(c) At that point of time, A-1 to A-3, who belong to a Muslim association, way-laid the deceased and questioned him as to what is his name so as to know his religion.The deceased replied that his name is Ramasamy.From the name of the deceased, the accused found out that the deceased is a Hindu.Then he shouted that some Hindus must be finished off in order to teach a lesson to them.(d) Then, A-1 stabbed on the left chest, A-2 stabbed on the stomach and A-3 stabbed on the chest of the deceased with knives.When the deceased shouted, A-3 took a reaper wood and beat on the head of the deceased.Then, he threw the reaper wood in a nearby ditch.Since P.Ws.1 and 2 cried aloud, all the accused persons ran away from the scene.(e) The deceased fell down on the ground.On seeing that the intestines of the deceased came out from the stomach, P.W.1 Subramanian tied a towel around the stomach of the deceased and took him to the Government General Hospital, Coimbatore.(f) P.W.9 Doctor found that the deceased was dead.He issued Ex.P-18 accident register.(g) Then, P.W.1 Subramanian went to the Police Station and gave Ex.P-1 complaint to P.W.10 Head Constable, who registered a case for the offence under Section 302 IPC and then, P.W.10 sent the message to the superior officers.(h) P.W.11 Inspector of Police went to the scene of occurrence.There was no sufficient light.Therefore, on 2.12.1997 at about 6.00 a.m., he prepared observation mahazar, drew rough sketch and observed all the other formalities.(i) Then, P.W.11 Inspector of Police went to the hospital and conducted inquest over the body of the deceased.During the course of inquest, he examined the witnesses.He prepared Ex.P-21 inquest report.(j) P.W.8 Doctor conducted post-mortem on the body of the deceased and found as many as four external injuries and three internal wounds.He issued Ex.P-17 post-mortem certificate and opined that the deceased would appear to have died of haemorrhage and shock of wound Nos.2 and 3 and corresponding internal appearances described thereunder.JUDGMENT M. Karpagavinayagam, J.Samsu alias Samsudeen, the appellant in Crl.A.No.401 of 2000 and Sarafudeen and Hakkim alias Abdul Hakkim, the appellants in Crl.They have filed these two appeals, seeking to set aside the judgment of conviction imposed on them by the trial Court for the offence under Section 302 IPC and sentence to undergo life imprisonment each.Short facts leading to conviction are as follows:(a) Two days prior to the date of occurrence, one Constable Selvaraj was done to death by some Muslim fundamentalists.In retaliation, the Muslim people were attacked and there was a law and order problem throughout the area.The Police also announced that public should not come out, in view of the said law and order problem.(b) On the date of occurrence, i.e. on 1.12.1997, the deceased Ramasamy, along with his wife, P.W.2 Parvathamani, went to the Government Sewerage Farm to cut grass.P.W.1 Subramanian, the elder brother of the deceased, was working as an employee in the Municipality.After the work was over, P.W.1, who came by that way, accompanied P.W.2, the wife of the deceased and the deceased, while returning home.(k) On 3.12.1997, P.W.12, the Special CB-CID Officer (Inspector of Police) took up further investigation and examined P.W.3 and others.On 27.12.1997, P.W.12 Inspector of Police arrested all the three accused and on their confession, M.Os.2,3 and 4, the bloodstained knives, were recovered.He sent the material objects for chemical analysis.After completion of the investigation, he filed the charge sheet against the accused persons for the offence under Section 302 read with 34 IPC.(l) During the course of trial, P.Ws.1 to 12 were examined, Exs.P-1 to P-21 were filed and M.Os.1 to 7 were marked.(m) When the accused persons were questioned under Section 313 Cr.P.C., they denied their complicity in the crime.They stated that they were taken to custody ten days earlier to the date of arrest and had been illegally detained in the Police Station.However, no evidence was adduced on the side of defence.(n) The trial Court, after assessing the evidence adduced by the prosecution, found all the accused guilty of the offence under Section 302 IPC and convicted and sentenced them as stated above.Hence, these appeals.R.Sankara Subbu and Mr.A.K.S.Thahir, learned counsel for the appellants in the respective appeals, would submit that the evidence adduced by the prosecution, would not be sufficient to prove the case of the prosecution; the testimony tendered by eye-witnesses, is not trustworthy; in the absence of conducting test identification parade, their evidence cannot be accepted.In support of their contentions, both the learned counsel for the appellants would cite the following authorities:(c) 1994 (2) CRIMES 875 (Madras High Court)(Mathy and Anr.(d) 2004 S.C.C. (Cri) 456 (State of Rajasthan vs. Kishan Singh).On the above aspects, we have heard learned Additional Public Prosecutor.We have carefully considered the submissions made by learned counsel for the parties and also gone through the records.On a perusal of the entire records and on consideration of the respective submissions made by learned counsel on either side, we are of the view that the prosecution has not been able to bring home the guilt of the accused, as the evidence adduced by the prosecution, would not inspire confidence.As such, the appellants/accused 1 to 3 are liable to be acquitted of the charges.The reasons for our conclusion are as follows.According to prosecution, when P.Ws.1 and 2 accompanied the deceased, all the three accused way-laid them and on coming to know that he belongs to Hindu religion, they attacked the deceased.The deceased was taken to hospital by P.W.1 Subramanian and other witnesses at about 5.45 p.m. Ex.P-18 is the accident register relating to the injuries on the deceased, issued by P.W.9 Doctor.It is mentioned in Ex.P-18 that P.W.1 told P.W.9 Doctor that some one attacked the deceased and the deceased was found with injuries in the place of the incident and that he and P.W.2, the wife of the deceased, brought the deceased.From the evidence of P.W.9 Doctor and Ex.P-18 accident register, it is clear that P.Ws.1 and 2 did not tell P.W.9 Doctor as to the details of the occurrence; as to how the deceased sustained injuries, the number of persons involved in the occurrence and the identity of those persons.Only after receipt of information about the death of the deceased from the Doctor, P.W.1 Subramanian went to the Police Station and gave Ex.P-1 complaint.In the complaint, P.W.1 Subramanian stated that himself and P.W.2 were the eye-witnesses to the occurrence and they saw that one among the three identifiable accused, caused injury on the deceased and all the three accused ran away from the scene.The same statement has been made by P.W.1 Subramanian to P.W.11 Inspector of Police during the course of investigation.Similar statement was made by P.W.2 Parvathamani also to P.W.11 Inspector of Police.Strangely, P.Ws.1 and 2 would depose in the Court that they saw A-1 stabbing on the left chest of the deceased; A-2 on the stomach of the deceased and A-3 on the right chest of the deceased.Thereafter, A-3 took out a reaper wood and caused injury on the hand of the deceased and then, ran away.Thus, the reason given by the High Court for distrusting the evidence of Dr.According to prosecution, while the deceased was way-laid, the accused asked the name of the deceased in order to verify as to whether he belongs to Hindu religion.This shows that during the course of investigation, the investigating agency was able to conclude that three persons participated and out of three, only one attacked the deceased.On the contrary, P.Ws.1 and 2 had stated before the Court that all the three accused persons attacked.Thus, it is manifestly clear that the investigating agency has not done their job properly to find out as to who are the real assailants.As such, this Court is left with no other alternative except to give the "benefit of doubt" to all the accused persons.Therefore, the conviction and sentence imposed on the appellants/A-1 to A-3 are liable to be set aside.

Cited provisions: Section 302 in The Indian Penal Code; Section 34 in The Indian Penal Code