Judgment :- (Appeal preferred against the conviction and sentence passed by the learned Addl. Sessions Judge, Tiruvannamalai, made in S.C. No. 57 of 1998 dated 28.4.2000 as stated therein.) M.Chockalingam, J. This appeal is broughtforth by A-1 to A-6 in S.C. No.57 of 1998 on the file of the Addl. Sessions Judge, Tiruvannamalai. The accused were tried under various sections and the learned trial Judge found A-1 guilty under Sections 148 and 302 and 324 (2 counts) IPC and for the offence under Section 148 IPC he was sentenced to two years rigourous imprisonment, while for the offence under Section 302 IPC he was sentenced to life imprisonment and for the offence under Section 324 IPC (2 counts) he was sentenced to one year rigourous imprisonment and directed to pay a fine of Rs.1,000/= with a default sentence of three months rigourous imprisonment. 2. A-2 was found guilty under Sections 147 and 302 read with 149 IPC for which he was sentenced to rigourous imprisonment for one year for the former offence and to life imprisonment for the latter offence and directed to pay a fine of Rs.1,000/= with a default sentence of three months rigourous imprisonment. 3. A-3 was found guilty under Sections 147 and 302 read with 149 IPC for which he was sentenced to rigourous imprisonment for one year for the former offence and to life imprisonment for the latter offence and directed to pay a fine of Rs.1,000/= with a default sentence of three months rigourous imprisonment. 4. A-4 and A-5 were found guilty under Sections 147, 302 read with 149 and 323 IPC and for the offence under Section 147 IPC they were sentenced to one year rigourous imprisonment each, while each of them was sentenced to life imprisonment for the offence under Section 302 read with 149 IPC and directed to pay a fine of Rs.1,000/= each with a default sentence of three months rigourous imprisonment. They were also found guilty for the offence under Section 323 IPC and each one of them was directed to pay a fine of Rs.500/= with a default sentence of three months rigourous imprisonment. 5. They were also found guilty for the offence under Section 323 IPC and each one of them was directed to pay a fine of Rs.500/= with a default sentence of three months rigourous imprisonment. 5. A-6 was found guilty under Sections 147 and 302 read with 149 IPC for which she was sentenced to rigourous imprisonment for one year for the former offence and to life imprisonment for the latter offence and directed to pay a fine of Rs.1,000/= with a default sentence of three months rigourous imprisonment. 6. The short facts necessary for the disposal of this appeal could be stated thus :- The deceased, A-1 and A-2 are cousin brothers. They all belong to Kottavur village. P.W.2 is the wife of the deceased. P.W.7 is the son of the deceased, while P.W.s 3 and 4 are his daughters. Apart from P.W.s 3, 4 and 7, the deceased had got two more sons. A-1 and A-2 are brothers. A-3 and A-4 are the sons of A-1. A-5 is the son of A-2. A-6 is the wife of A-2. The house of A-1 was situate on the eastern side of the house of the deceased. There was a dispute between the two families in respect of the joint family properties. The cattles of the deceased were found grazing in the common lands on the previous day. A-2 questioned the deceased about the same. There was a quarrel in that regard between A-2 and the deceased. 7. On 20.1.95 at about 6.00 a.m., A-2 and A-4 were taking paddy through the lands, which was in possession of P.W.1. The deceased had paid Rs.10,000/= to one Kuppu and was enjoying the said lands under an usufructuory mortgage. While A-2 and A-4 were passing through, the deceased questioned their conduct and following the said quarrel A-4 left the place and within a short time he came there along with the other accused armed with weapons. A-2 uttering the words that "so long as you live you will not allow us to do" and A-1 also uttered the words and the accused started their attack on the deceased. A-1 assaulted the deceased and he also assaulted P.W.3 on the head. A-4 assaulted the deceased on the nose and chest with a wooden pole. A-3 and A-5 caught hold of the deceased and A-6 crushed his testicles. A-1 assaulted the deceased and he also assaulted P.W.3 on the head. A-4 assaulted the deceased on the nose and chest with a wooden pole. A-3 and A-5 caught hold of the deceased and A-6 crushed his testicles. On hearing the noise, P.W.s 2 and 4 came there. Immediately A-1 attacked P.W.4. A-3 and A-4 also attacked P.W.4. When P.W.2 tried to intervene in the attack on P.W.2, A-4 beat her on the left thumb. A-3 kicked the deceased and he fell down and all the accused left the scene of occurrence. 8. P.W.1 took P.W.3 to the Government Hospital, Chengam and she was admitted in the hospital. P.W.1, thereafter, proceeded to Chengam police station, where he gave a complaint to the Grade-I police constable. The said complaint of P.W.1 stands marked as Ex.P-1 on the basis of which a case in crime No.27/95 was registered under Sections 147, 148, 307, 324 and 323 IPC. The printed first information report stands marked as Ex.P-22. The express reports were despatched to court. 