Judgment :- Ramkumar, J. The appellant who was the sole accused in S.C. 242/00 on the file of the Addl. District & Sessions Court, (Adhoc) (Fast Track Court No.I), Manjeri for an offence punishable under Sec.302 I.P.C. challenges the conviction entered and the sentence passed against him by the court below for the aforesaid offence. 2. The case of the prosecution is that out of his previous enmity which the accused had towards the deceased, on 23-3-1999 at 12.30 p.m. on the road near Prasanthi Hospital at Manjeri and in front of the house of Koodickal Jayachandran, the accused knowingly and intentionally caused the death of 26 year old Abdul Salam by hitting him on the head with a granite stone. Abdul Salam who sustained fatal injuries was initially rushed to the District Hospital Manjeri from where P.W.2 referred him to the Medical College Hospital, Kozhikode. On this way to the Medical College Hospital, Kozhikode, Abdul Salam succumbed to the injuries. The accused has thereby committed an offence punishable under Sec.302 I.P.C. 3. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offence the prosecution was permitted to adduce evidence in support of its case. The prosecution has altogether examined 12 witnesses as P.Ws.1 to 12 and got marked 16 documents as Exts.P1 to P16 and two material objects as M.Os.1 and 2. 4. After the close of the prosecution evidence the accused was questioned under Sec.313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He filed a written statement under Sec.233 Cr.P.C. contending inter-alia as follows:- Deceased Abdul Salam was a habitual drunkard and a dacoit. There were several cases against him. He was in the habit of picking up quarrels with the persons in the bazaar under the influence of alcohol. In the afternoon of the date of occurrence, after getting fully drunk from Relax Bar he approached the accused who was walking along the L.I.C. road and demanded money for consuming more alcohol. Since the accused was unable to accede his demand he broke the bottle of liquor which was in his hand and stabbed the accused on his neck with the broken bottle. The accused sustained grave injuries and fell unconscious. Since the accused was unable to accede his demand he broke the bottle of liquor which was in his hand and stabbed the accused on his neck with the broken bottle. The accused sustained grave injuries and fell unconscious. He was taken to the District Hospital, Manjeri by some unknown persons. It was from the said hospital that he was arrested by the police who had kept him under surveillance. Eventhough he was referred to the Medical College Hospital, Kozhikode, he was taken into custody before he got himself admitted in the Medical College Hospital. The police seized all the treatment records which were in his possession. While he was produced before the Magistrate he showed the injuries on his body whereupon the Magistrate directed proper medical treatment. Accordingly, he was admitted in the Medical College Hospital from the District Jail, Kozhikode. He was undergoing treatment for more than three weeks. Sri, Balasubramanyan, who was the then investigating Officer took from him all his treatment records stating that they are needed for this case. He is innocent. Documents will have to be summoned from the District Hospital, Manjeri and the Medical College Hospital, Kozhikode. 5. After the examination of the accused was over, the case was straightaway posted for defence evidence. There was no posting of the case for hearing under Sec.232 Cr.P.C. nor was the accused called upon under Sec.233 Cr.P.C. to enter on his defence. The accused was not even asked whether he has got defence evidence. The accused, however, examined three witnesses as D.Ws.1 to 3 and got marked Exts.D1 and D2. Thereafter both sides were heard and as per judgment dated 28-6-2004 the learned Addl. Sessions Judge found the appellant guilty of the offence punishable under Section 302 I.P.C. and sentenced him to imprisonment for life and to pay fine of Rs.5,000/- and on default to pay the fine, to undergo simple imprisonment for one year. It is the said judgment which is assailed in this appeal. 6. We heard Advocate Sri. P. Samsudin, the learned counsel appearing for the appellant and Adv. Sri. P.M. Habeeb, the learned Public Prosecutor. 7. The following points arise for consideration in this appeal:- i) Has the prosecution proved that Abdul Salam died as a result of sustaining homicidal injuries in the afternoon of 23-9-1999? ii) Is the conviction entered and the sentence passed against the appellant sustainable? Sri. P.M. Habeeb, the learned Public Prosecutor. 