Chandran vs State Of Kerala on 4 March, 2022

[Cites 16, Cited by 0]

Kerala High Court

Chandran vs State Of Kerala on 4 March, 2022

Festival grounds are fertile lands of strife where silly squabbles ignite the fuse of past animosities, turning it into killing fields. In the case before us, there is a lethal cocktail of political rivalry which escalated, by reason of a clash of egos in a ritual in connection with the festival. The prosecution alleges that a group of people aligned under a political party attacked another, belonging to the rival party, killing him mercilessly.

2. The accused were charged under Sections 120B, 143, 148, 324 and 302 r/w 149 & S.212 IPC and S.27 of the Arms Act. A2 died in the course of the trial, A13 was acquitted and A14 is absconding. The other accused stood trial and they were convicted under the offences charged and A1 and A3 to A12 were sentenced to undergo Crl.A Nos.929/2016 & 1082/2016 5 imprisonment for life. They were also sentenced to undergo rigorous imprisonment (RI) for six months under S.143 IPC, RI for one year under S.148 IPC, RI for two years under S. 324 IPC and RI for three years under S.27(1) of the Arms Act. There were also fines imposed under the different provisions, with default sentences.

3. The prosecution allegation is that on 18.01.2005, an altercation occurred in the course of a ritualistic procession on the festival day, in which two competing clubs participated. A1, his brother and some others belonging to a club called 'Sanghadhwani' quarrelled with the deceased who was participating under the banner of 'Yuvadhara'. The deceased challenged the others and threatened to retaliate at the festival grounds. The accused then conspired, procured weapons, followed the deceased and attacked him near a Halwa Stall. The injured-victim ran for his life and hid in the bathroom of PW12. The 12 accused chased and found him, dragged him out of the bathroom, attacked him mercilessly with deadly weapons, causing injuries, to which the victim succumbed. The accused were housed in the Crl.A Nos.929/2016 & 1082/2016 6 residence of A13 and on the next day, sent in a Qualis Car arranged by A14 to Mookambika. The appellants herein stood trial and were convicted as above.

4. Sri Vijaya Bhanu, learned Senior Counsel appeared for A1, A3, A4, A5 and A10. Sri S.Rajeev, learned Counsel appeared for A6, A7 and A8 and Sri Rajit, learned Counsel appeared for A9, A11 and A12. The defence argues that the accused are victims of the 'list system' followed by the Police in political killings; the list of accused originating from the local office of the rival political party. The deceased and the accused belong to different political hues and the accused were targeted merely for their political affiliation. The party to which the deceased belonged, provided the list of accused as also tutored witnesses for the prosecution. It is pointed out that neither Ext.P1 F.I.S nor Ext.P56 inquest report named the accused. The first report arraigning the accused (Ext.P59 dated 20.01.2005) only arraigned A1 to A9 and it was by Ext.P61 dated 21.01.2005, that A10 to A12 were arraigned. These reports reached the Court only on 28.01.2005 and 31.01.2005, for which delay, there is Crl.A Nos.929/2016 & 1082/2016 7 no satisfactory explanation by the I.O, PW49. These reports also do not refer to PW3, PW24 and one Vijayan, who were all eye witnesses according to the prosecution. There is serious doubt as to the source of light by which the eye witnesses saw the incident.

5. The scene plan produced by the prosecution is as vague as possible and does not help the Court at all to understand the relevant facts attempted to be brought out in evidence, with reference to the scene of occurrence. Rule 75 of the Criminal Rules of Practice is pointed out to emphasize the importance of the Scene Plan. Koshy @ Baby v. State 1991 KHC 18 is relied on to further buttress this contention. There is serious doubt as to whether there were tube lights fixed on the festival grounds and more particularly, near the house of PW12. PW49 speaks of the minutes book of the temple committee having been seized by Ext.P10 mahazar which was not produced. PW17, who is said to have put up the lights, was not questioned by the Police. PW12 admits that there was no power connection in her house and there was no possibility of PW23 having seen the attack and Crl.A Nos.929/2016 & 1082/2016 8 identified the assailants at night. More particularly, it has come out that the property of PW12 is at a height of more than six feet from the temple grounds. PW23's statement that he stood up on a ridge to witness the incident, is improbable especially since he had a child sleeping on his shoulders. There is also evidence to show that there was another property between that of PW12 and the alleged position of PW23; thus belying his contention of clear vision; falsified further by the testimony of PW46, who took photos of the scene of occurrence.

6. The testimony of the eye witnesses regarding the weapons held by each of the 12 assailants and also the description of the dress worn by them, without a fault, clearly indicates tutoring by the Police. It raises suspicion about the testimony of the ocular witnesses. The recovery of weapons is said to have been made from the backyard of the respective residences of the accused. There were no blood stains on the weapons stated in the mahazars; but the FSL report found presence of blood. Reliance was placed on Balwan Singh V. State of Chhattisgarh (2019 (7) SCC 781) to contend that only in Crl.A Nos.929/2016 & 1082/2016 9 cases where the recovery of an M.O, is proved beyond reasonable doubt, the mere presence of blood without its origin or group being determined can be taken as an incriminating material. The prosecution case was also that immediately after the attack, the accused were removed from the scene of occurrence, in a Qualis Car, by A13 & A14 and harboured at A13's house. The dress of the accused were alleged to have been surrendered by A13, witnessed by PW22. When the accused had proceeded to A13's house straight from the scene of occurrence, in their blood-stained dress, there is no probability of concealment of weapons in the backyard of their respective residences. Ext.P26 seizure mahazar of the dress does not indicate any to be blood-stained. Ext.P86 is the property list dated 07.03.2005 sent to Court which was returned since the properties did not accompany the list. The endorsement in Ext.P86 and the deposition of PW49 clearly indicate the return and the further submission, with delay, on 04.04.2005, raising doubts as to the proper custody of articles seized. Reliance was placed on Kibilo Danial & others V. State of Kerala (1985 Crl.A Nos.929/2016 & 1082/2016 10 KLT Short Notes 49) and Alavi V. State of Kerala (1982 KLT 287) to emphasize on the expediency with which the M.Os are to be sent to Court and the safe custody under which they have to be kept by the police. Reference was placed on Madhav V. State of Madhya Pradesh (AIR 2021 SC 4031) to caution this Court on how to approach a case in which the prosecution case is clearly concocted; to aid the real culprits to escape and frame others totally unconnected. The recoveries are further challenged pointing out the delay that occurred in the individual property lists being sent to the Court. The graphic description of the weapon and dress by the eye witnesses belies their testimonies, and artificial and unrealistic testimonies are to be eschewed as has been held in a decision of this Court in Crl.Appeal No.362 of 2007 dated 04.08.2011 (Golden Satheesan @ Satheesan V. State of Kerala).

