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State of Kerala Vs. Dasan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1986CriLJ345
AppellantState of Kerala
RespondentDasan and ors.
Cases Referred and Bhajan Singh v. State of U. P.
Excerpt:
- - provoked by this attitude, the accused forming themselves into an unlawful assembly and carrying deadly weapons like swords, daggers and knives came to the paddy field at about 1.45 p. even though there were a number of eye-witnesses who have spoken about what has happened, more or less in a reliable way, it is regretable that improper and inadequate investigation allows the real culprits to escape. whatever be the oral evidence given by the eye-witnesses regarding the incident, whether they are reliable or not, the accused cannot be found guilty since there is ample proof regarding the defect of the investigation. rajan and thankappan as well as p. this witness had no difficulty in identifying all the accused as he knew them well enough, although he did not know the names of 5.....t. kochu thommen, j.1. respondents 1 to 19 in this appeal are the accused in sessions case no. 17 of 1982. they were tried for the offences punishable under sections 143, 147, 148, 149, 323, 324, 302, 506 and 109, penal code. they were acquitted of all the charges by the learned sessions judge by her judgment dt. 3-7-1982. the present appeal is accordingly brought by the state against the order of acquittal.2. the case of the prosecution is radhakrishna menon (alias rajan) and his maternal uncle sankarankutty menon (alias thankappan) were on 28-4-1981 engaged in ploughing their paddy field at kappukulam, panangad by means of a tilter. p.ws. 1 and 2 and others were with them. at about 12.30 p.m. accused 4, 6, 8, 10, 11, 15 and about 60 other persons came to them and asked them not to.....
Judgment:

T. Kochu Thommen, J.

1. Respondents 1 to 19 in this appeal are the accused in Sessions Case No. 17 of 1982. They were tried for the offences punishable under Sections 143, 147, 148, 149, 323, 324, 302, 506 and 109, Penal Code. They were acquitted of all the charges by the learned Sessions Judge by her judgment dt. 3-7-1982. The present appeal is accordingly brought by the State against the order of acquittal.

2. The case of the prosecution is Radhakrishna Menon (alias Rajan) and his maternal uncle Sankarankutty Menon (alias Thankappan) were on 28-4-1981 engaged in ploughing their paddy field at Kappukulam, Panangad by means of a tilter. P.Ws. 1 and 2 and others were with them. At about 12.30 P.M. accused 4, 6, 8, 10, 11, 15 and about 60 other persons came to them and asked them not to plough their field since agricultural labourers were on strike. Rajan and Thankappan told them that they had almost completed their work and what remained to be done had to be finished. So stating they got on with their work. Provoked by this attitude, the accused forming themselves into an unlawful assembly and carrying deadly weapons like swords, daggers and knives came to the paddy field at about 1.45 P.M. and attacked Rajan and Thankappan and caused serious injuries to them. Accused 10 and 11 pelted stones at Rajan. Accused 1 stabbed Rajan with M.O. 1 dagger on the right side of his stomach. Accused 2 struck him with a sword (M.O. 2) on his right hand, and then on his left hand. Accused 3 stabbed him with a knife (M.O. 5) on his head. Thankappan, waving his belt, rushed towards Rajan. Accused 6, 10, 11 and 13 pelted stones at Thankappan. Accused 18 and 19 called out to kill him. Accused 2 advanced towards him brandishing M.O. 2 sword. Hitting the belt, the sword fell down. Accused 11 seized the belt from Thankappan's hand and threw it into the field. As Thankappan attempted to retrieve the belt, accused 4 stabbed him on his back with M.O. 4 dagger. Accused 2 stabbed him with a knife on his back. Accused 5 then stabbed him with M.O. 3 dagger below his left nipple. Thankappan fell down. Accused 6 beat him with M.O. 6 cycle chain. Accused 12, 14, 15 and 17 kicked Thankappan. Accused 7 holding a pestle and accused 8 holding a reaper threatened P.Ws. 1 and 2 who were in the vicinity with dire consequences and chased them away. At this time accused 9 was standing guard with a spade (M.O.8) and an iron rod. After all this, the accused went away from the scene.

3. P.Ws. 1 and 2 and others took Rajan and Thankappan to the General Hospital, Ernakulam. Dr. B.A. Varghese (P.W. 27) found both Rajan and Thankappan dead. On the same day at about 4 P.M. P.W. 1, who had witnessed the whole incident, gave Ext. P1 First Information Statement before the Sub-Inspector of Police (P.W. 30) at the place of the incident. Crime No. 117 of 1981 of the Ernakulam Town South Police Station was registered at about 6 P.M. Ext. Pl(a) is the F.I.R. The crime was later transferred to the Crime Detachment. Investigation of the case was conducted by the Circle Inspector of. Police, P.W. 31, who held the inquest on 29-4-1981. Exts. P. 10 and P. 11 are the reports respectively relating to Rajan (Radhakrishna Menon) and Thankappan (Sankarankutty Menon). On the same day autopsy was conducted by Dr. B.A. Varghese (P.W. 27), who issued Exts. P15 and P16 postmortem certificates respectively relating to Rajan and Thankappan.

