Judgment :- (This Criminal Appeal is filed under Section 374 of Criminal Procedure Code against the judgment of conviction dated 30.4.1999 and made in S.C.No.172 of 1995 on the file of the Principal Sessions Court, Salem.) This is an appeal filed by the appellants/A1 to A3 challenging the conviction and sentence passed by the learned Principal Sessions Judge, Salem District made in S.C.No.172 of 1999 dated 30.4.1999, convicting the accused 1 to 3 for the offence punishable under section 304 Part-II read with 34 IPC and sentencing them to undergo 4 years rigorous imprisonment. 2. The brief facts that led to the filing of this appeal are as follows:- “(a) A1 is the father and A2 and A3 are the sons of A1. P.W.1 is the wife of the deceased Subramani. Both the deceased and the accused were residing in the same village of Ayilpatti. The first accused borrowed a loan of Rs.1,000/- from the father of the deceased and he has not repaid. Hence, there was an enmity between the deceased and the first accused, who is the trustee of the Mariamman Koil. The first accused without collecting money from the deceased and also expelling him, constructed the Mariamman temple with the help of other members in the village. Due to previous enmity, on 24.4.1993, at about 5.30 p.m. the accused 1 to 3 came to the house of the deceased and asked the deceased and P.W.1 what they were talking. The deceased and P.W.1 replied that they were talking about the non-payment of loan amount by the first accused. Second accused pushed down the deceased and all the three accused assaulted the deceased by kicking and stamping with the legs wearing chapels on his stomach two or three times. The second accused also throttling the neck of the deceased and said that he would not leave him without killing. The first and second accused assaulted P.W.1 on her cheek and the first accused pulled the sari of P.W.1 and also tore the sari. The deceased fell down unconscious and all the accused ran away from the scene of occurrence. On spraying water on his face, the deceased became conscious. Thereafter, P.W.1 was sitting in the entrance of her house and was weeping. While crossing her house, P.W.2 enquired about the occurrence. P.W.1 requested him to bring her father-in-law and brother-in-law and also a car from Namagiripettai. On spraying water on his face, the deceased became conscious. Thereafter, P.W.1 was sitting in the entrance of her house and was weeping. While crossing her house, P.W.2 enquired about the occurrence. P.W.1 requested him to bring her father-in-law and brother-in-law and also a car from Namagiripettai. Thereafter, P.W.2 came with a car, in which P.W.1, her mother-in-law and brother-in-law and P.W.2 viz., Gopalakishnan took the deceased to the Rasipuram Government Hospital. (b) P.W.5 the Doctor attached to the Government Hospital, Rasipuram, examined the deceased on 25.4.1993 at 2.15 a.m. who was brought by his brother Krishnan. The Doctor, P.W.5 found the following injuries:- “(1) C/o of pain abdomen. O/e. Abdomen distended. Tenderness present. Rigid (NC) perforation. (2) C/o of pain in the scrotum and sutured. Tenderness present. (3) C/o of pain in the chest. Tenderness present.� The doctor P.W.5 also informed that the condition of the deceased was very serious and advised to take the deceased to the Government Mohan Kumaramangalam Medical College Hospital, Salem. He issued accident register extract Ex.P-4. The P.W.5, Doctor also sent Ex.P.5 intimation to the police. (c) The brother of the deceased took the deceased to the Government Mohan Kumaramangalam Medical College Hospital, Salem. P.W.6 doctor examined the deceased at 3.20 a.m. on 25.4.1993 and he found the following injuries:- “Alleged to have been sustained multiple injuries. Body and blunt injury abdomen due to forcible kick with legs over the abdomen.