Judgment : 1. This Criminal Appeal is filed against the judgment dated 30.07.2008 passed in SC.No. 251/2008 by the learned I Additional District and Sessions Judge (PCR) Thanjavur, thereby convicting and sentencing each of the Appellants/A1 and A2 for the offence under Sections 324 of IPC to undergo three years Rigorous Imprisonment and to pay a fine of Rs. 2000/- each, in default to undergo Simple Imprisonment for six months. 2. The case of the Prosecution is as follows :- There are totally four accused persons in this case. The Appellants are A1 and A2 respectively. A1 to A3 are the residents of Komalavallipettai and A4 is the resident of Muthupillaimandapam. A1 to A3 are brothers and A4 is their uncle. PW.1 defacto complainant Sivakumar was working as a plumber under one Chandrasekaran, President of the Village. Since he was not getting proper wages, Sivakumar did not go to work with Chandrasekaran. Agitated over the same, the said Chandrasekaran has told A1 to A3 not to allow Sivakumar to work anywhere. While so, on 25.12.2006 in the morning hours, while Sivakumar was engaged in a centring work at Udhayam Nagar, A1 and A3 questioned Sivakumar and said how he could work in the place where they are supposed to work and also threatened him to kill him. Thereafter, at 7.50 p.m. on the same day, all the accused assembled in front of the house of the witness Sivakumar with deadly weapons like aruval, iron pipe and rod and A1 cut the witness Sivakumar on his head and A4 attacked Sivakumar on his left forearm. When the deceased Dhanapal intervened, A2 attacked him on his head with an iron pipe and also attacked one Chetty on the head with iron pipe. A4 attacked Chetty on the left hand with the iron rod. In view of the injuries sustained, the Dhanapal succumbed to injuries on 28.12.2006. Hence, a final report was filed against the accused for the offences under Sections 324, 302 and 506 (ii) of IPC. 3. The above final report was taken on file as PRC.No. 43/2007 by the learned Judical Magistrate, Kumbakonam, who committed the case to the Principal Sessions Court, Thanjavur. The case was taken on file in SC. No. 251/2008 by the learned I Additional District and Sessions Judge (PCR) Thanjavur and necessary charges were framed. 3. The above final report was taken on file as PRC.No. 43/2007 by the learned Judical Magistrate, Kumbakonam, who committed the case to the Principal Sessions Court, Thanjavur. The case was taken on file in SC. No. 251/2008 by the learned I Additional District and Sessions Judge (PCR) Thanjavur and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined PW.1 to PW.23 and also marked Exs. P1 to P 28 and Mos.1 to 4. 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused have come with the version of total denial and stated that they have been falsely implicated in this case. On the side of the defence, Ex.D1 to D5 were marked. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr. M. Karunanithi, the learned counsel for the Appellants contended that the Trial Court was not justified in coming to the conclusion that the Appellants are aggressors, in the absence of explanation for the injuries received by the accused. It is pointed out that there was no disclosure of injuries inflicted on the accused in the First Information report or in the course of investigation. There was no scope to cause such injuries, if a sudden attack was launched by the accused with arms. According to the learned counsel, the Prosecution has suppressed the real happenings. 8. The learned counsel for the Appellants further contended that there is an unexplained and undue delay in preferring the complaint and sending the same to the jurisdictional Magistrate Court. There is also unexplained delay in sending the material documents and material objects to the Magistrate Court. The learned counsel drew the attention of this Court to the material contradictions and improvements in the evidence of the eye witnesses and contended that the Prosecution suppressed the genesis and origin of occurrence and the witnesses examined by the Prosecution have given a distorted version. The learned counsel drew the attention of this Court to the material contradictions and improvements in the evidence of the eye witnesses and contended that the Prosecution suppressed the genesis and origin of occurrence and the witnesses examined by the Prosecution have given a distorted version. It was also submitted that in law, the defence has simply to show that his defence plea was probable and it was not incumbent upon the accused persons to prove their case to the hilt. 9. On the other hand, Mr. K. Anbarasan, the learned Government Advocate for the State made submissions in support of the judgment of the Trial Court. 