P.N.PRAKASH, J.

Aggrieved by the acquittal of the respondents/accused by the learned Principal Sessions Judge, Villupuram vide Judgment dated 4.3.2010 in S.C.No.76 of 2009, the State has preferred C.A.No.422 of 2010 under Section 378 of Cr.P.C.

2. Arumugam, the defacto complainant in this case has filed Crl.R.C.No.601 of 2010 under Section 397 r/w 401 Cr.P.C ., challenging the acquittal of the respondents/accused.

3. The case of the Prosecution is as follows:

4. Abrasion Rt. Thigh 2 x 1 cm

5. Lacerated wound Rt. occipital region of scalp 3 x 2 cm.

6. Abrasion of neck 2 x 1 cms Internal Exam:

Rt. parietal occipital region of brain matter.

Chest - Ribs intact. Lungs congested.

Heart congested.

Chambers - 25 ml of clotted blood present.

Stomach - congested, 5 ml of straw coloured fluid present.

Intestines - congested distantic gas Liver congested, Kidney congested, Spleen congested, 25 ml of clotted blood present.

Organs preserved for chemical analysis - Hyoid bone & viscera.

PM concluded at 12.15 pm on 22/3/06.

Time of death 24 to 36 hrs. prior to PM exam.

Opinion as to cause of death - Reserved pending report of chemical analysis."

(g) The internal organs were sent for visceral examination to the Tamilnadu Forensic Science Laboratory and the Viscera Report dated 30.5.2006 (Ex.P-7) shows that no alcohol or poison were detected in the organs. Hyoid bone was sent to the Professor of Forensic Medicine, Chengalpattu Medical College, Chengalpattu and the Report dated 10.4.2006 (Ex.P-8) states, "Opinion Hyoid bone intact. Nil Fracture seen in the hyoid bone."

(h) On receipt of Visceral Report (Ex.P-7) and Hyoid Bone Report (Ex.P-8), Dr.Dharanivel (PW-5) opined that "the deceased would appear to have died of (neck abrasion) Vasovagal shock".

(i) After postmortem, the body was handed over to the Police and the apparels on the body of the deceased viz., Blood stained Shirt (MO-2); Blood stained Dhothi (MO-3); Underwear (MO-4) and Towel (MO-5) were sent to the Tamil Nadu Forensic Science Laboratory through Court for serological examination, along with the blood stained soil and grass that were recovered from the place of occurrence. The Serology Report (Ex.P-16) shows the presence of human blood group 'B' in MO-2 shirt and MO-3 Dhothi, worn by the deceased. As regards other items, the result of grouping test was found to be inconclusive.

(j) Narayanasamy (PW-7) arrested Govindasamy (A-1) at 8.15 a.m. on 22.3.2006 and recorded his confession statement. Based on the admissible portion of the confession statement (Ex.P-4), the Investigating Officer recovered a Bamboo baton(MO-1) alleged to have been used by the accused under the cover of Mahazar (Ex.P-5) in the presence of Devanathan (PW-3) and Anbalagan (not examined).

(k) After the transfer of Narayanasamy (PW-7), the investigation was continued by Usman Ali Khan, Inspector of Police (PW-8), who examined few witnesses including the Experts and filed the Final Report against the three accused/respondents on 16.4.2007 for the offences under Sections 341 and 302 r/w 34 IPC . Usman Ali Khan (PW-8) in his evidence before the Court has stated that after he had filed the Final Report on 16.4.2007, his successor in office Rajendran, Inspector of Police (not examined), arrested Venkatesan (A-2) and Hari @ Harikrishnan (A-3) on 9.2.2008 and recorded their confession statements.

4. On appearance of the accused before the jurisdictional Magistrate, they were furnished with copies of the Final Report and documents relied upon by the Prosecution under Section 207 Cr.P.C. and the case was committed to the Court of Sessions in S.C.No.76 of 2009, where the following charges were framed:

5. To prove the above charges, the Prosecution examined eight Witnesses; marked 16 Exhibits; and produced 9 Material Objects. No Witness was examined, nor Exhibit marked on the side of the accused.

6. The accused were questioned about the incriminating circumstances against them under section 313 of Cr.P.C. and their denials were recorded.

7. After hearing both sides and going through the evidence on record, the Trial Court acquitted the accused of all the charges, by judgment dated 4.3.2010, challenging which the State has preferred C.A.No.422 of 2010, and the defacto complainant has filed Crl.R.C.No.601 of 2010.

