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Judgment
D. Murugesan, J.—All these criminal appeals arise out of an occurrence that took place on 16.5.2003 at 8.10 p.m., where one Sekar @
Chandrasekar was murdered. Before the learned trial Judge, 13 accused were charge sheeted for trial. Pending trial, one John @ Mani @
Anthony (A-8) was murdered, leaving the other 12 accused to face the trial. Having regard to the evidence put forth on behalf of the prosecution,
the learned trial Judge convicted and sentenced A-1 to A-4 alone for the charges framed against them, but acquitted A-5 to A-7 & A-9 to A-13
of all the charges.
Crl. A. No. 451 of 2005 is filed by A-l to A-3 and Crl. A. No. 990 of 2005 is filed by A-4 challenging the judgment of conviction and sentence
passed by the learned I Additional Sessions Judge, Chennai dated 31.3.2005 made in Sessions Case No. 198 of 2004 convicting and sentencing
each one of them to undergo life imprisonment or the offence u/s 382 read with 149 IPC, to undergo two years rigorous imprisonment for the
offence u/s 148 IPC, to undergo one month simple imprisonment for the offence u/s 341 IPC and that the sentences are ordered to run
concurrently.
Crl. A. No. 749 of 2805 is filed by the State through its Inspector of Police, K-6, T.P. Chatram Police Station, Chennai questioning the
judgment of acquittal in respect of A-5 to A-7.
The case of the prosecution as put forth before the learned trial Judge is that there was previous enmity between the accused group and the
deceased group. On 16.5.2883 at about 7.38 p.m., both the deceased and P.W. 1, who is none other than the brother-in-law of the deceased,
went to one Jolly Wines, Kilpauk Garden to consume liquor. At about 8.88 p.m., a group of seven or eight persons including A-1 to A-4 came in
an Ambassador car and murdered the deceased.
P.W. 1, who witnessed the occurrence, gave a complaint, Ex.P-1 to P.W.31, the Sub Inspector of Police attached to K-6, T.P. Chatram
Police Station at about 8.38 p.m., on the same day. The said complaint was registered by P.W.31 in Cr. No. 565 of 2883 and the printed First
Information Report is Ex.P-29. He forwarded the express reports to the higher police officials and to the Court.
P.W. 34, the Inspector of Police attached to K-6 T.P. Chatram Police Station, after receiving information as to the incident, came to the police
station at about 9.00 p.m., and received the First Information Report from P.W. 31. He took up further investigation in this case and proceeded to
the scene of occurrence and took custody of the body of the deceased. He caused photographs of the scene of occurrence with the help of a
photographer. He also drew a rough sketch, Ex.P-33 and prepared an Observation Mahazar, Ex.P-34 in the presence of witnesses. He took
sample of bloodstains from the scene of occurrence with the help of forensic expert at 10.15 p.m., under the mahazar. To maintain law and order
at the scene of occurrence, he sent the body of the deceased to Government K.M.C. Medical College & Hospital through the Constable. He
examined the witnesses present at the scene and recorded their statements. He formed a special police party to trace the accused.
On 17.5.2003 he went to Government K.M.C. Medical College & Hospital and conducted inquest on the body of the deceased between 7.00
a.m. and 10.00 a.m., in the presence of panchayatdars. The inquest report is Ex.P-35. He sent a requisition to the doctor for conducting post-
mortem.
P.W. 18, the doctor attached to the said hospital, commenced post-mortem on the body of the eceased at 11.00 a.m., on 17.5.2003 and he
found the following-mortem injuries:
(1) A cut wound over right side of occipital region 9 x 2 cm x scalp deep with cut fracture of occipital bone 5 cms in length.
(2) A cut WOUND 1 cm below injury No. (1) 18 x 7 x scalp deep.
(3) A deep cut wound extending from middle of right are lobe to occipital region 17 x 2 x 2 cm with cut fracture of maxillo occipital bone.
(4) A cut wound 1 cm below injury No. (3) on the middle of occipital bone 5 x 2 x 1 cm.
(5) A deep cut wound extending from middle of right cheek to lower end of back of neck 20 x 3 x 4 cm with cut fracture of C5-C6 vertebra and
right body of mandible with avulsion of spinal cord and right common carotid and jugular vein.
(6) A cut wound 1 cm below the wound No. 5, 4 x 2 x 1 cm.
(7) A incised wound over right scapular region 11 x 2 x 5 cm.
(8) A superficial incised wound over right loin 11 x 1 x 1 cm.
