Judgment : S. Rajeswaran, J. The appellant is the sole accused in S.C.No.147 of 2002 and he was found guilty by the learned Sessions Judge, Kanyakumari Division at Nagercoil, for the offence under Section 302 IPC, convicted and sentenced to Life Imprisonment and a fine of Rs.1000/-was also imposed and in default of payment of fine amount, one year Rigorous Imprisonment was also ordered by an order dated 18.11.2004. 2. The brief facts of the case is that the deceased and the accused are neighbours. One year prior to occurrence, the pet dog of the deceased has taken some vessels from the accused's house and damaged the same. This gave room for an enmity between them. Apart from the same, the deceased had arranged for a marriage of one Ganapathy with one Suseela. After the marriage, the said Ganapathy had become mentally ill and therefore Ganapathy's wife Suseela had grudges against the deceased on this score and also used to abuse him. 3. On 30.08.2001, at about 4.00 p.m., Suseela was abusing the deceased as usual and the same was objected to by P.W.1, the wife of the deceased. At that time, the deceased came to that place and condemned Suseela. On the same day, Suseela had informed this incident to the accused and both went to the house of P.W.2 and complained against the deceased at about 9.00 p.m. The deceased had also gone to P.W.2's house at that time for the purpose of getting the ration card. P.W.2, a Council Member, had questioned the deceased about the incident and the accused quarrelled with the deceased. P.W.2 pacified both of them and sent them to their respective houses. When the deceased left P.W.2's house, the accused made a comment that a "drunkard" was going. The deceased questioned the accused and on account of that, there was again a wordy quarrel between them. The accused then had taken a Spade Handle, which was lying there and attacked the deceased at the right side and left side of the head.P.W.2, Palpandi, son of Vadivel and P.W.1 came to the place of occurrence on hearing the sound. The accused intimidated them with the Spade Handle and ran away from the place of occurrence. P.W.1 and P.W.2/Palpandi, son of Vadivel arranged a car, belonging to P.W.6 and took the deceased to the Government Hospital, Nagercoil. The accused intimidated them with the Spade Handle and ran away from the place of occurrence. P.W.1 and P.W.2/Palpandi, son of Vadivel arranged a car, belonging to P.W.6 and took the deceased to the Government Hospital, Nagercoil. P.W.7/the Doctor at the Government Hospital, Nagercoil admitted the deceased as an in-patient on 30.08.2001 at about 11.25 p.m. and registered in the Accident Register/Ex.P9. P.W.7 had noted in the Accident Register/Ex.P9, two lascerated injuries, one on the centre of scalp and the other on the side of the neck. He was informed by the deceased that he was beaten by known persons with a stick on 30.08.2001 at 9.30 p.m. He also recorded the presence of alcohol smell in the breath of the deceased. 4. P.W.11, the Sub-Inspector of Police, Manavalankuruchi Police Station received the intimation from the Government Hospital, Nagercoil through the Kottar Out Police Station on 31.08.2001 and went to the Government Hospital, Nagercoil around 9.30 a.m. and recorded the statement of the deceased in Ex.p1 and registered a case against the accused in Cr.No.444/2001 for the offences punishable under Sections 323 and 506(i) IPC. The statement of the deceased was also attested by P.W.1, the wife of the deceased and the statement is marked as Ex.P1. The printed FIR is marked as Ex.p17. 5. P.W.11 took up the investigation, went to the place of occurrence around 11.30 a.m. and prepared the Observation Mahazar/Ex.P2 as well as a rough sketch/Ex.P18, in the presence of P.W.3 and one Thangasamy. He also recovered the earth with blood and without blood/MOs' 3 and 4 respectively, in the presence of the above witnesses, in the Mahazar/Ex.P19. He recorded the statement of P.W.1 to P.W.3 and the deceased. The statement of the deceased recorded under Section 161(3) of Cr.P.C. is marked as Ex.P20. He also recovered the blood stained shirt of the deceased/MO1 and sent the same along with the other MOs to the Court in Form No.95. 6. The deceased died in the hospital on 01.09.2001 at about 2.30 p.m. On receipt of the death intimation from the hospital, P.W.11/the Sub-Inspector of Police altered the FIR to 302 IPC and sent the altered report in Ex.P21 to the learned Judicial Magistrate Court, Eraniyal and another copy to the Inspector of Police/P.W.12. 