Omanakuttan vs State Of Kerala on 14 July, 2020

[Cites 31, Cited by 0]

Kerala High Court

Omanakuttan vs State Of Kerala on 14 July, 2020

Equivalent citations: AIRONLINE 2020 KER 1243

In this criminal appeal filed under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as the Code), accused 1 to 7 in S.C.No.157/2011 on the file of the Additional Sessions Court-III, Mavelikara challenged the conviction entered and sentence passed against them for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC) and Section 27(1) of the Arms Act, 1959.

2. By judgment dated 02.03.2016, the learned Sessions Judge sentenced A1 to A7 to undergo imprisonment for life and to pay a fine of Rs.25,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year more for the offence punishable under Section 302 of the IPC. For the conviction under Section 143 of the IPC, A1 to A7 were Crl.Appeal No.627/2016 ..4..

sentenced to undergo rigorous imprisonment for six months each. A1 to A7 were sentenced to undergo rigorous imprisonment for one year each for the conviction under Section 147 of the IPC. A1 to A7 were sentenced to undergo rigorous imprisonment for two years each for the conviction under Section 148 of the IPC. For the conviction under Section 27(1) of the Arms Act, A1 to A7 were sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.5,000/- each and in default of payment of fine to undergo rigorous imprisonment for six months each. Set off was allowed to each of the accused under Section 428 of Cr.P.C.

3. The prosecution case, in brief, can be summarized as follows:-

Chandran Pillai (hereinafter referred to as the deceased) was a leader of the Rashtriya Swayamsevak Sangh (hereinafter referred to as RSS) whereas the accused were the sympathizers of the Communist Party of India (Marxist) (hereinafter referred to as CPI(M)). These two political parties Crl.Appeal No.627/2016 ..5..

have long standing political rivalry between them due to serious ideological, historical and empirical reasons. On 20.4.2007 at about 08.45 pm., accused Nos.1 to 7 belonging to CPI(M) resorted to assault one Aneesh, who was one of the members of the RSS, while the latter was travelling inside a stage carriage at Vettiyar in Mavelikara Taluk. In connection with the above, the deceased came to Vettiyar and had a discussion with PWs.1 to 3. Following this, on 20.04.2007 at about 11.30 pm., at Vazhipadiyil House in Vettiyar Muri, Vettiyar Village, accused Nos.1 to 7 formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object to do away with the deceased and PWs.1 to 3 chased the deceased and PWs.1 to 3 from the compound of Vazhipadiyil House and, while so, the deceased was trapped inside a quarry on the Northern side of the property of one Vasudevan Pillai.

Thereafter, the 1st accused inflicted blows on the deceased with an oar on the right side of his head and accused Nos.2 and 3 inflicted cut injuries on the limbs and various parts of the Crl.Appeal No.627/2016 ..6..

deceased with MOs.1 and 2 swords. The 4 th accused whipped him with a cable and the 5th accused beat him with an iron rod. The 6th accused inflicted severe blows on him with an iron pipe and the 7th accused beat him with a stick and due to the grievous injuries sustained, the injured succumbed to the injuries.

4. Accused Nos.1 to 7 faced trial before the court. When accused Nos.1 to 7 pleaded not guilty to the charge framed against them by the trial court for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 of the IPC and Section 27(1) of the Arms Act, 1959, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined PWs.1 to 18 and Exts.P1 to P43 were marked on the prosecution side. MOs.1 to 11 were marked.

5. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied Crl.Appeal No.627/2016 ..7..

those circumstances and pleaded their innocence.

6. Since this was not a case of no evidence for the prosecution within the meaning of Section 232 of the Cr.P.C., the learned Sessions Judge did not record an order of acquittal at that stage. The accused were then called upon to enter on their defence and to adduce any evidence which they might have in support thereof. They examined DWs.1 to 3 and marked Exts.D1 to D11 on their side. The learned Sessions Judge after the trial, as per judgment dated 02.03.2016 convicted and sentenced the accused as stated in paragraph 2 (supra).

7. We heard Sri.T.A.Shaji, the learned Senior Counsel appearing for the appellants and Adv.Sri.S.U.Nazar, the learned Senior Public Prosecutor representing the State.

8. PW1, one of the eye witnesses in this case, lodged Ext.P1 First Information Statement at 10 am on 21.4.2007 before the police prima facie implicating 19 persons as accused in this case. Of the above, nine persons are specifically identified by their names and descriptions whereas ten persons Crl.Appeal No.627/2016 ..8..

are described as persons identifiable at sight. PW16, the Additional Sub Inspector of Kurathikad Police Station recorded Ext.P1 statement of PW1 and registered Ext.P1(a) First Information Report. Later, on 01.05.2007, late Ravindra Prasad, former Dy.S.P., Chengannur, who had taken over the investigation in this case, submitted a report deleting five out of the nine named accused and the other unidentifiable persons from the array of the accused while adding three more. Thus, the number of the alleged assailants was reduced from 19 to 7.

9. As required by the Investigating Officer, PW17 the then Circle Inspector of Police, Chengannur conducted inquest on the dead body of the deceased by Ext.P2. Ext.P2 would show that subsequent to the occurrence, the police conducted inspection on the Western side of a quarry (kalluvettan kuzhi), owned by Vasudevan Pillai of Cheruvalloor Padeettethil in Vettiyar Village, wherein the dead body of the deceased was found deep inside the quarry. While conducting the inquest, PW17 recovered MO3 series oar pieces, MO4 iron pipe, MO5 Crl.Appeal No.627/2016 ..9..

cable wire, MO6 wooden stick, MO7 mat, MO8 bed sheet, MO9 shirt, MO10 chappel and MO11 underwear from the place of occurrence. On cross-examination, referring to Column No.3 of Ext.P2 inquest report, PW17 stated that the dead body was found on 21.4.2007 at 6 am. In Ext.P2 inquest report, the details of the place of occurrence with reference to its length, width and depth are clearly stated. According to him, one of the major portions of the oar was recovered from the Northern side of Vazhipadiyil House which is 75 meters away from the place where the dead body was found. The remaining portion of the oar was recovered from the place where the dead body was found. Similarly, MO5 cable wire was recovered from the Northern side of Vazhipadiyil House. According to him, he had recovered two police caps from the Vazhipadiyil House. He did not give any specific answer to the question as to whether the two police caps found inside the Vazhipadiyil House was recovered as per Ext.P2. He also stated that, towel, shirt and lungi were recovered from the Vazhipadiyil House. On being cross-examined, he admitted that the mat and bed sheet were Crl.Appeal No.627/2016 ..10..

recovered from the quarry. According to him, all the surrounding four walls of the quarry are having a height of 3 metres. In Ext.P2 inquest report, there is nothing on record to suggest that a pathway was in existence on the date of occurrence for entry into the quarry from the Vazhipadiyil House. However, PW17 clarified that such a possibility could not be ruled out.