4. Accused 1 to 3, 7, 9, 16 and 17 were arrested on 2-5-1981. Accused 8 and 11 to 14 were arrested on 4-5-1981. Accused 4 to 6, 10 and 15 were arrested on 11-5-1981. Accused 18 and 19 surrendered on 11-5-1981. On 4-5-1981 accused 7 made Ext. P3(a) statement to the Circle Inspector of Police (P.W. 31) on the basis of which M.O. 7 pestle (Text in vernacular omitted -- Ed)(...) was recovered under Ext. P3 Mahazar, attested by P.W. 10. On the same day M.O. 8 spade was recovered under Ext. P4 mahazar, attested by P.W. 11, on the basis of Ext. P4(a) statement made by accused 9 before P.W. 31. Also on the same day M.O. 5 knife was recovered under Ext. P5 mahazar, attested by P.W. 12, on the basis of Ext. P5(a) statement made by accused 3 before P.W. 31. On the same day again accused 1 made Ext. P6(a) statement before P.W. 31 on the basis of which M.O.I dagger was recovered under Ext. P. 6 mahazar which was attested by P.W. 13. On 12-5-1981 accused 4 made Ext. P7(a) statement before P.W. 31 pursuant to which M.O. 4 dagger was recovered under Ext. P7 mahazar which was attested by P.W. 14. On that day accused 6 made Ext. P8(a) statement before P.W. 31 on the basis of which M.O. 6 cycle chain was recovered under Ext. P 8 mahazar attested by P.W. 15. Also on 12-5-1981 M.O. 3 dagger was recovered on the basis of. Ext. P9(a) statement made by accused 5 under Ext. P9 mahazar which was attested by P.W. 17.

5. The accused were committed to the Court of Session by the Addl. Judl. Magistrate by order dt. 5-1-1982. The accused pleaded not guilty to the charges. The prosecution examined P.Ws. 1 to 31, marked Exts. P1 to P. 18 and produced M.Os. 1 to 22. On the side of the defence, D.Ws. 1 to 3 were examined and Exts. D1 to D9 were marked.

6. When questioned under Section 313, Cr. P.C. the accused denied any involvement in the alleged crime. They stated that they were implicated falsely and deliberately for the reason that they were closely connected with the Agricultural Workers' Union and the Marxist Party. The first accused stated that he had gone to the General Hospital, Ernakulam on the morning of the date of the incident and he had no knowledge of what happened. He was implicated because he was the President of the local Agricultural Workers' Union. The second accused set up a positive case. He stated that he and the 4th accused, the Secretary of the Agricultural Workers' Union, together with about 60 agricultural workers went to various places and stopped ploughing wherever it was going on. Later they went to the field where Rajan and Thankappan were ploughing. The accused and others told them that the agricultural workers had been on strike since 20-4-1981 and requested them not to plough. Immediately the deceased abused them and beat accused 4 and pushed down accused 2. At this time rowdies employed by the deceased came into the field and beat up all the agricultural workers who went to the field along with the accused. They all cried out. Agricultural workers, headload workers, road construction workers and others who were in the vicinity and about 106 in number rushed into the field. In this scuffle, it is possible that Rajan and Thankappan were hurt. The accused had no responsibility for the incident. Accused 4, 6, 7, 8, 9 and 14 spoke to the same effect as accused 2. The others either merely denied their involvement or asserted that they were deliberately implicated on account of their union and political activities.

7. P.Ws. 1 to 5 are the eye-witnesses. P.Ws. 1 and 2 are brothers. They were closely related to both the deceased. P.Ws. 3 to 5 are independent witnesses. They saw the entire incident and spoke to the material particulars fully corroborating the testimony of P.Ws. 1 and 2. Notwithstanding the testimony of the occurrence witnesses, the learned Judge acquitted the accused of all the charges for the reason that the investigation was improper and inadequate. The Judge says:.Even though there were a number of eye-witnesses who have spoken about what has happened, more or less in a reliable way, it is regretable that improper and inadequate investigation allows the real culprits to escape..... When the investigation itself is faulty, whatever be the oral evidence given by witnesses, their evidence cannot be accepted at its face value.... I have already found that there was no honest or fair investigation, there is no necessity to deal with the entire oral evidence in this case. Whatever be the oral evidence given by the eye-witnesses regarding the incident, whether they are reliable or not, the accused cannot be found guilty since there is ample proof regarding the defect of the investigation. As such it is enough if I say that the prosecution has not succeeded in proving the guilt of any of the accused as alleged by the prosecution. Therefore all the accused are only to be found not guilty.

We shall presently consider the defects in the investigation referred to by the learned judge and their impact, if any, on the prosecution case. But before we do so, we shall examine the evidence adduced by the prosecution in support of its case.

