Kerala High Court
Sahadevan vs State Of Kerala on 16 March, 2012
Author: R.Basant
Bench: R.Basant, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 16TH DAY OF MARCH 2012/26TH PHALGUNA 1933
Crl.A.No.1985 of 2007 (C)
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(S.C.No.540/2003 OF THE COURT OF THE I ADDITIONAL SESSIONS JUDGE,
THRISSUR)
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APPELLANTS/ACCUSED:-
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1. SAHADEVAN, S/O. PUTHUKULANGARA SEKHARAN,
ATTORE DESOM, KUTTUR VILLAGE, THRISSUR.
2. BABU @ SURESH BABU,
S/O. CHAKKOTHPADIKKAL AYYAPPAN, ATTORE DESOM,
KUTTUR VILLAGE, THRISSUR.
3. SUNIL, S/O. CHAKKOTHPADIKKAL AYYAPPAN,
ATTORE DESOM, KUTTUR VILLAGE, THRISSUR.
4. SANTHOSH,
S/O. CHAKKOTHPADIKKAL AYYAPPAN, ATTORE DESOM,
KUTTUR VILLAGE, THRISSUR.
5. STEPHEN, S/O. KUNDUKULAM OUSEPH,
ATTORE DESOM, KUTTUR VILLAGE, THRISSUR.
6. SASI, S/O. KUTTAPPAN,
CHAKKAMADATHIL HOUSE, VALIYAPARAMBU, ATTORE DESOM
KUTTUR VILLAGE, THRISSUR.
APPELLANTS 1 TO 4 & 6 BY ADV. SRI.P.VIJAYA BHANU (SENIOR ADVOCATE),
SRI.PRASUN.S.
APPELLANT NO.5 BY ADVS.SRI.B.RAMAN PILLAI
SRI.ANIL K.MOHAMMED
SRI.SUJESH MENON V.B.
SRI.JOSEPH P.ALEX
SRI.SHYAM ARAVIND
SRI.T.ANIL KUMAR
Crl.A.No.1985 OF 2007-C
- 2 -
RESPONDENT/COMPLAINANT:-
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ROY THOMAS.
ADV. SRI.P.V.CHANDRA MOHAN, ASSISTED THE PROSECUTION (FOR P.W.2)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-
R.Basant & K.Vinod Chandran,JJ.
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Crl.A.No.1985 of 2007
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Dated this, the 16th day of March, 2012
JUDGMENT
R.Basant,J.:
(i) Did the Court below err in accepting and acting upon the oral evidence of P.Ws 2 and 10?
(ii) Are all the accused, or any one of them, entitled to the benefit of reasonable doubt?
These are the questions that are raised before us by Senior Counsel Advocate Sri.P.Vijaya Bhanu and Advocate Sri.B.Raman Pillai appearing for the appellants in this case.
2. All the appellants have been found guilty, convicted and sentenced under Sections 143, 147, 148 and 302 read with Section 149 IPC to undergo imprisonment, inter alia, for life by the learned Sessions Judge.
3. According to the prosecution, on account of personal animosity towards deceased Rafi, a person aged about 32 years, all the six appellants/accused had formed themselves into an unlawful assembly at about 10.30 p.m. on 31.12.2001. The unlawful assembly was prompted by the common object of assaulting and causing the death of Rafi. They armed themselves with M.Os 1 and 2 (choppers), Crl.A.No.1985 of 2007 - 2 - M.Os 3 to 5 (swords) and M.O.6 (iron rod). In prosecution of the common object of the unlawful assembly, the appellants allegedly inflicted injuries, including the fatal injuries (8, 18 and 19 described in Exhibit P4) on deceased Rafi, who succumbed to those injuries.
4. Investigation commenced with the registration of Exhibit P1 F.I. Statement lodged by P.W.1 before P.W.12, who registered Exhibit P1(a) F.I.R. on the basis of Exhibit P1 F.I. Statement. P.W.1, we may mention straight away, was not an eye witness to the occurrence. Investigation was completed and final report/ charge-sheet was filed before the learned Magistrate by P.W.15. The learned Magistrate committed the case to the Court of Session after observing all legal formalities. The learned Sessions Judge took cognizance of the offences alleged against the appellants. The appellants denied the charges levelled against them. Thereupon the prosecution examined P.Ws 1 to 15 and proved Exhibits P1 to P27. M.Os 1 to 22 were also marked.