10. As requested by the Investigating Officer, on 21.4.2007, PW13 Dr.Ranju Raveendran, Assistant Professor, Forensic Medicine, MCH, Alappuzha conducted postmortem on the body of the deceased and issued Ext.P9 postmortem certificate noting the following ante mortem injuries:-

"Injuries(Antemortem)

1. Lacerated wound 5.5x1cm bone deep, coronally placed on right side of top of head its inner end 9cm above root of nose, skull was intact. The brain was oedematous.

2. Abrasion 5x4cm on back of right forearm 5cm below elbow.

3. Incised wound 5x1cm bone deep; obliquely placed on the right palm, its lower outer end at Crl.Appeal No.627/2016 ..11..

the root of index finger.

4. Incised wound 2.5x1cm, bone deep, vertically placed on the middle of front of right little finger, the underlying phalanx was out and fractured.

5. Abrasion 5x3cm on front of right thigh 4cm above knee.

6. Multiple small abrasions over an area of 2x1.5cm on front of right knee.

7. Abrasion 3x2cm on front of right leg 6cm below knee.

8. Incised wound 12x2.5x5cm horizontally placed on back of right thigh 2cm below gluteal fold, underlying muscles and sciatic nerve were cleanly cut.

9. Incised punctured wound 5x1x7cm, horizontally placed over the right buttock with its inner rounded end 4 cm outer to the level of midline at the level of gluteal fold, outer end was sharply cut.

10. Incised punctured wound 4x1cm obliquely placed on back of right thigh with its lower inner sharply cut end-20cm above middle of back of knee, upper outer end was rounded. The wound track was seen directed forwards, slightly downwards and inwards for a depth of 7.5 cm., Crl.Appeal No.627/2016 ..12..

and terminated by puncturing the back wall of profunda femoris artery over an area 1x0.5 cm. Blood was seen infiltrating the muscle planes.

11. Two parallel linear contusion 11x0.6cm each, with a central pale - zone (1.5 cm) obliquely placed on the outer and adjoining back aspect of right thigh, with its to lower back end 5 cm above knee.

12. Incised wound 7x3.5 cm obliquely across front of left knee, cutting the underlying patella.

13. Abrasion 15x0.3 to 1 cm, vertically placed on front of left leg 3cm below knee.

14. Multiple small abrasions over an area of 6x3 cm on back of left forearm 3 cm below elbow.

15. Superficial incised wound 22x0.3cm vertical on outer aspect of left arm, lower end at the elbow.

16. Superficial incised wound, 14x0.1cm, oblique, on outer aspect of left arm, lower inner end merging with previous injury.

17. Superficial incised wound 11x0.1 cm horizontally placed on left side of back of Crl.Appeal No.627/2016 ..13..

Chest, outer end 12cm below tip of shoulder.

18. Incised wound 15x1.5x1cm, horizontally across the midline of back of trunk, 31cm above natal cleft with superficial tailing 8 cm directed to the right from its inner end.

19. Contusion 7x2x0.3 cm on middle of back of chest 17 cm below root of neck.

20. Graze abrasion 3x2cm, on back of right shoulder.

21. Three abrasions 0.3x0.3cm eách, placed side by side 2cm apart in a straight horizontal line, on right side of abdomen, 6 cm outer to midline and 6cm below costal margin."

11. PW13 opined that the injured died of incised punctured wound sustained on the right lower limb (injury No.10). According to him, injury Nos.9 and 10 could be caused with MO1. He further stated that injury Nos.3, 4, 8, 12, 15, 16, 17 and 18 could be caused with MO2. He further added that injury No.11 could be caused with MO5 cable, injury No.1 could be caused with MO3 oar and injury No.19 could be caused with MO4 iron pipe respectively. On cross-examination, PW13 stated that he had first seen the dead body on 21.4.2007 at Crl.Appeal No.627/2016 ..14..

1.55 pm. He further stated that he could not ascertain the exact time of death of the deceased at the time of conducting the postmortem examination. He further opined that abrasions and contusions noticed in Ext.P9 are possible if that part of the body has come into forcible contact with a hard and rough surface. The testimony of PW13 would indicate that the deceased died as a result of injury No.10 and injury No.10 was sufficient to cause the death of the deceased. There is no evidence that the deceased had committed suicide. The death was neither suicidal nor accidental. Going by the evidence of PW13 and Ext.P9, we are satisfied that the deceased suffered a homicidal death.

12. The next and the most pertinent question that falls for determination is whether the prosecution has been able to prove beyond doubt that the appellants were, amongst others, the authors of the crime; in other words, whether the conviction and sentence imposed by the trial court can be sustained or not.

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13. According to PW17, the dead body of the deceased was found inside a quarry on 21.4.2007 at 6 am. PW16 stated that Ext.P1 FIS was recorded on 21.4.2007 at 10 am. The Investigating Officer proceeded to the place of occurrence and prepared Ext.P3 mahazar on 22.4.2007 at 9 am. To bring home the accusation levelled against the accused, it is necessary to locate the place of occurrence. Ext.P2 and Ext.P3 would clearly describe the nature and lie of the place of occurrence in this case. Ext.P6 scene plan was prepared by PW12-the Village Officer, Vettiyar in accordance with Ext.P3 mahazar. In Ext.P6 scene plan, the place of occurrence is clearly numbered as No.4. It is evident from Exts.P2 and P3 that the place of occurrence was a quarry surrounded by four walls and the dead body was found deep inside the quarry. Vazhipadiyil House is situated on the North-Western corner, that is, nearly 80 meters away from the place of occurrence. In Ext.P6 scene plan, there exists a pathway having a length of 77.4 meters on the South-North direction from the main road on the Southern side of the place of occurrence. An electric Crl.Appeal No.627/2016 ..16..

post having a street light is noted on the main road at the entry of the aforesaid pathway commencing from the main road.

14. Since the dead body of the deceased was found inside a quarry and that the deceased had met with his death owing to the murderous assault, it is necessary to analyse the evidence on record mainly based on the place of occurrence involved in this case. In fact, this part of prosecution evidence is seriously challenged by the learned counsel for the appellants.

15. The only evidence sought to connect the accused with the crime was the oral evidence of PWs.1 to 3, the alleged occurrence witnesses and PWs.4 to 6 whose evidence appeared to provide a semblance of corroboration of the evidence of PWs.1 to 3. PWs.1 to 3, who were admittedly the sympathizers of RSS, ventured to support the prosecution case. According to them, they claimed to be the targets of attack by the CPI(M) activists.

