Kerala High Court
Naveen vs State Of Kerala on 23 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
CRL.A NO. 497 OF 2019
AGAINST THE JUDGMENT DATED 14.03.2019 IN SC.NO.705/2015
ON THE FILES OF THE COURT OF IVTH ADDITIONAL SESSIONS
JUDGE, THRISSUR
APPELLANTS/ACCUSED NOS.1 TO 7:
1 NAVEEN,
AGED 25 YEARS, S/O. VELAYUDHAN, PATTALI HOUSE,
PUVATHUR P.O., ELVALLY VILLAGE
2 PRAMOD,
AGED 33 YEARS, PANNICKAN HOUSE, MANAPPAD DESOM,
THRITHALLUR P.O., VATANPPILLY
3 RAHUL,
AGED 27 YEARS, S/O.KUTTAPPAN, KONTHACHAN HOUSE,
CHUKKU BAZAR, VENMENAD P.O., PAVARATTY VILLAGE
4 VYSAK,
AGED 31 YEARS, MUKKOLAHOUSE, CHUKKU BAZAR,
VENMENAD P.O., PAVARATTY VILLAGE
5 SUBIN @ KANNAN,
AGED 29 YEARS, S/O. KARAPPU, THEKKEPPATTU HOUSE,
THIRUNELLUR DESOM
6 BIJU,
AGED 37 YEARS, S/O. SANKARANARAYANAN,
KONTHACHAN HOUSE, VENMENAD DESOM,
PAVARATTY VILLAGE
7 VIJAYASANKAR @ SANKAR,
AGED 22 YEARS, S/O VELAYUDHAN, KALPURAKKAL (H),
PUVATHUR DESOM, ELAVALLY VILLAGE
BY SRI.B.RAMAN PILLAI (SR.)
SRI.P.VIJAYA BHANU (SR.)
SRI.S.RAJEEV
SRI.T.K.SANDEEP
SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
SRI.ALEX ABRAHAM
SRI.SUNILKUMAR
SRI.SUJESH MENON V.B.
Crl.Appeal No.497 of 2019 -: 2 :-
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
SRI.MAHESH BHANU S
SMT.S.LAKSHMI SANKAR
SRI.R.ANIL
SMT.POOJA PANKAJ
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.K.ANAND
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNKULAM-31
SRI.E.C.BINEESH PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR
ADMISSION ON 23.08.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.Appeal No.497 of 2019 -: 3 :-
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
Crl.Appeal No.497 of 2019
-----------------------------------------------
Dated this the 23rd day of August, 2023
JUDGMENT
P.B.Suresh Kumar, J.
Accused 1 to 7 in S.C.No.705 of 2015 on the files of
the Court of the Additional Sessions Judge - IV, Thrissur who
stand convicted and sentenced for the offences punishable
under Sections 143, 147, 148, 341, 506(ii), 326, 120B, 109,
212, and 302 read with Section 149 of the Indian Penal Code
(IPC) are the appellants in this appeal. They challenge in this
proceedings, their conviction in the said case. The case
aforesaid pertains to the brutal and heinous murder of one
Shihab, an activist of the political party, CPM. There were
altogether 11 accused in the case and the remaining accused
were acquitted of the charges levelled against them.
2. One Vinod, an office bearer of the
organisation, RSS was murdered by the activists of the political
party, CPM. Deceased Shihab was the first accused in the said
case. The accusation in the case is that due to the animosity
towards Shihab, he being the person who committed the
murder of Vinod, accused 1 to 10 hatched a conspiracy to
cause the death of Shihab, and in furtherance to the said
conspiracy, on 01.03.2015 at about 7.30 p.m., accused 2, 4, 5
and 6 proceeded in a black Ambassador car driven by the third
accused and accused No.1 proceeded in a Passion Plus
motorcycle ridden by the seventh accused through the public
road leading to Chukku Bazar from Poovathur within the limits
of Pavaratty Panchayat in Thrissur District. It was alleged that
that it was based on the instructions given by the eighth
accused who followed Shihab, who was proceeding in the
opposite direction then on the very same road with one Baiju
riding pillion on the motorcycle ridden by Shihab and at about
7.30 p.m., when they reached near Puthenambalam junction,
the third accused knocked down the motorcycle ridden by the
deceased with the car driven by the third accused. It is also the
accusation in the case that when the deceased and Baiju fell
down on the road, the second accused came out of the car
with a sword and threatened Baiju to run away from the scene,
if he wants his life and when Baiju ran away from the scene,
accused 1, 2, 4, 5 and 6 struck Shihab with the swords carried
by them, on the vital parts of his body. Shihab succumbed to
the injuries sustained by him on the same day at 10.10 p.m.
The accusation against the eleventh accused in the case is
that he provided shelter to the ninth accused knowing fully
well that the ninth accused is involved in the crime.
3. Based on the information furnished by Baiju
from the hospital where he was admitted on the same day
after a few hours of the occurrence for treatment of the injury
sustained by him on account of the fall from the motor cycle, a
case was registered by Pavaratty Police. On submitting the
final report in the case disclosing commission of offences
triable exclusively by the Court of Session, the accused were
committed for trial. Thereupon, the Court of Session framed
charges against the accused under Sections 143, 147, 148,
341, 506(ii), 326, 120B, 109, 212 and 302 read with Section
149 IPC and under Section 27 of the Arms Act. As the accused
pleaded not guilty of the charges framed against them, the
prosecution examined 65 witnesses as PWs 1 to 65 and proved
through them as many as 158 documents as Exts.P1 to P158.
MOs 1 to 45 are the material objects proved in the case.
Exts.D1 to D30 are the contradictions in the previous
statements of the witnesses proved by the accused. After the
prosecution tendered its evidence, when the accused were
questioned under Section 313 of the Code of Criminal
Procedure (the Code), they denied the incriminating
circumstances brought out against them and maintained that
they are innocent. Since the Court of Session did not consider
the case to be one fit for acquittal under Section 232 of the
Code, the accused were called upon to enter on their defence.
A witness was examined thereafter on the side of the fifth
accused as DW1. As noted, based on the materials on record,
the Court of Session acquitted accused 8 to 11 and convicted
accused 1 to 7 for the offences charged and sentenced them
to undergo imprisonment for life and pay fine for the offences
punishable under Sections 302, 120B and 326 IPC. They were
also sentenced to undergo rigorous imprisonment for different
terms and to pay fine for the various other offences found to
have been committed by them. The accused are aggrieved by
the decision of the Court of Session and hence this appeal.
4. Heard Senior Counsel Sri.B.Raman Pillai for
accused 1, 3, 5 and 7, Senior Counsel Sri.P.Vijaya Bhanu for
accused 2 and 4 and Adv.Sri.S.Rajeev for the sixth accused.
