Kerala High Court
M.P.Prajin @ Prajith vs State Of Kerala on 19 June, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal No.246/2018 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 19 DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.A NO. 246 OF 2018
CRIME NO.40/2008 OF VALAPPATANAM POLICE STATION, KANNUR
AGAINST THE JUDGMENT DATED 21.12.2017 IN SC NO.332 OF 2010 OF ADDITIONAL SESSIONS
COURT - III, THALASSERY
APPELLANT/ACCUSED NOS.2 AND 3:
1 M.P.PRAJIN @ PRAJITH,
AGED 32 YEARS,
S/O.PRADEEP KUMAR,
MUNDANHIPPANNAYIL HOUSE,
ARANGOTTAM,
AZHEEKODE AMSOM.
2 M.VIJITH @KUTTAN
AGED 32 YEARS,
S/O.SHASIDHARAN,
MUNDACHALI HOUSE,
MAMBARAM PEEDIKA,
AZHEEKODE AMSOM.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SHRI.SUJESH MENON V.B.
SRI.THOMAS SABU VADAKEKUT
SHRI.MAHESH BHANU S.
SHRI.RESSIL LONAN
SHRI.JOEL GEORGE KAMPIYIL
SHRI.ANANTH KRISHNA K.S.
SHRI.GEORGE VINCI JOSE
Crl.Appeal No.246/2018 2
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RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031
(CRIME NO.40/2008 OF VALAPATTANAM POLICE STATION,KANNUR DISTRICT)
BY ADV SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN AND CHILDREN
AND WELFARE OF W AND C)
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 09.06.2025, THE COURT ON
19.06.2025 DELIVERED THE FOLLOWING:
Crl.Appeal No.246/2018 3
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JUDGMENT
K.V. JAYAKUMAR, J
This criminal appeal is preferred impugning the judgment of the Additional
Sessions Court-III, Thalassery, in SC No. 332 of 2010. The appellants herein are
the accused Nos. 2 and 3. The appellants, along with accused Nos. 4 to 9, faced
the trial before the Sessions Court, Thalassery for the offences punishable under
Sections 143, 147, 148, 302, 341 r/w 149, and 120B of the Penal Code.
2. The learned Sessions Judge found the appellants (accused Nos. 2 and 3)
guilty under Sections 302 r/w 34 IPC and 341 r/w 34 of IPC. The Sessions Judge
acquitted the accused Nos. 4 to 9 under Sections 143, 147, 148, 341 and 302 r/w
149 of the IPC. All the accused were found not guilty under Section 120B of the
IPC. The accused No.1, Swaroop, absconded, and the case against him was split
up.
3. The appellants were sentenced to undergo imprisonment for life under
Section 302 r/w 34 of the Indian Penal Code with a fine of Rs.30,000/- each.
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They were also sentenced to undergo simple imprisonment for one month for the
offense under Section 341 r/w 34 of IPC.
Prosecution case
4. On 12.01.2008 at about 10.15 p.m., near Meenkunnu junction, the
accused Nos. 1 to 9 attacked the deceased Dhanesh with lethal weapons and
committed the murder. The deceased Dhanesh was returning from Gopal
Smaraka Mandiram on a motorbike bearing registration No.KL-11-B-4365 riding
with PW1, Madakkara Prajeesh, as pillion rider. The prosecution alleges that
accused No.1, Swaroop, inflicted a stab injury on the left side of the neck with
MO-1 knife dagger, and accused Nos. 2 and 3 caught the motorcycle. It is further
alleged that accused No.3 inflicted a blow on the left hand of the deceased with
MO-2 Wooden rafter.
5. Based on Ext. P1 FIS lodged by PW1, Madakkara Prajeesh, the
Valapattanam Police registered Crime No.40/2008. After completing the
investigation, a charge sheet was laid before the learned Magistrate. The learned
Magistrate after completing the preliminary steps, committed the case to the
Sessions Court, Thalassery. The Sessions Court, Thalassery, made over the case
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to Additional Sessions Court-III, Thalassery, for trial and disposal.
Procedures in the trial court
6. The accused Nos. 1 to 9 appeared before the trial court on the receipt of
summons. Later, the case against Accused No.1 was split up since he absconded.
The learned Sessions Judge framed charge under Sections 143, 147, 148, 341 and
302 r/w 149, and Section 120B of the Indian Penal Code. When the charge was
read over and explained to the accused, they pleaded not guilty and claimed to be
tried.
7. To prove the charge against the accused, PWs. 1 to 28 were examined,
and Exts. P1 to P36 were marked. MOs. 1 to 5 were also identified. After the
closure of the prosecution evidence, the accused were examined under Section
313(1)(b) of the Code of Criminal Procedure. The accused denied the
incriminating circumstances levelled against them and pleaded innocence. On the
side of the defence, Exts.D1 to D14 were marked. The learned Sessions Judge,
after a full fledged trial, convicted and sentenced the appellants/accused Nos. 2
and 3 as aforesaid. Feeling aggrieved by the judgment, accused Nos. 2 and 3
preferred this criminal appeal.
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The contentions of the appellants
8. Adv. S. Rajeev, learned counsel for the appellants, submitted that the
impugned judgment of the learned Sessions Judge is patently illegal and
unsustainable. The entire prosecution story revolved upon the solitary evidence of
PW1, Madakkara Prajeesh. The evidence of PW1 is wholly unreliable and
unworthy of credence. The trial court ought not to have relied on the version of
PW1 to convict the appellants/accused. It is submitted that the prosecution does
not have a definite, concrete and consistent case regarding the identity of the
accused persons, the weapons allegedly used in the incident, and the manner in
which the crime was committed.
9. PW1 stated some names of the perpetrators at the time of lodging the
FIS, However, he has resiled from his version, and, at the time of giving
statement under Section 161 Cr.P.C., named some other assailants. Adv. S. Rajeev
submitted that the evidence of PW1 is an exaggerated and embellished version of
the alleged occurrence. His evidence is not natural, reliable, and trustworthy.
Further, it is submitted that the ocular evidence is inconsistent with the medical
evidence. Non-citing and non-examination of material witnesses caused serious
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prejudice to the accused. It is pointed out that no evidence is adduced to prove
that there was sufficient light at the scene of occurrence.
The contentions of the prosecution.