7. The following points arise for consideration in this appeal:- i) Has the prosecution proved that Abdul Salam died as a result of sustaining homicidal injuries in the afternoon of 23-9-1999? ii) Is the conviction entered and the sentence passed against the appellant sustainable? POINT NO.1 8. The fact that Abdul Salam died as a result of sustaining the fatal injuries in the afternoon of 23-9-1999 is not disputed by the appellant as well. The appellant takes exception only to the case of the prosecution that the occurrence took place in the manner alleged by the prosecution. 9. P.W.7 who is the elder brother of the deceased has deposed that on getting the information about the fact that the deceased was lying on the road after sustaining fatal injuries, he went to the scene of occurrence to find the deceased lying wounded on the road and the deceased was soon taken in an auto rickshaw to the District Hospital, Manjeri. P.W.2 (Dr. P. Abdul Khader) who, as the Assistant Surgeon in the District Hospital, Manjeri, examined the deceased at 1.15 p.m. on 23-3-1999 with head injuries and allegation of assault. Since he found the deceased gasping and in a serious condition he referred the patient to the Medical College Hospital. According to P.W.7, before they reached the Medical College Hospital, Abdul Salam had breathed his last. 10. Inquest over the dead body of Abdul Salam was held by Sri. Balasubramanyan, the Circle Inspector of Police, Manjeri who subsequently passed away. P.W.12 the Sub Inspector who had assisted the Circle Inspector gave evidence regarding the inquest. Ext.P10 is the inquest report prepared by the C.I. of Police, Manjeri on 24-9-1999. P.W.11 was present during the inquest. In columns 7 and 8 (a) of Ext.P10. Inquest Report the Investigating Officer has described the fatal injuries on the body of Abdul Salam. He has also tentatively concluded in Ext.P10 that Abdul Salam died as a result of the hitting on his head with a heavy granite stone. 11. Autopsy over the dead body of Abdul Salam was conducted by Dr. K. Prasannan, Assistant Professor of Forensic Medicine, Medical College Hospital, Kozhikode Ext.P1 is the postmortem certificate prepared by him on 23-3-1999. The following are the antemortem injuries found on the dead body:- “B. Injuries antemortem: 1. 11. Autopsy over the dead body of Abdul Salam was conducted by Dr. K. Prasannan, Assistant Professor of Forensic Medicine, Medical College Hospital, Kozhikode Ext.P1 is the postmortem certificate prepared by him on 23-3-1999. The following are the antemortem injuries found on the dead body:- “B. Injuries antemortem: 1. Learned wound, inverted V shapped, over an area 5 x 4 cm, Limbs of the injury 5 cm x 1 cm each, bone deep on right side of head, 3.5 cm above ear over parietal eminence. Martins contused. Depth 1 cm. 2. Lacerated wound 4 cm long vertical on upper 2/3rd of pinna of right ear involving the entire thickness, with an abrasion 1 cm broad on the margins. 3. Lacerated wound 1.3 x 0.3 cm x 1 cm bone deep, transverse on left side of head, 4 cm above ear with multiple abrasions around (2 cm broad). 4. Lacerated wound 1.5x0.3cm x 1cm transverse on left side of face 0.5cm to the left of nose. 5. Vertical graze abrasion 9x6cm vertical on left side of face, just above and to the left of injury No.4 upper margin, 1 cm above eyebrow. Injury Nos.3,4 and 5 were confined to an area 15 X 10 cm. 6. Superficial lacerated wound 4 x 0.2cm transverse with tapering ends on left side of neck, 2 cm below ear. 7. Two abrasions 0.2x0.2cm each present on back of left middle and ring finger 4 cm below root. 8. Abrasion 1x1cm on outer aspect of left knee. 9. Abrasion 2x1.5cm on right side of face just to the right eye. INTERNAL 1. Scalp contusion 7x7 cm on left side of head just above ear. 2. Scalp contusion 10x10 cm on right side of head, just above ear. 3. Fissure fracture 17cm long extending from right side of skull just above ear to left side of head just above ear across base of skull and body of sphenoid dividing the base of skull into two halves. 4. Subdural and subarachanoid bleeding over entire surface of brain (thicker on both sides). Intraventricular bleeding present, Contusion brain 4x4 cm on right side of brain (temporal lobe). C. Other findings: Brain 1200 gms. Stomach with contents weighed 500 gms contain soft rice and yellowish brown fluid with faint alcohol like smell. Heart normal, bladder contained 250 ml of urine. Liver 1400 gm mild fatty change present. All other organs congested. Intraventricular bleeding present, Contusion brain 4x4 cm on right side of brain (temporal lobe). C. Other findings: Brain 1200 gms. Stomach with contents weighed 500 gms contain soft rice and yellowish brown fluid with faint alcohol like smell. Heart normal, bladder contained 250 ml of urine. Liver 1400 gm mild fatty change present. All other organs congested. Blood, urine and dry blood stain preserved.” 