Biveesh vs State Of Kerala Represented By The on 23 October, 2019

[Cites 30, Cited by 0]

Kerala High Court

Biveesh vs State Of Kerala Represented By The on 23 October, 2019

Equivalent citations: AIRONLINE 2019 KER 1141

Accused 1 to 3 in SC No.805/2003 are the appellants in Crl.Appeal No.276/11. The State has preferred appeal against the very same judgment challenging the acquittal of accused 4 to 8. Accused 1 to 3 are found guilty for offences u/s 143, 148, 153A and 302 r/w 149 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of `25,000/- for offence u/s 302 r/w 149 of I.P.C. with default sentence for a period of two years, rigorous imprisonment for a period of 3 months each u/s 143 I.P.C., rigorous imprisonment for a period of 2 years each for offence u/s 148 I.P.C. and rigorous imprisonment for a period of 2 years each for offence u/s 153A r/w S.149 of I.P.C.

2. The prosecution case is that, on 3/1/2002, at about 7.50 p.m, pursuant to a communal conflict between Hindus and Muslims, the accused who belonged to Hindu community formed themselves into an unlawful assembly along with 15 unidentified persons at Marad Beach and pursuant to their common object of Crl.Appeal Nos.276/11 & 435/19 -:6:- committing murder of a Muslim by name Kunjikoya, committed riot and armed with deadly weapons such as sword, iron pipe, iron rod etc., attacked Sri.Kunjikoya inflicting severe injuries. He was taken to Medical College Hospital, Kozhikode, but he succumbed to the injuries on the very same night. Crime No.5/2002 was registered by the Sub Inspector of Police, Beypore Police Station based on the FIS given by one Beerankoya, who was examined as PW1. The investigation was conducted by Circle Inspector of Police, Kasaba Police Station and later final report was filed against eight accused as the other 15 of them could not be identified. The offences alleged were under Sections 143, 147, 148, 153A, 302 r/w 149 of I.P.C. and Section 5(1)(a) r/w S.27(1) of the Arms Act.

3. In order to prove the charge, prosecution examined PW1 to PW17 and placed reliance upon Exts.P1 to P19 documents. MO1 to MO8 were the material objects produced and identified.

4. The accused while being questioned u/s 313 of Cr.P.C, denied the incriminating evidence against them. After complying with the procedural formalities, the Court below had convicted Crl.Appeal Nos.276/11 & 435/19 -:7:- accused 1 to 3 alone.

5. The fact that Kunjikoya was attacked and murdered by a group of persons using weapons like sword, iron rod, knife etc., is not in dispute as the injury sustained to Kunjikoya itself proves the said fact. Ext.P7 is the wound certificate issued by PW11, the Doctor who examined him. At the time when PW11 examined Kunjikoya, he had suffered several wounds and he was in a critical stage. The cause of injuries was noted as "alleged assault near Marad Beach on 3/1/2002 at 8.30 p.m." Ext.P9 is the inquest report in which several injuries throughout the entire body of the victim, was taken note of. PW2 conducted post-mortem of the deceased and Ext.P2 is the post-mortem certificate. His evidence disclosed 31 ante-mortem injuries and he deposed that injury nos. 1 to 4, 10 and 12 were head injuries, which were enough in the ordinary course of nature to cause death. From the said evidence it is rather clear that Kunjikoya suffered a homicidal death.

6. The only question to be considered in the appeal filed by the accused is whether their involvement in the crime has been proved beyond all reasonable doubt or not. Since the State Crl.Appeal Nos.276/11 & 435/19 -:8:- has also preferred an appeal, the evidence in its entirety has to be considered in order to examine whether the order of acquittal of accused 4 to 8 requires to be interfered with.

7. Before proceeding further, it would be useful to scan through the nature of evidence that had been adduced by the prosecution witnesses.

8. PW1 has given the FIS. He had not seen the incident. He had seen Kunjikoya being brought to the mosque after suffering the injury. According to him, the injured was brought to the gate of the mosque by 3-4 persons. They were Moideen, Harris and two three others. People assembled in front of the mosque gate. Mohammed Koya was one among the persons who came along with the others. Mohammed Koya asked who had committed the aforesaid acts. Harris informed them that it was Thekkethodi Sureshan, Kannante Purakkal Sivadasan and Korantakathu Vibheesh along with 5 to 8 persons. Kunjikoya was taken to Medical College Hospital in Noufal's autorickshaw by Aboobacker and Sakkeer. Later, he knew that Kunjikoya died and the body was in the Medical College Hospital mortuary. He proceeded to the police station at 6.45 a.m on 4 th and gave Crl.Appeal Nos.276/11 & 435/19 -:9:- Ext.P1 FIS. He identified A1, A2 and A4.

9. PW2 is the Doctor who conducted post-mortem and had issued Ext.P2 post-mortem certificate. He deposed that the deceased died due to the injuries sustained to the head and those injuries in the ordinary course of nature were sufficient to cause death. Those injuries were described as items 1 to 4 and 10 and 12. The said injuries are extracted hereunder:

"1. Sutured incised wound 11.5 cm long, 2.5 cm deep, horizontal on the back of head, its right sharply cut end being just below the occiput in the midline. Its left blunt end was just behind and 2 cm below the top of root of left ear. Underneath the left side of occipital bone showed a depressed comminuted fracture 9x1.5 cm.

2. Superficial incised wound 9x0.1 cm on the back of neck 1 cm below and parallel to injury No.1

3. Superficial incised wound 7x0.1 cm, oblique on the back of neck, its upper inner end being 1 cm to the left of midline and 2 cm below injury No.2

4. Sutured lacerated wound 5 cm long, 0.5 cm deep, oblique on the back of head, its upper inner end being 7 cm below the top of head in the midline. Its lower outer end was 0.9 cm above injury No.1".

"10. Sutured lacerated wound 3.5 cm long and 1.5 cm deep, saqittal, on the right side of top of head, its front end being 9 cm above the top of right ear".

"12. Sutured lacerated wound 6.5 cm long, 1 cm deep on the top of head, its right front end being, 2 cm to the right of Crl.Appeal Nos.276/11 & 435/19 -:10:- midline and 13 cm above eyebrow".

