JUDGMENT : V. Sivagnanam, J. (Common Prayer: Criminal Appeals filed under Section 374 Cr.P.C. to set aside the judgment dated 19.02.2015 made in Special S.C.No.154 of 2011 on the file of the III Additional District and Sessions Court, Salem by allowing these present Criminal Appeals.) 1. Challenge in these criminal appeals is the judgment dated 19.02.2015 passed in S.C.No.154 of 2011 on the file of the III Additional District and Sessions Court, Salem. 2. Crl.A.No.117 of 2015 is filed by Mathi @ Mathiazhagan/(A1) and Crl.A.No.187 of 2015 is filed by Selvam/(A2). The appellants, who were accused in S.C.No.154 of 2011 before the III Additional District and Sessions Court, Salem, was convicted and sentenced as under: Name of the accused Provision under which convicted Sentence Mathi @ Mathiazhagan (A1) Section 304 II r/w 109 IPC Ten years rigorous imprisonment for each and fine of Rs.5,000/-, each in default to undergo three months simple imprisonment. Selvam (A2) Section 304 II IPC Ten years rigorous imprisonment for each and fine of Rs.5,000/-, each in default to undergo three months simple imprisonment. The aforesaid sentences were ordered to run concurrently. Challenging the said conviction and sentences, Mathi @ Mathiazhagan (A1) has preferred Crl.A.No.117 of 2015 and Selvam (A2) has preferred Crl.A.No.187 of 2015. 3. The facts leading to the filing of these cases, are as under: 3.1. The case of the prosecution is that, A1 namely Mathi @ Mathiazhagan was working as staff in the fair Price Shop (Ration Shop) and A2 namely Selvam is a friend of A1. It is alleged that A2 had prior enmity with the deceased, namely Raji @ Govindaraj, as both were members of two groups of the same political party. It is further alleged that, on 26.06.2006 evening, when the deceased came to Ration Shop, started quarrel with A1, questioning the irregularities in supply of rice and other items. It is further alleged that A1 instigated to kill the deceased/Govindaraj and A2, with an intention to cause the death of deceased/Govindaraj, fisted him forcibly on his left neck with his hand, which caused subarachnoid hemorrhage due to the blunt force injury on the neck and chest, and as a result, the said Govindaraj died immediately. It is further alleged by the prosecution that A2 had committed an offence punishable under Section 302 IPC and A1 had committed murder an offence punishable under Section 302 IPC r/w 109 IPC. It is further alleged by the prosecution that A2 had committed an offence punishable under Section 302 IPC and A1 had committed murder an offence punishable under Section 302 IPC r/w 109 IPC. 3.2. During trial, the prosecution examined 19 witnesses viz., P.W.1 to P.W.9 and marked 24 documents Ex.P1 to Ex.P24, with material object (M.O.1) and on the side defendce/ accused, they examined one witness Dr.Vallinayagam as defence witness D.W.1 and also filed 5 documents (Ex.D.1 to Ex.D.5). 3.3. The learned Sessions Judge, based on the oral and documentary evidence, relied upon the evidence of Raja (P.W.1), Kandasamy (P.W.2) and the evidence of Dr.Selvakumar (P.W.15) and found that the accused persons committed culpable homicide not amounting to murder and found them guilty under Sections 304 (ii) r/w 109 IPC and 304 (ii) IPC respectively and convicted the accused persons and imposed the sentence and fine as stated above. 3.4. In these appeals, the learned counsel for the appellants contented that the trial Court committed grave error in convicting the appellants for the alleged offences under Section 302 (ii) IPC and 302 (ii) IPC r/w 109 IPC. The learned counsel further contended that there was a contradiction between the complaint (Ex.P.1) and the oral evidence of Raja (P.W.1) and in the complaint (Ex.P.1), the complainant stated that Selvam (A2) used weighing stone and assaulted the deceased in his chest, but in his evidence, Raja (P.W.1) deposed that A2 fisted with hand on the chest of the accused and his neck. The vital contradiction has not been considered by the trial Court. Further, P.W.1 himself admitted that he had falsely stated in the complaint that A2 assaulted with weighing stone and with regard to the occurrence, kandasamy (P.W.2) gave different statements to the Investigation Officer Gunasekaran (P.W.17) and Balasubramanian (P.W.19). The learned counsel further contended that in the post mortem report (Ex.P.5) and final opinion (Ex.P.14), Post Mortem Doctors Kesavalingam (P.W.12) and Meera (Ex.P.16) gave the opinion, with regard to the cause of death as “natural death”. In such circumstances, the finding of the trial court as homicide, is contrary to the evidence and facts. Further, the learned counsel contended that in the Post Mortem Certificate, the Doctors did not find any injury corresponding