JUDGMENT : C.KUMARAPPAN, J. PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code to set aside the judgment and sentence dated 28.09.2018 imposed in S.C.No.12 of 2009 on the file of Principal District Sessions Judge, Thiruvannamalai. The instant Criminal Appeal has been filed by the accused 1 to 4, 8 and 9 against the order of conviction passed by the Principal Sessions Judge, Tiruvannamalai in SC.No.12 of 2009 vide order dated 28.09.2018. There were originally 13 accused, out of whom, the 7th accused died during pendency of trial. Hence, the charge against him got abated. In respect of the accused 5, 6, 10 to 13, the Trial Court did not find them guilty and acquitted them. Therefore, the accused, who suffered conviction viz., accused 1 to 4, 8 and 9 have preferred the instant Criminal Appeal. 2 (a). According to the prosecution case, there was a long drawn dispute between the accused and the deceased family in respect of a passage, which leads to the village common graveyard. It appears that the accused's family purchased an extent of 1/2 acre from one Dhanabakkiam, which according to the accused, is part of the common passage proceeding to the graveyard. Hence, the accused objected the deceased in constructing a building thereon, as the same would obstruct the passage. On account of such enmity, on 13.04.2008 at about 7.00 a.m, all the accused came to the deceased Vellayan's house and started quarelling with him and thereafter, all the accused attacked the deceased Vellayan. Since the 2nd deceased Kamalakannan intervened, he was also attacked by all the accused. Thus, both “Vellayan” and “Kamalakannan” were severely injured. When they were taken to the hospital, Vellayan was declared dead, and later, the other deceased Kamalakannan died in the hospital. Immediately thereafter, one Chandranathan @ Murugan, who is the son of the deceased Vellayan, gave a statement before the Police station at about 14.00 hours. The statement was recorded by PW17-Mr.Munirathinam, who had registered an FIR in Crime No.109 of 2008 under Sections 147, 148, 323, 324, 427, 302 r/w 34 IPC. After registering the FIR, he forwarded the same to the concerned jurisdictional Magistrate as well as to the Investigating Officer. The statement was recorded by PW17-Mr.Munirathinam, who had registered an FIR in Crime No.109 of 2008 under Sections 147, 148, 323, 324, 427, 302 r/w 34 IPC. After registering the FIR, he forwarded the same to the concerned jurisdictional Magistrate as well as to the Investigating Officer. (b) On receipt of the copy of FIR, the Investigating Officer Mr.Gunasekaran [PW18] rushed to the scene of occurrence at about 15.30 hours on 13.04.2008, prepared Observation Mahazar [Ex.P16] and Rough Sketch [Ex.P17] in the presence of Mr.Durai [PW13] and Mr.Ramamoorthi [PW14]. He has also collected the blood stained soil, as well as the sample soil at the scene of occurrence and ATM card of one of the accused were also recovered in the presence of the very same witnesses. He then conducted inquest upon the body of the deceased Vellayan, and made arrangements for the postmortem. On 14.04.2008, he proceeded to the Vellore Government Hospital and conducted inquest upon the body of the deceased Kamalakannan, and made arrangements for his postmortem. On the very same day at 10.00 a.m, he arrested the accused Elumalai [A1], Pichandi [A3], Arunagiri [A7], Manjunathan [A8] and Mani [A6] at Elluparai Bus Stand. Thereafter, the 1st accused Elumalai gave a confession statement in the presence of Mr.Panduranga Udayar [PW8], and one Kathavarayan. After recording the confession statement, a discovery of fact was effected by recovery of a wooden log, iron chain and iron pipe near Siruvallur river bund. The Investigating Officer has also recovered blood stained shirt and lunghi of the first accused and made arrangements to forward the same to the concerned jurisdictional Magistrate. (c) After that, another Investigating Officer Mr.Annadurai [PW19] took up investigation and made arrangements to forward the recovered material objects for forensic analysis. He arrested the accused Pachamuthu [A4], S.Murugan [A2], Sampath [A9], K.Murugan [A13], Balakrishnan [A12], and P.Murugan [A10] on 16.04.2008 at 15.00 hours. S.Murugan [A2] had voluntarily given confession statement in the presence of Velu [PW9] and Sathish [PW12]. Thereafter, a discovery of fact was effected by recovering blood stained shirt and a sharp edged blood stained stick. After that, all the above accused were remanded to the judicial custody. He then recorded the statement of one Mrs.Vijayalakshmi, D/o. deceased Vellayan, who is a deaf and dumb witness, with the assistance of sign language expert, namely Mr.Elanchezhiyan. He had also recorded the statement of Mr.Elanchezhiyan. After that, all the above accused were remanded to the judicial custody. He then recorded the statement of one Mrs.Vijayalakshmi, D/o. deceased Vellayan, who is a deaf and dumb witness, with the assistance of sign language expert, namely Mr.Elanchezhiyan. He had also recorded the statement of Mr.Elanchezhiyan. After collecting the postmortem report of Vellayan, and Kamalakannan, he examined the postmortem Doctor Mr.Dhanabal [PW16], and Mr.Vasanthamurthy [PW15]. He also recorded the statement of Mr.Sivaraj, who had given treatment to the deceased and the de facto complainant Chandranathan. On 10.06.2008, he arrested the accused Venkatachalam at Tiruppur. Eventually, after collecting all the forensic reports and completing the investigation, he laid final report against the accused. 