Palaniswamy and 2 Others vs State

K.M. Natarajan, J.—The accused in S.C.No.9 of 1985 on the file of the Additional Sessions Judge, Periyar Division at Erode, have preferred this appeal challenging the legality and correctness of their conviction and sentence. Accused 1 and 2 were convicted under S.302 read with S.34, I.P.C. and sentenced to imprisonment for life. The third accused was convicted under S.324, I.P.C. and sentenced to undergo rigorous imprisonment for one year. These three appellants were tried for five charges on the allegation that in pursuance of a criminal conspiracy to cause the death of Ponnusamy (hereinafter shown as D-1) and his son Duraisamy (hereinafter shown as D-2), on 25-10-1981 at 12 noon at Kolathur the first accused and also the second accused cut Ponnusami with aruval while the third accused abetted the commission of the said offence. The third accused cut D-2 with aruval which offence was abetted by accused 1 and 2. To substantiate the above charges, the prosecution examined P.Ws.1 to 23, filed Ex.P1 to P24 and marked M.Os.1 to 29.

The case of the prosecution as disclosed from the oral and documentary evidence can be briefly stated as follows: D-1 is the father of D-2. In respect of an occurrence on 9-8-1981 one Kumarasami Goundar of Thekkalur, who is the father of the third accused, preferred a complaint against D-1, D-2, Subbaraya Goundar, sambandhi of D-1, P.W.6 and others to P.W.19 Sub Inspector of Police, Arachalur. He registered a case in Crime No.277 of 1981 under Ss.147, 448, 323 Indian Penal Code., Ex.P.20 is the copy of the first information report in that case. In respect of the same occurrence, one Periammal, mother of the third accused, also preferred a complaint which was registered in Crime No. 273 of 1981 under Ss.147, 148, 448, 324 and 326 I.P.C. Ex.P.21 is the copy of the first information report. Both the cases were investigated by P.W.19 and charge-sheets have been filed and the cases were tried by the first Assistant Sessions Judge, Erode against 13 persons including D-1 and D-2 for various offences. In the said case, both the deceased were released on conditional bail and they have to report daily before the Arachalur Police Station and they should not enter the same village. Subbaraya Goundar, the sambandhi of D-1, and his son Palanisami Goundar have to stay at Erode and they have to report at the Erode North Police Station. It is stated that while they were returning after signing at the police station in pursuance of the terms of the conditional bail, the occurrence is said to have taken place on 25.10.1981. The above cases are said to be the motive for this occurrence.

As regards the actual occurrence, it is the case of the prosecution that on 25.10.1981 at about 11 A.M. P.W.1 went to Arachalur in order to attend to repairs to his oil engine and since the mechanic who is known to him was not there, he came to the bus stop at a distance south-west of Arachalur Police station. At that time, D-1 and his son D-2 came from the police station to the said bus stop. P.W.1, D.1 and D.2 got into a bus which proceeded to a distance of 2 kilometers and stopped at the bus stop known as Voikel Palam at Thalavumalai village. 4 to 5 persons got into the bus and among them, accused 1 and 3 were there, Thereafter the bus proceeded to a distance of 6 kilo meters and reached Anumanpalli. The second accused carrying a gunny bag got into the bus and besides himself, 3 other person also got into the bus there. Thereafter the bus proceeded from Anumanpalli and stopped at Kolathur, which is at a distance of 6 K.M. D1 and D2 got down from the bus. P.W.1 and accused 1 to 3 and four other persons also got down from the bus at the said bus stop. Thereafter the bus proceeded to a distance of 10 or 15 feet and at that time, P.W.2 and another got down from the bus. D1 went to a distance of 10 feet west of the tar road and was proceeding along the mud road. At that time the second accused took out an aruval from the gunny bag which he was having and cut D1 with aruval on his left shoulder. The first accused cut D1 with the aruval on the back of the head. Thereafter the second accused and the first accused cut D1 with aruvals indiscriminately. The rest of the persons who were there also cut D1.D1 fell down on the mud road. It is stated that along with accused 1 and 2, accused 4 to 7 were also there. D2 the son of D1 was running towards west to a distance of 100 feet along the mud road. The third accused chased him and cut him on the neck with aruval. The fifth accused stabbed D2 with knife. Thereupon accused 1 to 3 and the four other persons (who are accused 4 to 7 in the original charge-sheet and who were subsequently dropped) ran away with their weapons towards west. When P.W.1 went near D1, he found him dead. Thereupon he proceeded to the place where D2 was lying and he found him alive. P.Ws.2 and 3 also witnessed the occurrence. P.Ws.1 and 2 went to the house of P.W.7 Dhanammal, daughter of D1 and informed her about the occurrence. Thereupon P.Ws.1 and 2 went by a motor cycle to Erode and fetched a taxi and came to the scene place at about 1 P.M. It is stated that the time of occurrence was 12 noon. Thereupon they took the injured Duraisami (D2) in the taxi to the Government Hospital, Erode at 2 P.M.

P.W. 12 was the Medical Officer attached to the Government Hospital Erode. He examined the injured Duraisami at 2.10 PM on 25.10.1981 who was brought to the hospital at Erode by one Poosappan of Tirumangalam and Shanmugam of the same village and found him dead. He noted the same in the Accident Register. Ex.P6 is the copy of the Accident Register issued by him. He sent Ex.P.7 intimation to the local police.

It is the case of the prosecution that D2 succumbed to the injuries even while transit in the taxi. Thereupon they handed over the body at the Government Hospital, and went by the motor cycle to Therkalur at about 3.30 P.M. Since D1''s wife was not there, they informed the occurrence to a person whose name was not known and returned to Arachalur police station and gave a written complaint at about 4 p.m. to P.W.20, Head Constable of Arachalur police station. P.W.20 on receipt of the complaint Ex.P.1 at about 4.15 p.m. on 25.10.1981 registered a case in Crime No. 394 of 1981 under Ss.147, 148 and 302 I.P.C. and prepared the first information report Ex.P.17 with copies thereof and sent them to the court and higher officials through a constable. He informed about registering of the case to the Inspector of Police who was at Kodumudi through V.H.F. Thereupon he proceeded to the scene place along with constables and reached there at 5.45 P.M. and provided bandobust. P.W.21 is the Inspector of Police, Kodumudi. On receipt of the information through V.H.F. about the case he immediately proceeded to the scene place and reached there at 6 P.M. and got a copy of the first information report from P.W.20 and took up investigation. He Inspected the place Where D1 was found and prepared the observation mahazar Ex.P2 and the rough sketch Ex.P 22. He seized M.Os.1 to 6 under cover of mahazar Ex.P3. About 150'' west of the said place, he recovered M.Os.7 to 9 under Ex.P.4 mahazar. He caused photos of the scene place to be taken through P.W.9. He held inquest over the dead body of D1 between 7.30 P.M. and 11 and during the inquest, he examined P.Ws.1 to 3, 7 and others. Ex.P. 18 is the inquest report prepared by him. He handed over the dead body and the requisition Ex.P 8 to the Medical Officer, P.W.16 to conduct post-mortem. At about 1 A.M. about 300 feet west of the said place, south of the mud road near a black-stone he seized M.O.10 aruval under the mahazar Ex.P.5. He examined P.W.8 and others. He arranged for apprehending the accused by sending the Head Constable and constables. He returned to the police station at 2 A.M. and got Ex.P7 intimation. He inspected the register where D1 and D2 have signed. He proceeded to the house of the second accused at about 2.30 A.M. and searched the same. But nothing incriminating was found. He came to Erode and enquired about the accused. On 26-10-1981 between 6 A.M. and 10 A.M. he held inquest over the dead body of D2 at the Government Hospital, Erode and during the inquest, he examined P.Ws.1 to 3 and 7 and others. Ex.P.19 is the inquest report prepared by him. He entrusted the dead body with the requisition Ex.P.10 to P.W.17 constable for being taken for autopsy. P.W.21 proceeded to the scene place and examined P.Ws4 and 6 at 1 P.M. On 27-10-1981 he examined Kandasami Asari and others at the scene place. He examined P.W.9 at Arasalur and also P.Ws.16, 17 and 20.

