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2019 DIGILAW 725 (MAD)

Jayakumar v. State

2019-03-15

M.NIRMAL KUMAR, M.SATHYANARAYANAN

body2019
JUDGMENT : M. Sathyanarayanan, J. 1. The appellant is the sole accused in S.C. No. 83 of 2016 on the file of the II Additional Judge, District and Sessions Court, Tiruppur and he stood charged, tried and convicted as under, vide impugned judgment dated 31.10.2017: Accused Nos. Conviction Under Sections Sentence of Imprisonment Sole Accused 302 I.P.C. Life Imprisonment with a Fine of Rs. 1,000/-, in default to undergo 1 year Rigorous Imprisonment 307 I.P.C. 10 years Rigorous Imprisonment with a fine of Rs. 1,000/- in default to undergo 6 months Rigorous Imprisonment 397 I.P.C. 7 years Rigorous Imprisonment with a fine of Rs. 1,000/- in default to undergo 6 months Rigorous Imprisonment. The sentences were ordered to run concurrently and set-off was granted to the accused under Section 428 Cr.P.C. The appellant/sole accused, aggrieved by the impugned judgment of conviction and sentence passed by the Trial Court, came forward with this Criminal Appeal. 2. Facts leading to the filing of this Criminal Appeal, relevant for the purpose of disposal of this case, briefly narrated are as follows: 2.1. The deceased, namely Vijayan is the junior father of PW1, namely Senthil Kumar and they belong to Tiruvannamalai District. On 30.11.2015, the deceased, PW1, PW3-Thangadurai and one Kumar proceeded to Kuniyamuthoor at Coimbatore for the purpose of unloading household articles, which were taken in a lorry and accordingly, they have unloaded the same. Since the lorry owner took the lorry for some other purpose, all the four of them consumed liquor in a Government run liquor shop (TASMAC) at Gandhipuram and kept the balance liquor in a Pepsi bottle and proceeded to Salem in a State owned Transport Corporation Bus bearing Reg. No. TN38-N-2913. 2.2. During the course of travel, they continued to consumer liquor and therefore, the conductor of the bus, namely Arumugam, who was not examined, asked them to de-board from the bus in the next bus stop. The deceased and PW1 alone de-boarded from the bus and however, two others proceeded with the travel. PW1 and the deceased once again started consuming liquor in a TASMAC shop at Nathampalayam, which falls within the jurisdictional limits of Avinashi Police Station. 2.3. The deceased and PW1 alone de-boarded from the bus and however, two others proceeded with the travel. PW1 and the deceased once again started consuming liquor in a TASMAC shop at Nathampalayam, which falls within the jurisdictional limits of Avinashi Police Station. 2.3. At that time, the appellant/accused, who was employed in the said shop, came and asked them to purchase Brandy and developed wordy altercation with the deceased and he also pestered the deceased to part with money for that purpose. When it was refused, the appellant/accused for the purpose of murdering Vijayan/deceased, took a Wooden Log-M.O. 1 on the stop and hit him on the rear side of his head. When PW1 attempted to prevent the same, the appellant/accused repeatedly attacked him also with wooden log repeatedly on his face and mouth. The appellant/accused, in that process, had taken away a Black Colour Nokia Cellphone-M.O. 4, worth about Rs. 1,000/- and also took cash of Rs. 90/- found in the pocket of the deceased. 2.4. The appellant/accused ran away from the scene of occurrence by throwing the wooden log-M.O. 1. The cloth worn by the appellant/accused was tainted with blood. The deceased/junior father of PW1 became unconscious and the persons, who are present, sent them to Avinashi Government Hospital in 108' ambulance along with PW1 and during the course of travel, Vijayan/deceased breathed his last. Thereafter, PW1 was referred to Government Medical College Hospital, Coimbatore for further treatment. 2.5. PW9-Special Sub-Inspector of Police, Avinashi Police Station, on receipt of the intimation, went to the Hospital at 12.05 a.m. on 01.02.2015 and recorded a statement from PW1, marked as Ex. P1, based on which registered a case in Crime No. 856/2015 for the offences under Sections 302 and 307 I.P.C. at 10.30 a.m. The F.I.R. was marked as Ex. P9. 