9. P.W.12, on getting a copy of the printed first information report, proceeded to the scene of occurrence where he prepared an observation mahazar, Ex.P-2 and drew a rough sketch, Ex.P-23 in the presence of two witnesses. He recovered bloodstained earth, M.O.6 and sample earth, M.O.7 under a mahazar, Ex.P-3. 10. In the meantime, on 20.1.95 when P.W.7, the doctor attached to Chengam Government Hospital was on duty, the deceased was produced before him. The doctor examined the deceased and found the following injuries on his person, which is found noted in Ex.P-6, the copy of the accident register :- "1) A red lacerated injury 1" x ½" x bone deep over upper part of right side forehead with excessive bleeding present and haematoma around the wound present. 2) Bleeding from the nostrils present. 3) A red contusion 1" x 1"over right side cheek." 11. P.W.3 on being produced before P.W.7 by P.W.1 at about 8.30 a.m. was examined by the doctor and on her person the doctor found the following injuries, which is found noted in Ex.P-7, the copy of the accident register :- "1) A red lacerated injury about 1" x ½" x bone deep over middle of right parietal region of head with excessive bleeding present. 2) A red abrasion 1" x ½" x ¼" over right palm. 2) A red abrasion 1" x ½" x ¼" over right palm. 3) A red flat linear contusion about 2" x 1" over left scapular region of index." 12. At about 3.00 p.m. on the same day, the doctor examined P.W.4 and on her person the doctor found the following injuries, which is found noted in Ex.P-8, the copy of the accident register :- "1) A red laceration about 1-1/2" x ½" x bone deep over left parietal region and bleeding present. 2) A red contusion 2" x ½" over right scapular region and tender." 13. At about 10.30 a.m. on the date of occurrence, A-1 appeared before the doctor, P.W.7 and on examining him, the doctor found the following injuries, which is found noted in Ex.P-9, the copy of the accident register :- "1) A red contusion 2 x ½ x 1" over right scapular region and tender. 2) A red contusion 1-1/2 x 1" over right shoulder and tender. 3) Middle of outer part of left thigh and swollen off reddish and tender." 14. A-2 appeared before the doctor, P.W.7 at about 11.45 a.m. and on examination the doctor found the following injuries, which is found noted in Ex.P-10, the copy of the accident register :- "1) A red flat contusion 2" x 1" over right scapular region and tender. 2) A red contusion 1-1/2" x 1" over middle of outer part of right arm and tender." 15. At about noon on the same day, the doctor examined A-6 and on her person the doctor found the following injuries, which is found noted in Ex.P-11, the copy of the accident register :- "1) A red laceration ¾" x ½" x ½" over back of lower part of right forearm and swelling around the wound present. 2) Lower part of right side waist swollen off and tender. 3) Medial part of front of right foot swollen off and tender." 16. P.W.8, the doctor at about 11.35 a.m. examined P.W.1 and on examination the doctor found the following injuries, which is found noted in Ex.P-12, the copy of the wound certificate :- "1) A diffuse contusion about 1" x ¾" x ½" over the left thumb, tenderness present. 2) A diffuse contusion about 1-1/4" x 1-1/4" x ½" over the centre of the head with an overlying abrasion about 1/8" in diameter." 17. 2) A diffuse contusion about 1-1/4" x 1-1/4" x ½" over the centre of the head with an overlying abrasion about 1/8" in diameter." 17. As the condition of the deceased was found to be serious, he was taken to the Government Hospital, Pondicherry, where he was declared dead. An intimation was sent to the police station. On receipt of the intimation, the crime was altered to one under Section 302 IPC by P.W.12 and Ex.P-24 is the express report in the altered crime. The express report in the altered crime was sent to court along with the special report, Ex.P-25. 18. P.W.13, Inspector of Police, took up further investigation. He proceeded to the mortuary at Government Hospital, Pondicherry, and in the presence of panchayatadars and witnesses conducted inquest over the dead body of the deceased and prepared inquest report, Ex.P-26. After inquest, a requisition was given to the doctor, P.W.10, to conduct autopsy on the dead body of the deceased. 19. On receipt of the requisition, P.W.10, the doctor attached to the Government Hospital, Pondicherry, conducted autopsy on the dead body of the deceased and found the following injuries :- "1) Sutured wound 2.5 cm present over forehead on right side near hair margin. 2) Ill defined swelling present over hip on right side." The doctor issued Ex.P-20, the post-mortem certificate, opining that the deceased would appear to have died on account of head injury. 