(9) A cut wound over left back of elbow 4 x 2 x 1 cm.
(10) A reddish brown abrasion below left eye 3 x 2 cm. A reddish brown abrasion over outer surface of left arm 7 x 2 cm.
(11) A slice wound - over front of right forearm 10 x 2 x 1 cm.
(12) Multiple cut wounds over index (right) middle finger x thumb with complete separation of distal and of right thumb.
(13) A cut wound middle of right palm 9 x 1 x 1 cm. All the wound margins are regular and clean at all the above injuries are ante-mortem in
nature.
He issued the post-mortem certificate, Ex.P-6 with his opinion that the deceased would appear to have died of shock and haemorrhage due to
multiple cut wounds.
P.W. 34, continuing with his investigation, examined the eye-witnesses namely, P.Ws.l to 3 and recorded their statements. On receiving
information, he proceeded to Red Hills bus stand on 19.5.2003 and arrested A-1 to A-3, A-5, A-12 and A-13 at 3.00 p.m., in the presence of
witnesses. In pursuance of the admissible portion of the confessional statements of A-l to A-3 & A-5 under Exs.P-36 to P-39, he seized the Auto-
rickshaw bearing Regn. No. TN-01-R-7157, M.O. 3, Motor-cycle bearing Regn. No. TN-04-L-0344, M.O. 2, Knives, M.Os.24 to 27 under
Ex.P-40 in the presence of witnesses. He brought the above accused to the police station along with the seized material objects and remanded
them to judicial custody. On 20.5.2003, he seized the Ambassador car bearing Regn. No. TN-02-E-1303, M.O.23 stationed at Ganesh Cabs,
New Avadi Road in the presence of same witnesses. On the same day, he arrested A-9 to A-ll near Ambedkar statue, Chetpet at 12.00 noon and
recorded their statements. He examined the post-mortem doctor, P.W. 18 and recorded his statement. On 24.5.2003, he arrested A-7 near the
water tank at Shenoy Nagar Tenement at 12.00 noon. In pursuance of the admissible portion of his confessional statement under Ex.P-41, he
seized the knife, M.O. 28 under the mahazar, Ex.P-42. A-6 surrendered before the Court on 26.5.2003. He took police custody of A-6 on
28.5.2003 and in pursuance of the admissible portion of his confessional statement under Ex.P-43, he seized the knife, M.O. 29, bloodstained T-
shirt, M.O. 30 under the mahazar, Ex.P-44. On 30.5.2003 he arrested A-8 (since deceased) and in pursuance of the admissible portion of his
confessional statement under Ex.P-45, he seized the knife, M.O. 31, banian, M.O. 32 under the mahazar, Ex.P-46. On 8.6.2003, he arrested A-4
near the Shenoy Nagar tenement. In pursuance of the admissible portion of his confessional statement under Ex.P-47, he seized the knife, M.O. 33
under the mahazar, Ex.P-48. On 17.5.2003, he altered the offence to one under Sections 147, 148, 341, 394, 397, 302 and 120(B) read with
149 IPC and sent the altered report, Ex.P-49 to the Court. He sent all the seized material objects to the Court under Form-95.
P.W. 36, the successor of P.W. 34, took up further investigation on 2.7.2003. He scrutinised the files and after completing investigation, he
laid the charge sheet against the accused on 31.7.2003 for the offence under Sections 120(B), 147, 148, 341, 302, 392, 326, 397, 394 read with
149 IPC before the V Metropolitan Magistrate.
In order to substantiate the charges against the accused, the prosecution examined as many as 36 witnesses, marked 49 exhibits and produced
33 material objects.
When the accused were questioned u/s 313 of the Criminal Procedure Code as to the incriminating materials put against each of the accused,
they specifically denied those incriminating materials as false and they pleaded that they are not guilty of the offences. None was examined and no
documents were marked on behalf of the accused. However, the learned trial Judge found A-1 to A-4 guilty and convicted and sentenced them
for the offences as stated earlier, but acquitted A-5 to A-7 & A-9 to A-13.
Mr. V. Gopinath, learned senior counsel for the appellants/A-1 to A-3 has submitted that (1) the FIR could not have come into existence as
alleged by the prosecution and the FIR itself is a fabricated one. He would submit that (2) the inquest said to have been conducted at the hospital
was not in fact done as alleged by P.W. 34, the Investigating Officer and the inquest report, Ex.P-35 is not a genuine document. He would also
submit that (3) the unexplained correction in the FIR as to the date and time of receipt by the Magistrate throws a serious doubt about the
genuineness of the FIR itself.
