Judgment : Per K. N. BASHA, J. 1. The appellant is the sole accused and he has come forward with this appeal challenging his conviction and sentence passed by the learned Principal Sessions Judge, Coimbatore, in S.C.No. 127 of 2001 by the judgement dated 4.9.2001 convicting he appellant for the offence under Section 304 (ii) I.P.C. and sentencing him to undergo 12 months rigorous imprisonment and also imposing a fine of Rs.500/- in default, to undergo three months rigorous imprisonment. 2. The accused faced the trial under the following backdrop: (i) The deceased as well as e accused, P.W. 1 wee working in a estate at valparai. On 9.2.2000 there was a temple festival near the estate. P.W.1 went to the temple fetial and he was coming towards factory at 11.00 p.m. accompanied with P.Ws. 3 and 5. While they were nearing the godown of the factory, he found the deceased was quarrelling with PW.2 in respect of the mike set and the accused was also present there,. He questioned the accused and the accused informed him that the quarrel is due to mike set. While the accused intervened to separate them, the deceased, Murugesan, abused him in a filthy language by using provocative words. Thereafter the accused pulled the shirt of the deceased and pushed him down and the deceased fall on an from rod, M.O.1, resulting the bleeding injury on his left flank. The accused ran away from the scene. The injured was taken by P.W.1 and others to the Government Hospital. (ii) on 10.2.2000 at 00.10 hours, the doctor P.W.9, on examination found the deceased already died. He sent the intimation, Ex.P.4 to the police station. (iii) P.W.1 went to the police station and gave the report, Ex.P.1 to P.W.11, the head Constable, attached to the Seikalmudi outpost police station. P.W.11 registered the case in Crime No. 105 of 2000 for the offence under Section 302 I.P.C. Ex.P.7 is the First Information Report and he sent the same to the Court and the higher police officials. (iv) P.W.12, received the First Information at 3.15 a.m. on 10.12.2000 and took up investigation in this case. He went to the scene of occurrence at 4.00 a.m. and prepared the observation mahazar, Ex.P.2 and the rough sketch Ex.P.8 in the presence of witnesses. (iv) P.W.12, received the First Information at 3.15 a.m. on 10.12.2000 and took up investigation in this case. He went to the scene of occurrence at 4.00 a.m. and prepared the observation mahazar, Ex.P.2 and the rough sketch Ex.P.8 in the presence of witnesses. He also recovered M.O.1, iron rod, M.O.2, bloodstained earth and M.O.3, sample earth under Ex.P.3 in the presence of witnesses. He went to the Government Hospital at 6.00 a.m. and held inquest on the dead body of the deceased. Ex.P.9 is the inquest report. He also arranged to take photographs M.O.4 series and M.O.5 series. He sent the body for post-mortem under Ex.P.5 requisition. (v) The Doctor P.W.10 attached to the Valparai Government Hospital conducted post-mortem on 10.12.2000 at 4.00 p.m. He found the following injury : 1. A lacerated wound in the left side of the lower end of the chest 18 cm below the interior anxillary fold size 4 cm × 2 cm × 2 cm. Eyes closed limbs extended. No visible diseases seen opening of thorax and abdomen fracture of the left side 8th rib at interior axillary line. Heart weight 300 gms. Chamber contain fluid blood. Lungs weight left 500 gms Right 500 gms. Blood clots present in the injury. Hyoid bone intact. Stomach weight 300 gms. Contains partially digested food particles. Peritoneal cavity: Contains fluid blood about 500 ml. Spleen: Weight 300 gms Lacerated injury seen in the posterior aspect of the spleen. Liver: Weight 1000 gms. Surface smooth pale, C.S. congested. Kidneys: Weight 300 gms. Both surface smooth. C.S. Congested. Brain: Weight 1200 gms. Substance soft vessels normal. The Doctor P.W.10 is of the opinion that the deceased would appear to have died of injury to vital organ - spleen. Ex.P.6 is the post-mortem certificate. (vi) P.W.12, in continuation of his investigation, arrested the accused on 10.12.2000 at Solaiyar Dam bus stand. He examined P.Ws. 2 to 5 and recorded their statements. He also recovered M.O.6, blood stained shirt, M.O.7 blood strained underwear, M.O.8, blood stained dhothi worn by the deceased under Ex.P.10. On 14.12.2000 he examined the Doctor P.W.10, who has conducted the post-mortem. He received the chemical examination report, Ex.s P-13 and 14 and serologist report, Ex.P.15 apart from the post-mortem certificate Ex.P.6 and after completion of investigation filed the charge sheet against the accused on 9.1.2001 for the offence under Section 302 I.P.C. 3. On 14.12.2000 he examined the Doctor P.W.10, who has conducted the post-mortem. He received the chemical examination report, Ex.s P-13 and 14 and serologist report, Ex.P.15 apart from the post-mortem certificate Ex.P.6 and after completion of investigation filed the charge sheet against the accused on 9.1.2001 for the offence under Section 302 I.P.C. 3. The prosecution in order to prove its case examined P.Ws. 1 to 12, filed Ex.-P.1 to P.15 besides marking M.Os. 1 to 8. 