Kerala High Court
Pradeepan vs State Of Kerala on 27 May, 2005
Equivalent citations: 2005(3)KLT1075
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair, V. Ramkumar
JUDGMENT K. Padmanabhan Nair, J.
1. Accused Nos. 1 and 4 in S.C. No. 146/01 on the file of the Additional Sessions Court (Adhoc-II, Fast Track), Thalassery, are the appellants in Crl.Appeal No. 1599 of 2003. Accused Nos. 2, 3 and 6 in the above said case are the appellants in Crl.A. 1685 of 2003. Crl.Appeal No. 800 of 2004 is filed by the State challenging the acquittal of the 5th accused in the said case. The mother of the deceased (K.T. Jayakrishnan Master) has filed Crl.R.P.No. 573 of 2004 challenging the acquittal of the 5th accused. The Investigating Officer who was examined as P.W.30 in the case has filed Crl.M.C.No. 5125 of 2003 for expunging the adverse remarks made against him and also to vacate the direction issued by the learned Sessions Judge to the Government to take action against him. Since all the appellants were found guilty of the offence under Section 302 of the Indian Penal Code and sentenced to death, the learned Sessions Judge referred the case for confirmation under Section 366 of the Code of Criminal Procedure, 1973, and the same was numbered as D.S.R. 1 of 2004. The Death Sentence Reference was also heard along with the Criminal Appeals and Criminal Revision Petition. The appellants were found guilty of the offences punishable under Sections 143, 147, 148, 342, 449, 302 read with 149 of I.P.C. They were convicted and sentenced to death for the offence punishable under Section 302, imprisonment for life for the offence under Section 449, rigorous imprisonment for one year for the offence under Section 342, rigorous imprisonment for 6 months for the offence under Section 143 and rigorous imprisonment for 3 years for the offence under Section 148 of Indian Penal Code. No separate sentence was awarded for the offence punishable under Section 147 of I.P.C. The sentences were directed to run consecutively.
2. The prosecution case in brief is as follows:-The seven named accused persons and four other persons who can be identified by sight and owing allegiance to the Communist Party of India (Marxist) hatched a conspiracy to commit murder of late K.T. Jayakrishnan Master because of their political enmity towards him. The deceased Jayakrishnan Master was the State Vice President of the Bharatheeya Yuva Morcha and was working as a teacher in Mokeri East U.P. School, at Paremmel in Mokeri Amsom and Desom of Kannur District. In pursuance of a common object of committing the murder of Jayakrishnan Master, the appellants and other accused formed themselves into members of an unlawful assembly at 10.40 a.m. on 1-12-1999 armed with deadly weapons like iron rod, swords, large chopping knife, axe etc. and committed rioting. They trespassed into the property wherein Mokeri East U.P. School is situated. Accused 2, 3 and 6 came to. the eastern side of the building in which Jayakrishnan Master was taking class. Accused Nos. 1, 4, and 7 came to the western side of that building. Accused Nos. 1, 4 and 7 criminally trespassed into the class room from the western side of the building and wrongfully confined Jayakrishnan Master who was teaching the students in Standard VIB. Thereafter, in the presence of the students the first accused beat on the head of the deceased with an iron rod. The other accused persons started inflicting injuries. Jayakrishnan Master made a futile attempt to escape from the class. At the time of initial attack he was standing on the western side of the class room. He ran towards the eastern side of the class room and reached the south eastern corner of the class. At that time, accused Nos. 2, 3, and 6, the other members of the unlawful assembly who. were waiting on the eastern property jumped over the half wall and trespassed into the class room. They joined A1, A4 and A7 in attacking Jayakrishnan and indiscriminately inflicted injuries on the body of Jayakrishnan Master using weapons like swords, chopping knife etc. Jayakrishnan Master died on the spot. After the brutal murder of Jayakrishnan Master in the presence of his own students, the assailants wrote a warning in the black board of Class V A threatening the witnesses that in case anybody dares to give evidence against them, they will also meet the same fate of Jayakrishnan Master. The further prosecution case is that the 5th accused who was another member of the unlawful assembly guarded the scene with a country made bomb in his hand to frighten and drive away any person who may attempt to save Jayakrishnan Master.
3. It is also the case of the prosecution that during the course of the same transaction, with a view to deter Vasudevan Namboothiri, the head constable attached to the Armed Reserve Camp, Kannur, who was then deputed as the armed Personal Security Officer of Jayakrishnan Master, four identifiable persons overpowered him, wrongfully restrained him and assaulted him at the veranda of the nearby shop. Some poisonous liquid resembling formal in was poured into his eyes and mouth. The assailants took away the service revolver allotted to the P.S.O. to prevent any possible obstruction that he may cause to the accused while attacking Jayakrishnan Master. The definite prosecution case is that all these operations were carried out in pursuance of a criminal conspiracy hatched by the accused and the accused formed themselves into members of an unlawful assembly with the common object of committing the murder of Jayakrishnan Master.
4. On the basis of the First Information Statement given by P.W. 1, another teacher of the same School, P.W. 28 registered Ext.P1(a) F.I.R. Initial investigation was conducted by P.W. 29. Subsequently a special Investigation Group was constituted and the investigation was taken over by P.W.30, the Deputy Superintendent of Police, who was then working as Assistant Commissioner of Traffic, Calicut. After completing the investigation, he filed the Final Report giving the names and address of 7 accused persons and stating that the remaining four accused persons who can be identified by sight were absconding. It was alleged that the accused persons committed the offences punishable under Sections 143, 147, 148, 120B, 342, 449, 302, 332, 328, 394, 397, 398 and 506(i) IPC read with S. 149 IPC. The learned Magistrate, after complying with the formalities committed the case to the Court of Sessions, which was subsequently made over to the Additional Sessions Court (Adhoc -II, Fast Track), Thalassery. The appellants and two other accused appeared before the learned Sessions Judge. The learned Sessions Judge, after hearing both sides framed charges against the appellants. The charges were read over and explained to the accused. They understood the same and pleaded not guilty.
5. On the side of the prosecution, P.Ws. 1 to 30 were examined. Exts.P1 to P51 proved and marked. M.Os. 1 to 37 identified.
6. P.W.1 was the class teacher of VA Mokeri East U.P.School, who gave Ext.P1 First Information Statement. Though he admitted the fact that he gave Ext.P1 statement, he did not support the prosecution case. P.W.2 was a shop keeper who was running a petty shop near the School. He was cited to prove the motive. P.Ws. 3, 4 and 6 were the students of Standard VI B in which class the deceased was taking class at the time of incident. P.W.5 was a student of class V A situated on the southern side of Standard VI B. P.Ws. 3 to 6 were cited to prove the incident. P.Ws. 7 and 8 were two independent witnesses. They were examined to prove that immediately after the incident, the accused went towards the junction through Parammel road which lies north-south on the western side of the School with the blood stained weapons. P.W.9 was the gunman of deceased Jayakrishnan Master. P.W.10 and P.W.11 had deputed P.W.9 and another Personal Security Officer to afford protection to the deceased. P.W.12 was the Deputy Commandant A. R. Camp, Kannur. He issued M.O.4 service revolver and bullets to P.W.9. P.W.13 was the Chief Reporter of Mathrubhumi. He was cited to prove that a threatening message was written in the black board of Standard VA to the effect that in case anybody dares to give evidence, Jayakrishnan will be repeated. P. W. 14 was the Sub Inspector of Police, Aralam, who seized M.O.4 service revolver, which was stolen from the possession of P.W.9. P.W.15 was the Scientific Assistant, Forensic Science Laboratory, Trivandrum, who prepared Exts.P16 and P17 Scene of Crime Reports. P.W.16 was the Photographer who took the photographs with negatives marked as Exts.P18 and P20 series. P.W.17 was the Assistant Surgeon, attached to Government Hospital, Kuthuparamba who examined P.W.9 and issued Ext.P22 wound certificate. P.W. 18 was the Doctor attached to the Government Hospital, Thalassery who issued Ext.P23 discharge certificate of P.W.9. P.W. 19 was a Psychiatrist attached to the General Hospital, Kannur. He was examined by the prosecution to prove the post-mortem certificate issued by Dr. Venugopal, who had after retirement from service, gone to America at the time of trial. He proved the same. He conducted counselling for the children of the School in connection with the murder of Jayakrishnan Master. P. W.20 was the police photographer who took Ext.P25 series of photos. P.W.21 was the Village Officer who prepared Ext.P30 series plan. P.W.22 was working as Lower Division Clerk in the Court of the Additional Chief Judicial Magistrate. He forwarded the material objects for chemical examination. P.W.23 was working as Assistant Surgeon in the General Hospital, Thalassery. He examined P.W.9 and issued Ext.P32 wound certificate, P.W.24 was the Judicial First Class Magistrate, Thalassery at the relevant time. He conducted the Test Identification Parade as authorised by the Chief Judicial Magistrate, Thalassery. P.W.25 was the Sub Inspector of Panoor Police Station during the relevant period. He took into custody two axes produced by Sri M.M. Joseph, the Special Dy.S.P. P.W.26 was working as Special Squad Dy.S.P. Kannur during the relevant period. He conducted a search in the C.P.I.(M) Branch Office at Koothuparamba and seized two sword sticks, two choppers, one dagger, three iron rods and two packets of nails etc. P.W.27, who was the A.S.O. Koothuparamba, took into custody all the weapons produced by P.W.26 under a seizure mahazar. P.W.28 was the Head Constable attached to Panoor Police Station who recorded Ext.P1 First Information Statement and registered Ext.P1(a) F.I.R. P.W.29 was the Circle Inspector of Police who conducted initial investigation. P.W.30 took over the investigation, completed the same and filed the final report.
7. After the prosecution evidence was over, the accused were examined under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances brought against them in evidence. All of them denied those circumstances and maintained their innocence. The first accused had stated that he was the Local Committee Secretary of C.P.I.(M) at Mokeri. It was also stated that one Sri.Vellappalli Nadesan and other S.N.D.P.Yogam workers distributed financial assistance to the families of those persons who were killed or injured in the attacks that took place at Mokeri and Panoor in retaliation of the murder of Jayakrishnan. He had also visited those houses along with S.N.D.P.Yogam workers. The photograph of the function giving financial assistance to the relatives of deceased Manoj was published in the Mathrubhumi Daily dated 22-12-1999, in which he also figures. The B.J.P. leaders falsely implicated him in this case making use of the said photograph. It was also stated that he took part in the meeting of the Parent Teachers' Association convened as per the directions of the District Collector for reopening the Mokeri East U.P.School which was closed after the occurrence. In the said meeting the District Collector and other officials had participated. Representatives of various political parties and prominent citizens attended that function. Subsequently, he was arrested and remanded and later produced before Court by the Police in such a state that anybody could see him and identify him. It was further stated that he was taken to the court in a public transport vehicle for extension of his remand and also when he was taken for the identification parade. His face was not covered till he reached the room of the Magistrate. While entering the room of the Magistrate, his face was covered. It was further stated that any member of the public could have seen him and identified him. The test identification parade was not conducted properly. P.W.7 and P.W.8 gave false evidence against him before the Court as per the directions of the B.J.P. leaders. He is innocent. It is further stated that his name was included in the array of the accused with the help of the B.J.P. men and because of political enmity.
8. The 2nd accused stated that he was innocent and he was implicated only because of the political enmity. The 3rd accused stated that he was innocent and he was arraigned as an accused with the help of B.J.P. activists. He also stated that after arrest, he was taken to the court by public conveyance and anybody could have seen him. It was also stated that when they were brought for test identification parade, all help was done by the police. The identification parade was not properly conducted. Accused Nos. 4, 5, 6 and 7 also stated that they have nothing more to add than what was stated by accused Nos. 1 and 3.
9. The learned Sessions Judge after hearing the arguments of both sides found that it was not a fit case to acquit the accused under Section 232 of the Code of Criminal Procedure. The accused were called upon to enter on their defence and to adduce any evidence which they might have in support of their defence. On the side of the accused, D.Ws 1 and 2 were examined. D.W.1 was a tailor who was conducting a tailoring shop near the school premises. D.W.2 was student of Class VIB. D.W.1 was examined to prove that at about 10.30 a.m. on 1-12-1999, he heard a commotion from the school and he went to the school. At that time he saw Jayakrishnan Master lying in a pool of blood and 5-6 persons jumping over the eastern half wall and running through the property of Prabhavathy Teacher. All the students ran away towards the office room. 3-4 persons came in a jeep, went near the school, looked inside, returned and went to Parammel side in the same jeep.
10. D.W.2 is a student of Standard VIB. She was attending the class at the time of incident. She was examined to prove that none of the students saw the incident. She had also stated that some assailants entered into the class room from the front side and inflicted cut injuries on the body of Jayakrishnan Master.
11. Exts.D1 to D14 and D18 are the case diary contradictions of some of the prosecution witnesses. Exts. D.15 to D.17 are copies of Mathrubhumi dailies.
12. The 7th accused died before the conclusion of trial. So the charge framed against him had abated. The learned Sessions Judge, after trial, acquitted all the accused persons of the offences punishable under Sections 120B, 332, 328, 394, 397, 398 and 506 (i) of the Indian Penal Code. The 5th accused was acquitted of all offences charged against him and set at liberty. Accused Nos. 1 to 4 and 6 were found guilty of the offences punishable under Sections 143, 147, 148, 342, 449 and 302 read with Section 149 of the Indian Penal Code and sentenced as aforesaid.
13. The learned Sessions Judge found that the investigation of the case was , conducted in an unfair, illegal and partisan manner. After discussing the various infirmities and illegalities stated to have been committed by the Investigating Officer, the learned Sessions Judge had recommended stringent action against P.W.30 and other police officials. P.W.30 has filed Crl.M.C. No. 5125 of 2003 for expunging those adverse remarks made against him and also to set aside the direction issued by the learned Sessions Judge to the Government to take action against him. The accused who were convicted had filed the two Criminal Appeals challenging the conviction and sentence imposed on them. The State has filed the Criminal Appeal challenging the judgment of acquittal of the 5th accused. The mother of the deceased has filed the Crl.Revision Petition challenging the order of acquittal. The learned Sessions Judge referred the case under Section 366 of the Code of Criminal Procedure Code for confirmation. All these cases are heard together and disposed of by this common judgment.
14. We heard Senior Advocate Sri. Nageswara Rao appearing for the appellants in Crl.Appeal No. 1599 of 2003, Senior Advocate Sri. Janardhana Kurup appearing for the appellants in Crl.Appeal No. 1685 of 2003, Advocate Sri. K. Ramakumar appearing for the petitioner in Crl.R.P. No. 573 of 2004, Senior Advocate Sri. P.N.K. Achan appearing for the petitioner in Crl.M.C. No. 5125 of 2003 and Advocate Sri. P.V. Madhavan Nambiar, the learned Director General of Prosecutions, assisted by Public Prosecutors Sri. Sujith Mathew Jose, Smt. Noorji Noushad and Smt. P.A. Raziya appearing for the State.
15. The following points arise for consideration in these cases:
(i) Whether Jayakrishnan Master died of homicidal injuries sustained by him at 10.40 a.m. on 1-12-1999?
(ii) Whether the conviction entered against A1 to A4 and A6 is sustainable or not ?
(iii) In case the conviction recorded against A1 to A4 or A6 is confirmed, whether the death sentence imposed on the convicted accused is liable to be confirmed or not ?
(iv) Whether the sentence imposed on the appellants on other counts is legal and proper? (v) Whether the order of acquittal recorded against A5 is sustainable or not ?
(vi) Whether the directions and adverse remarks made against P.W.30 and others are sustainable or not ?
16. Sri Nageswara Rao, learned counsel appearing for Accused Nos 1 and 4 and Sri Janaradhana Kurup, appearing for Accused Nos. A2, A3 and A6 have raised the following arguments:
(i) In this case, the cause of death is not properly proved, as the content of the postmortem certificate is not proved in accordance with the provisions of law.
(ii) There is irreconcilable contradiction between the medical evidence and ocular evidence. Hence the oral evidence of the witnesses supporting the prosecution case is to be rejected.
(iii) Prejudice is caused to the accused since no expert in forensic medicine was examined to prove the contents of post mortem certificate.
(iv) The oral evidence adduced by P.Ws. 3 to 6 cannot be relied on as they are child witnesses and they were tutored to give evidence against the appellants.
(v) Test Identification Parade conducted in these cases was in violation of all the guidelines and against the principles of natural justice. There was every opportunity to the witnesses to identify the accused at the time when they were produced before the committal court and also when they were produced before P.W.24 for identification. No precaution was taken by P.W.30 and P.W.24 to ensure that the witnesses do not see the accused before the conduct of the identification parade.
(vi) All the witnesses summoned were given enough opportunity to interact with each other and hence there was every chance of the witnesses to discuss with each other and take a decision. The Investigating Officer had interfered with the conduct of the Test Identification Parade.
(vii) The evidence of P.Ws. 3 to 6 is so inherently improbable and unbelievable that no prudent man can believe their evidence. P.Ws. 7 and 8 are chance witnesses and they were hired by the followers of B.J.P. to give false evidence against the accused. There was no proper identification of any of the accused in court.
