Rajesh vs Stateof Kerala Represented By The on 28 April, 2009

[Cites 40, Cited by 3]

Kerala High Court

Rajesh vs Stateof Kerala Represented By The on 28 April, 2009

Here is a case, which depicts a fine illustration as to how recklessly an investigation could be commenced and conducted. The unfortunate untoward incident, which had triggered from some trivial incidents of restlessness among two religious outfits at a place called Kaduvinal within the local limits of Vallikunnam Police Station, have ultimately resulted in staging an attack towards the Kaduvinal mosque and the murder of an innocent young man who was coming out of the mosque after his night prayers by about 9 p.m on 23.2.2005. Carelessness had even extended to the conduct Crl.A.1561/2009 -: 2 :- of the prosecution before the court below also.

2. A2, A4, A5, A10 and A17 in S.C.No.594/05 of the Additional Sessions Court-II, Mavelikkara, who stand convicted under Sections 143, 147, 148, 447, 427, 326 and 302 r/w Section 149 of IPC and Section 153 A(1)(a) of IPC and each of whom sentenced to undergo rigorous imprisonment for 3 months under Section 143 of IPC, rigorous imprisonment for 6 months under Section 147 of IPC, rigorous imprisonment for one year under Section 148 of IPC, rigorous imprisonment for one month under Sections 447 r/w Section 149 of IPC, rigorous imprisonment for 6 months and to pay fine of 2,000/- each under Sections 427 r/w Section 149 of IPC and in default, to undergo rigorous imprisonment for 2 months each under Sections 427 r/w Section 149 of IPC, rigorous imprisonment for 3 years each and to pay fine of 3,000/- each, in default of payment of fine, to undergo rigorous imprisonment for 3 months each under Sections 326 r/w Section 149 of IPC, Crl.A.1561/2009 -: 3 :- rigorous imprisonment for 1 year each under Section 153A (1)(a) of IPC and to undergo imprisonment for life and to pay fine of 20,000/- each, in default, to undergo rigorous imprisonment for 2 more years under Sections 302 r/w Section 149 of IPC, have come up in appeal.

3. Originally, altogether 17 accused were indicted alleging offences as aforesaid, along with offences under Sections 307 and 120B of IPC also. In the course of the trial, A1 and A6 died. Even though the case as against A3, A8, and A9 were also committed, subsequently they absconded and therefore, the case against them was split up. The court below after a full-fledged trial, acquitted A7, A11, A12, A13, A14, A15 and A16. Further, all the accused were acquitted of the charges under Sections 307 and 120B of IPC.

4. It is alleged that the accused are the followers and sympathisers of an organisation called RSS. There was communal hatred and ideological differences between such Crl.A.1561/2009 -: 4 :- RSS workers with a section of the Muslim community who had indulged in the works of an organisation called NDF. It is alleged that both the said organisations wanted to promote communal hatred each other. The allegation is that as a consequence of such communal hatred, the accused, who are the followers of the RSS wanted to settle scores with the Muslim community, and thereby they hatched a criminal conspiracy, firstly on 23.2.2005 at 12 noon, at the Government Hospital, Kayamkulam, where A12 was undergoing treatment, consequent to the attack staged against him by the sympathisers of NDF. Thereafter, on the same day at 7 p.m., the accused assembled at the house of A13 wherein the RSS Karyalayam was functioning, and conspired further by finalising the plan for committing the crime involved in the incident in this case.

5. On 23.2.2005 at 9 p.m., the deceased along with PW15 and PW39 Imam of the mosque, came out of the mosque after night prayers. PW39 locked the mosque, and Crl.A.1561/2009 -: 5 :- after engaging in a chat for sometime, they were coming to the eastern courtyard. At that time, in pursuance to the conspiracy as aforesaid, the accused formed themselves into an unlawful assembly armed with deadly weapons like sword sticks, iron rods and bamboo sticks, and came and stopped the said vehicles on the road, just in front of the Kaduvinal Mosque by motorcycle bearing registration No.KL4H-7785 being ridden by A16 on which A6 was a pillion rider, and by jeep bearing registration No.KRQ- 8101, which was being driven by A17. A1 to A5 and A8 to A10 jumped out of the jeep and criminally trespassed into the eastern courtyard in front of the mosque with the said deadly weapons.

6. It is alleged that A1, in prosecution of the common object of the said unlawful assembly, inflicted cuts on the body of the deceased with MO4 sword thrice. One of the cuts fell on his right pinna, another one fell below his right ear and the third cut fell on the back of his head. It is Crl.A.1561/2009 -: 6 :- alleged that A4, A5, A8, A9 and A10 indiscriminately beat him with MO3 series iron rods all over his body. The deceased collapsed, thereby his head forcibly hit on the granite floor at the mosque compound. On seeing the attack, PW15 and PW39 took to heels and escaped. Then, A3 to A10 destroyed the tube light affixed in front of the mosque by beating with MO2 bamboo stick, A1, A2, A4, A5 and A8, A9 and A10 smashed and destroyed the window panes on the front, north and western walls of the mosque, and the roof tiles on the western side of the mosque, by beating and cutting with the weapons with them, thereby causing a wrongful loss to the tune of 10,000/- to the mosque.

7. Thereafter, the accused persons proceeded towards south through the road in front of the mosque, by the said jeep as well as the motor bike and stopped the vehicles on seeing PW1 standing at the road side in front of his house. A2 and A3 jumped out of the jeep and advanced Crl.A.1561/2009 -: 7 :- to PW1 by uttering the words, "cut and kill him." It is alleged that A2 inflicted a cut with MO1 sword aiming towards the neck of PW1 which was warded off by PW1 with his left hand, thereby resulting in fracture of the bones of his left wrist. It is alleged that A3 beat him with MO2 bamboo stick on his left flank. It is alleged that there was an attempt to commit the murder of PW1. However, without causing his murder, the accused persons fled away from the scene.

8. Immediately after the incident, PW15 who came near PW1 along with other persons, took PW1 to the Government Hospital, Kayamkulam, where he was attended by PW29. PW29 prepared and furnished Ext.P29 wound certificate. It seems that he gave a version regarding the history and alleged cause of injury as one committed inside the mosque. From the Government Hospital, Kayamkulam, he was referred to a higher centre for better management and thereby he was taken by PW15 to the Upasana Hospital, Kollam, where he was attended by PW35, who Crl.A.1561/2009 -: 8 :- prepared and issued Ext.P38 wound certificate. It seems that in Ext.P38 wound certificate, the history and alleged cause of injury was narrated as the incident that had occurred as the assailants unexpectedly trespassed into his courtyard and cut him with sword and beat him with an iron rod.

9. The persons gathered there at the mosque compound on hearing the hue and cry, lifted the deceased who was lying at the eastern courtyard of the mosque and took him to St.Thomas Mission Hospital, Kattanam, where he was attended by PW25 doctor, who prepared and issued Ext.P25 wound certificate. Immediately, he was referred to the Medical College Hospital, Kottayam. By the time he reached Kottayam Medical College Hospital, he died. The doctor, who attended him at the Kottayam Medical College Hospital, declared his death, at 1 a.m. on 24.2.2005.

10. Immediately the news spread, especially among the Police personnel and higher-ups within a few minutes, Crl.A.1561/2009 -: 9 :- that a mosque was attacked by RSS workers. Swiftly, police acted in maintaining the law and order situation in the locality and deployed police personnel at the mosque compound and in the locality. The death of the deceased was made known to the Police and it seems that by about 3 a.m. on 24.2.2005, information was received in respect of the death of the deceased.

11. PW39 when took to heels from the scene of occurrence at the courtyard of the mosque, fell down as he was rushing in a hurry, thereby he sustained some minor injuries. On reaching his house, he called the police and immediately two policemen came to his house. He was taken by the police jeep to the Government Hospital, Mavelikkara, where he was attended by DW2, who prepared and issued Ext.D18 wound certificate. The history and alleged cause of injury was seen given by him as, "More than 20 persons caused him to run for beating him at the mosque at 9 p.m. on 23.2.2005 at Kaduvinal and when he Crl.A.1561/2009 -: 10 :- fell down in that process."

12. PW34, who was the Station House Officer of the Vallikunnam Police Station, was on training duty at Thrissur and he came late at the scene of occurrence. A Head Constable of Police attached to Vallikunnam Police Station was deputed to record the First Information Statement from PW1. It is alleged that the said Head Constable, at first went to the Government Hospital, Kayamkulam and thereafter he went to Upasana Hospital, Kollam and recorded the statement of PW1 at 4 a.m. on 24.2.2005, in which his signature was also obtained. By the time, PW15 who is none other than the son of PW1 was called to the Vallikunnam Police Station, where he reached at 6 a.m. on 24.2.2005. His signed statement was recorded as Ext.P14. By treating it as the First Information Statement, PW34 registered crime No.39/05 of Vallikunnam Police Station through Ext.P14(a) FIR.

13. The investigation was taken over by PW41, the Crl.A.1561/2009 -: 11 :- Circle Inspector of Police, Mavelikkara, who was all along present there. On 24.2.2005 at 8 a.m. he reached the Medical College Hospital, Kottayam, and conducted the inquest of the body of the deceased and prepared Ext.P13 inquest report, by which he seized MO5 series clothes from the body of the deceased. Thereafter, he reached the scene of occurrence along with PW31, Scientific Assistant, at 3 p.m. and prepared Ext.P15 scene mahazar. He seized MO6 bloodstained towel, MO7 series of bloodstained soil, bloodstained hair, unstained hair and also unstained soil collected and produced by PW31. Thereafter, at 5.30 p.m., he reached the scene of occurrence where PW1 was allegedly attacked and prepared Ext.P16 scene mahazar.

14. On 25.2.2005 at 5 p.m., he placed A8, A9 and A10 under arrest. On the basis of the information furnished by A8, he reached the house of A13, from where he seized 3 numbers of iron rods which form part of MO3 series, through Ext.P17 mahazar. On 27.2.2005 at 5.30 p.m., he Crl.A.1561/2009 -: 12 :- placed A12 under arrest. Various reports were filed before court including Ext.P57 report for incorporating the offence under Section 120B of IPC. On 1.3.2005, he arrested A11. On 5.3.2005 at 8 p.m. he placed A6 and A7 under arrest. On 8.3.2005 at 10 p.m. A13 was arrested. Thereafter, on 10.3.2005 at 9 p.m. he arrested A1, A2 and A3, A16 and A17. On the basis of Ext.P64(a) information furnished by A17, PW41 seized jeep bearing registration No.KRQ-8101 through Ext.P64 mahazar. The same was also got examined by PW31, Scientific Assistant, who could find blood in its rear seat as well as in the carpet inside it. On the basis of Ext.P18(a) information allegedly furnished by A1, PW41 seized MOs.1, 2 and 4 through Ext.P18 mahazar.

15. On 22.3.2005, PW41 placed A5 under arrest. On the basis of Ext.P67(a) information furnished by A5 and as led by A5, PW41 seized MO9 shirt through Ext.P67 mahazar. On 28.3.2005, PW41 arrested A4. On the basis of Ext.P19(a) information furnished by A4 and as led by him, Crl.A.1561/2009 -: 13 :- PW41 seized MO10 shirt through Ext.P19 mahazar on 29.3.2005 and also seized the remaining two iron rods which form part of MO3 series. On 25.4.2005 at 4 p.m., PW41 seized motor bike bearing registration No.KL-4H 7785 from the courtyard of the house bearing No.V/82, through Ext.P72 mahazar.