P.W.13 is the Civil Assistant Surgeon, Government Hospital, Kodumudi. He conducted autopsy at the dead body of D1 Ponnusami at 9 A.M. on 26-10-1981 in pursuance of the requisition Ex.P8 received from P.W.21. He found the following external injuries.

An incised wound 5"x1" on the right parietal region, vertical.

An incised injury 6x3x3 on the occipital region horizontal, occipital bone is open, brain matter is exposed.

An incised injury 3x3x2 on the posterior aspect of neck, horizontal, over the C2 and C3 level.

An incised injury 6x4x3 over the left shoulder, horizontal, cutting the deltoid muscle and head of the humerue.

An incised injury 10x4x3 over the left upper arm starting two inches above the posterior aspect of the left elbow upto the upper one third of the upper arm, lateral aspect.

An incised injury 5x3x3 on the left scapula, cutting the muscles and exposing the bone.

An incised injury 4x2x2 on the inter scapular region, vertical, over the T2, T3 T4 level.

An incised injury 2 11/2 over the left fore arm, middle one third, lateral aspect, vertical.

Palmar aspect of middle ring and little finger of the left hand are having incised wounds, at the meta carpo phalangial joints. Size 1/2" 1/4" 1/4".

On internal examination, he found the stomach empty. Occipital bone is cut. Brain congested. Accumulation of blood clots weighed 1120 grams. Upper limbes left humerus head was cut off. He was of the opinion that all the incised injuries could have been caused by any sharp edged weapon like aruval. External injury No. 2 is necessarily fatal and death would have occurred instantaneously. He was of the further opinion that the deceased would appear to have died of shock and hemorrhage (sic) due to external injury No. 2 about 20 hours prior to autopsy. Ex.P9 is the postmortem certificate issued by him.

P.W.14 is the Civil Assistant Surgeon, Government Hospital, Erode. He would depose that on 26-10-1981 the requisition Ex.P.10 was received at the Government Hospital to conduct autopsy on the body of Duraisami Goundar. Dr.Zakana commenced post-mortem examination at 11 A.M. on 26.10.1981. Since Dr.Zakaria and himself worked together for a number of years, he is familiar with the handwriting and signature of Dr.Zakaria. Ex.P11 is the post-mortem certificate written by Dr.Zakaria who has now gone to Middle East and who is not available for examination. He further deposed that Dr.Zakaria noticed 11 incised injuries, 2 slab injuries and all the four fingers on the left hand except the thumb cut and hanging with a tag of the skin. He further stated that the incised injuries could be caused by any sharp edged weapon and the stay injuries could have been caused by a knife or a bitchuva.

P.W.21 continued further investigation. He examined P.W.12 and Dr.Zakaria, medical Officers. He came to Kodumudi and examined P.W.13 who conducted autopsy on the dead body of Ponnusami, D1. Accused 1 to 3 surrendered before the judicial Second class Magistrate, Tiruchi on 27.10.1981 and he got information on the next day. On 29.10.1981 he examined P.W.15. P.W.15 is the Civil Assistant Surgeon attached to the Government Hospital, Tiruchi, who examined the third accused sent by the Judicial Second Class Magistrate, Tiruchi, for report as to certain injuries said to have been caused at 12 noon on 25.10.1981 and to be due to fall from a motor cycle at Poolankadu, Periyar District. He found a diffused swelling around left knee. Four sutures in front of left knee were present. The patient was admitted in the convict ward and discharged on 4.11.1981. He further stated that the third accused told him as to how he sustained the injury and at what place. Ex.P12 is the wound certificate issued by him. According to him, the injuries are simple in nature. He examined P.W.5 on 26.10.1981.

P.W.21 gave the requisition Ex.P13 to the Judicial Second Class Magistrate''s Court on 2.11.1981 to send the blood stained articles to the Chemical Examiner for examination P.W.18 is the Head clerk attached to the court of the Judicial Second Class Magistrate, Erode. He has deposed about sending the articles to the Chemical Examiner in pursuance of the requisition received from P.W.21 and about the report of the Chemical Examiner Ex.P.15 and the report of the Serologist Ex.P.16. After completing the investigation, P.W.21 laid the charge sheet against seven accused on 23-1-1982 under Ss.147, 148, 149, 302 and 120.B Indian Penal code. Further investigation was taken by the C.B.C.I.D. in pursuance of the order passed by the Director General of Police.

P.W.23 is the Deputy Superintendent of Police, Crime Branch C.I.D,. Madras. He would depose that the petition sent to the Superintendent of Police was forwarded to him in the first week of February 1982 for enquiry. Accordingly, he went to Kolathur, Erode and other places on 13th, 14th and 15th February 1982 and made his confidential and discreet enquiry and submitted his report Ex.P24 to his superiors. P.W.22 is the Inspector of Police, Crime Branch, Coimbatore. In pursuance of the order passed by his superiors on 4.10.1983 he took up further investigation in this case. He inspected various places and examined various persons. He examined P.W.10 and P.W.11 and submitted his report Ex.P.23 to the superior. He would state that further investigation was ordered only in pursuance of the investigation done by the Deputy Superintendent of Police of the State Crime Branch, As per Ex.P.23, he filed charge sheet against seven accused before the Additional Judicial Second Class Magistrate, Erode. In pursuance of his report, a report was sent to the Collector, Periyar district, to withdraw the case against accused 4 to 7. Since the Collector submitted the said report to the Government, the Deputy Inspector General of Police also wrote to the Government to withdraw the case against accused 4 to 7. But the Government of Tamil Nadu refused to grant permission to withdraw the case against accused 4 to 7 in its letter dated 3-5-1985. However, in Crl.M.P. No. 2613 of 1985, this court quashed the prosecution against accused 4 to 7 and directed the trial court to proceed with the trial in respect of other accused, namely, accused 1 to 3. Accordingly, the trial was held against accused 1 to 3 alone.

When accused 1 to 3 were examined with reference to the incriminating piece of evidence they totally denied the prosecution evidence as false. However, they would admit having surrendered before the Magistrate. No witness was examined on the side of the defence.

The trial judge for the reasons assigned in the judgment came to the conclusion that the prosecution has proved the guilt of accused 1 to 3 and accordingly convicted them as stated in the opening para of the judgment. Hence the convicted accused have preferred this appeal.