6. The deceased died in the hospital on 01.09.2001 at about 2.30 p.m. On receipt of the death intimation from the hospital, P.W.11/the Sub-Inspector of Police altered the FIR to 302 IPC and sent the altered report in Ex.P21 to the learned Judicial Magistrate Court, Eraniyal and another copy to the Inspector of Police/P.W.12. P.W.12 altered the report on 01.09.2001 at 2.45 p.m., went to the hospital and conducted the inquest in the presence of P.W.1 and P.W.2/Palpandi, son of Vadivel. The inquest report is marked as Ex.P22. He made a request for postmortem and went to the place of occurrence around 6.00 p.m. Since the Observation Mahazar and the rough sketch prepared by P.W.11 were in order, he did not prepare a separate mahazar and a sketch. He recorded the statement of the witnesses one Banumathi, Mary, Suseela and Chellappan. He arrested the accused on 02.09.2001 at about 11.00 a.m. at Vellimalai in the presence of P.W.4 and one Thangapandi. He recorded the confession statement of the accused and recovered the Spade Handle (MO2) from the house of the accused at about 1.00 p.m. under Mahazar Ex.P5. He examined the Taxi driver/P.W.6, Sub-Inspector of Police/P.W.11, the Head Constable (632) and two others on 03.09.2001. He arranged to send the Material objects for chemical analysis on 10.09.2001. He examined the Doctor/P.W.7, P.W.8 and P.W.9 on 22.10.2001. P.W.9 who conducted the postmortem gave his opinion that the deceased appears to have died of head injury. The Postmortem Certificate is marked as Ex.p12. After concluding the investigation, P.W.12 filed his final report on 15.11.2001 against the accused for the offences under Sections 341, 323, 506(ii) and 302 IPC. 7. The learned Trial Judge framed the charges against the accused under Section 302 IPC and proceeded with the trial. On the side of prosecution, 12 witnesses were examined and 22 exhibits were marked. Five Mos' were also produced. The incriminating materials from the prosecution case were put to the accused in Section 313 Cr.P.C. and the accused denied the prosecution case and stated that he was taken by the Police from his workspot on 01.09.2001 at about 5.00 p.m. He stated that he is having witnesses, but, he has not examined any witness nor marked any document. 8. Heard Mr.Arulvadivel Sekar, the learned counsel appearing for the appellant and the Additional Public Prosecutor appearing on behalf of the State. 9. 8. Heard Mr.Arulvadivel Sekar, the learned counsel appearing for the appellant and the Additional Public Prosecutor appearing on behalf of the State. 9. The learned counsel for the appellant pointed out the contradiction between the statements of the deceased recorded in Ex.P1 and Ex.P20 and relied upon several decisions to drive home the point that those statements of the deceased cannot be treated as Dying Declaration, as there is no attestation of the Doctor about the fit state of mind of the deceased at the time of recording those statements. He also pointed out that the deceased survived for two days, but, curiously no steps were taken by the prosecution agency to record his statement through the concerned Magistrate. It is his further case that the Accident Register / Ex.P9 discloses that the deceased was under the influence of liquor at the time of admission in the Government Hospital and the Doctor / PW7 had also recorded the same in Ex.P9. He also contended that the postmortem certificate discloses the presence of the blood clots in the left partial region and therefore, the deceased could not have given the statement / Ex.P1 or Ex.P20. 10. The learned counsel for the appellant drew our attention to the evidence of PW4 and pointed out that according to the case of the prosecution, the accused was arrested on 02.09.2001 at 11.00 a.m. and the weapon MO2 was recovered pursuant to the confession statement recorded on 02.09.2001. But, PW4 in his evidence stated that the accused was in the custody of the police from 01.09.2001 and the confession and the recovery were made only on 01.09.2001. In this regard, the learned counsel appearing for the appellant referred to a judgment of this Court reported in 2004(2) CTC 338 (Mani vs. State by Circle Inspector of Police, Thiruvidaimarudur). He further pointed out the contradictions in the evidence of the prosecution witnesses and added that the non-examination of independent witnesses and the material witnesses, the non-sending of weapon / MO2 for chemical analysis are fatal to the case of prosecution. 11. Per contra, the learned Additional Public Prosecutor would submit that the statements in Ex.P1 and Ex.P20 are the statements recorded from the deceased and the same can be treated as a Dying Declaration and it discloses the role of the accused and the motive for the occurrence in the commission of the offence. 11. Per contra, the learned Additional Public Prosecutor would submit that the statements in Ex.P1 and Ex.P20 are the statements recorded from the deceased and the same can be treated as a Dying Declaration and it discloses the role of the accused and the motive for the occurrence in the commission of the offence. Further he added that the evidence of PW1 and PW2 clearly establishes the guilt of the accused. The learned Additional Public Prosecutor in support of his submissions, relied on the following judgments: 1. 