7. It is argued that the genesis of the incident as spoken of by PW1, the maker of the FIS, of twenty persons following the victim with deadly weapons, in a festival ground, is highly improbable. The FIS as also Crl.A Nos.929/2016 & 1082/2016 11 PW1 and PW2 speak of a number of persons, Sreejith, Sunil, Vijesh and Vineesh, who were not examined before Court. Jayan(CW12) who is said to have seen the incident at the Halwa Stall was not examined before Court. There were three police personnel present in the temple grounds with the Sub Inspector (PW48), who took the deceased to the Hospital, but none of them were examined. PW30, who spoke of the accused having gathered together in a vacant plot, spoke of one Nandan having accompanied him to the spot; who was not examined. In fact, PW30 speaks of having used the torch light to identify the people in the group, who were alleged to have conspired to kill the victim. If there was sufficient light in the locales, there was no reason to use the torch light, is the contention. The lights were turned towards the temple and the pond, ie: towards north and the scene of occurrence, PW12's house, was to the south. A table MO16 recovered from the Halwa stall on which the deflected sword, aimed at the victim had struck, did not reveal any mark. PW23 who saw the incident with the sleeping child on his shoulders, spoke of having taken the child to the Crl.A Nos.929/2016 & 1082/2016 12 sister's house where his wife and sister were available. He did not speak of what he witnessed to either his wife or sister and more surprisingly revealed it to the police only after two days, when he was questioned. PW12, who informed PW5 about the injured victim lying in her property does not speak of having seen PW23. Lallu Manjhi v. State of Jharkhand (2003) 2 SCC 401 and Hem Raj v. State of Haryana (2005) 10 SCC 614 were relied on to argue that parrot like testimonies of the witnesses are to be eschewed. It was vehemently asserted that the accused deserved to be acquitted.

8. The learned Special Prosecutor, Sri. S.U. Nazar, pointed out that the recoveries made on confession statement, clearly led to the discovery of the concealed weapons which is a relevant fact as spoken of under Section 27 of the Evidence Act. When the recoveries are established to be on the disclosure of the accused; then the absence of blood stains or the nature of such stains having not come out in scientific examination will not be fatal, as held in R.Shaji V. State of Kerala (2013 (14) SCC 266). The I.O has spoken of the confessions in his Crl.A Nos.929/2016 & 1082/2016 13 deposition, which is the substantive evidence, supported by the individual witnesses who attested the mahazars. Even otherwise State of Karnataka V. David Razario (2002(7) SCC 728) held that the recovery is only one circumstance and in this case there are a number of other incriminating materials, including ocular evidence to find the guilt on the accused. There is definite evidence of the presence of PW1 to 3, PW5, PW23 and PW24 from their respective testimonies corroborating each other. PW12 also saw the occurrence, but did not identify any of the assailants. It is pointed out that there are two instances as projected by the prosecution. The first, at the Halwa Stall, which was witnessed by PW2 and PW3 as also PW24. The presence of PW2 and PW3 is confirmed from the evidence of PW1, to whom PW3 narrated about the victim having been attacked, wherein he sustained an injury in front of the Halwa Stall. PW23 on his way home, saw the second incident and also saw PW24 and another person, who too witnessed the incident from their hiding place. PW24 spoke of having talked to PW23 later, about the incident. The evidence of PW12 and PW17 clearly Crl.A Nos.929/2016 & 1082/2016 14 indicates the source of light from the tube lights, put up at the festival grounds. Sohrab v. The State of M.P (1972(3) SCC 751) was relied on to contend that there is hardly a witness whose evidence does not contain a grain of untruth or exaggeration. Myladimmal Surendran v. Arayakkamdy Sukumaran @ Suku V. State of Kerala (AIR 2010 SC 3281) and Rana Pratap v. State of Haryana were placed before us to urge the conceptual flaws in classifying witnesses as 'chance witnesses' and 'independent witnesses' especially in Indian conditions. It was urged that the witnesses and the accused were all people of the same locality well known to each other and there is nothing to disbelieve the ocular testimonies; which sufficiently corroborate each other.

9. It is pointed out that two days from the date of occurrence, all the witnesses were questioned and Ext.P59 and P61 reports arraigning the accused were submitted to Court. Though there was some delay in the said reports reaching the Court, it was properly explained by the I.O. The eye witness testimony is crystal clear and there is no material to entertain any Crl.A Nos.929/2016 & 1082/2016 15 reasonable doubt. Eight, out of the 12 weapons were blood stained. The very fact that different witnesses spoke of the different incidents, indicate that the witnesses were credible and truthful. The testimonies are not parrot like as argued by the defence. When the entire evidence is evaluated, there is no reason to find falsehood or even impossibility or improbability. Bhola alias Paras Ram V. State of Himachal Pradesh (2009(11) SCC 460) was urged to point out that, even when there are contradictions, embellishments and improvements in the testimony; so much of the deposition which is beleivable can be relied on to enter a conviction, if the same is sufficient so to do.

