Leen Mariyan @ Sasi vs State Of Kerala

Ziyad Rahman A.A., J.

The appellants in these appeals are accused Nos. 2, 3, 5, 6, 7 and 8 in S.C.No.1271 of 2004 on the file of the Additional Sessions Court-I, Thiruvananthapuram. Eight persons were charge sheeted by the prosecution for the offences punishable under Sections 143, 147, 148, 302 and 307 read with Section 149 IPC.

The prosecution case in short is as follows; On 26.08.2001 at about 6.30 p.m the accused persons, on account of the previous animosity towards Bosco (the deceased) and PW16 Herbart, in prosecution of their common object, armed with deadly weapons like iron bars, sword etc, formed themselves into an unlawful assembly, committed the murder of the said Bosco, and caused serious injuries on PW16. Specific overt acts were that, the 2nd accused attacked Bosco with an oar, the 4th accused attacked him with an iron rod and the 5th accused had also attacked the said Bosco with a wooden stick (kuruthadi). Accused Nos.6 and 7 have attacked PW16 with iron rods. When PW16 attempted to ran away to escape from the assault, A8 attacked him with an oar. The allegation against the 1st accused was that, it was under his leadership the assault was committed and he instigated the other accused to commit the said offences. Because of the injuries, Bosco passed away. PW16 sustained injuries and was admitted in Medical College Hospital, Thiruvananthapuram.

Based on the First Information Statement furnished by PW1, Crime No.105/2001 was registered by Thumba Police and after completing the investigation, PW15 submitted the charge sheet. In support of the prosecution, they examined PWs 1 to 16, marked Exts.P1 to P41 and MOs 1 to 12. During trial, the 4th accused passed away and accordingly charge against him got abated. After the closure of prosecution case, the incriminating materials brought out in the trial were put to the accused while they were questioned under Section 313 Cr.P.C and the same were denied by them. From the side of the defence DW1 and DW2 were examined.

After evaluating the entire materials brought on record, the Sessions Court found the 1st accused not guilty. However, accused Nos.2, 3, and 5 to 8 were found guilty of the offences and were sentenced to undergo rigorous imprisonment for life and fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for one year each for the offences punishable under Section 302 read with Section 149 IPC, rigorous imprisonment for five years each and a fine of Rs.25,000/- each with a default sentence of rigorous imprisonment for four months each for the offences punishable under Sections 307 read with Section 149 IPC, rigorous imprisonment for six months each for the offences punishable under Section 148 read with Section 149 IPC and rigorous imprisonment for two months each for the offences punishable under Section 143 read with Section 149 IPC. It was also ordered that the substantive sentence shall run concurrently.

Crl.Appeal No.111 of 2017 is filed by the 2nd accused, Crl.Appeal No.788 of 2016 is filed by accused Nos.3 and 8, Crl.Appeal No.777 of 2016 is filed by accused Nos.5 and 7 and Crl.Appeal No.858 of 2016 is filed by accused No.6.

Heard Sri.B.Ramanpillai, learned Senior counsel appearing for accused Nos.5 and 7, Sri.Ravikrishnan, learned counsel appearing for accused No.2, Sri.S.Rajiv, learned counsel appearing for accused Nos.3 and 8, Smt.K.Kusumam, learned counsel appearing for accused No.6 and Sri.Alex M.Thombra, learned Public Prosecutor. Sri.B.Raman Pillai, learned Senior counsel appearing for the 5th and 7th respondents would contend that the prosecution failed in establishing the guilt of the accused persons as their case is full of inconsistencies. There are certain glaring irreconcilable differences between the First Information Statement (FIS) and the evidence adduced by the prosecution, particularly with the evidence of eye-witness; PW1 and PW16, as regards the number of persons, who committed the assault, weapons used and also with regard to the motive alleged by the prosecution. There are serious omissions on the part of the prosecution in examining certain material witnesses. The recovery effected under section 27 of the Evidence Act was also  not  proper.  In  support  of  his  contentions,  the  learned counsel relies upon the judgments reported in Ram Kumar Pande v. The State Of Madhya Pradesh [AIR 1975 SC 1026], State of Orisa v. Simanchal Gouda and Others [1997 KHC 2952] =[1997 CriLJ 1816].