The learned counsel for the appellants, Mr. V.K. Muthusami took us through the recorded evidence and made various submissions. The learned counsel vehemently argued that the trial judge having accepted the case of the defence that there was inordinate delay in sending the first information report to the court and the same has not been explained by the prosecution, ought to have rejected the case of the prosecution since the circumstances categorically show that 1 must have come into existence only after midnight and that there was sufficient time to procure false evidence through P.Ws.1 to 3. Next it was argued by the learned counsel for the appellants that in the instant case P.W.1 gave Ex.P.1 against seven accused and on the basis of the statements of P.Ws.1 to 3, charge-sheet has been filed against all the seven accused. Subsequently as per orders of the Inspector General of Police, further investigation was entrusted to C.B. C.I.D. police and higher officials were directed to conduct further investigation. After thorough investigation in the matter and after examining number of local witnesses, the C.B. C.I.D. police came to the definite conclusion that the complaint made by P.W.1 to the police on the statement of P.Ws.1 to 3 is totally false and unreliable. It is only because of the said report and finding that accused 4 to 7 who were charge-sheeted along with the appellants were found innocent, the case against them was quashed. The learned counsel further submitted that since the evidence of P.Ws.1 to 3 is totally false with regard to the parts played by four other accused (accused 4 to 7), it is impossible to accept their evidence in respect of the parts played by the other three accused (accused 1 to 3) as the grain cannot be separated from the chaff because the grain and the chaff are inextricably mixed up in this case and in the process of separation, the court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details of the case of the prosecution completely. He would vehemently argued that there are two definite conflicting versions about the manner in which the occurrence had happened, namely, one version was implicating seven definite persons and attributing overtact against all of them and the other version was implicating only three accused and excluding the presence of accused 4 to 7. In such circumstances, the conviction of these appellants is not sustainable. The learned trial judge having disbelieved the evidence of the so-called eye-witness P.W.4 ought to have rejected the interested and false evidence of P.Ws.1 to 3 also whose presence at the time of the occurrence is absolutely false, unnatural and improbable. He would also submit that the non- examination of the conductor and the driver of the bus in which the deceased were alleged to have travelled and also the other persons who got down from the bus along with them and also the witnesses belonging to Kolathur where the occurrence took place is fatal. He would submit that the medical testimony does not support the ocular testimony with regard to the injuries found on both the deceased and with regard to the alleged overtacts attributed to these accused. The learned counsel at the end vehemently argued that in the face of definite conclusion reached by the C.B.C.I.D. police and in view of the fact that the report has been filed that the complaint made by P.W.1 to the police and the statements of P.Ws.1 to 3 is unreliable, the conviction of the appellants is not sustainable. The two witnesses, P.Ws.10 and 11, the residents of the locality and examined as eye witnesses, did not support the version of the prosecution and they were treated hostile.

The learned Additional Public Prosecutor tried to support the finding of the trial Prosecutor tried to support the finding of the trial judge and his submissions will be considered at the time of the discussion of the evidence and the submissions made on behalf of the appellants.

The question arises for consideration in this appeal is whether the prosecution has proved the guilt of these accused/appellants beyond all reasonable doubt.

At the outset it is to be noted that the second accused died after the filing of the appeal and as such the appeal is abated as far as he is concerned.

Hence, the only thing which remains to be considered is with regard to the murder charge against the 1st accused under S.302 read with S.34 IPC in respect of the death of D1 Ponnusami and the conviction of the third accused under S.324 I.P.C. in respect of his attack on D2 Duraisami.

As far as the motive aspect is concerned, there was an incident on 9.8.1981 in which the fathers of accused 1 to 3 and others were injured and in respect of the same, a complaint was given by Kumarasami goundar at Arachalur Police Station. Ex.P.20 is the first information report in that case. One periammal, mother of the third accused, also gave a complaint in respect of the said occurrence. P.W.19, Sub Inspector of Police, Arachalur registered a case in Crime No. 273 of 1981 and Ex.P.21 is the first information report in respect of the said complaint given by Periammal. Both the reports were clubbed together and investigated. D1, D2, P.W.6 Palanisami who is the husband of P.W.7 (that is the daughter of D1), Subbaraya Goundar (father of the said Palanisami and Sambandhi of D1) were arrayed as accused. The deceased and P.W.6 were released on conditional bail on condition that they should report daily at the Archalur Police Station and that they should not go to the scene village, namely Therkalur Ponnatha valasu, while Palanisami and his father Subbaraya Goundar were directed to stay at Erode and report at the Erode Police Station. It is stated that at the time of returning from the Arachalur police station after signing the necessary record in pursuance of the condition order of bail, this incident is said to have taken place. That there is bitter enmity between the two families of the deceased and the accused is not in serious dispute. According to the prosecution the said enmity is the motive for the occurrence, while according to the defence, because of the enmity they were implicated in this case. Hence the question to be considered is whether there is acceptable evidence to connect the appellants with the crime and the evidence has to be considered with due care and caution. The details of the occurrence were set out while narrating the case of the prosecution and suffice it to say here that according to the prosecution, the said occurrence took place on 25.10.1981 at 12 noon at Kolathur junction when D1 and D2, P.W.1, accused 1 to 3 and four others got down from the bus which after passing through some distance stopped at a particular place wherein also P.W.2 and another got down from the bus. At that time, the second accused cut D1 Ponnusami with aruval on the left shoulder while the first accused cut D1 Ponnusami on the back of the head with aruval. Thereafter also they cut him indiscriminately and he fell down. The third accused is alleged to have chased D2 and cut him with aruval on the neck. The fifth accused stabbed D2 with knife. After the incident, the case of the prosecution is that P.Ws.1 and 2 finding that D2 Duraisami was alive went to the house of P.W.7 (daughter of D1) and informed her. Thereupon they took a motor cycle from there and went to Erode and brought a taxi and took the injured D2 Duraisami to the Government Hospital, who succumbed to the injuries even on the way. After taking the body to the Government Hospital, Erode and leaving it there, they went to Therkalur village to which the deceased belong Since nobody was there in the house of D1 they informed somebody and went to the Arachalur police station and gave the first information report at 4 p.m. and it was recorded at 4.15. P.M.

As regards the occurrence, the prosecution relied on the evidence of P.Ws.1 to 4, 10 and 11, Among them P.Ws.10 and 11 were treated as hostile. The evidence of P.W.4 was rejected by the trial court and the conviction of the appellants was based on the evidence of P.Ws.1 to 3.

The learned counsel for the appellants vehemently argued that the first information report in this case reached the magistrate at about 4.45 A.M. on the next day though the occurrence took place on the previous day at 12 noon. The learned counsel contended that this inordinate delay has not been explained and this coupled with the delay in receipt of the inquest report clearly throws light that the first information report was prepared after due deliberation and consultation implicating these accused who are inimically disposed of towards the deceased and by putting their own relations as witnesses who belong to different villages. It was mainly contended that the delay which is inordinate and unexplained is fatal. The trial court gave a finding that there was delay in sending the first information report to die magistrate and the prosecution ought to have examined the constable who is alleged to have taken the first information report to the magistrate and from the mere fact that there was delay in receipt of the first information report by the magistrate, it cannot be said that the complaint was not prepared on the previous day at 4 P.M. The learned counsel vehemently argued that Arachalur is about 20 kilometers from Erode and that it is admitted by the prosecution witnesses that for every half-an-hour buses are plying. Even the trial court observed that the prosecution ought to have examined the police constable who is alleged to have been handed over the first information report to the Inspector at 6 P.M. If really such first information report was in existence at 6 P.M. he could have delivered the first information report to the magistrate immediately thereafter. The fact that the first information report was received by the magistrate on the next day at 4.45 A.M. and this delay was not explained by examining the said constable clearly probablises the version of the defence. The trial judge having found that the non-examination of die police constable is not proper and there is delay ought to have accepted the contention of the defence in this regard. In this connection, the learned counsel for the appellants submitted that even according to the prosecution, the Inspector came to the scene place at 6. P.M. and the inquest was held between 7 30 P.M. and 11 P.M. lone prior to the receipt of the first information report by the magistrate and that it is clear that the first information report was prepared after due deliberation and consultation by putting their own witnesses, implicating innocent appellants, and hence the delay in this case is very fatal. The learned trial Judge though in paragraph 23 of his judgment commented upon the act mat the constable who took the first information report and who is said to have delivered the same to the magistrate, has not been examined to explain the delay, yet did not give importance to the said plea in deciding die case even though he found that the delay is very fatal to the case of die prosecution. The learned counsel drew our attention to various decisions in support of his contention. He first relied on the decision in Kulandaivelu, 1974 L.W. (Crl.) 147. In re That was a case where the Village Headman''s report reached the Sub-Magistrate at 2.15 P.M. while the copy of the first information report sent by die Sub Inspector to the Court reached at 4.10 P.M. The occurrence took place at 7.30 A.M. It was observed:

The delay has not been explained which suggests that Ex.P.1 did not come into existence at 8 A.M. as it purports, but only later, that it was not registered at the police station at 9.01 A.M. as alleged and that the first information report (Ex.P.1) came into existence only much later,

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If so much is clear, it should obviously put us on our guard against accepting the evidence of the eye-witnesses and, when we come to examine the direct evidence in this background, the numerous features which are themselves suspicious will acquire added significance and in fact, the impression left in my mind is that the evidence is false and concolected.

In Gabriel, In re 1976 L.W.(Crl.) 82 rendered by Ratnavel Pandian, J. (as he then was) it was held:

It is imperative that the first information report should be despatched immediately without any delay by the investigating officers to the judicial Magistrates who should initial the same, noting therein the time and date of the receipt of the said important documents, and this would provide the only judicial safeguard against any subsequent fabrication of the documents in grave crimes. There is no doubt that delay in lodging the first information report quite often results in embellishment, which is a creature of after thought. On account of the delay, the vital and valuable piece of evidence, viz., the first information report, not only gets bereft of the advantage of spontaneity, but also danger creeps in by the introduction of coloured version, exaggerated account or concocted story, as a result of deliberation and consultation. If any delay occurred, the prosecution must explain it by adducing satisfactory and acceptable evidence. If no explanation is forthcoming, When it creates a doubt in the minds of the Judicial Officers as to the genuineness of the First Information Report.

In K. Vadivelu, In re 1976 L.W. (Crl.) 115 the learned Judge after relying the decisions in Thulia Kali Vs. The State of Tamil Nadu, and ( 1974 L.W.(Crl.) 190 (Karunakaran Jabamani, In re) held:

The Tamilnadu Police standing Order 577 dealing with the despatch of express reports states that in all cases of murder, culpable homicide, etc, the F.I.R. shall be sent direct to the local Sub Magistrate and other Police officials and should be sent in the quickest way possible either by post or hand.

Ultimately it was held in that case that in view of the delay no importance could be attached to the first information report and the evidence of the eye witnesses should be scrutinised very carefully. In Thulia Kali Vs. The State of Tamil Nadu, the Supreme Court observed:

On account of delay the report not only gets bereft of the advantage of spontaneity, dangercreeps in of the introduction of coloured version, exaggerated account or connected story as a result of deliberation and consultation. It is therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.

That was a case of delay of 20 hours in receipt of the first information report by the magistrate and it was held that the said delay is fatal. In Johny and five others v. State 1990 L.W. (Crl.) 175 there was a delay of 25 hours in receipt of the first information report by the magistrate and the same was not satisfactorily explained. It was observed as follows:

The first information report a document of considerable importance, is produced and proved in criminal trials not as a piece of substantive evidence, but with the avowed object of obtaining the early information of the alleged criminal activity and to have a record of the circumstances before there was time for them to be embellished or forgotten. A quick first information report, which reaches the Court of the Magistrate with promptitude, will be a towering circumstance which will go a long way to assure the veracity of the prosecution story of, there can be no time to create and deliberate a false case against the accused. It maybe in some cases the delay in lodging the first information report may be inevitable, but such delay may have to be satisfactorily explained. Courts have held that long and unexplained delay not only in lodging the first information report but also in its receipt in the Court and suspicious circumstances to be taken into consideration while judging the bonafides of the prosecution story, as delay may bring in a coloured version of the whole incident. A delayed first information report, which gives rise to suspicion, will put the Court on guard to look for a possible and acceptable explanation for the delay. A delayed first information report in prosecutions where there are more accused than one, will require careful scrutiny and more so when the possibility of false implication looms large, (para 24)

It is common knowledge that in first information report as soon as it is received by the Magistrate, he puts in his initials along with the date and time of its receipt. It is also admitted in the case by P.W.20 that the first information report relating to Sessions Cases will not be directly received by him, but, it will be passed on, only after the Magistrate initials them. He also confirms the usual practice of the handing over of the first information reports by the police constables, directly to the Magistrates. He feigns ignorance of the procedure to be followed on holidays and out of office hours, (para 27).

The non-production of the details regarding the travel of Exx.P.1 and P.26 from 6 p.m. on 9.10.1983 to 5 P.M. on 10.10.1983 is rather unfortunate and at the beat we can conclude that the first information had reached the Magistrate only 25 hours after the alleged incident though the distance to the police station from the scene of occurrence is 1 km. and the distance to the Court is approximately 5 km. (Para 27)

On facts we are not satisfied that the delay of 25 Hrs. in the receipt of the first information report by the Magistrate has been satisfactorily explained.

In Peerless General Finance and Investment Co. Limited and Another Vs. Reserve Bank of India, it was observed:

The conduct of P.W.1 in not reporting to any of the villagers about the occurrence throws a considerable doubt on the veracity of his evidence which is incredible. The report about the occurrence was given by a delay of 15 hours.

In the present case as we have come to the conclusion that the evidence of the P.W.1 is clouded with strong suspicion and as the first information report was lodged by a delay of 15 hours, the false implication of appellants in the present case cannot be completely ruled out. On going through the judgments of both the courts below, we are unable to share with the finding rendered by the two courts holding the appellants are guilty of the charges with which they stand convicted.

