JUDGMENT : M. NIRMAL KUMAR, J. 1. The appellants/A1 and A2 were charged for the offences under Sections 302 r/w 34 and 506(ii) IPC. The trial Court, by its judgment dated 25.02.2014, though found the appellants not guilty for the offences under Sections 302 r/w 34 and 506(ii) IPC, found the appellants guilty for the offence under 304(1) I.P.C. and sentenced them to undergo 10 years RI each and to pay a fine of Rs. 1,000/- each in default to undergo 6 month SI each. Against the said conviction and sentence, this present appeal has been filed. 2. It is represented by the learned counsel appearing for the appellants that during pendency of the appeal, A2 in this case passed away on 10.02.2015. This fact was not denied by the learned Government Advocate (criminal side) also. In view of the same, this appeal abates in respect of A2. 3. The case of the prosecution briefly stated as follows: (i) The deceased Kalifullah is the brother of PW-1 Mohammed Meeran. PW-5 Rajitha Begam is the wife of the deceased Kalifullah. Four months prior to the occurrence, the deceased came to the house of PW-1 at Kuthbisha Nagar, Trichy for doing painting works. PW-2 Kalifulla is the brother-in-law of PW-1 and he is also doing painting work. On 10.04.2013 at about 8.00 p.m. when PW-2 was standing near a tea stall, A1 came to the shop to get cigarette, deceased came there and demanded Rs. 100/- the balance of wage payable by A1 to him, for which, A1 replied that he has no money and slapped on his cheek and there was a quarrel. When the deceased abused A1 with filthy language, he punched the deceased with hands on his chest and flak and the deceased fell down and got up and went towards ‘Mandhai’ (a public place in the village). PW-6 Abdul Rahman, Rickshaw driver also saw the quarrel and then he went away. At that time, A2, who is the brother-in-law of A1 came there. A2 contacted PW-5, the wife of the deceased over phone and informed her that her husband was speaking filthy and abusive language and he is going to kill him and asked her to be ready with money and A1 and A2 went to mandhai. A1 kicked the deceased, when deceased fell down, trampled his neck and A2 also kicked him all over the body. A1 kicked the deceased, when deceased fell down, trampled his neck and A2 also kicked him all over the body. On seeing this, PW-6 Abdul Rahman and PW-7 Sheik Mohammed tried to pacify the accused, for which the accused threatened them to do away. Thereafter, PW-2 went to the house of PW-1 to inform the occurrence. But, PW-1 was not in the house. Thereafter, he went to his house and slept away. On 11.04.2013, the next day, at 6.00 a.m. an auto driver informed PW-1 through phone that there was a dead body in Thennur mandhai and it appears that of his brother Kalifullah. PW-1 immediately rushed to Mandhai and on seeing the dead body, he identified that it is his brother Kalifullah. Thereafter, he called PW-2 and he came there and informed about the previous night occurrence. PW-1 and PW-2 went to Thillainagar Police Station and gave Ex.P1 complaint. (ii) PW-14 Seran, Inspector of Police received the complaint registered a case in crime No. 87 of 2013 under Section 302 IPC and prepared Ex.P13, FIR. Thereafter, he went to the scene of occurrence, prepared Ex.P14 observation mahazer, Ex.P14 rough sketch in the presence of witnesses and recovered M.O.1 blood stained soil and M.O.2 sample soil under Ex.P4 mahazer. He examined the witnesses, recorded their statements. He conducted inquest over the dead body of the deceased Kalifullah. Ex.P15 is the inquest report and sent the dead body to the hospital through PW-12 Head Constable along with Ex.P5 requisition. At 13.00 hours, PW-14 arrested the accused in the presence of witnesses PW-11 Mohammed Asif and Kanikandan and recorded his confession statement and on the basis of the admissible portion of the confession statement Ex.P.11, he recovered M.O.3 mobile phone of A2 under Ex.P10 mahazer. He sent the accused for judicial remand and sent the material objects to the Court along with Form 95. He collected the call details of M.O.3 mobile phone for 10.04.2013 and 11.04.2013 through PW-13, Ramesh, Head Constable. (iii) PW-9 Dr. Ravikumar, conducted postmortem issued Ex.P6 postmortem certificate. PW-10, Rajesh, Scientific Assistant examined the internal organs issued Ex.P9 viscera report and after verifying the viscera report, PW-9 Doctor issued Ex.P7 final opinion that the deceased died of shock and hemorrhage due to multiple wounds. PW-14 gave Ex.P17 requisition to the Court to send the materials objects for chemical examination. Ravikumar, conducted postmortem issued Ex.P6 postmortem certificate. PW-10, Rajesh, Scientific Assistant examined the internal organs issued Ex.P9 viscera report and after verifying the viscera report, PW-9 Doctor issued Ex.P7 final opinion that the deceased died of shock and hemorrhage due to multiple wounds. PW-14 gave Ex.P17 requisition to the Court to send the materials objects for chemical examination. Ex.P18 is the biological report received from the forensic laboratory. He examined the witnesses and recorded their statements and after completing the investigation, he laid charge-sheet against the accused for the offences as stated above. 