� P.W.6 issued accident register extract Ex.P-6 and he admitted the deceased in M.S. Ward. (d) P.W.10, the Sub Inspector of Police attached to the Ayilpatti Police Station, on receipt of the intimation, went to the Government Mohan Kumaramangalam Medical College Hospital, Salem and recorded the statement of the injured Ex.P.1 at 10.00 a.m. on 25.4.1993, on the basis of which, a case was registered in Crime No.138 of 1993 for the offences under Sections 341, 323, 354 and 506(ii) IPC. He prepared printed FIR Ex.P.10 and sent the copies to the higher officials and Court. Thereafter he went to the scene of occurrence and prepared Observation Mahazar Ex.P.2 in the presence of P.W.3 Kaliappan and one Subramani. He also prepared Rough Sketch Ex.P.11 in the presence of same witnesses. Thereafter he examined P.Ws.1, 2 and also others viz., Marayee, Marappa Gounder, Natesan, Poomalai and Thangaraj. Thereafter he went to the scene of occurrence and prepared Observation Mahazar Ex.P.2 in the presence of P.W.3 Kaliappan and one Subramani. He also prepared Rough Sketch Ex.P.11 in the presence of same witnesses. Thereafter he examined P.Ws.1, 2 and also others viz., Marayee, Marappa Gounder, Natesan, Poomalai and Thangaraj. (e) On 27.4.1993 at about 2.30 p.m., P.W.10 received the death intimation (Ex.P.7) from the hospital about the death of the injured Subramani. Then P.W.10 altered the crime from Sections 341, 323, 354 and 506(2) IPC to Sections 302 and 354 IPC and prepared Ex.P.12, the altered first information report and sent the same to the Court and also to the higher officials. He also sent the said altered first information report to P.W.11, the Inspector of Police, Kondalampettai (in-charge), Namagiripettai Police Station. (f) On receipt of express FIR Ex.P-12 on 28.4.1993, P.W.11 took up investigation and proceeded to the scene of occurrence and then to the Salem Headquarters Hospital, conducted inquest over the dead body of Subramani before the panchayatars between 11.00 a.m. and 1.00 p.m. on 28.4.1993 and prepared Inquest Report Ex.P.13. P.W.11 also gave a requisition Ex.P.8 through P.W.9, to the doctor P.W.8 for conducting Post-mortem. (g) On receipt of the requisition, P.W.8, the doctor attached to Government Mohan Kumaramangalam Medical College Hospital, Salem conducted autopsy on the dead body of the deceased and issued Ex.P.9, the postmortem certificate opining that the deceased would appear to have died due to complications of blunt injury to abdomen. The doctor found the following injuries:- “External Injuries: (1) A right paramedian sutured wound of 18 c.ms, in length with 17 sutures intact. On dissection of the wound, it was 5 cms, in breadth and entering the peritoneal cavity. The parietal peritoneum was adherent. The peritoneal cavity contained 300 m.l. of foul smelling greenish purulent material. The internal organs were adherent to each other. The visceral peritoneal covering was dull, sutureless and covered with purulent material. The walls of intestine were adherent. On examination of the visceral organs, there was a sutured wound on the entemesentric border of the ileum 175 cms (NC) to the ileocaecal junction. There was a full thickness tear 1 cm x 0.5 cm on the antimesenteric border of the ileum situated 7 cms. Distal to the previously mentioned sutured wound. Yellow coloured fluid material was coming out through the wound. There was a full thickness tear 1 cm x 0.5 cm on the antimesenteric border of the ileum situated 7 cms. Distal to the previously mentioned sutured wound. Yellow coloured fluid material was coming out through the wound. There was intensive bruising of the intestinal wall surrounding the wounds. Besides there was bruising of the mesentry and bruising of the major portions of the coils of intestine. (2) Two drainage tube wounds seen in both flanks of size 2 cm x 1 cm x entering the peritoneal cavity. Corrugated rubber tubes were found in situ in both the wounds. (3) The blader wall was contested.� (h) When P.W.11, the Inspector of Police was going on the way to the said Village for further investigation, he arrested the accused 1 to 3. He also recovered the chapels M.O.3 series in the presence of P.W.4 and one Periasamy and they were brought to the police station and thereafter they were sent for judicial custody. He also examined P.W.9 and the doctors and recorded their statements. (i) Since P.W.11 was transferred, P.W.12, the Inspector of Police, continued further investigation and after the completion of investigation, P.W.12 filed charge sheet on 19.01.1994.� 3. In order to prove the case, the prosecution, examined P.Ws.1 to 12 and marked Exs.P-1 to P-13 and M.Os.1 to 3 series. 4. When the accused was questioned under Section 313 of the Cr.P.C. in respect of the incriminating evidence made available against them, they denied the complicity of the crime and they have come forward with the version of total denial. The accused have not chosen to examine any witness. 