Kerala High Court
Saidu Mohammed And Ors. Etc. vs State Of Kerala Etc. on 5 September, 2005
Equivalent citations: 2006CRILJ413, 2006 CRI. L. J. 413, 2006 (1) AJHAR (NOC) 192 (KER), 2006 (2) ABR (NOC) 341 (KER), 2006 (2) AKAR (NOC) 264 (KER), (2006) 2 ALLCRILR 584
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair, V. Ramkumar
JUDGMENT K. Padmanabhan Nair, J.
1. Criminal Appeal Nos. 1207 of 2004 and 1083 of 2005 and Criminal Revision Petition No. 2373 of 2004 arise from the judgment rendered by the 1 Additional Sessions Judge, Thrissur in S.C. No. 201 of 1995, which, in turn, arose from C.P. No. 2 of 1994 of JFCM, Kunnamkulam (Crime No. 95 of 1993 of Kunnamkulam Police Station registered under Sections 143, 147, 148, 341, 342, 324 and 302 read with Section 149 of the Indian Penal Code). Criminal Appeal No. 1544 of 2004 is filed by the complainant in C.P. 1 of 1995 on the file the JFCM Kunnamkulam from which S.C. 202 of 1995 arose. That Criminal Appeal is directed against the acquittal of the respondents in that appeal stated to have been passed in S.C. No. 202 of 1995.
2. The facts relevant for the disposal of the appeals and Criminal Revision Petition are as follows : Deceased Suresh Babu was an active worker of Bharatheeya Janatha Party (BJP for short). He was employed as a motor winding mechanic at Kunnamkulam. There were political clashes between the followers of Communist Party of India (Marxist) (CPI(M) for short) and BJP loyalists. At about 8.00 p.m. on 10-3-1993, deceased Suresh Babu was returning to his house in a Stage Carriage Bus by name Babu, bearing Registration No. KRH/03. When the bus reached Ottappilavu Centre at 8.15 p.m. the accused (20 persons) in Crime No. 95 of 1993 formed themselves into members of an unlawful assembly armed with deadly weapons like sticks, rafters, knife etc. stopped the bus. A1, A2, A4 and A5 entered into the bus, caught hold of Suresh Babu, who was sitting in one of the rear seats of the bus and pulled him out of the bus. He was taken to the front side of the bus. The first accused inflicted a stab injury on the back of the left side of the chest of Suresh Babu. He fell down on his front. The first accused inflicted two more stab injuries on the person of Suresh Babu. At that point of time, the other accused beat Suresh Babu with sticks and rafters. Thereafter the accused ran away from the spot. A person, who witnessed the incident, made a telephone call to the Kunnamkulam Police Station and informed P.W. 14, the Head Constable attached to the Kunnamkulam Police Station, that a clash was going on at Ottappilavu Centre. The caller did not disclose his identity. On getting the information, P.W. 14, along with Police Constables went to the place in a police jeep. By that time, all the shops at Ottappilavu Centre were closed and the area was deserted. The police party saw a person lying on the road margin with bleeding injuries. He was unconscious. He was immediately removed to the Kunnamkulam General Hospital. The Medical Officer on duty examined the person and pronounced him dead, P.W. 1 went to the police station and gave Ext. P1 First Information Statement at 12 midnight which was recorded by P.W. 15, the Sub Inspector of Police. P.W. 15 registered Ext. P1 (a) F.I.R. against 11 named persons and 190 others who could be identified by sight. P.W. 15 conducted inquest on the dead body of Suresh Babu between 9.45 a.m. and 12.45 p.m. on 11-3-1993. Thereafter post mortem examination on the dead body was conducted by P.W. 13, the Assistant Professor of Forensic Medicine attached to the Medical College Hospital, Thrissur. He issued Ext. P11 post mortem certificate. Subsequent investigation was conducted by P.W. 16, the Circle Inspector of Police. He filed Ext. P14 report arraigning 20 persons as accused in the case. He filed the final report on 16-12-1994 before the Judicial First Class Magistrate, Kunnamkulam. The case was numbered as C.P. 2 of 1994. All the accused except A4 appeared before the Magistrate. The learned Magistrate split up and refiled the case as against A4 as C.P. 13 of 1993 and included the same in the Register for Long Pending Cases. The case as against other accused was committed to the Court of Sessions. That case was numbered as S.C. No. 201 of 1995.
3. Dissatisfied with the investigation conducted by P.W. 16, P.W. 12, the father of the deceased filed M.P. No. 1500 of 1994, a complaint arraigning the 20 accused in Crime No. 95 of 1993 and another person alleging that they committed the offences punishable under Sections 120B, 34, 143, 147, 148, 341, 342, 302 read with Section 149 I.P.C. The learned Magistrate took cognizance on the complaint against 21 persons under Sections 143, 148, 342, 302 read with Setion 149 I.P.C. The learned Magistrate conducted enquiry under Section 202 of the Criminal Procedure Code. The complainant and 4 witnesses were examined. After conducting the enquiry the learned Magistrate passed an order which reads as follows :--
Taken as C.P. 1 of 1995 under Sections 143, 148, 341, 302, 120B of I.P.C. Since a prima facie case is made out issue summons to all accused through C.I. Kunnamkulam.
All accused except A4 and A21 appeared before the Magistrate. The case as against them were split up and refiled as C.P. 14 of 1995. The case as against the other accused was committed to the Court of Sessions. In the committal order, the offences under Sections 143, 148, 342, 302 read with Section 149 I.P.C. alone were stated. The learned Sessions Judge took cognizance under Sections 143, 148, 342, 302 read with Section 149 I.P.C. and numbered the case as S.C. 202 of 1995.
4 S.C. Nos. 201 and 202 of 1995 were made over to the I Additional Sessions Court, Thrissur. On receipt of summons from the Sessions Court, all the accused except A4 in both cases and A21 in S.C. No. 202 of 1995 appeared. The learned Sessions Judge as per order dated 15-3-1999 found that all the accused except A21 in S.C. No. 202 of 1C95 were arraigned in S.C. No. 201 of 1995 and it cannot be said that the prosecution versions in both cases were materially different, contradictory and mutually exclusive. It was also held that the 21st accused in S.C. was absconding and barring some minor variations, the prosecution case in both cases is common. The learned Sessions Judge passed an order to frame consolidated charge in S.C. 201 of 1995. The operative portion of the order reads as follows :--
Hence it is directed, that there will be a consolidation of the charges in these cases and a single trial, to be held in S.C. 201/ 95. On the consolidated charge being framed, S.C. No. 202/95 will be closed and the records of that case will be added to S.C. 201/95. The prosecution is directed to produce the schedule of witnesses -- including those in S.C. 202/95-- who are to be examined on its side.
This order was not challenged by the complainant, State or accused and hence be* came final and conclusive.
5. The learned Sessions Judge, after hearing both sides, framed a consolidated charge under Sections 143, 147, 148, 341, 342, 302, 324 read with Section 149 I.P.C. against all the accused. The Public Prosecutor filed a consolidated list of witnesses on 3-6-1999.
6. During the pendency of the Sessions, Cases, A19 and A20 in both cases died. The 4th accused in both cases who was absconding subsequently appeared before the Magistrate. C.P. 13 of 1995 was taken out of the Register for Long Pending Cases and refiled as C.P. No. 30 of 2003 of JFCM, Kunnamkulam. After observing the formalities, C.P. 30 of 2003 was committed to the Court of Sessions, Thrissur, which was numbered as S.C. 527 of 2003. Whether C.P. 14 of 1995 was refiled or not is not discernible from the records. When A4 appeared before the Sessions Judge, charges were framed against him. The charges were read over and explained to him. He understood the same and pleaded not guilty. S.C. No. 527 of 2003 was also clubbed with S.C. Nos. 201 and 202 of 1995. Records of S.C. 527 of 2003 were ordered to be kept in the file of S.C. 201 of 1995 and 202 of 1995. A21 is still absconding.
7. On the side of prosecution, P.Ws. 1 to 16 were examined. Exts. P1 to P19 proved and marked. M.O. 1 to 4 were identified. P.W. 1 is the person who gave Ext. P1 First Information Statement. He turned hostile. P.W. 2 is an eye witness examined to prove the incident. He turned hostile and did not support the prosecution case. P.Ws. 3, 4, 5 and 6 were eye witnesses and examined to prove the incident. They supported the prosecution case. (P.Ws. 4 to 6 are the witnesses cited and examined by P.W. 12 in C.P. 1 of 1995). P.W. 7 is the Village Officer who prepared Ext. P4 sketch. P.Ws. 8 and 9 are two attestors to Ext. P5 scene mahazar. Both of them turned hostile and did not support prosecution case. P.W. 10 is an attester to Ext. P8 seizure mahazar under which M.O. 1 knife was seized. He turned hostile and did not support, the prosecution case. P.W. 11 is the driver of the bus "Babu". He also turned hostile and did not support the prosecution case. P.W. 12 is the father of the deceased. He filed the complaint (M.P. No. 1500 of 1994) before the Judicial First Class Magistrate, Kunnamkulam. P.W. 13 is the Assistant Professor of Forensic Medicine, who conducted the post-mortem examination on the body of Suresh Babu and issued Ext. P1 1 post mortem certificate. P.W. 14 is the Head Constable of Kunnamkulam Police Station who was on G.D. charge duty. On getting information, he went to the place of occurrence, took the injured to the hospital and made necessary entries in the General Diary. P.W. 15 is the Sub Inspector of Police, Kunnamkulam Police Station who recorded Ext. 1 First Information Statement and registered Ext. P1 (a] F.I.R. He conducted the initial investigation. P.W. 16 is the Circle Inspector of Police, who conducted the investigation and filed the final report.
8. After the prosecution evidence was over, the accused were questioned under Section 313 of the Code of Criminal Procedure. They denied all the incriminating circumstances brought out against them. They maintained their Innocence and stated that they were falsely Implicated in the case because of political enmity. According to the accused, there were disputes between Muslim fundamentalists and the followers of BJP. They had also stated that there is no person by name Anakkottil Abu who is arraigned as the 21st accused in the complaint filed by P.W. 12 and the name of such a fictitious person was stated only to file the private complaint.
9. Since no grounds were made out to acquit the accused under Section 232 of the Code of Criminal Procedure, the accused were called upon to enter on their defence. On the side of the accused, D.Ws. 1 to 3 were examined. Exts. D1, D2, D4 to D8 proved and marked. Ext. D3 series are the marked portions of CD statements of P.W. 3. After the evidence was over, the matter was again heard. The learned Sessions Judge found A1 to A4, A14, A15 and A 18 guilty of the offences punishable under Sections 143, 147, 148, 341, 323, 302 read with Section 149 of the Indian Penal Code, convicted and sentenced them as aforesaid. The other accused were acquitted.
