Sajeev @ Kochu Sajeev vs State Of Kerala on 24 November, 2016

[Cites 17, Cited by 0]

Kerala High Court

Sajeev @ Kochu Sajeev vs State Of Kerala on 24 November, 2016

This appeal is preferred against the judgment of conviction and sentence passed by the Additional Sessions Court, Kollam in S.C.No.770/2012. The appellants are accused Nos.1, 3, 5 and 6. The charge sheet was filed by the CI of Police, Kollam in Crime No.1094/2002 of Kollam East Police Station. Originally, there were seven accused in the crime. As per the Police charge, accused were :

Sajeev @ Kochu Sajeev , S/o Bhadran Sajeev @ Kali Sajeev, S/o Bhaskaran AnilKumar @ Anthakkannan, S/o Abdulsalam Santhosh @ Kadachin, S/o Francis Gopi @ Kuttichira Gopi, S/o Sekharan Pramod, S/o Gopinadhan Crl.Appeal No.1094/2010 2 Jayaprakash @ Podimon, S/o Gopalakrishna Pillai

2. They are charge sheeted for offence under Section 143, 147, 148, 324, 302 read with Section 149 of IPC. The allegation against the accused in the police charge was that on on 24.11.1997 at about 8.45 p.m., while CW1 was riding a bicycle along with deceased Santhosh on pillion, the accused came in a car and hit against the cycle and they fell down. The accused who were equipped with deadly weapon like swords and iron rods inflicted fatal injuries on the body of Santhosh and murdered him.

3. In the incident, CW1 was also sustained injuries. He informed the Police on the same night at 9.30 p.m. and thereafter he was hospitalized. The above Santhosh died on the spot itself. In the F.I. Statement mentioned above, six persons were named. Thereafter, during investigation, the investigating officer reported that among the six named persons, two persons were not involved in the crime and requested to be deleted. Final report was filed against 7 persons. The final report was taken on file as C.P.No.294/2000. The case was committed to the Court of Sessions, Kollam. Only six accused were Crl.Appeal No.1094/2010 3 committed as per order dated 28.5.2001 in C.P.No.294/2000 on the file of Judicial First Class Magistrate Court II, Kollam. The Court of Sessions took cognizance of the case and numbered the case as S.C.No.770/2002 and made over the case to Second Additional Sessions Court, Kollam. As already stated, since Accused No.2 was absconding, the case against Accused No.2 in the crime was not committed. Accused No.7 in the crime absconded after committal. Accused No.4 died during the pendency of the case before the Sessions Court. It can be further seen that he died before framing charge. Thus, it can be seen that the charge was framed against five persons namely, Sajeev @ Kochu Sajeev , S/o Bhadran, who was ranked as accused No.1, AnilKumar @ Anthakkannan, S/o Abdulsalam, who was shown as accused No.3, Gopi @ Kuttichira Gopi, S/o Sekharan, who was shown as accused No.5, Pramod, S/o Gopinadhan, who was shown as accused No.6 and Jayaprakash @ Podimon, S/o Gopalakrishna Pillai, who was shown as accused No.7 in the judgment.

4. As already stated above, the said Jayaprakash @ Podimon absconded after framing of the charge. Thus, altogether actually five Crl.Appeal No.1094/2010 4 accused faced trial. Jayaprakash @ Podimon absconded. Thus, it can be seen that actually four persons were only before the court at the time of pronouncing judgment. All the above said four accused were convicted by the court below by its judgment dated 24.3.2010 for the offences as referred above and for which charge was framed. All the above said four accused are the appellants herein. Prosecution altogether examined 22 witnesses and Ext.P1 to P21 were marked. Prosecution also marked material objects as MO 1 to MO 10. On the side of the defence, DW1 was examined and Exts.D1 to D14 were marked. After appreciating the evidence, the court below convicted the accused and sentenced as stated above.

5. When the appeal came up for hearing, the learned Senior Counsel, Sri.M.K.Damodaran, appearing for the appellants argued before us that the prosecution case depends upon the solitary evidence of PW1. It is the submission that the evidence of PW1 is inconsistent with the original prosecution case as well as contradictory to the evidence of other witness. It is brought to our notice that the F.I. statement was given by this witness. It is the submission that it is an Crl.Appeal No.1094/2010 5 anti-timed one. It is the further submission that even in that F.I. Statement, two persons are shown as accused Nos.5 and 6.. They are "member Noushad" and "member Anilkumar". The investigating officer found that the said persons were not involved in the incident. As such, a report was filed before the court which was marked as Ext.19. It is also submitted before us that two other different persons are thereafter introduced as Accused Nos.5 and 6 in the accused array. Now, as accused Nos. 5 and 6, in the final charge are one Gopi and one Pramod. The names of these persons Gopi and Pramod are not in the FIR. Thus, what comes out is that PW1's evidence now before the court attributing or claiming that these persons were also present in the group of assailants was not the original case when FI statement was given. Thus, the submission made before us is that when PW1 admittedly belongs to a political party and further when the motive alleged is that of political animosity, it can be only termed that PW1 is a partisan witness. When PW1 can be considered only as a partisan witness and when, as per the prosecution case, at the earliest point of time itself he has not hesitated to implicate political rivals, it will be Crl.Appeal No.1094/2010 6 highly unsafe to rely upon the evidence of such a witness. No overt act was attributed against the persons now shown as Accused Nos. 5 and 6. PW1 simply deposed that Accused Nos.5 and 6 were also present. An analysis of the evidence of PW1 will show that his evidence is not at all reliable. He claims that he is also an injured witness and he was admitted in the hospital at 1o' clock on the very same day. But even though the Doctor, who was examined as PW15, deposed that he treated PW1 and marked the wound certificate as Ext.P9, it can be seen that the said wound certificate does not contain either the inpatient number nor the outpatient number. It is only an afterward creation to show that the witness is also an injured witness. Now, as per Ext.P9, the allegation is that " hXA_{_W XFx_AagO^Z 7_8 gIV 5^y_W UKm 5O_f5^Ia %?_:nD_W fU:nm " But even though his allegation was that he was beat with an iron rod, the injuries were very minor ones. It can be further seen that the deceased Santhosh was not attacked with any iron rod, but with some sharp weapon which can cause some incised wound and incised wounds were the cause of his death. Thus, Crl.Appeal No.1094/2010 7 actually if the witness was present therein, he would have stated the weapon as sword and if such an assembly attacked him with an iron rod, the injuries sustained by him would not have been such minor injuries.

