JUDGMENT :. S. Vaidyanathan, N. Anand Venkatesh, JJ. Prayer: Appeals are filed under Section 374(2) of the Code of Criminal Procedure, against the Judgment, dated 12.12.2017, passed in S.C.No.2 of 2016 by the learned Additional District and Sessions Judge (Presiding Officer, Special Court for E.C and NDPS Act Cases), Pudukkottai, and to acquit the appellants herein. 1. These Criminal Appeals have been filed by the appellants (A1 to A4), aggrieved by the Judgment passed by the learned Additional District and Sessions Judge (Presiding Officer, Special Court for E.C and NDPS Act Cases), Pudukkottai, dated 12.12.2017, made in S.C.No.2 of 2016, wherein the appellants were convicted for an offence under Section 120 (b) r/w 302 and 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.2000/- each, and in default, to undergo three months Simple Imprisonment. 2. The case of the prosecution is that A1 and A2 are brothers and A3 is the relative of A1 and A2. A4 is the friend of A1 and A2. The deceased persons are the sons of one E.Durairaj and they are brothers. 3. The prosecution is alleging civil dispute, illegal sand mining (which is said to have been informed to the revenue authorities by the deceased persons) and dispute regarding the temple festival, to be the reason for the previous enmity between the parties and the motive behind the crime. On 04.10.2013, at about 9.30 p.m., A4 is said to have made a telephone call to P.W.3 as if an illegal quarrying is done by A1 and P.W.3, in turn, informed the same to the deceased persons and they went to verify the same in their two wheeler. They did not find any quarrying activities and all of a sudden A1 to A4 had come in a two wheeler and had attacked the deceased persons with Aruval resulting in the death of both the deceased persons on the spot. It is further alleged that the eyewitness P.W.1 was also threatened by the accused persons and thereafter, they had run away from the scene of occurrence. 4. P.W.1 is said to have given a compliant(Ex.P.1) to the Sub Inspector of Police (P.W.23) at about 2.30 a.m., on 05.10.2013 regarding the incident. Based on the same FIR (Ex.P.16) came to be registered in Crime No.126 of 2013 for an offence under Sections 341, 506(ii) and 302 of IPC. 4. P.W.1 is said to have given a compliant(Ex.P.1) to the Sub Inspector of Police (P.W.23) at about 2.30 a.m., on 05.10.2013 regarding the incident. Based on the same FIR (Ex.P.16) came to be registered in Crime No.126 of 2013 for an offence under Sections 341, 506(ii) and 302 of IPC. The express FIR was handed over to the Sub Inspector of Police and the same reached the Judicial Magistrate Court, Keeranur. 5. The investigation was taken up by the Inspector of Police (P.W.25) and he came to the scene of occurrence at about 3.30 a.m., and in the presence of the witnesses, he prepared the observation mahazer (Ex.P.2) and rough sketch (Ex.P.22). Thereafter, he recovered the two wheeler under seizure mahazer- Ex.P.3 (M.Os.1 to 3). He also recovered the mobile phones (M.Os.4 to 7) and the blood stained sand and normal sand (M.Os.8 to 11). The investigation officer also recovered two pairs of slippers (M.O. 12) and a towel (M.O.13) under seizure mahazer. 6. The investigation officer, fearing law and order problem, had sent the dead bodies of the deceased to the Government Hospital, Tiruchirappalli. He also sent P.W.2, who is the injured witness to the hospital. He thereafter went to the Government Hospital and conducted an inquest over the dead bodies of the deceased persons in the presence of panchayatars and prepared the inquest report (Ex.P.23 and Ex.P.24). He completed the inquest at about 10.30 a.m., and had sent the body through the Special Sub Inspector of Police (P.W.20) with a requisition for conducting postmortem. 7. The investigation officer informed the dog squad and fingerprint expert. The investigation officer, based on the information, arrested A2 on 06.10.2013 at about 2.00 p.m., and in the presence of witnesses (P.Ws.4 and 5) recorded the confession of the accused person and recovered the two wheeler (M.O.18), a lungi with blood stains (M.O.26) and a shirt with blood stains belonging to A1 (M.O.24). Based on his confession, he recovered all the four Aruvals (M.Os.14 to 17) under seizure mahazer (Ex.P.5). 8. The investigation officer arrested A4 at about 3.00 p.m., on the same day. In the meantime, A1 and A3 surrendered before the learned Judicial Magistrate, Madurai, and they were taken into police custody. However, no recovery has been made insofar as these two accused persons are concerned. 9. 