10. After examining the evidence placed on record, I find sufficient weight in the above submissions of the learned counsel for the Appellants. The evidence of PW.20, the Head Constable, who registered the First Information Report Ex.P19 on 26.10.2006 at 9.30 a.m. on the complaint given by PW.1, has admitted that he also registered a First Information Report on the same day in Cr.No.261/2006 on the complaint given by A1. It is admitted by PW. 20 that in Ex.P19, First Information Report, there is no mention about the date and time of the occurrence. His evidence indicated that though he received information even on 25.10.2006 in the night from the Government Hospital, however, he had recorded the statement of PW.1, only on the next day morning. His explanation that he examined PW.2, the father of PW.1, but he did not record any statement, as he intended to get statement from his son, is not a tenable and acceptable reason. 11. As per the case of the Prosecution, a written complaint was lodged by PW.1 and in his chief examination, PW.1 has affirmed to the said fact. But, in the cross examination, he gave a different version that his statement was recorded by PW.20 Head Constable. Whereas PW.20 denied having recorded statement and he asserted that a written complaint was given by PW.1. The said contradiction is material and vital, as the earliest version given even on 25.10.2006 is suppressed by the Police, as is evident from the testimony of PW.20. Even with regard to father’s name of A1 and A2, it had been wrongly mentioned. Whereas PW.20 denied having recorded statement and he asserted that a written complaint was given by PW.1. The said contradiction is material and vital, as the earliest version given even on 25.10.2006 is suppressed by the Police, as is evident from the testimony of PW.20. Even with regard to father’s name of A1 and A2, it had been wrongly mentioned. Though in the First Information Report, it is specifically alleged that one Chandrasekaran, Ex-President of Panchayat Union instigated the accused persons to attack the Prosecution witnesses, no investigation has been done on this aspect and the Investigating Officer has not even examined him. 12. From the above said circumstances, it appears that the complaint Ex.P1 was the result of consultation and manipulation and that is why no attempt was made to examine Chandrasekaran, in spite of his presence at the time of occurrence. It has to be pointed out that PW.1 has stated in the complaint that the attack was made by the accused at the instigation of the said Chandrasekaran. The mere fact that the First Information Report of the defence side was also lodged with a delay on the morning of next day would not lead to an inference that the First Information Report of the Present case was lodged with all promptness and there was no possibility of any consultation or manipulation. It was for the Prosecution to lead convincing evidence to show that there was no undue delay in lodging the First Information Report which in the present case is lacking. After examining the record, I find that the explanation given by PW.20 regarding delay in lodging the First Information Report, apart from a development at the trial, is not at all convincing. 13. The presence of PW.8 wife and PW.9 the sister in law of the deceased Dhanapal is not mentioned either in the First Information Report or in the inquest report and they have been introduced as witnesses after deliberation. The witnesses say that there was a pool of blood at the place of occurrence, but Ex.P2 observation mahazar does not show any blood stain whereas, interestingly PW.3 Raja, an interested witness would state that blood stains was found in found in front of A1’s house. The above infirmities in the Prosecution case has assumed great importance and significance on account of the evidence being of partisan character. 14. The above infirmities in the Prosecution case has assumed great importance and significance on account of the evidence being of partisan character. 14. The evidence of that Prosecution witnesses is further rendered vulnerable on account of non explanation of injuries suffered on the defence side. In defence, accused persons have marked Ex.D1 and E.X.D2 accident registers relating to A3 Muthu and A1 Ramu respectively. During the cross examination of PW.16 Dr. R.Karthikeyan, Medical Officer attached to the Government Hospital, Kumbakonam stated that he had examined A1 Ramu at 9.40 p.m. on 25.12.2006 and found a contusion on the right side clavicle region and on X-ray examination, it was found to be fracture of right clavicle. A3 Muthu had sustained a cut injury on skull and both were admitted as inpatients. PW.16 categorically stated that injuries on the