JUDGMENT : 1. The accused Nos.1 to 6 have come up with this Criminal Appeal challenging their conviction and sentence imposed by the learned Principal Assistant Sessions Judge, Thanjavur, in S.C.No.18 of 2003, dated 03.09.2007. 2. The Trial Court framed as many as four charges against the accused, as detailed below. Charge No. Accused No. Penal Provisions 1 1 to 6 148 IPC 2 1 to 6 307 r/w. 149 IPC 3 2, 3 & 4 326 IPC 4 1, 3, 5 & 6 324 IPC 3. The Trial Court convicted the accused and sentenced them, as detailed below:- Accused Conviction Recorded Sentence Imposed A1 to A6 U/s. 148 r/w. 149 IPC Each of them to undergo two [2] years simple imprisonment. U/s. 324 r/w. 149 IPC Each of them to undergo two [2] years simple imprisonment. U/s. 326 r/w. 149 IPC Each of them to undergo ten [10] years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo one [1] year rigorous imprisonment. U/s. 307 r/w. 149 IPC Each of them to undergo ten [10] years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo one [1] year rigorous imprisonment. The substantive sentences of imprisonment were ordered to run concurrently. 4. The brief facts of the prosecution are as follows: 4.1. The accused are same family members. There was enmity between P.W.1's family and Accused No.1's family over the property. On 13.03.2000, at 08:00 a.m., P.W.1, sent P.W.7 to work in his field. When P.W.7 went to the field of P.W.1, the accused came in bullock cart through the land of one Ganapathy, brother of P.W.1, Anna Durai. It was questioned by P.W.7. The accused assaulted P.W.7 with hands and stick. P.W.7 immediately informed the same to P.W.1. P.W.1 along with P.W.2 and P.W.3, in order to question the accused as to why they assaulted P.W.7, proceeded to the place of the accused. At that time, the accused came with Aruval. A1 caused a cut injury on the right hand of P.W.1, A3 cut the right head of P.W.1, A2 cut the right shoulder and right cheek of P.W.1 and A4 cut the right side neck of P.W.2. A3 assaulted P.W.2 over the back, P.W.4 also attacked P.W.3, A2 again attacked P.W.4 and P.W.5 with Aruval and A5 cut P.W.6 with Aruval. Besides, A5 also attacked one Silambu @ Sivagami. A3 assaulted P.W.2 over the back, P.W.4 also attacked P.W.3, A2 again attacked P.W.4 and P.W.5 with Aruval and A5 cut P.W.6 with Aruval. Besides, A5 also attacked one Silambu @ Sivagami. Thereafter, all the accused ran away from the place of occurrence. P.Ws.8, 9 and 10 witnessed the occurrence. The injured were taken to the hospital and admitted as in-patients and P.W.11 and 12 also witnessed the occurrence. 4.2. On intimation from the hospital, P.W.19, Perichamy, Inspector of Police, Vallam Circle, proceeded to the hospital immediately and recorded the statement of P.W.1, Ex.P.1 and registered a case in Crime No. 60 of 2000 under Sections 147, 148, 326 and 207 IPC and took up the case for investigation and went to the place of occurrence and prepared an observation mahazar [Ex.P.2], in the presence of P.Ws.13 and 14 and also a rough sketch [Ex.P.16] and recorded the statement of the injured. On 14.03.2000, P.W.19 arrested A5 and A6 and seized six number of Aruvals (M.Os.1 to 6) under Ex.P.5-Mahazar and remanded the accused to the Court. On 22.03.2000, P.W.19 arrested A1, A3 and A4 in the hospital and sent them to remand. 4.3. In the meanwhile, P.W.18, Dr.Murugesan, Assistant Surgeon, attached to the Government hospital, Theni treated P.W.2 and noted the following injuries: “1) A cut injury on the right side of the neck exposing deeper muscle of neck 15 x 10 cm. (2) A cut injury on the left hand involving latern three fingers expose the bone, bone also cut. (3) Incised wound 2x1 cm on the back.” 4.4. P.W.18, the Radiologist took X-Ray of the witness-P.W.2 and found that there were fractures in his fingers. It was also found that there were fractures on P.W.4, 6 and one Silambu. 4.5. P.W.19, in continuation of his investigation, recorded the statements of Doctors and he has also investigated the counter case in Crime No.61 of 2000 and finally, laid final report against the accused in this case under Sections 147, 148, 320, 506(ii), 307 r/w. 149 IPC before the learned Judicial Magistrate No.II, Thanjavur and referred the case filed by the accused as mistake of fact. 4.6. Based on the above materials, the trial Court framed charges as detailed in the second paragraph of this judgment. 4.6. Based on the above materials, the trial Court framed charges as detailed in the second paragraph of this judgment. In order to prove the case, on the side of the prosecution, as many as 19 witnesses were examined as P.W.1 to P.W.19, Exs.P.1 to Exs.P.17 M.Os.1 to 6 were marked. 