5. The learned Senior Counsel for the accused
took us through the evidence of the relevant witnesses and
brought to our notice the contents of the proved documents.
The case put forward by the learned counsel for the accused in
unison is that since the deceased was an activist of the
political party, CPM who was the first accused in a case
registered in connection with the murder of a member of the
organisation, RSS, without conducting any investigation, the
members of the organisation, RSS have been arrayed as
accused in the case as dictated by the leaders of the political
party, CPM and that they are not the assassins Shihab. It was
also the case put forward by the learned counsel that in the
circumstances, the accused were arrested long before any
material connecting them with the crime was collected either
in the form of statements of witnesses or otherwise. It was
pointed out that it is based on the evidence tendered by PW1
and PW2, who deposed in Court to have seen the occurrence,
the prosecution has attempted to prove the guilt of the
accused, for the remaining evidence in the case is not
independently sufficient to prove the guilt of the accused. It
was vehemently argued by the learned counsel that both the
aforesaid witnesses who are activists of the political party, CPM
are not trustworthy and reliable and even the Court of Session
which found the accused guilty of the offences charged, did
not find it safe to place any reliance on the evidence tendered
by PW2. In other words, it was pointed out that the conviction
of the accused is solely based on the evidence of PW1. In order
to bring home the point that the evidence tendered by PW1 is
not reliable and trustworthy, the learned counsel pointed out
various circumstances. We are not referring to the submissions
made by the learned counsel in this regard at this juncture, as
we propose to deal with the same elaborately in the
succeeding paragraphs of this judgment.
6. Per contra, Sri.E.C.Bineesh, the learned Public
Prosecutor supported the impugned judgment pointing out that
the ocular evidence tendered by PWs 1 and 2 together with the
various facts discovered based on the information furnished by
the accused, and other corroborative evidence let in by the
prosecution would prove the guilt of the accused beyond
reasonable doubt. The learned Public Prosecutor has also
argued that the fact that the Court of Session did not place any
reliance on the evidence tendered by PW2 does not preclude
this Court in any manner from considering the evidence of
PW2, if it is found reliable and trustworthy for the purpose of
considering the question whether the prosecution has
established the guilt of the accused beyond reasonable doubt.
7. As it was argued persuasively by the learned
counsel for the accused that the investigation in the case was
flawed and that the accused are only persons named by the
leaders of the political party, CPM in the case, we have called
for and perused the police diary pertaining to the case.
8. In the light of the submissions made by the
learned counsel for the parties on either side, the point that
arises for consideration is whether the conviction of accused 1
to 7 and the sentence imposed on them are sustainable in law.
9. In order to deal with the point, the first aspect to
be considered is whether the death of Shihab is a homicide.
PW28 is the Doctor who conducted the post-mortem
examination of the body of the deceased and issued Ext.P52
post-mortem report. 45 ante mortem injuries are seen noted
by PW28 on the body of the deceased. PW28 deposed that
injuries 1, 6 and 45 noted in the post-mortem certificate were
fatal in nature and sufficient in the ordinary course of nature
to cause death. In addition, PW28 also deposed that injury
No.39 which is a chop wound on the back of the right forearm
of the deceased is also sufficient to cause death by bleeding, if
not attended to for a long time. PW28 also deposed that the
injuries could be caused by the swords shown to him which
were marked in the proceedings as MOs 1 to 5. PW28 deposed
that the death was due to the multiple injuries inflicted by
sharp edged weapons. Though PW28 was cross-examined by
the learned counsel for the accused, nothing was brought out
to discredit the said evidence tendered by him. It is in the
above circumstances that the Court of Session found that the
death is a homicide. The learned counsel for the accused did
not raise any argument challenging the said finding of the
Court of Session. We, therefore, affirm the finding rendered by
the Court of Session that the death of Shihab is a homicide.
10. Reverting to the point, as noted, even though
the prosecution examined as many as 65 witnesses and
proved 158 documents through them, they rely on mainly the
oral evidence of PWs 1 and 2 to prove the case. PW1 in the
case is none other than the person who was riding pillion on
the motorcycle ridden by Shihab at the time of occurrence,
namely, Baiju. As noted, the First Information Statement in the
case was given by PW1. Ext.P1 is the First Information
Statement. PW1 deposed that when he reached the scene of
occurrence along with Shihab, a black Ambassador car came
from the opposite direction and knocked them down. He
deposed that as Shihab sensed that they were knocked down
deliberately by the car, Shihab directed him to escape from the
scene. He deposed that two other persons also reached the
scene by the time, in a motorcycle. He deposed that
thereupon, one person from the motorcycle and four from the
car alighted; that one among the persons alighted from the car
required him to run away from the scene if he wants to save
his life by keeping a sword on his neck; that when Shihab
attempted to run away from the scene, the second accused
who threatened him struck on the head of Shihab with the
sword carried by him and that thereupon, accused 1, 4, 5 and
6 also struck with swords carried by them on different parts of
the body of Shihab. PW1 deposed that the third accused was
sitting in the driving seat of the car and the seventh accused in
the motorcycle in which the first accused came to the scene
while the remaining accused were inflicting injuries on Shihab.
PW1 deposed that as he was unable to move fast, he ran
towards west slowly and while so, he saw a motorcycle coming
from the opposite direction. He deposed that when he turned
back after a few moments, he found the aforesaid persons
continued to strike on the body of Shihab. PW1 identified all
the accused in court. PW1 also identified distinctly MOs 1 to 5
as the swords used by accused 2, 5, 6, 4 and 1 respectively.
PW1 also identified MO11 black Ambassador car and MO13
Passion Plus motorcycle as the vehicles in which accused 1 and
7 respectively reached the scene of occurrence.
11. PW2 is a person stated to be engaged in
catering business. He deposed that on the date of the
occurrence, at about 7.30 p.m., while he was proceeding to
Poovathur from Chukku Bazar, just before reaching the place
called Puthenambalam, he saw that a car was parked on the
opposite side of the road and a person running away from that
place. He deposed that when he looked towards that place, he
saw that a motorcycle had fallen on the left side of the car. He
deposed that there was another motorcycle near the car and a
person was sitting on it. He deposed that he found the driver of
the car in the driving seat. He deposed that he could see then
five persons hacking a person, in the background of the street
light. He deposed that they were hacking Shihab and that he
could identify the assailants as he had seen them earlier. He
deposed that accused 1, 2, 4, 5 and 6 were the assailants, the
third accused was the person who was in the driving seat of
the car and the seventh accused was the person who was
sitting on the motorcycle. He identified all of them in court. He
deposed that having seen the occurrence, on account of its
shock, he returned home. PW2 also identified MO11 as the
black Ambassador car he found at the scene and MO13 as the
motorcycle.