8. P.W. 1 (Radhakrishnan) is the deceased Rajan's mother's sister's son and the deceased Thankappan's sister's son. Rajan and Thankappan as well as P.W. 1 and his brother, P.W. 2, generally ploughed their land, about 4 acres in extent, with the help of a tiller. On the date of the occurrence, that is, on 28-4-1981, Rajan and Thankappan and P.Ws. 1 and 2 were ploughing their field. At about 12.39 P.M., accused 4, 6, 8, 10 and 15 and about 60 other persons came and stood on the bank (varambu) of their property. Accused 4 told them that they were on strike since the 20th, and until it was called off no filing should be done. P.W. 2 then told accused 4 that they had been ploughing the land for about 2 days and their work was almost over except in four fields and they would return the machine only on completion of their work. Hearing this, accused 4 stated: (Text in vernacular omitted -- Ed)(...) (let us see how you plough). Saying this the accused went away. After this, P.W. 1 and others went along the Varambu towards another paddy field belonging to them. They took the tiller with them. P.W. 1 was walking just behind the tiller, and P.W. 2 was following him. About 48 feet away, Thankappan followed them. Rajan pushing a bicycle was following Thankappan. When P.W. 1 looked back, he saw Rajan being followed by some people carrying weapons' These persons were pointed out by him in court as the accused. When the accused came about 6 to 7 feet close to Rajan, accused 10 and 11 pelted stones at him. To avoid the stones, Rajan dropped the bicycle and stepped into the field. At this time, accused 1 stabbed Rajan at the abdomen with a dagger (M.O. 1). Accused 2 attacked Rajan with a sword (M.O. 2). Rajan held the sword with his right hand. Accused 2 pulled back the sword and attacked Rajan again with the sword. Rajan warded it off with his left hand. Both his hands were injured. Crying (Text in vernacular omitted -- Ed)(...) Rajan fell into the field. At this time accused 3 stabbed Rajan at the middle of his head with a knife (The witness first refers to this knife as M.O. 3, but later corrects himself and says that it was M.O.5), Rajan was at this time lying on the ground. Seeing all this, Thankappan came towards Rajan waving a belt. Accused 6, 10, 11 and 13 pelted stones at Thankappan. The stones did not hit Thankappan. Accused 18 and 19 then shouted out (Text in vernacular omitted -- Ed)(...) (kill him also). Thereupon accused 2 with a sword in hand approached Thankappan. Hitting the belt, the sword in accused 2's hand fell into the field. At this time, accused 11 seized the belt from Thankappan's hand and flung it into the field. As Thankappan bent down to pick up the belt, accused 4 stabbed Thankappan with MO. 4 dagger at his back. Accused 2 took out a knife and stabbed Thankappan just below the place where accused 4 stabbed him. Accused 5 stabbed Thankappan below his left nipple with a dagger (M.O. 3). Thereupon Thankappan fell down in the field. Accused 6 hit the left hand of Thankappan with a cycle chain (M.O. 6). Accused 7 holding (M.O. 7) pestle (Text in vernacular omitted -- Ed)(...) and accused 8 holding a reaper (pattika) shouted (Text in vernacular omitted -- Ed)(...) (we will take them also) and menacingly went towards P.Ws. 1 and 2. Seeing this, the witness and his brother ran away in the northern direction. As they ran, they saw accused 9 standing on the varambu with a spade (MO. 8) and an iron rod. They saw. accused 12, 14, 15 and 17 kicking and beating Thankappan. They also heard accused 6 say 'people are coming; let us go'. The accused went away towards the road. P.W. 2 went to the neighbouring house of Chothi and asked for water. Chothi's daughter, P.W. 8, brought water and sprinkled it on the face of Thankappan. Neither Thankappan nor Rajan was able to talk. They were soaked in blood. They were soon taken to the Ernakulam General Hospital. The doctor who examined Rajan and Thankappan declared them dead. The witness thereupon went home to report the incident. The witness lives about 226 feat away from the scene of the occurrence. About 4 P.M. on the same day he heard that police had come to the scene. He then went there. The Sub Inspector of Police, P.W. 30, took down his statement which he signed (Ext. P1). It was 5 P.M. when the statement was completed. This witness had no difficulty in identifying all the accused as he knew them well enough, although he did not know the names of 5 persons. These 5 persons were identified by him at an indentification parade before the Magistrate at the Ernakulam Sub Jail. It was only after the parade that he knew their names. The witness says that in addition to himself and his brother, P. Ws. 3 and 4 as well as P. W. 4's younger brother, Varghese, fully witnessed the incident. This witness does not, however, speak of Devassy, P. W. 5, who also claims to have seen the incident. The witness further says that himself, his brother and the deceased were regularly ploughing their fields-with a tiller for about 12 years and they did not employ any labourer for their agricultural operation. The agricultural workers were therefore angry with them. The accused were some of these agricultural workers. This witness first referred to accused 3 by his deceased father's name, Sreedharan. But a little later, he stated the correct name, which is unai. The testimony of this witness is fully supported by the evidence of his brother, P W 2, who was standing close to him and the injured at all material times. Despite severe cross-examination, no material discrepancy in their evidence appears to have been brought out. P W 2 knew all the accused except two. Of these two persons, accused 17 was identified by him at an identification parade at the Sub Jail.

9. The evidence of PWs. 1 and 2 is fully supported on material particulars by PWs. 3 to 5 who were not related to the injured. PW3 (Ummer) was present at the time of the incident. He himself is an agriculturist owning land. He went to the seen at about 12.30 p.m. on the date of the accurrence to borrow the tiller. At that time, Rajan, Thankappan, PW1 Sukumaran (PW7), Belan and Krishnan were present. Rajan told PW3 that they would let him take the tiller only after they had finished the work. As they were talking, PW4 (Ouseph) came there and told them that, while he was ploughing his field, some agricultural labourers together with certain marxists came and told him that he should not plough his field. As he was narrating that incident, some people assembled on the road near the culvert. By this time, ploughing in Rajan's field was finished. The owner of the tiller (PW7) and the others who were tilling went towards north. PW1, PW2 and Thankappan followed them. Rajan followed Thankappan pushing a bicycle. At this time, this witness and ouseph turned to go away. Then they saw same people going towards Rajan. Ouseph and this witness kept themselves away at a safe distance on the west. The witness identified the accused in court and narrated their overt acts. This witness corroborates the evidence of PWs. 1 and 2 on all material particulars. He knew all the accused except two persons, of whom he identified one at the parade before the Magistrate.

