Judgment :- (Criminal Appeal preferred against the judgment and conviction passed by the learned I Additional Sessions Judge, Krishnagiri in S.C.No.90 of 1998, dated 30.9.1999 convicting and sentenced the appellant to undergo R.I for four years and to pay a fine of Rs.500/= i.e., to undergo R.I for period of to months.) This Criminal Appeal has been filed by the appellant/accused who has been convicted under Section 304(II) IPC and sentenced to undergo RI for four years and to pay a fine of Rs.500/=, by the learned I Additional Sessions Judge, Krishnagiri, in S.C.No: 90 of 1998, dated 30.9.1999. 2. The brief facts of the prosecution case are as follows:- (a) On 16.6.1996 at about 0.30 hours the deceased was sleeping in his house. At that time, his Uncle's son Radhakrishnan, and Balaji, Dharman came to the house of the deceased and asked him to come out the house. When the deceased came out of the house Balaji by catching hold of his shirt asked him as to what about the money that has to be given to his brother. At that time, Dharman attacked the deceased on his chest, face by his hands. At the same time, the said Radhakrishnan gave a blow on his head with a casurina wooden stick. By raising an alarm the deceased fell down. On hearing his alarm sound, Nagarajan and Shanmugham came and by hiring an Autorickshaw, they admitted the injured in the Government Hospital at Krishnagiri. P.W.7 Dr.Vallal examined him and noted the following injuries:- 1. Lacerated wound right frontal region 8cm x 2 cm x bone deep 2. Contusion left frontal region 3. Contusion right forehead 4. Bleeding from nose present. 5. Complaint of pain in the left shoulder, not able to move the left upper limb 6. Not able to move the left lower limb 7. Complaint of pain in the back clinically tendons over the lumbar spine present. 8. Abrasion right foot 3 cm x 2 cm 9. Complaint of sever headache. (b) P.W.7 also gave information to the Police under Ex.P.6. On receipt of the same by 2.00 am., P.W.11, Head Constable went to the Hospital and since the injured was under treatment he could not get statement from the injured. 8. Abrasion right foot 3 cm x 2 cm 9. Complaint of sever headache. (b) P.W.7 also gave information to the Police under Ex.P.6. On receipt of the same by 2.00 am., P.W.11, Head Constable went to the Hospital and since the injured was under treatment he could not get statement from the injured. Again on 17.6.1996 at 7.30 a.m., he went to the Hospital and recorded a statement from him and based on that registered a case in Crime No.537 of 1996 under Sections 341, 326, and 323 IPC. (c) By 8.30 a.m., as the condition of the injured became worse as per the advise of the Doctor the injured was taken to the Nimhans Hospital at Bangalore for further treatment. But the injured succumbed to the injuries and died at 12.20 p.m., on the same day. The death intimation was given to the Bangalore Wilson Garden Police Station. P.W.12 on receipt of the same went to the Hospital and conducted an inquest and prepared the report Ex.P.12. He also arranged for conducting postmortem on the body of the deceased. During postmortem the following injures were found on the deceased:- "Blood in nostrils present. Lacerated wound 2" in length present horizontally over the vertex in the centre along the midline. Abrasion of ½" x ½" right leg near medial side of the ankle joint. Fracture of nasal bone present. Sub (N.C.) haemotoma ¼" thick all over the scalp. Depressed fracture of the right parietal bone underlying the lacerated wound. Multiple fracture of both parietal bones, each fracture measures about 3 to 4 inches starting from the midline. Totally 5 fractures present. Extra dural haemorrhage 2" thickness in biparietal and bitemporal areas. Fracture 1 right temporal bone. Contusion of both parietal lobes." (d) After collecting the relevant documents P.W.12 sent the same to the Krishnagiri Police Station on 20.6.1996. On receipt of the same at 3.15 pm., the FIR was altered for the offence under Section 302 IPC and Express Report Ex.P.15 was prepared and sent the same to the Court as well to the higher officials. In the meanwhile P.W.13, Sub Inspector of Police examined the witnesses and visited the place of occurrence on 17.6.1996. He also prepared Ex.P.10, Observation Mahazar and Ex.P.14 rough sketch. In the meanwhile P.W.13, Sub Inspector of Police examined the witnesses and visited the place of occurrence on 17.6.1996. He also prepared Ex.P.10, Observation Mahazar and Ex.P.14 rough sketch. He also seized M.Os 1 to 3 at 6.00 pm., (e) P.W.15, his successor in office after knowing that the accused have surrendered in the court on 19.7.1996, took steps to enquire the first accused to be taken under Police custody. On 30.7.1996 he recorded the statement from the first accused and as per the confession of the first accused the casurina stick has been seized in the presence of the witnesses from the terrace of the first accused. P.W.16 who investigated the case further arranged to send the materials objects for forensic laboratory for chemical analysation. The Chemical Analyst report is Ex.P.18 and Zerologist report is Ex.P.19. He also examined the Doctor, Sub Inspector of Police, Had Constable and also P.W.13 who prepared the inquest report. He also examined the Doctor who conducted the postmortem at the Nimhans Hospital, Bangalore. After completing the investigation, he filed the final report on 30.12.1996 under Section 302 r/w. 34 IPC against the accused. (f) Before the I Additional Sessions Judge, Krishnagiri, on behalf of the prosecution, P.Ws 1 to 16 were examined, Exs.P.1 to P.19 and M.Os 1 to 3 were marked. On behalf of the accused no witness was examined and Ex.D.1 was marked. 