State of Kerala vs Bhasi and Others

R. Basant, J.—An incident took place on 29/3/1993 at and near the courtyard of the house of P.W.1. Allegations and counter allegations were raised by the rival contestants in respect of that incident. Raveendran - the deceased, suffered injuries in such incident and succumbed to such injuries. A1 and A3 suffered injuries and they were admitted to the hospital for treatment of such injuries. Exts.P14 and P15 F.I.Rs. were registered in respect of that incident. Ext. P14 FIR was registered by the police on the basis of intimation received from the Medical Officer. Ext.P15 FIR was registered on the basis of the First Information Statement lodged by A1 in this case. The police took up both Exts.P14 and P15 for investigation. Investigation in Ext. P15 came to an end on 30/3/1993 (the very next day after the registration of the FIR) with P.W.14 lodging Ext. P20 refer report dated 30/3/1993. Investigation continued in Ext. P14 FIR. That investigation culminated by filing of the final report/charge sheet by P.W.14 before the learned Magistrate. The learned Magistrate, after observing all legal formalities, committed the case to the Court of Session. The Court of Session took cognizance of the offences punishable under Secs.143, 147, 148, 323, 324 and 302 read with Sec. 149 IPC and Sec. 27 of the Arms Act. The accused denied the charges framed against them by the learned Sessions Judge. Thereupon, the prosecution examined P.Ws.1 to 16 and proved Exts.P1 to P21. M.O.1 was also marked on the side of the prosecution.

The accused persons, in the course of cross-examination of the prosecution witnesses and when examined under Sec. 313 Cr.P.C., took up the stand that A1 and A3 were the victims of aggression. A2, A4 and A5 took up a defence of total denial. No defence evidence was adduced.

The learned Sessions Judge, on an anxious evaluation of all the relevant inputs, came to the conclusion that the prosecution has not succeeded in proving the offences alleged against the accused beyond doubt. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment of acquittal.

The State has preferred Crl. A. NO. 358/07 to challenge the impugned judgment of acquittal. The appeal preferred along with an application to condone the long delay of 409 days was admitted after condoning the delay. The brother of the deceased Raveendran has preferred Crl.R.P.No.1482/04. He also assails the judgment of acquittal.

About two decades after the incident which took place on 29/3/1993 and after a decade from the date of the impugned judgment on 28/9/2002 we are now called upon to decide whether the acquittal is justified and the same calls for appellate/revisional interference.

The learned Public Prosecutor Sri. Gikku Jacob George and Sri. D. Kishore, the learned counsel for the revision petitioner advance the contention that the learned Sessions Judge was grossly in error in not choosing to accept and act upon the oral evidence of P.Ws.2 and 4. The evidence of P.Ws.2 and 4, along with the other circumstances proved in the case, must have persuaded any prudent mind to sail to the safe conclusion that the indictment against the accused has been proved satisfactorily. The finding of not guilty is perverse, unjustified, grossly erroneous and result in miscarriage of justice, contends the learned Public Prosecutor and the learned counsel for the revision petitioner.

Sri. S. Rajeev, the learned counsel for the respondents/ accused 1 to 5 points out that R4/accused is no more. On behalf of other respondents/accused, he contends that the verdict of acquittal recorded by the trial court is eminently justified by the reasons given in the impugned judgment. The learned counsel for the accused points out a host of other circumstances which have not been specifically referred to by the learned Sessions Judge which also support the verdict of not guilty recorded by the trial court. The learned counsel wants to remind this Court of the nature and quality of the jurisdiction of this Court while considering an appeal against the judgment of acquittal and contends that, at any rate, appellate interference with the judgment of acquittal is not warranted at all.

