Kerala High Court
Thottiyil Babu vs State Of Kerala on 2 September, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937
CRL.A.No.1519 of 2003 ( )
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AGAINST THE JUDGMENT IN SC 106/2001 of ADDITIONAL DISTRICT & SESSIONS
COURT(ADHOC)FAST TRACI-I, MANJERI, DATED 02-09-2003.
APPELLANTS/ ACCUSED:
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1. THOTTIYIL BABU, S/O.CHOYIKUTTY, VALLIKKUNNU, THIRURANGADI.
2. TTHARAYIL KUNHIKORU, S/O.NAYADIKUTTY, VALLIKKUNNU, THIRURANGADI.
3. THOTTIYIL SAMI, S/O.CHAYICHAN, VALLIKKUNNU, THIRURANGADI.
4. THOTTIYIL VINOD, S/O.SAMI, VALLIKKUNNU, THIRURANGADI,
5. THARAYIL KUTTAN @ PARANGODAN, S/O.RAMAN, VALLIKKUNNU,
THIRURANGADI.
6. PARAMBIL PRAKASAN, S/O.KRISHNAN, VALLIKKUNNU, THIRURANGADI.
7. ATHARAPULLIKKAL BALAKRISHNAN, S/O.UNICHANDAN,
VALLIKKUNNU, THIRURANGADI.
BY ADVS.SRI.P.VIJAYA BHANU
SMT.P.MAYA
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ABOOBACKER
THIS CRIMINAL APPEAL RESERVED ON 03.12.2015 AND HAVING BEEN
FINALLY HEARD ON 09-02-2016, ALONG WITH CRA.1591/2003, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
ss
K. RAMAKRISHNAN, J.
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Crl. Appeal No.1519 of 2003
and Crl. Appeal No.1591 of 2003
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Dated this the 9th day of February, 2016
JUDGMENT
Criminal appeal No.1519 of 2003 was filed by accused Nos.1 to 4, 7, 9 and 10, while Criminal appeal No.1591 of 2003 was filed by the remaining accused namely accused Nos. 5, 6, 8, 11 to 21, 23 to 31 and 33 in S.C.No.106 of 2001 of Additional Sessions Court (Adhoc-I), Manjeri. The appellants in both these appeals along with the absconding accused Nos.32 were charge-sheeted by the Circle Inspector of Police, Tanur, in Crime No.136/1996 of Parappanangadi police station under Section 143, 147, 148, 447, 448, 427, 379, 395 read with Section 149 of the Indian Penal Code.
2. The case of the prosecution in nut shell was that on 01.07.1996 at about 4.00 p.m, all the accused along Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 2 with other persons formed themselves an unlawful assembly with deadly weapons in furtherance of their common object of committing offences, criminally trespassed into the residential compound of the defacto-complainant at Vallikunnu and committed rioting armed with deadly weapons like sword, stick, pickax, axe, spade, iron rod etc., and accused Nos.1 to 4, 7 and 10 among them criminally trespassed into the house of the defacto-complainant breaking open the kitchen door of the said house and 10th accused had snatched a gold chain weighing 11/4 sovereign from the neck of CW3 and accused Nos.4, 8, 9 and 26 committed theft of motor and jet pump installed near the well by destroying its foundation and also destroyed fence fixed on the boundary and they have done all these things in the course of the same transaction and thereby all of them have committed the offence punishable under the above said sections.
3. After investigation, final report was filed Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 3 before the Judicial First Class Magistrate Court, Parappanangadi, where it was taken on file as C.P.No.56/2000. Since accused No.22 died during investigation, charge against him abated. After complying with the formalities, the learned magistrate committed the case to Sessions Court, Manjeri under Section 209 of the Code of Criminal Procedure (hereinafter called 'the Code') against accused Nos.1 to 21, 23 to 31 and 33 and case against accused No.32 was split up and refiled as C.P.No.18/2001. After committal, the case was taken on file by the Sessions Court as S.C.No.106/2001 and thereafter it was originally made over to Assistant Sessions Court, Thirur for disposal. When the appellants appeared before that court, after hearing both sides, Assistant Sessions Judge, Thirur had framed charge under Section 143, 147, 148, 447, 448, 427, 379 and 395 read with Section 149 of the Indian penal Code against the appellants alone and the same was read over and explained to them and they pleaded not Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 4 guilty. Thereafter the case was withdrawn and made over to Additional Sessions Court (Adhoc-I), Manjeri for disposal by the Sessions Judge.