Contusion of scalp on the top and back of head. Thin film of subdural and subarachnoid bleeding ( more on the right side) seen on the surface of brain (1200g) which showed flattening of gyri and obliteration of sulci. Contusion a) 3x2x0.3 cm of the outer aspect of tip of right temporal lobe. b) 9x6x0.3 cm on the undersurface and tip of right frontal lobe. c) 4x2x0.3 cm of the tip of left frontal lobe. d) 3x1.5x0.3 cm of the tip of left temporal lobe. e) 3x2x0.5 cm of the back aspect of convexity of left cerebellar hemisphere and f) 1x0.5x0.3 cm on the under surface of left cerebellar hemisphere close to uncus".

10. PW3 was the Special Village Officer who prepared Ext.P3 sketch of the scene of occurrence. He deposed that Marad Beach road lies on the south-north direction and the Vayanasala road on the east-west direction. The incident happened on the Marad Beach road. The mosque is on the northern side of Vayanasala.

11. PW4 is an eye-witness to the incident. He deposed that on 3/1/2002 by about 7.30-7.45 p.m, he was proceeding towards the Beach through vayanasala road. Nasar (PW5) was also along with him. When they proceeded further towards west of the Jama- ath mosque, they saw Ashraf proceeding in their front. They heard a hue and cry from the houses on the western side of the Crl.Appeal Nos.276/11 & 435/19 -:11:- road. When they looked towards the western side at the place where the road ends, they saw several persons armed with weapons cornering Kunjikoya. They could see them in the street light. There were about 10 to 20 persons. He knew a few of them. They were having weapons. He knew eight of them. They were inflicting injuries on Kunjikoya uttering that the Muslims in Marad should be sent to Pakistan or else they should be killed. He deposed that he could identify A1, A2, A3 and A4. Kunjikoya fell down. He also saw Anil Kumar, Prajeesh and Subodh also inflicting injury on Kunjikoya. He could not say which accused had inflicted which injury. Others were also having swords with them. Thereafter, they proceeded towards south along with their weapons. He identified A1 to A8. After the assailants left the place, he along with Nasar proceeded to the place where Kunjikoya was lying. Ashraf also came. Another person by name Moideen also came there. They took Kunjikoya to the southern gate of the mosque. Some persons who came from the mosque went to call an autorickshaw. They came with Noufal's auto. Aboobacker and Sakkeer took Kunjikoya to Medical College Hospital who was admitted there and during the said night, he Crl.Appeal Nos.276/11 & 435/19 -:12:- died. After Kunjikoya was taken to the hospital, he also proceeded to the hospital. He identified the sword MO1 which was held by Suresan, MO2 which was held by Biveesh and MO3 iron rod which Bijesh was holding at the relevant time.

12. PW5 Nasar also gave evidence on similar lines. PW6 is Thajudeen. He is also an eye-witness. He is a fisherman. He deposed that he knew the incident which was on 3/1/2002 at 7.45 p.m. He along with his friend Noushad were sitting in the beach. He heard a cry from the southern side. Women were crying. When they proceeded towards the said place, they saw about 10-20 persons cornering Kunjikoya under the street light. He knew a few of them. They were all having swords, knife, sticks etc. They were uttering that all the Muslims at Marad should be sent to Pakistan or else they should be murdered. He deposed that on saying so, Biveesh inflicted an injury on the head of Kunjikoya. Suresan also inflicted an injury on Kunjikoya with a sword. Sivadasan had a knife with which he stabbed Kunjikoya. Bijesh had an iron rod with him and he was beating Kunjikoya on his head. Kunjikoya fell down. Anilkumar, Subodh and others were also along with them. They were all inflicting injuries on Kunjikoya. He and Noushad got Crl.Appeal Nos.276/11 & 435/19 -:13:- afraid and ran towards north. In the meantime, Harris, Ashraf and Nasar were coming towards Kunjikoya. He and Noushad went to his uncle's house and remained there. He identified A1, A2, A3, A4, A5 and A7 before Court. He did not identify A6 among the persons. He could identify A8, but he does not remember his name. According to him, Suresan (A2) was holding MO1, first accused was holding MO2 and Bijesh was holding MO3.

13. PW7 is Aboobacker. He did not see the incident. He heard the call for prayer from the mosque. That was about 7.30- 7.35. He saw Harris, Moideenkoya, Nassar and Ashraf carrying Kunjikoya towards the mosque. Kunjikoya was injured. He along with Sakeer took Kunjikoya to Medical College Hospital in Noufal's autorickshaw. Before taking Kunjikoya to the vehicle, Mohammed Koya asked as to what happened. Persons who brought them said that it was done by Biveesh, Suresan, Sivadasan and 10 to 20 others.

14. PW8 is a convict who is suffering imprisonment for life. He is a witness to Ext.P4 mahazar by which MO4 to MO7 samples were taken from the scene of occurrence by the Scientific Assistant as per Ext.P5.

Crl.Appeal Nos.276/11 & 435/19 -:14:-

15. PW9 is a witness to recovery of MO1 sword as per Ext.P6 mahazar.

16. PW10 was the Sub Inspector of Police, Beypore police station on 4/1/2002. He recorded the FIS given by PW1 and registered FIR which is marked as Ext.P1(a).

17. PW11 is the Doctor who identified the signature of Dr.Baiju Joseph who examined the victim and had issued Ext.P7 wound certificate. Dr.Baiju Joseph was working in U.K. at the relevant time and hence his presence could not be procured by the prosecution. Witness identified the signature of Baiju in Ext.P7.

18. PW12 was the Police Constable during the relevant time. He is a witness to the recovery of MO3 iron pipe.

19. PW13 was the Scientific Assistant (Biology) during the relevant time. She examined the scene of occurrence and collected samples containing blood-stains. Her report is Ext.P8. MO6 and MO7 were the samples collected by her.

20. PW14 is a witness to the inquest report Ext.P9. PW15 is a witness to the recovery of MO2 at the instance of first accused Biveesh. Ext.P10 is the mahazar.