2.6. PW14, who was the Inspector of Police, Avinashi Police Station, on receipt of the F.I.R., took up the investigation and proceeded to the scene of occurrence on 01.12.2015 and the place was identified by PW2 and in the presence of PW5 and another, prepared the Observation Mahazar-Ex. P2 and Rough Sketch-Ex. P17. At about 12.30 p.m., PW14, in the presence of same witnesses, had taken Blood Stained Earth-M.O. 6 and Clean Earth-M.O. 7 under the cover of Mahazar-Ex. P3. P2 and Rough Sketch-Ex. P17. At about 12.30 p.m., PW14, in the presence of same witnesses, had taken Blood Stained Earth-M.O. 6 and Clean Earth-M.O. 7 under the cover of Mahazar-Ex. P3. PW14 had examined PW1, PW2, PW8, Dayabaran, Raja, Karupasamy, Ramkumar, Aaruchamy, Palanisamy, Suseela, Boopathy, PW3, Kumar, Dayanithi, Arumugam, PW5 and recorded their statements under Section 161(3) Cr.P.C. PW14 recovered the Black Colour Jeans Pant-M.O. 2 produced by PW1 and also a torn Full Hand Shirt-M.O. 3 under the cover of Mahazar-Ex. P6. 2.7. PW14, on 02.12.2015 at 7.00 a.m., conducted inquest on the body of the deceased at the mortuary of the Government Medical College Hospital, Coimbatore in the presence of witnesses and panchayatdars and the Inquest Report was marked as Ex. P20. PW14 thereafter made a request for conducting postmortem on the body of the deceased and sent a requisition letter through the Head Constable-PW7. 2.8. PW11 was the Tutor in Forensic Medicine and Senior Civil Surgeon attached to Government, Medical College Hospital, Coimbatore and based on the request received from PW14/Investigating Officer at 10.15 a.m. on 02.12.2015, seen the body of the deceased at 10.20 a.m. and noted the following features: “Identification and caste marks:- 1.A black mole seen over right lateral abdomen. 2. 3. An old scar seen over right thigh. 4. The body was first seen by the undersigned at 10.20 a.m. on 02.12.2015. It condition then was rigor mortis present seen all over the body. Post-mortem commenced at 11.45 a.m. on 02.12.15. Appearances found at the post-mortem. Moderately nourished body of a male aged about 40 years. Finger and toenails were pale. The following ante mortem injuries noted over the body: • Reddish abrasion 2 x 0.75 to 0.5 cm noted over right scapular region, 1 x 1 cm noted over left side neck just below angle of mandible and 0.5 x 0.5 cm noted over left forearm. • Nail marks three in numbers over on area of 3 x 2 cm noted over left forearm and two in numbers over an area of 2 x 1 cm noted over dorsum of left hand. • Vertically oblique laceration 7 x 1 cm scalp deep noted over left posterior parieto occipital region. • Nail marks three in numbers over on area of 3 x 2 cm noted over left forearm and two in numbers over an area of 2 x 1 cm noted over dorsum of left hand. • Vertically oblique laceration 7 x 1 cm scalp deep noted over left posterior parieto occipital region. On dissection of Scalp, Skull and Dura: Sub scalpel contusion reddish in colour 6 x 5 cm noted over right frontal region and 7 x 3 cm noted over left posterior parietal region. Hair line fracture 2 cm in length noted over left posterior bone thin subdural and subarachnoid hemorrhage seen over entire brain.” PW11 commenced the postmortem at about 11.45 a.m. on 02.12.2015 and recorded other findings: “Other Findings: • Pleural and Peritoneal cavities: empty • Hyoid Bone-intact • Heart: all chambers contains about few cc of fluid blood. • Stomach contains about 100 ml of dull while colour fluid, with unpleasant smell, mucosa pale. • Small intestine contains about 10 ml of brown colour fluid, with unpleasant smell, mucosa pale. • Liver, Lungs, Spleen, Brain and Kidneys: cut section pale. • Urinary bladder-empty. • Viscera preserved and sent for chemical analysis. • Blood preserved for analysis.” PW11, after concluding the postmortem, opined that the deceased would appear to have died of Head Injury and the death would have occurred 12-14 hours prior to body kept in cold storage room. He also issued the Postmortem Certificate, marked as Ex. P11 and also gave Final Opinion under Ex. P12, confirming the opinion already given in Ex. P11 and further confirmed that the deceased consumed Ethyl Alcohol prior to his death. 