Kunjumuhammed vs Stateof Kerala Represented By The on 22 May, 2009

[Cites 27, Cited by 1]

Kerala High Court

Kunjumuhammed vs Stateof Kerala Represented By The on 22 May, 2009

The accused in S.C. No.4 of 2006 of the I Additional Sessions Court, Ernakulam, who stand convicted under Sections 323, 324, 341 and 302 IPC and sentenced to undergo imprisonment for one month each under Section 323 IPC, imprisonment for three months each under Section 324 IPC, imprisonment for 15 days each under Section 341 IPC; and imprisonment for life and to pay a fine of 25,000/- each, in default, imprisonment for three more months each under Section 302 IPC, have come up in appeal.

2. The case centres around the untimely death of an Crl.A.1477/2009 -: 2 :- young man aged 22, named Azeez @ Azi. It is alleged that there were some disputes regarding the use of a portion of the courtyard of the deceased, by the accused for taking motorbikes to their house. The house of the deceased is situated in a rocky area and there is a huge flat rock in the nearest vicinity of the house of the deceased as well as A1 to A3, namely Pookkarappara. It is alleged that at the time of the marriage of PW12, who is the sister of A1 to A3, permission was sought for by A1 to A3 from the deceased to enable them to take vehicles to their house through the courtyard of the house of the deceased. Even after that, without any permission, they continued to take motorbikes through the courtyard of the house of the deceased, which act was questioned by the deceased. Even though the mother of the deceased, PW2 claimed value of the property for making it to be a pathway for the accused, the mother of A1 to A3 had refused to make any payment by stating in a teasing manner that the amount to be paid in such case Crl.A.1477/2009 -: 3 :- would be a paltry amount. It is alleged that on 18.02.2004 at about 7 p.m, there had occurred a wordy altercation between the deceased on the one part and A1 to A3 on the other part, as the deceased had put some thorny materials that portion on his courtyard so as to prevent A1 to A3 from making use of that portion as a pathway.

3. It is the prosecution case that on account of the enmity of A1 to A3 towards the deceased, they decided to do away with the deceased for which they procured the assistance of their nephew A4 also. It is alleged that on 21.02.2004 at 9 p.m., while the deceased was going to the house of his sister, who is residing nearby, for giving back her torch, the accused, in furtherance of their common intention to do away with the deceased, attacked the deceased at Pookkarappara, by beating him with the leg of a cot, a wooden plank, and sticks which are identified as MOs.1 to 4. The deceased, with a view to escaping from the clutches of the accused, ran to the nearby property of Crl.A.1477/2009 -: 4 :- PW3. He was chased by the accused, and there also he was subjected to severe beating, by which he collapsed. PW2, the mother of the deceased, on hearing the cries of the deceased, rushed to the spot and attempted to intervene. She was followed by PW1, who is the sister of the deceased, along with her child. When PW2 attempted to intervene to the rescue of her son, she was pushed down by A1. It is further alleged that A2 and A4 by using a lungi worn by A2, tied the hands of the deceased, and all the accused forcibly took him and carried him to the courtyard of the house of A1 to A3, wherein he was dumped on the ground. Thereafter, they continued to beat him. His condition became worse, and he became unconscious.

4. It is alleged that A1 contacted Kothamangalam Police Station over the phone and informed them that the deceased had committed house trespass into their house and attempted to caught hold of and molest the women there; thereby it was resisted by them and they kept him in a Crl.A.1477/2009 -: 5 :- tied up position. After some time, the police reached the place by tracing out the house with the aid of PW6 and others who were attending the preparations at the nearby house in connection with a marriage scheduled to be solemnized on the next morning. PW7 was also present in the police party. On seeing the condition of the deceased, the police, with the aid of other persons who gathered there, took the deceased into the police jeep. At that time A1 and A2 also approached the police by stating that they were also attacked and they had also to get medical treatment. They were also taken to the hospital by the same police jeep.

5. After that, PW1 and PW2 also reached the hospital, as they were also in need of medical treatment. By the time, A3, PW12 and their mother CW24 also reached the hospital by claiming that they were also in need of medical treatment. PW23, Assistant Surgeon attached to the Community Health Centre, Kottayam examined the deceased as well as the other injured persons. On Crl.A.1477/2009 -: 6 :- examining the deceased, he prepared Ext.P21 wound certificate. As the condition of the deceased was critical, he was immediately referred for better management to an orthopedic surgeon as well as a neuro surgeon. The deceased was taken to the Medical College Hospital, Kottayam. On the way to the hospital, the deceased succumbed to the injuries at about 1 a.m. on 22.2.2004.

6. A2, who was not admitted by PW23 at the hospital was taken into custody by the police and he was taken to the Kothamangalam Police Station where he was allegedly kept under surveillance. A1 and A3 along with PW12 and CW24 were admitted at the Community Health Centre, Kothamangalam by PW23. PW23 examined PW1 and issued Ext.P22 wound certificate. He has noted down the history and the alleged cause of injury in Ext.P22 as, "beaten by stick at 9 p.m. on 21.02.2004 at her own house." He examined PW2 at 11.25 p.m. and issued Ext.P23 wound certificate. The history and alleged cause of injury noted in Crl.A.1477/2009 -: 7 :- Ext.P23 is that, she was pushed down and slapped with hand at her own house. PW23 examined CW24, the mother of A1 to A3 at 11.45 p.m. and issued Ext.P25 wound certificate. The history and alleged cause of injury noted therein is that she was attacked at the house at 8 p.m. PW23 examined PW12 at 11.50 a.m. and issued Ext.P24 wound certificate in which two incidents have been noted as the history and alleged cause of injury. According to her, at 8 p.m. she was attempted to be molested and her modesty was outraged while she was going to the bathroom. It was also stated that at 9 p.m. she was pelted with stones.