16. It seems that three Test Identification parades (hereinafter referred to as 'T.I. parade') were conducted for the proper identification of the accused by the witnesses. On 19.3.2005, PW2, PW3, PW5 and PW39 were summoned for the T.I. parade at the Sub Jail, Mavelikkara. PW39 has not turned up, whereas the others attended. It is alleged that A6, A7, A8, A9 and A10 were identified by the witnesses in the said T.I. parade. PW36 learned Judicial First Class Magistrate, Harippad, who conducted the T.I. parade prepared Ext.P39 report, Ext.P40 series of statement of witnesses and Ext.P41 list of non-suspects participated in the T.I. parade. The second T.I. parade was Crl.A.1561/2009 -: 14 :- conducted on 6.4.2005 in which PW2, PW3, PW15 and CW5 were summoned. In the said parade, A1, A2 and A3, A16 and 17 were identified by witnesses, for which Ext.P42 report, Ext.P43 series of statement of witnesses and Ext.P44 list of non-suspects were prepared. The third T.I. parade was conducted on 20.4.2005, for which, PW2, PW3, PW15 and CW6 were summoned. In the said parade, A4 and A5 were identified by witnesses, for which, Ext.P45 report, Ext.P46 statement of witnesses and Ext.P47 list of non-suspects were prepared.

17. On the completion of the investigation, PW41 filed the final report, which was taken on file by the Judicial First Class Magistrate's Court, Kayamkulam, as C.P.No.43/05. The case relating to the accused, whose rank numbers are mentioned earlier, was committed to the Court of Session.

18. On the side of the prosecution, PWs 1 to 41 were examined and Exts.P1 to P91(a) were marked. On the side of the accused, Exts.D1 to D13 were marked during the Crl.A.1561/2009 -: 15 :- evidence of the prosecution itself. MOs 1 to 11 series were identified. After closing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. Thereafter, the prosecution and the accused were heard. As no grounds were made out to acquit the accused under Section 232 Cr.P.C., they were called upon to enter on their defence. On the side of the accused, DWs1 to 6 were examined and Exts.D14 to D19 were also marked. Again, the prosecution and the accused were heard. The court below found the appellants, namely A2, A4, A5, A10 and A17 in the sessions case, guilty as aforesaid, convicted them thereunder, and sentenced them as aforesaid.

19. We heard the learned Senior Counsel Sri.B.Raman Pillai appearing for A2, learned Senior Counsel Sri.P.Vijayabhanu appearing for A4 and A17 and the learned counsel Sri.P.S.Sreedharan Pillai, for A5 and A10. We heard the learned Public Prosecutor Sri.Roy Thomas for the State.

Crl.A.1561/2009 -: 16 :-

20. Both the learned Senior Counsel as well as the learned counsel appearing for the appellants have raised some interesting legal questions in the matter. They have argued that the prosecution has failed to present before the court below the true genesis of the incident and have deliberately suppressed the prior statement recorded from PW1. It is argued that the registration of the crime itself is without any legal basis, as the original FIS was suppressed and the crime was registered on a subsequent statement recorded as Ext.P14. Further, it is argued that all the accused, who faced the trial, including the appellants, were kept in dark deliberately by the prosecution regarding the matters contained in the first statement of PW1 recorded in this case, which altogether reveal a different story than the prosecution version. It is further argued that due to suppression of such a vital material, the prosecution has caused prejudice to the appellants by denying an opportunity to defend the charges against them properly. Crl.A.1561/2009 -: 17 :- The appellants are prejudiced as they were not made known as to what should have been the original charges they had to face. It is further argued that the versions of the prosecution witnesses on facts are also contradictory, which should not have been relied on by the court below. It is also argued that the court below has strangely relied on a so called copy of the statement allegedly recorded from PW1 at 4 a.m. on 24.2.2005 at the Upasana Hospital, Kollam, that too without ascertaining its genuineness and even without supplying copies to the appellants or the other accused. It is further argued that the case set up by PW1 in the said statement, even if accepted, clearly militates against the case set up by PW15 in Ext.P14 statement. It is also argued that the version given by PW1 before PW29 regarding the history and alleged cause of injury as is contained in Ext.P29 wound certificate gives a different version as to the scene of occurrence. It is also argued that the version given by PW39 in Ext.D18 before DW2 doctor, also gives a Crl.A.1561/2009 -: 18 :- different version regarding the scene of occurrence as well as the circumstances in which he sustained injuries. It is further argued that the T.I. parades conducted in this case have no sanctity at all, as the prosecution has failed to bring out any evidence regarding the identification made by any of the witnesses in the said T.I. parades, in their evidence before the court below. Sri.B.Raman Pillai has pointed out that A2 was a small boy, and as similar non-suspects were not available in the T.I. parade, in which he was allegedly identified by witnesses. Regarding the conduct of the T.I. parades also, both the learned Senior Counsel as well as the learned counsel for A5 and A10 have argued that the reports in the said parades cannot be accepted as a corroborative piece of evidence as regards the identification.

21. Per contra, the learned Public Prosecutor Sri.Roy Thomas has fully supported the findings entered by the court below and has canvassed an argument that the registration of Ext.P14(a) FIR on the basis of Ext.P14 does Crl.A.1561/2009 -: 19 :- not suffer from any illegality or irregularity and Ext.P14 has to be treated as the first statement having authenticity regarding the incident. The learned Public Prosecutor has canvassed an argument that the statement recorded from PW1 at 4 a.m. at Upasana Hospital can, at the most, be regarded as a statement recorded under Section 161 Cr.P.C. only, which has no relevance at all. Further, the learned Public Prosecutor has argued that unless and until specific prejudice on the part of the appellants is pointed out, the alleged suppression of the said statement of PW1 does not assume any importance at all. Further, the learned Public Prosecutor has argued that apart from the ocular versions of the witnesses which could be believed, the prosecution has relied on scientific evidence also in the matter, the cumulative effect of which, points towards the guilt of the appellants and, therefore, the guilt of the appellants stands proved beyond doubt. It is also argued that the T.I. parades were properly conducted in this case Crl.A.1561/2009 -: 20 :- and when there is a report from PW36, learned Judicial First Class Magistrate, who conducted the T.I. parades and who had given detailed evidence in the matter, the non-mentioning of the details of the T.I. parades and the identifications made by the witnesses before the court below are of no consequence at all.

22. Both the learned Senior Counsel as well as the other learned counsel for the appellants have led us through the evidence of all the material witnesses as well as the documents relied on by the prosecution.

23. After considering the contents of Ext.P14 and evidence of PW1 as well as the evidence of the other occurrence witnesses relied on by the prosecution, namely, PW2, PW3, PW15 and PW39, we shall deal with the sanctity or otherwise of Ext.P14 as a First Information Statement and also regarding the evidentiary value of the prior statement recorded from PW1. In that respect, we will have to consider the versions of PW34 as well as PW41 Crl.A.1561/2009 -: 21 :- also.

24. Let us first consider the contents of Ext.P14. Ext.P14 was furnished by PW15 at 6 a.m. on 24.02.2005 before PW34 at Vallikunnam Police Station. As per its contents, on 23.02.2005, by 9 p.m., PW15 along with deceased Ashraf and PW39 Imam of the Mosque got out of the Mosque and locked the Mosque. Then, they were proceeded to the eastern courtyard of the Mosque. At that time, he could see two persons riding on a motor bike from north to south through the road in front of the Mosque stopping the motor bike just in front of the Mosque. A jeep was also seen coming from the very same direction. The jeep also stopped in front of the Mosque. It seems that the registration number of either the jeep or the motor bike has not been mentioned in Ext.P14. As per Ext.P14, there were around 10 persons in the jeep. The persons, who came by the motor bike, pointed towards west and gave some directions to the persons in the jeep and then, the motor Crl.A.1561/2009 -: 22 :- bike proceeded towards further south. The persons, who came by the jeep, jumped out of the jeep by holding weapons like sword stick, iron rod, etc. and they got inside the courtyard of the Mosque. Deceased Ashraf was walking in front of PW15. One of the persons, who came by the jeep and entered the courtyard uttered "Cut and kill them all". One among them inflicted a cut on the deceased with a sword. The said cut fell on the back of the right ear of the deceased and blood spurted. Other persons, who were along with him, indiscriminately beat the deceased with iron rods in their hands. The deceased, who collapsed on getting the cut as well as the beatings, cried aloud. Smelling imminent danger to their life, PW15 ran away towards north-west and PW39 ran away towards west from the Mosque. Then, the assailants were seen smashing the window panes on the front side and northern side of the Mosque by beating on it with weapons. Ext.P14 shows that PW15 was watching the said incidents by hiding himself at Crl.A.1561/2009 -: 23 :- the narrow lane situated at the north western side of the Mosque. After damaging all the window panes of the Mosque, the said persons with sword sticks and iron rods, returned to the jeep by which they came over there and drove away towards south. As PW15 became sure that they would not return, he rushed to the place where the deceased was lying. He lifted him up. There was only slight movement. At that time, he could hear loud cries and screams from the direction of his house at the southern side. He went to the road to watch as to what was going on there. His father, PW1 who was there on the road at the northern side of his house, was being cut by some of the persons, who came by the jeep, by using sword stick and was being beaten with iron rod on his flank by one among them. The versions in Ext.P14 show that he did not see the incident in which his father was being attacked. At the same time, it shows that PW15 came to know that the cut aimed at the neck of PW1 was warded off by him with his left hand, Crl.A.1561/2009 -: 24 :- thereby PW1 sustained an injury. He could see blood oozing out from the injury on the left wrist of PW1. He immediately took the bike and went near the Karthiayani Temple, procured a jeep and brought it there. Then, he came to know that deceased Ashraf was taken by a mini lorry by which laterite stones were brought to his (PW15's) house. Immediately, he took his father to the Government Hospital, Kayamkulam, from where he took him to the Upasana Hospital, Kollam. Ext.P14 shows that PW1 was undergoing treatment at the said Hospital at Kollam. In Ext.P14, it has been noted that a wrongful loss of around 10,000/- was sustained to the Mosque on account of the damage caused to it. The further versions of Ext.P14 reveal that PW15 could identify the assailants on sight and he did not know the registration number of either the jeep or the bike. The bike was of 'Hero Honda' make and the jeep was ash coloured.