10. Accused Nos. 1 to 4, 14, 15 and 18 have filed Crl. A. No. 1207 of 2004 challenging the conviction and sentence imposed on them. Challenging the judgment of acquittal of the other accused, the State has filed Crl. A. No. 1083 of 2005. P.W. 12 has filed Crl. R.P. No. 2373 of 2004 challenging the acquittal of the other accused in S.C. No. 201 of 1995. He has filed Crl. A. No. 1544 of 2004 challenging the acquittal of the other accused in S.C. 202 of 1995. All the three appeals and Criminal Revision Petition were heard together and disposed of by this common judgment.
11. The following points arise for consideration in these appeals and Criminal Revision Petition :
(1) Whether the finding of the learned Sessions Judge that Suresh Babu sustained homicidal injuries at about 8.15 p.m. on 10-3-1993 and he died of those injuries is correct?
(2) Whether the finding of the Court below that the appellants were members of an unlawful assembly on the relevant date and time with a common object of causing the murder of Suresh Babu is correct?
(3) Whether the finding that the appellants committed the offence of rioting armed with deadly weapons is correct?
(4) Whether the finding of the Court below that the appellants wrongfully restrained the deceased is correct?
(5) Whether the finding that the accused voluntarily caused injuries on the person of Suresh Babu with dangerous weapons is correct?
(6) Whether the finding of the learned Sessions Judge that the appellants are guilty of the offence punishable under Section 302 IPC is correct?
(7) Whether the sentences imposed are legal and proper?
(8) What is the proper order to be passed in Crl. Appeal No. 1544 of 2004?Point No. 1
12. The prosecution case was that deceased Suresh Babu sustained homicidal injuries at about 8.15 p.m. on 10-3-1993 at Ottappilavu Centre. P.W. 1 gave Ext. P1 First Information Statement at 12 midnight on 10-3-1993. The evidence on record shows that even prior to that somebody without disclosing his identity made a phone call to Kunnamkulam Police Station and informed P.W. 14, the Head Constable who was in G.D. charge, that a push and pull and rioting took place at Ottappilavu Centre and a person sustained injuries. On getting that information, P.W. 14 along with other police constables rushed to the place of occurrence. When the police party reached the place of occurrence all the shops and houses in the vicinity were closed. They saw a person lying unconscious on the margin of the road with bleeding injuries. Nobody else was present there. He was taken to the Government Hospital, Kunnamkulam. The Doctor on duty examined the person and pronounced him dead. At that point of time, the identity of the deceased was not disclosed. The identity of the deceased was revealed only at 12 midnight by P.W. 1 when he gave Ext. P1 F.I. Statement.
13 P.W. 15, the Sub Inspector of Police, based on Ext. P1 F.I. Statement registered Ext, P1 (a) F.I.R. On the next day morning, he went to the Government Hospital, Kunnamkulam and prepared Ext. P13 inquest between 9.45 a.m. and 12.45 p.m. P.W. 15 noted several external injuries found on the body of Suresh Babu in Ext. P13. Thereafter, P.W. 13, the Assistant Professor of Forensic Medicine and Deputy Police Surgeon, Medical College, Thrissur conducted autopsy on the body of the deceased and issued Ext. P11 post mortem certificate. The Doctor had noted the following injuries :--
1. Abrasion 2x3 cm on the left side of forehead 1 cm above the inner end of eyebrow.
2. Linear horizontal abrasion 6.5 x 3 cm on the right side of face over the malar prominence.
3. Multiple small abrasions over an area of 6.5 x 2,7 cm on the inner aspect of right upper arm 5.2 cm above the elbow.
4. Multiple small abrasions over an area of 3.5 x 1.5 cm on the back of right elbow.
5. Skin deep (sic) 1x6 cm on the back of right index finger just above the nail bud.
6. Multiple small abrasions over an area of 14 x 4 cm on the front and outer aspect of right thigh 17 cm above the knee.
7. Abrasion 4.6 x 3.2 cm on the outer aspect of right thigh 6.2 cm above the knee.
8. Abrasion 6x3 cm on the inner aspect of right knee.
9. Abrasion 1.3 x 1 cm on the top left foot just in front of the ankle joint.
10. Abrasion 2.2 x 1.6 cm on the front of left ankle joint.
11. Abrasion 3.5 x 1.5 cm on the front of left lower leg 11.5 cm below the knee.
12. Contused abrasion with redness around 7x2 cm on the outer and front of aspect of middle of left, thigh 15 cm above knee.
13. Multiple small abrasions over an area of 10.2 x 8.5 cm on the back of left hand and fingers (knuckles) and wrist,
14. Abrasion 1.2 x 8 cm on the back of left forearm 3 cm above the wrist.
15. Contused abrasion 9x2 cm obliquely placed on the middle of left upper area 12 cm below the top of shoulder. The middle part of the contusion was pale and the outer borders parallel.
16. Contused abrasion 24 x 3 cm obliquely placed on the back of left side of chest (shoulder blade) and top of left shoulder. The middle part of the contusion was pale and the outer borders parallel.
17. Two parallel contused abrasions with blanching (2 cm) in between 15 x 1.7 cm obliquely placed on the back of trunk over the right shoulder blade.
18. Similar injury measuring 19.5 x 3 cm vertically placed and continuous with the lower end of injury No. 18.
19. Similar injury measuring 10 x 1.9 cm on the back of trunk 5 cm to the left of injury No. 18 and 4 cm below the top of shoulder.
20. Skin deep horizontal wound 28 x 8 cm on the back of right side of chest 8.5 cm to the right of midline and 9 cm below the shoulder level.
21. Muscle deep incised wound 2 x7 x 5 cm on the left side of back of head 2.5 cm behind the ear and 13 cm above the root of neck.
22. Incised horizontal wound 2 x 7 x 1.6 cm on the left side of back of root of neck 2 cm to the left of midline. The wound was directed downwards and outwards and had cut the muscles only, not entering to the chest cavity.
23. Incised horizontal wound 2 x 1 x 8 cm on the back of left side of chest 5 cm to the left of midline and 6.5 cm below the top of shoulder. The outer end was split and inner end was sharply cut. The wound was directed downwards for a length of 2.5 cm cutting the muscles, not entered into the chest cavity.
24. Incised oblique wound 2 x 9 cm on the back of left side of chest 4.5 cm below injury No. 24. The outer lower end was split and the inner upper end was sharply cut. The wound was directed forwards upwards and outwards and entered the left chest cavity through the 5th intercostal space and terminated at the upper part of lower lobe of left lung (1.5 x 5 x 1.5). The total minimum depth of the wound was 7.5 cm. The left lung was collapsed and the left chest cavity contained 1600 ml. of blood with clots.
25. Incised oblique stab wound 5.6 x 2.1 x 4 cm on the outer and back aspect of left elbow joint. The lower front end showed a tailing 1.5 x 2 cm. The wound was directed downwards and inwards and exposed and elbow joint cutting the lateral epicondyl of the upper arm bone and head of radius (lower arm bone).
26. Vertical abrasion 4.5 x 1 cm on the right side of chest 7.7 cm below the axilla at mid axillary line".
The cause of death was stated as follows :--
The deceased died of multiple injuries sustained to chest.
P.W. 13 deposed that injury No. 24 alone is sufficient in the ordinary course of nature to cause death. He deposed that injury Nos. 22, 23 and 24 can be caused with a sharp edged weapon like M.O. 1. He further deposed that abrasions and contusions like injury Nos. 16, 17, 18, 19 and the other multiple abrasions found on the body can be caused due to beating with sticks. The doctor had specifically stated that injury No. 12 can be caused when that part of the body comes into contact with a rough surface or hard object and cannot be caused by beating. The doctor had also stated that some of the abrasions noted can be caused while crawling on a rough surface like ground. The evidence on record shows that Suresh Babu sustained injuries on the chest due to stabbing with a sharp edged weapon like M.O. 1. He also sustained certain injuries due to beating. During cross examination, the doctor reiterated that the injured died due to the multiple injuries sustained on the chest. He had further deposed that injury No. 24 though fatal need not necessarily be fatal. The oral evidence along with Exhibit P11 post mortem certificate and Exhibit P13 inquest report clearly establishes the fact that Suresh Babu sustained homicidal injuries at or about 8.15 p.m. on 10-3-1993 and he died of those injuries.
Point Nos. 2 to 8.
14. To prove the incident, the prosecution examined P.Ws. 1 to 6. P.W. 1 is the person who gave Ext. P1 First Information Statement. But he did not support the prosecution case. He denied of having given Ext. P1 F.I. Statement. He had admitted that he had signed Ext. P1. He deposed that he did not remember whether he had gone to the Kunnamkulam Police Station on 10-3-1993. He further deposed that he had not witnessed the incident and did not know how Suresh Babu died. According to him, he went to the police station to receive the dead body of Suresh Babu, which, on the face of it, appears to be false. P.W. 1 himself had admitted that after preparing the inquest and conducting autopsy, the dead body was given to the relatives of Suresh Babu from the hospital. But, the fact that P.W. 1 does not speak the truth alone is not sufficient to hold that he had witnessed the incident.
15. P.W. 2 is also another eye witness. According to the prosecution, he was travelling in the very same bus in which the deceased was travelling and he witnessed the entire incident from the very beginning. He turned hostile and did not support the prosecution case. He denied the fact that he travelled in the bus in which the deceased was travelling. The only admission made by him in his deposition was that Suresh Babu was his friend.
16. P.W. 3 is an independent witness. His oral evidence was as follows : He was residing at Ottappilavu and the deceased Suresh Babu was residing about 1 k.m. away from his house. In the evening between 4.00 and 4.30, he went to Kunnamkulam to purchase medicine for his brother who was suffering from fever. He purchased medicine and boarded into a stage carriage bus by name "Babu" from Kunnamkulam and was returning to his house. P.W. 2 and deceased Suresh Babu were also travelling in the very same bus. P.W. 2 was sitting in one of the seats in the front side of the bus and deceased Suresh Babu was sitting in one of the rear seats. P.W. 3 was standing in the front portion of the bus. When the bus reached at Ottappilavu, another bus by name "Prayag" was parked in the bus stop. P.W. 3 saw some persons standing on the rear side of Prayag bus with sticks in their hands. He identified them in the light emanating from the headlight of the bus in which he was travelling. He saw A1, A6 to All among the assailants. He correctly identified them also. When the bus in which he was travelling stopped, A1, A2, A4 and A5 entered into the bus and pulled Suresh Babu out of the bus and took him to the front side of the bus and made him stand in the edge of the tarred road. The first accused inflicted a stab injury on the back of left side of chest of Suresh Babu exhorting that he was the person who had taken the oath to kill all the Marxist persons. On sustaining the injury, Suresh Babu fell on his front. A1 inflicted two more stabs. Suresh Babu was struggling to get up and at that time, others beat him with reaper and sticks. He identified A2, A4 and A5 among those persons who beat Suresh Babu. When people rushed to the place of occurrence, all the accused ran away. He did not alight from that bus, but continued his journey and got down at Chalissery Junction. At the place of occurrence the road is lying north-south and there is a bus shelter near the place of occurrence and the incident occurred on the northern side of the bus shelter. He deposed that he was questioned by the police after two days. Suresh Babu was a BJP loyalist and the accused are Marxist persons. He identified M.O.I knife as the weapon used by the 1st accused to stab Suresh Babu.