2.9. PW14 continued with the investigation and upon receipt of secret information as to the presence of the accused, he effected the arrest of the accused at 13.00 hours on 02.12.2015. The appellant/accused, in the presence of one Mohanraj and Karrupasamy, voluntarily came forward to give confession statement and as per the admissible portion of the confession statement, PW14 had recovered the blood stained Wooden Log-M.O. 1 under the cover of Mahazar, Ex. P5. At about 15.15 hours on 02.12.2015, the shirt-M.O. 8 worn by the accused, Nokia Cellphone-M.O. 4 and Cash were recovered by PW14 under the cover of Mahazar-Ex. P5. At about 15.15 hours on 02.12.2015, the shirt-M.O. 8 worn by the accused, Nokia Cellphone-M.O. 4 and Cash were recovered by PW14 under the cover of Mahazar-Ex. P6 in the presence of the very same witnesses and thereafter, the appellant/accused was sent for remand to the Judicial Magistrate Court, Avinashi and also seized the articles under Form-95. 2.10. PW14 sent the seized articles for chemical analysis and thereafter, once again recorded the statements of PW1, Parimala (PW4), Murugan, Elumalai, Mohanraj, Karuppasamy and recorded their statements and on 12.12.2015, had recorded the statements of Jayanthi, Dr. Prabhu Anand/PW10, PW7, Manimekalai and Ranganathan. PW14 made a requisition for recording the statement of PW1, PW2, PW8, Dayabaran and Raja under Section 164 CrPC and therefore, their statements were recorded by the Court of Judicial Magistrate (FTC), Thiruppur and the said statements recorded were marked as Ex. P16 series. 2.11. On 30.12.2015, PW14 once again recorded the statements of PW1, PW2, PW8, Dayabaran and Raja. On 07.01.2016, PW14 had examined the Doctor/PW10, who issued the Accident Register/Ex. P10 to PW1 and also examined the Doctor/PW11, who conducted the autopsy. PW14 also examined PW12-Forensic Expert and after completion of investigation, has altered the Sections from 302 and 307 I.P.C to 302, 307 and 394 r/w. 397 I.P.C. and filed the Alteration Report marked as Ex. P18 and after obtaining opinion from the Deputy Director of Prosecution, Coimbatore, had filed the Charge Sheet on 11.01.2016 on the file of the Court of Judicial Magistrate, Tiruppur, charging the appellant/accused for the aforesaid offences, who took it on file in P.R.C. No. 15/2016. 2.12. The Committal Court issued summons to the accused and on his appearance, furnished him with copies of documents under Section 207 CrPC and having found that the case is exclusively triable by the Sessions Court, had committed the same to the Principal District Court at Tiruppur and the said Court, in-turn made over the same to the II Additional District and Sessions Judge, Tiruppur, who took it on file in S.C. No. 83 of 2016. The appellant/accused was issued with summons and on his appearance, charges under Sections 302, 307 and 394 r/w. 397 IPC has been framed. 2.13. The prosecution, in order to sustain it's case, examined PWs. 1 to 14, marked Exs. P1 to P20 and also marked M.Os. 1 to 10. The appellant/accused was issued with summons and on his appearance, charges under Sections 302, 307 and 394 r/w. 397 IPC has been framed. 2.13. The prosecution, in order to sustain it's case, examined PWs. 1 to 14, marked Exs. P1 to P20 and also marked M.Os. 1 to 10. The appellant/accused was questioned under Section 313(1)(b) CrPC with regard to incriminating circumstances made out against him and he denied it as false. The appellant/accused did not examine any witness and not marked any document. 2.14. The Trial Court, on a consideration of oral and documentary evidence and other materials, had found the appellant/accused guilty of the offences and sentenced him as stated above, vide impugned judgment dated 31.10.2017 and challenging the same, the present Criminal Appeal is filed. 