Judgment : P.N. Prakash, J. 1. The two accused, who have been convicted under Section 302 read with 34 IPC and sentenced to undergo imprisonment for life with fine of Rs.500/-each, in default to undergo two years Rigorous Imprisonment by the District and Sessions Court, Nagapattinam in S.C.No.139/2010 on 10.04.2013 are the appellants before us. 2. The prosecution case is that, Kumar [A1], who is the son of Murugaian [A2], had lent Rs.5,000/- as loan to the deceased Pilavendran. The accused were asking Pilavendran to return the loan, but of no avail. After attending the function in the village Church on 20.05.2010, Pilavendran was returning to his house around 8.00 in the evening, when A1 and A2 accosted him and demanded the return of money. It is alleged that A2 held the deceased and A1 stabbed him on the left chest with a knife [M.O.1]. When Pilavendran fell down, A2 also stabbed him. Kennedy [P.W.2] the brother of the deceased, and one Thomas [P.W.2] a friend of the deceased were coming about 20 feet behind and that, it is the prosecution case that they saw the occurrence. After fatally attacking Pilavendran, the accused fled and Pilavendran dropped on the ground. Kennedy [P.W.1] and Thomas [P.W.2] carried Pilavendran to the Government Hospital, Thiruthuraipoondi in a car and they were informed that Pilavendran was dead. The body was kept in the mortuary and intimation was sent to the police. Sridharan [P.W.9], who was the Special Sub Inspector of Police in Thalaignayar Police Station, received intimation [Ex.P8] at about 22.30 hrs on 20.05.2010 from the Police Outpost in Government Hospital, Thiruthuraipoondi and proceeded to the hospital. At the Government Hospital, Thiruthuraipoondi he recorded the statement of Kennedy [P.W.1], which is the complaint [Ex.P1] in this case. He came to the Police Station and registered a case in Cr.No.127/2010 under Sections 342 and 302 IPC against both the accused at 2.00 a.m. on 21.05.2010 and prepared the printed FIR [Ex.P9]. The complaint [Ex.P1] and the FIR [Ex.P9] reached the jurisdictional Magistrate at 10.30 a.m. on 21.05.2010, as could be seen from the endorsement thereon. [a] The investigation of the case was taken over by S.Mahesh [P.W.11], the Inspector of Police on 21.05.2010 at 7.00 a.m. He proceeded to the Government Hospital, Thiruthuraipoondi and conducted inquest over the body of Pilavendran. The Inquest Report is Ex.P11. [a] The investigation of the case was taken over by S.Mahesh [P.W.11], the Inspector of Police on 21.05.2010 at 7.00 a.m. He proceeded to the Government Hospital, Thiruthuraipoondi and conducted inquest over the body of Pilavendran. The Inquest Report is Ex.P11. During the inquest, he examined the eye witnesses Kennedy [P.W.1], Anand [not examined], Thomas [P.W.2] and other witnesses, namely Kulanthaisamy [P.W.3] and Deisrani [P.W.4]. After the inquest, he despatched the body of Pilavendran for conducting postmortem. [b] Dr.T.Sivakumar, Assistant Surgeon, Government Hospital, Thiruthuraipoondi performed autopsy on the body of Pilavendran and noted the following injuries: "External injuries: 1. A stab wound over left upper chest in second inter costal space about 4cm below medial end of clavicle and 5cm lateral to mid sternal line. It is wedge shaped wound vertically placed with blunt upper part and sharp lower part of length 3cm, breath 5mm and a depth of 5cms tract running backwards, downwards and laterally. 2. A stab wound over left side of chest in third inter costal space 10 cm below and lateral to wound no.1 wedge shaped, running obliquely with blunt upper part of size 2.5cm x 5mm x depth 1cm 3. A stab wound over lateral side of chest in mid auxiliary bone in seventh inter costal space, vertically placed. Wedge ...(n.c.) blunt lower end and sharp upper margin 2.5 cm x 5 mm x depth 4cm running upwards and medially No other external injuries." In his evidence and in his Postmortem Certificate [Ex.P7] he has stated that, the deceased would appear to have died of injury to vital organs (1) heart and (2) lungs and due to haemorrhage and shock. Autopsy began at 11.15 a.m. on 21.05.2010 and the estimated time of death was 14 to 16 hrs prior to that. [c] The Investigating Officer proceeded to the place of occurrence and examined Rasu [P.W.5] and in the presence of one Rasu [P.W.5] and one Susai Manickam [not examined], he prepared an Observation Mahazar [Ex.P2] and a Rough Sketch [Ex.P12]. He recorded the statement of the said two witnesses. On 22.05.2010 around 5.00 in the morning, he arrested A1 and A2 in the presence of Saminathan [P.W.6] and Kaviarasu [P.W.7] at Alangudi bus station. He recorded the statement of the said two witnesses. On 22.05.2010 around 5.00 in the morning, he arrested A1 and A2 in the presence of Saminathan [P.W.6] and Kaviarasu [P.W.7] at Alangudi bus station. He recorded the confession statement of the accused and recovered two knives [M.Os.1 and 2] based on their disclosure statements recorded under Section 27 of the Evidence Act, under the cover of Mahazar [Ex.P15]. The seized articles were sent to the Court under Form 95. He examined the Postmortem Doctor and Murugaiyan [P.W.10] the Head Constable, who handed over the body of the deceased to the relatives after the post-mortem. He completed the investigation and filed Final Report against