10. PW4 (Ouseph) is a first grade works Superintendent of the PHCD. He is also an agriculturist owning land. He ploughs his land with the aid of a tiller. On the date of the incident he was ploughing with a tiller, which belonged to Krishanan Chettiar. His brother Varghese was also with him. His field was close enough to the scene of occurrence to see what was happening there. As they were ploughing, some people came to his field under the leadership of accused 8. They asked him not to plough so long as the dispute remained unsettled. Hearing this, the witness and his brother stopped ploughing. The persons who came to his field later went to the property where Rajan was ploughing. A little later the witness and his brother went towards Rajan's field. At that time Rajan, Thankappan and PWs. 1 to 3 were present. The witness told Rajan and others what accused 8 and his companions told him. Rajan then scolded the witness for stopping the ploughing which they had been doing with the help of a tiller for 8 to 10 years. The time was then past 1 P.M. and the ploughing was over in that field. The tiller was then moved towards the property in the north. PWs. 1 and 2 followed the tiller. Behind them was walking Thankappan, who was followed by Rajan pushing a cycle. The time was then about 1.15 P.M. The witness and PW3 said they were hungry and then turned south to return home. At that time, Rajan was about 100 feet away from them. They then saw 5 to 6 people shouting and pelting stones at Rajan, Seeing this, the witness and PW3 turned to the west and stood on the bank. At that time the witness saw accused 1 approaching Rajan. The witness narrated the entire incident as he saw it. His evidence in regard to accused 1 to 5 corroborates the testimony of PWs. 1 to 3 on all material particulars. He does not, however, implicate any other accused by name.

11. PW5 (Devassy) is an agriculturist who owns paddy fields close to the scene of occurrence. On 28-4-1981 at about 12.45 P.M. he went towards the scene of occurrence. He met Kochappan near the culvert where they stayed for some time. At that time Rajan was seen going in the northern direction along the bank. Some people, including PWs. 3 and 4. were standing on the bank. The witness saw some other people following Rajan. Those people were armed. The witness then narrated the incident corroborating the evidence of PWs. 1 to 4 on all material particulars.

12. PW6 (Antony, alias Baby) did not see the incident, but shortly before it he heard a conversation. On 28-4-1981 he and his friend Sulaiman were walking along Chappanam Panangad Road towards N. M. (sic) store. The time was then 12.30 P.M. They saw about 20 people standing near the mill. Among them he recognised A1, A2, A4, A7, A15, A16 and A17. He identified them in court. He heard accused 2 and 4 say: (Text in vernacular omitted -- Ed)(...)

(Radhakrishna Menan and Sankarankutty Menan were ploughing with a tiller at the Keppukulam field despite our warning them not to do so. We must finish them) (Text in vernacular omitted -- Ed)(...). Saying this, they went to the house of accused 10 near the mill. The witness and Sulaiman went westward. The witness heard of the incident only after 2 P.M. The evidence of this witness supports the prosecution case in respect of the common object of the unlawful assembly.

13. PW7 (Sukumaran) is the owner of the tiller. On the date of the incident, he was one of the persons present in the field where ploughing was going on. PWs. 1 and 2 as well as Thankappan and four others were also present there. At about 11.30 A.M. the machine developed some defects, and it was being repaired. At that time certain persons approached Rajan. Accused 4, 6, 8, 10 and 15 were among those persons. Accused 4 told Rajan and PW2: (Text in vernacular omitted -- Ed)(...)

(We have been on strike since the 20th. You must not plough untill the strike is called off). PW2 then told him: (Text in vernacular omitted -- Ed)(...)

(We have been ploughing since the 26th. Only four fields now remain to be ploughed. The machine can be removed only after that). Then the accused said.: (Text in vernacular omitted -- Ed)(...)

(Let us see how you plough), saying this they went south. At about 12.30 P.M. the machine was repaired and ploughing was restarted. At about 12.45 P.M. ploughing was finished. The machine was then moved towards another field on the nothern side. Balan was going with the machine. The witness was walking behind him. Behind the witness was Krishnan, who was followed by PW1, then PW2 and behind them was Thankappan. Rajan was following them last with a bicycle. At that time some people approached Rajan. Seeing this PWs. 1 and 2 ran backward. Knowing that a crisis was about to develop, the witnesses, Balan and Krishnan moved the tiller to the north and escaped. The witness did not know what had happened later. PWs. 6 and 7 fully corroborate the testimony of the eye-witnesses in so far as the prosecution case regarding unlawful assembly is concerned.

14. PW8 Usharnma, a young girl of 13, saw the victims of the attack immediately after the incident. She sprinkled water over the face of Thankappan and poured a little of it into his mouth. He and his nephew Rajan were lying wounded and profusely bleeding.

15. The evidence of these witnesses is consistent with, and is fully corroborated by, the medical evidence. Ext. P. 15 is the postmortem certificate relating to Rajan (Radhakrishnan Menon). The following injuries are noted:

Injuries: (1) A lacerated injury 1 cm X scalp deep over the (L) frontal region of the head.

(2) An incised injury 6 cms X 1 cm X 1 cm over the (R) palm in the cleft between the thumb and the index finger.

(3) Incised injury 1 1/2 cms X muscle deep obliquely over the (R) index finger at the middle ventrally.