10. On the other hand, the learned Public Prosecutor, Smt. T.V. Neema,
submitted that the prosecution has succeeded in proving the charge against the
appellants herein. PW1, Madakkara Prajeesh, has stated the names of the
appellants in Ext.P1 FIS and also gave evidence against them. There is nothing to
discredit the testimony of PW1, the sole eyewitness to the incident. The trial court
appreciated the evidence in the correct perspective and arrived at a proper
conclusion. No interference, whatsoever, is warranted in this matter.
The compendium of prosecution evidence
11. The prosecution examined PWs. 1 to 28 and marked Exts. P1 to P36
and identified MOs. 1 to 5. PW1, Madakkara Prajeesh, is the sole eyewitness in
this case. PW1 testified that on 12.01.2008, he was in the company of PW2(T.
Lilu), Manoj, Roushad, Ragesh, and the deceased Dhanesh at the Yuvajana Arts
and Sports Club, functioning at Meenkunnu Gopal Smaraka Mandiram. At about
10 p.m., they departed from the club and proceeded to their homes. PW1 and the
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deceased returned to their home on the motorcycle bearing registration
No.KL-11-B-4365, deceased as the rider and PW1 as a pillion rider.
12. According to PW1, when they reached Meenkunnu Junction, seven
persons jumped in front of the motorcycle from the byroad and caught on to the
motorcycle. He identified accused No.2, Prajin @ Prajith and accused No.3, Vijith
@ Kuttan. In the meantime, accused No.3, Vijith directed accused No.1, Swaroop,
to do away with the deceased and the first accused stabbed the neck of the
deceased, Dhanesh, with a knife dagger. PW1 identified the MO-1 knife dagger
and the MO-2 wooden rafter. On seeing the incident, PW1 alighted from the
motorcycle, cried aloud, and ran towards Meenkunnu Junction.
13. When he reached the turning of the road, he met PW2, Lilu, Raushad
and Manoj and informed them about the incident. Thereafter, all of them rushed
to the place of occurrence and brought the deceased to the gate of a house
nearby. Seeing the blood oozing from the neck, he became unconscious. PW1
further deposed that he regained his conscience only after he reached AKG
Memorial Co-operative Hospital, Kannur.
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14. He identified the saffron lungi and shirt as MOs. 3 and 4 allegedly worn
by the deceased. The police came to the hospital at about 11 p.m. and
questioned him. The police recorded Ext.P1 First Information Statement. He
added that at that time, he was not fully conscious. Mr. Dhanesh was an activist
of CPI(M) party and the Unit President of DYFI. All the accused persons are
workers of the RSS and BJP. The deceased, Dhanesh, was at the forefront of all
the activities in the locality.
15. He further added that there was an issue between the accused, Praju,
and the deceased at about 3 p.m. on 12.08.2008, in connection with the
destruction of a poster of DYFI. At that time, Dhanesh caught hold of the collar of
Praju. Dhanesh himself had told him about the incident. After the lapse of
two-three days, the police recorded his 161 statement, wherein he narrated the
true version of the incident.
16. In cross-examination, PW1 would say that the place of occurrence is
near Meenkunnu Junction, on the road leading towards the beach. The houses of
Mohanan, Sarumma, Sarala, Sreenivasan, Asokan, and Shakunthala are near to
the place of occurrence. The house of Sunil, the shop of Haridasan, etc., are
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situated very close to the place of occurrence.
17. Vijayan S/o Ramadasan, Joshi S/o Sidharth, Sreenath S/o Sreedharan,
and Prajith S/o Sasidharan are known to him. But he does not know Jayaraj S/o
Devadasan by his name, and he does not know Hareesh S/o Bhaskaran, Sumit S/o
Rajan, and Vipindas S/o Sidhardhan.
18. In cross-examination he made it clear that a knife dagger, sword, and
hatchet are different weapons. Further, he deposed that he had stated the facts
which he had seen and was convinced of to the police at the hospital. He put his
signature in FIS, after it was read over to him.
19. The remaining part of his cross-examination is the contradictions and
omissions in the evidence of PW1, which we would like to deal with at a later part
of this judgment.
20. PW2, T. Lilu, testified that he went to Gopalan Smaraka Mandiram at
about 6.30 p.m. on the alleged day of occurrence, where he met the deceased
Dhanesh, PW1, Madakkara Prajeesh, Roushad, and Manoj. At about 8.30 P.M.,
PW1, Madakkara Prajeesh, went to meet PW4, Sunil, and came back between 9
and 10 p.m. At 10 p.m., they all proceeded to their houses. Dhanesh and PW1
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proceeded towards the Valiyaparambu side. In the meanwhile, he heard a
commotion of hue and cry. PW1, Madakkara Prajeesh, approached them and told
him that someone had stabbed Dhanesh. They rushed to the place of occurrence
near the house of Mohanan, wherein, they found the deceased Dhanesh lying on
the motorcycle. In the meanwhile, Sunil came with a torch, and they noticed that
blood was oozing from the neck of the deceased. Upon witnessing the incident,
PW1 became perplexed. They took the deceased to AKG Hospital in an
autorickshaw. The doctors of AKG Hospital declared the death of the deceased.
21. Dhanesh told him that there were some issues between accused No.2,
M.P. Prajin and himself in connection with a destruction of a poster at about 3
p.m. PW2 identified accused No.3, Vijith, accused No.8, Kalesh and accused No.9,
Vineesh in the dock. PW2 would further say that at about 7.15 p.m., he met
accused Nos. 1, 3 and 8 and 9 near Kelu Vayanasala.
22. PW3, Rajesh T.V. was a witness to the Ext.P2 inquest report. PW4,
Sunil was examined to prove the conspiracy. He would say that he met accused
No. 1- Swaroop, accused No.2- Prajin, accused No. 3- Vijith, accused No.8, Kalesh
and accused No.9- Vineesh near to the shop of Haridasan. He identified them in
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the torch light. At that time, one of the accused uttered that 'the bike would pass
at 10 O' clock'. PW5, Rameshan K.P., was also examined to prove the alleged
conspiracy. He would also say that he had seen accused No.1, Swaroop, accused
No.3, Vijith, accused No.5, Bijoy and accused No.6, Baiju near the house of Sri.
Mohanan at Meenkunnu.