6. It is the submission of the learned Senior counsel appearing for the accused that the FIR, which was allegedly registered at 9.30 p.m. on the very same day of the incident reached in the court only on the next day, that also after 3 p.m. It is the submission that there is evidence before the court that the said court is only about 2 km. away from the police station and daily, a Police Constable is going to the court from the police station and through him the the post articles are delivered. It is a clear indication that the FIS and the FIR are anti- timed documents. It is also the submission before us that Exts.D9 to D14 will show that PW1 got criminal antecedents and it is a clear indication that what he now deposed before the court is not reliable or truthful evidence and acting upon such a deposition will be highly dangerous. It is also the submission made before us that, in this case, apart from the oral testimony of PW1, there is nothing to corroborate Crl.Appeal No.1094/2010 8 his evidence. There is no recovery also. While he claims that accused came in a white car, the evidence of the police officers will show that seized car is a gray car and not a white car as deposed to by PW1. Thus what comes out is that there is no corroboration, but there is contradiction on the materials produced by the prosecution itself. When the evidence of PW1 is eschewed, nothing is left behind against the appellants herein ie. the whole prosecution case is revolving around the unbelievable evidence of PW1. Appellants are entitled for an acquittal. In support of the said proposition, the learned Senior Counsel highlighted the decision in Lallu Manjhi and another v. State of Jharkhand [(2003) 2 SCC 401] and submitted before us that the Supreme Court classified the oral testimony of a witness into three categories i.e. 1) wholly reliable 2) wholly unreliable and 3) neither wholly reliable nor wholly unreliable. It is the submission made before us that here is a case where the evidence of PW1 is wholly unreliable. Even if this court considers it as neither wholly reliable nor wholly unreliable, it is the settled preposition of law that the Court has to be circumspect and has to look for corroboration in material particulars by Crl.Appeal No.1094/2010 9 reliable testimony, direct or circumstantial, before acting upon the testimony of such witness. It is the submission that the same principle is followed by the Apex court in Govindaraju alias Govinda v. State by Sriramapuram P.S. ( AIR 2012 SC 1292). It is the submission made before us that it is not a new proposition, but as back as in a case reported in AIR 1957 SC 614 ( Vadivelu Thevar v. State of Madras) Apex Court held so. The learned Senior Counsel also brought to our notice the decisions in Harchand Singh and another v. State of Haryana [(1974) 3 SCC 397] and Jagdish Prasad and others v. State of M.P. ( AIR 1994 SC 1251). It is also brought to our notice that said principle enumerated in the decision reported in AIR 1957 SC 614 ( Vadivelu Thevar v. State of Madras), was followed in the later cases.

7. It is also the submission before us that apart from the circumstances already highlighted, it can be seen that PW1 got a case that immediately after the incident, he went to the house of PW2 and told him regarding the incident and further took PW2 along with him Crl.Appeal No.1094/2010 10 and went to the house of PW6, who is none other than the District President of BJP. It is the further evidence of PW1 that, PW1, PW2 and PW6 went to the place of incident at about 9 p.m. and saw Santhosh lying dead. He was categoric that Santhosh and himself were attacked at about 8.45 p.m. When PW6 was examined before the court, his categoric evidence was that PW1 came to his house and told him about the incident and he along with PW1 went to the place of incident. During cross examination, he admitted that he was the then District President of BJP and further he admitted that " PW2 <OX .fa 5bf?O_\o^O_xaKa. PW1, PW2Ua" >^Ha" 2K_:nm X"

MUF_UXgN^ I_gxgK^ X"MUXmE\Jm gI^O_G_\o." At the very same time, when PW2 was examined before the court, his case was that PW1 came to his house and told him about the incident. His further evidence was that he along with PW1 went to the house of PW6 and all of them went to the place of incident and found Santhosh lying dead. The evidence of PW2 was that "PW1 3?_ .fa U`G_W UKa.eNC_:n_gJ^G_W U:nm 5^y_?_:n_Gm &fx^fAgO^ g:VKm Crl.Appeal No.1094/2010 11 XgL^W_fH fUG_. .fK %?_:nm 3?_:na. %UV DYFI A^x^Cm " It is brought as an omission and further it was also brought out that ">^Ha" CW7, PW1ee5b?_gI^O_ XgL^Wm Nx_:nD^O_ gL^GcfMGa. 5]aJ_\a" Vx`xJ_fa I\ M^7Ja" fUgGxD^O_ 5Ia" and that was also brought as an omission and further it was brought out that " CW7fa U`G_W >^Ha" PW1 )" gI^O_" is also an omission. CW7 is examined before court as PW6. As per the evidence of PW1 and PW2, they together went to the house of PW6. But PW6 got no case that both of them came to his house. It is also pertinent to note that the case that both of them went to the house of PW6 is an omission. Thus, the submission before us is that the evidence of PW1 is not a reliable one. As such, on following the dictum laid down by the supreme court, it is submitted that the evidence of PW1 is not a reliable one. As such, the prosecution failed to prove the case beyond reasonable doubt and the appellants are entitled for acquittal.

8. The learned Public Prosecutor appearing for the prosecution submitted before us that it is true that in this case there is Crl.Appeal No.1094/2010 12 only one eye witness, but it can be seen that his evidence is explicitly reliable. It is the submission that PW1 is an injured witness. There is also a prompt FIR, which will give assurance to the version given by the PW1 before the police. It is the submission that the incident occurred at about 8. 45 hours in the night and the F.I Statement was given by 9.30 p.m. on the very same day. It is also the submission that the injured witness, thereafter went to the hospital and got treated and the Doctor noted the injures on him. The said wound certificate was marked as Ext. P9. The Doctor who treated PW1 was examined as PW 15. PW15 is a respectable impartial witness and there is no reason to depose falsely before the court. If his evidence is reliable, it is an indication that PW1 was treated by him and it will also give assurance to the version deposed to by PW1 before the court. The argument advanced by the defence counsel in respect of this witness is that in Ext.P9, the version given by the injured is " hXA_{_W XFx_AagO^Z 7_8 gIV 5^y_W UKm 5O_f5^Ia %?_:nD_W fU:nm ". The learned Public Prosecutor submitted that when a Doctor Crl.Appeal No.1094/2010 13 enquires regarding the history and how the person concerned sustained the injury, then he will be giving a gist or in the shortest form the history and when details are not given to the Doctor or the details are not recorded by the Doctor, it cannot be a ground to disbelieve PW1. Another aspect highlighted by the prosecution is that the FIR reached at the court allegedly on 25.11.97 and the time is 3.45 p.m. But no reliance can be made upon the evidence of the police constable who thought that the FIR reached only at 3.45 p.m. In a corner of the FIR, time is noted as 3.45 p.m. There is nothing to show that the said noting is by the Magistrate. The ink and writings are different from the signature of the Magistrate with date. There is signature of the Magistrate, but the time is not noted by the Magistrate. Thus, relying upon some noting seen on the corner of the FIR, the same cannot be taken as legal evidence to show that the FIR reached the court only belatedly or at 3.45 p.m. It is the submission that if the time is not therein, then it cannot be said that the FIR is an anti-timed one. Then these aspects also give corroboration to the fact that FIR is registered immediately after the incident.

