Mr. T. MATHIVANAN, J. JUDGMENT 1. This memorandum of criminal appeal is directed against the order of acquittal of the charge under Section 302 of I.P.C. recorded by the learned I Additional Sessions Judge (Protection of Civil Rights), Thanjavur, dated 18.1.2010 and made in the Sessions Case in S.C.No.73 of 2009. 2. The State is the appellant, whereas the accused 1 to 4 are the respondents. 3. The Inspector of Police attached to Papanasam Police Station (Thanjavaur District) had laid a final report on 31.12.2007 on the file of the District Munsif-cum-Judicial Magistrate Court, Papanasam, as against the respondents 1 to 4 herein alleging that they had committed the offences punishable under Section 302 and 302 r/w 34 of I.P.C. 4. After the completion of preliminary enquiry, the case was committed to the Court of Sessions by the learned District Munsif-cum-Judicial Magistrate, Papanasam and after the appearance of the respondents/accused, the learned I Additional Sessions Judge (PCR), Thanjavur Sessions Division had framed the following two charges. a. As against the first respondent/A1 under Section 302 of I.P.C. b. As against the respondents/accused 2 to 4 under Section 302 r/w 34 of I.P.C. 5. When the ingredients of the charges were explained and questioned all the four respondents/accused had pleaded innocence and wanted to face the trial and therefore, they were put on trial. 6. In order to substantiate their case, the prosecution has totally examined 21 witnesses and during the course of their examination, Exs.P.1 to P.16 and the material objects ranging from M.Os.1 to 13 were marked. The Gravamen of the Prosecution Case: 7. That on 3.10.2007 at about 11.45 hours when the deceased Murthy @ Venkatachalam was conversing with his brother Senthil (P.W.1) in the railway station road at Papanasam, in front of Muniyandi Vilas Hotel, all the accused came there and due to previous enmity because of taking part in the Papanasam New Bus Stand cycle stand auction had picked up quarrel with the deceased and on account of the common object of committing the murder of the deceased, the first respondent/A1 had fisted on his left cheek, while the third respondent/A3 had kicked him. When the deceased had fallen on the road, the fourth respondent had mounted on his chest and fisted on his left cheek. 8. When the deceased had fallen on the road, the fourth respondent had mounted on his chest and fisted on his left cheek. 8. When the deceased Murthy @ Venkatachalam was trying to get up after pushing away the fourth respondent, the first respondent/A1 had caught hold him and both the first respondent/A1 and the deceased had rolled over and thereafter, the deceased had managed to get up and proceeded towards South. 9. While so, the second respondent/A2 had pushed him down on the ground making the deceased to fall on the road in front of Nice Tailor shop. 10. When he had fallen down, the third and fourth respondents/accused 3 and 4 had caught hold his right and left hands respectively. The second respondent/A2 had also caught hold of his both legs so as to facilitate the first respondent/A1 to kill him with a cement concrete stone. The first respondent/A1 had lifted the cement concrete stone and dropped on the head of the deceased repeatedly, which resulted in his instantaneous death. 11. When P.W.1 being the brother of the decased and P.Ws.2 and 3 being the friends of P.W.1 were tried to rescue the deceased, they were threatened with dire consequences by the respondents/accused persons and after the completion of the occurrence, the accused persons had gone away. 12. Then P.W.8 came there and on the narration of P.W.1, P.W.8 Kaliamurthy reduced the same into writing and both of them had presented that complaint (Ex.P.1) to P.W.21. P.W.21 Inspector of Police attached to Papanasam Police Station had received that complaint on 12.15 a.m on 4.10.2007. He immediately after the receipt of that complaint had registered a case in Papanasam Police Station Cr.No.201 of 2007 under Sections 342 and 302 r/w 34 of I.P.C. The printed first information report was marked as Ex.P.11. 13. Thereafter, the complaint Ex.P.1 and the first information report Ex.P.11 were sent to the learned District Munsif-cum-Judicial Magistrate through P.W.19. Subsequently, P.W.21 had been to the place of occurrence, inspected the same and prepared an observation mahazar Ex.P.2 and rough sketch Ex.P.12 in the presence of P.W.9 and P.W.10. 14. Then, he had also seized the cement concrete stone M.O.1, which was said to have been used by the first accused to kill the deceased and other material objects viz., blood stained earth and some unblood stained earth etc. 14. Then, he had also seized the cement concrete stone M.O.1, which was said to have been used by the first accused to kill the deceased and other material objects viz., blood stained earth and some unblood stained earth etc. ranging from M.O.8 to M.O.13 under a seizure mahazar Ex.P.13. Thereafter, he had also started conducting of inquest on the dead body of the deceased at 2.30 p.m. and completed the same at 5.30 p.m. in the presence of Panchayatadars and prepared an inquest report Ex.P.14. Then the dead body was sent to Government hospital for post mortem examination through P.W.20. 