Judgment :- (Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the judgment of the learned Second Additional Sessions, Pondicherry, dated 12.12.2002 passed in S.C.No.49 of 2000.) A.C. Arumuga Perumal Adityan, J. Both the appeals arise from the judgment in S.C.No.49 of 2000 on the file of II Additional Sessions Court, Pondicherry. There were 10 accused in the case. A7 died during trial. A1 to A3 have been convicted under Section 120 B (i) I.P.C. read with 147, 148, 149, 342 I.P.C. and 302 I.P.C. to undergo life imprisonment and slapped with a find of Rs.5000/- each under Section 302 I.P.C. and have also been convicted under other Sections of I.P.C. A1 has preferred C.A.No.90 of 2003 and A2 and A3 have preferred C.A.No.131 of 2003. 2. Brief facts of the case relevant for the disposal of these appeals are as follows: (i) P.W.4 Sundarajan and P.W.8 Fathima got married on 15.09.1997. At the time of the solemnization of marriage, one Moniki presented one saree as Marriage Gift, which was entrusted by P.W.8 Fathima to her mother P.W.44 Ambuja Marie. Thereafter, Moniki invited P.W.8 Fathima to her house and asked to wear the saree presented by her on the wedding day. P.W.8 Fathima asked her mother P.W.44 Ambuja Marie to give back the saree and there arose a quarrel between them and at that time A1's wife Devagi intervened and stated that the saree would be given only at the time of Deepavali, which leads to an estrangement between P.W.8 Fathima and A1's wife Devagi. (ii) Thereafter, P.W.4 Sundarajan came in support of P.W.8 Fathima and kicked at the stomach of A1's wife Devagi. A1's son, Padmanabhan P.W.46 came in support of Devagi and attempted to stab P.W.4 Sundarajan with knife which was prevented by others and Patrick also arrived at the scene and they lodged a police complaint relating to the above said incident. The police have compromised the matter, since all of them are close relatives. (iii) On the next day, A1 Gopalakrishnan came to know the previous day occurrence and had sent A2 Moorthy and others to attack the prosecution witnesses and Patrick. They attacked P.W.4's brother, P.W.8 Fathima and also the house of the P.W.4. There was also a complaint, in this regard and the police once again compromised the matter between the parties. (iii) On the next day, A1 Gopalakrishnan came to know the previous day occurrence and had sent A2 Moorthy and others to attack the prosecution witnesses and Patrick. They attacked P.W.4's brother, P.W.8 Fathima and also the house of the P.W.4. There was also a complaint, in this regard and the police once again compromised the matter between the parties. (iv) On 4.10.1997, P.W.8 Fathima had lodged a complaint before the Lawspet All Women Police Station complaining that the deceased Patrick and P.W.4 Sundarajan demanded the Streedhana properties from her. A1 also lodged a complaint against P.W.4 Sundarajan stating that P.W.4 Sundarajan had made an attempt to attack him. So, there were two groups, one group supporting P.W.4 and P.W.8 and another group supporting A1's wife Devagi. (v) On 10.10.1997, at the instigation of A1 Gopalakrishnan, A2 and his associates went to the house of Patrick and they inflicted injury on P.W.43, Josephine @ Padmavathi mother of the deceased Patrick and also damaged motor cycle and other articles. On the next day morning, i.e., on 11.10.1997, P.W.2 wife of deceased and P.W.43 mother of the deceased went to Muthialpet Police Station to lodge a complaint. The police called both the groups and sent the injured persons to hospital for treatment and compromised the matter. The above said incidents which according to the prosecution are the motive for the occurrence which took place on 11.10.1997, at 21.30 hours. P.Ws and the accused are close relatives. P.W.1, Jeeva is the Co-Brother of the deceased Patrick. P.W.2, Vijayalakshmi is the wife of deceased Patrick. P.W.3, Pakkirisami is the father-in-law of the deceased Patrick and also the father of P.W.2. P.W.4 is the son of P.W.3. P.W.8, Fathima is the wife of P.W.4 whose mother is P.W.44 Ambuja Marie. P.W.43 is the mother of the deceased Patrick. P.W.44, Ambuja Marie is the sister of A1 Gopalakrishnan and the mother of P.W.8. P.W.46 is the son of