Sri.Ravikrishnan, learned counsel for the 2nd accused would contend that the prosecution has suppressed material facts. Evidence of PW16 and PW1 cannot be relied upon as there are glaring inconsistencies. Even though PW16 claimed that he was attacked by the accused persons by using iron rod and wooden sticks and was inflicted with blows all over his body, Ext.P9 and P10 treatment records would reveal that only two injuries were sustained by him. He also points out that Exts.P9 and P10 medical records are not reliable because it was not proved through the person who prepared the same. Similarly, the contents of the same would indicate that there is a correction in the name of the patient; initially the name was mentioned as 'Santhosh' and thereafter it was corrected as 'Baiju', the name of PW16. Similarly, the cause of injuries mentioned in the medical records was, due to the assault by Bosco (deceased). The learned counsel placed reliance upon judgments in Rai Sandeep @ Deepu and Another v. State of NCT of Delhi [(2012) 8 SCC 21], Ishwar Singh v. State of U.P [(1976) 4 SCC 355], Hem Raj v. State of Haryana [(2005) 10 SCC 614], Joginder Singh v. State of Haryana [(2014) 11 SCC 335], Bir Singh and Others v. State of U.P [(1977) 4 SCC 420].

Sri.S.Rajiv, learned counsel appearing for respondent Nos.3 and 8 contends that the prosecution has not placed the entire facts before the Court. As against the 3rd accused, no specific overt act was alleged in the charge sheet. He was convicted only with the aid of Section 149 IPC. The only material in the prosecution evidence indicating the common object is the words allegedly used by the 1st accused to instigate the other accused persons; which accused stood acquitted. Even though the prosecution projected the motive as rivalry between local people belonging to South Thumba and Valiyaveli, there are no materials to establish the same and PW1 and PW16 have specifically denied the said aspect. In such circumstances, offences punishable under Section 149 Cr.P.C is not attracted and consequently, there are no grounds for convicting accused No.3. The learned counsel would further argue that as against the 8th accused the only allegation is causing injury to PW16, for which he cannot be convicted for the offence under section 302. No recovery has been effected from 8th accused to establish his connection with the crime. The learned counsel relies upon the judgments reported in Kareem and Others v. State of Kerala [2019 (3) KHC 369], Rajendra Shantaram Thodankar v. State of Maharashtra and others [(2003) 2 SCC 257], Kuldip Yadav and Others v. State of Bihar [(2011) 5 SCC 324].

Smt.K.Kusumam, learned counsel appearing for the 6th accused contends that as per Ext.P1 First Information Statement, the 6th accused attacked PW16 with an iron rod along with the 8th accused. PW16 has also stated that while he was being attacked, he had blocked the blows by using his hands. However, the treatment records of PW16 would reveal that, he has not sustained any injuries on his hands or any other parts of the body and the injuries are on his head. It is evident from Ext.P9 medical record of PW9 that he was conscious and oriented while he was admitted. The cause of injuries shown is assault by Bosco (deceased). According to the learned counsel, these discrepancies reveal the falsity of the case of prosecution. The learned counsel relies upon the judgments reported in Sabu and Others v. State of Kerala [2016 (4) KHC 426], Hariharan P.A. v. State of Kerala [2021(3) KHC 85] and Vinodan v. State of Kerala [2020 CriLJ 4590].

When coming to the merits of the case, the first aspect to be examined is as to whether the death of the deceased was a homicide or not. To prove the same, crucial evidence is that of PW8, the doctor who conducted the postmortem of the deceased and prepared Ext.P5 postmortem certificate. As per his finding, the body examined by him was that of a moderately nourished adult male of height 160 cm. He noticed the following injuries:

"1. Lacerated perforating wound 2.5 x 0.5 cm, horizontal, through the right ear lobe, 1 cm below its top margin.

Abrasion 0.5 x 0.2 cm on the forehead, 2 cm to the right of middle and 4 cm above the eyebrow. Contusion of scalp 1 x 1 x 0.5 cm underneath.

Abrasion 1.2 x 0.2 cm on the left side of forehead, 1.5 cm above the outer end of left eyebrow.

Abrasion 3 x 0.7 cm to 2 cm, horizontal, on the left side of face, 2.5 cm outer to the eye.

Lacerated wound 4.5 x 0.5 x 0.8 cm, horizontal, over the lower part of left side of root of nose and involving the bridge, with an abraded contusion 5 x 1 x 0.5 cm, horizontal, 0.5 cm outer to and in line with it.

Lacerated wound 1.8 x 0.2 x 0.9 cm nearly horizontal on the left side of chin, its inner end 2 cm to the left of middle and 2.5 cm below the tip with a contusion 10 x 1 to 2 x 0.5 cm nearly horizontal extending from its outer border.