4.7. When the accused were questioned under Section 313 of Cr.P.C. with reference to the incriminating materials adduced by the prosecution, they denied their complicity in the crime and pleaded innocence. In order to prove their defence, two witnesses were examined as D.W.1 and D.W.2 and six documents were marked as Exs.D.1 to D.6. 4.8. The trial Court, after considering the oral and documentary evidence, has found the appellants guilty and accordingly, convicted and sentenced them, as stated supra. Aggrieved over the said conviction and sentence, the appellants/Accused Nos.1 to 6 have come up with this appeal. 5. The main contention of the learned Counsel for the appellants is that the prosecution has suppressed the genesis of the occurrence. The Investigating Officer has filed final report without investigating the counter case properly. The materials on record clearly indicate that only the prosecution parties were the aggressors. They went to the place of occurrence with deadly weapons. Admittedly, the occurrence took place in front of A1's house. The prosecution parties went to the place of occurrence in a vehicle and in a quarrel arose between the parties, three of the accused also sustained serious injuries, which has not been explained. The place of occurrence is also shifted by the prosecution party. Hence, the learned Counsel submitted that the prosecution version is highly doubtful and prays for acquittal of the accused. 6. The learned Counsel appearing for the appellants, in support of his contentions, relied upon the following judgments: (i) Marimuthu Vs. State reported in (2017) 1 MLJ (Crl) 341. (ii) Babu Ram Vs. State of Punjab reported in (2008) 3 SCC 709 . (iii) State of M.P. Vs. Mishrilal, reported in AIR 2003 SC 4089 . (iv) Lakhwinder Singh Vs. State of Punjab reported in AIR 2003 SC 2577 . 7. Whereas, the learned Additional Public Prosecutor submitted that the counter case has also been properly investigated by the investigating officer and only thereafter, it was referred as mistake of fact. (iii) State of M.P. Vs. Mishrilal, reported in AIR 2003 SC 4089 . (iv) Lakhwinder Singh Vs. State of Punjab reported in AIR 2003 SC 2577 . 7. Whereas, the learned Additional Public Prosecutor submitted that the counter case has also been properly investigated by the investigating officer and only thereafter, it was referred as mistake of fact. He further submitted that the trial Court, on considering the factual aspects and also the nature of injuries inflicted on all the witnesses by the accused, has rightly convicted and sentenced the accused, which needs no interference. Further, the prosecution evidence clearly shows that it is a clear case of attempt to murder and prays for dismissal of the appeal. 8. In the light of the above submissions, now, it has to be analysed whether the prosecution has proved the guilt of the accused Nos.1 to 6 beyond all reasonable doubt? 9. In the case on hand, P.W.1 to 6 are injured in the occurrence that took place on 13.03.2000 at about 09.00 a.m. The specific charge against the prosecution is that the occurrence took place in front of the house of P.W.7. The accused came with deadly weapons, thereby indiscriminately cut the prosecution party. On entire scanning of the injured witnesses and on careful perusal of their evidence, it appears that all the accused belong to the same family and are related to each other. Admittedly, there is a dispute between P.W.1's family and A1's family over a piece of land. It is the evidence of P.W.1 that on 13.03.2000, he sent one of his servants, namely P.W.7 to his field. At that time, the accused drove the bullock cart on the disputed land. When it was questioned by P.W.7, he was assaulted by the accused party. Immediately, P.W.7 informed the same to P.W.1 and P.W.1 gathered P.W.3 and P.W.4 and proceeded to the place of occurrence. 10. It is to be noted that as per the prosecution version, the occurrence took place in front of P.W.7's house. On entire scanning of the evidence, it is established that the occurrence did not take place in front of P.W.7's house, but, in fact, it took place in front of A1's house. 10. It is to be noted that as per the prosecution version, the occurrence took place in front of P.W.7's house. On entire scanning of the evidence, it is established that the occurrence did not take place in front of P.W.7's house, but, in fact, it took place in front of A1's house. It is also not in dispute that the counter case has also been registered in Crime No.61 of 2000 and on enquiry, the above case was referred as mistake of fact by the investigating officer. Thereafter, at the intervention of this Court in a revision petition, re-investigation was ordered. On re-investigation, again P.W.19 filed a report stating that the above case was a mistake of fact. It is to be noted that while filing charge sheet against the accused, connected counter case particulars have not been filed as documents. Only during the cross-examination through defence, Exs.D.1 to D.6 were marked by the accused. In the earlier charge sheet filed as against the accused, the nature of injury sustained by the accused was not even whispered by the investigating officer. The counter case particulars also have not been mentioned in the charge sheet. 