A1 Gopalakrishnan. (vi) On 11.10.1997 at about 9.00 p.m., Nagamuthu who is the friend of the deceased Patrick came to see him at his house along with his child. P.W.47 and the deceased Patrick went to the bazar near Kuthiraikulam Junction, at that time A2 to A10 were waiting there for Patrick. A2 slapped on the cheek of the deceased Patrick. (vi) On 11.10.1997 at about 9.00 p.m., Nagamuthu who is the friend of the deceased Patrick came to see him at his house along with his child. P.W.47 and the deceased Patrick went to the bazar near Kuthiraikulam Junction, at that time A2 to A10 were waiting there for Patrick. A2 slapped on the cheek of the deceased Patrick. Thereupon, the deceased Patrick took out from his waist a Nunja Chain and started wielding it against A2 Moorthy and A3 Thakkali Kumaran @ Kumaran. A2 caught hold of the deceased Patrick and the other accused attacked Patrick with bottle and wooden plank indiscriminately causing grievous injuries, which resulted in the instantaneous death of Patrick. The complaint was preferred by P.W.1, Jeeva on 11.10.1997, at 22.45 hours at Muthialpet Police Station with P.W.7. Ex.P.1 is the complaint. (vii) P.W.7, Sub-Inspector of Police registered a case in Crime No.114/97 under Sections 147, 148 and 302 I.P.C. read with 149 I.P.C. Ex.P.6 is the Express F.I.R. P.W.51 is the Inspector of Police, who took up investigation at the earlier point of time, visited the place of occurrence and prepared mahazar, rough sketch Ex.P.68 relating to the scene of crime before P.W.48 Podiyadi and another witnesses, seized blood stained sand and sample sand, broken glass pieces which are exhibited as M.Os.4 to 6 and 8. P.W.51, the Inspector of Police arrested A5 and recorded his confession and recovered M.O.10 Nunja Chain, said to have been found in position of Patrick at the time of occurrence and also arrested A4 and A6 on 18.10.1997. P.W.51 has also recorded confession statement from A4 and recovered M.O.11 blood stained shirt of A4 under Ex.P.72. A2 and A3 have surrendered before SDJM, Cuddalore on 20.10.1997. P.W.51, arrested A9 on 21.10.1997 and arrested A10 on 24.10.1997. A7 was arrested on 1.11.1997. P.W.51 conducted inquest on 12.10.1997 and the inquest report is Ex.P.4. The body of the deceased was produced before P.W.5, Doctor who had conducted autopsy on 12.10.1997 at 1.00 p.m. and issued the Post-mortem certificate Ex.P.2. P.W.51, after completing the investigation had filed the charge sheet against A2 to A10 on 6.01.1998. Not satisfied with the way in which the investigation was conducted by P.W.51, P.W.2 the wife of the deceased approached this Court for a direction to investigate the case again by CBI. P.W.51, after completing the investigation had filed the charge sheet against A2 to A10 on 6.01.1998. Not satisfied with the way in which the investigation was conducted by P.W.51, P.W.2 the wife of the deceased approached this Court for a direction to investigate the case again by CBI. Accordingly, a direction was given by this Court and CBI took up further investigation and registered F.I.R. as RC 4/S/99CBI/SCB/Chennai. Ex.P.77 is the F.I.R. Thereafter, P.W.52, the Inspector of CBI took up the investigation and filed the charge sheet on 17.7.2000 against A1 to A10 under Sections 120 (b) read with 147, 148, 149 and 302 I.P.C. The charge sheet was taken on file by the Judicial First Class Magistrate, Pondicherry in PRC No.90/2000. After furnishing the copies, under Section 207 Cr.P.C., to A1 to A10, the learned Judicial Magistrate had committed the case to the Court of Sessions for Trial under Section 209 Cr.P.C. (viii) Before the Court of Sessions, P.Ws.1 to 52 were examined. Exs.P.1 to P.87 and M.O.1 to M.O.12 were marked. Incriminating circumstances were put to A1 to A3 to which they pleaded innocence. After going through the oral and documentary evidence, the learned Sessions Judge, Pondicherry had convicted A1 to A3 under Section 302 I.P.C., and sentenced to undergo life imprisonment and also imposed a fine of Rs.5000/- in default, to undergo simple imprisonment for six months. A1 to A3 were also convicted under other sections under I.P.C. A7 died during trial and the charge abated against him. The other accused have been acquitted by the learned Sessions Judge, since the charge levelled against them were not proved by the prosecution beyond any reasonable doubt. Now, A1 has preferred C.A.No.90 of 2003, A2 and A3 have preferred C.A.No.131 of 2003 against the Judgment in S.C.No.49/2000 on the file of II Additional Sessions Court, Pondicherry. 