We have considered all the relevant inputs. We do note at the outset that this appeal and the revision petition are both directed against the judgment of acquittal. The jurisdiction of this Court in appeal is certainly wider and more comprehensive in nature and quality than its jurisdiction in revision. Inasmuch as the State has preferred an appeal against the judgment of acquittal, we need only consider now whether appellate interference is necessary or warranted with the impugned judgment of acquittal. We have heard the learned counsel for the revision petitioner. We reckon all the arguments advanced by him as supporting and augmenting the arguments advanced by the learned Public Prosecutor in the appeal. A separate consideration as to whether revisional interference is necessary or called for, need not be undertaken. The arguments advanced by the learned Public Prosecutor and the learned counsel for the revision petitioner shall all be considered to decide whether the appellate interference with judgment of acquittal is necessary or not.

Before proceeding further, we deem it appropriate to pointedly refer to the nature and quality of the jurisdiction of an appellate court when it considers the challenge against a judgment of acquittal. An appeal conceptually is an arrangement devised by the system to eliminate human errors in adjudication. That is the basic purpose of any statutory stipulation providing for an appeal. It is equally trite that in appeal the jurisdiction of the appellate court is co-extensive and co-terminus with that of the trial court. The width of the powers of an appellate court has to be considered and appreciated carefully and cautiously bearing in mind the dominant and primary purpose of providing an appeal - to eliminate human errors in adjudication. So reckoned, whether it be an appeal against acquittal or against conviction the jurisdiction of the appellate court does in principle appear to be identical. We need only refer to the observations of the Constitution Bench of the Supreme Court in M.G. Agarwal Vs. State of Maharashtra, . In view of the controversy raised, we deem it appropriate to extract paragraph-16 of the said judgment:

There is no doubt that the power conferred by clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court''s powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. Sometimes, the width of the power is emphasized, while on other occasions, the necessity to adopt a cautious approach in dealing with appeals against acquittals is emphasised, and the emphasis is expressed in different words or phrases used from time to time. But the true legal position is that however circumspect and cautious the approach of the High Court may be in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused. (emphasis supplied)

Our attention has been drawn to various subsequent decisions of smaller Benches of the Supreme Court wherein distinction has been attempted to be drawn between the nature and quality of the jurisdiction of the appellate court when it considers challenge against a judgment of acquittal in contra distinction to the challenge against a judgment of conviction. We do not think it necessary to advert to all the precedents. It will be appropriate to refer to the latest judgment of the Supreme Court in State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, and the subsequent unreported decision of the Supreme Court dated 15/3/2012 in Crl.A. NO. 984/07 (Govindaraju v. State). A controversy has been raised as to whether the findings of the trial court in the judgment of acquittal must be found to be perverse before the jurisdiction of the appellate court to interfere with the judgment of acquittal is invoked. Flourishes of language has persuaded courts to refer to the grounds justifying and calling for interference as:

(i) substantial and compelling reasons

(ii) very strong reasons

(iii) good and sufficient grounds

(iv) distorted conclusions

(v) glaring mistakes

(vi) palpably wrong

(vii) manifestly erroneous

(viii) demonstrably unsustainable etc.

The position of law appears to be well settled in the light of the decision of the Constitution Bench in M.G. Agarwal (supra).

In an appeal against acquittal also the appellate courts'' jurisdiction is co-extensive and co-terminus with that of the trial court. Restriction, if any, is not certainly for want of jurisdiction of the appellate court. But traditionally and conventionally. appellate courts have been slow to interfere with the findings of fact recorded by the trial court on which the judgment of acquittal is found. This has jurisprudential and philosophical basis. The judgment of acquittal re-inforces the initial presumption of innocence in favour of an indictee. When the trial starts that presumption of innocence operates with vigor. When the trial court has recorded a verdict of not guilty, the initial presumption of innocence gets re-inforced and strengthened by such judgment of acquittal. In the light of such fortified presumption of innocence, the superior/appellate courts must be slow to interfere with the judgment of acquittal invoking their appellate jurisdiction.

Yet another formidable reason against this traditional reluctance can be located in the evident advantage which the trial court has in the matter of appreciation of evidence. An alert trial court which actively participates in the truth discovery process that goes on before it in the form of trial can normally be assumed to perceive a lot of relevant inputs in the course of trial which are in the matter of appreciation of evidence. The trial court at the grass root level has this evident advantage over the superior/appellate court which only deals with the recorded evidence. Demeanour of a witness may be noted or not noted. But it is a safe presumption that an alert trial court at the grass root level must have perceived these inputs and those inputs must have gone into the assessment and evaluation of evidence. No appellate court can hence afford to ignore or squander that evident advantage which the trial court has in the matter of appreciation of evidence of witnesses who have gone through the witness box before it.

