Judgment :- (Criminal Appeal against the judgment dated 25.2.2003 in S.C.No.261 of 2001 on the file of the Additional District & Sessions Judge (Fast Track Court No.II), Salem.) M. Karpagavinayagam, J. There were totally 20 accused. Only A1 and A2 were convicted and other accused have been acquitted. Challenging the conviction under Section 302 read with 34 I.P.C., A1 and A2 have filed this appeal. 2. The short facts leading to the conviction are as follows: (a) Both the parties belong to the same village. The accused belong to Vellala Community and the deceased party belong to Vanniar Community. (b) On 13.6.1999 at about 9.00 a.m., P.W.1 Rama Gounder along with others went to Koneri Perumal Temple and found that except main deity, the other idols were missing. When they enquired the Poojari, P.W.4 Venkatesan, he stated that the idols are at the temple house at Panangattur. Therefore, P.W.1 Rama Gounder and P.W.4 Venkatesan proceeded to the temple house and found that the door was locked. (c) On coming to know that the key was in the custody of A1 Rajamanickam, they waited till the arrival of A1. After some time, A1 came. Then, P.W.1., PW.4 and others asked A1 to give the key. However, he refused to give the same. P.W.1 and others returned to the place. (d) They again went at 3.30 p.m. and asked A1 to hand over the idols. This time also, A1 refused stating that already the matter is pending in the Civil Court. Then, the quarrel ensued. At that time, A1 Rajamanickam pushed P.W.6 Rajeswaran and fisted his hand. The deceased Pottu @ Pottu Ramasamy, the father of P.W.2 Jeyapal and P.W.3 Gunasekaran questioned A1 as to why he was refusing to give the idols belonging to the temple. A1 abused him. Then, the deceased asked the other people to forcibly take the idols from the house. Then, A1 fisted the deceased with his hands. Thereafter, A2 Rajendran beat the deceased on the back of the head with a stick. Similarly, A1 also took a stick and beat on the head of the deceased. One Selvaraj also threw stones on the deceased and others along with the other accused. The deceased on sustaining injuries fell down on the ground. P.W.2 Jeyapal, son of the deceased also sustained injury. P.W.3 Gunasekaran, another son took steps to send him to the hospital in Ambassador car. One Selvaraj also threw stones on the deceased and others along with the other accused. The deceased on sustaining injuries fell down on the ground. P.W.2 Jeyapal, son of the deceased also sustained injury. P.W.3 Gunasekaran, another son took steps to send him to the hospital in Ambassador car. He was admitted in Jalakandapuram Government Hospital. (e) In the meantime, P.W.1 went to the police station and gave the report Ex.P1 to P.W.12, the Inspector of Police, Jalakandapuram Police Station at 9.30 a.m. The case was registered in Crime No.314 of 1999. (f) P.W.8 Doctor treated the deceased and then referred him to the other hospital. Then, the deceased was taken to a private hospital where P.W.9 Doctor treated him at about 10.30 a.m. (g) In the meantime, A1 and others also came to the police station and gave a report to P.W.12 which was registered in Crime No.315 of 1999 against the deceased and other witnesses for various offences including Section 307 I.P.C. (h) Then, P.W.12 went to the scene of occurrence and observed all the formalities. He prepared the observation mahazar and rough sketch. He examined all the witnesses. (i) Subsequently, P.W.13, the Inspector of Police, who is the successor, took up further investigation. (j) The deceased was treated by P.W.9 Doctor till 14.9.1999. Then, he was discharged. On 17.9.1999, he was taken to the Government Hospital, Salem as his condition was critical. Then, P.W.10 Doctor examined and found him dead. (k) The death intimation was received by P.W.13. The case was altered into one under Section 302 I.P.C. He conducted inquest and examined all the witnesses. (l) The post-mortem certificate was issued by P.W.10 Doctor giving opinion that the death was due to the injury on the head. (m) After completion of the investigation, P.W.13 filed the charge sheet in the case which was registered on the complaint given by P.W.1 and referred the counter complaint given by A1. (n) During the course of trial, on the side of prosecution, P.W.1 to P.W.13 were examined and Exs.P1 to P15 