Crl.Appeal No.1094/2010 14

9. The learned Public Prosecutor also brought to our notice the fact that inquest report was prepared without delay on 25.11.97 at 7.30 a.m. It is the submission that in the inquest report also the version seen in FIR is opined by the witness. If that is so, that also gives assurance to the fact that F.I. statement was prompt and it gives assurance to the evidence adduced by PW1 before the court. It is also submitted that here is a case where there is faulty investigation. The prosecutor even dared to submit before the court that the investigation cannot be fully relied upon. To substantiate his submission, he also brought to our notice that in this case even though the categoric evidence of PW1 in the F.I. statement is that he immediately after the incident went to PW6, it can be seen that the said witness was questioned only after 2 years of the incident. It cannot be a case where the witness was not available. It is the submission that PW6 is none other than the District President of BJP. By no stretch of imagination we can say that he was not available. At least a notice could have been issued to PW6 to appear before the investigating officer. Even such a step was not taken by the investigating officer. It is a clear case of Crl.Appeal No.1094/2010 15 partisan investigation. If it is a partisan investigation and evidence is produced and when such evidence is reliable, the court can fully rely upon the evidence of PW1 and the conviction and sentence entered into by the court below need not be disturbed.

10. It is also the submission made before us by the Public Prosecutor that in this case, the presence of PW1 need not be doubted. It is the submission that as per the evidence of PW1, he along with the deceased was travelling on a bicycle. PW3 deposed before the court that deceased came to her shop. Since coffee was not available, PW1 and the deceased went to a shop at Chemmanoor. Similarly PW4, one Gopalakrishna Pillai also deposed before the court that the cycle was parked in front of his shop and PW1 and deceased came back and took the cycle and went towards west. Thus, these two witnesses corroborate the version of PW1 that he was with deceased on that day and the presence of bicycle also seen corroborated. It is the positive case of PW1 that while he was peddling the cycle and the deceased was seated as pillion rider, a car came from behind and hit against them. They fell down and the persons came in the car inflicted injures Crl.Appeal No.1094/2010 16 to the deceased as well as to PW1. In this regard, the scene mahazar will show that there is a damaged cycle, which will give assurance to the evidence regarding the prosecution that incident occurred while they were travelling on a bicycle.

11. It is also the submission of the learned Public Prosecutor that when PW6 was examined, he deposed to the effect that PW1 stated the names of the accused to the police officer who came at the place of incident. It is an indication that immediately after the incident, PW1 divulged the names of accused at the spot itself. If that is so, it will come under res gestae and that res gestae also will corroborate the evidence of PW1 before the court. Surely the police officer to whom it was divulged is not before the court. It is also the submission made before us that such an aspect is not relevant when the definite case of the prosecution is that the investigation is a faulty one. It is the further submission of the prosecutor that when PW1 is an injured witness and further when the deceased is a very close friend of him there cannot be a false implication so as to exculpate or save the real culprits. The gist of the submission is that in this case the evidence of PW1 can be relied Crl.Appeal No.1094/2010 17 on and interference on the conviction and sentence entered into by the court below is not warranted. The evidence in this case consists oral and documentary as stated above.

12. PW1 is the person who gave the F.I. statement to the police. He marked the F.I.Statement as Ext.P1 by identifying his signature. It is also stated by the witness that body notes are also in Ext.P1. According to him he is a saw mill worker and after his work he attended RSS sakkha. By 8 p.m. ,the sakha was over. At that time, the deceased Santhosh invited him for a coffee. They proceeded to the Paravathyar junction, by that time power cut was over and electricity came. It is also deposed to that Panchayath member Noushad, Panchayath member Anil and Anthakkannan Anil were standing there. It is also deposed that the cycle which was parked in front of the shop of PW4 was taken and Santhosh requested the witness to peddle the same. They proceeded towards Chemmanmukku to have a coffee. It is also deposed to that when they reached Manichithodu, they heard the sound of a vehicle from behind. By the time he looked back, the said vehicle hit against them and thrown them away. It was an ambassador Crl.Appeal No.1094/2010 18 car and by opening the door accused No.1 Sajeev, Accused No.3 Anthaakkannan Anil, Kali Sajeev ( absconding), Accused No.4 Kadachin Santhosh, Panchayath member Noushad, Panchayath member Anilkumar and two other identifiable persons came out. It is his further evidence that accused No.1, Kali Sajeev as well as Anthakkannan Anil, by using sword inflicted cut injuries. They inflicted injuries on the neck area and other parts of the body of deceased. It is the evidence of the witness that he fell down and was lying therein. While he tried to rise Kadachin Santhosh beat him with a stick and member Noushad exhorted " %UfH fUG_fA^f\o?^ 5?:n_f\". By the time he ran away from therein. He went to the house of PW2 and described the fact to him and taking PW2 he went to the house of PW6, who was the District President of BJP.All of them went to the place of incident and they found Santhosh dead. His further evidence is that when they reached the place of incident, it was about 9 p.m. and they were attacked at 8.45 p.m. It is the case that he took an autorickshaw and went to the police station. He went to Kollam East Crl.Appeal No.1094/2010 19 Police Station and described the incident and thereafter he went to the hospital. His further evidence is that there was light from a nearby service station and there was also street light. There was also a house nearby where there was light and nearby shops were also having light. He also deposed that he as well as the deceased were accused in a murder case wherein one Sunil Kumar was murdered and his evidence is that due to that animosity this incident occurred. He further deposed that he lost his chappels in the incident and that was identified and marked as MO1. He further identified Accused No.1, Accused No.3, Accused No.5 and Accused No.6 from the court. He categorically deposed that Accused No.2 Kali Sajeev, Jayaprakash, Member Anil Kumar and member Noushad were not present in the court. He further deposed that he identified the accused from the police station also. He also deposed that ambassador car involved in the incident was also identified from the police station. He deposed that he can identity the swords used to inflict the injures. He further deposed that there were three swords.

13. PW2 is one Jayan. He deposed that he is the main Crl.Appeal No.1094/2010 20 Shikshak at Pattathanam RSS Sakha. He further deposed that usually Sakha was in between 7 p.m. and 8 p.m. He also deposed that on the date of incident including PW1 and deceased Santhosh, about 15 persons attended the Sakha. By 8 p.m., Shakha was over and at that time the electricity supply was disrupted and by 8.30 p.m. the supply was resumed. He further deposed that deceased Santhosh as well as PW1 went to take coffee at Chemmankudiyil. He deposed that at that time Panchayath member Anil Kumar and member Noushad were standing at Parvathyar junction. One Anthakkannan Ani was also with them. He further deposed that Anthakkannan Ani was present in court and identified him as Accused No.3. His further evidence is that thereafter he went to his house. After some time, PW1 came to his house by running. PW1 told him that at Manichithodu, a car came and hit against the cycle on which he was moving along with deceased Santhosh. His further evidence is that some persons inflicted injuries on Santhosh. He further deposed that DYFI workers have attacked him. He also deposed that earlier one Sunilkumar was murdered He also deposed that the deceased Santhosh and PW1 were the accused Crl.Appeal No.1094/2010 21 therein. He also deposed that thereafter, he along with PW1 went to the house of PW6 and all the three of them went to the place of incident and found the dead body of Santhosh.