Crl.Appeal Nos.276/11 & 435/19 -:15:-

21. PW16 is the investigating officer who conducted major part of the investigation and PW17 has submitted the final report before the Judicial Magistrate of First Class.

22. Defence examined four witnesses as DW1 to DW4. DW1 was the investigating officer in Crime No.98/2002. He deposed that he had examined one Thajudeen, S/o Usman (PW6) as a witness. When Thajudeen was examined, he deposed that he saw a few persons putting fire to their canoes and engine shed which was at about 8.15 p.m. on 3/1/2002. Ext.D24 is the statement of CW2 recorded u/s 161 Cr.P.C and Ext.D24(a) is the relevant portion.

23. DW2 is Sajeevan, who knew the 4th accused. He deposed that on 3/1/2002, three persons who were injured were taken to hospital. That was between 7.30 and 8.00 p.m. and they were taken from Marad Kurumba Bhagavathi temple. He had taken Sivadasan, Praju and his brother Pradeepan to the hospital. He had taken him in his auto. A person by name Chandran came to his house and called the auto. Chandran died. He left them at Kozhikode Medical College Hospital and came back.

24. DW3 is Dr.T.G.Sreejith. He deposed that he examined Crl.Appeal Nos.276/11 & 435/19 -:16:- one Sivadasan, S/o Swamikutty. He was brought by Chandran and the incident spoken was that, on 3/1/2002, at about 7.30 p.m. Koyamon had inflicted injury on him. He issued the certificate and the relevant page of the register was marked as Ext.D25.

25. DW4 was the Circle Inspector of Police, Chevayoor who had conducted investigation into Crime No.6/2002. He deposed that he had arrested one Biveesh, S/o Dharman on 15/1/2002. He was arrested at 10.15 a.m. from Kasba Police station and he was questioned for about half an hour. On the same day, he was remanded as per remand report Ext.D27.

26. Ext.P16 is the FSL report. 8 items were sent for chemical examination and it was found that item Nos.1, 7 and 8 contained human blood. Blood was not detected in item Nos. 2, 4 and 5. Item Nos.3 and 6 contained blood which was insufficient for determining the origin. Item No.1 is a white double dhoti with a red coloured border which was marked as MO8 in the case. MO8 belonged to the deceased. MO8 was worn by the deceased at the time he suffered the injuries. Item Nos.7 and 8 are swords recovered by the police pursuant to the confession statement of Crl.Appeal Nos.276/11 & 435/19 -:17:- the accused. MO1 and MO2 are the said swords.

27. The defence marked Exts.D1 to D28 of which Ext.D1 is a portion of statement of PW1 in the inquest report, Ext.D2 is his 161 statement and Ext.D3 is a portion of statement of PW1 in the inquest report. Exts.D4 to D8 are the contradictions of PW4 in the 161 statement, Exts.D9 to D12 that of PW5, Exts.D13 and D14 that of PW6, Exts.D15 to D21 that of PW7, Ext.D22 that of PW9 and Ext.D23 that of PW15.

28. The trial Court found that evidence of PW4 to PW6 are sufficient enough to arrive at a finding that accused 1 to 3 have participated in inflicting the injuries on Kunjikoya, whereas, with reference to accused 4 to 8, the evidence is not sufficient enough to implicate them.

29. Adv.P.S.Sreedharan Pillai, learned counsel, appeared on behalf of the first accused. Adv.B.Raman Pillai, learned Senior counsel appeared on behalf of the second accused and Sri.T.Vijayabhanu, learned Senior counsel appeared on behalf of the third accused. Accused 4 to 8 who were parties in Crl.Appeal No.435/2019 were represented by Sri.P.S.Sreedaran Pillai, duly assisted by Adv.Arjun.

Crl.Appeal Nos.276/11 & 435/19 -:18:-

30. The main contention urged on behalf of the accused is that though PW4 to PW6 had spoken to have seen the incident, while considering the totality of the circumstances and evidence as a whole, it could be seen that they are all planted witnesses and their presence in or near the scene of occurrence was doubtful. The aforesaid incident is a part of a series of clashes where a communal violence broke out at Marad and several persons got injured and also died. The investigating agency was totally at dark regarding the assailants involved in the crime and to make it appear that an investigation has been properly conducted in the matter, witnesses were tutored and planted and several members of the Araya community in the locality were falsely implicated in such cases. Other than the oral testimony of PW4 to PW6 and other circumstances, the recovery of the weapons were highly improbable and nothing could be brought out to imply that the accused were actually involved in the aforesaid crimes.

31. On the other hand, learned Senior Special Public Prosecutor Sri.S.Sreekumar appearing on behalf of the State while supporting the judgment of the trial Court also submitted Crl.Appeal Nos.276/11 & 435/19 -:19:- that when the witnesses have identified accused 4 to 8 also being part of the unlawful assembly and when their presence was proved before Court in the place where Kunjikoya was inflicted with injuries and the witnesses have specifically stated that they were also having weapons with them and all the accused were yelling that the Muslims should flee to Pakistan or else they will be murdered, the common object to commit the crime of murder becomes clear. Therefore, while seeking for confirming the conviction and sentence of accused 1 to 3, he also seeks for setting aside the acquittal of accused 4 to 8 and to convict and sentence them for committing murder of Kunjikoya.

32. The counsel appearing for the defence has placed reliance on the following judgments:-

(i) State of Kerala v. Babu (AIR 1999 SC 2161) was cited to indicate that case diary in respect of a statement in another case of trial can be used for the purpose of establishing a contradiction in the evidence or the purpose of impeaching the credit of witnesses. The relevant portion reads as under:-

"11.The High Court in the impugned judgment proceeded on the basis that a statement recorded by an investigating officer in any case which was under Crl.Appeal Nos.276/11 & 435/19 -:20:- investigation, being a statement made under Section 161 of the Code, the same can be used for the limited purpose provided under Section 162 of the Code read with Section 145 of the Evidence Act. There can be no quarrel with this approach of the High Court in regard to the use of the previous statements of a witness made in the course of another investigation being used in the course of another criminal trial. This is because, as seen from the observations of this Court in the case of Tahsildar Singh (AIR 1959 SC 1012) (supra), the very object of enactment of Section 161 of the Code and Section 145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impeaching the merit of the witness. This right has not been taken away by Section 172 of the Code and, as noticed above, there is no prohibition in regard to this right of the accused either under the Code or under the Evidence Act.xxxxxx"

"13. In this view of the matter, in our opinion, a case diary of another case, not pertaining to the trial in hand can be summoned if the Court trying the case considers that production of such a case diary is necessary or desirable for the purpose of trial, under Section 91 of the Code".