5. The appellants/accused, in the course of cross examination of prosecution witnesses and when examined under Section 313 Cr.P.C., took up a defence of total denial. According to them, no incident as alleged had at all taken place. The deceased must have suffered injuries in some other manner. They did not examine any Crl.A.No.1985 of 2007 - 3 - defence witnesses. Exhibit D1 series contradictions were marked when P.W.2 was cross examined. Exhibit D2, a slip of paper which P.W.13, Investigating Officer, was having in his possession when he tendered evidence, was marked on the side of the defence.
6. The learned Sessions Judge, on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution has succeeded in proving all the offences alleged against the appellants. The learned Sessions Judge considered it absolutely safe to place reliance primarily on the oral evidence of P.Ws 2 and 10. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment.
7. Before us the learned counsel for the appellants and the learned Prosecutor have advanced detailed arguments.
8. The learned counsel for the appellants contends that the learned Sessions Judge was grossly in error in choosing to accept and act upon the oral evidence of P.Ws 2 and 10. The learned Sessions Judge did not anxiously put the evidence of P.Ws 2 and 10 to critical evaluation. Any prudent mind ought to have accepted that P.Ws 2 and 10 were introduced in evidence long after the incident to bolster and support the case of the prosecution which, it was realized, cannot be supported on the basis of the materials collected. False witnesses, Crl.A.No.1985 of 2007 - 4 - P.Ws 2 and 10, were planted subsequently by the complainant's party with the active assistance of the police. At any rate, the appellants are entitled to the benefit of doubt and deserve to be acquitted, contend the learned Senior Counsel.
9. The learned Prosecutor, on the other hand, contends that the Court below was absolutely justified in accepting and acting upon the oral evidence of P.Ws 2 and 10. The fact that the investigators had not earlier questioned those witnesses is no reason for a prudent adjudicator to squander the evidence of P.Ws 2 and 10. The Court below has committed no error in accepting and acting upon such evidence of P.Ws 2 and 10, which does inherently inspire confidence. In any view of the matter, the impugned judgment does not call for any appellate interference. The appellants are not entitled to the benefit of any reasonable doubt, contends the Prosecutor. We have heard Sri.P.V.Chandramohan, learned counsel for P.W.2 who supported the arguments of the learned Prosecutor.
10. We have considered all the relevant inputs. This appellate judgment is rendered in continuance of the judgment of the trial Court and in that view of the matter, we deem it unnecessary to re-narrate the oral and documentary evidence placed before the learned Sessions Judge. We have been taken in detail and Crl.A.No.1985 of 2007 - 5 - meticulously through the oral evidence of P.Ws 1 to 15. The contents of Exhibits P1 to P27 and Exhibits D1 series and D2 have been read over to us in detail. The charges framed by the learned Sessions Judge against the appellants and the answers given by the appellants in the course of their examination under Section 313 Cr.P.C. have also been read to us. We may also mention that we have been taken through Exhibits C1 and C2, two documents proved by the defence when P.W.14, an additional witness, was examined before Court. We shall specifically refer to relevant materials wherever necessary in the course of the discussions to follow.
11. That deceased Rafi suffered homicidal injuries at the scene of the crime described in Exhibit P5 scene mahazar and he must have suffered those injuries with weapons like M.Os 1 to 6 is not seriously disputed. We find it absolutely safe to concur with the conclusion of the learned Sessions Judge that the deceased must have suffered such homicidal injuries at the venue identified in Exhibit P5 with weapons like M.Os 1 to 6. It is unnecessary for us to advert to the details of the materials in support of this circumstance. We have of course taken note of the oral evidence of P.W.6 and Exhibit P4 post mortem certificate issued by him. We have also taken note of Exhibit P5 scene mahazar prepared by P.W.13, of which P.W.7 is an attestor. Crl.A.No.1985 of 2007 - 6 - We have also taken note of the evidence of P.W5, who had removed the injured/deceased Rafi from the scene of the crime to the hospital. This circumstance having not been disputed and the same having been established convincingly, we proceed on the assumption that such homicidal death of the deceased at the scene of the crime described in Exhibit P5 on account of injuries described in Exhibit P4 post mortem certificate, which could have been inflicted with weapons like M.Os 1 to 6, is established convincingly.
