Judgment :- A.C. Arumugaperumal Adityan, J. The facts led the accused for conviction at the hands of the I Additional Sessions Court, which has been challenged before this Court in this appeal are as follows. a) There was originally seven accused cited in the First Information Report. The accused A3 Madesh and A7 Kuppan died even before the commencement of the trial before the Sessions Court. A5, Kandhan died during the course of the trial. All the remaining accused who had faced the trial were found guilty under Sections 302, 302 read with 149, 148, 324, 324 read with 149, 326 of I.P.C. A1 to A4 who had faced the trial were convicted and sentenced under the above said provisions of law to undergo Life Imprisonment, one year Rigourous Imprisonment and 2 years Rigourous Imprisonment, etc., b) It is the case of the prosecution that the daughter of the deceased, Palani eloped with one Palanisamy, who is the son of the aunt of A1 and A2. Since the deceased and his brothers P.Ws.1 and 2 suspected that the accused persons are giving asylum to the said palanisamy and the daughter of the deceased. On the date of occurrence i.e., on 07.08.1991. On hearing some noise from one Sengodan, thinking that it is the quarrel in respect of the above said love affair, the deceased and his brothers P.W.1 and 2 rushed to the said Sengodan's house. On their way , the accused persons (7 persons) came in the opposite direction and A1, A2 and one Madheswaran (deceased accused) attacked the deceased Palani with knife on his chest and head. A1 attacked P.W.1 and A3 attacked P.W.2 with knives causing grievous injuries on them. After committing the crime, the accused ran away from the place of occurrence. Thereafter, the deceased, P.W.1 and P.W.2 were taken to the Hospital, wherein P.W.1 preferred the complaint-Ex.P.1 to P.W.13, the Sub-Inspector of Police. The deceased Palani was taken to Erode Government Hospital. From there, he was referred to Coimbatore Government Hospital, where he died on 09.08.1991. c) Thereafter, P.W.13, the Sub Inspector of Police has altered the charge from Section 307 I.P.C. to Section 302 I.P.C. The Inspector of Police, Elango had taken up further investigation. He visited the place of occurrence and prepared Ex.P.2, Mahazar and had drawn a rough sketch. From there, he was referred to Coimbatore Government Hospital, where he died on 09.08.1991. c) Thereafter, P.W.13, the Sub Inspector of Police has altered the charge from Section 307 I.P.C. to Section 302 I.P.C. The Inspector of Police, Elango had taken up further investigation. He visited the place of occurrence and prepared Ex.P.2, Mahazar and had drawn a rough sketch. Then, he examined the witnesses and recorded their statements, conducted inquest and arranged for recording dying declaration, on 08.08.1991 itself. The accused was arrested and their confession statements were recorded. After completing the investigation, the charge sheet was filed on 10.04.1992. According to P.W.3, the Sub Inspector of Police, Thiru Elongavan-the Inspector of Police who had conducted investigation is also now no more. d) The case was taken on file by the Judicial Magistrate No.I, Sangagiri under PRC No.8/92. On appearance of the accused, the learned Judicial Magistrate furnished copies under Section 207 of Cr.P.C. and since the case is triable by the Court of Session, the learned Judicial Magistrate has committed the case to the Court of Session under Section 209 of Cr.P.C. The learned Sessions Judge has framed charges under Sections 148, 302, 324, 302 read with 149, 326 and 323 I.P.C. against the accused and when questioned, the accused pleaded not guilty. e) Before the trial Court, P.Ws.1 to 13 were examined and Ex.Ps.1 to 31 and M.Os. 1 to 7 were marked on the side of the prosecution. When the incriminating circumstances were put to the accused under Section 313 Cr.P.C., they denied the complicity with the crime. f) After going through the oral and documentary evidence, the learned Sessions Judge has convicted A1 to A4 under Sections 148, 302, 302 read with 149, 324, 326 and 323 of I.P.C and sentenced to undergo Life Imprisonment and various other sentences as indicated above. Aggrieved by the findings of the learned Sessions Judge, the accused 1 to 4 have preferred this appeal. 