the appellants under section 342 and 302 r/w 34 IPC before the Judicial Magistrate, Vedaranyam who took the same on file in PRC No.10/2010. On the appearance of the appellants, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Sessions. [d] Before the Sessions Court, a charge under Section 302 IPC was framed against both the accused and also an alternative charge under Section 302 r/w 34 IPC was framed against both the accused, to which they pleaded not guilty. On behalf of the prosecution, 11 witnesses were examined, 14 Exhibits and 2 Material Objects were marked. On behalf of the accused, one exhibit was marked. When the accused were questioned about the incriminating circumstances under Section 313 Cr.P.C., they denied the same. No witness was examined on behalf of the accused. [e] The trial Court after considering the evidence on record and hearing both sides, convicted and sentenced the accused as aforesaid. Hence the appeal. 3. The learned counsel for the appellants took us through the evidence of P.Ws.1 and 2 and contended that their testimonies are unbelievable. P.W.1 the brother of the deceased, in his evidence stated that he is an agriculturist and that the deceased was his brother. He stated that his brother was living separately with his family in the same street and the accused also belong to the same village. The deceased was a very good friend of A1 and the former had borrowed Rs.5,000/- from the latter about 2 months prior to the incident. He stated that his brother was living separately with his family in the same street and the accused also belong to the same village. The deceased was a very good friend of A1 and the former had borrowed Rs.5,000/- from the latter about 2 months prior to the incident. In the evening of 20.05.2010, the deceased went to the Church with him, his son Anand, Thomas [P.W.2] and a few others of the village and took part in the congregation. After the Mass, they were returning home around 8.45 p.m. The deceased was walking in front and he was walking about 20 feet behind him along with his son Anand and Thomas [P.W.2]. At that time, he saw both the accused stopping the deceased and quarrelling with him demanding the return of the loan. He also gave details about the conversation between the deceased and the accused. Thereafter, A2 held the deceased tightly and A1 whipped out a knife and stabbed Pilavendran on his chest. As Pilavendran fell down, A2 took out a knife and stabbed him in the left part of the abdomen. On seeing this he and the others shouted, and the accused ran away. He took the deceased in a car to the Government Hospital, Thiruthuraipoondi and reached the hospital around 10.45 p.m. The doctors who examined Pilavendran declared him dead. He further stated that the body was kept in the mortuary and while he was at the hospital, the police came between 11.00 and 12.00 in the night and recorded the statement from him. They took him to the police station and registered the FIR. He identified the two knives that were used by the appellants and they were marked as M.Os.1 and 2. He further stated that there was a street light burning near the house of Susai Manickam, on account of which, he was able to witness the incident. [a] In the cross examination he admitted that the Church festivities began on the date of the incident and so they had all gone along with the villagers and they were returning after the Mass. The line of cross examination was to show that there were lot of people during that time and therefore, the possibility of the two accused committing the offence as alleged by the eye witness would be remote. The line of cross examination was to show that there were lot of people during that time and therefore, the possibility of the two accused committing the offence as alleged by the eye witness would be remote. Kennedy [P.W.1] admitted in the cross examination that all of them, including the deceased, were well dressed when they went for the Mass in the evening. He specifically stated that the deceased was wearing a shirt and lungi when he went to the Church. He accepted that he did not have personal knowledge about the loan transaction between the accused and the deceased and that he only heard about it. When he was asked as to how he carried Pilavendran to hospital, he said that he took him by a rented car. He was not able to say how the car came to the place of occurrence and who the driver was. In the cross examination he stated that when Pilavendran was taken to hospital, the doctors examined and declared Pilavendran dead and recorded the same. [b] To a specific question in the cross examination he admitted that, as he had carried the deceased, his clothes also got stained by blood. He admitted that Thomas [P.W.2] is his relative. He was not able to give any details as to who paid for the car and how car was disposed after they were dropped in the hospital. He was specifically cross examined about the involvement of Pilavendran in several criminal cases, including cases relating to brewing illicit liquor and he completely denied knowledge of this. 4. Thomas [P.W.2] in his evidence stated that he knew the deceased and the accused, and that on 20.05.2010, he went along with the deceased, Kennedy [P.W.1] and Kennedy's son Anand [not examined] to the village Church and after