Judgment :- M. KARPAGAVINAYAGAM, J., A1-Karuppiah, A2-Mathialagan and A3- Maruthambal were convicted by the trial Court for the offence under Sections 447 and 302 read with 34 I.P.C. and each were sentenced to undergo rigorous imprisonment for 3 months for the offence under Section 447 I.P.C. and life imprisonment for the offence under Section 302 read with 34 I.P.C. and to pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for six months. 2. The facts leading to the conviction could be summarised as follows:- a) The deceased Chinnadurai is the younger brother of A1 Karuppiah. A2 Mathialagan is the son of A1 Karuppiah. A3 Maruthambal is the wife of A1 Karuppiah. P.W.1 Mariyayee is the wife of the deceased Chinnadurai. All were residing in the same village viz.,.Kunalai. b) Even during the life time of the father of the deceased and A1 Karuppiah, the properties were partitioned and one acre of land was allotted to the deceased and the other property comprising of one acre of land was allotted to A1 Karuppiah. They were separately enjoying their properties. Those lands are situate side by side. c) The branches of coconut trees standing in the land of the deceased grew bigger and bent down in the land of the accused. Since it was a hindrance to the accused to enjoy their lands, A1 Karuppiah requested the deceased Chinnadurai to cut those branches. However, the said request was not heeded to. d) On 25.8.1999 at 10.00 a.m., A1 and A2 came to the field of the deceased and began to cut the branches, which grew into their land. On noticing this, the deceased Chinnadurai and P.W.1 Mariyayee, the wife of the deceased rushed to the scene. The deceased questioned both the accused as to why they trespassed into his land and cut the branches of his trees. At that time, A3 also came to the field with a stick. On feeling annoyed, A1 by shouting that he would kill him, gave a cut with aruval on the front and backside of the head of the deceased Chinnadurai. A2 also made an attempt to cut the deceased. At that point of time, the deceased took M.O.3 sharp edged bamboo stick and stabbed on the chest of A2 . On receipt of the injury, A2 gave indiscriminate cuts on the body of the deceased. A2 also made an attempt to cut the deceased. At that point of time, the deceased took M.O.3 sharp edged bamboo stick and stabbed on the chest of A2 . On receipt of the injury, A2 gave indiscriminate cuts on the body of the deceased. A3 also beat with stick on the back of neck, left forearm and other parts of the body of the deceased. The deceased fell down with bleeding injuries. Again A3 cut with aruval on the left fore leg of the deceased. e) The witnesses P.W.2 Soosaiammal, P.W.3 Nallammal and P.W.4 Maichel and others were working in the adjacent fields. On hearing the sound, these witnesses came to the scene and saw the occurrence. All of them shouted. All the three accused ran towards eastern side with the weapons. The deceased Chinnadurai died at the spot. f) Immediately thereafter, P.W.1 went to the Village Administrative Officer's office situate in the same village and gave Ex.P.1 complaint to P.W.8 Village Administrative Officer. After recording the same, P.W.8 took P.W.1 to the police station and handed over Ex.P.1 complaint to P.W.12 Inspector of Police. A case was registered in Crime No.292/1999 for the offence under Section 302 I.P.C. by P.W.12. g) Thereafter, P.W.12 rushed to the scene of occurrence at 1.30 p.m. and prepared Ex.P.5 observation mahazar and drew Ex.P.16 rough sketch. He conducted inquest over the body of the deceased. During inquest, he examined witnesses P.Ws. 1 to 4 and others. The inquest report is Ex.P.17. Thereupon, the body was sent for post-mortem examination. He recovered M.O.8 bloodstained earth, M.O.9 sample earth, M.O.3 sharp edged bamboo stick and M.O.6 series five coconut sticks( bjd;id kl;ilfs;). h) On the next day, i.e. on 26.8.1999 at about 5.00 a.m., P.W.12 arrested both A1 and A3. On the confession of A1, he recovered M.Os. 1 and 2 and on the confession of A3 he recovered M.O.10 Kavataikuchi, which was used by A3 during occurrence. i) P.W.7 Dr. Kaylayana Sundari conducted post-mortem on the body of the deceased on 26.8.1999 and noticed that the deceased sustained ten injuries and gave opinion in Ex.P.4 post-mortem certificate that the deceased would appear to have died of multiple injuries sustained and intensive haemorrhage to the brain. j) In the meantime, P.W.12 received information that A2 was hospitalised in the Government Hospital, Tiruchirapalli. Therefore, he examined the Doctor P.W.6, who gave treatment to A2. j) In the meantime, P.W.12 received information that A2 was hospitalised in the Government Hospital, Tiruchirapalli. Therefore, he examined the Doctor P.W.6, who gave treatment to A2. On 28.8.1999, he arrested A2. He made arrangements for sending the Material Objects for chemical examination. He obtained Ex.P.2 wound certificate issued in respect of the injuries found on A2.. After completing the investigation, P.W.12 laid the charge sheet against the accused 1 to 3, for