4. In order to prove the case of the prosecution, PWs 1 to 7 were examined and Ext.P1 to P8 and MO1 series were marked on their side. After closure of the prosecution evidence, the accused were questioned under Section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in the prosecution evidence. They have further stated that PW4 was obstructing the public from taking water from the well and there was some agitation by the public regarding the same and a civil suit was filed in respect of the same and on account of that enmity, they have been falsely implicated in the case. Except marking Ext.D1, there was no other evidence adduced on the side of the accused in defence. After considering the evidence on record, the court below found accused Nos.1 to 4, 7, 9 and 10 guilty for the offences Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 5 under Section 143, 147, 148, 447, 448, 427, 379 and 395 of the Indian Penal Code while other accused persons were found guilty for the offence under Section 143, 147, 148, 447, 427 and 379 of Indian Penal Code and convicted them thereunder respectively and sentenced accused Nos.1 to 4, 7, 9 and 10 to undergo rigorous imprisonment for three years each and also to pay a fine of 2,000/- each under Section 148 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years each and also to pay a fine of 5,000/- each under section 427 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for three months each and also to pay a fine of 500/- each under Section 448 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for three years each and also to pay a fine of 5,000/- each and under Section 379 of Indian Penal Code and further sentenced to undergo rigorous imprisonment for five years each and also to pay a fine of 5,000/- each Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 6 under Section 395 of the Indian Penal Code and in default of payment of fine under Section 148 to undergo simple imprisonment for one month and for the offence under Section 447 to undergo simple imprisonment for six months and for the offence under Section 448 to undergo simple imprisonment for three months and for the offence under Section 379 sentenced to undergo simple imprisonment for six months and also for the offence under Section 395 sentenced to undergo simple imprisonment for six months and directed the substantive sentence run concurrently. Remaining accused were sentenced to undergo rigorous imprisonment for three years each and also to pay a fine of 1,000/- each, in default to undergo simple imprisonment for six months each and further sentenced to undergo rigorous imprisonment for one year each and pay fine of 2,000/-, in default to undergo simple imprisonment for six months each under Section 427 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 7 for three years each and also to pay a fine of 5,000/- each, in default to undergo simple imprisonment for one year each under Section 379 of the Indian Penal Code and directed the sentences to run concurrently. No separate sentence was awarded for the offence under Section 143, 147 and 447 of the Indian Penal Code. It is further ordered that if fine amount is realised, an amount of 30,000/- be paid to the defacto-complainant and Velayudhan. Aggrieved by the same, the above appeals have been filed by the respective accused /appellants.
5. Since these two appeals arose out of the same judgment, this court has decided to dispose of those appeals by a common judgment.
6. Heard Senior Counsel, Sir.P.Vijayabhanu and Sri.Vipin Narayan counsels appearing for the appellants and Sri.Jibu P.Thomas, learned Public Prosecutor appearing for the State.
7. The counsel for the appellants submitted that Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 8 except the interested testimony of PWs 4 to 6, there is no independent witnesses examined to prove the incident. Further the evidence of PW4 will go to show that immediately after the incident, an Advocate Commissioner inspected the property and at that time, accused Nos.2 and 3 were present in that place. It was also brought out in evidence that police officials under the leadership of one Assistant Sub Inspector of Police were present at the place of occurrence and no attempt was made either to question those police officials who were present or cite them as witnesses to prove the incident. They were the best persons to speak about the incident and non examination of them will amount to suppression of material witnesses, which is sufficient to doubt the genuineness of the prosecution case. Further since there was a civil suit pending between the parties, it cannot be said that there was trespass as alleged. There is lack of evidence regarding the identity of the accused persons who formed the unlawful assembly, who Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 9 carried the weapons and what was the nature of overt act done by each accused persons and in such circumstances, court below was not justified in convicting all the appellants for the offences alleged. Further even according to PW4, there was one Babu Raj was present at the place of occurrence and he had seen the incident, but he was not even questioned or cited as witness in the case. Further there is no attempt made to seize the alleged weapons for the offence said to have been used by the accused persons to commit the crime. There was no investigation at all conducted by the investigating officer and the investigating officer who conducted the major portion of the investigation was not examined and that had caused prejudice to the accused. In a case where there was no investigation, then it is not safe to rely on the evidence adduced on the side of the prosecution to convict the accused persons. He had relied on the decisions reported in Navinchandra N. Majithia v. State of Meghalaya and Others (AIR 2000 Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 10 (SC) 3275), Babubhai and others v. State of Gujarat and Others (2010(12) SCC 254), State v.