12. Before referring to the remaining evidence in
the case, it is necessary to examine the question whether the
evidence let in by PWs 1 and 2 could be said to be reliable and
trustworthy. While examining the said question, it is necessary
to keep in mind that the most important aspect in a criminal
case to connect the accused with the crime is identification.
Even though there are various modes of identification,
identification by sight is the most reliable and legally
acceptable mode and the standard prescribed for the same is
very high in the sense that the same should be foolproof and of
sterling quality.
13. As noted, both PWs 1 and 2 identified accused
1 to 7 in court. In Ext.P1, the version of PW1 was that while he
was proceeding to Peringad from Chukku Bazar along with the
deceased, an Ambassador car which came from the opposite
direction knocked them down deliberately. He did not mention
in Ext.P1 the colour of the Ambassador car. Likewise, the
version of PW1 in Ext.P1 was that when they fell down, a dark
slim person who alighted from the car with a sword in his hand
threatened him that he should flee away from the scene if he
wants to save his life; that he immediately got up and ran
towards the reading room "Kairali"; that the deceased got up
and ran towards the drain on the side of the road; that the
deceased fell down near the drain while running; that when he
was attempting to flee from the scene, he heard the persons
who came out of the car shouting "വവടടവകകവലടക അവവന" and that
when he turned back while running, he saw those persons
striking the deceased using swords and other weapons
multiple times. It was also his version in Ext.P1 that after
running a short distance, he proceeded to his house, after
informing the occurrence to the brothers of the deceased and
his friend Praseel. PW1 did not state in Ext.P1 the names of the
assailants of Shihab or that he knew them. PW1 did not also
give the features of the assailants except that of the person
who threatened him. Though he could not have seen all the
assailants except the one who threatened him, going by his
version in Ext.P1, he stated that he can identify them. As
noted, the occurrence was at about 7.30 p.m. Going by the
version of PW1 in Ext.P1, he saw the overt acts of the
assailants when he turned back while running towards the
reading room. Be that as it may, PW1 has not only deposed in
court that accused 2 to 6 were the assailants who came to the
scene of occurrence in the car, but also that accused 1 and 7
were the assailants who came to the scene in the motorcycle;
that it is the second accused who threatened him; that it is
accused 2, 5, 6, 4 and 1 who inflicted injuries on the deceased
and that MOs 1 to 5 are the weapons used distinctly by the
said accused to inflict injuries on the deceased. That apart, he
also stated in cross-examination that all the accused are
persons residing in the vicinity of his house and among them,
the fourth accused is his relative also. The relevant portion of
the evidence given by PW1 reads thus:
"ഞകൻ മലശ രട പഞകയതടൽ 10-40 വർഷമകയട തകമസടകന .
രകഷ യകകരൻ എന നടലയടല% librarian എന നടലയടല% ആ പശ(ശവത
ആൾകകർആയട ഇടവപഴകകൻ എനടക- ധകരകള% അവസര% ഉണകയടടണ-.
രകഹൽ എവ4 വടടൽ നടന% ഒര കടശലകമ ററടനളടൽ ആണ- തകമസ%.
വവശകഖ- 1/2 കട.മ ററടനളടൽ ആണ- തകമസ%. വവശകഖ- എവ4 ഒര
ബനവ% കടടയകണ-. എവ4 വടടൽ നടന% 1/2 കട.മട. മകറടയകണ- സബടൻ
തകമസ%. ബടജ അര കട.മ റർ മകറടയകണ- തകമസ%. എവ4 വടടൽ നടന% 300
മ റർ ഏകശ(ശ% മകറടയകണ- വടജയ ശങറടവ4 വട-. A4 വവശകഖ% ഞകന%
തമടൽ രകഷ യപരമകയട ബന ശതതയടൽ അല ഞകൻ സ%സകരടകകറണ-.
സ%ഭവതടൽ ഉൾവപടവരവട ശപരകൾ 6-)o തടയതടയകശണക നടങൾ
മനസടലകകടയത-? സ%ഭവസലതവവച-തവന മനസടലകകട."
At any rate, the fact that PW1 had previous acquaintance with
the second accused is evident from the assertion made by PW1
in cross-examination that immediately after the occurrence, he
informed the brothers of the deceased that it is the second
accused and others who attacked Shihab. The relevant portion
of the deposition reads thus:
"ശടഹകബടവ4 അനടയൻമകവരയ% സഹതടവനയ% അറടയടച. ആരക അകമ%
വXയത- എന- അവർ ശXക(ടച. പശമകദ% കടകകര% ആണ- എന- ഞകൻ പറഞ.
അകമടകൾ ആരകണ- എവനനടക- മനസടലകയട എനത- പധകന വടവര% ആണ-.
എവനനടകറടയക%. ശടഹകബടവ4 അനടയൻമകശരകട% കടകകശരകട% ശപരകൾ
പറഞ വടവര% ഞകൻ ശപകലസടൽ പറഞ എനകണ- ഓർമ. "
As a matter of fact, if PW1 had previous acquaintance with
accused 1 to 7 or at least with the second accused who came
out of the car and threatened him after pointing a sword on his
neck, we do not find any reason as to why PW1 did not disclose
the particulars of the accused or at least the particulars of the
second accused in Ext.P1 First Information Statement. There is
no satisfactory explanation from PW1 as to why he omitted to
disclose the names of the assailants in Ext.P1. The explanation
offered by him during cross-examination is that he disclosed
the names of the assailants to the police. Inasmuch as Ext.P1
First Information Statement does not indicate the particulars of
the assailants, it has to be taken that PW1 did not disclose the
particulars of the assailants in Ext.P1. The omission on the part
of PW1 in not disclosing the particulars of the assailants who
were known to him in Ext.P1 being a matter which would make
the prosecution case improbable, is relevant under Section 11
of the Indian Evidence Act in judging the veracity of the
evidence of PW1. Strangely, it is seen that Test Identification
Parades have been conducted in the case to enable PW1 to
identify the accused persons and PW1 has identified the
accused in the Test Identification Parades. If as a matter of
fact, PW1 had previous acquaintance with the accused, we fail
to understand the very purpose for which Test Identification
Parades were conducted to enable PW1 to identify the
accused. It could thus be seen that the evidence tendered by
PW1 in court is not consistent with Ext.P1 First Information
Statement and there are significant omissions in the First
Information Statement, amounting to contradiction. Needless
to say, it is not safe to place reliance on the evidence tendered
by PW1 in the matter of considering the question whether the
prosecution has proved beyond doubt the guilt of the accused.
The only conclusion possible, in the circumstances, is either
that the accused were not the persons who came in the
Ambassador car which knocked down the deceased or that
PW1 did not disclose the identity of the accused in Ext.P1
deliberately.