13.1 So far as the first contention as to the FIR is concerned, the learned senior counsel would submit that the very presence of P.W. 1, the author
of Ex.P-1, at the time of occurrence itself is doubtful inasmuch as, according to P.W. 31, P.W. 1 was present in the police station when he
presented the complaint at 8.30 p.m., on 16.5.2003 and. even while P.W. 34, the Investigating Officer came to the police station. On the other
hand, it is the specific case of the Investigating Officer, P.W. 34 that P.W. 1 was not there in the police station at 9.00 p.m., and the complaint
given by P.W. 1 was handed over to him by P.W.31 only. He would submit that the conduct of P.W. 1 also throws a serious doubt as to his very
presence in the scene of occurrence inasmuch as after the complaint was given at 8.30 p.m., he left the police station to his house and he has not
even cared to go and see the body of the deceased. He would also submit that while P.W. 1 went to the hospital on the next day, he saw P.Ws. 2
& 3, who are the eye-witnesses to the occurrence, in the hospital. On the other hand, both P.Ws.2 & 3 did not support the said statement of P.W.
1, as they have specifically deposed that P.W. 1 was not in the hospital right from 7.00 a.m., to 10.00 a.m. He would also submit that though
P.W.34 specifically stated that all the witnesses namely, P.Ws. 1 to 3 were in the hospital at the time of inquest and their statements were recorded
and in fact in the statements given by all of them u/s 161 Cr.P.C., they have also stated that they were present during the course of inquest,
strangely, their evidence is just contra before the Court as to the statement of P.W. 34. Equally, the presence of P.Ws. 2 & 3 in the scene of
occurrence and they witnessing the occurrence is also doubtful in view of their conduct as well. P.Ws. 2 & 3, who are the close friends of the
deceased, after seeing the occurrence claim to have gone to the house for watching television and they went to the hospital only on the next day
morning. When their specific evidence is that the deceased died on the spot, they could not have left the place leaving the deceased if they had
really been present in the scene of occurrence. Further, their evidence is just contradictory to the evidence of P.W. l and P.W. 34 as to the
presence of P.W. 1 in the hospital on the next day. He would also submit that the above contradictions are vital and material and the same are
strengthened by the further fact that though P.W. 34 had gone to the scene of occurrence immediately after the receipt of Ex.P-1 from P.W. 31 at
about 9.00 p.m., he did not care to get a statement from either P.W. 1 or P.W.2 or P.W. 3 whose names are mentioned in the FIR as eye-
witnesses, throwing a serious doubt about the very presence of all these three witnesses.
13.2 So far as the delay aspect is concerned, the learned senior counsel would submit that according to P.W. 31, when he went to the
Magistrate''s house, he was directed by the Magistrate to handover the FIR to the duty Magistrate, as it was for the concerned Magistrate to
receive the FIR. There is a correction as to the time and receipt of the FIR namely, 1.00 p.m., has been scored and instead 1.00 a.m., has been
inserted and the said correction is vital in view of the fact that the presence of the author of the complaint itself is doubtful and the FIR is a
fabricated one and has been brought into existence only after 11.00 a.m., on 17.5.2003. He would also submit that the correction in the timing in
the FIR has not been explained by the prosecution by examining the Magistrate concerned. The learned senior counsel would fairly submit that it is
not necessary that in each and every case the Magistrate should be examined, but on the facts and circumstances of this case, more particularly
with reference to the grounds raised as to the presence of P.W. 1 in the scene of occurrence and he is not the author of the complaint itself, the
examination of the Magistrate as to the correction regarding the timing is material. In this context, he would also refer to the evidence of P.W.I
where he has stated that most of the statements made in the FIR are not found and particularly at the time when he gave a complaint, he was not
aware of the contents of the FIR except signing the complaint.