Peddahanumappa and Others (2004 Cri.L.J. 2255), Karan Singh v. State of Haryana and Others (2013 (12) SCC 529), Mahmmood v. State of Utterpradesh (AIR 1976 (SC) 69), Jamuna Chaudhary and Others v. State of Bihar (AIR 1974 (SC) 1822), in support of his case. He had further argued that Ext.D1 should not have been taken note of by the court below to prove the case against the accused persons without any corroborative evidence and it cannot be said to be conclusive proof regarding the offence alleged. He had relied on the decision reported in Premshanker v. I.G. of Police (2002 (3) KLT 389) in support of this proposition.
8. On the other hand, learned Public Prosecutor submitted that considering the nature of offence and the manner in which it was committed, it cannot be expected that any independent witnesses would be available to Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 11 support the case of the prosecution. Further non- examination of the police officials who were present is not a ground for disbelieving the prosecution case, especially when there is no contradictions brought out in the evidence of PWs 4 to 6 in respect of the manner in which the incident occurred and persons involved in the incident. Further the evidence will go to show that some people have prevented the police from entering into the property to prevent the miscreants from committing the offence and some of them have committed the offence will go to show that, it is not possible for the witnesses to identify each and every person and the role played by them and they can only able to give a possible description of the manner in which the incident occurred and the persons involved.
9. Further in Ext.P1, the entire incident has been narrated showing the names of the accused Nos.1 to
27. Other accused persons were incorporated later as they prevented the police officers from entering the property as Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 12 part of the common object of committing the offence and as members of the unlawful assembly and as such court below was perfectly justified in convicting the appellants for the offences alleged and no interference is called for.
10. The case of the prosecution as emerged from the prosecution witnesses was as follows:
On 01.07.1996 at 4.00 p.m., while PWs 4 to 6 and brother of PW4 were in the house, the accused persons along with a mob of more than 100 persons formed themselves an unlawful assembly with deadly weapons like sword, stick, axe, pickax etc., with a common object of committing riot, criminally trespassed into the residential compound of the defacto-complainant (PW4) at Vallikkunnu and out of them accused Nos. 4, 3, 9 and 27 damaged the fencing on the north eastern and north western portion of the compound and accused Nos.3, 4, 9 and 27 damaged the electric motor fitted near the well and accused No.27 took the same to the house of 3rd accused and they damaged the Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 13 connecting pipe and put it into the well. Accused Nos.1, 2, 6 and 10 caused damage on the north and western side of the well with spade and pickax. Thereafter when PW4 tried to prevent them, he was prevented by his wife PW5 and he was taken inside the house. Thereafter he along with his brother Kalidasan went to the upstairs and watched the incident going on there. At that time, accused Nos.1 to 4, 7 and 10 criminally trespassed into the house by breaking open the back door of the house and threatened the inmates of the house. On hearing the screaming sound of his wife, he along with his brother came down and at that time, they saw accused Nos.2, 5, 9, 10 and 4 threatening inmates of the house with knife and sward in their hands and threatened PW4 not to come near to them and 10th accused snatched away the gold chain from the neck of PW5, wife of PW4 having a weight of 11/4 sovereign. At that time, they heard some whistle sound from outside and on hearing the same, all the accused left the house. It is also alleged by the Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 14 prosecution that even some days prior to this incident there was some incident occurred in respect of which PW4 had made complaint to the police and a police team under the leadership of Assistant Sub Inspector of Police were present in that place at that time. Out of the mob accused Nos.28 to 33 and others prevented the police from entering the compound and removing the miscreants and the unlawful assembly entered the compound. Since due to fear, they could not come out for sometime and thereafter PW4 along with his friend Baburaj went to police station and gave Ext.P1 complaint which was received by PW1 and he registered Ext.P2 first information report as Crime No.134/1996 against accused Nos.1 to 27 and other identifiable 50 persons, alleging offences under Section 143, 147, 148, 447, 427, 448, 379, 395 read with Section 149 of the Indian Penal Code. The earlier part of the investigation was conducted by the Circle Inspector of Police Babu Thomas, Thirur. He went to the place of Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 15 occurrence and prepared Ext.P3 scene mahazar in the presence of PW2 and another and he seized MO1 series, the damaged articles seen after describing the same in the scene mahazar. He questioned the witnesses and recorded their statements. Thereafter the investigation in this case was conducted by PW3 who was in charge of Circle Inspector, Thirur from 05.07.1996. He got information that the stolen motor pump was concealed on the southern side of Kadalundi river and he went there and found the same on the southern side of the river which he seized as per Ext.P4 seizure mahazar in the presence of CWs 8 and 9. Since the motor was required for the day to day use, he handed over the same to PW4 as per Ext.P5 kaichit. He questioned further witnesses and recorded their statements. Further investigation in this case was conducted by PW7 from 01.03.1998. During investigation it was revealed that accused Nos.28 to 33 were also involved in the incident. So he gave Ext.P6 report to add their names as well. As per his Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 16 request, the Village Officer prepared Ext.P7 sketch plan of the place of occurrence on the basis of the scene mahazar.