3. Mr. T. Muruganantham, learned counsel appearing for the appellant/accused made the following submissions: (i) Admittedly, the deceased/Vijayan as well as PW1 were new to the place and the prosecution has failed to establish as to how they knew the identity of the appellant. (ii) (iii) Since the appellant/accused was a total stranger to PW1, in the absence of Test Identification Parade, the identification of the appellant/accused itself is doubtful. (iv) (v) Admittedly, PW1 sustained grievous injuries on his face and lips and also lost some teeth and therefore, he would not be in a position to speak and as such, the statement under Ex. P1 said to have been recorded by PW14 on 01.12.2015, as well as registration of F.I.R., marked as Ex. P9 is also highly doubtful and in effect, the substratum of the case itself is very much doubtful. (vi) (vii) The testimonies of PWs. 2 and 8, who are the TASMAC employees, are of no help and admittedly, they did not see the occurrence and they would admit that there was no light and as such, their evidence did not support or corroborate the version of PW1. (vi) (vii) The testimonies of PWs. 2 and 8, who are the TASMAC employees, are of no help and admittedly, they did not see the occurrence and they would admit that there was no light and as such, their evidence did not support or corroborate the version of PW1. (viii) (ix) PW3, who said to have accompanied PW1 and the deceased for some time before they were deboarded from the bus, was only a hearsay witness and even in the cross examination, he admitted that he met him on the same day of the occurrence on 30.11.2015, but he was unable to speak and made only sign languages and as such, it would not have been possible for PW9 to record the statement of PW1 on 01.12.2015, based on which the F.I.R. came to be registered. (x) (xi) The alleged arrest and recovery is also doubtful for the reason that the contents of Ex. P1/Statement recorded by PW9 from PW1, would indicate that neither cash nor cellphone stolen was taken by the appellant/accused and PW1, during the course of oral evidence, has made very many improvements from that of his statement recorded under Ex. P1 and the arrest and recovery of incriminating articles is also highly doubtful. (xii) (xiii) PW9, who said to have recorded the Statement/Ex. P1 from PW1, in the cross examination, would admit that at the time of giving statement under Ex. P1, he did not disclose anything about the demise of his junior father and whereas in the chief examination, he deposed that he was informed about the demise of his junior father and since it is a very vital and material contradiction, the origin of the occurrence is also very much doubtful. (xiv) (xv) PW10/Doctor, who initially treated PW1 as well as examined the deceased, would admit that he referred PW1 for further treatment to Government Medical College Hospital, Coimbatore and PW1 did not state anything about the demise of his junior father and he also admitted that the injury sustained by the deceased is on account of falling on ground due to consuming alcohol and therefore, the prosecution has failed to establish that the appellant/accused alone had caused the fatal injury and to some extent, it was also corroborated by PW11/Doctor, who conducted autopsy. (xvi) (xvii) PW14/Investigating Officer, in the cross examination, would admit that no Test Identification Parade was conducted and he did not file the Case Sheet/Discharge Summary of PW1 while he took treatment in the Government Medical College Hospital, Coimbatore and also admitted that PW1 did not specifically state about the demise of his junior father and that he did not take the Finger Prints from the M.O. 1/Wooden Log. In sum and substance, it is the submission of the learned counsel appearing for the appellant/accused that the prosecution has failed to prove the manner and origin of the occurrence and in the light of very many inconsistencies and embellishments in the case projected by the prosecution and in the absence of any Test Identification Parade, it cannot be said that the appellant/accused alone has committed the offence and therefore, the Trial Court ought to have awarded benefit of doubt and acquitted the appellant/accused. Alternatively, it is the submission of the learned counsel appearing for the appellant/accused that admittedly, the appellant/accused said to have inflicted single blow on the rear side of the head of the deceased by taking a wooden log found on the spot and therefore, prays for altering the conviction and modification of sentence. 