14. In this context, it was argued by the learned
Public Prosecutor that inasmuch as PW1 was shocked and
traumatised when he gave the First Information Statement, the
conduct on the part of PW1 in not disclosing the particulars of
the accused, cannot be reckoned as unnatural. True, the First
Information Statement is not meant to be an encyclopaedia
nor is it expected to contain all the details of the prosecution
case, and it is sufficient that the broad facts of the prosecution
case are stated therein. But, in the case on hand, as far as the
occurrence is concerned, the most vital information that is
expected to be stated, if known to the first informant, is the
particulars of the assailants and there is absolutely no reason
for a person, who is able to state other particulars as regards
the occurrence, in not disclosing the particulars of the
assailants, if the particulars of the assailants were known to
him and if he does not disclose the particulars of the assailants
in such a case, according to us, it has to be taken that he was
not aware at all about the particulars of the assailants at that
point of time. Needless to say, inasmuch as it is admitted by
PW1 that he had previous acquaintance with all the accused
and that one among them is his relative, the evidence of PW1
as regards the particulars of the assailants deposed by him
cannot be accepted. Needless to say, the evidence tendered
by PW1 that the accused are the assailants of Shihab cannot
be accepted.
15. Another reason to doubt the veracity of the
evidence tendered by PW1 is that PW1, who did not have a
case in Ext.P1 First Information Statement about any other
assailants other than those who came in the Ambassador car,
built up a story while deposing in court that two other persons
also came to the scene in a motorcycle and injuries were
inflicted on the deceased by them along with those persons
who came in the car. Similarly, the version of PW1 in Ext.P1
was that before the assailants started inflicting injuries on the
deceased, he fled away from the scene and he saw the overt
acts when he turned back while running away from the scene.
Whereas the version of PW1 in the witness box was that he got
up from the place where he was knocked down, only after the
accused inflicted injuries on the deceased. Similarly, he built
up a story while in the box that he was running slowly from the
scene and after some time, he stood on the side of a wall and
witnessed the overt acts of the accused, when such a version
is seen to be absent in Ext.P1. Yet another story built up by
PW1 in the box deviating from Ext.P1 was that he could see a
person coming in a motorcycle from the opposite direction
while he was running away from the scene. It is evident that
such a deviation was made to justify the presence of PW2 at
the scene of occurrence and to corroborate his evidence. True,
minor embellishments and improvements on trivial matters
which do not affect the core of the prosecution case shall not
be a ground on which the evidence can be rejected in its
entirety. Similarly, mere marginal variations in the statements
of a witness cannot be taken as improvements, as the same
may be elaborations of the statements earlier made by the
witness. What is expected from the court in such cases is that,
an opinion about the credibility of the witness must be formed
and a finding as to whether his deposition inspires confidence
must be recorded [See A. Shankar v. State of Karnataka, (2011)
6 SCC 279]. But, the improvements made by PW1 would not
fall under the said category and the same would certainly cast
a serious doubt in the mind of the court as to the veracity of
the evidence tendered by the witness. It is all the more so
since the previous statement is the First Information Statement
which is required to be obtained at the earliest opportunity to
ascertain the circumstances in which a crime is committed, the
names of the actual culprits, the part played by them as well
as the names of the eye witnesses present at the scene of
occurrence.
16. Yet another reason to doubt the veracity of the
evidence tendered by PW1, especially as regards the identity
of the accused is the fact that PW1, who took the stand in
court that he knew the accused at the time of occurrence itself
and that he gave the particulars of the accused to the police
while furnishing the first information, he did not disclose the
particulars of the accused to the police officer who prepared
Ext.P2 inquest report, even though he was very much present
at the time when the inquest of the body was prepared. The
relevant portion of the evidence tendered by PW1 reads thus:
"ഞകന body inquest സമയ% ശപകയടരന. ആ സമയ% നടറച-
ശപകലസകൾ ഉണകയടരന. എത ശപര എന- ഓരമയടല. ആ സമയത-
ഞകന മbനട ആയടരന. ആ സമയ% പകരടടശനതകകനകര ഉണ-."
The inquest was conducted on the following day between 8
a.m. and 10 a.m. There is no satisfactory explanation from
PW1 as to the reason why he did not disclose the particulars of
the accused then to the police officer who was conducting the
inquest, if he knew the particulars, especially when it is at
that point of time the police used to record the statements of
persons in the locality as to their suspicion about the accused
in the case. It is seen that a large of number of persons
including activists and supporters of the political party, CPM
assembled at the place where the inquest was being
conducted and none of them had any clue as to the assailants.
If as a matter of fact, PW1 knew about the particulars of the
assailants, there was no reason why he could not have
disclosed the same to the police and the fact that he did not
disclose the same to the police is sufficient to infer that he was
not aware of the particulars of the assailants even at that point
of time.
17. Yet another reason to doubt the veracity of the
evidence tendered by PW1 is the fact that PW1 is a
sympathiser of the political party, CPM and a close associate of
CPM activists. He admitted the said fact in cross-examination.
The possibility of such a person falsely implicating the accused
as the assailants of Shihab, cannot also be ruled out.
18. The learned Public Prosecutor vehemently
contended that PW1 being an injured eye witness, his evidence
carries lot of weight as also credibility and there is absolutely
no reason to disbelieve PW1. According to the learned Public
Prosecutor, the discrepancies in the evidence of PW1 are trivial
in nature and the same are not sufficient to reject his evidence
altogether. The learned Public Prosecutor relied on various
decisions of the Apex Court and this Court to contend that the
criminal jurisprudence attaches great weightage to the
evidence of a person who sustained injuries in the same
occurrence and that there is presumption that he was speaking
the truth, unless shown otherwise. There is no quarrel at all to
the proposition aforesaid. As found by us in the preceding
paragraphs that PW1 was not speaking the truth in court and
that he was attempting to falsely implicate the accused
persons in the case, the proposition of law canvassed by the
learned Public Prosecutor has no application to the facts of the
present case.
19. Let us now deal with the evidence tendered by
PW2. As noted, this witness identified all the accused in court,
although he did not identify the weapons MOs 1 to 5 alleged to
have been used by accused Nos.1, 2, 3, 5 and 6. In reply to a
question put to PW2 by the Public Prosecutor as to whether he
had any previous acquaintance with the accused, he denied
the same. Strangely, no Test Identification Parades were
conducted to enable PW2 to identify the assailants of the
deceased. In other words, the identification of the accused in
court by PW2 who had no previous acquaintance with the
accused is several months after the occurrence, even though
he claimed that he developed an acquaintance with them
while identifying them in the police station on their arrest. The
statement, if any, given by a witness before the police
identifying an accused, is hit by the proviso to Section 162(1)
of the Code. As such, it has to be taken that PW2 identified the
accused for the first time in court. No sanctity could be given
to such an identification in court even assuming that PW2 had
witnessed the occurrence, for within this time, anyone could
gather the features of the accused to identify them from other
sources. Be that as it may, there is serious doubt as to whether
PW2 had witnessed the occurrence. In this context, it is
relevant to point out that the Court of Session which had the
first-hand opportunity to observe the demeanour of the
witness, did not find it safe to place any reliance on the
evidence tendered by PW2. On an evaluation of the evidence
tendered by PW2, we are also of the view that it is not safe to
place any reliance on the evidence of PW2.