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16. PW1, Rajeev.R.Pillai was working as a Field Assistant in a company under the name and style, 'Kedhar Nadh Associates' at Mavelikara. According to him, the deceased was the Charummoodu Taluk Karyavah of the RSS at the time of the occurrence. According to him, he returned to Vettiyar from the place of work at about 8.45 pm on 20.4.2007 and then he met some of his friends at Vettiyar. He came to know that one Aneesh who was a sympathizer of the RSS was forcibly dragged from a bus on that morning and the accused 1 to 7 had beaten him up. PW1 stated that he contacted the deceased Chandran Pillai immediately through phone and informed him of the aforesaid incident. Pursuant to the information received, Chandran Pillai informed him that he would reach Vettiyar by 9.30 pm. PW1 informed Chandran Pillai that they would wait for him near Padippura Junction. Accordingly, he proceeded to the Padippura Junction with the aid of a handy torch having enough brightness to adequately light up a dark path at night. The same was given to him by his mother and he was able to reach Padippura Junction as Crl.Appeal No.627/2016 ..18..

promised. When he reached Padippura Junction, his friends PWs.2 and 3 had been waiting for him. There they had a close discussion touching the occurrence in the morning and while so, the deceased had also joined them. While they were discussing about the issue, they heard a noise from the junction adjacent to the house of PW3 and accordingly, they proceeded to the said place. PW1 testified that they saw an autorickshaw under the name and style 'Jeevan' at the Junction and a group of persons were standing near the autorickshaw. They also heard some one shouting loudly to drag out and kill somebody and also a loud cry of a woman. They were made to understand that the house of PW3 was under attack by the CPI(M) activists and the mother of PW3 was crying aloud. Considering the tense situation prevailing, they did not proceed to the house of PW3 immediately. According to PW1, they were satisfied that the local leaders of the CPI(M) were among the persons standing at the Junction. The deceased had suggested to discuss the matter with the leaders of the CPI(M) so that the matter could be settled Crl.Appeal No.627/2016 ..19..

forever. However, PWs.1 to 3 cautioned him against it and accordingly, they had returned to Padippura Junction. Considering the tense situation, the deceased suggested that it was not advisable to stand at Padippura Junction and it would be advisable to sit safely in a house. PW1 apprehended danger to his house which is very close to the Padippura Junction. Since PW3's house was attacked, he apprehended that his house would be the next target of attack. Therefore, he had advised them to take shelter in an abandoned house at Vazhipadiyil where he used to sleep occasionally especially when he had apprehended danger from CPI(M) activists for the last one week. As suggested by him, deceased and PWs.1 to 3 reached Vazhipadiyil house on the Western side of the Junction. According to PW1, PW3 brought MO7 mat and MO8 bed sheet from a small unlocked room from the Northern side of the cow shed of the said house. According to PW1, they put MO7 mat on the ground and took rest there. The deceased was tired on that day after a day's hard work in a brick kiln. He further stated that for the next two hours, they sat there and Crl.Appeal No.627/2016 ..20..

while so, a group of persons uniting together to form an unlawful assembly and armed with deadly weapons came towards them from the road situated on the Southern side of the house.

17. When examined before the trial court, PW1 identified A1 to A7 as the persons who had formed into an unlawful assembly, armed with deadly weapons and who had earlier approached them. He added that the 1 st accused- Omana Kuttan was holding an oar (MO3 series) in his hand, the 2nd accused-Roshan was holding a long sword (MO1), the 3rd accused-Pradeep was holding a small sword (MO2), the 4 th accused Robin was holding a cable (MO5), the 5 th accused- Praveen was holding an iron rod, the 6th accused-Sunil was holding an iron pipe (MO4) and the 7th accused-Kunjumon was holding a wooden stick (MO6) sharpened at one end. During the chief examination before the trial court, PW1 further stated that apart from A1 to A7, others were also present on the road. According to him, on seeing accused Nos.1 to 7 rushing towards the Vazhipadiyil house, PWs.1 to 3 ran away from the Crl.Appeal No.627/2016 ..21..

house and the deceased followed them. They found a shelter inside the quarry adjacent to the Vazhipadiyil House. However, the accused 1 to 7 followed them and rushed towards the quarry from the western side leading to the quarry. Sensing danger, they ran towards the Northern side of the quarry through a cutting on its Northern side. According to him, although PWs.1 to 3 came out of the quarry, they realized that the deceased Chandran Pillai was still inside the quarry. Just to save him, PW3 flashed the torch light to help him to come out of the quarry. While so, they heard the 1 st accused directing others to kill them and the 2 nd accused openly declaring that the deceased was Chandran Pillai, the leader of the gang hailing from Vallikunnu. Thereupon, the 1st accused beat Chandran Pillai on his head with an oar. Soon thereafter, the latter cried aloud and fell on his left side in a prone position. Thereafter, the 4th accused whipped his right thigh with a cable and the 2nd accused also inflicted cut injuries on his right thigh and on his back with a sword in his hand. PW1 further stated that the 3rd accused inflicted cut injuries on the right thigh and Crl.Appeal No.627/2016 ..22..

buttock and the 6th accused smashed Chandran Pillai on his back with an iron pipe. When the latter cried aloud, the 7 th accused started beating him on his back with a wooden stick in his hand. PW1 further testified that when the deceased turned round and raised his hand, the 2nd accused inflicted two cut injuries on the raised hand. The 2nd accused further inflicted cut injuries on his left hand joint, muscle portion and on the left knee. According to PW1, the 5 th accused beat the deceased with an iron rod below the left knee to ensure that he is already dead. PW1 stated that, considering the dangerous situation prevailing then, they all escaped from the clutches of the accused by running away in different directions.

18. PW1 who ran away from the place of occurrence hid on the staircase leading to the terrace of a house after crossing the road. He narrated his escape from the place of occurrence in detail. According to him, he had lost his consciousness and spent the whole night on the staircase of the house. When he regained his senses in the early morning he came down to the road from the staircase and while so, he overheard people Crl.Appeal No.627/2016 ..23..

talking about a dead body found in the quarry. On hearing the same, he rushed towards the quarry and found the body of the deceased. When he saw the body, the deceased was wearing MO11 underwear. He stated that on seeing the dead body, he started shivering and fainted. After some time, PWs.2 and 3 came to the spot and subsequently, several local people assembled there. When PW1 regained consciousness, he proceeded to the police station and lodged Ext.P1 First Information Statement before the Police.

19. PW2-Ratheesh and PW3-Abhilash are two independent witnesses allegedly present along with the deceased and PW1 at the time of occurrence. PW2 and PW3 supported the version of PW1 in full. They admitted that they were active members of the RSS at the time of occurrence. PWs.2 and 3 narrated the sequence of events in the same manner as testified by PW1. They also identified all the accused persons before court and specifically stated the details of overt acts committed by each and every accused with special reference to the material objects placed before the Crl.Appeal No.627/2016 ..24..

court.