8. The investigation officer arrested A4 at about 3.00 p.m., on the same day. In the meantime, A1 and A3 surrendered before the learned Judicial Magistrate, Madurai, and they were taken into police custody. However, no recovery has been made insofar as these two accused persons are concerned. 9. The investigation officer recorded the statements of the witnesses under Section 161 (3) of Cr.P.C., and had sent the material objects that were recovered to the Court under Form-95 with a requisition to send it to the Forensic Science Department. The investigation officer collected the postmortem certificates (Exs.P.14 and P.15), wound certificate (Ex.P.13), biological report (Ex.P.17), serological report (Exs.P.18, P.20 and P.21) and the chemical report (Ex.P.19). The investigation officer also collected the call details (Ex.P.11). On completion of the investigation, the investigation officer filed the final report before the learned District Munsif cum Judicial Magistrate, Keeranur, on 03.02.2014, for an offence under Sections 120(b), 343, 302, 506(ii) r/w 34 and 114 of IPC. He also simultaneously sent the alteration report (Ex.P.25). 10. The case was committed to the file of the learned Additional District and Sessions Judge (Presiding Officer, Special Court for E.C and NDPS Act Cases), Pudukkottai, and the same was taken on file in S.C.No.2 of 2016. The charges were framed against the accused persons for an offence under Sections 120(b), 302, 341 and 506(ii) of IPC. The prosecution examined P.W.1 to P.W.25 and marked Ex.P.1 to Ex.P.25 and exhibited M.O.1 to M.O.34. 11. After the completion of the examination of witnesses, the Court below questioned the accused persons under Section 313(1)(b) of Cr.P.C., by putting all the incriminating materials collected against them, during the course of trial and they denied the same as false. 12. The trial Court after taking into consideration the entire facts and circumstances of the case, and after analysing the oral and documentary evidence, came to the conclusion that the prosecution has proved the case beyond reasonable doubts and proceeded to convict and sentence the appellants in the manner stated supra. 13. Mr.V.Gopinath, learned Senior Counsel appearing on behalf of the appellants, in Crl.A.(MD).No.62 of 2018 (A1 to A3) made the following submissions: The eyewitnesses, who were examined as P.W.1 and P.W.2 did not support the case of the prosecution and therefore, the Court below had decided the case based on circumstantial evidence. 13. Mr.V.Gopinath, learned Senior Counsel appearing on behalf of the appellants, in Crl.A.(MD).No.62 of 2018 (A1 to A3) made the following submissions: The eyewitnesses, who were examined as P.W.1 and P.W.2 did not support the case of the prosecution and therefore, the Court below had decided the case based on circumstantial evidence. The circumstances relied upon by the prosecution was not proved and there were lots of gaps in the links that formed the chain of circumstances. The prosecution had relied upon the evidence of P.W.3 and P.W.10, who are the parents of the deceased persons and both of them had made clear improvements during the trial and had stated several facts, which were not stated at the time of recording 161 statements. The investigation officer (P.W.25) has categorically admitted that many of the facts that have been stated by P.W.3 and P.W.10 in the chief examination was not stated at the time of investigation. The prosecution had examined P.W.4 and P.W.5 to prove the confession and recovery and P.W.4 has admitted that there are corrections that have been made after applying whitener and he did not read before signing (Ex.P.5, P.6 and P.7). The arrest and recovery does not in any way advance the case of the prosecution. The recovery of the mobile phones and the call details does not in any way help the prosecution, since the prosecution was not able to correlate the phone numbers to the accused or the witnesses. Even the nodal officers were not examined as a witness. The genesis of the occurrence itself is doubtful. According to P.W.23, the FIR was registered at 2.30 a.m. The photographer (P.W.15) states that on requisition, he reached the scene of occurrence at 2.00 a.m., to take photographs. P.W.3 states that he received the information at about 12.30 and within 5 minutes, he reached the scene of occurrence and police was there in the scene of occurrence and he was inquired. The Head Constable attached to the Dog Squad (P.W.16) received the requisition at 1.00 a.m., as per Ex.P.10. All these clearly shows that even prior to the registration of the FIR, the police was aware about the occurrence. The Court below went wrong in convicting the accused persons based on circumstantial evidence and the judgment is liable to be set aside. 