14. PW3 deposed that she is conducting a tea shop at Parvathyarmukku. She knew the deceased Santhosh as well as PW1. The incident occurred at about 8.45 p.m. on 24.11.1997 and on the day on which deceased died, he came to her shop at about 8 p.m. Nobody was present along with him. Coffee was not available in her shop and he went towards east and her evidence is that thereafter PW1 also went from her shop. They went towards Chemmanmukku to take coffee on a bicycle which was parked in front of the shop of her son. She also deposed that she knows the accused.

15. PW4 deposed that in 1997 he was conducting a shop at Parvathyarmukku. He is even now conducting the same. He know the incident in which PW1 sustained injury. It was on 24/11/1997 and the incident was in between 8.30 p.m. and 9 p.m. He further deposed that Santhosh died at Manichithodu. It is towards west from his shop. He has not witnessed the incident. His further evidence is that deceased Crl.Appeal No.1094/2010 22 Santhosh along with PW1 kept the cycle in front of his shop. They went towards the shop of PW3 and came back thereafter and went towards west by taking the cycle. PW1 was peddling, whereas deceased Santhosh was sitting behind. He came to know about the incident at 9.30 p.m.

16. PW5 was an Assistant Engineer in KSEB. He deposed that he is staying near Manichithodu on the side of the Kollam-Kannanallur road. His further evidence is that he know the incident occurred on 24.11.1997 in between 8.45 and 9 p.m. When he was seeing TV, he heard the knocking sound from the gate and when he opened the door some people came and told him that they want to call the police. He dialed 100 and informed the police. By the time police came and when he looked from the gate area he saw one person lying on the road near to the wall of his property. The scene mahazar was marked by him as Ext.P2.

17. PW6 deposed before the court that the incident occurred at a place near to Velamkanni school at Manichithodu at about 8.45 hours at night. He deposed that, on the date of incident at about 9 p.m., Crl.Appeal No.1094/2010 23 PW1 came to his house and told him that while Santhosh and PW1 were going on a cycle, at Manichithodu an ambassador car came and hit against his cycle and the persons alighted from the car attacked Santhosh. He deposed that they also beat PW1. He also said that the persons who came in the car said to let free PW1 . He further deposed that he along with PW1 reached at the place of incident and saw Santhosh dead at the place of incident. He further deposed that police came and he identified the dead body to the police. He further deposed that "%H_, X<`Um, 'xGgIxaU X<`Um, XgL^Wm Da?B_ 5I^\y_O^UaKe8 - 3{" gIV g:VK^Cm %d5N_:nfDKm PW1 IyEa". He further deposed that PW1 told him the names of 6 persons and he is not remembering the names of two other persons now.

18. PW7 is the nephew of deceased Santhosh. He deposed that he is the person who received the dead body of Santhosh and the receipt is marked as Ext.P3. He further deposed that at the time of preparation of inquest he was present. He further deposed that deceased Santhosh was a member of BMS Union. He also deposed that the name Crl.Appeal No.1094/2010 24 of the wife of the deceased Santhosh is Sobha. He further asserted that deceased was a worker of RSS. He deposed that he came to know about the incident from PW1. He further deposed that PW1 told him from the hospital that " 5^y_W H_Ka" A1, A2, A3, A4,efNOV HlW^Fme5I^\y_O^UaK xIa gIxa g:VKm XgL^W_fH fUG_ f5^\fM?aJ_"

19. PW8 is a KSEB employee. He deposed that in November, 1997 he was the lineman. He further deposed that Manichithodu transformer was coming under his duty area. He deposed that the area coming under Manichithod transformer was exempted from power cut. He also deposed that there was power cut from Apsara junction to Pavarthiyar junction.

20. PW9 deposed that he was a finance agent during 1997 period. On the hypothecation of an ambassador car bearing Reg.No.KLY 7821 loan was granted by him. He deposed that since there was default, the vehicle was seized. He further deposed that the said car was taken by the police. He marked registration certificate as Crl.Appeal No.1094/2010 25 Ext.P4. He further deposed that as per Ext.P4, the owner of the car was one Devadas.

21. PW10 deposed that he is an attestor to the inquest which is marked as Ext.P5.

22. PW11 deposed that deceased Santhosh was a head load worker. He further deposed that he owned a cycle and also deposed that at the time of incident, the said cycle was in the possession of Santhosh. He also deposed that since he was working away, it was given on rent to Santhosh. He identified the cycle as MO2. He further deposed that the back side of the cycle is seen damaged. When the cycle was given to Santhsoh, there was no damage.

23. PW12 deposed that he was the village officer of Vadakkevila village. He prepared the plan of the place of incident and marked the same as Ext.P6. He deposed that item Nos. 2 and 7 shown in Ext.P6 are the electric posts.

24. PW13 Devadas, deposed that an ambassador car bearing Reg.No.KLY 7821 was purchased by him and the insurance policy certificate is marked Ext.P7.

Crl.Appeal No.1094/2010 26

25. PW14 deposed that during 1997-1999, he was an employee of Akshaya Finance. He was the attestor of the mahazar prepared for the seizure of the RC books of the vehicle bearing Reg.No.KLY 7821 and the document is marked as Ext.P8.

26. PW15 deposed that on 24.11.1997 at night he was the duty doctor at casualty of District Hospital, Kollam. He deposed that on 25.11.97 a person named one Vijayakumr aged 22 years was examined by him. He deposed that he was having injuries 2x 2 cm contusion on the back of left elbow and abrasion 2x 1 cm. On the lumbar area 15 cm. above on the midline. There was also complaints and pains all over the body. He was admitted in the male surgical ward. He issued the accident register cum wound certificate. He identified his signature in the said document and the same is marked as Ext.P9. He further deposed that the reason for the injury is noted as hXA_{_W XFx_AagO^Z 7_8 gIV 5^y_W UKm 5O_f5^Ia %?_:nD_W fU:nm on 24.11.1997 at 8.45 p.m." He further deposed that the patient was brought by one PC 4915. The said entry is struck out in Ext.P9. Crl.Appeal No.1094/2010 27

27. PW16 is the police surgeon who conducted the postmortem. He deposed that he conducted the postmortem examination of Santhosh and the postmortem certificate was marked as Ext.P10. He deposed that he had noted 49 injuries. The injuries are as follows :

"1. Multiple small abrasions over an area of 4 x 3 cm. on the forehead just left of midline and 2 cm. above root of nose.

2. Incised penetrated wound 12 x 2 cm. obliquely placed on the left side of head and adjacent part of forehead the lower front end being 2 cm. outer to the outer end of eyebrow. Underneath the bone and dura was sharply cut for a length of 8 cm. and the parietal lobe of brain was found incised 4 x 1 x 2 cm. The wound was directed downwards and to the right.

3. Incised wound 20 x 1.5 cm.

horizontally placed on the back of middle of head 13 cm. above root of neck. Underneath the bone and dura was found sharply cut for a length of 14 cm. and the occipital lobe of brain Crl.Appeal No.1094/2010 28 was found incised 9 x 1 x 5 cm. The wound was directed downwards and forwards.