(ii) In Kanakarajan @Kanakan v. State of Kerala (AIR 2017 SC 2779), the Apex Court held that when the names of accused persons were not mentioned by the eyewitnesses, absence of conducting TIP becomes fatal.

Crl.Appeal Nos.276/11 & 435/19 -:21:-

(iii) The State of U.P. v. Hari Prasad [1974 SCC (Cri) 203], the Apex Court observed that if the first information report contains the statement that a few persons had responded to the alarm raised by the members of the complainant's family, if the prosecution has not examined them, it weakens the prosecution case.

(iv) In Hem Raj v. State of Haryana (2005) 10 SCC 614], Apex Court held that if the presence of the eyewitnesses raise serious doubt at the time of actual occurrence, unexplained omission to examine independent witnesses would assume significance.

(v) Joginder Singh v. State of Haryana [(2014) 11 SCC 335]. In this case, the Apex Court held that if a material witness, who could unfold the genesis of the incident or an essential part of the prosecution case has been withheld, the Court would draw an inference against the prosecution case.

(vi) In State of Uttar Pradesh v. Wasif Haider and Others [(2019) 2 SCC 303], the Apex Court held that in a riot involving about 200-300 persons, without mentioning of any distinguishing marks, it is highly improbable for identifying an Crl.Appeal Nos.276/11 & 435/19 -:22:- assailant. In that case, it was held that delay of 55 days in conducting TIP is not properly explained by the prosecution. The powers of the appellate court against an order of acquittal has also been emphasised. It was also held that in the event of a defective investigation, benefit of doubt accrues in favour of the accused.

(vii) In Kailash Gour v. State of Assam (AIR 2012 SC

786), the Apex Court considered a case relating to a mob attack where there was delay in lodging FIR and it was held at paragraph 27(ii) as under:-

"27(ii) The least which the investigating officer would do was to record the statement of the eyewitnesses or send the eyewitnesses to the police station for getting the first information report recorded. Interestingly, while the alleged witnesses to the occurrence were first sent to the police station, no one ever questioned them about the incident nor did the witnesses volunteer to make a statement. It defies one's imagination how Md. Hanif who was on the spot and who is alleged to have seen the occurrence was not questioned by the investigating officer especially when he did not have any injury much less a serious one requiring immediate medical care and attention. Even if the eyewitness was injured, there is no reason why his statement could not be recorded in the hospital to Crl.Appeal Nos.276/11 & 435/19 -:23:- ensure that an FIR is registered without undue delay and those responsible for committing the crime brought to book. Failure of the prosecution to provide any explanation much less a plausible one shows that the investigating agency had no clue about the perpetrators of the crime at the time when it reached the spot or soon thereafter nor did anyone claim to have seen the assailants, for otherwise there was no reason why they could not be named and an FIR registered immediately. This Court in State of H.P. v. Gian Chand dealt with the effect of failure of the 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) 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 Crl.Appeal Nos.276/11 & 435/19 -:24:- 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."

(viii) In Shahid Khan v. State of Rajasthan [(2016) 4 SCC 96], the Apex Court held that if there is no explanation in not recording the statements of eyewitnesses after three days of the incident, it casts a serious doubt about them being eyewitnesses to the occurrence. If there is no corroboration of their evidence, benefit of doubt should be given to the accused.

(ix) In Mohd. Iqbal M.Shaikh v. State of Maharashtra [(1998) 4 SCC 494), the Apex Court was highlighting the delay in recording the evidence of witnesses. It is held at paragraph 11 as under:-

"11. Let us now examine the reliability of the prosecution witnesses through whom the prosecution has to establish that the case against the appellants has been proved beyond reasonable doubt. As has been stated earlier the six witnesses who were Crl.Appeal Nos.276/11 & 435/19 -:25:- supposed to be the eyewitnesses to the occurrence are PWs 1, 2, 3, 4, 9 and 10. It is to be noticed that while PW 4 was examined by the police on 17-1-1993 and PW 3 was examined by the police on 18-1-1993 but PW 2 Surya Kant was examined on 25-1-1993 and the three other eyewitnesses were examined on 29-1- 1993 while the occurrence was on 7-1-1993. It is established from the prosecution evidence itself that these witnesses were the inhabitants of Gandhi Chawl where the ghastly incident occurred and immediately on the next day of the occurrence they were shifted to a local school for safety and were staying there. Normally, therefore, there was no justification on the part of the investigating agency in not examining them for this length of time. The only explanation offered by the investigating officer is that on account of riot the police was busy with law and order problem but that problem did not continue for this length of time and in fact the investigating officer has failed to indicate as to why the eyewitnesses though available had not been examined till 29-1-1993. We are conscious of the fact that merely because a witness was examined after a considerable period from the date of occurrence his evidence need not be discarded on that ground alone but at the same time while testing the credibility and assessing the intrinsic worth of such witnesses the delay in their examination by the police has to be borne in mind and their evidence would require a stricter scrutiny before being accepted. We would, therefore, apply the test of stricter scrutiny and consider the value of their evidence.xxxx"

Crl.Appeal Nos.276/11 & 435/19 -:26:-

(x) In Vyas Ram v. State of Bihar [(2013) 12 SCC 349], Apex Court was considering the impact of S.149 I.P.C. It was held at paragraph 19 as under:-

"19. Thus, the defining ingredient for the involvement of the accused would be the common intention. Section 149 IPC makes it amply clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence is a member of the same assembly, is guilty of that offence. Masalti emphatically brings home the principle that the punishment prescribed by Section 149 is in a sense vicarious, and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. At the same time we cannot ignore the law as laid down in Baladin that if a person is a mere bystander, and no specific role is attributed to him, he may not come under the wide sweep of Section 149".