10. It is urged forcefully that the remand reports need not put forth the entire case detected by the prosecution and what is required is the prima facie material inculpating the accused; which commends the Court to remand the accused. The investigating officers cannot always be viewed with suspicion and there should be some elbow room for the Police to carry out the investigation and ascertain the truth of the statements Crl.A Nos.929/2016 & 1082/2016 16 made under S. 161. Merely because one witness, whose S.161 statement was already taken, was not mentioned in the remand report; there is no warrant to disbelieve that witness. State of W.B v. Mir Mohammad Omar 2000 SCC (Cri.) 1516 was relied on to contend that there is no investigation which is fool proof or completely flawless and if that is expected, the casualty will be the criminal justice system.

11. That the death was by homicide, is well established by the evidence of PW37, the Doctor who carried out post-mortem examination and produced P38 report. There were 36 injuries sustained on the body of the deceased; incised wounds (21 in number), abrasions (13) and contusions (2). The injuries number 1 & 2 proved fatal and was independently sufficient to cause death. The injuries according to the Doctor could have been caused by the weapons shown by the I.O and produced before Court. The weapons were specifically identified as heavy cutting weapons with which it was possible to cause the incised wounds and also the contusions, with its blunt portions. While we have to consider the Crl.A Nos.929/2016 & 1082/2016 17 sustainability of the recoveries, as an incriminating circumstance; it goes without saying that the injuries could have been caused by weapons capable of cutting, from their sharp and blunt faces.

12. As far as the motive is concerned there was a dispute between A7 and the deceased having arisen long back for reason of which A1 and A7, at an earlier point of time had trespassed into the house of the deceased; as spoken of by PW3 and PW7. However there is no indication that this was the immediate motive behind the conspiracy or the concerted attack on the deceased. Even the prosecution case is that the motive was the challenge raised by the deceased in the ritualistic procession, in connection with the temple festival that occurred in the afternoon of that day. Two clubs having different political hues had carried out separate processions with the accompaniment of musical instruments and dancers. Though ritualistic, such processions often turn competitive, adding to the energy of the performances but at times lead to fiery exchanges, culminating in altercations which escalate into killing sprees, as in Crl.A Nos.929/2016 & 1082/2016 18 the present case; political rivalry acting as a virulent catalyst. There was an altercation in the afternoon in which PW3 and PW7 had participated as members of the Yuvadhara club along with the deceased. A1, his brother PW10 and PW11 participated as members of the Sanghadwani club. The participants in the two groups belonged to rival political parties.

13. Pausing here for a moment, it has to be noticed that admittedly the political rivalry looms large in the background as is clear from the evidence led. The defence, in cross-examination of the witnesses had consistently made pregnant suggestions regarding the political affiliation of the witnesses paraded before Court and also obliquely referred to the political color of the accused. It also has to be mentioned that one of the compelling arguments raised by the defence was on the ground of the witnesses being planted, as also the accused being specifically targeted by the rival political party, for reason only of their political affiliation. There is an attempt made by the defence in cross-examining the witnesses to bring out that they were Crl.A Nos.929/2016 & 1082/2016 19 active members of the rival party and also involved in crimes stemming out of such rivalry. It has to be stated empathetically, that it is not a legal imperative that when there is a political clash between two groups, the witnesses should invariably be unaffiliated persons. Myladimmal Surendran (supra) deprecated the practise of classifying witnesses with political affiliations as partisan witnesses, especially considering the cultural ethos of this country. It was held that, 'at best their evidence has to be carefully scrutinized... not brushed aside' (sic).

14. The circumstances prevailing, would commend any Court to hold that, often, in political crimes, it is difficult to get the so called independent, unaffiliated witnesses. The common man, unaffiliated to political parties, striving for basic survival & daily bread, fighting against the vagaries of life, would neither concern himself with politics, nor would take sides for fear of endangering self and the family. In political crimes, witnesses for the prosecution would be definitely from affiliated groups and parties since, only their Crl.A Nos.929/2016 & 1082/2016 20 collective arrogance, could stand against the equally mindless and aggressive rivals. And definitely the members of the attacking group would remain silent. The grounds so raised by the defence is rejected at the outset. Dehors the political affiliations, what has to be looked at is the inherent credibility of the witnesses, trustworthiness of their testimony, the genuineness of their presence and the corroboration offered by the attendant circumstances as spoken of, by the bundle of witnesses paraded by the prosecution.

15. We find that there are, in truth, three and not two incidents, as portrayed by the prosecution. The first, the altercation in the afternoon, when the deceased threw a challenge at the accused. The second, when the accused surrounded the deceased before a Halwa Stall and attacked him. And the last, when they dragged him out of the bathroom in PW12's property and brutally hacked him to death. PW9, witnessed the mahazar by which five notices, regarding the festival, were submitted to the station by the Treasurer of the Temple Committee. The notices speak of the programmes and two ritualistic Crl.A Nos.929/2016 & 1082/2016 21 processions, called 'Singari Melam', being taken out in the afternoon. PWs 2, 3, 7, 10 and 11 were proffered to depose on the quarrel that originated at the time of the procession and the last two turned hostile. The testimony of PW2 is that, he was participating in the procession under the banner of 'Yuvadhara', in the afternoon of 18.01.2005, when there was a scuffle between the deceased and A1's brother(PW10), A4 and PW11. A1 and PW7 belonging to rival groups interfered and pulled apart the persons involved in the scuffle, at which moment the deceased challenged the others and promised to settle scores at the festival grounds. PW2 spoke of the scuffle and PW7's narration was exactly in tune with PW3's. PW7 also admitted that he intervened and diffused the situation. PW10, the brother of A1 and PW11, who was alleged to be with PW10, turned hostile and denied the incident of the afternoon. The scuffle stands established and the testimony of the witnesses corroborate each other. It is also pertinent that the witnesses who were in the same group as the deceased admit that the provocative challenge was thrown by the deceased. As to whether this Crl.A Nos.929/2016 & 1082/2016 22 could constitute a motive for a person to be killed; it has often been said that motive resides in the inner recesses of the minds of individuals, the passions of which cannot be ferreted out and could at times be alien to a reasonable mind. However lives have been lost and even wars launched, for lesser slight and these are more probable in locales which are hotbeds of such rivalry. The motive and the genesis of the incident, which led to the death of one of the persons involved, stands fairly well established by the prosecution.