(viii) The sentence imposed is disproportionate to the offence alleged.
17. The version attempted to be proved by the prosecution at the stage of evidence was as follows: Late Jayakrishnan Master was unmarried and he was a teacher . working in East Mokeri U.P.School. He was the Vice President of Bharatheeya Yuva Morcha. The members of the Communist Party of India (M) was afraid of the growing popularity of Jayakrishnan Master. So they decided to annihilate him. The police had information about the threat to the life of Jayakrishnan Master. Two armed Personal Security Officers were assigned to afford protection to the life of Jayakrishnan. P.W.9 was one among them. On the ill-fated day, Jayakrishnan Master came to the school as usual. At 10 a.m. he came to Class VIB, took attendance and thereafter started teaching Mathematics. He solved the homework given on the previous day in the blackboard placed on the south eastern corner of that class room. Thereafter he taught some new problems in Mathematics and gave some problems to be solved. He went to the rear side of the class room through the side of the girl students and reached the rear side of the boy students. He scolded one boy student for not solving the problem and then came to the rear side of the girl students. At that time, A1, A4 and A7 came on the western side of the hall and trespassed into class VA. From there, they entered into the Class VI-B through the gap between the wooden screen and western wall. A1 hit the Master with an iron rod on his head from behind. Jayakrishnan Master screamed "mother". The 1st accused again beat Jayakrishnan on his head. Jayakrishnan ran towards the front side of the class. A1, A4 and A7 chased him. Before that A2, A3 and A6 came on the eastern side of the class room and were waiting in Prabhavathy Teacher's property near to the eastern half wall of the hall. They also trespassed into Class VI-B by jumping over the half wall. All accused indiscriminately inflicted injuries on the person of Jayakrishnan Master who had fallen down and died at the spot. One of the hard board partition separating class VIB and class V A fell down. The students ran out of the class room. Some of them went to their houses and others went to the Headmistress' room.
18. According to the prosecution all along this time, the 5th accused was standing on a step placed in the pathway to Prabhavathy Teacher's house situated on the eastern side and he was guarding the scene with a country made bomb in his hand. After the incident, the accused left the School and went to the road lying on the western side of the School and went towards the junction.
Point No. (i):-
19. Now we shall consider whether Jayakrishnan died of the homicidal injuries sustained by him at about 10.40 a.m. on 1-12-1999. On getting the information of the incident over phone, P.W.29, the Circle Inspector of Police, Panoor came to the School in the police jeep. P.W.1, the teacher who was teaching in Standard VA which is situated on the southern side of Class VI-B wherein the incident took place was taken to the police station along with the teacher who was taking class in VII-B on the northern side in that jeep itself. P.W.1 gave Ext.P1 F.I.Statement at 11.15 a.m. before P.W.28, the Head Constable attached to Panoor Police Station who registered Ext.P1(a) F.I.R. P.W.29 conducted Ext.P3 inquest between 12 noon and 2.30 P.M. Thereafter the dead body was taken to General Hospital, Thalassery. Dr. T.C. Venugopal of that Hospital conducted autopsy on the body of deceased Jayakrishnan Master at 3.45 p.m. on 1-12-1999 and issued P24 postmortem certificate. Ext.P24 contains the following injuries:-
"Post-mortem appearances: Marks. (1) A black mole on the front upper part (R) thigh (2) a black mole on the left thigh 20 cm. below the inguinal region.
Body of an adult male lying on its back. Rigor mortis present on the upper and lower limbs. Multiple injuries, on the head and body noted. Intestines protruding out of the abdominal wound left eye globe cut and shrunken.
Injuries:
1) Incised wound 8x2 cm. bone deep spindle shaped placed obliquely across the midline on middle scalp.
2) Incised wound 15 cm. x 1.5 cm. extending from just to the right of midline to left, fracturing the parietal bone and exposing the dura.
3) Incised wound 2 cm. behind wound No. 1 on the left side of forehead starting from 5 cm. away from the midline 15x1xbone deep horizontally oblique cutting the left pinna on the upper part.
4) Incised wound just below wound No. 3 extending from 2 cm. above middle of left eyebrow 18x1x1cm. and cutting the left arch of zygoma, left pinna and extending posteriorly up to left mastoid bone.
5) Incised wound 22x1.5x2.cm in middle extending from the philtrum of nose up to the left ear lobe.
6) Incised wound obliquely placed extending left half to the left upper lip to the lower part of left side neck 20x2x2 cm, cutting the left mandible and neck muscles and veins.
7) Incised wound 1.5x5x3 cm obliquely horizontal on the left lower part of neck.
8) Incised wound on the lateral aspect of left shoulder 8x4x2 cm.--tailing present 12 cm. long.
9) Crescent shaped incised wound 5x2x 1 cm. over the tip of left shoulder, lateral aspect.
10) Incised wound 1 x2.5x0.5 cm. obliquely vertical on the front (L) upper arm.
11) Incised wound 2x0.5x0.75 cm. vertically oblique 15 cm. below the axilla on the left side of the chest.
12) Another obliquely vertical incised wound 3x0.5x0.75 cm. below and to the left of wound No. II.
13) Incised wound 3x 1.5x4 going inwards and medially with the hip masculature 3 cm. below the iliac crest on the outer part.
14) Incised wound 5x2.5x5 cm. going upwards into the subcutaneous space on the left lateral part of thigh 24 cm. below the iliac crest.
15) Incised wound 11x4x5 cm. vertically oblique on the lateral aspect of left leg upper part cutting the muscles 4 cm. below left knee.
16) Incised wound 5x3.5x2.5cm. tailing towards right over the anterior aspect of left thigh vertically oblique directed upwards and inwards 5 cm. below the inguinal ligament.
17) Incised wound 5x2cm. vertically oblique cutting the right tibia 3.5 cm. below the right patella.
18) Horizontally placed 10x1x0.5cm.on the right patella with skin flap attached at the lower part.
19) Incised wound 11x4x3.5 cm. cutting the bones and muscles obliquely vertical on the lower part of the right forearm.
20) Incised wound horizontally oblique 3x1.5 x 5cm. on the front of upper arm 3 cm. below the right shoulder tip.
21) Obliquely transverse incised wound 1.5x0.5x3cm. over the right side of anterior chest above the right nipple.
22) Horizontally oblique incised wound spindle shaped just above the right upper lip. 3.5x0.75 exposing the teeth with tailing towards right continuing with another incised wound 4x0.75 x 1 cm. below the right eye.
23) Horizontally placed incised wound 23x11cm. spindle shaped extending from middle 3 cm. above the umbilicus on the left side of the right flank with loops of intestine protruding out. Small and large intestine cut and cutting the peritoneum.
24) Incised wound 3x0.5x7cm. on left gluteal region horizontally oblique 5 cm. below the iliac crest.
25) Incised wound 3x0.5 penetrating into the abdominal cavity 3 cm. above left iliac crest horizontally oblique.
26) Incised wound 2.75 cm. x 0.5 cm. spindle shaped penetrating into abdominal cavity horizontally. Oblique 5 cm. above wound No. 5.
27) Incised wound 2.75x0.5 penetrating into the abdominal cavity horizontally oblique 5 cm. above wound No. 26.
28) Incised wound 2x1.5x1cm. vertically oblique on the left side back.
29) Incised wound vertically oblique 2x2.5x1cm.5cm. above wound No. 28.
30) Incised wound 2.75x0.5x1 cm. deep 3cm. away and parallel to wound No. 20.
31) Incised wound 2.75x0.5x1 cm. on the leftback vertically oblique 4cm. away from wound No. 28.
32) Incised wound 3x0.5x0.75 cm. vertically oblique 3 cm. away from wound No. 31.
33) Incised wound 13x5 cm. penetrating into chest horizontally oblique cut and end of wound 3 cm. below the lower tip of left shoulder blade and injuring the left lung.
34) Incised wound 4x2 cm. penetrating into the thoracic cavity on the left side horizontally oblique 3 cm. away from middle and 9 cm. below wound No. 33 injury the left lung.
35) Incised wound vertically oblique 2.5x5 cm. penetrating into the chest 1 cm. above wound No. 34.
36) Incised wound horizontally oblique 5 cm. away from midline on left 5 cm. above the last rib 3x0.5cm. penetrating into the lower part of left chest.
37) Incised wound 3x0.5x1cm. horizontally oblique placed across the midline on the back 5 cm. below shoulder blade.
38) Incised wound 3x1.5x3cm. horizontally oblique 3cm. right of the injury above, on the right shoulder blade.
39) A linear abrasion obliquely horizontal above the right shoulder blade below wound No. 38.
40) Incised wound 3.5x0.75x5 cm.long obliquely horizontal 20 cm. below the tip of right shoulder.
41) Incised wound 1.5x0.5x1 cm. vertically oblique 3 cm. above the right iliac crest.
42) Incised wound vertically oblique on the left side of scalp (black) 7x1 cm. cutting the occipital bone.
43) Horizontally oblique wound starting from the left to right 11x1.5 cm. cutting the occipital bone 1.5 cm. above wound No. 42.
44) Left eye globe cut and shrunken.
INTERNAL:
45) Left lung cut 1cm.x0.5x0.5 cm. on the posterior part horizontally oblique wound on the upper aspect of lower lobe. Left lung collapsed.
46) Another cut horizontally oblique 2x0.5x0.5 cm. on the lower part of the left lower lobe of lung.
47) 750ml. of blood in the thoracic cavity.
48) Stomach wall torn and cavity empty.
49) Abdominal cavity contain 1500 ml. of blood.
50) Bladder intact. Contained 50 ml of urine.
51) Upper pole of right kidney cut on the posterior aspect 1x0.75x0.5 cm. right kidney intact, pale.
52) Liver pale. No injuries.
53) Spleen pale. No injuries.
54) Heart, no injuries.
55) Extra-dural clots noted over the left parietal area of brain."
The doctor had opined that death of the deceased was due to shock and hemorrhage due to injuries to vital organs.
20. Even though the autopsy was conducted by Dr. T.C. Venugopal, Ext.P24 Post Mortem Certificate was not proved by him. At the time of trial, Sri T.C. Venugopal retired from Government Service, went to America and was residing there. The summons issued to him was returned unserved stating that he had left India. So the prosecution examined P.W.19, Dr. K.P. Narayanan, who was working as the Civil Surgeon in that hospital during the relevant time. P.W. 19 deposed that he was familiar with the handwriting and signature of Dr. T.C. Venugopal. He proved the same and Ext.P24 post mortem certificate was admitted in evidence without any objection.
21. It is true that P.W. 19 had not stated that the injuries noted in the post-mortem certificate were sufficient in the ordinary course of nature to cause death since no such question was put to him. The question arising for consideration is how far the contents of Ext.P24 certificate can be relied on. It is not disputed that Dr. Venugopalan conducted the post-mortem and issued Ext.P24 certificate in the discharge of his professional duty as he was the Civil Surgeon attached to General Hospital, Thalassery at the relevant time. The normal rule is that a post-mortem certificate being a document containing the previous statement of a Doctor who examined the dead body can be used only to corroborate the statement under Section 147 or to contradict the statement under Section 145 or to refresh his memory under Section 159 of the Evidence Act. But the provisions of Section 32(2) of the Evidence Act is an exception to this rule. In Kochu v. State (1979 KLT 650) this Court has held that if the Doctor who held autopsy is dead or is not available for examination, the certificate issued by him is relevant and admissible under Section 32(2) of the Evidence Act. It was held as follows:-
"The weight to be attached to such a report or its probative value depends upon the facts and circumstances of each case. The court can come to its independent conclusion on the cause of death, if there is independent evidence on record in support of it. Section 67 of the Evidence Act speaks of the mode of proof of a document. Under Section 67 if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. In this case, as already stated, prosecution was not able to procure the attendance of the doctor who held autopsy without unreasonable delay or expense. In such cases, a statement coming under S. 32(2) of the Evidence Act has to be proved by one of the various modes prescribed in Section 47 of the same Act".
In Ram Balak Singh v. State (AIR 1964 Patna 62) the Patna High Court found that if the Doctor who had performed the autopsy of the dead body was not available at the time of trial or he is abroad, the post mortem certificate prepared by him would be admissible in evidence if the handwriting and signature of the autopsy surgeon on the post mortem certificate are proved. In Prithi Chand v. State of Himachal Pradesh , the Apex Court held thus:-
"Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence. Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Therefore the medical certificate Ex.PE was clearly admissible in evidence".
22. In the case at hand, the certificate was admitted in evidence without any objection. No question was put to P.W.19 during cross examination regarding the content of Ext.P24. The entire cross examination of P.W.24 was confined to the psychiatric counselling which he held for the students of the School in connection with the incident. So the entire contents of the post mortem certificate is properly proved and can be relied on.
23. The Public Prosecutor did not ask any question to P.W.19 whether any of the injuries recorded in Ext.P24 was sufficient to cause death in the ordinary course. Where the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is not necessary even to have the post mortem conducted by a medical officer (Vide: paragraphs 42 and 320 of Kehar Singh v. State (Delhi Administration) . In a case where the injury intentionally inflicted was visibly a fatal injury not requiring any expert to say so, the Apex Court held that failure of the doctor to specifically state that the injury was sufficient in the ordinary course of nature to cause death was immaterial. (See Sannappa Ravappa Jadge v. State of Karnataka (1994 SCC [Cri.31167). In this connection it is to be noted that the victim sustained as many as 44 external injuries and 10 internal injuries. The first injury was across the midline on middle scalp and the second injury was extending from just to the right of midline to left fracturing the parietal bone and exposing the dura. There was an incised wound 23 x 11 cm. spindle shaped extending from middle 3 cm. above the umbilicus on the left side of the right flank with loops of intestine protruding out. Small and large intestine were cut. Peritoneum was also cut. The left lung was cut. Upper pole of right kidney was cut. There were extra dural clots noted over the left parietal area of brain. So a number of. vital organs sustained injuries. The Doctor had opined that death was due to shock and hemorrhage due to injuries to vital organs. Jayakrishnan died at the spot. In this connection, it is also to be noted that the appellants have no case that Jayakrishnan Master died because of any other reason. D.W.1 examined by the accused also had deposed that when he came to the school he saw Jayakrishnan Master lying in a pool of blood. D.W.2 a student of the same class gave positive evidence to the effect that on 1-12-1999, some assailants killed Jayakrishnan Master while he was inside the class. P.W.2 also gave evidence to that effect. The learned Sessions Judge deduced from the injuries that the injuries were sufficient to cause death in the ordinary course.
24. In Gurmej Singh v. State of Punjab , the Supreme Court held that the omission to elicit the opinion of the medical man would not render the direct testimony of the witnesses doubtful or weak.
25. In State of West Bengal v. Mir Mohammad Omar and Ors. etc.etc. , the Apex Court had considered the effect of omission on the part of the prosecution to put a question to the doctor as to what were the injuries which caused death. In that case also, the doctor who conducted post mortem noticed as many as 45 injuries. In the post mortem report the Doctor opined that the death was due to multiple injuries and injuries on vital organs. The trial court found that cause of death was not proved on the premise that the Public Prosecutor did not elicit from the Doctor as to whether the injuries were sufficient in the ordinary course of nature to cause death. The Apex Court held as follows:-
"No doubt it would have been of advantage to the Court if the Public Prosecutor had put the said question to the doctor when he was examined. But mere omission to put that question is not enough for the Court to reach a wrong conclusion. Though not an expert as P.W.30, the Sessions Judge himself would have been an experienced judicial officer. Looking at the injuries he himself could have deduced whether those injuries were sufficient in the ordinary course of nature to cause death. No sensible man with some idea regarding the features of homicidal cases would come to a different conclusion from the injuries indicated above, the details of which have been stated by the doctor (PW-30) in his evidence."
So the omission on the part of the Public Prosecutor to elicit from P.W. 19 that the death was due to the injuries sustained by the deceased in the incident is immaterial.
26. The learned counsel appearing for the appellants in both the appeals contended that there is irreconcilable difference between the medical evidence and ocular evidence in this case and as such the prosecution version has to be rejected. They relied on the decisions reported in Devatha Venkataswamy v. Public Prosecutor and Jasbir v. State of Haryana . It is argued that the only overt act against the first accused in this case was that he beat the deceased with an iron rod, but the doctor had not noted any lacerated injury on the head of the deceased. It is argued that the evidence of P.Ws. 3 to 6 are categoric on this point. All of them deposed that the 1st accused beat the deceased with an iron rod on his head. According to the appellants, since there is not even a single lacerated injury on the body of the deceased, the evidence of P.Ws. 3 to 6 that the 1st accused beat the deceased on his head with an iron rod is false. In Ext.P24 the doctor who conducted the autopsy, had noted 4 injuries on the head. Injury Nos. 1 and 2 were noted as incised wounds. But that alone is not a ground to discard the evidence in this case.
