Sridhar Vs. State Represented by The Inspector of Police, Srivaigundam Police Station, Thoothukudi - Court Judgment

SooperKanoon Citationsooperkanoon.com/1186643
CourtChennai Madurai High Court
Decided OnDec-02-2016
Case NumberCriminal Appeal No.187 of 2016
JudgeThe Honourable Chief Justice Mr. Sanjay Kishan Kaul &Amp; S. Nagamuthu
AppellantSridhar
RespondentState Represented by The Inspector of Police, Srivaigundam Police Station, Thoothukudi
Excerpt:
(prayer: appeal filed under section 374 of the code of criminal procedure against the judgment passed by the learned ii additional sessions judge, thoothukudi, thoothukudi district in s.c.no.50 of 2015 dated 12.02.2016.) s. nagamuthu, j. 1. the appellants are the accused 1 and 2 in s.c.no.50 of 2015 on the file of the learned ii additional sessions judge, thoothukudi, thoothukudi district. they stood charged for offences punishable under sections 302, 294(b) and 506(ii) i.p.c. by judgment dated 12.02.2016, the trial court convicted them under section 302 i.p.c. alone and sentenced them to undergo imprisonment for life and pay a fine of rs.1000/- in default to undergo simple imprisonment for one year. the trial court however acquitted them from the charges under sections 294(b) and 506(ii) i.p.c. challenging the said conviction and sentence, the appellants are before this court with this appeal. 2. the case of the prosecution in brief is as follows: 2.1. the deceased in this case was one shaik abdul kathar. though the accused hails from a village known as kongaraiyakuruchi, for about 20 years, he was residing in salem. he used to come to kongaraiyakuruchi village to participate in the important functions in the local mosque. during the year 1986, one mr.murugan s/o ayyapillai devan of kongaraiyakuruchi village was murdered. the deceased was one of the accused in the case. from then onwards, the family members of the deceased murugan were inimical towards the deceased shaik abdul kathar. the accused herein are the brother's son of mr.murugan. thus, they were also inimical towards the deceased shaik abdul kathar. 2.2. it is alleged that on 08.02.2014, the deceased had come down to kongaraiyakuruchi village to participate in a local festival. around 05.00 p.m. when he was standing near the mosque in kongaraiyakuruchi, these two accused came there. they shouted at the deceased and challenged that they would not spare the deceased alive. 2.3. thereafter, on 09.02.2014, p.ws.1 and 2 and the deceased had gone to thamirabarani river running on the south of kongaraiyakuruchi village. at around 08.00 a.m. p.ws.1 and 2 were taking bath and the deceased was sitting by the side of the river and washing his clothes in a stone. at that time, these two accused came there, both armed with one aruval each. on reaching the deceased, they started cutting the deceased indiscriminately. having received number of cut injuries, the deceased lost his balance and fell in the river water. p.ws.1 and 2 cried for help, the accused fled away from the scene of occurrence with the weapons. p.ws.1 and 2 searched for the deceased in the water, but they could not find him anywhere. 2.4. thereafter, p.w.1 went to srivaigundam police station and made a complaint at 05.00 p.m. on 09.02.2014. the then sub inspector of police, on receipt of the said complaint, registered a case in crime no.67/2014 under sections 302, 294(b) and 506(ii) i.p.c. ex.p1 is the complaint and ex.p11 is the f.i.r. he forwarded both the documents to court, which reached by the learned magistrate at srivaigundam at 08.25 p.m. on 09.02.2014. 2.5. the case was taken up for investigation by p.w.12 the then inspector of police. he went to the place of occurrence at 06.45 p.m. and prepared an observation mahazar and a rough sketch at the place of occurrence. he examined p.ws.1 to 3 and few more witnesses and recorded their statements. on his information, the fire and rescue service men came to the place of occurrence and searched for the dead body of the deceased in the thamirabarani river water. he also searched for the accused. on the next day i.e. on 10.02.2014, investigation was continued by his successor p.w.13. the fire and rescue service men at last retrieved the dead body from the thamirabarani river at around 02.00 p.m. near pandiyaraja temple, which is at a far off place from the place where the occurrence had taken place. after the body was taken out from the water, p.w.12 conducted inquest on the body of the deceased and forwarded the same for postmortem. 2.6. p.w.10 dr.j.d.vinothini conducted autopsy on the body of the deceased on 11.02.2014 at 09.50 a.m she found the following injuries: "injuries:- all the injuries below stated as cut wounds have the regular cleancut edges without any bleeding; the cut edges are brownish coloured and exposed tissues are brownish coloured. (1) a cut wound (10x5xupto bone depth) in right parietal scalp. 