Contusion 8 x 0.5 x 0.5 cm, horizontal, on the left sided of neck, 2 cm below the ear, the front end merging with the lower margin of injury No.6.

Lacerated wound 3.5 x 0.5 x 0.6 cm, oblique on the left side of head just above the upper end of the ear. Contusion of left temporalis muscle underneath.

Lacerated wound 6 x 1 cm, bone deep on the back of head, oblique, its back lower end 6 cm behind and 3.5 cm above left ear.

Contusion 7 x 6.5 x 2 cm on the right side of face, just outer to the eyebrow. Subarachnoid bleeding seen on the surface of brain, in the ventricles and around the brain stem (thick) with flattering gyri and obliteraction of sulci.

Abrasion 2 x 0.2 cm, horizontal, on the back of trunk, 6 cm to the right of midline and 7 cm below shoulder.

Abrasion 2 x 0.7 cm on the back of trunk, 4 cm to the left of midline, 24 cm below the shoulder.

Abraded contusion 4.5 x 3 x 0.5 cm oblique on the back of trunk, its lower inner end 8 cm to the left of midline and 13 cm above top of hip bone.

Contusion 8 x 3 x 1 cm, oblique on the back of trunk, its lower inner end 5 cm to the left of midline, and 8 cm above top of hip bone.

Contusion 5 x 2.5 x 1 cm, horizontal on the back of trunk 1 cm to the right of midline and 6.5 cm above top of hip bone.

Contusion 5 x 2 x 1.5 cm oblique, on the back of turnk 7 cm to the left of midline and 9 cm below shoulder.

Abraded contusion 2 x 1.2 x 0.5 cm, oblique, on the back of left fore arm, 10.5 cm above the wrist.

Abraded contusion 1 x 0.5 x 0.5 cm on the back of root of left thumb.

Lacerated wound 2.5 x 0.2 x 0.2 cm on the outer aspect of left ankle."

The cause of death was due to the blunt injuries sustained on the head of the deceased. Injury Nos.1, 2, 5 to 8 and corresponding internal injuries to the patient were sufficient in the ordinary course of nature to cause death. The weapons marked as MOs 4 to 11, were shown to PW9 and after examining the same, he deposed that injury Nos.1 to 19 were possibly by those weapons. Several suggestions were put to him by the defense as to the cause of injuries and the manner in which such injuries would have sustained, but he ruled out all other possibilities and asserted that the death was due to the injuries mentioned above, which could be caused by the weapons mentioned above. From the said materials, it can be safely concluded that the death of the deceased was a homicide. Thus, the next question to be considered is as to whether such homicide was committed by the persons accused by the prosecution in the manner as highlighted in the prosecution case.

The proceedings commenced on the basis of First Information Statement [Ext.P1] given by PW1 to PW10. In Ext.P1, PW1 has stated that he is an autorikshaw driver and on 26.03.2001 at 6.15 p.m, while he along with his friend Laju was going to Pettah; when they reached in front of the meat shop situated near to Valiyaveli Church, he saw the deceased and PW16 (Baiju) assaulting one Sony. Immediately they stopped the vehicle and got down. At that point of time, Bosco (deceased) attacked Sony with a sword which was blocked by Sony with his left hand, thus sustaining an injury. Immediately, Laju, the person who accompanied PW1, intervened, removed the sword from the hands of the deceased and placed it on the platform of the scooter of the deceased, which was parked nearby. PW1 held back PW16 to prevent further attack on Sony. Thereafter, Laju pacified Sony and took him to his brother Benjamin's house situated nearby. When they were about to leave, a group of people consisting of about 20 members, under the leadership of A1, reached there with weapons such as oar, iron rod, wooden stick etc. They shouted, threatened and attacked deceased Bosco and PW16 Baiju. The 2nd accused inflicted a blow on the head of deceased with an oar. The 3rd accused attacked PW16 with an oar. The 4th accused inflicted a cut on the head of Bosco with a sword. Accused No.5 hit on the back of deceased with a wooden stick. Accused Nos.6 and 8 attacked PW16 with an iron rod and when PW16 attempted to run away from the spot to escape the assault, he was attacked by the 7th accused along with ten other unidentified persons with weapons. It was also stated that when Laju attempted to rescue the deceased and PW16, he was also attacked by the accused persons, in which assault he sustained injuries on his elbow. He was also inflicted with blows on his back by Accused No.7. In order to escape from the assault, he ran away. By that time, the deceased and PW16 fell down and the accused persons together showered blows repeatedly upon both of them using their respective weapons. When they became motionless, the accused persons retracted, under the impression that their victims died and immediately thereafter, PW1 along with Rajan and Justine had taken Bosco and PW16 in PW1's autorikshaw to the Medical College Hospital for treatment. When they reached the hospital, the doctor who examined the deceased declared him dead. PW16 was admitted to ward No.6 of the Medical College Hospital as he sustained very serious injuries. It was also submitted that the attack was on account of the rivalry between the residents of South Thumba and Valiyaveli. The deceased attacked Sony who belonged to Valiyaveli and in retaliation, the accused attacked the deceased and PW16, who were from South Thumba.