27. Medical Jurisprudence & Toxicology written by Lyons (11th Edition) Page 452 deals with lacerated wounds. It is stated that split laceration is a type of laceration. In page 843 of the same book it is stated as follows:
"Lacerated wounds are commoner on regions where unyielding bone closely underlies the surface. The tissues that are powerfully compressed between the bone and the instrument or the ground, as the case may be, give way along the line of greatest pressure. The resulting wound may, to cursory inspection, present the appearance of an incised wound."
HWV Cox in his book Medical Jurisprudence and Toxicology (Seventh Edition) also deals with lacerated wounds. It is stated that there are four types of lacerated wounds. The first is split laceration. In page 395 it is stated as follows:-
"Split Laceration: Splitting occurs by crushing the skin between two hard objects. They are also called incised looking wounds. When there is application of blunt force on areas where the skin is closely applied to the bone and sub-cutaneous tissue is scanty, the wounds are produced by linear splitting of the skin. The common areas are scalp, eyebrows and hibones. They can be differentiated by examining b magnifying glass and in these cases roots of hair are crushed."
Chapter Five of the same book deals with Regional Injury. In page No. 423, it is stated as follows:-
"Blunt injuries to the scalp are classically confused with knife slashes, due to the splitting of the tissues because of the firm underlying cranial bones beneath the aponeurosis."
In Medical Jurisprudence and Toxicology, by Dr. Modi, (22nd Edition) Chapter XV deals with regional injuries. In Page No. 404, it is stated as follows:-
"A scalp wound by a blunt weapon may resemble an incised wound, hence the edges and ends of the wound must be carefully seen to make out a torn edge from a cut and also to distinguish a crushed hair bulb from one cut or torn."
In Suresh v. State of U.P. , the Apex Court has considered this aspect and held as follows:-
"There is one more argument which requires to be dealt with, namely that two different weapons and the same two weapons were used against both Geeta and the appellant. We are not quite sure whether Geeta had received an incised injury because, the injuries which were found on her forehead can give the appearance of incised injuries, if caused by an iron rod. The skin just above a hard surface can break by a severe blow and give the appearance of an incised injury."
The principle laid down in Suresh 's Case was followed in State of Rajasthan v. Laxman Singh & Others (2002)10 SCC (Cri) 65, wherein the Apex Court has considered this point and held as follows :-
"From the discussion in the judgment of the High Court, it appears that the Court based its finding of acquittal of the charge under Section 302 IPC mainly on the assumption that the external injuries found on the parietal region of Bachhu Singh could not have been caused by blunt weapons like iron rod and tyre lever. No reason has been given by the High Court for not accepting the evidence of the doctor. Dr. Bansal stated in his evidence that his opinion was based that incised wounds may also be caused by blunt weapons", The question again came up for consideration before the Supreme Court in State of U.P. v. Premi and it was held as follows:-
"Learned counsel for the respondents has placed reliance on Modi's Medical Jurisprudence and Toxicology (22nd Edn.) in support of the contention that the clean-cut edges of the wound and the wound being gaping, as deposed by P.W.8, shows that it was an incised wound. According to Modi, the edges of a wound made by a heavy-cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light-cutting weapon, such as a knife, razor etc. and may show signs of contusion. However, while dealing with an incised-looking wound, according to Modi, occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow etc. Mr. Sinha, however, submits that if that had been so, the edges of the wound would have been irregular and hair bulbs would have been found crushed when the injuries were examined by a magnifying glass by P.W.8. The learned counsel, however, overlooks the fact that the main evidence of all the doctors is that the injuries in question could be inflicted with the butt of the revolver and it would look like an incised wound having been inflicted with a sharp-edged weapon."
28. So there is no merit in the argument advanced by the counsel for the appellants in both the appeals that in view of the medical evidence that all injuries found on the body of Jayakrishnan were incised injuries, the oral evidence to the effect that the first accused beat the deceased with an iron rod is to be rejected in toto.
29. In Chimanbhai Ukabhai v. State of Gujarat , it was held that the very fact that there is some inconsistency between the testimony of eyewitnesses and medical evidence cannot be taken as a ground to discard the testimony of eye witnesses.
30. In Kehar Singh v. State (Delhi Admn) it was held by the Supreme Court that merely because the medical evidence is not in agreement with the ocular evidence, that is not a reason to reject the ocular evidence which is otherwise trustworthy and acceptable. In Shamsher Singh v. State of Haryana the Apex Court has held that when there is conflict between the medical evidence and the ocular evidence, the prosecution case, could not be discarded merely because of such conflict. In Krishnan v. State the Supreme Court has held that when ocular evidence is cogent, credible and trustworthy, minor variance, if any, with the medical evidence is not of any consequence. In Surinder Singh v. State of U.P. the Apex Court has held that when ocular evidence is cogent, credible and trustworthy, the medical opinion pointing an alternate possibility is not to be accepted as conclusive. Even assuming that there is some variance between the medical evidence and ocular evidence, the ocular evidence cannot be rejected only on that ground. In this case the doctor had noted fracture of parietal bone exposing dura. Of the 22 bones forming human skull, two are parietal bones which are situated on the top and sides. Fracture of the parietal bone points out the use of force using a blunt weapon. If a cutting weapon was used, it would have caused a clear cut injury to parietal bones and to the duramater which is the outer most membrane covering the brain. So, there is no variance between medical evidence and ocular evidence in this case.
31. The learned counsel appearing for the accused has argued that prejudice was caused to the accused on account of the non-examination of the doctor who conducted autopsy or an expert in Forensic medicines. It is argued that the Public Prosecutor had filed a petition stating that the Doctor who conducted the post-mortem of Jayakrishnan Master could not be examined since he had left India and settled in U.S.A. His attendance could riot be procured without an amount of delay or expense. So, the Prosecutor prayed that permission may be granted to examine Dr. Gopalakrishna Pillai, Professor and Head of the Department of Forensic Science, Pariyaram Medical College, as an expert to give opinion on the material aspect of the post-mortem certificate. It is argued that in the petition it was also stated that on account of the non-availability of Dr. Venugopalan, the option left to the prosecution was to examine a doctor who was present at Thalassery Government Hospital on 1-12-1999 to prove the signature and handwriting of Dr. T.C. Venugoapalan who conducted the autopsy and issued the postmortem certificate. It was further stated that Dr. K.P.B. Narayanan was a colleague of Dr. T.C. Venugopalan at Thalassery Government Hospital on 1-12-1999 and he can identify the signature in the post-mortem certificate. It was also stated that Dr. K.P.B. Narayanan had not conducted the post-mortem and he cannot give the details regarding the injuries noted by Dr. T.C. Venugopalan in the certificate and Dr. K.P.B. Narayanan was not an expert in surgery.
32. The learned counsel for the appellants has argued that even though such a petition was presented by the Prosecutor, he did not examine Dr. Gopalakrishna Pillai but examined Dr. K.P.B. Narayanan alone. It is contended that because of the non-examination of Dr .Gopalakrishna Pillai, the accused lost a valuable opportunity to bring out various matters which would disprove the prosecution case. It is also contended that such a request was made by the Prosecutor with a mala fide intention and hence prejudice was caused to the accused in this case. The appellants in Crl.A.No. 1685 of 2003 have filed Crl.M.A.No. 10746 of 2005 for the purpose of receiving additional evidence. They have produced a photo copy of the petition stated to have been filed by the Prosecutor.
33. In the petition filed by the appellants itself it is admitted that the court records do not contain such a petition and hence the appellants are producing a copy of the petition as additional evidence. In view of the fact that no such petition was forwarded to this Court, we had called for a report from the learned Sessions Judge, Thalassery. It was reported by the learned Sessions Judge, Thalassery that he had verified the papers kept back and also the C.F.Register of the Court to find out whether such a petition was filed. It is reported that a verification of the C.F.Register and the Petitions Register maintained in the Court for the period from 2.7.2003, the date on which trial started till 26.8.2003, the date on which the judgment was pronounced shows that no petition under Section 311 Cr.P.C. was filed by the Prosecutor in this case.
34. There is yet another aspect. A perusal of the photocopy of the document produced before this Court shows that that is not a copy of copy, but the copy of the original itself. The document contains the signature of the Public Prosecutor. What exactly was the reason which prompted the Prosecutor to prepare such a petition and give the original itself to the accused without filing the same in court is not explained. But it is not necessary to conduct an enquiry into that matter. When Crl.M.A.No. 10746 of 2005 for admitting additional evidence came up for hearing, we informed the counsel for the appellants that the Court itself will make available an expert in Forensic Medicines before this Court so that the appellants can examine him to elicit any fact which they think favourable to them. But the appellants submitted that they do not want to examine an expert at this stage and withdrew the petition filed for admitting additional evidence. As we have already stated, not even a single question was put to P.W.19 who proved the post mortem certificate. No attempt was made to examine any expert by the accused. Before this Court also, there was no prayer to examine any expert. According to the appellants, the very purpose of filing the petition to admit additional document is to expose the mala fide characteristics of the conduct of the prosecution.
35. The mere argument that the accused was prejudiced is not enough. The accused have a duty to show in what manner they were prejudiced. In Moseb Kaka Chowdhury v. State of West Bengal the Supreme Court observed that the question of prejudice is ultimately one of inference from all the facts and circumstances of each case. In Kamakhya Prasad Agarwalla v. The State (AIR 1957 Assam 39), a Division Bench of the Assam High Court following the principle in Moseb Kaka's Chowdhury's Case held as follows:-
"With a view to understand whether there was prejudice, because of an inaccuracy in the framing of the charge, the Court should examine the circumstances of the case. To say that there was prejudice, is not enough, it should further be pointed out as to how or in what manner the accused was prejudiced. The question of prejudice is ultimately one of inference from all the facts and circumstances of each case."
So it is very clear that the appellants failed to establish that any prejudice was caused to them due to the non-examination of an expert in Forensic Medicine in this case more so, in the light of the withdrawal of Crl .M.A.No. 10746 of 2005.
36. The oral evidence of P.W.2, a shop keeper and P.W.29, the Circle Inspector who conducted the inquest and the medical evidence adduced in this case, proves beyond any reasonable doubt that Jayakrishnan Master sustained injuries at 10-40 a.m. on 1-12-1999 while he was taking class in Standard VIB in Mokeri East U. P. School and he died at the spot as a result of those injuries.
Points (ii), (iv), (v) & (vi)
37. The next question arising for consideration is that how far the finding of the Court below that the appellants committed murder of Jayakrishnan Master in the manner alleged by the prosecution is correct. As we have already stated, the learned Sessions Judge sentenced all the appellants to death after having found them guilty of the offence punishable under Section 302 of Indian Penal Code. In view of the capital sentence imposed on them, the learned Sessions Judge had referred the matter to this Court under Section 366 of the Code of Criminal Procedure for confirmation. In addition to considering the appeals filed by the convicted accused, this Court is also called upon to answer the reference. The duty of the High Court while answering a Death Sentence Reference is considered by the apex Court in State of Tamil Nadu v. Rajendran . It was held as follows:-
" When a reference is made to the High Court under Section 366 of Cr.P.C. by the Sessions Judge on passing a sentence of death, the High Court has to satisfy itself whether a case beyond reasonable doubt has been made out against the accused for/infliction of the extreme penalty of death. The proceedings before the High Court in such a case require a reappraisal and reassessment of the entire facts and law so as to come to its independent conclusion but while so doing, the High Court cannot also totally overlook the conclusion arrived at by the Sessions Judge. In performing its duty, the High Court is of necessity bound to consider the merits of the case itself and has to examine the entire evidence on record".
The Senior Counsel appearing for the appellant in both appeals cited a number of decisions to remind us as to how the evidence adduced in a case of this nature has to be appreciated. Sri. Janardhana Kurup, learned Senior Counsel appearing for the appellant cited a decision of the apex Court reported in Ashish Batham v. State of Madhya Pradesh , in which it was held as follows:-
"Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record".
The counsel also relied on the decisions reported in Himachal Pradesh Administration v. Om Prakash , Dilavar Hussain v. State of Gujarat , State of U.P. v. Noorie , Padam Singh v. State of U.P. , Ahmed Bin Salam v. State of Andhra Pradesh and Harchand Singh v. State of Haryana . In Om Prakash's case (supra), it was held that there is no distinction between the judgments of acquittal and conviction in appreciating the evidence. In Dilavar Hussains' case (supra), it was held that drawing of conclusion by picking up isolated sentence of witness without adverting to the statement as a whole is contrary to the rule of appreciation of evidence. It was also held that heinousness of crime or cruelty in its execution are not relevant in finding the guilt of the accused. In Noorie's case (supra), it was held that while assessing and evaluating the evidence of eye witnesses the Court must adhere to two principles, namely, whether in the circumstances of the case it was possible for the eye witness to be present at the, scene and whether there is anything inherently improbable or unreliable in the same. In Padam Singh's case (supra), it was held that it is the duty of the appellate Court to look into the evidence adduced in the case and arrive at, an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution case be said to have been proved beyond reasonable doubt on the said evidence. In Harchand Singh's case (supra), the apex Court held that if in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation.
38. Learned Senior Counsel appearing for the appellants in both appeals have argued that the Court below convicted accused 1 to 4 and 6 based on surmises and conjectures and not based on any legal evidence. It is argued that the evidence of the eye witnesses relied on by the prosecution is inherently improbable and unreliable. It is argued that there is no proper identification of the accused and the prosecution suppressed material evidence from Court by not examining material witnesses. It is argued that the learned Sessions Judge had found that investigation of the case was illegal and irregular, but instead of giving the benefit of such illegalities to the accused, had convicted them and imposed the capital sentence.
39. The Director General of Prosecutions has argued that the Court below meticulously considered the evidence and came to the right conclusion.
(Editor's Note : Paras 40 to 49 omitted being appreciation of facts)
50. We shall consider the evidence of D.Ws. 1 and 2 also along with the evidence of P.Ws. 3 to 8. It is well settled position of law that the defence witnesses are entitled to equal respect and treatment as that of prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of prosecution as held in Munshi Prasad v. State of Bihar .
51. D.W.1 is a person running a tailoring shop adjacent to the building in which the incident took place. He deposed that on hearing the hue and cry, he came to the door of the School and looked inside. At that time, no students were inside the class and the students ran away to the office room. He deposed that he saw Jayakrishnan Master lying in a pool of blood and 5-6 persons jumping over the half wall of the class room and running away through the property of Prabhavathy Teacher. He further deposed that he came out and closed his shop. When he was closing down the shop a jeep came and stopped in front of the School. 3 or 4 persons came out of the jeep and went to the School. They came back immediately and went to Parammel Junction in the very same jeep, He was questioned by the police and he told the facts stated above to the police. During cross examination, he admitted that he is a member of All Kerala Tailors' Association, but he does not know who are the President, Secretary or District President of that organisation. He deposed that he does not know whether there is a Welfare Scheme introduced for the Tailors. He denied the suggestion that he is an active member of the Communist Party (Marxist).
52. D.W.2 Rasna was aged 15 on the date of her examination. She was studying in Class VIB on the date of incident. She deposed that on 1-12-1999, some assailants came and hacked Jayakrishnan Master to death. She deposed that the incident took place at 10.30 a.m. She deposed that few persons entered into the class room from the front side and then she heard a cry of the Master. She had not seen anybody attacking Jayakrishnan Master as she was studying. She further deposed that she went out of the class room and went to the office room. She told the Headmistress that few persons attacked Jayakrishnan Master. She further deposed that thereafter she went back to the class room, took her bag and went home. She further deposed that two weeks after the incident, a counselling was conducted at the E.M.S. Cultural Centre situated near the School. She attended the same. She deposed that her mother took her for the counselling and the Doctor asked her whether she remembers anything about the incident and she replied that she does not remember anything about the incident. During cross examination, she deposed that Jayakrishnan Master yelled "mother" and on hearing that yelling, she ran outside and straightaway went to the office room. She denied the suggestion that her father and mother are active workers of C.P.I.(M).
53. The evidence of P.W.15, the Scientific Assistant who prepared Exts.P16 and P17 reports is also relevant. P.W.15 deposed that on 16-12-1999 he visited the pathway near the class room and found cement plaster containing blood stains. Ext.P17 is the relevant report. The oral evidence of P.W.15 that he noticed blood stains in the pathway was not challenged during cross examination. Ext.P17 report also contains a statement to the effect that blood smear and drops of blood were seen on the footpath plastered with cement and on the side wall of the pathway. Ext.P17 report was also marked without any objection.
54. The evidence of the three students of Class VIB wherein the incident took place and also the evidence of P.W.5 a student of Class VA gives the details as to how the incident took place. The evidence of P.Ws. 3 to 6 shows that the assailants came from two directions. Three of them came from the east and three entered into Class VA through the steps on the western side and then entered into Class VIB. The evidence also shows that the first accused hit Jayakrishnan Master on his head with an iron rod. Jayakrishnan Master ran towards the front of the class room. A4 and A7 who entered into the class room through western side chased him and at that point of time, A2, A3 and A6, who were standing in Prabhavathy Teacher's property jumped over the half wall, entered into Class VI-B and joined A1, A4 and A7 in attacking the deceased. It is true that the details of the individual overt acts except that of the first accused were not spoken to by any of the witnesses. But it is to be noted that the deceased had as many as 44 external injuries and hence it is not possible for the witnesses to give graphic details as to which injury was inflicted by which accused using what kind of weapon.