7. PW23 has examined A3 at 5.30 a.m. on 22.02.2004. It seems that PW23 had examined A1 and A2 at 11.05 p.m. and issued Ext.P27 wound certificate in respect of A1. As far as A2 was concerned, PW23 had issued Ext.P28 wound certificate in which it has been stated that, no external injury could be noted.

8. At about 8 a.m. on 22.02.2004, PW1 came to Crl.A.1477/2009 -: 8 :- know about the death of her brother, the deceased, thereby she obtained permission from the doctor there and proceeded to the Kothamangalam Police Station along with PW2. She had allegedly furnished Ext.P1 F.I. Statement before PW7, Assistant Sub Inspector of Police, Kothamangalam at 9 a.m., on the basis of which PW7 registered Crime No.80/04 of the Kothamangalam Police Station through Ext.P1(a) FIR. The matter had already been informed to PW26 during the previous night itself.

9. PW26 reached the mortuary of the Medical College Hospital, Kottayam at 1.30 p.m. on 22.02.2004, conducted the inquest, and prepared Ext.P5 inquest report. The clothes, including shirt and lungi as material objects, found on the body of the deceased were seized. The body was sent for postmortem examination. Thereafter, he reached the scene of occurrence at 5 p.m. on 22.02.2004 and prepared Ext.P10 scene mahazar. He has noted the scene of occurrence as Pookkarappara and the Crl.A.1477/2009 -: 9 :- surroundings and also the front courtyard of the house of A1 to A3. He seized MOs.1 to 4 from the courtyard of the house of A1 to A3. As the complicity of the accused came to light, he filed Ext.P32 report in the crime. On 22.02.2004 at 7.15 p.m. as the complicity of A2 was revealed, he was placed under arrest at the Police Station, through Ext.P33 arrest memo and Ext.P34 custody memo.

10. On the basis of the F.I.Statement furnished by PW12 who was admitted at the Community Health Centre, Kottayam during the night on 21.02.2004, a crime was registered as Crime No.82/04 for the offences under Sections 427, 323, 324, 354, 506(1) and 234 IPC against the deceased, his younger brother PW9, his uncle Becker and his two sons, as accused. According to PW26, the investigation revealed that it was a counter case which was false and thereby PW27 furnished a refer report before court. As A3 and A4 were absconding and A1 was undergoing treatment at the Community Health Centre, Crl.A.1477/2009 -: 10 :- Kottayam, they could not be arrested. On 24.02.2004 at 9 a.m., A3 was arrested at a place called Thrikkariyoor, through Ext.P36 arrest memo and Ext.P37 custody memo. On that day itself, A1 was discharged from the hospital and thereby at 12 noon he was arrested through Ext.P38 arrest memo and Ext.P39 custody memo. A4 was arrested at 9 a.m. on 28.02.2004 at a place called Kodumunda through Ext.P41 arrest memo and Ext.P42 custody memo. Ext.P19 sketch regarding the scene of occurrence was obtained from PW21 Village Officer. PW27, who is the successor in office to PW26, completed the investigation and filed the final report.

11. On the side of the prosecution, PWs.1 to 27 were examined, Exts.P1 to P46 were marked, and MO1 to MO26 were identified. After closing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. The accused denied the incriminating circumstances appeared in the evidence against them and contended that they are Crl.A.1477/2009 -: 11 :- innocent. According to A1, the case was not properly investigated and a false charge sheet was filed by the police. A2 has given a detailed narration.

12. According to A2, on the date of incident during night when his sister PW12 was going to the bath room, the deceased came and caught hold of PW12 and tortured her. On hearing her cries, CW24, the mother came. A1 also came. Then the deceased beat CW24, mother and A1 with a stick and caused injury. On hearing the hue and cry, the persons who were sitting at the Pookkarappara for drying ginger, rushed to the spot with weapons including sticks. The deceased entertained quarrel with them also and beat them. According A2, his mother, who was lying injured, his sister, and A1 were taken by him into the house. At that time the deceased attacked the mother also. They got inside the house and closed the door. After that also, quarrel was going on there between the persons who gathered there and the deceased. Therefore, he informed the matter to the Crl.A.1477/2009 -: 12 :- police. The police did not arrive. Therefore, he again called the police. By the time, the persons who entertained the quarrel with the deceased, had gone away. Thereafter, the police came. He gave the details to the Sub Inspector of Police. Injuries were also shown to him. On that night itself the Sub Inspector of Police had arrested him and kept him in custody. Even though he had narrated the true state of affairs to the police during that night as well as on the next day, the police proceeded with a false case and has not cared to investigate the case properly.

13. A3 has resorted to the very same contentions taken by A1. A4 has stated that he was residing at Pallarimangalam which is far away from the house of A1 to A3 and that he has been falsely implicated in this case by the police. According to him, during the time of occurrence, he was present along with his parents at his house at Pallarimangalam.

14. The prosecution and the accused were heard. As Crl.A.1477/2009 -: 13 :- there were no grounds to acquit the accused under Section 232 Cr.P.C., the accused were called upon to enter on their defence. The accused examined DW1. Exts.D1 to D3 were marked on the side of the accused. Again the prosecution and the accused were heard. The court below through the impugned judgment, found the accused guilty of the offences punishable under Sections 323, 324, 341 and 302 IPC, convicted them thereunder and sentenced them as aforesaid.