While the first informant was examined by the prosecution as PW1, there were some marked deviations from Ext.P1 First Information Statement. Even though in Ext P1, PW1 stated that, among the weapons used, there was a sword, which was used by the 4th accused for inflicting an injury on the head of the deceased, nothing was mentioned about the same in the evidence of PW1. Before Court, according to him, the 4th accused assaulted the deceased with an iron rod. Similarly, even though it was stated in Ext.P1 First Information Statement that apart from the eight accused, ten others also participated in the assault, while being examined as PW1, it was categorically stated that only the persons arraigned as accused took part in the attack. He specifically denied any statement having been made before the police to the effect that there were ten more persons in the attack. Another deviation from Ext.P1 is that, in the deposition PW1 has stated that the 1st accused had also attacked Bosco by using an oar. On the other hand, the role of 1st accused mentioned in Ext.P1 is that he instigated the others to commit the crime and there was no specific overt act of assault against him in Ext P1 FIS.

Another crucial ocular evidence is that of PW16, who sustained injuries in the assault. His deposition, would reveal serious embellishments and improvements from the prosecution case and it is also inconsistent with the evidence of PW1 in material particulars. He mentioned a series of events which do not form part of the prosecution case, that occurred just before the subject incident. When we examine the said evidence, the picture that is revealed about the sequence of events is completely different. According to him, on 26.08.2001 at 3.30 pm, he along with his friends Bosco, Boban and Binu were consuming alcohol on the shores of 'Parvathiputhanar' river. At that time, a country boat belonging to the 8th accused was lying there. They took the said country boat and for fun started rowing the same through the river. The 8th accused came and objected to the same, but they turned a deaf ear to his protestations. The 8th accused immediately called Augustine, the elder brother of Bosco and sought his help. Augustine came immediately and as instructed by him, the deceased and PW16 handed over the boat to the 8th accused. Thereafter, PW16 and deceased Bosco went near the wife house of Augustine, where he met the 8th accused and there was some exchange of words between them and eventually it developed into a scuffle. The 3rd accused also came to the spot and there occurred a scuffle between PW16 and himself. Thereafter, when PW16 and Bosco were returning, they had seen Sony coming from the side of Pettah on his scooter. Bosco asked him to drop PW16 to Thumba Junction but the said Sony stated that he was not going there and refused to do so. Later, they took the scooter of Bosco and while they were going to Thumba, Sony came from the opposite side. On seeing Sony, Bosco stopped his scooter and hit Sony. Immediately, PW1 and Laju came and intervened in the matter. Sony was taken by Laju to his relative's house nearby. Thereafter, when they were about to return, the accused persons came with oars, iron rods and wooden sticks and attacked them. The 2nd accused Eappen inflicted a blow on the back of the head of Bosco with an oar. The 3rd accused attacked PW16 with an oar which resulted in a serious injury. The 6th and 8th accused attacked PW16 with an iron rod and when he tried to block the blows, he sustained injuries on both the elbows. Accused No 5 Rajan attacked Bosco and PW16 by using a small wooden stick (broken piece of oar). The 7th accused attacked him with an iron rod. The allegation against 4th accused was that he assaulted Bosco with an iron rod. It was also stated that when they had fallen on the ground, the accused repeated the assault by incessantly showering blows using their respective weapons. Because of the blows, PW16 became unconscious and when he opened his eyes, he was at Medical College Hospital and was undergoing treatment. He continued his treatment at Medical College Hospital for six days and thereafter he continued his treatment in Veli Health Centre. Later, it was known that Bosco died due to the injuries sustained. He identified the weapons used by the accused persons as MO4 to MO11.