25. Now, let us consider the evidence of PW15 Crl.A.1561/2009 -: 25 :- before the court below. According to PW15, the incident had occurred at about 9 p.m. on 23.02.2005 at the eastern courtyard of the Kaduvinal Mosque. He went to the Mosque by 8 p.m. for the night prayers and almost all the other persons who had gathered in the Mosque for prayers had disbursed by 8.30 p.m. after the prayers. Thereafter, he along with PW39 and the deceased were engaged in a chat at the eastern courtyard of the Mosque. It seems that his version in Ext.P14 on this aspect is that the attack had occurred while they were just reaching the eastern courtyard. At that time, two persons came by riding on a motor bike from north and a jeep also came behind it. Both the motor bike and the jeep stopped there. The persons who came by the motor bike pointed towards the Mosque to the persons in the jeep. Around 8 persons got out of the jeep; three of them through the steps situated at the southern side of the Mosque and the others through the main gate, entered the eastern courtyard. They were Crl.A.1561/2009 -: 26 :- holding sword sticks, bamboo sticks and iron rods. The deceased was walking in front of PW15. One of the persons, who came over there, uttered to do away with all of them by cutting them. Then, the deceased attempted to run to the road. At that time, the person, who was holding a sword, inflicted a cut on the back of the right ear, adjoining the ear of the deceased, thereby blood spurted. The other persons beat the deceased all over his body by using iron rods. The deceased, on sustaining injuries, collapsed and fell on the floor of the courtyard by hitting his head forcibly on the granite spread on the courtyard. At that time, he and PW39, who were standing just near the deceased, felt that they would also be attacked. Immediately, he ran through the lane situated at the northern side of the Mosque, which leads towards west and by hiding himself, he stood there at some distance. PW39 was seen running towards west. Thereafter, the assailants were seen smashing the window panes of the Mosque. The person, who was holding MO2 Crl.A.1561/2009 -: 27 :- bamboo stick, smashed the tube light by beating on it with MO2. Thereafter, the assailants again came back to the road, got inside the jeep and drove away towards south. He immediately rushed to the spot where the deceased was lying. He lifted the deceased up. At that time, he could hear loud cries from the side of his house situated at the southern side. Immediately, he rushed to that spot. On reaching there, he came to know that the persons came by the bike as well as the jeep cut his father PW1 with sword stick and beat on his flank with bamboo stick. He came to know that the cut aimed at PW1 was warded off by his left hand, thereby he sustained an injury on his wrist and blood was seen oozing out from the injury. Further versions of PW15 relating to the incident are as narrated in Ext.P14. At the same time, he gave the colour of the motor bike as black in his evidence before court, which does not find a place in Ext.P14.

26. According to PW15, during that night itself, he Crl.A.1561/2009 -: 28 :- came to know that the deceased died. On 24.02.2005 at 6 a.m., he went to the Vallikunnam Police Station and furnished Ext.P14 before PW34. The witness requested the court below to permit him to go near the dock in order to identify the accused. He was permitted to do so. He identified A2, A4, A5 and A10. According to him, it was A4 who beat the deceased with iron rod and it was A10 who was standing there by holding a sword. Then, he corrected by stating that A10 had used an iron rod and beat the deceased with the iron rod. According to him, A5 also beat the deceased with iron rod and it was A4, who was standing there by holding a sword. On going through the said versions of PW15, it seems that he himself was not even very sure about the specific acts done by the said accused persons.

27. He identified MO4 as the sword used by one of the assailants to inflict injury on the deceased. He identified MO1 as the sword held by one of the accused persons. He Crl.A.1561/2009 -: 29 :- identified MO3 series as the iron rods and MO2 as the bamboo stick. At the same time, he has not identified the persons, who were holding MO3 series, and also the person who used the bamboo stick. Even though, at first, he stated that it was A10 who was standing there with the sword, later, he corrected it as A4. At the same time, the specific case of the prosecution is that it was A2, who was standing there with the sword. It seems that instead of A2, he has wrongly identified A10 at first and then, again wrongly identified A4. Therefore, evidently his identification of A4 and A10 is incorrect. He has not identified A2 also. Therefore, even the said versions of PW15 do not inspire confidence.

28. PW15 was subjected to searching cross examination. In cross examination, he has given a version that the motor bike was of 'Suzuki Samurai' make. At the same time, his version in Ext.P14 is that it was of 'Hero Honda' make. He has admitted that he frequently uses motor bikes. Especially, a person, who is using motor bikes, Crl.A.1561/2009 -: 30 :- can clearly identify the make of the motor bike. In Ext.P14, he gave a version that the motor bike was of 'Hero Honda' make and in evidence, he has given the version that it was of 'Suzuki Samurai' make. He has disowned his version in Ext.P14 regarding that aspect and he deposed that the make of the motor bike as contained in Ext.P14 is incorrect.

29. It seems that in Ext.P14 statement, there is an interlineation regarding the number of persons came to the courtyard of the Mosque. The original version 'as around 15 persons' was seen scored off and an interlineation was made above it by stating it 'as around 10 persons'. It seems that he has corrected his version as 8 persons in his statement under Section 161 Cr.P.C The contradiction in his statement under Section 161 Cr.P.C regarding that aspect, has been marked as Ext.D11.

30. Another strange aspect that has come out in the evidence of PW16 in cross examination is that, according to him, he was shown 5 iron rods (MO3 series) on 25.03.2005. Crl.A.1561/2009 -: 31 :- It has been pointed out before us that only 3 iron rods among MO3 series were seized prior to 25.03.2005 and the remaining two iron rods were seized on 29.03.2005 only, through Ext.P19, after the arrest of A4.

31. In Ext.P14, PW15 has a specific case that only one cut injury was inflicted on the deceased by using sword. At the same time, his versions in cross examination as PW15 reveal that three cuts were inflicted on the body of the deceased with sword. When asked regarding the said aspect in cross examination, he has stated in evidence that three cuts were inflicted on the deceased by using sword and only after the infliction of the said three cut injuries, blood spurted. When the contradiction regarding his evidence on that aspect with his version in Ext.P14 was put to him, he stated that it was a mistake committed by him in making such a version in Ext.P14. He again reiterated that even on getting the first cut, blood spurted. In cross examination, a specific question was seen asked whether Crl.A.1561/2009 -: 32 :- the assailants had ample opportunity to attack PW15 as well as PW39 also. His immediate reaction was that without giving any such opportunity, immediately they ran away and escaped. From the said version itself, it is hard to believe that he had any occasion to see the incidents in detail as narrated by him in court. Of course, he could have noted persons trespassing into the courtyard with weapons; but it is hard to believe that he had any sufficient opportunity to identify any of the said persons, especially when he has no case that any of the assailants were previously known to him. He has admitted that he has not given any identification features of any of the assailants either before PW34 or before PW41.

32. Another important aspect is that PW15 was present all along with his father (PW1), when PW1 was examined by PW29 at the Government Hospital, Kayamkulam, as well as by PW35 at the Upasana Hospital, Kollam. Therefore, it is evident that the history and alleged Crl.A.1561/2009 -: 33 :- cause of injury as contained in Ext.P29 prepared by PW29 could be furnished either by PW1 or by PW15. Ext.P29 does not show that PW1 was not conscious or not oriented. Therefore, it could be taken that it was PW1, who might have divulged the information regarding the history and alleged cause of injury. According to PW29, the said information was furnished by PW1 himself. It has to be noted that the history and alleged cause of injury as noted in Ext.P29 is "Beaten inside Kaduvinal Mosque at 9.15 p.m. on 23.02.2005". Evidently, the said version was given by PW1 to PW29 in the presence of PW15. If as a matter of fact, the said version was not correct and PW1 was attacked elsewhere, definitely that would have been corrected by PW15 then and there. At the same time, the contents of Ext.P38 recorded by PW35 regarding the history and alleged cause of injury of PW1 is as follows:-

"Beaten with iron rod and cut with sword by some persons who unexpectedly came into the courtyard of his Crl.A.1561/2009 -: 34 :- house".

33. PW15 has clearly admitted in cross examination that he was all along present with PW1, when Doctors had examined PW1 at both the hospitals. His clear admission in cross examination as noted towards the end of page No.43 of his deposition reveals that his father as well as himself had stated the history and alleged cause of injury before both the Doctors at Kayamkulam as well as Kollam. Therefore, even according to PW15, his original version was that his father was attacked inside the Mosque as per his earliest version at the first instance. Subsequently, there was another version that somebody had trespassed into the courtyard of his house and attacked his father. At the same time, strangely enough, the prosecution has no case that PW1 was attacked by the assailants either inside the Mosque or at the courtyard of his house; whereas, the prosecution case is that he was attacked on the road in front of his house.

Crl.A.1561/2009 -: 35 :-

34. Now, we shall deal with the versions of PW1 regarding the incident. According to PW1, he was engaged in a chat with the driver of the mini lorry, by which laterite stones were brought to his house, by standing at the northern side of the gravel road in front of his house, at 9 p.m. on 23.02.2005. While so, he heard some sounds from the direction of the Mosque. According to him, the Mosque is situated 50 - 60 metres away towards north to his house and he felt the said sound as that of aggregates or rubbles being unloaded from a lorry. On hearing the said sound, he took 2 - 3 steps towards the eastern road. At that time, a motor bike came from north from the direction of the Mosque followed by a jeep. On seeing him, both the said vehicles stopped and 7 - 8 persons jumped out of the jeep. One among the said persons exhorted to 'kill him'. Two persons were holding sword sticks, out of whom, one wielded the sword stick aimed at his neck. He swiftly warded it off with his left hand, thereby he sustained a deep injury Crl.A.1561/2009 -: 36 :- on his left wrist and blood spurted. Further, according to him, one of the persons, who was holding a bamboo stick, beat him severely on his flank as well as back including back bone. He cried aloud. Other persons, who were witnessing the same, also made a hue and cry. Then, all those persons fled from the scene by the motor bike as well as the jeep. According to him, PW3 who heard his cries as well as saw the incident along with PW4, who was the driver of the lorry, and CW9 and CW10, who were the loading workers in the lorry, lifted him up. By that time, PW15 rushed to him, from the direction of the Mosque. PW15 had gone to the Mosque for the night prayers. He was taken by a jeep to the Government Hospital, Kayamkulam, where first aid was provided to him, and the wound was sutured. For better management, he was referred to a higher centre, thereby he was taken by PW15 along with other relatives, to the Upasana Hospital, Kollam.

35. According to PW1, he could identify the person Crl.A.1561/2009 -: 37 :- who inflicted cut on him as well as the person who beat him by using bamboo stick. He admitted that he had a problem with distant vision and thereby he sought permission of the court below for going near the dock in order to identify the accused. The request was granted. He went near the dock and after a close look, he identified A5 as the person, who was present there by holding iron rod at the scene of occurrence. At first he identified A15 as the person, who inflicted cut on him by using sword. Thereafter, he corrected it and showed A7 as the said person. It has to be noted that the prosecution version is that it was A2, who inflicted a cut on PW1 with sword. Further, the prosecution has no case that A15 had reached the spot where PW1 was subjected to attack. PW1 has not identified A2. He has identified A4 as a person, who was present at the spot with an iron rod. He identified MO1 as the sword used in order to attack him, and MO2 as the bamboo stick, which was used to beat him. He identified MO5 series as the iron rods.

Crl.A.1561/2009 -: 38 :-

36. The learned Senior Counsel and the learned counsel for the other appellants pointed out that the prosecution has no case that, apart from A2 and A3, any other persons had alighted from the jeep or from the motor bike in order to stage an attack on PW1. At the same time, the versions of PW1 are clearly contradictory to the prosecution case. His earliest version to PW29 is that he was attacked inside the Mosque. His second version is that some persons unexpectedly trespassed into his courtyard and attacked him. The expression 'some persons' clearly means that it should be more than two; otherwise, he could have clearly stated that only two persons had trespassed into the courtyard. He has a version in his evidence that the blood spurting from his injury, fell on his clothes as well as the ground. At the same time, Ext.P16 scene mahazar does not show any such signs of blood at the scene of occurrence. Either the prosecution or PW15 has no case that anybody had trespassed into the courtyard of PW1, or Crl.A.1561/2009 -: 39 :- attacked PW1 at his courtyard.

37. It is in the cross examination of PW1, for the first time it was brought out in evidence regarding a statement recorded from PW1 by the police. According to him, it was by about 4 - 4.30 a.m., that the police came and his statement was recorded. His version is that his statement was recorded and his signature was obtained in the said statement. He has admitted that he had never pointed out the persons who attacked him to the police and he had never identified them before the police. It has to be noted that PW1 was not summoned for the T.I. parades. In cross examination, he has clearly admitted that his statement was recorded at 4 a.m. and that statement was read over to him.