4. Per contra, Mr. R. Prathapkumar, learned Additional Public Prosecutor appearing for the respondent/State would submit that since the fatal overt act on the part of the appellant/accused has been clearly and cogently spoken to by PW1, who is also an injured witness and it carries credence and weight and the testimony of PW1 is also corroborated by PWs. 2 and 8, who are the employees of TASMAC shop. It is the further submission of the learned Additional Public Prosecutor that the arrest and recovery, in pursuant to the admissible portion of confession statement of the appellant/accused spoken to by PW6/Village Administrative Officer and the scientific evidence, would also amply establish that it was the appellant, who committed the offence and the junior father of PW1 died on account of homicidal violence. Insofar as non-holding of Test Identification Parade is concerned, it is the submission of the learned Additional Public Prosecutor that even in Ex. P1/statement, PW1 has clearly stated that the appellant/accused has identified himself and as such, PW14/Investigating Officer felt that conducting of Test Identification Parade was not necessary. Insofar as non-holding of Test Identification Parade is concerned, it is the submission of the learned Additional Public Prosecutor that even in Ex. P1/statement, PW1 has clearly stated that the appellant/accused has identified himself and as such, PW14/Investigating Officer felt that conducting of Test Identification Parade was not necessary. Thus, it is the submission of the learned Additional Public Prosecutor that since the commission of offence as spoken to by PW1 was amply corroborated by the testimonies of PWs. 2 and 8 and also supported by scientific and other evidences, the Trial Court has rightly reached the conclusion to convict and sentence the accused accordingly and prays for dismissal of this appeal. 5. This Court has considered the rival submissions and also perused the entire materials placed before it. 6. A perusal of Ex. P1/Statement recorded by PW9 on 01.12.2015 at 9.00 a.m. while PW1 was taking treatment as in-patient at Government Medical College Hospital, Coimbatore would disclose that the appellant/accused has identified himself and pestered the junior father of PW1, namely Vijayan/deceased and had altercation with him and once it was refused by him, he pushed him down and took a wooden log nearby and hit him on the rear side of his head and also hit PW1 on his face and mouth repeatedly. PW1, in his oral evidence, would state that on account of the attack, he lost 4 teeth on his lower jaw and 2 teeth on his upper jaw and also sustained injuries on his head and when he raised alarm, people came and therefore, the accused dropped the wooden log/M.O. 1 and fled away. 7. It is to be noted at this juncture that in Ex. P1/complaint, PW1 did not state anything about taking away of cellphone/M.O. 4 or Cash of Rs. 90/-/M.O. 5 from the deceased and whereas in the chief examination, PW1 did state so and it is an improvement made by him during the course of his oral evidence. PW1 would further admit that the occurrence took place at night hours between 10.00 and 10.15 p.m. and it was dark. 8. 90/-/M.O. 5 from the deceased and whereas in the chief examination, PW1 did state so and it is an improvement made by him during the course of his oral evidence. PW1 would further admit that the occurrence took place at night hours between 10.00 and 10.15 p.m. and it was dark. 8. The learned counsel appearing for the appellant would submit that in the light of the admission of PW1 even in the chief examination that he lost 4 teeth in the lower jaw and 2 teeth in the upper jaw and also sustained injuries on his face, it would be impossible for him to give statement to PW9 on 01.12.2015 and also drawn the attention of this Court to PW3, who in the cross examination would admit that he met PW1 in the Government Medical College Hospital, Coimbatore on the same day of occurrence, but he was unable to speak and only gave sign language indicating about the demise of his junior father and PW3 was examined on the next day afternoon at 14.30 hours on 01.12.2015. 