11. Be that as it may, the evidence of P.W.18, the medical officer, attached to Theni Government Hospital, when carefully seen, A1 also sustained 5x5 cm abrasion on the left knee and 3x1 cm cut injury on the right side head. In respect of this, Ex.D.2-wound certificate of A1 was marked. Similarly, A4 sustained 10x2 cm deep cut injury in the right elbow and 3x1 cm skin deep cut injury on the left wrist and 1 + cm cut injury on the chest and 1x1 cm cut injury on the right index finger, in respect of which, Ex.D.3 was marked. Similarly, A3 sustained contusion and two cut injuries on the right side head and also has suffered fracture, for which, P.W.18 has issued Ex.D.1. 12. The prosecution has suppressed all these facts. Only during trial, these facts came on record. It is to be noted that the entire occurrence is followed by, where P.W.7 was assaulted by the accused persons, which is stated to have been reported to P.W.1. Thereafter, the other witnesses, namely, P.W.1 to P.W.6 proceeded to the North Street, which is away from P.W.1's house. Only during trial, these facts came on record. It is to be noted that the entire occurrence is followed by, where P.W.7 was assaulted by the accused persons, which is stated to have been reported to P.W.1. Thereafter, the other witnesses, namely, P.W.1 to P.W.6 proceeded to the North Street, which is away from P.W.1's house. The evidence of the investigating officer clearly indicates that the entire occurrence took place in front of A1's house. Though the evidence of P.W.17 and P.W.18 show that P.W.1 to P.W.7 had sustained injuries on the hands and also cut injuries in the neck, the fact remains that all the prosecution parties proceeded to the place of occurrence only to question A1 over the previous incident. Whereas, they gave a statement before the medical officer to the effect that all of them were attacked in front of P.W.7's house. This itself clearly shows that the genesis of the occurrence has been suppressed by the witnesses. On careful consideration, it is seen that P.Ws.1 to 7 proceeded to the place of occurrence i.e., house of the accused, which is away from the house of the prosecution parties. In fact, it is admitted that 3 of the accused also sustained severe injuries. It is the evidence of the witnesses to the effect that they sustained injuries themselves while surrounding the prosecution party and cutting them. That evidence of the injured witnesses create a serious doubt about their truthfulness. The accused sustained injuries themselves and having cut injuries and fractures by themselves is highly improbable. Such theory has been projected by the interested prosecution witness only in order to see that the accused are some how or other convicted. Though, the injured witnesses' evidence need not be rejected, when the injured witnesses are more interested in securing the conviction for their benefits and suppressing the real facts, the evidence requires careful scrutiny. 13. If the evidences of P.Ws.1 to 7 are carefully scanned, it is seen that they have in fact proceeded to the place of occurrence to question A1. The nature of the injuries sustained show that the accused also sustained fractures on the elbow and fingers. All these facts clearly show that the injuries are only defensive in nature. 13. If the evidences of P.Ws.1 to 7 are carefully scanned, it is seen that they have in fact proceeded to the place of occurrence to question A1. The nature of the injuries sustained show that the accused also sustained fractures on the elbow and fingers. All these facts clearly show that the injuries are only defensive in nature. These facts clearly indicate that only when the prosecution party proceeded to the North Street from their place and only when they started to attack the accused party, the accused in retaliation attacked the prosecution party by way of defence. But the investigation officer has totally suppressed this fact before the trial Court. The trial Court took into consideration the fact that the accused have not filed any revision after the case was referred as mistake of fact, which established the guilt of the accused. Such approach of the trial Court is not based on proper appreciation of evidences. Evidence of P.W.1 itself clearly shows that immediately after P.W.7 informed that the accused assaulted him, he gathered people from his place and proceeded to question A1. 