5. The learned trial Judge, on consideration of the entire evidence available on record, had come to the conclusion that the prosecution has not made out case for the offence under Sections 302, 323 and 354 I.P.C. and convicted the accused for the offence under Section 325 read with Section 34 I.P.C. as per judgment dated 21.11.1995. 6. 5. The learned trial Judge, on consideration of the entire evidence available on record, had come to the conclusion that the prosecution has not made out case for the offence under Sections 302, 323 and 354 I.P.C. and convicted the accused for the offence under Section 325 read with Section 34 I.P.C. as per judgment dated 21.11.1995. 6. The Judgment dated 21.11.1995 of the trial Court was challenged by P.W.1 Jayamani in Crl.R.C.No.162 of 1996 and this Court by Order dated 17.7.1998 allowed the revision holding that the findings given by the learned Sessions Judge that it would amount to only the offence under Section 325 IPC, is not correct and this Court has further observed that the Sessions Court has failed to take into consideration the principles enunciated on similar facts of the case as reported in Jabamalai Royappan, In re, (1981 L.W.Crl.136) and remitted back to the sessions Court for considering the case on the basis of the principles laid down in 1981 L.W. Crl.136 and then to pass orders in accordance with law. 7. Thereafter the learned Sessions Judge as per the directions of this Court recorded findings and held that the death of the deceased was caused by A1 to A3 by kicking and stamping with the legs wearing chapels on the stomach of the deceased with the intention of causing bodily injury as it is likely to cause death and as such, the offence under Section 304 Part-II IPC is attracted and convicted as stated above. The above conviction and sentence are now under challenge in this appeal. 8. Heard the learned counsel for the appellants and the learned Government Advocate (Criminal side) for the State. 9. Learned counsel for the appellants contended that the conviction of the accused, accepting the evidence of P.W.1, who is the wife of the deceased and on the basis of the complaint given by the deceased to P.W.10, Sub Inspector of Police is improper. Learned counsel submitted that there has been inordinate delay in Ex.P.1, FIR reaching the Court and such delay has not been explained satisfactorily by the prosecution. Learned counsel submitted that there has been inordinate delay in Ex.P.1, FIR reaching the Court and such delay has not been explained satisfactorily by the prosecution. It is further submitted by the learned counsel for the appellants that though Ex.P.1 was recorded at 10.00 a.m. on 25.4.1993, but Ex.P.1 reached the Court only on 27.4.1993, after the death of the deceased on 27.4.1993 thereby throwing a doubt that Ex.P.1 has been prepared only after the death of the deceased on 27.4.1993. Learned counsel also submitted that in Ex.P.1, the complaint made by the deceased, there is no attestation of the doctor that the deceased was in a fit condition to give statement and as such, no reliance can be placed on Ex.P.1. As regards the motive, it is submitted by the learned counsel for the appellants that much reliance cannot be placed upon the alleged motive as alleged by the prosecution and as stated by P.W.1 in her evidence. Learned counsel also attacked that though the deceased was conscious, he has not informed the occurrence to P.W.2 who took the deceased in a car along with mother-in-law and brother-in-law of P.W.1 to the hospital. Learned counsel for the appellants further argued that since A1 is aged about 75 years and since the Sessions Court also recommended the Government to reduce the sentence in respect of A1 as two years rigorous imprisonment, some leniency may be shown to A1 in respect of sentence. 