23. PW6, Rajeesh K.P. would say that, on 12.01.2008 at about 10.15 p.m.,
PW2(Lilu) contacted him by phone and asked him to come to Meenkunnu, since
Dhanesh had been stabbed by someone. He rushed to that spot, wherein, he
found PW2-Lilu, PW4- Sunil, Manoj and Roushad, and they took them to AKG
Hospital. PW7, Supalithan stated that he saw the accused No.1, Swaroop,
accused No.2, Prajith, accused No.3, Vijith and accused No.5, Bijoy at about 10.30
p.m. near Arayakandipara. In the meantime, a Scorpio car arrived, and the
accused hastily boarded it and proceeded towards Kappilapeedika.
24. PW8, Bargavan, is the driver of white Scorpio car bearing No.
KL-13-L14. He testified that in the month of January 2008, his car was hired by a
group of nine persons. They told him that they want to go to Kannur from
Thykadavu. The journey started at about 5 p.m from Thykadavu. The passengers
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told him that they wanted to catch fish at 4 a.m on the next day. When they
reached Neeleswaram, the passengers purchased liquor from the outlet of
Beverages Corporation. They alighted at Meenkunnu Junction at about 7.30. He
parked his vehicle on the beach. In between 10 and 11 a.m, they called him and
asked him to proceed to Thykadavu.
25. PW9, P. Rajeevan, was a witness to the recovery of MO-1, Knife
dagger. He stated that he witnessed the recovery of MO-1 at the instance of
accused No.1 from the north, eastern corner of a water tank beneath the dry
leaves. He put his signature in Ext.P3, mahazar. He also witnessed the recovery
of MO-2, wooden rafter, at the instance of accused no. 3, Vijith. PW10, Dr.
Gopalakrishna Pillai, conducted the autopsy of the deceased, Dhanesh, on
13.01.2008. He has noted five ante mortem injuries in Ext.P5 postmortem
certificate. The contents of Ext.P5 postmortem certificate are extracted
hereunder:
" POSTMORTEM CERTIFICATE
I hereby certify that as per the requisition dated 13.1.2008 from the Circle
Inspecter of Police, Valapattanam, I conducted the Postmortem examination
of a male PULIKKAMBETH DHANESH aged about 26 years involved in Crime
No.40/08 of Valapattanam Police Station between 12.00 Noon and 1.00 PM
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on 13.1.08 at Academy of Medical Sciences, Pariyaram. The dead body
identified by P.C.No.4238. The Postmortem examination revealed the
following:
A. General:-
Body was that of an adult male of height 176cm and weight 60kg. Brownish
discharge coming out from the mouth; faecal discharge at the anus. Dried
blood stains seen all over the chest, abdomen and upper limbs. Rigor mortis
fully established and retained all over. Postmortem staining at the back, not
fixed. No signs of decomposition. Body not refrigerated.
B. Injuries (ANTEMORTEM):-
1. Incised stab wound, 12x5cm, oblique, involving the left side of front of
neck and upper part of chest; the upper outer end was on the neck, 7.5cm
to the left of midline and 5cm above the collar bone; the inner lower end
was in the midline overlying the inner end of right collar bone. Wound
margin showed slight contusion. The wound was spindle shaped, with a
small contusion at the upper outer end, where, the injury was superficial.
The wound had cut a piece of bone from the right side of manubrium
sternum (4x3cm) and severed the right subclavian vessels, just above the
upper border of first rib. The wound had a depth of 12 cms and was
directed downwards and to the right. Right chest cavity contained 500ml of
fluid blood; right lung was collapsed.
2. Abrasion 4x0.5cm on the back of right wrist.
3. Abrasion 1x 1cm on the back of right elbow.
4. Abrasion 3x2cm on the front of right knee.
Abrasion 2.5x2cm on the front of left knee.
C. Other findings;
Stomach was two-third full with brownish fluid mixed with granular,
unidentifiable vegetable food particles; no unusual smell. Walls, chambers
and valves of the heart were normal; coronaries patent. All ether internal
organs were pale, otherwise normal.
(Blood group of the deceased was 'AB' Positive).
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OPINION AS TO THE CAUSE OF DEATH:-
DIED OF STAB INJURY OF THE NECK AND CHEST INVOLVING MAJOR
BLOOD VESSELS."
26. Dr. Gopalakrishna Pillai opined that MO-1, knife dagger, could cause
injury No.1. Doctor Goplalakrishnapillai opined that the deceased died due to a
stab injury on his neck.
27. PW11, Surendran, is the police photographer, who took Ext.P6 series
photographs at the place of occurrence. PW12, A. Babu, is the Scientific Assistant,
RFSL, Kannur. He examined the place of occurrence and collected samples of
blood stains from the motorbike, from the switchboard on the wall of Veranda and
collected bloodstained stones from near the gate. He packed and sealed it and
entrusted the items to the investigating officer. PW13, P.M. Jinachandran, is a
friend of the deceased. He was examined to prove that there was a scuffle
between the deceased and accused NO.2, Prajin at about 3 p.m. on 12.01.2008.
The issue was with respect to the destruction of a poster.
28. PW14, M.T. Babu, is the witness to Ext. P8 scene mahazar. PW15, K.
Jayesh, witnessed the arrest of accused No.8, Kalesh and accused No.9,Vineesh.
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PW16, M. Raveendran, is the father of deceased Dhanesh who produced Ext. P10
RC book, Ext.P11 Insurance Certificate, to the police. PW20, Thankamani is the
Assistant Chemical Examiner of Regional Examiner's Laboratory, Kozhikode, who
examined the samples and issued Exts.P14 and P15 reports. PW21, A.P. Rajan,
was the ASI of Police, Kannur Town Police Station. He recorded the Ext.P1 FI
statement of PW1(Madakkara Prajeesh) from AKG Hospital, Kannur at about 11.30
p.m. on 12.01.2008. He would say that PW1 was only half conscious at that time.
