No. I, Madurai, made in S.C. No. 622 of 2004, for the offence under Section 302 read with 34 of the Indian Penal Code, are set aside and they are acquitted of the said charge. Bail bond executed by the appellants shall stand discharged. Appeals allowed.