38. Now, the versions of PW41 regarding the said statement of PW1 alleged to have been recorded has to be appreciated. In cross examination, PW41 was asked as to whether the statement of PW1 was recorded at the Hospital and a FIR was registered on the basis of it. PW41 Crl.A.1561/2009 -: 40 :- answered that, during night on the date of incident itself, on receiving the information regarding the incident from the Dy.S.P., Chengannur, he deputed the Head Constable of Vallikunnam Police Station for recording the statement of PW1. The said Head Constable when reached the Government Hospital, Kayamkulam, PW1 had been taken to Upasana Hospital, Kollam and, therefore, the Head Constable reached Upasana Hospital, Kollam, and recorded the statement of PW1. By the time the said Head Constable had returned to the Vallikunnam Police Station with the statement of PW1, FIR had already been registered on the basis of the statement furnished by PW15 at 6 a.m. It has been argued on behalf of the appellants, that the prosecution has deliberately suppressed the said statement recorded from PW1.

39. The argument advanced on behalf of the appellants on this aspect is twofold. Firstly, it is argued that the prosecution wanted to suppress the true genesis of the Crl.A.1561/2009 -: 41 :- incident, as the versions of PW1 in his first statement were totally contradictory to the versions of PW15 in Ext.P14, as well as the prosecution case as a whole. Secondly, it is argued that the registration of Ext.P14(a) FIR on the basis of Ext.P14 itself is illegal, in the light of the first statement furnished by PW1, on the basis of which PW34 ought to have registered a FIR.

40. We were in search of such a statement among the prosecution records. The police had not cared to produce the said statement before the court below. Such a statement is not available among the records also. At the same time, it seems that the court below had the 'fortunate occasion' to peruse the so called copy of such a statement. The impugned judgment does not show that the court below had verified the authenticity of such a copy. From paragraph 15 of the impugned judgment, we can have a glimpse of the contents of the so called copy of such a statement. The narration in paragraph 15 of the impugned judgment Crl.A.1561/2009 -: 42 :- regarding that aspect is as follows:

"In that signed statement it is stated that at 8 p.m. yesterday (as stated by me earlier, the statement is seen recorded on 23.02.2005 at 4 a.m. and it is further stated that he sustained injuries on the previous night (22.02.2005) at 9 p.m. at the road on the northern side of his house. The date shown as 22.02.2005 is not correct because nobody has got a case that any occurrence took place on 22.02.2005 and in that occurrence PW1 sustained injuries) he was engaged in unloading cut stones and while so he heard the sound of speech and commotion stating 'cut him, kill him' and therefore he reached in the road on the eastern side and at that time two persons reached near him by running from north and one of them uttered 'cut him' and then one of them cut him with a sword stick, but he warded off that cut with his hand resulting injury on his left wrist and the other person beat him with an iron rod on his right rib. It is further stated that at that time Ashraf who reached on the eastern courtyard of the mosque Crl.A.1561/2009 -: 43 :- after prayer was cut and the entire windows of the mosque were destroyed and there after the persons who beat him and persons who cut Ashraf went away by driving the jeep in which they came."

41. We are, in fact, impressed by the argument that the versions of PW1 regarding the incident as noted above, are quite contradictory to the versions of PW15 regarding the incident, as well as the prosecution case as a whole. From the versions in the said statement of PW1, it seems that the two incidents, i.e, one incident in which PW1 sustained injury and the other incident in which fatal injuries were inflicted on the deceased, and the window panes of the mosque were damaged, had occurred simultaneously. It seems that PW1 had furnished such a statement, as if he had witnessed both these incidents. His versions therein is that he was cut with a sword-stick, but he warded it off, and thereby he sustained an injury and that another person beat him with an iron rod. The said versions are also Crl.A.1561/2009 -: 44 :- contradictory to the prosecution case. The prosecution case is that PW1 was beaten with MO2 bamboo stick, whereas his version in his first statement furnished before police is that he was beaten with an iron rod by another man. His further versions are that "at that time, Ashraf who reached on the eastern courtyard of the mosque after prayer was cut and the entire windows of the mosque were destroyed and thereafter PW1 and other persons who cut Ashraf went away, by driving the jeep in which they came".

42. Therefore, the said clear versions made by PW1 in his first statement allegedly recorded at 4 a.m. on 24.2.2005 by the Head Constable of Vallikunnam Police Station clearly reveal that PW1 had occasion to see the incident which had occurred on the eastern courtyard of the mosque. Further, his versions reveal that two sets of persons were involved in those incidents. His versions would go to show that he was attacked by one set of persons and at that time itself Ashraf, who came to the eastern courtyard of the mosque after Crl.A.1561/2009 -: 45 :- prayer was attacked by the other group of persons. On going through the evidence of PW15 and the contents of Ext.P14, the case is that, at first the attack was staged at the eastern courtyard of the mosque in which fatal injuries were inflicted on the deceased and all the window panes of the mosque were smashed and damaged. Thereafter, those assailants proceeded towards south by the jeep, which followed the motorbike, and both the vehicles stopped at the road in front of the house of PW1, where PW1 was standing and then he was attacked. We find considerable force in the argument forwarded on behalf of the appellants that the prosecution has deliberately suppressed the said statement furnished by PW1, as the contents of the same militate against the versions of PW15, the contents of Ext.P14, and the prosecution case as a whole.

43. On this aspect, the learned Public Prosecutor has pointed out that at the most the said statement of PW1 can only be considered as a statement under Section 161 Crl.A.1561/2009 -: 46 :- Cr.P.C. recorded by the police. We are not impressed by the said argument as the prosecution has no case that any investigation had commenced till 4 a.m., the time at which the said statement of PW1 was recorded. A statement under Section 161 Cr.P.C. can be recorded only during the investigation and not at any stage prior to the investigation. Even after the investigation, if any materials are there, of course, such statements under Section 161 Cr.P.C. can be recorded, and the same can be produced before court, along with a report under Section 173(8) Cr.P.C. Admittedly, Ext.P14(a) First Information Report was registered at 6 a.m. on 24.2.2005. Therefore, Ext.P4 cannot, at any stretch of imagination, be considered as a statement under Section 161 Cr.P.C.

44. On behalf of the appellants, our attention has been invited to the contents of Exts.D15 and D16. Ext.D15 is the copy of order dated 23.5.2005, passed by the court below, in Crl.M.C.No.1304/05 filed under Section 439 Crl.A.1561/2009 -: 47 :- Cr.P.C.for and on behalf of A1, A2, A3, A6 to A10, A12, A13, A16 and A17. It is argued that the contents of Ext.D15 clearly reveal that the said court had an occasion to go through the first statement of PW1, which contains altogether a different version than what is relied on by the prosecution at present. On going through Ext.D15, it seems that the then case brought before the said court by the prosecution was that, the accused in furtherance of their common object of committing the murder of Ashraf, who was a NDF worker, formed themselves into an unlawful assembly armed with deadly weapons and criminally trespassed into the mosque in Kaduvinal Muri and inflicted cut injuries with sword sticks and other dangerous weapons and also caused injury to Ebrahim Kutty (PW1) and others, and also caused damage to the mosque. Even though the contents of Ext.D15 as such need not be relied on, the same probabilise the case pointed out by the appellants at present. The first version of PW1 before PW29 was that he Crl.A.1561/2009 -: 48 :- was attacked inside the mosque. The contents of Ext.D15 also reveal that the incident had taken place inside the mosque and the deceased Ashraf as well as PW1 and others were attacked inside the mosque. Therefore, the contents of Ext.D15 relating to the incident, as narrated by the said court, also point towards such a version from the part of PW1 regarding the incident.

45. Regarding Ext.D16, which is an application under Section 437 Cr.P.C., filed on behalf of the aforesaid accused persons before the court of the learned Magistrate, it has to be noted that the then prosecution case set up before that court was that on 23.2.2005 at 9 p.m., the accused formed themselves into an unlawful assembly, committed rioting armed with deadly weapons at Kaduvinal muri of Vallikunnam Village and thereafter the accused trespassed into the Kaduvinal mosque and attacked and inflicted injuries to the persons standing at the mosque. There also, the version is that there was criminal trespass into the Crl.A.1561/2009 -: 49 :- mosque. Coupled with the versions of PW1 before PW29 as well as the contents of his statement as narrated by the court below in paragraph 15 of the impugned judgment when read along with the contents of Exts.D15 and D16, it seems that the earlier stand taken by the prosecution was that there was trespass into the mosque and the deceased along with PW1 and some others were attacked and injured inside the mosque. The said versions are clearly contradictory to the present prosecution case.

46. On the point regarding the suppression of such a statement by the police and the prosecution, the argument forwarded from the part of the appellants is that the appellants could not fruitfully defend the charges against them as the said first statement, which militates against the prosecution case, was not made available to the appellants during or prior to the trial. It has been argued on behalf of the appellants that without making available a copy of such a statement to the appellants, the court below has recorded Crl.A.1561/2009 -: 50 :- the contents of such a statement by verifying a so called copy of such a statement. Whatever be the nature of such a document, or its admissibility, such a statement can be considered as a signed statement by its maker, PW1.

47. According to the learned Public Prosecutor, the non-production of such a statement and the non-supply of its copy, can at the most be styled as a useless formality, as it would not have served any purpose at all. The said statement cannot be brushed aside by merely stating that it is of no use at all. The non-production of such a statement and the non-supply of its copy, cannot be said to be a 'useless formality'. In case of violation of principles of natural justice, it may be possible to argue that when any fruitful purpose will not be served, the violation of such principles of natural justice will be a 'useless formality', as pointed out by the Apex Court. At the same time, the theory of such 'useless formality' is altogether alien to our criminal justice dispensing system. When such a signed statement Crl.A.1561/2009 -: 51 :- was furnished by the maker, whose evidence was tendered in a criminal trial in which grave offences were alleged against the appellants, the appellants were entitled to have the copy of such a signed statement, the contents of which clearly militate against the prosecution case. In such circumstances, any further search is not required to conclude that prejudice has been caused to the appellants on account of the non-supply of its copy. Had a copy of the same been served on the appellants, the appellants could have confronted PW1 with the contents of the said statement and they could have clearly impeached PW1 on the basis of its contents, within the meaning of Section 155 (3) of the Indian Evidence Act. The denial of such an opportunity to the appellants, no doubt, clearly militates against the prosecution case.

48. Regarding such a statement, we are compelled to say that the investigating officer was carried away in waiting for such a statement to be recorded for registering the Crl.A.1561/2009 -: 52 :- crime, in a grave crime like the present one. It is the admitted case of PW41 that at 3 a.m. on 24.2.2005, he came to know that the deceased had met with the homicidal death at 1 a.m. The learned Public Prosecutor has expressed his difference of opinion on that aspect by submitting that PW41 could not have anticipated that the death was homicidal. We are not impressed by the said argument. It has clearly come out that the deceased had sustained injuries at the eastern courtyard of the mosque. It is the admitted case that blood was also there at that site. It is the further case of the prosecution that the deceased was taken to the hospital. Nobody has a case that on the way to the hospital he had met with any accident or he had attempted to commit suicide. Matters being so, the information received by PW41 by itself was clearly in respect of the homicidal death of the deceased. Moreover, it is evident that all the police officers, who were present there plenty in number, could clearly see the extensive Crl.A.1561/2009 -: 53 :- damage caused to the mosque which clearly point towards an offence under Section 153A IPC. When he had occasion to see such an incident, it cannot be said that he did not get any definite information regarding the incident for enabling the registration of the crime.