2013 (2) SCC Crl. 142 (Raja Gounder and another Vs. State of Tamilnadu) 2. 2011 (3) SCC Crl. 783 (Mahesh and another Vs. the State of Madhya Pradesh). 12. According to the learned Additional Public Prosecutor, F.I.R. is only a report and it need not contain each and every minute detail of the occurrence and it is not an encyclopedia and therefore, the alleged discrepancy exists between Ex.P1 and Ex.P20 would not in any way affect the prosecution case. 13. We have considered the rival submissions carefully with regard to the facts and citations. We have also gone through the documents available on record including the judgment of the Trial Court. 14. The deceased Palpandi was admitted in the Government Hospital, Nagercoil on 30.08.2001 at 11.25 p.m. with lacerated injuries, one on the centre of scalp and the other on the side of the neck. The Doctor / PW7 had admitted the deceased as an inpatient and recorded the Accident Register / Ex.P9. In Ex.P9, the nature of injury is referred to as if he was assaulted by a stick on 30.08.2001 in his village by known persons at 9.30 p.m. PW11 went to the hospital on the medical intimation and recorded the statement of the deceased on the next day at 9.30 a.m. and registered a case in Cr.No.444 of 2001 for the offences under Sections 341, 323 and 506(i) I.P.C. The deceased died in the hospital on 01.09.2001 at 12.45 p.m. and the Doctor / PW8 intimated the same to the police station under Ex.P10. The autopsy was conducted by the Doctor / PW9 on 01.09.2001 at about 5.00 p.m. and he gave his opinion that the deceased died due to the head injury sustained by him. 15. The autopsy was conducted by the Doctor / PW9 on 01.09.2001 at about 5.00 p.m. and he gave his opinion that the deceased died due to the head injury sustained by him. 15. The deceased himself had narrated the incident in the statement / Ex.P1 which he gave before the Sub-Inspector of Police / PW11 and another statement to PW11 under Section 161(3) Cr.P.C. on the same day. As rightly pointed out by the learned counsel for the appellant, the statement in Ex.P1 and Ex.P20 are totally different. As per the statement recorded in Ex.P1, the case of the prosecution is that the accused had a motive against the deceased, as the pet dog of the deceased had been taken away the vessels from the accused house and damaged the same. On 30.08.2001 at 9.30 p.m., when he was coming near the Channel Karai, the accused had passed a comment that the drunkard was going, which paved way for a wordy quarrel broken out and the accused had taken a Spade Handle lying in that place and attacked him on his head. In the said attack, the deceased sustained injury on the middle of the head and on the left side of the neck. On hearing the sound, PW2 and his relative one Palpandi came to the place of occurrence. The accused threatened them with the Spade Handle and ran away from the place of occurrence. 16. In support of the prosecution case, PW1 and PW2 were examined as Eye witnesses to the occurrence. The eye witness Palpandi mentioned in Ex.P1 was not examined. The presence of Palpandi in the place of occurrence at the time of occurrence is referred to both in Ex.P1 and Ex.P20. Apart from this, PW1 and PW2 have also spoken to that effect. The evidence of Palpandi is a material to the occurrence and the non-examination of the said Palpandi is fatal to the prosecution. 17. PW1 gave her evidence in accordance with the statement recorded in Ex.P20. The version of Ex.P20 is different from the version in Ex.P1. A new story has been inserted in Ex.P20 that the deceased had arranged for marriage of one Ganapathy with Suseela and after the said marriage, the said Ganapathy had become mentally ill and therefore, Suseela had grudges against the deceased and used to abuse him. The version of Ex.P20 is different from the version in Ex.P1. A new story has been inserted in Ex.P20 that the deceased had arranged for marriage of one Ganapathy with Suseela and after the said marriage, the said Ganapathy had become mentally ill and therefore, Suseela had grudges against the deceased and used to abuse him. On the day of occurrence at 4.00 p.m., she abused the deceased as before and the same was objected to by PW1. There was a wordy quarrel between PW1 and Suseela and at that time, the deceased came and condemned Suseela. Suseela in turn informed this incident to the accused and both went to PW2's house and made a complaint. By that time, the deceased had also gone to the house of PW2 for the purpose of getting the ration card. Thereagain, a wordy quarrel took place between the deceased and the accused. PW2 pacified them and sent them to their respective houses. When the deceased was returning to his house, the accused made a comment that a drunkard was going and therefore, again a wordy quarrel took place between them and the accused had taken the Spade Handle and attacked the deceased. 