29. PW22, K. Vjayakumar, was the Head constable of Valapattanam police
station, who recorded Ext.P16 FIR on the basis of Ext.P1 FIS. PW23, Dr. Ram
Mohan, is the Chief Medical Officer of AKG Hospital, Kannur. He proved Ext. P22
certificate issued by Dr. Fahmi, his colleague, who examined PW1, Prajeesh. At
that time, the patient complained of weakness and headache. PW24, V.V. Shaji is
the Village Officer of Azheekode South Village, who inspected the place of
occurrence and issued Ext. P23 site plan. PW25, K.C. Lorence is the Investigating
Officer in this case. He questioned the material witnesses and recovered the
weapons of offence. He conducted a major part of the investigation. PW26,
Sajesh also conducted a part of the investigation. He seized Ext.P6 police
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photographs as per Ext.P17 mahazar. PW27, T.B. Vijayan, Circle Inspector of
Valapattanam Police Station, completed the investigation and laid the charge
sheet. The version of defence is that the accused were falsely implicated in this
case due to political enmity. A young man namely, Sandeep, and one Vandana,
daughter of Mr. Prakashan Master, M.L.A., was in deep love. The said Sandeep
died due to the consumption of liquor mixed with poison. On the very same day
Vandana committed suicide. The deceased Dhanesh spread a rumour that
Prakashan Master is responsible for the death of Sandeep. Due to this vengeance,
Prakashan Master and his henchman committed the murder of Dhanesh and the
accused were falsely implicated in this case.
Judicial Evaluation
30. As already stated, accused Nos. 2 to 9 faced the trial before the 3rd
Additional Session Court, Thalassery. Accused No.1, Swaroop absconded and the
case against him was split up. The trial court convicted and sentenced the
appellants 1 and 2 (accused Nos. 2 and 3) for offences punishable under Section
302 and 341 r/w 34 of the Indian Penal Code. The learned Sessions Judge
convicted and sentenced the appellants (accused Nos. 2 and 3) mainly on the
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basis of the evidence tendered by PW1, Madakkara Prajeesh, who is the sole
eyewitness who accompanied the deceased in the motorcycle as a pillion rider.
The trial court took the view that the evidence of PW1 would convincingly prove
the presence of accused Nos.2 and 3 and their overt act in the commission of the
crime.
31. The learned counsel for the appellant, Adv. S. Rajeev, would submit
that the entire prosecution story hinges upon the sole testimony of PW1, the only
eyewitness in this case. He further submitted that the testimony of PW1,
Madakkara Prajeesh, is not natural, reliable, trustworthy and credible.
32. Adv. S. Rajeev submitted that the testimony of PW1, the solitary
eyewitness, is wholly unreliable and the trial court ought not have convicted the
appellants on the basis of such evidence. PWs 2, 4 and 6, who allegedly reached
the place of occurrence immediately after the incident. Their version is also not
reliable and credible.
33. The learned counsel for the appellants submitted that, according to
PW1, Madakkara Prajeesh, while he was travelling as a pillion rider in the bike
driven by the deceased Dhanesh, the accused jumped in front of the bike,
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intercepted them, and attacked the deceased Dhanesh. It is PW1, who lodged
Ext.P1, FIS. In Ext.P1, FIS, his version was that, while they reached Meenkunnu,
12 persons armed with sword, hatchet etc., intercepted them. One among the
assailants, Vijayan @ Sreelesh, S/o Ramadas, inflicted a wild blow on the neck of
the deceased. He has stated the names of the other assailants in FIS. It is
further stated that the other assailants also attacked Dhanesh with swords on vital
parts of his body. Dhanesh fell down as a result of the attack. He tried to run
away from the spot and in the meanwhile, PW2(Lilu), PW4(Sunil), Manoj and
Roushad took him to AKG Hospital in an Autorickshaw. It is further stated in Ext.
P1 FIS that the reason for the murder is political rivalry. The deceased Dhanesh is
a CPI(M) worker and the accused persons were RSS/BJP workers.
34. Adv. S. Rajeev submitted that in Ext.P1, FIS, PW1 stated the names and
details of 12 assailants who attacked the deceased. However, in his 161
statement, he changed his version and named only 9 persons as the assailants.
PW1 also stated that one Sreelesh attacked the deceased with a hatchet and the
others attacked with a sword.
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35. At the time of lodging FIS, PW1 has stated the names and details of 12
assailants which are as follows:
1. Sreelesh @ Vijayan S/o Ramadas
2. Joshy, S/o Siddharth
3. Kalesh, S/o Kanakan
4. Jayaraj, S/o Devadasan
5. Sreenath, S/o Sreedharan
6. Hareesh, S/o Bhaskaran
7. Prejith, S/o Sasidharan
8. Sumith, S/o Rajan
9. Vipin Das, S/o Sidharthan
10. Swaroop, S/o Pradeep
11. Prejil, S/o Pradeep
12. Vijith, S/o Sasidharan
36. It was brought out while cross examining PW1 that in his previous
statement u/s 161 of the CrPC he has stated names and details of 9 persons,
which are as follows:
1. M.P. Swaroop, S/o Pradeep Kumar
2. M.P. Prajin @ Prajith, S/o Pradeep Kumar
3. M. Vijit @ Kuttan, S/o Shasidharan
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4. O. Sharath Babu, S/o Raveendran
5. P.P. Bijoy, S/o Shivanandan
6. E.Byju, S/o Rajan
7. V.M. Shahir, S/o Hameed
8. K.P. Kalesh, S/o Kanakan
9. M. Vineesh, S/o Bhaskaran
37. In other words, during trial, he gave a go by to his version in the FIS
and stuck to his subsequent statement that accused Nos. 1 to 9 attacked the
deceased.
38. On going through the evidence of PW1, it could be seen that the
names and details of several assailants which he stated in Ext. P1 FIS was omitted
in his 161 statement and while giving evidence in the court. Those names are: 1.
Vijayan @ Sreelesh S/o Ramadas, 2. Joshi S/o Sidhardh and 3. Jayaraj S/o
Devadasan, 4. Sreenath S/o Sreedharan, 5. Hareesh S/o Bhaskaran, 6. Prejith S/o
Sasidharan, 7. Sumit S/o Rajan, and Vipin Das S/o Sidharthan. It is pertinent to
note that in Ext.P1, FIS, PW1 stated that Vijayan @ Sreelesh S/o Ramadas
inflicted a blow with a hatchet on the neck of the deceased. While tendering
evidence during the trial, PW1 had altogether different versions about the alleged
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incident. PW1 testified that on 12.01.2008, he was in the company of PW2, T. Lilu,
Manoj, Roushad, Ragesh, and the deceased Dhanesh at the Yuvajana Arts and
Sports Club, functioning at Meenkunnu Gopalan Smaraka Mandiram. At about 10
p.m., they departed from the club and proceeded to their homes. PW1 and the
deceased returned to their home on a motorcycle bearing registration
No.KL-11-B-4365, deceased as the rider and PW1 as a pillion rider.