When P.W.21, investigating officer, was cross-examined, he fairly conceded that he did not investigate regarding the delay in receipt of the first information report by the magistrate. It is seen from the evidence of P.W.7 that P.Ws.1 and 2 came and informed her even at 12.15 P.M. that her father and brother were cut and they took her husband''s motor cycle. Thereafter she came to the scene place. In cross-examination, she has admitted that there is a phone in her house as well as a phone in her father- in-law Subbaraya Goundar''s factory at Erode. When a suggestion was put that P.Ws.1 and 2 did not come to her house, that she got information through somebody about the incident, that she informed the same to her father-in-law by phone to Erode and that thereafter he came, she denied. That suggestion has now been found to be true by the investigation done by P.W.23. It is seen from his report Ex.P.24 that his investigation reveals that P.Ws.1 to 3 were planted for the purpose of fabricating evidence against the innocent persons. Further, after the assailants ran away with weapons and one of the deceased, namely, D-2 Duraisami Goundar, was alive, information reached the house of Subbarayalu Goundar at Anumanpalli which is about a furlong from the scene place that Subbarayalu Goundar is the sambandhi of the deceased Ponnusami Goundar, that Subbarayalu Goundar who was in Erode was informed by phone, that he came to the spot in a taxi at about 1.45 P.M. on that day, that the injured Duraisami Goundar was taken to the Erode Government Hospital and on the way he succumbed to the injuries. Subbaraya Goundar and his son Palanisami were co-accused in the earlier cases referred to in Exx.P.8 19 and 20, and as already stated, they were on conditional bail at Erode. The contention on behalf of the appellants that the first information report has not come into existence in the circumstances stated by the prosecution, that P.W.1 is not the author of the same and that it was prepared long after the alleged time in the night after due deliberation and consultation putting the relations of the said Subbaraya Goundar as eye witnesses is also probabilised by the various circumstances in this case and in view of the reports Ex.P.24 filed on behalf of the prosecution through P.W.23. Admittedly P.Ws.1 to 3 are relations of the deceased and they belong to different villages and they are not residents of the scene village. In the circumstances, the delay assumes much importance in arriving at the finding with regard to the guilt of these appellants with the crime. In this connection it is also to be noted that though the first information report is alleged to have been received by the investigating Officer P.W.21 at 4.30 P.M. and he reached the scene at 6 P.M. and held inquest over the dead body of D-1 Ponnusami between 7.30 P.M. and 11 P.M. on 25.10.1981, the inquest report was received by the Magistrate only on the third day at 11.55. P.M. In respect of the inquest of D-2, it was held at Erode, where the magistrate''s Court is located, on 26.10.1981 between 6 A.M. and 10 A.M. The inquest report was received by the Magistrate only on 27.10.1981 at 11.55. P.M. The learned counsel for the appellants vehemently argued that this delay in receipt of the inquest reports also probabilise the contention of the defence that the first information came into existence only much later and even the inquest reports and the statements of witnesses were prepared later to suit the prosecution case by putting interested witnesses. According to him, the delay probabilises the contention of the defence and also as to how it is fatal to the case of the prosecution.

The learned Additional Public Prosecutor relied on certain decisions and submitted that the delay by itself will not be a ground to doubt the prosecution unless there are indications of fabrication. In Tara Singh and others v. The State of Punjab 1990 (3) Cri 565 it was held:

However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the F.I.R. and later substantiated by the evidence merely on the ground of delay.

That was a case where there are no indications of fabrication. On the other hand, it was found that the evidence of the eye witnesses against the appellants is cogent and convincing and in the circumstances it was held so. That decision is not helpful to the case of the prosecution in this case. In Pala Singh and Another Vs. State of Punjab, it was held:

S.157, Cr.P.C. requires report contemplated by that section to be sent forthwith by the police officer concerned to a magistrate empowered to take cognizance of such offence. This is really designed to keep the magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under S.159. But where the F.I.R. was actually recorded without delay and the investigation started on the basis of that F.I.R. and there is no other infirmity brought to the notice of the Court, then, however improper or objectionable the delayed receipt of the report by the magistrate concerned, in the absence of any prejudice to the accused, it cannot be itself justify the conclusion that the investigation was tainted an the prosecution insupportable.

That decision also is not helpful to the case of prosecution in the case on hand, especially in the ace of the various doubts regarding the giving of the report by P.W.1 and the indications of fabrication. As such, the delay assumes importance in this case and there is considerable doubt on the version of the prosecution. In Zahoor & Ors. v. The State of U.P. 1991 (1) M.W.N. S.C. 5 it was held that mere delay in lodging F.I.R. is by itself not sufficient to reject the prosecution case unless there are clear indications of fabrication therein. The said decision also is not helpful to the case of the prosecution in the instant case, since we have found that there are clear indications of fabrication and false implication of accused 4 to 7 and also eye-witnesses belonging to different places were planted. It is to be noted that the said decision is similar to the decision in Tara Singh and other v. The State of Punjab 1990 (3) Cri 565. Hence, the said decision is also not helpful to the prosecution. After careful analysis of the materials and the facts and circumstances of the case, we have no hesitation in coming to the conclusion that the unexplained and inordinate delay in despatching the first information report to the magistrate is fatal to the case of the prosecution.

Next we have to see, whether there is acceptable evidence to prove the guilt of these accused beyond all reasonable doubt. The prosecution mainly relies upon the evidence of P.Ws.1 to 3 for proving the guilt of these accused. As per the earliest report given by P.W.1, it is the version of the prosecution that seven accused participated in the occurrence and among them the fourth accused caught hold of the shirt of the deceased Ponnusami (D-1), the second accused cut him with arrival on the left shoulder, the accused who is arrayed as the seventh accused in the first information report, namely, Duraisami, cut D-1 on the back with aruval and the first accused cut D-1 on the back of the head.

It is the further version of the prosecution that when D-2 Duraisami Goundar, son of D-1, was running, A-3 cut him with aruval on the neck. The fourth accused cut him with aruval on the left hand. The fifth accused Chennimalai Goundar stabbed him with knife. The sixth accused Viswanathan beat him on the back. In this case, the earliest investigation was done by P.W.21. He filed charge-sheet against the seven accused on 23.1.1982 for offences under Ss.147, 148, 149, 302 and 120-B, Indian Penal Code in respect of the death of the two deceased persons, P.W.23 is the Deputy Superintendent of Police, Crime Branch C.I.D., Madras. As per the direction given by the Superintendent of Police, C.B.C.I.D., Madras, to enquire into the petition given by accused 4 to 7, P.W.23 went to Periyar District and proceeded to Kolathur, Erode and other places on 13-2-1982, 14-2-1982 and 15-2-1982 and made confidential enquiries and he submitted Ex.P.24 report. The findings given by P.W.23 are (1) That accused 4 to 7 arrayed in the case were falsely implicated, (2) that the eyewitnesses P.Ws.1 to 3 were planted purposely for fabricating evidence against the accused and (3) that the witnesses to the occurrence, namely, P.W.10 and all and others belonging to the scene village, were not at all examined by the Police.

It was further found by P.W.23 that in respect of the incident, information reached the house of Subbaraya Goundar at Hanumanpalli which is about one furlong away from the scene place Subbaraya Goundar was the sambandhi of D-1. He was informed by phone as he was at Erode. He came to the spot in a taxi at about 1.40 P.M. on that day and the injured Duraisami (D-2) was taken to the Erode Government Hospital and on the way, he succumbed to the inquiries. His finding is diametrically opposite to the prosecution evidence adduced through P.Ws.1 and 2 that they went to Erode, they brought a taxi, they took the injured Duraisami (D-2) who died on the way to the Hospital and after leaving the body at the Government Hospital, they went to give the report. On the basis of the report of the Deputy Superintendent of Police, the D.I.G. (Crimes) sent a communication to the Collector, Periyar District, requesting him to withdraw the case against the four accused, namely, who are arrayed as accused 4 to 7 in the case. When the matter was pending before the Collector, original charge-sheet was filed against all the seven accused.

