Judgment :- (Prayer: This Criminal Appeal has been filed against the judgment dated 31.12.2002 passed in S.C.No.124/2002 on the file of the Additional District & Sessions Court(FTC.No.I), Salem.) A.C. Arumugaperumal Adityan, J. This appeal has been preferred against the Judgment passed in S.C.No.124/2002 on the file of the Additional Sessions Court,(FTC-I), Salem. 2. The short facts of the case relevant for the purpose of deciding this appeal are as follows: i) The occurrence had taken place on 13.02.2000 at 4.00 p.m. near Adaiur village. Some 2 ½ years prior to the occurrence i.e., on 13.2.2000 there was dispute between deceased Perma Gounder and the accused with regard to pathway. Apart from this another motive is one Kuttiyan, brother-in-law of the deceased Perma Gounder died due to electric current shock. But the villagers and deceased Perma Gounder were scandalizing that the accused were responsible for the death of Kuttaiyan. ii) According to the prosecution, on 13.2.2000 at 4.00 p.m. the deceased was going in his T.V.S.50 moped at Amman Kovil Kaadu cart track all the accused formed into an unlawful assembly and A1 was armed with M.O.3-Spear, A2 was armed with M.O.1-wooden reaper, A3 was armed with M.O.2-sharp iron rod and A4 was armed with SBBL gun-M.O.4 and A5 to A7 caught hold of the deceased preventing him from moving. The overtact attributed according to the eye witnesses P.W.1 , 3, 4 & 7 is that A1 stabbed the deceased on the left flank with M.O.3-Spear and A2 beat with M.O.1 wooden reaper on the head of the deceased repeatedly and A3 with sharp iron rod assaulted the deceased on the forearm and left hand and A4 brought a gun, which was snatched by A1 and fired at the deceased, who was narrowly escaped by lying down on the ground. Thereafter, on seeing the other witnesses, the accused ran away with the weapons. Thereafter, P.W.5 took the injured-Perma Gounder to Jalagondapuram in his motor bike and from there he took him to a private hospital at Salem. The Doctor at Bharathi Hospital at Salem examined the deceased and issued Ex.P.24-Accident register and the wound certificate is Ex.P.25 and thereafter, intimation-Ex.P.23 was sent to the police. Thereafter, P.W.5 took the injured-Perma Gounder to Jalagondapuram in his motor bike and from there he took him to a private hospital at Salem. The Doctor at Bharathi Hospital at Salem examined the deceased and issued Ex.P.24-Accident register and the wound certificate is Ex.P.25 and thereafter, intimation-Ex.P.23 was sent to the police. iii) On 13.2.2000, at 9.00 p.m. P.W.11/Sub-Inspector of Police, Poolampatti Police Station received intimation from the hospital and went to the hospital and recorded Ex.P.12-Complaint from the deceased and registered a case against the accused at 11.00 pm. Ex.P.13 is the First Information Report. On 13.2.2000, P.W.14 received the First Information Report and took up investigation and went to the hospital and recorded the statement of the deceased. On 14.2.2000 at 6.00 am P.W.14 arrested A4, A3 and A5 and on their confession seized the M.O.4-gun from A4 in the presence of witnesses. At 8.00 am, P.W.14 went to the scene of occurrence and prepared Ex.P.15-Observation Mahazar and drew rough sketch-Ex.P.16. At 9.00 am examined P.W.1 and P.W.5 to 7 and other witnesses. On 15.2.2000, P.W.14 examined P.W.3, P.W.4 & P.W.8 and other witnesses. On 15.2.2000 at 2.30 p.m. P.W.14 arrested A2. iv) On 12.3.2000 at 9.00 am, P.W.14 received death intimation-Ex.P.17 from the hospital and altered the case under Sections 147, 148, 324, 342, 323, 302 IPC and under section 24(1) of Arms Act. Ex.P.18 is the altered First Information Report. P.W.14 conducted inquest between 10.00 am and 1.00 p.m. on the corpse of the deceased in the presence of the witnesses. Ex.P.20 is the inquest report. On 12.3.2000 at 4.15 p.m., P.W.9, Dr.Vallinayagam conducted postmortem on the body of the deceased and issued Ex.P.5-Postmortem Certificate wherein he opined that the deceased would appear to have died due to multiple injuries he had