JUDGMENT : S. Vaidyanathan, N. Anand Venkatesh, JJ. PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal Procedure to call for the records relating to the judgment dated 19.05.2015 in S.C.No.124 of 2014 by the Additional District and Sessions Judge and E.C.Court, Pudukkottai and set aside the same and acquit the appellant by allowing this Criminal Appeal. The Appellant / A2 has filed this Criminal Appeal against the judgment of the learned Additional District and Sessions Judge and E.C.Court, Pudukkottai made in S.C.No.124 of 2014 dated 19.05.2015, convicting and sentencing the Appellant as follows: Sl. No. Rank of the Accused Offences for which convicted Sentence of imprisonment Fine amount 1. A2 Section 120(b) of IPC Two Years Rigorous Imprisonment - Section 302 r/w 34 of IPC Life Imprisonment Rs.10,000/-in default to undergo one year Rigorous Imprisonment 2. Aggrieved by the order of the learned Additional District and Sessions Judge and E.C.Court, Pudukkottai, the Appellant has preferred the present Criminal Appeal before this Court. During pendency of the appeal, this Court, by its order dated 17.01.2018, had suspended the substantive sentence of imprisonment and thereby, the Appellant is on bail now. 3. Initially, there were two accused persons against whom the Trial was conducted before the Court below and during pendency of the Trial, A1 had died and the charges against him stood abated. 4. The case of the prosecution: The deceased and one Dhanalakshmi fell in love with each other, pursuant to which, the father of Dhanalakshmi left his daughter in one of his relatives' house. When the said Dhanalakshmi returned to her parental house due to her illness, the deceased, on coming to know of her arrival, visited her house and forcibly took her away from the house, inspite of warning given by her relatives and friends, including accused persons. Subsequently, the appellant herein, infuriated by the act of the deceased, is said to have hatched conspiracy with A1 to do away with the deceased. 4.1. On 16.03.2014 at about 1:30 am, A1 & A2 are said to have attacked the deceased and they indiscriminately caused cut injuries with an Aruval and thereby caused the instantaneous death of the deceased. Subsequently, the appellant herein, infuriated by the act of the deceased, is said to have hatched conspiracy with A1 to do away with the deceased. 4.1. On 16.03.2014 at about 1:30 am, A1 & A2 are said to have attacked the deceased and they indiscriminately caused cut injuries with an Aruval and thereby caused the instantaneous death of the deceased. P.W.1, who is the father of the deceased, had suspected the involvement of the accused persons in the murder of his son and had given a complaint to the Sub Inspector of Police (P.W.13) on 16.03.2014 at about 06.45 am. Based on the complaint received from P.W.1, an FIR was registered (Ex.P.7) under Sections 147, 148 and 302 of IPC and by way of alteration report (Ex.P.17), the offences were altered into the one of Section 302 IPC. 5. After a detailed investigation, a charge sheet was laid before the Judicial Magistrate, Pudukkottai in P.R.C.No.29 of 2014 for offences under Sections 120(b) and 302 r/w 34 IPC and was subsequently, committed to the Court of Sessions as per Section 209 Cr.P.C. for trial. The prosecution, in order to substantiate the offence against the accused, had examined 17 witnesses, marked 22 documents and exhibited 13 Material Objects and on the side of the accused, neither any witness was examined nor documents marked. The accused was questioned under Section 313 Cr.P.C. and he denied the charges levelled against him. The Trial Court, after analyzing the evidence let in by the prosecution, found the accused guilty of the offence and convicted him as stated supra. 6. The learned counsel appearing on behalf of the appellant has submitted that though P.W.1 had named five persons in the alleged occurrence, excluding the name of the appellant, it is not known as to why the prosecution had deleted those names from the array of accused persons. There is no cogent reason or material adduced on the side of the prosecution for implicating the appellant in the alleged occurrence. 6.1. There is no cogent reason or material adduced on the side of the prosecution for implicating the appellant in the alleged occurrence. 