10. Learned Government Advocate (Criminal Side) submitted that the evidence adduced by P.W.1, the wife of the deceased is convincing and such evidence of P.W.1 tallies with the FIR and medical evidence. Learned Government Advocate further submitted that immediately after the occurrence, P.W.1 was sitting in the entrance of her house and informed the occurrence to P.W.2 who came there and requested him to inform the occurrence to her father-in-law and brother-in-law and bring a taxi from Namagiripettai and accordingly P.W.2 brought a taxi and took the deceased along with P.W.1 and mother-in-law and brother in law of P.W.1 to the Rasipuram Government Hospital. Learned Government Advocate further submitted that the deceased informed to P.Ws.5 and 6 about the attack made by A1 to A3. Learned Government Advocate further submitted that the deceased informed to P.Ws.5 and 6 about the attack made by A1 to A3. It is further submitted by the learned Government Advocate that P.W.8, the Doctor who conducted post-mortem on the body of the deceased also opined that the death was caused due to the complications of blunt injuries to the abdomen and such injuries were caused by A1 to A3 by kicking and stamping with legs wearing chapels (M.O.1 to 3 series) on the stomach of the deceased. The Chapels M.O.1 series were recovered from A1 is made up of tyre with thickness 10� and M.Os.2 and 3 were recovered from A2 and A3 also made up of tyre with thickness 9� each. Considering all these aspects, according to the learned Government Advocate, the Sessions Court found all the accused guilty under Section 304 Part-II, IPC, as such the conviction and sentence does not call for interference. As regards the delay of the complaint Ex.P-1 reaching the Court, it is submitted by the learned Government Advocate that such delay is not fatal to the case of the prosecution, in that with regard to the occurrence that took place on 24.4.1993 at 5.30 p.m., the complaint Ex.P-1 was preferred on 25.4.1993 at 10.00 a.m. by the deceased to P.W.10, Sub Inspector of Police in the Hospital which on his return, was registered in Crime No.138 of 1993 under Sections 341, 323, 354 and 506(ii), I.P.C., in which there is no delay. But there have been some delay in the complaint Ex.P-1 and the printed F.I.R. Ex.P-10 reaching the Court on 27.4.1993 and therefore, it cannot be said that the delay in the complaint and FIR reaching the Court is not very much fatal to the case of prosecution. In support of the argument advanced, the learned counsel relied on the decision Munshi Pasad and others vs. - State of Bihar reported in 2002 Supreme Court Cases (Criminal) 175, in which the Hon'ble Supreme Court held thus:- “The statutory obligation warrants utmost promptitude and in the event of the delay not being an unreasonable one and in the event of availability of some explanation therefor, which is otherwise acceptable as well, question of prosecution being tainted would not arise. FIR sets the investigation rolling and in the event of there being some delay somewhere and as noticed above with the acceptable explanation, the delay cannot be said to vitiate the trial by reason therefor.� 11. As per the evidence of P.W.1, the wife of the deceased, the accused persons A1 to A3 came to her house and when it was informed to them that both the deceased and P.W.1 were talking about the non-payment of the loan borrowed by A1 from the father of P.W.1, A2 pushed down the deceased and A1 and A3 kicked and stamped with legs wearing chapels on the stomach of the deceased. The deceased fell down unconsciously. P.W.1, the wife of the deceased went into the house and bring water and sprayed on the face of the deceased and the deceased became conscious. Thereafter, P.W.1 was sitting in the entrance of her house and was weeping. While crossing the house of P.W.1, P.W.2 enquired about the occurrence. P.W.1 requested him to bring her father-in-law and brother-in-law and also a car from Namagiripettai. Thereafter, P.W.2 came with a car, in which the mother-in-law and brother-in-law of P.W.1 and also P.W.2 viz., Gopalakishnan were also accompanied the deceased and they went to Rasipuram Government Hospital. The deceased informed the doctor P.W.5 that he was attacked by three known persons on 24.4.1993 at 5.30 p.m. in his house. The deceased also informed P.W.5, doctor that he was kicked and stamped with legs by known persons. As such, it is clear that the deceased was conscious when he was admitted in the Rasipuram Government Hospital and in the Government Mohan Kumaramangalam Medical College Hospital, Salem. P.W.10 who received the intimation Ex.P.5 from Rasipuram Government Hospital, went to the Rasipuram Government Hospital, Salem where he was informed that the deceased was sent to the Government Mohan Kumaramangalam Medical College Hospital, Salem and then he went to the Government Mohan Kumaramangalam Medical College Hospital, Salem and recorded the statement Ex.P.1 at 10 a.m. on 25.4.1993 of the deceased. 