17. During cross examination, P.W. 3 deposed that he was questioned about 12.00 noon at Kunnarnkulam Police Station and he was called to the police station. No notice or summons was served on him. He does not remember whether he told the Circle Inspector of Police that his age was 20 at that time. He reiterated that the accused are Marxist persons and he had seen them participating in demonstrations. He admitted that very near to the place of occurrence, there was a Mosque. He asserted that he was not a follower of BJP and he had no politics. He was a resident of Kadavallur Village and he does not know how in the statement given to the police it was noted that he was a resident of Korattikara Village. He started residing at Ottapilavu four years prior to the date of incident. He admitted that in the year 1996, he had gone to Maharashtra and he was employed in a hotel there for seven years. He denied the suggestion that he was the accused in C.C. No. 234 of 1992 of Judicial First Class Magistrate Court, Kunnamkulam. But he had admitted that he was one of the accused in S.C. No. 123 of 2003 of Sessions Court, Thrissur. He admitted that the allegation in that case was that himself along with others who were R.S.S. workers attacked All and one Razak. His brother's name is Mohanan and his brother was suffering from fever and headache. He does not remember the name of the doctor. He consulted the doctor at the house of the doctor and purchased the medicine from a Medical Shop on the side of the Guruvayoor Road. He does not remember the name of the medicine purchased. It is admitted by P.W. 3 that Perumbilavu Junction is at about half a kilometer away from his house and Akkikkavu is situated about 3 kms. away from his house. Kunnamkulam is situated about 9 kms, away from his house. He denied the suggestion that at Perumbilavu there was a hospital by name "Ansar Hospital". He does not remember whether there were a number of medical shops at Perumbilavu and Akkikkavu at that time. At Akkikkavu there was a hospital by name "Deena Bandhu". He can go to Kunnamkulam only through Ottapilavu and that is the Palakkad route. He denied the suggestion that he can reach Kunnamkulam through Kozhikode route and that route is short and easy. He admitted that he had worked as an election agent for a BJP candidate in the election held for Local Body. One of his brothers died under mysterious circumstance and he does not know the reason for the death of his brother. He was not in Kerala at that time and so he could not attend the last rites of his brother. He did not know whether there were Muslim Fundamentalists residing around the Mosque and whether there was any difference of opinion between the followers of BJP and Muslim Fundamentalists regarding the call of Muezzin at Mosque and whether series of clashes took place between them. He denied the suggestion that deceased Suresh Babu once trespassed into the Mosque and insulted the worshippers. He does not know whether deceased Suresh Babu was an accused in a number of cases. He knew Suresh Babu about 5-6 years prior to the date of his death and he had prior acquaintance as both of them belong to the same place. He admitted that he knew the parents and brothers of the deceased. He did not go to the house of Suresh Babu and inform the relatives of Suresh Babu about the incident as he was afraid to go out on that day. He had admitted that on the next day, he went to the house of Suresh Babu and that time also, he did not inform the relatives of the deceased that he had witnessed the incident. He had already told about the incident to others on the date of incident itself. He admitted that there were a number of shops and houses near the place of occurrence and it is a junction with busy traffic. The police had not shown the sticks and reapers to him. He knows the first accused for more than 15 years. The houses of A1 and A2 are situated about half a kilometer away from his house. He knows all the accused as all of them are residing in the same place in different houses. Suresh Babu was pulled out of the bus by Abu and Ors. and in addition to the persons named by him in his chief examination, some others also entered into the bus but he does not know their names. During cross examination, he deposed that Al took the knife from his waist and inflicted the injuries. He did not make any arrangements to provide medical aid to the injured. Suresh Babu crawled to the margin of the road on the left side and at that time, the bus driver drove away the bus and the bus passed through the spot where Suresh Babu fell down on sustaining the first stab. He denied the suggestion that when questioned by the police he had stated that Suresh Babu got up and ran away. The Circle Inspector of Police did not read over the statement recorded by him. He also asserted that when questioned! by the Police, he told the C.I. of Police that the injury was inflicted on the left side of the back of chest. He did not tell the C.I. of Police that Al entered into the bus. During re-examination he deposed that the Sessions Case registered against him and Ors. ended in acquittal of others. The case against him was split up as he was not available and the same was pending. That case was falsely foisted against him to deter him from giving evidence in this case.
18. In addition to the evidence of P.W. 3, the prosecution relies on the evidence of P.Ws. 4 to 6 also. At this juncture itself, we may state that these witnesses were not questioned by the police during investigation and not cited as witnesses in the final report. Along with the complaint filed by P.W. 12, a witness list was filed. P.W. 4's name was stated in that list. Subsequently an additional list was filed in which the names of P.Ws. 5 and 6 were included.
19. P.W. 4 had deposed that on the date of incident, he was residing at Kothachira and the place of occurrence is situated about 2 kilometres away from his house. He had witnessed the incident and it took place at 8.30 p.m. on 10-3-1993. He went to his sister's house situated at Karikkad by foot. After reaching Akkikkavu, he boarded into Prayag Bus and alighted at Ottappilavu bus stop and was standing near the bus stop. When the bus reached Ottappilavu bus stop about 10-15 people stopped the bus. They were armed with sticks and rafters. A2, A3, A4, A14 and some others entered into the Prayag Bus. They alighted from the bus stating that nobody was in that bus. Immediately Babu Bus came and stopped near the bus shelter. Those persons who entered in the Prayag Bus boarded into Babu Bus through the front door. They were searching for somebody. At that time, Suresh Babu was sitting in one of the rear seats. He was pulled out of the bus and brought to the front side of the bus. A1 inflicted a stab injury on the back side of Suresh Babu who fell down. Suresh Babu made an attempt to get up and at that time, A21 inflicted a stab injury on the back side of the head and again on the left hand and on the back side of the chest. He further deposed that in the meanwhile A1 had inflicted further stab injuries on the body of Suresh Babu. P.W.4 deposed that A2, A3, A4, A10, A13, A14, A18 and A20 beat Suresh Babu and at that time, those who were standing in the bus stop came near Suresh Babu and the assailants ran towards the rear side of the bus. He saw Suresh Babu crawling. He went to his house on foot. He identified M.O. 1 knife as the knife in the hands of A1. During cross examination, he deposed that his house is situated at Ottappalam Taluk and the place of incident is Thalappilly Taluk. Ottappalam Taluk is in Palakkad District whereas Thalappilly Taluk is in Thrissur District. He was residing at Nagalassery Village. His house is situated 2-3 kms. away from the house of the deceased. He knows the father of the deceased and he attended the funeral ceremony of Suresh Babu. During cross examination, he deposed that he was not able to say the name of the month in which the incident took place. He denied the suggestion that he was an R.S.S. worker and follower of BJP. About 11 months after the date of death of Suresh Babu, Madhavan, the father of the deceased, asked him to come to the Court and give evidence. He attended the funeral ceremony of Suresh Babu. He told the cousin of Suresh Babu that he had witnessed the incident at that time. He told one Surendran also about the incident. He actually wanted to go to the police station and give a statement, but he did not go and give the statement as he was afraid of the accused. According to him, even on the date of giving evidence, he was afraid of the accused. He denied the suggestion that he was warned by Kunnamkulam Police and Chalissery Police regarding his habit of using narcotic drugs. He admitted that Chalissery Police had registered a case against him and Ors. alleging that himself along with some others attacked the followers of CPI(M) about 18 to 20 years ago. That case was subsequently settled between the parties. He further deposed that 11 persons identified by him are known to him and he had seen them on prior occasions. When he alighted at Ottappilavu there was light in the shops and houses and the incident took place about 2 minutes after he alighted from the bus. He admitted that it is not possible to give the details of the individual over acts of each of the accused.
20. P.W. 5 deposed that he is residing about three and a half kilometres away from Ottappilavu Junction at Perumannoor and on the date of incident, at about 8.00 p.m. he reached Ottappilavu after that day's work at Kothachira and was waiting to board in a bus. He saw about 10-30 people waiting there with sticks and knives. Prayag Bus came. 3-4 persons got into the bus and came out through the front side. Then Babu bus came. 5-6 persons entered into the Babu bus through the door on the front side. They were searching for somebody. They pulled out Suresh Babu who was sitting in one of the rear seats. P.W. 5 deposed that he had seen A4, A14 and A15 among those persons. But in Court he identified only A14 and A15 correctly. He deposed that those persons pulled Suresh Babu through the front side of the bus and two or three persons pushed Suresh Babu from behind. Suresh Babu was beaten by the assailants and Al inflicted a stab injury on the back side of the chest of " Suresh Babu. Suresh Babu fell down and then Al inflicted further stab injuries. A21 also inflicted further stab injuries on the person of Suresh Babu. Ummer, Balan, Balaji, Murali, Kuttamon, Hashim and Aboobacker beat Suresh Babu. He deposed that A20 was not in the dock. P.W. 5 did not identify Balan and Ummer in the Court though he deposed that they were among the assailants. Suresh Babu crawled and tried to move away. He did not board into the bus as he was afraid and walked to Chalissery and after reaching Chalissery, he went by auto. He identified M.O. 1 knife used by the accused. During cross examination, he reiterated that he saw the incident from the headlight and the street lights. In some shops lights were burning. P.W. 5 had admitted that during 202 enquiry he deposed that A1 used a dagger and he did not state that 2 or 3 persons pushed Suresh Babu from behind and he had not specifically stated about the source of light. He had also admitted that he did not state that the people from the nearby shops rushed to the place. The fact that he walked upto Chalissery was also not stated at the time of 202 enquiry. He did not state that he was doing work in the property of Vijayan at Kothachira, but had stated that he came to Ottappilavu after that day's work. He was standing on the western side of the road and a number of persons were waiting in the bus shelter. He did not remember the name of any of those persons. He did not know whether Murali was a Panchayat member and Hashim was the Vice President of Kadavallur Panchayat. He denied the suggestion that he is an RSS worker. He does not know the distance between Chalissery and Kothachira and whether he could have reached Chalissery through Peringode without coming to Ottapilavu. He had prior acquaintance with the accused. He admitted that he did not go to the police station and inform the police. Though he had thought of taking Suresh Babu to the hospital, he did not do so as he was afraid of the accused. When Suresh Babu was pulled out of the bus, Suresh Babu cried aloud and nobody interfered as everybody was afraid.