were filed. (o) When the accused were questioned under Section 313 Cr.P.C., the plea of the accused is one of total denial. On behalf of the defence, D.W.1 and D.W.2 were examined and Exs.D1 to D4 were filed. (n) During the course of trial, on the side of prosecution, P.W.1 to P.W.13 were examined and Exs.P1 to P15 were filed. (o) When the accused were questioned under Section 313 Cr.P.C., the plea of the accused is one of total denial. On behalf of the defence, D.W.1 and D.W.2 were examined and Exs.D1 to D4 were filed. (p) The trial Court, however, accepted the case of the prosecution and convicted A1 and A2 alone and acquitted all the other accused. Assailing the same, this appeal has been filed by A1 and A2. 3. We have heard Mr.V. Gopinath, the learned senior counsel appearing for the appellants. He took us through the entire evidence and point out various infirmities found in the prosecution case. 4. On these aspects, we have heard Mr.V.R.Balasubramaniam, the learned Government Advocate. 5. We have carefully considered the submissions made on either side. 6. According to the prosecution, all the witnesses including the deceased went to the temple house which is in the custody of A1 and compelled him to hand over the key to enable them to remove the idols for the purpose of taking them to the temple. When this was refused, the witnesses including the deceased tried to forcibly enter into the temple house after breaking open the door and to remove the idols and at that time, this occurrence had taken place. 7. The case of the prosecution as against A1 and A2 is that A1 and A2 took sticks and beat the deceased. P.W.10 Doctor would state that the injuries on the head are fatal. There are five eye witnesses. The complaint has been given by P.W.1 at 9.30 p.m. Admittedly, the police station is situated within 2 ½ K.M. from the scene of occurrence. Though the occurrence had taken place at 3.30 p.m., the complaint was given at 9.30 p.m. 8. According to P.W.1 in the complaint, P.W.1 along with others came to the police station and gave a complaint at 9.30 p.m. But, P.W.1 and P.W.4 in the cross-examination would clearly admit that immediately after the occurrence was over, on receipt of some information, the police officer from Jalakandapuram Police Station came to the scene and pacified both the groups and took them to police station after sending the victim deceased to the hospital. 9. 9. As a matter of fact, P.W.1 and P.W.4 sustained injuries during the course of occurrence. In Ex.P1 also, it is mentioned that P.Ws.1 and 4 were attacked by the accused persons. It is also stated by one of the witnesses that before the deceased was taken to the hospital, the police officer recorded a statement from the deceased. If this evidence is accepted, naturally, there is a doubt as to whether such a complaint would have been given by P.W.1 at 9.30 p.m. in the police station. 10. Secondly, P.W.1 in Ex.P1, which is said to have been given at 9.30 p.m., had stated that A2 Rajendran and one Selvaraj beat the deceased by causing injury on the head with the sticks. So, the earliest document in this case is Ex.P1 which has been given by P.W.1. According to the prosecution through P.W.1 and Ex.P1, A1 Rajamanickam did not cause any injury on the deceased, whereas P.W.1 specifically stated that two injuries found on the deceased were caused by A2 Rajendran and one Selvaraj. 11. It is quite strange to note that on the basis of Ex.P1 complaint, though Selvaraj was arrested, who had beaten the deceased and inflicted injury on the head, he has not been proceeded with. On the other hand, his name was dropped. There is no reason for the same. 12. Another strange feature is that P.W.1, while she deposed before the Court, would state that A1 Rajamanickam fisted on the deceased and beat with stick also. This is not the case of the prosecution in Ex.P1 complaint. 13. Yet another strange feature is that P.W.3 would state that A1 alone beat the deceased on the head and he did not implicate A2. Therefore, the earliest stand of the prosecution in Ex.P1 has not been substantiated by P.Ws.1 and 3. 14. Even according to the prosecution, the witnesses only went to the scene and asked A1 to give the key to remove the idols. There is no dispute in the fact that all these witnesses in a group went to the scene place thrice. Admittedly, there was a quarrel. Apart from the deceased, P.Ws.1 and 4 sustained injuries. Similarly, some of the persons in the accused group also sustained injuries. 