C.Pushpavally vs State Of Kerala on 3 June, 2019

[Cites 10, Cited by 0]

Kerala High Court

C.Pushpavally vs State Of Kerala on 3 June, 2019

Equivalent citations: AIRONLINE 2019 KER 166

The appeal is preferred against a judgment of acquittal. It was passed in SC 386/2002 by the additional sessions judge (adhoc-II) of the court of session, Thalassery division. Appellant is the widow of the victim who died in the incident. The petitioner in the Crl M.C was one of the police officers who investigated the case. The trial court wrote strictures against him in the judgment and recommended action against him. He filed the Crl M.C requesting to expunge the adverse remarks against him.

2. Prosecution case goes as follows: The accused were active members of the Bharatiya Janata Party (BJP for short) and the Rashtriya Swayamsevak Sangh (RSS for short). The victim of the incident, Dasan by name, was a member of the Communist Party of India(Marxist) - for short, CPI(M). All the accused formed themselves into an unlawful assembly with the common object of committing murder of Dasan. Arming themselves with deadly weapons such as billhooks, hatchet et cetera, the accused committed rioting. The first accused with a hatchet and accused 2 to 4 with billhooks attacked Dasan and inflicted fatal injuries on him. They caused his death. Accused 5 Crl A(V) 229/2013 & Crl M.C 3834/2012 5 to 11 aided accused 1 to 4 in committing murder. The accused blasted a bomb and created a situation of terror. The incident occurred at 9.45 a.m on 28.8.1999 at Achukulangara. Motive was political rivalry.

3. The trial court framed charges against the accused under Secs 143, 147, 148, 149 and 302 of the Indian Penal Code (IPC), Secs 3 and 5 of the Explosive Substances Act and Sec.27 of the Arms Act. They pleaded not guilty. Accused 1 and 8 died and the charges against them abated. The remaining accused were tried.

4. PWs 1 to 11 were examined and Exts P1 to P16 and MOs 1 to 20 were marked on prosecution side. The accused who faced trial were examined under Sec.313 of the Code of Criminal Procedure(Cr.P.C). DW1 was examined and Exts D1 to D4 were marked on defence side. The accused who were tried were acquitted under Sec.235(2) of Cr.P.C.

5. Heard Sri.R.Rohit (the learned counsel for the appellant), Sri.S.U.Nazar(the learned senior public prosecutor) and Sri.T.K.Sandeep (the learned counsel for accused 2 to 7 and 9 to 11) to decide the appeal. We heard Sri.Gracious Kuriakose,the learned senior counsel and Sri.S.U.Nazar, the learned senior public prosecutor to decide the Crl M.C.

6. Dasan died on 28.8.1999. His was a homicidal death. 6 Crl A(V) 229/2013 & Crl M.C 3834/2012 It is a fact not disputed. The prosecution proved the undisputed fact. A brief discussion of the medical evidence will suffice. PW7 conducted autopsy. Ext P6 is his report. He spoke to twenty two ante-mortem injuries he saw on the corpse. Most of the injuries were incised wounds which could be inflicted with sharp edged cutting tools. There were lacerated wounds, abrasions, contused abrasions and linear abrasions as well on the dead. Frontal bones, right ulna, left tibia and the 4 th and 5th ribs were fractured. PW7 testified that injury nos 1 to 6, 13, 15 and 17 to 19 were fatal injuries. He opined that those injuries were sufficient in the ordinary course to cause death. He deposed that injury nos 1 and 9 could cause instantaneous death. The said two most severe injuries are extracted below:

1. Incised wound of 16x2cm extending from just above the lateral end of left eyebrow across the forehead to the frontal region of scalp, right side. Skull bone exposed and cut and brain tissues seen through the wound.

9. Incised wound of 3x1.2cm back of chest, right side 3cm away from midline extending deep into the chest cavity fracturing 4th and 5th ribs(right side).

The medical evidence proves the undisputed fact that Dasan was murdered.

7. Of five persons cited as eyewitnesses, the prosecution examined three as PWs 1 to 3. They spoke that they witnessed the incident which was at 9.45a.m on 28.8.1999 7 Crl A(V) 229/2013 & Crl M.C 3834/2012 at Achukulangara. They stated that Dasan belonged to the CPI(M) and that the accused persons were members and followers of the RSS/BJP. PWs 1 to 3 spoke to the motive, namely, the political rivalry between the CPI(M) and RSS/BJP.