4. Incised penetrating wound 7.5 x 1 cm. oblique exposing the skull cavity on the back of right side of head its lower inner end being at its middle and its outer end adjoining the right end of injury No.3. Brain underneath was found incised 5 x 1 x 2.5 cm. The wound was directed downwards and forwards to the right.

5. Incised wound 4x 0.5 cm. bone deep obliquely placed on the back of head, the lower inner end being just to the right of midline and 10 cm. above root of neck.

6. Incised wound 6 x 1 cm. bone deep obliquely placed on the back of right side of head, the upper inner end being at its middle and 11 cm. above root of neck.

7. Incised wound 5 x 0.5 cm. bone deep obliquely placed on the right side of head the lower inner and being 1 cm. outer to midline and 9 cm. above root of neck.

8. Incised wound 2 x 0.5 x 0.5 cm.

Crl.Appeal No.1094/2010 29 obliquely placed on the back of head the upper inner end being just to the left of midline and 8 cm. above root of neck.

9. Incised wound 10 x 0.5 cm. to 1 cm. reflecting the lower lip downwards oblique involving the right side of face, upper lip, lower lip and adjacent part of chin. The upper outer end being 2.5 cm. below the angle of right eye. Underneath the right side of mandible was found sharply cut the lower left central and lateral incisor and canine teeth were found missing and their sockets filled with blood.

10. Incised wound 8 x 5.5 cm. x 2 cm.

obliquely placed on the front of neck the right upper end being 7.5 cm. outer to midline and 5 cm. below right ear lobe. The lower left end showed a tailing 2.5 cm. long directed downwards to the left. Underneath the Vth cervical vertibra was found sharply cut, reflecting a chip of bone upwards.

11. Incised wound 13 x 5.5 x 2 cm.

obliquely placed on the front of neck the lower inner end being 5.5 cm. to the left of midline Crl.Appeal No.1094/2010 30 and 5 cm. above the upper end of sternum. It was found adjoining the lower left end of injury No.10. Underneath the VIth cervical vertibra was found sharply cut up to the spinal cord.

12. Incised wound 6.5 x 2.5 x 3 cm.

obliquely placed on the right side of neck the lower inner end being 2.5 cm. outer to midline and 5.5 cm. above the upper end of sternum. The inner lower end showed a tailing for a length of 0.5 cm. Underneath the upper border of VIIth cervical vertebra was sharply cut at the right side.

Underneath injuries No.10, 11, 12 - all the soft structures of the neck including bloodless vessels, nerves oesophagus and trachea was found transected at the level of the middle of thyroid cartilage.

13. Superficial incised wound 6 .5 x 0.1 cm. long obliquely placed on the front of middle of neck the lower inner end being 2 cm. to the left of midline and 2 cm. above the upper end of sternum.

14. Superficial incised wound 14 x 0.1 Crl.Appeal No.1094/2010 31 cm. long obliquely placed on the right side and midline of neck the lower inner end being 2 cm. to the left of midline and 2 cm. above the upper end of left collar bone.

15. Incised superficial wound 3.5 x 0.1 cm. oblique on the front or left shoulder.

16. Superficial incised wound 10 x 0.1 cm. obliquely placed on the top of right shoulder and adjacent part of front of neck.

17. Incised wound 1.5 x 0.5 cm. skin deep obliquely placed overlying the front of left collar bone, the upper inner end which was 5 cm. long directed upwards.

18. Incised wound 1 x 0.5 x 0.5 cm. on the back of right hand 3.5 cm. above the root of index finger.

19. Incised wound 2 x 1.5 cm.

reflecting flap of skin downwards on the back of right index finger 3 cm. above its tip.

20. Incised wound 3.5 x 1 x 2 cm.

obliquely placed on the inner and back aspect of right forearm, the lower inner end which showed a tailing 1 cm. long directed Crl.Appeal No.1094/2010 32 downwards 2 cm. above wrist. Underneath the ulna-bone was found sharply cut.

21. Incised wound 3.5 x 1 cm. skin deep reflecting a skin flap downwards horizontally placed on the front and inner aspect of right forearm 3 cm. above wrist.

22. Incised wound 8.5 x 3 x 3.5 cm.

obliquely placed on the front of upper part of right knee, underneath the patella, inner aspect of the lower end of thigh bone was found sharply cut.

23. Incised wound 9.5 x 2x2.5 cm. on the front of right knee 2 cm. below the previous injury. Underneath the patella, upper end of tibia was found sharply cut.

24. Incised wound 8 x 1 x 2 cm.

obliquely placed on the front of right knee across the injury no.23. Underneath the upper end of tibia was found fractured.

25. Incised wound 8.5 x 1.5 x 1 cm. on the outer, front and inner aspect of right leg 3 cm. below the injury no.24.

26. Abrasion 2.5 x 1 cm. on the front of Crl.Appeal No.1094/2010 33 left leg 23 cm. above ankle.

27. Multiple small abrasions over an area of 8x 3 cm. on the front of left knee and adjacent part of leg.

28. Incised wound 6.5 x 3.5 x 1 cm.

exposing the bone obliquely placed on the back of left hand and adjacent part of wrist. Underneath 4 carpal bones were found sharply cut.

29. Incised wound 6 x 0.5 cm. skin deep obliquely placed on the back of left hand, the lower inner end being just above the root of middle finger.

30. Incised wound 1 x 0.3 cm. bone deep each on the back of left ring, middle and index finger obliquely placed in a line, the injury on the little finger being at its root.

31. Incised wound 2.5 x 0.5 cm. bone deep on the back of left hand, the lower end being just above in between the little and ring finger. Its upper end showed a tailing 3.5 cm. directed upwards.

32. Incised wound 2 x 0.5 cm. bone Crl.Appeal No.1094/2010 34 deep on the inner aspect of left forearm 1 cm. above wrist.

33. Superficial incised wound 15 x 0.1 cm. obliquely placed on the right side of trunk, the lower inner end being 2.5 cm. outer to midline and 12 cm. below root of neck.

34. Superficial incised wound 9 x 0.1 cm. oblique on the back of right side of trunk, the lower inner end being 2 cm. outer to middle and 7 cm. below root of neck.

35. Superficial incised wound 8x 0.1 cm. obliquely placed on the right side of trunk, the lower inner end being 3 cm. outer to midline and 5 cm. below root of neck.

36. Superficial incised wound 15 x 0.1 cm. obliquely placed on the back of middle of neck and adjacent part of right shoulder blade the lower outer right end being 12 cm. outer to midline and 6 cm. below top of shoulder.

37. Abrasion 1 x 1 cm. on the right shoulder blade 15 cm. outer to midline and 4.5 cm. below top of shoulder.

38. Superficial incised wound 19 x 0.1 Crl.Appeal No.1094/2010 35 cm. obliquely placed on the back of trunk, the upper outer end being 11.5 cm. to the left of midline and 13 cm. below top of shoulder.

