Judgment :- R. Banumathi, J. Aggrieved over their conviction for various offences by First Additional District Judge-cum-Chief Judicial Magistrate, Madurai in S.C.384/99 dated 21.12.2000 Appellants/Accused 1 and 2 (husband and wife) have preferred this appeal. 2.The details of charges framed and the conviction is as under: Charge Accused Charged under Section Finding/Conviction 1 A1 and A2 341 I.P.C Found guilty-one month simple imprisonment 2 A2 302 r/w 109 I.P.C A2 found guilty-Life imprisonment 3 A1 and A2 302 r/w34 I.P.C A1 and A2 found guilty- Life imprisonment. No separate sentence for A2 for offence u/s.302 r/w.34 I.P.C 3.In short, case of the prosecution is as under:- There is a Poromboke land in front of the house of the accused and the deceased for which deceased Sundara Thevar had obtained patta regarding which there was dispute between the accused and the deceased. The deceased had filed Civil Suit against the accused and obtained an order of injunction from the court. In connection with the said land dispute, A1 had given a complaint before Koodakovil Police against the deceased. The Police enquired into the matter. During the enquiry, A1 is said to have given an undertaking before the Police not to encroach upon the disputed house-site. The accused is alleged to have put thorns/fence in the disputed land. Police intervened and removed the same. 4.On the date of occurrence-21.2.99 when the deceased was proceeding in Kanmai for attending the natural calls, P.W.1-son and P.W.3-daughter of the deceased were following him. The accused who was irrigating his lands, saw the deceased and restrained him. At the instigation of A2, A1 beat the deceased with stick on the right fore-arm, palmar region, hip, finger and both the legs. The occurrence was witnessed by P.Ws.1 and 3. On seeing P.Ws.1 and 3, accused had run away. 5.The deceased was brought to Koodakovil police station where statement of the deceased-Ex.P1 was recorded and his L.T.I was obtained by P.W.14 Sub-Inspector of Police. On the basis of Ex.P1, P.W.14 registered the case in Crime No.38/99 of Thirumangalam Taluk Police Station under Section 307 I.P.C under Ex.P14. P.W.15 Investigation Officer had taken up the investigation and prepared Ex.P11 Observation Mahazar and Ex.P17 Rough Sketch. He has recovered M.Os.2 to 6 from the scene of occurrence under Ex.P13. 6.The deceased was taken to Madurai hospital at 2.05 p.m. On examination, Sundara Thevar was found to be brought dead. P.W.15 Investigation Officer had taken up the investigation and prepared Ex.P11 Observation Mahazar and Ex.P17 Rough Sketch. He has recovered M.Os.2 to 6 from the scene of occurrence under Ex.P13. 6.The deceased was taken to Madurai hospital at 2.05 p.m. On examination, Sundara Thevar was found to be brought dead. Ex.P4 is the Accident Register. On receipt of Death Intimation, P.W.15 Investigating Officer altered the case into Section 302 I.P.C under Ex.P18 Express Report. Witnesses were examined in the presence of Panchayatars and inquest was held. Ex.P19 is the Inquest Report. After inquest the body was handed over to P.W.13-Thangapandi-Constable for being handed over to Doctor for conducting Autopsy. 7.P.W.2 conducted Postmortem and noticed seven lacerated injuries, most of which were on the lower limb and issued Ex.P3 Postmortem Certificate. P.W.2 opines that the deceased would appear to have died due to shock and haemorrhage of the injuries sustained by him. A1 was arrested on 22.2.99-1.00 p.m. in Perungudi Bus Stop. On the basis of his confession statement, M.O.1 stick was recovered under Ex.P10 from the Field House of accused. On completion of investigation, charge sheet was laid against the accused on 14.4.99. 8.To prove the charges against the accused the prosecution has examined P.Ws.1 to 15. Exs.P1 to P20 were marked. M.Os.1 to 8 were produced and marked as material objects. Upon consideration of the evidence, the learned Sessions Judge found that the accused were already inimical towards the deceased on enjoyment of the poromboke land. The trial court accepted the evidence of P.Ws.1 and 3 as reliable and based the conviction upon their evidence. Finding that both the accused had common intention to commit the murder of the deceased and that their guilt is proved beyond reasonable doubt, the trial court convicted the Appellants/Accused 1 and 2 as aforesaid in para 2. 