8. The evidence given by PWs 1 to 3 in their respective examinations-in-chief regarding the incident may be summarized as under: They heard the sound of a cracker burst. They heard also the cry of someone. They ran to the direction from where the sound was heard and saw the incident. The first accused with a hatchet and accused 2 to 4 with billhooks inflicted cuts on the person of Dasan in quick succession. Accused 1 to 4 continued to cut Dasan with the weapons in their hands even after his fall on the ground. Accused 5 to 11 stood nearby aiding accused 1 to 4. The accused persons dispersed and ran away when they saw people approaching the scene of occurrence. PWs 1 to 3 and two others rushed the victim to the co-operative hospital at Thalassery. The doctor there declared the victim dead.

9. PWs 1 to 3 identified MO1 hatchet and MO2 series billhooks as the weapons used by accused 1 to 4. The witnesses identified accused 2 to 7 and 9 to 11. Accused 1 and 8 died before the trial. The prosecution relied on the evidence of PWs 1 to 3 to prove the complicity of the accused persons 8 Crl A(V) 229/2013 & Crl M.C 3834/2012 who faced trial. According to the prosecution, MO1 hatchet was recovered from the place of concealment at the instance of the first accused and based on his disclosure statement. The prosecution contended that MO2(a) billhook was recovered consequent to the information given by the 4th accused and as produced by him. The defence disputed both the recoveries. According to the defence side, PWs 1 to 3 neither saw any incident nor took the victim to the hospital. It was contended that the prosecution picked and chose the BJP/RSS men as the accused since the victim belonged to the CPI(M). In order to highlight this contention it was urged that one Ramachandran who belonged to the RSS/BJP was originally arraigned as the 4 th accused, but he was substituted by the present 4 th accused as Ramachandran was out of station on the date of incident. The learned trial judge accepted the contentions of the defence and acquitted the accused persons who were tried.

10. No overt act was alleged against accused 5 to 11. They allegedly aided accused 1 to 4 to commit the crime. PW1 spoke that accused 5 to 11 were standing in the place of occurrence aiding accused 1 to 4. PW3 identified in court accused 5 to 7 and 9 to 11 as the persons who aided accused 1 to 4. But PWs 1 and 3 did not say what did accused 5 to 11 do to aid accused 1 to 4 or in what manner the aid was given. 9 Crl A(V) 229/2013 & Crl M.C 3834/2012 PW1 deposed in cross-examination that accused 5 to 11 did not do anything. PW2 stated that accused 5 to 11 were in the vicinity when the incident was going on. PW2 added that accused 5 to 11 were on a watch to see that people did not come there. But going by the evidence of PWs 1 to 3, nobody other than the accused persons was in the scene of occurrence or in the vicinity till completion of the attack on the victim. It was also the evidence of PWs 1 to 3 that the accused persons dispersed and ran away seeing the people coming to the scene of occurrence. Therefore the evidence of PW2 that accused 5 to 11 were on a watch or vigil cannot be accepted. The depositions of PWs 1 to 3 are quite insufficient to attribute any role to accused 5 to 11 in the crime. The prosecution is without an iota of evidence against accused 5 to 11 to bring home their guilt. The acquittal of accused 5 to 7 and 9 to 11 is only to be confirmed. We confirm their acquittal.

11. Ext P1 is the FI statement. Ext P1(a) is the FIR. The FI statement was given by PW1. He in the FI statement mentioned the names of accused 1 to 3 and 5 to 11. The names of those accused are shown in the FIR. The name of the 4th accused is not mentioned in the FI statement and therefore not shown in the FIR. He was brought to the array of the accused later. PW9 who commenced the investigation reported 10 Crl A(V) 229/2013 & Crl M.C 3834/2012 to the magistrate as per Ext P7 that the present 4 th accused was made an accused in the case. Going by the FI statement, one of the persons who inflicted cuts on the victim with a billhook was one Ramachandran. Therefore the said Ramachandran was shown in the FIR as an accused. He was shown therein as the 4th accused. He was examined on the side of the defence as DW1. Admittedly his house was searched by the police on the next day of the incident. According to the defence side, DW1 was not retained in the array of the accused realising that he was undergoing treatment on the date of incident in a hospital at Gudalur near Ootty. The defence contended further that the investigating officer who was in search of a BJP/RSS man indicted the 4 th accused in place of DW1. According to the prosecution, the name of DW1 mentioned in the FI statement by PW1 was a mistake for the 4th accused by name Pradeepan. It was also contended by the prosecution that the mistake was realised by PW1 on the date of incident itself and that he corrected the name while giving statement under Sec.161 of Cr.P.C in the evening of the date of incident. The defence disputed any such correction by PW1 on the date of incident. We shall consider the rival contentions.