the offence under Section 302 read with 34 I.P.C. k) In the trial Court, all the three accused were charged for the offence under Sections 447 and 302 read with 34 I.P.C. During the course of trial, on the side of the prosecution, P.Ws.1 to 12 were examined, Exhibits P.1 to P.17 were filed and M.Os. 1 to 10 were marked. l) When questioned under Section 313 Cr.P.C., A1 stated that the deceased came with Koothukoll and attacked his son A2 on his chest and in order to exercise self-defence for himself and for his son, he attacked the deceased and as such, he cannot be convicted for the offence of murder. On the side of defence, Ex.D.1 was marked. m) On considering the materials available on record, the trial Court found all the accused guilty of the offence under Sections 447 and 302 read with 34 I.P.C. and convicted and sentenced them thereunder. This is the subject matter of challenge before this Court in this appeal. 3. Mr. N. Mohideen Basha, learned counsel appearing for the appellants, while assailing the judgment of conviction, would point out various infirmities and contend that the prosecution has not come with clean hands and the Investigating Officer P.W.12 has not investigated the counter-complaint properly and therefore, all the accused are entitled to be acquitted. 4. We have heard Mr.E. Raja, Additional Public Prosecutor on these aspects. 5. We have given our anxious consideration to the rival contentions urged by the learned counsel for the parties. 6. On a careful scrutiny of the materials available on record, we are unable to hold that the prosecution has proved its case beyond reasonable doubt. The various infirmities which are noticed in this case would make it clear that the prosecution has not come with clean hands and the flaw on the investigation would go to the root of the matter and as such, the accused 1 to 3 are entitled to be acquitted. The various infirmities which are noticed in this case would make it clear that the prosecution has not come with clean hands and the flaw on the investigation would go to the root of the matter and as such, the accused 1 to 3 are entitled to be acquitted. The reasons for the above conclusion are as follows: A) The case of the prosecution as evident from Ex.P.1 and deposition given by P.W.1 Mariyayee in the chief is that when the deceased came to the scene and objected to, the accused cutting the branches of the coconut trees belonged to him, A1 attacked the deceased with aruval and when A2 made an attempt to attack the deceased, the deceased took out M.O.3 and inflicted injury on A2 and thereafter, A2 and A3 attacked the deceased with aruval and stick respectively. But, this story has been given a go-bye by P.W.1 in the cross- examination. According to P.W.1 while she was cross- examined, initially there was a wordy quarrel between A1 and the deceased with reference to the cutting of branches of coconut trees and while the wordy quarrel was going on, A2 came near the deceased and attempted to attack the deceased and then, the deceased took out a stick and attacked A2 and thereafter both A1 and A2 attacked the deceased with aruval. Thus, it is clear that the prosecution case is not consistent. B) Furthermore, P.W.1 would state in Ex.P.1 that the deceased attacked and inflicted injury on the chest of A2 by means of a sharp edged bamboo stick. On the other hand, it is the evidence of P.W.1, while she was examined before the Court, that the deceased took out " thennamattai " (bjd;dkl;il) and inflicted injury on the head of A2. Admittedly, there is no corresponding injury in the head. On the other hand, there is an injury found on the chest of A2 as mentioned in Ex.P.2 wound certificate issued by Doctor P.W.6. While going through the evidence of P.W.2, another eye witness, it is seen that P.W.1 came to the scene only after the attack was over. Furthermore, the other eye witnesses P.Ws. 3 and 4 would not refer to the presence of P.W.1 at all at the scene, while the occurrence had taken place. While going through the evidence of P.W.2, another eye witness, it is seen that P.W.1 came to the scene only after the attack was over. Furthermore, the other eye witnesses P.Ws. 3 and 4 would not refer to the presence of P.W.1 at all at the scene, while the occurrence had taken place. C) It is the case of the prosecution through the evidence of P.W.1 and P.W.8 the VAO that P.W.1 went to the office of the Village Administrative Officer at about 10.30 a.m. and gave statement which was reduced into writing by P.W.8 and then P.W.8 took P.W.1 to the police station. P.W.12 Inspector of Police at about 12.30 p.m. received the complaint from P.W.1 and thereafter came to the place of occurrence at 1.30 p.m. But, this aspect of evidence has not been supported by P.Ws. 2 to 4. All these witnesses would state that half an hour after the occurrence, P.W.8 the VAO came to the scene and obtained the statement from P.W.1 at the scene and during the course of recording, Police Officers came to the scene. If this evidence is true, it is not known as to how the Police