20. On 1.2.95 the investigating officer arrested A-1 and A-2. A-1 voluntarily gave a confession statement, the admissible portion of which is marked as Ex.P-4. Pursuant to the confessional statement, he produced M.O.1, koduval and M.O.s 2 to 5, wooden poles and the same were recovered under a mahazar, Ex.P-5. On the strength of the complaint given by A-1, a case came to be registered by the respondent-police in crime No.28/95 under Sections 147, 148, 324 and 323 IPC against the witnesses. Ex.P-29 is the report in the said crime. A-3 to A-6 surrendered before the court and were released on bail. All the material objects were forwarded to the court with a requisition to send them for analysis and the court in turn sent them for analysis and obtained the chemical analysis report and serologist report. On completion of the investigation the investigating officer filed the final report against the accused. All the material objects were forwarded to the court with a requisition to send them for analysis and the court in turn sent them for analysis and obtained the chemical analysis report and serologist report. On completion of the investigation the investigating officer filed the final report against the accused. The case was committed to the court of sessions and necessary charges were framed and the accused were tried. 21. In order to substantiate the charges levelled against the accused, the prosecution examined thirteen witnesses and marked twenty-six exhibits and eleven material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing in the evidence of the witnesses. They denied the evidence of the prosecution witnesses as false. No defence witness was examined. After hearing the arguments advanced by either side, the trial court found the accused guilty as stated above. Hence, the present appeal at the instance of the appellants. 22. Learned senior counsel appearing for the appellants inter alia made the following submissions, which according to him are prime. The first and the foremost submission being that at the time of occurrence, the accused sustained injuries, but the injuries have not been explained by the prosecution. According to the prosecution, the witnesses threw mud on the accused during the occurrence, but the injuries found on the accused by the doctor show that it could not have been caused in the manner alleged by the prosecution. The injuries found on A-1, A-2 and A-6 have not been explained by the prosecution. The learned senior counsel would further point out that in the instant case, at the instance of the accused a case came to be registered by the respondent-police, but the final report was not filed during the proceedings. The learned senior counsel would further add that P.W.13, the investigating officer, was examined in chief on 16.11.99 and during the examination, further time was sought for by the prosecution. In the meanwhile, the referred report was filed on 19.4.00 before the committal court. From the evidence of P.W.13 it could be seen that the referred report was filed before the lower court on 20.5.95, but a verification of the records would show that the court seal affixed in the final report in the counter case would reveal that it was filed only on 13.12.99. From the evidence of P.W.13 it could be seen that the referred report was filed before the lower court on 20.5.95, but a verification of the records would show that the court seal affixed in the final report in the counter case would reveal that it was filed only on 13.12.99. Thus it would be clear that P.W.13 was examined in chief before the lower court on 16.11.99 and the prosecution sought time and in the meanwhile during the pendency of the case the referred report was filed before the lower court on 13.12.99. Apart from that, a perusal of the same would clearly reveal that proper investigation has not been done in the counter case. That apart, there are discrepancies in the evidence of P.W.s 2, 3 and 4. According to them when they were examined by the police they have informed that they were working in the field but in their evidence in court they would state that they were actually in front of their house at the time of occurrence and they went to the place of occurrence when they heard the noise and they sustained injuries. Further, in the instant case, a perusal of the wound certificates issued by the doctor to A-1, A-2 and A-6 would clearly show that the injuries suffered by them could not have been caused in the manner alleged by the prosecution. The non-filing of the final report pending trial and that too after the chief examination of the investigating officer would clearly indicate that the prosecution was not only biased, but the investigation also was not properly conducted in the counter case. The learned senior counsel would contend that on the above grounds, the trial court should have acquitted the accused, but has erroneously found them guilty and convicted them and the same has got to be set aside and the appellants are entitled for acquittal. 23. This Court heard the learned Addl. Public Prosecutor on the above contentions and also perused the recorded evidence, both oral and documentary. 24. It is not in controversy that the deceased Periathambi died on account of homicidal violence. The same stands established through the evidence of the doctor, P.W.10, who conducted autopsy and who issued the post-mortem certificate, Ex.P-20. The appellants have not disputed the cause of death of the deceased either before the trial court or before this Court. 24. It is not in controversy that the deceased Periathambi died on account of homicidal violence. The same stands established through the evidence of the doctor, P.W.10, who conducted autopsy and who issued the post-mortem certificate, Ex.P-20. The appellants have not disputed the cause of death of the deceased either before the trial court or before this Court. On the medical evidence this Court holds that the deceased, Periathambi, died on account of homicidal violence. 