2. Now the point for determination in this appeal is whether the conviction and sentence imposed by the learned Sessions Judge is sustainable for the reasons stated in the memorandum of appeal? 2A. We have heard the submissions made by the learned counsel Thiru V.K.Muthusamy for the accused and Thiru. P.Kumaresan, learned Government Advocate and considered the same. 3. The Point: - There are three eyewitnesses to the occurrence. They are P.Ws.1 to 3. 2A. We have heard the submissions made by the learned counsel Thiru V.K.Muthusamy for the accused and Thiru. P.Kumaresan, learned Government Advocate and considered the same. 3. The Point: - There are three eyewitnesses to the occurrence. They are P.Ws.1 to 3. P.Ws.1 and 2 are the brothers of the deceased Palani and they are also injured eyewitnesses. P.W.3 is not an injured eyewitness, but he also corroborates the evidence of P.W.1 and P.W.2. The earliest document available in this case is Ex.P.1, the complaint preferred by P.W.1 on 07.08.1991 at about 22.30 hours. Printed F.I.R. is Ex.P.26. Neither P.Ws.1 and 2 nor P.W.3 have spoken to anything about the injuries sustained by the accused in the same occurrence. P.W.1 in the cross examination would admit that the accused have preferred complaint against deceased Palani. P.W.2 Ayyanar has also not deposed anything about the injuries sustained by the accused, but he would state in the cross examination that when the accused attempted to assault the prosecution witnesses, they retaliated in self defence. P.W.2 in the cross examination would further admit that the second accused Kandhan preferred a private complaint against P.W.1, PW.2 and Sengoddan and the same was also pending before the Magistrate, Sankagiri. P.W.1 has deposed in the cross examination that at the time when he preferred Ex.P.1 complaint, his brother Ayyanar ( P.W.2 ) has signed in the said complaint as witness. But a perusal of P.W.1's complaint Ex.P.1 would go to show that P.W.2 has not signed as a witness to the said complaint. P.W.13, the Sub Inspector of Police who has deposed on behalf of Elango Investigating Officer, who is now no more, has stated in the cross examination that on the basis of the complaint preferred by A1 against the deceased Palani, P.W.1 Chinnayan, P.W.2 Ayyanar, and one Sengoddan, a counter case has been filed in Crime No,.844/91 under Sections 324, 323 of I.P.C and Ex.D3 is the First Information report in Cr.No.844/91. 4. On the side of the prosecution, the Doctor, who had examined the accused for the injuries they had sustained in the same transaction, has been examined as P.W.9. P.W.9, the Doctor would depose that A2 Kandhan was brought to the Government Hospital, Sangiri on 7/8.08.1991 at about 12.30 midnight. 4. On the side of the prosecution, the Doctor, who had examined the accused for the injuries they had sustained in the same transaction, has been examined as P.W.9. P.W.9, the Doctor would depose that A2 Kandhan was brought to the Government Hospital, Sangiri on 7/8.08.1991 at about 12.30 midnight. The said Knadhan (A2) has also informed the Doctor, P.W.9 that he was assaulted by a known person on 07.08.1991 at 06.00 p.m. i.e., at the same time when this occurrence in Crime No.843/91 of Kumarapalayam Police Station, also took place. The Accident Register copy relating to A2 is Ex.P.14. A1 was admitted before the same doctor in the same hospital on 07.08.1991 at about 10.30 p.m. and Ex.P.15 is the copy of the Accident Register relating to A1. Accused, Madheswaran was also admitted in the same hospital before the same doctor on 7/8.08.1991 at about 12.50 midnight. Even according to the version of A2 and A3 before P.W.9, the Doctor, they were also attacked by known persons at the same time and same place of this occurrence. Ex.P.16 is the copy of the Accident Register relating to A3. A6 Balan was also admitted in the same hospital by the same doctor on 7/8.08.1991 at 01.00 A.M. Ex.P.17 is the copy of the Accident Register relating to a6. Apart from them, one