55. Sri. Nageswara Rao, learned Senior Counsel appearing for A1 and A4 in Crl.Appeal No. 1599 of 2003, has argued that P.Ws. 3 to 6 were aged only 11 years at the time of the incident and they were child witnesses when they witnessed the incident. It is argued that while their presence in or about the scene cannot be disputed, the court shall not lose sight of the fact that they are child witnesses. It is argued that when children are witnesses in criminal matters, there are many factors which affect the reliability of their testimony. It is also argued that formerly competent witnesses were considered to be those who have the capacity to tell the truth and to understand their duty to do so and under the common law only such competent witnesses could testify before court. It is argued that a child does not have a memory sufficient to retain an independent recollection of the event. The learned counsel relied on an Article titled as Psychological Evaluation of Child Witnesses by Brett C. Trowbridge, PH.D., J.D. regarding the guidelines to be followed while evaluating the evidence of a child witness.
56. Learned counsel appearing for the appellants in both the appeals relied on the decision reported in Suresh v. State of U.P in which it was held as follows:-
"Children, in the first place mix up what they see and what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend credence and consistency to their disjoined thoughts which tend to stray".
They also relied on the decision reported in State of U.P. v. Noorie (Smt) Alias Noor Jahan and Ors. , Himachal Pradesh Administration v. Shri Om Prakash to argue that the court must carefully scrutinise to see whether there is anything inherently improbable or unreliable in the testimony of child witnesses. It is argued that P.Ws. 3 and 4 were not able to identify A! in the Test Identification Parade conducted. It is also argued that the three witnesses were not able to identify A6 who took part in the First Test Identification Parade as one of the non suspects. It is argued that during the second Identification Parade also P.Ws. 3 to 6 were not able to identify A2 to A6 correctly. It is argued that P.Ws. 3 to 6 gave the name of A1 because they were tutored to say so by showing his photograph published in Ext.D15 newspaper, but in spite of that fact, P.Ws 3 to 6 were not able to identify him in the Test Identification Parade. It is argued that the evidence of P.Ws. 3 to '6 cannot be relied on for any purpose and is to be discarded.
57. In State of U.P. v. Ashok Dixit it was held that evidence of a child witness must be evaluated more carefully and with circumspection as the child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. It was also held that the evidence of the child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law.
58. In Suryanarayana v. State of Karnataka the Supreme Court held that testimony of a child witness should not be rejected only on the ground of the witness being of tender age. It was also held that the discrepancies in the testimony, if not in material particulars, would lend credence to it. It was further held that if the child withstands the cross-examination and if the testimony "inspires confidence so as to rule out possibility of tutoring, it can be relied upon.
59. In State of Maharashtra v. Bharat Fakir Dhiwar (2002 SCC (Cri) 217), the Apex Court held that where the trial court found testimony of a child witness to be reliable and such witness stood the test of searching cross examination, the evidence can be relied on. In Ratansinh Dalsukkhbhai Nayak v. State of Gujarat (2004 (SCC) Crl. 7), the Apex Court held that the evidence of a child witness can be relied on if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same,
60. We had extracted the evidence of P.Ws. 3 to 6 in extenso to show that we have carefully analysed and scrutinised their evidence. They were able to withstand the searching cross examination of the counsel for the accused. In fact wrong dates were suggested to some of them regarding the date of their questioning and also the dates on which test identification parades were conducted. In this connection it is very pertinent to note that D.W.2 was also a student of Class V-B. All the infirmities projected by the counsel for the appellants against P.Ws. 3 to 6 are equally applicable to D.W.2 also. But they want to rely on the evidence of D.W.2 to exonerate the accused. That fact alone is sufficient to hold that P.Ws. 3 to 6 are competent witnesses. P.Ws. 3 to 6 gave rational, cogent and convincing answers to the questions put to them. The trial Judge who had the unique advantage of seeing the witnesses and evaluating their demeanour and credibility, has chosen to accept the testimony of those students. We see no reason to suspect the testimonial competence or fidelity of those witnesses.
61. Now we shall consider the evidentiary value of the Test Identification Parade conducted in this case. The learned counsel appearing for the appellants have strenuously argued before us that the learned Sessions Judge himself found that there were serious infirmities in holding the Test Identification Parade and he had not placed any reliance on that Test Identification Parade. It is argued that even in that faulty and illegal Test Identification Parade the witnesses were unable to identify most of the accused and as such the identification of the accused made by the child witnesses in Court after the lapse of four years from the date of occurrence is absolutely useless and the accused are entitled to an acquittal on that ground alone.
62. The learned Director General of Prosecutions has argued that the criticisms levelled by the learned Sessions Judge against the Test Identification Parade conducted in this case is not based on any materials and hence not correct. It is argued that the finding of the learned Sessions Judge that there was inordinate delay in conducting the identification parade is not justified. It is argued that the view expressed by the learned Sessions Judge that the Investigating Officer intermeddled in holding the identification parade is not based on any evidence.
63. The learned Senior Counsel appearing in both the appeals relied on the decision reported in Mohd. Nairn Siddiqui v. Sultana Khatoon and argued that the delay in conducting the identification parade made the identification doubtful. They also relied on the decision reported in State of A.R v. M.V. Ramana Reddy and argued that if there is unexplained delay in conducting the Test Identification Parade, the evidence of prosecution regarding identity of accused is not reliable. They also relying on the decisions reported in Bollavaram P.N. Reddy v. State of A.R have argued that where a witness is stranger to the accused and he identifies the accused person before the Court for the first time, the Court will not accept the identification as conclusive. They also relied on the decision reported in Rajesh Govind Jagesha v. State of Maharashtra to argue that the unexplained delay of five weeks in conducting the Test Identification Parade was a serious matter and the accused are entitled to the benefit of doubt. It is also argued that where the accused are not known to the witnesses, it is obligatory on the part of prosecution to conduct Test Identification Parade and also it is the duty of the prosecution to establish that the test identification was conducted properly. It is argued that the accused has no obligation to prove the contrary. In Satrughana v. State of Orissa (1995 Supp [4] SCC 448) it was held that unexplained delay in holding the test identification parade adversely affects the value of evidence of identification. It was held that the delay of 1 1/2 months in conducting the identification parade after the expiry of the maximum admissible period of remand is to be viewed seriously and the accused cannot be convicted exclusively relying on the said identification. They also relied on the decision reported in Manzoor v. State of U.P. to argue that identification of the accused by one witness in the Test Identification Parade is not sufficient to convict the accused. The learned Senior Counsel appearing for the appellants in both the appeals relied on the decision in Khan Singh v. State (1997 Cri.L.J.2305) in which a Division Bench of the Allahabad High Court found that in the absence of link evidence to show that accused was not shown to any witness between the time of arrest and time of lodging at jail, the conviction of the accused only on the basis of identification by witnesses is not proper.
64. In Girija Shankar Misra v. State of U.P. (AIR 1983 SC 2618), it was held that the Test Identification Parade is only a step in investigation, but it is the identification in the Court that is evidence. In Ayyub v. State ((2002) 3 SCC 510) and Malkansingh v. State of M.P. it was held that substantive evidence of a witness is his evidence in Court and the Test Identification Parade only provides corroborative evidence and not substantive evidence. In Jadunath Singh v. State , it was held that failure to hold Test Identification Parade is not fatal in all cases. In Chandran and Anr. v. State of Kerala (1986 Cri.L.J.1865) and Simon and others v. State of Karnataka also the Apex Court found that the failure to hold Test Identification Parade is not fatal in all cases. In Sk. Hasib v. State of Bihar , there was a delay of three months in conducting the Test Identification Parade. The Court held that it was not fatal. In Anil Kumar v. State of U.P. , there was a delay of 47 days in conducting the Test Identification Parade after the arrest of the accused. In Pramod Mandal v. State of Kerala (2005 SCC Cri.75) it was held that delay of one month in conducting the Test Identification Parade from the date of arrest is not fatal. In Abdul Waheed Khan v. State of A.P. the apex Court held that if the delay in holding the Test Identification Parade is explained, it is not fatal. In Ravinder Singh v. State of Maharashtra , there was a delay of two months in conducting the Test Identification Parade. The Supreme Court found that delay of two months in conducting the Test Identification Parade is not fatal. So, the mere fact that there is some delay in conducting the Test Identification Parade alone is not a ground to reject the same.
65. It is well settled position of law that the evidence given by the witnesses before Court is substantive evidence. It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered. If the accused persons are got identified by the witnesses soon after their arrest and such identification does not suffer from any infirmity, that circumstance lends corroboration to the evidence given by the witness before Court. The Test Identification Parade is not a magisterial act. It is only the part of the investigation. The purpose of the identification parade is to test the veracity of the witness who tries to identify the accused or one of the participants in a crime. The Test Identification Parades are conducted to satisfy the investigating authorities that certain person, not previously known to the witnesses, was involved in the commission of the crime. It is also designed to furnish evidence to corroborate the testimony which the witness concerned tenders before the Court. It is not a substantive evidence. A test identification evidence is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witness in Court regarding identification of the accused as the doer of the criminal act.
66. Though identification parade is part of investigation, it should be held not by the police, but by a Judicial Magistrate or other independent agency. It should be conducted as soon as possible after the arrest of the accused. Identification parades should be held under conditions most conducive to their being fair tests for the elucidation of the truth. The following are some of the safeguards to be taken while conducting Test Identification Parade:
(1) The Test Identification Parade shall be held without undue delay when the impressions are fresh and other influences are less likely to have operated. Every effort shall be made to conduct the Test Identification Parade before the expiry of the 1st remand period and before he is released on bail.
(ii) The witness shall be given an opportunity to see the accused or to acquaint himself with his features with the aid of photograph, sketches, description or the like.
(iii) The investigator shall take precaution to see that the accused is not paraded or exhibited before the public so that any news photographer can take photo of the accused along with the incriminating objects and publish the same in newspaper.
(iv) The accused shall be mixed with persons of the same race, culture, age, height, position in life so that he is not easily picked out by reason of any of the aforementioned characteristics.
(v) The accused shall be allowed to select his own positions in the line.
(vi) The distinguishing marks of the accused, if any, shall be concealed.
(vii) The identifying witnesses shall not be permitted to communicate with others who are yet to identify while they are leaving after the parade.
(viii) The parade shall be held free from the influence of the police or the prosecuting agency.
(ix) It shall not be conducted by the police officials, but by Judicial Magistrate or other independent agency.
67. The next question arising for consideration is where should the identification parade is to be conducted. In the case at hand, the identification parade was conducted at the Court. It is not at all advisable to conduct the Test Identification Parade in the Court. Such a parade is to be conducted in a separate place within the jail premises. If the accused are taken somewhere else, the possibility of their being pointed out by interested persons cannot be excluded. In Ram Charan Bhudiram Gupta v. State of Maharashtra (1995 Cr.L.J. 4048), it was held that the identification proceedings should be held in jail, rather than at the police station which is strongly deprecated. The advantage of conducting identification parade in the jail premises are that a number of persons will be available for being mixed up with the person to be identified and the jail staff would be available for help and assistance for the holding of such identification parade. The police should not have any direct part in the Test Identification Parade. In Ramkishan Mithanlal Sharma v. State of Bombay it was held by the Supreme Court that the police after arranging for the identification parade, should completely obliterate themselves from the identification proceedings. "Obliteration" would only mean that the police should keep themselves out of view during identification proceedings. If a suspect is to be identified in an identification parade, the most elementary precaution that should be taken is that persons similar in appearance, height, age, etc. to the accused should be made to stand as dummies in that parade. If the suspect is having any distinct mark, efforts shall be made to conceal the same. If the suspect is a person having beard, there should also be non-suspects with beards. Care should also be taken to see that the appearance of the accused on the date of Test Identification Parade is the same as on the date of incident. If the accused was having beard on the date of the incident, on the date of Test Identification Parade also he must put up for identification with beard. In 1976 KLT SN 25 (Case No. 57) a Division Bench of this Court considered the precautions to be taken by the Magistrate while conducting the Test Identification Parade. It was held as follows:-
"From the identification parade conducted in this case, two serious omissions on the part of the Magistrate that we see are: (1) that she did not question the witnesses as to whether the non-suspects brought were previously known to them and (2) about the number of persons taken for mixing up with the suspects. The safeguards that are to be taken by the Magistrate are, that wherever possible privacy should be secured from the parade, names of suspects and non-suspects should be recorded, police officers should be excluded, the witnesses summoned for the parade should be kept out of the view of the parade, each witness after the parade should be segregated from others, the order in which the suspects have been placed should be changed for each parade, and that no distinguishing mark or feature should be given to the suspect to make identification easy. It is also desirable to mix the suspects separately for identification with as much large a number of innocent men as possible of the same size, height and features, in any case not less than 9 or 10. It would have been desirable if the Magistrate had recorded in the proceedings itself that she had ascertained from the witnesses whether the non-suspects were known to them previously. It would also have been desirable if the Magistrate had secured at least 54 persons for the parade, 9 persons for each witness when each suspect had to be identified. If this was done, the attack against the identification parade could have been avoided. However we are not satisfied that these omissions would render the identification parade unacceptable. This can be done only if we reject the evidence of the Magistrate. We have gone through the evidence carefully. The Magistrate has deposed that she was satisfied that none of the witnesses knew the non-suspects beforehand. She has also deposed that all necessary safeguards were taken to prevent easy identification by the witnesses. Under these circumstances, the identification done by P.Ws. 1 to 5 at the identification parade has to be accepted in corroboration of the evidence of P.Ws. 1 to 5".
In 1989(2) KLT SN 2 (Case No. 3) a Division Bench of this Court held as follows:-
"Every care has to be taken by the magistrate in arranging test identification parade. He must ensure that the witnesses do not get an opportunity to see the accused. He must ensure the total absence of any situation where witnesses could be prompted by anyone by word, gesture or otherwise to identify the accused. Suspects must be mixed up among adequate number of non-suspects who must be more or less similar in appearance to that of the suspect and must be dressed more or less similarly. In other words the exercise must be free from unfairness. Nothing should be done which would facilitate a false witness from making a correct identification. Identification parade must be arranged at the earliest possible opportunity so as to inspire confidence in the court. The value of test identification evidence is determined by the effectiveness of precautions taken, the expedition in conducting it and the attendant circumstances.
This is not to say that test identification parade is the only type of corroborative evidence which can be tendered to confirm the evidence of a witness regarding identification. Identity can be fixed by circumstantial evidence or other circumstances. Absence of test identification parade cannot be regarded as fatal in all cases. Assurance could be available from other sources or circumstances. There is no principle of law that after a lapse of period witnesses in no case would be able to identify a person whom they had seen for the first time earlier. Witnesses might have had a fair opportunity of seeing and noting his features and appearance before he was brought for identification. There might have been something in the context, manner and the circumstances of the meeting which would render it easy for the appearance of the accused to fix itself in the memory of the witness; something might have taken place shortly thereafter which would have enabled the witness to recollect the prior meeting of the person concerned. Presence of these features may also lend assurance to the court in acting on the identification made in court by a witness even in the absence of test identification parade.
xxx xxx xxx "xxx In the case reported in Chander Singh v. State of U.P. where the accused had brown eyes and there was no evidence that the non-suspects among whom the accused was mixed up had brown eyes the court did not act on the result of test identification. In the decision in Wakil Singh v. State of Bihar where the accused had small pox marks and there was no evidence that non-suspects among whom he was mixed up had similar marks and there was no attempt to conceal the small pox marks on the face of the accused, the court did not act on the test identification evidence. See also Ganesh Bhagvati Pandian v. State of Maharashtra (1985.L.J. 191) and Harishankar v. State (1985 Crl.L.J.1700)".
In Mohanan Nair v. State of Kerala (1989 Crl.L.J. 2106), it was held as follows:-
"It may be always safer to have more number of non-suspects of identical description mixed up with the suspects to the extent possible in order to avoid mistakes and frauds. It may be advisable to have similar persons. If a suspect is having any prominent or noteworthy marks, on the basis of which he could be identified by a verbal description even by a person who has not seen him earlier, it may be desirable to cover those marks by slips of paper without detriment to himself being recognised by other general features. In such a case, it may also be desirable to have non suspects also with identical slips of paper so that by the slips of paper, identification is not made possible. It may not be proper to accept the identification of a witness who makes many mistakes. All of these guidelines are subject to the satisfaction of the court on the facts of each case."
68. Though no statutory rules are prescribed, some useful guidelines were issued to the Magistrates in the Manual of Instructions for the Guidance of Magistrates in the Madras State, issued by the High Court of Judicature at Madras and reprinted in Kerala with the permission of the High Court of Madras. Rule 22 of the Manual of Instructions for the Guidance of Magistrates reads as follows:
"22. Identification parades:
xxx xxx xxx xxx Frequently, the police requisition the services of a Magistrate, who may eventually have to try the case as the Magistrate having territorial jurisdiction, to conduct the identification parade, prior to the rommencement of the trial or enquiry. Thereafter, the Magistrate who held the enquiry is cited as a witness. That tends to dislocate the work in courts all round. The police have been instructed to submit such requisitions to the Subdivisional Magistrate, who can depute a Magistrate to conduct the identification parade. If a requisition is submitted to a Subordinate Magistrate direct by the police, he should use his discretion whether he should conduct the parade himself or whether he should seek the orders of the Subdivisional Magistrate. Except in cases of urgency, it may be desirable to seek the orders of the Subdivisional Magistrate.