6.1. It was the case put forth by the learned counsel for the appellant that since the brother of Dhanalakshmi, who is a deaf and dumb, had witnessed the occurrence, the prosecution had relied upon the evidence of P.W.11 / Headmistress of Government Middle School for Deaf and Dumb, Pudukkottai, who had enquired the brother of Dhanalakshmi in the presence of the Inspector of Police by way of sign language and submitted a report (Ex.P4). The said report is inadmissible as per Section 119 of the Indian Evidence Act, as he should have been examined in Court in the manner known to law. 6.2. It was argued on the side of the accused that P.W.1 had stated in his cross that it was informed by the Police that his son was murdered by the appellant herein and therefore, it is explicitly clear that the entire case of the prosecution revolves around conjectures and surmises. Further, it was claimed by P.Ws.1 and 2 that just few hours prior to the date of incident, Dhanalakshmi called them over phone and complained of their son’s misbehaviour with them, but, however, to prove the same, the Cellphone, which was alleged to have been used by the said Dhanalakshmi was not seized and no call history had been received from P.Ws.1 and 2, which is fatal to the case of the prosecution. 6.3. Finally, it was submitted by the learned counsel for the appellant that there is no corroboration between the ocular testimony and the medical evidence, as it was not proved by the prosecution through oral and documentary evidence that it was the appellant, who had committed the murder of the deceased. 7. Per contra, the learned Additional Public Prosecutor appearing on behalf of the respondent Police submitted that the evidence of P.W.5 clearly points out the fact that it was the Appellant, who had attacked the deceased with Aruval on the neck and there is no ground to suspect the said evidence. He further submitted that the evidence of the postmortem Doctor (P.W.16) and the Postmortem Certificate, marked as (Ex.P.13) clearly indicate that the deceased had died only on account of multiple injuries sustained. He further submitted that the evidence of the postmortem Doctor (P.W.16) and the Postmortem Certificate, marked as (Ex.P.13) clearly indicate that the deceased had died only on account of multiple injuries sustained. The learned Additional Public Prosecutor therefore concluded his arguments by submitting that the Court below has considered the oral and documentary evidence and has come to the correct conclusion that the appellant had committed the murder and the case squarely falls under Section 302 of the Indian Penal Code. 8. In sum and substance, it is the submission of the learned Additional Public Prosecutor appearing for the State that since the prosecution was able to prove the guilt on the part of the appellant/accused beyond any reasonable doubt and that the appellant/accused knowing pretty well about the consequence of attack on the deceased with aruval, attacked him and hence, he is not entitled to any leniency from this Court and prays for the dismissal of this appeal. 9. This Court has carefully considered the submissions made on either side and perused the materials available on record. 10. The foremost contention raised by the Appellant is that the appellant had been falsely roped into the crime, which is evident from the complaint lodged by P.W.1. A glance at the contents of the complaint amply proves the fact there was no mention about the name of the appellant by P.W.1 in the alleged occurrence and it is not known as to how the Police had managed to implicate the appellant into the occurrence. For the sake of brevity, the relevant portion of the complaint is extracted as under: “XXX” 11. From the above, it is clear that nowhere P.W.1 had stated that the Appellant also joined hands with other accused persons to commit the murder of the deceased and that being the position, no iota of evidence has been produced on the side of the prosecution to establish the guilt of the accused. The interesting aspect of the whole case is that the suspected persons, as named by P.W.1 in the complaint (Ex.P.1) had been examined as witnesses to strengthen their case. Further, in the chief examination, P.W.1 had deposed as follows: “XXX” In the cross-examination, it was deposed by P.W.1 as under: “XXX” 12. The interesting aspect of the whole case is that the suspected persons, as named by P.W.1 in the complaint (Ex.P.1) had been examined as witnesses to strengthen their case. Further, in the chief examination, P.W.1 had deposed as follows: “XXX” In the cross-examination, it was deposed by P.W.1 as under: “XXX” 12. The evidence of P.W.1 does not instill confidence in