sustained. v) On 13.3.2000, A1 surrendered before the Judicial Magistrate No.3, Salem. On 21.3.2000, P.W.14 took police custody and on his confession M.O.2-Iron rod, M.O.3-Spear and M.O.1-wooden reaper were seized in the presence of the witnesses. On 27.3.2000, P.W.14 gave requisition to the Court to send the material objects for chemical analysis. On 31.3.2000, since P.W.14 retired from service, he handed over the investigation to P.W.15-Inspector of Police On 31.5.2000, P.W.15 took up the further investigation and examined P.W.1 and recorded her further statement and at 10.00 am seized the M.O.4-gun from A1's house. Thereafter, he examined the witnesses. On 31.3.2000, since P.W.14 retired from service, he handed over the investigation to P.W.15-Inspector of Police On 31.5.2000, P.W.15 took up the further investigation and examined P.W.1 and recorded her further statement and at 10.00 am seized the M.O.4-gun from A1's house. Thereafter, he examined the witnesses. After completing the investigation, P.W.15 filed the final report against the accused for the offences under Sections 147, 148, 341, 302, 149 IPC and under section 27(1) of Arms Act. vi) The case was taken on file by the learned Judicial Magistrate No.I, Sangagiri under PRC.No.19/2000. The accused appeared before the Judicial Magistrate on summons. Copies under Section 207 of Cr.P.C were furnished to the accused. Since the case is triable by the Court of Sessions, the learned Judicial Magistrate had committed the case under Section 209 of Cr.P.C to the Court of Sessions. vii) The learned Additional Sessions Judge, Salem, framed the charges under Section 147 IPC against A1 to A7, under Section 148 IPC against A1 to A4 and under Section 341 r/w 149 IPC against A1 to A7 and under Section 302 IPC against A1 to A3 and under Section 302 r/w 149 against A4 to A7 and when question, the accused pleaded no guilty. viii) Before the trial Court, P.W.1 to 15 were examined and Ex.P.1 to P.26 were filed and M.O.1 to 4 were marked. When incriminating circumstances were put to the accused under Section 313 Cr.P.C the accused denied their complicity in the crime. The accused have examined D.W.1-Dr.Gothandaraman and marked Ex.D.1 to D.8. On the available document and oral evidences, the learned Additional Sessions Judge, Salem, has come to a conclusion that the accused are guilty under Section 147, 148, 341, 341 r/w 149 IPC and 302 IPC and 302 r/w 149 IPC and sentenced under the above said provisions of law against the accused. Aggrieved by the findings of the learned Additional Sessions Judge, Salem, the accused have preferred this Appeal. 3. Now the point for determination in this Appeal is whether the prosecution has proved the guilt of the accused as to the charges levelled against them beyond any reasonable doubt to warrant a conviction as indicated in the Judgment in S.C.124/2002 on the file of the Additional Sessions Court, (FTC.No.I), Salem? 4. The point:- We have heard the submissions of Mr.K.V.Sridharan, learned counsel for the appellants/accused and Mr. V.R.Balasubramaian, learned Government Advocate. 4. The point:- We have heard the submissions of Mr.K.V.Sridharan, learned counsel for the appellants/accused and Mr. V.R.Balasubramaian, learned Government Advocate. We are of the constrained view that the prosecution has miserably failed to prove the guilt of the accused beyond any reasonable doubt and consequently the accused 1 to 7 are liable to be acquitted against all the charges for the following reasons: Ex.P.13-FIR, which was prepared on the basis of Ex.P.12-statement preferred by the deceased-Perma Gounder before P.W.14, who had registered a case under Section 147, 148, 324, 342, 323 and 307 IPC and under Section 27(1) of Arms Act under Poolampatti Police Station Cr.No.108/2000 on 13.2.2000 at 23.30 hours at Bharathi hospital at Salem. The accused 4 to 5 were arrested on 14.2.2000 at 6.00 am by P.W.14 and on the basis of confession of A4, he had recovered a SBBL gun and he has received death intimation of Perma Gounder on 12.3.2000 at