20. As noted, the police was groping in the dark as
to the identity of the accused and they had no clue till
03.03.2015 as regards the assailants. In the meanwhile, it has
come out that this being a political murder, there was a hartal
on the following day in the town and the situation in the
neighbourhood of the place of occurrence was tense and
additional police force was deployed to maintain law and order
in the area. It has also come out that the murder was widely
reported by print and visual media. As noted, the deceased
was an activist of the political party, CPM. Admittedly, PW2 is
an activist of LDF, of which the political party of CPM is a part.
Despite all these, PW2 did not choose to inform the fact that
he had witnessed the occurrence to the police on the date of
occurrence or until 07.03.2015 on which day he gave a
statement for the first time to the police. As noted, the version
of PW2 in his evidence was that he was proceeding on the
relevant day to meet a friend at Poovathur. He, however,
admitted in evidence that he did not proceed to meet the said
friend after witnessing the occurrence. There is absolutely no
explanation forthcoming as to the reason why PW2 did not
proceed to Poovathur after witnessing the occurrence, for the
said stand may not be consistent with the common course of
natural events and human conduct, which creates a doubt in
the mind of the court as to his presence at the scene of
occurrence. In the peculiar background of the occurrence, in
the common course of natural events and human conduct,
PW2 would have certainly disclosed the occurrence to
someone either on the said day or on the following day, if he
had seen the occurrence. Even though PW2 deposed that he
disclosed the occurrence to his brothers and to a friend, the
same does not appear to be correct, for, had he disclosed the
occurrence to anyone, in the peculiar background of this case,
the said information would have spread like wild fire and the
police would have reached him. That apart, the materials
disclose that PW2 gave a statement under Section 164 of the
Code to PW52, the Judicial Magistrate of First Class,
Vadakkancherry. Ext.P82 is the statement given by PW2 before
PW52. PW52 deposed in cross-examination that PW2 did not
state in Ext.P82 that he disclosed the occurrence to his brother
and friends. It was also deposed by PW52 that PW2 did not
disclose in Ext.P82, the particulars of the accused nor their
features. PW52 also deposed that PW2 did not disclose in
Ext.P82 that he saw anybody coming from the opposite
direction while he was proceeding to the scene of occurrence
and that he could see the occurrence in the background of the
street light and the light from the houses in the
neighbourhood. In other words, the evidence of PW2 in court is
not consistent with the previous statement given by him under
Section 164 of the Code. There are significant omissions in the
statement given by PW2 under Section 164 of the Code. It is
relevant in this context to mention that accused 1, 3 and 4
were arrested on 04.03.2015, the second accused was arrested
on 12.03.2015, the seventh accused was arrested on
19.03.2015, the sixth accused was arrested on 21.03.2015 and
the fifth accused was arrested on 09.04.2015. Ext.P82
statement was given by PW2 long thereafter, on 25.04.2015. In
the meanwhile, on 07.03.2015, PW2 gave a statement
indicating the particulars of the accused. Nevertheless, he did
not disclose the particulars of the accused in Ext.P82
statement. There is no explanation as to why PW2 did not
disclose the particulars of the accused in Ext.82 statement
given by him on 25.04.2015, if he had actually seen the
occurrence as claimed by him. Yet another reason which casts
doubt on the reliability of the evidence tendered by PW2 is the
fact that he is admittedly an LDF activist and the materials,
especially D12 and D13 photographs would indicate that he is
a close associate of the leaders of the political party, CPM and
his statement was taken for the first time only on 07.03.2015,
i.e. after the arrest of some of the accused.
21. As regards the evidence tendered by PW2, the
argument advanced by the learned Public Prosecutor is that
merely for the reason that PW1 did not disclose the presence
of PW2 in Ext.P1 First Information Statement and merely for
the reason that PW2 did not report the matter to the police
immediately after the occurrence, the evidence of PW2 cannot
be discarded altogether. It was argued by the learned Public
Prosecutor that a person who witnesses a brutal or violent act
such as murder, would be traumatised and scared and would
be reluctant to go and report the matter to the police. It was
also pointed out by the learned Public Prosecutor that ordinary
people would be reluctant under normal circumstances to be
associated with violent and traumatising crimes. As noted, the
First Information Statement need not be an encyclopaedia of
all the facts which the informant knows about the occurrence
and as such, we have no difficulty in accepting the argument
that, merely for the reason that PW1 did not disclose the
presence of PW2 at the scene of occurrence, the evidence of
PW2 cannot be ignored. Similarly, we have also no difficulty in
accepting the argument that merely for the reason that PW2
did not disclose the occurrence to the police, his evidence
cannot be ignored. As discussed elaborately in the preceding
paragraphs, it is not on account of the reasons aforesaid that
we find ourselves unable to accept the evidence tendered by
PW2, but it is due to various other reasons mentioned in the
said paragraphs that we find it not safe to place reliance on the
evidence of PW2 while considering the question whether the
prosecution has established the guilt of the accused beyond
reasonable doubt.
22. Similarly, the argument advanced by the
learned Public Prosecutor that there are only trivial
discrepancies in the evidence of PW1, that could be ignored by
the court, also cannot be accepted. As already found by us, the
discrepancies are of very serious nature and the same cannot
be ignored at all. It was also contended by the learned Public
Prosecutor that the evidence tendered by PW29, the doctor
who first examined the deceased and issued Ext.P3 wound
certificate and PW28, the doctor who conducted the post-
mortem examination and issued Ext.P52 post-mortem
certificate corroborate the oral testimony of PWs 1 and 2. No
doubt, the evidence tendered by PWs 1 and 2 is consistent
with the medical evidence. But that does not mean that the
court should accept the oral evidence as reliable and
trustworthy. If the ocular evidence of the witnesses is found
unreliable and not trustworthy, there is no question of
considering the issue whether the same is consistent with the
medical evidence.
23. The remaining evidence in this case is only the
evidence let in by the prosecution to corroborate the evidence
tendered by PWs 1 and 2 and the evidence let in to prove the
discovery of facts based on the information furnished by the
accused which is admissible under Section 27 of the Indian
Evidence Act. As already noticed, it is doubtful whether the
evidence let in by the prosecution excluding the oral evidence
of PWs 1 and 2 are independently sufficient to sustain the
prosecution case. Be that as it may, let us now consider the
remaining evidence also. The first and foremost among the
said evidence pertains to the discovery of MOs 1 to 5. PW65,
the investigating officer has given evidence that it is based on
the information furnished by the fourth accused that MOs 1 to
5 swords were discovered and seized by him on 05.03.2015.