12. PW1 stated that he happened to mention the name 11 Crl A(V) 229/2013 & Crl M.C 3834/2012 of Ramachandran(DW1) in the FI statement, but whom he intended was Pradeepan(4th accused). PW1 added that he told so to the circle inspector of police on the date of incident itself. PW9 who initially investigated the case spoke that he submitted Ext P7 report to report that the name of Ramachandran(DW1) was shown in the FIR by mistake and that the person who should come in the position of the 4 th accused was Pradeepan. PW9 stated that he submitted the said report as he was told about the mistake by PW1. PW9 deposed in cross-examination that he interrogated PW1 on the date of incident itself.

13. We shall first consider whether the mentioning of the name of DW1 by PW1 in Ext P1 was an inadvertent mistake and whether the person whom PW1 really intended was the 4 th accused. What PW1 stated in the FI statement was not just the name of DW1. What was stated in the FI statement was that one of the assailants was Korantevida Ramachandran who was residing near the house of Advocate Sathyan. The 4 th accused is Nellachery Pradeepan. Not only the names, but also the house names of DW1 and the 4 th accused are different. Neither the prosecution has a case nor had PW1 a version that the 4 th accused was residing near the house of Advocate Sathyan. DW1 has given evidence that he is Korantevida Ramachandran. 12 Crl A(V) 229/2013 & Crl M.C 3834/2012 His such evidence was not disputed in cross-examination. DW1 deposed that he was residing near the house of Advocate Sathyan. DW1 has stated in cross-examination that the distance between his house and the house of Advocate Sathyan is one-fourth of a kilometre whereas the distance between the house of the 4th accused and the house of Advocate Sathyan is three-fourth of a kilometre. When PW1 stated in the FI statement that one of the assailants was Korantevida Ramachandran residing near the house of Advocate Sathyan, whom PW1 intended was DW1 and not any other person, much less the 4th accused. It is more so in view of the evidence of PW1 in cross-examination that he does not know where precisely the 4th accused resides. PW1 stated that he knew Korantevide Ramachandran and was aware that the said person was residing near the house of Advocate Sathyan. PW1 conceded that he did not know the details of the 4 th accused including the place of residence of the said accused. PW1's evidence suggests that all that he knows about the 4 th accused is the name of that accused and that PW1 had no acquaintance with the 4th accused except seeing him(4th accused) walking on the road. It is impossible to accept the evidence of PW1 that whom he intended was the 4 th accused when he stated in the FI statement the name and other details 13 Crl A(V) 229/2013 & Crl M.C 3834/2012 of DW1. No mistake had crept in the FI statement inasmuch as whom PW1 intended was DW1 and not the 4th accused.

14. When DW1 was in the witness box, the defence counsel requested the trial court to compare DW1 with the 4 th accused. The trial judge asked the 4th accused to stand near DW1. The learned judge recorded in the deposition of DW1 that DW1 and the 4th accused were almost similar in size by height and weight, but they were different in complexion and appearance. The learned judge wrote that the 4 th accused was dark in complexion and that DW1 had a fair complexion. Even PW1 deposed in cross-examination that DW1 was a person of fair complexion and that the 4 th accused was not so. In view of what we have stated above, PW1 cannot be heard to say that he mistook DW1 for the 4th accused.

15. PW1 asserted that he corrected the mistake while giving statement on the date of incident itself. But PW9 who recorded the statement of PW1 did not assert so. PW9, no doubt, spoke that he interrogated PW1 on the date of incident itself. But the former did not state anywhere in his deposition that the latter pointed out or corrected the mistake when interrogated on the date of incident. The assertion of PW1 is without support from PW9.