39. According to PW1, when they reached Meenkunnu Junction, seven
persons jumped in front of the motorcycle from the cut road and caught on to the
motorcycle. He identified accused No.2, Prajin @ Prajith and accused No.3, Vijith
@ Kuttan. In the meantime, accused No.3, Vijith directed accused No.1, Swaroop,
to do away with the deceased and the first accused stabbed the neck of the
deceased, Dhanesh, with a knife dagger. PW1 identified the MO-1 knife dagger
and the MO-2 wooden rafter. On seeing the incident, PW1 alighted from the
motorcycle, cried aloud, and ran towards Meenkunnu Junction.
40. When he reached the turning of the road, he met PW2, Lilu, Raushad
and Manoj and informed them about the incident. Thereafter, all of them rushed
to the place of occurrence and brought the deceased to the gate of a house
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nearby. Seeing the blood oozing from the neck, he became unconscious. PW1
further deposed that he regained his consciousness only after he reached AKG
Memorial Co-operative Hospital, Kannur.
41. In cross-examination, PW1 would say that the place of occurrence is
near Meenkunnu Junction, on the road leading towards the beach. The houses of
Mohanan, Sarumma, Sarala, Sreenivasan, Asokan, and Shakunthala are near to
the place of occurrence. The house of Sunil, the shop of Haridasan, etc., are
situated very close to the place of occurrence. Vijayan S/o Ramadasan, Joshi S/o
Sidharth, Sreenath S/o Sreedharan, and Prajith S/o Sasidharan are known to him,
but he does not know Jayaraj S/o Devadasan by his name, and he does not know
Hareesh S/o Bhaskaran, Sumit S/o Rajan, and Vipindas S/o Sidhardhan.
The Evidentiary Value of sole eyewitness.
42. The legal position with regard to the appreciation of the evidence of a
sole eyewitness is well settled.
43. In Vadivelu Thevar v. State of Madras1, the Apex Court observed
that it is a sound and well established rule of law that the court is concerned with
the quality and not with the quantity of the evidence necessary for proving or
AIR 1957 SC 614
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disproving a fact. Generally speaking, oral testimony in this context may be
classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable
(3) Neither wholly reliable nor wholly unreliable.
Paragraphs 14 and 15 of Vadivelu Thevar's case reads thus:
"14. In view of these considerations, we have no hesitation in holding that
the contention that in a murder case, the court should insist upon plurality
of witnesses, is much too broadly stated. S.134 of the Indian Evidence Act
has categorically laid it down that "no particular number of witnesses shall
in any case be required for the proof of any fact." The legislature
determined, as long ago as 1872, presumably after due consideration of
the pros and cons, that it shall not be necessary for proof or disproof of a
fact, to call any particular number of witnesses. In England, both before
and after the passing of the Indian Evidence Act, 1872, there have been a
number of statutes as set out in Sarkar's 'Law of Evidence' - 9th Edition, at
pp. 1100 and 1101, forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on laying down any such
exceptions to the general rule recognized in S.134 quoted above. The
section enshrines the well recognized maxim that "Evidence has to be
weighed and not counted". Our Legislature had given statutory recognition
to the fact that administration of justice may be hampered if a particular
number of witnesses were to be insisted upon. It is not seldom that a
crime had been committed in the presence of only one witness, leaving
aside those cases which are not of uncommon occurrence, where
determination of guilt depends entirely on circumstantial evidence. If the
Legislature were to insist upon plurality of witnesses, cases where the
testimony of a single witness only could be available in proof of the crime,
would go unpunished. It is here that the discretion of the presiding judge
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comes into play. The matter thus must depend upon the circumstances of
each case and the quality of the evidence of the single witness whose
testimony has to be either accepted or rejected. If such a testimony is
found by the court to be entirely reliable, there is no legal impediment to
the conviction of the accused person on such proof. Even as the guilt of
an accused person may be proved by the testimony of a single witness,
the innocence of an accused person may be established on the testimony
of a single witness, even though a considerable number of witnesses may
be forthcoming to testify to the truth of the case for the prosecution.
Hence, in our opinion, it is a sound and well established rule of law that the
court is concerned with the quality and not with the quantity of the
evidence necessary for proving or disproving a fact. Generally speaking,
oral testimony in this context may be classified into three categories,
namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
15. In the first category of proof, the court should have no difficulty in
coming to its conclusion either way - it may convict or may acquit on the
testimony of a single witness, if it is found to be above reproach or
suspicion of interestedness, incompetence or subornation. In the second
category, the court, equally has no difficulty in coming to its conclusion. It
is in the third category of cases, that the court has to be circumspect and
has to look for corroboration in material particulars by reliable testimony,
direct or circumstantial. There is another danger in insisting on plurality of
witnesses. Irrespective of the quality of the oral evidence of a single
witness, if courts were to insist on plurality of witnesses in proof of any
fact, they will be indirectly encouraging subornation of witnesses.
Situations may arise and do arise where only a single person is available to
give evidence in support of a disputed fact. The court naturally has to
weigh carefully such a testimony and if it is satisfied that the evidence is
reliable and free from all taints which tend to render oral testimony open to
suspicion, it becomes its duty to act upon such testimony. The law reports
contain many precedents where the court had to depend and act upon the
testimony of a single witness in support of the prosecution. There are
exceptions to this rule, for example, in cases of sexual offences or of the
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testimony of an approver; both these are cases in which the oral testimony
is, by its very nature, suspect, being that of a participator in crime. But,
where there are no such exceptional reasons operating, it becomes the
duty of the court to convict, if it is satisfied that the testimony of a single
witness is entirely reliable. We have, therefore, no reasons to refuse to act
upon the testimony of the first witness, which is the only reliable evidence
in support of the prosecution."