The contents of Ext.P1 F.I.statement and the evidence of PW1 as well as PW16 clearly reveal some glaring inconsistencies. In Ext P1 FIS, it is mentioned that the 4th accused assaulted Bosco with a sword. However, in the evidence of PW1 and PW16, they have categorically stated that a sword was not among the weapons used. The incident deposed by PW16, which occurred before the assault; which according to him led to the assault and the death of Bosco, is yet another aspect. PW16 clearly deposed about the incident of taking country boat belonging to the 8th accused by deceased and PW16, and the events which ultimately led to the scuffle between PW16 as well as the deceased, with A8 and A3. From the deposition of PW16, it is evident that, the chain of events commenced from the said incident and it ultimately led to the assault, but the prosecution never mentioned any thing about such incident. This casts a serious doubt on the veracity of the prosecution case and strenghten the case of the appellants that the prosecuion has not brought the entire facts before court, and thus failed to establish the entire chain of events. Another crucial discrepancy is the manner of attack on Sony. PW1 has stated in Ext.P1 F.I. statement as well as in his depositions that, Bosco had attacked Sony with a sword and immediately Laju who was accompanying PW1 intervened and forcibly took the sword from him and kept the same on the platform of the scooter of Bosco. However, PW16, even though mentioned about the assault on Sony, he categorically denied the use of any weapon by Bosco while assaulting Sony. This shakes the credibility of PW16, particulary because the evidence of PW1 on this point is very specific and it runs counter to the version of PW16.

Another instance which makes the evidence of PW16 more suspicious is his version regarding the role of the 1st accused. As per prosecution case, the role of the 1st accused was confined to instigating the other accused persons to commit the crime and no specific overt act of assault was alleged against him. However, the evidence of PW16 would reveal that he is imputing overt acts on all the persons including the 1st accused and it suggests an eagerness on the part of PW16 in seeing all the accused punished. The rivalry maintained by PW16 as against the accused persons is a fact which is clearly evident from the materials. In such circumstances, the aforesaid acts coupled with the sequence of events which occurred prior to the assault on Bosco by accused persons would clearly create a shadow of doubt as to the veracity of PW16. The relevance of the said aspect is very high, when the said events are considered in the light of failure of the prosecution to establish the motive suggested by them. As mentioned above, the motive highlighted by the prosecution for commission of crime is the previous animosity between the factions of local people in South Thumba and Valiaya Veli. However, in the evidence of PW16, it was clearly denied. The sequence of events as revealed from the evidence of PW16 is to some extent supporting the case advanced by the accused that Bosco was the aggressor right from the inception and after consuming alcohol, he was creating problems in the locality.

With regard to the evidence of PW16, another crucial aspect is the nature of injuries sustained by him. Going by the version as revealed from PW1 and PW16, he was brutally attacked by all the accused persons with weapons such as, wooden sticks, iron rod, oars etc. and several blows were inflicted all over his body. PW16 has also stated that, he blocked the assaults with his hands. But it is seen from the medical records that he sustained only two injuries on his head. If he was subjected to such a brutal attack by all the accused persons with the weapons recovered, there must have been injuries all over his body.

The discrepancies in the medical records of PW16 also makes the prosecution case weak. Ext.P9 is the medical records which indicate the admission of PW16 in the Medical College Hospital, Thiruvananthapuram upon being inflicted with injuries. In Ext P9 OP ticket as well as the treatment summary sheet, initially the name of the patient was mentioned as Santhosh and it was subsequently corrected as Baiju, the name of PW16. PW15 investigating officer attempted to clarify it by stating that it was the mistake occurred when completing the admission procedure of PW16 and the name that was originally mentioned (Santhosh) was that of one of the persons accompanied him to the hospital. However, it is evident from OP ticket, which forms part of Ext.P9 that, PW16 was brought to the hospital by Edward, PW1. In the FIS as well as in his deposition, PW1 had categorically stated that he had taken PW16 in his autorikshaw along with Rajan and Stephen, and the name of Santhosh was no where specified in any of the records. The Santhosh as mentioned by the Investigating Officer was also not examined by the prosecution. Another crucial aspect which creates doubt on the prosecution case in this regard is the cause of injury. The cause of injury mentioned in OP ticket is, history of assault at Valiyaveli at 7 p.m by his friend Bosco. The learned Public Prosecutor attempted to explain the same by submitting that it could have been a mistake as PW16 was unconscious and information must have been furnished by some other person who accompanied PW16. But the evidence clearly indicates that PW16 was brought to the hospital by none other than PW1 and according to PW1, in the FIS and before Court, it was the accused who caused the injuries on PW16. Yet another inconsistency is regarding the consciousness of PW16 at the relevant time. Even though it was claimed that he was not conscious when he was brought to the hospital, as PW16 himself has stated about the same, the summary sheet which forms part of Ext.P9 would show otherwise. The said document contains a specific entry to the effect that the patient was conscious and oriented at the relevant time. If the patient was conscious definitely the history noted by the Doctor would be as spoken of by him. This is another instance which throws suspicion on the veracity of the prosecution case. Similarly, the prosecution failed to obtain and produce the wound certificate of PW16, despite the fact that even as per the entries in the treatment records in the hospital(Exts.P9 and P10), the injuries sustained by PW16 was due to an assault. As it being a medico- legal case, it was the bounden duty of the investigating officer to obtain a wound certificate but he failed to do so. In our view when the evidence of PW16 is weighed as a whole, in the light of the above serious discrepancies, it is highly unreliable.

