JUDGMENT : D. Krishnakumar, J. (Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., against the judgment dated 17.09.2018, made in S.C.No.42 of 2017 on the file of the learned Additional District & Sessions Judge, Fast Track Court, Vellore District to set aside the conviction and sentence life imprisonment and fine of Rs.2000/- (Rupees two thousand only) in default to undergo R.I. for one year imposed against A-1 for the offence punishable under Sec.302 of I.P.C. and as against A-2, a punishment of five years R.I. and to pay a fine of Rs.2000/- in default to undergo R.I. for another one year for the offence punishable under Section 304 Part I of I.P.C.) 1. The appellants 1 & 2 are A-1 and A-2 in S.C.No.42 of 2017 on the file of the learned Additional District & Sessions Judge, Fast Track Court, Vellore District wherein A-1 was convicted for the offence punishable under Section 302 of I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for another one year. A-2 was convicted for the offence punishable under Section 304 Part I of I.P.C. and sentenced to under rigorous imprisonment for five years and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for another one year. The detention period already undergone by the appellants/A-1 and A-2 in this case is set-off under Sec.428 of Cr.P.C. Challenging the said conviction and sentence, the appellants are before this Court. 2. The case of the prosecution, in brief, is as follows:- The case of the prosecution is that P.W.3 Narasimman and P.W.2 Banumathi are husband and wife. P.W.1 Mohanbabu is the son of P.W.2 & P.W.3. The deceased is the aunt of P.W.1 and the accused are brothers and also close relatives of P.W.2 and P.W.3. Kogila is another aunty’s daughter of P.W.1. Kogila and one Devaraj got married and after marriage, that on 12.6.2014 at about 11.30 a.m. customary ceremony (to change of Thali thread) was took place in the house of deceased Nagammal and she only spent money for that ceremony. Kogila is another aunty’s daughter of P.W.1. Kogila and one Devaraj got married and after marriage, that on 12.6.2014 at about 11.30 a.m. customary ceremony (to change of Thali thread) was took place in the house of deceased Nagammal and she only spent money for that ceremony. Due to this, the accused got enraged and after the function, the accused 1 and 2 voluntarily picked up quarrel with Nagammal and scolded her in filthy language and also imitated her by saying “TAMIL” At that time, complainant Mohan Babu rescued and tried to pacify them but he failed in his attempt and so he took the deceased Nagammal to his house and locked the front door. Thereafter, both the accused having common intention of causing death of Nagammal to commit the offence by entering into the backside door of the house of Mohanbabu at 3.00 p.m. on the same day, intentionally and knowingly caused the death of Nagammal by A-1 forcibly beat on her head with wooden log and A-2 kicked her repeatedly on her abdomen and the said Nagammal died due to cumulative effect of splenic rupture and cranio cererbral injury. 3. P.W.1 lodged a complaint Ex.P1 and P.W.10 Thiru Senthamarai, Inspector of Police, Melpadi Police station received the complaint on 13.6.2014 at 6.30 a.m. and registered a case in Cr.No.65 of 2014 for the offence under Sec. 449, 294(b) and 302 I.P.C. under Ex.P9 F.I.R. P.W.12 took up the investigation and went to the scene of occurence on 13.6.2014 at 8.00 a.m. and prepared Ex.P14 Observation Mahazar and Ex.P13 Rough Sketch in the presence of witnesses P.W.5 and P.W.6 and thereafter he conducted enquiry on the dead body of the deceased Nagammal in the presence of Panchayatdars and prepared Inquest report Ex.P15 and sent the body for postmortem, After postmortem, P.W.9, Shanmugam, S.I. of Police collected the cloths of the deceased body and handed over the same to the Insvestigation officer. P.W.12 Investigation officer arrested the accused on 13.6.2014 at 17.30 hours at Serkadu junction road and on enquiry both the accused A-1 and A-2 gave a confession statement in the presence of witnesses P.W.7 and P.W.8. P.W.12 Investigation officer arrested the accused on 13.6.2014 at 17.30 hours at Serkadu junction road and on enquiry both the accused A-1 and A-2 gave a confession statement in the presence of witnesses P.W.7 and P.W.8. Since P.W.12 went on transfer to another station, P.W.11 Thirumal, Inspector of Police took up the case for further investigation and he sent the organs of the deceased to forensic science department for chemical analysis through Judicial Magistrate court and obtained report Ex.P10 and he examined the Doctor and obtained Ex.P11 Postmortem certificate. He also recorded the statement of witnesses. After completion of investigation, he filed charge sheet before the concerned Judicial Magistrate Court. 