15. We heard the learned Senior Counsel Sri.B. Raman Pillai appearing for the appellants and Sri.Roy Thomas, learned Public Prosecutor appearing for the State, in extenso. The learned Senior Counsel has argued that the whole investigation is illegal right from the inception and that the benefit of such gross illegality committed by the investigating officers has to go to the accused and not to the prosecution. According to the learned Senior Counsel, no crime was registered till about 8 p.m. on 22.02.2004 and Crl.A.1477/2009 -: 14 :- that is the reason why A2, who was in custody, was not placed under arrest. Another argument is that the evidence of PW1 and PW2 relating to Ext.P1 as well as the incident are contradictory in nature and they being the only two occurrence witnesses allegedly witnessed the incident, the prosecution has failed to present the true genesis of the incident before. It is also argued that the night on which the incident had allegedly occurred was the first night after the new moon and admittedly there was no light at all. According to the learned Senior Counsel, there was no light at the Pookkarappara as well as in the property of PW3. Even though there was light at the house of A1 to A3, the same was immaterial as PW1 and PW2 had no case that they had any occasion to see anything what was going at the courtyard of the house of A1 to A3. According to the learned Senior Counsel, the prosecution has failed to prove the guilt of the accused beyond doubt and therefore, they are entitled to be acquitted. Per contra, the learned Public Crl.A.1477/2009 -: 15 :- Prosecutor has vehemently supported the prosecution case and argued that the crime was registered on time and the FIR could reach the court at 10.30 a.m. on 23.02.2004 only because of the fact that 22.02.2004 happened to be a Sunday. It was also argued that merely because of any deficiency from the part of the investigating officers, the accused are not entitled to an acquittal, when the incident has been proved through the evidence of PWs.1 and 2 as well as the contents of Ext.P1.

16. Let us consider the contents of Ext.P1 at first. It seems that Ext.P1 was allegedly furnished by PW1 before PW7, ASI of Police, Kothamangalam Police Station at 9 a.m. on 22.02.2004. Ext.P1 is a very detailed statement which clearly gives intrinsic particulars regarding all the incidents allegedly occurred at three spots namely, at Pookkarappara, at the corner of the property of PW3, and also at the courtyard of the house of A1 to A3. The learned Senior Counsel has pointed out that the age of PW1 is noted as 32 Crl.A.1477/2009 -: 16 :- and the age of the deceased is noted as 24, in Ext.P1.

17. As per the versions in Ext.P1 her case is that she was lying inside the room in the house at about 8.30 p.m., and the deceased was sitting at the veranda and he was reading the newspaper. At 9 p.m. the deceased went out of the house after telling his mother that he was going to his sister's house for giving the torch. After some time, they could hear the loud cries of the deceased from Pookkarappara. On hearing it, PW2 identified it as the voice of her son and she rushed to the spot. PW1 also accompanied her with the child. There they could see all the accused by using weapons, beating the deceased at Pookkarappara. When PW2 tried to intervene for the rescue of her son, she was pushed down by A1 at the rock. Again they continued to beat the deceased. However, the deceased escaped from the clutches of the accused, and ran to the property of PW3. The accused chased him and there also they continued to beat the deceased. PW1, by Crl.A.1477/2009 -: 17 :- lying on the deceased, attempted to resist the attacks on the deceased. A3 with a stick beat on her leg and back. A2 and A4 pushed her and the child, and removed them. By that time PW3 rushed to the spot and questioned the act of the accused in attempting to commit the murder of the deceased inside his property. At that time, A2 removed his dothi and A2 along with A4 tied the hands of the deceased with the dothi. Even though the deceased attempted to escape by wriggling out from the clutches of the accused, he could not. All the accused forcibly took the deceased up and carried him to the courtyard of their house. PW1 and PW2 went behind them by crying. The deceased was dragged to the courtyard of the house of A1 to A3, where also he was subjected to severe beating by all the accused. Blood was seen oozing out from the injuries all over his body. By crying on seeing it, PW2 went back to her house. PW1 went to the mosque for informing the matter to PW9, who is her younger brother working at the mosque. When Crl.A.1477/2009 -: 18 :- she, along with PW9 came back, they came to know that the police had reached the spot and took away the deceased from there, to the hospital. By that time, their uncle from the place called Pulikkunnepadi came by an auto rickshaw. She along with PW2 were taken by that auto rickshaw to the hospital. On reaching the hospital, they could see the deceased lying at the hospital with number of injuries and with blood all over the body. By an ambulance, the deceased was taken to the Medical College Hospital, Kottayam. On 22.02.2004 at about 8 a.m. the maternal grandfather and grandmother of PW1 reached the hospital and informed that the deceased had met with his death, on the way to Medical College Hospital, Kottayam when he had reached Ettumanoor. Thereafter, PW1 gave the information to the doctor there, obtained his permission, went to the Police Station, and furnished Ext.P1.

18. The learned Senior Counsel has pointed out that the evidence tendered by PW1 and PW2 are contradictory Crl.A.1477/2009 -: 19 :- to the contents of Ext.P1. Further, it has been pointed out that even though PW1 has got a case that she had gone to the Police Station from the hospital along with PW2 and furnished Ext.P1, according to PW2, both PW2 and PW1 came directly to her house from the hospital in the morning of 22.02.2004 and thereafter in the evening they went to the mosque for attending the burial of the body of the deceased. It has also been pointed out that PW1 has conceded in the cross examination that her signature was obtained in Ext.P1 F.I.Statement by PW7 after PW1 and PW2 had returned from the mosque after 8 p.m. on 22.02.2004. It is further argued that PW7 had not in fact registered any crime even prior to the inquest or the postmortem examination of the deceased and that the crime was actually registered after the burial of the dead body of the deceased.