14. Though, it is the specific case of P.W.1 that while they were standing in front of P.W.7's house all the accused came and attacked them, the above evidence is found to be false. P.W.7 has categorically stated that the occurrence never took place in front of his house. Further, the nature of the evidence of P.Ws.1 to 6 giving graphic details of specific overt act against each accused also clearly show that their evidences is full of interestedness. They suppressed the genesis of occurrence. Though P.W.9 was examined as one of the independent witness, his cross examination clearly shows that he was also arrayed as one of the accused in counter case. Further, his evidence also clearly indicate that there was street fight between both parties on the date of occurrence. P.W.10 is also relative of the other witnesses. P.W.11 in his evidence also clearly stated that there was crowd in the street and he saw the witnesses got injured. P.W.12 is the brother of P.W.4. P.W.13, an independent witness clearly show that both sides attacked each other and there was street fight. D.W.1 and D.W.2, are independent witnesses examined on the side of the accused. P.W.11 in his evidence also clearly stated that there was crowd in the street and he saw the witnesses got injured. P.W.12 is the brother of P.W.4. P.W.13, an independent witness clearly show that both sides attacked each other and there was street fight. D.W.1 and D.W.2, are independent witnesses examined on the side of the accused. D.W.1 stated that only the prosecution party were proceeding towards the accused house with weapons and they attacked 3 of the accused. D.W.2 is running a grocery shop in the village. His evidence also clearly show that only the prosecution party proceeded with weapons and quarreled and thereafter the villagers intervened and separated both the groups. 15. Further, the Investigation Officer's evidence show that the occurrence took place in front of A1's house which is far away from the prosecution parties's house. In fact, the prosecution party proceeded to the accused place only in order to attack them. In the above circumstances, there arose the dispute which lead to attack and counter attack between the accused and both sides attacked each other in which prosecution parties sustained injuries. Evidences of Medical Officers - P.W.17 and P.W.18, show that some of the accused also sustained severe injuries. All these facts probables the defence theory that only the prosecution party were the aggressors and went to attack the accused. Only when they attacked the accused, in retaliation they also attacked and both of them sustained injuries. 16. It is further to be noted that the investigation officer has not even conducted investigation in both cases properly. The injuries sustained by the accused has also not been explained by the prosecution. In this regard, in a judgment of the Apex Court reported in AIR 2003 SCC 2577 [Lakhwinder Singh Vs. State of Punjab], it has been held as follows: “35. The next question is, in a case of this nature, whether the prosecution was bound to explain the injuries appearing on the person of Paramjit Singh. In our view, having regard to the facts and circumstances of this case, it was the duty of the prosecution to explain the injuries suffered by Paramjit Singh which were 19 in number and two of them resulting in fractures. It is not as if the prosecution did not know of these injuries and that they were manufactured later to support the case of the defence. It is not as if the prosecution did not know of these injuries and that they were manufactured later to support the case of the defence. The facts disclose that even by the time the first information report was finalised and before the special report was despatched, the investigating officer had knowledge of the fact that Paramjith Singh had suffered injuries and was admitted in a hospital for treatment. We, therefore, hold that the failure of the prosecution to explain the injuries on Paramjit Singh leads to the inference that the prosecution has not disclosed the true genesis and the manner of occurrence.” 17. In a judgment reported in (2017) 1 MLJ (Crl) 341 [Marimuthu Vs. State], in paragraph No.12, it has been held as follows: “12. Past 01.00 p.m. the deceased came to his house. P.W.1 had admitted that there were deliberations between him and his brothers viz., P.Ws.2 and 5 and P.W.1. After that he only went to the house of the accused. It is not as though the house of the accused and the deceased are situated at any far off place. They are part of the same building. They came in front of the house and there only the occurrence had taken place. From this fact, it is crystal clear that aggrieved over the cutting of the trees in the morning at 06.30 a.m. the deceased party alone had gone to the house of the accused party and