15. P.W.14 Dr. Rajmohan attached to Papanasam Govt. Hospital had conducted post mortem examination on the dead body of the deceased. While so, he had found the following external as well as internal injuries on the dead body as under: “External Injuries: 1. 5 x 1 x 4 cm laceration just below left eye. 2. 8 x 2 x 1 cm lacerated wound in the left forehead. 3. 7 x 2 x 1 cm laceration near the 2nd injury. 4. 11 x 3 x 2 cm lacerated wound in the right parietal region. Head deformed, crepitation felt over the cranium. Internal Examination: Thoax: no rib fracture, heart – 300 gms. Chambers emply. Both lungs normal. Hyoid bone intact. Abdomen – uniform, level of diaphragm normal. Stomach distended with semi digested food. Liver – 1600 gms, firm spleen 100 gms, firm, kidney – normal, small intestine normal. Large intestine distended with gas, bladder empty. Opening of Head: 11 x 3 x 2 cm lacerated wound in the right parietal region with (nc) hematoma extending from right frontal to right temporo occipital region. Ring fracture of skull extending from frontal temporal and occipital region. Clotted blood in the dura matter of right parietal region. Laceration 4 x 5 x 2 cm in the right fronto parietal lobe with 5 ml of clotted blood. 15 ml of clotted blood present in the base of skull. Laceration 4 x 2 x 1 cm left temporal lobe. Spinal column intact.” 16. After the completion of his examination, he had issued a post mortem certificate Ex.P.13, wherein he has opined that the deceased would appear to have died of injury to vital organ such as brain and due to haemorrhagic shock 11 to 12 hours prior to autopsy. 17. Spinal column intact.” 16. After the completion of his examination, he had issued a post mortem certificate Ex.P.13, wherein he has opined that the deceased would appear to have died of injury to vital organ such as brain and due to haemorrhagic shock 11 to 12 hours prior to autopsy. 17. Thereafter, P.W.21 had examined witnesses and recorded their statements and after the completion of the investigation he had laid a final report against the respondents/accused before the District Munsif-cum-Judicial Magistrate Court, Papanasam, as afore stated. 18. When the incriminating circumstances arising out of the testimonies of the prosecution witnesses were put to the respondents/accused during the course of the proceedings under Section 313(1)(b) Cr.P.C., they replied that they had nothing to do with the allegations levelled against them and that this case was foisted against them. 19. Though they had stated that they were going to examine the witnesses on their part, nobody was examined and no documentary evidence was also adduced. With the evidence of P.W.21, the prosecution has closed its side. 20. On evaluating the evidences both oral and documentary, the learned Additional Sessions Judge (PCR) had found the respondents/accused 1 to 4 not guilty and therefore, they were acquitted of the charges under Section 302 and302 r/w 34 of I.P.C. 21. Challenging the order of the acquittal, the State represented by the Inspector of Police, Papanasam Police Station has preferred this present appeal. 22. Heard Mr. C. Mayil Vahana Rajendran, learned Additional Public Prosecutor appearing for the appellant and Mr. M. Karunanithi, learned counsel appearing for the respondents/accused. 23. Before we go into the merits of the case, we would like to highlight that the prosecution witnesses 4 to 7, 9 to 11, 13 and 15 have not supported the case of the prosecution as they have turned hostile. 24. Barring their evidences, the remaining witnesses P.Ws.1 to 3, who claim to be the eye witnesses and P.W.8, who is the scribe of the complaint Ex.P.1 and the testimonies of P.W.12 are available. 25. Apart from this, the testimonies of official witnesses, i.e., P.W.14 Post Mortem Dr. Rajmohan and other official witnesses P.W.16 and P.W.21 are also available. 26. 24. Barring their evidences, the remaining witnesses P.Ws.1 to 3, who claim to be the eye witnesses and P.W.8, who is the scribe of the complaint Ex.P.1 and the testimonies of P.W.12 are available. 25. Apart from this, the testimonies of official witnesses, i.e., P.W.14 Post Mortem Dr. Rajmohan and other official witnesses P.W.16 and P.W.21 are also available. 26. We have perused the judgment of the trial court and found that the learned trial Judge has come to the conclusion that the testimonies of P.Ws.1 to 3, as per the case of prosecution being the occurrence witnesses are not sufficient to connect the respondents/accused with the criminality. 27. However, the learned Additional Public Prosecutor has adverted to that the learned trial Judge had failed to weigh their testimonies with proper care and caution. 28. He has also submitted that the learned trial Judge has not assigned any reason for disbelieving the first information Ex.P.1 which was lodged before P.W.21 by P.W.1 accompanied by P.W.8 immediately after the occurrence. 