The prosecution must prove its case beyond all reasonable doubt. In case of case and counter, the investigating officer must take up the investigation together to avoid conflicting judgments on the same occurrence. The failure to do so results in serious prejudice to the accused.

JUDGMENT

(Prayer: Appeal filed under Section 374 of the Criminal Procedure Code, to set aside the judgment of conviction and sentence dated 21.12.2018 made in S.C.No.136/2011 on the file of the learned Additional District and Sessions Judge, Dindigul, and allow this appeal.)

R. Subramanian, J.

1. The 1st accused in S.C.No.136 of 2011, who has been convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- failing which, to undergo two years rigorous imprisonment, is on appeal against the said conviction.

2. The case of the prosecution is that on 07.05.2010, when the complainant Silambarasan was sitting in the cash box of Punnagai Hotel, one Kannan, a mentally retarded person, was transporting water in a handcart. Since the said Kannan did not give way to the Auto which was driven by A2/Marimuthu, A2 got down from the Auto and beat up the said Kannan. The complainant therefore got down from the cash box, explained to A2 about the mental status of Kannan and took the said Kannan and the water cart to Punnagai Hotel. Thereafter, one Krishnamurthy, uncle of the complainant, who returned from Palani, went to the Auto Stand and warned A2. At around 10.45 p.m., when the complainant and his employee Murugan were in Punnagai Hotel, the accused persons came with deadly weapons to the Hotel and shouted at Krishnamurthy, as to how he could warn A2. Unexpectedly, the appellant/A1 pulled Krishnamoorthy and attacked him in the head with sickle. When Murugan and the complainant attempted to prevent, A2/Marimuthu beat up Murugan and the complainant. The appellant/A1 attacked Krishnamoorthy who had fallen down with the sickle and thereafter, the accused persons departed from the scene of occurrence. The complainant had taken his uncle Krishnamoorthy to Palani Government Hospital and the Police had enquired him at the Government Hospital and recorded his statement. The Sub Inspector of Police, Palani, visited the scene of occurrence and prepared the Observation Mahazar which is marked as Ex.P16. The signatures of the witnesses to Ex.P16 namely, PW2 and PW3 found therein, were marked as Exs.P2 and P4 respectively. The Sub Inspector of Police, Palani, also collected the earth with bloodstains and earth without bloodstains under recovery mahazar Ex.P18. The signature of the witnesses to Ex.P18 namely, PW2 and PW3 were marked as Ex.P3 and P5. A2/Marimuthu was arrested at 08.00 a.m., on 08.05.2010 and he had given a confession statement. The admissible portion of the confession was marked as Ex.P6. On the basis of the said confession, the sickle-M.O.1 and the wooden log-M.O.2 were seized under Ex.P7-Mahazar. The appellant/A1 surrendered before the Village Administrative Officer, Palani, about 02.00 p.m on 13.05.2010 and gave a confession statement. The said confession statement was marked as Ex.P8. The body of the deceased Krishnamoorthy was sent for postmortem under Ex.P9. The accident register was marked as Exs.P10 and P11. The forensic reports were marked as Exs.P12 to P14. Upon carrying out the investigation, the investigating officer had filed a final report for the offences under Section 302 IPC in respect of the appellant/A1 and for the offences under Sections 323, 302 r/w Section 114 IPC and Section 302 r/w with Section 34 IPC, in respect of A2.

3. Before the trial Court, in an attempt to prove the prosecution's case, the prosecution examined 19 witnesses and marked 22 documents. The sickle and the wooden log were marked as M.O.1 and M.O.2. No evidence was let in on the side of the appellant. Exs.B1 and B2 were marked on his side.

4. The trial Court on consideration of the evidence on record, concluded that the prosecution has proved the offence under Section 302 IPC in respect of the appellant/A1. Since A2 Marimuthu died pending trial, the case against him stood abated. The appellant/A1 was convicted and sentenced to undergo life imprisonment with a fine of Rs.10,000/-, in default of