Pappathi, the wife of A2 Kandhan was also admitted in the same hospital by the same doctor on 7/8.08,1991 at about 12.45 midnight, for treatment to the injuries she had sustained in the same transaction. Ex.P.18 is the copy of the Accident Register relating to Pappathi. The above said persons have sustained injuries in the same occurrence in which the prosecution witnesses 1 to 3 also sustained injuries at the hands of the accused. The prosecution has examined P.W.9 and marked Exs.P.14 to 18, the Accident Register copy to show that the above said accused also sustained injuries in the course of the same transaction. But neither in Ex.P.1 nor in the evidence of P.Ws.1, 2 and 3 there is mention about the injuries sustained by the accused. 5. It is the bounden duty of the prosecution to give a explanation for the injuries sustained by the accused Arumugam (A1), Kandhan (A2), Madhesh and Balan (A4) in the course of the occurrence. But neither in Ex.P.1 nor in the evidence of P.Ws.1, 2 and 3 there is mention about the injuries sustained by the accused. 5. It is the bounden duty of the prosecution to give a explanation for the injuries sustained by the accused Arumugam (A1), Kandhan (A2), Madhesh and Balan (A4) in the course of the occurrence. Not only the prosecution has given no explanation but P.W.1 to P.W.3 have made a wrong statement that they did not see any injuries on the person of the accused. Indeed the eyewitnesses may not be able to give such graphic details regarding the assault on the deceased and P.Ws.1 and 2 and yet, they deliberately suppressed the injuries on the person of the above mentioned accused. This is the most important circumstance to discredit the entire prosecution case. 6. It is well settled that fouler the crime, higher the proof and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. 7. The most important document which cuts at the root of the prosecution case is Ex.P.11 dying declaration recorded from the deceased by the Judicial Magistrate, P.W.7 on 08.08.1991 at 01.00 p.m. A reading of Ex.P.11 would go to show that when the deceased Palani was proceeding to a Petal nut Shop on 07.08.1991 at 06.00 p.m., he was attacked by A2, A1 and one Periyannan. He has further stated in the dying declaration, Ex.P.11 regarding the overt act of A2 as he had attacked him with Vegetable Cutting Knife (Aruvamanai) on the head and A1 had stabbed with a Soori Kathi on the stomach and Periyannan had attacked with pointed weapon made of tin. The deceased has not implicated any other accused in the dying declaration. It is most astonishing to note that in this case the said Periyannan was neither referred to in the F.I.R nor arrayed in the charge sheet as an accused. The deceased has not implicated any other accused in the dying declaration. It is most astonishing to note that in this case the said Periyannan was neither referred to in the F.I.R nor arrayed in the charge sheet as an accused. P.Ws.1 and 2 have stated that the deceased Palani was attacked by A1 and A2 with Soori Kathi and A4, A5 and A6 with log but there is no reference in Ex.P.11 dying declaration that A4, A5, A6 attacked the deceased with log. So, Ex.P.11 is fatal to the case of the prosecution. 8. Learned Government Advocate relying on the judgment reported in AIR 1976 SCC 2263 (Lakshmi Singh and Others V. State Bank of Bihar) and contended that the non- explanation of the injuries sustained by the accused at the same transaction is fatal to the prosecution case. 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 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. 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 version which competes in probability with that of the prosecution one." 9. Hence, we are of the considered opinion that the prosecution has not proved the guilt of the accused beyond reasonable doubt, and the benefit shall inure in favour of the accused. 10. In the result the appeal is allowed and the conviction and sentence imposed in the judgment in S.C.No.120 of 1992 on the file of the first Additional Sessions Court, Salem District are set aside and the accused are acquitted of the charges. 