29. He has also submitted that the testimonies of P.Ws.1 to 3 are cogent, convincing and corroborate with each other. However, their testimonies were discarded by the learned trial Judge for the reasons best known to him. 30. He has maintained that the learned trial Judge has not properly explained as to how the medical evidence adduced by P.W.14 and the post mortem report under Ex.P.3 were not fully corroborated by the evidence of P.Ws.1 to 3. 31. On the other hand, the learned counsel appearing for the respondents/accused has submitted that the learned trial Judge has properly appreciated and weighed the testimonies of prosecution witnesses and has come to the correct conclusion that the prosecution has miserably failed to bring home the guilt of the respondents/accused 1 to 4 and therefore, the judgment of the trial court need not be disturbed as the interference of this Court does not require. 32. We have considered the submissions made by the learned Additional Public Prosecutor as well as the learned counsel appearing for the respondents. 33. Though P.Ws.1 to 3 have claimed to be the eye witnesses, the testimony of P.W.2 does not support the case of the prosecution as he has stated that while he was putting the cycle on stand everything was completed and he had seen the deceased lying on the ground with bleeding injuries on his head. 34. 33. Though P.Ws.1 to 3 have claimed to be the eye witnesses, the testimony of P.W.2 does not support the case of the prosecution as he has stated that while he was putting the cycle on stand everything was completed and he had seen the deceased lying on the ground with bleeding injuries on his head. 34. P.Ws.1 to 3 have not properly explained as to what made them to go to Papanasam at 11.45 p.m. for the purchase of diesel while a diesel shop is available in the nearby place. 35. Further, P.W.1 is none other than the younger brother of the deceased, whereas P.Ws.2 and 3 are his friends. According to the case of prosecution that at about 11.45 p.m. on 3.10.2007 while P.Ws.1 to 3 were returning to their home after purchasing the diesel, in front of the Muniyandi Vilas Hotel, P.W.1’s brother Murthy @ Venkatachalam, who is the deceased herein, was standing there and on seeing him, P.W.1 had told P.Ws.2 and 3 that he wanted to go to see his brother. 36. While so, A1 to A4 came there. The first respondent/A1 had asked him “eP vd;dlh bghpa Msh” while saying so, he had fisted over his face. While the third respondent had kicked him and on receiving that blow, the deceased had fallen down. When he was trying to get up the fourth respondent/A4 sat on the chest of the deceased and slapped on his cheek. The deceased pushed him off away and got up and subsequently, he was trying to proceed further, but the fourth respondent/A4 had not allowed him to go away. 37. While so, the first respondent/A1 Senthil had caught hold him and rolled along with the deceased on the ground. Thereafter, the deceased got up and proceeded towards South. While so, the second respondent/A2 had pushed the deceased down in front of the Nice Tailoring shop and on account of this reason, the deceased had fallen on his back, while the other accused persons, viz., A2 to A4 had caught hold of his legs and hands, the first respondent/A1 had lifted M.O.1 Cement Concrete Stone , which was found lying there and dropped it over his head and on receiving the head injury, the deceased had died on the spot instantaneously. 38. When the occurrence was taken place all the three witnesses were simply watching the incident. 38. When the occurrence was taken place all the three witnesses were simply watching the incident. Neither P.W.1 nor P.W.2 or P.W.3 were trying to rescue the deceased. The conduct of P.Ws.1 to 3 seems to be unusual and therefore, their presence in the place of occurrence is doubted and further on a combined reading of the evidences of P.Ws.1 to 3 along with the evidence of P.W.8, who is the scribe the complaint, we find a lot of infirmities and contradictions between their evidences. 39. As afore stated, including P.W.1 there were three witnesses. On the other hand, the respondents, as per the case of the prosecution, they were not armed with any deadly weapons. In spite of this, P.Ws.1 to 3 have not properly explained as to why they were not making any attempt to save the deceased. 40. With regard to the lodging of the complaint, P.W.1 says that the police people after lodging of the complaint came to the place of occurrence on the next day. On perusal of Ex.P.1 complaint, it appears that it was received by P.W.21 Inspector of Police at 00.15 a.m on 4.10.2007 and soon after the receipt of the complaint he had also registered the case in Cr.No.201 of 2007 under Section 302of I.P.C. 41. The first information report Ex.P.11 also reveals the same fact. However, it appears that these two documents, viz., Ex.P.1 and Ex.P.11 were reached the learned Judicial Magistrate, Papanasam, at 4.40 a.m. on 4.10.2007 as it is seen from the evidence of P.W.19, who had taken Ex.P.1 and Ex.P.11 to the Judicial Magistrate Court No.2. The occurrence place is situated just one kilometre away from the police station. 