49. A police officer is duty bound to see that a crime is registered on getting reliable information of the commission of a cognizable offence. In this particular case, PW41 had direct knowledge of the commission of cognizable offences, within one hour of the incident. Of course, as to the identity of the accused or the assailants, he might not have received any concrete or specific information. At the same time, we are not impressed by the argument that it was only a vague information that he had, with regard to the state of affairs there. Even when the identity of the assailants were not known, when a homicidal death was there, or at least an unnatural death was there, he was duty bound to see that a crime was registered at least by incorporating Section 174 Crl.A.1561/2009 -: 54 :- Cr.P.C.and to intimate the same to the concerned executive magistrate.

50. Here, in this particular case, all the police officers had remained there as mute spectators and they were busily engaged in maintaining 'law and order duty' as pointed out by the learned Public Prosecutor. Time and again, the Apex Court as well as this Court had pronounced regarding the necessity to have separate machinery for 'law and order duty' and separate machinery for investigation of grave crimes. Under the guise of maintaining law and order duty, it seems that the police officers who were present there had forgotten the plight of the poor person who died in the incident and the ramification of the incident which had occurred there.

51. On behalf of the appellants, our attention has been invited to the decision of the Apex Court in Kailash Gour v. State of Assam(AIR 2012 SC 786) where the circumstance dealt with was almost the same as one in this Crl.A.1561/2009 -: 55 :- case, relating to the delay in the registration of the crime. In paragraph 26 of the decision noted supra it was held, "Deployment of a large police force in the area to which the Investigation Officer has referred in his deposition also was clear indicator of the atmosphere being surcharged and tense. That a house was set afire in the neighbourhood of the place of occurrence is also amply proved by the evidence on record. As a matter of fact, the police arrived on the spot within minutes of the commission of the gruesome murders not because any report was made to it about the said crime but because it had received information about a house having been set on fire. Once on the spot the police and the Army realised that there was much more at their hands than just an incident of fire. A mob comprising 35-40 people had intruded in the homestead of Taheruddin and committed cold blooded murder of three innocent persons, two of whom were female children of tender age. If the prosecution version were to be believed, the Investigating Officer had the opportunity of Crl.A.1561/2009 -: 56 :- getting an eye-witness and first hand account of the incident within minutes of the commission of the crime. In the ordinary course, the Investigating Officer would have immediately recorded the First Information Report based on the eye-witness account of the occurrence given by Md. Hanif and started his investigation in the right earnest. That is not, however, what happened. No effort was made by the Investigating Officer nor is there any explanation for his failure to ascertain from the alleged eye- witness the sequence of events and the names and particulars of those who were responsible for the same."

52. In the case in the decision noted supra, the investigating officer without registering the crime, even though he was aware of the occurrence fully, proceeded with by completing the inquest, postmortem etc. In Paragraph 27 of the decision noted supra, 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, Crl.A.1561/2009 -: 57 :- 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."

53. Our attention has been invited to the decision of the Apex Court in State of Andhra Pradesh v. Punati Ramalu (AIR 1993 SC 2644) wherein it was held:-

"PW1 was projected by the prosecution as an eye-witness who is the nephew of the deceased and had accompanied the deceased when the latter went to realise debts from the villagers. On reaching the police station at Narasaraopet he was informed by the constable on duty that the Circle Inspector, PW 22, had already received information about the occurrence and had left for the village. The police constable at the police Crl.A.1561/2009 -: 58 :- station refused to record the complaint presented by PW 1 on the ground that the said police station had no territorial jurisdiction over the place of crime. It was certainly a dereliction of duty on the part of the constable because any lack. of territorial jurisdiction could not have prevented the constable from recording information about the cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed."

It was further held therein as follows:-

"Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have Crl.A.1561/2009 -: 59 :- stooped to fabricate evidence and create false clues."

54. The Constitution Bench of the Apex Court has deliberated upon the mandatory procedures with regard to the registration of the crime and the further procedures, as well as the powers of the investigating officer prior to that, in Lalita Kumari v. Government of Andhra Pradesh(2013 (4) KLT 632(SC) = Lalita Kumari v. Government of U.P. & Ors. (ILR 2013 (4) KER 633). It was unequivocally held therein that, it is mandatory on the part of the police officer in charge of the Police Station to register a FIR, if the information given to the police discloses the commission of a cognizable offence and that the word "shall" contained in S.154(1) Cr.P.C. clearly shows the legislative intent. It was further held that in cases where, the information received does not disclose a cognizable offence; but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is Crl.A.1561/2009 -: 60 :- disclosed or not. Therefore, the inquiry prior to the registration of the crime can only be confined to the question whether the information truly discloses the commission of a cognizable offence. Once it could be ascertained that it discloses a cognizable offence, the officer in charge of the Police Station is duty bound to see that the crime is registered. He has no other option; but to see that the crime is registered.

55. When cognizable offences of more than one were disclosed, either PW34 or PW41 or other police officers should not have resorted to a lukewarm attitude in the matter; whereas the crime ought to have been registered then and there. It cannot be stated that they had only vague information of the incident; whereas the circumstances clearly reveal that they had specific, concrete information before their eyes regarding the commission of cognizable offences of grave nature. The non availability of the specific identity of the accused is not a ground to refuse the Crl.A.1561/2009 -: 61 :- registration of the crime. They could have gathered information regarding the accused subsequent to the registration of the crime as and when they could notice the cognizable offences committed there. This particular case reveals that PW41 had proceeded further in making arrangements for guarding the dead body for inquest, in deploying the police personnel for scene guard, and also for searching the whereabouts of some of the accused on the clues received by them. Therefore, it is evident that even prior to the registration of the crime, PW41 had gone further to the stage of investigation.

56. The learned Public Prosecutor has relied on the decision of this Court in Sukumaran & Ors. v. State of Kerala(2005(1) KLJ 743) to fortify his argument that the non-supply of statements recorded under Section 161(3) Cr.P.C. has no adverse impact on the prosecution case, in case specific prejudice of the accused has not been pointed out. True, in cases wherein, statements under Section 161 Crl.A.1561/2009 -: 62 :- Cr.P.C. of a witness have been recorded, and if a copy of any one of such statements which do not materially vary from the other statements is omitted to be supplied, it could not be said that the trial would be vitiated unless specific prejudice has been shown. The facts situation of the case in hand is not identical to the case noted supra.

57. Regarding the very same aspect, the learned Public Prosecutor has invited our attention to Noor Khan v. State of Rajasthan(AIR 1964 SC 286) and also Narayan Rao v. State of Andhra Pradesh(AIR 1957 SC 737).

58. The learned Public Prosecutor has invited our attention to the decision of the Apex Court in Binay Kumar Singh v. State of Bihar[(1997) 1 SCC 283] to fortify the position that under Section 154 Cr.P.C., the information must unmistakably relate to the commission of a cognizable offence(if given orally) and it shall be reduced to writing and shall be signed by its maker. There is no quarrel with regard to that preposition of law. In paragraph 9 of the said decision Crl.A.1561/2009 -: 63 :- it has been held:-

"Under Section 154 of the Code the information must unmistakably relate to the commission of a cognizable offence and it shall be reduced to writing (if given orally) and shall be signed by its maker. The next requirement is that the substance thereof shall be entered in a book kept in the police station in such form as the State Government has prescribed. First Information Report (FIR) has to be prepared and it shall be forwarded to the Magistrate who is empowered to take cognizance of such offence upon such report. The officer in charge of a police station is not obliged to prepare FIR on any nebulous information received from somebody who does not disclose any authentic knowledge about commission of the cognizable offence. It is open to the officer in-charge to collect more information containing details about the occurrence, if available, so that he can consider whether a cognizable offence has been committed warranting investigation thereto."

Crl.A.1561/2009 -: 64 :-

59. The decision in Binay Kumar Singh (supra) clearly depicts as to how the credit of a witness has to be impeached under Sections 145 and 155(3) of the Indian Evidence Act. In that respect it is further held:

"The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in S.155(3) of the Evidence Act and it must be borne in mind when reading S. 145 which consists of two limbs. It is provided in the first limb of S.145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that "if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose for contradicting him."

There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party Crl.A.1561/2009 -: 65 :- to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145."

60. Now, the nature and validity of the first statement recorded from PW1 and Ext.P14, based on which, Ext.P14

(a) FIR was registered, have to be considered. We are of the considered view that Ext.P14 does not contemplate and assume the status of a First Information Statement at all. As stated earlier, all the Police Officers including the Station House Officer, Vallikunnam Police Station, and PW41, the investigating officer, had direct knowledge regarding the incident that had taken place there. When the incident had Crl.A.1561/2009 -: 66 :- allegedly occurred which resulted in causing extensive damage to the Mosque, which is considered by the members of the Muslim Community as the abode of God, the inaction on the part of the said Police Officers in not registering a crime speaks volumes against the prosecution case. When they had direct knowledge of the commission of various cognizable offences, they ought have registered a crime then and there and started investigation. Instead of it, they sent a man behind PW1, who chased PW1 to Government Hospital, Kayamkulam, and then to Upasana Hospital, Kollam. Ultimately, he could catch PW1 to extract a statement from him. Even to that statement, it seems that the Station House Officer and the investigating officer had given a go by. Even though the said statement was recorded at 4 a.m. on 24.2.2005, they have chosen to obtain the presence of PW15 at 6 a.m., recorded Ext.P14 statement, treated it unlawfully as the First Information Statement, and recorded Ext.P14(a) on its basis, thereby Crl.A.1561/2009 -: 67 :- registering the crime. At any stretch of imagination, Ext.P14, in our considered view, cannot assume the status of a First Information Statement and therefore, gross illegality and irregularity have crept in the registration of the crime itself. It seems that the whole investigation, therefore, preceded by gross illegality crept in the registration of the crime. Hence, the prosecution itself is unable to place reliance on Ext.P14(a) as a validly and lawfully registered FIR. When there is gross illegality in the registration of the crime as such, the investigation continued thereafter has no legs to stand.

61. When we have found that the registration of the crime itself is illegal, the consideration of the other materials in the case has become mere academic.

62. Now, coming to the incident, the evidence of PW39 has also to be considered. As we have discussed earlier, it cannot be believed that PW39 had any opportunity to see the transactions occurred in the incident alleged to Crl.A.1561/2009 -: 68 :- have taken place at the eastern courtyard of the Mosque. It has come out from the versions of PW15, who was present along with PW13, that when the deceased was about to be attacked, both PW15 and PW39 ran away from the spot and escaped. According to PW39, while he was running away in a hurry, he fell down and thereby he sustained injuries. His versions reveal that after the night prayers, those who attended the prayers, disbursed by about 8.30 p.m. and thereafter, he along with PW15 and the deceased remained there. They were standing at the eastern courtyard of the Mosque. Then they could see a motor bike coming towards south through the road in front of the Mosque, followed by a jeep. Both the vehicles stopped in front of the Mosque, and then the persons riding on the bike pointed out the Mosque to the persons in the jeep. Then the bike proceeded 2-3 meters forward and again stopped there. (It has to be noted that PW15 has no such version). Around 8 persons had jumped out of the jeep, and entered the Mosque compound. Crl.A.1561/2009 -: 69 :- On seeing it, the deceased attempted to run away through the path way at the eastern side of the Mosque. At that time, one among the persons who came over there uttered loudly to do away with him. On hearing the exhortation, one among them inflicted a cut on the deceased with a sword thereby causing an injury at the right side of his head. Altogether 3 cuts were inflicted on the deceased. The deceased collapsed on the floor, where the granite stones were spread, thereby his head hit on the granite. Even on getting the first cut, blood spurted. Then around 5 persons indiscriminately beat the deceased by using iron rods. Then they turned towards PW15 and PW39. Immediately, they took to heels. PW15 ran towards north and PW39 ran towards west. He could hear the sounds of the smashing of the window panes as well as tube lights of the mosque. Prior to his reaching the house, he fell down, thereby he sustained injuries on his hands and knees.

