JUDGMENT M. Karpagavinayagam, J. :- Pukkan Chellaiah, the first accused has fried this appeal challenging the conviction under Sec. 302, I.P.C. and sentence of life imprisonment imposed upon him. 2. The gravemen of the main charge is that on 18.10.1992 at about 6.30 p.m., the appellant/first accused caused the death of the deceased Chellamuthu by throwing a stone on his head, thereby the accused is punishable for the offence under Sec. 302, I.P.C. 3. The facts leading to the conviction could be summarised as follows: “(a) P.W.1 Thangavelu is the son of the deceased Chellamuthu. On 18.10.1992 at about 6.00 a.m., the deceased Chellamuthu and others were working in their garden. At that time, the appellant Pukkan Chellaiah was driving his bullock cart through their garden over the chillies spread over in that land. When that was questioned, the appellant stated that he would do it only in that way and they could take any action against him. Thereafter, the deceased Chellamuthu asked his sons and others to remove the thorny bush and put on the way to prevent the appellant from coming back. (b) The appellant came back on his bullock Cart and on seeing the thorny bush put on the way, he went through the other side. Evening at about 5.30 p.m., P.W.1 Thangavelu along with P.W.5 was proceeding towards his home. At that time, the appellant restrained P.W.1 and beat him on the shoulder with a Thadi. P.W.1 on receipt of the injuries came and informed this to his father, the deceased Chellamuthu. (c) Then, all of them went to the scene and questioned the accused as to how he could beat P.W.1. There was a quarrel ensued. Then the appellant took a stone and threw it on the chest of the deceased, as a result of which, he fell down. Thereafter, P.W.1 beat the appellant. In the meantime, the second accused, the son of the appellant also beat the deceased. Later, both of them beat P.W.2, the brother of P.W.1. In the meantime, the first accused/appellant took M.O.2, the big stone and dropped on the head of the deceased. The deceased died at the spot. After the occurrence was over, the accused ran away from the scene. (d) P.W.1, thereafter, went to the Thathaiyengarpet police station and gave a complaint to P.W.15, Head-constable. In the meantime, the first accused/appellant took M.O.2, the big stone and dropped on the head of the deceased. The deceased died at the spot. After the occurrence was over, the accused ran away from the scene. (d) P.W.1, thereafter, went to the Thathaiyengarpet police station and gave a complaint to P.W.15, Head-constable. He received the complaint under Ex.P-1 and registered a case under Crime No.440 of 1992 under Secs.302 and 323, I.P.C. Then he sent the message to the Inspector of Police, P.W.16. (e) On receipt of message, P.W.16 came to the scene of occurrence at about 9.00 p.m. on the same day. He inspected the spot on the next day morning. He prepared Ex.P-20, observation Mahazar and rough sketch Ex. P-21. He recovered M.O.1, small stone and M.O.2, big stone. He conducted inquest and prepared inquest report Ex.P-22. (f) During the course of investigation, he came to know that the accused 1 and 2 were available at Urakkarai. So, on 22.10.1992, P.W.16 along with P.W.8, Thirumalai went to the said place and arrested both the accused. On the confession of the appellant, A-1, two blood stained sticks M.O.3 and M.O.4 were recovered under Ex.P-9. He found both of the accused sustained injuries. So, he sent them to the doctor on 23.10.1992. (g) In the meantime, P.W.1 was examined by the doctor P.W.9 who issued Ex.P-11, wound certificate. He examined P.W.2 also and issue wound certificate Ex.P-10. (h) On the basis of requisition by P.W.16, P.W.10 the Doctor at about 9.30 a.m. conducted post mortem and issued post mortem certificate Ex.P-12. He found following injuries on the body of the deceased: “1. A lacerated injury 3 cm × 1 cm × 1 cm present over left parietal region of scalp. 2. A contusion 10 cm × 10 cm present over Central area of scalp. 3. A contusion 5 cm × 5 cm with a central abrasion 2 cm × 1 cm over right hip (anterior superior iliac spine region) 4. An abrasion 3cm × 2 cm present over right side chest below right nipple”. Skull: Haematoma under the scalp present over both parietal regions. Injuries: 1. Depressed fracture of Left parietal bone present. 2. Depressed fracture with separation of inter-parietal sutrues present.” According to the doctor, P.W. 10, the deceased would appear to have died of head injury. An abrasion 3cm × 2 cm present over right side chest below right nipple”. Skull: Haematoma under the scalp present over both parietal regions. Injuries: 1. Depressed fracture of Left parietal bone present. 2. Depressed fracture with separation of inter-parietal sutrues present.” According to the doctor, P.W. 10, the deceased would appear to have died of head injury. (i) P.W. 17, the successor of P.W. 16 took up further investigation and examined all other witnesses and filed a charge sheet on 28.2.1993 against both the accused under Secs.323 and 302, I.P.C. (j) The trial Court framed three charges against the accused 1 and 2. The first charge would relate to the offence under Sec. 323 as against A-1, appellant for having caused injury on P.W.1. The second charge is in respect of the offence under Sec. 302, I.P.C. against A-1 for having caused the death of the deceased by means of stone. The third charge is in respect of the offence under Sec. 302 read with 34, I.P.C. against A-2 for having caused injury on the head and hip of the deceased by means of Thadi and Stone. (k) After conclusion of the trial, the appellant, the first accused and the second accused were questioned under Sec. 313, Crl.P.C. They stated that the prosecution party was the aggressor, that since they came with aruval