3. Now, the point for consideration in these appeals is whether the prosecution has proved the guilt of the accused under Section 302 I.P.C., against A1 to A3 beyond any reasonable doubt? 3. Now, the point for consideration in these appeals is whether the prosecution has proved the guilt of the accused under Section 302 I.P.C., against A1 to A3 beyond any reasonable doubt? Points: We have heard the learned counsel appearing for A1, the learned counsel appearing for A2 and A3 and also the learned Public Prosecutor for C.B.I. In our opinion, the case projected by the prosecution suffers from the following defects: (i) Even though 52 witnesses have been examined on the side of the prosecution, the five ocular witnesses relied on by the prosecution are P.Ws. 1 to 4 and P.W.11. According to the defence, F.I.R., Ex.P.1 would not have come into existence as alleged by the prosecution. Ex.P.1 was lodged before P.W.7 by P.W.2, the wife of the deceased. She would depose to the fact that the accused one Velu and Rajesh on 10.10.97, came to her house and enquired about her husband Patrick and informed her that A2, Moorthy asked Patrick to meet him and thereupon, she went to her parent's house and informed her mother about the same and while she was returning to her house, a handful of persons criminally intimidated her and when she returned to her house, she saw her mother-in-law, P.W.43, had some injuries on her legs and also the motor cycle of her husband Patrick was damaged and that her husband was informed about this incident by P.W.1, Co-Brother of the deceased and that on 11.10.1997, she along with her mother-in-law, P.W.43, went to the Police Station and preferred a complaint and that the Police sent word for A1, A2 and her (P.W.2) husband and the Police have advised them to settle amicably. (ii) According to P.W.2, on 11.10.1997, at 9.00 p.m. P.W.47, Nagamuthu came to the house and asked Patrick to accompany him and at that time, Nagamuthu P.W.47, was holding his child in his hands and 10 minutes after they left the house, a boy came to the house and informed that some people were attacking her husband Patrick and immediately she along with her father, brother Sundarajan (P.W.4), Jeeva (P.W.1) rused to the spot and found a group of persons surrounding and assaulting her husband with wooden logs and bottle and that the injured Patrick was taken to the hospital and within 15 minutes Patrick breathed his past. P.W.1, Jeeva who had accompanied P.W.2, to the place of occurrence had preferred a complaint Ex.P.1, with P.W.7. P.W.1 would categorically depose that A1 was not present at the time of occurrence. P.W.1 would say that he narrated the incident to his brother-in-law, Shanmugasundaram who had reduced the same into writing in which he had signed and gave the same to P.W.7 and that Ex.P.1 is the complaint. (iii) Both P.W.1 and P.W.2 would say that the weapons used at the place of occurrence were broken bottles, soda bottles and wooden planks. But, to our surprise, a reading of Ex.P.1, complaint would go to show that the accused had attacked the victim Patrick with knife and soda bottles. But, in this case no knife was recovered from any of the accused or seized from the place of occurrence by the Investigation Officer. P.W.3 is the father-in-law of the deceased. P.W.3 would depose that P.W.47, Nagamuthu alone took the deceased Patrick to the place of occurrence and that when Patrick left the house on 11.10.1997, along with P.W.47, Nagamuthu, Patrick had consumed liquor. P.W.4, Sundarajan is the husband of Fathima, who speaks about the incidents which took place before the occurrence and also speaks about the motive and that on 10.10.1997 at about 10 p.m. A1 came to the house and damaged the motor cycle of the deceased Patrick and that he had identified the house of Patrick to some third persons and he has also deposed that A1 had