92) a cut wound (4x3xupto bone depth) in left eyebrow area (3) a cutwound (5x1.5x1 cm) in nasal area. (4) a cut wound (8.5x5x2 cm) in left cheek. (5) a cut wound (12x3x2 cm) in left lower jaw area; no dental injury noted (6) a cutting wound (7x3x6 cm) below right ear with cut injury to right carotid vessels at c1-c2 level. (7) a cut wound (3 x 2 x upto (torn) depth in right frontal bone area of scalp (8) torn (9) torn 22x4xupto bony spine depth with (10) injury to c2, c3 spines causing fracture dislocation of c2, c3 (11) a cutwound (15x4x3 cm) in right upper chestwall. (12) a cut wound (7x4x3.5 cm) in left upper chestwall below left shoulder (13) fracture in left clavicle at the junction of med 1/3 and mid 1/3. (14) a cutwound 7x4x3 cm in right lateral cheswall below right armpit. (15) a cutwound 8x4x2 cm in mid 1/3 of right forearm (16) a cutwound 20x10x3 cm in left mid 1/3 arm with injury cuts to posterior compartment muscles (17) a deep cutwound in left hand and left forearm, extending from lower 1/3 of left forearm, 2 cm above left wrist joint to left 1st inter digital left (17x2.7x2.5 cm). the cut medial part of left little finger along with (18) fractured i and ii metacarpals of left hand, seen hanging loosely from lower 1/3 left forearm with skin and subcut attachment (19) a deep cut injury in right hand from iii interdigital cleft to base of right palm (12x2.7x2.5 cm) with 20 fractured metacarpals i to iv in right hand with missing medial 3 fingers (part, which was seen separately, the separately found hand part of little, ring, middle fingers along with fractured partial metacarpal parts matched with the deceased right hand cutsite perfectly both anatomically and by complexion by matching intact epidermic area. thus, arriving to the decision that it belongs to the deceased. internal: thorax:- no bony injury to ribs / cartilages. heart - normal size, chambers - looking pale / empty. lungs - grey coloured, early decomposition changes present, semisolid in consistency. on cutsection - thin film of serosanguinous fluid escapes out. hyoid-intact. larynx, trachea - a thin film of pale brownish coloured fluid present, no mud particles found. abdomen:- stomach - about 20 ml of pale brownish coloured fluid present. mucosla ruggae - lost, mucosa - semisolid in consistency. liver - looking pale. spleen and kidneys - semisolid in consistency and pale looking. intestines - distended with gas, greenish discolouration present around caecum. head: no bony injuries in skull. membranes - intact, brainmatter - semisolid and pasty. base of skull - no bony injury. spines: bony injury to c2 and c3 spines with fracture dislocation due to external cut injury (9). abdominal viscera - sent for chemical analysis." ex.p10 is the postmortem certificate. she gave opinion that the multiple cut injuries found on the body of the deceased could have been caused by weapons like m.os.1 and 2 (aruvals). she further opined that the death of the deceased was due to shock and hemorrhage due to the said multiple cut injuries. 2.7. p.w.13, during the course of investigation, arrested both the accused on 10.02.2014 at 06.30 p.m. at betamanagar bus stop. on such arrest, the first accused, while in custody, made a voluntary confession, in which he disclosed the place where he had hidden the aruvals. in pursuance of the same, he took the police and the witnesses to the place of hide out and produced m.os.1 and 2. p.w.13 recovered the same under a mahazar. on returning to the police station, he forwarded the accused to court for judicial remand and handed over the material objects also to the court. on completing the investigation, he laid chargesheet against both the accused. 2.8. based on the above materials, the trial court framed charges as detailed in the first paragraph of this judgment, which the accused denied. in order to prove the case, on the side of the prosecution, as many as 13 witnesses were examined, 14 documents and 3 material objects were marked. 2.9. out of the said witnesses, p.ws.1 and 2 claims to have witnessed the entire occurrence. they have vividly spoken about the same. they have further stated that they searched for the dead body in the thamirabarani river water and finally p.w.1 made a complaint at 05.00 p.m. on the same day. p.ws.3 and 4 have spoken about the preparation of the observation mahazars. 2.10. p.w.5 a staff from the fire and rescue service has stated about the retrieval of the dead body from the thamirabarani river water. according to him he received intimation from the respondent police at 09.20 a.m. on 09.02.2014 and immediately he went to the place of occurrence and searched for the dead body but he could retrieve the same only on the next day i.e. on 10.02.2014 at around 02.00 p.m. p.w.6 has stated that he heard that the deceased was cut by some unknown persons and then he went to the place of occurrence and joined the others in the rescue operation. 2.11. p.w.7 has spoken about the arrest of both the accused on 10.02.2014 and the disclosure statement made by the first accused which resulted in the discovery of m.os.1 and 2. p.w.8 is a police constable who has stated that he handed over the f.i.r. to the learned magistrate at 08.25 p.m. on 09.02.2014. p.w.9 is yet another police constable has stated that he handed over the dead body of the deceased to the doctor for postmortem as directed by p.w.13. 2.12. p.w.10 dr.j.d.vinothini has spoken about the postmortem conducted and her final opinion regarding the cause of death. p.w.11 has spoken about the registration of the case on the complaint of p.w.1. p.ws.12 and 13 have spoken about the investigation done by them and the final report filed. 3. when the above incriminating materials were put to the accused under section 313 cr.p.c., they denied the same as false. however, they did not choose to examine any witness nor mark any document on their side. their defence is a total denial. having considered all the above, the trial court convicted the appellants as detailed in the first paragraph of this judgment and that is how, they are before this court with this appeal. 