16. The statements of witnesses recorded under 14 Crl A(V) 229/2013 & Crl M.C 3834/2012 Sec.161 of Cr.P.C were produced in court along with the charge- sheet. PW9 spoke that he put the dates of examination of CWs 8 to 11 beneath their statements. But, as conceded by PW9, he did not mention the dates of examination of CWs 1, 2 and 6 in their statements. CW1 is PW1 and his statement under Sec.161 of Cr.P.C does not bear the date of him giving the statement. Had the date of examination of CW1(PW1) been shown in his statement as shown in the case of CWs 8 to 11, it would have been possible to know whether PW1 gave his first statement under Sec.161 of Cr.P.C on the date of incident itself. PW9 offered no explanation why he failed to put the date beneath the statement of PW1 when he was cautious to put the dates in the statements of CWs 8 to 11. The defence version that PW9 purposefully omitted to put the date at the bottom of the statement of PW1 cannot be brushed aside.

17. PW9 reported to the magistrate as per Ext P7 the substitution of the 4th accused in place of DW1. Ext P7 also bears no date. It reached the magistrate on 9.9.1999 as seen from the dated seal of the court affixed in the document. PW9 spoke that he was aware that he was duty bound to report to the magistrate the addition of a new accused forthwith. He did not state that there was any delay in reporting the addition of the 4th accused to the magistrate. PW9 was asked questions in 15 Crl A(V) 229/2013 & Crl M.C 3834/2012 cross-examination with respect to Ext P7 report. He conceded that the date of preparation of Ext P7 was not shown in it. He conceded further that Ext P7 reached the magistrate only on 9.9.1999. PW9 did not volunteer to give any explanation for any delay. Nor was any explanation elicited from him in his re- examination. We are convinced that there was no delay in submitting Ext P7 report before the learned magistrate. We find that Ext P7 was prepared on or about 9.9.1999 on which day it reached the court. The preparation of Ext P9 on or about 9.9.1999 belies the evidence of PW1 that he corrected the alleged mistake on the date of incident itself. If he had given a statement on 28.8.1999(date of incident) correcting the alleged mistake, Ext P7 would have been prepared and the same would have been produced in court at least within a couple of days after the incident. We reject the version of the prosecution and the evidence of PW1 that he gave a statement on 28.8.1999 to correct any mistake.

18. A search was conducted in the house of DW1. Ext P8 is the memorandum of search prepared by PW8 who conducted the search. PW8 did not speak to the said search, but PW9 spoke. PW9 stated that he instructed PW8 to conduct the search. Ext P8 is dated 29.8.1999. It recites that a search was intended to be conducted on that day. PW9 confirmed that 16 Crl A(V) 229/2013 & Crl M.C 3834/2012 the house of DW1 was searched on 29.8.1999. Ext P8 recites why a search was necessitated. It is stated therein that a reliable information was received that DW1 hid himself in his house. That means the search was conducted to arrest DW1. If PW1 had corrected the alleged mistake on the date of incident (28.8.1999) itself, the house of DW1 would not have been searched on the next day(29.8.1999) to arrest him. The prosecution offered no explanation why the house of DW1 was searched on 29.8.1999 to arrest him if his innocence was revealed on 28.8.1999 as per the alleged correction referred to by PW1. For reasons stated in this paragraph and in paragraph nos 15 to 17 of this judgment, we hold that PW1 did not give any statement on the date of incident correcting the alleged mistake.

19. Whom PW1 intended while giving the FI statement was DW1 and not the 4th accused. There was no reason whatsoever for PW1 to misidentify the 4th accused as DW1 or vice versa. There was no correction of any mistake by the statement of PW1 recorded on the date of incident. DW1 was dropped and the 4th accused was indicted only on or about 9.9.1999 on which day Ext P7 was filed in the court of the magistrate. We have stated the reasons for reaching our aforementioned conclusions. We should next consider why the 17 Crl A(V) 229/2013 & Crl M.C 3834/2012 4th accused came in the place of DW1 as an accused.