12. In Ext.P1 postmortem certificate P.W.1 has opined that the deceased died due to the head injury sustained. When examined before Court also, P.W.1 deposed that the injuries found on the deadbody could be inflicted by a stone like M.O.1 granite stone. There is thus ample evidence before court to conclude that Abdul Salam died as a result of sustaining fatal injuries in the afternoon of 23-3-1999. This point is answered accordingly. POINT NO.II 13. P.W.1 (Dr. Prasannan) is the autopsy surgeon who proved Ext.P1 postmortem certificate. P.W.2 (Dr. P. Abdul Khader) is the Assistant Surgeon District Hospital, Manjeri who proved Ext.P2 wound certificate pertaining to the deceased. He was also examined as D.W.1 by the defence to prove Ext.D1 wound certificate of the accused. P.W.3 (P. Baby Sreekumar) was the Village Officer who proved Ext.P3 scene plan. P.W.4 (P. Vijayakumar) is the Junior Superintendent of the Committal court who proved Ext.P4 forwarding note. P.5 (Muhammed) is an attestor to Ext.P5 scene mahazar. P.W.6 is a witness to Ext.P6 mahazar dated 26-3-1999 under which the Scientific Assistant, Forensic Science Laboratory had seized some earth from the scene of crime. P.W.7 (Subramanian) is the elder brother of the deceased who proved Ext.P7 First Information Statement. Though P.ws.8 and 9 are the independent witnesses examined as eye-witnesses by the prosecution, both of them turned hostile to the prosecution and did not support the prosecution case. P.W.10 (Saithalavi) was cited to prove an earlier incident which allegedly took place in front of Relax Bar. But he came out with a story that the accused and deceased were locked up in a scuffle at 9.30 a.m. in the old bus stand and he claims to have separated them. P.W.11 (Muhammedali) is a person who was present during the inquest. P.W.12 (K.V. Prabhakaran) was the Sub Inspector of Manjeri Police Station who proved Ext.P7 First Information Statement given by P.W.7. P.W.11 (Muhammedali) is a person who was present during the inquest. P.W.12 (K.V. Prabhakaran) was the Sub Inspector of Manjeri Police Station who proved Ext.P7 First Information Statement given by P.W.7. He also proved Ext.P11 First Information Report and Ext.P15 report of the Legal Metrology Department showing the weight of M.O.1 granite stone as 11.356 Kgs. He also proved Ext.P11 First Information Report and Ext.P15 report of the Legal Metrology Department showing the weight of M.O.1 granite stone as 11.356 Kgs. He also proved Ext.P14 F.S.L. report regarding the chemical examination of M.O.1. D.W.1 (Dr. Abdul Hameed), as stated earlier, is none other than P.W.2 who had examined the accused at 1 p.m. on 23-3-1999 and issued Ext.D1 wound certificate. The accused had a lacerated and incised wound on the right side of his neck having a measurement of 8.1x1x1cm. D.W.2 (Dr. K.P. Hashim) proved Ext.D2 discharge card. His evidence shows that the accused was admitted in the Medical College Hospital after his arrest and discharged on 29-3-1999. D.W.3 is the A.S.I. of Manjeri Police Station who proved that the deceased was an accused in a case involving Sections 394 and 395 I.P.C. 14. The learned Public Prosecutor made the following submissions before us in support of his argument that the conviction entered and the sentence passed by the court below do not warrant any interference:- Even though two of the eye witnesses turned hostile to the prosecution, the evidence of P.W.7 will show that he had seen his brother Abdul Salam lying wounded on the road and the accused standing near him and running away from there. M.O.1 granite stone which was seized by the police was forwarded to the Forensic Science Laboratory for chemical examination and Ext.P14 F.S.L. report shows that it contained human blood. The autopsy surgeon has deposed that the injuries found on the deadbody of Abdul Salam could be inflicted with a stone like M.O.1. This evidence constitutes adequate materials to justify the conviction entered against the appellant. 15. We are afraid that we find ourselves unable to agree with the above submissions. The only two eye-witnesses to the occurrence examined as P.Ws.8 and 9 turned unfriendly to the prosecution and they did not support the case of the prosecution to any extent. This evidence constitutes adequate materials to justify the conviction entered against the appellant. 