4. The accused released on bail, appeared before the concerned Judicial Magistrate Court on summons were furnished with the copies of relevant documents under Sec.207 Cr.P.C. and since the offences were exclusively triable by a Court of Sessions, the case was committed to the Principal District Sessions Court, Vellore. The Sessions Court framed charges levelled against both A-1 and A-2 under Section 449 and 302 r/w 34 of I.P.C. 5. Based on the materials available on record, the trial Court framed charge as against the accused for the offence under Sec.449 and 302 r/w 34 of I.P.C. and the same was read over and explained to the accused. The accused pleaded not guilty. In order to prove the case of the prosecution, on the side of the prosecution, as many as 12 witnesses were examined and exhibits P1 to P17 were marked, besides one Material Object. 6. Based on the incriminating materials, the appellants/A-1 and A-2 were examined under Sec.313(1) (b) of Cr.P.C. and they denied the offence and pleaded not guilty. On the side of appellants, no witness was examined and no document was marked. 7. Having considered all the above materials, the trial Court convicted the appellants/accused as stated in the first paragraph of this judgment. Challenging the same, the appellants/A-1 and A-2 are before this Court with this Criminal Appeal. 8. We have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully. 9. The learned counsel appearing for the appellants submitted that P.W.1 to 4 are close relative to the deceased Nagammal. P.W.1 deposed in his chief examination against the version stated in Ex.P1 complaint. 9. The learned counsel appearing for the appellants submitted that P.W.1 to 4 are close relative to the deceased Nagammal. P.W.1 deposed in his chief examination against the version stated in Ex.P1 complaint. As per the evidence of P.W.1, the alleged occurrence took place at 12.00 noon in the house of the deceased. It is unbelievable that P.W.1 saw the occurrence directly. Moreover, P.W.1 says in two different place of occurrence i.e. one in the house of P.W.1 and another is in the deceased house. Therefore, the place of occurrence is not proved by the prosecution. The learned defence counsel has further stated that P.W.2 and P.W.3 are the parents of P.W.1 and they have not seen the occurrence. They came to the spot after the incident. P.W.7 and P.W.8 are confession witnesses, in their chief examination have stated that they put their signatures in the police station on the request made by the Police and they turned hostile and they have not supported the prosecution case. Therefore, confession statement made by the appellants and the recovery of material object are not proved by the prosecution. The learned defence counsel further stated that P.W.2 in her chief examination, has stated that in the place of occurrence, blood was oozing in the ground but the same was not collected by Police. Therefore, blood oozing in the place of occurrence is not proved by the prosecution as to whether the blood is human blood or not. Further, the alleged occurrence took place on 12.6.2014 at 12.00 noon but the complaint lodged on the next day i.e. 13.6.2014 at 6.30 a.m. with delay of 18 hours. Therefore, false allegations made in Ex.P1 complaint and Ex.P1 and P9 are doubtful. Therefore, the prosecution failed to prove its case beyond reasonable doubts. 