12. The challenge/mission of the adjudicator in this case is to identify the persons who were responsible for infliction of such injuries and the circumstances under which such injuries were inflicted.
13. It is here that the version of the prosecution and the version of the accused become relevant. According to the prosecution, all the six appellants were actuated by a common object. They allegedly had animus against deceased Rafi. They, hence, constituted themselves into an unlawful assembly. The members of the unlawful assembly got themselves armed with dangerous weapons. When deceased Rafi was coming to his house, they allegedly pounced upon him and inflicted injuries on him. This, according to the prosecution, is the gist of the indictment against the appellants. The appellants, on the contrary, take up the defence that they are totally innocent; they were Crl.A.No.1985 of 2007 - 7 - not members of an unlawful assembly; they had no common object against the deceased and that they are implicated falsely in this case by the prosecution.
14. According to the prosecution, all the accused have animus against the deceased. This is seriously challenged. We, therefore, wanted the Public Prosecutor to explain what the motive of the appellants against the deceased was. We have the evidence of P.Ws 1 and 2 alone on this aspect. P.W.1, the brother of the deceased, in Exhibit P1 F.I. Statement had alleged that the 4th accused has an animus against the appellant. He did not attribute any specific motive for the other five accused persons. P.W.2, the father of the deceased, in evidence had stated that there was motive not only for A4. According to him, there was a motive for A1 also against the deceased. P.W.2 is unable to speak about the motive which A4 had against the deceased. According to the prosecution, A4 is an autorickshaw driver. He used to transport alcohol/liquor in his autorickshaw. Deceased had raised objection to such transportation of liquor in the auto rickshaw of the 4th accused for the reason that the sister of the deceased used to be carried in that autorickshaw to school. This allegedly operated as the motive. Except the statement of P.W.1, we do not find any other evidence for A4 against the deceased. So far as A1 is concerned, Crl.A.No.1985 of 2007 - 8 - P.W.2 stated on oath that deceased Rafi had helped another person to file a complaint against A1 and that he supported such victim for the prosecution of such complaint. On this aspect also except the oral evidence of P.W.2, we find no material whatsoever in support of the case of the prosecution. As against accused 2, 3, 5 and 6, no specific motive is even alleged. We are not oblivious to the fact that there is a suggestion, both from P.W.1 and P.W.2, that on the date prior to the incident there was some incident and the appellants together had gone to the house of the deceased in connection with that incident. On that aspect also no direct ocular testimony is placed before Court. Suffice it to say that even though according to the prosecution there was motive for all the accused against the deceased, no satisfactory or convincing evidence of any motive uniting A1 to A6 in their alleged action against the deceased has been placed before Court.
15. We now come to the ocular account about the incident proper. The prosecution had cited four witnesses in the final report/chargesheet. They are P.W.2, P.W.3, P.W.10 and P.W.11. All these four are stated to be eye witnesses to the occurrence as per the final report/chargesheet filed by the police. Of these, P.W3 and P.W.11 turned completely hostile to the prosecution. They did not tender any evidence against the appellants herein. The prosecution was left with Crl.A.No.1985 of 2007 - 9 - the evidence of P.W.2 and P.W.10 alone.
16. The prosecution further relied on the evidence of P.W.1, who had lodged Exhibit P1 F.I. Statement. We must note that it is a fairly prompt F.I. Statement lodged by P.W.1. Incident took place at about 10.30 p.m. on 31.12.2001. Information about the death of the deceased was given by P.W.1 to P.W.12 Sub Inspector at 2.00 a.m. on 1.1.2002 and Exhibit P1 is the said F.I. Statement. On the basis of that Exhibit P1 F.I. Statement, the F.I.R. was registered and that F.I.R. had reached the learned Magistrate at 10.30 a.m. on 1.1.2002. The prosecution wants to support the evidence of P.W.1 with the contents of Exhibit P1 F.I. Statement lodged by him before the police.
17. The prosecution further wanted to rely on the oral evidence of P.W.5. P.W.5 is one of the persons who had arranged to shift injured Rafi to the hospital. P.W.5 supported the case of the prosecution. He had not witnessed the incident proper and he does not name the assailants.