to the evidence of Raja (P.W.1) and Kandasamy (P.W.2). In such circumstances, the finding of the trial court as homicide, is contrary to the evidence and facts. Further, the learned counsel contended that in the Post Mortem Certificate, the Doctors did not find any injury corresponding to the evidence of Raja (P.W.1) and Kandasamy (P.W.2). In such circumstances, the investigation was taken up by Balasubraminan (P.W.19) and obtained different opinion from Dr.Selvakumar (P.W.15) and charge sheet was filed against the accused persons with regard to the cause of death. There is no evidence in favour of the prosecution, the evidence of P.W.1 and P.W.2 is also not reliable. In view of the different version in the complaint Ex.P.1, the opinion with regard to cause of death raises a serious doubt with regard to prosecution case. The accused persons are entitled to “benefit of doubt” with regard to the occurrence as there are different version and the case of the prosecution was not proved beyond reasonable doubt and the benefit of doubt has to be given in favour of the accused persons. The trial Court failed to consider the evidence properly and finding them guilty, is contrary to the evidence of record. Thus, the learned counsel pleaded to set aside the conviction and sentence passed by the trial Court and prayed to allow the appeal. 4. Heard the learned counsel appearing for the parties and perused the materials available on record. 5. The accused A1 and A2 have preferred this appeal against the conviction and sentence on the charge of murder, for having caused the death of Raji @ Govindaraj, by assaulting on his neck and stomach on 26.06.2006 at 3.45 p.m., at Sithanther mariamman koil Street before the Ration Shop, as a result of which, the victim died. The learned Sessions Judge found the accused guilty under Section 304 (ii) IPC r/w 109 IPC and under Section 304 (ii) IPC respectively and sentenced each of them to 10 years Rigorous Imprisonment with fine of Rs.5,000/-. 6. Before the trial Court, the prosecution, to establish the crime, examined 19 witnesses and among them, two witnesses i.e., Raja (P.W.1) and Kandasamy (P.W.2) were stated as eye-witnesses. Raja (P.W.1) is the complainant in the case, who gave the complaint (Ex.P.1) on 26.06.2006, 7. 6. Before the trial Court, the prosecution, to establish the crime, examined 19 witnesses and among them, two witnesses i.e., Raja (P.W.1) and Kandasamy (P.W.2) were stated as eye-witnesses. Raja (P.W.1) is the complainant in the case, who gave the complaint (Ex.P.1) on 26.06.2006, 7. As a general rule, the burden of proof in a criminal case, has to be on the prosecution i.e., State, because of the cardinal principle of criminal law that an accused is presumed to be innocent, unless his guilt is proved beyond any reasonable doubt on the basis of the materials available in evidence against him. 8. Proof is the result of evidence, while evidence is a medium of proof. A perusal of oral evidence of Raja (P.W.1) and Kandasamy(P.W.2), it indicates that the evidence of these two witnesses did not inspire confidence of this Court for the reasons that P.W.1 in his oral evidence before the Court, stated that accused Selvam (A2) assaulted the deceased/Govindaraj on his cheek and kicked on his stomach, did not stated that he had assaulted with weighing stone taken from the shop. In Ex.P.1 complaint it is stated that he was assaulted by weighing stone. For better appreciation, P.W.1 evidence is reproduced as follows: “TAMIL” 9. Another eyewitness Kandhasamy P.W.2 also in his evidence stated that A2 assaulted the deceased/Govindaraj on his left cheek and fell down. Thereafter, A2 bring the weighing stone from the shop for assaulting deceased/Govindaraj but did not depose whether he assaulted with weighing stone are not, his evidenced runs as follows: “TAMIL” 10. They have not deposed that the A2 assaulted the deceased with weighing stone (M.O.1). When we peruse the complaint Ex.P.1 and FIR (Ex.P.2), it is mentioned therein that the A2 at the instigation of A1, assaulted the deceased with iron weighing stone on his chest. Immediately, the deceased fell down and again, A2 assaulted with weighing stone on his neck. The relevant portion of the complaint runs as follows: “TAMIL” 11. To believe the evidence, there is no corresponding injuries on the body of the deceased. 12. Dr.Kesavalingam (P.W.12) and Dr.Meera (P.W.16) jointly conducted post-mortem on the body of the deceased/Govindaraj. The Post- mortem certificate is marked as (Ex.P.5). A perusal of (Ex.P5) indicates the absence of any outside bodily injury as stated by the witnesses P.W.1 and P.W.2. To believe the evidence, there is no corresponding injuries on the body of the deceased. 