42. He has also stated that at 4.00 a.m. he had been to the house of the learned Judicial Magistrate and handed over the Ex.P.1 and Ex.P.11. 43. P.W.8 says that he came to the place of occurrence along with others and he was asked to write a complaint and therefore, he had written the complaint. He would further state that at about 12.00 midnight he came to the place of occurrence and thereafter, all the villagers went to the police station and they were also enquired by the police people. 44. He would further state that at about 12.00 midnight he came to the place of occurrence and thereafter, all the villagers went to the police station and they were also enquired by the police people. 44. According to him, when he along with other villagers came to the place of occurrence, already the police people were present there and the witnesses P.Ws.1 to 3 were also present. But he is not able to say as to how the police people came to the place of occurrence before lodging the complaint and as to who had lodged the complaint prior to his lodging of complaint. He would further state that after half-an-hour he went to the police station along with others. 45. In his cross examination, P.W.21 Inspector of Police has stated that neither in the complaint Ex.P.1, dated 4.10.2007 nor in their respective statements, which were recorded by him under Section 161(3) Cr.P.C., P.Ws.1 to 3 have not told that for what purpose they went to Papanasam. Further, he has also stated that they never had stated that they were threatened by the respondents. 46. During the course of his investigation, he came to know that the deceased had been selling liquor near Papanasam railway gate and on this score, there was previous enmity with other liquor sellers. 47. In his cross examination, he has also stated that no reference was available in his diary to substantiate the fact that P.W.1 came to the police station along with other persons. Apart from this, the arrest of the respondents/A1 to A4 was not satisfactorily proved. 48. Besides this he has also admitted in his cross examination that when he had examined P.W.14 Dr. Rajmohan, who had conducted the post mortem examination M.O.1 Cement Concrete Stone was not shown to him. But he has also not obtained any explanation from P.Ws.1 to 3 during the course of his investigation as to why they had gone to Papanasam at 12.00 midnight. 49. It is significant to note here that P.W.21 being the Inspector of Police had received the complaint under Ex.P.1 and also registered the case. Since he being the officer, who had registered the case, he should not have taken up the investigation. Even if he happens to take up the investigation, with the permission of his higher authorities, investigation should have been handed over to some other competent police officer. Since he being the officer, who had registered the case, he should not have taken up the investigation. Even if he happens to take up the investigation, with the permission of his higher authorities, investigation should have been handed over to some other competent police officer. Hence, the investigation taken up by P.W.21 appears to have been tainted with embellishment. 50. As we have discussed in the opening paragraphs, the presence of P.Ws.1 to 3 at the time of occurrence has been shrouded with moonshine and since their presence is doubted, it is incumbent on the part of the prosecution to dispel the doubt. However, the prosecution has not satisfactorily proved the presence of P.Ws.1 to 3 at the place and at the time of occurrence. 51. Apart from this, as afore stated, the conduct of P.Ws.1 to 3 seems to be unusual. We are in agreement with the conclusion of the trial Court to the effect that P.Ws.1 to 3 would not have present in the place of occurrence and witnessed the occurrence. 52. Further, since the other independent witnesses, viz., P.Ws.4 to 7 and seizure mahazar witness P.W.9 and observation mahazar witness P.W.11 have turned hostile, the testimonies of P.Ws.1 to 3 are left uncorroborated and unsupported. 53. The evidence of P.W.12, who has spoken about the previous enmity between the deceased and the respondents has also not been supported by any other witnesses. Apart from this, since P.W.21 being the Inspector of Police, attached to Papanasam Police Station, happened to register the case, he is not supposed to take up the investigation. 54. Keeping in view of all the infirmities and conflictions as well as the contradictions between the testimonies of prosecution witnesses, we are of the considered view that the learned trial Judge has come to the correct conclusion, which resulted in the acquittal of the respondents 1 to 4 in respect of the charges under Sections 302 and 302 r/w 34 of I.P.C. Therefore, the judgment of acquittal recorded by the learned trial Judge does not require interference of this Court. 55. Further, we do not find any reasons to interfere with the judgment of acquittal recorded by the learned trial Judge. 56. In the result, the criminal appeal is dismissed confirming the judgment of acquittal recorded by the learned trial Judge. Appeal dismissed.