33. The learned Special Public Prosecutor placed reliance on the following judgments:-

(i) Rajeswar Prasad Misra v. State of West Bengal (AIR 1965 SC 1887), Laxman Kalu Nikalje v. State of Maharashtra (AIR 1968 SC 1390) and Shivaji Sahebrao Bobade v. State of Maharashtra (AIR 1973 SC 2622) were Crl.Appeal Nos.276/11 & 435/19 -:27:- cited to emphasise the power of this Court, while considering an appeal against an order of acquittal.

(ii) Rana Partap and Others v. State of Haryana [(1983) 3 SCC 327] has been cited to emphasise the fact that the presence of an eyewitness cannot be judged by any preconceived notion by which how he could have reached the place at the time of occurrence. In this case, Apex Court held that the evidence of a witness cannot be discarded merely for the reason that he did not react in any particular manner.

(iii) In Appabhai and another v. State of Gujarat (AIR 1988 SC 696), it is held that even if there are many contradictions in the evidence of the victim of an assault, the Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case have to be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance and error due to lapse of memory may be given due allowance.

(iv) In State of Rajasthan v. Teja Ram and Others (AIR 1999 SC 1776), Apex Court held that evidence of neighbours and Crl.Appeal Nos.276/11 & 435/19 -:28:- inmates of the house cannot be rejected as they are natural witnesses who had witnessed the incident.

(v) In Dana Yadav alias Dahu v. State of Bihar (AIR 2002 SC 3325), the Apex Court held that if the accused are well known to the prosecution witnesses, conducting of identification parade would be a waste of public time.

(vi) In Pandurang Chandrakant Mhatre v. State of Maharashtra [(2009) 10 SCC 773], Apex Court held that if the evidence of eyewitness is found to be cogent, convincing and credible, delay in the Magistrate receiving the FIR will be insignificant. It is also held that FIR is not a substantive piece of evidence. It is only the testimony of the maker and it cannot be utilized for contradicting or discrediting testimony of other witnesses.

(vii) In Sidhartha Vashisht @ Manu Sharma v. State (N.C.T. Of Delhi (AIR 2010 SC 2352), Apex Court held that the delay in recording the statement of witnesses by the police cannot be ground to condemn a witness.

(viii) In Surendra Pal v. State of Uttar Pradesh [(2010) 9 SCC 399], the Apex Court held that the purpose of preparation Crl.Appeal Nos.276/11 & 435/19 -:29:- of inquest report is to ascertain whether a person had died in some suspicious circumstances or an unnatural death and as to the apparent cause of death. It need not contain details as to how deceased was assaulted or who assaulted them and omission to give the names of accused and minute details of assault will not be sufficient to disbelieve the prosecution case.

34. After hearing the learned counsel on either side and on perusing the records, the main question to be considered is regarding the veracity of the testimony of PW4 to PW6.

35. As already mentioned, FIS was given by PW1. In the FIS, which is marked as Ext.P1, reference is made by PW1 to the names of Suresan S/o Unni (A2), Sivadasan S/o Swamikutty (A4), Biveesh S/o Dharman (A1) and 20 others. In Ext.P1, he states that he is a fisherman by profession. He resides near Marad Juma Masjid. On 3/1/2002, he had gone for Isha prayer at 7.30 p.m to the mosque and after prayers, while he came out, by about 8.00 p.m, Moideen and few others brought a person to the compound of the mosque and he was laid near the gate. It was his relative Kunjikoya and he was bleeding. Sri.P.P.Mohammed Koya who was among them asked as to who has committed the aforesaid acts. Crl.Appeal Nos.276/11 & 435/19 -:30:- It was told that A2, A4, A1 and several others had inflicted injury with swords. Kunjikoya was taken to Medical College Hospital by Moideen and Kareem. Later it was understood that Kunjikoya died and the body was kept in the mortuary. Kunjikoya was killed on account of communal rivalry by the Hindus. While being examined as PW1, he stated that Kunjikoya was brought to the mosque by Moideen, Harris and few other persons. He also stated that when Mohammed Koya asked as to who had done it, reference was made to the names of A1, A2, A4 and 5 to 8 persons. During cross-examination, he stated that presence of Harris was mentioned by him while giving FIS and while his statement was recorded during inquest. Ext.D1 is the portion of statement of the inquest report wherein he stated that the aforesaid three persons along with 20 persons have inflicted the injury. Ext.D2 is his earlier statement u/s 161 where he had stated that A1, A2, A4 and 25 others were involved in the attack. Ext.D3 is yet another statement that Kunjikoya was taken to the hospital by Moideen and Karim whereas in the evidence he states that Kunjikoya was taken to the hospital by Aboobacker and Sakkeer. The FIS was recorded at 7.00 a.m on 4/1/2002 and it reached the Crl.Appeal Nos.276/11 & 435/19 -:31:- learned Magistrate at 4.50 p.m. on 4/1/2002.