about 9.00 am and he had altered the charges in Cr.No.108/2000 to under Section 147, 142, 324, 342 , 323 and 302 IPC and under Section 27(1) of Arms Act. Ex.P.17 is the death intimation and the express First Information Report is Ex.P.18 and accident register relating to the deceased-Perma Gounder is Ex.P.19. P.W.14 in the cross-examination would admit that at about 8.00 p.m. on 13.2.2000, he received information regarding the registration of a counter case in Cr.No.107/2000 and he would admit that both the cases in Cr.No.107/2000 and Cr.No.108/2000 were investigated by him. P.W.14 would depose that he is not aware as to whether any of the accused in the case in Cr.No.108/2000 was admitted in Edapady Government Hospital. He would admit that Ex.D.2 & D.3 are the rough sketches drew by him in Cr.No.107/2000 and the observation mahazar in Cr.No.107/2000 are Ex.D.4 & D.5. P.W.11 is the Sub-Inspector of Police, who had registered the case under Cr.No.108/2000 on the basis of Ex.P.12-statement given by Parma Gounder soon after his admission in the Bharathi hospital at Salem. In the cross-examination, P.W.11 would admit that on the side of the accused also a complaint was preferred by A2 at 7.30 p.m. on 13.2.2000 and on that basis a First Information Report was also registered (Cr.No.107/2000). The prosecution case is silent about the injury sustained by A2 and A3 in the same occurrence at the same time of occurrence. In the cross-examination, P.W.11 would admit that on the side of the accused also a complaint was preferred by A2 at 7.30 p.m. on 13.2.2000 and on that basis a First Information Report was also registered (Cr.No.107/2000). The prosecution case is silent about the injury sustained by A2 and A3 in the same occurrence at the same time of occurrence. But D.W.1, the then Doctor at Edapady Government Hospital would depose to the fact that on 13/14.2.2000 at about 2.30 am he examined A1-Gopal for the injuries he had sustained on the same day i.e. on 13.2.2000 at about 3.00 p.m. at the hands of a known person near Adaiur Amman Kaadu Village with stick and that a lacerated injury on the centre of the head measuring 3 cm x ½ cm x Skin deep and an aberration on the left elbow measuring 10 x 1 cm and he voluntarily got discharged on 16.2.2000 and that Ex.D.6 is the copy of the accident register. He has further deposed that he had examined A2/Mani on the same day at 10.20 p.m. referred by Poolampatti Police for the treatment of some of the injuries he had sustained and that on examination A2-Mani had informed him that he was attacked by a known person on the same day at 4.00 p.m. with stone near Adaiur Amman kovil kaadu and on examination he could find a lacerated injury measuring 1 x 1 cm on the right side of the chest and an aberration on the left cheek measuring 1 x 1 cm and that he was admitted as an inpatient and he got discharged himself on 15.2.2000 against the medical advice and that Ex.D.7 is the copy of the accident register pertaining to A2. Even though P.w.14 has investigated both the cases in Cr.No.107/2000 and Cr.No.108/2000 and filed charge sheet in both the cases, in this case he has failed to explain how A1 and A2 got injuries in the same occurrence. It is not the case of the prosecution that A1 and A2 were injured in separate incidents. Even though P.w.14 has investigated both the cases in Cr.No.107/2000 and Cr.No.108/2000 and filed charge sheet in both the cases, in this case he has failed to explain how A1 and A2 got injuries in the same occurrence. It is not the case of the prosecution that A1 and A2 were injured in separate incidents. On the other hand Ex.D.1 preferred by A2 will go to show that he had sustained injury at the hands of nine persons namely Vadivelu, Vellaiyan, Seviyappan, Kolandaivelu, Raja, Kaliyappan, Palanisamy, Mariyappan, Mathaiyan apart from Perma Gounder-deceased and that Perma Gounder had assaulted A1-Gopal with a koduval and that A2 was assaulted with stones by Vadivelu on the chest and P.W.4-Saviyappan has also assaulted him with stones on the cheek