44. In Amar Singh v. State (NCT of Delhi)2 the Apex Court declared
that as a general rule the court can and may act on the testimony of a single
eyewitness provided he is wholly reliable. There is no legal impediment in
convicting a person on the sole testimony of a single witness. That is the logic of
Section 134 of the Indian Evidence Act, 1872. But if there are doubts about the
testimony, Courts will insist on corroboration. It is not the number, the quantity
but quality that is material. The time honoured principle is that evidence has to
be weighed and not counted. The test is whether the evidence has a ring of
truth, is cogent, credible and trustworthy or otherwise.
45. In Lallu Manjhi and another v. State of Jharkhand3, the Apex
Court held that the Law of Evidence does not require any particular number of
witnesses to be examined in proof of a given fact. However, faced with the
AIR 2020 SC 4894
2023 KHC 846
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testimony of a single witness, the Court may classify the oral testimony into three
categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly
reliable nor wholly unreliable. In the first two categories there may be no difficulty
in accepting or discarding the testimony of the single witness. The difficulty arises
in the third category of cases. The court has to be circumspect and has to look
for corroboration in material particulars by reliable testimony, direct or
circumstantial, before acting upon testimony of a single witness.
46. In Prithipal Singh and Others v. State of Punjab and Others4,
the Supreme Court reiterated the same principle.
47. In Joseph v. State of Kerala5, the Apex Court observed that it is
permissible for a court to record and sustain a conviction on the evidence of a
solitary eyewitness. But evidence should be wholly reliable. When the evidence
of a solitary eyewitness is in conflict with other evidence, it would be unsafe to
convict the accused solely on the basis of such witness.
48. In Jarnail Singh v. State of Punjab6, the Supreme Court held that
the conviction could be based on the sole testimony of a solitary eyewitness but in
2012(1) SCC 10
2003(1) SCC 465
2009 KHC 146
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order to be the basis of conviction his presence at the place of occurrence has to
be natural and his testimony should be strong and reliable and free from any
blemish.
49. In Joy Devaraj v. State of Kerala7, the Apex Court declared that
what is the threshold for disbelieving a witness's testimony based on discrepancies
or inconsistencies. Held, threshold is not mere discrepancy or inconsistency but
material discrepancy and inconsistency, which renders the account narrated by the
witnesses so highly improbable that it may safely be discarded altogether from
consideration.
50. In Ram Pukar Thakur and Others v. The State of Bihar8, the
Apex Court held that it is not safe to convict the accused of murder on
uncorroborated sole testimony of an eyewitness, if it suffers serious infirmities.
Paragraphs 4,5,6,7 and 8 are extracted hereunder:
4. The case must therefore stand or fall by the evidence of Nakuldeo. A
serious infirmity from which his evidence suffers is that admittedly
several people from the neighbourhood met him at his house after the
murder of his brother but he did not disclose the names of the assailants
to anyone whatsoever. The other members of his family also did not
mention the names of the assailants to anyone of those persons.
Nakuldeo is a man of 24 and at the material time he was employed at
the Air Force Station, Agra. It is impossible to accept his claim that he
2024 KHC 8260
AIR 1974 SC 284
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was so overcome by grief that he could not even mention the names of
the assailants to anyone. The incident had taken place on a dark night
and there was no light either in the courtyard or in the house with the
help of which Arjun's assailants could be seen and identified. The
significant failure on the part of Nakuldeo to disclose the names of the
assailants is only consistent with the conclusion that he was unable to
identify them.
5. Nakuldeo has said in his evidence that he was able to identify the
assailants of his brother in the light of his torch which he flashed while
his brother was being assaulted. It seems to us surprising that though
Nakuldeo claims to have submitted a statement in writing to the Sub
Inspector of Police at about 10 O'clock the next morning, he did not refer
to the torchlight therein. The statement alleged to have been submitted
by Nakuldeo was never disclosed at the trial by the prosecution but the
High Court condoned that lapse by saying that the statement tendered
by Nakuldeo was copied verbatim in the case diary. On a perusal of that
diary the High Court found that the statement incorporated therein
contained a reference to the torchlight flashed by Nakuldeo. If that be
so, it is difficult to appreciate how the statement in the case diary could
be said to be a verbatim reproduction of the statement submitted by
Nakuldeo.
6. Nakuldeo had no compunction in saying in his examination in chief
that one of the appellants, Bishwanath Pandey, had fired a gun shot at
Dwapar which caused injuries to him. In cross examination Nakuldeo
stated that he did not remember whether he saw Bishwanath Pandey
firing the gun shot at Dwapar. If Nakuldeo could involve one person
falsely, one has to find a strong reason for accepting his testimony
implicating the others.
7. A chowkidar, Chandrama Ahir, had gone to Nakuldeo's house on the
morning of the 13th, He gave a fardbeyan (Ex. 2) at the Bhual Chapra
police station, in which he mentioned that Nakuldeo was gravely upset
and that no inquiries could be made of him as he was weeping. As stated
earlier, Nakuldeo was 24 years of age and assuming that Dwapar had left
the village for calling the father and the uncle, there were other adult
members of the family like Rajendar and Bachia who could have
furnished the names of the assailants to the chowkidar. We are unable to
Crl.Appeal No.246/2018 30
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agree with the High Court that the statement in the fardbeyan that
Nakuldeo was overcome by grief furnishes an adequate explanation for
the omission on his part and on the part of the other members of his
family to disclose the names of the assailants. The High Court observes
that there is nothing to show that any villager had made inquiries in
regard to the names of the assailants. It is impossible to believe that
none from the large crowd of villagers who had gone to Nakuldeo's
house after the murder of Arjun had the ordinary courtesy or curiosity to
inquire whether the assailants were known. Such is not the ordinary
experience of human affairs.
8. There are serious infirmities in the evidence of Nakuldeo and if, as
stated by the High Court, the success of the prosecution depends only on
his evidence, the charges levelled against the appellants must fail. Even
assuming that Nakuldeo flashed his torchlight, it is a very tall claim to
accept that in a frightened state of mind he could identify as many as
eight persons and furnish a description of their weapons.