16. Now we come to the second part of the incident which occurred before the Halwa shop in the festival ground on the same night. Undisputedly there was a festival on the subject day which had a ritualistic procession in the afternoon and various stage programmes (Ext.P11 series of notices) in the evening. The locals had gathered at the temple ground for the festivities and to watch the programmes. PW1, the maker of the FIS was standing at the rear of the crowd, when the deceased (Shameer) and PW2 came by and Shameer wished him 'Hello'. Later, Shameer moved away with PW2 and came back and sat Crl.A Nos.929/2016 & 1082/2016 23 along with PW2, PW3, Sunil and Sreejith. Shameer then wanted to have a pan for which he went in search of a pan shop accompanied by PW3. The other friends were sitting at the rear watching the programme when, according to the FIS and PW1, PW3 came running back and told them that Shameer was hacked; which statement was corroborated by PW2 and PW3. PW3 deposed that when they were going in search of the pan shop, the accused came to them with weapons and having encircled Shameer; A2 (since dead) brought out a chopper, which he was hiding at the back under his shirt and slashed at Shameer wounding him below the left elbow. A1, with a sword hacked at Shameer and missed, the sword bouncing off a table (MO16), kept at the Halwa Shop.

17. PW2 and PW3 deposed that when PW3 came running he was shouting that 'Unni (A1) hacked Shameer'. In cross- examination PW2 was recorded as having omitted to say that, PW3 spoke the name of A1, to the police in his prior statements. D2 and D2(a) contradictions marked on behalf of the defence, while PW3 was cross examined, also clearly indicate that PW3 only said that, Shameer was Crl.A Nos.929/2016 & 1082/2016 24 hacked; to the Police. The I.O proved the statement as recorded under Section 161 and PW1's deposition also is only to this end. Despite our disbelieving that PW2 specifically spoke of the person who hacked Shameer, the fact remains that there was such an incident which occurred at the Halwa Stall, which was witnessed by PW3. That Shameer came to the festival grounds along with PW2, PW3, Sunil and Sreejith and met PW1 is established by the evidence of PW1 to PW3. The said witnesses also speak of Shameer having moved away from the place for the second time, accompanied by PW3. That some people followed Shameer when he moved away from the rear of the audience, is stated by PW1. PW1 speaks of 20 persons having followed Shameer, but does not say that they carried weapons, which is very unlikely considering the large gathering of people on the festival grounds. PW3 spoke of A2 having taken out a weapon, hid behind his back, to hack Shameer, wounding him and soon after A1 having similarly attacked Shameer which stood deflected. The presence of A1 and A2 along with others, as spoken of by PW3 can be believed and we find no reason to discard the Crl.A Nos.929/2016 & 1082/2016 25 testimony of PW3 regarding the second incident which happened before the Halwa shop. Pertinently PW3 spoke of the cut delivered by A2 having caused an injury on the left arm of Shameer, below the elbow. Injury No.27 in Ext.P38 post-mortem examination report is extracted hereunder:

"Incised wound 8x5x4 cm on outer side of upper part of left forearm, transverse inner end 4cm below the elbow. The wound cuts the extensor muscle underneath. The radius was also cut for a depth of 0.5cm."

This injury fully corroborates the deposition of PW3. We find sufficient corroboration for PW3 also from the evidence of PW1 and PW2 regarding the just prior antecedents and what happened immediately after the attack. Here it has to be observed that in cross- examination of PW3 one relevant omission recorded was that PW3 did not speak of the presence of A10 to 12, before the Halwa Stall, in his prior statements to police.

18. PW3 having informed the friends sitting at the rear of the audience about the attack of Shameer, all Crl.A Nos.929/2016 & 1082/2016 26 of them went in search of Shameer, where from starts the third and last incident resulting in the death of Shameer. In this context, we have to notice that PW24 also spoke of the second incident; he being an eye witness, as projected by the prosecution, to both the second and last incident. PW24 was standing before the Halwa Stall talking to one Vijayan (CW12), when they saw Shameer and PW3 coming towards them. CW16 and CW17, one Sudhakaran and Jayan were also in the vicinity. Suddenly, A1 to A12 converged on the spot from the western side and encircled Shameer. A2 is said to have queried Shameer as to the challenge made in the afternoon in the course of the ritualistic procession. A2 then took out the weapon from behind him, hid under his shirt and hacked on Shameer causing an injury to his left hand. A1 also attacked Shameer which was deflected. Shameer then escaped from them and ran towards the west, with the assailants in hot pursuit. When PW24 and Vijayan followed, they were threatened and hence they momentarily stopped. The assailants proceeded towards the property of PW12, crossing the canal and PW24 followed with Vijayan. Crl.A Nos.929/2016 & 1082/2016 27 So much of the testimony corroborates the statements made by PW3. The deposition of PW23 regarding the second incident; the trustworthiness of which has to be examined, based on the contention raised by the defence counsel, which we will do a little later.

19. Undoubtedly, the incident where Shameer met his death happened in PW12's property. PW12 was inside her residence along with her two daughters. At around 10- 10.30, she heard a person saying 'here, here, he is here' (in the vernacular) from near the bathroom. She showed a lamp through the window and looked outside and saw some persons, pushing another from the side of the bathroom. The assailants were seen slashing on their victim when she implored them not to do anything, after opening the door. However, the assailants numbering 5 to 10 attacked the victim with swords. There was a lot of blood in the scene of occurrence and the assailants ran towards the west. She saw the attack in the light of the tube lights, lit on account of the festival. After the assailants left, she came out and ran towards the Temple(Palakkal Bhagavathy Temple) and called aloud for Crl.A Nos.929/2016 & 1082/2016 28 somebody to come. She saw PW5, to whom she informed that a person was hacked and asked him to bring somebody.