4. Before the trial Court, on behalf of the prosecution PWs. 1 to 14 were examined and Exs.P.1 to P.20 were marked, produced M.O.1 to M.O.7. On completion of the examination of the witnesses on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. On behalf of the defence, no witness was examined and no document was produced. 5. Considering the evidence available on record, the learned Principal Sessions Judge, Trichy found the accused guilty for the offence under Section 304(1) of I.P.C. and convicted them as stated above. Challenging the judgment of conviction and sentence, the appellant/accused have preferred this appeal. 6. The contention of the learned counsel appearing for the appellants is that PW-1 had not seen the alleged assault on 10.07.2013 at about 07.30 p.m. PWs. and 4, tea shop owner and pushcart vendor had stated that there was heated exchange of words between the deceased and PW-, the deceased demanded Rs. 100/- from A1, following by scuffle they were separated and sent away, thereafter, PWs. 6 and 7 are the witnesses projected to prove that the appellants 1 and 2 had assaulted the deceased in the public place by stamping him. PWs. 6 and 7 had not supported the case of the prosecution and they have not stated about the assault by the appellants. 7. The learned counsel further submitted that the admitted case of the prosecution is that the deceased was a drunkard and on that day, he was in a drunken prowl, picked up quarrel with the 1st appellant/A1. PW-1, brother of the deceased, who was informed by one auto driver, has not been examined about his brother lying dead in the public place viz. PW-1, brother of the deceased, who was informed by one auto driver, has not been examined about his brother lying dead in the public place viz. Mandhai on 11.04.2013 at 06.00 a.m. and thereafter, PW-1 reached there and he informed PW-2, who came later and then only PW-2 had stated about the previous night incident of assault by appellant and the deceased. 8. He would further submit that it is seen that PW-1 admits that immediately half an hour thereafter, the respondent police reached the scene of occurrence and the body was sent to Government Hospital, Trichy for post mortem. Thereafter, PW-1 was asked to come to the police station and he gave the complaint, Ex.P1. PW-2 attested the complaint which is marked as Ex.P2. The certain case of PW-1 is that he had gone to the police station at about 11.00 a.m. and the complaint was lodged between 12.00 noon and 01.00 p.m. Perusal of Ex.P1, it is seen that the complaint has been registered about 06.30 a.m. on 11.04.2013. Further, PW-1 admits that he does not know to read or write Tamil and the complaint was written by the Inspector of Police on his dictation, in which, PW-1 has signed, whereas, the Inspector of Police PW-14 state that a written complaint was received from PW-1. But, PWs. 1 and 2 are certain that they did not know to read and write Tamil and also were not aware about the contents of the complaint. Hence, the complaint coming into existence is clouded with mystery. Further, it would be seen that the FIR in this case had reached the Court with considerable delay and no explanation for the same has been given. 9. He further submitted that PW-1 though states that he had seen the deceased being assaulted by the appellants, he had not taken any steps to interfere, pacify and inform PW-1 on the same day. PW-2, who is the brother-in-law of PW-1 as well as the deceased, admits that thereafter, he went back to his house and slept away and he informed to PW-1 about the earlier day assault only on the next day, his conduct seems to be unbelievable. 10. He further submitted that the other witnesses to the occurrence viz. PWs. 3 and 4 have not stated anything with regard to the assault by the appellants. PWs. 10. He further submitted that the other witnesses to the occurrence viz. PWs. 3 and 4 have not stated anything with regard to the assault by the appellants. PWs. 6 and 7 had not supported the case of prosecution. PW-1 admits that he gone to police station, there he saw the appellants. PW-2 states that he did not notice them. PW-11 is the witness to the arrest, confession and recovery. According to him, the accused were arrested on 11.04.2013 at about 01.00 p.m. According to him, Ex.P1 complaint was registered at about 06.30 a.m. and PW-1's evidence is that the accused were in the police station at that time. Hence, the time, place of arrest of the accused creates doubt as well as the recovery. The mobile phone M.O.3, through which, A2 is said to have informed PW-5 about the assault on her husband and the call records Ex.P12 have no consequence in this case. Call Detail Records (CDR) Ex.P12 stands in the name of one Mohamed Basha of Coimbatore and not of the appellants. In this case, 65B certificate has not been produced as well as no Nodal Officer has been examined. Ex.P12 had been marked through the investigating officer. 