9.The learned counsel appearing for the accused took us through the evidence of both the eye witnesses P.Ws.1 and 3 as well as other evidence on record and contended that the trial court has not properly appreciated the evidence on record. Assailing the conviction, on behalf of the accused, it is contended that the evidence is found to be wanting on the motive aspect. Attacking the credibility and reliability of P.Ws.1 and 3, the learned counsel has submitted that the presence of P.Ws.1 and 3 is highly doubtful. Assailing the conviction, on behalf of the accused, it is contended that the evidence is found to be wanting on the motive aspect. Attacking the credibility and reliability of P.Ws.1 and 3, the learned counsel has submitted that the presence of P.Ws.1 and 3 is highly doubtful. Further submitting that the injuries on the accused is not satisfactorily explained by the prosecution it is contended the fact that A1 has sustained injuries on the nape of the neck and that he had a right to defend himself is a strong circumstance which was not considered in the proper perspective by the trial court. Placing reliance upon 2003 (2) L.W.Crl.629 it is further submitted that even if the injuries sustained by the accused/A1 is a simple injury, it is still incumbent upon the prosecution to explain that injury which duty had not been discharged in the case in hand and that the accused are entitled to the benefit of doubt. 10.Adopting the reasonings of the trial court, the learned Public Prosecutor has submitted that the points urged by the accused have been considered by the trial judge and that there is no reason warranting interference. The learned Public Prosecutor has further submitted that the consistent evidence of P.Ws.1 and 3 well supported by the medical evidence coupled with the motive clearly establishes the guilt of the accused and the trial court was right in convicting the Appellants/Accused and that there is no reason warranting interference. 11.We have carefully analysed the evidence. Upon such analysis of evidence, in our considered view, the following points arise for determination in this appeal. (i)In the light of the injuries sustained by A1 can it be said that the prosecution has correctly projected the origin of the occurrence. (ii)Whether the trial court was right in believing the evidence of P.Ws.1 and 3 and right in convicting the accused on their evidence? 12.Admittedly, the parties are inimical towards each other on enjoyment of the poromboke site in front of the house of the deceased Sundara Thevar. The deceased Sundara Thevar is said to have obtained patta for the vacant site in front of his house and he was in enjoyment of the same. In one voice, P.W.1 Pichaipandi-son of the deceased and P.W.3 Pandiammal-daughter of the deceased have stated that A1 Veluthevar and his son Thandeeswaran were claiming right in the said poromboke house site. The deceased Sundara Thevar is said to have obtained patta for the vacant site in front of his house and he was in enjoyment of the same. In one voice, P.W.1 Pichaipandi-son of the deceased and P.W.3 Pandiammal-daughter of the deceased have stated that A1 Veluthevar and his son Thandeeswaran were claiming right in the said poromboke house site. Claiming such right, A1 Velu Thevar and his son are said to have encroached upon the same. For which deceased Sundara Thevar had filed civil suit against them. On knowing about the order of the civil court, A1 Velu Thevar and his son Thandeeswaran and daughter in law Kamakshi have preferred complaint before Koodakovil Police Station. Police enquired into the matter and directed the accused to remove the encroachment. Despite such warning by the police, the accused have not removed the encroachment. According to P.Ws.1 and 3-a day prior to the occurrence police intervened and removed the encroachment from the disputed area. 13.Thus it is clear from the evidence of P.Ws.1 and 3 that both parties seem to be inimical having ill-will towards each other. This motive aspect is not clearly unfolded by the prosecution. No injunction order or any other order from the civil court is produced by the prosecution. Nor earlier complaint by A1 and his family members before the police and the nature of direction given by the police and the result of the petition enquiry is available. Such production of the document is all the more important, when A1 is said to have sustained injuries in the course of the same transaction. 