21. P.W. 6 deposed that he was residing at Chalissery and on 10-3-1993 he went to his family house and was returning to his house at about 8.00 p.m. When he reached the bus stop at about 8.00 p.m., he saw 10-25 persons waiting there with sticks. Prayag Bus came first and then about 5-8 persons stopped that bus and got into that bus. They were telling each other that there was nobody in the bus. Thereafter Babu bus came and that was also intercepted and stopped. Some of the accused got into Babu bus. He knew, A2, A3, A14 and A16 and they pulled out Suresh Babu from the bus and then A1 came and shouted that it was Suresh Babu who had taken oath to kill the Marxist persons and inflicted stab injury on the person of Suresh Babu. He further deposed that Suresh Babu fell down and then A1 again stabbed him on the back of his chest. Suresh Babu made an attempt to get up. Then he was beaten by the accused. At that point of time, A21 also stabbed Suresh Babu. He further deposed that Balaji, Arabi Abu, Majeed, Kuttamman, Balan and Kunjumon were among those persons who beat Suresh Babu. But, P.W. 6 did not identify all of them in the Court on the ground that there was no sufficient light in the Court hall. During cross examination, he denied the suggestion that he was an RSS worker. But he admitted that he was a polling agent for a BJP candidate in Chalissery Panchayat in the Lok Sabha Election. He denied the suggestion that he contested as a BJP candidate in the Local Body election. He admitted that he was implicated as accused in one or two criminal cases. He went to the Kunnamkularn Police Station to give statement regarding the incident. He met a constable and informed the constable that he wanted to give a statement regarding the incident. The police constable asked him to wait and told him that the Circle Inspector will call him. He waited till 12.00 noon, but he was not called and he went back. He told many people about the incident. There was light in some of the shop rooms. He admitted that there was another way to reach his family house but that was the circuitous route and the shortest route to his family house was through Ottappilavu.
22. The learned Counsel appearing for the appellants-accused has argued that the learned Sessions Judge committed very serious illegality in relying on the evidence of P.Ws. 3 to 6. It is argued that the prosecution itself admits that P.Ws. 1 and 2 were followers of BJP. They were eye witnesses to the incident, but they did not support the prosecution case. It is argued that a reading of the evidence of P.W. 3 will clearly show that he was nowhere near the place of occurrence and was a hired witness. It is argued that the incident took place on 10-3-1993 and the police filed the final report after investigation on 16-2-1994. It is argued that P.W. 12 filed the complaint only on 12-4-1994, i.e. after the lapse of one year, one month and two days after the date of incident and about two months after the filing of the final report. It is argued that in the complaint P.W. 12 had not stated the name of any person as eye witness, though a vague allegation was levelled against the Investigating Officer to the effect that he did not question the eye witnesses. It is argued that a list containing names was filed along with the complaint. In that list the names of P.Ws. 5 and 6 were not stated as persons who had witnessed the incident. Only one among from the list filed along with the complaint was examined as P.W. 4. It is argued that an additional list of witnesses was filed on 8-9-1994 in which alone the names of P.Ws. 5 and 6 were stated as witnesses. It is argued that P.Ws. 4 to 6 were not questioned by the police and they never approached the police and gave any statement. It is argued that P.Ws. 5 and 6 were hired by the complainant to falsely implicate the appellants to the offences alleged.
23. The learned Special Prosecutor has argued that the investigation in this case was totally unfair and the investigating agency colluded with the accused so as to save them from the clutches of law. It is argued that the mere fact that a person was not questioned by the police, or that his name was not stated in the complaint as an eye witness are not grounds to reject their evidence in toto. It is submitted that the Court shall scrutinise the evidence of P.Ws. 4 to 6 with due care and caution and if it is found that their evidence is trustworthy, the same has to be accepted.
24. P.W. 12 had not stated the name of any person as eye witness either in the complaint or in the witness list. In the complaint it was averred that a number of persons had witnessed the incident. It was alleged that the investigation was one sided and real culprits were not arrayed as accused. The Investigating Officer did not record the statements correctly and deliberately omitted to question eye witnesses with a mala fide intention of helping the accused. It was alleged that the followers of BJP and CPI(M) were on Inimical terms and they were fighting each other and because of that enmity, the accused formed themselves into members of an unlawful assembly and committed the murder of Suresh Babu. It was averred that the oral evidence of witnesses given in the witness list will prove the case of the complainant. Along with the complaint, P.W. 12 filed a list of witnesses. In that list, the names of the following persons were stated as witnesses :
1. Chandran
2. Vijayan
3. Kesavan
4. Ashokan
5. K. K. Murali
6. V. S, Sethumadhavan.
25. At the time of sworn statement, P.W. 12 had stated that his nephew Prabhakaran, Rajan, Vijayan, Kesavan, Sethu, Asokan and Murali had witnessed the incident. At the time of 202 enquiry, statements of P.Ws. 4 to 6 and one Janaki were recorded. Chandran, whose name was stated in the witness list filed along with the complaint, was examined as P.W. 4. Two persons from the additional list were examined as P.Ws. 5 and 6. As we have already stated, an additional witness list was filed only on 8-9-1994, after a lapse of nearly six months after the filing of the complaint. No reason was stated by the complainant why their names were not stated in the complaint or in the list filed along with it. Even at the time of giving the sworn statement, the complainant had not stated the names of P.Ws. 5 and 6 as eye witnesses. P.Ws. 5 and 6 were not residing or doing any business near the place of occurrence. They were chance witnesses. So, we are of the considered view that it is not safe to place any reliance on the evidence given by P.Ws. 5 and 6. We discard their evidence in toto. But, we do not find any reason to reject the evidence of P.W. 4 on the mere ground that he was not questioned by the police. We are of the view that his evidence can be considered for the limited purpose of corroboration of the evidence of P.W. 3, whose statement was recorded by the police under Section 161 Cr.P.C.
25. We have already narrated the evidence given by P.W. 3 in this case. His evidence was attacked on the ground that he was a chance witness. It is argued that according to P.W. 3 he went to Kunnamkulam, a place situated about 9 kms. away from his house, to purchase some medicine for his brother who was alleged to be suffering from fever. It is argued that there are a number of hospitals and medical shops at Akkikkavu, Perumpilavu and Ottappilavu and if P.W. 3 wanted to purchase any medicine, he could have purchased the same from any one of the medical shops situated in these places. It is argued that P.W. 3 had invented the story of purchase of medicine from Kunnamkulam only to explain his presence at the place of occurrence at the time of incident. He was involved in a number of criminal cases for attacking the followers of CPI(M) and he was the booth agent for a BJP candidate and as such he was highly interested as against the accused. His evidence is attacked on the ground that it is against the earliest version given by P.W. 1 in Exhibit P1 F.I. Statement.
26. It is argued that there is no mention in Exhibit P1 that the first accused stabbed the deceased and in fact his name was not even mentioned in Exhibit P1 Statement. On the other hand, the allegation was that one Sathyan stabbed Suresh Babu to death. The learned Senior Counsel relied on a decision reported in Ram Kumar v. State of M.P. in support of his argument, in which it was held as follows :--
No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
The learned Special Prosecutor appearing for the respondent-State has argued that it is a case in which the maker of Exhibit P1 himself had disowned the same and the same cannot be used against him or any other person. It is argued that the position is clear from the decision of the Apex Court that the statements contained in A F.I. Statement can be used only to corroborate or contradict the maker of it and not for any other witness. In Hasib v. State of Bihar the Apex Court held as follows ;--
The report does not constitute substantive evidence though It is Important as conveying the earliest information about the occurrence. It can be used only as a previous statement for the purpose contemplated under Section 157 or Section 145 of the Evidence Act, that is for corroborating or contradicting its maker and not of other witnesses.
In Shanker v. State of U.P. it was held as follows (Para 11) :--
It is well settled that unless a First Information Report can be tendered in evidence under any provision contained in Chapter II of the Evidence Act, such as a dying declaration falling under Section 32 (1) as to the cause of the informant's death, or as part of the informant's conduct under Section 8, it can ordinarily be used only for the purpose of corroborating, contradicting or discrediting (under Sections 157, 145 and 155, Evidence Act) its author, if examined, and not any other witness.
In State of Gujarat v. Anirudhsing , it was held as follows :--
It (FIR) can only be used for corroborating or contradicting its maker -- It cannot be used to corroborate or contradict other witnesses.
In George v. State of Kerala , it was held as follows (Para 30) : --
Before proceeding further we must confess that we have not been able to fathom how the trial Court could rely upon the contents of Ext. P1 lodged by P.W. 1 and that too for the purpose of discarding the evidence of P.Ws. 3 and 4. P.W. 1 turned hostile and testified that he did not make any statement before the police but signed on the dotted lines.
In Chaudhari Ramjibhai Narsangbhai v. State of Gujarat it was held that witnesses can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with statement of any other witness. So, the evidence of P.W. 3 cannot be discarded on the ground that the version given by P.W. 1 in Exhibit P1 was different.
27. The above stated defence contention is factually not correct also. A reading of Exhibit P1 will show that at about 8.15 p.m. on 10-3-1993 P.W. 1 along with one Satheesan were walking along the road and when they reached Ottappilavu Centre, they saw a crowd and a commotion. He heard somebody crying aloud. According to P.W. 1, at that time there were about 200 persons and among them, he saw A13, A14, A15, A16, A17, A19, A2, A3, A4, A5, A18 and one Abu and they were beating a person lying on the ground. There is no averment in Exhibit P1 to the effect that it was Sathyan who had inflicted the stab injury on the deceased. Even according to P.W. 1. he did not see the actual stabbing. His statement in Exhibit P1 was to the effect that when he reached the place, he saw Sathyan and Ors. beating Suresh Babu who was lying on the ground and he left the place. Even if Ext. P1 (which has been disowned by the maker) could be looked into, what P.W. 1 saw was persons surrounding the deceased and beating him and P.W. 1 ran away out of fear. So, he had only a fleeting glimpse of a part of the occurrence. He did not see Suresh Babu being stabbed. Subsequently only he came to know that police came to the scene of occurrence, took Suresh Babu to hospital and he died. All other statements in Exhibit P1 were based on hearsay knowledge. Exhibit P1 does not contain a different version than what is spoken to by P.W. 3 in Court. Further, P.W. 1 himself had disowned Exhibit P1 and the same cannot be used to discredit the evidence of P.W. 3.
28. It is argued that there is no evidence to show that on the date of incident the brother of P.W. 3 was residing with him and his brother was suffering from any illness. P.W. 3 deposed that the name of his brother is Mohanan and Mohanan was suffering from fever and headache and so he went to Kunnamkulam to consult a doctor. He purchased medicine from a medical shop situated on the side of Guruvayoor Road at Kunnamkulam. It is true that he does not remember the name of the medicine and the name of the doctor who prescribed medicine. He deposed that he does not know whether there were a number of medical shops at Akkikkavu and Perumpilavu. P.W. 3 had admitted that there was a hospital at Akkikkavu by name "Deena Bandhu", but he deposed that he does not remember whether there was a Pharmacy attached to that hospital. In this connection, the evidence of P.W. 16, the Investigating Officer is material. It was brought out during cross examination of P.W. 16 that he had worked at the area in different capacities for a long time. He deposed that he had gone to Chalisserry, Korattikkara, Akkikkavu and Perumpilavu on a number of occasions and all these places are on the side of National Highway. He denied the suggestion that there were a number of medical shops in these places. He deposed that there was one shop each at the junctions. It is pertinent to remember that out of the above places Kunnamkulam is the busiest and most important town where shops may remain open till late night. Hence P.W. 3 was probably not taking any chance by not going to less important localities in search of medicine at that hour of the night. We do not find any reason to disbelieve the evidence of P.W. 3 that he went to Kunnamkulam for purchase of medicine and was returning to his house. It is true that though P.W. 3 deposed that he is not a sympathiser or follower of BJP, he admitted that he was a booth agent for a BJP candidate in an election. He deposed that he was made an accused in a criminal case, which was registered subsequent to the date of incident. According to the Special Prosecutor, P.W. 3 was made an accused falsely in that case only to raise a contention that his evidence cannot be relied on in this case. We do not find any reason to discard the evidence of P.W. 3 on that ground also.
