Judgment : M. Chockalingam, J. Challenge is made to the judgment dated 12.8.2009 passed by the learned III Additional Sessions Judge, Puducherry In S.C. No. 8 of 2009, whereby the sole accused stood charged, tried and found guilty of murder and awarded with life imprisonment along with a fine of Rs. 1,000/- in default to undergo simple imprisonment for three months. 2. The short facts necessary for the disposal of the case can be stated thus: (i) P.W.1 is the mother of the deceased Moorthy. P.W.3 is the brother of the deceased. On 22.2.2008, the accused came to the house and with the permission of P.W.1, took him and thereafter, both of them went to an arrack shop at Veerampattinarn. P.Ws.4 and 5 are the employees of the arrack shop. P.W.12 is the cashier in the said arrack shop. He found both the accused and the deceased were quarreling behind the arrack shop and at that time, the accused took a soda bottle and attacked him on his head. (ii) P.W.1 came to know about the same next day evening. She rushed to the arrack shop and found her son lying with the bleeding injuries. When she enquired her son, he informed her that the accused attacked him. The accused was also fund standing near her son and the accused also stated that he attacked her son. Thereafter, the accused fled away from the place of occurrence. With the help of P.W.6, the deceased was taken to the hospital in a tricycle. When he was taken to the hospital, he was declared dead. (iii) P.W.1 proceeded to the respondent police station and gave a complaint Exhibit P-1, on the strength of which, P.W.15 Sub Inspector of Police registered a case on 23.2.2008 at about 22.45 hours in Crime No. 34 of 2008 for an offence under Section 302 of the Indian Penal Code. Exhibit P-15 is the printed First Information Report. Exhibit P-1 complaint and P-15 F.I.R. were dispatched to the Court. (iv) P.W.16 Inspector of Police took up the investigation and proceeded to the spot. He also prepared observation mahazar and rough sketch. P.W.8 Photographer took the photographs of the scene of occurrence. Exhibit P-6 to P-9 are the positive prints and negatives of the scene of crime and the dead body. (iv) P.W.16 Inspector of Police took up the investigation and proceeded to the spot. He also prepared observation mahazar and rough sketch. P.W.8 Photographer took the photographs of the scene of occurrence. Exhibit P-6 to P-9 are the positive prints and negatives of the scene of crime and the dead body. The investigators conducted inquest on the dead body in the presence of Panchayatars and prepared Exhibit P-17 inquest report. (v) Thereafter, he sent the dead body for post-mortem. P.W.10 Doctor conducted postmortem and issued Exhibit P-10 post-mortem Certificate and Exhibit P-12 final opinion on Exhibit P-10, where he has opined that the deceased died of head injury. Pending investigation, the investigating Officer arrested the accused on 25.2.2008 at 7.45 hours and recorded the confession statement given by the accused voluntarily in the presence of the witnesses and the admissible portion of the same is marked as Exhibit P-4. Pursuant to the confession statement, the accused produced M.O.2 soda bottle and the same was seized under a cover of mahazar Exhibit P-5. Thereafter/the accused was sent for judicial remand. (vi) All the Materials Objects were sent for chemical analysis and the chemical Examiner’s reports are marked as Exhibit P-11 and P-19 respectively. On completion of investigation, final report is filed against the accused for the offence under Section 302 of the Indian Penal Code. 3. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. In order to substantiate its case, the prosecution examined 16 witnesses viz. P.Ws.1 to 16 and relied on 19 documents viz. Exhibits P-1 to P-19 and also relied on M.Os. 1 to 5. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advances by either side and scrutinized the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advances by either side and scrutinized the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, the prosecution relied on the evidence adduced in respect of motive, dying declaration alleged to have been given by the deceased to his mother, last seen theory spoken to by P.W.1 mother and also recovery of weapon. Learned counsel would urge that the prosecution has miserably ailed to prove anyone of these aspects to bring the guilt of the accused. According to the prosecution, the occurrence had taken place at about 10.30 am. On 22.2.2008. Though the occurrence had taken place in the arrack shop, nobody has informed to anybody till the evening of 23.2.2008. 6. Learned counsel added further that according to P.W.1, she came to know about the incident only on 23.2.2008. Immediately, she rushed over there, where she found the deceased was lying with bleeding injuries. When she questioned the deceased, he informed her that the accused beat him. According to her, the accused was standing near the deceased. If the occurrence had taken place on the morning hours of 22.2.2008, there was no necessity for the accused to stand nearby the deceased for nearly thirty hours and there was no need for the deceased to remain there for nearly thirty hours. It is quite unnatural that both of them were available for thirty hours in the place of occurrence. 7. Learned counsel added further that two of the witnesses examined as P.Ws.4 and 5, who are employees of the arrack shop, have turned hostile. P.W.12 claimed to be a Cashier of the arrack shop, though gave statement that the accused hit the deceased with soda bottle, he has turned hostile in that regard. Even as per the prosecution, after the occurrence at 10.30 a.m. on 22.2.2008, the deceased was taken to the Primary Health Centre and treatment was given by the Doctor on the whole day. Neither the Doctor was examined nor any medical opinion was canvassed. No documentary evidence was produced to support the prosecution. Even as per the prosecution, after the occurrence at 10.30 a.m. on 22.2.2008, the deceased was taken to the Primary Health Centre and treatment was given by the Doctor on the whole day. Neither the Doctor was examined nor any medical opinion was canvassed. No documentary evidence was produced to support the prosecution. The presumption is that had they been produced before the Court, it would go against the prosecution. 