(4) Incised injury 1 cm X muscle deep over the middle finger ventrally upper l/3rd.

(5) Incised injury 1 cm X muscle deep over ring finger 1st phalana ventrally.

(6) Incised injury 1 cm X muscle deep over the ventral aspect of upper part (L) palm 1 cm below the root of little finger.

(7) Incised injury lh cm X skin deep over the (L) little finger lower l/3rd ventrally.

(8) Incised injury 1/2 cm X skin deep over the (L) ring finger lower l/3rd ventrally.

(9) Incised injury 1/2 cm X skin deep over upper 1/3rd (L) middle finger ventrally.

(10) An oblique incised penetrating injury tapering at both ends 4.5 cms X 2 cms over the (R) Hypechondrium directed medially communicating to the abdominal cavity.

According to the doctor, PW 27, injury No. 10 was fatal. He says 'this injury is sufficient to cause death of the injured'. This is the injury that the eye-witnesses have attributed to the 1st accussed. PW 27 further says that injury No. 18 could be caused by M. O. 1. This is the weapon attributed to the 1st accused. He says that all the injuries noted by him were ante-mortem. From the nature of the other injuries and the evidence of the eye-witnesses it would appear that injuries 2 to 9 have to be attributed to the second accused.

16. Ext. P. 16 is the post-mortem certificate issued by PW 27 concerning Thankappan (Sankarankutty Menon). The following injuries are noted:

Injuries: (1)A V-shaped contusion each limb 3 cms in length and 1/2 cm width over the lateral aspect of (L) upper arm 13 cms below the shoulder joint.

(2) An oblique incised injury 1 1/2 cm in length X muscle deep over the (L) side of the chest. 7 cms below the nipple and 15 cms sway from the midline.

(3) Another oblique incised, penetrating injury at the back of the body at the level of thoracic XI vertebra size 2 cms X 1/3 cms., two cms away from the midline towards the left directed laterally and communicating to the abdominal cavity.

(4) A transverse incised injury 2 cms X 1/3 cms X muscle deep over the sacral region at the back 24 cms below injury No. 3..

According to PW 27 injury No. 3 was fatal. About this injury, PW 27 says 'it is sufficient in the ordinary course to cause death'. The eye-witnesses have attributed this injury to the 4th accused. PW 27 further says that injury No. 3 could be caused by a weapon like M. O. 4. This is the weapon attributed to accused 4. About injury No. 4 the doctor says it could be caused by a sharp edged weapon. This injury is attributed by the eye-witnesses to accused 2 who is. said to have stabbed Thankappan with a knife. The medical evidence is consistent with the description given by the eye-witnesses as regards the nature of the attack, the injuries caused and the weapons used.

17. The recovery of the weapons on the basis of the statements made by the accused to PW 31 corroborates the testimony of the eye-witnesses regarding the weapons used by the accused and the medical evidence concerning the injuries.

18. We see no merit in the defence contention that PWs. 1 to 7 are partisan witnesses. The fact that PWs. 1 and 2 were close relatives of the deceased and these two witnesses and the deceased ploughed their fields together by means of a tiller does not make them partisans. Persons who were related or interested in the victims have no reason to implicate the wrong persons deliberately instead of pointing out the real assailants; Berati v. State of U. P. : 1974CriLJ709 . The relationship of the witnesses as such is not a disqualification: State of U. P. v. Hari Ram AIR 1983 SC 1981 : 1983 Cri LJ 1638. There is a degree of presumption that the witnesses under oath speak the truth; State of Punjab v. Hari Singh : 1974CriLJ822 , . In any view, PWs. 3 to 5 and 7 who are in no way related to the deceased cannot be characterised as interested or partisan witnesses, merely because they ploughed their own fields by means of a tiller. Nor is there any reason to suspect the testimony of PW 6 who was in no way connected with the deceased. Their testimony, if intrinsically reliable, must be accepted. The fact that they corroborate each other strengthens the testimony of each of them. Even assuming, without holding, that these witnesses were partisans and inimical towards the accused, as contended by the defence counsel Sri. Janardhana Kurup, that would be no ground to reject their evidence, if upon close scrutiny ths court is satisfied that they spoke the truth: Babu v. State of U. P. : 1980CriLJ392 . The need for careful scrutiny in respect of inimical or interested witnesses is however only a rule of caution and not a rule of law: Pralhad v. State of Maharashtra : 1981CriLJ752 . As stated by the Supreme Court 'a fringe or an embroidery of untruth' does not destroy the credibility of a witness if his evidence is found to be true in the main [see Bava Hajee v. Stale of Kerala : 1974CriLJ755 . It is the function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the core that the court should discard his evidence in toto: State of U. P. v. Shanker AIR 1931 SC 897 : 1981 Cri LJ 23. Mere possibilities or remote probabilities or unreasonable doubts cannot be the foundation of acquittal, if the available testimony is otherwise fairly credible. If the appreciation of the evidence by the Trial Court is perverse or unreasonable, it is the duty of the appellate court to set the evaluation right: Khem Karan v. State of U.P. AIR 1974 S. C. 1567 : 1974 Cri LJ 1033; and, Pala Singh v. State of Punjab : 1973CriLJ59 .