20. PW4 is a house wife residing at Vettiyar. She testified that, on 20.4.2007 at about 9.30 pm, while she was inside her house, A1 to A7 forcibly broke into her house and uttered obscene words against her. She also identified MOs.1 to 6 weapons found in possession of the accused on that day. She further stated that when she cried aloud, the accused ran away from the place. According to her, the accused deliberately unleashed an attack against her house for the reason that she was a member of the Bharathiya Janatha Party.

21. PW5 is a Conductor in a private bus at Vettiyar. On 20.4.2007, the private bus was parked at the residence of the owner and thereafter he returned home in his bicycle. When he reached near Vettiyar bridge at 9 pm, he had an occasion to see the accused coming from the opposite direction armed with MOs.1 to 6.

22. PW6 is a local resident of Vettiyar. According to him, on 20.4.2007 at about 11.30 pm, while he was Crl.Appeal No.627/2016 ..25..

proceeding to the house of a co-worker near Padipura Junction, he saw all the accused armed with MOs.1 to 6 coming from the Southern side. PW6 identified all the accused and MOs.1 to 6.

23. PWs.7 to 10 are not material witnesses. PW7 is the nephew of the deceased and he came to the place of occurrence to see the dead body. PWs.7 and 8 are witnesses in Ext.P2 inquest report prepared by the police. PW9 is a signatory in Ext.P3 mahazar and PW10 is a witness in Ext.P4 recovery mahazar respectively.

24. PWs.11 and 12 are two official witnesses. PW11 the Secretary of Thazhakara Village issued Ext.P5 certificate stating that Vazhipadiyil Leelamani Amma was the owner in possession of the House bearing No.VI/488 as per the (old) building assessment register. Ext.P6 scene plan was prepared by late M.M.Dileep Kumar, former Village Officer of Vettiyar Village. PW12 was examined to prove Ext.P6 scene plan. According to PW12, the place of occurrence was a quarry situated in the property of Cheruvalloor Padeettethil Vasudevan Pillai.

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25. Investigation in this case was conducted by late B.Ravindra Prasad, former Dy.S.P of Chengannur. PW16-the Additional Sub Inspector of Kurathikad Police Station who recorded Ext.P1 statement of PW1 and registered Ext.P1(a) FIR identified the signature of late Ravindra Prasad and proved the investigation conducted by the latter. All the accused were arrested in accordance with law during the investigation. After the arrest of the 2nd accused, the Investigating Officer questioned him and recorded his confession statement in the handwriting of PW18 who was a Head Constable of Mavelikara Police Station. The 2nd accused in custody stated before the Investigating Officer that he had kept the sword sticks below a culvert near his house and he would point out the place where the sword sticks were kept if he would be taken there. On the basis of Ext.P4(a) confession statement, the Investigating Officer along with PW18 reached near the culvert in Vettiyar Village and as pointed out by the accused, recovered MOs.1 and 2 swords concealed among the dry leaves under the culvert at 10.45 am on 24.4.2007 by Ext.P4 recovery mahazar. Crl.Appeal No.627/2016

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26. In order to appreciate the prosecution evidence in detail, it is necessary to consider the defence evidence as well. DWs.1 to 3 were examined on the defence side. DW1 was the Grade Head Constable of Kurathikad Police Station on 20.4.2007. He stated that he was on picket duty on 20.4.2007 at the Post Office Junction, Vettiyar from 8 am. to 8 pm. According to him, on 20.4.2007 evening, ten persons formed into an unlawful assembly armed with weapons and assaulted one Sanal. According to him, when they rushed to the scene, some miscreants took away the police caps and shirts from the police picket duty point. According to him, Ext.D5 is the photograph of the police cap found missing from the police picket duty point. He also identified Exts.D4 and D9 shirts of his co-worker Shamsudeen which were also found missing from the police picket duty point.

27. DW2 testified that PW2 is the son of his uncle and PW2 had filed Ext.D10 case against him before the Sub Court, Mavelikara. Ext.D10 would show that PW2 filed an affidavit and a petition to sue as an indigent person against DW2 before the Crl.Appeal No.627/2016 ..28..

Sub Court. PW2 has a case that he had lost his eye sight pursuant to an attack made by DW2. When PW2 was cross- examined, he too admitted that there was an incident on 13.6.2003 in which he had sustained injuries on his eyes as a result of an attack by his sister's son.

28. The Circle Inspector of Police, Mavelikara, who conducted investigation in Crime No.39/2005 of Vallikunnam Police Station for the offences punishable under Sections 143, 147, 148, 149, 447, 427, 307, 302, 153A and 120B of the IPC, was examined to prove that the deceased Chandran Pillai was an accused in a murder case. In the said case, one Ashraf who was an NDF activist was murdered. Ext.D11 final report in Crime No.39/2005 of Vallikunnam Police Station would show that the 6th accused in the said case was one Chandran, aged 40 years, S/o.Gopinatha Pillai, Vallikunnam. The occurrence in the said case as per Ext.D11 was on 23.2.2005 at about 9 pm. in front of Kaduvinal Muslim Mosque in Vallikunnam Village. One of the contentions taken by the accused is that the NDF activists retaliated and murdered Chandran Pillai due to prior Crl.Appeal No.627/2016 ..29..

enmity towards him in connection with Ext.D11 case.

29. In support of the appeal, the learned counsel for the appellants submitted the following contentions:-

(i) PWs.1 to 3 belonged to two rival political outfits with love lost between them due to serious ideological, historical and empirical reasons. Hence, there was every possibility of roping in political opponents in the case for purely political reasons.

(ii) First Information Statement was lodged by PW1 after effective consultation with PWs.2, 3 and others. In the First Information Statement, 9 named persons were made as accused and out of the above, 5 were deleted and 3 more were included later.

(iii) The occurrence in this case as per the prosecution case was at 11.30 pm on 20.4.2007. PWs.1 to 3 had never witnessed the incident and they had no occasion to see and identify the assailants at the odd hours.

(iv) The source of light at the scene of occurrence at the odd hours has not been brought in.

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(v) PWs.4 to 6 had also no occasion to see and identify the assailants at the odd hours immediately after the occurrence.

(vi) PWs.1 to 3 apprehended danger from the accused on the date of occurrence. They moved in the company of the deceased on the date of occurrence. However, there was no injury sustained by them although they adduced evidence to show that they had stayed together along with the deceased on the date of occurrence at Vazhipadiyil House and moved towards the quarry in search of a safe place in anticipation of an imminent danger to their life.

(vii) There was no injury sustained by PW1 to PW3 or was there any evidence to show that they had made any effort to resist the attack.

(viii) The delay in lodging the First Information Report has not been explained.