8. Learned counsel added further that in the instant case, according to the prosecution, the deceased gave dying declaration to his mother. A reading of Exhibit P-1 report does not reveal that the deceased was found conscious. On the contrary, the evidence was put forth in such a way which did not give any weightage to the alleged dying declaration at all. , the evidence was put forth in such a way which did not give any weightage to the alleged dying declaration at all. Ely because the accused had taken the deceased on the morning hours of 22.2.2008, it cannot be inferred that it was the accused. Who committed the offence. 9. Learned counsel, attacking the evidence in respect of, recovery of soda bottle, submitted that it is quite unnatural that the soda bottle was available behind the arrack shop for a number of days and thereafter, the accused produced the same as weapon of crime. It is quite unbelievable and unnatural. According to the learned counsel, the prosecution has miserably failed to prove its case with any believable and acceptable evidence. The Trial Judge should have acquitted the accused, but has taken an erroneous view and hence the accused is entitled for acquittal in the hands of this Court. 10. This Court heard the learned Additional Public Prosecutor on the above contentions. 11. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Moorthy, the son of P.W.1, who was lying with bleeding injuries was taken to the Hospital, where he was declared dead. Following the case registered by P.W.15, he Sub Inspector of Police in Crime No.34 of 2008 for the offence under Section 302 of the Indian Penal Cods, P.W.16 Inspector of Police took up the investigation and proceeded to the spot and prepared Observation mahazar and sketch and thereafter, sent the dead body for postmortem. Following the case registered by P.W.15, he Sub Inspector of Police in Crime No.34 of 2008 for the offence under Section 302 of the Indian Penal Cods, P.W.16 Inspector of Police took up the investigation and proceeded to the spot and prepared Observation mahazar and sketch and thereafter, sent the dead body for postmortem. The Doctor, who conducted the post-mortem, gave opinion that the deceased died of head injury. Insofar as this part of evidence is concerned, there may not be any dispute that the deceased died due to homicidal violence. 12. As could be seen from the materials available on record, the Court is of the considered opinion that the prosecution has miserably failed to prove its case beyond any reasonable doubt by placing or proving necessary evidence as required in law. Admittedly, P.W.1 has only stated that both the accused and the deceased left the house in the morning hours of 22.2.2008. According to the prosecution, the occurrence had taken place in the arrack shop, where they consumed arrack and they were under intoxication. 13. Though P.Ws.4, 5 and 12 were examined as to the occurrence, all of them have turned hostile. At this juncture, it is pertinent to point out that the occurrence had taken place, according to the prosecution, in the arrack shop. If really the occurrence had taken place of 22.2.2008, in which the accused had hit the deceased on his head, after such occurrence had taken place, immediately he would have informed the same to the mother of the deceased and the matter would have been informed to the police. But on the contrary, P.W.1 came to know about the same on 23.2.2008 in the evening hours. After knowing the same, she went to the arrack shop, where she found her son lying with bleeding injuries along with the accused. If really the occurrence had taken place on 22.2.2008, both of them would not continue to remain in the same shop for nearly thirty hours.14. Acco0rding to the prosecution immediately after the occurrence on 22.2.2008 at 10.30 a.m. the deceased was taken to the hospital and he was given treatment in the Primary Health Centre, which remains to be proved. To prove the said fact, the prosecution has not brought forth any evidence in that regard. The prosecution has not examined the Doctor, who gave treatment or produced any wound certificate. To prove the said fact, the prosecution has not brought forth any evidence in that regard. The prosecution has not examined the Doctor, who gave treatment or produced any wound certificate. Had the documents been produced, it can be seen how the occurrence had taken place. The non production of those evidence would hit the prosecution case: The presumption is that if they were produced, it would be against the prosecution. 15. Such a presumption could be drawn even insofar as dying declaration is concerned. The Court is unable to agree with the same. There are clear variance between the F.I.R. and the evidence of P.W.1 and hence on that ground, as rightly pointed out by the learned counsel for the appellant, it has got to be rejected. Merely because two persons left the place, it cannot be stated that one is responsible for the other’s injury after long interval of time. 16. Apart from the above, recovery of soda bottle behind the arrack shop after a lapse of time is unnatural and unbelievable. It can be well settled that the prosecution has not brought forth the required evidence, which would clearly indicate that the prosecution has not proved its case beyond any reasonable doubt. 17. In the result, the appeal is allowed. The judgment of conviction and sentence imposed on the appellant/accused in S.C.No. 8 of 2009 on the file of the III Additional Sessions Judge. Puducherry is set aside. It is submitted that the appellant is on bail. Hence bail bond, if any, executed shall stand terminated forthwith. Fine amount, if any, paid, shall be refunded to him.