developed a quarrel. Thus, from the evidences of P.Ws.1 to 5 and D.W.2 there was a clash between the two groups. In that clash, both parties sustained injuries. Unfortunately the deceased had sustained injuries on his head. It is more probable that the deceased party alone were the aggressors. Though the accused have not pleaded right of private defence explicitly, from the evidences available on record, we are able to gather that since the deceased party were the aggressors and since the accused 1 and 2 were attacked, in exercise of right of private defence the accused would have acted, which resulted in injuries to P.Ws.1, 2 and the deceased. Going by the nature of the injuries sustained by P.Ws.1, 2 and the deceased, it cannot be said that the accused have exceeded their right of private defence of body. Going by the nature of the injuries sustained by P.Ws.1, 2 and the deceased, it cannot be said that the accused have exceeded their right of private defence of body. Thus, the act of the accused squarely fall within the general exception under Section 100 I.P.C. Therefore, the appellants/accused 1 to 3 are entitled for acquittal.” 18. In AIR 2003 SC 4089 [State of M.P. Vs. Mishrilal], in paragraphs 8 and 18, it has been held as follows: “8. In the instant case, it is undisputed, that the Investigating Officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just fair and proper to decide both the cases together by the same Court in view of the guidelines devised by this Court in Nathilal's case (supra). The cross-cases should be tried together by the same Court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two Courts separately there is likelihood of conflicting judgments. In the instant case, the Investigating Officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either of them must be false. In such a situation, legal obligation is cast upon the Investigating Officer to make an endeavour to find out the truth and to cull out the truth from the falsehood. Unfortunately, the Investigating Officer has failed to discharge the obligation, resulting in grave miscarriage of justice. ........ 18. In State of Rajasthan Vs. Madho, AIR 1991 SC 1065 at page 1067 this Court held as under: “The fact remains that both the respondents had sustained serious injuries. Krishna mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured PW-2.”” 19. Though the investigating officer in this case subsequently on the direction of this Court conducted re-investigation and filed a negative report, there is no evidence as to how he arrived at such conclusion. He ought to have conducted the investigation as per the police Standing Order and come to the specific conclusion that only accused are aggressors. But, he has totally suppressed the counter case. Merely because the accused have not challenged the negative report, it cannot be held that what all the investigation officer suppressed become true and proved. 20. Considering the above position of law and also the facts of this case, I am of the view that only the prosecution party went to the accused place and attacked them. As a result, the accused exercised the right of private defence. The trial Court has also found this aspect in paragraph No.33, relying upon the evidences of D.W.1 and D.W.2 and Exs.D.1 to D.6. Further, the entire genesis of occurrence is suppressed. The witnesses also totally suppressed even the injuries sustained by the accused. Further, the place of occurrence is also totally shifted by witnesses during trial. All these facts create serious doubt about the entire genesis of prosecution case. Considering the above, it is unsafe to convict the accused solely on the basis of one version of prosecution. Therefore, the accused are certainly entitled to benefit of doubt. During appeal, it is brought to the notice of this Court that Appellant No.1-Manicka Udayar died and to prove the said fact, the learned counsel for the appellants filed a Death Certificate. In view of the same, charges against him abated and the Criminal Appeal stands dismissed as abated as against the Appellant No.1. Appellants 2 to 6 are entitled to benefit of doubt. 21. In view of the same, charges against him abated and the Criminal Appeal stands dismissed as abated as against the Appellant No.1. Appellants 2 to 6 are entitled to benefit of doubt. 21. Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed by the learned Principal Assistant Sessions Judge, Thanjavur, by judgment dated 03.09.2007, made in S.C.No.18 of 2003 are, hereby, set aside as against the Appellants 2 to 6. Appellants 2 to 6 are acquitted of all the respective charges. Bail bond, if any, executed by the appellants 2 to 6 and the sureties shall stand terminated. Fine amount, if any, paid by the appellants 2 to 6 shall be refunded to them.