39. Superficial incised wound 8 x 0.1 cm. obliquely placed on back of middle of trunk the lower left end being 4 cm. outer to midline and 28 cm. above natal cleft.

40. Superficial incised wound 8 x 0.1 cm. obliquely placed on the left side of back of trunk, the upper inner end being 1.5 cm. outer to midline and 8.5 cm. below root of neck.

41. Incised wound 4 x 1 x 0.5 cm.

obliquely placed on the back of right side of trunk, the upper inner end being 5 cm. outer to midline and 10 cm. below root of neck. The lower outer end showed a tailing downwards for a length of 1.5 cm.

42. Superficial incised wound 10 x 0.1 cm. obliquely placed on the left side of back of trunk the upper inner end being 4 cm. outer to midline and 24 cm. above natal cleft.

43. Superficial incised wound 8. 0.1 cm. obliquely placed on the back of left side of Crl.Appeal No.1094/2010 36 trunk the lower inner end being 8 cm. outer to midline and 20 cm. above natal cleft.

44. Abrasion 17 x 3 to 4 cm. obliquely placed on the back of trunk the lower inner extend being 4 cm. to the right of midline and 16 cm. above natal cleft.

45. Abrasion 6 x 2 cm. on the left side of back of trunk 7 cm. outer to midline and 7 cm. above natal cleft.

46. Abrasion 4 x 0.5 cm. obliquely placed on the right side of back of trunk the lower inner and being just outer to midline and 12 cm. above natal cleft.

47. Abrasion 8 .5 x 2 cm. obliquely placed on the lower quadrant of left buttock.

48. Multiple small abrasions over an area of 9 x 4 cm. on the back of left thigh 25 cm. above knee.

49. Superficial incised wound 12 x 0.1 cm. obliquely placed on the left side of front of chest the upper inner end being 2 cm. outer to midline and 2.5 cm. below the upper end of sternum."

Crl.Appeal No.1094/2010 37

28. He further deposed that the blood group was determined in the blood bank attached to District Hospital, Kollam and found to be ' A Rh +ve'. He deposed that death was due to the injuries sustained on the head and neck.

29. PW17 is the property clerk attached to the court. He marked the properties received therein as MO1 series .

30. PW18 deposed that he was the G.D charge in Kollam East Police Station on 25.11.1997. He further deposed that PW1 gave Ext.P1 statement to him at 9.30 in the night. He further deposed that in the same there is signature of himself as well as PW1. On the basis of Ext.P1 crime 1094/1997 of Kollam East Police Station was registered for the offences under Sections 143, 147, 148, 324, 302 read with Section 149 of IPC. The F.I. Statement is marked as Ext.P1 and the FIR is marked as Ext.P1(a). He further deposed that the names of the accused are written in Ext.P1. He deposed that Exts.P1 and P1(a) reached the court at 3.45 p.m on 25.11.1997. He denied the suggestion that the signature was later obtained from RSS persons.

31. PW19 deposed that he was the Circle Inspector of Kollam Crl.Appeal No.1094/2010 38 East Police Station. He further deposed that he conducted the preliminary investigation. He went to the place of incident at 11 p.m. on the very same night and arrangements were made to guard the scene. It is his evidence that since the place of incident is on Kollam- Kannanallur road, where there is heavy traffic and further the weather was not good and also there was law and order problem, he removed the dead body of Santhosh to mortuary at District Hospital, Kollam. It is the further evidence that at 10.30 hours on 25.11.1997, he prepared the scene mahazar which was marked as Ext.P11 before the court. He further deposed that his signature is therein. He further deposed that M01 and MO 1(a) are the chappels collected from the place of incident as per Ext.P11. MO2 is the cycle collected as per Ext.P11. He further deposed that MO10 is the tyre of the scooter collected as per Ext.P11. He further deposed that the seized articles are produced before the court as per property list. He further deposed that, at the time of removal of the dead body to the District Hospital, a preliminary mahazar was prepared and the said mahazar is Ext.P2. He further deposed that on 25.11.1997 at 7.30 a.m., he reached at the Crl.Appeal No.1094/2010 39 mortuary and conducted the inquest, which is marked as Ext.P5. He also deposed that as per Ext.P5, MO3, MO4, MO5, MO6, MO7, MO8, MO9 series are seized. He also deposed that thereafter he went to PW1 and his statement was recorded.

32. PW20 was the DYSP from 20/11/1996 to 7/12/1998 at kollam. He deposed that he is the person who furnished the names and addresses of accused 1 and 4 to the court and the said document is marked as Ext.P13. He further deposed that the remand application of the accused is Ext.P14. He further deposed that the names and address of accused 6 and 7 were also forwarded to the court and the same is Ext.P15. He also deposed that he arrested the accused and the remand report is marked as Ext.P18.

33. PW21 is the DYSP who conducted the investigation from 24.7.1998. He deposed that he collected the the names and addresses of the owner of the ambassador car bearing Reg.No.KL7 7821 from RTO. He further deposed that he had given notice to CW19 to give the name and address of the driver. He further deposed that he arrested Accused No.5 and recovered the car bearing Reg.No.KL 7 7821. The Crl.Appeal No.1094/2010 40 name and address furnished to the court regarding Accused No.5 is marked as Ext.P18. He further deposed that the records of the car were produced by the agents of Akshaya Finance and they were marked as Ext.P4.

34. PW22 is the person who prepared the charge before the court.

35. The defence also examined DW1. He was the Head Constable of Kollam East Police Station. He produced the FIR copy in Crime No. 168/96 which marked as Ext.D9 and deposed that the third accused therein is deceased Santhosh and accused 12 is PW1. Ext.D10 is the copy of the FIR in Crime No.179/96 where the second accused therein is deceased Santhosh and the fifth accused therein is PW1. Ext.D11 is the copy of the FIR in Crime No.207/96 wherein the third accused is deceased Santhosh and the 11th accused is PW1. The witness also deposed that Ext.D12 is the copy of the FIR in Crime No.860/1996 and second accused therein is deceased Santhosh and the fourth accused is PW1. He further deposed that Ext.D13 is the copy of the FIR in Crime No.893/1996, wherein the fifth accused is deceased Crl.Appeal No.1094/2010 41 Santhosh and Accused No.13 is PW1. The witness further deposed that Ext.D14 is the copy of the FIR in Crime No.157/1998. He deposed that the 12th accused therein is the PW1.