4. we have heard the learned counsel appearing for the appellants and the learned additional public prosecutor appearing for the state and also perused the records, carefully. 5. the learned senior counsel appearing for the appellant would submit that neither p.w.1 nor p.w.2 is a resident of the occurrence village. p.w.1 is admittedly a resident of melapalayam village and p.w.2 is a resident of salem. they are also closely related to the deceased. thus, according to the learned senior counsel the presence of p.ws.1 and 2 at the place of occurrence is highly doubtful. he would further submit that their conduct in not making complaint to the police till 05.00 p.m. on the same day would also create enormous doubt in the case of the prosecution. 6. the learned additional public prosecutor would however resists this appeal. according to him, p.ws.1 and 2 were natural witnesses to the occurrence as they have accompanied the deceased to the river for taking bath. he would further submit that p.ws.1 and 2 had to search for the deceased and therefore there had occurred delay in making the complaint. the learned additional public prosecutor would further submit that there are no reasons to reject the evidences of p.ws.1 and 2. thus, according to the learned additional public prosecutor the judgment of the trail court does not require any interference at the hands of this court. 7. we have considered the above submissions. 8. as we have pointed out, the prosecution relies mainly on the eyewitnesses account of p.ws.1 and 2. admittedly, p.ws.1 and 2 do not belong to the occurrence village. they are also closely related to the deceased. in such a position, since they were chance witnesses and closely related, the prosecution should explain to the satisfaction of the court as to what was the occasion for these two witnesses to be present at the place of occurrence. the explanation offered by them is that they had come to the occurrence village to participate in a mosque festival. in our considered view, going by the conduct of these two witnesses, their explanation is difficult to be believed. they have stated that they witnessed the occurrence around 08.00 a.m. had it been true, they would have gone to the police station to make a complaint within a reasonable time. but the complaint was made by them only at 05.00 p.m. on the same day. absolutely there is no explanation on their part as to why they did not choose to make any complaint to the police immediately. 9. according to the case of the prosecution, the earliest information to p.w.11, the then sub inspector of police, was only at 05.00 p.m. on 09.02.2014. as rightly contended by the learned senior counsel for the appellants, this cannot be true. p.w.5 the fire and rescue service staff has stated, by referring to his records, that on 09.02.2014 at 09.20 a.m. itself, he received a request from the srivaigundam police station requesting him to come and retrieve the dead body of a man which had been washed away in the thamirabarani river water. thus, even before 09.20 a.m. on 09.02.2014, there was information to the police and that information being the earliest information should have contained the true version of the occurrence. but that information has been suppressed, for which, absolutely there is no explanation offered. the suppression of the earliest information which was received by the police before 09.20 a.m. on 09.02.2014, creates enormous doubt in the very presence of p.ws.1 and 2 and the case of the prosecution itself. 10. in this regard, the evidence of p.w.6 also assumes importance. p.w.6 is closely related to the deceased. he has stated that on 09.02.2014, he heard that the deceased was cut by unknown persons and pushed into the thamirabarani river water. he came to the place of occurrence joined p.w.5 and searched for the dead body of the deceased. had it been true that p.ws.1 and 2 were witnesses to the occurrence, certainly they would have informed p.w.6 that the deceased was cut by these two accused. the very fact that p.w.6 was not aware of the assailants though p.ws.1 and 2 were present and joined him in the search operation, would go to show that p.ws.1 and 2 would not have been present at all at the time of occurrence. 11. the dead body of the deceased was rescued only on the next day i.e. on 10.02.2014 at 02.00 p.m. the f.i.r. reached the hands of the learned magistrate at 08.25 p.m. on 09.02.2014. thus, it is crystal clear that ex.p1 has been prepared by planting p.ws.1 and 2 as eyewitnesses at around 05.00 p.m. on 09.02.2014. in our considered view, in view of the above anomalies, it is not safe to believe p.ws.1 and 2 and sustain the conviction. there is no other evidence, worth considering against the accused. therefore, we hold that the prosecution has failed to prove the case beyond all reasonable doubts and thus the appellants are entitled for acquittal. 12. in the result, (i) the appeal is allowed; the conviction and sentence imposed on the appellants/accused 1 and 2 by the learned ii additional sessions judge, thoothukudi, thoothukudi district in s.c.no.50 of 2015 dated 12.02.2016 is set aside and the appellants are acquitted. (ii) the fine amount, if any paid, shall be refunded to them. (iii) the bail bond, if any executed, by them, shall stand discharged.
Judgment:

(Prayer: Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned II Additional Sessions Judge, Thoothukudi, Thoothukudi District in S.C.No.50 of 2015 dated 12.02.2016.)

S. Nagamuthu, J.

1. The appellants are the accused 1 and 2 in S.C.No.50 of 2015 on the file of the learned II Additional Sessions Judge, Thoothukudi, Thoothukudi District. They stood charged for offences punishable under Sections 302, 294(B) and 506(ii) I.P.C. By judgment dated 12.02.2016, the Trial Court convicted them under Section 302 I.P.C. alone and sentenced them to undergo imprisonment for life and pay a fine of Rs.1000/- in default to undergo simple imprisonment for one year. The trial Court however acquitted them from the charges under Sections 294(B) and 506(ii) I.P.C. Challenging the said conviction and sentence, the appellants are before this Court with this appeal.

2. The case of the prosecution in brief is as follows:

2.1. The deceased in this case was one Shaik Abdul Kathar. Though the accused hails from a village known as Kongaraiyakuruchi, for about 20 years, he was residing in Salem. He used to come to Kongaraiyakuruchi village to participate in the important functions in the local mosque. During the year 1986, one Mr.Murugan S/o Ayyapillai Devan of Kongaraiyakuruchi village was murdered. The deceased was one of the accused in the case. From then onwards, the family members of the deceased Murugan were inimical towards the deceased Shaik Abdul Kathar. The accused herein are the brother's son of Mr.Murugan. Thus, they were also inimical towards the deceased Shaik Abdul Kathar.

2.2. It is alleged that on 08.02.2014, the deceased had come down to Kongaraiyakuruchi village to participate in a local festival. Around 05.00 p.m. when he was standing near the mosque in Kongaraiyakuruchi, these two accused came there. They shouted at the deceased and challenged that they would not spare the deceased alive.