9. It is also to be noted at this juncture that though in Ex. P1, PW1 stated that the appellant/accused has disclosed his identity, did not state so in the chief examination and straight away disclosed the name of the appellant/accused. PW1 as well as his junior father Vijayan/deceased were stranger to the place of occurrence for the reason that the occurrence took place within the jurisdictional limits of Avinashi Police Station and whereas, PW1 and the deceased hail from Thiruvannamalai District and they went to Kuniyamuthoor, Coimbatore for unloading household articles. The Investigating Officer/PW14 would also admit that he did not conduct Test Identification Parade and therefore, it remains a mystery as to how PW1 was able to know the name of the appellant/accused. 10. The prosecution would submit that the testimony of PW1 is amply corroborated by the testimonies of PWs. 2 and 8, who are the employees of TASMAC and their evidence would disclose that the appellant was proceeding to dark side and they raised alarm and when they went near a tamarind tree, the appellant/accused was carrying a wooden log. 10. The prosecution would submit that the testimony of PW1 is amply corroborated by the testimonies of PWs. 2 and 8, who are the employees of TASMAC and their evidence would disclose that the appellant was proceeding to dark side and they raised alarm and when they went near a tamarind tree, the appellant/accused was carrying a wooden log. Neither PW2 nor PW8 identified the wooden log, marked as M.O. 1 and that apart, the occurrence took place at night hours between 10.00 and 10.15 p.m. on 30.11.2015 and therefore, it is really doubtful and even from the testimonies of PWs. 2 and 8, they did not see the alleged attack by the appellant/accused on the head of the deceased/Vijayan and PW1. 11. Insofar as the recovery of Wooden Log/M.O. 1 is concerned, it is the evidence of PW6 that the appellant/accused was arrested on 02.12.2015 at about 1.00 p.m. and he voluntarily came forward to give confession statement, which led to the recovery of Wooden Log/M.O. 1, Cellphone-M.O. 4 and Cash of Rs. 90/-/M.O. 5 said to have been taken by the appellant from the pocket of the deceased. In Ex. P1/statement given by PW1, the appellant/accused dropped the wooden log and fled away and even in the chief examination, PW1 deposed so and this Court has also pointed out that in Ex. P1, PW1 did not state anything about the snatching of cash or taking away of cellphone from the pocket of the deceased/Vijayan, but only in the chief examination, he has deposed so. 12. As regards recovery of Wooden Log/M.O. 1, Ex. P5/Mahazar was marked and in the light of the testimony of PW1 that the wooden log, after the commission of the offence, was said to have been dropped by the appellant/accused on the spot itself, recovery of the same under the cover of Mahazar/Ex. P5 as spoken to by PW6 cannot be believed. The admissible portion of the confession statement of the appellant would disclose that the appellant/accused had stated that he produced M.O. 1/Wooden Log concealed by him. 13. In the light of the reasons assigned above, the recovery of M.O. 1/Wooden Log said to have been used by the appellant/accused for the commission of the offence, cannot be believed, so also the recovery of M.O. 4/Cellphone and M.O. 5/Cash of Rs. 90/-. 14. 13. In the light of the reasons assigned above, the recovery of M.O. 1/Wooden Log said to have been used by the appellant/accused for the commission of the offence, cannot be believed, so also the recovery of M.O. 4/Cellphone and M.O. 5/Cash of Rs. 90/-. 14. It also appears from the evidence of PW1 as well as PW10, the Doctor, who treated PW1, that while he was taken to Avinashi Police Station, PW1 was not aware of the demise of his junior father and the said fact was also admitted by PW14/Investigating Officer in the cross examination. However, PW1 in the cross examination, would state that while he was taken to Government Medical College Hospital, Coimbatore the fact of demise of his junior father was informed to him. PW10, who initially treated PW1 and also examined the deceased and the Accident Register, marked as Ex. P10 and he was referred to Government Medical College Hospital, Coimbatore for further treatment and admittedly, thereafter, PW1 was treated at Government Medical College Hospital, Coimbatore. PW14/Investigating Officer would admit that he did not seize the medical records pertaining to the treatment given to PW1 at the Government Medical College Hospital, Coimbatore, including the Discharge Summary and he would further depose that the Doctor, who treated PW1 at Coimbatore Government Medical College Hospital had also gave an opinion and it was not marked and the said Doctor, who treated him, was also not examined as a witness. 