Thereupon the said four accused filed a writ petition before this court in W.P. No. 5288 of 1982 seeking for the issuance of a writ of Mandamus directing the D.I.G. to file a report under S.173 Cr.P.C. and it was allowed on 12.8.1983. This court directed the police to file a further report in terms of S.173(B) Cr.P.C. Even though the Public Prosecutor to whom it was referred, recommended for withdrawal of the case against those accused, the District Collector referred the matter to the Government for sanction for withdrawal as he felt that he has no power to do so. Since there was administrative delay on the part of the Government in withdrawal of the case, accused 4 to 7 against whom also the original charge-sheet was filed and the trial of the case was pending, filed criminal Miscellaneous Petition No. 2613 of 1985 on the file of this court for quashing the charge-sheet against them under S.480 Cr.P.C. This Court after perusing the material records came to the conclusion that even on the own showing of the prosecution, there is no evidence against those accused an they were implicated falsely, allowed the petition and consequently quashed the prosecution against them in S.C. No. 9 of 1985. Thereupon the trial went on and the appellants, who are accused 1 to 3, were convicted on the basis of the evidence of P.Ws.1 to 3.

The learned counsel for the appellants vehemently argued that P.Ws.1 to 3 are closely related to the deceased through their sambandhi Subbaraya Goundar, that they belong to different place and that they were put up witnesses even according to the investigation one by the Deputy Superintendent of Police, C.B.C.I.D. (P.W.23). Even though the implication of accused 4 to 7 was found to be false, yet they in their evidence attributed overtacts to them. The learned counsel took us through the evidence of P.Ws.1 to 3 and made various submissions and submitted that this is a case where among the prosecution records furnished to the accused in the case, there are two direct diametrically opposite versions and further this is a case where the grain cannot be separated from the chaff and on the basis of the evidence of P.Ws.1 to 3 no conviction can be sustained. The two eye witnesses who belong to the scene village, namely, P.Ws.10 and 11, did not support the prosecution case. The material witnesses to the occurrence were not examined.

Let us consider whether the prosecution evidence can be relied on for convicting these appellants. P.W.1 is a resident of Gnanipalayam which is about 5 kilometres from the scene place. He categorically admits that his senior paternal uncle Subbaraya Goundars son Palanisami married the daughter of D.1. The family of Subbaraya Goundar, namely, paternal uncle of P.W.1, were all arrayed as accused along with the deceased in this case as referred to earlier in Exx.P.19 and P20 which are the motive for the occurrence even according to the prosecution. The relationship of the accused with P.W.1 and other members of his family is admittedly strained. He is a chance witness. His explanation for his presence at the scene place was proved to be unacceptable. It is stated that he went to fetch a mechanic at Arachalur.

According to the learned counsel for the appellant, this ostensible explanation was trotted out only for the purpose of this case and that too, for the first time in his statement at the inquest. He has not even stated the reason for going to Arachalur in the belated first information report. The belated inquest report reached the court only on 27.10.1981 at 11.55 P.M. In view of the close relationship of this witness with the deceased and in view of the fact that no witness from the nearby locality was examined, the investigating agency was bound to verify the truth or otherwise of his statement. The investigating agency has not even verified whether P.W.1 has fitted on oil engine in his land and whether it was under repair. P.W.1 frankly admitted that he did not show the oil engine in his land to the police.

The fact that P.W.1 went to Arachalur to fetch his regular mechanic was not verified by the investigating agency by examining the said mechanic. None of the employees in the said mechanic shop was examined. It is the evidence of P.W.1 that nobody from Arachalur saw him on that day. In this connection, the learned counsel for the appellants vehemently argued that P.W.6 who was a co-accused along with D1 and D2 went along with D1 and D2 to sign at the Arachalur Police Station on that day. Though it is stated that P.W.1 went in the same bus, he did not refer to the presence of P.W.6 either at the time of boarding or inside the bus. Not even a single witness was examined to show that P.W.1 was seen anywhere near Arachalur Police Station or in the bus. It is the evidence of P.W.1 that he boarded the bus to go to Velludu to fetch another mechanic. If that is so, there was no necessity for him to get down in the midway so as to enable him to witness the occurrence.

There was no explanation on his part as to why he got down in the midway. The alleged bus tickets purchased by him were not produced and they were not seized by the investigating officer. None of the crew of the bus, namely driver or conductor of the bus, was examined. Though it is stated that the tickets were seized, they were not produced. According to the learned counsel for the appellants, the material documents which would probabilise the presence of P.W.1, were withheld and this court can certainly draw an adverse inference on that score. Admittedly even subsequently P.W.1 did not effect repairs to his engine. The conduct of this witness was vehemently commented upon. According to the learned counsel, P.W.1 did not go and meet anybody and inform him about the occurrence. He did not intervene at the time of the alleged occurrence. The learned counsel for the appellants vehemently argued that the versions with regard to the overtacts attributed to various accused in Ex.P1 in the chief as well as cross-examination of P.W.1 are mutually contradictory leave alone the contradictory evidence of P.Ws.2 and 3. He took us through the material records in support of the said contention.

In chief-examination P.W.1 would state that the second accused cut D1 Ponnusami with aruval on the left shoulder while the first accused cut him on the back of the head and thereafter accused 1 and 2 cut him indiscriminately. The version that accused ''1 and 2 cut D1 indiscriminately, according to the learned counsel, was introduced just to explain the number of injuries found on the body of Dl. When the trial judge specifically put a question as to whether it could be 5 times or 100 times and whether he can say approximately, he categorically stated that he could not say. In Ex.P.1, the very first information report, alleged to have been given by P.W.1, it is stated that all the 7 accused armed with knife and aruval surrounded Dl. The fourth accused Duraisami caught hold of the shirt of D1 while the second accused cut him with aruval on the left shoulder and the 7th accused Duraisami son of Chennimalai Goundar cut D1 on his back.

The first accused cut D1 on the back of the head. Besides that, it is not stated that accused 1 and 2 cut the deceased Ponnusami indiscriminately all over the body. It is also pointed out by the learned counsel that, according to the present version of P.W.1 the other accused among the seven accused also cut D1 and only thereafter D1 fell down. Subsequently he made it very clear that accused 4, 5 and 6 (among accused 4 to 7) attacked D1. However, at the end of the chief-examination he had restricted by saying that accused 1 and 3 and one another alone cut D1 with aruvals and he cannot identify the aruvals. The charge framed is that accused 1 and 2 alone cut D1 Ponnusami and the evidence is against the charge. The learned counsel after pointing out all these discrepancies submitted that the evidence of P.W.1 in respect of the overt acts is mutually contradictory and that it has to be self-condemned.

The learned counsel also drew the attention of this court to the evidence of P.W.1 that after the occurrence he and P.W.2 went to P.W.7''s house (who is the daughter of D1 and daughter-in-law of Subbaraya Goundar) and informed her of the incident and took a motorcycle and went to Erode and brought a taxi and thereafter took D2 Duraisami who was alive, to the Government Hospital and on the way, he died. In this connection the learned counsel submits that this version is found to be not true in view of the investigation done by P.W.23 and his report Ex.P.24 which shows that P.W.7 got information through somebody and she informed the same to her father-in-law at Erode by phone and thereafter Subbaraya Goundar came to the scene in a taxi and took the injured Duraisami to Erode. This also probabilises the suggestion of the defence that P.W.1 could not have been the eye witness and that he is a witness who has been introduced. The learned counsel in this connection submitted that reliance on the entry in Ex.P6 made by the Medical Officer with regard to the names of P.Ws.1 and 2 is not proper in the circumstances of the case to find out that P.Ws.1 and 2 are eye witnesses. Ex.P6 is the copy of the accident Register relating to the admission of D2 in the Government Hospital and therein it is stated against the column By whom brought, K. Poosappan of Thirumangalam and Shanmugam of the same village.