criminally intimidated deceased Patrick. At the Police Station, after receiving the information he has also accompanied P.Ws.1 to 3 to the place of occurrence and would depose that a group of persons attacked Patrick at the time of occurrence and that Patrick was immediately taken to hospital where he died soon after the admission. (iv) The other eye witness relied on by the prosecution in this case is P.W.11. P.W.11 is an independent witness. According to P.W.11, he saw the occurrence from a distance of about 70 metres. He has categorically deposed that two persons attacked Patrick at the place of occurrence and at the time of occurrence, with stone and wooden planks. (iv) The other eye witness relied on by the prosecution in this case is P.W.11. P.W.11 is an independent witness. According to P.W.11, he saw the occurrence from a distance of about 70 metres. He has categorically deposed that two persons attacked Patrick at the place of occurrence and at the time of occurrence, with stone and wooden planks. P.W.11, in his evidence in the cross examination would depose that the occurrence had taken place in the pitch of darkness and that he could not identify the two persons who had attacked Patrick at the place of occurrence. So, the evidence of P.Ws.1 to 4 on the one hand and P.W.11 on the other hand are diametrically opposite to each other. P.W.1 says knife was used at the time of occurrence by the assailants where as P.W.51, Investigating Officer who had investigated the case earlier would depose that in the cross examination that the witnesses have stated before him that soda bottles and wooden planks were used by the accused in the occurrence. From the scene of occurrence, he could seize only soda bottles, broken glass pieces and glass pieces. So, it is clear that there is no possibility for P.Ws.1 to 4, to have witnessed the occurrence. According to P.W.1, there were only two assailants at the place of occurrence and at the time of occurrence. (v) A1 was subsequently impleaded after C.B.I. took up investigation in this case. The charge against A1 is under Section 120 (b) I.P.C. According to P.W.1, a few hours before the occurrence i.e., on 11.10.1997, at about 8 p.m. A1, Gopalakrishnan came in his motor cycle and took two rounds before her house. But, P.W.2 would depose that A1 Gopalakrishnan on the date of occurrence, at about 7.30 p.m., had crossed their house. According to P.W.2, A1 had not came to the house in a motor cycle as stated by P.W.1. So, there is contradiction in the evidence between P.W.1 and P.W.2 regarding the presence of A1 near the place of occurrence. (vi) P.W.4 would depose that the house of the Patrick was identified by the daughter of A1, Gopalakrishnan. According to P.W.1, at the place of occurrence A1 was not present. The case of the prosecution is that at the time of occurrence, A1 identified the house of the deceased to the other accused. (vi) P.W.4 would depose that the house of the Patrick was identified by the daughter of A1, Gopalakrishnan. According to P.W.1, at the place of occurrence A1 was not present. The case of the prosecution is that at the time of occurrence, A1 identified the house of the deceased to the other accused. But, the evidence of P.Ws.1 to 3 are not similar on this aspect. So, it goes without saying that A1 has been deliberately impleaded in this case. On the other hand, P.W.3, Pakkirisamy in his evidence in the chief examination has stated that A1 was present in the Police Station on 10.10.1997, at about 10 p.m. To prove the charge under conspiracy against A1, the prosecution has examined P.W.35 to show that A1 had given Rs.100/- to Moorthy to take up the other accused on bail on 13.11.1997. But, P.W.35 has not supported the case of the prosecution and hence he was treated as hostile witness. 