A third and equally relevant circumstance is that it is trite in a criminal trial that when two possibilities open up the one in favour of an indictee has to be preferred by the adjudicator. If the trial court has recorded a judgment of acquittal ordinarily and normally it can be assumed that the view taken by the trial court is one view on the evidence adduced. Of course, if the trial court has gone wrong in coming to conclusions not justified by the evidence adduced or has come to such a conclusions illegally excluding relevant probative material or if a grossly incorrect view has been taken on the materials adduced the appellate court may be justified in coming to the conclusion that the view taken by the trial court is not a reasonable view on the evidence adduced. The point is that if the view taken by the trial court is a possible reasonable view, the feeling of the appellate court that if it were the trial court it would have taken a different view is no reason by itself to invoke the appellate jurisdiction while considering the challenge against a judgment of acquittal. The learned counsel for the accused specifically points out the following passage in paragraph-8 of the decision in Bhaiyamiyan @ Jardar Khan and Another Vs. State of Madhya Pradesh, :

At the very outset we must remark that the High Court''s interference in an appeal against acquittal is somewhat circumscribed and if the view taken by the trial court was possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it has been the trial court, it might have taken a different view. In other words, if two views are possible and the trial court has taken one, the High Court should not interfere in the judgment of the trial court. (emphasis supplied)

To sum up, the restricted approach while considering a judgment of acquittal is not on the ground of lack of jurisdiction but only because of the conventional and traditional reluctance of a superior appellate court for the reasons mentioned above to invoke its appellate jurisdiction against findings of fact recorded.

Having thus reminded ourselves of the nature and quality of the jurisdiction vested in us as an appellate court considering the challenge against a judgment of acquittal, we shall now proceed to consider the nature of the materials available in this case against the accused persons.

We shall attempt to summarise the case of the prosecution. Deceased Ravindran was an anti arrack worker. He had formed an association for that purpose. This had allegedly infuriated the 1st accused Bhasi, who was allegedly involved in the illicit sale of arrack. Accused 2 and 3 are his sons. Accused 4 and 5 are his relatives. Actuated by this animosity against the deceased, all the 5 accused had allegedly formed themselves into an unlawful assembly with the common object of assaulting and causing the death of the deceased. They were allegedly armed with dangerous weapons. Accused 1 and 2 had choppers (koduval) in their hands. Accused 3 had a vettupichathi (translated crudely as a sword by PW15). Accused NO. 4 was armed with MO.1 kuruvadi. Accused NO. 5 had no weapon with him when the incident started. He is alleged to have taken over the koduval (chopper) from accused NO. 2 in the course of the incident. The unlawful assembly of the 5 accused so armed with weapons had allegedly proceeded to the shop of Govindan, marked as 18 inExt. P13 scene plan. There, deceased Ravindran was allegedly available. Apprehending danger at the hands of the accused, the deceased ran away towards east. The miscreants ran after him. In the south eastern courtyard of the house of PW1, the miscreants attacked the deceased with dangerous weapons which they had and inflicted serious injuries on the deceased. The deceased was from there rushed to the hospital. According to the prosecution, PWs 1 to 4 had allegedly witnessed the occurrence. The prosecution further wanted to rely on the recovery of the weapons of offence under Exts.P6 to P8 on the basis of information by accused 1, 2 and 3 when they were interrogated after their arrest. Those weapons were sent for chemical examination. Report was obtained, which confirmed that they were blood stained. But those weapons (allegedly wielded by A1 to A3) were all destroyed in a fire in the laboratory. Therefore those weapons could not be specifically proved.