(ix) The deceased being relatively a senior leader of a political party and accused in other case as well, there was every possibility of others harbouring enmity towards him. Crl.Appeal No.627/2016

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30. The learned Public Prosecutor Sri.S.U.Nazar, appearing for the State contended that the postmortem examination in this case fully corroborated the prosecution case and PW13, the Doctor who issued Ext.P9 postmortem certificate, testified that the victim died of incised and punctured wound sustained to right lower limb noted in Ext.P9 postmortem certificate. PW13 further stated that injury Nos.9 and 10 in Ext.P9 postmortem certificate could be caused by using MO1 sword. In the light of the evidence let in by PW13 and PWs.1 to 3, the learned Public Prosecutor contended that the evidence of the witnesses in this case was unimpeachable. Relying on the dictum laid down in paragraph 31 of the decision reported in Myladimmal Surendran v. State of Kerala [AIR 2010 SC 3281], the learned Public Prosecutor contended that the evidence of PWs.1 to 3 cannot be rejected on the ground that they are partisan witnesses. The sum and substance of the contention is that merely because PWs.1 to 3 are sympathizers of RSS, their evidence cannot be brushed aside and at best, their evidence has to be carefully Crl.Appeal No.627/2016 ..32..

scrutinized. The learned Public Prosecutor also relied on the decision in Rana Partap and others v. State of Haryana [AIR 1983 SC 680] and contended that every person who witness a murder reacts in his own way and there is no set rules for natural reaction. To discard the evidence of PWs.1 to 3 on the ground that they did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

31. In Ext.P1 First Information Statement, PW1 had implicated 5 innocent persons as accused along with 10 more as identifiable at sight. When he was examined before court, no plausible explanation was offered as to why he had implicated innocent persons as accused in the First Information Statement. Subsequently, the Investigating Officer questioned him and recorded his statements twice. Based on the same, the Investigating Officer had deleted 5 named persons as accused from the array of the accused. As 5 persons named in the FIR have been excluded during the course of investigation, we have reasons to believe that at least five persons were Crl.Appeal No.627/2016 ..33..

arrayed as accused falsely in this case. There is nothing to indicate that the 5 persons omitted in the FIR later were questioned by the Investigating Officer during the investigation. The Investigating Officer filed a report stating that the 5 persons named in the FIR were innocent and hence he had deleted them from the array of the accused. Instead of the above 5 persons, 3 more accused were impleaded as additional accused in the case. All the accused named in the FIR and others were put on trial. The very fact that initially 19 persons were arrayed as accused in the FIR including 9 named accused and 5 out of the 9 named accused were later deleted is sufficient to cause cloud on the prosecution case especially on the question of the identity of the assailants. In this context, the delay in lodging the FIR is material. The alleged time of occurrence was at 11.30 pm. The claim of PWs.1 to 3 was that they slept the whole night after the incident and came to the scene of occurrence in the next day morning to find out the dead body of deceased Chandran Pillai. Thereupon, PW1 is claimed to have lodged the FIS by about 10 am. with the Crl.Appeal No.627/2016 ..34..

Kurathikad Police Station about 8 km. away reaching there by means of a bicycle. The above story is inherently artificial and demonstrably faulty. PW1 had not offered reasonable explanation for implicating innocent persons as accused. By the very nature of his conduct, it is clear that he had interacted with others and lodged a colourful version before the police.

32. FIR in a criminal case is an extremely vital piece of evidence for the purpose of evaluating the oral evidence adduced at the trial. One of the objects of insisting upon prompt lodging of the FIR is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual accused and the part played by them as well as the names of eye witnesses present at the place of occurrence. In the case at hand, PW1, who lodged FIS before the police, was an eye witness. When his evidence is clouded with strong suspicion and First Information Report was lodged by a delay of 10 hours, the false implication of accused cannot be completely ruled out. It has come out in evidence that he had interacted with others before lodging the Crl.Appeal No.627/2016 ..35..

First Information Statement. Delay in lodging the First Information Statement quite often results in embellishment and false implication of accused persons. On account of delay, the First Information Report usually contains coloured version as a result of deliberation and consultation. Why this delay when all eye witnesses were present at the spot? We are of the view that the names of the assailants were not known as the alleged three eye witnesses had not seen the actual assailants and they were not present at the scene of occurrence and in all likelihood, they like others arrived at the scene after the incident. (see Awadhesh and another v. State of M.P. [AIR 1988 SC 1158]).

33. In Peddireddy Subbareddi & others v. State of A.P. [1991 KHC 1218], the Apex Court held as follows:-

"4. No doubt, plurality of witnesses is not necessary to establish a fact in issue and a conviction can be based on the testimony of a sole witness provided that evidence is wholly believable (Vide Vadivelu Thevar v. State of Madras, AIR 1957 SC 614: 1957 CriLJ 1000). In the present case as we have come to the Crl.Appeal No.627/2016 ..36..

conclusion that the evidence of the P.W.1 is clouded with strong suspicion and as the first information report was lodged by a delay of 15 hours, the false implication of appellants in the present case cannot be completely ruled out. On going through the judgments of both the Courts below we are unable to share with the finding rendered by the two Courts holding the appellants are guilty of the charges with which they stand convicted."

34. The source of light proposed by the prosecution for the witnesses to see the occurrence is material in this case. As already indicated, the alleged time of occurrence inside a quarry was 11.30 pm. When PW1 was examined before court, he stated that before proceeding from his house, his mother had entrusted a handy torch with him and he had witnessed the occurrence with the help of the handy torch which he had in his possession at the time of occurrence. He further stated that PW3 was also in possession of a torch with him. It is the specific case of PWs.1 to 3 that they had witnessed the occurrence with the help of the torch lights in the possession of PW1 and PW3. Although PWs.1 to 3 were questioned by the Crl.Appeal No.627/2016 ..37..

Investigating Officer several times during the investigation, no attempt was made out to trace out the torch lights or to recover the same in accordance with law. It is true that even if the torch lights were not recovered in accordance with law, the same would not affect the veracity of the prosecution evidence. In his evidence, PW1 stated that the three sides of the quarry (Kalluvettankuzhy) is 10 to 11 feet depth. According to him, one side is having lesser depth and it is possible to climb from the quarry through the said side. However, he clarified that still the height difference from the ground level of the quarry is 5 to 5½ feet. It is difficult for us to believe that PWs.1 to 3 initially escaped from the place of occurrence and when they tried to save the deceased, they had witnessed the occurrence with the aid of torch lights and that too at 11.30 pm. in the night.