15. As stated above, both the complaints were registered by P.W.13. There is no dispute in the fact that all these witnesses in a group went to the scene place thrice. Admittedly, there was a quarrel. Apart from the deceased, P.Ws.1 and 4 sustained injuries. Similarly, some of the persons in the accused group also sustained injuries. 15. As stated above, both the complaints were registered by P.W.13. According to P.W.13, he filed the charge sheet in the case registered in Crime No.314 of 1999 and filed referred report in Crime No.315 of 1999. 16. When we go through the counter F.I.R. i.e.Ex.P11, it is clear that some womenfolk, who are the accused in this case, sustained injuries. When both the witnesses and the accused sustained injuries and especially in the light of the fact that the case in counter had been registered, there is no reason as to why P.W.12, the Investigating Officer had not chosen to send them to hospital. 17. Further, there is no reference about the particulars of the investigation conducted on the counter complaint. Though P.W.13 would state that he filed the referred report, he did not give the details as to what was the investigation conducted and who are all the persons involved. This shows that P.W.13, the Investigating Officer has failed in his duty in investigating both the matters to find out who is the aggressor and then come to conclusion. 18. Some of the witnesses would admit that there is a civil case pending in respect of possession of the idols. When they knew that a civil case is pending, there is no reason for these people to go to the temple house which is in the custody of A1 and to compel him to hand over the idols. 19. It is not as if the accused persons went to the place of the prosecution witnesses and it is the witnesses, who went to the place of the accused again and again and compelled him to hand over the key. Even according to some witnesses, when A1 refused to hand over the key, it was instigated by the deceased asking the other witnesses to enter into the house and then take the idols forcibly and only then, the occurrence had taken place. If that is so, it cannot be said that the accused are the aggressors. At any rate, this aspect has not been properly investigated by P.W.13. 20. If that is so, it cannot be said that the accused are the aggressors. At any rate, this aspect has not been properly investigated by P.W.13. 20. The deceased was taken to the Government Hospital, where P.W.8 Doctor attended on him. Even though P.W.8 is attached to Government Hospital, it is quite strange to see that P.W.8 was able to give the details of admission even without any Accident Register. 21. The deceased was admitted on 13.6.1999 and he was immediately forwarded to Government Hospital. But, the deceased was not taken to the Government Hospital. On the other hand, he was taken to the private hospital where P.W.9 Doctor gave treatment and operation also was conducted on him. He was in the hospital from 13.6.1999 to 14.9.1999. 22. Thereafter, he was discharged for the purpose of taking to the Government Hospital and even then, he was not taken to the Government Hospital immediately. On 17.9.1999, his condition was critical. Therefore, he was taken to the hospital where P.W.10 Doctor declared him dead. Ex.P5 is the Accident Register. Even though P.W.10 gives opinion that the deceased died of head injury, it is to be noted that the deceased who was aged about 70 years, died after three months. 23. There is no dispute in the fact that the effective treatment was given in the private hospital as attended by P.W.10 Doctor. But, P.W.10 in the cross-examination stated that the death might have been due to heart-attack. 24. In the light of these circumstances, we are unable to see that the accused 1 and 2 caused injuries on the head of the deceased and those injuries resulted in his death and consequently, we are constrained to give the benefit of doubt to both the accused. 25. In fine, the appeal is allowed setting aside the conviction and sentence imposed upon the appellants by the trial Court. The bail bonds executed by the appellants shall stand cancelled.