and attacked A-1 and A-2, in order to exercise the right of private defence, A-1 took the stone and hit on the deceased and that immediately after the occurrence, they went straight to the police station to give complaint, but they were detained in the police station itself and as such, they had not committed any offence. To substantiate the defence plea DW1, Ganesan, the son of A-1 was examined. (l) On appraisal of the evidence on record, the trial Court convicted the appellant/the first accused for the offence under Sec. 302, I.P.C., but acquitted in respect of the offence under Sec. 323, I.P.C. As far as A-2 is concerned, the trial Court held that he attacked the deceased in exercise of self defence and as such, he is liable to be acquitted for the offences under Secs. 323 and 302, I.P.C. (m) Having aggrieved over the judgment of conviction and sentence, the appellant/first accused has filed this appea”. 4. 323 and 302, I.P.C. (m) Having aggrieved over the judgment of conviction and sentence, the appellant/first accused has filed this appea”. 4. We have heard Mr.V. Ramasubramaniam, learned counsel for the appellant and Mr.S. Jayakumar, Additional Police Prosecutor, appearing for the respondent. 5. On going through the records and on hearing the counsel for the parties, we are of the view that the entire case of the prosecution would bristle with so many infirmities and as such, the appellant is liable to be acquitted. The reason are as follows. 6. According to the prosecution, A-1, the appellant hit on the chest of the deceased by a small stone and when the deceased fell down, he took a big stone and dropped it on the head of the deceased, which resulted in his death and this occurrence was witnessed by four witnesses P.Ws.1 to 4. According to doctor, P.W.10, who conducted post mortem, the head injury was fatal. P.W.1 though in his deposition would state that A-1 threw both small stone as well as big stone M.Os.1 and 2 and caused injuries on the chest and head of the deceased respectively, the hit by M.Os., big stone on the head of the deceased was not mentioned in Ex.P-1, the complaint given by P.W.1. 7. Even according to the prosecution, A-2 also hit on the head of the deceased by means of stick. It is seen from the records that both M.Os.1 and 2 were recovered from the scene of occurrence and M.Os.3 and 4 were recovered on the confession of A-1. It is not the case of prosecution that the head injury could have been caused by a stick. In the cross-examination of doctor, it has been elicited that one of the injuries found on the head could have been caused by a stick. In this context, we have to remember that A-2, who caused injury on the head of the deceased by the stick has been acquitted. Therefore, we are unable to decide that the first accused/appellant alone caused the fatal injury which was found on the head of the deceased. 8. Furthermore, it is the case of prosecution that the deceased, P.Ws.1 and 2 were attacked by A-1 and A-2. As a matter of fact, P.W.9, who examined P.W.2 found head injuries also. Therefore, we are unable to decide that the first accused/appellant alone caused the fatal injury which was found on the head of the deceased. 8. Furthermore, it is the case of prosecution that the deceased, P.Ws.1 and 2 were attacked by A-1 and A-2. As a matter of fact, P.W.9, who examined P.W.2 found head injuries also. According to P.Ws.1 and 2, P.W.2 was attacked by A-1 and A-2, but there is no charge in respect of the attack made on P.W.2 either against A-1 or against A-2. 9. On the other hand, the evidence let in by the prosecution through P.Ws.1 to 4 are quite contradictory to the charges framed by the trial Court. That apart, a new theory has been introduced by P.W.1 in the Court that M.O.2, big stone was used by A-1 for throwing the same, on the head of the deceased, which was not mentioned in the complaint. 10. It is also seen from the evidence of P.Ws.1 and 2 that P.Ws. 3 and 4 came to the scene of occurrence only after the concurrence was over. It is also noticed that there are contradictions between P.Ws.1 and 2 with reference to the overt acts attributed to each of the accused. It is also pertinent to point out that the injuries caused on A-1 and A-2 have not been properly explained either under Ex.P-1 or in the deposition given by them. 11. P.W.2 would admit that after the receipt of injury on his head, he fell down unconscious and he did not know what had happened subsequently. Though in the chief-examination, he would state that he saw that the decreased was attacked by A-1, as a result of which, he died on the spot, in the cross-examination, he stated that he did not know whether the deceased died on the spot. 12. In the above circumstances, we are unable to place reliance on the evidence of P.Ws. 1 to 4. 13. This may be viewed by yet another angle. Admittedly, as deposed by P.W.1 in the cross-examination. P.Ws.1 to 4 and the deceased, all went to the scene of occurrence with Thadi. P.W.3 would admit in the cross examination that they went to the scene with Thadies only for the purpose of attacking the accused. 14. 1 to 4. 13. This may be viewed by yet another angle. Admittedly, as deposed by P.W.1 in the cross-examination. P.Ws.1 to 4 and the deceased, all went to the scene of occurrence with Thadi. P.W.3 would admit in the cross examination that they went to the scene with Thadies only for the purpose of attacking the accused. 14. It is also admitted by the witnesses that there was a scuffle between both the groups which went on for about half an hour. It is the consistent case of the defence that the prosecution party came with aruval and Thadies as aggressors and attacked and by way of self-defence, the first accused/appellant threw the stone on the deceased. 