19. In order to appreciate the arguments of the learned Senior Counsel, let us scan the evidence of PW1 and PW2. According to PW1, on the date of incident by 9 Crl.A.1477/2009 -: 20 :- p.m., the deceased went to the house of her younger sister for giving back the torch. He went towards Pookkarappara. After some time, they heard the cries of the deceased by pleading that he should not be murdered. According to her, she heard the cries while she was standing at the courtyard of her house. It has to be noted that her versions in Ext.P1 is that at the time when the cries were heard she was lying inside the room. On hearing the cries, when she went over the place, she could see the accused beating the deceased. She identified all the accused. She identified MO1 to MO4 as the weapons used by the accused to beat the deceased. When she reached there, the deceased ran to the property of PW3. All the accused chased him and beat him. By lying on the body of the deceased, she attempted to resist further attacks on the deceased, thereby she was beaten on her leg and back. She was forcibly removed by A1. At that time PW3 reached the spot and asked the accused not to commit any harm on the deceased in his property. A2 removed his Crl.A.1477/2009 -: 21 :- dothi and tied the hands and legs of the deceased with the help of A3. Then the accused took the deceased to the courtyard of the house of A1 to A3. Immediately, PW1 rushed to the mosque for procuring the presence of her younger brother PW9, who was working there. According to her, it was PW2 who had first reached the spot on hearing the cries of the deceased and at that time A1 pushed down PW2 on the rock. PW2 was beaten on her back by the accused. When she returned along with PW9 by an auto rickshaw, they came to know that the deceased was sent along with the police by A1 after procuring the presence of the police. Thereafter, she along with her uncle, PW2, and her child went to the hospital. On reaching the hospital they could see the deceased lying at the veranda of the hospital. There were no clothes on the body of the deceased. She and her mother were admitted at the hospital. On the next morning at 8 a.m. she came to know about the death of the deceased. When she had reached the hospital, A1 and A2 Crl.A.1477/2009 -: 22 :- were also present there. On getting the information regarding the death of the deceased, she obtained the permission of the doctor, went to the Police Station, and informed the matter. The police recorded the information in which her signature was obtained. She identified the said statement as Ext.P1. She has spoken to regarding the enmity of accused towards the deceased and the reason for the same. According to her, there was moon light at the scene of occurrence, so as to enable her to see the incident.

20. PW1 was subjected to lengthy and searching cross examination. According to her, when the deceased was forcibly taken by the accused to their courtyard, she directly went to the mosque and she did not know as to what had happened at the courtyard subsequently. She has clearly stated in evidence that she took her mother also along with her to the Police Station in the morning of 22.02.2004. According to her, the police had asked the Crl.A.1477/2009 -: 23 :- details from PW2 also. According to her, the signature of her mother was also obtained. As the police told them that the body of the deceased would be brought by 2.30 p.m., they went to their house, and reached the house by 3 p.m. At 4 p.m., they went to the mosque and came back only at 8 p.m., after the burial.

21. In cross examination she has stated in evidence that when she had reached the place where the deceased was being attacked, the deceased was lying in the property of PW3 and was being beaten by the accused. Therefore, it may not be possible for her to witness the incident in which PW2 was allegedly pushed down by the accused. It seems that she has no occasion to see the incident which had allegedly occurred on the rock, whereas she could only see the incident which might have occurred at the property of PW3. Even though she has given a version that both the hands and legs of the deceased were tied by using a dothi removed from the body of A2, in Ext.P1 her version was that Crl.A.1477/2009 -: 24 :- both the hands of the deceased alone were tied. It seems that she had never reached the rock; whereas, at the most, she could have reached the property of PW3 only.

22. According to PW1, the police were asking all the details and therefore, she along with her mother had to remain at the Police Station till 2.30 p.m. on 22.02.2004. Thereafter, a paper was brought to her and her signature was obtained. When column No.14 in Ext.P1(a) was shown to her, she identified her signature in it. She has stated that the police had obtained her signature in her statement when she returned to her house after attending the burial. It seems that she had returned to the house after the burial by about 8 p.m. on 22.02.2004.

23. According to PW2, when the deceased had proceeded to the house of her younger sister with the torch, the accused beat him at Pookkarappara. Then the deceased ran to the property of PW3 wherein bushes are there. He was again subjected to attack by the accused Crl.A.1477/2009 -: 25 :- among the bushes. After beating him, they, with their dothi, tied his legs and pulled him as if timber was being pulled, to their house. Again, he was repeatedly beaten and thereafter, the accused procured the presence of the police. According to her, she did not see as to what were the acts done on the deceased at the courtyard of the house of A1 to A3. According to her, when A1 caught hold of the collar of the shirt of the deceased at the rock, the collar of the shirt got detached. He was beaten, and on seeing it she ran to the bushes. When she attempted to intervene for the rescue of the deceased, A1 pushed her down. According to her, she could see the incident as there was moon light. The police reached there and took the deceased to the hospital by the police jeep. She has emphatically deposed that the deceased was beaten in the property of PW3, that too among the bushes.

24. In cross examination she has clearly stated in evidence that from the hospital she along with PW1 had Crl.A.1477/2009 -: 26 :- returned to her house by 8 - 8.30 a.m. They came back by an auto rickshaw and they could reach the house, within half an hour from the hospital. Thereafter, they went to the mosque for the burial of the deceased. At the time of the incident, the moon was there at the top and therefore, she could see the incident in moon light. According to her, apart from the moon light, there was no other light.

25. It seems that even PW1 has a case that there was an incident in which she was attacked and cut by the deceased with a chopper on one day under the influence of liquor. When PW2 was asked whether the accused was in the habit of misbehaving towards women under the influence of liquor, she has admitted that the people had such a complaint. When she was asked whether the deceased was in the habit of quarreling with them on everyday, she posed a question as an answer by stating that the same were being done at her house.