12. As per the case of prosecution, the occurrence took place on 24.4.1993 at about 5.30 p.m. and the complaint Ex.P-1 was made by the deceased himself on 25.4.1993 at 10.00 a.m. in the Government Mohan Kumaramangalam Hospital, Salem, where he was admitted for treatment. 12. As per the case of prosecution, the occurrence took place on 24.4.1993 at about 5.30 p.m. and the complaint Ex.P-1 was made by the deceased himself on 25.4.1993 at 10.00 a.m. in the Government Mohan Kumaramangalam Hospital, Salem, where he was admitted for treatment. The complaint was made to P.W.10, the Sub Inspector of Police attached to the Ayilpatti Police Station, who went to the Government Mohan Kumaramangalam Hospital, Salem, on receiving information and he registered the case as per F.I.R. Ex.P-10 in Crime No.138 of 1993 for the offence under Sections 341, 323, 354 and 506(ii), I.P.C. Further, it is P.W.10, who on receipt of the death intimation Ex.P-7 on 27.4.1993 at about 2.30 p.m. from the Hospital about the injured, viz., the deceased Subramani, altered the crime under Sections 302 and 354 I.P.C., as per the altered F.I.R. Ex.P-12. 13. Though P.W.10 has stated in the chief examination that he sent Ex.P-10 by post, in the cross-examination, he has stated that he has written in the Case Diary that he sent the same to the Court on 25.4.1993 itself. He also stated in his cross-examination that he has not written in the Diary that Ex.P-1 and Ex.P-10 were sent to the Judicial Magistrate Court by post. Therefore, nothing to infer that both Exs.P-1 and Ex.P-10 were sent to the Court of Judicial Magistrate by post. 14. It is seen from Exs.P-1 and P-10 that they were actually received in the Court of Judicial Magistrate on 27.4.1993 as per the seal of the Court and the initial of the Judicial Magistrate. Eventhough it is stated in the complaint Ex.P-1 that it was recorded by P.W.10 on 25.4.1993 at 10.00 a.m. and accordingly, the case was registered in crime No.138 of 1993 under Sections 341, 323, 354 and 506(ii), I.P.C., it does not stand to reason and the delay of the complaint Ex.P-1 and F.I.R. Ex.P-10 reaching the Court of Judicial Magistrate on 27.4.1993, is also not explained and though it is alleged by the prosecution that Ex.P-1 statement was made by P.W.1 at 10.00 a.m. in the Government Mohan Kumaramangalam Hospital, Salem in respect of the occurrence that took place on 24.4.1993 at 5.30 p.m., such delay is not explained properly on the prosecution side. 15. 15. It is seen from the list of witnesses enclosed with the charge-sheet that one Ravichandran, PC 1511, Ayilpatti Police Station is cited as witness to speak to the fact that he handed over the express F.I.R. to the concerned officials. The said witness has not been examined and despite the said fact, P.W.10, the Sub Inspector Police, who registered the case as per F.I.R. Ex.P-10, has stated that the complaint Ex.P-1 and FI.R. Ex.P-10 were sent through post and which also has not been recorded in the Day Book of the police station. 16. Therefore, there is very much force in the argument advanced by the learned counsel for the appellants/A1 to A3 that there is very much delay in F.I.R. Ex.P-10 as well the complaint Ex.P-1 in reaching the Court of Judicial Magistrate and such delay has not been satisfactorily explained on the side of the prosecution and as such, it is a fatal to the case of prosecution. 17. It is well settled that the F.I.R. Ex.P-10 set the law in motion and inasmuch as in this case, there have been delay of two days in the F.I.R. Ex.P-10 and the complaint Ex.P-1 reaching the Court of Judicial Magistrate, there is every possibility of the prosecution being tainted. In view of such long delay of F.I.R. Ex.P-10 and the complaint Ex.P-1 in reaching the Court of Judicial Magistrate, the trial of the case is vitiated and on that ground the conviction and sentence imposed to A1 to A3 have to be set aside being improper and erroneous approach made on the facts of the case. 18. In the result, the Criminal Appeal is allowed. The judgment of conviction dated 30.4.1999 and made in S.C.No.172 of 1995 by the Principal Sessions Judge, Salem is set aside. The appellants/A1 to A3 are acquitted from the charges levelled against them.