The Circle Inspector Sri.Babu Thomas had sent the properties seized as per the scene mahazar to court along with Ext.P8 property list. He completed the investigation and submitted final report.
11. PW1 is the Head Constable of Parappanangadi police station who registered Ext.P2 first information report on the basis of Ext.P1 written complaint given by PW4 in respect of the incident. PW2 is an attestor to Ext.P3 scene mahazar. He did not speak anything about the incident. PW3 was the Circle Inspector of police, Thanur police station who was in charge of Thirur Circle at the relevant time. He had seized the motor pump which was said to have been stolen from the property of PW4 as per Ext.P4 mahazar and it was entrusted to PW4 as per Ext.P5 kaichit. His evidence is not helpful to prove the other aspects. Further the seizure of the motor pump cannot be Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 17 said to have been effected on the basis of statement given by any of the accused persons. No attempt was made to arrest the accused persons or to seize the weapons alleged to have been used for the commission of the offence by the accused persons. PW7 is also an investigating officer who had done part of the investigation and completed the investigation and submitted final report. He had also stated that the weapons were not seized and accused were not arrested during the course of his investigation as well. There was some delay in conducting the investigation and completing the investigation and filing of final report.
12. The evidence available to prove the incident is that of PWs 4 to 6 who are the inmates of the house alone. PW4 is the defacto complainant, who gave Ext.P1 complaint regarding the incident. He had deposed that, on 1.7.1996, at about 4 p.m, all the named accused persons and others came in a mob with deadly weapons like pickax, axe, iron rod, knife, sword, hammer etc and some of them Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 18 went to prevent the police officers, who were present there, from doing mischief by the miscreants and accused Nos.4, 8, 9 and 26 damaged the motor pump and the 26th accused took the same to the house of the third accused and kept it there. Accused Nos.1, 2, 6 and 10 caused damage to the parapet wall of the house and removed the connecting pipe and put the same in the well. When he tried to go out to prevent them, his wife and others prevented him and took him inside the house. Thereafter he along with his brother Kalidasan went to the terrace of the house and watched the incident. At that time, he heard screaming sound of his wife and when he came down, he saw accused Nos.1 to 4, 9 and 10 inside the house threatening the inmates and the tenth accused snatching the chain of his wife, PW5. Thereafter when he tried to go near them, he was threatened by them and thereafter they heard some whistle sound from outside and immediately all the accused left the place. Thereafter he came to the police station and gave Ext.P1 complaint. He Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 19 had admitted that there was dispute regarding taking of water from the well between accused Nos.1, 3 and 7 and it was also admitted by him that a civil suit was filed in respect of the same by the third accused and another before the Munsiff Court, Parappanangadi. He had also admitted in his evidence that after the alleged incident, an Advocate Commissioner came and at that time, accused Nos.2 and 3 were present to help the Commissioner. If really an incident has occurred as claimed by PW4 involving accused 2 and 3 under their leadership in the presence of police, then there was no possibility of they being present at that time when the Advocate Commissioner appointed from civil court reached the place. So the evidence of PW4 regarding the involvement of accused 2 and 3 in the unlawful assembly and committing crime appears to be doubtful. Further, it was admitted by PW4 that his friend Baburajan was also present and he had seen the entire incident and he accompanied him to the police station and it was in his Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 20 handwriting that Ext.P1complaint was prepared. But the said Baburajan was neither questioned by the investigating officer nor cited as witness in this case.
