(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment of learned First Additional District and Sessions Judge, Erode in S.C.No.69 of 2017 dated 27.01.2020.)

N. Sathish Kumar, J.

1. Aggrieved over the judgment of conviction and sentence passed by the learned First Additional District and Sessions Judge, Erode in S.C.No.69 of 2017 dated 27.01.2020, the instant appeal has been filed by the appellants. The accused 1 to 4/appellants were convicted Section 302 read with 34 of IPC and sentenced to undergo life imprisonment each and to pay a fine of Rs.5000/- each and in default of payment of fine, shall undergo further sentence of six months simple imprisonment each.

2. The case of the prosecution is as follows :

                   2.1. The accused 1 to 3 are the cousins of the deceased and the 4 th accused is the son of the elder brother of the deceased. PW1 and PW2 are the sons of the deceased and PW3 is the wife of the deceased. On 29.10.2016 at about 11.00 pm, while the deceased was irrigating his land and removing some debris from the pipe, since he had thrown the debris in the accused land, there arose a dispute and when the deceased hit the A1 and A2 on their head with wood logs, on hearing the shouting, the accused 3 and 4 rushed to the spot and the first accused with a spade, 2 nd accused with a spade handle, third accused with his hands and fourth accused with a wooden log had assaulted the deceased due to which the deceased was seriously injured.

                   2.2. According to PW1, on 29.10.2016 at 11.pm., when he was in his in-laws house in Elumathur, he was informed by the PW15, wife of A1 that the accused and the deceased quarrelled with each other in the place of occurrence & on hearing the same, the PW1 informed PW2, since, PW2 was unable to come, PW1 himself went to his mother's house and took her to the place of occurrence. When they visited the place of occurrence, he found his father was lying on the canal bund. Immediately, his father has informed that A1 to A4 have attacked him with spade, spade handle and wooden log. PW1 & PW3 took the injured to the Erode Government Hospital, thereafter, the injured was shifted to the Erode Trust Hospital on 30.10.2016 and from there, Ex.P1 complaint was recorded from him and his father was given treatment till 14.11.2016 and thereafter, he was brought to the Erode Government Hospital on 14.11.2016 and again, he was shifted to Salem Kumaramangalam Hospital and despite giving treatment, his father succumbed to injuries on 23.11.2016. The complaint given by PW1 is marked as Ex.A1. PW2 also reached the Government Hospital the very next day and on enquiry, his father has informed him about the role of all the accused beating him. PW3 has also reached the spot along with PW1 and found the deceased with injuries and took him to the hospital. According to her, when enquired, the deceased has informed her that the accused had beaten him.

                   2.3.PW4, Senior Assistant Surgeon deposed that he had admitted the deceased in the Erode Government Hospital on 30.10.2016 at about 1.25 am brought by PW1 and noted that the deceased was having lacerated injury on his right leg measuring 5x1 cm with a bone fracture and there was contusion in his left forearm and left wrist. The injured became unconscious at 5 am on the same day. In this regard, he has given Ex.P2 Accident Register and Ex.P3 police intimation. PW5, doctor attached to the Erode Trust Hospital admitted the injured on 30.10.2016 at 12.44 pm and issued Ex.P4, accident register and Ex.P5 wound certificate and Ex.P6 discharge summary.

                   2.4. PW17, Sub Inspector of Police after receipt of intimation from the Erode Government Hospital went to the Erode Trust Hospital and enquired PW1 and recorded his statement and registered FIR under Ex.P16 in Cr.No.210/2016 under Section 323, 324 & 506(ii) of IPC. On the same day, she has also recorded the statement from the A1 and registered the FIR under Ex.P17 in Cr.No.211 of 2016 under Sections 294(b) & 324 of IPC. At about 13.30 hours, she had gone to the scene of occurrence and prepared Ex.P18 observation mahazar and Ex.P29 rough sketch and also seized the spade, spade handle and wooden log by preparing Ex.P20 seizure mahazar in the presence of witnesses. Thereafter, she had arrested A3 and A4 and sent them to judicial custody and sent the seized material objects to the Court by Ex.P23, viz., Form-91. On 31.10.2016, she had recorded the statement of witnesses and arrested A1 and A2 at Kodumudi Kaikatty Bus Stop on 02.11.2016 at 15.00 hours and sent them for judicial custody. Thereafter, on receipt of intimation of death from the Salem Government Hospital, she had altered the charges from 323, 324, 506(ii) to 302 of IPC under Ex.P22 alteration report and handed over the case to PW18/Inspector of Police. PW18, Inspector of Police after receipt of alteration report, took the investigation and conducted inquest over the dead body in the presence of witnesses and prepared inquest report under Ex.P24 and requested the Medical Officer to conduct autopsy. PW11, Medical Officer attached to the Salem Government Hospital after receipt of Ex.P10 request letter for postmortem conducted the postmortem and found that right leg bones were fractured with contusions and issued Ex.P11/post mortem report and after receipt of chemical analysis report, he had given Ex.P12 final opinion that the deceased would appear to have died due to effects of multiple injuries and the time of death is correlative with the time of death declared by the doctor who confirmed his death. PW12, forensic expert examined the viscera and issued Ex.P13 forensic report.

                   2.5. PW18 in continuation of the investigation recorded the further evidences and after completing the investigation, laid the charge sheet against the accused under Section 302 read with 34 of IPC in P.R.C.No.4 of 2017 before the learned Judicial Magistrate No.II, Erode.

                   2.6. On appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Sessions in S.C.No.69 of 2017 and was made over to the I Additional District and Sessions Judge, Erode for trial.

                   2.7. The trial Court framed the charges for the offences under Sections 302 read with 34 of IPC as against the accused. When questioned, the accused pleaded “not guilty”.

                   2.8. To prove the guilt of the accused, the prosecution examined P.W.1 to P.W.18, marked Exs.P1 to P27 and produced M.Os.1 to 3. On the side of the defence, neither witness was examined nor any document marked.

                   2.9. The trial Court, on appreciation of oral and documentary evidence on record, by judgment dated 27.01.2020, convicted and sentenced the accused as stated supra.

3. Challenging the conviction and sentence under Section 302 read with 34 of IPC, the accused has preferred the present appeal.

4. Mr.N.Manoharan, learned counsel for the appellants submitted that the entire prosecution case is highly doubtful. The prosecution has not placed the true version of story. The evidence of PW1 to PW3 is attached with artificiality, the so-called oral dying declaration is nothing but improved version created later. The very prosecution theory itself indicates that only the deceased was aggressor with the A1 and A2, the said factum has been conveniently suppressed by the prosecution. The very FIR lodged on the complaint under Ex.P1 is an afterthought and creates serious doubt and the Investigating Officer has not conducted the investigation in both the complaints simultaneously and had very conveniently closed the FIR registered on the basis of the complaint filed by the A1 and A2. Therefore, the entire version of the prosecution is a result of concoction and suppression. The Trial Court has merely relied upon the evidence of PW1 to PW3 and other evidences which has no relevance at all. Hence, prayed for acquittal of the appellants by allowing this criminal appeal.

5. The learned Government Advocate (Crl.Side) vehemently submitted that the evidence of PW1 to PW3 clearly proves the statement of the deceased. Admittedly, the presence of accused is also very much established by registering the counter complaint, therefore, the trial Court was right in convicting the accused. Hence, seeks for dismissal of the criminal appeal.

6. In light of the above, now, the following point arise for consideration in this appeal is as follows:-

                   (i) whether the prosecution has proved its case beyond all reasonable doubts?

                   Point (i)

7. It is not disputed that the Accused 1 to 3 and the deceased are brothers. A4 is the deceased elder brother’s son. The motive for the alleged occurrence as projected by the prosecution is that there was misunderstanding in diverting the water in the property jointly allotted to all the parties. On 29.10.2016 at 11 pm, while the deceased was in the occurrence place to divert the water and removing certain debris, he had thrown the debris to the accused land, there arose dispute between deceased and A1 & A2. The deceased had beaten the A1 and A2 with wooden logs, agitating over the same, A3 and A4 rushed to the spot and all the accused attacked the deceased with spade, spade handle and wood logs etc.