the Mass, they were returning around 9 o’clock. He deposed that the deceased was walking 20 feet ahead of them and at that time, there were other villagers along with them. He further stated that the accused intercepted the deceased and the second accused caught him and the first accused stabbed him with a knife. He also stated that the second accused also stabbed the deceased. Thereafter, the accused ran away with their weapons. He stated that he accompanied Kennedy [P.W.1] and helped him to take Pilavendran to the Government Hospital, Thiruthuraipoondi, where the doctors declared Pilavendran dead. He also stated that the second accused also stabbed the deceased. Thereafter, the accused ran away with their weapons. He stated that he accompanied Kennedy [P.W.1] and helped him to take Pilavendran to the Government Hospital, Thiruthuraipoondi, where the doctors declared Pilavendran dead. He also stated that the street light was burning when the incident took place. [a] In his cross examination he stated that, he does not know how the car came to the place, who drove the car and who gave the charges for the car. When questioned in the cross examination about Pilavendran's involvement in several criminal cases, he feigned ignorance. The other prosecution witnesses are Kulanthaisamy [P.W.3] the father of the deceased, and Deisirani [P.W.4] the wife of the deceased. They are not eye witnesses, but they have gone to the hospital on coming to know the incident. In fact, Deisirani [P.W.4] was in her father’s house when the incident occurred. She deposed about the loan transaction between her husband and the accused. In the cross examination, both Kulanthaisamy [P.W.3] and Deisirani [P.W.4] pleaded ignorance about the criminal antecedents of Pilavendran. 5. Rasu [P.W.5], who was present when the Investigating Officer prepared the Observation Mahazar [Ex.P2] and the Rough Sketch [Ex.P12], supported the prosecution case. Saminathan [P.W.6] and Kaviarasu [P.W.7] who were with the Investigating Officer at the time of arrest of the appellants and the recovery of M.Os.1 and 2, turned hostile. Therefore, we have only the evidence of Kennedy [P.W.1] and Thomas [P.W.2] to determine the guilt of the appellants. 6. The prosecution has proved beyond doubt that the death of Pilavendran was homicidal. The question is, are the appellants the assailants as deposed by Kennedy [P.W.1] and Thomas [P.W.2]? 7. The learned counsel for the appellants contended that the prosecution was not able to fix even the place of occurrence correctly. The learned counsel submitted that according to the alleged eye witnesses, Pilavendran fell on the ground and only thereafter, he was taken to the hospital in a taxi. The prosecution had failed to collect the blood stained earth from the alleged place of occurrence, which would have been a material evidence to fix the place of occurrence. 8. The learned counsel submitted that according to the alleged eye witnesses, Pilavendran fell on the ground and only thereafter, he was taken to the hospital in a taxi. The prosecution had failed to collect the blood stained earth from the alleged place of occurrence, which would have been a material evidence to fix the place of occurrence. 8. Per contra, the learned Additional Public Prosecutor submitted that in the Observation Mahazar [Ex.P2] it is mentioned that there was heavy rain at that time and therefore, the police was not able to collect the blood stained earth, which otherwise they normally collect from the scene of occurrence, if available. There is some force in this submission of the learned Additional Public Prosecutor. But we find that the prosecution has not adduced any evidence as to how the body was transported from the alleged place of occurrence to the hospital by Kennedy [P.W.1] and Thomas [P.W.2]. In a large city, it is possible that public vehicles like auto rickshaw and taxis will be plying in the roads and be easily available for such transports. According to Kennedy [P.W.1] and Thomas [P.W.2], the place of occurrence is their village. It is strange as to why the prosecution witnesses were not able to say, as to how the taxi came and who was its driver. Had the prosecution adduced evidence to show how Pilavendran was transported to the hospital, then that would have adequately filled the vacuum caused by the absence of blood stained earth in the alleged place of occurrence due to rain. 9. Kennedy [P.W.1] in his evidence stated that his dhoti got stained by blood, but that was also not obtained by the Investigating Officer. P.Ws.1 to 4 completely feigned ignorance about the criminal antecedents of Pilavendran, whereas, in the cross examination of Sridharan [P.W.9] the Sub Inspector of Police, and Mahesh [P.W.11] the Inspector of Police, they admitted that there are criminal cases against the deceased. 10. It is the case of the defence that Pilavendran because of his criminal antecedents was done to death by his enemies and the police have foisted this case against these appellants upon a motive which ex facie sounds flimsy. 11. If Kennedy [P.W.1] and Thomas [P.W.2] had admitted that they knew about the criminal antecedents of Pilavendran, their evidence would have inspired our confidence. 