29. It is argued that the conduct of P.W. 3 is very strange as he did not go to the house of the deceased and inform the parents of the deceased about the incident. P.W. 3 deposed that after witnessing the incident, he went to his own house and slept there as he was terrified. He deposed that on the next day also he did not inform the relatives of the deceased that he had seen the incident. He further deposed that he went to the residence of the deceased, but he did not tell about the incident to any person he met at the house of the deceased. But, he deposed that he had told about the incident to a number of persons on the date of Incident itself. The learned Senior Counsel Sri. Janardhana Kurup relied on the decision reported in Maruti Rama Naik v. State of Maharashtra to argue that the unusual behaviour of a witness will make his evidence untrustworthy. In Maruti Ram Naik's case (supra) it was held as follows :--
PW4 (a close relative of deceased K) saw the assault on K, but neither tried to shift K to a hospital who was alive by then nor informed anybody about the incident, and went to his factory -- Even after coming back from factory, he did not inform anyone about the same -- Though the incident occurred at about 8 a.m., statement made by him to police at 6 p.m. -- Considering the said conduct of PW4 and delay in recording his statement, held, his testimony could not be relied on.
30. There cannot be any straight jacket formula regarding the reaction of person who witnesses a criminal act. In Rana Partap v. State of Haryana , it was held that to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. In Bachittar Singh v. State of Punjab it was held as follows (Para 12) :--
Human behaviour vary from man to man. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances to each given case. How a man would behave in a particular situation, can never be predicted.
in Kunhimoideenkutty v. State of Kerala 2003 SCC (Cri) 1452 : 2003 Cri LJ 4941 it was held as follows :--
Contention that the nature of reaction of PWs. 1 to 3 immediately after the incident was highly suspicious as they did not make any inquiry as to what had happened to the deceased and therefore they might have suffered injuries in some other incident and the deceased must have died due to attack by some other persons -- Since PW 3 had suffered serious injuries and he had to be in the hospital for a long period, PWs. 1 and 2 were afraid and they did not come out of the house where they hid themselves and the situation in the locality was tense, held, there was no substance in the said contention.
In Main Pal v. State of Haryana 2004 SCC (Cri) 1882 : 2004 Cri LJ 2036 it was held as follows (Para 10) :
Merely because the evidence of PW2 shows that he acted in an unnatural manner, that per se would not be a determinative factor to throw out the otherwise cogent prosecution evidence.
In State of Punjab v. Hardan Singh 2005 SCC (Cri) 834 : 2003 Cri LJ 5048, it was held as follows (Para 6) :--
Before we advert further, we may at this stage point out that by now it is well settled principle of law that there is no set rule of natural reaction. Everyone reacts in his own special way and in what way the witness should react cannot be predicted.
So, it is well settled position of law that there is no set rule or natural reaction, P.W. 3 had deposed that on the date of incident he had narrated about the incident to number of persons. He went to his own house as he was terrified to go out in the night. The mere fact that he did not inform the relatives of the deceased that he had witnessed such a ghastly incident is not a ground to reject his evidence. We do not find anything unnatural in the behaviour or conduct of P.W. 3.
31. It is argued that P.W. 3 was only a chance witness. In State of A.P. v. K. Srinivasulu Reddy 2005 SCC (Cri) 817 : AIR 2004 SC 3305, it was held that the evidence of a chance witness cannot be brushed aside on the ground that he is a mere chance witness. It was held as follows (Para 13) :--
The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence.
We do not find any reason to discard the evidence of P.W. 3 on the ground that he is a chance witness.
32. The learned Senior Counsel appearing for the accused-appellants has argued that the earliest information regarding the incident was a telephone message and that message is the First Information Statement. It is argued that there was unexplained delay in registering the F.I.R. It is argued that the registration of the F.I.R was delayed only to give time to the interested persons to have deliberations and falsely implicate innocent persons.
33. P.W. 14, the Head Constable who was on duty, deposed that he got a telephonic information that a commotion and fight was going on at Ottappilavu and one person sustained injury. He went to the place of occurrence along with police constables. When he reached the place, he saw one person lying on the margin of the road. All the shops in the vicinity were closed and nobody was present at that place. The person lying on the ground was unconscious and was not able to speak. P.W. 14 and Ors. immediately took the injured to the Government Hospital, Kunnamkulam and the doctor on duty examined the injured and pronounced him dead. P.W. 14 was not aware of the identity of the injured. The person who telephoned did not disclose his identity and he did not give any details. The information P.W. 14 received was only a vague and cryptic information without any details. In Dhananjay Chatterjee v. State of West Bengal , it was held by the Apex Court that vague and indefinite telephonic message which was only sufficient for enabling the investigating agency to rush to the spot need not be treated as an F.I.R. and the statement of the competent person recorded thereafter could be treated as an F.I. Statement. Since the information received by P.W. 14 was vague he was not bound to register an F.I.R. based on that information.
34. It was argued that though P.W. 14 had deposed that he had recorded the telephone message in the General Diary, the same was not produced and that will amount to suppression of material evidence. It is true that the investigating agency did not produce the General Diary. But, the evidence of P.W. 14 that he had made such an entry was not challenged in cross examination. So, the non-production of General Diary will not amount to suppression of material evidence. P.W. 14 deposed that after taking the injured to the hospital, he reported the matter to the Sub Inspector of Police, Circle Inspector of Police and the Deputy Superintendent of Police. He had also deposed that when he came back to the police station from the hospital, the Sub Inspector was present in the station and he again went to the place of occurrence as per the instruction by Sub Inspector.
35. It was argued that there is undue delay in recording the F.I. Statement and unexplained delay in forwarding the same to the Court. The evidence of P.W. 14 shows that immediately after the incident, all the persons present at Ottappilavu junction left the place and that place was deserted. It was only at mid-night P.W. 1 came to the Police Station and gave Exhibit P1 F.I. Statement in which he had stated the names of some of the accused. In this connection it is to be noted that in Exhibit P10 complaint itself it is stated that prior to the incident In which Suresh Babu sustained injuries, another clash took place between the followers of BJP and CPI(M) and a few CPI(M) sympathisers sustained injuries and police had registered a case. In the remand report filed by the Circle Inspector on 17-3-1993, it was specifically stated that on the evening of 10-3-1993 some of the followers of BJP assembled at Ottappilavu and attacked sympathisers of CPI(M) in which one Moidunny, Ali, Subramonian, Shameer and Kunhikoya sustained grievous hurt and a case was registered against Suran, Satheesan, Unnidasan, Rajan, Biju and Ors., who are followers of BJP, as Crime No. 96 of 1993 of Kunnamkulam Police Station under Sections 143,147, 148, 323, 324 and 307 read with Section 149 of the Indian Penal Code. It is also stated that subsequent to the incident that took place at 6.15 p.m., three cases as Crime Nos. 95 of 1993, 97 of 1993 and 98 of 1993 were registered against the sympathisers of CPI(M) on that day. In view of the series of clashes which took place on that day, it cannot be held that there was undue and unexplained delay in giving the F.I. Statement. It is true that the initials of Magistrate who received Exhibit P1 shows that he saw the same at 2.00 p.m. The F.I.R. was registered at 12.00 mid-night. Nobody was arrested. In such circumstances, the failure on the part of the police to take F.I.R. to the Magistrate during that night itself cannot be considered as an unexplained delay so as to render the entire prosecution case false. According to the investigating agency, the F.I.R. was taken to the Court in the morning, but the Magistrate saw the same only during lunch recess and that is the reason why he noted the time as 2.00 p.m. in Exhibit P1. The delay, if any. was properly explained in this case. In A.C. Apparao v. State of A.P. 2003 SCC (Cri) 87 : 2003 Cri LJ 17 it was held by the Supreme Court that the prosecution need not explain every hour's delay and it only mandates that it has to be sent within a reasonably possible time in the circumstances prevailing. As we have already stated, four cases were registered by the police on the evening of 10-3-1993. That explains the grave law and order situation which existed there. So, it is not possible to reject the prosecution case on the ground that there is undue delay in recording the F.I. Statement and there is unexplained delay in forwarding the same to Court.
36. It is argued that there is inordinate delay in questioning P.W. 13. Sri. Janardhana Kurup, learned Senior Counsel appearing for the appellants relied on the decision in Maruti Rama Naik's case, 2003 Cri LJ 4326 (supra) to argue that when there is delay in questioning an eye witness, his evidence is liable to be discarded. It is pointed out that in Maruti Rama Naik's case (supra) the evidence of the injured eye witness was discarded on the ground that his statement was recorded a day later when the investigating officer had ample opportunity to record the statement on the day of incident itself. In the above stated case, the evidence of the eye witness was rejected because the delay was not explained. Delayed questioning of witness alone is not a ground to reject his evidence.
37. In Mohd. Khalid v. State of W.B. it was held as follows :--
Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the Court can act on the testimony of the witness if it is found to be cogent and credible.
In Banti v. State of Madhya Pradesh it was held as follows (Para 17) :--
Unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion.
In State of U.P. v. Satish , it was held that the delay in examination of a witness by the Investigating Officer does not ipso facto make prosecution version suspect and the Investigating Officer has to be categorically questioned on the aspect of delayed examination.
38. In this case, the incident occurred at the night of 10-3-1993. The records in this case itself shows that three more cases were registered as Crime Nos. 96 of 1993, 97 of 1993 and 98 of 1993 on that day itself regarding the incidents took place at the same place. On that day, P.W. 16, the Circle Inspector of Police was on leave. Initial investigation was conducted by the Sub Inspector of Police, as P.W. 16 was on leave. The learned Sessions Judge himself had noted the manner in which the Sub Inspector of Police conducted the investigation. He did not even send to the Court the blood soaked dhoti, the tiffin carrier and other personal articles of Suresh Babu which had fallen in the place of occurrence and he had seized while preparing the scene mahazar. He did not even note whether there were any electric lamp posts with burning light near the place of occurrence. P.W. 16 took over the investigation on 13-3-1993. He questioned P.W. 3 on that day itself. No question was put to P.W. 15, the Sub Inspector of Police, why he did not question P.W. 4. So, actually there was no delay in questioning P.W. 4. If at all there was any delay, the explanation given by P.W. 16 that he could not question any witness as he was on leave remain unchallenged. So, there is no merit in the argument that the evidence of P.W. 3 is to be discarded as there was delay in questioning him.