8. Admittedly, Ex.P17, FIR lodged by one of the accused is also filed, that itself clearly shows that there was some scuffle between the parties. It is relevant to note that it is admitted by the prosecution that the deceased had beaten A1 and A2 on head, but very conveniently, the medical records and nature of injuries the deceased had caused to A1 to A2 have not been placed. Though the prosecution has relied on PW14 as eye witness, he turned hostile, therefore, his evidence is in no-way going to help the prosecution case. Now, the prosecution relies upon the evidence of PW1 to PW3 who is said to have heard from the deceased, otherwise, the statement appears to be an oral dying declaration of the deceased. It is relevant to note that PW1 was not present in the place of occurrence at the relevant point of time, he was available in his in-laws home at Elumathur, on receipt of information from the PW15 through phone, he rushed to the place of occurrence which is around 7 kms from his in-laws home and he took his mother PW3 and they went to the land and found that the deceased was lying on the canal bund with injuries, at that time, the deceased informed PW1 and PW3 about the occurrence, particularly, giving minute details about the nature of the attack caused by all the accused, thereafter, the deceased was taken and admitted to the hospital. Ex.P2 is the Accident Register is recorded by PW4, Medical Officer attached to the Erode Government Hospital. The evidence of PW4 indicate that the deceased was very much conscious at the time of admitting in the hospital, whereas, the statement has been given by PW1 at the relevant point of time that the accused have attacked the deceased.

9. It is relevant to note that as per the evidence of PW4, the deceased was very much conscious, when he was admitted in the hospital. Though, it appears that immediately, police intimation was given under Ex.P3, no attempts whatsoever made to record the statement from the deceased as he was very much conscious at the relevant point of time. The evidence of PW4 indicates that the deceased lost his conscious only at 5 am in the morning, till such time, there was no attempt whatsoever made even to record any such statement by the police or through the Judicial Magistrate.

10. It is the admitted case that the deceased was taken to some other hospital and was admitted in Erode Trust Hospital on 30.10.2016 at 12.44 pm. As per Ex.P4, he was admitted only on 12.44 pm. In this regard, PW5 has also spoken, but, whereas, the very FIR and the complaint relied upon by the prosecution indicate as if on receipt of information from the hospital, the statement of PW1 was recorded from the Trust Hospital at 10 am which resulted in filing of the FIR under Ex.P16. The above facts clearly proves the fact that FIR is a result of deliberations and fabrications at later point of time. Admittedly, the deceased was admitted in the Erode Trust Hospital only on 12.44 pm as per Ex.P4, therefore, the question of recording the statement from the Erode Trust Hospital at 10 am on the same day is highly improbable. This also creates serious doubt about the entire prosecution case.

11. It is relevant to note that the medical records clearly show that the deceased was conscious initially at the time when he was admitted in the Government Hospital, later, he lost consciousness and he left the hospital as against the medical advice not once but on many occasions, even from the Erode Trust Hospital, the deceased was taken to some other hospital as against the medical advise. Though the postmortem report shows that there were some injuries on the head and there was fracture on the body, it has not established the true occurrence, the prosecution has projected only one version and other version is totally suppressed by the prosecution.

12. Though PW1 to PW3 have spoken about the oral dying declaration, their evidence is highly improbable. It is relevant to note that when PW1 and PW3 reached the spot, the deceased was lying on the canal bund, in this regard, PW3, wife of the deceased deposed that her husband was lying in the water. Therefore, PW1 reaching the spot from 7 kilometers away and thereafter, getting meticulous statement from his father at night hours when he is already aged 70 years, suffered injury and lying down for sometime is also highly improbable. Even assuming that there was statement given by the deceased, there was no reason as to why immediately complaint has not been lodged by the PW1 and PW3.

13. It is relevant to note that law was set in motion only on the basis of Ex.P1 said to have been recorded at Trust Hospital and even before the injured had gone to the Trust hospital. Further, the FIR has reached the Court. Ex.P1 and the so-called complaint and FIR reached the Magistrate only at 8.45 pm with an inordinate delay, that also remains unexplained. Therefore, merely on the basis of alleged oral dying declaration which is also parrot like version of interested witnesses, it is unsafe to rely the entire prosecution case, particularly, one version is totally suppressed. No doubt oral dying declaration when inspires confidence, there is no bar to rely upon the same, however, to place reliance on such dying declaration, it must inspire confidence of the Court and it should be free from any concoction and improvement etc.,

14. In such view of the matter, this Court is of the view that the Trial Court in fact has not even appreciated the facts properly and also erred in the very fundamentals and convicted the accused for such grave crime.

15. In such view of the matter, this Criminal Appeal stands allowed and the judgment of the trial Court dated 27.01.2020 in S.C.No.69 of 2017 is set aside, and the accused are acquitted of all the charges framed against them. Fine amount, if any, paid by the appellants/accused, shall be refunded to them. Bail bond executed by the appellants shall stand discharged.