35. Ext.P6 scene plan clearly indicates that Vazhipadiyil House is nearly 80 metres away from the place of occurrence. Ext.P6 does not indicate a direct pathway to the place of occurrence from the Vazhipadiyil House. No street lights were Crl.Appeal No.627/2016 ..38..

available on the four sides of the quarry. One street light was available on the main road facing towards South. However, this street light is 77.4 metres from the outer limit of the quarry. The occurrence spot is further North of the outer limit. In view of the above, it is difficult for us to believe that PWs.1 to 3 witnessed the occurrence in the presence of light emanated from the street light. PWs.1 to 3 narrated the overt acts committed by accused 1 to 7 in detail. According to them, although it was dark, they had seen the accused assaulting the deceased on the date of occurrence in the light of their torch lights. On a careful analysis of the evidence, we are of the view that the evidence tendered by the witnesses is artificial and difficult to believe. PW1 adduced evidence to show that apart from A1 to A7, others were also present on the road. In view of the above circumstances, the story advanced by PWs.1 and 3 that they had ventured to switch on the torch light to witness the occurrence is contrary to the evidence on record. Having taken into consideration of the fact that no street lights were available in and around the quarry and that the alleged Crl.Appeal No.627/2016 ..39..

occurrence took place inside the quarry, the prosecution adduced evidence to show that they had witnessed the occurrence with the aid of torch lights. PWs.1 to 3 had not given plausible explanation as to how they reached the quarry during the night time and have also jumped inside the quarry. Under the circumstances, we are of the view that PWs.1 to 3 have lied on most important points and they cannot be believed.

36. All the above circumstances would show that two views are possible on the point whether PWs.1 to 3 had really witnessed the assault at 11.30 pm in the night. There is every reason to think that PWs.1 to 3 who ran away from the place of occurrence in different directions had no occasion to witness the alleged assault as against the deceased. They might have run away from the Vazhipadiyil House itself in different directions in the night consequent to the threat exerted by a group of persons who were sympathizers of the CPI(M). We have every reason to think that PW1 being informed later would have reached near the scene of occurrence in the next Crl.Appeal No.627/2016 ..40..

day morning after the entire occurrence was over and had interacted with PWs.2 and 3 initially and proceeded to the police station for lodging Ext.P1 FIS. The possibility of witnessing all the accused assaulting the deceased with MOs.1 to 6 from the outer limit of the quarry with the help of torch light and that too in the night is rather doubtful. We are of the view that it is not safe to rely on their version that they had seen the accused with particular weapons in their hands. No scientific examination was done to prove that these weapons were actually used by the accused to assault the deceased. In Ext.P6 scene plan drawn by the Village Officer, the distance of the occurrence spot from the ground level is not mentioned. However, PW1 in his evidence stated that the depth is nearly 5 to 6 feet from the ground level. PWs.1 to 3 or any other witness did not give any details about the lighting in the nearby vicinity. The site plan prepared by the Village Officer indicates that there was a tube light attached to the electric post situated far away. It would have been difficult for PWs.1 to 3 to witness the occurrence from the lighting on the road. Crl.Appeal No.627/2016

..41..

37. It would have been difficult for PWs.1 to 3 during the night time to notice each of the accused carrying a particular type of weapon and that too mentioning small sword and long sword as spoken by PWs.1 to 3. It is difficult to accept the version of PWs.1 to 3 having seen the different types of weapon in the hands of each of the accused and also remember nature of the weapon alleged to have been used. Another factor which caused doubt on PWs.1 to 3 is that there were no blood stained clothes recovered from the place of occurrence. When PW1 saw the dead body of the deceased at 6 am in the next day, the deceased was wearing only an underwear. Further, PWs.1 to 3 were aware that the deceased was brutally attacked by accused Nos.1 to 7. Soon after the alleged occurrence, they had chosen to escape from the place of occurrence. It is their confession that they had witnessed the entire occurrence which had taken place inside the quarry at 11.30 pm. with absolute mathematical precision and escaped from the place of occurrence as they apprehended danger at the hands of the accused. This is not a natural Crl.Appeal No.627/2016 ..42..

course of conduct. It is their specific case that the deceased came to the scene as PWs.1 to 3 apprehended danger from CPI(M) activists. In fact, it is their case that the deceased came to help them. When such a person and that too a Taluk Karyavah of an organisation was assaulted, they would have extended support to him. They did not go to the police station though they very well knew that the deceased was assaulted brutally. It is on account of these doubtful features in the evidence of PWs.1 to 3, we have our own doubt that PWs.1 to 3 had witnessed the incident as alleged by the prosecution.

38. However, there were no injuries sustained by them or was there any other evidence to show that they had made any effort to prevent the attack. After witnessing the occurrence, they did not inform any of the relatives or political friends, but on the other hand, they ran away from the spot in different directions to different places far away. PW1 adduced evidence to show that he had seen the occurrence taking place inside the quarry wherein the deceased was brutally assaulted by the accused with deadly weapons. PWs.2 and 3 supported Crl.Appeal No.627/2016 ..43..

the version of PW1. PW1 adduced evidence in chief examination that along with the accused, a group of persons were assembled on the road adjacent to the place of occurrence. The conduct of PWs.1 to 3 in not reporting the matter to any of their political friends or relatives of the deceased about the occurrence throws a considerable doubt on the veracity of their evidence before court.

39. On a consideration of the evidence on record, we are of the view that there is a reasonable possibility of implicating A1 to A7 in the case due to political reasons. Even if A1 to A7 formed into an unlawful assembly armed with deadly weapons and trespassed into the Vazhipadiyil House as alleged by the prosecution for the purpose of rioting, they could not be convicted for an offence of murder without evidence in this case. The fact that PWs.1 to 3 were questioned several times during investigation and recorded their statements repeatedly itself would indicate that they had sufficient opportunity to interact each other to set up a concrete case against the accused. In State of Rajasthan v. Crl.Appeal No.627/2016

..44..

Bhanwar Singh [2004 KHC 1931], the Apex Court has held as follows:-

"6. We find that the High Court has carefully analysed the factual position. Though, individually some of the circumstances may not have affected veracity of the prosecution version, the combined effect of the infirmities noticed by the High Court are sufficient to show that the prosecution case has not been established. The presence of PWs.3, 4 and 8 at the alleged spot of incident has been rightly considered doubtful in view of the categorical statement of PW5, the widow that she sent for these persons to go and find out the body of her husband. It is quite unnatural that PWs.3, 4 and 8 remained silent after witnessing the assaults. They have not given any explanation as to what they did after witnessing the assault on the deceased. Additionally, the unexplained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of prosecution version. The mere delay in lodging the FIR may not prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors which corrodes credibility of the prosecution version."

40. In Golden Satheesan @ Satheesan & others v. Crl.Appeal No.627/2016

..45..