14.Whatever be the nature of dispute on enjoyment of the disputed house site, we are to proceed on the assumptive footing that both parties are inimical towards each other. We have to remind ourselves that animosity and motive is a double edged weapon both for the offence and also for false implication. No doubt, it is not always incumbent upon the prosecution to prove the motive for the crime. In this case, it is not as if the prosecution is not able to place the materials on enmity. Admittedly dispute between both parties relate to regarding enjoyment of vacant site. Deceased Sundara Thevar is said to have obtained patta for the same. He has also approached the civil court and obtained an order of injunction (stay). In this case, it is not as if the prosecution is not able to place the materials on enmity. Admittedly dispute between both parties relate to regarding enjoyment of vacant site. Deceased Sundara Thevar is said to have obtained patta for the same. He has also approached the civil court and obtained an order of injunction (stay). Neither the patta nor the order of the civil court is produced. We are constrained to hold that best attainable evidence on the motive aspect is not forthcoming. That puts us on guard to carefully analyse the evidence with care and circumspection. 15.Scene of occurrence is on the way to Kanmai Karai which is about one furlong away from the village. Adjacent to that path leading to Kanmai Karai are the two other cart tracks proceeding to Thumbakulam and Thirumal. Land of the accused is on the eastern side. On 21.2.99-7.00 a.m deceased Sundara Thevar was proceeding in the path leading to Kanmai Karai for defecation. At that time he was wrongfully restrained by A1 and A2. At the instigation of A2, A1 is said to have beaten the deceased Sundara Thevar with stick M.O.1 on the fore arm, left leg, right leg. When M.O.1 was broken, A1 is alleged to have taken the stick from A2 and further beaten the deceased Sundara Thevar. P.Ws.1 and 3-son and daughter of Sundara Thevar who are said to have following the deceased are stated to have witnessing the occurrence. P.Ws.1 and 3 have spoken about the occurrence, wrongfully restraint of their father Sundara Thevar and also the overt act of A1. 16.Evidence of P.Ws.1 and 3 is to be tested for its reliability and credibility. It is to be seen whether their evidence is reliable for its inherent consistency. Even according to P.Ws.1 and 3 their father Sundara Thevar was proceding in Kanmaikarai Road for defecation. If that be so, there was no necessity for P.Ws.1 and 3 to jointly follow their father. P.Ws.1 and 3 have tried to explain their presence stating that they happened to follow their father to go to their field to attend to the field work. It is elicited from P.W.1 during the cross-examination that normally they would assume the field work only between 8.00-8.30 a.m. While so, the presence of P.Ws.1 and 3 at 7.00 a.m in Kanmaikarai Road said to be following Sundara Thevar is highly doubtful. It is elicited from P.W.1 during the cross-examination that normally they would assume the field work only between 8.00-8.30 a.m. While so, the presence of P.Ws.1 and 3 at 7.00 a.m in Kanmaikarai Road said to be following Sundara Thevar is highly doubtful. 17.We may also point out the vagueness and lack of objectivity in the evidence of P.Ws.1 and 3. P.Ws.1 and 3 have only vaguely stated that they were following their father Sundara Thevar. They have not specifically stated about the distance with which they were following the deceased. Only if they were following within the short distance, it would have been possible for them to give clear account of the occurrence. From the nature and number of lacerated injuries on the body of deceased Sundara Thevar as seen from Ex.P3 Postmortem Certificate, we find that the attack on Velu Thevar must have persisted for quite some time. If really, P.Ws.1 and 3 were following at the short distance, they would not have remained indifferent to the attack on their aged father. By the non-interference of P.Ws.1 and 3 in the occurrence and in not trying to rescue their father in our view the following two things emerge: (i)either P.Ws.1 and 3 were not present in the scene of occurrence; or (ii)they must have been at a long distance from the scene of occurrence from where it would not have been possible for them to witness and prevent the occurrence. 18.Yet another infirmity in the evidence of P.Ws.1 and 3 could be pointed out which is against the general tenor of the prosecution case. From Ex.D2 Accident Register of A1, it is seen that he has sustained lacerated injury over nape of the neck and also sustained contusion on his left hand. P.Ws.1 and 3 have not explained the injuries found on A1. Since P.Ws.1 and 3 have not explained the injuries on A1, in our view, the presence of P.Ws.1 and 3 in the scene of occurrence is highly doubtful. Their evidence on the occurrence and the attack on their father Sundara Thevar does not inspire our confidence. 