11. He further submitted that postmortem certificate and the evidence of postmortem Doctor, PW-9 would indicate that the deceased was in a drunken state and there was no cut injuries and oozing of blood. Further, the injury sustained could have happened due to fall in a drunken state. In view of the fact that no eye witnesses to the occurrence and the circumstances in this case does not lead to irresistible conclusion answering the double test with each link so interconnected leading to irresistible conclusion that the appellants having committed the offence, hence, the learned counsel prayed for allowing the appeal. In support of his contention, he relied upon the following decisions with regard to delay in sending the FIR to the Court: 1. Judgment of this Court dated 23.09.2015 made in C. Nagaraj vs. State of Tamil Nadu, Crl. Appeal (MD) No. 371 of 2010. 2. Judgment of this Court dated 29.01.2016 made in Saravanan vs. State Rep. by Inspector of Police, Adhiyamankottai Police Station, Crl. Appeal No. 29.01.2016. 12. The learned Government Advocate (criminal side) submitted that in this case, PWs. Judgment of this Court dated 23.09.2015 made in C. Nagaraj vs. State of Tamil Nadu, Crl. Appeal (MD) No. 371 of 2010. 2. Judgment of this Court dated 29.01.2016 made in Saravanan vs. State Rep. by Inspector of Police, Adhiyamankottai Police Station, Crl. Appeal No. 29.01.2016. 12. The learned Government Advocate (criminal side) submitted that in this case, PWs. 1 to 14 have been examined and Exs.P1 to 20 have been marked as well as MOs.1 to 7 were marked. PW-1 is the brother of the deceased, who was informed about the death who immediately rushed to the scene of occurrence, called his brother-in-law. PW-2 who also reached the scene of occurrence within 10 minutes and thereafter, they went to the police station, lodged complaint Ex.P1, attested by PW-2, which is marked as Ex.P2. The respondent police, on registration of the case, reached the scene of occurrence, examined witnesses in the presence of PW-8, prepared observation mahazer and Ex.P4, seizure mahazer and taken bloodstained soil and sample soil from the scene of occurrence. Thereafter, inquest was conducted and the body was sent for postmortem and Ex.P6 postmortem certificate was obtained from PW-9 and Ex.P7 final opinion. The opinion is that the deceased died of shock and hemorrhage due to multiple wounds. Further, from the viscera report, it is seen that alcohol or poison was not detected. Thereafter, the accused were arrested on 11.04.2013 at about 1.00 p.m. in the presence of PW-11 and M.O.3 mobile phone was recovered from A2 and on completion of investigation, PW-14 had filed charge-sheet in this case. 13. He further submitted that all the witnesses except PWs. 6 and 7 have supported the case of prosecution. PWs. 2 to 4 state about the assault on the deceased by the 1st appellant on 10.04.2013 at about 07.30 p.m. near the tea shop of PW-3. Further, PWs. 3 and 4 intervened and pacified the deceased and the appellants. PW-5 wife of the deceased clearly state about the 2nd appellant calling her over mobile and informing about the fight with the deceased and to do away him. Further, PWs. 3 and 4 intervened and pacified the deceased and the appellants. PW-5 wife of the deceased clearly state about the 2nd appellant calling her over mobile and informing about the fight with the deceased and to do away him. The witnesses PW-6 and PW-7 turning hostile would not affect the prosecution case, since the other witnesses have clearly stated about the assault by the appellants and the medical evidence is in conformity to the ocular evidence and the lower Court on proper appreciation of the evidence and materials had rightly convicted the appellants, which need not be interfered with. 14. Heard the learned counsel appearing for the appellants and the learned Government Advocate (criminal side) appearing for the State and also perused the materials available on records. 15. Considering the rival submission and perusal of the materials, it is seen that PW-1 is certain that he had reached the police station only by 11.00 a.m. and the complaint was lodged between 12.00 noon and 1.00 p.m. PW-1 and his brother-in-law PW-2, who accompanied PW-1 to police station both don't know to read and write Tamil. Ex.P1 was written down by PW-14 and PW-1 signed the same PW-2 attested vide Ex.P2. Further, both PWs. 1 and 2 categorically stated that they did not know the contents in Ex.P1. PW-14 states that a written complaint from PW-1 was received by him under Ex.P1. Hence there is cloud of mystery in the nature and manner of complaint coming into existence. PW-1 categorically stated that when he had been to the police station to lodge the complaint, PW-1 saw the appellants in the police station. Ex.P1 came into existence at 06.30 a.m. on 11.03.2013, the arrest of the accused on 11.03.2014 is about 01.00 p.m. in the presence of PW-11 becomes questionable one as well as the Ex.P10, the recovery mahazer and Ex.P11, the admitted portion of confession as well as Ex.P4 seizure mahazer for M.O.3 all create doubt. 