2.3. Thereafter, on 09.02.2014, P.Ws.1 and 2 and the deceased had gone to Thamirabarani river running on the South of Kongaraiyakuruchi village. At around 08.00 a.m. P.Ws.1 and 2 were taking bath and the deceased was sitting by the side of the river and washing his clothes in a stone. At that time, these two accused came there, both armed with one aruval each. On reaching the deceased, they started cutting the deceased indiscriminately. Having received number of cut injuries, the deceased lost his balance and fell in the river water. P.Ws.1 and 2 cried for help, the accused fled away from the scene of occurrence with the weapons. P.Ws.1 and 2 searched for the deceased in the water, but they could not find him anywhere.

2.4. Thereafter, P.W.1 went to Srivaigundam Police Station and made a complaint at 05.00 p.m. on 09.02.2014. The then Sub Inspector of Police, on receipt of the said complaint, registered a case in Crime No.67/2014 under Sections 302, 294(B) and 506(ii) I.P.C. Ex.P1 is the complaint and Ex.P11 is the F.I.R. He forwarded both the documents to Court, which reached by the learned Magistrate at Srivaigundam at 08.25 p.m. on 09.02.2014.

2.5. The case was taken up for investigation by P.W.12 the then Inspector of Police. He went to the place of occurrence at 06.45 p.m. and prepared an observation mahazar and a rough sketch at the place of occurrence. He examined P.Ws.1 to 3 and few more witnesses and recorded their statements. On his information, the fire and rescue service men came to the place of occurrence and searched for the dead body of the deceased in the Thamirabarani river water. He also searched for the accused. On the next day i.e. on 10.02.2014, investigation was continued by his successor P.W.13. The fire and rescue service men at last retrieved the dead body from the Thamirabarani river at around 02.00 p.m. near Pandiyaraja temple, which is at a far off place from the place where the occurrence had taken place. After the body was taken out from the water, P.W.12 conducted inquest on the body of the deceased and forwarded the same for postmortem.

2.6. P.W.10 Dr.J.D.Vinothini conducted autopsy on the body of the deceased on 11.02.2014 at 09.50 a.m She found the following injuries:

"Injuries:- All the injuries below stated as cut wounds have the regular cleancut edges without any bleeding; the cut edges are brownish coloured and exposed tissues are brownish coloured. (1) A cut wound (10x5xupto bone depth) in right parietal scalp. 92) A cut wound (4x3xupto bone depth) in left eyebrow area (3) A cutwound (5x1.5x1 cm) in nasal area. (4) A cut wound (8.5x5x2 cm) in left cheek. (5) A cut wound (12x3x2 cm) in left lower jaw area; no dental injury noted (6) A cutting wound (7x3x6 cm) below right ear with cut injury to right carotid vessels at C1-C2 level. (7) A cut wound (3 x 2 x upto (torn) depth in right frontal bone area of scalp (8) torn (9) torn 22x4xupto bony spine depth with (10) injury to C2, C3 spines causing fracture dislocation of C2, C3 (11) A cutwound (15x4x3 cm) in right upper chestwall. (12) A cut wound (7x4x3.5 cm) in left upper chestwall below left shoulder (13) Fracture in left clavicle at the junction of med 1/3 and mid 1/3. (14) A cutwound 7x4x3 cm in right lateral cheswall below right armpit. (15) A cutwound 8x4x2 cm in mid 1/3 of right forearm (16) A cutwound 20x10x3 cm in left mid 1/3 arm with injury cuts to posterior compartment muscles (17) A deep cutwound in left hand and left forearm, extending from lower 1/3 of left forearm, 2 cm above left wrist joint to left 1st inter digital left (17x2.7x2.5 cm). The cut medial part of left little finger along with (18) Fractured I and II metacarpals of left hand, seen hanging loosely from lower 1/3 left forearm with skin and subcut attachment (19) A deep cut injury in right hand from III interdigital cleft to base of right palm (12x2.7x2.5 cm) with 20 fractured metacarpals I to IV in right hand with missing medial 3 fingers (Part, which was seen separately, The separately found hand part of little, ring, middle fingers along with fractured partial metacarpal parts matched with the deceased right hand cutsite perfectly both anatomically and by complexion by matching intact epidermic area. Thus, arriving to the decision that it belongs to the deceased.