The following points may be borne in mind by the Magistrate conducting an identification parade:
(1) Selection for the parade of non-suspects of the same religion and status who are unknown to the witnesses.
(2) Wherever possible, privacy should be secured for the parade, away from public view.
(3) The names of the total number of men assembled for the parade including both suspects and non-suspects should be recorded.
(4) It is desirable to exclude police officers, consistent with safeguards against the escape of prisoners in custody.
(5) If jail officials are present at the parade, they should be kept in the view of the Magistrate all the time, and they should not be allowed access either to the witnesses who have to be summoned for identification or to the persons assembled at that parade.
(6) The witnesses who have been summoned for the parade should be kept out of the view of the parade. Each witness should be fetched by a peon separately, and after his evidence, that is, identification, is over, that witness should be segregated from the others who have yet to be summoned. This precaution should exclude the possibility of signals or pre-arranged movements.
(7) It is desirable to change the order in which the suspects have been placed at the parade before the arrival of the next witness.
(8) The peon deputed to fetch each witness should be kept out of the view of the parade and the proceedings.
(9) Before a witness is called upon to identify the suspect, the witness should be asked whether he admits prior acquaintance with any suspect whom he proposes to identify.
(10) Any objection by any suspect to any point in the proceedings should be recorded.
(11) Where a suspect wears any conspicuous garment, the Magistrate conducting the parade should, if possible, either arrange for similar wear to others or induce the suspected person to remove the conspicuous garment.
The Magistrate should make a record in writing of the entire proceedings. If he is eventually cited as a witness, he should be in a position to speak to everything relevant with reference to that record instead of relying upon his memory".
69. Kerala Government had also issued certain instructions to the Magistrates and the Jail authorities regarding the conduct of identification proceedings as per G.O.M.S. 791 Home (A) dated 25.6.1958. It contains the following guidelines:
(1) When prisoners for identification are admitted to the Jail the Circle Inspector or Senior Police Officer will inform the Jailor at the time of admission, or as soon as thereafter as possible, that identification proceedings will be held.
(2) On receipt of such information, the Superintendent of the Jail will issue instructions to prevent the prisoners being disguised or their appearances changed in such a way as to make recognition difficult; such prisoners should be required to keep their hair in the same state until identification proceedings are held and they must not grow a beard if clean shaved or vice versa. During identification proceedings the prisoners should ordinarily wear the same clothes as they were wearing at the time of admission unless the Magistrate who conducts the proceedings otherwise directs.
(3) The Magistrate who attends the identification will of course take charge of the proceedings and jail officials will obey his order. The prisoners to be identified should be placed among a member of other prisoners and should not be allowed to conceal their faces or stature so as to impede recognition. In case the number of suspects is one or two, the number of other under trials in the parade may generally be in proportion of nine or ten per suspect. Where the number is larger they may be mixed in the proportion of not less than five undertrials per suspect. Care should, however, be taken to avoid unnecessarily long parades and this may be done by dividing up the suspects into two or three batches for identification. Care will, however, have to be taken that the same undertrials are not made to stand in more than one parade. So far as possible, there should be in the parade for each suspect, a fair number of undertrials who have the same general appearance and belong to the same age group. If any of the suspects has a beard or small-pox marks every endeavour should be made to get as many persons with similar beards or small-pox marks in the parade as possible. If any of the suspects has a scar, a mole, pierced ears, a blind eye, a split or any other distinctive mark, efforts should be made to have others having as far as possible similar peculiarities and belonging to the same age group as the suspects, standing in different places in the parade.
(4) The question of clothing presents some difficulty. Ordinarily every prisoner should wear the clothes in which he was admitted in the jail. There should be no attempt to disguise; prisoners should not be allowed to exchange clothing, and if a prisoner cannot wear his own clothes he should wear clothes of a similar kind; that is to say, if he is a field labourer he should not be dressed in the white clothes of a city man or vice versa. If, however, a prisoner is wearing conspicuous garment such as a pink turban of a curious pattern, the Magistrate should consider whether the prisoner should be allowed to wear such garment to avoid the possibility of the witnesses making the identification on account of such distinctive mark.
The Magistrate conducting the identification must at the very time make a record of his proceedings. He should note therein whether the prosecuting staff or any counsel was present at the proceedings, the precautions taken at the time of identification the number of undertrials mixed with he accused and the result of the identification made together with any other matter needing mention".
If the above stated guidelines are followed, there cannot be any objection or dispute about the Test Identification Parade conducted by the Magistrates.
70. Now we shall consider whether the observations made by the learned Sessions Judge regarding the identification parade conducted in this case are justifiable. The place of occurrence was within the limits of Panoor Police Station. The incident occurred on 1.12.1999. The first accused was arrested at 7.00 A.M. on 25.1.2000. He was produced before the Additional Chief Judicial Magistrate, Thalasserry, which was the committal Court in this case on that day itself. On 25.1.2000 itself P.W.30, the Investigating Officer filed an application before the Chief Judicial Magistrate to take action to conduct a Test Identification Parade in effecting identification of the first accused by the three eye witnesses. The Chief Judicial Magistrate as per order dated 28.1.2000 authorised P.W.24, the Judicial First Class Magistrate, Thalassery to conduct Test Identification Parade. The Judicial First Class Magistrate, Thalassery was directed to address the Additional Chief Judicial Magistrate, Thalassery to forward the F.I.R. and connected papers in Crime No. 252 of 1999 of Panoor Police Station for the purpose of conducting the Test Identification Parade. That order was received by P.W.24 on 31.1.2000. On 4.2.2000, he issued summons to P.Ws. 2 to 4. On 4.2.2000 itself the Judicial First Class Magistrate wrote Annexure VI letter to Exhibit P33 report to the Superintendent of Central Prison, Kannur, which reads as follows:-
"The Supdt. Central Prison, Kannur is directed to cause production of the Acharambath Pradeepan, Age 28/99, S/o. Anandan, Mokeri amsom, Parammal remand prisoner in Crime No. 252/99 of Panoor Police Station, before this Court at 2.30p.m. on 8.2.2000, with head and body covered, for the purpose of test identification".
That letter shows that the direction was issued to the Superintendent of Prison and not to P.W.30 to produce the first accused with head and body fully covered. The first accused in his 313 statement had admitted that at the time when he entered into the room of P.W.24, his head and body was covered, though he would contend that from the jail to the Court he was taken in a public transport without any covering. The 1st accused was produced before the Judicial First Class Magistrate at 2.15 P.M. on 8.2.2000, for identification. The Magistrate in his proceedings had stated that after the arrival of the witnesses, they were confined in the record room on the northern side of the office room under the personal attention of the Junior Superintendent of the Court. It was specifically stated that there was no chance for the witnesses to talk to each other or to see the arrangements made in the Court hall and also to see the arrival of the suspect from the Central Prison. There were 16 non-suspects. The first accused was mixed with those 16 persons. The report further shows that the non-suspects were almost of similar age group of the suspect and there was no special identifying features for the suspect. The non-suspects were also not having any special identifying features. The proceedings further says that after collecting the details of the non-suspects, they were paraded in the Court hall at 2.45 P.M. before bringing the suspect to the Court hall from the Chamber. It was also stated that all the police officials and outsiders who were found in the Court premises were sent out. The report further shows that the windows and doors of the Court hall were closed and thereafter the suspect was brought from the Chamber accompanied by the Magistrate himself and paraded along with the non-suspects. The proceedings further shows that the Magistrate had instructed the Peon of the Court to bring the witnesses one by one to the Court hall. The Magistrate had repotted that witnesses Punnya and Dinoop could not identify the accused. When witness Shinoop was asked to identify, without any hesitation he identified accused No. l by touching his body. P.W.24, the Magistrate had given the details of three rounds of identification conducted by him in Exhibit P33 report.
71. Accused Nos. 2 to 7 were arrested on 6.3.2000. On that day itself P.W.30 filed an application before the Chief Judicial Magistrate to authorise one of the Magistrates to conduct the Test Identification Parade. Names of 61 persons were given as witnesses. On 8.3.2000, the Chief Judicial Magistrate passed an order authorising P.W.24 to conduct the Test Identification Parade. That order was received by the Magistrate on 10.3.2000. On 29.3.2000, P.W.24 issued a letter to the Superintendent of Central Prison, Kannur to produce the accused with body and face fully covered with the guard of prison officials in prison vehicle on 4.4.2000 at 8.30 A.M. for the purpose of identification parade. Specific instructions were issued to the Superintendent to produce the accused under the escort of prison officials in prison vehicle as per Annexure-III and Annexure-V letters. Summons were issued to the witnesses. The Superintendent of Central Prison was directed to inform the accused that they were being produced for identification parade. The Superintendent was directed to take all steps to avoid previous identification of the accused. The Investigating Officer was also directed to produce 30 non-suspects resembling the suspects.
72. On 14.3.2000 itself the learned Magistrate had written Annexure-IV letter to the Superintendent of Central Prison, Kannur informing him that P.W.24 was authorised to conduct a Test Identification Parade and directed the Superintendent to avoid possible identification of the remand accused by any of the witnesses. The Superintendent was informed that further instructions will be issued in due course. The Superintendent was also directed to take all steps to avoid previous identification and also to inform the accused that they are being produced for identification parade. It is true that P.W.24 issued a direction to the Investigating Officer to produce 30 non-suspects resembling the suspects. But, P.W.30 did not produce those persons. He deposed that he directed the Circle Inspector of Police, Thalassery to comply with the direction of P.W.24. The report further shows that the witnesses were confined in the Court Hall of Motor Accidents Claims Tribunal, which is on the northern side of the Court of the Judicial First Class Magistrate, under the personal attention of the Junior Superintendent. It was also stated that there was no chance for the witnesses to see the arrangements made in the Court hall and also to see the arrival of the suspects from the Central Prison. It is further stated that for conducting Test Identification Parade 36 persons resembling the suspects were selected from the persons who were present in the Court. The suspects were produced at 8.10 A.M. by the Prison officials. It further shows that the non-suspects were selected by the Magistrate himself from the persons present in the Court. The learned Magistrate had stated that there were no special identifying features either for the suspects or non-suspects. The report specifically mentions that all police officials and outsiders found in the Court premises were sent out before holding the Test Identification Parade. The proceedings of the Magistrate shows that all the windows and doors of the Court hall were closed and thereafter the suspects were brought from the Chamber accompanied by the Magistrate and paraded along with the non-suspects. The witnesses were brought one by one by the Court Peon. The learned Magistrate had given the details in Exhibit P34 report as to how he conducted the identification parade.
73. Exhibit P34 report which was the contemperaneous record of the Test Identification Parade shows that the accused were produced before P.W.24 Magistrate not by the police, but by the Prison officials. There is nothing on record to show that the Superintendent of Central Prison violated the directions issued by the Magistrate regarding the production of the suspects. The only role of the Investigating Officer as revealed from the report was that as per the directions of the Magistrate the Investigating Officer directed the Circle Inspector of Police to produce 30 persons resembling the accused in physical appearance, health, complexion and other other general features. There is no material to show that P.W.30 was present in the Court while the Test Identification Parade was held.
74. Exhibits P33 and P34 reports show that before conducting the identification parade, the learned Magistrate had sent away all police personnels and other outsiders from the Court premises. It also shows that the witnesses were under the supervision of the Junior Superintendent, who is a responsible officer of the Court. In fact in Exhibit P33 it is very specifically stated that instructions were given to the Junior Superintendent to see that the witnesses do not interact with each other or speak each other. The Additional Chief Judicial Magistrate was the committal Magistrate. It is well settled position of law that once the accused in a criminal case is produced before the Judicial Magistrate and remanded to judicial custody, thereafter the Investigating Officer has no control over the accused. The Investigating Officer has absolutely no control in the matter of production of the accused from the prison before Court or sending them back from the Court to the prison. The 1st accused was arrested and produced before the Additional Chief Judicial Magistrate by the police on 25.1.2000 and the other accused on 6.3.2000. There is absolutely nothing on record to show that either on 25.1.2000 or on 6.3.2000 any of the witnesses questioned or examined in this case were present in the Court of the Additional Chief Judicial Magistrate. It is to be noted that P.Ws. 3 to 6 are students studying in school and there is nothing on record to show that those witnesses were anywhere near the Court of Additional Chief Judicial Magistrate while the accused were produced by the police. Exhibits P33 and P34 reports show that all the police officials were sent away before holding the Test Identification Parade. The records show that the order to conduct Test Identification Parade with respect to 1st accused was received by P.W.24 on 31.1.2000, he conducted the same on 8.2.2000. Likewise the order to conduct the second identification parade with respect to accused 2 to 7 was received by P.W.24 on 10.3.2000 but the identification parade was conducted on 4.4.2000. P.W.24 had admitted that there was no special reason for the delay. In view of the various steps taken by the Magistrate as can be seen from Exhibits P33 and P34 reports, it is not possible to hold that there was inordinate delay in conducting the identification parade. The oral evidence of the Magistrate shows that eventhough he had issued instructions to the Investigating Officer to produce 30 non-suspects, he had selected 36 persons who were available in the Court premiss as non-suspects during the identification parade. To a specific question whether the Investigating Officer has produced 30 non-suspects, P.W.24 has deposed that there were lot of people present in the Court and he selected 36 persons from those persons who were present in the Court. The non-suspects were selected by P.W.24 himself. P.W.30 was asked whether he had taken any precaution to see that any person can see or identify the accused after arrest and before identification parade. The witness answered that he had not taken any such precaution. When the accused persons were in judicial custody and therefore beyond the control or supervision of P.W.30, there was no occasion, much less any duty cast upon P.W.30 to take any such precaution. It was for the prison authorities to take such precautions and P.W.24, the Magistrate had issued the necessary directions in that regard. At the time of oral evidence the learned Magistrate deposed that he had not recorded that any suspects were brought to the Court after covering their face. When he was asked whether he can rule out the possibility of an outsider to see the suspect while bringing them to the Chamber, the Magistrate answered that he cannot rule out that possibility. It is to be noted that P.W.24 had issued specific instruction to the Superintendent of Central Prison to bring the accused to the Court for the purpose of identification with their face and body covered and in prison vehicle under the guard of Prison officials. The 1st accused had admitted that when he entered into the room of the Magistrate his face and body were covered. The accused had no complaint regarding the procedure adopted by P.W.24. All of them were specifically asked whether they had any complaints regarding the holding of the parade. They had stated that they have no complaints regarding the Test Identification Parade. The Superintendent of Central Prison and the Prison officials who brought the accused to the Court were not examined by the accused. The learned Sessions Judge simply relying on an answer given by P.W.24 to a hypothetical question found fault with P.W.24 in the conduct of the Test Identification Parade. The observations made by the learned Sessions Judge are not based on any materials.
75. The evidence on record shows that there was about three weeks delay in conducting the 2nd Test Identification Parade. The learned Magistrate ought to have conducted the Test Identification Parade at a place inside the jail. But he had taken all possible precaution to see that the witnesses do not get an opportunity to see the suspects. So, we are of the considered view that the oral evidence of P.W.24 corroborated by Exhibits P33 and P34 cannot be discarded on those grounds. Both on 8-2-2000 and 4-4-2000, three rounds of identification were held by P.W.24. P.Ws. 3 to 5 took part in the first Test Identification Parade held on 8.2.2000. P.Ws.6 to 8 did not take part in that Test Identification Parade. In the first test identification parade held on 8-2-2000 the 1st accused alone was put up for identification. Of the P.Ws. 3 to 5, P.W.5 alone identified the 1st accused. In the Test Identification Parade held on 4.4.2000, accused 2 to 7 were put up for identification. Altogether 53 witnesses including P.Ws. 3 to 8 participated in that test identification parade. In the first round P.W.3 identified A2 and A6, P.W.5 identified A6, P.W.6 identified A4, P.W.7 identified A2, A3 and A5 and P.W.8 identified A2, A3, A4, A5 and A7. P.W.4 did not identify any of the six accused present during the first round. During the second round, P.W.3 identified A2, P.W.4 identified A6, P.W.5 identified A2, A4 and A6, P.W.6 identified A4, P.W.7 identified A2, A3 and A5 and P.W.8 identified A2, A3, A4, A5 and A7. During the third round, P.W.3 identified A2, P.W.5 identified A4 and A6, P.W.7 identified A2, A3 and A5 and P.W.8 identified A2, A3, A4, A5 and A7. In that round P.W.4 and P.W.6 did not identify any accused. In Court P.W.3 identified A1 to A4, A6 and A7, P.W.4 identified A1 and A5, P.W.5 identified A1 to A4, A6 and A7, P.W.6 identified A1, A4 and A5, P.W.7 identified A1 to A3 and P.W.8 identified A2, A4, A5 and A6. For the sake of convenience, we have prepared a chart, which is extracted below:
PW3 PW4 PW5 PW6 PW7 PW8
Dinoop T.Punya M.V. T.Ramisha Ashithosh Rajeevan
Shinoop
T.I. Parade
8.2.2000 DNI DNI A1 NP NP NP
(Ext. P33)
altogether
3 rounds,
A1 alone
put up
T.I.