20. DW1 stated that he left for Ootty on 25.8.1999 with his wife and children to visit his brother who was working and residing there. DW1 spoke that he had fever and therefore he was admitted in a clinic at Gudalur on 26.8.1999. He spoke that he was an inpatient in the said hospital on 28.8.1999(date of incident). His hospitalisation was challenged in cross- examination by asking about the medical documents. He spoke that he was not in possession of any such document. But his evidence that he left for Ootty on 25.8.1999 and his evidence suggesting that he was not in his native place on 28.8.1999 were not subjected to cross-examination. We are convinced from his evidence that he was out of station on the date of incident. He belonged to the BJP as he said. It was elicited in cross-examination that he and the 4th accused belonged to the BJP. DW1's evidence that he was made an accused initially only because he was a follower of the BJP was not touched in cross- examination. We are satisfied that the only reason for his inclusion as an accused initially was his attachment to the BJP. We are also satisfied that he was dropped from the array of the accused only because he was out of station. It is clear that the investigating officer wanted someone in the place of DW1 as the 4th accused. Circumstances persuade us to accept the 18 Crl A(V) 229/2013 & Crl M.C 3834/2012 defence version that the 4th accused was indicted only because he happened to be a BJP/RSS worker. We do not see any other reason for the inclusion of the 4th accused as an accused on or about 9.9.1999. We are convinced that the investigation was unfair, biased and tainted at least as against the 4 th accused.

21. PW3 whose presence was noted at the time of the inquest did not give any statement against the 4 th accused or any other accused immediately after the incident or even shortly thereafter. PW3 was questioned and his statement was recorded only seven months after the incident. He was questioned and his statement was recorded only after the investigation agency shaped its case. PW2 spoke that he gave statement to the police only once and that it was given at the time of the inquest. The prosecution contended that PW2 referred to the role of the 4th accused while being questioned at the time of inquest. The learned trial judge detected a manipulation in the inquest report. The inquest report was marked as Ext P2. It consists of seven sheets of papers. The facing sheet and its backside are printed materials. The remaining six sheets are written with pen on both sides. The learned trial judge found that sheet no.5 containing the statement of PW2 was a subsequent insertion. We are in complete agreement with the learned trial judge. The seal of 19 Crl A(V) 229/2013 & Crl M.C 3834/2012 the court and the dated initials of the learned magistrate are present in all the sheets except the 5th sheet. We are convinced that sheet no.5 was substituted for the original sheet no.5. We are also convinced that the substitution had taken place after the production of Ext P2 before the court. That not, the court seal and the dated initials of the magistrate would not have been missed in the 5th sheet now available in Ext P2. Had PW2 stated the name of Pradeepan(4th accused) as a culprit, the name of the said accused would have been stated as the answer to question no.12(a) of Ext P2 as a suspect. But his name is conspicuously absent in Ext P2. The name shown therein is that of DW1. That should mean that PW2 did not give any statement at the time of the inquest accusing the 4 th accused. The learned counsel for the appellant submitted that the accused did not have a case that the 5 th sheet was inserted in Ext P2 subsequently. It was also submitted that no question was put in cross-examination to any witness including PW9 touching any manipulation in Ext P2. The manipulation was detected by the learned trial judge while preparing his judgment. The learned judge stated in the judgment that the manipulation did not come to the notice of any of the defence counsel. The manipulation detected by the learned trial judge and confirmed by us is one patent and visible to the eyes. We 20 Crl A(V) 229/2013 & Crl M.C 3834/2012 cannot shut our eyes to it. We hold that sheet no.5 of Ext P2 was a substitution of the original sheet and that PW2 did not mention the name of the 4 th accused in his statement given at the time of the inquest.

22. We are convinced that the 4th accused was a substituted accused. He was substituted in place of DW1 only because the latter was away at Ootty or Gudalur on the date of incident. The defence version that the substitution was the result of the search of an RSS/BJP worker cannot be brushed aside. The acquittal of the 4 th accused deserves confirmation. We do so.

23. Political rivalry and clashes between the followers of the CPI(M) and the BJP/RSS are facts admitted and proved in the case at hand. All the accused were persons belonging to the BJP/RSS. The victim and PWs 1 to 3 were the members or followers of the CPI(M). The trial court rejected the evidence of PWs 1 to 3 as biased and unreliable. The learned counsel for the appellant challenged the said conclusion of the trial court. We shall consider the evidence of PWs 1 to 3.

24. The following facts have been brought out from PW1 in cross-examination. He was a member of the CPI(M). He as a CPI(M) candidate became a member of the panchayat. His son too was an active member of the same political party. The said 21 Crl A(V) 229/2013 & Crl M.C 3834/2012 son was made an accused in a criminal case in which the charge was commission of murder of an RSS worker by name K.V.Surendran. The son of PW1 was convicted for having chopped and severed the leg of one Sasi who was a member of the RSS. PW1 was cited as an eyewitness in a case in which the accusation was that the accused therein caused hurt to the local branch secretary of the CPI(M). The wife of PW2 was elected as a panchayat member as a CPI(M) candidate. The son of PW3 contested the municipal election as a CPI(M) candidate and won the election. The family members of PW3 are followers of the CPI(M).