Internal: Thorax:- No bony injury to ribs / cartilages. Heart - Normal size, chambers - looking pale / empty. Lungs - Grey coloured, early decomposition changes present, semisolid in consistency. On cutsection - thin film of serosanguinous fluid escapes out. Hyoid-intact. Larynx, Trachea - a thin film of pale brownish coloured fluid present, No mud particles found.

Abdomen:- Stomach - about 20 ml of pale brownish coloured fluid present. Mucosla ruggae - lost, mucosa - semisolid in consistency. Liver - looking pale. Spleen and Kidneys - semisolid in consistency and pale looking. Intestines - distended with gas, greenish discolouration present around caecum.

Head: No bony injuries in skull. Membranes - intact, Brainmatter - semisolid and pasty. Base of skull - no bony injury.

Spines: Bony injury to C2 and C3 spines with fracture dislocation due to external cut injury (9). Abdominal viscera - sent for chemical analysis."

Ex.P10 is the postmortem certificate. She gave opinion that the multiple cut injuries found on the body of the deceased could have been caused by weapons like M.Os.1 and 2 (aruvals). She further opined that the death of the deceased was due to shock and hemorrhage due to the said multiple cut injuries.

2.7. P.W.13, during the course of investigation, arrested both the accused on 10.02.2014 at 06.30 p.m. at Betamanagar bus stop. On such arrest, the first accused, while in custody, made a voluntary confession, in which he disclosed the place where he had hidden the aruvals. In pursuance of the same, he took the police and the witnesses to the place of hide out and produced M.Os.1 and 2. P.W.13 recovered the same under a mahazar. On returning to the police station, he forwarded the accused to Court for judicial remand and handed over the material objects also to the Court. On completing the investigation, he laid chargesheet against both the accused.

2.8. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment, which the accused denied. In order to prove the case, on the side of the prosecution, as many as 13 witnesses were examined, 14 documents and 3 material objects were marked.

2.9. Out of the said witnesses, P.Ws.1 and 2 claims to have witnessed the entire occurrence. They have vividly spoken about the same. They have further stated that they searched for the dead body in the Thamirabarani river water and finally P.W.1 made a complaint at 05.00 p.m. on the same day. P.Ws.3 and 4 have spoken about the preparation of the observation mahazars.

2.10. P.W.5 a staff from the fire and rescue service has stated about the retrieval of the dead body from the Thamirabarani river water. According to him he received intimation from the respondent Police at 09.20 a.m. on 09.02.2014 and immediately he went to the place of occurrence and searched for the dead body but he could retrieve the same only on the next day i.e. on 10.02.2014 at around 02.00 p.m. P.W.6 has stated that he heard that the deceased was cut by some unknown persons and then he went to the place of occurrence and joined the others in the rescue operation.

2.11. P.W.7 has spoken about the arrest of both the accused on 10.02.2014 and the disclosure statement made by the first accused which resulted in the discovery of M.Os.1 and 2. P.W.8 is a police constable who has stated that he handed over the F.I.R. to the learned Magistrate at 08.25 p.m. on 09.02.2014. P.W.9 is yet another police constable has stated that he handed over the dead body of the deceased to the doctor for postmortem as directed by P.W.13.

2.12. P.W.10 Dr.J.D.Vinothini has spoken about the postmortem conducted and her final opinion regarding the cause of death. P.W.11 has spoken about the registration of the case on the complaint of P.W.1. P.Ws.12 and 13 have spoken about the investigation done by them and the final report filed.

3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witness nor mark any document on their side. Their defence is a total denial. Having considered all the above, the trial Court convicted the appellants as detailed in the first paragraph of this judgment and that is how, they are before this Court with this appeal.

4. We have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State and also perused the records, carefully.

5. The learned senior counsel appearing for the appellant would submit that neither P.W.1 nor P.W.2 is a resident of the occurrence village. P.W.1 is admittedly a resident of Melapalayam village and P.W.2 is a resident of Salem. They are also closely related to the deceased. Thus, according to the learned senior counsel the presence of P.Ws.1 and 2 at the place of occurrence is highly doubtful. He would further submit that their conduct in not making complaint to the police till 05.00 p.m. on the same day would also create enormous doubt in the case of the prosecution.