39. It. is argued that no Test Identification Parade was conducted in this case. It is pointed out that as per the earliest version contained in Exhibit P1, there were nearly 200 persons assembled at the place of occurrence and the failure to conduct a Test Identification Parade renders the entire prosecution case unreliable. P.W. 3 had clearly stated that he was having prior acquaintance with the accused and all of them are known to them. They were residing in the nearby place. It is well settled position of law that the purpose of a Test Identification Parade is only to corroborate the evidence of eye witnesses and the substantive evidence is the evidence of eye witneses given in Court, See Malkhan Singh v. State of M.P. 2003 SCC (Cri) 1247 : 2003 Cri LJ 3535. Since the witnesses had specifically stated that the identity of the assailants were known to them long prior to the date of incident, it is not at all necessary to conduct a Test Identification Parade and the failure to conduct the same is not fatal to the prosecution case.
40. It is argued that the evidence of P.W. 3 was to the effect that deceased Suresh Babu after sustaining the injury crawled from the spot and was found lying at another place. It is argued that the prosecution failed to explain how the deceased covered the distance of more than 8 metres. The incident took place near a bus shelter. Exhibit P5 scene mahazar shows that the body of Suresh Babu was found lying about 8.1 metre to the north of the place of occurrence. It further shows that the blood soaked dhoti worn by the injured, his chappals and a plastic bag which contained tiffin carrier and a small dish to keep curry, etc. were found in the place where Suresh Babu sustained injuries. Blood clots were found at the place where he was lying and blood stained mud was taken from that place. P.W. 15, who prepared the scene mahazar, had omitted to state whether there was blood clots at the place where Suresh Babu sustained injuries and had not stated whether there was any trail of blood from the place of occurrence to the place where the body was found lying. But, it is to be noted that in the scene mahazar itself it is stated that the blood soaked dhoti of the injured was found at the place of occurrence. Exhibit P8 inquest report shows that the shirt worn by the deceased was soaked with blood and sand mixed with blood was found on the shirt. Exhibit P11 post-mortem certificate shows that 1.6 liters of blood was found in the chest cavity, which indicates that there was no profuse external bleeding. The evidence shows that on sustaining injury there was oozing of blood and the blood had mixed with sand. Dhoti worn by the deceased was also soaked with blood. So, the failure to note the presence of droplets of blood at the place of occurrence and on the line through I which the deceased crawled is not a ground to hold that he did not crawl.
41. It is argued that Exhibit D3 (b) statement given by P.W. 3 before the police was to the effect that Suresh Babu got up and ran away. But, at the time of evidence, he deposed that the injured crawled and the same is a material contradiction. P.W. 13 had deposed that some of the abrasions noted on the body of Suresh Babu could be caused due to crawling. The evidence of P.W. 13 supports the evidence of P.Ws. 3 and 4 to the effect that the deceased crawled from the place where he sustained injury and was lying few metres away from the place of occurrence is correct. Exhibit D3 (b) contradiction is not very material. It was argued that there were other contradictions also. The contradictions pointed out were that P.W. 3 had stated that he was aged 20 on the date of his questioning and he was residing at Korattikara Village. P.W. 3 deposed that there was no village by name Korattikkara. The evidence of P.W. 7, the village officer who prepared the plan shows that the names of the villages are Karikkad, Kadavallur and Perumbllavu. The name of the village noted as Korattikkara by the Investigating Officer can only be a mistake and not very material. Even if the Investigating Officer makes a mistake in stating the correct age and name of village, the same is not a ground to reject the testimony of P.W.3.
42. P.W. 3 had deposed that when he reached the bus stop, he saw a group of persons standing at the Ottappilavu stop. He identified A1 and A6 to A11 from among them. He further deposed that A1, A2, A4 and A5 were among the persons who entered into the bus and pulled out Suresh Babu from the bus. He further deposed that A1 stabbed on the left side on the back chest of Suresh Babu. Suresh Babu fell down on his front. Thereafter the 1st accused inflicted two more stab injuries. He further deposed that he saw A2, A4- and A5 beating the deceased. P.W. 4 in his evidence had deposed that among the persons who entered into the bus he identified A2, A3, A4 and A14. They pulled Suresh Babu out of the bus. He further deposed that A1 and A21 stabbed Suresh Babu on his chest. He further deposed that A2, A3 and A4 beat Suresh Babu when he fell down on sustaining the 1st stab injury. Al again stabbed the deceased. He further deposed that A10, A13, A14, A15, A18 and A20 also beat the deceased with sticks. So, the evidence of P.W. 3 regarding the overt acts alleged against A1, A2 and A4 was fully corroborated by the evidence of P.W. 4. The learned Sessions Judge himself did not accept the evidence of P.W. 3 regarding the role of A5 to Al 1 and acquitted all of them. P.W. 3 does not speak about the overt act against A3. It is very pertinent to note thatP.W. 3 does not implicate A13, A14, A15, A18 and A20. Regarding the overt acts alleged against those persons, the materials on record shows that P.W. 5 corroborates the evidence of P.W. 4 regarding the role of A1, A4, A14, A15 and A18. P.W. 6 also spoke about the role of Al and A21 as the persons who stabbed the deceased and deposed that he identified A2, Al 1 and A14 as the persons who beat the deceased. We have already held that the evidence of P.Ws. 5 and 6 cannot be relied on for any purpose. So, there is no corroboration of the evidence of P.W. 4 regarding the role of A3, A10, A13, A14, A15 and A18. We do not think that it is safe to convict A3, A14, A15 and A18 based on the evidence of P.W. 4 alone. They are entitled to acquittal of all the offences alleged against them.
43. It is argued that there is no person by name Anakkottii Abu and that name is only a fictitious one found out by P.W. 12 to file the private complaint. The summons issued to A21 was returned with an endorsement that his whereabouts cannot be traced out. The 6th name mentioned in Exhibit P1 is one Abu. Why that Abu was deleted from the array of accused was not explained by the Investigating Officer. It is true that in Exhibit P13 inquest report the name of one Ashraf was also stated. But, those facts are not sufficient to hold that there is no person by name Anakkottii Abu. Since he is absconding, we are not considering whether there is any evidence against him or not in this case and that point is left open to be decided in appropriate proceedings. The oral evidence of P.W. 3 shows that Al inflicted stab injuries on the body of the deceased and A2 and A4 beat him while he was lying on the road. The evidence of P.W. 3 is consistent and reliable. His evidence alone is sufficient to establish the overt acts alleged against A1, A2 and A4. His evidence is corroborated by the evidence of P.W. 4 also. So, we accept the evidence of P.W. 3 regarding the overt acts alleged against A1, A2 and A4. We also note in this connection that the trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility has chosen to believe P.W. 3 and due weight must be given to the appreciation of evidence by the trial Court. Vide State of Kerala v. Cheriyan (1991) 2 Ker LT 196.
44. The learned Counsel appearing for the appellants has argued that it was not proved that M.O. 1 was the weapon used for the commission of the offence. It is argued that the learned Sessions Judge himself discarded the recovery of M.O. 1 and the same is fatal to the prosecution case. In Paragraph 47 of the judgment of the learned Sessions Judge relying on a decision of this Court reported in Ramakrishnan v. State of Kerala (1987) 1 Ker LT (SN) 21 Case No. 37 held that recovery in pursuance of the disclosure made by one accused cannot be used against a co-accused. There cannot be any dispute regarding that legal position. But, we are afraid, the learned Sessions Judge did not consider the legal position in its correct perspective in this case.
45. Section 27 of the Evidence Act reads as follows :--
27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, In the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
A reading of Section 27 shows that the above provision is an exception to Sections 25 and 26 of the Evidence Act and what is made relevant is the fact deposed to as discovered in consequence of information received from a person accused of an offence. What is material is the discovery of the fact and not the recovery of the material object. The decision of the Privy Council reported in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 : 1947 (48) Cri LJ 533 is still the law of this country. It was held as follows :--
It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant.
When the authorship of concealment is properly proved, the statement is admissible under Section 27 of the Evidence Act. It is not necessary that the object must continue to remain in the place where it was stated to have been placed. In Vesudevan Pillai v. State ILR (1968) 2 Ker 303 : 1962 Cri LJ 1362 the accused gave information to the effect that he threw the knife used for stabbing by the side of a tank and the police party searched for the same. It was revealed that a girl had found a knife underneath a shrub nearby that place and handed over the same to another person. That person, on demand, produced the same before the police. It was held that the discovery made in pursuance of that information is covered by Section 27 of the Evidence Act. In Hussein Dastgir v. State of Maharashtra 1969 Ker LT (SN) 48 the apex Court has held that "the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place". In Raveendran v. State (1989) 2 Ker LJ 534, a Division Bench of this Court had elaborately considered this aspect. It was held as follows :--
The word "information" in Section 27 cannot be used as synonymous with the word "statement" since "information" as distinguished from "statement" connotes two things namely, statement or other means employed for imparting knowledge possessed by one person and the knowledge thereby derived by the other person. Even more Important is the word "discovered" which is used in a peculiar sense. The test is that the "fact discovered" must be discovered in the sense, that proof of the existence of that fact no longer rests on the credibility of the accused's statement, but on the credibility of the witnesses who depose to the existence of that fact.
It was also held as follows :--
The information by an accused leading "to discovery of a witness to whom he had given the stolen articles is a discovery of fact within the meaning of Section 27. If the information leading to the discovery of a fact is relating to the concealment of an incriminating object it can be by concealment in a place or by entrustment with a person. What makes the information leading to the discovery of the witness admissible is the discovery of the Tact', the connotation of which has been clearly laid down in Pulukuri Kottaya's case. For the application of Section 27 there is practically no difference between the information that the article is kept concealed in a particular place and the information that the article is given to a particular person. The only difference is that the named person is substituted for the place.
In Anter Singh v. State of Rajasthan 2005 SCC (Cri) 597 :2004 Cri LJ 1380 it was held as follows (Para 14) :--
The first condition necessary for bringing Section 27 into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded.
It was further held as follows (Para 16):--
The various requirements of the Section can be summed up as follows :--
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
It was also held as follows (Para 15) :--"At one time it was held that the expression "fact discovered" in Section 27 is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact. But now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this.
It was further held that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced.
46. The question is whether there is material to connect the first accused to the recovery of M.O. 1. It is true that P.W.16, the Circle Inspector of Police had not stated anything to connect the first accused to the recovery of these articles in his evidence. He proved the statement made by A14 alone. P.W. 16 was not asked how the knife alleged to have been used by A1 came to the hands of A14. Had his attention been drawn to the petition supported by an affidavit filed by him for getting custody of A1, A13 and A14, the same would have solved the mystery. In the affidavit it was specifically averred that after arrest, Saidu Muhammed (A1) was questioned and he admitted that he handed over the weapon to Balaji (A 14) and left for Nagalasseri. The confession by Saidu Mohammed was extracted in the affidavit, in which he stated that before he left the place he handed over the knife to Balaji:
(vernacular matter omitted....Ed.) The Investigating Officer questioned Balaji and he divulged the place where he had concealed the knife and the same was recovered. In the absence of proof of statement of the 1st accused falling Under Section 27 of the Evidence Act given to P.W. 16, the Court below was justified in discarding the recovery of knife. At this juncture, we would like to remind the Magistrates/Judges their role in administering criminal justice. Even if there is failure on the part of the Public Prosecutor to elicit relevant materials, which are available in the record, the learned Sessions Judge could have questioned P.W. 16 as to how a weapon used by A1 was concealed by another accused. In Zahira Habibulla H. Sheikh v. State of Gujarat , the Supreme Court held as follows (Paras 33 and 35) :--
Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of Courts of justice. However, restraints on the process of determining the truth are multifaceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings.