25. PW3 has stated as follows in cross-examination: He lodged a complaint with the police alleging that he was attacked by the members of RSS. PW3 had given evidence against RSS men in a case wherein accused 5 and 11 herein were also charged. There was a criminal case against PW3 in 1990. The accusation therein was that he attacked and caused injuries to the 5th accused herein. The son of PW3 contested the municipal election in CPI(M) ticket.

26. PW2 stated that his wife was a panchayat member representing the CPI(M). PW9, the investigating officer, spoke that CWs 1 to 5 (who include PWs 1 to 3) were followers of the CPI(M).

Crl A(V) 229/2013 & Crl M.C 3834/2012

27. What we have stated in three paragraphs above would prove that PWs 1 to 3 were zealous members, supporters or followers of the CPI(M). The prosecution chose to cite and examine only such persons as eyewitnesses. Even their evidence was that the accused persons dispersed seeing the people approaching the scene of occurrence. None of those persons was questioned by PWs 9, 10 and 11 who investigated the case at different stages. Selecting only ardent followers of the CPI(M) as witnesses without even questioning any of the persons who came to the scene of occurrence does cast a serious doubt about the genuineness of the investigation. In such circumstances, we should consider the ocular proof attempted by the prosecution with great caution. We in this connection place reliance on the decision of the Supreme Court in State of Punjab vs Harbans Singh (AIR 2003 SC 2268).

28. We feel it appropriate to restate a few facts and some of our earlier observations and findings. PW1 gave FI statement as if DW1 attacked Dasan with a billhook. DW1 was shown as an accused in the FIR and the inquest report. His faith to the BJP/RSS was the sole reason why he was implicated as an accused. He had to be dropped from the array of the accused as he was away at Gudalur or Ootty on the date of 23 Crl A(V) 229/2013 & Crl M.C 3834/2012 incident. The 4th accused was indicted since he happened to be a worker or follower of the BJP/RSS. The inquest report was manipulated subsequent to its production in court to justify the inclusion of the 4th accused as an accused. It seems that such a manipulation was done since PW2 was never questioned by the investigating officers after the inquest. The investigation has been unfair, biased and tainted. In the backdrop of what we have stated above, the evidence of PWs 1 to 3 needs scrutiny with utmost caution. Their evidence will have to be rejected unless it is of a sterling quality. We also remind ourselves that we are called upon to consider the ocular evidence in an appeal preferred against acquittal.

29. PW2 deposed that he heard the sound of a cracker burst while proceeding from Achukulangara to the house of his uncle at Paral. PW2 clarified in cross-examination that he could see the incident as he was going to his uncle's house. That means, that not, it would not have been possible for him to see the incident. Therefore his going to his uncle's house is a material aspect in order to account for his presence at the place of occurrence to witness the incident. PW2 was asked whether he stated to the police that he was going to his uncle's house. His first response was that he did not state to the police that he was proceeding to his uncle's house. He corrected it 24 Crl A(V) 229/2013 & Crl M.C 3834/2012 and deposed that he did state so to the police. But he did not state so. PW9 spoke that he was not told so by PW2. The reason stated by PW2 for his presence at or near the place of occurrence has been proved to be an omission amounting to contradiction within the meaning of the explanation to Sec.162 of Cr.P.C. His very presence at or near the place of occurrence to witness the incident is therefore doubtful.

30. The house of PW3 is 1 ½ Kms away from the place of occurrence. He and PW1 stated so. PW3 stated that he at the relevant time was on his way to his friend Achuthan's house. PW3 who read his statement before coming to the court to give evidence conceded that such a version of his was absent in his statement when he read it. The presence of PW3 to witness the incident is also doubtful.