8. It is fairly settled law that the Appellate Court should be slow in interfering with the acquittal of the accused since there is a presumption of innocence in his favour, which has received the stamp of legal imprimatur of the trial Court. Of course this does not in any way denude the powers of this Court to re-appreciate the evidence denovo as held by the Honourable Supreme Court in Ramappa Halappa v. State of Karnataka (2007 AIR SCW 2635).

9. The fate of the accused hinges upon the evidence of Arumugam (PW-1) and Duraisamy (PW-2), who are said to be the eye witnesses to the occurrence. Arumugam (PW-1) is the son-in-law of the deceased Pichaikaran. In his evidence before the Court, he has deposed that the deceased had requested him to get a mechanic for repairing the oil engine of the Motor Pump, and therefore he picked up Duraisamy (PW-2) on 21.3.2006 and was taking him to the fields of the deceased Pichaikaran in and around the time of occurrence. Arumugam (PW-1) further stated that he was walking about 50 feet behind the deceased, when he saw the three accused stopping the deceased and attacking him. Both Arumugam (PW-1) and Duraisamy (PW-2) have stated that Venkatesan (A-2) and Hari @ Harikrishnan (A-3) throttled the neck of the deceased and Govindasamy (A-1) hit the deceased on the back of his head with Bamboo baton (Bamboo stick) (MO-1). When they both rushed, the assailants saw them and ran away and that they found Pichaikaran lying dead.

10. It is the consistent case of the accused in their defence that the body of the deceased was found in the land of Govindasamy (A-1), and that, it was he who lodged the complaint, but a case has been foisted against them on the basis of a false complaint (Ex.P-1) given by Arumugam (PW-1).

11. According to Arumugam (PW-1) he was walking about 50 feet behind the accused with Duraisamy (PW-2). It is not their case that the accused were armed with deadly weapons like knife, etc. The occurrence is said to have taken place in broad day light. From the rough sketch (Ex.P-11) it is seen that Paiyoor village, where the deceased and the accused live, is on the northern side. From there a pathway is shown coming towards the southern side, where the land of Govindasamy (A-1) is situated. Adjoining the land of Govindasamy (A-1) on the southern side, the land of the deceased is situated. Thus, both of them share a common boundary. The dead body was found amidst the land of Govindhasamy, which is a Casuarina grove. From the above, it is evident that if one has to come to the lands from Paiyoor village, he should have to walk from north to south. There is no access from south to north as Korai river flows on the southern end. PW-1 in his evidence has stated that he was proceeding towards northern side when the occurrence took place. This cannot be true because as stated above, Paiyoor village is located on the northern side and Korai river is located on the southern side and the land of the accused and deceased are sandwiched between the two.

12. It is the case of Arumugam (PW-1) that the deceased was going to his lands, and that he was following the deceased about 50 meters behind. Assuming for a moment that the deceased and PW-1 were walking towards north, the land of the deceased will be before that of the accused, and therefore, there was no necessity for the deceased to walk upto the lands of Govindasamy (A-1). On the contrary, as stated above, the body was found in the land of Govindasamy (A-1) and not in the land of the deceased. Duraisamy (PW-2) in his evidence has stated that they both were walking about one acre away behind the deceased, in which case they could have never seen the incident even. It is little difficult for us to swallow the theory that the accused attacked the deceased while he was passing through their lands, and left the body there and fled away.

13. It is the specific case of the Police that the body was despatched to the hospital on 21.3.2006 itself and the Govindhasamy (A-1) was arrested only on 22.3.2006, whereas, Arumugam (PW-1) in his evidence has stated that he saw the Police bringing the accused to the place where the body was lying.

14. If we test the evidence of the ocular witnesses Arumugam (PW-1) and Duraisamy (PW-2) on the anvil of the medical evidence, our doubt on the innocence of the accused gets further strengthened. It is the specific case of the Prosecution that A-2 and A-3 had throttled the deceased by hands and caused his death. The injuries noted in the Inquest Report (Ex.P-12) do not appear to tally with the injuries noted on the body of the deceased by Dr.Dharanivel (PW-5).

15. Common sense dictates that if death had occurred on account of throttling, there will be visible evidence of congestion of neck, nail bruises, scratches, etc. Internal findings will show defused extravasation underneath the bruises and abrasions found on the exterior part of the neck. Posterior wall of oesophagus will show congestion because it gets compressed against the vertebral column. Usually, there will be fracture of the hyoid bone. Most probably, the death by throttling will be due to asphyxia.

16. Dr.Dharanivel (PW-5), who performed the autopsy was extensively cross-examined by the defence on some of these aspects. In the Postmortem Certificate (Ex.P-9) under the head 'external injuries', the 6th injury is abrasion of neck 2 x 1 cm. To a specific question put to Dr.Dharanivel (PW-5) in the cross-examination, he has candidly admitted that he has failed to record, in which part of the neck the said injury was found. He has also further admitted that, based on the said injury alone, he cannot say which part of the neck was throttled by the assailant. PW-5 has further stated that he was not able to find out that the death would have occurred because of asphyxia. PW-5 has not found any injury in the internal examination of the neck tissues and oesophagus. Therefore, the allegation of the prosecution that A-2 and A-3 had throttled the neck of the deceased does not have even a semblance of support from the Postmortem findings.

17. Coming to the injury on the head, the 5th injury noted under the sub-heading 'external injuries' in the Postmortem Certificate (Ex.P-9) states 'lacerated wound right occipital region of the scalp 3 x 2 cm'. There is no reference to the presence of blood in the scalp region. The soil and grass that were taken from near the body was not found to have blood stains by the Serologist in his report (Ex.P-7). Internal findings of the skull shows that the scalp was intact. For the first time in the chief examination Dr.Dharanivel (PW-5) has stated that the 5th and 6th injuries can cumulatively or individually cause death in the ordinary course of nature. PW-5 has specifically admitted in the cross-examination that, since he did not think that the 5th injury could cause death in the ordinary course of nature, he did not say so to the Police. Initially PW-5 had proceeded on the premise that the hyoid bone was fractured, which stood belied by the report of the Professor of Forensic Medicine (Ex.P-8). After getting the hyoid bone Report, PW-5 has opined that the death could have occurred due to vasovagal shock.

18. Death is broadly classified into natural and sudden death, and vasovagal death is normally classified under the sub-heading 'Miscellaneous Causes of death', falling under the main heading 'Sudden death'. Death due to vasovagal shock is opined by the Autopsy Doctor after excluding all other possibilities of cause of death. The following statement from NANDY'S HANDBOOK OF FORENSIC MEDICINE AND TOXICOLOGY by APURBA NANDY (2013 Edition) (Page 132) may be relevant, "Of all cases of sudden death about 45% are due to pathology in the cardiovascular system, about 20% due to pathology of the respiratory system, about 15% due to central nervous system, about 6% due to alimentary causes, about 4% due to genito-urinary causes and rest 10% are due to miscellaneous causes."

Under the heading "Miscellaneous Causes" (Page 133), it is stated as follows:

(Emphasis Supplied) From the above, one can say without contradiction that death due to vasovagal shock occurs freakishly and from that alone we cannot conclude that the injury in question is sufficient in the ordinary course of nature to cause death, without anything more. Thus, in our opinion, the medical evidence does not lend support to the prosecution theory.

19. Yet another deficiency in the prosecution case is that there is no evidence adduced to show when and where A-2 and A-3 were arrested. According to PW-8, the Final Report was filed on 16.4.2006 and A-2 and A-3 were arrested on 9.2.2008, which means that in the Final Report they should have been shown as absconding accused. This Court perused the Final Report and found that A-2 and A-3 have not been shown as absconding accused. The Final Report proceeds on the premise that the hyoid bone was fractured, on account of which the death had occurred. We are aware of the legal position that the Final Report is not a substantive piece of evidence, but we are mentioning this only to show the anxiety of the Police to fix the accused.

20. It is the specific case of the accused that sugarcane was planted in the land of Govindasamy (A-1), from where the body was recovered, whereas the Rough Sketh (Ex.P-11) shows the presence of Casuarina crop. Had the prosecution marked the photographs that were admittedly taken at the scene of occurrence at the instance of Narayanasamy (PW-7), the first Investigating Officer, it would have been easier for this Court to test the veracity of the prosecution version. For the reason best known to the Prosecution, neither the photographer was examined, nor the photographs were marked, which only goes to support the specific suggestion put to the Investigating Officer by the accused that filing of the photographs would dislodge the prosecution theory.

21. In fine, we find that appreciation of evidence by the Trial Court has not been perverse, warranting interference by this Court in this Criminal Appeal and Criminal Revision Case. Consequently, the judgment of the learned Principal Sessions Judge, Villupuram dated 4.3.2010 in S.C.No.76 of 2010 is confirmed and both the Criminal Appeal and the Criminal Revision Case are dismissed.