19. These witnesses speak to the incident consistently. That does not mean, as suggested by the defence, that they were tutored. They were present at the time of the incident and what they saw must have created a deep and indelible impression on their minds as regards the salient aspects. In fact Sri. Kurup refers to certain discrepancies in their evidence to canvass for the proposition that their testimony is unrealiable. While these discrepancies are far from significant and in no way related to the material particulars, their testimony, fully corroborating each other on the material particulars, shows that these witnesses speak truthfully. Their testimony is fully supported by the medical evidence, and the recovery of weapons made on the basis of information received from the accused.

20. Nor do we see any substance in the contention that the deceased and the witnesses were in a belligerant mood. There is no evidence to support such a contention. The deceased and PWs. 1 and 2 were peacefully engaged in ploughing their own fields with a tiller. PWs. 3 to 5 and 7 were also likewise engaged in agricultural operation. PW 6 was proceeding to N. M. Stores apparently on his own business. The assilants and their frends were in an extremely aggressive mood. They would not tolerate any tilling operation so long as the strike was on. They warned these persons not to continue their operation. It was because the deceased did not pay heed to the accused and continued minding their own business in their own property that they met with their fate. That sturdy independence which they displayed was not a provocation or an aggression to justify an attack on them There is no evidence whatsoever to support the contention that the deceased attacked the accused or anybody else. The tact that none of the accused received any injury whatever rules out the possibility of any belligerence on the part of the deceased or the eye-witnesses. The positive case sought to be set up by the defence is in the circumstances totally fictitious.

21. It is contended that the delay in sending the FIR to the court shows that the investigation was dishonest. It is true that there was a delay. But that, in our view, does not necessarily mean that the delay was deliberate or the investigation was dishonest. The remark of the Magistrate shows that the FIR was not received by the court till 4-5-81. PW 30 admits in Ext. P 17 that it was not sent forthwith, partly because of the intervening holidays. But in the remand application (Ext. D 4) dt. 3-5-1981, PW 31 had specifically stated that the FIR had already been sent to the court. It is therefore possible that the FIR was despatched earlier, but received by the court only on 4-5-1981. Whatever that be, the fact that the FIR was not received by the court until 4-5-1981 does not necessarily indicate that it was a fabricated document. There is no evidence to suggest that any such fabrication had occurred. The intrinsic evidence suggests that no fabrication could have taken place. If the original FIR was suppressed and a new one was prepared, as suggested by the defence, there is no reason why Ext. P. 1 should contain the names of only 10 accused and not all the accused as spoken to by the witnesses. In any case EXT D. 4 remand application filed on 3-5-1981 included the names of accused 16 and 17 who were arrested on 2-5-1981. Their names had not been mentioned in Ext. P. 1. If Ext. P 1 was a fabricated and subsequently prepared document, there was no need to exclude these names. Sri Kurup's submission that the injuries mentioned in what he calls the 'original FIR' were more in number than what Ext. P 1 shows and equal to the number of injuries recorded in the inquest reports and post-mortem certificates, does not carry conviction, for there is no need at all for the police to suppress the original and prepare a new FIR, and at the same time show fewer injuries than those actually seen on the body at the time of the inquest. If the police acted fraudulently, as suggested by the defence, there is no reason why they should also act foolishly. The suggestion is, in our view, preposterous.

22. Where the FIR was lodged without delay, late receipt of the report by the Magistrate, in the absence of any other vitiating circumstances, will not make the lapse fatal. This is particularly so where there is satisfactory explanation for the delay and there is no inconsistency in the basic aspects of the case as reported by the informant and spoken to by the witnesses; Ishwar Singh v. State of U. P. : 1976CriLJ1883 , Pala Singh v. State of Punjab, : 1973CriLJ59 ; and, Sarwan Singh v. State of Punjab, (1976) 4 SCC 365 : 1976 Cri LJ 1757. In the absence of evidence to the contrary, there is a degree of presumption that the officers have acted conscientiously and honestly. Their evidence has to be assessed on its intrinsic worth and should not be discarded merely because they are interested in the success of their case: Sone Lal v. State of U. P. : 1978CriLJ1122 .

As stated by the Supreme Court:.But when we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to our notice, then however improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellants' case that they have been prejudiced by this delay.

Pala Singh v. State of Punjab : 1973CriLJ59 .

23. Examined in the light of these principles and on the facts disclosed by the evidence, we are satisfied that the delay which occurred in sending the FIR to the Magistrate does not indicate that the investigation was dishonest. This is particularly so as the FIR was lodged without delay and there is satisfactory explanation for the delay in sending the same to the Magistrate.

24. We see no discrepancy in the evidence as regards the time and place of lodging the FIR PW1 says that no other person was present when he was giving his statement to PW 30 on the bund to the west of Chothis house. But that does not mean that there was no crowd at the place of occurrence as spoken to by PW 30. The evidence of PW 8 that, when the police questioned her father at his house, she did not see any person known to her is consistent with the testimony of PW 1 that he had given his statement to PW 30 at 4 P.M. on the bund

25. The suggestion that PWs. 1 and 2 were seen by PW 10 at the police station at 4 P.M. on the date of occurrence and that the FIR was lodged by PW 1 at the police station, and not at the place of occurrence as stated by him, does not appeal to us. We place no reliance on the evidence of PW 8, for he is apparently an untrustworthy witness. He says that he saw PWs. 1 and 2 in the police station at 3.30 P.M. or 4 P.M., but he did not know whether the Sub-Inspector was in the station as he was standing outside. If that was the position, we wonder how he could have at the very same time seen PWs. 1 and 2 in the police station. The evidence of this witness is too artificial to carry conviction, and we see no reason to believe this witness and disbelieve PWs. 1 and 30 when they say that the FIR was recorded at the place of occurrence at 4 P.M. on 28-4-1981.