20. PW5 was the Joint Secretary of the Temple Committee. He was available inside the temple since the ornaments worn by the deity were not removed for reason of the festivities and the stage programmes. He heard somebody repeatedly screaming not to do anything; obviously PW12, from the southern side of the temple. He keenly looked in that direction and found PW23 standing there with a small child on his shoulders. He walked towards the south, when PW12 asked him not to come alone, informed him of somebody having been hacked and directed him to summon the committee members. By the time he came back, Subramanyan (PW23) and child had left. He also saw PW2 and PW3 when he was proceeding to summon people to the scene of occurrence and informed them about what PW12 told him. He saw around ten people running from PW12's property towards the West. PW5 also spoke of having seen them in the light of the tubelights, lit for the festival. He informed the committee members and the stage programmes were immediately stopped and by the time he Crl.A Nos.929/2016 & 1082/2016 29 came back, he saw the injured person being bodily taken.

21. PW23 is the star eye-witness of the prosecution, who saw the entire incident in the property of PW12. He had come to the festival grounds to see the stage programmes along with his four year old daughter. At around 10'O clock his daughter fell asleep. His wife was in his sister's residence, which was towards the west of the Palakkal Bhagavathy Temple. When his daughter fell asleep, he left for his sister's residence, with his daughter sleeping on his shoulders, to leave her with his wife. He was proceeding through the southern boundary of the pond, which was to the west of the Palakkal Bhagavathy Temple. He heard somebody say in the vernacular, 'here he is'. He also heard foot falls from the northern side of PW12's property. There was a pathway at an incline, to reach PW12's property. He stepped on to a mud ridge and looked towards PW12's house. He saw Shameer being dragged from the side of the bathroom to the northern side of the property. He identified the 12 accused and spoke of the attack on Shameer. Three of the accused hacked Shameer on his head, neck and torso, while Crl.A Nos.929/2016 & 1082/2016 30 five hacked him on the legs and four on both his hands. He heard PW12 imploring the assailants not to do anything. PW12 opened the back door and came out. When the assailants looked around, PW23 too looked all around, to see PW24 and Vijayan hiding and watching the incident. PW24 and his friend went towards the east while the assailants went towards the west. PW23 went home and put the child on a cot and later went in the direction of the nursery near the temple. He saw PW24 and Vijayan and he told them that he had seen the attack and that he saw both of them witnessing it from their hiding place. He identified all the accused as also the witnesses. He identified the dress worn by the accused at the time of the attack. PW23 did not say anything to his wife and sister and he admitted that he was frightened and did not do anything to save Shameer. He also approached the Police after two days. The narration of PW24 regarding the last incident, in which Shameer was killed, tallied with that of PW23.

22. PW12, 23 and 24 are the eye witnesses to the last incident and PW5 spoke of what happened immediately Crl.A Nos.929/2016 & 1082/2016 31 thereafter. PW12 was the closest, being in the scene of occurrence, ie: her own residential property. She saw the incident from the time the assailants pulled Shameer out of the bathroom and pushed him on to the backyard where he was brutally murdered. PW12 did not identify the assailants but spoke of having heard footfalls and conversation inside her residential property, from the side of the bathroom, which prompted her to look out the window. When Shameer was pushed and pulled on to her backyard she implored not to do anything, which the assailants did not heed. When she opened her door, the assailants fled towards the west and she ran towards the north, in the direction of the Temple, to summon someone.

23. PW23 was going to his sister's house when he heard footfalls and the voices from PW12's property. The exchange between the assailants when they detected Shameer in the bathroom of PW12, was spoken of identically by PW23 and PW12. Curiosity got the better of PW23 and he stepped on to a mud ridge with the child on his shoulders to witness the gruesome incident, which he spoke in tandem with the narration of PW12. The Crl.A Nos.929/2016 & 1082/2016 32 challenge against PW23's version is on several counts, one there being not enough light, the property of PW12 being on a higher plane from that of the pathway bordering the four sides of the pond and the impossibility of the witness seeing the incident in PW12's property which was on a higher plane, with the child on his shoulders.

24. The topography of the temple and the surroundings is a major area of challenge raised by the defence to assail the prosecution case. The scene plan as stated by the defence does not even have the bare minimum details and we cannot but observe that there should be better care bestowed in drawing up such scene plans as held in Koshy @ Baby (supra). Scene plans help the Courts to examine the evidence especially the circumstances, with reference to the scene of occurrence. Though the Village Officer, PW 38 deposed that he prepared the scene plan on the instruction of the I.O, the I.O denied his presence at the time when the scene plan was prepared. Be that as it may, what comes out from the scene plan at Ext.P39 is that the Palakkal Bhagawathi Temple lies to Crl.A Nos.929/2016 & 1082/2016 33 the north west of the Manikandeswaram Centre, a junction on the Althara-Kunnamkulam road. To the immediate west of the Temple is the large pond having an area of about an acre. To the south of the Temple is PW12's house which as per the scene plan is about 42 metres from the Temple. There is also a coconut plantation to the immediate east of the Temple. The Temple and the pond is situated about 6 feet, lower to the property of PW12 and the immediate property to the north of PW12's property as per the testimonies. PW2 in his evidence said that there is a pathway, from the Manikandeswaram Centre to the Palakkal Temple, on both sides of which there are properties. The pathway proceeds through the north of the nursery to the Palakkal Temple. The pathway and the Temple are at a lower level and there is a slope on the south of the Temple to proceed to the properties lying at a higher level. PW2 spoke of having gone through the pathway in search of Shameer when they saw PW5. PW1 & PW5 also spoke of the topography as spoken by PW2. It was further stated that there was no fence separating the property of PW12 from that on its west. In understanding the topography we Crl.A Nos.929/2016 & 1082/2016 34 can also usefully refer to DW1's evidence. He speaks of the pathway going through the north of the nursery, proceeding to the west which reaches the southern side of the Palakkal Temple. From the pond the canal proceeds to the south, to the west of which, there is one property, to the north west of which lies PW12's property. He also speaks of the pond having an extent of one acre which is bordered on all sides by pathways. He also speaks of the way to PW23's sister's house from the Palakkal Temple. According to him from the Palakkal Temple one has to go down to the pathway on its west which pathway lies on the eastern boundary of the pond. From there, one has to go south through that pathway and turn towards the west, on the pathway bordering the southern boundary of the pond and then turn north on the pathway on the western boundary of the pond. To the south of the Temple lies the pathway through the southern boundary of the pond and further south lies PW12's property which is on a higher plane reachable through the slope on the southern boundary of the pond. The pathway on the southern boundary of the pond has to be used by PW23 to go from Crl.A Nos.929/2016 & 1082/2016 35 the festival grounds to his sisters house. It is from there, PW23 stepped on to a ridge and witnessed the scene. The child was only 4 years old and was sleeping on his shoulders, not an improbable version. PW5 also saw PW23 standing on the ridge and looking towards the property of PW12.