25. In the instant case, the prosecution in order to establish the case against the appellants, examined P.W.s 1 to 4 as eye witnesses to the occurrence. Even at the outset we may state that it is highly doubtful whether P.W.s 2 to 4 could have been present at the scene of occurrence for the reason that originally when they were examined by the police at the time of investigation they have come out with an answer stating that they were working in the field. But while giving evidence in court they have come out with an answer stating that they were standing in front of their house during the occurrence. 26. It is also evident from the evidence of P.W.1 that it was the deceased who questioned A-2 and A-4 and thereafter the accused attacked the deceased. Apart from the above, in the instant case, A-1, A-2 and A-6 suffered injuries in the same transaction and they were also treated and the copies of accident register issued to them have also been marked. It is evident from the accident registers issued to A-1, A-2 and A-6 that the injuries sustained by them could not have been caused in the manner alleged by the prosecution, but they would have been caused with the use of some weapons. But in the instant case, the prosecution witnesses have not come forward and given any explanation and the only explanation given by them being that during the occurrence, by way of defence, they threw mud on the accused. This, by no stretch of imagination could be accepted, as the evidence of the doctor, who treated accused would show that the injuries could not have been caused in the manner as alleged by the prosecution. This, by no stretch of imagination could be accepted, as the evidence of the doctor, who treated accused would show that the injuries could not have been caused in the manner as alleged by the prosecution. From this it would be clear that there was a free fight between the parties in which A-1, A-2 and A-6 sustained injuries by the use of weapons and that the availability of P.W.s 2 to 4 at the scene of occurrence is also doubtful and thus the actual origin of the occurrence has not been brought before the Court. 27. Another added circumstance is the non-filing of the final report by the prosecution in the counter case. It is not in controversy that at the instance of the accused a case came to be registered by the respondent-police, but all along, the final report was not filed. P.W.13, as pointed out by the learned senior counsel, was examined in chief on 16.11.99, but half way through, the prosecution sought adjournment till 19.4.00. Though the prosecution claimed that the final report in the counter case referring it as one mistake of fact was filed before the committal court on 20.5.95, the court seal in the original document would clearly indicate that the same was filed only on 13.12.99 (i.e.) after the commencement of the chief examination of P.W.13. This fact would be clearly indicative of the fact that the final report in the counter case was filed only on 13.12.99, subsequent to the examination in chief of P.W.13 on 16.11.99. In order to fill up the lacuna, (i.e.) filing the final report in the counter case before the committal court, the prosecution has sought adjournment. The conduct of the investigation in the counter case would clearly reveal that the investigation could not have taken place in a proper manner as what is expected in law and thus it could be termed as a biased one in order to avoid a comment in the trial of the case and, therefore, the prosecution sought adjournment pending examination of the investigating officer and the counter case was referred as a mistake of fact, which would be indicative of the fact that all were not well in the investigation process. 28. 28. The non-explanation of the injuries found on the accused; the non-filing of the final report till it was called for, and in order to fill up the lacuna, adjournment was sought for; and the varying answers given by P.W.s 2 to 4 about their presence at the scene of occurrence certainly casts a doubt on the prosecution case and it would be highly unsafe to find the appellants guilty on the evidence available on record and also in view of the contradictions in the evidence of P.W.s 2 to 4. Apart from that, it has to be pointed out that in the instant case the prosecution has not broughtforth the origin of the case properly and thus the genesis of the occurrence remains unknown and in the circumstances it would be highly unsafe to find the appellants guilty, as had been done by the trial court and, hence, the judgment of the trial court has got to be set aside and the appellants are to be given the benefit of doubt and they are entitled for acquittal. 29. In the result, the conviction and sentence imposed on the appellants by the trial court are set aside and they are acquitted of all the charges framed against them. The criminal appeal is allowed. It is reported that the appellants are on bail. Bail bonds executed by them shall stand cancelled. Fine amounts, if any, paid by the respective appellants shall be refunded to them.