4. Another important point to be noted in this case, which goes against the prosecution is the evidence of P.W.47. Admittedly, P.W.47, Nagamuthu had asked deceased Patrick on 11.10.1997, at about 9.15 p.m. to go out of the house and that Patrick also went out of the house along with P.W.47, Nagamuthu. But, there is no proper explanation from the prosecution for the non receipt of complaint from P.W.47, who was admittedly present at the place of occurrence and at the time of occurrence. In the cross examination, P.W.47 would depose that at the place of occurrence and at the time of occurrence, A2 and A3 were injured by deceased Patrick. So, the entire case of the prosecution revolves on the evidence of P.W.47 to explain the injuries sustained by A2 and A3 in the occurrence. According to the prosecution, since A2 and A3 were injured in the occurrence, as per the evidence of P.W.26, Doctor who had issued Ex.P.43, wound certificate for A3 and Ex.P.42, wound certificate for A2. 5. Ex.P.75 is the statement of P.W.47 in a departmental enquiry regarding the investigation of this case by the Pondicherry Police. Even though, in Ex.P.75, he has stated that A2 and A3 received injury at the hands of deceased, he has not supported the case of the prosecution, while he was examined as P.W.47 before the Court. 6. 5. Ex.P.75 is the statement of P.W.47 in a departmental enquiry regarding the investigation of this case by the Pondicherry Police. Even though, in Ex.P.75, he has stated that A2 and A3 received injury at the hands of deceased, he has not supported the case of the prosecution, while he was examined as P.W.47 before the Court. 6. The prosecution cannot rely on Ex.P.1, because in Ex.P.1 it is alleged that a group of persons attacked the deceased with knife, soda bottles and wooden planks, but, knife was not recovered in this case by the Investigation Officer. If the prosecution wants to rely on the evidence of P.W.47 to the effect that A2 and A3 were present at the scene of occurrence and they are the assailants who attacked the deceased, then the complaint would have been obtained from P.W.47 who was present at the place of occurrence and at the time of occurrence and was an ocular witness to the crime. 7. The entire case of the prosecution is built up on the evidence of P.W.47. But the prosecution has miserably failed to obtain a complaint from P.W.47 who was an eye witness to the occurrence according to the prosecution. Due to the above said infirmities in the investigation, we are of the view that the occurrence would not have been occurred as alleged in Ex.P.1, F.I.R. There is no overtact even attributed against A2 and A3 for the injuries caused to the deceased Patrick. Admittedly, A1 was not present at the place of occurrence, as per the evidence of P.Ws.1 to 4. 8. Under such circumstances, we are of the opinion that the prosecution has miserably failed to prove the guilt of A1 to A3 under Section 302 I.P.C. beyond any reasonable doubt and naturally the benefit of doubt must go to the accused. 9. Further, it is pertinent to note that the injuries sustained by A2 and A3 are to be explained by the prosecution to prove that A2 and A3 have sustained injury at the hands of deceased Patrick at the time of occurrence. The prosecution has produced Exs.P.42 and 43, the only evidence relied on by the prosecution to speak about the injuries sustained by A2 and A3 at the place of occurrence is P.W.47. But, P.w.47 has not supported the case of the prosecution. The prosecution has produced Exs.P.42 and 43, the only evidence relied on by the prosecution to speak about the injuries sustained by A2 and A3 at the place of occurrence is P.W.47. But, P.w.47 has not supported the case of the prosecution. In a murder case, if the injuries sustained by the accused is not properly explained by the prosecution that is fatal to the case of the prosecution as held in (A.I.R. 1976 SC 2263 LAKSHMI SINGH V. STATE OF BIHAR) 10. The relevant observation in the above said dictum runs as follows: "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." In such circumstances, we are of the opinion that the prosecution has miserably failed to prove the guilt under Section 302 I.P.C. against A1 to A3 and they are entitled for an acquittal. 11. In the result, both the appeals are allowed. The conviction and sentence imposed on accused 1 to 3 by the trial Court are set aside. The accused 1 to 3 are set at liberty forthwith. The bail bond executed by the appellants/accused shall stand cancelled. The fine amounts, if any paid, shall be refunded to the accused. Consequently, connected Crl.M.Ps are closed.