10. The learned Public Prosecutor appearing for the State submitted that the prosecution has proved its case beyond all reasonable doubts. The learned Public Prosecutor has stated that the prosecution case rest on the strength of Ex.P1 complaint lodged by P.W.1, eye witness to the crime. After lodging the complaint, F.I.R. came to be registered and the Investigation officer rushed to the spot and prepared Observation Mahazar Ex.P14 and Rough sketch Ex.P13 in the presence of witnesses and conducted enquiry on the deceased body in the presence of Panchayatdars and prepared inquest report Ex.P15 and sent the body for postmortem. After lodging the complaint, F.I.R. came to be registered and the Investigation officer rushed to the spot and prepared Observation Mahazar Ex.P14 and Rough sketch Ex.P13 in the presence of witnesses and conducted enquiry on the deceased body in the presence of Panchayatdars and prepared inquest report Ex.P15 and sent the body for postmortem. P.W.12 Investigation officer arrested the accused on 13.6.2014 at 17.30 hours at Serkadu junction road and on enquiry both A-1 and A-2 gave a confession statement in the presence of witnesses P.W.7 and P.W.8. The Investigation officer sent the organs of the deceased to forensic science department for chemical analysis through Judicial Magistrate court and obtained report Ex.P10 and he examined the Doctor and obtained Ex.P11 Postmortem certificate. Therefore, the prosecution has proved its case beyond reasonable doubts. 11. The appellants/A-1 and A-2, the deceased Nagammal, one Manickammal and P.W.1 to P.W.4 are close relatives. P.W.1 is the son of P.W.2 and P.W.3. the deceased Nagammal and Manickammal are sisters of P.W.3. P.W.4 is the brother of P.W.3. A-1 and A-2 are sons of Manickammal, widow. One Gokila is daughter of Manickammal and younger sister of A-1 and A-2. Gokila got married with one Devaraj. The said marriage was arranged by the deceased Nagammal. After three days of marriage, a customary ceremony of “change of thali was held at the residence of the deceased Nagammal. The said Nagammal’s house is just 50 feet away from the house of P.W.1. The occurrence took place due to quarrel picked up by the appellants/A-1 and A-2 with the deceased Nagammal regarding “Seervarisai” given by the deceased Nagammal to Gokila. During quarrel between the deceased Nagammal and the appellants, P.W.1 intervened, rescued and taken her to his house and locked the front door. The appellants went through the back door of the P.W.1’s house, assaulted the deceased Nagammal with wooden log M.O.1. causing death. 12. The Court below on the basis of evidence deposed by P.W.1, P.W.12, Ex.P1, Ex.P9, Ex.P11, Ex.P12 and M.O.1, came to the conclusion that A-1 found guilty for the offence punishable under Sec.302 of I.P.C. and A-2 found guilty for the offence punishable under Sec.304 Part I of I.P.C. 13. The learned counsel appearing for the appellants submitted that the statement made by P.W.1 contradicts to his own version made in Ex.P1 complaint. The learned counsel appearing for the appellants submitted that the statement made by P.W.1 contradicts to his own version made in Ex.P1 complaint. According to the counsel appearing for the appellants, in the complaint marked as Ex.P1, the place of occurrence as stated by P.W.1 is the house of the deceased Nagammal, whereas during examination before the Court, P.W.1 has stated that the occurrence took place in his house. It would be appropriate to extract the relevant portion of the statement of P.W.1 before the Court is as follows: “TAMIL” 14. Therefore, a perusal of the aforesaid statement made by P.W.1 during chief examination, the occurrence took place in P.W.1’s house, whereas in Ex.P1 complaint lodged by him, it is stated as under: “TAMIL” 15. Further, there was some insertions made in Ex.P1 i.e. the word “TAMIL”, in between “TAMIL” and “TAMIL” next, the word “TAMIL” in between “TAMIL” and “TAMIL” another word “TAMIL” in between “TAMIL” and “TAMIL” P.W.1 is not specific in his evidence before the Court that the occurrence took place in his house or in the deceased Nagammal’s house. But he has stated that the appellants/A-1 and A-2 came to his house and there was wordy quarrel among the deceased Nagammal and the appellants at 11.30 hours at the house of the deceased Nagammal. At 3.00 p.m. the deceased Nagammal was available in the house of P.W.1. She was assaulted by the appellants/A-1 and A-2 and the deceased was taken to Sholingur