the minds of this Court, as the deposition of P.W.1 is like a newspaper report and there is no concrete evidence adduced by P.W.1 to link the accused in the alleged occurrence. The Police had also not taken any steps to corroborate the evidence of P.W.1 with any other documentary or oral evidence and the punishment, especially imprisonment for life cannot be imposed to an accused merely on the basis of presumption in the absence of any material testimony thereof. P.W.1, in several places, had mentioned the name ‘Arun Vinoth’, but in the list of witnesses, his name is not found place and the reason for such non-inclusion of his name in the array of witnesses is best known to the prosecution alone. 13. The Trial Court, in order to convict the appellant, had strongly relied upon the deposition of P.W.5, who, in his chief examination had stated thus, “XXX” 14. Even though P.W.5, who is a converted Muslim, is stated to have witnessed the incident that the appellant had attacked the deceased with Aruval, it is highly unimaginable and astonishing that after seeing the occurrence at 1.30 am, he had casually gone in the two wheeler along with one Arun Vinoth and informed the murder of the deceased to the parents only at 6.00. In case he is unknown to the deceased and his parents, then an inference can be drawn that there is no need to inform them with immediate effect. In his deposition also, there is a mention about the name Arun Vinoth and non-examination of the said Arun Vinoth is fatal to the prosecution case in entirety. We are in the era of advanced technology and P.W.5 could have informed the occurrence to the parents of the deceased at least over phone so that it could be easy for the prosecution to trace out the call details to prove the murder by the appellant beyond reasonable doubt. We are in the era of advanced technology and P.W.5 could have informed the occurrence to the parents of the deceased at least over phone so that it could be easy for the prosecution to trace out the call details to prove the murder by the appellant beyond reasonable doubt. Therefore, the version of P.W.5, besides highly unbelievable, is far from satisfactory and is liable to be rejected at the threshold. 15. The evidence of P.W.5, who is stated to be an eyewitness available in the present case, does not inspire the confidence of this Court. Therefore, it becomes necessary for this Court to look for corroboration. At this juncture, it is relevant to rely upon the judgment of this Court in Chinnadurai and others vs. State, [Crl.A.Nos.455 of 2011, etc. batch] decided on 12.02.2015 [in which one of us (Justice S. Vaidyanathan) was a party]. The relevant portions of the judgment is extracted hereunder: “11. Above all, in our considered view, the presence of P.W.1 at the place of occurrence itself is doubtful because of the above delay and also because he claims to have been present at the place of occurrence by chance, for which, there is absolutely no satisfactory explanation. 12. At this juncture, the learned counsel for the appellants would submit that when a solitary witness to the occurrence is only partly believable, prudence requires that there has to be corroboration in material particulars from independent sources. Learned counsel relied on the judgment of the Apex Court in VADIVELU THEVAR Vs. STATE OF MADRAS reported in AIR 1957 SC 614 , wherein, the Hon'ble Apex Court has held in paragraph 12 as follows:- ...... 11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that “no particular number of witnesses shall in any case be required for the proof of any fact.” The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar’s I Law of Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that “Evidence has to be weighed and not counted”. Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver ; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution. 13 Applying the same, if we analyse the evidence of P.W.1, it is crystal clear that the Trial Court itself has disbelieved him in respect of the other accused who have been acquitted and thus, he is only partly believable. 