Parade 1st A6 & DNI A6 A4 A2, A5 A7,
4.4.2000 A2 & A3 A2,
(Ext. P34) A5,
A3 &
A4
A2 to 2nd A2 A6 A2, A4 A4 A2, A5 A2, A4
A7 & A6 & A3 A5, A3
put up & A7
3rd A2 DNI A6 & DNI A3, A5 A3, A5
A4 & A2 A2, A4
& A7
In Court A1 to A1& A1 to A1, A4 A3, A1 A2, A4
A4, A6 A5 A4, & A5 & A2 A6 &
&A7 A6 & A7 & A5
NP -- Not Present
DNI-Did Not Identify
76. P.W.5 has identified A1 correctly. P.Ws.3 and 4 had given convincing and cogent explanation as to why they could not identify A1 in the Test Identification Parade. They deposed that at the time of the incident, the first accused was having beard. But at the time of Test Identification Parade, he was clean shaved and changed his hair style also. All the witnesses correctly identified A1 as one of the assailants who entered into the class with iron rod through the steps on the western side in court. We do not find any reason to discard the identification of A1 as one of the assailants by P.Ws.3 to 6 in Court. P.Ws.3 and 5 deposed that A4 and A7 entered into the class room from western side and they were carrying swords in their hands. They also deposed that A2, A3 and A6 entered into the class from the eastern side of the building by jumping over the half wall. In spite of the searching cross examination made by the learned counsel for the accused, nothing was brought out to discredit their testimony. We do not find any reason to disbelieve the evidence of P.Ws.3 and 5 regarding the identification of A1 to A4, A6 and A7 in court. Their evidence is corroborated by the evidence of P.Ws.4 and 6 to 8.
77. The learned counsel for the appellants have argued that the identification of the 6th accused by P.Ws.3, 4 and 6 is of no value. It is argued that in the test identification held on 8.2.2000, along with 1st accused the 6th accused was paraded as a non-suspect, but all the three witnesses failed to identify him as one of the suspect. On 4.4.2000, A6 told P.W.24 that the witnesses who failed to identify him on the previous Test Identification Parade identified him on that day/But, he had no such case before the Sessions Judge. Even though questions regarding the identification of the witnesses were specifically put to him, he did not tell the Sessions Judge that he took part as a non-suspect in the first Test Identification Parade. On the other hand, he had only stated that the evidence of the witnesses including that of the Magistrate on that point was false. In the first Test Identification Parade conducted on 8.2.2000, witnesses were directed to identify only one person (1st accused) as the suspect. Exhibit P33 report shows that 17 persons took part in the parade and a person by name Anilkumar stood as the 15th person during the 1st round. A1 was standing at the 5th place in that round. The report would show that the witnesses were asked to identify persons starting from No. 1 onwards. When P.W.5 came near the 5th person, he identified A1. The report would show that immediately he was sent away by the Magistrate because so far as the Magistrate was concerned, the parade was conducted only for the identification of A1 and not for anybody else. In the second and third rounds, normally the witness will be looking for the person whom he had already identified. His entire attention will be focussed on that person and not on any other person. Further, whether Anilkumar, who attended as a non-suspect, was having a beard on 8.2.2000 was not stated in Exhibit P33. But, going by the records, if A6 had appeared as a non-suspect, he must have appeared with clean shaven face. The evidence on record shows that A1 attended the parade with clean shaven face. P.Ws.3 and 4 did not identify A1. So, the failure on the part of P.Ws.3 to 5 to identify A6 on 8.2.2000 is immaterial.
78. The learned counsel appearing for the accused in both the appeals strenuously argued before this Court that before conducting the Test Identification Parade the witnesses had an opportunity to see the photograph of 1st accused and hence the identification of the 1st accused is of no value. It is argued that in continuation of the incident in this case several other incidents took place in which one Manoj was killed and some other persons sustained injuries. It is argued that financial assistance was provided by the S.N.D.P. Yogam to the dependants of Manoj and that amount was paid by Vellappally Natesan, the General Secretary of S.N.D.P. Yogam and in that function the first accused also took part. It is argued that the photo taken on that occasion was published in the Mathrubhoomi Daily dated 22.12.1999 (Exhibit D15) and when his photo was published in the daily, the parents of the witnesses who are supporters of B.J.P, falsely implicated the first accused as one of the accused in this case. The first accused was the Secretary of the Local Committee of Communist Party of India (Marxist). So, he was not a total stranger to the parents of the witnesses. It is also stated that he actively participated in restoring peace and a meeting was convened by the Parent Teacher Association at the instance of District Collector. According to the 1st appellant, District Collector, Superintendent of Police and other officers attended that meeting. If the parents of the children wanted to falsely implicate the 1st accused, they could have implicated him at that stage itself and it was not necessary for them to wait for the publication of photo in a news paper. In this connection, it is very pertinent to note that Ext.D15(a) photo has nothing to do with this case. Even according to the appellants, it was a photo of a public function and not one published after the arrest of the 1st accused in which he was shown as an accused in this case. There was no caption also indicating the presence or participation of the 1st accused in that function. Though his photo was published in connection with a function totally unconnected with the case, P.Ws. 3 to 6 were able to identify him. That shows that the features of 1st accused were deeply imprinted in the mind of these witnesses and on seeing a photo, they immediately recognised him as one of the assailants. According to us, that is, one of the most natural and spontaneous identification of one of the assailants.
79. The counsel for the appellants relying on the decision reported in Vijayan v. State of Kerala has argued that no value can be given to the identification of the 1st accused. In Vijayan's case (supra), the photo of the accused after his arrest was published in the news paper. Further, the photo was shown to the witness. Hence, the trial Judge disbelieved the Test Identification Parade.
80. The impact of newspaper reports on Test Identification Parade was considered in Appu v. State of Kerala (1990 (1) KLT SN 15 [Case No. 15]), Chandran and Anr. v. State of Kerala (1986 Crl.L.J.1865) and Sajeevan v. State of Kerala (1993 (1) KLT 712). In Sajeevan's case (supra) a Division Bench of this Court held as follows:-
"If the idea of conducting a test identification parade is to test the ability of a witness to identify a particular person, then photograph of the suspect should not be shown to him in advance. Otherwise the parade becomes only a farce. But that is different from the Press publishing photos of the accused in newspapers. It is not the work of the investigating agency, but the exercise of journalistic calibre. Investigating agency has, normally, no control over such journalistic adventures....
... If we are to lay down a proposition that identification evidence of a witness is liable to be thrown overboard in cases where newspapers published the photo of the accused, a good number of witnesses in Kerala would be exposed to the peril of being disbelieved on account of the journalistic adventure and high density of print media in this State. Of course, it is open to the court to decide whether a witness's evidence regarding identification was really influenced by such publication".
Since the photograph of the first accused was published in connection with an incident which had absolutely no bearing with the arrest of the accused in this case, there is no merit in the argument raised by the appellant.
81. The learned Senior Counsel appearing for the appellants in both the appeals have argued that the child witnesses had only a fleeting glimpse of the assailants and their evidence will show that they were terrified and stood benumbed. It is argued that because of their mental condition at that time, it was not possible for the children to note any features of the assailants. Though the evidence of the witnesses shows that the incident took place all of a sudden, it is not possible to accept the argument of the counsel for the appellants that everything was over within a minute or two. Infliction of 44 grave injuries on the body of a person by 6 assailants cannot take place in a jiffy. In this connection, the evidence of D.W.1, a witness examined by the accused is relevant. According to him, on hearing the hue and cry of the children, he came to class VI-B. The students had already gone to the office. But even at that point of time, the assailants were inside the class room. They went out of the class only after he reached there. So the incident was not over within a minute or two. There was enough time for the children to note the features of the assailants. In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy it was held that the evidence of eye witnesses to the effect that while running away they turned back and witnessed the assault upon the deceased could not be said to be either improbable or unnatural conduct.
82. Sri.Janardhana Kurup, learned Senior Counsel appearing for the appellants relying on a passage from Comprehensive Text Book of Psychiatry Vol. 1 by Kaplami, MD and Benchaman J. Saddol argued that in such circumstances, the attention of the students will be focussed on the attacked rather than on the assailants. P.W.19 is a Psychiatrist who conducted the counselling. The prosecution examined him to prove the post-mortem certificate. The entire cross examination was regarding the counselling. P.W.19 deposed that it may be probable that when a traumatic event is unfolded before a child, his first instinct would be to shut his eyes to avoid the sight or stand benumbed with Psychologenic Amnesia. He added that it need not necessarily be the reaction of all children; certain children may cautiously watch what is happening. So even accepting the case of the defence that D.W.2, another girl student of the very same class, stood benumbed and she was unable to notice any features of the assailants, it does not necessarily mean that P.Ws. 3 to 6 were also not able to see the assailants. They had enough time to watch the features of some of the assailants. It is to be noted that the witnesses did not claim that they were able to identify all accused. P.Ws. 4 and 6 could identify only the first accused among the assailants. But the evidence of P.Ws. 3 and 5 shows that they were able to identify A1 to A4, A6 and A7 correctly in court.
83. Learned counsel appearing for the appellants attacked the evidence of P.Ws. 3 to 6 on the ground that it contained material contradictions and omissions with reference to their statements recorded by the police under Section 161 of the Code of Criminal Procedure. The most important omission pointed out by the counsel for the appellants is that none of the witnesses examined told the police that three assailants entered into the class room from Prabhavathy Teacher's property by jumping over the half wall. P.Ws. 3 to 6 maintained the stand that in fact they had stated so before the police, but the police had not recorded it. In this connection, it is very pertinent to note that P.W.1, the hostile witness and who was loyal to the accused had also admitted that he had seen three persons walking near the half wall in the property of Prabhavathy Teacher and the incident took place 10-20 minutes after he saw those three persons. P.W.5 deposed that at first he saw A2, A3 and A6 walking towards the direction of Class VA through the property of Prabhavathy Teacher. He was not cross examined on that point. P.W.3 also deposed that he saw A2, A3 and A6 standing on the rear side of the blackboard of Class VI-B placed near the half wall. They were standing in the property of Prabhavathy Teacher. He deposed that the 2nd accused showed a signal using his hand. P.W.3 thought that the 2nd accused wanted to convey some message to Jayakrishnan Master. According to him, that is what prompted him to look back and then he saw the first accused beating the deceased on his head. This part of the evidence given by P.W.3 was also not challenged during his cross examination.
84. The oral evidence of D.W.2 is also very relevant. D.W.2 deposed that the assailants entered into class VI-B from the front side. It is to be noted that D.W.2 was sitting and facing east. Hence her front side is the east of the building. So it is clear that she had seen those three persons seen by P.Ws.3 and 5 when they stood near the half wall behind the black board. Her evidence also shows that she had seen the assailants entering into class VI-B from the eastern side. The evidence of D.W.1 is also relevant. He deposed that when he reached the class, he saw the assailants jumping over the half wall into the property of Prabhavathy Teacher and running away. In view of the unchallenged testimony of P.Ws.3 and 5 to the effect that three persons came on the eastern side of Class VIB which was corroborated by the oral evidence of P. W. 1 and D.W.2, we do not find any reason to disbelieve the evidence of P.Ws.3 to 6 to the effect that when they were questioned by the police, they told the police that three of the assailants entered into the class room by jumping over the half wall from the eastern property. In view of the evidence of P.Ws. 1, 3 and 5 and D.Ws. 1 and 2, even assuming that P.Ws.3 to 6 omitted to tell that fact to the police, that omission is not material.
85. There is yet another point. The prosecution case is that the accused formed themselves into members of an unlawful assembly armed with deadly weapons and trespassed into the classroom in pursuance of a common object of causing death of Jayakrishnan Master. The oral evidence of P.Ws. 1, 3, 5 and D.Ws.l and 2 prove beyond any reasonable doubt that A2, A3 and A6 came on the eastern side of the class room. P.W.3 in his evidence has stated that he had seen the 2nd accused giving a signal using his hand and he mistook that signal as a message to the deceased and looked back. It was at that point of time Jayakrishnan Master was attacked. The evidence of P.Ws.7 and 8 shows that after commission of the offence the accused went away from the scene of occurrence together. So even assuming that A2, A3 and A6 did not enter into the class and inflict any injury on the person of the deceased, the same will not make any difference. They were members of an unlawful assembly, the common object of which was to commit the murder of Jayakrishnan Master. The only inference possible from the proved facts in this case is that accused 1 to 4, 6 and 7 trespassed into the property together and left the place together after the commission of the offence. So A2, A3 and A6 are also liable for the offence committed by the other members of the unlawful assembly in view of the provisions contained in S. 149 of the Indian Penal Code.
86. The learned counsel appearing for the appellants pointed out some more omissions in the evidence of the witnesses. We have carefully analysed each and every one of them and found that they are of no consequence at all.
87. It is argued that there is material contradiction in the evidence of P.Ws.3 to 6 from their statement given to the police under Section 161 of the Code of Criminal Procedure. It is well settled position of law that each and every contradiction will not affect the prosecution case. A contradiction can be considered as material only if it affects the prosecution case materially. The learned counsel appearing for the accused were not able to bring out any material contradiction while cross examining P.W.3. The most material contradiction according to the counsel for the accused is the denial of the statement given by P.Ws.4 to 6 that they had seen the photograph of A1 in Ext.D15 Mathrubhumi Daily. The photograph is marked as Ext.D15(a). According to the accused, P.Ws.4 to 6 told the police that they identified A1 first when they saw Ext.D15(a) photograph. Ext.D18 is a contradiction stated to have been made by P.W.4 but the same was not put to P.W.4. Ext.D3 is a contradiction stated to have been made by P.W.5 and Exts.D7 and D8 are the contradictions stated to have been made by P.Ws. 5 and 6. Of course, P.W.30, the Investigating Officer had deposed that while questioning P.Ws. 4 to 6, they told him that they had identified A1 on seeing Ext.D15(a) photograph. Ext.D15(a) photograph was taken when Vellappally Nadesan, the General Secretary of S.N.D.P.Yogam, handed over some amount as financial assistance to the legal heirs of one deceased Manoj. It was not a photograph published after the arrest of A1 describing him as an accused in this case. On the other hand, the only name given in the caption was that of Vellappally Nadesan. We have personally verified Exhibit D15(a) photograph. It was published to project an act of charity of the S.N. D.P. Yogam. In addition to the photo of Vellappally Natesan it contains the photograph of three other male persons. One of them is stated to be the President of S.N.D.P. Yogam. It also contains the photo of a person with fair complexion and clean shaved face. The other is a partial photograph of a dark complexioned man with beard. It is the first accused. It is very pertinent to note that the first accused was not facing the camera. Only a portion of his face is visible in the photograph.
88. It is well settled position of law that identification of a person by photograph is difficult, especially in criminal cases. Sri Krishnamurti in his Book Police Diaries (7th Edition) at page 978 under the heading Identification states that to identify a person from a photograph however is not easy as is generally believed. He further states that photograph should have been taken from the front or atleast the accused looking at the camera, for it to be of any use in identification. If P.Ws. 4 to 6 were able to identify the photograph of A1 by a mere look at a photo in which only a side view of the face of A1 is seen, that fact only adds to the credibility to their evidence. It is very pertinent to note that the accused have no case that any police officer or the followers of B.J.P. had shown this photograph to P.Ws. 3 to 6 and tutored them to give a statement to the effect that he was one among the assailants. So, that contradiction does not materially affect the prosecution case. The other contradictions made by P.Ws. 4 to 6 are not very material at all.
89. It is argued that the conduct of P.Ws.3 to 6 is unnatural. According to the appellants, though the children claim that they were able to identify the accused, they did not go to the police station or ask their parents to go to the police station to give the names of the assailants. P.Ws.3 to 6 deposed that after going home, they told about the incident and the assailants to their parents. The evidence of P.Ws.3 and 4 show that after attending the Test Identification Parade, they told the matter to their parents or neighbours. That is the natural reaction of an 11 year old child. It is too much to hold that an 11 year old child should have gone to the police station and given the names of the assailants or directed their parents to go to the police and give the details of the accused.
90. The evidence discussed above clearly shows that the evidence of P.Ws. 3 to 6 is consistent. There is no contradiction between the evidence of one witness from that of the other. They corroborate each other and there is no inherent improbability. It is reliable also.
91. In addition to the evidence of P.Ws. 3 to 6, the prosecution had examined P.Ws. 7 and 8 to prove that the accused after committing the murder of Jayakrishnan went out together and went to the junction through the road which lies on the west of the school building. The learned Sessions Judge had not considered their evidence but it was not rejected also. The evidence of P.Ws. 7 and 8 shows that on that day they had gone to Koorara and were returning to their place in an autorickshaw. When the autorickshaw reached Paramel Junction, they saw the children running helter-skelter. So P.W.7 asked the driver to reduce the speed. Then P.Ws. 7 and 8 saw the assailants coming from the direction of the school to the Junction with blood stained weapons. P.W.7 identified some of them. P.W.8 identified some others.