15. The scientific evidence through the Postmortem Report, marked as Ex. P11 and the Serological Reports, marked as Exs. P14 and P15 would disclose that the clothes said to have been worn by the appellant/accused at the time of commission of offence was tainted with human blood and that the deceased died on account of homicidal violence on account of the alleged injury on the head of the deceased inflicted by the appellant/accused by using the Wooden Log/M.O. 1. 16. PW10 opined that the injury on the deceased would have caused on account of falling on a rock/stone in a drunken state. PW11, who conducted autopsy, had also opined that when a person under the influence of alcohol fallen down, may sustain such injury and it depends upon the size of the rock and denied the suggestion that the deceased died on account of falling under the influence of alcohol. PW11, who conducted autopsy, had also opined that when a person under the influence of alcohol fallen down, may sustain such injury and it depends upon the size of the rock and denied the suggestion that the deceased died on account of falling under the influence of alcohol. This Court has also recorded a finding that the recovery of M.O. 1/Wooden Log, as spoken to by PW6 is highly doubtful, so also the recovery of M.O. 4/Cellphone and M.O. 5/Cash of Rs. 90/-. 17. PW1 had made very many improvements from that of the statement recorded under Ex. P1 by PW9 and in the light of the injury sustained by PW1 on his mouth and face, coupled with the fact that he became unconscious on the date of occurrence, the statement under Ex. P1 said to have been recorded by PW9 on the date of the occurrence at the Government Medical College Hospital, Coimbatore is also doubtful for the reason that according to PW3, he and Kumar originally accompanied the deceased and PW1 to Coimbatore and he saw PW1 at the Government Medical College, Coimbatore at 30.11.2015, but he was unable to speak and therefore, in sign language has informed him that Vijayan-his junior father died. Therefore, this Court is of the considered view that in the light of the grievous injury sustained, it would not have been possible for PW1 to give such a lengthy statement to PW9, which led to the registration of F.I.R. marked as Ex. P9. 18. The prosecution has failed to offer any plausible explanation through the testimonies of the witnesses and documents marked to the said infirmities and therefore, a grave doubt has been created as to the genesis and origin of the occurrence. In the considered opinion of the Court, the Trial Court has failed to advert to the said infirmities. 19. The infirmities and inconsistencies in the evidence rendered by the prosecution, as pointed out above, had shaken the very foundation laid by the prosecution and therefore, benefit of doubt shall enure in favour of the appellant/accused. 20. In the considered opinion of the Court, the Trial Court has failed to advert to the said infirmities. 19. The infirmities and inconsistencies in the evidence rendered by the prosecution, as pointed out above, had shaken the very foundation laid by the prosecution and therefore, benefit of doubt shall enure in favour of the appellant/accused. 20. In the result, this Criminal Appeal is allowed and the conviction awarded and sentence imposed on the appellant, vide impugned judgment dated 31.10.2017 made in S.C. No. 83 of 2016, passed by the learned II Additional Judge, District and Sessions Court, Tiruppur, is set aside and the appellant/accused is acquitted of the charges and he is set at liberty forthwith, unless his presence/custody is required in connection with any other case/proceedings. Fine amount, if any, paid by the appellant/accused shall be refunded to him. Consequently, connected miscellaneous petition is closed.