25. As far as the light is concerned PW17 spoke of 80 tube lights having been placed in the location to ensure proper lighting of the festival grounds. The lights were also tied to the coconut trees on the property adjacent to the pathways. Though the purpose was to light the Temple grounds on the northern side, definitely the entire area would be lit by the tube lights, tied at a height of 6 feet, on trees. All the witnesses speak of the tube lights fixed all over the festival grounds, the pathways and around the pond. PW12's house is not electrified but she categorically spoke of having seen the incident; the brutal murder in her backyard, in the light of the tube lights. PW5 categorically deposed that he saw the assailants running away to the west from the property of PW12, while he Crl.A Nos.929/2016 & 1082/2016 36 approached PW12's house from the temple, hearing the commotion. But he could not recognize them since he only saw their backs. In fact DW1 also spoke of both sides of the pathway leading from the Manikandeswaram Centre to the Palakkal Temple being lined with commercial stalls. The Temple premises and the pathway leading to the Temples as also the pathway surrounding the temple pond were lit with tube lights. There is a contention raised by the defence that at least on the southern boundary of the pond the tube lights were on small trees. However, it has to be noticed that from the southern boundary there is an incline to the south which is lying as a slope and the properties in the higher level are at a height of about six feet. It is on the small trees on the southern boundary of the pond that the tube lights were placed, according to PW17. The tube lights were said to be fixed at a height of six feet, which would light the properties on the higher plane too. Hence, a person standing on a mud ridge, on the slope, would have clear vision, in the light of the tube lights, of what was happening in PW12's backyard which has only one property between itself and Crl.A Nos.929/2016 & 1082/2016 37 the slope. The defence pointed out the testimony of PW46, who photographed the scene of occurrence to contend that there is no clear vision to see the back yard of PW12. But on our examination of the photographs we see trees on the adjacent property of PW12, but not so thickly grown as to blind total vision. We reiterate, even PW12, who is a completely independent witness; who did not identify the assailants, spoke of having seen the incident in her backyard in the light of the tube light placed for the festival. PW23's presence and his version of having stood on the ridge to witness the incident in the light of the tube lights is a very probable version fully corroborated by the evidence of PW5 and PW12.

26. The accused and the witnesses were residents of the locality and we have already held that the political affiliation does not deter us from examining the credibility of the witnesses. We find the witnesses discussed above to be trust worthy and corroboration on the antecedent activities are available from their testimonies. Relying on Myladimmal Surendran and Rana Pratap (both supra), it can be safely found that the Crl.A Nos.929/2016 & 1082/2016 38 witnesses from the rustic setting are believable. They cannot be called chance witnesses by any standards and their impartiality cannot be doubted. We find corroboration to PW12 and PW23's testimony from that of PW5, who clearly saw PW23 standing on the ridge looking towards PW12's house with a child on his shoulders. PW5 also heard PW12 pleading with the assailants not to do anything which sound attracted him and made him observe what was happening, to the southern side of the temple. He also stated that he saw the assailants run away but did not identify them, since he saw only their backs.

27. PW5's presence is challenged by the defence on the ground that the minutes of the Temple Committee did not indicate PW5 having been entrusted with the task of guarding the ornaments of the deity; not very significant. PW5's evidence was that the deity was wearing the ornaments and the grill leading to the sanctum sanctorum, which did not have a roof, was locked. PW5 also said that the deity was wearing the ornaments, at night, only due to the festival and immediately after the police came, pursuant to the incident, the priest Crl.A Nos.929/2016 & 1082/2016 39 took the ornaments from the deity and entrusted it to the Committee for safe keeping. This is exactly the evidence of DW1 also. He admitted that the ornaments of the deity would be guarded by the committee members one after another. He also did not clearly remember whether PW5 was standing guard at any time. This does not in any manner raise doubts as to the presence of PW5 in the Temple. Admittedly the murder was committed, immediately after which PW5 came, whose presence stands established by the testimony of PW12. Both of them did not identify the assailants. The murder was committed in close vicinity of the Temple. DW1 who said that he and another committee member stood guard at different times, but did not confirm his presence at the crucial time. DW1 also did not speak of the incident which would not have escaped the notice of a person standing in the Temple, at that time, for reason of the gravity of the situational occurrence and the close proximity in which it occurred.