92. The evidence of P.Ws. 7 and 8 is attacked on the ground that they are chance witnesses. Of course, they are chance witnesses. But the question arising for consideration is whether their evidence can be discarded on the simple ground that they are chance witnesses. In State of A.P. v. K. Sreenivasulu Reddy (2005 SCC (Cri.) 817) it was held as follows:-
"In a murder trial by describing the independent witnesses as "chance witnesses" it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere, "chance witnesses."
The expression "chance witnesses" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
P.Ws. 7 and 8 were returning to their native place in an autorickshaw from Koorara. When they reached near the junction, they saw the accused walking together towards the junction through the Parammel Road. They were carrying blood stained weapons in their hand. P.Ws. 7 and 8 were not the only witnesses cited to prove that the accused walked through Parammel Road towards the junction with the blood stained weapons. The memo of evidence filed in this case shows that in addition to P.Ws.7 and 8, a number of witnesses were cited to prove that fact. In fact, in Exhibit P1 F.I.Statement recorded within 35 minutes after the incident it was stated that the accused left the place together through the road on the western side. Exhibit P34 report of the Test Identification Parade conducted by P.W.24 shows that no other witnesses identified any of the accused at the time of identification parade. According to the prosecution, the witnesses were really afraid to point out the accused. Though P.Ws.7 and 8 are not persons of the locality, they had given cogent and convincing explanation for their presence near the place of occurrence at that time.
93. The evidence of P.Ws.7 and 8 was attacked on the ground that their conduct after the incident was unnatural and not that of an ordinary person. It was also attacked on the ground that there are lot of material contradictions and omissions in their evidence from their statements recorded under Section 161 of the Code of Criminal Procedure. Exhibits D11, D11(a) and D12 are the contradictions made by P.W.7 from his 161 statement. Exhibits D13 and D14 are the contradictions made by P.W.8 from his statement to the police. One contradiction which the appellants are very much relying on is the statement of P.Ws.7 and 8 before the police that when they reached near the house of P.W.8 both of them alighted there and went to the mother's house of P.W.7. While giving evidence before Court, P.Ws.7 and 8 deposed that on reaching the place near the house of the mother of P.W.7, P.W.7 alighted there and P.W.8 proceeded to Panoor in the same autorickshaw. Even assuming that they made such a contradiction, it is not very much material. The other contradiction made by P.W.7 is regarding the reading of a news item appeared in a daily on 5.12.1999 and the contradiction in the evidence of P.W.8 is regarding the presence of another autorickshaw while they reached near the place of occurrence. Those contradictions and omissions pointed out by the appellants are not material so as to make their evidence unreliable.
94. It is argued that P.Ws.7 and 8 did not go to Police Station and tell the police about the description of the assailants whom they were able to identify. P.W.7 deposed that he informed the details of the persons he had seen to one Balan. He had also deposed that in the evening of the date of occurrence, he went to the house of the deceased. There he met Balan Master and Asokan. He told them about the identity of the assailants. They asked him to inform the police. P.W.8 deposed that after reaching his place, he told the details of the assailants to one Santhosh. He deposed that Santhosh is a B.J.P. activist and Santhosh knows the other local leaders of B.J.P. The evidence of RWs. 7 and 8 shows that they had told about the assailants to others. The evidence on record shows that a very serious law and order situation existed in that area. Further the witnesses were really afraid of the consequences in case they divulge the details about the assailants. So there is nothing unnatural in the conduct of P.Ws. 7 and 8 in not informing the police about the details of the assailants known to them.
95. The learned counsel appearing for the appellants strenuously argued before us that it is improbable that the assailants who committed such a dastardly murder will go out in procession through the public road with blood stained weapons so as to give an opportunity to every onlooker to identify them. Counsel for the appellants relied on the evidence of D.W.1 to show that the assailants did not go to the road at all. D.W.1 only deposed that when he came to the place of occurrence he saw 5-6 persons jumping over the half wall and running through the property of Prabhavathy Teacher. But he is conspicuously silent as to which direction the assailants ran. The scene mahazar and scene plan show that immediately on the south of the school building, there is a pathway which goes to the house of Prabhavathy Teacher 20 metres east of the school building from the road on the west. There is absolutely nothing on record to show that a person entering into the property of Prabhavathy Teacher can go to north or east. The mere fact that the assailants jumped over the half wall and entered into the property of Prabhavathy Teacher alone is not sufficient to hold that they had not gone to the road on the west.
96. In this connection the oral evidence of P.W.15, the Scientific Assistant and the report Ext.P17 assume some significance. In Ext.P17, the Scientific Assistant had noted presence of blood stains in the cemented portion of the pathway and also on the side wall of the pathway. At the time of oral evidence also P.W.15 deposed that he had seen blood stains on the foot path. That part of his evidence was not challenged in cross examination. So even though the result of the examination of sample of blood collected from the foot path was not marked in evidence, the oral evidence of P.W.15 and Exhibit P17 report are relevant. Ext.P25 photograph would indicate that some portion at the beginning of the pathway leading to the house of Prabhavathy Teacher was cemented. Jayakrishnan Master died on the spot and his body was taken to the Hospital after inquest. The presence of blood stains in the foot path as well as on the side walls of the foot path probabilises the case of prosecution that the assailants after the incident came to the road on the west through that pathway. Even otherwise, they can very well enter into the road as there is no compound wall separating the road and the school. The evidence discussed above lends credence to the evidence of P.Ws. 7 and 8 that the assailants after committing the offence reached the road and proceeded to the junction on the south. The evidence of P.Ws.7 and 8 corroborates the evidence of P.Ws. 3 to 6.
97. The learned Senior Counsel appearing for the appellants in both the appeals have argued that the evidence adduced by the prosecution witnesses itself establishes beyond any reasonable doubt that the incident took place with a lightening speed and hence P.Ws.3 to 6 will not be in a position to identify the assailants. It is argued that the evidence adduced by the prosecution itself indicates that the murder was committed by a professional group of hired assassins. It is argued that there must be some immediate and grave provocation to the assailants to enter into a class room and murder a teacher in the presence of his students. According to the appellants, the prosecution had not adduced any evidence to establish any such immediate provocation against the appellants. It is argued that P.Ws.3 to 6 were aged about 11 years on the date of incident and their first reaction on seeing the incident will be to close their eyes and then the students will stand benumbed. Further, the children ran away from the scene of occurrence. Hence there was no possibility for them to note the identity of the assailants. It is argued that that fact alone is sufficient to hold that P.Ws. 3 to 6 are giving false evidence.
98. The learned counsel relied on the decisions reported in Gangadhar Behera v. State of Orissa (2003 SCC [Cri] 32) in which it was held that where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. The appellants also relied on the decision reported in Thaman Kumar v. State of Union Territory of Chandigarh (2003 SCC (Cri) 1362). They also relied on the decision reported in Ruli Ram v. State of Haryana (2002 SCC (Cri) 1834) in which it was held that the Court has a duty to weigh the evidence carefully.
99. The learned Public Prosecutor has argued that there are no materials on record to show that P.Ws. 3 to 6 gave false evidence and even if there are some minor infirmities in their evidence, the same is not fatal. It is argued that the maxim 'falsus in uno, falsus in omnibus' has no application in India and the witnesses cannot be branded as liars. It is argued that even if it is found that a major portion of the evidence is deficient, in case the residue is sufficient to prove the guilt of an accused, the accused can be convicted relying on that part of the evidence (See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble , Rizan v. State of Chhattisgarh and Shridhar v. State of M.P. .
100. There cannot be any dispute regarding the legal proposition pointed out by the counsel for the appellants as well as by the Public Prosecutor. But, the question arising for consideration is whether the oral evidence adduced by P.Ws.3 to 6 can be discarded branding their evidence as inherently improbable and unreliable. The entire argument is based on an assumption that the witnesses had only a fleeting glimpse and at that time their attention will be more on the victim rather than on the attackers. We have already discussed the evidence of Psychiatrist on this point. The counsel for appellants rely on the evidence of D.W.2 in support of their argument. D.W.2 deposed that she had not seen the incident. But, she had admitted that few persons had entered the class through the front side of it and attacked Jayakrishnan. According to her, she heard the class teacher crying aloud. But, she did not see the assailants. The reason stated by the witness for not seeing the incident was not that she was perplexed or benumbed, but she was studying. She deposed: ???(I) During cross examination, she deposed that when Jayakrishnan Master cried "mother", she ran away. Even accepting the case of the accused that one of the students without looking into the face of the assailants ran way, that does not mean that the other students also did the same thing. As we have stated, P.Ws. 3 to 6 had spoken to the details of the incident. They were subjected to searching, incisive and dexterous cross-examination. They withstood the same and had given very rational, cogent and convincing answers. We have already discussed the effect of the alleged contradictions or omissions made by those witnesses from their previous statements recorded under Section 161 of the Code of Criminal Procedure. There are no material contradictions in the oral evidence of these witnesses. Their testimony is consistent and uniform. Their evidence shows that though all of them were not able to note the details or features of all the assailants, they were able to memorise at least some of them. The cumulative effect of their evidence is that they had witnessed the incident and noticed the assailants and they were able to correctly identify them.
101. The evidence of prosecution shows that after the incident, curfew was clamped on the area and a very serious law and order situation existed in that area. The evidence of P.Ws. 3 to 8 shows that they were really afraid to speak about the identity of the assailants. P. W.7 deposed that on 5-12-1999 a news item appeared in the Mathrubhoomi Daily along with a photograph to the effect that before leaving the school, the assailants wrote a warning in the black board of Class V-A to the effect that in case anybody dares to give evidence, Jayakrishnan will be repeated. P.W.8 also deposed that such a news item was published. P.W.13, the Chief Reporter had deposed that the news photographer of Mathrubhoomi took a picture which contains the warning written in the black board of Class V-A. Ext.P2 properly proved shows that P.W.1 had stated before the police that such a warning was written in the black board of Class V-A. The accused did not make any attempt to cover their face or conceal their identity. They entered into the school in the broad day light, murdered Jayakrishnan Master in front of the students inside the class room and left the place in procession as if they are celebrating a victory. So, the explanation offered by the witnesses that they were mortally afraid to speak about the identity of the accused is only to be accepted. We have carefully considered the evidence of P.Ws. 3 to 8 and D.Ws. 1 and 2. We do not find any reason to disbelieve the oral evidence of P.Ws.3 to 8. The identification of the accused by P.Ws.3 and 5 is corroborated by the evidence of P.Ws.4, 6, 7 and 8.
102. The learned Senior Counsel appearing for the appellants have argued that the learned Sessions Judge found that the investigation is faulty and illegal. But, instead of giving that benefit to the accused, they were convicted on the basis of such faulty and unreliable investigation.
103. In view of the finding of the court below that the investigation was faulty we had called for the Case Diary and perused the same. We shall consider whether the investigation was so faulty and illegal as observed by the learned Sessions Judge. The incident took place at about 10.40 a.m. on 1.12.1999. Within minutes, P.W.29 reached the place. P.W.1 was taken to the Police Station in the police jeep. P.W.29 admitted that he received the copy of the F.I.R. by 12.00 O'clock. He further deposed that immediately thereafter he conducted the inquest on the dead body and thereafter prepared a detailed scene mahazar. A number of witnesses including P. W. 1 had stated before the police that a warning was written in the black board of Class V-A by the accused before they left the place. P.W.29, the C.I. of Police, who prepared the inquest and scene mahazar had not stated whether such a warning was written or not in the black board of Class V-A. P.W.5 deposed that P.W.1 came to class, took attendance and wrote a passage in the black board and had asked the students to read the same. When the class leader was reading the passage written in the black board, he saw three persons going towards Class VI-B. So, something was written in the black board of Class V-A is proved in this case. P.W.28 had not stated as to whether the black boards in Classes V-A, VI-B or VII-B contain any writing at all. In this connection, it is to be noted that Exhibit P27(b) photograph shows that the black board of Class VI-B fell into the property of Prabhavathy Teacher and it was lying there. The photograph shows that the oral evidence of P.Ws.3, 4 and 6 that the deceased had written the problems in the board is correct. Those writings can be seen in the photographs. But the scene mahazar is conspicuously silent regarding this aspect. Further P.W.29 must have been told that the accused went towards the junction with blood stained weapons. But after reaching the school, he sent P.W.1 in his jeep to the police station and waited in the School without making any effort to trace the accused. After conducting the inquest and preparing the scene mahazar, he did not conduct any investigation at all.
104. P.W.30 took over the investigation on 8.12.1999. At the relevant period, he was working as Assistant Commissioner of Police, City Traffic at Calicut. An order was passed by the Director General of Police on 3.12.1999 constituting a special investigation team as CB CID SIG-III for conducting the investigation of the case. The order was communicated to P.W.30 on 7.12.1999. He took over investigation on 8.12.1999 and reported before Sri.Somasundaran, the Superintendent of Police, CB CID, SIG-III. Exhibit P37 report filed by P.W.30 shows that fact. P.W.30 deposed that on 9.12.1999 he discussed the modalities to be adopted in the case with the Superintendent of Police. On 10.12.1999, he took P.W.15 Scientific Assistant to the place of occurrence and prepared Exhibit P38 mahazar under which some Material Objects were seized. The records show that thereafter he started questioning the witnesses, which was concluded on 22.8.2000. From 11.12.1999 to 22.8.2000, the Investigating Officer had questioned 373 witnesses. At the time of oral evidence, P.W.30 had given the details of witnesses questioned by him, which is as follows:
Date Number of witnesses 10.12.1999 24 11.12.1999 19 13.12.1999 6 14.12.1999 34 15.12.1999 21 16.12.1999 27 17.12.1999 6 21.12.1999 Doctor & others. 27.12.1999 3 28.12.1999 Doctor & others. 29.12.1999 6 30.12.1999 10 3.1.2000 9 4.1.2000 15
The Case Diary also shows that he continued to question the witnesses on 5.1.2000, 6.1.2000, 7.1.2000 and 24.1.2000 and on other dates. In addition to the questioning of witnesses, the Investigating Officer had seized a number of articles and prepared mahazars. P.Ws.3, 4 and 6 were questioned on 4.1.2000 and P.W.5 on 6.1.2000, Between 11 .12.1999 and 3.1.2000, the Investigating Officer had questioned 178 witnesses. The details narrated above will show that the Investigating Officer was not sitting idle, but he was questioning witnesses. When there are a large number of witnesses to an incident, the Investigating Officer will have to start from somewhere. At that time it may not be possible for the Investigating Officer to take a decision as to who among the witnesses shall be questioned first. So, the mere fact that he questioned P.Ws.3, 4 and 6 on 4.1.2000 and P.W.5 on 6.1.2000 is not a ground to hold that he was not conducting any investigation at all. As observed by the learned Sessions Judge himself, P.W.30 had prepared 'a truck load of mahazars'.
105. Another reason stated by the learned Sessions Judge to make adverse remarks against P.W.30 is that he had intermeddled with the Test Identification Parade. There is absolutely nothing on record to show that he had interfered with the Test Identification Parade at all. He arrested the accused and produced before the committal Court. The accused were remanded to judicial custody. Thereafter it was the Superintendent of Central Prison who produced the accused before court and for identification. After the accused were remanded to judicial custody, P.W.30 had no control or responsibility over the accused. Even though P.W.24 had sent a requisition to P.W.30 to make available 30 non-suspects, P.W.30 deposed that he did not actually produce the non-suspects, but he instructed the local Circle Inspector to comply with the direction of the Magistrate. The evidence of P.W.24 shows that though he had issued such a requisition, he selected 36 persons from the persons who were present in the court on that day. So, there is absolutely no factual basis for the finding that P.W.30 intermeddled with the Test Identification Parade.
106. Of course, the investigation conducted by P.W.30 cannot be termed as fool proof or excellent. But that alone is not a ground to acquit the accused. In Leela Ram v. State of Haryana (2000 SCC (Cri) 222), it was held that any irregularity or even illegality during investigation ought not to be treated as a ground to reject the prosecution case. In Visveswaran v. State , the Supreme Court considered the effect of a defective investigation. It was held as follows:-
"Further, it is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In a case of defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to the rejection of the case of prosecution when it is otherwise proved".
In Leela Ram v. State of Haryana (2000 SCC (Cri) 222) the apex Court held that irregularity or illegality during investigation is not a ground to reject the prosecution case. In State of M.P. v. Mansingh ,. it was held that deficiency in investigation cannot be a ground to discard the prosecution version which is authentic, credible and cogent.