We shall now refer to the defence case. Accused 2, 4 and 5 took up a defence of total denial. According to them, they were not present at the scene of the occurrence. So far as accused 1 and 3 are concerned, they took up a plea that they had suffered injuries in an incident which took place near the shop of Govindan (spot 18 marked inExt. P13). According to them, they were the victims of aggression and were not responsible for the injuries on the deceased.

Though the prosecution wanted to rely on the oral evidence of PWs 1 to 4, PWs 1 and 3 turned hostile to the prosecution. They were so declared and were cross examined by the learned Prosecutor. Exts.P1 series and Ext.P2 series contradictions were marked in the course of cross examination of PWs 1 and 3 by the Prosecutor.

PWs 2 and 4 supported the case of the prosecution. According to them, they had witnessed the occurrence.

The court below did not accept and act upon the oral evidence of PWs 2 and 4. The court below did not find it possible to draw inspiration for the oral evidence of PWs 2 and 4 from other circumstances in the case. The court below took the view that in any view of the matter, the evidence of PWs 2 and 4 is not convincing and the same cannot be safely accepted and acted upon. In coming to this conclusion, the learned Sessions Judge took note of the various inadequacies in the conduct of the investigation/prosecution in this case.

We first look at the evidence of PW1. PW1 was declared hostile. His evidence even as a hostile witness shows convincingly that an incident took place on the courtyard of his house in which the deceased did suffer injuries found on his person described inExt. P11 postmortem certificate. On that aspect, we find no semblance of a dispute possible. His evidence is not of any further help for the prosecution. It has of course come out from his evidence that there was sufficient light at the place where the incident took place to enable witnesses to ocularly perceive the incident that had taken place.

We now come to the evidence of PW3. He is a close relative (father''s brother of the deceased). According to the prosecution, he had witnessed the entire incident. He turned hostile and stated that he had not witnessed the incident. He admitted that he had gone with the deceased to the hospital. Ext. P10 wound certificate shows that the alleged cause was narrated to the doctor PW10 by PW3. It is seen that the alleged cause narrated to PW10 is that a group of 4 persons (there are now 5 accused persons as per the case of the prosecution) had assaulted the deceased with swords. PW3 in court asserted that he had not given the alleged cause to the doctor. He had not seen the incident, according to him. The evidence of PW3 does not therefore support the case of the prosecution to any extent except to confirm that the deceased had suffered the injuries and he was taken to the hospital by persons including PW3.

It may not be inapposite in this context to take note of a further input furnished by PW3 after he was declared hostile. He wanted to assert before court that the deceased had made a dying declaration, in which the deceased had stated that he had suffered the injuries at the hands of A1 and others. PW3 did not have such a case before the Investigating Officer. No other witnesses were examined by the prosecution in support of the theory that such a dying declaration was made by the deceased while he was being removed to the hospital. This statement of PW3 in evidence stands by itself without any other witnesses supporting this theory of a dying declaration made by the deceased. This is a significant omission in the case diary statement of PW3. In these circumstances, though there are other inputs available to suggest that the deceased was not wholly and completely unconscious till he reached the doctor PW10, we do not think it safe at all to place reliance on this alleged dying declaration made to PW3 which PW3 for the first time deposed in court unsupported by any specific corroboration from other circumstances. The evidence of PW3 does not also, in these circumstances, offer much assistance to the prosecution''s case.

We are then left with the evidence of PWs 2 and 4. PWs 2 and 4 do both figure as accused inExt. P15 F.I.R lodged by the 1st accused. Some dispute is raised as to whether Vijayan and Babu, who were specifically referred to inExt. P15 F.I.R (and the F.I statement on the basis of which Ext. P15 is registered) are Dws 2 and 4 who have the said names. There is nothing to show that PWs 2 and 4 are the accused (Vijayan and Babu) referred to inExt. P15 crime, it is urged. Attempt is made to point out certain differences in the name of the father of PW4 Babu. We do not attach any significance to this controversy as we have fairly forthright evidence coming from the mouth of PW15, which shows that PWs 2 and 4 are the very same persons who figure as accused in Ext.P15. Even Ext. P20 refer report, points out the learned counsel for the accused, has tell tale indications to prove the identity of PWs 2 and 4 as the accused Vijayan and Babu referred to inExt. P15. We find it easy to come to the conclusion that PWs 2 and 4 are none other than the 2 of the 4 accused persons referred to in Ext.P15 F.I.R.