63. The remaining versions of PW39 are important. Crl.A.1561/2009 -: 70 :- On reaching his house, he telephoned to the Police by dialing number '100 ' to the Control Room. After some time, two policemen reached there and took him to the Government Hospital, Mavelikkara, by the police jeep. It seems that the status of PW39 was almost equal to that of PW15 as a witness to the incident. Even at that time, there were no attempts from the part of the police to get the statement of PW39 recorded as the First Information Statement in order to register the crime. When PW39 was present in the vicinity of the Police at Mavelikkara, it seems that unnecessarily a Head Constable was deputed to Kayamkulam and then to Kollam for recording the statement of PW1. It assumes importance when the version of PW39 in Ext.D18 wound certificate relating to the history and alleged cause of injury was that, "more than 20 persons caused him to run for beating him at the mosque at 9 p.m. on 23.2.2005 at Kaduvinal and when he fell down in that process."

Crl.A.1561/2009 -: 71 :-

64. Even though the learned Public Prosecutor has pointed out that the words "in the mosque" are seen incorporated as an interlineation in Ext.D18, we do not find any cross examination regarding that aspect by the prosecution when DW2 was examined for proving Ext.D18. On going through the cross examination of DW2, it does not show that the prosecution had any challenge regarding the veracity of the contents of Ext.D18. Matters being so, it has to be taken that both the prosecution as well as the defence are relying on the contents of Ext.D18. When Ext.D18 gives a glimpse that the said incident, which has resulted in the injury sustained to PW39, had happened in the Mosque, while he was made to run by more than 20 persons in the course of attack, the versions contained in Exts.D15 and D16 assume importance as aforesaid. Even though PW39 was available to the police for recording a statement, it was also not done, for which, the prosecution has no explanation at all.

Crl.A.1561/2009 -: 72 :-

65. When PW39 was asked regarding the identity of the persons who entered the Mosque compound and staged an attack, he identified A16, A5, A4, A2 and then A17. Even the prosecution has no case that, either A16 or A17 had not entered the Mosque compound. According to him, A4 beat the deceased with an iron rod. He correctly identified A16 as the person who was riding the motor bike and A17 as the person who was driving the jeep. According to him, A2 was standing with a sword, while the deceased was being cut by another person. Regarding the role of A5 and A10, he has stated in evidence that they beat the deceased with iron rod. According to him, two swords, five iron rods and one bamboo stick were used by the assailants.

66. Regarding the aforesaid versions of PW39, it has been pointed out on behalf of the appellants that, the said witness who ought to have been examined immediately after the examination of PW1, was chosen to be examined as PW39 at the fag end of the trial, just prior to the examination Crl.A.1561/2009 -: 73 :- of the investigating officer, with a view to filling up the lacunae occurred in the prosecution case. Of course it is the prerogative of the prosecution to pick and choose the witnesses to be examined and the order in which the witnesses are to be examined. At the same time, it is a matter of concern that even though PW39 was summoned for attending the T.I. parade, he had not chosen to attend the T.I. parade. Even though he had no prior acquaintance with any of the persons allegedly entered the Mosque premises for staging the attack, he could identify the aforesaid accused persons when he was examined as PW39. Page No.17 of his deposition clearly reveals that he had no prior acquaintance with any of the accused. At the same time, he has stated that he had occasion to see the accused prior to the incident. His version is that on the Saturday preceding the date of his examination, he could hear the calling of the names of the accused persons at the court and thereby he could gather the names of some of the Crl.A.1561/2009 -: 74 :- accused. When he was asked as to the names of such accused, he narrated the names of the aforesaid accused persons only, who were identified by him when he was examined as PW39. It seems that he could get the assistance of somebody to ascertain the identity of those persons whose names were heard by him and thereby he identified those persons only before court. On going through the deposition as a whole, we are not in a position to rely on the correctness of the identification of the said accused made by him in court.

67. The contradictions in the statement of PW39 under Section 161 of Cr.P.C., are seen marked as Exts.D12 and D13. Even without those contradictions relating to the incident, we are of the view that, his identification of the accused can only be taken with a pinch of salt.

68. On behalf of the appellants, another vital aspect has also been pointed out regarding the delay of the so called FIR in reaching the court. We have already found Crl.A.1561/2009 -: 75 :- that there was no proper FIR at all. It seems that the crime was registered on the basis of Ext.P14(a) at 6 a.m. on 24.02.2005. It seems that the same reached the learned Magistrate, whose court is situated just 8 kms. away from the Vallikunnam Police Station, at 6 p.m. only. When the police have prepared Ext.P14(a) in the form of a FIR, that too belatedly by overlooking all the legal provisions, further delay has unnecessarily been caused without any explanation in placing the same before the learned Magistrate.

69. In fact, no crime was properly registered with regard to the incident. Exts.P14 and P14(a) cannot be described as a F.I.Statement and a FIR as far as the present crime is concerned. This is so because of the lapse on the part of the investigating machinery to act at least on the first statement recorded from PW1. Added to it, it seems that 12 hours have been taken for placing the FIR before court, which is situated just 8 kms. away from the Police Crl.A.1561/2009 -: 76 :- Station. Our attention has been invited to the decision in Rajeevan Vs. State of Kerala [AIR 2003 SC 1813], wherein it was held in paragraph 6 as follows:-

"The Trial Court noticed that there were many weak spots in the prosecution case such as, the delay in lodging First Information Statement. The spot of incident is only 100 meters from the Police Station. But the FIR was lodged in the Police Station only at 7.40 AM on the next day; that though FIR was filed on 29-12-1987 in that morning, it was sent to the Magistrate only at 5.40 PM on 30-12-1987; that the Sub-Inspector (PW-28) did not register the crime on the basis of information collected by him immediately after the incident; that Ex.P30 is the counter foil file of the FIR and between the entries relating to Crime Nos.5 and 7, certain blank sheets were found; that this circumstance was not satisfactorily explained by the concerned Police Office during examination. The Trial Court is of the view that this done to fill up details regarding the instant case subsequently; that Ex.P1 First Crl.A.1561/2009 -: 77 :- Information Statement given by PW1 also seemed to have been subsequently written on a blank signed paper, that this inference was drawn due to be cramped handwriting in the paper towards the end portion, just above the signature though there was adequate space in the next page."

70. The Apex court has in Ramesh Baburao Devaskar and Others v. State of Maharashtra [2007 (13) SCC 501] held, "In a case of this nature, enmity between two groups is accepted. In a situation of this nature, where the First Information Report was ante timed or not also requires serious consideration. First Information Report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting of lodging of First Information Report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the Crl.A.1561/2009 -: 78 :- accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of a First Information Report is always considered to be vital."

71. It was held that the necessity for the launching of the FIR without undue delay is to obtain the earlier information regarding the true state of affairs and true circumstances in a given crime, which had been committed, the names of the accused if known, the circumstances in which it was committed, the manner in which it was committed, the persons who became injured, the damage that have been done, etc. As time goes on, there is possibility of embellishments and exaggerations in the versions regarding the incident. It is quiet natural that when grave crimes are there, as those occurred in the present case, there is chance of such embellishments and Crl.A.1561/2009 -: 79 :- exaggerations from the persons supporting both the factions.

72. In Kailash Gour v. State of Assam (supra) it was held as follows:-

This Court in State of H.P. v. Gian Chand (2001) 6 SCC 71 : (AIR 2001 SC 2075) dealt with the effect of failure of prosecution to satisfactorily explain the delay in the lodging of the FIR and declared that if the delay is not satisfactorily explained the same is fatal to the prosecution. This Court observed :

"If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

To the said effect is the decision of this Court in Dilawar Singh v. State of Delhi (2007) Crl.A.1561/2009 -: 80 :- 12 SCC 641 : (AIR 2007 SC 3234), where this Court observed:

"In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."

73. To prove the incident occurred at the courtyard of the Mosque, the prosecution has cited and examined PW2 as an occurrence witness. According to him, on the date of incident, he came out of the Mosque after 8.30 p.m., after Crl.A.1561/2009 -: 81 :- the night prayers, and then he entered the road for going to his house. At that time, PW39, PW15 and the deceased were present at the courtyard of the Mosque. When he was about to enter the pathway leading to his house from the road, he could see a motor bike followed by a jeep coming in front of the Mosque and stopping there. 7 - 8 persons jumped out of the jeep, 3 of them entered the Mosque compound through the steps, and the remaining persons entered the Mosque compound through the northern gate. According to him, they inflicted cuts on the deceased with sword. Then he corrected his version as that it was one person who inflicted cut on the deceased with sword and the other 5 persons beat the deceased with iron rods. Another person was standing there by holding a sword and yet another person was standing there by holding a bamboo stick. Thereafter, they beat on the window panes, and the tiles on the roof of the Mosque and smashed everything.

74. According to PW2, the first cut inflicted on the Crl.A.1561/2009 -: 82 :- deceased fell above his right ear, the second cut fell below the right ear and the third cut fell adjacent to the right ear. Five persons had used iron rods to beat the deceased and also to smash the lights of the mosque. Thereafter, all of them came back to the road, boarded the jeep and bike, and proceeded towards south. According to him, the persons who came by the bike were sitting on the bike all along the incident. Two persons were sitting in the front seat of the jeep. After the bike and jeep had gone away, he shouted and cried aloud and ran to the Mosque. By that time, PW15 also reached the spot. He along with PW15 lifted the deceased up. The deceased was unconscious. It has to be taken note of that PW15 has no such case. PW15 has not stated anything regarding the presence of PW2 or any assistance rendered by PW2 to lift the deceased up. PW2 identified A2, A5, A7, A16 and A17. According to him, A2 was present with a sword. It was A16 who was riding the motor bike and A17 who was driving the jeep. He identified Crl.A.1561/2009 -: 83 :- MO4 as the sword used to inflict injuries on the deceased. He identified MO3 series as the iron rods with which the deceased was beaten. He identified MO2 as the bamboo stick. The contradictions in his statement recorded under Section 161 of Cr.P.C. were marked as Exts.D2 to D6. It seems that he had a version in Ext.D2 that the deceased came to the road and started to run and it was at that time he was attacked.

75. According to PW2, they heard cries and the sound of tumult from the southern side and thereby he along with PW15 ran to the spot from where such cries were heard. Then they came to know that PW1 was also cut and beaten. Further, he had a version that after causing the mischief at the Mosque, the motor bike as well as the jeep proceeded towards the north and subsequently, cries were heard from north. In fact, the prosecution case is that the jeep and the motor bike proceeded towards south from the Mosque and that the house of PW1 is situated towards south of the Crl.A.1561/2009 -: 84 :- Mosque and not towards north.