26. According to the General Diary, accused 1, 3, 7 and 9 were returned to the police station at 2 P.M. on 4-5-1981 after completing the recoveries. On the other hand, PW 31 says that these accused were returned to the police station only at dusk. Referring to this apparent discrepancy, Sri Kurup submits that the General Diary was wrongly prepared. PW 31 says that the time noted in the General Diary was approximate and that was the time when the accused were returned to the police station for lunch after completing the recovery under Ext. P 6. In our view this is a reasonable explanation. Whatever it be, this discrepancy as such is not sufficient reason to suspect the correctness of the General Diary, or the bona fides of the investigation.

27. Sri Kurup submits that the recovery mahazars Exts. P 3, P 4, P 5 and P 6 which were prepared on 4-5-1981 were sent to the court only on 8-5-1981. Similarly Exts. P 7, P 8 and P9 which were prepared on 12-5-1981 were sent to the court only on 19-5-1981. Counsel submits that this inordinate delay is suggestive of a dishonest investigation. The delay, we agree, ought to have been avoided, but we are not satisfied that for that reason, the investigation can be characterised as dishonest. Nor are we satisfied that the cumulative effect of the various defects ought to be highlighted by the defence is to vitiate the trial or diminish the value of the evidence of the eye-witnesses.

28. It is unfair to criticise PW 1 for not going to the police station to give his information immediately after he left the hospital. He must have been so shocked and stupefied by what had happened. Two of his nearest relatives were murdered in his very presence in broad day light and he and his own brother could themselves have very well shared their fate as they were also like the deceased equally involved in the agricultural operation by means of a tiller. The assailants had as much reason to kill them as they had against the deceased. It is only natural that in that state of mind, PW 1 went home instead of going to the police station. But the information was given by him to PW 30 at the earliest possible opportunity, which was within a few hours of the incident; Sone Lal v. State of U. P. : 1978CriLJ1122 . We do not see any substance in the contention that the investigation was dishonest or the evidence relied on by the prosecution was tainted.

29. The salient features of the incident are spoken to alike by all the witnesses. This is a case where the prosecution places much reliance, and in our view rightly, on the testimony of persons who saw the incident at very close quarters. These witnesses appear to us as honest agriculturists engaged in the pursuit of their occupation in the most peaceful manner. We see no reason to suspect their credibility.

30. The learned Judge, in our view, acted wrongly and unreasonably in failing to appreciate the evidence of the eye witnesses merely because of certain defects or lapses which the learned Judge found in the investigation. While these defects or lapses, in our view, did not in any manner suggest that the investigation was dishonest or fraudulent or, considering the circumstances of the case, less than fair, we are of the view that the learned Judge placed too much importance on the investigation aspect of the case when (here was clear and unimpeachable evidence of the eye-witnesses. In a case such as this involving a number of accused, the learned Judge ought to have borne in mind the following principle stated by the Supreme Court in Bava Hajee v. State of Kerala : 1974CriLJ755 :.In such cases where a large number of persons arc involved and in the commotion some persons cause injuries to others and the evidence is of a partisan character, it is often safer for the Judge of fact to be guided by the compass of probabilities along the rock-ribbed contours of the case converging on the heart of the matter. Once the Court goes astray from the basic features of the case, it is apt to lose itself in the labyrinths of immaterial details, desultory discussion and vacillation arising from unfounded suspicions. This is exactly what has happened in the instant case. Despite the pains taken and the conscientious effort put in to write an elaborate judgment, the trial Judge had, as it were, missed the wood for the trees....

31. According to the informant, accused 4, 6, 8, 10 and 15 and about 60 other persons came to the field to prevent ploughing. This fact is spoken to by PWs. 1, 2 and 7, although PW 2 does not mention accused 11. All the eyewitnesses speak of these accused and others returning to the field about an hour later carrying deadly weapons like swords, daggers and knives. The accused to whom overt acts are attributed by the witnesses inflicted various injuries on the deceased as a result of which they died. There was thus an assembly of more than five persons who with the common object to commit the act of rioting, being armed with deadly weapons, caused the death of Rajan and Thankappan. All the persons who participated in the unlawful assembly shared the common object of the said assembly, which, as disclosed by the evidence, was undoubtedly to cause the murder of the two deceased, and all of them were equally guilty of the offence of murder. Each is equally guilty even if no overt acts are specifically attributed to some of them. Even assuming that some of the participants only shared the common object of stopping the ploughing, if necessary by the use of force, but not to cause the death of the victims, all the members of the assembly knew that, in prosecuting their common object, murder of their victims was likely to be committed, especially when some at any rate among them were armed with deadly weapons. Each member of that assembly was therefore liable for the acts committed by any other members: Bhe Ram v. State of Haryana : 1980CriLJ735 ; State of U. P. v. Mahendra Singh : 1975CriLJ425 and Bhajan Singh v. State of U. P. : 1974CriLJ1029 .

32. The fundamental question is whether all the 19 accused are proved beyond reasonable doubt to have been members of the unlawful assembly on that fatal day. Each of them who was a member was undoubtedly guilty of the offence of murder, but none whose membership is not proved beyond reasonable doubt shall be roped in for conviction.