11. If Kennedy [P.W.1] and Thomas [P.W.2] had admitted that they knew about the criminal antecedents of Pilavendran, their evidence would have inspired our confidence. For reasons best known to them, they denied any knowledge about it, which we are not able to believe. Be that as it may, these two witnesses have not spoken a word that it was raining heavily on that day or subsequently. It is their evidence that they were walking about 20 feet behind Pilavendran, but strangely they were able to depose about the actual conversation that allegedly transpired between the deceased and the accused. If they had heard the conversation, then they must have been very near to the deceased, in which event, they would have intervened spontaneously. The second accused was about 53 years old and the deceased Pilavendran was 35 years then. 12. Through the evidence of Sridharan [P.W.9] the Sub Inspector of Police and Mahesh [P.W.11] the Inspector of Police, defence was able to show that Pilavendran had criminal cases to his credit. A 35 year old male with criminal track records, will normally possess a robust presence of mind in smelling and warding off danger. It is not the case of Kennedy [P.W.1] and Thomas [P.W.2] that the incident happened in a trice. It is P.W.1’s evidence that Pilavendran was accosted by the accused and after conversation with him, they took out their weapons and stabbed him until which time Kennedy [P.W.1] and Thomas [P.W.2] were simply watching. This sounds very improbable. 13. The following fact makes the evidence of Kennedy [P.W.1] and Thomas [P.W.2] further unbelievable. In the cross examination of Kennedy [P.W.1] he clearly stated that Pilavendran went to the Church well dressed and was wearing shirt and lungi. After the incident he was taken straightaway to the hospital where the inquest was conducted. It has been elicited by the defence from the Investigating Officer that at the time of inquest, Pilavendran was bare bodied and he was wearing only a lungi and underwear. According to Kennedy [P.W.1] and Thomas [P.W.2], Pilavendran was immediately transported to the hospital and it is not their case that they removed his shirt. Had that been done, the police would have seized the blood stained shirt of Pilavendran. According to Kennedy [P.W.1] and Thomas [P.W.2], Pilavendran was immediately transported to the hospital and it is not their case that they removed his shirt. Had that been done, the police would have seized the blood stained shirt of Pilavendran. Therefore, Pilavendran would not have gone to the Church and returned as deposed by Kennedy [P.W.1] and Thomas [P.W.2], because, had he gone to the Church, he would not have gone scantily dressed, but would have worn a shirt at least. Therefore, we are unable to place reliance on the evidence of Kennedy [P.W.1] and Thomas [P.W.2], to confirm the conviction imposed upon the appellants by the trial Court. 14. As discussed by us earlier, P.W.1 and P.W.2 were not able to say in whose car they took Pilavendran to the Government Hospital. Even if we give the benefit of that to the prosecution, we have no material before us to conclude that Pilavendran was taken to the hospital by P.W.1 and P.W.2, except their assertions. When an injured person is taken to a Government Hospital, the duty Doctor in the casualty will make an entry in the Accident Register, if it is a medico-legal case. Obviously this is a medico-legal case. Even if a person involved in a medico-legal case is brought dead, the duty Doctor in the casualty department will make necessary entries in the Accident Register and issue a copy of it to the Investigating Officer. There is no shred of evidence adduced by the prosecution to show at what time Pilavendran was admitted in the hospital and by whom. It is also not known as to whether Pilavendran was brought dead or alive to the hospital. The casualty Doctor of the hospital was not even examined as a witness. The only Doctor examined was, the Post-mortem Doctor. The death intimation [Ex.P8] given by the hospital authorities to the outpost police states the name of the deceased and merely says "brought dead, kept in mortuary". Prior to this, there should be an entry in the Accident Register and the police will normally obtain a copy of the Accident Register and file the same after examining the Doctor who made the entry. Prior to this, there should be an entry in the Accident Register and the police will normally obtain a copy of the Accident Register and file the same after examining the Doctor who made the entry. If this is viewed in the background of the fact that Pilavendran was found with only lungi and undergarments at the mortuary, it probablises the defence version that, because of his criminal antecedents he was attacked and killed somewhere and someone had brought him dead to the hospital and thereafter, the story was concocted as if P.W.1 and P.W.2 witnessed the attack of Pilavendran and brought him to the hospital for treatment. In fine, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellants by the District and Sessions Court, Nagapattinam in S.C.No.139/2010 on 10.04.2013 is hereby set aside. The appellants are acquitted of all charges levelled against them and they are directed to be set at liberty forthwith unless their presence is required in connection with any other case. Consequently, connected miscellaneous petition is closed.