15. We are afraid that we find ourselves unable to agree with the above submissions. The only two eye-witnesses to the occurrence examined as P.Ws.8 and 9 turned unfriendly to the prosecution and they did not support the case of the prosecution to any extent. The only other material that was pressed into service by the prosecution was the testimony of P.W.7 who is admittedly not an occurrence witness. He had gone to the scene of occurrence on getting information that his brother Abdul Salam was lying wounded on the road. Even if P.W.7 is believed in toto what he saw was that his brother lying wounded on the road and the accused who was standing near him running away from the spot. This does not in any manner incriminate the accused. P.W.7 has no case that the accused was wielding M.O.1 granite stone or that seeing P.W.7, the accused threw away the stone and ran away from there. In fact, no witness for the prosecution has deposed before Court that M.O.1 stone was used for crushing the head of the deceased. The stone was not shown to any of the prosecution witnesses except the doctor and the investigating officer. The doctor is admittedly not an eye-witness. So, also, P.W.12 the Sub Inspector of Police, Manjeri, through whom it was identified. The stone was not recovered at the instance of the accused but was merely seized from the vicinity of the scene of crime. The court is therefore, kept completely in the dark as to the circumstances under which the deceased happened to sustain the fatal injuries on his body. 16. It is at this juncture that another important circumstances which has completely been overlooked by the Court below comes to the focus. The arrest memo available in the records shows that at the time of his arrest the accused had injuries on his body. The evidence of D.W.1, the doctor of the District Hospital, Manjeri shows that it was the accused who was first admitted in the hospital with a lacerated and incised injury on his neck measuring 8x1x1cm. Even the deceased was brought only thereafter. DW1 has deposed that the accused was admitted on 23-3-1999 at 1 p.m. and he was on treatment till 25-3-1999 when he was referred to the Medical College Hospital, Kozhikode. Even the deceased was brought only thereafter. DW1 has deposed that the accused was admitted on 23-3-1999 at 1 p.m. and he was on treatment till 25-3-1999 when he was referred to the Medical College Hospital, Kozhikode. It was before the accused got himself admitted to the Medical College Hospital that he was arrested by the police who were keeping surveillance over him. The accused was arrested and produced before the Magistrate at 3 p.m. on 25-3-1999 along with the remand report which shows that the accused was treated for the injuries on his body and had been referred to the Medical College Hospital. The remand report further shows that instead of getting himself admitted to the Medical College Hospital the accused voluntarily surrendered before the C.I. of Police, Manjeri, who arrested him in that condition. This is a story which is too good to be believed. The, Magistrate, however, noticing the injuries on the body of the accused directed the Jail Superintendent to provide adequate medical treatment to the accused.The evidence of D.W.2 will show that the accused was admitted in the Medical College Hospital while in judicial custody and discharged on 29-3-1999. 17. This is a case in which the prosecution has completely suppressed the factum of the accused sustaining injuries in the same occurrence. The medical records pertaining to the above fact have been deliberately kept away from the court and what has been placed before the Court is only a one sided version of the accused hitting the deceased with M.O.1 stone and causing his death. It is in this connection that the stand taken by the accused while he was examined under Sec.313 Cr.P.C., assumes importance. According to the appellant when he was walking along the road, the deceased came out of Relax Bar fully drunk and demanded money for consuming more alcohol. When the accused expressed his unwillingness, the deceased had attacked him with a broken bottle and stabbed him on his neck. This version gains corroboration from the medical reports already adverted to above. In Pylon v. State of Kerala – 1992 (2) KLT 661 a Division Bench of this Court had observed as follows:- “Prosecution has not given any explanation whatsoever for non-production of the documents relating to the injuries sustained by first and third accused. This version gains corroboration from the medical reports already adverted to above. In Pylon v. State of Kerala – 1992 (2) KLT 661 a Division Bench of this Court had observed as follows:- “Prosecution has not given any explanation whatsoever for non-production of the documents relating to