The learned Prosecutor and the learned counsel for the revision petitioner have alertly pointed out to us that the cross examination of PWs 2 and 4 do not reveal that they were the accused persons referred to in Ext.P15 F.I.R. We are cognizant of this inadequacy. But in the light of the categoric statement of PW15 in the witness stand and the contents of Ext. P20 prepared by PW16, we do not attach much significance to this controversy while considering the challenge against the impugned judgment of acquittal. PW2 before the police had a case that he had accompanied the deceased upto the hospital. Some other witnesses examined by the prosecution do also speak identically. But PW2 in court had taken a stand that he did not accompany the deceased to the hospital. The learned counsel for the accused contends that this must arouse suspicion and reservation in the mind of the court about the acceptability of the evidence of PW2 when he tendered evidence that he had actually witnessed the occurrence. The evidence of PW4 is attacked primarily on the reason that he is an accused inExt. P15 F.I.R. Other circumstances are also pressed into service to contend that safe reliance cannot be placed on the oral evidence of PW4.

Evidence of recovery of two choppers and one vettupichathi under Exts.P6 to P8 on the basis of the information furnished by accused 1 to 3 when they were interrogated in custody is relied on by the prosecution. Inherently we do not find any reason to discard the said evidence of recovery. Those weapons have not been marked. But satisfactory explanation is offered as to why the prosecution could not mark those material objects specifically. Ext. P18 offers the convincing explanation that those material objects were destroyed in a blast and fire that took place in the Forensic Science Laboratory. Non production of those material objects cannot hence in any way be reckoned as a circumstance against the case of the prosecution. That Ext. P19 report of the expert shows that these weapons were stained with human blood is again a circumstance helpful to the prosecution.

On the question of motive, no better evidence has been produced than the oral evidence of PWs 2 and 4. Deceased Ravindran is said to be an anti arrack activist. He had allegedly formed a committee. No better evidence is forthcoming on that role of Ravindran in forming any committee. Though it is alleged that a notice was published by Ravindran and the committee, that notice is not produced in court. There is admission that there is no abkari case against the 1st accused. The prosecution is thus left with the evidence of PWs 2 and 4 supporting witnesses, of what the 1st accused uttered in the course of the incident to prove the alleged motive. The learned Prosecutor and the learned counsel for the revision petitioner argue that this statement of motive is perfectly admissible as res gestae evidence u/s 6 of the Evidence Act. We do note that the prosecution, which could have produced better evidence on the question of motive, has now chosen to fall back on such res gestae evidence of PWs 2 and 4. The evidence of motive adduced is certainly not convincing. The court below wanted to decide whether PWs 2 and 4 are worthy of credit and can be believed. It is idle to expect the court to act upon the res gestae evidence spoken to by PWs 2 and 4 to draw inspiration for the acceptability of the evidence of the very same PWs 2 and 4.

The learned Prosecutor and the learned counsel for the revision petitioner point out that Ext. P15 F.I.R and the version given by the 1st accused before PW13 on the basis of whichExt. P15 was registered, do not at all explain how the deceased was found dead in the courtyard of PW1- far away from the shop of Govindan marked 18 inExt. P13 scene plan. This is a convincing indication by which the court can reject the version of the accused advanced inExt. P15 F.I.R, contend the learned Prosecutor and the learned counsel for the revision petitioner.

We have considered all the relevant inputs. We feel persuaded to agree with the learned Prosecutor and the learned counsel for the revision petitioner that sitting as a court of facts the conclusion that the accused persons are responsible for causing injuries to the deceased is a certainly reasonable and plausible conclusion on the basis of the materials available. But we must remind ourselves of the nature and quality of our jurisdiction. A re-appreciation of evidence can be undertaken only if this Court is satisfied that a reasonable conclusion that the accused are not guilty, as found by the trial court, is not possible. If such a conclusion is possible, the mere fact that we would have come to a conclusion against the accused if we had the opportunity to appreciate facts afresh is of no avail. We are hence called upon to consider whether the materials do not support a reasonable conclusion in favour of the accused persons as held by the learned Sessions Judge in the impugned judgment. We do hence take note of the various circumstances referred to by the learned Sessions Judge in the impugned judgment as also the other circumstances marshelled by the learned counsel for the accused to support the judgment of acquittal.