51. In Narendrasinh Keshubai Zala v. State of Gujarat9, the Apex
Court observed that suspicion, however great it may be, is no substitute of proof
in criminal jurisprudence. Paragraphs 8 and 14 are extracted hereunder:
8. It is a settled principle of law that doubt cannot replace proof.
Suspicion, howsoever great it may be, is no substitute of proof in criminal
jurisprudence (Jagga Singh v. State of Punjab [Jagga Singh v. State of
Punjab, 1994 Supp (3) SCC 463 : 1994 SCC (Cri) 1798]). Only such
evidence is admissible and acceptable as is permissible in accordance
with law. In the case of a sole eyewitness, the witness has to be reliable,
trustworthy, his testimony worthy of credence and the case proven
beyond reasonable doubt. Unnatural conduct and unexplained
circumstances can be a ground for disbelieving the witness.
14. This Court on multiple occasions has held that it is not the quantity
but the quality of witnesses and evidence that can either make or break
(2023) 18 SCC 783
2025:KER:43591
the case of the prosecution. It is the duty of the prosecution to prove
that the testimonies of the witnesses that it seeks to rely upon are of
sterling quality i.e. fully trustworthy and absolutely free from any kind of
blemish. (Prahlad v. State of M.P. [Prahlad v. State of M.P., (2024) 14 SCC
203 : 2022 SCC OnLine SC 982] ; Amrik Singh v. State of Punjab [Amrik
Singh v.State of Punjab, (2022) 9 SCC 402 : (2023) 2 SCC (Cri) 404] ;
Pramila v. State of U.P. [Pramila v. State of U.P., (2021) 12 SCC 550 :
(2023) 2 SCC (Cri) 223] and Krishan Kumar Malik v. State of Haryana
[Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3
SCC (Cri) 61]).
The omissions and contradictions in the evidence of PW1.
52. Guided by the law laid down by the Apex Court in the aforementioned
cases, we have carefully evaluated, weighed and tested the evidence of PW1. The
trial court, in the judgment, noted that there are some discrepancies and
inconsistencies in the evidence of PW1. However, the trial court was of the view
that the version of PW1 is partly reliable and partly unreliable.
53. Per contra, learned Public Prosecutor submitted that the contradictions
and omissions in the evidence of PW1 are immaterial, irrelevant and insignificant
for the adjudication of the fact in issue. Adv. S. Rajeev submitted that the
material contradictions and omissions in the evidence of PW1 would lead to the
inference that the evidence let in by PW1 is wholly unreliable. He pointed out
several omissions and contradictions in the evidence tendered by PW1. In
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cross-examination, PW1 stated that Vijayan @ Sreelesh S/o Ramadas, Joshi S/o
Sidharth, Sreenath S/o Sreedharan, Mathi Prajith @ Prajith S/o Sasidharan are
known to him. He also confirmed that he knew the differences between sword,
hatchet and knife dagger. He further stated that he had given his statement to
the police based on what he had seen and he was convinced of.
54. PW1 stated before the police that the deceased Dhanesh was a
member of Yuvajana Arts and Sports Club. He also informed the police that Lilu
and Ragesh came to the Kelu Vayanashala and they were present there till 10
p.m. He does not remember whether he stated to the police that he had seen 5
to 6 persons talking in front of the shop of Haridas at about 8.30 p.m and that he
identified them in the torch light. When he returned from the house of PW4, Sunil,
those persons were perplexed by seeing him. He stated the registration number
of the motorcycle owned by Dhanesh while giving his FIS. He informed the police
that Manoj, Lilu and Roushad left the Kelu Vayanashala two minutes prior to the
departure. Further, he stated to the police that he had seen Manoj, Lilu and
Roushad near Kelangurukkal Smaraka Mandiram. Further, when they reached in
front of the house of one Mohanan, 7 to 8 persons jumped from a cut road,
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accused Nos.2 and 3 caught on their bike. Accused No.2, praju, uttered the words
'do away him'. PW1 would say that he has stated the above facts to the police,
but such statements were not seen recorded by the police. He stated to the police
that accused No.1, Swaroop, inflicted a blow on the left chest of the deceased and
accused No.3, Vijith, hit the hand of the deceased using a wooden rafter. He had
also stated that he could identify the weapon allegedly used by the assailants.
The deceased worn a saffron dhoti and white shirt at the time of the incident.
The deceased Dhanesh was the president of DYFI, and he was actively involved in
the local issues. He also spoke about the incident which occurred at 3 p.m.
55. PW1 categorically stated that he had stated the above facts before the
police. He has nothing to say if the police has not recorded those statements.
56. Apart from the afore omissions above, there are several contradictions
in the evidence of PW1, which were put to the witness during the
cross-examination and marked through the investigating officer. He did not state
to the police that accused No.1, Swaroop, stabbed on the back side of deceased
Dhanesh and Dhanesh fell down along with the motorcycle. Ext.D1 is the relevant
portion of case diary contradiction.
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57. He does not remember whether accused No.2, Prajith and accused
No.3, Vijith and the other accused were carrying sword or wooden rafter. Ext.D2
is the relevant portion of the case diary contradiction.
58. Yet another contradiction (Ext. D3) of PW1 is that, according to him, he
stated to the police that Swaroop fell down from the first stab itself, and he did
not see whether the other accused were holding any weapons or whether they
inflicted blows on Dhanesh. He did not state to the police that the small injury
found on the deceased might have occurred when the deceased fell down on the
road from the motorcycle.
59. He did not state to the police that he had not travelled through
Muchiliyankavu road to reach in front of the house of Mohanan. If the police
recorded in such a way in his 161 statement, it is not correct. Ext.D4 is the
relevant portion of case diary contradiction.
Omissions and contradictions in the evidence of PW2, Lilu.
60. PW2, in cross-examination, would say that he was an accused in a case
registered under Section 307 of the Indian Penal Code for attacking Mundachali
Shaji. PW1 was the co-accused in that case. He does not remember whether he
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is an accused in a case registered for attacking one Vijith. He also does not
remember whether the case was charged against him for trespassing into the
house of one Mukundan and Valsan.
61. His memory is that he stated to the police that he reached the Gopalan
Smaraka Mandiram at about 6.30 p.m., he played caroms upto 8.30, went out at
8.30 p.m. and returned at 9.10 p.m. He heard a hue and cry from
Valiyaparamba. Further, he stated to the police that somebody stabbed
Dhanesh.
62. PW2 stated to police that he had seen Swaroop, Vijith, Vineesh and
Kalesh at about 7.15 p.m. near Kelu Vayanashala. There was an issue between
the deceased and Prajin at Kappilapedika.