10. In the result the appeal is allowed and the conviction and sentence imposed in the judgment in S.C.No.120 of 1992 on the file of the first Additional Sessions Court, Salem District are set aside and the accused are acquitted of the charges. If fine amount, any paid by the accused, the same shall be refunded. The bail bonds executed by the appellants shall stand cancelled. 11. This appeal is filed against the conviction and sentence imposed on A-1 and A-2, the appellants herein. A-1 was convicted for the offence under Section 304 Part II I.P.C. and sentenced to undergo 5 years Rigourous Imprisonment, and for the offence under Section 201 I.P.C, sentenced to undergo 2 years Rigourous Imprisonment and A-2 was convicted for offence under Section 304 Part II I.P.C., read with Section 109 I.P.C and sentenced to undergo 5 years Rigourous Imprisonment and for the offence under Section 201 I.P.C., sentenced to undergo 2 years Rigourous Imprisonment. 12. The brief facts of the case are as follows:- a) A-1 is a resident of Sundakkampalayam, which falls within the jurisdiction of Kudimangalam Police Station. A-2 is a resident of Kallapuram village which comes under the jurisdiction of Thali Police Station. The deceased Deivathal was married to P.W.6 in the year 1991. After three years, they separated because of her intimacy with A-1. After their separation, A-1 kept Deivathal as concubine. A-1 was already married. A-1 wanted A-2 to conduct some pooja at his house on 15.06.1998 so that the deceased would dance according to the tune of A-1. It is alleged that the deceased did not co-operate in the pooja and therefore, A-2 caught hold her and A-1 dashed her head against the wall, in which she died. Thereafter, on the same night at about 10.00 p.m. the accused were said to have taken her body in a gunny bag in a T.V.S.Moped, belonging to P.W.5 and then thrown out the body in the Lotus lake, which comes under the jurisdiction of Kumaralingam Police Station limit. b) P.W.1, V.A.O. of Kumaralingam village came to know about the presence of the body in the lake and went to the place of occurrence at about 2.00 p.m. on 16.06.1998 and found injuries on the head of the dead body. Therefore, he lodged a complaint, Ex.P.1 to the Kumaralingam Police Station. b) P.W.1, V.A.O. of Kumaralingam village came to know about the presence of the body in the lake and went to the place of occurrence at about 2.00 p.m. on 16.06.1998 and found injuries on the head of the dead body. Therefore, he lodged a complaint, Ex.P.1 to the Kumaralingam Police Station. P.W.15, the Sub Inspector of Police, Kumaralingam Police Station received the complaint from P.W.1 and registered a case under Section 302 I.P.C. and prepared Ex.P.15, the First Information Report F.I.R. c) P.W.18, the Inspector of Police took up investigation and went to the place of occurrence and in the presence of P.W.7 and one Ravi, prepared Ex.P.3, observation mahazar and drew Ex.P.24, rough sketch. Continuing his investigation, he pressed into service a sniffer dog and also a photographer – P.W.13, who took M.Os.15 and 16 series of photographs. In the presence of the panchayatdars, he examined the dead body of the deceased and prepared Ex.P.25, Inquest Report. In the place where the body found, he seized M.O.8-old torn gunny bag, M.O.9-Bed sheet, M.O.10 - torn Polythene gunny bag and M.O.6-series of chappals, in the presence of P.W.7 and one Ravi under cover of mahazar, Ex.P.4. He sent the body through P.W.10, to the Government Hospital for conducting autopsy. d) P.W.11, Doctor who was attached with Udumalapettai Government Hospital conducted autopsy on the body of the deceased. He prepared Ex.P.14 the Post Mortem Certificate and found the following injuries:- "INJURIES:- 1. A Contusion over left eyebrow. 2. A Contusion over the parietal area just above the right ear. 3. A Contusion over the centre of the head. Cut Section:- Disorganised blood clots seen below the skin below the injuries noted above. INTERNAL EXAMINATION:- No fracture of ribs seen. Heart:- 150 gms. Soft. Flabby Chambers - bloated. Empty. Lungs:- 250 Right. 