14. All these clearly shows that even prior to the registration of the FIR, the police was aware about the occurrence. The Court below went wrong in convicting the accused persons based on circumstantial evidence and the judgment is liable to be set aside. 14. Mr.P.Ganapathi Subramanian, learned counsel appearing on behalf of A4 in Crl.A.(MD).No.53 of 2018 adopted the arguments of Mr.V.Gopinath, learned Senior Counsel appearing for the appellants (A1 to A3) in Crl.A.(MD).No.62 of 2018. 15. Mr.S.Chandrasekar, learned Additional Public Prosecutor, appearing on behalf of the State submitted that the prosecution had examined P.W.3 and P.W.10 to establish the motive, P.W.18 to establish the phone call received from A4 to P.W.3 before the occurrence and P.Ws.4 and 5 to prove the confession and recovery. The learned Additional Public Prosecutor further submitted that the injury sustained by the deceased persons and the cause of their death has been specifically spoken by the postmortem Doctor (P.W.22) and the treatment given to P.W.2 has been spoken by the Doctor (P.W.21) and their evidence corroborates the other evidence available. The learned Additional Public Prosecutor further submitted that P.W.1 and P.W.2, who were the eyewitnesses, turned hostile and therefore, the prosecution was left with no other alternative, except to prove the case through substantial evidence. The learned Additional Public Prosecutor concluded his arguments by submitting that the Court below has considered each circumstance and has held that the same has been proved and there is absolutely no ground to interfere with the judgment of the Court below. 16. Mr.A.Thiruvadikumar, learned counsel appearing on behalf of the defacto complainant, assisted the prosecution and supported the submissions made by the learned Additional Public Prosecutor. 17. This Court has carefully considered the submissions made on either side and carefully assessed the oral and documentary evidence that is available on record. 18. The case of the prosecution initially was dependent on the version given by the eyewitnesses, P.W.1 and P.W.2. Both these witnesses did not support the case of the prosecution and they were treated as hostile witnesses. P.W.1 has admitted only the signature found in the complaint (Ex.P.1) and he has disowned the contents of the complaint. 18. The case of the prosecution initially was dependent on the version given by the eyewitnesses, P.W.1 and P.W.2. Both these witnesses did not support the case of the prosecution and they were treated as hostile witnesses. P.W.1 has admitted only the signature found in the complaint (Ex.P.1) and he has disowned the contents of the complaint. P.W.2, who was examined as an injured witness did not support the case of the prosecution even though the Doctor, who gave him treatment (P.W.21) speaks about the treatment taken by P.W.2 after the incident at about 7.10 p.m., on 06.10.2013. The wound certificate that was marked as Ex.P.13 also proves the fact that P.W.2 was treated by P.W.21-doctor. Nothing more turns out from the evidence of P.W.21 and the wound certificate Ex.P.13. 19. The Court below decided to treat the case as one under circumstantial evidence and has relied upon the following circumstances, namely, (a) property dispute, (b) illegal sand quarrying, (c) incident at Petrol Bunk, (d) incident on 02.06.2013, (e) incident at Amburpatty, (f) phone call made by A4 to P.W.3 before the incident, and (g) arrest, confession and recovery spoken by P.W.4 & P.W.5. 20. Insofar as the motive is concerned, the prosecution relies upon the evidence of P.W.3 and P.W.10, who are the parents of the deceased persons. Both these witnesses have made a lot of improvements in their evidence by introducing several incidents, which have been taken to be circumstances to prove the motive, by the Court below. A specific question has been put to the investigation officer (P.W.25) in this regard and he has categorically admitted that many of the incidents were not spoken by P.W.3 and P.W.10 when their statements were recorded under Section 161 of Cr.P.C. 21. The relevant portions of his(P.W.25) evidence is extracted hereunder: “TAMIL” 22. Motive is one of the important circumstance through which the prosecution wants to prove this case through circumstantial evidence. In this case, it is seen that lots of incidents have been spoken during evidence and none of this was stated to the investigation officer and therefore, he had no opportunity to investigate any of these facts. Therefore, all these incidents have not been proved except for the oral statements made by the witnesses. 