12. Dr.Kesavalingam (P.W.12) and Dr.Meera (P.W.16) jointly conducted post-mortem on the body of the deceased/Govindaraj. The Post- mortem certificate is marked as (Ex.P.5). A perusal of (Ex.P5) indicates the absence of any outside bodily injury as stated by the witnesses P.W.1 and P.W.2. The post-mortem Certificate runs as follows: “The body was first seen by the undersigned at 10.40 a.m. It is condition then was rigor mortis present all over the body. It was a moderately nourished body of a male person. Findings- Face looks calm. No conjunctival congestion. Extremities-finger toe nail found bluish. Hear-chambers and valves normal. Cavities contained little fluid blood myocardium-normal. Coronaries-patent. Larynx, Trachea hyoid bone- intact. All neck structures-intact. Lungs-congested. Stomach-200 gms of partly digested cooked rice seen. No specific smell. Mucosa-Congested. Liver-Congested. Spleen-Congested. Kidneys- both congested. Scrotum- no-contusion. Both Testis—normal bladder-empty. Anal canal-intact. Pelvis membranes and spinal column-all are intact. On Dissection of Scalp-No contusion. Skull-intact. Brain:Sub-Arachnoid Haemorrhage seen over both cerebral hemispheres. Multiple incisions made all over cerebral hemispheres. Multiple incisions made all over the body no underlying contusion. No fracture made out.’ OPINION- DIED OF EFFECTS OF CEREBRAL HAEMORRHAGE (NON-TRAUMATIC) 13. Post mortem Doctors Dr.Kesavalingam (P.W.12) and Dr.Meera (P.W.16) deposed before the Court, stating that the death of the deceased/Govindaraj was natural. The relevant portion of the evidence of (P.W.12) as runs as follow: “TAMIL” Dr.Meera (P.W.16) evidence runs as follows: “TAMIL” 14. Since the above said doctors report Ex.P.5 and E.P.14 were not against the accused persons. The respondent/police obtained another opinion from Dr. Selvakumar (P.W.15) and based on the Post-Mortem Certificate and Forensic report, he gave a report (Ex.P.13) which runs as follows: “TAMIL” 15. P.W.1 and P.W.2 did not depose that the accused persons assaulted the deceased/Govindaraj on his neck and chest. They stated that A2 assaulted the deceased/ Govindaraj on his left chest and kicked on his stomach. In the absence of any evidence that the accused persons have assaulted the deceased/Govindaraj on his neck and chest, the evidence of Dr.Selvakumar P.W.15 is not also supporting the prosecution case. 16. The Hon’ble Supreme Court in the decision in the case of Mafabhai Nagarbhai Raval Vs. In the absence of any evidence that the accused persons have assaulted the deceased/Govindaraj on his neck and chest, the evidence of Dr.Selvakumar P.W.15 is not also supporting the prosecution case. 16. The Hon’ble Supreme Court in the decision in the case of Mafabhai Nagarbhai Raval Vs. state of Gujarat ( AIR 1992 SC 2186 ) held that the report of the medical examination of the deceased and post-mortem report are most dependable in respect of the nature of injuries and cause of death. In the case on hand, according to the Doctors who conducted the post-mortem on the body of the deceased/Govindaraj, Dr.Kesavalingam (P.W.12) and Dr.Meera (P.W.16) reported that they did not found any bodily injury on the body of the deceased/Govindaraj and further opined that the death is “natural” and it is corroborated by the evidence of Dr.Vallinayagam, Director, Forensic science, Chennai, (D.W.1) who replied the police questionnaires in this case. His evidence runs as follows: “TAMIL” 17. The evidence of eye-witnesses P.W.1 and P.W.2 does not inspire the confidence of this Court for the reason, that it is contrary to the complaint given by P.W.1 and there are no injuries found on the body of the deceased/Govindaraj as stated by the witnesses. Further, in the post-mortem report, the doctors opined the cause of death as “natural”. Thus, there is an element of genuine doubt. 18. Where there is an element of genuine doubt, there must be acquittal as a matter of right and not as a matter of grace or favour. 19. The trial Court did not notice the complete variance between the complaint and FIR and the evidence of the prosecution witnesses, which are fatal to the prosecution case. 20. Considering the totality of the facts and evidence, the prosecution had miserably failed to prove the guilt of the accused persons for the offence of murder. Hence, I set aside the conviction and sentence passed by the trial Court and the accused persons (A1 and A2) are entitled for acquittal. 21. In the result, these Criminal Appeals are allowed. The conviction and sentence passed by the trial Court in S.C.No.154 of 2011 before the III Additional District and Sessions Court, Salem, is hereby set aside. The accused persons are acquitted of the charges. The bail bond executed by them is hereby ordered to be cancelled.