First of all it is noted that there is no prompt F.I statement lodged by anyone giving a narration of the incident which allegedly took place. It is common knowledge that an F.I statement lodged soon after the commission of the crime helps the court to anchor its conclusions. The importance, relevance and significance of a properly laid F.I statement in the adjudication of guilt in our system of administration of criminal justice need not be over emphasised. But that is no reason to conclude that without a prompt F.I statement the prosecution can never succeed in establishing the guilt of the accused persons. In the instant case we do note that at least 4 witnesses had allegedly seen the occurrence, ie. PWs 1 to 4. There is also reference to one Anilkumar, who has been cited as an eye witness by the prosecution. What is strange according to the learned counsel for the accused persons is that none of these eye witnesses had thought it fit to lodge an F.I statement before the police. The learned counsel for the accused contends that this is not an innocuous omission. The witnesses did not know what they should reveal before the public authorities. They were confused as to what version they should advance before the police and that, according to the learned counsel for the accused, explains why there was no prompt F.I statement lodged by any of the many eye witnesses who had allegedly witnessed the occurrence.

We do note that none of the eye witnesses had reported the incident to the police. That, in the circumstances of the case, is definitely a plausible and reasonable circumstance which can generate dissatisfaction against the case of the prosecution and the present version of the eye witnesses. To this extent, we do note that the court below cannot be found fault with for its inability to anchor any findings on such a prompt F.I statement.

What is perhaps more incredible and suspicious is the registration of Ext. P14 F.I.R on the basis of an intimation received from the doctor. PW13 head constable wants the court to believe that the deceased was lying unconscious with such very serious injuries suffered by him. When he went to the hospital on receipt of the intimation, he allegedly could not trace any eye witness, related witness or others from whom he could record an F.I statement. It is the case of PW13 that he therefore was constrained to register Ext. P14 F.I.R on the basis of the intimation issued by the doctor. The learned counsel for accused contends that this version of PW13 is grossly unsatisfactory and must evoke suspicion and reservation of the worst variety. According to the learned counsel for the accused, the learned Sessions Judge must have taken note of the failure of the eye witnesses to lodge any prompt F.I statement along with the circumstance that PW13 had registered Ext. P14 F.I.R on the basis of the intimation received from the doctor. It is the case of the accused that it was not a case where the eye witnesses were unwilling to give an F.I statement. But they along with the police were groping in the dark as to what version was to be advanced initially. That explains why the eye witnesses did not go to the police to lodge any F.I statement. That explains why PW13 conveniently registered Ext. P14 F.I.R on the basis of the intimation received from the hospital. The attempt obviously was to avoid the obligation to advance a firm and definite version at the earlier point of time, contends the learned counsel for the accused. The police and the witnesses were playing for time to take a definite stand. Time was purchased to enable police and the witnesses to shape and mould a specific version, contends counsel.