76. In cross-examination, PW2 has stated in evidence that he had identified the person, who inflicted cut injuries on the deceased; at the same time, it is evident from Exts.P42 and P43 series that he could not identify the first accused, who allegedly inflicted cut injuries on the deceased by using a sword, in the T.I. parade. It seems that in T.I. parade, he had identified accused Nos.2,16 and 17 along with two other non-suspects. His version in court that he had identified the person, who inflicted cut injuries on the deceased is contradictory to what had occurred in the T.I. parade. When he had not identified the first accused in the T.I. parade, especially when he stated that he had identified the accused, who had inflicted cut injuries on the deceased, it seems that he was aiming another accused as the person, who inflicted cut injuries on the deceased. Even though the first accused was present in the second T.I. parade, PW2 could not identify him.

Crl.A.1561/2009 -: 85 :-

77. It seems that in all the three T.I. parades, PW2 had occasions to wrongly identify the non-suspects also. In the first T.I. parade, he had identified two non-suspects also, in the second T.I. parade also, he had identified two non- suspects, and in the third T.I. parade, he had identified one non-suspect. When PW2 had identified altogether five non- suspects as persons participated in the incident, his identification of the accused in court can only be taken with a pinch of salt. Apart from all the above, it seems that he had allegedly identified the assailants by standing at a distance away from the Mosque and by standing just at the junction from where the pathway leads to his house starts from the road. The incident had occurred at 9 p.m. Of course, the presence of light at the spot was established. Even then, when he had not identified the first accused in the T.I. parade, it seems that he could not see the first accused even though he had a case that he was concentrating on the person, who was inflicting cut injuries Crl.A.1561/2009 -: 86 :- on the body of the deceased.

78. Relating to the incident in which PW1 was allegedly attacked also, as we have discussed above, the prosecution has two versions; the first version was that PW1 was attacked inside the Mosque and he could see the incident in which the deceased was attacked and the window panes of the Mosque were smashed, and the second version is that PW1 sustained injuries on the road in front of his house. At the same time, PW1 has another version also, as is evident from Ext.P38, that some persons unexpectedly trespassed into the courtyard of his house, and he was attacked at his courtyard.

79. The evidence being relied on by the prosecution, relating to the alleged attack staged against PW1, is the evidence of PW3. According to PW3, on 23.2.2005 by about 9 p.m., he heard the sounds of causing damage from the direction of the Mosque and also cries, and thereby he went to the road. On reaching the road, he could see a motor Crl.A.1561/2009 -: 87 :- bike followed by a jeep stopping on the road in front of the house of PW1. Eight persons jumped out of the jeep and rushed to PW1, who was engaged in a chat with the driver of a lorry that was parked there. One of the persons inflicted a cut aimed at the neck of PW1 by using a sword, which was warded off by PW1 with his left hand, thereby PW1 sustained an injury on his left wrist. Another person beat PW1 on his right flank with a bamboo stick. PW3 and the unloading workers, who were unloading laterite stones from the lorry, cried aloud. Then immediately, the said persons got inside the jeep and swiftly the motor bike and the jeep proceeded towards south. PW3 rushed to PW1 and lifted him up. At that time also, cries were being heard from the Mosque.

80. Then, PW3 came to know that the deceased was attacked and was lying there. By that time, PW15 who is the son of PW1 rushed to the spot. On reaching the Mosque, PW3 could see the deceased lying at the Mosque Crl.A.1561/2009 -: 88 :- compound, and window panes of the Mosque in a damaged condition. Somebody went and procured the mini lorry by which laterite stones were brought to the house of PW1, and the persons gathered there took the deceased into the lorry and sent him to the hospital. The deceased was unconscious. Somebody procured a jeep by which PW1 was sent to the Government Hospital, Kayamkulam. He identified A2 as the person inflicted the cut injury on the left wrist of PW1. When he was asked whether the person who used the bamboo stick was present among the accused in the dock, at first he answered in the negative. When he was asked whether the persons who were present at the spot with iron rods were present in the dock, he identified A4, A5 and A10. When he was asked whether any persons came by the jeep and the motor bike were present in the dock, he identified A16 as the person who was riding the motor bike and A17 as the person who was driving the jeep. He identified A7 as the person who was sitting on the front seat Crl.A.1561/2009 -: 89 :- of the jeep and was watching the situation. He identified MO1 as the weapon used to inflict injuries on PW1. He identified MO3 series also. Strangely enough, MO2 was not shown to him and he has not identified MO2.

81. On a perusal of the evidence tendered by PW3, it can be seen that his evidence is contradictory to the prosecution case. His versions clearly reveal that he had no occasion to see the incident occurred at the Mosque. The prosecution case is that it was A2 and A3 who staged the attack on PW1, at the side of the road lying in front of the house of PW1. At the same time, the version of PW3 in court is that, altogether 8 persons jumped out of the jeep and advanced to PW1. The contradictions in his statement under Section 161 of Cr.P.C. are marked as Exts.D7, D8, D9 and D10. It has come out in his cross examination that his three statements recorded under Section 161 of Cr.P.C., do not reveal that he could identify the persons who came by the jeep as well as the bike. Further, he has admitted that Crl.A.1561/2009 -: 90 :- he has never identified the person who was holding the sword, or inflicted injury with the sword, or the person who was holding iron rod, or the person who was holding the bamboo stick, before police. The prosecution has no case that anybody had attacked PW1 by using iron rods. At the same time, it seems that MO3 series iron rods were got identified through PW3, who had no occasion to see the presence of such iron rods in the hands of any of the accused, as per the prosecution case.

82. Regarding the T.I. parade, several objections have been pointed out on behalf of the appellants. One of the objections is that the fifth accused had a distinguishing mark on his face and non-suspects having similar identification marks were not available. It seems that in the T.I. parade, PWs.2, 3, 15 and CW5 could identify the fifth accused. According to the appellants, the said identification could only be because of that specific identification feature. It is argued that as similar non-suspects were not available, the Crl.A.1561/2009 -: 91 :- identification of the fifth accused in the T.I. parade does not inspire confidence.

83. Another objection is that the second accused was a boy of 19 at the time of incident and persons of similar age were not available as non-suspects for the T.I. parade. The learned Senior Counsel Sri.Raman Pillai has vehemently argued that due to the non-availability of non-suspects of similar age and similar physical stature, the identification of the second accused in the T.I. parade cannot be accepted. On going through Ext.P44 list of non-suspects, we could identify 2 - 3 persons of the age group around 21 years. When those persons were available as non-suspects along with the second accused, we do not find any merit in the said argument.

84. Another objection regarding the T.I. parade is that during such T.I. parades, the appellants had a definite case and complaints that their photographs and identification features were made known to the witnesses by the Crl.A.1561/2009 -: 92 :- investigating officer and therefore, the identification in the T.I. parades should not be relied on. In the absence of any evidence relating to that fact, we are of the view that mere complaints from the part of the accused in such identification regarding the exhibition of their photographs or of furnishing their identifying features by the investigating officer, do not deserve any merit at all. In all T.I. parades, the accused can have such complaints; but to accept such complaint, it should be supported by sufficient evidence.

85. On 23.2.2005 at 9.40 p.m., PW25 while working as an Assistant Medical Officer at the St.Thomas Mission Hospital, Kattanam, he had examined the deceased aged 35 and issued Ext.P25 wound certificate. He has noted the following injury:-

"Deep cut injury on the back of head involving bone and back of neck about 10 cm.long."

The deceased was unconscious and he was immediately referred to the Medical College Hospital, Kottayam. The Crl.A.1561/2009 -: 93 :- condition of the deceased was very serious. According to PW25, the said injury could be caused by using MO4.

86. By the time the deceased reached the Medical College Hospital, Kottayam, he died. PW30, while working as Assistant Professor of Forensic Medicine and the Deputy Police Surgeon at the Medical College, Kottayam, conducted autopsy on the body of the deceased on 24.2.2005 and issued Ext.P30 postmortem certificate. He has noted the following ante-mortem injuries on the body of the deceased:-

1.Abraded contusion on top of right shoulder 10x0.6 cm., inner and 2.5 cm. outer to root of neck.

2.Abraded contusion with central pallor 9x2.6 cm transverse on right side of back of shoulder 4.5cm below injury No.1

3.Abraded contusion with central pallor on back of right side of chest 11x2.6cm., transverse,10cm below injury No.2 and 4.5 cm outer to midline.

4.Abraded contusion with central pallor on back of chest 10x1.5cm oblique, the lower inner end 13cm below root of neck on midline. The outer left end 8cm below top of shoulder and 8.5cm outer to left of midline.

Crl.A.1561/2009 -: 94 :-

5.Abraded contusion on left side of chest 14x0.4cm., transverse 17cm, above top of hip bone, the inner end at midline.

6.Abraded contusion on right side of chest 11x0.5 cm, vertical, 13cm below armpit.

7.Abraded contusion on right side of chest 20x0.4cm, oblique, the lower inner end 19cm above top of hip bone and 5cm outer to midline, the outer upper end 8cm vertically below armpit.

8.Abraded contusion on right side of abdomen 2x2cm,1cm above top of hip bone.

9.Abraded contusion on back of right buttock 10x0.3 cm, vertical.

10.Abraded contusion on back of right thigh 8.5x0.3cm transverse 17cm above knee.

11.Abraded contusion on bridge of nose 2x2cm.

12.Incised wound on right side of face and neck 8.5x1cm, transverse muscle deep, both ends pointed, front end at cheek. The ear lobule cut removed over an area of 2x0.5cm.

13.Abraded contusion on outer aspect of right upper arm 14x0.8cm transverse,8cm below tip of shoulder.

14.Abraded contusion on outer aspect of right upper arm 5x0.3cm transverse 5cm below injury No.15.

15.Abraded contusion on back of right elbow 2x2 cm.

16.Abraded contusion on back of right hand 1x1cm, 3cm below middle finger knuckle.

17.Abraded contusion on outer aspect of left knee 1x1cm.

18.Abraded contusion scab formed with healing edge 8cm on front of left leg 3x1cm vertical Crl.A.1561/2009 -: 95 :- 8cm above ankle.

19.Abraded contusion scab formed, slough at base 4x1cm vertical on right calf.

20.Chop wound on right side of head 12.5x2.5x3.5cm the front end at middle of pinna, the back end at midline, bone deep with chipping of mastoid process over an area of 4x3cm., not entered the cranial cavity cut the soft tissues including the right middle meningeal artery.

21.Scalp contusion on right parietal eminence 3x3cm and on right temporal region 6x6cm, with comminuted fracture of right temporal bone 4x4cm and a fissured fracture running through the right middle cranial fossa for a length of 6cm and a fissured fracture running through the floor of right posterior cranial fossa for a length of 12 cm. Laceration of right temporal lobe of brain 4x4x2 cm, an extradural hematoma over the right temporal region 6x6x0.5cm., thick subdural and subarchnoid haemorrhages seen on both cerebral hemisphere, the brain appeared pale.

22.Abraded contusion on front of right knee 2x2cm.

23.Abraded contusion on front of upper part of right leg 2x1cm.,3cm below injury No.24"

His opinion as to the cause of death of the deceased is that the death was due to head injury.