Ext.P8 is the mahazar prepared in this regard and Ext.P8(a) is
the disclosure statement. No doubt, if any incriminating fact is
discovered based on the information furnished by the accused
in the custody of the police, so much of such information as it
relates distinctly to the incriminating fact thereby discovered,
is admissible in evidence. In the case on hand, even if the
evidence tendered by the investigating officer in this regard is
accepted in toto, what has been proved is the fact that MOs 1
to 5 were seized from a place, exclusively known to the fourth
accused. The said evidence, according to us, can be used by
the prosecution, only if it is established that MOs 1 to 5 were
weapons used by the assailants to cause the death of the
victim. First of all, there is no satisfactory and convincing
evidence in this case to prove that MOs 1 to 5 were weapons
used by the assailants to cause the death of Shihab. The only
evidence in this regard is the evidence tendered by PW1. We
have already found, while considering the question relating to
the acceptability of the evidence tendered by PW1, that if the
version of the occurrence as disclosed by PW1 in Ext.P1 is
accepted, it is difficult for PW1 to give the precise particulars
of the weapons used by the assailants. If there is no convincing
evidence to connect Mos.1 to 5 with the occurrence, the
evidence tendered by PW65 as regards the discovery and
seizure of MOs 1 to 5, may not be of any use to the
prosecution. The argument advanced in this regard by the
learned Public Prosecutor is that it has been established that
the weapons contained blood and therefore, it is sufficient to
connect the weapons with the occurrence. Ext.P84 is the report
of the official of the Forensic Science Laboratory where MOs 1
to 5 were examined. Ext.P84 report has been proved by PW55,
the Assistant Director, Regional Forensic Laboratory, Thrissur.
Item Nos. 16 to 19 and 20 in Ext.P84 are the swords
respectively which were marked in the proceedings as MOs 1
to 5. In Ext.P84, it is stated that item Nos.16 to 19 contain
blood, but could not be identified as human blood. In other
words, Ext.P84 report is not sufficient to connect MOs 1 to 5
with the occurrence. As noted, if there is nothing to connect
MOs 1 to 5 with the occurrence, the evidence tendered by
PW65, as regards the discovery and seizure of MOs 1 to 5
based on the information furnished by the fourth accused is
not of any use to the prosecution.
24. Similarly, PW65, the investigating officer has
given evidence that it is based on the information furnished by
the third accused that MO11 Ambassador car used by the
assailants for commission of the crime was discovered and
seized by him on 05.03.2015. Ext.P9 is the mahazar prepared
in this regard and Ext.P9(a) is the disclosure statement of the
third accused. PW65 has also deposed that it is based on the
information furnished by the first accused that MO13
motorcycle used by the assailants has been discovered and
seized on 05.03.2015. Ext.P10 is the mahazar prepared in this
regard and Ext.P10(a) is the disclosure statement. Ext.P9
mahazar would indicate that as shown by the third accused,
the investigating officer seized MO11 black Ambassador car
which was found parked on the side of a public road. Similarly,
Ext.P10 mahazar would indicate that as shown by the first
accused, the investigating officer seized MO13 motorcycle
bearing No. KL-46-C-5754 which was found lying on the ground
in the bushes on the side of a public road. The argument
advanced by the learned Public Prosecutor in this regard is that
the aforesaid discoveries would fall within the scope of Section
27 of the Indian Evidence Act. We do not agree. First of all, the
black Ambassador car and the motorcycle referred to above
cannot be said to have been seized from places within the
exclusive knowledge of accused 3 and 1 respectively. As noted,
they were seized by the police from public places. As such,
merely for the reason that the car and motorcycle referred to
above were shown to the police by the first accused, it cannot
be said that the same were concealed at those places by the
first accused. He could have derived knowledge of the places
aforesaid through some other sources also. If that be so, there
is no question of the evidence tendered by the investigating
officer in this regard being admissible under Section 27 of the
Indian Evidence Act. That apart, there is nothing to connect the
black Ambassador car and the motorcycle with the occurrence,
for the same would be incriminating against the accused, if the
evidence is admissible under Section 27 of the Indian Evidence
Act. It was argued by the learned Public Prosecutor that one of
the samples of blood stains collected from MO11 Ambassador
car was found to be of human origin. Similarly, it was argued
by the learned Public Prosecutor, placing reliance on the
evidence tendered by PW31 and Ext.P55 opinion that the
chance fingerprints collected from MO11 Ambassador car
tallied with the left thumb impression of the third accused. We
do not think that the said materials are sufficient to connect
accused 1 and 3 with the occurrence, for, going by the
evidence tendered by PW11, Anila Venugopal, the vehicle is
one owned by the first accused along with the third accused.
Likewise, we wonder as to how the prosecution could connect
the vehicle with the occurrence merely for the reason that the
blood stain found in the ambassador car was found to be of
human origin.
25. Similarly, the investigating officer has given
evidence that it is based on the information furnished by the
first accused that MOs 21 to 30 clothes allegedly worn by
accused 1, 2, 4, 5 and 6 were discovered and seized by him on
11.03.2015. Ext.P11 is the mahazar prepared in this regard
and Ext.P11(a) is the disclosure statement. As indicated, the
said evidence, according to us, can be used by the prosecution
only if its connection with the occurrence is established.
Otherwise, the fact that those clothes were concealed in a
place exclusively known by the first accused may not improve
the case of the prosecution. The argument advanced by the
learned Public Prosecutor in this regard is that it has been
established that one of the said clothes contained human
blood of group 'A' and the blood group of the deceased is also
'A'. Item Nos.24, 25, 27, 28, 29, 30, 31, 32 and 33 in Ext.P84
are the cloths and item No.34 is a cover in which the cloths
were kept which are marked in the proceedings as MOs 21 to
30. In Ext.P84, it is stated that there is no blood in item Nos.27,
29 and 31 to 33 and though there is blood in item Nos.24, 25,
30 and 34, the nature of the same could not be detected. It is
also recited in Ext.P84 that item No.28 contains human blood
belonging to group 'A'. True, one of the clothes discovered and
seized based on the disclosure given by the first accused
contains human blood belonging to group 'A' which is the blood
group of the deceased. It is on the basis of the said material
that the learned Public Prosecutor attempts to connect the
accused with the occurrence. As noted, there were altogether
10 items of cloths in the cover seized pursuant to the
disclosure made by the first accused and the blood stain was
found only in one of the said ten items. There is nothing on
record to indicate as to who among the accused had worn item
No.28 in Ext.P84 at the time of the occurrence. As such,
according to us, the said circumstance is not sufficient to
connect the accused who are seven in number with the
occurrence.