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 as against them, they denied the same as false. (f) On a consideration of the oral and documentary evidence, the learned I Additional Sessions Judge, Krishnagiri came to the conclusion that the offence under Sections 304 (II) IPC is proved as against the first accused and sentenced him to undergo RI for four years and to pay a fine of Rs.500/= in default to undergo two months R.I. The learned Sessions Judge acquitted the other accused as the offence has not been made out against them. Aggrieved over the conviction and sentence, the first accused has preferred this Criminal Appeal. 3. Learned counsel for the appellant submitted that in this case the appellant has also sustained injuries in the same occurrence and there is no explanation for the same by the prosecution and thus the prosecution has not come out with true case. Aggrieved over the conviction and sentence, the first accused has preferred this Criminal Appeal. 3. Learned counsel for the appellant submitted that in this case the appellant has also sustained injuries in the same occurrence and there is no explanation for the same by the prosecution and thus the prosecution has not come out with true case. The only eye witness P.W.8 is an interested witness and his evidence cannot be relied. He also contended that there are contradiction in the evidence of P.Ws 1 to 3 with the dying declaration recorded by P.W.7, the Doctor. 4. As regards the injuries sustained by the appellant in the same occurrence, the appellant has filed a separate written statement under Section 314 Cr.P.C., before the Sessions Judge, wherein he has stated that it is only the deceased in an inebriated mood came to the house of the appellant and picked up a quarrel with him by abusing him in filthy language. Later, with the small aruval inflicted injuries on his left elbow, on his back. With the back of the small aruval the deceased attacked him on his right hand wrist. At that time the surrounding people who gathered there tried to prevent him. The deceased attempted to attack all of them. The appellant went inside his house and after some time along with his brother Balaji went to the Government Hospital for taking treatment. The appellant also stated that there is prior enmity between the deceased and the accused and in fact the appellant has also lodged a complaint against the deceased. To escape from the same, the present case has been falsely foisted against the accused. He also stated that the deceased used to sign as he is educated and it is not correct to state that P.W.11 has obtained his thumb impression from the Hospital. He also stated that P.W.3 is related to the deceased and his statement is false. Likewise the accused have helped the victims of a case filed against P.W.8, and therefore the statement of P.W.8, eye witness cannot be relied upon. He has also stated there are several criminal cases pending against the deceased and thus there are number of enemies to the accused. During trial Ex.D.1, bail bond executed by P.W.1 for the deceased has also been marked by the accused. 5. He has also stated there are several criminal cases pending against the deceased and thus there are number of enemies to the accused. During trial Ex.D.1, bail bond executed by P.W.1 for the deceased has also been marked by the accused. 5. As regards the injuries sustained by the appellant, P.W.7 has issued Ex.P.7 wound certificate to the appellant. The nature of injures as found in Ex.P.7 are as follows:- "1) Incised wound over the left elbow lateral aspect of hand 2cm x 1 cm 2) Abrasion left side of base of shin 6 cm x ½ cm 3) Contusion around the right wrist" 6. In his deposition, P.W.7, Doctor stated that at about 1.15 am, on the same night he has examined the appellant who has stated before him that he was attacked by a known person at about 12.30 pm., in the same night. As rightly contended by the learned counsel for the appellant, there is no explanation forthcoming from the prosecution as to why the appellant sustained three injuries at about the same time in the same transaction. The non explanation of the same is fatal to the prosecution case. In this respect, the learned counsel for the appellant relied upon the decision of the Hon'ble Supreme Court in Makwana Takhat Singh Ratan Singh Vs.State of Gujarat (1992 SCC (cri) 844) wherein their Lordships have held as follows:- "The High Court has not duly considered the effect of the non explanation of the injuries found on the accused person. What all the High Court has stated is that it is the accused alone who chased the deceased and inflicted the injury with dharia. But what we have to se in a case of this nature is whether the prosecution has come out with the true story of the genesis of the occurrence. To decide as to who wa the aggressor this becomes necessary, particularly when the accused had come forward with a plea that the prosecution party was a the aggressor. The fact that some incised injuries were found on one of the accused itself shows that one of the members of the prosecution party used the sharp edged weapon. There is also no material to show at what stage of the occurrence the appellant, A.1 came to attack the deceased. The fact that some incised injuries were found on one of the accused itself shows that one of the members of the prosecution party used the sharp edged weapon. There is also no material to show at what stage of the occurrence the appellant, A.1 came to attack the deceased. No doubt some of the prosecution witnesses are also injured but likewise some of the accused persons also received injuries. In this state of affairs, the view taken by the trial court that the accused party acted in exercise of right of private defence is not unreasonable as to warrant interference in an appeal against acquittal. Having given our earnest consideration and particularly in view of the fact that the High Court also confirmed the acquittal of four out of five accused, we think it is not safe to convict the appellant alone. In the result, the conviction and sentence passed against the appellant are set aside." 