18. The learned Additional Public Prosecutor contended that the Ex.P1 and Ex.P20 are the statements of the deceased and with regard to the contradictions between these two statements, he would rely upon the judgment of the Hon'ble Supreme Court, reported in 2011 (3) SCC (Crl.) 783 (cited supra) and submit that it is a settled law that in so far as the F.I.R. is concerned, it is only a report submitted to the police informing about the commission of crime. It is not required that the F.I.R. should contain a detailed and vivid description of the entire incident. Further, one cannot expect from the informant, especially when the informant is a relative of the deceased to give each and every minute detail of the incident in the F.I.R. He would also rely upon the judgment of the Hon'ble Supreme Court reported in 2008 Crl.L.J 2038 (Animireddy Venkata Ramana and others vs. Public Prosecutor, High Court of Andhra Pradesh), wherein the Hon'ble Supreme Court has held as follows: “12. In the First Information Report all the accused persons were named and overt acts on their part were also stated at some length. In the First Information Report all the accused persons were named and overt acts on their part were also stated at some length. Each and every detail of the incident was not necessary to be stated. A First Information Report is not meant to be encyclopedic. While considering the effect of some omissions in the First Information Report on the part of the informant, a court cannot fails to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the Court is as to whether there was a possibility of false implication of the appellants....” 19. As rightly pointed out by the learned Additional Public Prosecutor, the important factor to find out is whether there is any possibility of false implication of the accused. Though the principle is accepted, the facts and circumstances in the present case are not similar to the cases referred to. 20. In the case reported in 2011 (3) Crl. 783 (cited supra) PW1 is not an eye witness whereas in this case Ex.P1 statement was given by the deceased on 31.08.2001 at 9.30 a.m. The statement, ie, Ex.P1 was recorded after 12 hours from the time of occurrence. PW1, the wife of the deceased was very much available at the Hospital with the deceased, when the statement/Ex.P1 was recorded and she had also attested Ex.P1. 21. The case of the prosecution is that there was a wordy quarrel between Suseela and PW1 on the day of occurrence i.e. 30.08.2001 at 4.00 p.m. and in respect of that incident, Suseela and the accused went to PW2's house and complained and the deceased had also gone to the house of P.W.2 where again a wordy quarrel took place between the accused and the deceased at PW2's house. Whereas in Ex.P1, it is stated that while P.W.1 was coming near the channel Karai, the accused had scolded and assaulted the deceased. As per Ex.P1, while he was coming, the occurrence had taken place and as per Ex.P20, while he was going from PW2 house, the occurrence had taken place. Both are self-contradictory statements to each other and the prosecution case is built up as per the version in Ex.P20. If that is true, even if the deceased failed to mention those incidents as stated in Ex.P20, PW1, the attester might have reminded her about the same. Both are self-contradictory statements to each other and the prosecution case is built up as per the version in Ex.P20. If that is true, even if the deceased failed to mention those incidents as stated in Ex.P20, PW1, the attester might have reminded her about the same. Similarly, the place of occurrence is mentioned as Channel Karai in Ex.P1, but it is in the land of one Chellapan away from the Channel Karai, as per the rough sketch prepared by PW11, the Sub-Inspector of Police. According to PW1, the place of occurrence is 10 feet away from the house of PW2 and it is the land of Chellapan as per the evidence of PW2. The Investigating Officer/PW12 has not prepared a separate Observation Mahazar and drawn a sketch and relied upon the mahazar and the sketch prepared by PW11, the Sub-Inspector of Police. Observation Mahazar and the sketch were prepared in the presence of PW1, PW3 and one Thanusamy. PW3 alone was examined on the side of the prosecution and he was treated as hostile. Hence, from the available evidence mentioned above, we have to come to the irresistible conclusion that the place of occurrence is not proved by the prosecution beyond reasonable doubts. 