19.This is all the more so, when no independent witnesses are examined. The occurrence was at 7.00 a.m. From Ex.P17 plan, it is seen that the land of one Ganesa Thevar is situated on the western side. The scene of occurrence is surrounded by two other cart tracks. 19.This is all the more so, when no independent witnesses are examined. The occurrence was at 7.00 a.m. From Ex.P17 plan, it is seen that the land of one Ganesa Thevar is situated on the western side. The scene of occurrence is surrounded by two other cart tracks. Even then no independent witness is examined as to the occurrence. Very strangely even the other witnesses examined are only the family members of the deceased. P.W.8 Thandeeswari is another daughter of the deceased and P.W.7 Murugan is the husband of P.W.8. Yet another witness P.W.4 Sakthivel is another son-in-law of the deceased. Non-examination of other villagers on vital issues like motive and other aspects, coupled with non explanation of the injuries on A1, throws serious doubts on the origin and genesis of the occurrence. 20.The only independent witness examined is P.W.9 Muthuraman-resident of Cholapuram. According to P.W.9 on the date of occurrence, P.W.1 Pichaipandi came to him around 7.30 a.m stating that his father had fallen into the well. P.W.9 saw Sundara Thevar at Kinatru Medu and thereafter the deceased was taken in the bullock cart of P.W.9 to Koodakoil police station. P.W.9 has neither spoken about the motive nor about the occurrence. On the other hand, even in his chief examination P.W.9 has proceeded to state that he was informed by P.W.1 that Sundara Thevar had fallen into the well and that Sundara Thevar was found on Kinatrumedu. Evidence of P.W.9 is totally inconsistent with the case set forth by the prosecution. In the trial court P.W.9 was not cross examined by the prosecution, since his statement under Section 161(3) Crl.P.C was not recorded by the Investigating Officer. It is to be pointed out that the evidence of P.W.9 has the effect of nullifying the evidence of P.W.1 and the case of the prosecution. Even then the prosecution has not chosen to bring this aspect to the notice of the trial court. We find that the trial court was not right in side-stepping the evidence of P.W.9, simply saying that his evidence is of no use either to the prosecution or the accused. 21.From the version of P.Ws.1,3 and 9 and the nature of injuries sustained by Sundara Thevar,it is clear that he has sustained severe bleeding injuries particularly on the lower limb. 21.From the version of P.Ws.1,3 and 9 and the nature of injuries sustained by Sundara Thevar,it is clear that he has sustained severe bleeding injuries particularly on the lower limb. His condition was so serious that even when he was taken to the hospital at 2.05 p.m he was found to be brought dead. Despite the fact that Sundara Thevar sustained such serious blood injuries, he was only taken to the police station,indicating priority of the parties in registering the case, rather than to save the injured. We have serious doubts that after sustaining such serious bleeding injuries whether Sundara Thevar was in conscious and fit mental condition to give Ex.P1 statement. It is relevant to note in Ex.P1 only L.T I of Sundara Thevar is obtained. 22.We have serious doubts whether Sundara Thevar would have been in a position to give such detailed statement on the occurrence. The following few sentences occurring in ExP1 showing that the statement might have been given by PW1 The above statement is clearly suggests that the author of Ex.P1 is only P.W.1 and not Sundara Thevar. 22.Serious doubts arise in our mind that Sundara Thevar would not have been in a fit mental condition to make the statement Ex.P1. As said earlier, when he was taken to the hospital at 2.05 p.m, he was found to be brought dead and the body was sent to mortuary. At about 2.05 p.m when Sundara Thevar was found to be dead, his condition must have been rather so serious at 11.05 a.m to give any elaborate statement like Ex.P1. This aspect was not taken note of by the trial court. The trial court was not right in attaching importance to Ex.P1 finding that the law was set in motion by the deceased himself. 