33. The FIR (Exts. P1 and P1(a)) refers only to 9 accused specifically. They are accused 1, 2, 4, 6 to 10 and 15. There is no reference to accused 3, but only to his father who was apparently not alive at the time of the incident. Accused 5, 11 to 14 and 16 to 19 are not mentioned in the FIR, At the time of the inquest PW4, an eye witness, was one of the persons examined. The identity of accused 5 as one of the assailants was not revealed at that time. In the F.I. Statement overt acts are attributed only to accused 1, 2 and 4, apart from accused 10 who is stated to have thrown a stone at Rajan: although it missed him. In the inquest reports, Exts. P10 and P11, overt acts are attributed only to accused 1 to 4, apart from accused 11 who threw a stone at Rajan, but missed him, accused 7 who shouted 'kill him', meaning Rajan, and accused 6 who beat Thankappan with a cycle chain. While accused 3 is excluded from the FIR, strangely enough, in the inquest report (Ext. P10), accused 3 was originally mentioned as Sreedharan, but amended by an interpolation (Unni, son of Sreedharan). The fact that in the earliest information given to the police by PW1, who witnessed the whole incident, accused 3 and 5 are omitted and the overt acts resulting in injuries are attributed only to accused 1, 2 and 4, and the further fact that accused 3 is mentioned in the inquest report, prepared on the basis of the evidence given by one of the eye witnesses (PW 4) on the day following the incident, only by means of an interpolation, and fails to mention accused 5, indicate that accused 1, 2 and 4 are the very persons who loomed large in the memory of these two witnesses. During the day of the incident and the day following, if accused 5 was not remembered by two of the eyewitnesses, it would not be safe to convict him. Likewise if there is no mention of accused 3 in the FIR, and, even in the inquest report, prepared on the day following the incident, reference to him is by means of an interpolation, it would be unsafe to convict him. Significantly in the witness box there was confusion in the mind of PW1 as regards the weapons used by accused 3 and 5. He referred to accused 3's weapon as M.O.3 dagger which is the weapon attributed to accused 5, but later he corrects himself and says that accused 3 wielded M.O. 5 knife.

34. In the cose of accused 1,2 and 4, there is no room for reasonable doubt as regards their guilt. Their names appear unequivocally in the FIR and the inquest reports. Their overt acts are also specified in these documents. The injuries seen in the postmortem certificates, and as spoken to by the doctor, PW 27, Hilly support the oral evidence against them. While accused 1 inflicted the fatal injury on Rajan, accused 4 inflicted the fatal injury on Thankappan. Accuseds wielded his weapon against both causing injuries. The prosecution has proved the case against these three persons beyond reasonable doubt.

35. Accused 6 is mentioned in the FIR, Exts. P1 and Pl(a), as well as in the inquest reports, but significantly his overt acts are not mentioned in the FIR. He is alleged to have beaten Thankappan with a cycle chain. Injury No. 1 which is a V-shaped contusion over the lateral aspect of the left upper arm of Thankappan is attributed to the 6th accused. The doctor, PW27, in his cross-examination, says that injury No. 1 could be caused either by the blunt edge of a weapon or by a sharp pointed weapon. That injury could therefore have been caused as much by the cycle chain as by any other weapon. In the circumstance, we feel that the benefit of doubt must be given to accused 6, for it is quite possible that in the midst of all the chaos and confusion, and when the victims were being stabbed by accused 1, 2 and 4, the witnesses would not have focussed their attention on accused 6 and noticed the minor act of beating.

36. Asregards the rest of the accused, we are of the view that it will be unsafe to convict them, although it is proved beyond reasonable doubt that there was an unlawful assembly of more than five persons acting in prosecution of the common object. The only overt acts attributed to these remaining accused are either pelting stones, or shouting or kicking. Their overt acts are not supported by the medical evidence. It is not likely that the witnesses would have in the midst of all the confusion concentrated their attention on persons other than the principal actors to identify each of them with the weapon attributed to him. It is not beyond reasonable doubt that the witnesses would have correctly remembered these persons holding the alleged weapons or doing the alleged acts. The alleged weapons were recovered from the houses of accused 3, 5, 6, 7 and 9, on the basis of information received from them. That fact alone, in the circumstances of this case, would not enable one to come to the conclusion that these accused have been correctly identified and implicated beyond reasonable doubt.

37. In the circumstances we dismiss the appeal against accused 3, 5 and 6 to 19.

38. For the reasons stated by us, we hold that the prosecution has proved beyond reasonable doubt that accused 1, 2 and 4 along with other unidentified persons formed themselves into an unlawful assembly, being armed with deadly weapons, and in prosecution to the common object of the unlawful assembly caused the death of Balakrishna Menon (Rajan) and Sankarankutty Menon (Thankappan). Accordingly we convict accused 1 and 4 for the offence punishable under Section 302 and also for the offence punishable under Section 302 read with Section 148, I.P.C. and we convict accused 2 for the offence punishable under Section 302 read with Section 149, I.P.C. and on each count we sentence each of them to imprisonment for life. Each of these accused is also convicted under Section 148, I.P.C. and sentenced to undergo imprisonment for a term of two years. These sentences shall run concurrently. The appeal by the State is accordingly allowed in the above terms in respect of accused 1, 2 and 4.

The learned Sessions Judge shall issue warrant for the arrest of accused 1, 2 and 4 in terms of Section 418, Cr. P.C.


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