200 Left. Soft collapsed dark coloured. Stomach:-Empty. Hyoid Bone:-Intact. Liver:-700 gms. Soft dark coloured. Spleen:-50 gms. Soft. Dark Kidneys:-50gm each. Dark coloured. Intestines:-Blotted with gas. Urinary Bladder:-Empty Uterus:-NOrmal size. Empty. Pelvis:-No fracture, Scalp:-Three injuries noted in injury and it cut section noted. Brain:-700 gms. Pulpy in nature. Skull:-1-Left frontal bone close to left orbit and base of skull back fracture. 2-Right side Parietal bone fracture. Membranes-Intact and disorganised blood clots seen over the left frontal and basal area membranes. 2. Disorganised blood clot seen over the Right Parietal area membrane." 13. Brain:-700 gms. Pulpy in nature. Skull:-1-Left frontal bone close to left orbit and base of skull back fracture. 2-Right side Parietal bone fracture. Membranes-Intact and disorganised blood clots seen over the left frontal and basal area membranes. 2. Disorganised blood clot seen over the Right Parietal area membrane." 13. According to P.W.11, the injuries found on the deceased could have been caused by dashing the head of the deceased on the wall. Since there was no one to claim the body, P.W.10 removed M.Os.1, 2, 3, 4 series of two 'minji', M.O.5 - thali, and M.O.13 - thali rope with 'Sathu' from the body and buried the body in the burial ground and handed over M.Os.1 to 5 and M.O.13 to the Inspector, with a self report. e) On 22.06.1998 at about 05.30 p.m., in the presence of P.Ws.8 and 9, P.W.18, the Inspector of Police arrested A-2 in his house. A-2 voluntarily gave a confession statement, admissible portion of which is Ex.P.5. P.W.18 prepared Ex.P.6 - observation mahazar at A-2's house and Ex.P.26 - rough sketch. In pursuance of the confession, A-2 produced M.O.11 Iron ring, M.O.12 - broken plastic bangles and the same were seized under cover of mahazar Ex.P.8. Thereafter on identification of A-2, A-1 was arrested in his house at Sundakkamuthur. A-1 voluntarily gave a confession statement, the admissible portion of which is Ex.P.11. In pursuance of the confession statement, he has taken the police party to the house of P.W.5 and produced M.O.7 – T.V.S. Moped, which was seized under the cover of mahazar Ex.P.2. f) On 23.06.1998, P.W.18 sent a letter – Ex.P.17, to transfer the investigation from Kumaralingam Police Station to Thali Police Station because the occurrence had taken place within the limits of Thali Police Station. Based on Ex.P.17, P.W.16 - Head Constable registered a case in Crime No.73/98 in Thali Police Station and prepared Ex.P.16, First Information Report. On completion of investigation, PW-18 laid the charge sheet against the accused. 14. Before the learned Second Additional Sessions Judge, Coimbatore, on behalf of the prosecution, P.Ws.1 to 8 were examined and Exs.P.1 to P.27 and M.Os.1 to 17 were marked. On behalf of the accused, no witness was examined and no documents were marked. 15. On completion of investigation, PW-18 laid the charge sheet against the accused. 14. Before the learned Second Additional Sessions Judge, Coimbatore, on behalf of the prosecution, P.Ws.1 to 8 were examined and Exs.P.1 to P.27 and M.Os.1 to 17 were marked. On behalf of the accused, no witness was examined and no documents were marked. 15. When the accused were questioned under Section 313 Cr.P.C with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, the accused denied the same as false. 16. Considering the oral and documentary evidence, the learned Second Additional Sessions Judge has come to the conclusion that the offence proved against A-1 would fall under Section 304 Part II and 201 I.P.C. and as against A-2, the offence would come under Section 304 Part II I.P.C. read with Section 109 I.P.C and 201 I.P.C. and both the accused were sentenced as mentioned earlier. Aggrieved over the same, this appeal is filed. 17. Mr. K. Kalyanasundaram, the learned counsel appearing for appellants would contend that there is no clinching evidence against the accused to prove their guilt. The only evidence available against the accused is that of P.W.2, the sister of the deceased and P.W.5, the owner of the Moped and P.W.3, who is said to have seen the accused when they took the deceased in a gunny bag. According to the learned counsel, the case is based on circumstantial evidence and circumstance adduced by the prosecution did not form a complete circle and therefore, benefit of doubt is to be given to the accused. 