23.In the course of the same transaction the accused is said to have sustained lacerated injury muscle depth over nape of the neck and also contusion on the left hand over ulnae border. A1 had gone to the police station even at 11.00 a.m. On the basis of his statement a case in Crime No.37/99 was registered under Section 324 I.P.C under Ex.P16 F.I.R. Later the case was referred as 'Mistake of Fact' on the ground that the lacerated injury on the nape of the neck was self-inflicted by A1 with blade. A1 had gone to the police station even at 11.00 a.m. On the basis of his statement a case in Crime No.37/99 was registered under Section 324 I.P.C under Ex.P16 F.I.R. Later the case was referred as 'Mistake of Fact' on the ground that the lacerated injury on the nape of the neck was self-inflicted by A1 with blade. We find along with Ex.P20 Charge Sheet in Crime No.37/99 Wound Certificate of the injured accused/A1 is not produced. It was not elicited from Dr. Ravikala (D.W.1) that nape of the neck is accessible part and that the injury could have been self-inflicted. In the absence of any such definite opinion as to the accessibility of the neck referring of the case on 'Mistake of Fact' cannot be said to be well founded. 24.The important decisions on the question of explanation of the injuries sustained by the accused are: 1. AIR 1976 SC 2263 -Lakshmi Singh case 2. AIR 1975 SC 1478 -Bai Fatima case Quoting from the decision of Bai Fatima case the following observations were made by the Supreme Court in Lakshmi Singh case "In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (i)That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence; (ii)It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt; (iii)It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case." It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1)that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2)that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3)that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." (Emphasis added) 25.The prosecution is obliged to explain the injuries sustained by the accused (i)if it is not superficial or trivial in nature and (ii)if it has occurred in course of the incident although the origin and genesis of the prosecution may not remain oblivious or under cloud of doubt. Ordinarily, if it is not explained, the benefit has to be given to the accused. However, there may be cases wherein though injuries sustained by the accused has remained unexplained, for variety of reasons, but the evidence of prosecution is clear, coherent, convincing and radiating an imprint of truth without any doubt. Non-explanation on the part of the prosecution would pale into insignificance. However, there may be cases wherein though injuries sustained by the accused has remained unexplained, for variety of reasons, but the evidence of prosecution is clear, coherent, convincing and radiating an imprint of truth without any doubt. Non-explanation on the part of the prosecution would pale into insignificance. 26.The prosecution is obliged to explain the injuries sustained by the accused (i)if it is not superficial or trivial in nature; and (ii)if it has occurred in course of the incident although the origin and genesis of the prosecution may not remain oblivious or under cloud of doubt. Ordinarily, if it is not explained, the benefit has to be given to the accused. However, there may be cases wherein though injuries sustained by the accused has remained unexplained, for variety of reasons, but the evidence of prosecution is clear, coherent, convincing and radiating an imprint of truth without any doubt, non-explanation on the part of the prosecution would pale into insignificance. 27.There may be cases where non-explanation of injuries by the prosecution may not affect the prosecution case. But this principle would apply only to the cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent so independent and dis-interested and credit worthy that the evidence far out weighing the effect of the omission on the part of the prosecution to explain the injuries. 28.But in this case it cannot be said that the evidence on the occurrence is so clear and cogent and dis-interested. The evidence and the prosecution case is based upon the interested testimony of P.Ws.1 and 3 which bristles with several infirmities, as discussed above. In that view of the matter, we find that the prosecution is bound to explain the injuries on the first accused. 