26. The upshot of the discussion aforesaid is that
the evidence let in by the prosecution other than the oral
evidence of PW1 and PW2 do not, in any manner, improve the
case of the prosecution.
27. The learned Public Prosecutor argued that a
few incriminating circumstances brought out in evidence
against the accused have not been satisfactorily explained by
them. One of the circumstances highlighted by the learned
Public Prosecutor in this regard is that MO11 Ambassador car
which was used for the commission of the crime by the
assailants of Shihab, is one owned by the first accused and its
key was seized by the police from the third accused at the time
of his arrest. We have already indicated that there is no
satisfactory evidence in this case that MO11 is the Ambassador
car which was used by the assailants of Shihab for commission
of the subject crime, nor is there any satisfactory evidence to
connect accused 1 and 3 with the crime. In the absence of any
satisfactory evidence that MO11 was the Ambassador car that
was used for commission of the crime or that accused 1 and 3
were among the assailants of Shihab, the aforesaid
circumstances cannot be said to be incriminating against the
accused. The learned Public Prosecutor has also contended
that MO13 motorcycle which was used by the accused for the
commission of the crime is one which is owned by the first
accused. According to the learned Public Prosecutor, it is also
an incriminating circumstance which the accused are bound to
explain. As already indicated, other than the evidence of PWs 1
and 2, there is absolutely no material to connect MO13
motorcycle with the occurrence. MO13 is a "Passion Plus"
motorcycle. Even assuming that it is a case where PWs 1 and 2
had witnessed the occurrence and their evidence as regards
the same is acceptable, it is very difficult to conceive that
having regard to the narration of the occurrence given by PWs
1 and 2, it is possible for them to memorize either the
registration number of the said motorcycle or its features to
identify the same at a later point of time, for there would be
hundreds of motorcycles of that brand in use with different
registration numbers.
28. No doubt, the fifth accused has suffered a
crush injury on his right thumb. According to him, he was
working in the hollow bricks manufacturing unit run by DW1 at
Coimbatore and the injury was suffered while operating a
machine in the said unit. Whereas, the case of the prosecution
is that the injury aforesaid was one sustained by him in the
course of the crime and therefore, it is obligatory on the part of
the accused to explain the same. The said argument is raised
in the light of the evidence tendered by PW37, the doctor in
Dr.Muthu's Hospital, Coimbatore, who claimed to have treated
the injury of the fifth accused. It is seen that PW37 deposed
that on 03.03.2015, he examined the fifth accused in
connection with the crush injury suffered by him on his right
thumb and proved Ext.P66 wound certificate. He also deposed
that the injury suffered by the fifth accused could be caused by
MOs 1 to 5 weapons. The history of the injury is noted in
Ext.P66 as "Alleged H/O cut injury while working in a machine
at Ramanathapuram on 01.03.2015 at 7.00 p.m. and sustained
injury to right thumb". In cross-examination, PW37 has
admitted that Ext.P66 is not a contemporaneous record
prepared which bears any serial number in any form and its
date of issue is not mentioned therein and that the same is
only a wound certificate issued in the letterhead of the
hospital. In the place of the evidence tendered by PW37, the
evidence of DW1 is to the effect that the fifth accused was
treated in a hospital namely, Saravana Ortho Hospital. No
doubt, the evidence tendered by PW37 appears to be more
credible. But the same, at the most, would only establish that
the fifth accused suffered a crush injury on his right thumb
during the relevant period in which the occurrence took place.
The said evidence creates a strong suspicion as to the
genuineness of the defence set out by the fifth accused that he
was not one among the assailants of Shihab. But in the
absence of any other evidence, according to us, the said
evidence which would have been a strong corroborative piece
of material in favour of the prosecution, cannot be used by the
court for any purpose.
29. As noted, the accused do not challenge the
fact that Shihab lost his life as a result of multiple injuries
suffered by him in an occurrence that took place at about 7.30
p.m. on 01.03.2015. Their case is only that they are not the
assailants of Shihab and that they have been falsely implicated
in the case being members of the organisation, RSS since the
deceased Shihab was the prime accused in the murder of a
member of the organisation, RSS namely, Vinod. It is to
substantiate the said case that the learned counsel for the
accused contended that without there being any clue that the
Ambassador car spoken to by PW1 in Ext.P1 is a black
Ambassador car, the investigating officer jumped into the
conclusion that accused 1 and 3 are involved in the occurrence
since a black Ambassador car originally held by PW11 stood in
the name of the first accused at the time of the occurrence.
Similarly, to substantiate the case that the accused are falsely
implicated in the crime, the learned counsel for the accused
pointed out that no witness questioned by the investigating
officer other than PWs 1 and 2 has informed the police having
seen the occurrence. It was also pointed out that PW1, who has
not disclosed the particulars of the accused to the officer, who
recorded the First Information Statement or to the officer who
prepared the inquest report, has given an additional statement
disclosing the names of the accused on 06.03.2015. It was
pointed out that it is thereafter on 07.03.2015, the
investigating officer questioned PW2. It was submitted that in
the meanwhile on 04.03.2015, accused 1, 3 and 4 were
arrested by the police. It was vehemently argued by the
learned counsel that there was absolutely no material before
the police at the time when accused 1, 3 and 4 were arrested,
and there is no satisfactory explanation from the investigating
officer as to how he came to the conclusion that accused 1, 3
and 4 were among the assailants of Shihab, except the fact
that they confessed before him that they are three among the
assailants. Ext.P106 is the remand report submitted by the
investigating officer on 05.03.2015. The version of the police in
Ext.P106 is that accused 1 to 5 are the persons who came in
the ambassador car, knocked down the bike ridden by Shihab
with PW1 riding pillion and thereafter, caused the death of
Shihab by inflicting multiple injuries throughout his body.
Ext.P117 is the remand report submitted by the investigating
officer in the case on 13.03.2015. It is in Ext.P117, a version
different from Ext.P106 is stated as regards the occurrence for
the first time. It is in Ext.P117 that it was alleged by the
investigating officer that accused 2 to 6 are the persons who
came to the scene of occurrence in the ambassador car and
that accused 1 and 7 came in a motorcycle to the scene of
occurrence. It was argued by the learned counsel for the
accused that there is absolutely no material on record to justify
the change of version of the occurrence from Ext.P106, in
Ext.P117. According to the learned counsel, the aforesaid
circumstances would probabilise the contention of the accused
that there was some external interference in the investigation
of the crime and that the accused have been falsely
implicated, being members of the organisation, RSS.