In order to substantiate the contention regarding the discrepancy in the evidence of PW1 and the marked deviations from Ext.P1 First Information Statement, judgment reported in State of Orissa v. Simanchal Gouda and others [1997 CriLJ 1816] was relied on.  The aforesaid judgment was rendered by Orissa High Court, wherein at paragraph No.9, it is mentioned as follows:

"9. Though as rightly submitted by the learned counsel for the State, first-information-report is not expected to be an encyclopaedia of the factual background, yet when the version given in it is substantially at variance what is deposed in Court, that becomes a relevant factor in adjudicating the guilt or otherwise of an accused the explanation for delay in submission of the first-information-report is to be considered, and the reasons indicated, are to be scrutinised in detail. It is normal human conduct that when a murder has taken place more particularly of a relative, law is to be set into motion immediately. If it is not done, a doubt arises about possibility of false implication and embellishment. That is why acceptability of the explanation becomes important. In the case at hand, reasons given for delayed submission of the FIR are dearly unacceptable, and the learned trial Judge has come to right conclusion about it being a suspicious circumstance. It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with undisputed facts the 'credit' of the witnesses their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (See State of U.P. v. Krishan Gopal, AIR 1988 SC 2154: 1989 CriLJ 288)."

In this case, the evidence of PW1 is at variance with his FIS at material points, which can be summarized as follows:  (1) In FIS it is stated that the 4th accused attacked Bosco with a sword, where as when he was examined as PW1, the weapon alleged to have been used by the 4th accused is an iron rod. (2) He has stated in FIS that the attack was made by the accused persons along with a group of persons identifiable by sight, consisting of ten members. However, the evidence of PW1 does not contain any such statement and he asserts that the assault was committed by the accused persons only. (3) As per the contents of FIS, the 1st accused had not committed any assault on any of the persons but he only instigated the other accused to commit the crime. On the other hand, evidence of PW1 would indicate that he assaulted Bosco with an oar.

In the light of the above improvements and exaggerations, the evidentiary value of PW1 also comes under serious doubt, besides the doubt we expressed as to the veracity of evidence of PW16.  This is particularly because, the materials before us indicate that he was close to Bosco, the deceased.  In Rai Sandeep @ Deepu and Another v. State of NCT of Delhi [(2012) 8 SCC 21], the Honourable Supreme Court made observations regarding the credibility of the witnesses and the said paragraph reads as follows:

"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

When we apply the test as contained in the observations made by the Honourable Supreme Court as above, we are unable to place much credibility upon the evidence of PW1, due to the discrepancies mentioned above.

When we consider the evidence of PW1 and PW16 together, more inconsistencies are revealed. The major contradiction between the said witnesses is that PW16 stated that, before the incident which resulted in the assault of Bosco, he along with Laju found Bosco attacking Sony. According to PW16, in the said attack, Bosco had not used any weapon, whereas the version put forward by PW1 is that he attacked Sony with a sword and Sony sustained injuries in his hand when he prevented the assault. PW1 even stated that Laju had taken the sword from Bosco to prevent him from inflicting any further injury on Sony and kept the sword on the platform of the scooter of Bosco. The aforesaid contradiction is a material deviation, and it is fatal to the prosecution case. When the aforesaid contradiction is considered along with the other inconsistencies in the prosecution case, which we have already dealt with while discussing the evidence of PW16, prosecution gets weakened further.