The learned counsel for the accused then points out that till 07.04.1993, the learned Magistrate was kept in the dark about the identity of the assailants. The incident had taken place on 29.03.1993. The crime was registered promptly as Ext. P14 on the basis of the intimation received from the doctor. In such circumstances, any Investigating Officer worth his salt must have taken pains to communicate the names of the assailants/accused to the learned Magistrate at the earliest after the identity of the assailants were ascertained. But very surprisingly in this case the learned Magistrate was kept in the dark about the identity of the assailants till 07.04.1993. It is only on 07.04.1993 that Ext. P16 report arraigning accused 1 to 5 as accused reaches the learned Magistrate even though that report is seen dated 30.03.1993. It is also pointed out that Ext. P17 inquest report dated 31.03.1993 was also prepared on 31.03.1993. InExt. P17 inquest report also none of the eye witnesses were questioned. Since no eye witness could be traced for lodging the F.I.R (Ext.P14) any Investigating Officer must have taken pains to ensure the examination of eye witnesses if any while preparing the inquest report. None was examined. However, inExt. P17 we note that there is an indication that the 5 accused persons had some connection with the crime against the deceased. This inquest report prepared on 31.03.1993 does also reach the learned Magistrate only on 07.04.1993. The learned counsel points out that from 29.03.1993 to 07.04.1993, the police were groping in the dark to ascertain the identity of the miscreants. They did not succeed in doing that till 07.04.1993. That is why Exts.P16 and P17, in which the complicity of the accused persons is indicated and reported for the first time to the learned Magistrate, reached the learned Magistrate only on 07.04.1993. This delay is crucial. It arouses suspicion. The learned Sessions Judge who was conducting the trial attached due significance to such delay in Exts.P16 and P17 reaching the court. The learned counsel for the accused contends that this is in tandem with the case of the accused that till 07.04.1993 the police were not sure as to what version is to be advanced about the incident. We need only observe now that the absence of a prompt F.I statement read along with the failure to report to the learned Magistrate the complicity of the 5 accused persons till 07.04.1993, is certainly a circumstance in favour of the accused.

We may hasten to note that according to the prosecution PWs 1 to 4 were examined on 30.03.1993 and 31.03.1993. As observed earlier any Investigating Officer serious in his pursuits must have taken note of the unfortunate circumstance that Ext. P14 was registered not on the basis of any statement of eye witnesses and therefore must have shown great eagerness and anxiety to report the names of the miscreants to the learned Magistrate at the earliest.

The learned counsel for the accused points out that it is not a mere innocuous delay in Exts.P16 and P17 reaching the court. They reached the court only on 07.04.1993. But the learned counsel points out that Ext. P3 scene mahazar prepared on 30.03.1993 had reached the learned Magistrate as early as on 03.04.1993. If Ext.P3, which must obviously have been prepared after the inquest, did reach the learned Magistrate on 03.04.1993 why did not Exts.P16 and P17 (indicating the involvement of the accused persons) reach the learned Magistrate till 07.04.1993? The learned counsel points out that it will be too naive and puerile not to attach significance to Ext. P3 reaching the court on 03.04.1993 and Exts.P16 and P17 not reaching the court till 07.04.1993.

Two more important circumstances appear to have weighed with the learned Sessions Judge. The unsatisfactory investigation conducted into Ext. P15 crime is the first circumstance. The crimes Exts.P14 and P15 were registered on 29.03.1993. In fact, Ext. P15 crime was registered even before the death of deceased Ravindran. Accused 1 to 3 were available before PW6 doctor and he had prepared Exts.P4 and P5 wound certificate on the night of 29.03.1993 itself. Ext. P20 refer report submitted by PW16 reveals that he had completed the investigation into Ext. P15 crime as early as on 30.03.1993. The learned counsel for accused builds up an argument that there has been no proper investigation into Ext. P15 crime registered. Even going by the version of the prosecution, accused 1 to 5 were not arrested and were not available for questioning of the Investigating Officer till 07.04.1993. They were arrested only on 07.04.1993. How then could investigation in Ext.P15 crime be completed on 30.03.1993, queries the learned counsel for accused. The learned counsel for the accused relies on this circumstance to highlight the total absence of a dedicated effort on the part of the Investigating Officer to investigate Ext. P15 crime with the seriousness which it deserved. The premature reference of Ext. P15 crime underExt. P20 refer report on 30.03.1993 must raise the worst form of suspicion against the fairness of the investigating officer, contends the learned counsel for the accused.