28. As far as PW24 is concerned, we have our own doubts especially considering the ground on which his evidence has been assailed by the defence, pointing to Crl.A Nos.929/2016 & 1082/2016 40 Ext.P94 remand report dated 31.01.2005. It first speaks of statements having been taken on 19.01.2005, from Kumari (PW12), the two daughters of Kumari (who were not examined) and PW5, who spoke of the attack by around 10 P.M. On 20.01.2008, as per Ext.P94, Jayan (CW16), Muhammed (PW45) & Kuriakose (PW42) were questioned. These were the persons who were available at the Halwa shop, who witnessed the attack by accused 1 to 9. PW42 & PW45 were Halwa Stall Owners and PW48, PW42's employee; all of whom turned hostile to the prosecution. CW16 is the person who pointed out the direction in which Shameer ran, to PW1, PW3 and others who went in search of him, after PW3 told them about the attack in front of the Halwa shop. A contention was also advanced that PW3 having not been specifically mentioned, in Ext.P94, his presence along with Shameer and his version of what happened before the Halwa shop stands falsified. We are not ready to accept the said contention especially noticing the fact that PW3, his presence and his statement were spoken of by PW1 at the first instance when the FIS was made. PW3's presence and his version Crl.A Nos.929/2016 & 1082/2016 41 cannot be disbelieved only on the circumstance that the I.O did not mention him in Ext.P94. It is not imperative that in a remand report every person whose statement was taken by the I.O should be made mention of. The attempt at that stage is only to prima facie prove before the Magistrate about the culpability of the accused arrayed and seek for their remand when the investigation can be carried on without hindrance. PW24 is a person who saw the incident before the Halwa stall, followed the assailants without coming to their notice and hid behind a tree to witness the entire occurrence. PW24 being a witness of both the incidents would have been definitely referred to in Ext.P94 and that omission raises a reasonable doubt about the testimony of PW24. Vijayan who was with PW24 has also not been examined, whose evidence would have further corroborated the testimonies regarding both the incidents. DW2, an employee of the Company which sponsored the festival programmes deposed that himself and PW24, another employee, were deputed to supervise the conduct of the programmes, by their employer. He categorically stated that PW24 was along with him, in Crl.A Nos.929/2016 & 1082/2016 42 front of the stage, throughout. All these circumstances commend us to eschew the evidence of PW24.

29. Again, on 21.01.2005 the I.O is said to have taken a statement from PW23 on the basis of which the accused at 10 to 12 were added. In this context, Ext.P59 assumes significance. Ext.P59 is the report filed before the Magistrate with the name and address of the accused A1 to A9. The said report is dated 20.01.2005. On 21.01.2005, Ext.P61 was prepared adding accused 10 to 12. The I.O, PW49 deposed that there was delay in submission of these reports to the Court because there was a law and order problem existing in the locality and there was apprehension of a retaliation, for reason of which the entire police personnel were deputed for patrol duty and to set up pickets; which is a reasonable explanation. However, it has to be noticed that while Ext.P59 reached the Court on 28.01.2005, Ext.P61 reached the Magistrate only on 31.01.2005. Ext.P59 prepared on 20.01.2005 having been delayed in reaching Court, is properly explained. But if Ext.P59, was taken to the Magistrate Court on 28.01.2005 there is no explanation as to why Ext.P61, Crl.A Nos.929/2016 & 1082/2016 43 prepared on 21.01.2005 and available in the Police Station was not submitted before Court on 28.01.2005 itself along with Ext.P59. PW23's statement was also available when the first report was filed and if he had mentioned these accused, their names would have figured in the first report itself.

30. PW23, spoke of of A10 to 12 also before Court and identified them, their weapons, their overt acts and their individual apparel. It has to be noticed that PW12 who watched the attack from the nearest proximity has spoken of only about 5 to 10 assailants to the Police. PW3 also had not spoken of A10 to 12 in his prior statements, to the police; which were five in number, as brought out in cross-examination. PW5 also said that he saw about 10 persons running to the west when he approached PW12's property after hearing the commotion. The overall circumstances raise a reasonable doubt as to whether A10 to 12 were really a part of the group of assailants who attacked Shameer. Sohrab (supra) found that there is hardly a witness who would not exaggerate on the stand and merely because the witness Crl.A Nos.929/2016 & 1082/2016 44 went overboard on certain aspects there is no reason to eschew the testimony in its entirety. Prof. Munsterberg in a book titled 'On The Witness Stand'; from the knowledge gleaned from experiments conducted by enacting planned episodes before selected persons, who were then asked to recant what they saw, concluded so: "We never know whether we remember, perceive, or imagine"(sic). In Laxman v. State of Maharashtra (1974) 3 SCC 704, the Hon'ble Supreme Court after quoting the Professor held so : 'Witnesses cannot, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute Judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. It is sound common-sense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim "falsus in unofalsus in omnibus' (sic).

31. Despite finding PW23 to have exaggerated on certain aspects, we do not eschew his testimony in its Crl.A Nos.929/2016 & 1082/2016 45 entirety. Identification is proper, but not to the extent of pointing out the weapon brandished by each of the accused and their individual dresses. Likewise seeking corroboration of the relevant aspect of the number of persons involved in perpetrating the crime, as spoken of by the other witnesses as also the manner in which the prosecution arrayed A10 to A12; we concede to them, the benefit of doubt. We are, in doing so, fortified by the declaration in Bhola @ Paras Ram (supra).

32. Now, we come to the recoveries said to have been made possible on the confession statements of the different accused. A1 is said to have made Ext.P73 confession based on which MO12 was recovered as per Ext.P34 mahazar on 01.02.2005. Ext.P73 confession is of having concealed the weapon in a pond in the field near his house. Though human blood is detected by the FSL, there is no blood stains detected on recovery, as seen from the mahazar. A2, by confession dated Ext.P17, also spoke of having concealed the weapon near his house, which weapon MO11 was recovered as per Ext.P27 mahazar. By Ext.P67 confession of A3, MO8 was recovered by Ext.P41 Crl.A Nos.929/2016 & 1082/2016 46 mahazar. A4 recovered MO51 by Ext.P36 mahazar on the strength of Ext.P69 confession statement. Likewise the recoveries of A5 to A12 were respectively by mahazars Exts.P29, P28, P30, P35, P31, P33, P37 and P40 of MO48, MO50, MO49, MO9, MO5, MO6, MO10 and MO7 weapons. The confession statements of A5 to A12 were marked as Exts.P74, P68, P75, P78, P77, P76, P79 and P80. As was rightly pointed out by the defence counsel, the weapons were all recovered from near the respective residences of the different accused; which is highly improbable, since the prosecution case itself is that the accused, after the attack, straight-away made their get-away towards the west and hid themselves in A13's house for the night. Though the accused were all residents of the locality, it does not stand to reason that all the accused, individually went to their residences or near the residential properties and hid the weapons, either in the nearby pond or field, garden land etc:, as seen from the Mahazars. This is further fortified from the attempt of the prosecution to prove that the blood-soaked apparel of many of the accused were recovered from A13's house. When Crl.A Nos.929/2016 & 1082/2016 47 human blood was detected by the FSL, in almost 8 of the 10 weapons, there was no recital of a blood stain in the seizure mahazars. We will not in the above context place any reliance on the FSL reports, since the recoveries itself are shaky and sticky as held in Balwan Singh (supra).