Another contention put forward on behalf of the appellants is with regard to the recovery of weapons. It was contended that, even though the recovery of weapons materialized consequent to Ext.P4 series of confession statements of accused Nos.2 to 6, the same cannot be accepted as it lacks evidentiary value. It was contended that, it was a joint confession statement and therefore, individual responsibility cannot be attributed to the accused. However, from the perusal of Ext.P4 series of confession statements, it can be seen that, even though the recovery of weapons were effected from the very same place simultaneously, the said recovery was effected through separate confession statements specifically recorded in respect of all the said accused persons. The aforesaid recovery stands proved as per the evidence of PW6, who affixed the signature in Ext P4 mahazer. However, in our view that by itself is not sufficient to indicate the involvement of the accused persons; recovery, by itself, being inherently a weak piece of evidence. Unless there are other circumstances, it cannot be concluded that those are the weapons used for commission of the offences or that the accused used it. The evidentiary value of articles recovered through the confession statement of the accused, was considered by the Privy Council, in the celebrated case of Pulukuri Kottaya and others v. The King-Emperor (AIR 1947 PC 67). After referring the stipulations in section 27 of the Evidence Act, it was observed as follows;

"............The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into section 27 something which is not there and admitting in evidence a confession barred by section 26. Except in cases in which the possession, or concealment , of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of fact forms the foundation of the prosecution case. It is only one link in the chain of proof and the other links must be forged in manner allowed by law."

Thus, in order to complete the chain of circumstances, there must be some evidence to indicate that the weapons recovered through the confession statements of the accused persons were used for commission of crime. When we examine the materials available on record, we are unable to find any materials indicating the use of the said weapons for commission of the crime; scientific or otherwise. It is true that, PW1 and PW16 have identified the aforesaid weapons. However, we have already discussed about the serious discrepancies in the evidence of PW1 and PW16 and the unreliability of their evidence consequent to such contradictions in material particulars. It is also found that the aforesaid weapons were not subjected to any forensic examination as well. It is true that, PW8 doctor opined that the injuries of the deceased could be inflicted by the said weapons, but in the absence of any direct evidence that alone cannot lead to inculpation of the accused.

In this regard, the contention put forward by the appellants with regard to the delay in forwarding the aforesaid weapons to the court and the lack of explanation on the part of the prosecution for such delay is very much material. As per Ext.P4 seizure mahazar, it is evident that the recovery was effected on 04.09.2001. However, Ext.P27 list of property would indicate that the same was forwarded to the jurisdictional Magistrate only on 29.09.2001. It was strongly contended by the accused that the other material objects including the personal belongings of the deceased which were recovered by the prosecution was forwarded to the jurisdictional Magistrate as per Ext.P24 forwarding note dated 11.09.2001. Even though, the said delay would not be of much significance under normal circumstances, in this case, considering the discrepancies as highlighted above and the lack of any other materials to connect the said weapons with the commission of crime, the delay which remain unexplained, creates serious shadow of doubt on the prosecution case.

Another contention put forward by the appellants is that, the prosecution has not submitted the entire facts before the court. To substantiate the same, appellants have brought our attention to the evidence of PW16, wherein he narrates the sequence of events such as the dispute and consequent scuffle which he and the deceased has with the 8th accused, which stemmed from the act committed by PW16 and Bosco of using the country boat of the 8th accused without his permission. This incident has a material impact on the prosecution case, as it clearly indicate a rift between the parties and despite the same the prosecution has not gone into the said aspect and failed to examine any of the witnesses to prove the same. In normal condition the aforesaid incident would have been very crucial to form the motive behind the commission of the crime. However, no attempt was made by the prosecution to prove the said incident by citing any of the witnesses, and thus a serious flaw has been committed by the prosecution.

Similarly, apart from the material discrepancies found in the medical records which we have already discussed above, the nature of injuries sustained by PW16 also creates suspicion on the prosecution case. As mentioned above, going by the evidence of PW1 and PW16 the accused have incessantly inflicted injuries all over the body of PW16 using all sorts of weapons, but the injuries of PW16 noted are only two in number that too on the head. Similarly, it is discernible from the records that the doctor who originally prepared the aforesaid medical records is no more. However, the prosecution has not examined any competent person to prove the execution of the said document. PW12 who was examined to prove the same could not identify the signature of the doctor who prepared Exts.P9 and P10. We have already discussed in detail about the discrepancies relating to the correction of the name of the patient and cause of injury being recorded as the assault by Bosco. Despite having such serious discrepancies in medical evidence, no proper witnesses have been examined by the prosecution to prove the medical records. In Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6 SCC 145], the Honourable Supreme Court observed as follows:

"........It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap of infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material........"