6. The learned Additional Public Prosecutor would however resists this appeal. According to him, P.Ws.1 and 2 were natural witnesses to the occurrence as they have accompanied the deceased to the river for taking bath. He would further submit that P.Ws.1 and 2 had to search for the deceased and therefore there had occurred delay in making the complaint. The learned Additional Public Prosecutor would further submit that there are no reasons to reject the evidences of P.Ws.1 and 2. Thus, according to the learned Additional Public Prosecutor the judgment of the trail Court does not require any interference at the hands of this Court.

7. We have considered the above submissions.

8. As we have pointed out, the prosecution relies mainly on the eyewitnesses account of P.Ws.1 and 2. Admittedly, P.Ws.1 and 2 do not belong to the occurrence village. They are also closely related to the deceased. In such a position, since they were chance witnesses and closely related, the prosecution should explain to the satisfaction of the Court as to what was the occasion for these two witnesses to be present at the place of occurrence. The explanation offered by them is that they had come to the occurrence village to participate in a Mosque festival. In our considered view, going by the conduct of these two witnesses, their explanation is difficult to be believed. They have stated that they witnessed the occurrence around 08.00 a.m. Had it been true, they would have gone to the police station to make a complaint within a reasonable time. But the complaint was made by them only at 05.00 p.m. on the same day. Absolutely there is no explanation on their part as to why they did not choose to make any complaint to the police immediately.

9. According to the case of the prosecution, the earliest information to P.W.11, the then Sub Inspector of Police, was only at 05.00 p.m. on 09.02.2014. As rightly contended by the learned senior counsel for the appellants, this cannot be true. P.W.5 the fire and rescue service staff has stated, by referring to his records, that on 09.02.2014 at 09.20 a.m. itself, he received a request from the Srivaigundam police station requesting him to come and retrieve the dead body of a man which had been washed away in the Thamirabarani river water. Thus, even before 09.20 a.m. on 09.02.2014, there was information to the police and that information being the earliest information should have contained the true version of the occurrence. But that information has been suppressed, for which, absolutely there is no explanation offered. The suppression of the earliest information which was received by the police before 09.20 a.m. on 09.02.2014, creates enormous doubt in the very presence of P.Ws.1 and 2 and the case of the prosecution itself.

10. In this regard, the evidence of P.W.6 also assumes importance. P.W.6 is closely related to the deceased. He has stated that on 09.02.2014, he heard that the deceased was cut by unknown persons and pushed into the Thamirabarani river water. He came to the place of occurrence joined P.W.5 and searched for the dead body of the deceased. Had it been true that P.Ws.1 and 2 were witnesses to the occurrence, certainly they would have informed P.W.6 that the deceased was cut by these two accused. The very fact that P.W.6 was not aware of the assailants though P.Ws.1 and 2 were present and joined him in the search operation, would go to show that P.Ws.1 and 2 would not have been present at all at the time of occurrence.

11. The dead body of the deceased was rescued only on the next day i.e. on 10.02.2014 at 02.00 p.m. The F.I.R. reached the hands of the learned Magistrate at 08.25 p.m. on 09.02.2014. Thus, it is crystal clear that Ex.P1 has been prepared by planting P.Ws.1 and 2 as eyewitnesses at around 05.00 p.m. on 09.02.2014. In our considered view, in view of the above anomalies, it is not safe to believe P.Ws.1 and 2 and sustain the conviction. There is no other evidence, worth considering against the accused. Therefore, we hold that the prosecution has failed to prove the case beyond all reasonable doubts and thus the appellants are entitled for acquittal.

12. In the result,

(i) the appeal is allowed; the conviction and sentence imposed on the appellants/accused 1 and 2 by the learned II Additional Sessions Judge, Thoothukudi, Thoothukudi District in S.C.No.50 of 2015 dated 12.02.2016 is set aside and the appellants are acquitted.

(ii) The fine amount, if any paid, shall be refunded to them.

(iii) The bail bond, if any executed, by them, shall stand discharged.