3. Before the Trial Court, the prosecution examined 21 witnesses as PW1 to PW21, marked 24 documents as Exs.P1 to P24, and 11 Material Objects as M.O.1 to 11. On the side of the defence, no witness was examined and no document was marked. 4. The Trial Court, after having considered the oral and documentary evidence, has ultimately convicted the accused 1 to 4, 8 and 9 alone, and acquitted the other accused from all charges. Assailing the said order, the appellants are before this Court. 5. The learned Senior Counsel would vehemently contend that there was no nexus between the accused and this occurrence. It was further contended that the accused behaved with conceit against the residents of Melasiruvallur village. By the conduct of the accused, there was a upheaval among the villagers, and that as a mob, they attacked the deceased, and that these accused are innocents and have been falsely implicated in this case as they mediated between the deceased and villagers. The learned Senior Counsel would further contend that all the witnesses, who had been relied by the prosecution, had fudged to the effective cross examination, and there were material contradictions between one witness to other witness, which would impregnably demonstrate the failure on the part of the prosecution in not proving the charges beyond reasonable doubts. The testimony of all the prosecution witnesses especially PW1 to PW5, and PW10, who being the relatives and relied by the prosecution, had endogenous bias against the accused and that their evidence had condescending inherent improbabilities. It was further contended that the evidence of PW1 could not be relied as he died prior to the cross examination. The testimony of all the prosecution witnesses especially PW1 to PW5, and PW10, who being the relatives and relied by the prosecution, had endogenous bias against the accused and that their evidence had condescending inherent improbabilities. It was further contended that the evidence of PW1 could not be relied as he died prior to the cross examination. The learned Senior Counsel would further contend that the arrest and recovery had not been established as the witnesses turned hostile. However, the Trial Court, without taking into consideration of the relevant materials, simply proceeded on the basis of presumptions and assumptions, and erroneously concluded that the prosecution has proved the charges against the appellants. It is the submission of the learned Senior Counsel that the findings rendered by the Trial Court is perverse and liable to be interfered with and hence, prayed to allow the Criminal Appeal. 6. Per contra, the learned Additional Public Prosecutor would vehemently contend that PW1 had categorically implicated all the accused and that it was the accused, who did not cross examine PW1 and therefore, contended that the accused cannot take advantage of their own fault. The learned Additional Public Prosecutor would also contend that the evidence of PW1 is admissible on par with any other evidence and has to be relied upon. More so, since the evidence of PW1 is unchallenged, the finding rendered by the Trial Court is well merited and does not require any interference. It is the further contention of the learned Additional Public Prosecutor that, though PW2 to PW5 and PW10 are close relatives of the deceased, they are natural witnesses and were present along with the deceased and witnessed the occurrence. The contention of the learned Senior Counsel for the appellant referring to the contradictions will in no way affect the trustworthiness of the evidentiary value of the witnesses, as the contradictions are not touching upon the core issue of the prosecution case. Therefore, the learned Additional Public Prosecutor would contend that the prosecution has established the charge beyond reasonable doubts against these appellants. Hence, prayed to dismiss the instant Criminal Appeal. 7. We have given our anxious consideration to either side submissions. 8. Therefore, the learned Additional Public Prosecutor would contend that the prosecution has established the charge beyond reasonable doubts against these appellants. Hence, prayed to dismiss the instant Criminal Appeal. 