13.3 So far as the conduct of inquest is concerned, the learned senior counsel would submit that in the normal course inquest will be conducted on
the spot namely, the scene of occurrence itself. Strangely, in this case, the body was removed from the scene of occurrence to the hospital and
later the inquest was said to have been conducted between 7.00 a.m., and 10.00 a.m., on 17.5.2003. He would submit that while P.W. 1 has
stated that he was present at the time of inquest, the said version was not supported by P.Ws. 2 & 3, as they have specifically stated that P.W. 1
was not present in the hospital till they left the hospital at 10.00 a.m., on that day. The learned senior counsel would further submit that it is the
evidence of P.W.31 that the Investigating Officer, P.W. 34 came to the police station at 7.00 a.m., on 17.5.2003 and he was present in the police
station till 10.00 a.m. In fact he has specifically stated that P.W. 34 only has given the passport to him for further duty at about 9.00 a.m., and he
left the police station at 10.00 a.m. and till such time, the Investigating Officer was in the police station. Hence the evidence of P.W.34 that he
conducted inquest between 7.00 a.m., and 10.00 a.m., in the hospital is false. He would also submit that while P.w.34 claimed that he has
recorded the statement of P.Ws. 1 to 3 at the time of inquest, he has not cared to get their signature in the inquest report. Further, the evidence
relating to the presence of P.Ws. 1 to 3 at the time of inquest itself is contradictory and the totality of the circumstances leads us to an unrefutable
doubt as to the conduct of the inquest as spoken to by P.W. 34.
13.4 The learned senior counsel has further submitted that the prosecution has not come out with true version of the occurrence and in fact has
gone to the extent of bringing P.W. 14 as if his statement u/s 161 Cr.P.C., was recorded on 17.5.2003 to speak about the conspiracy hatched by
the accused to commit the murder, whereas P.W. 14 has disclaimed the said statement in his deposition that at the relevant point of time, he was in
Bangalore. Hence, for all the above reasons, the learned senior counsel submitted that the appellants are entitled to the benefit of doubt.
13.5 Mr. N. Doraisamy, learned Counsel appearing for the appellant/A-4 also adopted the arguments of the learned senior counsel.
On the other hand, Mr. P. Kumaresan, learned Additional Public Prosecutor appearing for the State has submitted that Ex.P-3, Biology report
shows that item Nos. 12 & 15 relating to recovery of the T-shirts of A-6 & A-8 respectively contained the bloodgroup of the deceased
establishing their involvement in the occurrence. He would also submit that at the earliest point of time intimation for post-mortem was made, crime
No. 565 of 2003 was mentioned by P.W. 31 at 10.50 a.m., on 17.5.2003 and the post-mortem was conducted at 11.00 a.m., on the same day.
Therefore, the contention that the FIR came into existence much in a later point of time is not correct. The receipt of the body of the deceased for
post-mortem at 11.00 a.m., has also been spoken to by P.W.18, the post-mortem doctor. He would also submit that even in the inquest report,
Ex.P-35, the names of A-1 to A-4 as well as A-6 & A-8 are mentioned. He would submit that merely because of certain procedural irregularity or
some minor lapses in the investigation, that will not throw any doubt over the prosecution case. Though there are some minor contradictions in the
evidence of P.Ws. 1 to 3, 31 & 34, their evidence is consistent to implicate the accused for their involvement in the offence. Hence the learned
Additional Public Prosecutor submitted that the conviction and sentence imposed on A-1 to A-4 need not be interfered with.
We have given our anxious consideration to the above submissions. Before we embark upon the discussion over the rival contentions, we may
point out that the FIR is not an encyclopaedia and it need not contain all the material particulars even with reference to naming the accused or the
specific overt act attributed against each of them. Equally a mere delay in the registration of the FIR by itself cannot be a ground to suspect the
entire prosecution case, if the prosecution is able to prove its case through other acceptable and convincing materials. Equally, it is also settled that
if on the given facts and circumstances of the case the origin or genesis of the FIR itself is doubtful coupled with the other materially corroborated
circumstances, then the prosecution case must fail.
Keeping the above principles in mind, let us now discuss the rival contentions. The occurrence had taken place at about 8.10 p.m., on
16.5.2003 on the upstairs of one Jolly Wines, Kilpauk Garden, Chennai. P.W. 1, who is none other than the brother-in-law of the deceased,
claims to have accompanied the deceased to consume liquor in the said wine shop. It is his evidence that he saw A-1 to A-4 among the seven or
eight persons in the group, who came in an Ambassador car and started to attack the deceased. To escape from the accused, both of them ran
upstairs, where the deceased was attacked. He has attributed specific overt acts against A-1 to A-4. It is his specific evidence that P.Ws.2 & 3,
who are the close friends of the deceased, were present in the scene of occurrence. According to the prosecution, all the three witnesses namely,
P.Ws. 1 to 3 are the eyewitnesses.
