(Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure against the judgment passed by the learned I Additional District-cum- Sessions Judge, Salem in S.C.No.430 of 2018 dated 13.12.2019.)

N. Sathish Kumar, J.

1. The appellant is the sole accused in S.C.No.430 of 2018 on the file of I Additional District and Sessions Judge, Salem. He stood charged for the offence under section 302 IPC. By judgment dated 13.12.2019, the trial Court had convicted the accused for the offence under Section 302 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.5,000/- and in default to pay fine to undergo simple imprisonment for a period of 6 months Challenging the said conviction and sentence imposed on the appellant, he is before this Court with this appeal.

2. Brief Facts of the Prosecution case are as follows:

                   (i) The accused is the son of the deceased. The deceased was living with his second wife along with the accused. There were frequent quarrels between the son and father and on the date of occurrence i.e., on 10.05.2018 at about 10.00 p.m, while the deceased was sitting outside the house, the accused quarrelled with the deceased as the deceased refused to give him money for consumption of alcohol and thereafter, at about 11.00 p.m., the accused dragged the deceased inside the house and assaulted him with a culinary cutting instrument (arivalmanai) and also hit the deceased with a gas cylinder, thereby, killing him on the spot.

                   (ii) The occurrence was witnessed by the neighbours (PW5 and PW6) who informed the occurrence to the family members of the deceased and also the Village Administrative Officer (PW1). The Village Administrative Officer, along with her Assistant, visited the house of the deceased on the next day i.e., on 11.05.2018 at about 10.00 am and after making preliminary enquiry, lodged the complaint (Ex.P1) against the accused narrating the occurrence.

                   (iii) Based on the complaint (Ex.P1), PW10, the Special Sub-Inspector attached to Ethapur Police Station, registered a case in Crime No.207 of 2018 for the offence under Section 302 of IPC. Thereafter, he forwarded the copy of the FIR to PW11-Inspector of Police for further investigation at about 11.30 a.m.. Thereafter, PW11 proceeded to the place of occurrence at about 01.15 pm and prepared Observation Mahazar in the presence of PW1 and PW2 and also conducted inquest (Ex.P12) between 2 p.m and 4 p.m. Thereafter, he recorded the statements of PW1 to PW6 and also recorded the statement of witnesses and seized the gas cylinder (MO4) and culinary cutting instrument (arivalmanai) (MO3) and sent the body for postmortem through Special Sub-Inspector of Police (PW8) along with MO1-blood stained earth and MO2-ordinary earth. On the same day, at about 05.30 p.m., he arrested the accused and thereafter, along with the properties seized, the accused was produced before the Judicial Magistrate and the accused was remanded to judicial custody.

                   (iv) In the meantime, PW8 also produced the body of the deceased along with a requisition letter to PW9-Medico-Legal doctor for conducting postmortem and based on the request, postmortem was conducted and Ex.P7 (Postmortem Certificate) was issued noting the injuries on the body and after receiving viscera report (Ex.P8), final opinion (Ex.P9) was given stating that deceased appears to have died due to effects of head injuries since no poison was detected in chemical analysis. Subsequently, the investigation was conducted by PW12 and he examined PWs 7 to 10 and filed the final report against the accused for the offences under Section 302 and 506(ii) of IPC. Based on the above materials, the trial Court framed the charges under Sections 302 and 506(ii) IPC.

3. In order to prove the charges, the prosecution examined PW1 to PW12 and marked Exs.P1 to P15.

4. On the above incriminating materials, when the accused was questioned under Section 313 Cr.P.C, he denied the allegations made against him and pleaded not guilty. However, he did not choose to examine any witness nor did he mark any document in his favour.

5. Having considered the above, the trial Court convicted the accused as stated in the opening paragraph by judgment dated 13.12.2019. Aggrieved by the same, the accused is before this Court, with this appeal.

6. The learned counsel for the appellant submitted that though the prosecution has examined PWs 3 to 6 as eye-witnesses to the occurrence, they have not supported the prosecution case and they have stated that they came to know about the occurrence only on the next day and only based on the evidence of PW5, who is the neighbour, the appellant / accused has been convicted for the aforesaid offence.

7. We have heard the learned counsel for the appellant and learned Government Advocate (Crl.side) appearing for the respondent and we have carefully perused the entire materials.

8. From a perusal of evidence of P.W.5, the neighbour, it is seen that on the date of occurrence, the accused quarrelled with the deceased for the reason that he had not taken steps immediately to take the accused on bail in another case and attacked the deceased and pulled him inside the house and PW5 immediately intervened and questioned the accused, but the accused told him that it is a dispute between him and his father and he shall not interfere in the family affairs. It is the further evidence of PW5 that only on the next day, he came to know that the deceased had died. But, in the cross examination, PW5 has stated that at the time of quarrel between the deceased and the accused, five other persons, who used to consume liquor with the deceased, were also present. However, they have not separated the accused and the deceased. PW5 further stated in the cross examination that he saw the body of the deceased at about 07.30 am on the floor. Though it could be seen from the evidence of PW5 that there was a quarrel between the accused and the deceased, his evidence could not be given much credence as he was not examined immediately and he was added as a witness only after a month and his statement has also reached the Court only the next month. The examination of PW5 near the place of occurrence immediately after the occurrence is being suspected and it is strengthened by the fact that his statement reached the Court only after one month. That apart, except the evidence of PW5, no other material has been produced to show that he has witnessed the occurrence or not. Further, PW5 has not stated about the exact time of the occurrence.

9. When PW5, the neighbour, saw the accused pulling his father inside the house, the normal conduct of a person is to intervene and prevent the accused from attacking his father, but the same has not been done. As already observed above, apart from the evidence of PW5, no other evidence was produced to show that the accused was present at the time of occurrence.

10. In such view of the matter, we are of the view that convicting the accused by merely relying on the evidence of PW5 is not proper and we hold that the prosecution has not proved the charges against the accused beyond reasonable doubt.

11. In the result, this criminal appeal is allowed and the conviction and sentence imposed on the appellant/accused vide judgment of the learned I Additional District and Sessions Judge, Salem in S.C.No.430 of 2018 dated 13.12.2019 are set aside. The appellant/accused is acquitted of all the charges and therefore, directed to be set at liberty forthwith, unless his custody is required in connection with any other case. The fine amount paid, if any, is ordered to be refunded to the appellant. The bail bonds executed by and on behalf of the Appellant are cancelled. Consequently, the connected miscellaneous petition is closed.