36. PW4 during cross-examination stated that the deceased Kunjikoya was his relative. He wanted to tell the police about the incident as early as possible. But he did not tell the police what he had seen at that time. When he started to tell them, they told him that other police officers will come and question him. He reached the hospital after 10.00 p.m. There were several persons in the hospital including police. At the time he reached the hospital, Kunjikoya was under treatment. Kunjikoya might have died by around 10.30 p.m. Until such time, other than him, no other relatives were there. Hamsakoya who is his neighbour was in the hospital. He denied that Hamsakoya had taken Kunjikoya to hospital. He further stated that police had questioned him on 6th afternoon. Ext. D4 is the contradiction marked with reference to his state of health wherein he had stated that he was not keeping well. According to him, he had not given such a statement. In chief examination he stated that he had gone to the beach as there was breeze and he had stated so before the police, but he does not know why the police had not recorded the same. He also stated that he left home by 3. 00 p.m Crl.Appeal Nos.276/11 & 435/19 -:32:- and he had gone to Beypore. He returned back to Vayanasala junction at 7.15 p.m. He heard a hue and cry at about 7.45 p.m. He said that he heard the hue and cry when he proceeded little further from the mosque, but he does not know why it was not recorded. He did not tell the police that he had left his house on that day by 3 p.m as the police did not ask him. He had informed the police that he knew the accused from his childhood itself. He got down at the bus stop in front of Vayanasala, while coming from Beypore and he was proceeding to his house. Bus stop is known as Priya Hotel bus stop. From there, there is a way on the southern side to go to his house. The mosque is about half a kilometre from Vayanasala stop. The accused were seen while he was 15 metres away from the mosque. They saw the incident when they were walking away from the mosque. But he does not know why it was not recorded by the police. They saw the incident in the street light. He further stated that he had identified eight persons who were facing them. Those persons who were on the opposite side could not be seen. He had given the name of eight persons. Ext.D5 is yet another contradiction wherein he stated that he had seen certain persons whom he Crl.Appeal Nos.276/11 & 435/19 -:33:- could identify. He further stated that he had given the name of Sivadasan. He had stated that Sivadasan had stabbed with a knife. But he does not know why it was not recorded by the police. He also stated to the police that some one had stabbed Kunjikoya with a knife but he does not know why the police had not recorded. He further stated that Suresan had inflicted injury with a sword on the head of Kunjikoya, but he does not know why the police had not recorded. He stated that he had given the name of 5th accused, but he does not know why it was not recorded by the police. He further stated that he had informed the police that Kunjikoya fell down face down after he was inflicted with an iron rod but he does not know why the police had not recorded the same. All the accused had inflicted injuries with sword and he had mentioned that to the police. About 20 persons had inflicted injuries with sword but he does not know why it was not recorded by the police. All the 20 ran along with their weapons and he knew the weapons they were holding, but he does not know why the police had not recorded the same. Ext.D6 is yet another contradiction wherein he had stated that during New year celebrations, Sujith, Sakkeer and others had a quarrel. Crl.Appeal Nos.276/11 & 435/19 -:34:- He denied having given such a statement. He further deposed that during inquest, he was also present and at that time, no enquiry was made as to whether any one knew about the incident. He further stated that what was stated in inquest report was read over and he had signed it having been satisfied about the contents. He was asked that at the time of preparing inquest, the names he knew were mentioned by Beerankoya to the officer conducting inquest, which he denied. Ext.D7 is another contradiction wherein in his earlier statement he had stated that by about 8.00 p.m, he along with his friend Nasar came near Jama-ath mosque and he heard the cry of ladies. According to him, he has nothing to state about it. He further stated that he knew Biveesh since his childhood. He said he had also given statement before the police that he saw Sivadasan (A4), Anilkumar (A5), Subodh (A7) and Prajeesh (A8) inflicting injuries on Kunjikoya. But he does not know why the same has not been recorded by the police. He also stated that Moideen had helped them to carry Kunjikoya, but he does not know why it was not recorded.

37. During cross-examination PW5 stated that Kunjikoya is Crl.Appeal Nos.276/11 & 435/19 -:35:- the brother of his brother-in-law. In Marad issue, his brother-in-law was in jail for five years. His relatives were accused in the Marad incidents of 2002 and 2003. He denied having given a statement to the police that he reached near the mosque by about 8 p.m and at that time they heard the hue and cry from the houses at the beach. If the police had recorded like that, it is not correct. He further states that they heard the cry at about 7.45 p.m. and it was not at the time when they reached near the mosque. He denied having given Ext.D9. He did not say that he heard the cry from the western side. They saw the incident when they heard the cry of women. They had proceeded only one minute before from the mosque and at that time they heard the cry. He does not know why the police had not recorded that they saw the incident when they proceeded from the mosque. He does not know why the police had not recorded that Kunjikoya was cornered by 20 persons. He does not know why the police had not recorded his statement that Suresan had inflicted a blow on the head of Kunjikoya. He denied having given Ext.D10 statement wherein it is recorded that he along with Harris and Ashraf ran towards Kunjikoya. He was lying there bleeding with injuries on his head, Crl.Appeal Nos.276/11 & 435/19 -:36:- face and hands. According to him, Ashraf came after they took Kunjikoya. He further deposed that there were issues between Sujith and Sakkeer which were settled by the interference of both the communities. Even thereafter, there was some quarrel. He denied having given a statement as Ext.D11. In Ext.D12, he had stated that he had seen the dead body of persons who died in the incident. Before Court he denied having seen the dead body of others.

38. PW6 during cross-examination stated that he heard the calling for prayers at 7.30 p.m. He was sitting in the beach for about 10-15 minutes even after the call for prayers and therefore he saw the incident. While sitting there, he heard a cry. Normally he goes for prayers after the bangh (call for prayers). On that day, he did not go. He admitted having stated that at 7.45 p.m, he heard the bangh and 5 minutes thereafter, he heard the cry of women from different places. He heard the cry from the southern side. There are several houses there. He cannot say from whose house he heard the cry. He told the police that he heard the cry from the southern side, but he does not know why it was not recorded. He cannot say from which of the houses he heard the Crl.Appeal Nos.276/11 & 435/19 -:37:- cry. In order to know what is happening, they went towards that place. At that time, he saw the incident. He saw the incident within a distance of 20 metres. But he does not remember whether he had mentioned it to the police. Several people had assembled there and they were creating the hue and cry and at that time he saw the assailants. Ext.D13 is the contradiction. He denied having given a statement that he saw the incident while sitting in the beach. During further cross-examination, he stated that police had recorded his statement in Crime No.98/2002. He denied having given a statement in Crime No.98/2002 that he had witnessed the destruction of canoes by fire at 8.15 p.m. on 3/1/2002. Ext.D14 Is yet another contradiction. He stated that he does not know anything about Ext.D14 in which it is recorded that Biveesh had inflicted an injury on Kunjikoya's head. Suresan had a sword, Bijesh had an iron pipe and they inflicted blows on him. Kunjikoya fell down while others also inflicted blows on him with the swords and he was beaten up. According to him, he told that Bijesh had inflicted a blow on the head of Kunjikoya, but he does not know why it was not recorded. After Kunjikoya fell, he does not know how many injuries were caused by Biveesh, Suresan Crl.Appeal Nos.276/11 & 435/19 -:38:- and Bijesh. It is after Kunjikoya fell down that Sivadasan inflicted injuries on his back. All these facts he had mentioned to the police, but he does not know why the police had not recorded it. He also stated in further cross that Harris, Nazar and Ashraf came to the scene after the assailants left the place. He also left the place since he feared that the incident may recur. The investigating officer deposed during cross-examination that he had questioned the witnesses for the first time only on 6/1/2002. According to him, he had taken over investigation only on the said day. Ext.P11 report was prepared on 6/1/2002. As per Ext.P11, the time was mentioned as 8.00 p.m which was to be corrected to 7.50 p.m. It reached the Court only on 18/2/2002. He further submitted that on the same day four other murders took place which was about 100 metres towards north and south of the scene of occurrence. He further stated that within half an hour from the incident, the prominent police officers of Kozhikode district had come to the place. The omissions and contradictions were put to the said witnesses. The suggestion of the defence was that Harris was not a witness and he had been subsequently included for the purpose of the case, which the officer denied. Crl.Appeal Nos.276/11 & 435/19 -:39:-