36. Before appreciating the materials in this case, the submission of the prosecution that the investigation was a faulty one and the murder was a politically motivated one are relevant to be noted. When the stand of the Prosecutor is that the investigation is a faulty one, this Court should be very careful while appreciating the materials. After hearing the submissions and also after going through the evidence, it can be seen that even though the prosecution case is that the assailants used deadly weapons like swords, not even a single weapon of offence is seen seized by the prosecution. It is also pertinent to note that one of the main witnesses of the prosecution, who is examined before the court as PW6 was seen questioned years after the incident. He cannot be a person who was not available, especially when he was the District President of BJP at that point of time. It can be further seen that even while the case was conducted by the prosecutor in the trial court, nothing is elicited from the owner of the Crl.Appeal No.1094/2010 42 car in which assailants came regarding the person to whom the vehicle was entrusted by him. Under these circumstances, the decision of the Apex Court in Dayal Singh and Others v. State of Uttaranchal [(2012) 8 SCC 263] is relevant to be quoted in appreciating the evidence available in a case like this. The relevant paragraphs of the said judgment reads as follows :

"27. Now, we may advert to the duty of the Court in such cases. In Sathi Prasad v. The State of U.P. [(1972) 3 SCC 613], this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab [(2004) 3 SCC 654], held:

"5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But 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 Crl.Appeal No.1094/2010 43 investigating officer if the investigation is designedly defective."

28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar [AIR 1999 SC 644], enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

29. In Zahira Habibullah Sheikh v. State of Gujarat [(2006) 3 SCC 374], the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the court Crl.Appeal No.1094/2010 44 on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that:

"42. Legislative measures to emphasize prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance if not more, as the interest of the individual accused. In this courts have a vital role to play. (Emphasis supplied)"

37. In this case, after considering the circumstances Crl.Appeal No.1094/2010 45 highlighted, we feel that it is a case where this court should be very cautious and also have the greater responsibility. It is a fact that for the reasons stated, we feel that the investigation cannot be said as flawless. Thus, while grain is separated from the chaff, we are also careful to see that the designed mischief of the investigating officer, if any, in this case shall not be perpetuated and justice would not be denied to the complainant party. But at the same time, we are also eager to protect the interest of the accused. Thus, on the settled principles of evaluation of evidence, we are appreciating the materials in this case.

38. PW1 is the star witness of the prosecution. It is the admitted case that PW1 is a RSS man and the deceased is also a RSS man. Due to political motive, the alleged murder took place. Thus, there need not be a doubt that PW1 belongs to a faction which is opposing the faction to which the accused belonged. The main argument advanced before us is that since PW1 is a factional witness and on the background that there are suspicious circumstances regarding the credibility of his evidence, his evidence cannot be believed. On the other hand, the stand of the Prosecutor is that PW1 is Crl.Appeal No.1094/2010 46 none other than an injured witness. When there is a political murder, naturally neutral persons, even if they witnessed the incident, will not come forward to depose against any party inviting the wrath of the party. The stand of the prosecution is that in this case the presence of PW1 at the place of incident need not be suspected. Surely, PW3 and PW4 deposed before the court that immediately before the incident they saw PW1 and the deceased together. When there is an evidence to the effect that PW1 and the deceased were last seen together and thereafter he was seen dead, then the only inference that can be drawn is that PW1 was along with him at the time of death. When PW1 deposed before the court that he was along with the deceased and when he deposed regarding the circumstances or the incident in which deceased died, then the fact that he was along with him at the time of death need not be suspected. This fact is fortified, especially by the fact that PW1 also got some injures, may be minor injury, but those injuries cannot be a self inflicted injuries. It can be also seen that there was no cross examination in this regard to PW1. Surely the defence got a case that Ext.P9, the wound certificate is a concocted one. But in Crl.Appeal No.1094/2010 47 the light of the evidence of the Doctor ( PW12) Ext.P9 need not be doubted. We say so because there is no motive alleged against PW12. PW12 is a responsible Doctor attached to the Govt. District Hospital. Under such circumstances, his evidence need not be doubted. Thus, what comes out is that the deceased was seen along with PW1 immediately before the incident and after the incident, PW1 was treated in the hospital for injuries sustained in the incident in which the deceased died. Thus, the only question which remains is regarding the veracity or reliability of the evidence of PW1.

39. Ext.P1 is the F.I statement given by PW1 in respect of the incident to the police. As per the FIR, according to him, after 'Sakha' the witness along with deceased Santhosh went to Parvathyarmukku. According to him at that time, Anthakkannan Anil and member Anilkumar and member Noushad were standing there. His case is that the cycle of the deceased was kept in front of a shop therein. It was taken from there and the witness peddled the same and the deceased travelled on pillion. When they reached in front of a service station, a vehicle hit from behind on the cycle and both of them were thrown on Crl.Appeal No.1094/2010 48 the southern side of the road. His further case is that it was a white ambassador car and by opening the door Konchu Sajeev, Kali Sajeev Kadachin Santhosh, Anthakkannan Anil, Panchayat members Anilkumar and Noushad and two identifiable persons came out of the car and Kadachill Santhosh beat with a stick. At that time Konchu Sajeev, Kali Sajeev and Anthakkannan Ani inflicted cut injuries using swords in their hands on the deceased Santhosh. It is also stated that then the member Noushad said " %UfH U_gGx?^ 5?:n_f\" and PW1 ran away from there. He further stated therein that he straight away went to house of one Jayan ( PW 2) and both of them went to the District President of BJP (PW 6) and all of them went to the place of incident and they saw Santhosh as dead. He further stated that he witnessed the incident in the street light and the light emitting from the service station as well as from the house nearby. He also stated that due to political animosity, the accused did so. Ext.P1(a) is the FIR which allegedly reached the court at 3.45 p.m. on the next day ie. 25.11.1997. Even though PW18 deposed before the court that it Crl.Appeal No.1094/2010 49 reached at 3.45 p.m. in the court, it can be seen that it is not written by the Magistrate concerned. The initials of the Magistrate do not show the time, but only the date. In the corner of the FIR 3.45 is seen noted, but there is nothing to show, who noted the same. But at the very same time, it is relevant to note that the evidence of the witnesses regarding the time of receipt at the court is not challenged by the prosecutor. Still that evidence without any basis is not inspiring confidence. PW18, who deposed so got no case that he is the person who delivered the F.I.R. to the court. Thus, it can be only held that the F.I.R. is not anti- timed, but only a prompt one. At this juncture, it is also relevant to note that in the inquest report, which came into existence at 7.30 a.m. on 25.11.1997 itself also shows that the very same version regarding the incident is there in the FIS.

40. Now, appreciating the evidence of PW1 in the background of his earliest statement referred above, it can be seen that he is categoric that member Anilkumar and member Noushad were also in the group of assailants. But as per Ext.19 the police reported to the court that they were not among the assailants. But it is also relevant to Crl.Appeal No.1094/2010 50 note that even when evidence was tendered by PW1 before the court he was categoric that those persons were also present. It is also relevant to note that the prosecutor appeared in this appeal is not ready to endorse the investigation. It is submitted before us that the period in which the incident occurred is to be considered by this court while appreciating the materials produced by the investigation. It is submitted by the learned Public Prosecutor, during that period, the Ministry led by Communist Party of India was in power. It is the submission that deleted persons are influential persons. Under such circumstances, if the names of those accused were omitted, there is no wonder. Thus, the specific stand of the learned Public Prosecutor is that only because Ext.P19 was produced before the court, it cannot be said that those persons were not present among the assailants. Surely, in this case the court has not invoked the powers vested upon it under section 319 of Cr.P.C. Thus, the only evidence relating to the accused who are facing the trial need to be appreciated in this appeal filed by the convicted persons. PW1 stated six names to the police. Two persons among the named persons are now omitted from the final Crl.Appeal No.1094/2010 51 charge by the police after investigation. Among the remaining four named persons, one person is absconding. One person died during the pendency of the case, that too before framing charge. Thus, only two persons, who are named in the F.I. Statement are among the convicted accused.