26. On a close scrutiny of the evidence of PW1 and Crl.A.1477/2009 -: 27 :- PW2, it seems that their versions regarding the incident are contrary. PW2 has emphatically stated in evidence that they came by an auto rickshaw directly from the hospital on the next morning and they could reach the house by 8 - 8.30 a.m., and further, it took only half an hour to reach the house from the hospital by the auto rickshaw. Her case is that she along with PW1 directly came to their house from the hospital and thereafter they went to the mosque for attending the burial. At the same time, the case of PW1 is that after obtaining permission from the doctor she along with PW2 went to the Police Station, reached there at 9 a.m. and furnished Ext.P1 F.I.Statement. PW1 identified her signature in column No.14 of Ext.P1(a). She has clearly stated in evidence that her signature was obtained in her statement by the police after 8 p.m., after their return to their house, after attending the burial.

27. Neither PW1 nor PW2 has any case that they could see any incident happened at the courtyard of the Crl.A.1477/2009 -: 28 :- house of A1 to A3. According to PW1, she could see the deceased being attacked at the rock and the deceased jumping into the nearby property, and she also ran away from there. PW2 does not know any further incident. At the same time, she deposed that the accused tied the legs of the deceased and was dragged to their house, just as a timber was being dragged. At the same time, it is evident that she had no occasion to see such an incident.

28. According to PW7, while working as the ASI of Police, Kothamangalam, he got information over phone from A1 that a person who had trespassed into the house of A1 was tied down by him. The information was received by CW11 Head Constable, which was passed on to PW7 by CW11. Immediately, he along with CW11, and two policemen who were on night duty, proceeded to the place. As they did not know the house of A1, PW7 obtained the company some persons from the nearby house wherein there was a gathering in connection with the marriage Crl.A.1477/2009 -: 29 :- scheduled on the next day. When they reached the courtyard of the house of A1 to A3, they could see the deceased lying in a pool of blood at the courtyard. When he asked A1, he was informed that the said person attempted to molest women at their house. They took the deceased to the jeep. A1 and A2 also approached him by stating that they had injuries and they also require treatment. They were also taken to the hospital by the jeep. The deceased was referred to the Medical College Hospital. A2 was discharged on the very same night, thereby he was taken to the Police Station. According to PW7, at 9 a.m. PW1 reached the Police Station and furnished Ext.P1 F.I.Statement. Her signature was also obtained in Ext.P1, on the basis of which he registered Ext.P1(a) FIR. As the incident had already been informed to PW26, the investigation was taken over by PW26. In cross examination, he has stated that he could see material objects lying at the courtyard and the same were not removed or taken away by him. It was after making Crl.A.1477/2009 -: 30 :- the G.D entry, he had proceeded to the scene of occurrence. According to him, he could not state regarding the extent of the rock, as it was night. When he was asked as to why the statement of PW1 was not recorded on the previous night when he could see her at the hospital, he had resorted to a false contention that PW1 also had accompanied the deceased to the Medical College Hospital by the ambulance and therefore, he could not record her statement. Evidently, the said explanation is false. Further, he has stated in evidence in cross examination that the Judicial First Class Magistrate's court Kothamangalam was not in existence at that time and therefore, the FIR was sent to the Judicial First Class Magistrate's court- I, Moovattupuzha. Later, he could realise his mistake and then he corrected it by stating that the FIR was sent to the Kothamangalam court. The said correction was made by him on seeing the FIR. According to him, the learned Magistrate was also residing near to the court building. Crl.A.1477/2009 -: 31 :-

29. Based on the aforesaid evidence, the learned Senior Counsel has argued that the crime was not registered at 9 a.m. on 22.02.2004; whereas, the crime was registered in the evening around 8 p.m. and that was why PW7 approached PW1 at her house during the night of 22.02.2004 and obtained her signature in the statement. PW1 has clearly stated in evidence that her signature was obtained in her statement after her coming back from the mosque, at about 8 p.m. It is pertinent to note that A2, who was in custody, was not placed under arrest till the night of 22.02.2004. If, as a matter of fact, a F.I. Statement like Ext.P1, which contains the full description of the entire events, was available to the police, definitely they would have placed A2 under arrest in a grave crime like this. It is hard to believe that the police had waited for further evidence even when Ext.P1 was available with them, for recording the arrest of A2. According to PW7, PW1 had accompanied the deceased by 9 a.m. to the Medical Crl.A.1477/2009 -: 32 :- College Hospital, Kottayam and therefore, he could not record the statement of PW1 during the night of the incident itself. Even PW1 and PW2 have no such case that PW1 had accompanied the deceased to the Medical College Hospital, Kottayam. The FIR has reached the court at 10.30 a.m. on 23.02.2004 only. Had it been registered at 9 a.m. on that day, the FIR could have been produced at the house of the learned Magistrate on 22.02.2004 itself, when the Magistrate was residing just near to that court building. when PW1 has admitted that that her signature was obtained in Ext.P1 only by 8 p.m. on 22.02.2004, it cannot be believed that the crime was registered at 9 a.m. on that day, without a signed statement of PW1 as the F.I.Statement. Moreover, from the versions of PW2, it has clearly come out that, she along with PW1 had directly reached their house from the hospital, by about 8 - 8.30 p.m. by an auto rickshaw and thereafter they went out only for the purpose of attending the burial of the deceased at Crl.A.1477/2009 -: 33 :- the mosque. PW2 has no case that she had accompanied PW1 to the police station. Regarding the versions of PW1 in cross examination that her signature in Ext.P1 was obtained by the police at 8 - 8.30 p.m. on 22.02.2004, the prosecution has not cared to obtain any further clarification. The said matter was not even put to PW2 also, who was examined after the examination of PW1. Had the prosecution had a case that PW1 along with PW2 had gone to the Police Station at 9 a.m. on 22.02.2004 itself, that fact could have been put to PW2 and her clarification could have been obtained.