107. The disparaging remarks made by the learned Sessions Judge in paragraphs 24, 28 to 30, 32, 38, 46, 52, 57 and 65 of the judgment against the members of the special investigation team in general and P.W.30 in particular, are without any material. He did not even verify who were the other members of that team and what exactly were their roles in the investigation. No show cause notice was issued to the Superintendent of Police or P.W.30 or members of that team. The unsavoury criticism made against P.W.30 and other members of the special investigation team was behind their back and without affording them an opportunity of being heard. There is violation of the principles of natural justice. Those adverse remarks and observations cannot be sustained in view of the decisions in Manish Duxit v. State of Rajasthan (2001) 1 SCC 5%), S.K. Viswambaran v. E. Koyakunju and State of West Bengal v. Mir Mohammed Omar . So, the direction issued by the learned Sessions Judge to initiate action against P.W.30 and other members of the Special Investigation team is liable to be set aside and the adverse remarks made against them expunged.
108. It is argued that there was inordinate delay in questioning the eye witnesses. It is argued that P.Ws. 3, 4 and 6 were questioned on 4.1.2000 and P.W.5 on 6.1.2000. P.W.30 was not asked about the reason for the delay in questioning P.Ws. 3 to 6. We have already given the details of day-to-day progress of the investigation. The Investigating Officer was not sitting idle. He was questioning witnesses. It is also to be noted that there were no classes and many of the students of Class VI-B stopped coming to school. They obtained Transfer Certificate and joined other schools. In view of the facts and circumstances brought out in this case, it is not possible to hold that there is unexplained and undue delay in questioning P.Ws.3 to 6. Further no question was put to P.W.30 regarding the reason for the delay.
109. It is argued that there is undue delay in questioning P.Ws.7 and 8 as they were questioned only on 5.3.2000. They did not go voluntarily to the police and gave statement. Only on questioning C.W.74, the driver of the autorickshaw in which P.Ws.7 and 8 travelled, Investigating Officer was able to collect the name of P.W.7. The autorickshaw driver gave the name and place of residence of P.W.7 alone. It is only after questioning P.W.7, the whereabouts of P.W.8 could be obtained. We have already stated that the witnesses were afraid to come out with the details of the assailants. So, there is no merit in the argument that there is inordinate and unexplained delay in questioning P.Ws.7 and 8 and hence their evidence has to be discarded in toto.
110. In State of U.P. v. Satish it was held as follows:-
"As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion".
111. The learned counsel appearing for the appellants in both the appeals have vehemently argued that there is suppression of material evidence. It is argued that the prosecution had not examined all the material witnesses. It is argued that the failure to examine C.W.5 (Pradeepan), C.W.9, C.W.11, C.W.12 and C.W.74 is fatal to the prosecution case. C.W.5 is the teacher who was taking class in Class VII-B situated on the immediate north of Class VI-B. According to prosecution, he is not supporting the prosecution and maintained a stand that he had not seen any part of the incident. C.W.9 also did not identify any of the accused. C.Ws.11 and 12 are two teachers. They had also not witnessed any part of the incident. C.W.74 is the driver of the autorickshaw in which P.Ws.7 and 8 have travelled. Even if they are examined, they will only add the number of witnesses and not the quality of evidence. In Narain v. State of Punjab it was held as follows:-
"The test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is a witness essential to the unfolding of the narrative on which the prosecution is based. Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied".
The prosecution is not bound to examine all the witnesses cited by the Investigating Officer. In Hukkum Singh v. State of Rajasthan (2000 SCC [Cri.] 1416) it was held that if there are too many witnesses cited, it is open to the Public Prosecutor to inform the court that he does not propose to examine all of them. It was also held that if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state that fact in court and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness.
112. In this case the Investigating Officer had given the list of 151 witnesses. The Prosecutor has got a discretion to select the witnesses to be examined. All witnesses of prosecution need not be called, but witness whose evidence is essential for the unfolding of the narrative must be called (See State of U.P. v. Jaggo ). According to the Director General of Public Prosecution, those witnesses who were omitted by the Prosecutor are not material witnesses and they will not be able to speak about any part of the prosecution case. So, there is no merit in the contention raised by the accused that there is suppression of material facts also.
113. It is argued that none of the weapons used for the commission of the offence was recovered. P.W.30 deposed that after arresting the first accused, he was questioned and at that time, the first accused confessed that the weapon was concealed near a building under construction and took P.W 30 to that place. But the weapon was not found at that place. In this connection, it is to be noted that a massive search was conducted in the locality by another special team and a large number of weapons were seized. So the failure to recover the weapons used for the commission of the offence in this case is not fatal to the prosecution case.
114. It is argued that the prosecution failed to prove any motive in this case. It is argued that unless there was any grave and sudden provocation the persons who committed the murder would not have entered into the school and killed the deceased. According to the appellants, there was no personal enmity between the accused and the deceased. The deceased was a teacher working in an Upper Primary School. But two armed Police Constables were deputed to act as Personal Security Officers of the deceased as there was threat to his life. The assailants also knew that the only place where the Personal Security Officer will not be present is inside the class and it will be very easy to kill the deceased inside the class itself. Further it is well settled position of law that when there is direct evidence to prove the incident, failure to prove motive is immaterial.
115. The prosecution had a case that a mass counselling was arranged to brainwash the students. There is nothing on record to show that P.W.19 who is a Government servant was authorised by the competent authority or P.W.30 to conduct a mass counselling. It was admitted by P.W.19 that the records of the mass counselling were not kept in the hospital but at his house. Who actually arranged for the counselling and its purpose were not discernible from the evidence. But we are of the view that it is not necessary to consider whether it was proper or not on the part of P.W.19 to conduct a mass counselling. The fact remains that such a mass counselling was conducted. The appellants also attacked the evidence of P.W. 19, the Psychiatrist. We are not expressing any opinion regarding the purpose and propriety of the mass counselling conducted by P.W. 19.
116. The learned counsel appearing for the appellants have argued that the leaders of Bharathiya Yuva Morcha itself had staged agitation alleging that investigation conducted in this case was unfair and the real culprits were not apprehended. Reliance is placed on Ext.D16(a) report appeared in Ext.D16 Mathrubhoomi Daily. The evidence on record shows that the organisation, to which the deceased was the Vice President, was not satisfied with the investigation conducted. The allegation was that some of the top leaders of C.P.I.(M) were also involved in the conspiracy and the police was protecting them. Investigation of a case is conducted by the investigating agency and not by any other organisation. In this connection, it is to be noted that according to the prosecution, four more accused were involved in this case. But they are not yet arrested on the ground that they are absconding. We had already considered the argument that investigation in this case was faulty. In these appeals we are called upon to consider whether the evidence adduced is sufficient to prove the guilt of the accused. P.Ws. 3 to 6 have nothing to gain by falsely implicating the accused after sparing the real culprits. Further C.P.I.(M) was in power and late E.K.Nayanar was the Home Minister during the relevant period. It is very difficult to believe that the police will dare to falsely implicate a Secretary of Local Committee and other active members of the ruling party after shielding the members of an underworld gang. So there is no merit in the argument that the police had falsely implicated innocent persons and the real culprits were spared.
117. The evidence of P.Ws.3 and 5 corroborated by the evidence of P.Ws. 4, 6, 7 and 8 proves beyond any reasonable doubt that the accused 1 to 4 and 6 and 7 in pursuance of a common object of murdering Jayakrishnan formed themselves into members of an unlawful assembly at about 10.30 A.M. on 1.12.1999, armed with deadly weapons like iron rod, swords, axe, etc. and trespassed into the school premises. It further proves that A1, 4 and 7 trespassed into Class VI-B from the western side and A2, A3 and A6 trespassed into that class from the eastern side and inflicted as many as 44 injuries on the person of deceased Jayakrishnan Master and he died at the spot because of those injuries. The evidence adduced in the case further shows that the appellants after committing the murder went to Parammel junction through Pathippalam-Pararnmel road which lies on the west of the school building with blood stained weapons in their hands.
118. The evidence discussed above shows beyond any reasonable doubt that the prosecution has succeeded in establishing the guilt of accused 1 to 4, 6 and 7 beyond any reasonable doubt. The trial Court after considering the evidence on record had come to a correct conclusion that they are guilty of the offences charged against them. We do not find any reason to differ from the findings of the trial Court that the appellants are guilty of the offences punishable under Sections 143, 147, 148, 342, 449 and 302 read with S. 149 of Indian Penal Code. We confirm that finding.
119. The State has filed an appeal challenging the order of acquittal of the 5th accused. The mother of the deceased filed Criminal Revision Petition No. 573 of 2004 challenging the judgment of acquittal of the 5th accused. Sri. Janardhana Kurap, learned Senior Counsel appearing for the appellants raised a preliminary objection that the Criminal Revision Petition is not maintainable in view of the decision of a Division Bench in Crl.R.P.No. 560 of 2000 dated 23.6.2003. The order reads as follows:-
"This revision petition has been filed by the de facto complainant against the order of acquittal passed by the Court of Sessions, Ernakulam. Now, it is revealed that State has filed Crl. A. 193/02 against the order of acquittal. In such circumstances, this revision petition will not lie".
We do not think it is necessary to consider the maintainability of the Criminal Revision Petition on its merits in this case. P.Ws.4 and 6 alone deposed that they had seen A5 standing on the footpath leading to the house of Prabhavathy Teacher while they were going to the office room. He was not identified by P.Ws.4 and 6 during the Test Identification Parade. Hence the dock identification of A5 by P.Ws.4 and 6 in Court for the first time is of no value. In the case of P.Ws.7 and 8, P.W.7 could not identify A5 in Court. P.W.8 alone identified A5 in Court. Even assuming that A5 was found standing in the property of Prabhavathy Teacher while the incident was going on, that fact alone is not sufficient to hold that he was also a member of the unlawful assembly. The learned Sessions Judge did not accept the evidence of the above witnesses to find that A5 was also a member of the unlawful assembly. We are also of the view that there are not enough materials to prove the complicity of A5 as a member of the unlawful assembly. The learned Director General of Prosecutions has argued that the evidence on record shows that he was carrying some explosives in a bag and it was intended to frighten any person who may come to the school to save the deceased by exploding the same. The mere fact that A5 was found carrying a bag in his hand is also not sufficient to hold that he was also a member of the unlawful assembly and was guarding the scene with an intention to frighten a person who is likely to intervene in the incident. The learned Sessions Judge acquitted him giving him the benefit of doubt. We do not find any reason to interfere with that finding of fact. We confirm that finding also.
Point No. (iii)
120. The next question arising for consideration is whether the sentence imposed in this case is proportionate to the offence committed. The learned Senior Counsel appearing for the appellants in both the appeals have argued that this case cannot be considered as a rarest of rare case and even if it is found that the appellants are guilty of the offences charged, it is not a fit case in which the sentence of capital punishment is to be imposed. They relied on the decisions reported in Ediga Anamma v. State of A.P. , Bachan Singh v. State of Punjab , Machhi Singh v. State of Punjab , Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28), State of U.P. v. Satish and Surendra Pal Shivbalakpal v. State of Gujarat . It is argued that there is no evidence to show that the appellants would be a menace to the society in future and there is no possibility of reforming themselves. It is argued that no death penalty is warranted in this case.
121. In Gurudev Singh v. State of Punjab (2003 SCC (Cri) 1616), it was held that the Court shall record the special reasons in case capital punishment is awarded.
122. In Krishna Mochi v. State of Bihar (2002 SCC (Cri) 1220) a three-Judge Bench of the Supreme Court considered the power of the Judge to determine an appropriate sentence. It was held that the power of the Judge to determine the appropriate sentence is based on the principle of proportionality so that punishment fits with the crime. In Bachan Singh's case (supra) it was held that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. In Machhi Singh v. State of Punjab , a three-Judge Bench of the Supreme Court following the decision in Bachan Singh's case (supra) observed that in rarest of rare cases when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. It was further held that the community may entertain such a sentiment if the murder is comnaitted in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. It was also held that the balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
123. In this case a School Master was brutally murdered inside the class in front of his students while he was teaching them. The incident happened in broad daylight. The accused had not made any attempt to conceal their identity. After committing the murder of Jayakrishnan Master, they wrote a warning on the blackboard that if anybody dares to give evidence, Jayakrishnan will be repeated. They left the place in procession through a public road brandishing the blood stained weapons like swords, etc. as if they were celebrating a victory. The only sin committed by the deceased was that he believed in an ideology which the Communist Party of India (Marxist) to which the accused are followers, could not tolerate. The evidence on record shows that the deceased was not involved in any criminal case. It also shows that he was not in the habit of insulting or ridiculing his political opponents even while addressing public meetings. Only because of growing popularity of the deceased and the fact that he was propagating an ideology which C.P.I. (M) could not tolerate, it was decided to liquidate him. There was threat to his life. Two armed Personal Security Officers were appointed to protect the deceased. A very feeble attempt was made to show that the deceased was in the habit of lending money on huge interest. There is absolutely no evidence to prove that contention. Further, it is very difficult to believe that if the deceased was having any such connection with criminals, he would have been provided with an armed gun man. Accused knew that it will not be possible to attack the deceased at his house or on his way to the school. They very well knew that while taking classes in such a building without any covering, they could attack the deceased. The time and venue were calculatingly chosen by the blood thirsty assailants. So they selected the temple of learning as the place to execute the deceased. The accused trespassed into the class and translated their evil design into action by committing the murder of Jayakrishnan in an extremely brutal, grotesque, diabolical, revolting and dastardly manner by inflicting as many as 44 ante-mortem injuries on the person of Jayakrishnan in front of his own students while he was imparting knowledge to them. The accused did not act like human beings at all. They have not considered the deep mental aberration and trauma that the children of tender age would have to suffer on seeing such a grotesque and terrific scene. The vomit detected in the classrooms by the investigating officer suggests that the occurrence was not only blood-curdling but also nauseating. The evidence of P. W. 19 shows that a number of students were under mental tension and because of that trauma, more than 90 students had to undergo mass counselling. The impact of such an incident is likely to persist and leave indelible scare in the minds of atleast some of the students who witnessed the incident. It will affect their personality development. Many students stopped their studies in that school and joined other schools. The accused not only committed a murder but also created many psychological problems to a large number of innocent children. So this cannot be treated as an ordinary murder. The subsequent conduct of the accused is also revolting. Before leaving the school building, they wrote a warning to the witnesses in the blackboard. They went out and marched through the public road with the blood stained weapons as if they were celebrating a victory. The manner in which the crime was committed shocks not only the near relatives of the deceased, but the entire community as a whole. We do not find any merit in the argument of the learned Senior Counsel for the appellants that in case the appellants are given an opportunity, they will reform themselves. So, we agree with the finding of the learned Sessions Judge that there is no meaning in holding that if a chance is given to the accused they are capable of reformation or rehabilitation. The deceased was a pedagogue who was loved and respected by all. He was mercilessly butchered to death at a time when he was unarmed and engaged in the solemn act of imparting knowledge to his beloved students. He met with his death at the young age of 34. In Ediga Anamma's case (supra) it was observed that the weapons used, the manner of their use, the horrendous features of the crime, the helpless state of the victim, etc. steal the heart of law for a sterner sentence. In Bachan's case (supra) the Constitution Bench of the Apex Court has observed that the killing of a public figure loved and respected by all would justify the award of capital sentence. By resorting to manslaughter of the worst kind displaying extreme depravity of mind, the accused persons have forfeited their terrestrial lease. So, we are of the considered opinion that the capital sentence imposed by the learned Sessions Judge in this case under Section 302 I.P.C. is justified and does not call for any interference. We also do not find any reason to interfere with the sentences imposed under Sections 143, 147, 148, 342 and 449 read with Section 149 of Indian Penal Code. We confirm the sentences imposed on those counts also. But, the learned Sessions Judge made a minor mistake in ordering that the sentences shall run consecutively. It is well settled position of law that if imprisonment for life is awarded on one count, the other sentences can run only concurrently. So, the direction that the sentences shall run consecutively is set aside. The sentences shall run concurrently. It goes without saying that on the execution of the capital sentence the other sentences will lapse.
124. The retributive spirit with which the cult of violence is practised in that area deserves to be condemned and deprecated in the strongest language. Bodily assaults and homicides can never be the solution to the differences in political ideologies. They only serve to produce maimed fellowmen, orphaned children and hapless widows. It was certainly not for this sorry state of affairs that our great ancestors fought for. It is high time that the people of that area realised the dreams and aspirations of our forefathers who won independence for this great nation, so that the constitutional ethos and brotherlihood would continue to inspire every member of the community at large.
In the result, Crl.A.No. 1599 of 2003 filed by accused 1 and 4 and Crl.A.No. 1685 of 2003 filed by accused 2, 3 and 6 are dismissed, subject to the observation that the sentences shall run concurrently. The Death Sentence Reference is answered confirming the conviction and imposition of death sentence on the appellants-accused for the offence under Section 302 of Indian Penal Code. Crl.A.No. 800 of 2004 filed by the State and Crl.R.P.No. 573 of 2004 filed by the mother of the deceased challenging the judgment of acquittal of the 5th accused passed by the learned Sessions Judge are also dismissed. Crl.M.C.No. 5125 of 2003 filed by P.W.30 is allowed. The adverse remarks made against P.W.30 are expunged. The direction issued to the Chief Secretary to the Government of Kerala to take action against P.W.30 is also set aside.