7. In Lakhwinder Singh Vsa. State of Punjab, reported n 2003 Cri.L.J., 3058, the Hon'ble Supreme Court held as follows:- "35. The next question is, in a case of this nature, whether the prosecution was bound to explain the injuries appearing on the person of Paramjit Singh. In our view, having regard to the facts and circumstances of this case, it was the duty of the prosecution to explain the injuries suffered by Paramjit Singh which were 19 in number and two of them resulting in fractures,. It is not as if the prosecution did not know of these injuries and that they were manufactured later to support the case of the defence. The facts disclose that even by the time the first information report was finalised and before the special report was despatched, the investigating officer had knowledge of the fact that Paramjit Singh had suffered injuries and was admitted in ahospital for treatment. We, therefore, hold that the failure of the prosecution to explain the injuries on Paramjit Singh leads to the inference that the prosecution has not disclosed the true genesis and the manner of occurrence." 8. In State of Rajasthan Vs. Madho and another reported in 1991 SCC (Cri) 1048, a Three Judges Bench of the Supreme Court, observed as follows:- "He was unable to explain how the two respondents sustained injuries. In State of Rajasthan Vs. Madho and another reported in 1991 SCC (Cri) 1048, a Three Judges Bench of the Supreme Court, observed as follows:- "He was unable to explain how the two respondents sustained injuries. If we turn to the injuries sustained by the two respondents which have been set out in Paragraph 25 of the trial court judgemnt, we find that he respondent Kishna had sustained as many as six injuries, five of them on the skull region. The respondent Madho too had sustained six injuries, two on the skull region, two on the scapular region, one on the forehead and one on the right index finger. Thus some of the injures were on exposed parts o their bodies and we would expect the prosecution witnesses to explain how the two respondents sustained the said injuries. No explanation worth the name is forthcoming. The trial court, however, brushed aside this infirmity by pointing out that in the cross case filed at the behest of the respondent Kishna the evidence disclosed that there was no farsi blow and, therefore, the defence theory was not acceptable. Counsel for the respondents, however, questioned the admissibility of the said evidence. Be that as it may, mere acquittal of the accused (prosecution side herein) in that case does not render the defence version false. The defence version has to be evaluated on the basis of the prosecution evidence tendered in the present case. The fact remains that both the respondents had sustained serious injuries, Kishna mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of doubt as it was hazarduous to place implicit reliance on the testimony of the injured P.W.2." 9. In this case also, the learned Sessions Judge acquitted the other accused. In this case also, the learned Sessions Judge acquitted the other accused. The prosecution has not come out with the true story of the genesis of the occurrence as there is no explanation offered for the injuries sustained by the accused. The deceased is also involved in many criminal cases and there is enmity between the accused and the deceased. According to the appellant, P.W.3, P.W.8, the only eye witness, are inimical towards them on various earlier issues. In the inquest report also it is only mentioned as "suspect" and A.1 to A.3 might be the culprit which goes to show that nobody has witnessed occurrence in which the accused allegedly assaulted the deceased in the manner spoken to by the prosecution witnesses. 10. The learned Principal Judge has also after discussing the evidence of PWs 1,2 and 4 held that there are contradictions in the evidence of these witnesses as to the intimation of the occurrence given to them by P.Ws.3 and 8. It is also observed by the learned Sessions Judge that according to the evidence of P.W.7 and Ex.P.5 the deceased was conscious but drowsy from 4.30 a.m., till he was taken to Bangalore for further treatment at the request of his parents. But P.W.11 in his evidence mentioned that on 17.6.1996 at about 7.30 a.m., he has obtained the statement from the deceased, in which statement the Doctor has not signed. It is also found out by the learned Sessions Judge that the Head Constable has not filled up the General Diary and it has been kept blank on 17.6.1996 and 18.6.1996 to show his part in the investigation and therefore the learned Sessions Judge rejected Ex.P.11, FIR as it has not been recorded property under the provisions of Section 154 Cr.P.C,. For these reasons, it is not safe to convict the appellant on the evidence of the solitary witness P.W.8 who is also inimical towards the appellant. Therefore, the appellant is entitled to the benefit of doubt. 11. In the result, this Criminal Appeal is allowed setting aside the conviction and sentence of the appellant. The bail bond executed by the appellant shall stand cancelled. The fine paid by the appellant shall be refunded.