afore said persons could be caused in the manner as alleged by them. 15. It has to be seen whether injuries on the defence side have been satisfactorily explained. It is pertinent to note that though First Information Report from the Prosecution side was lodged with a great delay on the next day at 9.30 a.m. absolutely no mention has been made with regard to the injuries sustained by the aforesaid two accused. Even in their statements recorded under Section 161 of Cr.PC, no explanation whatsoever has been given by the witnesses regarding the injuries on the accused. It was for the first time in the Trial Court the PW.1 and PW.2 in their cross examination had admitted that the accused were also admitted in Hospital. But, they did not state as to how they sustained those injuries. It would thus appear that both the prosecution witnesses are lying on a most crucial and important factor. In any view of the matter, no explanation whatsoever has been given with regard to the injuries of A1 and A3. 16. In this context, it is relevant to refer to the decision of the Honourable Supreme Court reported in 2004-7-SCC-408 (Dashrath Singh Vs. State of UP) wherein it is held that non explanation of serious injuries sustained by the accused in the same incident assumes importance and it may lead to the inference that the Prosecution has suppressed some of the relevant details concerning the incident. State of UP) wherein it is held that non explanation of serious injuries sustained by the accused in the same incident assumes importance and it may lead to the inference that the Prosecution has suppressed some of the relevant details concerning the incident. It is held thus :- “Ultimately, the factum of non explanation of injuries is one circumstance which has to be kept in view while appreciating the evidence of the Prosecution witnesses. In case the Prosecution version is sought to be proved by partisan or interested witnesses, the non explanation of serious injuries may prime facie make a dent on the credibility of their evidence. So also, where the defence version accords with probabilities to such an extent that it is difficult to predicate which version is true, then the factum of non explanation on the injuries assumes greater importance.” 17. The injures of serious nature received by the accused in the course of the same occurrence in this case would indicate that there was a fight between both the parties. In such a situation, the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the first attack assumes great importance in reaching the ultimate decision. I have already pointed out above that from the evidence produced from the Prosecution side, it is highly doubtful that the incident had occurred in the manner alleged by the Prosecution witnesses. The non explanation of injuries on the accused, which is of serious nature indicating that the Prosecution witnesses, who made the attack, was armed with sharp edged weapon and the attack was made on the skull of the accused, makes a big hole in the case, which could not be covered by the Prosecution, thereby making its case doubtful. 18. There is yet another circumstance, which creates a reasonable doubt in the veracity of the Prosecution story. Though a complaint has been given by accused persons on 26.12.2006 at 9.00 p.m. that is even before the complaint lodged by PW.1, yet no attempt was made to investigate the case properly and the Investigating officer has not followed the Police Standing Orders 588A and no explanation is forthcoming from PW.23 Investigating Officer despite question has been put to him by court. 19. 19. For the reasons stated above, the conclusions arrived at by this court are that it is not established beyond reasonable doubt that incident ad occurred as projected by the Prosecution; that the evidence of the Prosecution witnesses were enimical and partisan and their evidence does not inspire confidence; that the accused Ramu and Muthu sustained injuries during the course of the incident; that their injuries have not been satisfactorily explained and that the First Information Report of the present case has been lodged with undue delay and as a counter blast to the complaint given on the accused side and that the Prosecution is guilty of suppressing the genesis and origin of occurrence and in presenting a distorted version. 20. The resultant effect of the above conclusions is that the impugned judgment of conviction and sentence cannot be sustained. 21. In the result, this Criminal Appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellants are acquitted of the charges leveled against them. The bail bond if any executed by them shall stand cancelled and the fine amount if any paid by them shall be refunded to them.