15. As noted above, it is an admitted fact that P.Ws.1 and 2 and the deceased went to the place of occurrence with Thadies. There is no dispute in the fact that the occurrence took place near the land of the accused. It is also not disputed by the prosecution that they came to the scene with weapons in order to question the accused, as to how he could beat P.W.1, the son of the deceased. 16. Curiously, the weapons carried by the witnesses to the scene for the purpose of attacking the accused had not been recovered. In fact, P.W.16, the Inspector of Police would admit that he did not recover the aruval and other sticks used by the deceased and P.Ws.1 and 2. 17. These things would make it clear that the deceased and the other witnesses were the aggressors and they went to the scene which is very near to the land belonging to the accused for the purpose of attacking them. In that case, the police should have received the complaint from the accused, who admittedly sustained injuries on the head and other parts of the body and found out as to who is the real aggressor by investigating both the complaints. This was not done in this case. This shows that the investigation conducted by P.W. 16 was biased and one sided. 18. There is yet another important aspect to be noticed in this context. Even according to prosecution as mentioned in the complaint, Ex.P-1 and as admitted by them in the deposition, both A-1 and A-2 sustained injuries. This was not done in this case. This shows that the investigation conducted by P.W. 16 was biased and one sided. 18. There is yet another important aspect to be noticed in this context. Even according to prosecution as mentioned in the complaint, Ex.P-1 and as admitted by them in the deposition, both A-1 and A-2 sustained injuries. P.W. 16 and P.W. 8 would say that the accused were arrested only on 22.10.1992 at about 6.00 p.m. 19. On the other hand, it is admitted by P.W.1 during the course of cross examination, both the accused were detained in the police station on 19.10.1992 itself. It is the case of the defence that on 18.10.1992 that both the accused went to the police station for giving complaint against the prosecution party, but however, they were detained in the police station itself. On their being detained for about three days, the wife of the appellant through her advocate sent a telegram to the Inspector of Police as well as to the higher officials stating that her husband and son namely, the appellant and the second accused were being detained from 18.10.1992 onwards and that if they were not released, she would be constrained to file habeas corpus petition before the High Court. 20. When the telegram Ex.D-1 was shown to P.W.16, Inspector of Police, he would simply say that he did not see the telegram. But the fact remains that the telegram was sent on 22.10.1992 at about 11.51 a.m. and the time of arrest was shown as 6.00 p.m. on 22.10.1992. Since the accused were found with injuries, there was no other alternative for P.W. 16 to send them to doctor P.W.14, who treated them for the injuries. P.W. 14 gave wound certificates Exs.P-18 and P-19. Though the doctor would say that they are simple injuries, it is stated in the certificates that they sustained the injuries on 18.10.1992 at about 7.00 p.m. 21. Thus, it is clear that in order to explain the injuries mentioned under Ex.P-1, P.W.16, the Inspector of Police though it fit to send them to doctor P.W.14 and got certificates Exs.P-18 and P-19. 22. On going through Ex.P-18, it is seen that the first accused/appellant sustained head injury, which is a sutured one. This means that A-1 must have been treated earlier by some other doctor. 22. On going through Ex.P-18, it is seen that the first accused/appellant sustained head injury, which is a sutured one. This means that A-1 must have been treated earlier by some other doctor. According to the accused, they were detained in the police station from 18.10.1992 onwards and the doctors were brought to the police station and treatment was given. P.W.16 would admit in the cross examination that he did not choose to examine the doctor, who gave treatment earlier. So, all these things put together would make it obvious that the prosecution has not only failed to explain the injuries sustained by the accused, but also has suppressed the origin of the occurrence and thus it has not presented the true version relating to the occurrence. 23. It is held in the judgment reported in Lakshmi Singh v. State of Bihar, A.I.R 1976 S.C. 2263 that in a murder case, non-explanation of the injuries sustained by the accused, at or about the time of the occurrence is a very important circumstance, from which the Court can draw the inference that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version and that in a case where there is a definite version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case. This decision has been followed by a Division Bench of this Court in Kaliyaperumal v. State represented by S.I. of Police, Paravakottai, (1994) 1 L.W. (Crl.) 319. These observations referred to above in our view, would squarely apply to the present case. 24. It is also important to note that A-2 has been acquitted in this case on the reason that he beat the deceased by way of exercising self-defence. This reasoning for acquitting A-2 would be applicable to the appellant as well. 25. In view of the discussions made above, we are of the view that the prosecution has failed to establish the case as against the appellant. Therefore, the benefit of doubt which was given by the trial Court to A-2 shall be given to the appellant/first accused also. 26. Consequently, the conviction and sentence imposed on the appellant/first accused are set aside. The appellant is acquitted and the appeal is allowed. B.S.-----Appeal allowed.