18. Per contra, the learned Government Advocate argued that P.W.3 has seen A-1 and A-2 taking the gunny bag at 10 p.m. and P.W.5 has admitted lending his vehicle to A-1. These evidences prove the guilty of the accused beyond doubt. 19. I have given my careful consideration to the rival contentions made on both sides. As far as the evidence of P.W.2 is concerned, she has simply stated that on Saturday, before the death of the deceased, A-1 and the deceased came to her house and next day i.e., Sunday morning, both of them left her house. At that time, the deceased was wearing a saree belonging to P.W.2. P.W.2 is living at Mathapur which is more than 20 K.M. away from A-1's house. At that time, the deceased was wearing a saree belonging to P.W.2. P.W.2 is living at Mathapur which is more than 20 K.M. away from A-1's house. There is no other witness to say that A-1 accompanied the deceased on Sunday. If really A-1 was involved in the murder of the deceased, he would not have come again to the house of P.W.2 on the following Thursday. It is admitted by P.W.2 in her evidence that A-1 again came to her house on Thursday. This only shows the innocence of the accused and if really A-1 had caused the death of the deceased, he would not have gone to her sister's house. Therefore the evidence of P.W.2 in no way connects the accused with the guilt charged against him. 20. As regards the evidence of P.W.3 that A-1 was carrying the gunny bag in the T.V.S. Moped, which was pushed by A-2, the said evidence does not inspire confidence. According to him, he saw A-1 and A-2 at 10 p.m. in the moon light. But when he was examined by police, he said that he saw them in lamp light. According to P.W.3, A-1 was very well known to him. If really A-1 was known to him, P.W.3 would not have kept silent without asking A-1 what was he carrying in the bag to his house at night time. Further, P.W.3 has not suspected what he saw on that day, until he was examined by the police. Thereafter, it is surprising, how the police traced P.W.3, knowing that he has seen the accused taking the body in the gunny bag. Therefore, behaviour of P.W.3 is quite unnatural and this evidence is also not reliable. According to P.W.5, A-1 very often used to take his Moped. If really, M.O.7 Moped belonging to P.W.5 was used for taking the body in gunny bag for the purpose of screening the offence, the vehicle should have been sent for Forensic examination to find out if any blood was present in the vehicle. But the vehicle was not subjected to any forensic examination. Nobody has deposed that they saw A-1 riding the vehicle from A.2's house, which is 20 k.m. away, where the deceased was said to have been murdered. But the vehicle was not subjected to any forensic examination. Nobody has deposed that they saw A-1 riding the vehicle from A.2's house, which is 20 k.m. away, where the deceased was said to have been murdered. It is common knowledge that it is impossible to carry a dead body in gunny bag, that too in a moped at midnight for 20 k.m. and by taking the same from behind. There is no evidence that the accused was seen taking the body in the moped. 21. The learned counsel for the accused has relied on the decision reported in 2004 11 SCC 346 [N.J. Suraj Vs. State Rep. By Inspector Of Police], wherein the Supreme Court has held that in a case of circumstantial evidence, the circumstances should be such so as to lead to only one irresistible conclusion that the accused who alone caused the murder and should not lead any other probability. The evidence produced in this case does not lead to the irresistible conclusion that the accused alone caused the murder. Therefore, the accused are entitled to be acquitted. 22. Accordingly, the conviction and sentence imposed on the accused are set aside and the appeal is allowed. Both the accused are acquitted. The bail bonds issued by them shall stand cancelled.