It was also held as follows (Para 38) :--"Presiding Judge must cease to be a spectator and a mere recording machine, by becoming a participant in the trial evincing intelligence, active interest and eliciting all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to the proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators.
Had P. W. 16 been asked, he could have definitely disclosed the information furnished to him by A1, in which case, the discovery of M. O. 1 knife could have been treated as one under Section 27 of the Evidence Act. In the absence of proof of the statement of A1, we do not think we will be justified in relying on the statement contained in the affidavit filed by P. W. 16 before the Magistrate without recalling and further examining him. So, we are not placing any reliance on the statement contained in the affidavit filed by P. W. 16. In State of Rajasthan v. Dhool Singh , it was held that when there is reliable evidence to show that the accused inflicted the injuries on the person, the non-recovery of the weapon is not fatal. The failure on the part of the prosecution to prove that M. O. 1 was the knife used by the 1st accused to inflict the stab injury on the person of Suresh Babu is also not fatal to prosecution case.
47. In Anter Singh's case 2004 Cri LJ 1380 (SC) (supra), it was also held that the evidence relating to recovery cannot be rejected merely on the ground that non-official witness did not support the recovery.
48. We shall now consider whether there is any merit in the argument that the Investigating Officer must obtain the signature of the accused in the recovery mahazar to make it admissible. In Jackaran Singh v. State of Punjab originally there was an observation by the Apex Court to the effect that the failure to obtain the signature in the disclosure statement affects the reliability of the same. The said case was decided on April 20, 1995. The Supreme Court subsequently held that the observation contained to that effect in that decision was to be reviewed. Therefore, the registry was directed to post the case before the same Bench for suo motu review. It was heard on 25-4-1996. The Supreme Court issued a corrigendum, which is reported in Jackaran Singh v. The State of Punjab (1998 J. V. (1) (Ker) pp 1 to 5). It reads as follows :--
Page Instead of Read
Page 6 does not bear the signatures or thumb was made long time after the
Line 8 impression of the appellant. Even, appellant was taken into custody
to 17 the recovery memo of the revolver and the by the investigating agency and
cartridges, Ex. P-9/A, which is also it is doubtful whether the same
attested by Yash Pal and was voluntarily made by the
Sukhdev Singh, ASI does not bear either appellant
the signatures or the thumb impression
of the accused. The absence of the
signatures or the thumb impression of
an of an accused on the disclosure
statement recorded under Section 27
of the Evidence Act detracts materially
from the authenticity and the reliability
of the disclosure statement.
So, the legal effect is that there is no dictum laid down in Jackaran Singh's case 1995 Cri LJ 3992 to the effect that the statement made by an accused to be admissible under Section 27 must contain his signature or thump impression. These aspects were elaborately considered by a Division Bench of the Madras High Court in Natarajan v. Union Territory of Pondicherry 2003 Cri LJ 2372. Further, in State of Rajasthan v. Teja Ram the Apex Court held that the Investigating Officer is not obliged to obtain the signature of an accused. Since the Apex Court had suo motu reviewed the observations contained in Jackaran Singh's case (supra), that decision is not an authority to hold that to accept a statement under Section 27, it must contain the signature or thump impression of the accused. Moreover, it is relevant to note that the words "any person supposed to be acquainted with the facts and circumstances of the case" occurring in sub-section (1) of Section 161 of the Code of Criminal Procedure are comprehensive enough to include an accused person and sub-section (1) of Section 162 of the Code of Criminal Procedure enjoins that such statement, if reduced to writing, shall not be signed by the maker. Section 27 of the Indian Evidence Act only makes that part of such statement relevant and admissible in evidence as would fall within the ambit of that section.
49. The learned Counsel appearing for the appellants-accused has argued that the name of the first accused is not stated as the principal assailant in Exhibit P1, F. I. Statement. In Ext. P1 it was stated that P. W. 1 came to the scene of occurrence only after the first part of the incident was over. The mere fact that there is some delay in disclosing the name of the first accused is not fatal because P. W. 16 questioned P. W. 3 only on 13-3-1993. In D. Pandey v. State of Bihar AIR 1998 SC 40 : 1998 Cri LJ 66, it was held that delay in disclosing the name of one accused is not fatal in all cases. It is argued that for the first time the name of the first accused was stated in the remand report filed on 17-3-1993. That does not appear to be correct. In Exhibit P14 report he was shown as the 17th accused. The first remand report is seen filed on 17-3-1993. It contains the name of the first accused. But, his rank was shown as 17th accused. The subsequent remand report filed on 20-3-1993 also contains the name of 1st accused. There also his rank was shown as 17th accused. On 25-3-1993, the Investigating Officer filed a petition for getting the custody of the 1st accused. That was allowed. So, there is no merit in the contention that there is delay in giving the name of 1st accused.
50. The learned Counsel appearing for the appellants-accused relying on the evidence of D. Ws. 1 and 2 has argued that Exhibits D4, D5 and P20 will show that the appellants are falsely implicated in the case. Exhibit D5 is the F. I. R. in Crime No. 221 of 1994 of Kunnamkulam Police Station. Exhibit D4 is the final report of that crime filed under Section 173 of the Code of Criminal Procedure. Exhibit P20 is the judgment in that case. The allegation in Exhibit D5 F. I. R. was that the accused in that case due to the enmity towards the followers of Marxist party, attacked the witness in that case. The accused in that case were acquitted. As rightly pointed out by the learned Sessions Judge, that case was registered to discredit the witnesses in this case subsequent to the incident in this case. It was found by the learned Sessions Judge that the evidences of D. Ws. 1 and 2 will not advance the case of the accused. We confirm that finding.
51. It is argued that there were several Muslim fundamentalists in the locality and actually Suresh Babu was attacked by such fundamentalists and not by the followers of P1 (M). D.W. 3 is a Reporter of Malayala Manorama. He deposed about Exhibit D7, a report published on 17-6-2004, which carried a news item to the effect that in a murder case originally it was suspected that the same was committed by the followers of CPI (M), but subsequently it was revealed that it was committed by the Muslim fundamentalists. The attempt of the defence was to bring out that there was a Jama -- Ath Mosque near the place of occurrence and there was dispute regarding the calling of Muezzin from the mosque. An attempt was made to bring out that the deceased trespassed into the mosque and insulted the worshippers and because of that enmity, he was murdered. It is true that P. W. 16 deposed that there were disputes between the members of RSS/BJP and Muslim fundamentalists. But, as rightly pointed out by the learned Sessions Judge there is absolutely no material in this case to hold that the offence was committed not by the accused, but by the Muslim fundamentalists.
So, the evidence of D. W. 3 and Exhibit D7 are not sufficient to hold that the murder of Suresh Babu was committed by Muslim fundamentalists and the appellants are innocent.
52. Finally it is argued that the investigation of the case was faulty and instead of giving benefit of such faulty investigation to the accused, they were convicted. It is argued that as per the scene mahazar the blood stained dothi worn by the accused and other articles were seized by the Sub Inspector of Police. Those articles were not produced before Court. It is also argued that though the incident took place in the night, there is no mention of the existence of any electric lamp post with burning bulb in the scene mahazar. The incident occcurred on the side of National Highway, which was a junction wherein number of shops were situated. The materials on record show that only one of the shop owners was questioned by the police. The evidence of P. Ws. 3 and 4 shows that the shops were opened at the time 6f occurrence and there were lights burning in those shops. P. W. 3 had also deposed that there was an electric post with a lighted lamp. In addition to that, he deposed that the head light of the buses were not switched off. The driver of Babu Bus was examined. He turned hostile. But, he had not specifically stated that the head light of that bus was switched off and there was no other source of light. The investigation conducted by the Circle Inspector of Police was also very scanty and faulty. P. W. 16 has not questioned one Satheesan, whose name appears in Exhibit P1 statement as an eye witness. Though P. W. 16 had deposed that C. W. 11 was the Satheesan mentioned in Exhibit P1, the memo of evidence shows that that C.W. 11 was not cited as an eye witness, but was cited only to speak the motive. There is nothing on record to show that C.W. 11 was the person whose name was stated in Exhibit P1 as an eye witness. The learned Sessions Judge himself found that faulty investigation is not a ground to acquit the accused. In State of W.B. v. Mir Mohammad Omar 2000 SCC (Cri) 1516 : 2000 Cri LJ 4047 it was held as follows (Para 41) :---
If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case.
In State of U. P. v. Jagdeo 2003 SCC (Cri) 351 : 2003 Cri LJ 844, it was held that mere faulty investigation cannot be a ground for acquittal of the accused. It was further held that for the fault of prosecution, the perpetrators of a ghastly crime cannot be allowed to go scot-free. In Zahira Habibulla H. Sheik's case 2004 Cri LJ 2050 (SC) ("Best Bakery Case") (supra), it was held as follows :--
It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective and the designed mischief would be perpetuated with a premium to the offenders and justice would not only be denied to the complainant party but also made an ultimate casualty.
So, none of the grounds stated by the counsel appearing for the appellants is sufficient to acquit accused 1, 2 and 4.
53. The next question arising for consideration is what exactly are the offences committed by A1, A2 and A4. The learned Sessions Judge found the appellants guilty of the offences punishable under Sections 143,147, 148, 341, 342, 324 and 302 read with Section 149 of Indian Penal Code and convicted them. He had not imposed any separate sentences for the offences under Sections 143, 147 and 341. In Varghese v. State of Kerala 1986 Ker LT 1285, a Division Bench of this Court had held that conviction of an accused without sentence is illegal. That principle is again reiterated in the decision reported in Thampi Sebastian v. State of Kerala (1988) 1 Ker LT 247, wherein it was held as follows :--
Ordinarily the law does not envisage a person being convicted for an offence without a sentence being imposed, and therefore the failure to impose sentence is illegal.
So, the omission of the trial Judge to impose sentence after finding the appellant guilty of the offences under Sections 143, 147 and 341 is illegal. But, In the absence of an appeal by the State under Section 377 (1) of Cr. P. C. complaining inadequacy of sentence, we do not propose to consider that question and we, therefore, leave that question open.