So far as the evidence of P.W. 1 is concerned, immediately after the occurrence, he went to K-6, T.P. Chatram Police Station and lodged the
complaint, Ex.P-1 to P.W. 31 at about 8.30 p.m., on 16.5.2003. It is the specific contention of the learned senior counsel for the appellants that
the said complaint was not given by P.W. 1 as spoken to by him in the evidence. In order to find out as to whether the said statement should be
accepted or not, it is to be noticed that immediately after the complaint, P.W. 1 claims to have left the police station to his house without even
caring to go to the scene of occurrence where the body of the deceased was lying. We must keep it in mind that P.W.I is none other than the
brother-in-law of the deceased. Secondly, he was not present even when the body of the deceased was removed from the scene place to the
hospital. He went to the hospital only on the next day morning. The above conduct of P.W. 1 is highly unnatural, as P.W. 1 is the brother-in-law of
the deceased and he should not have acted in that manner after lodging the complaint, throwing a serious doubt about his presence at the time of
occurrence. The above suspicion of ours is further strengthened by the fact that even on the next day, he claims that he was present at the time of
inquest that was conducted in the hospital by P.W. 34 between 7.60 a.m., and 10.00 a.m., but P.W.34 has not obtained his signature when
admittedly, according to P.W. 34, he has recorded the statement of P.W. 1 during inquest. P.W. 1 has further stated that P.Ws, 2 & 3, who are
the close friends of the deceased, were also present in the hospital during inquest. On the other hand, P.Ws. 2 & 3 have specifically stated that
though they were present in the hospital between 7.00 a.m., and 10.00 a.m., P.W.I was not present at that time. The totality of the above
circumstances will lead us to the only conclusion that the very presence of P.W. 1 at the scene place and the subsequent complaint given by him is
doubtful. This view is further strengthened while we consider the evidence of P.Ws. 2 & 3.
P.Ws. 2 & 3 are the close friends of not only P.W. 1 but also the deceased. They claim themselves to be the eye-witnesses. Nevertheless,
they have not even cared to accompany P.W. 1 to the police station to lodge the complaint. Secondly, they have simply left the scene place even
after seeing the murder of the deceased to their house without even informing the relatives or other friends as to the occurrence. Strangely, P.W. 2
has come forward with a clear case that he was watching television in the house after the occurrence had taken place, throwing a serious doubt
about his conduct and presence in the scene of occurrence. Though P.Ws. 2 & 3 have claimed that they were present in the hospital when the
inquest was conducted and the statements were recorded, they were not shown as witnesses in the inquest and their statements regarding the
absence of P.W. 1 in the hospital is also a material contradiction to the evidence of P.W. 1, throwing doubt as to his presence in the scene of
occurrence.
Keeping the above material contradictions in mind, we will have to consider the submission as to the fabrication of the FIR. It is the specific
case of P.W. 31 that the complaint, Ex.P-1 was given by P.W. 1 at about 8.30 p.m., on 16.5.2003 and P.W.I was also waiting for the
Investigating Officer, P.W.34 to arrive at the police station. It is the specific statement of P.W. 31 that while the Investigating Officer, P.W.34
came to the police station at about 9.00 p.m., P.W. 1 was present. On the other hand, it is the specific stand of P.W. 34 that when he came back
to the police station at 9.00 p.m., the complainant was not present. This contradiction as to the presence of the very complainant in the police
station at the time when he lodged the complaint, Ex.P-1 throws a serious doubt about the manner in which the complaint was said to have been
given and recorded. That apart, according to P.W. 1, though he has admitted that his signature was obtained in the complaint, he was not aware of
the contents of the complaint. Here again, we hasten to add that merely because P.W. 1 disclaims the contents, that will not falsify Ex.P-1 itself.
But, on the further following circumstances, we are left with no other option except to conclude that the FIR is a fabricated one and P.W. 1 was
not the author of its contents. In fact when P.W. 1 was questioned, he has deposed as follows:
However, a perusal of Ex.P-1 does not indicate any of the above statements of P.W. 1. Further, it is the categorical evidence of P.W. 34 that the
above statements have not been made by P.W. 1 in the complaint, Ex.P-1. P.W. 1 has not only disclaimed the contents of Ex.P-1, but also has
gone to the extent of deposing so many particulars mentioned in Ex.P-1, which fact is contrary to truth, the only conclusion possibly to be drawn is
that P.W.I is not the author of the contents of Ex.P-1 and Ex.P-1 is a fabricated one.
It is the evidence of P.W. 31 that he went to the Magistrate''s house at 12.30 a.m., on 17.5.2003, but the Magistrate refused to receive the
FIR and directed him to handover the FIR to the in-charge Magistrate. It is not in dispute that the FIR was received at 1.00 p.m., but it was
corrected as 1.00 a.m. Such correction can also be explained by the prosecution to the satisfaction of the Court. While P.W. 31 was questioned
as to the correction, he has given an evasive reply to the effect that such clarification could be obtained only from the Magistrate concerned. Of
course, P.W. 31 may be correct in saying that he cannot give explanation to the correction made by the Magistrate. Nevertheless, when the
question of fabrication of the very complaint is put in issue, in all probability, the prosecution should have examined the concerned Magistrate to
explain as to the correction. Failure on the part of the prosecution to examine the Magistrate, on the given facts and circumstances of the case,
throws a serious doubt as to the origin of the FIR itself. Further, according to P.Ws. 31 & 34, they have sent the copies of the FIR to the higher
officials and to the Magistrate''s Court and the Magistrate has received it on 17.5.2003. Strangely, the Court''s seal is affixed as 20.5.2003 despite
the fact that the inquest report was received and sealed on 19.5.2003 by the Court and there is no explanation as to why no seal was affixed on
the FIR, which was received on 17.5.2003, on the same day or atleast on 19.5.2003.
So far as the identification parade is concerned, there are contradictions which, in our opinion, cannot be considered to be minor, but all
material contradictions result in serious consequences in the conduct of inquest. It is the specific case of P.W. 31 that after receipt of the complaint
from P.W. 31 at about 8.30 p.m., on 16.5.2003, he handed over the FIR to P.W. 34 at about 9.00 p.m. It is his further statement that even when
he handed over Ex.P-1 to P.W. 34, P.W. 1 was present in the police station and therefore upto 9.00 p.m., P.W. 34 was only in the police station
and had not gone to the hospital. Further the evidence of P.W. 31 goes to show that he was on duty in the morning and P.W. 34 was present in
the police station from 7.00 a.m., onwards and he was assigned duty at about 9.00 a.m. and he left the police station only at 10.00 a.m., and till
such time P.W. 34 was in the police station only. If the evidence of P.Ws. 30 & 31 is considered, there is vital contradiction as to the conduct of
inquest by P.W. 34 between 7.00 a.m., and 10.00 a.m., in the hospital. Further, one more aspect that creates a doubt in the mind of the Court is
that though P.W.34 was categorical that at the time of inquest, P.Ws. 1 to 3 were present in the hospital and he recorded their statements, he has
not cared to obtain their signatures in the inquest report. The said aspect should be considered with reference to the evidence of P.Ws. 1 to 3 as
well as to their presence in the hospital. We have already referred to the said contradictions between the said evidence of P.Ws. 1 to 3 not only as
to their presence in the hospital but also during the conduct of inquest and we need not repeat. For all the above reasons, we doubt as to whether
the inquest itself was conducted as spoken to by P.W. 34. Further, though the inquest was conducted between 7.00 a.m., and 10.00 a.m., on
17.5.2003, it reached the Magistrate only on 19.5.2003 after two days and for such delay, there is no explanation whatsoever. For all the above
reasons, we are of the considered view that the prosecution has not come out with a true version of the entire story.
It is the contention of the learned Additional Public Prosecutor that in view of the seizure of the T-shirts of A-6 & A-8 and the Biology report
under Ex.P-3, their involvement in the offence is true. In our considered view, first of all, when we disbelieve the very FIR itself, question of
accepting the case of the prosecution in respect of A-6 & A-8 (since deceased) alone solely on the basis of the recovery is liable to be rejected.
That apart, the evidence relating to the recovery by itself cannot be the sole ground to substantiate the case of the prosecution, as it is only an
additional material to corroborate the other materials produced by the prosecution to establish the charges. All these contentions will not advance
the case of the prosecution in view of our conclusion that the FIR itself is fabricated and it has not come into existence as spoken to by P.W. 1 or
P.W. 31 or P.W. 34. Hence (sic) these reasons, we are constrained to reject all the contentions raised on behalf of the State not only in respect of
A-1 to A-4, but also for the acquittal of A-5 to A-7.
In view of our above conclusion, Crl. A. Nos. 451 and 990 of 2005 are allowed and the conviction and sentence imposed on the
appellants/A-1 to A-4 are set aside. The appellants/A-1 to A-4 are directed to be released forthwith, unless their custody is required in connection
with any other case. For the same reasons, Crl. A. No. 749 of 2005 preferred by the State is dismissed.