hospital for first aid and thereafter, she was taken to Adukkamparai hospital, Vellore District where she was declared dead. On the one hand, it is stated that the incident occurred in the deceased Nagammal’s house and in another version, it was stated that the occurrence took place at P.W.1’s house. Therefore, it is doubtful to come to a conclusion that the place of occurrence is P.W.1’s house or the deceased Nagammal’s house. Further, the evidence of P.W.1 was not corroborated with any of the witnesses. Therefore, the evidence of P.W.1 who is eye witness to the occurrence is not strong enough to come to a conclusion and unbelievable. 16. Another ground raised in the appeal is that there is a delay in preferring the complaint marked as Ex.P1. Further, the evidence of P.W.1 was not corroborated with any of the witnesses. Therefore, the evidence of P.W.1 who is eye witness to the occurrence is not strong enough to come to a conclusion and unbelievable. 16. Another ground raised in the appeal is that there is a delay in preferring the complaint marked as Ex.P1. As per Ex.P9, the incident was occurred on 12.6.2014 at 3.00 p.m., whereas P.W.1 who is eye witness lodged complaint next day i.e. on 13.6.2014 at 6.30 a.m. There is a delay of nearly 18 hours. The delay has not been explained by the prosecution. Such delay cannot be ignored in a murder case. 17. Therefore, in view of the incongruous statement made by P.W.1, delay in lodging the complaint and the aforesaid insertions made in Ex.P1, Ex.P1 and Ex.P9 are also unbelievable. 18. In so far as recovery of M.O.1 by P.W.12, Investigation Officer is concerned, before the Court P.W.12 has stated that M.O.1 was recovered at Edakuppam compound wall in the presence of P.W.7 and P.W.8, whereas P.W.7, and P.W.8 turned hostile, not supporting the prosecution version. Further, according to P.W.1, both A-1 and A-2 after assaulting the deceased, they dropped the M.O.1 at the scene of occurrence and fled away and in the cross examination, it was stated that the wooden log was thrown away. The prosecution also failed to establish M.O.1 recovered at a place as stated by P.W.12. Therefore, the prosecution has failed to prove Ex.P5, Ex.P6 and M.O.1. 19. The Court below without properly appreciating the materials available on record, came to the conclusion on the basis of incongruous evidence, found A-1 guilty for the offence punishable under Section 302 of I.P.C. and A-2 found guilty for the offence punishable under Sec.304 Part I of I.P.C. and imposed punishment as stated in the first paragraph. 20. In sofar as the punishment imposed against A-2 is concerned, the Court below recorded a finding that though A-2 have no intention to murder the deceased Nagammal, his act would fall under the provision of Section 299 of I.P.C. and punishable under Section 304 Part I of I.P.C. 21. It is relevant to extract Section 34 of I.P.C. which reads as follows: “34. It is relevant to extract Section 34 of I.P.C. which reads as follows: “34. Acts done by several persons in furtherance of common intention- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 22. The Court below while holding that there is no common intention for A-1 and A-2 to murder the deceased Nagammal, recorded a finding that A-1 committed the offence punishable under Section 302 of I.P.C. and A-2 found guilty under the proviso of Sec.299 of I.P.C. and punishable under Section 304 Part I of I.P.C. on the basis of incongruous evidence and the same is unsustainable. We are satisfied with the grounds raised in the appeal and the prosecution has failed to establish its case beyond reasonable doubts and the Court below without appreciating the materials available on record in proper perspective, came to the conclusion and convicted the appellants on the basis of surmise. Therefore, the judgment passed by the Court below is liable to be set aside. 23. Considering the facts and circumstances of the case and in view of the reasons stated supra, the judgment of the Court below passed in S.C. No.42 of 2017 is set aside. A-1 and A-2/ appellants are acquitted under Section 232 of Cr.P.C. The fine amount paid by the appellants shall be refunded to them and consequently, the appeal is allowed.