4. When the accused was questioned under Section 313 Cr. P.C. in respect of the incriminating materials appearing against him, the accused has come forward with the version of total denial and stated that he has been falsely implicated in the case. 5. N. Doraisami, learned counsel appearing for the appellant as legal aid counsel vehemently contended that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence and put forward the following contentions: (i) There are material contradictions between the evidence of the eye-witnesses, P.Ws. 1 t 3 and 5 and P.W.4, another eye-witnesses has turned hostile and not supported the case of the prosecution. (ii) There is absolutely no motive for the accused to attack the deceased and as per the admitted version of the prosecution it is only the deceased quarrelled with the accused unnecessarily and also abused him in a filthy language. (iii) The accused was pushed down by the deceased at the first instance as per categorical version of P.Ws. 1 and 3 and only thereafter the accused in turn, pushed him down. 6. Per contra, J.C. Durairaj, learned Government Advocate (Crl. Side) contended that the prosecution has come forward with a clear and cogent version through the eye-witnesses, P.Ws. 1 to 3 and 5. It is submitted that the evidence of the eye-witnesses is also corroborated by the medical evidence. It is fairly submitted by the learned Government Advocate that though there are certain contradictions between the evidence of the eye-witnesses, such contradictions would not affect the main case of the prosecution. 7. I have carefully considered the rival contentions put forward by either side and also thoroughly scrutinized the entire materials available on record including the impugned judgment of conviction. 8. The prosecution placed reliance on the evidence of the eye-witnesses, P.Ws. 1 to 5. 7. I have carefully considered the rival contentions put forward by either side and also thoroughly scrutinized the entire materials available on record including the impugned judgment of conviction. 8. The prosecution placed reliance on the evidence of the eye-witnesses, P.Ws. 1 to 5. Among them P.W.4 has turned hostile and he has given a total go-by to his earlier version. Therefore, the prosecution is left with the evidence of P.Ws. 1 to 3 and 5. A perusal of the evidence of P.Ws. 1 to 3 and 5 clearly shows that they have not come forward with clear version in respect of genesis and origin of the occurrence. As rightly pointed out by the learned counsel for the appellant, it is seen that P.W.1 has stated that as if there was a quarrel between the deceased and P.W.2 and at that time, the accused intervened and as a result the deceased abused the accused in a filthy language which resulted in the pushing down of the deceased by the accused and as a result the deceased fell down on a protruding iron rod, M.O.1 resulting a bleeding injury on his left flank ultimately proved to be fatal. Whereas the categorical version of P.W.2 and P.W. 3 is to the effect that only the deceased pushed down the accused after abusing him in a filthy language and only thereafter, the accused got up and pushed down the deceased. Therefore, it is crystal clear that only the deceased is the aggressor as the deceased not only abused the accused by abusing him in filthy language but also pushed him down and further he was already quarreled with P.W.2. 9. In the light of this background, let me now consider the evidence of P.W.5. 10. As far and P.W.5 is concerned, he has given a totally different version to the effect that there was a wordy quarrel between P.W.2 and the deceased and at that time, the accused was attacking the deceased and the accused pushed down the deceased and the deceased fell down on the iron rod, M.O.1 P.W.2 also fell on the other side of the road. P.W.5 has not whispered a word about the deceased abusing the accused in a filthy language. P.W.5 went to the extent of claiming that he was also accompanied P.W.1 at the time of occurrence. P.W.5 has not whispered a word about the deceased abusing the accused in a filthy language. P.W.5 went to the extent of claiming that he was also accompanied P.W.1 at the time of occurrence. Therefore, in view of all these inconsistent version of the eye-witnesses, this Court has no hesitation to hold that the prosecution has not come forward with a clear and true version and the genesis and origin of the occurrence itself is highly doubtful. 11. Added to these infirmities, if this Court accepts the version of P.Ws. 2 and 3, then it is crystal clear that the deceased is only the aggressor as he only quarrelled with the accused and pushed down the deceased. Therefore considering all these infirmities, inconsistencies and improbabilities, this Court has no hesitation to come to the inevitable conclusion that the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt. 12. For the reasons stated above, the appeal is allowed and the conviction and sentence imposed on the appellant by the learned Principal Sessions Judge, Coimbatore, in S.C. No. 127 of 2001 dated 4.9.2001 are hereby set aside. Fine amount paid, if any, is directed to be refunded to the appellant. 13. Before parting with this appeal, this Court has to place it on record the commendable services rendered by N. Doraiswami, learned counsel appeared as legal aid counsel for the appellant and taken this Court through the entire evidence available on record meticulously and argued the matter effectively. N. Doraisawamy, learned counsel is entitled to receive the remuneration of Rs. 3,500/-from the Tamil Nadu State Legal Services authority, High Court, Chennai.