7. We have given our anxious consideration to either side submissions. 8. The witnesses mainly relied by the prosecution and their relationships are tabulated as follows:- Prosecution Witnesses Relationship PW1-Kannan Brother of the deceased Vellayan PW2-Malliga Wife of deceased Vellayan PW3-Kalaiselvi Wife of deceased Kamalakannan PW4-Senthil Son of Deceased Kamalakannan PW5-Ayyappan Son of Deceased Kamalakannan PW10-Vijayalakshmi Daughter of the deceased Vellayan (Deaf and Dumb) 9. Admittedly, the deceased Vellayan and Kamalakannan died due to the attack by a group of people, to put it differently by a mob. But the issue now is, whether the alleged involvement of these accused has been proved beyond reasonable doubts, or not. If we look at the Accident Register of the deceased Kamalakannan [Ex.P23], which was recorded by the Doctor Mr.K.V.Saravanan [PW20], he recorded that Kamalakannan was assaulted by two known persons with stick on 13.04.2008 around 7.30.am near his house. According to PW20, the deceased Kamalakannan was taken by Kalaiselvi, who was examined here as PW3. In respect of Vellayan [the other deceased], the Doctor Kumaravel [PW21] has given an accident register [Ex.P24], wherein the number of assailants is recorded 'not known'. But ultimately both Vellayan and Kamalakannan died. According to the postmortem certificate [Ex.P13], which was marked through PW15-Dr.Vasanthamurthy, the deceased Kamalakannan had the following injuries:- “ABRASIONS Right elbow 2 ^ 1 cm. Left knee 4 ^ * 3 cm. CONTUSION Anterior part of middle of Left Leg, 6 ^ * 5 cm.O/D Fracture of shaft of left tibia present. Dorsum of left hand, 6 ^ * 4 cm.O/D Transverse fracture of shaft of medial four meta carpal bones. LACERATION Right side of fronto-parietal region of scalp of size 10 ^ * 2^ * 1 cm. Left parietal region of scalp of size 2 ^ * 1^ * 1 cm. Left ring finger 1 ^ * 1^ * 1 cm. Anterior part of middle of right leg 4 ^ * 1^ * 1 cm Leg O/D: Sub-Scalp haematoma of size 8*4 cm extending over right fronto- parietal and occipital region of scalp BRAIN: 1) Subdural haematoma of 8*5*2 cm over the right temparo-parietal lobes present. 2) Diffuse sub arachnoid haemorrhage seen over the parietal region of both sides and occipital lobe. 2) Diffuse sub arachnoid haemorrhage seen over the parietal region of both sides and occipital lobe. Other findings HYOID BONE: Intact. LARYNX AND TRACHEA: Contained mucous froths, mucosa pale. All vital midline structures of neck were intact. NAD. LUNGS. Both lungs, normal.C/s pale. HEART: Normal size, Great vessels normal, Coronary vessels patent. Coronary ostia were normal. All chambers empty. STOMACH: Normal.C/s: Partially digested food particles present. Mucosa pale. SMALL INTESTINE: Contained yellowish chyme with bile stained fluid. No specific characteristic smell perceived. Mucosa pale. LARGE INTESTINE: Distended with gas. LIVER, SPLEEN, KIDNEY: On cut section found pale GALL BLADDER: Contained bile. PANCREAS:C/s pale BLADDER: Empty. ALL OTHER INTERNAL ORGANS: On C/s found pale OPINION: The deceased would appear to have died of consequences brain injuries sustained. of head and brain injuries sustained.” The Doctor has ultimately opined that the deceased Kamamalakannan appeared to have died of consequences of head and brain injuries. 10. Similarly, the postmortem certificate of Vellayan [Ex.P14] marked through the Doctor Dhanabal [PW16], the deceased Vellayan has got the following injuries:- “External Injuries 1. Laceration of 6x1x0.5 cm over the fronto paerital junction of scalp in coronal direction with red blood clots. 2. Stab wound of 1x0.5x0.5 cm RT Cheek. Edges clean. Red in color. 3. Four stab wounds of 2x1x3 cm each present over lateral aspect of lower 1/3 of RT arm. Blood clots present. 4. Red contusion of 5x5 cm present just above RT ankle with deformity # both bone present. 5. Three abrations of each 3x1 cm present just below LT knee red in clour. 6. A red contunion of 6x3 cm scapular area LT. Internal Examination. Thoroco abdominal cavity opened all internal organs are pale. Stomach empty. Heart 250 gm empty-lungs RT 600 gm LT 550 gm. spleen 150 gm. Liver 1200 gm. kidney 150 gm each bladder empty Examination of skull: After reflection of scalp a linear # of LT frontal bone 3 cm cornal direction present. Skull opened brain. Red haemotoma (Extradural) present over LT frontallobe of cerebrum. Size 3x3 cm Brain Semisolid 1100 gm. Cs pale. Spinal column and cord intact. Hyoid bone intact PM Concluded at 1.30 pm On 14-04-2008. Opinion as to cause of Death:- (a). Reserved pending report of. (b). Skull opened brain. Red haemotoma (Extradural) present over LT frontallobe of cerebrum. Size 3x3 cm Brain Semisolid 1100 gm. Cs pale. Spinal column and cord intact. Hyoid bone intact PM Concluded at 1.30 pm On 14-04-2008. Opinion as to cause of Death:- (a). Reserved pending report of. (b). The Deceased would appear to have died of shock and haemorrhage due to injuries sustained 24-26 hours prior to autopsy commencement.” Finally, the Doctor opined that the deceased Vellayan would appear to have died of shock and hemorrhage due to the injuries. Thus, it stands established that both the deceased succumbed to homicidal deaths due to asssault. 