30. From all these, it is evident that there was no valid First Information Statement as contemplated under Section 154 of Cr.P.C. in this case, till 8 p.m. on 22.02.2004. It seems that PW7 had prepared a statement of his own as Ext.P1 and obtained the signature of PW1 in it by about 8 p.m. on 22.02.2004 at her house. PW7 has no case that the police had any business at the house of PW1, during the Crl.A.1477/2009 -: 34 :- night on 22.02.2004. The case forwarded by the learned Senior Counsel that no crime was registered, as averred by the police in this case, seems to be correct.

31. The learned senior counsel for the appellants has invited our attention to the decision in Thulia Kali Vs. State of Tamil Nadu [AIR 1973 SC 501], wherein it was held:

"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first Crl.A.1477/2009 -: 35 :- information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."

32. In Ishwar Singh Vs. State of Uttar Pradesh [AIR 1976 SC 2423], it was held:

"The extraordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when the case made in Crl.A.1477/2009 -: 36 :- court differs at least in two very important particulars from that narrated in the F.I.R. In such a case, the evidence of the eye- witnesses "cannot be accepted at its face value"."

33. In Meharaj Singh Vs. State of U.P. [1994 SCC (Cri) 1390], it was held:

"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured Crl.A.1477/2009 -: 37 :- version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The Crl.A.1477/2009 -: 38 :- absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR."

34. The learned senior counsel for the appellants has a specific case that the FIR in this case is, no doubt, ante- timed. In order to fortify the said argument, the learned senior counsel has pointed out that even though A2 was admittedly in the custody of police right from the night of the date of incident, his arrest was recorded only during the night of the next day. Till then, he was unnecessarily kept at the police station under the guise of 'surveillance on mere suspicion'. It has to be noted that till the time of his formal arrest by the police on the next night of the date of the incident, the police could not collect any other valid information regarding the incident. It seems that only on the Crl.A.1477/2009 -: 39 :- basis of the detailed version contained in Ext.P1 regarding the incident, the police has placed A2 under arrest. Especially, when the signature of PW1 was obtained in Ext.P1 only around 8 p.m. on the next night of the incident, it can be assumed that it was only after the registration of the crime based on such a statement during the night of the next date to the incident, the arrest of A2 was recorded. In such case, it points towards a suspicion that the FIR itself is ante-timed. To fortify the said argument, our attention has been invited to the decision in Bhupinder Singh Vs. State of Punjab [1996 SCC (Cri) 103].

35. It is trite law that the entire fabric of the prosecution case will collapse, if the FIR is fabricated or brought into existence long after the occurrence, without any valid explanation. The learned senior counsel has invited our attention to the decision in Marudanal Augusti Vs. State of Kerala [AIR 1980 SC 638], wherein it was held:

"The High Court seems to have overlooked Crl.A.1477/2009 -: 40 :- the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence."

36. The learned Public Prosecutor has argued that if at all there is some fault committed by the investigating officer in launching and conducting the investigation, it can only be treated as mere flaw in the investigation, the benefit of which cannot be claimed by the appellants. It has been argued that the accused cannot take shelter under a defective investigation conducted by the investigating agency in cases wherein there is sufficient ocular evidence to connect the accused with the crime. The learned senior counsel has argued that this is not a mere defect in the investigation, whereas the investigation is totally illegal and it crumbled down as the FIR itself was ante-timed and Crl.A.1477/2009 -: 41 :- illegal. According to the learned senior counsel, when the investigation as such is totally illegal, the benefit arising from such faulty investigation should go to the accused and not to the prosecution. The learned senior counsel relies on the decision in Kailash Gour and others Vs. State of Assam [AIR 2012 SC 786], wherein it was held:

"That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-a-vis cases in which it is not."

37. In the case in the decision in Kailash Gour (supra), the investigation had started and continued a long Crl.A.1477/2009 -: 42 :- way without the registration of a crime. In that case, the Apex Court could found that even without the registration of the crime, the investigating officer had proceeded with the inquest and then obtained the autopsy report etc. In that case, it was held:

"There can be only two explanations for this kind of a situation. One could be, that the investigating officer was so stupid, ill- trained, ignorant of the law and procedure that he did not realise the importance of getting a crime registered in the police station concerned before undertaking any investigation including conduct of an inquest, postmortem etc. The other explanation could be that since neither the investigating officer had any clue as to who the perpetrators of the crime were nor did the witnesses now shown as witnesses of the occurrence had any idea, the investigations started without any First Information Report being recorded till late at night on 15th December, 1992. We are inclined to believe Crl.A.1477/2009 -: 43 :- that the second explanation is more probable of the two. We say so for reasons that may be summarised as under:

(i) The investigating officer was a Sub Inspector of Police and the Station House Officer of Police Station Doboka. It follows that he had sufficient experience in conducting investigations especially in cases involving heinous crimes like murder. We also assume that the incident having taken place in an area which was apparently susceptible to communal violence and widespread disturbances as a result of the dispute over the demolition of the mosque, the same would have been reported to the higher officers in the police administration who would in turn ensure appropriate action being taken with suitable care in the matter.

(ii) The least which the investigating officer would do was to record the statement of the eye-witnesses or send the eyewitnesses to the police station for getting the First Information Report recorded.