The learned counsel correctly pointed out that in the memo of accidents and injuries intimation to police (Ex.P.7) relating to the said D2, the column "Brought by whom", is left blank. According to the learned counsel, the relevant entry in Ex.P.6 should have been made subsequently to support the case of the prosecution and that Ex.P7 which was prepared in pursuance of Ex.P6 falsifies the said entry in Ex.P6 and in any even it probabilises the version of the defence that P.Ws.1 and 2 are not the persons who brought the injured Duraisami to the Hospital. He would submit that even admitting that those two persons brought D2 to the hospital after a gap of two hours and more, it cannot be said that they were eye witnesses. P.W.1 is a resident of Gnanipalayam. It has been stated in Ex.P6 that K. Poosappan of Tirumangalam and Shanmugam of the same village and it has not been stated that Shanmugham (P.W.1) the Gnanipalayam brought D2. Therefore much reliance cannot be placed on Ex.P6 to hold that P.Ws.1 and 2 are eye witnesses. The conduct of P.W.1 is very much commented upon by the learned counsel. Even though it is stated that P.Ws.1 and 2 went to the village of the deceased, they did not inform any of their relations, and only an attempt has been made by saying that they informed some unknown person.

The evidence of P.W.1 cannot be believed in this regard. This circumstance also clearly shows that he is a put up witness. Besides that, his version that other accused also attacked the deceased has been found to be not true by another investigation and the charge against those accused was also quashed as discussed above. In the circumstances, the learned counsel vehemently argued that it is not safe to rely on the very same evidence of P.W.1 for convicting accused 1 to 3. We find much force in the contention of the learned counsel for the appellants in this regard.

The next witness comes P.W.2. He is a resident of Thirumangalam which is about 10 miles from the scene village. His mother and the mother of the third accused are the daughters of brothers. In the case given by the second accused, his maternal uncle Damodara Goundar was a co-accused along with D1 D2 and Subbaraya Goundar, even according to the evidence of this witness. He is also a chance witness to the case. He would state that on the day of occurrence, he went to see his maternal uncle Damodara Goundarr at Vellodu. But, he did not go and see him even though he was said to be ailing for one week. It is to be noted that Ponnathalvalasu is only 2 Kilometres from Thalavamalai where he boarded a bus, even though he did not think it fit to go and see his ailing uncle. The learned counsel for the appellants vehemently argued that there was no connection between him and Damodara Goundar of Velludu, that there was absolutely no explanation for boarding the bus at Thalavamalai and that the reason was trotted out falsely in order to support his presence at the scene at the time of the occurrence. If really he was proceeding to see his ailing maternal uncle, certainly he would not have failed to see him. Admittedly he did not see his ailing maternal uncle. If the explanation is tested on probabilities, such evidence cannot stand to reason or commonsense. Further, the second and third investigations done by the competent investigating officers, P.Ws.22 and 23 also reveal that he is also a put up witness. The investigating officer P.W.21 should have probed into the version regarding the reason for his presence at the scene place, by examining Damodara Goundar anyone of the members of his family as to whether he was really unwell. The explanation of this witness can not be accepted on its face value. Further, to substantiate his version that he was travelling in the bus neither the driver nor the conductor of the bus was examined. His ticket was not seized. Even though it is stated that the memo of passengers was seized, that was also not produced. The best possibly evidence to find out as to whether he could have been present at the time of the occurrence was suppressed. The learned counsel vehemently argued that after the incident, his conduct is very unnatural since he did not talk to anyone or inform anyone about the occurrence even though he happened to meet several persons. As such, his conduct is doubtful. The learned counsel also strenuously contended that even with regard to the number of assailants and the accused who attacked both the deceased, there is no consistent version. In the first portion of the chief-examination, he has categorically stated that accused 1 and 2 cut D1. Again, at the end of the chief-examination itself, he would state that Accused 1 and 2 and three others cut D1. In cross-examination he has further elaborated by saying that the other 3 persons cut D1 Ponnusami on the head, shoulder and neck. The learned counsel for the appellants contended that the reasons alleged for not believing the evidence of P.W.1 with regard to his approaching P.W.7 and thereafter taking the injured Duraisami to the hospital and then going to the village of the deceased but not informing any of his relations or known persons, are equally applicable to this witness. The probabilities in the case throw considerable doubt on the version regarding his presence. The learned counsel vehemently argued that the evidence of this witness is also intrinsically improbable and unreliable and that it is not safe to act on his evidence convict the appellants, especially in view of the finding of the subsequent investigating officer that this witness was also planted along with P.W.1 and the two other witnesses P.Ws.10 and 11 who are said to be eye-witnesses, did not support the prosecution case. Admittedly Damodara Goundar was arrayed as a co-accused along with D1 and D2. He is the maternal uncle of P.W.2. As such, P.W.2 belongs to the group of the deceased and his evidence does not deserve any acceptance. We find much force in the contention of the learned counsel for the appellants in this regard.

As regards the evidence of P.W.3, he is not a witness of the locality and he is a man hailing from Gnanipalayam, 5 kilometres from the scene place. P.W.1''s father and Subbaraya Goundar (Sambandhi of D1) and P.W.3 are brothers. After the death of D2, P.W.7 is the only heir to the entire properties of D1 and her husband Palanisami is the son of Subbaraya Goundar. The learned counsel for the appellants vehemently argued that the family of Subbaraya Goundar is very much interested in the properties of D1 in the said circumstances. P.W.3 is also a chance witness. The explanation for his presence at the scene place was that he went to Hanumanpalli to purchase cotton seeds and since it was not available there, he was proceeding through the road leading to Erode and at that time, he happened to witness the occurrence at a distance of 100'' away from the scene place. The learned counsel vehemently argued that the explanation offered by P.W.3 for his presence at the scene is demonstrated as false by putting various questions in cross-examination. It is clear from the cross examination that there are shops at Hanumanpalli and Vellodu. Hanumanpalli is only 3 kilometres away east of his village. Vellodu is 4 kilometres north-west of his village. He is definite that he was going to Vellodu to purchase cottonseeds and he does not know whether cottonseeds was available on that day at Vellodu. He has admitted that there was no business or necessity to go to the scene village at that time. His conduct at the time of the occurrence is also strange. He did not try to interfere and prevent the attack. The fact that he is related to the deceased is very much commented upon by the learned counsel for the appellants. After the occurrence, some 10 persons came to the scene. But P.W.3 did not inform them as to how the occurrence happened. He did not tell anyone till he was examined by police. He did not inform any other person about the occurrence. P.W.3 was not a truthful witness. From the conduct of P.Ws.1 to 3, was not a truthful witness. From the conduct of P.Ws.1 to 3, before the occurrence and subsequently, it can be concluded that they are all planted for the purpose of this case. As far as P.W.4 is concerned, who is a resident of Thachenkarai Hamlet of Vellodu, though he was examined as an eye witness, his evidence was disbelieved by the learned trial judge for the reasons stated in para 32 of his judgment. The reasons for not accepting the evidence of P.W.4 are, though the names of P.Ws.2 and 3 are mentioned in Ex.P.1, his name was not mentioned in Ex.P.1 as an eye witness though it is stated that he went to Hanumanpalli on that day to purchase bulls and he happened to witness the occurrence. P.Ws.1 to 3 did not say anything about this witness. His evidence is also very much commented upon by the learned counsel for the appellants. When he was returning to the village, he informed about the occurrence in the tea shop. He was examined at the inquest. His version is that on the next day of occurrence when he was proceeding along the scene place, he informed the police there. On the contrary, the evidence of P.W.21 in cross-examination is that during investigation he came to know through somebody that P.W.4 is an eye witness and that he sent for P.W.4 through a constable and thereupon he was examined. In view of the contradictory evidence, the trial judge disbelieved the evidence of P.W.4. For all the reasons we have no hesitation in holding that no reliance can be placed on the evidence of P.W.4.