11. On this aspect, the learned Additional Public Prosecutor would vehemently contend that PW1-Kannan had implicated the accused 1, 2, 3 and 4 with assault of the deceased Vellayan. It is the further contention of the learned Additional Public Prosecutor that, the evidence of PW1 is unchallenged, which can be relied upon to arrive at a safe conclusion against them. However, the learned Senior Counsel for the appellant would vehemently contend that since PW1 could not be cross examined, as he died prior to cross examination, his evidence should not be given any credence. The Trial Court also rightly considered the argument and did not give much importance to the PW1's deposition. 12. Even otherwise, while considering the veracity of PW1's evidence, the other witness PW21-Doctor's testimony would make PW1 of not being a occurrence witness. The relevant portion of PW21 evidence is as follows:- Therefore, the narration of the PW1 chief examination that these accused had quarreled with the deceased, could not have been true. Because if he had witnessed the occurrence, he would have informed the Doctor as to whether the assailants were known or unknown persons. However, there is no reference as to the cause for injury in the accident register of Vellayan [Ex.P24]. Therefore, the standard of evidenciary value of PW1, even otherwise, would come within the category of neither wholly reliable nor wholly unreliable. Therefore, by all means, requires to be corroborated through other evidences. 13. While looking at the evidence of PW2-Wife of Vellayan, though she had spoken about something during her chief examination, she had fudged during cross examination, by stating that she does not know about the assailants. Therefore, by all means, requires to be corroborated through other evidences. 13. While looking at the evidence of PW2-Wife of Vellayan, though she had spoken about something during her chief examination, she had fudged during cross examination, by stating that she does not know about the assailants. For ready reference, the admission of PW2 is extracted hereunder:- According to the PW2 qua wife of Vellayan, she had ultimately and graciously admitted that she had given complaint against the accused, only upon the suspicion. 14. The other witness PW3-wife of deceased Kamalakannan, though had implicated some of the accused in her chief examination, had fairly conceded during cross examination that she reached the scene of occurrence on information from some unknown persons. She further admits that when she and her son PW4 and PW5 reached the spot, all of them were lying with injuries. The relevant portion of the evidence of PW3 is as follows:- 15. Thus, PW3 did not specifically implicate any of the accused during cross examination. We would reiterate that when she and her sons, Senthil [PW4], and Ayyappan [PW5] rushed to the scene of occurrence, she found her husband was already on the ground with injuries and they took them to the hospital. It is pertinent to mention here that even PW5(son) has supported the statement of Kalaiselvi [PW3]. According to Ayyappan [PW5], he would state that PW3 to PW5 came to the scene of occurrence together. The relevant of portion of the admission of PW5 is as follows:- 16. Thus, when PW3 was not the occurrence witness, since she had admitted that everything was over before they reached the scene of occurrence, in such circumstances and background, the evidence of PW4 and PW5, implicating the other accused, becomes attenuated and hence, is highly doubtful. 17. There is yet another reasonable doubt raised by the learned Senior Counsel. In the present case, the complaint was registered by PW17 at about 14.00 hours on 13.04.2008. But prior to this Ex.P22-complaint, according to PW5, the police force had reached the scene of occurrence at about 9.00.am and had obtained the statement and signature of PW5. The relevant portion is as follows:- 18. Similarly, PW4 had also stated that, at about 11.00 a.m, a complaint was given by PW3. The relevant portion of the admission of PW4 is as follows:- 19. The relevant portion is as follows:- 18. Similarly, PW4 had also stated that, at about 11.00 a.m, a complaint was given by PW3. The relevant portion of the admission of PW4 is as follows:- 19. Therefore, even prior to Ex.P22-Complaint, the police already had information, which could be inferred from the evidences of PW4 and PW5. According to PW4, the earlier information was given at 11.00.am by PW3. According to PW5, the earlier information was given at 9.00.a.m by himself. But both the earlier informations were suppressed before this Court. Therefore, as rightly contended by the learned Senior Counsel, this also raises a reasonable doubt, which aspect was not considered by the Trial Court. 