Interestingly, while the alleged witnesses to Crl.A.1477/2009 -: 44 :- the occurrence were first sent to the police station, no one ever questioned them about the incident nor did the witnesses volunteer to make a statement. It defies one's imagination how Md. Hanif who was on the spot and who is alleged to have seen the occurrence was not questioned by the investigating officer especially when he did not have any injury much less a serious one rquiring immediate medical care and attention. Even if the eyewitness was injured, there is no reason why his statement could not be recorded in the hospital to ensure that an FIR is registered without undue delay and those responsible for committing the crime brought to book.

Failure of the prosecution to provide any explanation much less a plausible one shows that the investigating agency had no clue about the perpetrators of the crime at the time when it reached the spot or soon thereafter nor did anyone claim to have seen the assailants, for otherwise there was no reason why they could not be named and an Crl.A.1477/2009 -: 45 :- FIR registered immediately."

38. The learned Public Prosecutor has made strenuous attempts to canvass an argument that the FIR in this case cannot be treated as ante-timed even when it is shown that the signature of PW1 was obtained during the night at 8 p.m. even when the FIR is timed as one registered at 9 a.m. According to the learned Public Prosecutor, at the most it can be considered that when the investigating officer could trace out that Ext.P1, on the basis of which the crime was already registered, was not signed, the investigating officer has obtained the signature of PW1 who was the informant at a later point of time and, therefore, it was only an inadvertent error which cannot vitiate the registration of the crime. We are unable to comprehend the said argument because of the fact that in order to form a statement within the meaning of Section 154 Cr.P.C., the statement should be a signed one. Further, as per sub-section 2 to Section 154 Cr.P.C., a copy of such a statement recorded in writing and Crl.A.1477/2009 -: 46 :- signed by the informant should be duly served on the informant forthwith. We cannot imagine that PW7, who is an experienced Assistant Sub Inspector of Police who had almost 27 years of service, was unaware of the provisions contained in Section 154 Cr.P.C. The fingers point towards his lapse in not recording the F.I.Statement and in not registering the crime at the earliest. It has come out in evidence that he was present in the hospital even during the night of the incident and it was he who took the deceased to the Government Hospital, Kothamangalam. Therefore, it is his admitted case that he could see PW1 and PW2. He has given a false explanation that he could not obtain the presence of PW1 in order to get the F.I.Statement recorded then and there, as PW1 had accompanied the deceased to the Medical College Hospital, Kottayam. It is the admitted case of PW1 that she had never accompanied the deceased to the Medical College Hospital, Kottayam, whereas she along with her mother PW2 continued to be there at the Crl.A.1477/2009 -: 47 :- Community Health Centre, Kothamangalam till the next morning as inpatients.

39. The learned Public Prosecutor has invited our attention to the decision in A.W.Khan Vs. State [AIR 1962 Calcutta 641], wherein it was held that the absence of signature in the FIR by the informant will not vitiate and nullify such report. It was held therein that, "If there is an information relating to the commission of a cognizable offence, it falls under S.154 and becomes admissible in evidence as such, even though the police officer may have neglected to record it in accordance with law. The information which starts the investigation is the real first information under Sec.154 and should be treated in evidence as such."

This is not a case wherein PW7 had registered the crime on an extraneous information from somebody or on his own information received by him while he was taking the deceased to the hospital from the courtyard of the house of Crl.A.1477/2009 -: 48 :- A1 to A3. Had the crime been registered on the basis of such an extraneous information or on the own information of PW7 which could be gathered legitimately or on the basis of the GD entry of the police station, it could have been said that the absence of signature in Ext.P1 statement is of no consequence at all. In such case, Ext.P1 will have no fault at all as it could not have been treated as the F.I.Statement within the meaning of Section 154 Cr.P.C.

40. The learned Public Prosecutor has relied on the decision in Surendra Pal and others Vs. State of Uttar Pradesh and another [(2010) 9 SCC 399], wherein in paragraph 16.4 it was held:

"The fact remains that the report was received by the Station House Officer and the FIR was issued immediately thereafter. It is of no consequence whether the first information report contained his signature or not. There is no material available on record to arrive at any conclusion that the first Crl.A.1477/2009 -: 49 :- information report lodged by PW1 itself was after some deliberations and consultations in the police station. There is no such case made out by the appellants. In the circumstances, it is not possible to agree with the submissions made by the learned Senior Counsel that FIR was lodged after consultations and deliberations."

That ratio can be distinguished in this case as the question involved in the case relating to the decision noted (supra), is with regard to the absence of the signature of the informant in the FIR and not in the F.I.Statement. Here, in this particular case, according to PW1, PW7 had appeared at her house during the next night to the date of incident after 8 p.m. and obtained her signature in her statement i.e., the F.I.Statement alleged to have been furnished by her. The matter in controversy in this case is with regard to the absence of signature in Ext.P1 and not in Ext.P1(a).

41. The learned Public Prosecutor has relied on the decision in State of M.P. Vs. Mansingh and others [(2003) Crl.A.1477/2009 -: 50 :- 10 SCC 414] by pointing out that the Apex Court has held that the evidence of witness cannot be discarded merely because of the fact that the statement of that witness recorded under Section 164 Cr.P.C. does not contain the signature of that witness. We are in respectful agreement with that proposition. The procedure under Section 164 Cr.P.C. is a part of judicial proceedings. In that case, such statements under Section 164 Cr.P.C. are relevant and admissible under two provisions of the Indian Evidence Act. Firstly, it is a public document within the meaning of Section 74(iii) of the Indian Evidence Act. Secondly, the presumption under Section 80 of the Indian Evidence Act is available to such a document. The same cannot be equated with a F.I.Statement recorded by the police under Section 154 Cr.P.C.