The two other witnesses examined for the prosecution namely, P.Ws.10 and P.W.11 as eye witnesses did not support the prosecution and they were treated as hostile. In this connection, the learned counsel for the appellants submitted that when there are two different versions as a result of different investigation and the present version does not fit in with the earlier case of the prosecution, no conviction can be sustained. According to the learned counsel, the case as set out in the first information report and the charge-sheet as a result of the investigation done by P.W.21 was that accused 1 to 7 were armed with deadly weapons and they were the assailants and they attacked D1 and D2 and as a result of the same, they died. Now the version of the prosecution with regard to the involvement of accused 4 to 7 and their presence and overtacts were- found to be untrue by the subsequent investigation. It was found that they were falsely implicated and as such, the case against them was quashed. Even though the case against them was held to be not true by the subsequent investigation agency and they were exonerated, yet the eye witnesses P.Ws.1 to implicate them and attribute overt acts. But, as per Ex.P.24 report and the 161 statements recorded from P.Ws.10 and 11, who are eye witnesses and who are residents of the locality, the occurrence did not take place as stated by P.Ws.1 to 3 and P.Ws.1 to 3 were not eye witnesses and they are planted. In the circumstances, according to the learned counsel, no conviction can be given as benefit of doubt should be given to the accused. In support of the contention he drew the attention of this court to the decision in Harchand Singh v. State of Haryana wherein it was held as follows:

If in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation.

It would thus appear that the eye witness upon whose testimony the prosecution wants to sustain the conviction of the appellants is shown to be an unreliable witness by the other evidence produced by the prosecution. The present is a case wherein one set of prosecution evidence condemns the other set of evidence produced by the prosecution. In the above staled affairs, we find it difficult to secure a firm ground upon which to base the conviction of the accused appellants.

In Benguli and Others Vs. State of Orissa, a Division Bench of the Orissa Court held:

Where eye witnesses had falsely implicated a person in their evidence on the charge of murder with the evident purpose of implicating him in respect of offence of murder punishable with death even though he could not be present on the scene of attack, it would be hazardous to accept any part of the testimony of such witnesses who had no hesitation to falsely implicate a person who could not have been present on the scene of attack.

In Balaka Singh and Others Vs. The State of Punjab, it has been held:

It is true that, as laid down by this court in Zwinglee Ariel Vs. State of Madhya Pradesh, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply. We are satisfied that in the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses who can implicate the appellants and the four accused equally with regard to the assault on the deceased it is not possible to reject the prosecution case with respect to the four accused and accept it with respect to the other five appellants. If all the witnesses could in one breath implicate the four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to Balaka Singh, Joginder Singh, Pritam Singh, Darbara Singh and Jarnail Singh may have been conveniently made to suit the needs of the prosecution case having regard to the animus which the witnesses as also Banta Singh bore against the appellants. In these circumstances, therefore, we are satisfied that in view of the finding of the High Court that the F.I.R. was a belated document having come into existence much later than the time it is said to have been recorded and which adds the names of the four accused against whom the prosecution case is absolutely identical with the appellants, the case of the appellants cannot at all be distinguished from that of the four accused in any respect. If the case against the four accused fails, then the entire prosecution will have to be discarded and it will not be possible for this court to make out a new case to convict the appellants as has been done by the High Court.

In Ramasamy v. State of Tamil Nadu 1982 L.W. (Crl.) 63 a Division Bench of this court held:

The F.I.R. is a statement which can only be used to corroborate or contradict the version of the maker of it and it is not substantive evidence. If there is a doubt about the F.I.R. being fabricated or brought into existence to implicate as many persons as possible, after deliberation, the entire fabric of the prosecution case collapses. Fourteen accused have been implicated in this case who belong to the opposite group of the prosecution party. The court must, of course, make an attempt to separate grain from the chaff if it is possible. We are satisfied that, on the facts of this case and having regard to the interested evidence of the prosecution witnesses, it would be unsafe to convict the accused.

Applying the ratio laid down in the above quoted cases to the facts of this case, we find that seven accused were implicated in the first information report and the eye witnesses also had consistently attributed overt facts to all the seven accused in their inquest statement and also before the court while the other set of evidence available even in the prosecution case is that P.Ws.1 to 3 are not the eye witnesses, they were planted and P.Ws.10 and 11 are the eye witnesses and accused 4 to 7 were falsely implicated and that the first information report did not come into existence in the circumstances stated by P.Ws.1 and 2 and that P.Ws.1 to 3 are related to the deceased and interested witnesses and belonging to different villages. In the facts and circumstances of the case, we have no hesitation in holding that there is no reliable and trustworthy evidence to connect these accused also with the crime and their conviction is not sustainable. In this connection, the learned counsel drew our attention to the decision of the Supreme Court in Darya Singh v. State of Punjab 1964 M.W.N. (Crl.) 1 wherein it was held:

If the evidence given by the interested witnesses in a murder trial seems to suffer from some infirmities, the court would be justified in looking for some corroboration before accepting the said evidence. Cases may be shown to have implicated some persons without any justification or cases may arise where the evidence given by eye-witnesses who arc interested conflicts in material particulars, or may appear to be improbable; in all these cases, the court would naturally be justified in refusing to act upon such evidence without corroboration.

As regards the medical evidence, it is submitted by the learned counsel for the appellants that P.W.13 who conducted autopsy on the dead body of Dl, noted as many as 9 incised injuries and among them injuries 1 to 3 are on the head; injuries 4, 5, 6 and 7 are on the left shoulder, left scapula and left upper arm; injury No. 8 is the left forearm; and injury No. 9 is on the palmar aspect of middle, ring and little fingers of left hand. There was no injury found on the back. As per the first information report, Ex.P.1, the first accused cut on the back of the head of D1. The second accused cut on the left shoulder and the seventh accused cut on the back. There was no other injury. There was no explanation for the other injuries. It was elicited in the evidence of P.Ws.1 to 3 that the other accused also cut him on various parts of the body. It has been brought to the notice of this court that in the evidence of P.W.2, it was specifically elicited that the other accused, namely, accused 4 to 7, cut D1 on the head, shoulder and neck. From this, it was vehemently argued by the learned counsel for the appellants that these injuries could have been caused by the exonerated accused 4 to 7 or by somebody else and not by these appellants. Anyhow, there is a great doubt with regard to the infliction of injuries found on D1. It cannot be said that only these appellants caused the fatal injuries which were responsible for the death of D1. Thus, on a careful analysis of the entire materials and also after anxious and close scrutiny of the evidence, we have no other option except to hold that the prosecution has not established the guilt of these appellants beyond all reasonable doubt and they deserve to be acquitted.

In the result, the appeal is allowed, the conviction and sentence awarded to these appellants are set aside and they are acquitted of the charges for which they were convicted and their bail bonds shall stand cancelled.

However, before parting with the case, we wish to express that though in a broad day light two persons were done to death, on account of imperfect and improper investigation, the real culprits escape. The concerned authorities are directed to take suitable action against the concerned officials who were in charge of the investigation in the case and see that such things do not occur in future.