State of Kerala [2012 KHC 25], a Division Bench of this Court in paragraph 20 of the judgment held as follows:-

"20. As noted earlier, the occurrence took place at 12.30 midnight in around the detached bathroom and firewood shed of an uninhabited house which had no electric connection. The only source of light available there, according to the witnesses, was the four torches allegedly wielded by 4 among the assailants and one torch held by P.W.2. Even assuming that the accused persons are belonging to the same locality and not strangers to the witnesses, the meticulous manner in which P.W.2 has identified them and attributed specific overt acts to each of the accused persons and has identified the weapons wielded by each of them and the dress worn by each of them as also the photographic precision with which the parts of the body where each blow was struck, has been given, appears to be highly artificial."

41. On identical situation, the Apex Court held in State of MP. v. Kriparam [2003 KHC 1850] in paragraph 8 of the Crl.Appeal No.627/2016 ..46..

judgment as follows:-

"..................Apart from this, these witnesses have stated that immediately on seeing the attack on the deceased they ran away and hid themselves until next day morning being afraid of the assailants. But then there is so much contradiction in regard to the direction and the place the witnesses ran away that it creates a suspicion as to their presence. PW1 says that he ran in the direction of the river while PW2 says, he ran in the direction of the hill which according to the defence are in opposite directions. This apart, assuming they did hid themselves, there is absolutely no explanation why these witnesses till about 8 O' clock in the morning did not try to seek any help from sources available to them. It has come in evidence that near about the thrashing yard of PW-4 where the incident took place, there were other thrashing yards where people were sleeping, therefore, they could have easily sought help from them which was not done. Then again we notice that the incident in question has taken place in the month of April, and being summer month, we can take judicial notice of the fact which has been done by the courts below that the sun rise would have been around 6 O' clock in the Crl.Appeal No.627/2016 ..47..

morning. If that be so, we find no explanation whatosever why these witnesses did not go to their house or contact anybody upto 8 O' clock in the morning to inform them of the incident in question. This act of PWs.1&3 in informing the relatives and the villagers of the attack only at 8 O'clock in the morning was obviously to explain the delay in filing the FIR, which was lodged in the police station which was about 3 Kms. away from the place of incident only at 8.15 O'clock in the morning. Here again, in regard to the lodging the complaint there is direct contradiction in evidence of PWs.1 & 3. While one of the witnesses states they went straight from the place of incident to the police station, the other states they went to the village first to inform the relatives and then went to the police station. If the evidence of these eye witnesses was otherwise believable for good reasons, some of the contradictions referred to hereinabove by us might not have damaged the veracity of their evidence. But in the background of the defence as to the falsity of PWs' presence, the existence of these contradictions makes a lot of difference, more so when the prosecution has failed to explain the delay in filing the complaint.

Crl.Appeal No.627/2016

..48..

This is because of the fact that according to the defence the incident in question must have taken place without their being eye witnesses, and when noticed in the morning a complaint was lodged after due deliberation involving these accused persons."

42. It is true that PWs.1 to 3 adduced evidence in accordance with the prosecution case. If their evidence is believed, no doubt, the accused can be convicted without any other evidence. The evidence adduced was capable of arriving at a prima facie conclusion that PWs.1 to 3 supported the prosecution case in full. However, it is absolutely essential to examine the evidence in the case as to whether the prosecution case is in consonance with the material established in this case. This is all the more important in view of the contention that the possibility of sustaining fatal injuries inside the Vazhipadiyil house in the night and later the dead body was taken out and placed deep inside the quarry. In this connection, it is important to note that PW13 could not ascertain the exact time of death of the deceased at the time Crl.Appeal No.627/2016 ..49..

of conducting the postmortem examination. It has come out in evidence that the deceased was relatively a senior leader of an organisation namely RSS and the accused in other cases as well and it is evident from Ext.D11 and from the evidence of DW3 that he was the 6 th accused in the case of murdering an NDF activist. In a murder case, it is absolutely essential to prove that in fact the accused actually committed the occurrence. Merely because PWs.1 to 3 adduced evidence with mathematical precision, it is rather unsafe to act upon their evidence in the absence of reliable circumstances to prove the same. In Sevi & another v. State of Tamil Nadu & another [1981 (Supp) SCC 43], the Apex Court considered an identical situation and held in paragraph 3 of the judgment as follows:-

"If that is so, the entire prosecution case becomes suspect. All the eye-witnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the Crl.Appeal No.627/2016 ..50..

entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to sift the evidence becomes very difficult indeed. Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses themselves admit in cross- examination that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on Crl.Appeal No.627/2016 ..51..

everyone else. One other important feature of the case which remains unexplained by the prosecution witnesses is the injuries found on A4. According to A4 the prosecution party came to his house and attacked him and the prosecution party were injured in that incident, suggesting thereby that he acted in exercise of his right of private defence. He, however, excludes the presence of the other accused. Whether his version is true or not, the fact remains that he did sustain some injuries which have remained unexplained. Having regard to all these special features of this case we do not think that the High Court was justified in setting aside the acquittal of the appellants and convicting them. The appeals are, therefore, allowed. The appellants, if not on bail, will be released forthwith. If they are on bail their bail bonds will stand cancelled."

43. It is a fact that a tense situation was prevailing in and around the place of occurrence on the date of occurrence. PWs.4 to 6 adduced evidence to show that such an atmosphere Crl.Appeal No.627/2016 ..52..

was prevailing on the date of occurrence. PWs.1 to 3 adduced evidence to show that the accused and PWs.1 to 3 belonged to two rival outfits and political enmity was the reason for committing the murder. However, political rivalry against PWs.1 to 3 has not found a place in the charge framed by the trial court.

44. On going through the evidence of PW1, it is clear that Vazhipadiyil House was an abandoned house on the date of occurrence. According to PW1, he used to hide in the aforesaid building prior to the occurrence while apprehending danger from the CPM activists. As suggested by PW1, all of them selected Vazhipadiyil House as a hiding place on the date of occurrence. It is a fact that two police caps were recovered by the police from the Vazhipadiyil House. The circumstance under which the above two police caps were found inside the Vazhipadiyil House immediately after the occurrence was not explained by the prosecution. However, DW1 who was the Head Constable of Kurathikad Police Station on 20.4.2007 adduced evidence to show that two police caps were stolen Crl.Appeal No.627/2016 ..53..

away by some miscreants while he was engaged on police picket duty. In a criminal case, it is not necessary to peruse the evidence of the defence to prove a fact discovered by the police during the investigation. No explanation was offered by the Investigating Officer touching the recovery of two police caps from the Vazhipadiyil House. Along with the police caps, the Investigating Officer recovered sticks also from the Vazhipadiyil House. The circumstances under which the deceased and PW3 came to the place of occurrence on the date of occurrence had not been explained in full. Similarly, the circumstances compelling the deceased and PWs.1 to 3 to move towards the quarry had not been proved. Although the deceased was brutally assaulted by the assailants, according to the prosecution, PWs.1 to 3 who were physically fit did not make any attempt to resist the attack at the spot. Despite the fact that they had witnessed the brutal assault as against the deceased, they had chosen to run away from the scene of occurrence. This is also highly improbable. They did not disclose to anyone regarding the incident. As per the Crl.Appeal No.627/2016 ..54..

prosecution, they all took their heels in different directions and slept comfortably. Curiously enough, the very next day they came to the scene of occurrence and found the dead body of the deceased. The evidence adduced by PWs.1 to 3 in this respect is inherently artificial and demonstrably concocted. The case advanced by PWs.1 to 3 is capable of shattering the very edifice of the prosecution.