42. The learned Public Prosecutor has invited our attention to the decision in Ratanchand Radhakisondas Vs. State [AIR 1960 Bombay 146], which also is, Crl.A.1477/2009 -: 51 :- unfortunately, relating to the absence of the signature of the informant in the FIR and not in the F.I.Statement.

43. It was PW26, who prepared Ext.P10 scene mahazar, in which PW15 was one of the attestors. Even though the prosecution case is that the incident had occurred at 3 spots namely, at first at Pookkarappara, next at the corner of the property of PW3, and then at the courtyard of the house of A1 to A3, Ext.P10 relates only to two spots namely, Pookkarappara as well as the courtyard of the house of A1 to A3. It is pertinent to note that even though the deceased has sustained that much injury, a drop of blood was not seen at Pookkarappara. PW24 Scientific Assistant was also present along with PW20. PW24 could collect materials only from the courtyard of A1 to A3 and not from Pookkarappara or from the property of PW3. It seems that PW24 has not even visited Pookkarappara or the property of PW3. If as a matter of fact, the incident had occurred only at the courtyard of A1 to A3, there is no ocular Crl.A.1477/2009 -: 52 :- version at all in this case regarding those incidents allegedly occurred at the courtyard of the house of A1 to A3. It is the admitted case of PW1 and PW2 that they had no occasion to see the incidents allegedly occurred at the courtyard of the house of A1 to A3. According to PW1, she could see the occurrence only at the property of PW3 and thereafter, she immediately rushed to the mosque for obtaining the company of PW9, her younger brother. According to PW2, she was pushed down at the rock by A1 as and when she reached the spot and thereafter she could not see anything as the deceased had jumped into the bushes at the nearby property. Therefore, her version that she could see the accused taking away the deceased to their courtyard, can only be taken with a pinch of salt.

44. It has clearly come out that the incident had occurred just on the next night to the new moon. It is only common knowledge that the moon will only be in crescent shape on that night and it will be there only around half an Crl.A.1477/2009 -: 53 :- hour and not more than that. There will be utter darkness. It is in that context, the evidence of PW1 and PW2 has to be appreciated. It is true that the villagers have a special power to their eye sight to identify persons of their locality, if they could see them in the close vicinity even during darkness. At the same time, in this particular case, it seems that PW1 has identified the weapons allegedly used by the appellants as MO1 to MO4. Similar is the case with PW2 also. It cannot be believed that in that darkness, without the aid of any light, PW1 and PW2 could identify any of the weapons. Of course, the weapons can be connected to the incident which resulted in injuries to the deceased, as some of the weapons contained human blood. But, that itself is not sufficient to conclude that those were the weapons present in the hands of the appellants at the time of the incident.

45. It is true that the versions of PW12 regarding the incident cannot be believed. It cannot be believed that the Crl.A.1477/2009 -: 54 :- deceased young man, even though was a known miscreant, had made an appearance near the bathroom adjacent to the house of A1 to A3 during the night and caught hold of PW12 and attempted to molest her. The said versions of PW12 are mere afterthought. At the same time, in order to attract criminal liability on the appellants in respect of the homicidal death of the deceased, the evidence in this case is insufficient. It can be suspected that the appellants might have attacked the deceased at their courtyard. Suspicion, however strong it be, cannot take the place of proof. In the absence of any light in the locality, and when the incident had allegedly taken place at a lonely place like Pookkarappara and in the property of PW3 etc., it cannot be believed that PW1 and PW2 had an occasion to see the attack on the deceased by the appellants. It is possible that they could have genuinely suspected that the deceased was attacked by the appellants, by considering the enmity between them. As we have already pointed out, the said Crl.A.1477/2009 -: 55 :- suspicion, however strong it be, is not a substitute for proof to convict the appellants in this case.

46. The acts of PW26 in proceeding with the inquest and sending the body for postmortem examination without the registration of a crime, have resulted in gross illegality in this case. When the crime was not properly registered, the entire edifice of the prosecution case built upon it crumbles down. The entire proceedings of investigation conducted further have become illegal. Even though PW1 has in unequivocal terms stated in evidence that her signature in her statement was obtained during night after 8 p.m., it seems that the prosecution has not made any venture to probe any further into it or to get it clarified. Ext.P1 F.I.Statement cannot be believed as a F.I.Statement at all furnished by a sister who lost her brother within hours back. It seems that PW1 came to know about the death of the deceased only by 8 a.m. It is alleged by the prosecution that the crime was registered at 9 a.m. after obtaining Crl.A.1477/2009 -: 56 :- Ext.P1 detailed F.I.Statement from PW1. Ext.P1 contains all the intrinsic particulars regarding the prosecution case. It cannot be believed that the same was shaped by PW1, who is almost an illiterate. It seems that PW7 and the police officers have conveniently shaped the prosecution case during the whole day and that was why they could not place A2 under arrest, even though A2 was in custody. Matters being so, gross illegality has been crept into the matter, and no doubt, the benefit of such illegalities should go to the appellants and not to the prosecution. Matters being so, the appellants are entitled to the benefit of doubt in the matter and they are entitled to be acquitted. The conviction and sentence passed by the court below without appreciating all the above, have resulted in substantial miscarriage of justice.

47. In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below as against the appellants are set aside. All the appellants are Crl.A.1477/2009 -: 57 :- acquitted and they shall be set at liberty forthwith. They shall be released from custody, if their continued presence in custody is not required in connection with any other case against them.

The Registry is directed to send the gist of this judgment forthwith to the concerned prison, where the appellants are undergoing incarceration.

Sd/- V.K.MOHANAN, JUDGE Sd/- B.KEMAL PASHA, JUDGE ul/aks [true copy] P.S. to Judge

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