29.We are of the considered view that because of the non-explanation of injuries on the first accused, the prosecution version remains under cloud of suspicion. We are constrained to observe that the prosecution has not come forward with truthful version of the genesis of the occurrence. No doubt, it is not the obligation of the prosecution to explain the minor superfluous or self-inflicted injuries. But in this case the lacerated injury of muscle depth is on the nape of the neck of the first accused. The injury cannot be said to be simple superfluous or self-inflicted. No doubt, it is not the obligation of the prosecution to explain the minor superfluous or self-inflicted injuries. But in this case the lacerated injury of muscle depth is on the nape of the neck of the first accused. The injury cannot be said to be simple superfluous or self-inflicted. More so, when the prosecution has not elicited from D.W.1 that nape of the neck is accessible part of the body, in our view the non-examination of the injury on the vital part of the body of A1 casts doubts on the prosecution story, suggesting suppression of the genesis of the crime. It is not discernible from the evidence as to who is the aggressor and which party has acted in exercise of right of private defence or exceeded it. 30.Version of the defence as to how A1 sustained the injury is inconsistent as noted below: (i)In his statement before the police-Ex.P15 A1 has stated that Sundara Thevar has inflicted cut injury on his left side neck and he also sustained injury on his left hand while he tried to prevent the attack; (ii)In Ex.D2-Accident Register before the doctor A1 has stated that he sustained injury while he was assaulted by two known persons with aruval and Kambu at 7.00 a.m on 21.2.99 near his well; (iii)During the cross-examination of P.W.1, it was suggested that Sundara Thevar inflicted cut injuries on the first accused and the first accused acted in self-defence in beating Sundara Thevar with stick. It is seen from the above, that the defence stand is not consistent. But such inconsistency in the defence cannot go to the advantage of the prosecution. It only shows that the defence has also not come out with true version. 31.We may also point out the subsequent conduct of the first accused. Here is a case where after the occurrence the first accused does not try to conceal himself. He has gone to Koodakovil police station at 11.00 a.m lodging a complaint Ex.P15 and trying to explain the injuries. The subsequent conduct of the first accused also throws the question whether the prosecution case is worth of credibility and acceptance. 32.The occurrence being near the land of the accused assumes importance. Reason stated for the presence of deceased in the Kanmaikarai Road is not convincing. The subsequent conduct of the first accused also throws the question whether the prosecution case is worth of credibility and acceptance. 32.The occurrence being near the land of the accused assumes importance. Reason stated for the presence of deceased in the Kanmaikarai Road is not convincing. It is to be pointed out only the previous day, the police have removed the thorns put by the accused and the differences between the accused and prosecution deepened. From the evidence set forth by the prosecution, it is not discernible as to who could have the aggressor and who acted in self-defence. 33.The facts of the case are mixed with truth and falsehood and it is unsafe to believe the version of the prosecution and reject the plea of the accused that they are not the offenders but victim of offence in the hands of the complainant party. In this case neither the prosecution nor the defence has come forward with the true version of occurrence. The evidence is not inspiring confidence or trustworthy and the injuries of the nature received by first accused are not explained which has rendered the version of the prosecution doubtful. Consequential effect thereof is that the accused are entitled to the benefit of doubt. 34.We have carefully analysed the entire evidence. It is no doubt true that the deceased died of injuries. The evidence set forth only creates doubt that there might have been occurrence and that the first accused might have caused the injuries. But between the two concepts "... may be true and must be true... " there is a long distance to be covered by the prosecution by producing evidence worthy of acceptance. We are of the considered view that the prosecution has not come out with the true genesis of the occurrence. In our view, the conviction of the Appellants/Accused cannot be sustained. 35.Therefore allowing this appeal, we set aside the verdict of conviction of the Appellants/Accused 1 and 2 by the First Additional District Judge-cum-Chief Judicial Magistrate, Madurai in S.C.384/99 dated 21.12.2000. The appellant/A1 is ordered to be released forthwith if he is not required in any other case.