23. In this case, it is seen that lots of incidents have been spoken during evidence and none of this was stated to the investigation officer and therefore, he had no opportunity to investigate any of these facts. Therefore, all these incidents have not been proved except for the oral statements made by the witnesses. 23. Insofar as the recovery of the mobile phones and call details, the evidence of P.W.18, who is the Head Constable shows that no attempt was made to correlate the mobile phones and call details to the accused persons or the witnesses. The relevant portions in his evidence is extracted hereunder: “TAMIL” 24. The prosecution relies upon one of the most important circumstance, namely, the phone call that was received by P.W.3 from A4, wherein he is said to have informed P.W.3 that A1 is illegally quarrying the sand and this was informed to the deceased persons, who went to the scene of occurrence and the murder had taken place. When the investigation officer was questioned regarding the same, he states in his evidence as follows: “TAMIL” 25. The above evidence shows that the so called phone call has not been proved and therefore, on the basis of this phone call, the deceased persons would not have gone to the scene of occurrence, after they were informed by P.W.3. If really there was a phone call, the same could have been easily proved from the call details and that has also not been done in this case. 26. The complaint is said to have been given by P.W.1 to the Sub Inspector of Police (P.W.23), at about 2.30 a.m., and FIR was registered. The version of the prosecution is that they had sought for the assistance of dog squad. The Head Constable of the sniffer dog squad, who was examined as P.W.16 has specifically stated that he received the information from Mathur Police Station at 1.00 a.m., even before the FIR was registered. This is clearly proved by the document Ex.P.10. 27. P.W.3 admits that he reached the scene of occurrence with his wife by 12.35 a.m., on 05.10.2013 and he saw the presence of the police at the scene of occurrence. 28. P.W.15, who is the photographer, who was examined in this case had stated that he received the information from the police and had gone to the scene of occurrence at 2.00 a.m. 29. 28. P.W.15, who is the photographer, who was examined in this case had stated that he received the information from the police and had gone to the scene of occurrence at 2.00 a.m. 29. It is seen from the above that the police was aware about the occurrence even by 12.30 a.m., and had informed the concerned persons to come to the scene of occurrence. However, the FIR itself was registered only at 2.30 a.m., and therefore, the manner in which the police were informed about this incident and the persons from whom they came to know about this incident, has been completely suppressed. It throws a doubt about the very genesis of the case of the prosecution. 30. Insofar as the confession and recovery is concerned, the evidence of P.W.5 completely damages the case of the prosecution. He speaks about the fact that whitener was used in many places in the documents in which his signature was obtained as a witness. The relevant portions of his evidence is extracted hereunder: “TAMIL” 31. The above evidence of P.W.5 throws a lot of doubt regarding the confession and recovery that is said to have been made from A2. 32. The above discussion goes on to show that the prosecution has not proved each circumstance beyond reasonable doubts. There are very wide gaps in every link in the chain of circumstances. The circumstances relied upon by the prosecution does not lead to the only hypothesis that it is only these accused persons, who had committed the murder of the deceased persons. Unfortunately, howsoever strong the suspicion is, the same cannot take the place of proof, which is very essential to convict and sentence the accused persons. 33. In the considered opinion of this Court, the trial Court went wrong in finding that the prosecution has proved the circumstances beyond reasonable doubts. The Judgment of the trial Court therefore requires interference of this Court. 34. In the result, the judgment of the learned Additional District and Sessions Judge (Presiding Officer, Special Court for E.C and NDPS Act Cases), Pudukkottai, dated 12.12.2017, passed in S.C.No.2 of 2016 is hereby set aside and the appellants are acquitted from all charges. The bail bonds executed by the appellants shall stand cancelled and fine amount, if any, paid by them, shall be refunded. Accordingly, both the Criminal Appeals are allowed.