13. According to PW4, he had seen the tenth accused snatching away the chain from the neck of PW5, his wife. But the evidence of PW5 on this aspect is little different. PW4 did not mention the presence of his wife when he was examined in court regarding the incident occurred outside the premises. But PW5 had deposed that she was also present at that time and it was the 26th accused who had taken the motor pump and left the place. She had further stated that after they entered the house, PW4 and his brother Kalidasan went to the upstairs and at that time, they heard some breaking sound from the rear side of the house and after breaking open the back door, accused Nos.1, 3, 7 and 10 entered the house and threatened them and the tenth accused had snatched away her thali chain, at that time PW4, her husband came. Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 21 According to her, the 10th accused had snatched away the chain, before PW4 came there. So PW4 witnessing the 10th accused snatching away the chain as claimed by him appears to be doubtful.
14. PW6 is brother's wife of PW4. She had also corroborated the evidence of PW4 and she had stated that 26th accused took the motor and accused Nos.2 and 10 and others had damaged the parapet wall. According to her, accused Nos.1, 3, 4, 7, 9 and 10 were the persons, who entered the house. She further stated that the first accused had caught hold of the mother of PW4 and threatened her. But PWs 4 and 5 have no such case.
15. According to PWs 4 to 6, there was some incident occurred two days prior to the alleged incident on 1.7.1996 and on the basis of the complaint given by PW4, the police officials under the leadership of an Assistant Sub Inspector were deputed to guard the place and the Sub Inspector used to visit occasionally and according to them, Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 22 the police officials would have seen the incident. It is also seen from the records that another case was registered as Crime No.133/1996 of the same police station in respect of preventing the police officials and no such document has been produced in this case to find out who were all the persons involved in preventing the police officers from discharging their official duty and whether they include the present accused as well. But the court below had relied on that fact which was not brought in evidence except a stray sentence mentioned in Ext.P2 scene mahazar and it was prepared in that case and only copy of the same was produced and marked in this case to come to the conclusion that the accused persons were present in the forming of an unlawful assembly and committing mischief and offences alleged against them. It was admitted by PW4 that it was after consulting with the lawyer that Ext.P1 complaint was preferred. There is no document produced to prove the prior complaint if any filed and involvement of any of the Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 23 accused persons arrayed in this case in that incident. No attempt was made on the side of the investigating officer to enquire into those aspects and collect evidence on that aspect as well. There is no explanation forthcoming from the side of PWs 3 and 7 as to why police officers who were deputed for the purpose of guarding the property were not even questioned in this case as strong piece of evidence to speak about the entire incident and what obstructed them from preventing mischiefs in the property being committed by the miscreants though they were deputed to guard the property on the basis of the earlier complaint given in respect of some incident occurred in respect of the same property. So under the circumstances, possibility of false implication of the persons among the persons present in Ext.P1 complaint by PW4 after consultation with legal persons so as to strengthen the earlier alleged incident, cannot be ruled out.
16. In the decision reported in Babubhai v. Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 24 State of Gujarath & Others (2010(12) SCC 254) it has been held that a charge sheet is the outcome of an investigation. If the investigation has not been conducted fairly, we are of the view that such vitiated investigation cannot give rise to a valid charge sheet. Such investigation would ultimately prove to be a precursor of miscarriage of criminal justice. In such a case the court would simply try to decipher the truth only on the basis of guess or conjectures as the whole truth would not come before it. It will be difficult for the court to determine how the incident took place wherein three persons died and so may persons including the complainant and the accused got injured. It is further held in the same decision that investigation cannot be permitted to be conducted in a tainted and biased manner as well.
17. In the decision reported in Karan Sing v. State of Haryana (2013(12) SCC 529) it has been observed that unless lapses made on part of the investigating Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 25 authorities are such as to cast a reasonable doubt on prosecution case, or seriously prejudiced the defence of accused, complainant cannot be made to suffer for lapse of investigating officer. In the same decision, it has been observed that investigation into a criminal offence must be free from any objectionable features or infirmities which may give rise to an apprehension in the mind of the complainant or the accused, that investigation was not fair and may have been carried out with some ulterior motive. The investigating officer must not indulge in any kind of mischief, or cause harassment either to the complainant or to the accused. His conduct must be entirely impartial and must dispel any suspicion regarding the genuineness of the investigation. The investigating officer, is not merely present to strengthen the case of the prosecution with evidence that will enable the court to record a conviction, but to bring out the real unvarnished version of the truth.
18. In the decision reported in Mahmood v.
Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 26 State of Uttar Pradesh (AIR 1976 SC 69) it has been held in that case that the investigator did not take all necessary precautions which would be taken to eliminate the possibility of fabrication of his evidence or its bias jurisdiction as to genuine. In such circumstances it was held that the benefit of doubt must be given to the accused.