41. Thus, what comes out is that even though there are six persons named in the F.I.S., two among them were not sent for trial by the investigating officer, but only four persons were included and among the said four persons, only two persons faced the trial till judgment and both of them were convicted. Apart from the said two persons, two other persons were also tried along with them, who were also convicted by the trial court. We have already stated that PW1 deposed before the court that Sajeev, Anthakkannan Ani, Kali Sajeev, Kadachin Santhosh and member Anilkumar and member Noushad and two identifiable persons came out of the car and inflicted injuries. He also deposed the overt act of each person i.e. as per his evidence, accused No.1 along with Kali Sajeev and Anthakannan Ani inflicted injuries with a sword on the neck area and other parts of the body and Crl.Appeal No.1094/2010 52 his evidence is that Kadachin Santhosh beat with a stick on the waist area. This is the evidence adduced by PW1 regarding the incident.

42. As we have already discussed now let us look whether there is any corroboration for the evidence rendered by PW1 in respect of the incident. Surely as already discussed it can be seen that his presence at the time of incident need not suspected for the reasons; 1) he is an injured witness 2) PW3 and PW4 saw him immediately before the incident moving towards the place of incident on bicycle 3) At the place of incident a damaged bicycle was seen. Thus, appreciating these evidences, his presence at the place of incident need not doubted. As already discussed, it can be seen that even though PW1 had given the names of six persons, only four persons were sent for trial by the investigating officer and among the said four persons only two persons are before this court as appellants. The names of other two appellants are not seen in the F.I. Statement. Thus, appreciating the evidence of PW1 in the background of the materials given in the F.I. Statement, it can be seen that in respect of two persons named in the F.I. Statement, he is deposing consistently. It is also the evidence of PW6 to the effect Crl.Appeal No.1094/2010 53 that immediately after the incident, PW1 disclosed the names of six persons. The evidence in this regard by PW6 is relevant to be noted. PW6 deposed before the court that " %H_, X<`Um, 'xGgIxaU X<`Um, XgL^Wm Da?B_ 5I^\y_O^UaK 8-3{" gIV g:VK^Cm %d5N_:nfDKmePW1IyEa" . Thus, it can be seen that immediately after the incident, PW1 divulged the names of six persons and categorically deposed before the court regarding the names of two persons, who were also seen stated in the F.I. Statement. Thus, in appreciating the evidence of PW1 it can be seen that he deposed consistently regarding the names of two persons ie. he named the persons, Accused No.1 and Accused No.3 i.e. Sajveen @ Kochu Sajeev as well as Anil Kumar @ Anthakannan Ani. Thus, the evidence of PW1 regarding Sajeev and Anil Kumar @ Anthakannan Ani are believable. Thus, it can be further seen that there is no consistent evidence regarding Accused No.5 and Accused No.6, who are also appellants herein. ie.. the names of these appellant Nos. 3 and 4 were not stated by PW1 either in the F.I. statement or while PW6 was Crl.Appeal No.1094/2010 54 present at the place of incident ie. no corroboration can be seen available in the case of appellant Nos. 3 and 4, but at the very same time it can be seen that there is evidence regarding appellant Nos. 1 and 2, who are accused nos. 1 and 3.

43. Thus, summing up, the incriminating evidence is as follows :

There was injury on PW1 and further the evidence of this witness is that the said injury was sustained in the very same incident in which Santhosh sustained fatal injuries and he succumbed to the injuries. His earlier statement to the Doctor also corroborates his evidence. PW15, Doctor gave evidence before court that the allegation given by the injured was " hXA_{_W XFx_AagO^Z 7_8 gIV 5^y_W UKm 5O_f5^Ia %?_:nD_W fU:nm on 24.11.1997 at 8.45 p.m." Further, immediately before the incident, PW3 and PW4 found the deceased and PW1 proceeding together towards west. It can be further seen that as per the evidence, the incident occurred from a place which is west to the place from where PW3 and PW4 saw the deceased as well as PW1. Crl.Appeal No.1094/2010 55 It is also pertinent to note that their evidence is that deceased and PW1 went towards west. It is also the positive case of the police officer ( PW18 ) that the witness PW1 came to the police station and at 9.30 p.m. First Information Statement was given. If that is so, the presence of PW1 when Santhosh was murdered stand proved. The version of PW1 before the court in respect of appellant No.1 and appellant No.2 can be relied on, when their names as Accused No.1 and Accused No.3 are in FI statement as well. As per the evidence of PW6, it can be seen that the names of these accused/appellants were stated from the place of incident by PW1 and PW6 heard the same.

F.I. Statement was given thereafter. The evidence in this regard can be admissible as it is res gestae. The F.I. Statement by PW1 can be used to corroborate his later evidence in court by virtue of Section 157 of the Evidence Act.

Thus, what comes out is that the evidence of PW1 in respect of appellants 1 and 2 i.e. Sajeev @ Kochusajeev and Anilkumar @ Anthakkannan are believable and the court charge against these appellants stand proved. The prosecution succeeded in proving the Crl.Appeal No.1094/2010 56 case against Accused Nos.1 and 3 who are appellants Nos. 1 and 2. The appellant Nos. 3 and 4 ( Accused Nos. 5 and 6) are entitled for benefit of doubt. The conviction and sentence against accused Nos. 5 and 6, who are appellants 3 and 4 are set aside. The appeal in respect of appellants 1 and 2 stand dismissed, whereas in so far as appellant Nos. 3 and 4 are concerned, the appeal is allowed. If appellants 3 and 4 are in jail, they shall be immediately released.

K.T.SANKARAN, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.

Crl.Appeal No.1094/2010 57

GIST OF THE JUDGMENT In the result, the appeal in respect of appellants 3 and 4 (accused Nos.5 and 6 in S.C.No.770/2002 on the file of the II Additional Sessions Court, Kollam) is allowed. They are entitled for benefit of doubt. The conviction and sentence against the above said appellants 3 and 4 are set aside. If appellants 3 and 4 are in jail, they shall be immediately released. There will be a direction to the Superintendent of jail concerned to release appellant Nos. 3 and 4 ( Gopi @ Kuttichira Gopi, S/o Sekharan and Pramod, S/o Gopinathan) forthwith, unless their detention is required in respect of any other case. The appeal in respect of appellant Nos. 1 and 2 ( accused Nos. 1 and 3 in S.C.No.770/2002 on the file of the II Additional Sessions Court, Kollam) stands dismissed.

K.T.SANKARAN, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.

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