87. It seems that PW30 has based his opinion on Crl.A.1561/2009 -: 96 :- injury Nos.20 and 21 in Ext.P30. According to PW30, injury Nos.20 and 21 are sufficient in the ordinary course of nature to cause death. According to PW30, injury No.20 could be caused by cutting with MO4. Regarding injury No.21, PW30 has stated in evidence that it is not possible to cause such an injury by a simple fall, but it could be caused by a forceful pushing of the person into a hard stone. It is nobody's case that anybody had pushed down the deceased on to the floor. It seems that the prosecution has attempted to bring out a case as to whether such injury could be caused by hitting of the head of the deceased with a granite stone. We do not understand as to why the prosecution has made such an endeavor when the prosecution has no such case at all. At the same time, PW30 has given a clear cut opinion that injury No.20 is independently sufficient in the ordinary course of nature to cause death. When that is there, the other discourse with regard to injury No.21 is mere academic. When it is shown that injury No.20 could be Crl.A.1561/2009 -: 97 :- caused when cutting with MO4 and the said injury is sufficient in the ordinary course of nature to cause death, it can safely be concluded that it was one of the said head injuries noted by PW30 which had resulted in the death of the deceased. It stands proved that the deceased died due to injury Nos.20 as well as 21 noted in Ext.P30 and that the death is homicidal.

88. Regarding the injury sustained to PW1, Ext.P38 prepared by PW35, who examined PW1 at 00.35 a.m. on 24.2.2005 has to be considered. It shows that he has noted

1) sutured wound ulnar aspect of left fore arm 6 cm. Long,

2) contusion back of lower rib cage (R), and 3) X-ray showed fracture of lower end of ulna, left. Ext.P29 is the wound certificate of PW1 prepared by PW29, after his examination at 10.15 p.m. on 23.2.2005 at the Government Hospital, Kayamkulam. It shows that PW1 has sustained one lacerated wound left wrist 5x3 cm and contusion right side of back of chest about 7x3cm. X-ray of left wrist Crl.A.1561/2009 -: 98 :- showed fracture of lower end of ulna. He was referred to the Orthopaedic Surgeon at the Medical College Hospital.

At the same time, PW1 has chosen to proceed to the Upasana Hospital for better management.

89. Regarding the injuries sustained to PW39, even according to PW39, it had occurred when he fell down. DW2 Civil Surgeon had examined PW39 at 11.30 p.m. on 23.2.2005 and issued Ext.D18 which reveals that he had suffered 1) Multiple abrasions over left knee joint and (2) Multiple abrasions over left elbow joint. It seems that PW39 was admitted at the Surgical Ward.

90. Strangely, we could notice that either the jeep or the motor bike involved in the incident was not identified before the court below during trial. Even though such a jeep and a motor bike were seized, it seems that those material objects were not available before the court below during trial. The identification of those vehicles assumes importance, especially when none of the occurrence Crl.A.1561/2009 -: 99 :- witnesses had mentioned the registration number of the jeep or the motor bike. Moreover, regarding the make of the motor bike, there were contradictory versions by PW15 in his evidence before the court below and in the contents of Ext.P14. In a case like the present one, especially when the registration numbers of the vehicles were not mentioned by any of the occurrence witnesses, the prosecution ought to have got the vehicles identified as material objects before the court below. The identification features of the jeep were mentioned by the occurrence witness as a jeep in ash colour. The non-identification of the said material objects also clearly militates against the prosecution case.

91. The learned Public Prosecutor has pointed out that apart from the ocular evidence of the witnesses and the documents produced before the court below, the prosecution is relying on scientific evidence also to prove the occurrence. It is true that MO1 shirt allegedly worn by A5, and MO10 shirt allegedly worn by A4 contained glass Crl.A.1561/2009 -: 100 :- particles, on examination. It may point towards the fact that some glass particles happened to be there in the pockets of the shirts. It can be suspected that those glass particles happened to be there, when the window panes of the Mosque were damaged. But, suspicion, however strong it be, cannot take the place of proof.

92. The learned Public Prosecutor has invited our attention to the decision in State of U.P. v. Krishna Master and Others [AIR 2010 SC 3071], wherein the manner of appreciation of evidence in a criminal trial has been dealt with in detail by the Apex Court. It was held therein that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more, particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether Crl.A.1561/2009 -: 101 :- it is shaken or unworthy of belief.

93. In the decision noted supra, it was held, "Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole."

What we have pointed out earlier regarding the technical errors committed by the investigating agency is not some trivial errors on technical matters, which do not go into the root of the matter; whereas the lapse on the part of the investigating machinery to register the crime and to proceed with the investigation as and when they came to know about the commission of cognizable offences, was a serious lapse on the part of the prosecution, which even has gone to the root of the matter.

Crl.A.1561/2009 -: 102 :-

94. In State of U.P. Vs. Krishna Master (supra), it was further held that the prosecution evidence may suffer from inconsistencies here and discrepancies there, and that no criminal case is free from such short comings. The main thing to be considered is whether those inconsistencies go to the root of the matter, or pertain to mere insignificant aspects thereof. Here, in this particular case, we have seen that the prosecution has suppressed the statement recorded from PW1. Its copies were not served on the accused. It seems that the accused were kept in dark about the contents of the said statement. It seems that even the prosecution was kept in dark about the said statement by the police. However, it seems that the court below could gather a document alleged to be a copy of such a statement, the contents of which are seen reproduced in paragraph 15 of the impugned judgment. The case resorted to by PW1 in that statement as reproduced by the court below in paragraph 15 of the impugned judgment altogether Crl.A.1561/2009 -: 103 :- narrates a different version than the prosecution case. Matters being so, it cannot be said that it is not an inconsistency or discrepancy in the prosecution case, which occurred here and there, whereas, those inconsistencies in the prosecution case with the version contained in the first statement of PW1, go to the root of the matter. Further, as the accused were kept in dark about the contents of such a statement, they were denied sufficient opportunity to defend the charges against them. They were even kept in dark about the allegations levelled against them at the earliest possible opportunity. In the decision noted supra, it has been held as follows:-

"It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the Crl.A.1561/2009 -: 104 :- case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out."

95. Regarding the evidence of PW39, it has been pointed out that the identification of PW39 cannot be relied on at all on another reason also. It has been pointed out that the said witness, who had no acquaintance with the appellants, had identified certain appellants, that too, for the first time in court. Our attention has been invited to the decision in Chandy @ Kochu and Others v. State of Kerala [ILR 1981 (1) Ker 356], Suresh v. State [ILR 2003 (1) Ker 520] and Kanan and others v. State of Kerala [AIR 1979 SC 1127] to fortify the proposition that where witness identifies an accused, who is not known to him in court for the first time, his evidence is absolutely valueless, unless there has been a previous T.I. parade to test his powers of observations. Here in this case, even though three T.I. parades were conducted, there was no genuine efforts from Crl.A.1561/2009 -: 105 :- the part of the investigating machinery to make available PW39 in it so as to get any of the accused identified. Even though he was summoned for the first T.I. parade conducted on 19.03.2005, it seems that he had not turned for reasons best known to him alone. When PW39 has not participated in such a T.I. parade, even though an opportunity was granted to him, his identification of some of the appellants in court is valueless and cannot be relied on. Even though in a sentence, he had stated in evidence that he had occasion to see the accused persons prior to the incident, his versions before DW2 as contained in Ext.D18 as the history and alleged cause of injury belies his version that he had any prior acquaintance with any of the accused. It seems that at that time, he had a version that more than 20 persons had made him to run. If as a matter of fact, he was aware of any of the persons, he would have narrated their details. Apart from all these, it seems that the occurrence witnesses had not furnished any of the identification features of any of Crl.A.1561/2009 -: 106 :- those appellants in their statements before the investigating officer under Section 161 Cr.P.C.

96. It seems that the court below has relied on Ext.P18(a) statement as a subsequent conduct on the part of the appellants under Section 8 of the Indian Evidence Act. It seems that Ext.P18 mahazar in which Ext.P18(a) has been incorporated does not, in fact, reveal as to who had furnished Ext.P18(a). It is shown there that the said information was obtained on questioning A1, A2 and A3 on their arrest. Ext.P18(a) is to the effect that "We have placed the sword sticks and stick at the side of the cattle shed situated adjacent to the house of Rajendran. We will take it and produce, if we are taken there". On the basis of Ext.P18(a) and as led by A1 and A16, it is alleged that PW41 reached the place and seized MO1, MO2 and MO4. Admittedly, Ext.P18(a) is not admissible in evidence under Section 27 of the Indian Evidence Act. It seems that it is a joint statement made by A1 to A3. At the same time, for Crl.A.1561/2009 -: 107 :- effecting the discovery based on such a statement, it seems that PW41 was led jointly by A1 and A16. The observations with regard to the same made by the court below and the reliance placed on it under Section 8 of the Indian Evidence Act are totally mistaken. Even though such statements may come within the purview of Section 8 of the Indian Evidence Act, in the present matter, it cannot be treated as an evidence within the meaning of Section 8 of the Indian Evidence Act as it cannot point towards the conduct of a specified accused. When information was furnished by A1 to A3 as a joint information and when the discovery was effected subsequently on the basis of one among them along with another accused, it cannot be treated as subsequent conduct on the part of any of these appellants. Matters being so, Ext.P18(a) cannot be relied on as a piece of evidence under Section 8 of the Indian Evidence Act also.

97. On behalf of the appellants, it has been pointed out that there were specific attempts from the part of the Crl.A.1561/2009 -: 108 :- defence in getting the GD of the Vallikunnam Police Station produced before the court below to prove that the police had specific information regarding the incident and also to prove the time at which the Head Constable who was deputed to record the statement of PW1 had returned to the police station. When there was a specific defence from the part of the accused that the statement recorded by the said Head Constable from PW1 was the first statement recorded in writing and that Ext.P14 was only a subsequent statement which makes Ext.P14 inadmissible in evidence as a F.I.Statement, the investigating machinery was duty bound to produce the GD.

98. Even though the accused were running from pillar to post to get the GD produced, at first, trivial reasons were shown for the non-production of the GD. According to PW40, ASI of Police of Vallikunnam Police Station, GD is a document that should have been kept in safe custody. In this particular case, the concerned GD is an important Crl.A.1561/2009 -: 109 :- document when the accused had a specific case that specific entires relating to the incident were there in the GD. Further, the appellants wanted to show that the Head Constable who recorded the statement of PW1 had returned to the police station even prior to the registration of Ext.P14

(a). The accused had obtained a specific direction from the court below for the production of the GD. Consequently, DW5, Sub Inspector of Police, Vallikunnam Police Station, was summoned to produce the GD. He appeared before the court below and deposed that the GD and the Petition Register became destroyed as it became soaked in rain water and also as it was eaten by white ants. Those irresponsible explanation offered by DW5 cannot be believed for a moment. It seems that the police were deliberately suppressing the said GD and were deliberately taking evasive attitude without the production of the GD before the court below. When such a vital document was not produced, and when such evasive explanations were Crl.A.1561/2009 -: 110 :- offered regarding the non-production of such a vital document, it invites adverse inference against the persons who are suppressing the said document.

99. From all the discussions made above, we do not find it safe to rely on the evidence of PW1, PW2, PW3, PW15 and PW39 and the contents of Ext.P14 to find any of the accused guilty of the offences alleged against them. The identification of the appellants before the court below cannot be relied on. The prosecution case as such is shrouded with discrepancies and inconsistencies. Of course, the benefit of all those doubts should go to the appellants. We are satisfied that the evidence relied on by the court below to find the appellants guilty of the offences with which they are convicted and sentenced, are not reliable and sufficient evidence to enter in a conviction. Matters being so, the conviction and sentence passed against the appellants are liable to be set aside, and this appeal is only to be allowed and we do so.

Crl.A.1561/2009 -: 111 :-

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 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.

V.K.MOHANAN, JUDGE B.KEMAL PASHA, JUDGE ul/mbs/aks/ami

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