45. Significantly, in criminal cases, the burden of proving the guilt of the accused is upon the prosecution. It must stand by itself. Logically, the accused need not establish his case beyond reasonable doubt. Undeniably, the evidence of the witnesses has to be weighed and tested whatever be the numerical strength. If the case against the accused rests in the evidence of only a single witness to the crime and his testimony is entitled to full credit, that evidence should be sufficient to sustain conviction. Section 134 of the Evidence Act enacts that no particular number of witnesses is required for proof of any fact. In Vadivelu Thevar vs. The State of Madras [AIR 1957 SC 614], it was observed by the Apex Crl.Appeal No.627/2016 ..55..

Court on page 619 as under:-

"Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact."

46. On a perusal of the oral evidence adduced by PWs.1 to 3, we are of the view that the quality of their oral evidence is against the circumstances alleged and proved by the prosecution. Hence plurality of the witnesses in proof of the circumstances alleged by the prosecution is not a ground to hold that the alleged occurrence and guilt of the accused are proved. The facts alleged and proved do not account with reason and commonsense. The testimony of political witnesses in political cases must be scrutinized with more than ordinary care. By the very nature of the allegation, the presence of PW1 to PW3 in the scene of occurrence at 11.30 pm to witness the incident is nothing next to impossibility. The entire prosecution case was tainted by serious legal and factual infirmities and rested on falsely fabricated evidence. The evidence adduced Crl.Appeal No.627/2016 ..56..

was incapable of arriving at any conclusion of guilt of the accused in the crime.

47. The Investigating Officer was no more when the trial commenced before the trial court. The accused did not get any opportunity to cross-examine the Investigating Officer touching various aspects including addition and deletion of accused from the array of all the accused. The evidence of PW17 in cross-examination would show that one piece of MO3 series oar was recovered near the dead body and another piece from the Northern side of Vazhipadiyil house at a distance of 75 m. from the place where the dead body was found. According to PW17, MO5 cable was also recovered from the Northern side of Vazhipadiyil House. His evidence further would show that two police caps were recovered from a room adjacent to Vazhipadiyil House on the Northern side. Shirt, lungi and towel were also recovered from the said house. Cable and oar were the weapons alleged to have been used to inflict injuries on the deceased. As per the prosecution case, the occurrence took place inside the quarry. However, certain Crl.Appeal No.627/2016 ..57..

material objects were recovered from the Vazhipadiyil House. There is no case for the prosecution that PWs.1 to 3 came back to Vazhipadiyil House from the quarry and left the material objects inside the house. Regarding the recovery under Section 27 of the Evidence Act is concerned, it is the case of the prosecution that MOs.1 and 2 were recovered on the basis of the Ext.P4(a) confession statement. However, the Investigating Officer, who recovered MOs.1 and 2, was not available before the court. PW10 one of the independent witnesses who witnessed the recovery turned hostile to the prosecution stating that he did not witness the recovery of swords as alleged by the prosecution. PW18 stated that he prepared Ext.P4 mahazar as directed by the Investigating Officer. In Ext.P4(a) MOs.1 and 2 are stated as stick swords. However, the said weapons are stated as iron swords in Ext.P4 mahazar. Ext.P4 would show that MOs.1 and 2 were recovered from the Northern side of Vettiyar muri which were concealed inside a dry leaf under a culvert above the PIP canal. No evidence was adduced by the prosecution to show that MOs.1 Crl.Appeal No.627/2016 ..58..

and 2 were blood stained and contained the blood of the deceased.

48. Section 141 of the IPC defines unlawful assembly to be an assembly of 5 or more persons. They must have a common object inter alia to commit any mischief or criminal trespass or other offence. Section 143 of the IPC provides for punishment of being a member of unlawful assembly. Section 149 of the IPC provides for constructive liability on every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly knew to be likely to be committed in prosecution of that object. When all the accused were present at the scene of occurrence and assault made by them with deadly weapons are established beyond doubt, Sections 148 and 149 of the IPC would come into operation and all the participants would be liable to be convicted under these Sections. In a case of political rioting pursuant to an unlawful assembly as alleged by the prosecution, generally operation of Section 5 of the Arms Crl.Appeal No.627/2016 ..59..

Act, 1959 does not arise for consideration. User of arms or ammunition in contravention of Section 5 is punishable under Section 27 of the Arms Act. It has come out in evidence that certain dangerous weapons were recovered from the scene of occurrence and some other weapons were recovered from the Vazhipadiyil House and MOs.1 and 2 were recovered consequent to the information furnished by the 2 nd accused. PWs.4 to 6 stated that they had occasion to see the accused just prior to the occurrence armed with Mos.1 to 6. However, the evidence adduced by PWs.1 to 3 is not sufficient to prove that A1 to A7 were armed with deadly weapons and had assaulted the deceased inside the quarry as alleged. When PW1 gave Ext.P1 FIS before police, he stated that A1 to A9 were armed with specific deadly weapons to assault them. Out of which, 5 persons were later excluded by the police. The remaining was 4 only. This would probabilise the fact that the unlawful assembly armed with deadly weapons alleged by PW1 at the time of occurrence was not true to facts. He had improved his version during the progress of the case and Crl.Appeal No.627/2016 ..60..

implicated three more to sustain a case of unlawful assembly. No evidence was also adduced to prove that all the accused formed into an unlawful assembly armed with deadly weapons for the purpose of rioting in prosecution of their common object assaulted and murdered the deceased. The occurrence in this case took place during the night. No light was also available in and around the scene of occurrence. PWs.4 to 6 had also no occasion to see and identify the assailants at odd hours immediately after the incident. We are of the view that the learned Sessions Judge ignored the fundamental principles in the matter of appreciation of evidence that the evidence should be appreciated in its totality and not in isolation.

In the light of the discussion made hereinabove, we set aside the conviction and sentence passed by the Additional Sessions Court-III, Mavelikara in S.C.No.157 of 2011 and acquit accused Nos.1 to 7 for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 of the IPC and Section 27(1) of the Arms Act, 1959. They are set at Crl.Appeal No.627/2016 ..61..

liberty forthwith provided they are not required in connection with any other case. The Criminal Appeal is allowed accordingly.

Sd/-

A.HARIPRASAD, JUDGE Sd/-

N.ANIL KUMAR, JUDGE skj

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