Officer received the message about the incident and came to the scene even before recording the complaint from P.W.1 D) According to P.W.1, M.O.3 stick was used by A3 while attacking the deceased. It is the case of the prosecution that as soon as the attack was over, all the three accused ran away from the scene with the weapons. P.W.12 would state that A3 was arrested on 26.8.1999 at about 5.00 a.m. and M.O.10 the weapon used by her was recovered from her. M.O.3 was found at the scene itself and the same has been recovered by P.W.12, while preparing the observation mahazar and rough sketch. This would mean that the deceased had used M.O.3 for causing injury on the chest of A2. Strangely, while P.W.6 Doctor was examined by the Police Officer, M.O.3 was not shown to him as admitted by P.W.6 Doctor. But in the cross examination, P.W.6 would state that a weapon like M.O.3 would not cause the injury found on the chest of A2. Strangely, while P.W.6 Doctor was examined by the Police Officer, M.O.3 was not shown to him as admitted by P.W.6 Doctor. But in the cross examination, P.W.6 would state that a weapon like M.O.3 would not cause the injury found on the chest of A2. E) P.Ws.1 to 4 the eye witnesses uniformly would admit in the cross- examination that A2 fell fainted at the scene place itself and A3 came to the scene and she put him on her thighs and she was weaping and at that time, the Police Officer came and advised A3 to take A2 to the hospital. If that is so, there was no reason as to why A2 and A3 were not arrested by the police who came to the scene after registration of complaint even though in the complaint they were arrayed as one of the accused. This shows that the complaint must have been prepared later. In view of these infirmities, we are not able to place any reliance on the evidence of P.Ws. 1 to 4, who are said to be the eye witnesses to the occurrence particularly when they are not consistent with reference to the manner of the occurrence. F) Another serious lacuna which could be noticed is this. P.W.12 the Inspector of Police did not state in the chief examination that he received counter-complaint from A2 on the same day, i.e. on 25.8.1999. However, he would admit that Ex.D.1, the final report has been filed by him in respect of the counter- complaint given by A2 while he was cross examined. G) A perusal of Ex.D.1 would show that the counter-complaint has been received from A2 against the deceased and the said complaint was registered under Section 324 I.P.C. and the same has been referred as abated by P.W.12 the Inspector of Police. Despite having received a counter complaint from A2, who sustained injury in the course of the same transaction, there is no reason as to why P.W.12 did not place those materials before the Court. Admittedly, the counter complaint has not been marked by the prosecution and the same has been marked by the defence. H) On going through Ex.D.1, it is noticed that counter- complaint has been received on the very same day i.e. on 25.8.1999. Admittedly, the counter complaint has not been marked by the prosecution and the same has been marked by the defence. H) On going through Ex.D.1, it is noticed that counter- complaint has been received on the very same day i.e. on 25.8.1999. As noted above, P.W.12 did not refer to the counter complaint and did not give any details about his investigation conducted on the said counter complaint. As a matter of fact, he has not placed any material to show that he conducted investigation on the counter complaint before referring the counter complaint as abated. I) It is settled law that when there is a counter complaint given by the accused for the injuries sustained by him in the course of the same transaction at the hands of the deceased party, the Investigating Officer has to investigate both the complaints and then file final report only after completion of investigation in both the cases. But this has not been done in this case. No reason has been given. But, it is clear from this that the Investigating Officer has not only failed to conduct the investigation in the counter- complaint but also suppressed the fact that he received the counter- complaint from A2. These two things would make it clear that the prosecution party including the Investigating Officer has not come to the Court with clean hands and has failed to place all the materials collected by the Investigating Agency. J) In those circumstances, we are of the view that the appellants/A1 to A3 are entitled to be given the benefit of doubt and accordingly, the conviction and sentence imposed on the appellants are liable to be set aside. 7) In fine, the appeal is allowed and the conviction and sentence imposed on the appellants by the trial Court are set aside, and they are acquitted. It is stated that A1 is in jail and A2 and A3 are on bail. Bail bonds of A2 and A3 shall stand cancelled. A1- Karuppiah is directed to be set at liberty forthwith, unless he is required in connection with any other case. Fine amount paid, if any, shall be refunded to the appellants.