31. There has been inordinate delay in recording the statement of PW3. He was present at the time of inquest. His presence at that time was spoken to by him as well as PW2. PW3 signed Ext P2 inquest report as a witness. PW9 who investigated the case from the date of incident to 1.10.1999 did not question PW3 and did not record his statement under Sec.161 of Cr.P.C. PW10 who took over the investigation from PW9 investigated the case till 15.4.2000. PW10 said that he questioned PW3 only on the last day of his investigation. There 25 Crl A(V) 229/2013 & Crl M.C 3834/2012 occurred a long delay of over seven months in questioning and recording the statement of PW3. By that time the investigating agency had shaped the case as we have already stated. We may refer to the decision of the Supreme Court in Balakrushna Swain vs State of Orissa (AIR 1971 SC 804). The Supreme Court holds that unjustified and unexplained long delay on the part of the investigating officer in recording the statement of material eyewitness during investigation of a murder case will render the evidence of such a witness unreliable. The learned counsel for the appellant submitted that no question was put to PW3 in cross-examination touching the delay. But it was the duty of the public prosecutor to elicit an explanation from PW3 regarding the delay. That was not done by the public prosecutor who conducted the case. We are unable to understand why should an explanation be elicited from PW3 in cross-examination. That apart, PW3 was a person who wrongly or falsely maintained that he gave a statement to the police at the time of inquest. According to the learned counsel for the appellant, PW10 explained the delay. What PW10 stated was that he tried to question PW3, but PW3 had gone somewhere in connection with his job. PW3 did not depose that he was not available in his place of residence, much less for more than seven months at a stretch after the 26 Crl A(V) 229/2013 & Crl M.C 3834/2012 incident. The evidence of PW10 suggests that he did not even give notice to PW3 or publish the notice at the house of PW3. The so-called explanation of PW10 is not acceptable to us. We reject the explanation. The unjustifiable and unexplained inordinate delay in questioning PW3 renders his evidence unreliable.

32. PW3 has gone to the trial court to give evidence just like a school boy goes to the school to appear for his academic examination. The evidence of PW3 suggests that on receipt of summons he went to the office of the public prosecutor and studied his statement given to the police for the purpose of giving evidence in court. In his re-examination he stated that a policeman read over his statement to him. Going to the public prosecutor's office to study one's own statement shows the overenthusiasm PW3 had. His evidence in court therefore cannot be relied on.

33. The learned counsel for the appellant submitted that PWs 1 to 3 had a uniform version of the incident. The uniform version was that they saw the first accused with a hatchet and accused 2 to 4 with billhooks cut the victim repeatedly. The uniform version of the incident spoken to by PWs 1 to 3 takes in their version that when Dasan fell on the ground, accused 1 to 4 with weapons in their hands continued to cut the victim till 27 Crl A(V) 229/2013 & Crl M.C 3834/2012 the accused persons dispersed seeing the people approaching the scene of occurrence. But the witnesses stated so only when they were examined in court. They did not have such a version when questioned by the respective investigating officers. Ext D1 is a vital contradiction in the previous statement of PW1 given to PW9. Ext D1 was put to PW1 and he denied it. PW9 who recorded the statement of PW1 under Sec.161 of Cr.P.C proved Ext D1. As per Ext D1, after the fall of Dasan on the ground, the only person who attacked him was the second accused. Ext D1 contradiction is on a material point, namely, the overt acts. The evidence of PWs 1 to 3 that accused 1,3 and 4 also attacked Dasan after he fell down had been proved to be omissions amounting to material contradictions. PWs1 to 3 did not state in their respective statements under Sec.161 of Cr.P.C the uniform version given in court that accused 1 to 4 together attacked Dasan with weapons after Dasan had a fall on the ground. In view of Ext D1 and the material omissions referred to by us, we find the evidence of PWs 1 to 3 unreliable.

34. PWs 1 to 3 stated that they and two others took Dasan to the hospital. Their such evidence was disputed by the defence. The witnesses spoke that their cloths were bloodstained while they took the victim to hospital. According 28 Crl A(V) 229/2013 & Crl M.C 3834/2012 to PW1, he went to the police station wearing the bloodstained cloths and gave the FI statement. According to PWs 2 and 3, they showed their bloodstained cloths to the police. The bloodstained cloths of PWs 1 to 3 were not seized by the police. Some credence could have been given to the evidence of PWs 1 to 3 that they saw the incident and carried the victim to the hospital if their cloths were bloodstained. PW8 who recorded the FI statement spoke more than once that he did not notice whether PW1 wore bloodstained cloths while giving the FI statement. PW9 also did not notice whether PWs 2 and 3 wore bloodstained cloths at the time of the inquest. PWs 8 and 9 being police officers should have noticed the bloodstained cloths if they had two eyes and the cloths were really bloodstained. The non-seizure of the cloths of PWs 1 to 3 goes to one or the other of the following two unfavourable conclusions against the prosecution, namely, (i) the police officers missed the true spirit of investigation in a grave crime or (ii) the cloths of PWs 1 to 3 were not bloodstained. We conclude on this point referring to the decision of the Supreme Court in Harbans Singh's case (supra). The Supreme Court holds that the failure to seize the bloodstained cloths of the witnesses examined as eyewitnesses who allegedly carried the victim to the hospital throws considerable doubt about the 29 Crl A(V) 229/2013 & Crl M.C 3834/2012 presence of such witnesses at the time of the incident.