33. The identification of each of the weapons by the various witnesses, as having been carried by the identifiable accused, is very improbable considering the fact that the attack was carried on in the night and the occular witnesses were not in the close proximity of the scene of occurrence, as to clearly identify the weapons carried by each of the accused. The manner in which the witnesses were confronted with each of the weapons, is also artificial. Here, we have to specifically notice that while examining PW41, to prove Ext.P41 mahazar, for recovery of MO8 by A3, the Prosecutor first took out MO6 and then realising the mistake, confronted the witness with MO8; which he dutifully identified. Again, MO8 was identified as MO6, by PW32, who was examined to depose on the recovery of A10; which in fact was MO6. MO8 was first Crl.A Nos.929/2016 & 1082/2016 48 identified and then the Prosecutor specifically pointed out MO6 for the identification of the witnesses. The dress was also surrendered by A13, who stands acquitted. All the same, it has to be emphasized that the medical evidence is that the injuries suffered by the deceased, could be caused by heavy cutting weapons, from their sharp and blunt edges. This corroborates the narration of the ocular witnesses as to how the murder occurred.

34. Ext. P86 is the Property List of the apparels seized, send to the Court dated 07.03.2005. Obviously the apparels did not accompany the said list, as is clear from the order made by the Court to 'Produce with Property' as seen from Ext. P86 itself. PW49, I.O also agreed that it was so returned and resubmitted. The resubmission was only on 19.03.2005. We do not place any reliance on the seizure of dress and the identification of the apparel worn by each of the accused, at the time of occurrence as has been held in Kibilo Danial and Alavi (both supra). We also do not place any reliance on the recoveries of the weapons and their identification as attributed to each of them by the witnesses. However, Crl.A Nos.929/2016 & 1082/2016 49 that does not result in the aquittal of the accused since there is ocular testimony which is believable. Madhav (supra) is not applicable to the facts of this case since though the recoveries are unbelievable, there is no reason to find the prosecution case to be concocted. There are bound to be flaws in investigation and also the collection of evidence; especially when there is no separate force for carrying on the investigation of a criminal offence and ensure law and order. If there is a fundamental defect prejudicing the rights of the accused, then the benefit has to go to the accused. But every flaw and every omission cannot lead to the accused claiming total exoneration. As held in Mir Mohammad Omar (supra) then the casualty will be the criminal justice system and the ultimate sufferers would be, the society at large and the law abiding citizens.

35. PW1 in the FIS itself stated about the presence of PW3 along with Shameer and the information passed on by PW3 about the attack on Shameer by a group of people. PW3 specifically spoke of the overt act of A2 and the presence of A1 and A3 to A9. PW1 and the others Crl.A Nos.929/2016 & 1082/2016 50 who were sitting in the rear of the audience went in search of Shameer and they were told that he had run away towards the east. The conspiracy stands proved by the action of the accused in having followed the victim, in the festival grounds and attacked him. When the victim ran away they chased him and dragged him out of his hiding place and killed him. When the friends of the victim were searching for Shameer, they came across PW5 who told them about some people having hacked a person in PW12's property. PW1 and others proceeded to PW12's property where they saw Shameer; brutally and mercilessly hacked all over his body. They took him to the Hospital, with the help of S.I of Police (PW48), where he was brought dead.

36. PW12 has spoken of the gruesome occurrence in her property; about 5 to 10 assailants having dragged Shameer from inside the bathroom in her property, pushed and pulled to her backyard, where they cut him up despite her fervent pleas not to harm the victim. PW12 did not identify the accused but PW23 saw the incident from the ridge on the slope, while he was walking through the Crl.A Nos.929/2016 & 1082/2016 51 pathway, on the southern boundary of the pond. He witnessed the incident in PW12's property and identified the accused. His testimony regarding the identification of the weapons used by each of the accused and the dress worn by them, we are of the opinion, is an exaggeration. However, we do not doubt the identification made by him, especially of A1 to A9. The testimony of PW12 is that about 10 persons attacked the injured and that was the number according to PW5 too. PW3 also omitted to speak about A10 to A12's presence to the police. A10 to A12 as we noticed, were not arrayed as accused in the first report filed before Court despite PW23's statement having been taken prior to that.

37. PW23's presence is affirmed by PW5 who also heard PW12 imploring with the assailants not to harm the victim. Immediately after the attack, PW12 ran to the temple and on the way, met PW5, to whom she spoke about the incident and asked him to summon the committee members. PW5 saw about 10 people retreating from the scene of occurrence towards west. The evidence of the ocular witnesses as found by us to be worthy of Crl.A Nos.929/2016 & 1082/2016 52 acceptance, clinches the guilt on A1 to A9. A10 to A12 are given the benefit of doubt. The conviction and sentence of A1 to A9 stands affirmed and A10 to A12 shall be released forthwith, if not required in any other case. Crl.Appeal No.929 of 2016 stands partly allowed acquitting second appellant (A10) and Crl.Appeal No.1082 of 2016 stands partly allowed acquitting appellants 8 and 9 (A11 and A12).

Sd/-

K.VINOD CHANDRAN JUDGE Sd/-

C.JAYACHANDRAN JUDGE jma/lgk

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