63. PW2 would categorically say that he has made the above version to the
police. He has nothing to say if it is not seen recorded by the police.
64. PW2 would further say that he had not stated to police that some
accident happened to Dhanesh. He has nothing to say if police recorded such a
statement in his 161. Further, he has not stated to the police that they lifted
Dhanesh and lay down in front of the gate of Shakunthala. Further, he has not
2025:KER:43591
stated that he had seen RSS/BJP workers assembled near Meenkunnu, including
Kalesh, Vineesh, Prajith, and Sumith. PW2 in his evidence denied that he made
such versions to police, D5 to D7 are the relevant portions of his case diary
contradictions.
65. We have carefully evaluated the contradictions and omissions in the
prosecution case, particularly that of PW1. These contradictions and omissions
are material, significant, and relevant in our view. On perusal of the evidence of
PW1, it is evident that the version of PW1 is exaggerated, embellished and
inconsistent. PW1, in his FI statement, has stated the names and the details of as
many as 12 assailants. However, at the time of his 161 statement, he had
changed the version and named a different set of 9 persons.
66. On going through the evidence of PW1, we are of the considered view
that the evidence let in by PW1 is wholly unreliable, and therefore, conviction
cannot be sustained on the basis of a solitary and uncorroborated testimony of
PW1.
67. The next submission by the learned counsel for the appellants is that
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the prosecution has suppressed independent material evidence. The non-citing
and non-examination of material witnesses casts serious doubts in the prosecution
story. Ext. P23 is a site plan prepared by PW24, Village Officer. On perusal of
Ext.P23, site plan, there are several houses near the place of occurrence. None of
them were cited and examined to prove the prosecution's narrative.
68. The learned counsel for the appellants submitted that no evidence is
forthcoming to prove that there was sufficient light in and around the place of
occurrence. Admittedly, the alleged incident occurred at about 10.15 p.m. The
prosecution case is that PW1 identified the assailants in the torch light. It is
pertinent to note that no witness spoke about the presence of light at the place of
occurrence other than the torch light.
69. The next submission by the learned counsel for the appellants is that
there are material inconsistencies between the ocular evidence and the medical
evidence of PW1. According to PW10, Dr. Gopalakrishna Pillai, who conducted
the autopsy, there are five antemortem injuries on the body of the deceased.
Those injuries are noted in Ext. P5 postmortem certificate.
70. But, according to PW1, Madakkara Prajeesh, accused No.1, Swaroop,
Crl.Appeal No.246/2018 38
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stabbed on the left chest of the deceased Dhanesh with MO-1 knife dagger. But
on going through the Ext. P5 postmortem certificate and the evidence of PW10,
the main injury was on the neck of the deceased.
71. The learned counsel for the appellant invited the attention of this Court
to the decision in Mani Ram and others v. State of Uttar Pradesh10, wherein
the Apex Court held that it is not safe to sustain a conviction if the medical
evidence is in conflict with the evidence of the sole eyewitness.
72. In the instant case, the evidence of PW1 (Madakkara Prajeesh) is
inconsistent with the medical evidence, and therefore, it would not be safe to base
the conviction on the solitary evidence of such a witness.
73. The learned Sessions Judge convicted and sentenced the
appellants/accused Nos. 2 and 3 and acquitted accused Nos. 4 to 9. The learned
Sessions Judge was of the view that no overt act was attributed to accused Nos. 4
to 9. They were roped under Sections 149 and 120B of the Indian Penal Code.
The trial court took the view that the prosecution has failed to prove the
conspiracy for the alleged commission of the offence, eventhough, they have
examined PWs. 5, 6, 7, 8 and 13 in order to prove the existence of a criminal
1994 KHC 963
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conspiracy. The mere presence of some of the witnesses in and around the place
of occurrence, by itself, is insufficient to prove the alleged conspiracy. We
assessed the evidence of PWs. 5, 6, 7, 8 and 13. We do not find any reason to
disagree with the conclusion arrived at by the trial court. The defence version that
the accused were falsely implicated in this case is highly probable.
Conclusion
74. We have re-assessed, weighed, and tested the evidence on record. On
such evaluation, we are of the firm view that the evidence let in by PW1, the
solitary eyewitness, is wholly unreliable. In Ext. P1, FIS, he has stated the names
and the details and the respective roles of as many as 12 assailants. But in his
161 statement, he stated the names and details of 9 persons. As per Ext. P1, FIS,
the major role was attributed to one Sreelesh S/o Vijayan, who allegedly inflicted
an injury on the neck of the deceased. But the said Sreelesh did not find a place
in his 161 statement and in the substantive evidence adduced before the Court.
75. Out of the 12 names stated in Ext. P1 FIS, only the names of three
persons were stated in 161 statement, they are accused No.1 (Swaroop), accused
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No.2 (Prajith) and accused No.3 (Vjith). What happened to the other nine
assailants, whose names and father's names were vividly stated by the witness in
his FI Statement is unexplained by the prosecution. Apart from accused Nos. 1 to
3, four others were added to the array of the accused. The Investigating Officer
has failed to explain how such changes were brought out in the narrative of the
prosecution. The omissions and contradictions, which we have discussed in detail
in the foregoing paragraphs of this judgment, would cast serious doubts in the
prosecution story. Moreover, the ocular evidence of PW1 is in conflict with the
medical evidence. The non-examination of the material witnesses is another
serious lapse on the side of the prosecution. On a careful evaluation of the
evidence on record, both oral and documentary, we are of the considered opinion
that the prosecution has failed to aver and prove the charge against the appellants
beyond reasonable doubt. The trial court has ignored the vital contradictions and
omissions in the testimony of PW1, the solitary eyewitness. The trial court has
also failed to notice the inconsistency between the ocular evidence and medical
evidence. Thus we hold that the appellants/accused Nos. 2 and 3 are entitled to
get an acquittal in this matter. The finding of guilt, conviction, and sentence
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imposed by the trial court are hereby set aside.
In the result,
1. The Criminal Appeal is allowed.
2. The conviction entered and the sentence imposed
in this case are set aside.
3. The appellants (accused No. 2 and 3) are found not
guilty and acquitted. They are set at liberty forthwith.
4. The bail bond executed by them stand cancelled.
5. Fine, if any, paid by them shall be refunded.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
msp