13 Applying the same, if we analyse the evidence of P.W.1, it is crystal clear that the Trial Court itself has disbelieved him in respect of the other accused who have been acquitted and thus, he is only partly believable. Admittedly, there is no other corroboration from any other source. Above all, his evidence does not fully inspire confidence of the Court. This Court has got every doubt about the presence of P.W.1 at the place of occurrence. As we have already pointed out, the FIR is a doubtful document in this case. The original information in this case has been suppressed. The evidence of P.W.1, thus, does not pass the test of close scrutiny. For all these reasons, we hold that the prosecution has failed to prove its case beyond reasonable doubts. Therefore, the appellants are entitled for acquittal.” 16. The next evidence produced on the side of prosecution to link the accused with the occurrence is the report (Ex.P.4) of P.W.11, a Headmistress of Government Middle School for Deaf and Dumb, Pudukkottai and in the report, she stated that one Murugesan / the brother of Dhanalakshmi had narrated the manner in which the murder took place through sign language, as he is a deaf and dumb. In the report, she had incorporated the version of the said Murugesan as follows: “XXX” 17. At this stage, this Court feels it appropriate to peel through the provisions of the Indian Evidence Act, more particularly, Section 119 of the Act, which states thus, Section 119 in The Indian Evidence Act, 1872. 119. Dumb witnesses. “A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court.” 18. A careful reading of the above provision is very clear that the evidence of a person, who is unable to hear and speak must be obtained by means of sign language only before the Open Court and not in the place chosen by the Police contrary to the afore-stated provision. The evidence of P.W.11 is just a repetition of the contents in the report, which can be used to prove her memory power, but is not helpful and sufficient to establish the guilt of the accused. The evidence of P.W.11 is just a repetition of the contents in the report, which can be used to prove her memory power, but is not helpful and sufficient to establish the guilt of the accused. Therefore, there is substance in the submission made by the learned counsel for the appellant that the evidence of P.W.11 does not hold good and accordingly, the same is rejected. Moreover, there are a lot of contradictions between the deposition of P.W.5 and the report of P.W.11 obtained from the brother of Dhanalakshmi. The brother of Dhanalakshmi, who was said to be very much present at that time, nowhere mentioned the name of the appellant, whereas the statement of P.W.5 is otherwise. Similarly, the brother of Dhanalakshmi had stated that he left the place along with his sister after the quarrel arose, but, however, P.W.5 had stated that Dhanalakshmi was standing at a far off distance, when the murder took place. Thus, a conclusion can be drawn that there is no corroboration between the depositions of the witnesses. 19. The Hon'ble Supreme Court in the case of Pandit/Ram Parkash Sharma vs. Kharaiti Lal, reported in AIR 1998 SC 2820 held that if there are improbabilities made by the witnesses, that itself is a fatal to the case of prosecution. The relevant portion of the judgment is extracted hereunder: “4. Having gone through the evidence of Subhash Chander and Gobind Ram we find that, even though all the 4 accused were known to them, accused Subhash Chander and accused Ramesh Kumar were not named by both the witnesses in their initially version given to the police and the doctor respectively. We also find that the remaining 8 injuries found on the deceased were not likely to have been caused as a result of fall from a bicycle. Thus those injuries remain unexplained. As pointed out by the High Court if the accused Kalia held the deceased in the manner described by the witnesses then it would not have been possible for Kharaiti Lal to give the fatal blow alleged to have been given by him. If in view of such improbabilities and improvements made by the witnesses the High Court thought it fit not to believe the two eye witnesses, it cannot be said that the view taken by it is unreasonable justifying interference by this Court. 5. This appeal is, therefore, dismissed.” 20. If in view of such improbabilities and improvements made by the witnesses the High Court thought it fit not to believe the two eye witnesses, it cannot be said that the view taken by it is unreasonable justifying interference by this Court. 5. This appeal is, therefore, dismissed.” 