In the light of the observations by the Honourable Supreme Court, the non-examination of material witnesses to explain the serious discrepancies in the medical records and also the failure on the part of the prosecution to place on record the entire sequence of events as revealed from the evidence of PW 16, are very crucial. In our view it amounts to serious flaw on the part of the prosecution in presenting the case truthfully and thereby establishing the guilt on the accused persons, beyond reasonable doubts.

With regard to the role of accused Nos.7 and 8, it is discernible from the records that, even though the prosecution alleged that they have also participated in inflicting the assault on the deceased and PW16 by using weapons, no recovery has been effected from them. In such circumstances, the only material against them is the evidence of PW1 and P16. We have already found that their evidence is not reliable because of glaring inconsistencies mentioned above. On behalf of the 3rd accused, it was contended that the only allegation against him is inflicting assault on the body of PW16. Despite the same, the Sessions Court found him guilty under Section 302 IPC with the aid of Section 149 Cr.P.C. The learned counsel for appellants would contend that the only circumstance which was relied upon by the prosecution to draw a common object is the words used by the 1st accused, instigating the other accused persons to kill the deceased and Pw16. It was pointed out that the 1st accused is already acquitted by the Sessions Court and in the light of the above, his conviction under Section 302 IPC with the aid of Section 149 Cr.P.C is not sustainable. The learned counsel relies on the judgment in Kuldip Yadav and Others v. State of Bihar [(2011) 5 SCC 324], wherein, in paragraph No.26 it is observed by the Honourable Supreme Court as follows:

"26) The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149, essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal and Others vs. State of Bihar [(1981) 2 SCC 755].

In Rajendra Shantharam Todankar v. State of Maharashtra and others [(2003) 2 SCC 257], in paragraph No.14, the Honourable Supreme Court held as follows:

"14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly nevertheless the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the Court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 either clause is attracted and the Court is convinced, on facts and in law both, of liability capable of being fastened vicariously by reference to either clause of Section 149 of IPC merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act. These principles are settled. Applying these tests to the facts found proved beyond reasonable doubt the accused nos.1 to 5 can be held liable for the offence under Section 302/149 IPC for the assault resulting in death of Gopi Krishna while accused nos. 6 and 7 can be held liable for their individual acts of assault committed on Sanjay Patil."

In the light of the observations made by the Honourable Supreme Court, we find some force in the contention put forward by the learned counsel in this regard. There are no materials before us to arrive at a finding that, all the accused persons, for prosecuting a common object, have committed the acts alleged. The prosecution has failed in establishing the motive of commission of the crime which was rivalry between two factions of people and it was this motive which formed the basis of prosecution case for incorporating section 149. As the prosecution failed in establishing the said motive, we have no reason to find any common object for the accused persons. Similarly another possibility to establish the common object was the words used by the 1st accused, but since the said accused is already acquitted a finding of commission of offence under section 149 IPC by basing on the same, is not possible. PW16 stated about certain previous incidents of scuffle between PW16 and deceased on one side and 8th accused on other side, which could have possibly explained the motive, but no further evidence was adduced by the prosecution in this regard and PW16, we found to be unreliable. The prosecution completely ignored the said possibility and no witnesses were examined to establish the same. In such circumstances, the finding of the trial court holding the accused guilty of Section 149 Cr.P.C is not sustainable as no common object can be inferred from the materials available on record.

When all the above material aspects are taken into consideration, we find that the prosecution miserably failed in establishing the guilt of any of the accused persons, beyond reasonable doubt. The crucial evidence relied on by the prosecution was that of PW1 and PW16, which we found not reliable for various reasons as highlighted above. There is failure on the part of prosecution in presenting the entire sequence of events and citing proper witnesses to establish the chain of circumstances. No motive also could be established, which would not have been very crucial under normal circumstances, but in the light of the serious disparities in evidence we have already dealt with in detail, it provides for sufficient room for a reasonable hypothesis of innocence of the appellants. Thus, the materials before us compel us to arrive at the finding that the appellants are not, from the evidence led, found guilty of any of the offences alleged against them.

In the above circumstances, we allow these appeals by setting aside the finding of conviction and consequent sentence imposed upon the appellants herein, by the Court of Additional Sessions Judge-I, Thiruvananthapuram as per judgment dated 30.07.2016 in SC 1271/2004. The appellants shall be set at liberty forthwith, unless their presence is required in connection with any other case.