causing bleeding injuries and that Perma Gounder, Palanisamy also kicked him(A2) and that A1 was assaulted by Vellaiyan, Mariyappan, Raja, Kolandaivelu and Kaliyappan with hands and stones and that he along with A1 and his wife were returning to the house, the above said persons again assaulted them with stones and A4 who made an attempt to pacify the above said persons was also attacked by stones and at that time his brother Seviyappan and his uncles son Govind attacked Perma Gounder with stones and that A4 immediately went inside his house and brought a licenced gun loaded with a bullet and thereupon he(A2) snatched the gun and fired a shot in the sky and thereafter the accused took to their heels and afterwards, he had sent the injured-Gopal(A1) to Edapady Government Hospital and he (A2) went to the Poolanpatti Police Station and lodged a complaint before Sub-Inspector of Police, who registered the case under Cr.No.107/2000 under Section 147, 148, 324, 323 and 307 IPC. It is seen from Ex.D.2 that the second occurrence had taken place in front of A1's house and the first occurrence had taken place near the cart track as per Ex.P.16. But the prosecution has failed to explain the injuries sustained by A1 and A2 in the same transaction. The learned counsel for the appellant/accused relied on a decision reported in AIR 1976 SC 2363 (Lakshmi Singh and others Etc., Vs. But the prosecution has failed to explain the injuries sustained by A1 and A2 in the same transaction. The learned counsel for the appellant/accused relied on a decision reported in AIR 1976 SC 2363 (Lakshmi Singh and others Etc., Vs. State of Bihar), wherein it has been held by the Honourable Apex Court 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 circumstances 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 or, the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." According to P.W.14, there were two guns recovered from A4 one on the confession of A4 after his arrest on 16.3.2000 and P.W.15 has also recovered a gun from A1. So, the recovery of the two guns itself cast a cloud of suspicion in the investigation of this case. Apart from this, there are also discrepancies in the evidence of P.W.3, P.W.4 in respect of overtact of the accused. According to P.W.4, A5 to A7 caught hold of the deceased to facilitate A1 to A3 to assaulted him. But neither P.W.1 nor P.W.3 have deposed to the fact that A5 to A7 facilitated A1 to A3 to attack Perma Gounder by caught hold of him at the time of the occurrence. According to P.W.3, Perma Gounder was proceeding in his TVS.50 at the time of attack by the accused, but no TVS.50 was recovered from the place of occurrence by the Investigation Officer. In a case and counter case, it is the duty of the prosecution to file charge sheet against the aggressor. According to P.W.3, Perma Gounder was proceeding in his TVS.50 at the time of attack by the accused, but no TVS.50 was recovered from the place of occurrence by the Investigation Officer. In a case and counter case, it is the duty of the prosecution to file charge sheet against the aggressor. But in this case, there is evidence to show that in the same occurrence A1 and A2 also sustained injuries at the hands of Peruma Gounder and others and took treatment in Government Hospital as inpatients. But the prosecution has failed to explain the injuries sustained by A1 and A2 in the occurrence, which is fatal to the prosecution case as per the ratio-decedent in AIR 1976 SC 2363 . 5. Under such circumstances, we are constrained to come to the conclusion that the prosecution has failed to prove its case beyond any reasonable doubt and the same ensures to the benefit of the accused. 6. In the result, the Appeal is allowed and the conviction and sentence passed in S.C.No.124/2002 on the file of the Additional Session Court, (FTC.No.I), Salem, is set aside and A1 to A7/appellants herein are acquitted of the charges levelled against them. Fine amount, if any paid by the accused, is to be retuned to the accused. Bail bonds stand cancelled.