18. We shall initially refer to the evidence of P.W.5. P.W.5 is a witness who supported the prosecution. There is no case that P.W.5 is not suppressing any part of his statement before the police under Section 161 Cr.P.C. No contradictions have been marked by either side. The evidence of P.W.5 only shows that he found the deceased Crl.A.No.1985 of 2007 - 10 - with injuries at the scene of the crime and he, along with some others, shifted the injured Rafi to the hospital where he was declared dead. The evidence of P.W.5 is relevant only to the above extent. He does not at all reveal any information about the identity of the assailants who might have inflicted the injuries on the deceased.
19. We shall straight away refer to the evidence of P.W.1. According to P.W.1, he resides in his house along with the other members of his family and P.W.2. P.W.2 is his father. According to P.W.1, he received information from one Haridas on that night that his brother Rafi had suffered injuries at the scene of the crime. On the basis of that information from the said Haridas, he went to the scene of the occurrence. He found blood at the scene of the occurrence. He came to know that his brother had been shifted to the hospital. He, therefore, proceeded to the hospital. There he came to know that his brother was dead. He collected information both at the scene of the crime and at the hospital. He proceeded to the police station to lodge Exhibit P1. In Exhibit P1 he has no case that he had seen his father P.W.2, his uncle P.W.3, P.W.11 or P.W.10 - alleged eye witnesses. It is his emphatic case even now that he had no occasion to see any one of them at the scene or at the hospital. But, in Exhibit P1 F.I. Statement lodged by him, he had given the names of all the six accused persons Crl.A.No.1985 of 2007 - 11 - as the assailants. The prosecution wants to place reliance on this prompt Exhibit P1 F.I. Statement in which the complicity and involvement of all the six appellants is revealed to the police at the earliest point of time. According to the prosecution, this supports the version of the prosecution.
20. The learned counsel for the accused/appellants contend that Exhibit P1 F.I. Statement cannot be used in favour of the prosecution. They contend that in fact Exhibit P1 must arouse the worst form of doubt and suspicion in the mind of the Court about the motivations of P.W.1, who raised the allegations against the six appellants at that point of time without any tangible material admittedly, to make any allegations against them. We find this to be crucially relevant. We have read and re-read the evidence of P.W.1. In Court P.W.1, cleverly it appears to us, does not raise any allegations against the six appellants. He had done so in Exhibit P1. The learned counsel for the appellants contend that P.W.1 is resorting to that course, so that he can avoid any cross examination on that crucial aspect. How did he implicate the six appellants in Exhibit P1? On what basis was it done? To these questions, we do not find satisfactory answers forthcoming. The prosecution has not traced any eye witness other than P.Ws 2, 3, 10 and 11. At the stage of investigation - at the stage when final draft Crl.A.No.1985 of 2007 - 12 - charge was prepared and later final charge was filed, the prosecution has no case that any one other than P.Ws 2, 3, 10 and 11 had witnessed the occurrence. P.W.1 had not met anyone of them or any other eye witness before he lodged Exhibit P1. How then did P.W.1 get information about the complicity of appellants 1 to 6 which he revealed in Exhibit P1? Suffice it to say that no explanation whatsoever is offered by the prosecution as to how the names of the six appellants were given by P.W.1 in Exhibit P1 as the miscreants who had inflicted the injuries on the deceased. Even in his evidence as P.W.1 before Court, P.W.1 has no case as to how he came to know of the complicity of the six appellants at the stage of Exhibit P1.
21. Exhibit P3 inquest report was prepared on 01.01.2002 and in Exhibit P3 inquest report, we find the conclusion that the six appellants could be the miscreants who might have committed the offence. At that stage also, P.Ws 2, 3, 10 and 11 were admittedly not questioned by the investigator. The conclusion recorded in Exhibit P3 can, in these circumstances, be held to be only a repetition of what P.W.1 had stated in Exhibit P1 which, we have already noted, is not supported by any material. In these circumstances, we are unable to draw any inspiration for the version of the prosecution either from Exhibit P1 or from Exhibit P3.