35. PW1 stays 2 kms away from the place of occurrence. He said he heard the bursting sound of the cracker on his way to the Kodiyeri panchayat office. We do not see any good material in the evidence to justify the conclusion of the learned trial judge that PW1 had a shorter route to the panchayat office from his house. We accept the argument of the learned counsel for the appellant that the trial court had no material to hold that PW1 had a shortcut to the panchayat office. In fact PW1 denied the existence of any such route. But he is a person who did what he could do to trap and falsely implicate an innocent person. DW1 had his escape only because he was away from his abode on the date of incident. No credence can be given to such a witness for the reason above stated and for other reasons already stated.

36. The evidence of PWs 1 to 3 is worth little. What remain are two sets of recoveries of weapons. MO1 hatchet is stated to be recovered at the instance of the first accused and as per his disclosure statement. Such recovery cannot bind any person other than the first accused. He died. The other accused are not bound by the said recovery. The recovery of MO2(a) billhook is alleged to have been effected at the instance of the 4th accused and on the basis of his confessional 30 Crl A(V) 229/2013 & Crl M.C 3834/2012 statement given to PW9. But the said recovery is also not useful to the prosecution inasmuch as the 4 th accused was a substituted accused without any basis. The appeal deserves only a dismissal.

37. We move on to the Crl M.C. The manipulation detected by the trial court was patent and visible to eyes. But the trial court jumped into a conclusion that PW9 could be the manipulator. The substitution of sheet no.5 in Ext P2 inquest report did happen only after its production in the court of the magistrate. It could have had happened while the document was in the custody of the magistrate's court or even the sessions court. We state so since there is no material to find as to at what point of time the manipulation materialised. The initial in the substituted sheet is not exactly similar to the initials of PW9 available in the other sheets of Ext P2. The initial on the substituted sheet may be put by PW9 himself or by any other person. The trial judge should have exercised his jurisdiction under Sec.311 of Cr.P.C and Sec.165 of the Indian Evidence Act if he suspected the foul play at the hands of PW9. The trial judge did not do that. He did not recall PW9 under Sec.311 of Cr.P.C to put questions as permitted under Sec.165 of the Indian Evidence Act. Notice was not given to PW9 nor was he heard by the trial court before passing the adverse 31 Crl A(V) 229/2013 & Crl M.C 3834/2012 remarks against him. In this connection we refer to the decision placed before us by the learned senior counsel appearing for PW9 who is the petitioner in the Crl M.C. The decision is S.K.Viswambaran vs F.Koyakunju (AIR 1987 SC 1436) . We expunge the adverse remarks against PW9 and set aside the consequent direction to hold an inquiry against him.

38. The appeal is dismissed. The Crl M.C is allowed. The strictures written in the impugned judgment against PW9 are expunged. The direction given to the police department by the trial court to take action against PW9 on the basis of the adverse remarks passed against him is set aside. We make it clear that our decision in the Crl M.C will not stand in the way of holding of any inquiry by the learned magistrate or, as the case may be, the learned sessions judge against the guilty staff. It is also made clear that the police department is free to hold any inquiry to find out the guilty police officer and the department is free to proceed against such police officer, whoever he be including PW9.

sd/-

A.M.Shaffique Judge sd/-


                                                           A.M.Babu
      SKS/2.5.2019                                          Judge
                                             32
Crl A(V) 229/2013 & Crl M.C 3834/2012




      APPENDIX


      ANNEXURES OF PETITIONER IN CRL.M. C

A-TRUE COPY OF JUDGMENT DATED 17.9.2012 IN SESSIONS CASE NO.386/2002 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-II), THALASSERY. ANNEXURES OF RESPONDENT NIL 33 Crl A(V) 229/2013 & Crl M.C 3834/2012

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