The learned counsel for the accused further points out that the impression of the accused that till 07.04.1993 the Investigating Officer was not sure of what version should be advanced before court is supported by yet another circumstance - ie the arrest of the accused persons only on 07.04.1993. The evidence suggests that accused Nos.1 and 3 had suffered injuries. They were available as inpatients in the hospital from 29.03.1993. Still their arrest was not effected till 07.04.1993. Arrest was effected and recorded only after the prosecution shaped its case by 07.04.1993. That is why the arrest of the accused was not effected till 07.04.1993. In these circumstances, the view taken by the learned Sessions Judge cannot be held to be unreasonable, much less perverse, contends counsel. In any view of the matter, the judgment of acquittal does not call for interference, contends the learned counsel for the accused.

The learned Prosecutor advances a contention that mere inadequacy, defect or insufficiency on the part of the Investigating Officer cannot be permitted to deliver any advantage to the indictee. Criminal trial cannot get degenerated into a mere test of the efficiency of the Investigator, contend the learned Public Prosecutor and the learned counsel for the revision petitioner. Even assuming that there are inadequacies in the conduct of the prosecution and inadequacies in the conduct of the Investigator, this cannot be permitted to fetter the yearning of Courts to ascertain truth. Various precedents have been cited in support of this proposition.

It is unnecessary to refer to the precedents specifically. We are convinced that where the version of an eye witness inspires confidence of the court, inadequacy in the conduct of the investigation of the prosecution need not fetter the power, jurisdiction and the option of the court to place reliance on the testimony of such witness and come to appropriate conclusion. The million dollar question is whether the evidence of witnesses do inspire confidence. If they do, certainly any inadequacy in the conduct of the investigation can rightly be ignored by the court as contended by the learned Prosecutor and the learned counsel for the revision petitioner. In the instant case we are worried whether safe reliance could be placed on the oral evidence of PWs 2 and 4 as to how the incident occurred, the genesis of the incident and its culmination. Conduct of a proper investigation can go a long way to assure the court of the acceptability of the evidence of witnesses. That assurance is precisely lacking in this case. A careful reading of the impugned judgment clearly shows that the learned Sessions Judge also faced the same dilemma - of inability to draw inspiration for the oral evidence of PWs 2 and 4. A host of circumstances which we have referred to earlier, definitely appear to have created dissatisfaction in the mind of the learned Sessions Judge.

The learned Prosecutor and the learned counsel for the revision petitioner finally point out that even assuming that Ext. P14 is not registered on the basis of ocular account of any eye witness, the court cannot lose sight of the fact that the version given by the 1st accused inExt. P15 (against which no serious dispute is raised in the course of the trial) does itself indicate at least the involvement of accused 1 and 3 in the incident. Inspiration can be drawn by the adjudicator from such Ext. P15 promptly lodged by the 1st accused before the police. At least from that, inspiration could have been drawn for the oral evidence of PWs 2 and 4, contends the learned Prosecutor.

The contention did sound to be impressive. But it must be noted that the version inExt. P15 does not rhyme well with the version of the prosecution presently placed before court. The presence of accused 2, 4 and 5 is not indicated from Ext. P15. The overt acts now alleged against accused 1 and 3 is not supported by the contents of the F.I statement on the basis of which Ext. P15 is registered. Though we appreciate the alertness of the prosecutor in pointing out the registration of Ext. P15 on the basis of the F.I statement lodged by accused No.1, we are unable to agree that the court below had committed any such error warranting appellate interference with the judgment of acquittal in not having ignored such unsatisfactory circumstances with the help of the F.I statement on the basis of whichExt. P15 was registered. The learned counsel for the accused points out that in fact only Ext. P15 F.I.R has been proved. The alleged statement of the 1st accused (the F.I statement) on the basis of which Ext. P15 F.I.R has been registered was not legally introduced in evidence, it is urged.

We are certainly not convinced that the conclusion of the court below was the best conclusion possible. However, the fact remains that the conclusion reached by the learned Sessions judge cannot be held to be a conclusion which was not possible or one which is not reasonable. We therefore feel that it would be safer not to invoke our jurisdiction in this appeal to interfere with the impugned judgment of acquittal. Though reluctantly, we decide not to invoke our appellate jurisdiction to interfere with the impugned judgment of acquittal. In the result, the appeal and the revision petition are dismissed.