Crl.A.No.1985 of 2007 - 13 -
22. We will now take note of the evidence of P.Ws 3 and 11, who were examined by the prosecution as witnesses to the occurrence. These two witnesses, we note, were traced by the prosecution long earlier - on immediately following days after the occurrence. Both P.Ws 3 and 11 turned completely hostile to the prosecution. Their evidence is of no help to the prosecution or the defence.
23. P.W.3 is none other than an uncle of the deceased. He was declared hostile and Exhibit P2 series are the case diary contradictions marked in the course of his cross examination by the Public Prosecutor. Our attention has been drawn to Exhibit P2 series [Exhibit P2, P2(a), P2(b) and P2(c)]. It is significant that even in Exhibit P2 series there is no specific reference to any one of the appellants. He does not claim that he can identify the appellants by name even in his case diary statement. Admittedly no T.I. parade was conducted also. Under Section 162 of the Evidence Act, Exhibit P2 series can be used only to contradict P.W.3. But the portions used for contradiction of P.W.3 reveal eloquently that P.W.3, even according to the prosecution, was not in a position to specifically identify the 5 to 6 assailants who had allegedly assaulted the deceased. To us that appears to be of crucial relevance in the scheme of things.
24. It appears to us to be crucial that P.W.3, in his case Crl.A.No.1985 of 2007 - 14 - diary statement before the police, had not at all revealed the presence of P.W.2 at the scene of the crime. That again is of crucial relevance when we proceed to consider the evidence of P.Ws 2 and 10. P.W.3 may not have known P.W.10, but certainly he did know P.W.2, who is none other than his brother-in-law - the father of the deceased. The fact that according to the prosecution P.W.3 did not claim to have seen P.W.2 or P.W.10 at the scene of the crime, is certainly of crucial and vital relevance to us.
25. We now come to the evidence of P.W.11, who had also turned completely hostile to the prosecution. Exhibit P13 series [Exhibit P13 and P13(a)] case diary contradictions were marked by the prosecution. He does, it can be seen from Exhibit P13 series, specifically refer to the presence of P.W.3 at the scene, but significantly and surprisingly does not at all refer to the presence of P.W.2 or P.W.10 at the scene. This, to us, is of crucial reference when we shall later proceed to consider the acceptability of the evidence of P.Ws 2 and 10.
26. The prosecution now wants to rely on the oral evidence of P.Ws 2 and 10 as eye witnesses to the occurrence. The history of they being arrayed as witnesses deserves to be narrated for a proper appreciation of their evidence. We have already noted that P.W.3 or Crl.A.No.1985 of 2007 - 15 - P.W.11 had not spoken about the presence of P.W.2 and P.W.10 at the scene of crime even to the police in their case diary statements, as can be understood from Exhibit P2 series and Exhibit P13 series. A draft final report was prepared by the Investigating Officer. In that, the Investigating Officer had arrayed only P.Ws 3 and 11 as witnesses to the occurrence. At that stage, when the draft final report reached the Deputy Superintendent of Police, who is the official superior of the Investigating Officer, he appears to have received some complaint allegedly from P.W.2 (P.W.2 does not own it and the complaint is not produced). On the basis of that complaint, the Investigating Officer then in charge is alleged to have proceeded to question P.Ws 2 and 10. The answers given by P.Ws 13 and 15 establish beyond the trace of any reasonable doubt that at the stage when the draft final report was prepared and sent to the Dy.S.P., there was nothing in the Case Diary to indicate that either P.W.2 or P.W.10 had actually witnessed the occurrence. So much is eloquently clear from the answers given by P.Ws 13 and 15. At that stage, decision was taken to question P.Ws 2 and 10. They were actually questioned on 28.07.2003. We remind ourselves that the incident had taken place as early as on 31.12.2001. After about 19 months, P.Ws 2 and 10 wore the mantle of eye witnesses and were examined as eye witnesses by the Investigating Crl.A.No.1985 of 2007 - 16 - Officer. It is thus that P.Ws 2 and 10 came into the picture in this prosecution.