the injuries sustained by first and third accused. Even when P.W.15 was asked about them in cross-examination, prosecution was not prepared to take any step to get down the document revealing the injuries sustained by first and third accused. If prosecution has a case that first and third accused have sustained injuries in the occurrence, why should the prosecution suppress that fact? It is still a riddle why the prosecution has not moved a little finger for producing the First Information Statement furnished by third accused on the same day of occurrence. That would certainly have given the court an opportunity to see the rival version of the same incident presented to the police on the same day. It is very strange, if not incomprehensible, that the prosecution has strained a lot in suppressing such materials. Merely examining three eye witnesses is of no use for the criminal court to come to the conclusion as to how the incident had commenced, developed and ended. Even to test the veracity of the testimony of eye-witnesses the materials relating to the injuries of the accused sustained during the occurrence would be indispensable”. The above observation applies on all fours to the facts of this case. This is also a case where the prosecution had, for reasons best known to it, suppressed the factum of the accused sustaining injuries in the same occurrence and had kept away from court the wound certificates and other medical records in that behalf. In Lakshmi Singh and Others v. State of Bihar – AIR 1976 SC 2263 the apex court had enumerated the three probabilities in a case where the prosecution fails to explain the injuries sustained by the accused during the course of the same occurrence. In Lakshmi Singh and Others v. State of Bihar – AIR 1976 SC 2263 the apex court had enumerated the three probabilities in a case where the prosecution fails to explain the injuries sustained by the accused during the course of the same occurrence. They are the following:- “(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”. 18. The last of the inferences mentioned above is clearly attracted in this case rendering probable the version put forward by the accused. There is no presumption that the accused is always the aggressor in every case of homicide. It is only where the prosecution has proved its case with reasonable certainty that the court can rest on the presumption regarding absence of circumstances bringing the case within any of the exceptions. This presumption helps the court to determine on whom is the burden to prove facts necessary to attract the exception and an accused can discharge the burden by “preponderance of probabilities” unlike the prosecution. If there is any reasonable doubt, even from the prosecution evidence, that the aggressor in the occurrence was not the accused but was the deceased party, then the benefit of that reasonable doubt has to be extended to the accused, no matter that he did not adduce any evidence in that direction (See 1997 SCC (Crl) 121 – Periasami and Another v. State of T.N.). The Investigating Officer is expected to be fair towards the accused also. His object should also be vindication of justice and not to obtain a conviction at any cost. If the evidence collected during investigation discloses a case of private defence the investigating officer is not entitled to suppress the materials supporting such a plea. (See Santhosh Kumar v. State of Kerala – 1986 KLT SN. Case No.41 – Page No.23). 19. His object should also be vindication of justice and not to obtain a conviction at any cost. If the evidence collected during investigation discloses a case of private defence the investigating officer is not entitled to suppress the materials supporting such a plea. (See Santhosh Kumar v. State of Kerala – 1986 KLT SN. Case No.41 – Page No.23). 19. After bestowing our anxious consideration to the facts and circumstances of the case we have no hesitation to conclude that the prosecution has not succeeded in bring home the guilt of the accused beyond reasonable doubt. In the circumstances of the case the accused is certainly entitled to the benefit of doubt arising from the evidence adduced by the prosecution. In the result, this Criminal Appeal is allowed. The conviction entered and the sentence imposed on the appellant/accused are accordingly dislodged. The appellant/accused is found not guilty of the offence punishable under Sec.302 I.P.C. and is acquitted of the same. He is set at liberty. He shall be released from prison forthwith unless his continued detention is required in connection with any other case. The fine, if any, paid by the appellant/accused shall be refunded to him.