54. It is to be noted that the allegation is that A1 stabbed Suresh Babu and the other accused beat him. The first accused was found guilty of the offences punishable under Sections 324 and 302 of the Indian Penal Code. When an act committed by a particular accused falls under different offences which form part of a graver offence, the same person cannot be convicted for all offences. In Kuttappan v. State of Kerala 1988 1 Ker LT 606, a learned single Judge of this Court held as follows :--
When the accused is convicted for a more serious offence, eg., under Section 307 IPC for having done certain acts against a particular individual with the requisite intention of knowledge, he cannot again be convicted and sentenced for having done some of those acts against that individual which constitute an offence under Section 324 IPC. Here common intention was murder. The target of attack was P.W. 2 alone. Exhortations and announcements were only to murder him and all the injuries were inflicted on him alone with that intention and knowledge and under such circumstances that if death resulted they would have been guilty of murder. All the individual acts of each member were those forming part of the offence under Section 307. In such a case if the offence under Section 307 was found against, conviction and sentence for an offence under Section 324 may be justified if it is taken as established. That is permissible even in the absence of a charge under Section 324 because of Section 222 Cr.P.C, But conviction and sentence in such a situation for offences under Sections. 307 and 324 together will be double conviction and sentencing for the same acts committed against the same person. In this case conviction under Section 307 includes conviction for the particulars of the same acts constituting an offence under Section 324 also. If it was assault against another person the position would have been different. When a person is convicted and sentenced for murder, he cannot again be convicted or sentenced for offences under Section 326, 324 or 307 for inflicting the individual injuries on the victim because they are covered by the conviction and sentence for murder which is the major offence which includes the particulars of each minor offence and something more.
So, the finding of the learned Sessions Judge that A1 is guilty of Section 324 and also 302 is not correct. Since he was found guilty of an offence punishable under Section 302, he ought not have been convicted for an offence under Section 324 of Indian Penal Code.
55. Now we shall consider what are the offences committed by the accused. The learned Special Prosecutor has argued that all the persons are liable for the offences found against them because they were members of an unlawful assembly. He relied on the decisions reported in Haricharan v. State of Rajasthan AIR 1998 SC 244 : 1998 Cri LJ 398. In Bhargavan v. State of Kerala (2004) 1 Ker LT 201 : 2004 Cri LJ 646 (SC), the Apex Court found that emphasis is on the common object and not on the common intention. It is argued that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149, I.P.C. In Charan Singh v. State of U.P. 2004 SC (Cri) 1041 : (2004 Cri LJ 4999) it was held that it may not be possible to have direct evidence to prove common object. The same has to gathered from the acts committed and result therefrom.
56. It is to be noted that though there is an allegation that Suresh Babu was attacked because of political enmity, there is nothing on record to show that the accused were aware of the fact that the deceased was coming to the place of occurrence and the accused formed themselves into members of an unlawful assembly with a view to attack and commit the murder of Suresh Babu. There is nothing in the evidence of P.Ws. 3 and 4 to prove that fact. The two remand reports filed on 17-3-1993 and 20-3-1993 were shown to P.W. 16. Some questions were put to P. W. 16 by the accused with reference to these two remand reports. In spite of the fact that he admitted that those reports were filed by him, those reports were not marked. Since those reports are properly proved, we are of the view that the contents of those reports can be looked into. The reports show that three more Incidents took place at Ottappilavu on the evening of 10-3-1993. A group of BJP workers formed themselves into members of an unlawful assembly, armed with deadly weapons and attacked one Moidunny, who is a follower of CPI (M). The incident took place at 6.15 p.m. on 10-3-1993 and Crime No. 96 of 1993 under Sections 143, 147, 148, 323, 324 and 307 read with Section 149, IPC was registered by the Kunnamkulam Police against members of BJP. In that incident, Moidunny, Ali, Subramannian, Shameer and Kunhi-koya sustained injuries and they were taken to Medical College Hospital, Thrissur. It is further stated that on getting that information, a group of CPI (M) workers assembled at Ottappilavu Junction. They formed themselves into members of an unlawful assembly, armed with sticks, etc. and started searching for BJP workers. The reports also show that two more cases as Crime Nos. 97 of 1993 and 98 of 1993 were registered against the followers of CIP(M) on that evening itself. The remand reports dated 17-3-1993 and 20-3-1993 show that there were group clashes. Though P.W. 3 deposed that A5 to A11 were among the members of the assembly, no overt acts were alleged against them. In Exhibit P1 it was stated that about 200 persons took part in the incident. There is nothing on record to show that all persons assembled at the place of occurrence had a common object of causing the murder of Suresh Babu. The evidence on record shows that because of the attack on the CPI (M) followers by the followers of BJP, the accused, who are members of CPI (M) formed themselves into members of an unlawful assembly, armed with weapons. Suresh Babu reached the place of occurrence in a stage carriage bus. He was proceeding from Kunnamkulam to Kottanad. He was unaware of the incident that took place at Ottappilavu. The evidence on record shows that Al and A21 alone inflicted stab injuries on the chest of the deceased. The evidence of the doctor shows that the injuries sustained by Suresh Babu on his chest caused his death. The doctor deposed that those Injuries were fatal, but need not necessarily be fatal. The evidence further shows that the injury sustained by the deceased due to beating were all on non vital parts and all those injuries were simple. The evidence on record shows that the common intention to cause the death of Suresh Babu if any, was shared by Al and A21 alone. Hence, A1 is liable to be convicted for the offences punishable under Section 302 read with Section 34, IPC. But, the finding of the learned Sessions Judge that all accused shared a common object to commit the murder of Suresh Babu is not correct and liable to be set aside. We set aside that finding, but confirm the finding that the first accused is guilty of the offence punishable under Section 302 of Indian Penal Code. We are not expressing any opinion regarding the offence alleged against A21 in this proceedings as he was not available to face the trial.
57. There is nothing on record to show that A2 and A4 and other members of the unlawful assembly shared a common object of causing the death of Suresh Babu along with A1 and A21. The offence committed by A2 and A4 only falls under Section 324, IPC. The finding of the learned Sessions Judge that A2 and A4 were guilty of the offence under Section 302, IPC is unsustainable and liable to be set aside. The offence committed by them will fall only under Section 324 of Indian Penal Code, So, we set aside the conviction and sentence imposed on A2 and A4 under Section 302 of Indian Penal Code. But, the conviction imposed on them under Section 324 of the Indian Penal Code is confirmed.
58. A1 was found guilty of the offence under Section 302, IPC, convicted and sentenced to undergo imprisonment for life, which is the lesser punishment. He was also sentenced to pay a fine of Rs. 10,000/-, in default to undergo R.I. for two more years. We do not find any reason to impose fine of Rs. 10,000/- on Al alone as he is stated to be suffering from illness and undergoing treatment. The learned Sessions Judge imposed a sentence of Rigorous Imprisonment for two years for the offence under Sections 148 and 324, IPC. We are of the view that Rigorous Imprisonment for one year is sufficient to meet the ends of justice for the offence under Sections 148 and 324, IPC.
59. The State has filed an appeal challenging the acquittal of the other accused in S.C. 201 of 1995. We have already held that no reliance can be placed on the evidence of P.Ws. 5 and 6. P.W. 3 deposed the presence of A1, A2, A4 and A5 to A11. P.W. 4 deposed the presences of A1 to A4, A10, A13, A14, A15, A18 and A21. But P.W. 3 only deposed that A5 to A11 were present at the scene of occurrence. P.W. 3 does not speak the presence of A13 to A15 and A18. The learned Sessions Judge acquitted A5, A13, A16, A17 and A19 after elaborately considering all aspects. The learned Sessions Judge has given cogent reasons for acquitting them. We do not find any reason to interfere with that finding of fact. So, the Criminal Appeal filed by the State and also the Criminal Revision Petition filed by P.W. 12 are only to be dismissed.
60. The complainant in C.P. 1 of 1995 had filed Crl. A 1544 of 2004 challenging the acquittal of the other accused in S.C. 202 of 1995. The learned Sessions Judge relying on the decision reported in Kesavan Natesan v. Peethambaran 1984 Ker LT 116 : 1984 Cri LJ 324 (FB) and Mani v. Swaminathan 1986 Ker LT 170 had framed a Consolidate Charge and ordered single trial. SC 202 of 1995 was closed. That order was passed on 15-3-1999. Nobody had challenged that order. Even in the appeals there is no challenge against that order. We do not find any reason to invoke the powers conferred on this Court under Sections 397 and 401 of the Code of Criminal Procedure after the lapse of six years. Even assuming that the learned Sessions Judge went wrong in not conducting separate trials, that is an irregularity curable under Section 464 of the Code of Criminal Procedure. So, we do not propose to consider the legality or propriety of the order dated 15-3-1999 in these proceedings.
61. Even though in the cause title of Crl. A. 1544 of 2004 the number given is SC 202 of 1995, the judgment produced along with that appeal is the one pronounced in SC 201 of 1995. Copy application was also filed in that case. As we have already stated, SC 202 of 1995 was closed on 15-3-1999. So, the appeal filed by the complainant in CPI of 1995 (SC 202 of 1995) also deserves to be dismissed. We do so.
In the result, the Criminal Appeals and Criminal Revision Petition are disposed of in the following manner :
Crl. A. No. 1207 of 2004(i) The conviction and sentence imposed on A3, A14, A15 and A18 under Sections 143, 147, 148, 341, 342, 324 and 302 read with Section 149 are hereby set aside. They are acquitted of all those offences. In case the continued detention of A3 is not required in connection with any other case, he will be released from custody forthwith. The bail bond executed by A14, A15 and A18 are cancelled and they are also set at liberty.
(ii) The conviction and sentence imposed on Al under Section 324 are hereby set aside. He is acquitted of that offence. He is found guilty of the offences punishable under Sections 143, 147, 148, 341, 342, 324, 302 read with Section 34 of Indian Penal Code. The sentence imposed under Section 302 is modified. The sentence of imprisonment for life is confirmed. But, the fine of Rs. 10.000/- (Rupees ten thousand only) and the default sentence imposed by the learned Sessions Judge are set aside. The sentence imposed under Section 148 is modified and reduced to R.I. for one year. The sentence imposed under Section 342 is confirmed. Bail granted to Al is cancelled. He shall surrender before the learned Sessions Judge to undergo the sentence imposed on him. The learned Sessions Judge shall also take steps to execute the sentence.
(iii) The conviction and sentence imposed on A2 and A4 under Section 302 read with Section 149, IPC are hereby set aside and they are acquitted of that offence. The conviction of A2 and A4 under Sections 143, 147, 148, 341, 342 and 324 are confirmed. The sentence imposed on them under Sections 148 and 324 is modified and reduced to R.I. for one year each on each counts. The sentence imposed under Section 342, IPC is confirmed. A2 and A4 will be released as and when they undergo the sentences imposed on them and provided further that their detention is not required in connection with any other case.
(iv) The fine, if any, paid by Al to A4, A14, A15 and A18 shall be refunded to them.
Crl. A. 1083 of 2005 & Crl. R.P.2373 of 2004.
(v) The Criminal Appeal filed by the State and the Criminal Revision Petition filed by P.W. 12 are dismissed.
Crl. A. No. 1544 of 2004.
(vi) The Criminal Appeal filed by the complainant in C.P. 1 of 1995 (SC 202 of 1995) is dismissed.