27. With this history in the background, we shall now proceed to analyse the evidence of P.Ws 2 and 10.
28. P.W.2 is the father of the deceased. According to him, he resides in the house of P.W.1. His son deceased Rafi resides in an adjacent house. Deceased Rafi returns to his house late in the night. Till he returns, the light in the house of Rafi keeps burning. It is switched off only after Rafi comes. On the night in question, P.W.2 waited to see whether Rafi had returned. Rafi had not returned. Lights in his house were not switched off. There were some incidents earlier, which made him apprehensive of the safety and security of his son Rafi. He apprehended that the appellants may cause harm to the said Rafi. He, therefore, allegedly went from the house of P.W.1 and waited at the bus stop. He was waiting for Rafi to return. Rafi ultimately came, not in the bus but in an auto rickshaw. P.W.10 was also available with Rafi. New year celebrations were going on and P.W.10, according to the prosecution, had accompanied Rafi to take part in the new year celebration along with the deceased Rafi. P.W.2 allegedly warned Rafi that he should not go to his house through the scene of the crime as P.W.2 apprehended harm to his person at the hands of the appellants. Crl.A.No.1985 of 2007 - 17 - Rafi was not willing to oblige. He allegedly went to his house through the scene of the occurrence. It is there, according to P.W.2, that the appellants assaulted deceased Rafi.
29. He has a specific version about the manner in which the injuries were inflicted. A2 and A5 had allegedly caught hold of deceased Rafi with the words that he need not proceed to his house before the incident on the previous day was talked over and settled. At that point, A1 allegedly inflicted injuries on Rafi. Accused 3, 4 and 6 along with accused 1, 2 and 5 thereupon inflicted multiple injuries on Rafi with the weapons M.Os 1 to 6. P.W.10, who was present along with Rafi, ran away from the scene of the crime. P.W.2 also, apprehending danger to himself, went away from the scene of the crime. Both were admittedly not available to attend on the deceased who had suffered injuries. Thereafter he was questioned by the Investigating Officer only on 28.07.2003 in the circumstances already referred to.
30. We shall straight away refer to the evidence of P.W.10 also. He hails from a far off area. He had come to the scene of occurrence along with the deceased allegedly to take part in the new year celebrations. At the bus stop, when deceased and P.W.10 were proceeding in the auto rickshaw, they saw P.W.2. They got down. Crl.A.No.1985 of 2007 - 18 - Ignoring the entreaties of P.W.2, Rafi started to proceed to his house through the scene of the crime. There, Rafi was attacked in the manner spoken to by P.W.2. P.W.10 also claims to have witnessed the occurrence. He is able to identify only accused 2, 5 and 1. Others (i.e., A3, A4 and A6), he was not able to identify. He, on seeing the incident had run away. He was also questioned long later on 28.07.2003 under the circumstances to which we have already adverted to.
31. Can P.Ws 2 and 10 be believed in these circumstances? This is the crucial question raised for consideration.
32. Delay in the questioning of a prosecution witness or the defects in investigation cannot certainly deliver any advantage to the indictees, if Court is convinced about the truth of the version advanced by those witnesses. A number of precedents have been cited at the Bar. We find it unnecessary to specifically refer to those precedents. We are in complete agreement that if the evidence of a witness inspires confidence of the Court, the fact that the Investigating Officer did not question such witness promptly and the Investigating Officer was guilty of laches in the proper conduct of the investigation cannot deter the Court from placing reliance on such testimony. On that aspect of the matter, we have no disagreement on the question of law.
33. The real question is whether the evidence of P.Ws 2 Crl.A.No.1985 of 2007 - 19 - and 10 can inspire the confidence of this Court. That is the real question to be considered in this case. The fact that they were not questioned till 28.07.2003 is virtually conceded by the prosecution. An attempt was made to explain that it was a mere delay in questioning P.W.2 and P.W.10. The Investigators really wanted to question P.Ws 2 and 10. But, they happened to be not questioned on account of peculiar reasons. P.W.13 allegedly went to the house of P.W.2 to question him on 01.01.2002. His condition was unfortunate and pitiable. He was hence not questioned on 01.01.2002. Later there happened to be an omission to question P.W.2 by P.W.13 as well as his successor investigators. Even when the draft final report was prepared, that omission continued. So was the case of P.W.10 also. Though the investigator wanted to question P.W.10, he was not readily available. Admittedly no notice was issued either to P.W.2 or P.W.10 to appear before the investigator for the purpose of recording a statement. Nay, what really disturbs is the fact that admittedly the case diary, till the draft final report was prepared, did not admittedly show that P.Ws 2 and 10 had witnessed the occurrence or that they have to be questioned. That, according to us, must clinch the issue and tilt the scales against the present case of the prosecution that P.Ws 2 and 10 had witnessed the incident and must be believed.
Crl.A.No.1985 of 2007 - 20 -
34. In this context, the learned counsel for the appellants points out that there is substantial difference between the case spoken to by P.Ws 2 and 10 now in Court on oath and the version the prosecution wanted initially to advance through P.Ws 3 and 11. Now the prosecution has a case that the initial overt acts were by A2 and A5
- of holding deceased Rafi with their hands. A1 later came and inflicted injuries on the deceased. Subsequently, all the six indulged in the overt acts against the deceased. This appears to be the present case of P.Ws 2 and 10 in Court, though P.W.10 did not identify accused 3, 4 and 6. The case of P.Ws 3 and 11 before the Investigating Officer as revealed from Exhibit P2 series and Exhibit P13 series is that all the six pounced on deceased Rafi and rained inflictions on him. This variation/ transformation between the case of P.Ws 2 and 10 on the one hand now before Court and the version of P.Ws 3 and 11 before the investigators as revealed from Exhibit P2 series and Exhibit P13 series is certainly of relevance in the totality of circumstances.
35. We take note of the evidence of P.W.1 and Exhibit P1 again now for the purpose of evaluation of the oral evidence of P.Ws 2 and 10. P.W.1 in Exhibit P1 has no case whatsoever that his father had gone out of his house in search of the deceased on that night. In fact, the evidence of P.W.1 in Court suggests that all the members of the Crl.A.No.1985 of 2007 - 21 - family, including P.W.2, had gone to sleep on that night when Haridas came and passed on the information about the injuries suffered by deceased Rafi. What is of crucial relevance to us is that in Exhibit P1 it is not even mentioned that the father of P.W.1 had witnessed the occurrence or had gone in search of deceased Rafi on that night. In the sequence of events, to which we have narrated above, that omission of P.W.1 in Exhibit P1 to refer to the fact that P.W.2 was an eye witness or even that he had gone in search of the deceased on that night is certainly of crucial and vital relevance.
36. We must note that according to P.W.1 he had gone to the hospital. According to P.W.2 also he had gone to the hospital. It was later that P.W.1 proceeded to the police station to lodge Exhibit P1. It is too much to assume that if actually P.W.2 had witnessed the occurrence, P.W.1 would not have known about it till he lodged Exhibit P1 F.I. Statement. Similarly, if P.W.10 had witnessed the occurrence and the same were known to P.W.1, it is very unlikely that P.W.1 would not have revealed that information in Exhibit P1. Even in Exhibit P3 inquest report prepared later on 01.01.2002, there is no semblance of any indication to suggest that either P.W.2, the father of the deceased or P.W.10, the friend of the deceased had witnessed the occurrence.
37. The conduct of P.Ws 2 and 10 also is extremely Crl.A.No.1985 of 2007 - 22 - improbable. It was not as though the infliction of injuries were made at any isolated place. Admittedly new year celebrations were going on in the locality and several persons had collected. It will be too naive for a Court to meekly swallow the version of P.Ws 2 and 10 that they were in such mortal fear in that situation and they - father and friend of the deceased, went away from the scene without worrying about what happened to the injured at the scene of the crime. Their conduct does not also inherently inspire confidence. Their conduct after allegedly witnessing the occurrence, does not rhyme with natural human conduct.
38. In this context we revisit Exhibit P1. We note that even without any specific tangible material P.W.1 had raised allegations against all the appellants. We find merit in the contention of the learned counsel for the appellants that the furnishing of the names of the six appellants in Exhibit P1 by P.W.1, which version is not repeated by him on oath before Court, must persuade this Court more to doubt the present motivations and intentions of P.W.1, P.W.2 and P.W.10 to implicate the appellants on the basis of mere suspicion or prior animosity. We find merit in that contention also.
39. The prosecution wanted to rely on recovery of M.Os 1 to 6 on the basis of the confession statements of accused 1 to 6. They also wanted to rely on recovery of clothes allegedly worn by the Crl.A.No.1985 of 2007 - 23 - appellants on the date of the occurrence on the basis of the statements given by them while in custody. It is true that M.Os 11 to 22, clothes of accused 1 to 6 respectively (two each) were recovered by the Investigating Officer on the basis of their statements under Exhibits P16 to P21. But, the clothes so recovered are not found to be bloodstained. No eye witness has a case that the six appellants were wearing those clothes at the time of occurrence. In these circumstances, we find no crucial probative significance for the recovery of M.Os 11 to 22 clothes under Exhibits P16 to P21 allegedly on the basis of information furnished by the appellants to the Investigating Officer.
40. We now come to the recovery of the weapons M.Os 1 to
6. These were allegedly recovered on the basis of the information furnished by the appellants in the course of their confession statements. The relevant portions have been marked as Exhibits P7(a) to P12(a). Recoveries have been effected under Exhibits P7 to P12 seizure mahazars. P.W.9 is a common attestor to all these six mahazars. The prosecution wants to make use of this evidence of recovery of weapons to persuade the Court to draw support and inspiration for the oral evidence of P.Ws 2 and 10.
41. We have looked into Exhibits P7 to P12, Exhibits P7(a) to P12(a), the oral evidence of P.W.9 as also the oral evidence of Crl.A.No.1985 of 2007 - 24 - P.W.13. Even going by the case of the prosecution, all these weapons were allegedly kept concealed together. Identical statements are given by accused 1 to 6 that they together had concealed all the weapons together at the place from where it was recovered. In fact, Exhibits P7
(a) to P12(a) appear to suggest that if they are taken to the place of concealment, they shall take out the weapon which they wielded, from such weapons kept together and hand over the same to the Investigating Officer. Such a joint/identical statement of concealment of all the weapons together by all the accused and their offer to take out the weapon used by them from the place of concealment cannot evidently come within the sweep of Section 27 of the Evidence Act. At any rate, the evidence of recovery of M.Os 1 to 6, according to us, is absolutely insufficient for this Court to draw inspiration for the oral evidence of P.Ws 2 and 10.
42. The learned counsel for the appellants point out that if we go by the version of P.Ws 2 and 10, the weapons which were allegedly handed over to the Investigating Officer is not the weapon used by them at least in respect of some of the accused. We are not, in these circumstances, persuaded to make use of the evidence of recovery of M.Os 1 to 6 to draw inspiration for the oral evidence of P.Ws 2 and 10.
Crl.A.No.1985 of 2007 - 25 -
43. We are in ready agreement with the learned counsel that the investigation in this case leave very little to be desired. We have no quarrel on that aspect at all. In fact, we do painfully note that when the draft final report was filed, there was only the evidence of P.Ws 3 and 11. We have already seen from Exhibit P2 series that P.W.3 does not identify the six appellants. P.W.11, it has come out in evidence, is none other than an uncle of A6. It would have been idle for any alert Investigating Officer to assert that he expected the case to be proved against the appellants on the basis of the evidence which he proposed to adduce through P.Ws 3 and 11. Even Haridas who allegedly passed on information to P.W.1 is not questioned or cited as a witness by the investigator.
44. The inadequacy of the investigation is disturbingly eloquent. But, all the same that alone cannot persuade us to blindly accept the evidence of P.Ws 2 and 10 which as already indicated by us by reference to various circumstances above, does not inspire our confidence.
45. We have no hesitation, in these circumstances, to conclude that the proper, ideal, just and fair course which this Court can now follow is to concede to the appellants/accused the benefit of the reasonable doubt that is aroused in our mind by the insufficient Crl.A.No.1985 of 2007 - 26 - evidence adduced and the inadequate investigation conducted. We unhesitatingly concede to the appellants/accused the benefit of such doubt.
46. In the result:
(a) this appeal is allowed.
(b) The impugned judgment is set aside.
(c) The appellants are found entitled to the benefit of
doubt. They are, consequently, found not guilty and acquitted of all the charges levelled against them.
47. The Registry shall communicate this judgment to the Court below and the prison authorities where the appellants are kept in custody. If their further detention is not required in connection with any other case, they shall forthwith be released from custody.
Sd/-
R.Basant, Judge Sd/-
K.Vinod Chandran, Judge.
vku/-
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