20. The other evidence, which has been relied upon by the Trial Court is the evidence of PW10-Vijayalakshmi, daughter of Vellayan, who is a deaf and dumb witness. She had narrated alleged minute details of the occurrence even in her cross examination. But, if we look at the evidence of PW2 closely [as extracted hereinabove in paragraph 13], she deposed that in the scene of occurrence, she did not see PW10-Vijayalakshmi. More pertinently, PW10 has categorically admitted that at the time of occurrence, she was with her sister Mahalakshmi, who was examined as PW6. But, she [PW6], in her statement, would state that she came to Melasiruvallur village, only after hearing the information, to see the body of both the deceased. According to Mallika [PW2], her daughter Mahalakshmi [PW6] was at Mambattur village, which place is about 70 kms away from the scene of occurrence. But, if we take the evidence of PW10-Vijayalakshmi, she had categorically admitted during her cross examination that she was with her sister PW6-Mahalakshmi at the time of occurrence. The relevant portion of the admission of PW10 is as under:- This would sufficiently prove that PW10 could not have been in the scene of occurrence. Therefore, in view of inherent improbabilities, her evidence is highly doubtful. More pertinently, while examining the Investigating Officer, he admits that PW10 did not say the name of any of the accused during investigation. Therefore, the evidence of PW10 naming few accused during trial is a material improvement. Thus, her presence at the scene of occurrence is elusive and far from truth. 21. More pertinently, while examining the Investigating Officer, he admits that PW10 did not say the name of any of the accused during investigation. Therefore, the evidence of PW10 naming few accused during trial is a material improvement. Thus, her presence at the scene of occurrence is elusive and far from truth. 21. Further, though PW4 and PW5 had spoken about the specific overtact of certain accused, when their statements were recorded by the Investigating Officer-PW18, PW3 did not implicate A2, A3, A5, A10 and A13. Similarly, PW5 did not mention about A1, A2, A3, A4, A9, A11, A12 and A13. Therefore, even their evidence during chief examination has a material improvement, that too on material particulars, which would render their evidences as highly doubtful. 22. As already stated, it is apparent from the evidences of PW2, PW3 and PW10 that, it is not the case of an attack by 13 accused. Even as per their evidence, it was an assault made by a huge crowd containing more than 100 persons. Therefore, unless a test identification parade was conducted so as to decipher these accused among huge coterie of 100 villagers, it would be highly dangerous to fix these accused and that there would also be every possibility of false implication of innocent persons. 23. Here, as already stated, though deceased Kannan [PW1] has spoken about certain things, since he died before cross examination, his evidence though admissible, the weight to be attached to such evidence, should depend upon the other facts and circumstances of the case. In this regard, it is useful to refer to the judgment in Srikishun Jhunjhunwalla v. Emperor, reported in AIR 1946 Pat 384. In our case as discussed hereinabove, the PW1 is neither wholly reliable nor wholly unreliable. In this background, while looking at the other eyewitnesses, they did not corroborate the evidence of PW1. Therefore,we are of the firm view that the finding rendered by the Trial Court against the appellants/accused 1 to 4, 8 and 9 is liable to be interfered with, as there are numerous reasonable doubts about the involvement of these appellants. To put it differently, the prosecution has miserably failed to prove the charges against these accused beyond all reasonable doubts and therefore, these appellants are also liable to be acquitted. 24. In the result, this Criminal Appeal is allowed. To put it differently, the prosecution has miserably failed to prove the charges against these accused beyond all reasonable doubts and therefore, these appellants are also liable to be acquitted. 24. In the result, this Criminal Appeal is allowed. The judgment dated 28.09.2018 passed in S.C.No.12 of 2009 on the file of Principal District Sessions Judge, Thiruvannamalai is hereby set aside. The appellants are acquitted from all the charges, and the fine amount paid by them will be directed to be refunded. The bail bond, if any, executed by the accused shall stand cancelled.