16. It is the admitted case that PW-1 had seen to the occurrence and he came to know about the occurrence only through PW-2. The evidence of PW-2 is unnatural and does not repose confidence to act upon for the reason that though the deceased is the brother-in-law of PW-2 and he had seen the deceased having quarrel and hit by the appellants, he had not taken any steps to intervene, pacify. The evidence of PW-2 is unnatural and does not repose confidence to act upon for the reason that though the deceased is the brother-in-law of PW-2 and he had seen the deceased having quarrel and hit by the appellants, he had not taken any steps to intervene, pacify. On the other hand, he returned back to his house. Further, as an explanation, he states that he gone to the house of PW-1 to inform about the incident and since, PW-1's house was locked, he returned back and slept away. This is not a natural conduct. PWs. 3 and 4, the tea shop owner and pushcart vendor state that the deceased picked up a quarrel with the 1st appellant demanding some money and there was heated arguments and they were separated, pacified and both PWs. 3 and 4 further state that the deceased was in a drunken state and he had a fell and thereafter, he proceeded. 17. The other witness PW-5, wife of the deceased states that she received the phone call from A2 about the conduct of deceased, who picked up quarrel with them. However, there is no material to substantiate the same. The prosecution attempted to produce Ex.P12 CDR report in the absence of examination of Nodal Officer and 65 B certificate. Ex.P12 is of no consequence. Further, from Ex.P.12, it is seen that the same does not stand in the name of the 2nd appellant and the prosecution had not taken any steps to prove to connect the 2nd appellant with M.O.3 Ex.P12 does not in any way improve the case of the prosecution. Thus, PWs. 6 and 7, who are only the eye witnesses to the occurrence. They have not supported the case of the prosecution. Hence, there is no eyewitness to the occurrence. 18. In these circumstances, it could be seen whether the chain of links are so interconnected leading to the irresistible inference that the appellants are the reason for the death of the deceased. In this case, there is no such chain of link leading to such inference. PWs. 9 Postmortem Doctor opines that the injury sustained by the deceased could have caused due to fall of a person in a drunken state. From Ex.P6 postmortem certificate, there is clear mention about the presence of alcohol in the stomach of the deceased. Further, PWs. In this case, there is no such chain of link leading to such inference. PWs. 9 Postmortem Doctor opines that the injury sustained by the deceased could have caused due to fall of a person in a drunken state. From Ex.P6 postmortem certificate, there is clear mention about the presence of alcohol in the stomach of the deceased. Further, PWs. 3 and 4 categorically stated that the deceased was in a drunken state. PWs. 1 and 2 admit that the deceased was in the normal habit of having consuming alcohol at all time, but strangely in the viscera report, there is no mention of presence of Alcohol. The evidence of PW-2 does not inspire confidence. Further, evidence of PW-3 and PW-4 are contradicting. 19. Further, delay in FIR in reaching the Court is not explained according to PW-14, the investigating officer, he received Ex.P1 at 06.30 a.m. on 11.04.2013. But, strangely, the FIR reaches the learned Judicial Magistrate only at 03.00 p.m. on 11.04.2013 which is evident from the endorsement made by the learned Judicial Magistrate. Thus, there is enormous delay of 8.30 hours in forwarding the FIR to the Court. PW-14 admits that the court is situated only 6 kms away from the Police Station and it will take half an hour to reach the Court. Thus it is doubtful as to whether the FIR would have come into existence at the time as it is projected by the prosecution. Further,- it is seen that all the records and statements reached the Court with a considerable delay. Thus, these infirmities create doubt in the case of the prosecution. These infirmities have not been explained by the prosecution. 20. In view of the same, this Court find that the prosecution had not proved the case beyond the reasonable doubt as against the accused and hence, the appellants are entitled to get benefit of doubt and acquittal. 21. Accordingly, this criminal appeal is allowed. Since as earlier stated, A2 in this case passed away on 10.02.2015, this appeal abets in respect of the 2nd appellant and the conviction and sentence passed by the learned Principal Sessions Judge Trichy in S.C. No. 202 of 2013 dated 25.02.2014 is set aside and 1st appellant is acquitted from the charges as against him. Fine, if any, paid by the 1st appellant/1st accused shall be refunded to him. Fine, if any, paid by the 1st appellant/1st accused shall be refunded to him. Bail bond executed by the 1st appellant/1st accused shall stand cancelled.