22. Further, the deceased survived for two days after the occurrence, but the investigating agency failed to record his statements before the Magistrate. In this regard, the learned counsel for the appellant relied upon on the judgment reported in 2001 SCC (Crl.) 993 (Laxmi.Smt. vs. Om Prakash and others), wherein the Hon'ble Supreme Court has held as follows: “29.A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances[see Tapinder Singh Vs. State of Punjab - 1971 (1) SCJ 871]. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances[see Tapinder Singh Vs. State of Punjab - 1971 (1) SCJ 871]. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborate evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das Vs. State of Rajasthan - AIR 1957 SC 589 the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh @ Surendra Singh Vs State of M.P.- AIR 1982 SC 1021 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh Vs. State of Punjab - AIR 1983 SC 554 this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 the dying declaration was recorded by the investigating officer. In Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or any one else present.” 23. The Doctor / PW7 who admitted the deceased in the hospital has recorded in the Accident Register / Ex.P9 that he noticed the smell of alcohol from the breath of the deceased. The Postmortem Doctor / PW9 noticed the following internal injuries during the postmortem: "Internal Injuries :- 1. Liner fracture extending from left temporal bone crossing over the vertex to the opposite side temporal bone. 2. In the left parietal region 100 gms of blood clot seen in extra dural space. 3. In the left parietal region 75 gms of blood clot seen in sub dural space. 4. Extensive haemorrhage is seen within the sub arachnoid space all over the brain surface. Brain weight 1200 gm. C/S Pale. 500 ml of brain colour fluids present in the stomach with uncharacteristic smell. C/S Pale. Heart 250 gm. Empty C/S Pale. Liver 1500 gms C/S Pale Lungs right 450 gms Left 40 gms C/S Pale Spleen 150 gms C/S Pale. No spinal bone fracture. Hyoid bone intact. Post mortem concluded at 6.00 p.m. Death would have occurred about 12.45 p.m. on 01.09.2001 as per hospital record. Opinion: The deceased would appear to have died of head injury." 24. Moreover the thumb impression alone was obtained in Ex.P1 from the deceased. 25. From the available evidence, the Court is not able to be satisfied that the deceased was in a fit state of mind and capable of making the statements Ex.P1 and Ex.P20. 26. The motive stated in Ex.P1 and Ex.P20 are different. The dispute between Suseela and PW1 and the subsequent quarrel that took place in PW2 house are not mentioned in Ex.P1. PW1 and PW2 gave their evidence in accordance with the statement recorded in Ex.P20, which was recorded on 31.08.2001. The deceased died on 01.09.2001 and a representation for conducting the postmortem was made in Ex.P11 along with the history of the case. The history of the case was prepared on 01.09.2001 and it does not refer to the incident and the motive referred to in Ex.P20. The deceased died on 01.09.2001 and a representation for conducting the postmortem was made in Ex.P11 along with the history of the case. The history of the case was prepared on 01.09.2001 and it does not refer to the incident and the motive referred to in Ex.P20. In this regard, the learned counsel for the appellant had relied upon the following judgment of the Hon'ble Supreme Court: 1. In 2009 (2) SCC Crl. 1118 (Vallabhaneni Venkateswara Rao vs. State of Andhra Pradesh), wherein the Hon'ble Supreme Court has held as follows: “20. Ex.P.14 is not a mere improvement of Ex.P12. The story projected in Ex.P12 is entirely different from Ex.P14. As per Ex.P12 from the bus stop the injured deceased proceeded to the village by walk and at that time A-1 to A-3 attacked him in the presence of one eye witness Jagan. But according to Ex.P.14 the deceased came to the road side along with PW.1 Sriniva Rao and one R.M.P. Doctor in the scooter and at that point of time A-1 to A-7 appeared and attacked the deceased. The story in Ex.P.12 has been given up and new case has been projected in Ex.P-14 by introducing new set of eyewitnesses and new set of accused. Hence both Ex.P12 and Ex.P14 can not be believed.” 2. In 2009 (1) SCC Crl. 287 (Mehiboosab Abbasabi Nadaf vs. State of Karnataka), wherein the Hon'ble Supreme Court has held as follows: “7. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied” 27. PW1 and PW2 are examined as eye witnesses to the occurrence. The presence of PW1 is not stated in Ex.P1 though PW1 had attested Ex.P1. PW1 in her evidence has stated that herself, Palpandi / PW2 ran to the place of occurrence after hearing the sound. Caution, in this behalf, is required to be applied” 27. PW1 and PW2 are examined as eye witnesses to the occurrence. The presence of PW1 is not stated in Ex.P1 though PW1 had attested Ex.P1. PW1 in her evidence has stated that herself, Palpandi / PW2 ran to the place of occurrence after hearing the sound. In Ex.P20, it is stated that the deceased alone went to the house of PW2, regarding ration card on 30.08.2001 at 9.00 p.m. Thereafter, there is no reference as to how PW1 came and joined in PW2's house. From the available evidence in hand, it is hard to believe the evidence of PW1 as eye witness. According to PW2, he pacified both the deceased and the accused and sent them to their houses. After some time, he heard the sound and went to the place of occurrence. Further, he referred the weapon as Spade, with which, the accused had attacked the deceased. Whereas the prosecution case is that the accused attacked the deceased with a Spade Handle. Apart from this, there are other contradictions in his evidence and therefore it is not safe to rely upon PW2 evidence also as an eye witness. Besides that the arrest and recovery is also not proved by the prosecution beyond reasonable doubt. The case of the prosecution is that the appellant was arrested on 02.09.2001 at 11.00 a.m. in the presence of PW4 and one Thangapandian. The prosecution had examined PW4 / Kaliyaperumal alone. PW4 in his evidence would state that he saw the accused in the custody of the police on 01.09.2001 itself and the confession and recovery were made by the police on 01.09.2001. In this regard, the learned counsel had relied upon the judgment of this Court reported in 2004 (2) CTC 338 (Mani vs. State by Circle Inspector of Police, Thiruvidaimarudur) (cited supra), wherein it is held as follows: "18. The investigating Officer, who has not even inspected the scene of crime properly, in our considered opinion, has not spoken the truth, regarding the arrest and recovery and that is why, P.Ws.10 & 11 have not supported the case, which could be seen from the oral evidence of P.W.4 also. As aforementioned, it is the specific case of P.W.4 that the accused was taken into custody on the same date i.e. on 8.3.1995. As aforementioned, it is the specific case of P.W.4 that the accused was taken into custody on the same date i.e. on 8.3.1995. It is not the case of the investigating officer that though the accused was taken into custody on suspicion, later on released, arrested and recovery were made. It is also not the case of the prosecution, when P.W.1 had stated that the accused was taken into custody by the police, by way of reexamination, that by slip of tongue also P.W.4 would have stated so. Looking this case from this angle also, the arrest said to have been committed by P.W.19 on 24.3.1995 is proved to be false. According to P.W.9, the accused was available with him, gave confession statement on 10.3.1995 and he went to the police, for verification on 13.3.1995. At least at that stage, P.W.19 would have acted swiftly to apprehend the accused, since the accused was roaming in and around and since there is no evidence that he left the village and absconded. Therefore, we are unable to accept the arrest as well as the recovery, which should follow, no duty is cast upon the accused, to explain the possession of M.Os.1 & 2, which are said to be belonging to P.W.4's family. In this view, another circumstances relied on by the prosecution also falls to the ground, thereby making another crack and snap in the circumstances or chain of events. Thus, all the circumstances relied on by the learned Additional Public Prosecutor, are not proved, beyond reasonable doubt and we could say that the above two circumstances are proved to be false. Therefore, convicting the accused, as did by the trial Court appears to be beyond the scope of law." 28. The weapon MO2 was recovered from the accused was also not sent for chemical examination. 29. Though several independent witnesses were examined by the investigating agency, they were not examined before the Court. The non-examination of the eye witnesses Palpandi, son of Vadivel and Suseela, who had accompanied the accused to PW2's house at the time of occurrence are fatal to the prosecution. 30. From the available evidence, we are of the view that it is not safe to sustain the conviction and sentence imposed by the trial Court. In the result, the appeal is allowed. 30. From the available evidence, we are of the view that it is not safe to sustain the conviction and sentence imposed by the trial Court. In the result, the appeal is allowed. The conviction and sentence imposed by the Sessions Court, Kanyakumari at Nagercoil in S.C.No.147 of 2002 dated 25.11.2001 on the accused is hereby set aside. The appellant is acquitted of the charges levelled against him and he is directed to be set at liberty forthwith unless his presence is required in connection with any other case.