39. As far as the evidence of PW6 is concerned, the defence was able to point out a suspicious circumstance to prove that he would not have seen the incident. According to the defence, he is a witness in Crime No.98/2002 where he had given a statement to DW1 that on 3/1/2002, at about 8.15 p.m, their canoes and engines were put to fire by certain persons. His portion of the 161 statement given to DW1 is marked as Ext.D24. In Babu (supra), the Apex court held that the 161 statement of a witness in another case can be summoned and produced before court and used for contradicting the said witness. PW6 however while being examined before Court denied having given such a statement and therefore the defence has examined DW1 to prove that such a statement was recorded by the police.

40. Learned Special Public Prosecutor would contend that such statements were deliberately recorded by the police to ensure that the witness shall not give any evidence in a murder case. Crime No.98/2002 was registered by the Beypore police. During cross-examination, DW1 deposed that PW6 Thajudeen was given up as a witness, in the said crime. He further stated that he had not recorded the statement of PW6. He dictated it to Head Crl.Appeal Nos.276/11 & 435/19 -:40:- Constable Mohanan and later he corrected by stating that it was not recorded by Mohanan, but recorded by a police constable whose name he does not remember. However he states that he had questioned PW6. The argument of the counsel for the defence is that if PW6 is witness in Crime No.98/2002, he could not have witnessed the incident in the present crime. That apart, according to the defence, he is not at all a natural witness. He was just sitting in the beach when he is alleged to have heard the hue and cry and thereafter he had witnessed the incident, which is totally unbelievable. Having regard to the suspicion created by the defence with reference to the evidence of PW6, it is only proper that his evidence has to be viewed with caution or rather the case has to be considered without even referring to the evidence of PW6.

41. The other two eyewitnesses to the incident are PW4 and PW5. As far as PW4 is concerned, the defence case is that his presence was not mentioned in the scene of occurrence by PW1 while giving FI statement. But it is relevant to note that there is no necessity to mention all the particulars in the FI statement. Position of law is well settled by the Apex Court in Pandurang Crl.Appeal Nos.276/11 & 435/19 -:41:- Chandrakant Mhatre (supra). It might be just an omission that the name of PW4 was not mentioned at that time. But during evidence, PW1 is very categoric when he says that PW4 was also present among the persons who carried Kunjikoya to the mosque after being injured.

42. As far as the incident is concerned, it is spoken to by PW4 and PW5. Though certain contradictions had been marked, they are not material enough to discard their oral testimony as held in Appabhai (supra). They have also identified accused 1, 2 and 3.

43. One of the argument raised by the appellants is regarding the delay in registering the FIR. Reference is made to the judgment in Kailash Gour (supra). There cannot be any quarrel to the said proposition. But each case has to be considered on its own facts. The incident happened at 7.50 pm on 3.1.2002 and the FIS was lodged at 7.00 am on 4.1.2002. FIS was recorded by PW10. He deposed that in connection with new year celebrations there was tension in the area. He heard about the incidents in Marad area at about 7.50 pm on 3.1.2002 and he along with two policemen had gone to the place and he saw Crl.Appeal Nos.276/11 & 435/19 -:42:- several houses burning on the southern and northern side of Vayanasala junction. Women and children were crying. He did not make any enquiry with them as he had received telephonic information that there was a communal riot in the locality. He did not reach police station on that night as he was patrolling the area. After one hour of him reaching the area, more police force came. Thereafter the police force was deployed as directed by superior officers. He also stated that before reaching the police station, he heard that 4 persons died in the incident. It could therefore be seen that there was a communal riot in the area and the station house officer was very much in the field to maintain law and order situation. When he reached the police station next day morning, he recorded the statement of PW1 and registered the FIR. From the above facts we don't think that there is any delay in registering the FIR, in order to discard the prosecution case in its entirety.

44. Absence of conducting TIP is yet another argument. Kanakarajan (supra) has been relied upon. But this is a case in which the accused and the witnesses are known persons, who resides in the same locality. The witnesses have further named Crl.Appeal Nos.276/11 & 435/19 -:43:- the accused. Hence, absence of conducting TIP in the case on hand has not affected the prosecution case in any manner. The law in that regard is well settled in Dana Yadav (supra).

45. It is argued on behalf of the appellants that material witnesses were not examined. The argument is that, the FIS of PW1 refers to one Mohammed Koya, but he has not been examined. It is Mohammed Koya who asked the persons who brought Kunjikoya to the mosque regarding the assailants who inflicted the injuries on Kunjikoya. Reference is made to the judgment of the Apex Court in Hari Prasad (supra) and Joginder Singh (supra). Of course Mohammed Koya's evidence would have strengthened the prosecution case. But still he had not witnessed the crime. This is a case in which prosecution intends to prove the incident by relying upon the testimony of eyewitnesses. Therefore absence of examining Mohammed Koya is not fatal to the prosecution case.

46. It is argued that PW4 to PW6 are relatives of the victim. No independent evidence is adduced by the prosecution. That apart, their presence in the locality is highly doubtful. Reference is made to the judgment of Apex Court in Hem Raj (supra). There Crl.Appeal Nos.276/11 & 435/19 -:44:- is no hard and fast rule that relatives cannot be witnesses to a crime. When eye-witnesses are relatives of the victim, Court should exercise more caution to ensure whether their evidence is credible enough to sustain a conviction.

47. The defence had raised another plea with reference to the delay in recording the statement of eyewitnesses. Reference is made to the judgments in Shahid khan (supra) and Mohd. Iqbal Shaikh (supra). This again depends on the facts and circumstances of each case. In Sidhartha Vashisht (supra), Apex Court held that the delay in recording the evidence of witnesses shall not be a reason to condemn a witness. Apparently, PW4 and PW5 were examined by PW16, the investigating officer only on 6/1/2002, i.e., 2 days after the registration of crime. PW16 in his evidence deposed that he was entrusted with the investigation only on 6/1/2002. From the factual aspects involved in the case, it is rather evident that the police were trying to control a communal riot in the locality. Hence, for that reason itself, it is not proper to discard the testimony of eye-witnesses.

48. It is argued that though PW4 was present at the time of Crl.Appeal Nos.276/11 & 435/19 -:45:- inquest, he did not mention the names of the accused. In Surendra Pal (supra), the Apex Court has held that the purpose of preparation of inquest report is only to ascertain whether a person died in some suspicious circumstance or an unnatural death. It need not contain details as to how the deceased was assaulted or who inflicted the injuries and omission to give the names of the accused and minor details will not be sufficient to disbelieve the prosecution case. Of course, in this case, PW4 was also a witness to the inquest. But from the inquest report (Ext.P9) itself, it could be seen that he had not given any statement as such. Statements were given by two others in accordance with the statement given in the FIS. Therefore, absence of recording the statement of PW4 in the inquest report does not vitiate the prosecution case in any manner and for that reason itself, the evidence of PW4 cannot be stated as fabricated.

49. The fact that the accused 1 to 3 were wielding weapons is further proved by the recovery of material objects MO1 to MO3. Though it was argued that the weapons were planted and the recovery was bad in law, the oral testimony of the witnesses and the investigating officer at whose instance the weapons were Crl.Appeal Nos.276/11 & 435/19 -:46:- recovered substantiates the fact that the recoveries were made u/s 27 of the Evidence Act. The confession statement of the accused to that extent stands proved.

50. As far as accused 4 to 8 are concerned, some doubt had been created in the mind of the Court regarding the identification and also their presence. That there was an unlawful assembly viz., a mob attack by about 20 persons and several of them were wielding weapons like sword, iron rod, knife etc., is rather clear from the nature of injuries suffered by the victim. Therefore, it was a mob attack and several persons were involved in such a mob attack. The Court below however found that there is proper identification and evidence only against accused 1 to 3 and therefore they alone were convicted. The police had charge- sheeted 8 accused and the other members of the mob could not be identified or brought before Court.

51. From the evidence of PW4 and PW5, it is rather clear that while they were walking through the Vayanasala road towards the beach, a few metres away from the mosque, they heard a hue and cry of women and children and when they looked forward, they saw Kunjikoya being attacked. Though from Crl.Appeal Nos.276/11 & 435/19 -:47:- among the attackers, they identified accused 1 to 8, the Court below observed that the identification of accused 4 to 8 suffers from inconsistencies and discrepancies and accordingly they were given the benefit of doubt. Once the trial court after considering the entire evidence arrives at a possible conclusion, unless there is perversity in the said judgment, it may not be possible for us to set aside an order of acquittal and convert the same into conviction. For that reason itself, we do not think that we should interfere with the acquittal of accused 4 to 8.

52. As far as accused 1 to 3 are concerned, there is cogent and credible evidence of PW4 and PW5. Their involvement in the crime was specifically mentioned even at the earlier stage of the proceedings when the FIS was lodged by PW1 at 7.00 am on 4/1/2002. Of course, there is some delay in registering the FIR. But while considering the over all factual situation arising in the case, this is one among the cases in which there was a series of murders at Marad which was on account of a communal riot between two groups of the community and therefore the primary duty of the police was maintenance of law and order and all police officials at the relevant time would have been involved in Crl.Appeal Nos.276/11 & 435/19 -:48:- the maintenance of law and order. Though PW4 and PW5 were relatives of the deceased, their evidence is not shaken during cross-examination. The contradictions and omissions pointed out are not material to discard their oral testimony of having witnessed the incident. They carried the injured to the mosque and from there he was taken in an autorickshaw by persons including PW7. PW7 has also stated the presence of PW4 Harris who was one among the persons who carried Kunjikoya to the mosque. During cross-examination, he stated that he had given statement to the police that he saw Moideen, Nasar, Ashraf and Harris bringing Kunjikoya to the mosque from Marad beach end. He only said that he did not say that he had seen it from the junction. In a case involving a crime, minor discrepancies and omissions are always possible. Court will have to look into the entire evidence as a whole and appreciate the same in order to ascertain the true content of the prosecution case and whether it is proved beyond reasonable doubt. This is a case in which the prosecution could adduce evidence only through persons who are acquainted with Kunjikoya especially in a case where the crime forms part of a communal riot, the prosecution party will Crl.Appeal Nos.276/11 & 435/19 -:49:- definitely be the members of one community and the Court will have to ensure that the evidence is credible enough to convict an accused in a case of murder. While testing the credibility of evidence of PW4 and PW5, we do not think that any of the omissions or discrepancies pointed out by the defence are sufficient enough to discard their oral testimony. They have witnessed the incident and they brought the injured up to the mosque from where he was taken to the hospital by a few others. When they speak from their mind, there might be few discrepancies in their evidence especially when they see a ghastly incident by which a mob attacks one person and he is lynched to death. We do not think that the trial Court had committed any error in convicting the accused.

Crl.Appeals are hence dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                               N.ANIL KUMAR

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