20. This Court, at the same time, should not lose sight of the fact that even though the Police had failed to prove the case beyond doubts, this Court has its primary duty to peruse the Postmortem Certificate, which is marked as Ex.P.13 to ascertain whether the death had occurred only on account of the attack with aruval or through any other mode and Dr. Royappan Kumar, the Postmortem Doctor / P.W.16, who had commenced the post-mortem at 11.30 a.m. on 16.03.2014, had noted the following features in his Post Mortem Certificate: “IDENTIFICATION AND CASTE MARKS: (1) A scar (L) knee (2) A scar above (R) knee (3) ABM (L) Glyptal region. The body was first seen by the undersigned at 11.30 A.M. on 16.03.14. Its Postmortem commenced at 11.30 A.M. on 16.03.14. Appearance found at the post-mortem: One dead male body kept in PM shed for examination. Confirmed by its marks. External Examination shows assymetrical, lies on back. Block of body. (1) 2.5 x 1 x 1.5cm cut wound (L) angle of mandible. (2) 7.5x1cm linear abrasion (L) submandibular region, (3) M-shaped cut wound chin. (4) 2.5x2.5x1.5cm deep cut wound (L) shoulder. (5) 8x4cm skin abrasion would medial 1/3 of (L) clavicle region. (6) 11x5cm skin avulsion would © post triangle of neck. (7) 23x8x11cm sized unshaped deep cut with crush injury in neck mid & lateral aspect with irregular skin edges with exposed skin with open trachea and esophagus and carotid vessels both side with strap muscle cut injured. Cut injury external into certical bone, 3, 4 level bones crushed with absent trachea, only post part of neck skin only tagging of head. Internal Examination shows empty periotoneal with black liver, pale abdominal organ with crushed spinal cord at C3, C4 end.” 21. In the final opinion, it has been specifically stated that the deceased would appear to have died of Multiple injuries, causing damage to major blood vessels and thereby leading to death. Internal Examination shows empty periotoneal with black liver, pale abdominal organ with crushed spinal cord at C3, C4 end.” 21. In the final opinion, it has been specifically stated that the deceased would appear to have died of Multiple injuries, causing damage to major blood vessels and thereby leading to death. The Postmortem Doctor had explicitly indicated that the death of such nature would have been caused on account of loss of blood, pursuant to sustenance of multiple injuries on the body. It is no doubt true that the deceased was murdered by way of indiscriminate attack, but there is no iota of evidence to establish that the accused has caused his murder, as there is no direct eyewitness to the incident and the prosecution had not proved its case beyond reasonable doubts as to whether the appellant was really responsible for the death of the deceased. 22. From the cross examination of P.W.2 / mother of the deceased, it could be seen that several cases are pending against the deceased and though it was stated by P.W.2 that all those cases are foisted cases, it cannot be ruled out that no case is pending against the deceased. P.W.5 also stated in his cross that the deceased was a habitual offender and he was facing criminal cases both in Trichy and Madurai. Therefore, in our considered opinion, the Police, having failed to trace out the real culprit, had falsely implicated the appellant into the alleged occurrence. 23. It is apposite to state here that several witnesses in this case had turned hostile and weakened the prosecution case and therefore, the benefit of doubt must be extended to the accused. Apart from the above, the evidences adduced on the side of the prosecution appear to be not genuine and the statement obtained from the accused under Section 313 Cr.P.C. cannot be used as a ‘Fevi Kwik’ to bridge the broken chain of events and circumstances so as to prove the guilt of the accused and if this practice is allowed, then all the cases will naturally end in conviction only, as it is the duty of the Court to find out the fact and at the same time, it is for the Police to find out the truth. 24. 24. In view of what is stated hereinabove, we are of the considered opinion that the prosecution has failed to prove the case beyond reasonable doubts and therefore, it will not be safe to convict the Appellant with the available evidence. Hence, we conclude that the judgment of the Trial Court requires interference by this Court. 25. In the result, the judgment dated 19.05.2015 made in S.C.No.124 of 2014 by the Additional District and Sessions Judge and E.C.Court, Pudukkottai, is hereby set aside and the Appellant / A2 is acquitted from all charges. Accordingly, this Criminal Appeal is allowed and the bail bonds executed by the Appellant shall stand cancelled and the fine amount, if any, paid by him shall be refunded to the Appellants.