30. As already mentioned, it is in the context of
the aforesaid submission that we have called for and examined
the police diary. No doubt, police diaries of a case cannot be
used as evidence in the case and the same can be used only
for aiding the court to decide on a point. It is settled that the
police diaries can be seen to ascertain the circumstances
ascertained by the police at different stages through
investigation [See State v. Ammini and Others, 1987 KHC 267].
As rightly pointed out by the learned counsel for the accused,
the police diary does not indicate that there was any material
before the police as to the colour of the ambassador car
involved in the crime. The police diary indicates that it is
because the police received information that PW11 had a black
ambassador car and that she sold the same to accused 1 and
3, the police came to the conclusion that accused 1 and 3 were
two among the assailants of Shihab. It is also seen from the
police diary that it is solely on the basis of the statements
allegedly given by the said accused, the remaining persons
were arrayed as accused at two stages. The police diary also
indicates that it is thereafter on 06.03.2015, the police have
questioned PW1 again and took his statement disclosing the
particulars of all the accused. The police diary does not also
indicate as to how the police came to the conclusion that
MO13 is the motorcycle in which accused 1 and 7 came to the
scene. The fact that PW1 did not disclose to PW65 the
registration number or any other particulars of the motorcycle
in which accused 1 and 7 reached the scene has been
admitted by PW65 in court also. The facts aforesaid revealed
from the police diary, according to us, would show either that
this is a case where the investigating officer has arrayed the
accused in the case as the assailants of Shihab for extraneous
reasons or solely for the reason that they are active members
of organisation, RSS without conducting proper investigation.
We come to this conclusion also for the reason that there was
no satisfactory explanation for not questioning PW1 till
06.03.2015. Yet another reason for us to come to the said
conclusion is that the police diary does not indicate as to how
the investigating officer came to know that PW2 is a person
who witnessed the occurrence, for him to obtain the statement
of PW2 on 07.03.2015.
31. Above all, as we perused the police diary, we
find serious lapses in the investigation as well. The delay in
questioning PW1 who gave the First Information Statement is a
very serious lapse. The investigating agency should have
questioned PW1 at least before arresting the accused.
Similarly, the delay in questioning PW2, if at all he has seen
the occurrence, is also a lapse for which no explanation is
forthcoming. There is no material as to how the police came to
the conclusion that it is MO11 black Ambassador car that was
used by the assailants of Shihab for commission of the crime.
Similarly, there is no material to indicate as to how the police
came to the conclusion that it is MO13 motorcycle which was
used by the assailants for commission of the crime. There is
also no material on record justifying the arrest of accused 1, 3
and 4 on 04.03.2015 even before the additional statement of
PW1 and the statement of PW2 were recorded by the police.
There is no explanation as to how the police got information
that PW2 had witnessed the occurrence. It is now trite that the
benefits arising from faulty investigation ought to go to the
accused and not to the prosecution [See Kailash Gour v. State
of Assam, (2012) 2 SCC 34].
32. We have examined the impugned judgment
meticulously. We find that the learned Sessions Judge did not
comprehend the facts correctly, even though the learned Judge
came to the conclusion that the testimony of PW2 is not
reliable and trustworthy. The learned Sessions Judge did not
take note of the various flaws in the evidence tendered by PW1
which casts a serious doubt as to the genuineness of the same.
The learned Sessions Judge did not also take note of the fact
that if the evidence of PW1 is eschewed, the remaining
evidence in the case, even if admissible and reliable, is not
independently sufficient for the prosecution to prove the guilt
of the accused beyond reasonable doubt.
33. In the light of the discussion aforesaid,
according to us, accused 1 to 7 are entitled to the benefit of
doubt and their conviction, in the circumstances, is liable to be
set aside.
34. Before parting with this case, we find it worth
referring to the following passage from the decision of the
Apex Court in State of Gujarat v. Kishanbhai, (2014) 5 SCC 108,
dealing with the plight of the courts which are compelled to
acquit the accused who are brought before it in a brutal and
heinous murder like the instant one :
"19. Every time there is an acquittal, the consequences are just
the same, as have been noticed hereinabove. The purpose of
justice has not been achieved. There is also another side to be
taken into consideration. We have declared the respondent-
accused innocent, by upholding the order of the High Court,
giving him the benefit of doubt. He may be truly innocent, or he
may have succeeded because of the lapses committed by the
investigating/prosecuting teams. If he has escaped, despite
being guilty, the investigating and the prosecution agencies
must be deemed to have seriously messed it all up. And if the
accused was wrongfully prosecuted, his suffering is
unfathomable. Here also, the investigating and prosecuting
agencies are blameworthy. It is therefore necessary, not to
overlook even the hardship suffered by the accused, first during
the trial of the case, and then at the appellate stages. An
innocent person does not deserve to suffer the turmoil of a long-
drawn litigation, spanning over a decade or more. The expenses
incurred by an accused in his defence can dry up all his financial
resources -- ancestral or personal. Criminal litigation could also
ordinarily involve financial borrowings. An accused can be
expected to be under a financial debt, by the time his ordeal is
over."
As observed by the Apex Court, as in the case dealt with
therein, we are constrained to acquit the accused not because
we find that they are not the real culprits in the case, but
because of the flawed investigation and lack of evidence. We
do not find fault with the investigating officer in proceeding
with the investigation in the case on the premise that on the
facts of this case, the activists of the organisation, RSS must
have committed the crime. Our anguish on the other hand, is
with regard to the manner in which he jumped into the
conclusion without collecting sufficient materials that it is the
accused who committed the crime. We are conscious of the
fact that acquittal of the accused in a case of this nature would
seriously affect the credibility of the justice delivery system,
but we are constrained to do so, as we have real doubt as to
whether it is accused 1 to 7 who have committed the crime,
though we do not have any doubt to the fact that the crime
has been committed by a group of persons in the manner
alleged. We understand that it is not an easy task for an
investigating officer to collect sufficient materials in a case
where there are no eyewitness or in a case where the
materials collected cast a cloud as to the identity of the
accused. But, that is not to say that such a case could be
concluded in the manner in which the investigating officer in
this case has done. In such cases, there has to be deeper
investigation till the identity of the real culprit is found.
In the result, the appeal is allowed, the conviction of
accused 1 to 7 (the appellants) and the sentence imposed on
them by the Court of Session are set aside and they are
acquitted. They shall be set at liberty forthwith and released
from custody, if their continued detention is not required in
connection with any other case. Registry will communicate the
above order to the concerned Prison Authorities forthwith.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
ds 11.08.2023
APPENDIX
PETITIONER ANNEXURES
ANNEXURE-I A TRUE COPY OF THE ARGUMENT NOTES
FILED AS CRL.M.P.NO.1095/2019 IN
S.C.NO.705/2015 ON THE FILES OF THE
COURT OF IV TH ADDL.SESSIONS
JUDGE,THRISSUR