19. Further in the decision reported in Navinchandra N. Majithia v. State of Meghalaya and others (AIR 2000 SC 3275) it has been held that duties are conferred by the statute on the police and they shall be carried out during investigation as they are statutory duties. The sublime idea behind formulating steps for conducting investigation is to enable the statutory authority to independently carry out the investigation without being influenced by any of the interested parties. Investigation must not only be fair but impartial and the conclusion reached by them should be unbiased. It is clear from the above decision that there is a duty cast on the investigating Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 27 officer to collect all necessary evidence to place it before court so as to enable the court to find out as to how the incident occurred, who were all responsible for the commission of the offence, nature of offence committed etc., Defective investigation may not be a ground for acquittal, but unfair or tainted investigation cannot be treated as a fair investigation and that benefit must be given to the accused.
20. Further in this case, there was no attempt made, by the investigation officers to seize the weapons alleged to have been used for the commission of the offence. No attempt was made to trace out the articles said to have been put in the well except seizing certain concrete pieces which are marked as MO1 series. Further there is no material collected to find out the involvement of accused Nos. 28 to 33 in the case who were implicated in the case at a later stage after two years to the incident. None of the witnesses have deposed about the role played by each Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 28 accused in the case when they were questioned by the investigating officer as well. The court below had relied on Ext.D1 judgment of the civil court to prove the incident. It may be helpful to prove the facts in that case and it cannot be said to be conclusive proof regarding the incident in a criminal case unless it comes under sections 41, 42 and 43 of the Evidence Act. It was so held in the decision reported in Premshanker v. I.G. of Police [2002 (3) KLT 389(SC)]. All the accused persons in this case were not parties to the civil case. Further, it was not a case filed by the defacto complainant against the miscreants and got a declaration in his favour regarding the right over the property or damage caused to the property. So under such circumstances that can only be relied for the purpose that the suit filed by the third accused against the father of the defacto-complainant who was the owner of the property was dismissed and nothing more. So under the circumstances, the court below was not justified in relying on Ext.D1 for the purpose of Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 29 convicting the accused persons for the mischief said to have been committed by them which has not been independently proved by cogent evidence by the prosecution.
21. It is not a case where there was no independent witnesses available to prove the incident. But it was a case where the police officials were present, who were deputed to protect the property and it was according to the prosecution in their presence that the incident occurred. So they would have been the best persons to speak out the incident. But no attempt was made to question them or cite them as witnesses in this case. Further, Baburajan admittedly who is the friend of PW4 was said to be present and witnessed the incident was not questioned and cited as witness. So under the circumstances, it is not safe to rely on the interested testimony PWs 4 to 6 alone especially when there is enmity between the witnesses and the neighbours regarding the user of the well without corroboration from the independent Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 30 witnesses so as to come to the conclusion that the prosecution had proved beyond reasonable doubt that the accused persons had committed the offence and that benefit must be given to the accused, as false implication of the accused in such circumstances cannot be ruled out. Further, there is no attempt made on the part of the witnesses examined to identify the persons who are all present and the overt act committed by them except making general allegation of presence and involvement of the accused persons in the commission of the offence which is not in law sufficient to convict them. Further, though it is seen from the records that accused Nos.1 to 23 were granted anticipatory bail by this Court, it is not known as to whether they were arrested and then released on bail. The witnesses have deposed that none of the accused persons were shown to them for the purpose of identification as well. In a case where there was a mob attack, it is not safe to rely on the uncorroborated evidence of interested Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 31 testimony of the witnesses especially when there was enmity between them and the persons arrayed as accused to prove the case against the accused persons. The court below in the circumstances was not justified in coming to the conclusion that the prosecution has proved the case against the appellants beyond reasonable doubt and the consequential conviction entered by the court below for the offences alleged against the respective appellants are unsustainable in law and the same are liable to be set aside and the appellants are entitled to get acquittal of the charge levelled against them giving them the benefit of doubt. In view of the finding that the appellants are entitled to get acquittal, the sentence imposed is also not proper and the same is also set aside.
In the result, the appellants succeed and the appeals are allowed. The order of conviction and sentence passed by the court below against the respective appellants for the offences alleged against them are hereby set aside Crl. Appeal No.1519 of 2003 and Crl. Appeal No.1591 of 2003 32 and the appellants are acquitted of the charge levelled against them giving them the benefit of doubt. They are set at liberty. The bail bonds executed by them stand cancelled. The fine amount, if any remitted by the appellants are directed to be refunded to them on making necessary applications for that purpose.
Office is directed to communicate a copy of this order to the concerned court immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss