State of Kerala vs K.M. Iddinkunhi and Others

J.B. Koshy, J.—State filed appeal against the order of acquittal of the accused, six in number (Respondents herein) by the Court of Sessions, Kasaragod in S.C. No. 66/95. Revision application was filed by P.W.2 in the above case for the very same purpose. Respondents and seven others who were the accused in Crime No. 22/94 of the Kumbla Police Station were originally tried for offences punishable under Sections 143, 147, 148, 324, 307 and 302 read with Section 149 of the Indian Penal Code. The trial court found the Respondents herein guilty of the offences alleged against them and the remaining accused were acquitted. Against the conviction of the Respondents, Crl. Appeal No. 391/96 was filed before this Court. The acquittal of the remaining accused also was challenged by P.W.2 in this case by filing Crl. R.P. No. 1115/96. By a common judgment in the above cases, this Court confirmed the acquittal of accused Nos. 7 to 13 in the case and remanded the case against the Respondents herein for fresh disposal.

The prosecution case as deposed by P. Ws. 1, 2 and 5 and other witnessess is as follows : P.W.5 Moosa Haji and some of his close relatives became believers of Shemsia Thareequat sect. Large majority of the Muslim community in the area considered them as heretics. Local Jama-ath did not tolerate the followers of Thareequat movement and ex-communicated P.W.5 and others. There was frequent friction and fight between the two groups. Orthodox Muslims which formed the large majority of the area were led to believe that those who oppose or annihilate people like P.W.5 and others who joined the Thareequat movement will get . They were thus socially boycotted and local Muslims were not allowed to talk to them or sell goods to them. Nobody should work for them or mingle with them. On account of these social boycotting , P.W.5 and others were unable to get workers to work for them. This had compelled them to get workers from outside. P.W.1, Chandrasekhara, was thus brought by P.W.5 for doing various works from Ubradka, Mittur, Karnataka State and the deceased Faizal from Manjeri. Because of the threat of other people of the Jama-ath, both P.W.1 and deceased Faizal were residing in the house of P.W.5.

On 30th January 1994, P.W. 5 and his son P.W. 2 returned at about 8.00 p.m. to their home. They then learnt that the child of C.W. 9, Mammunhi Haji, the brother of P.W. 5, had met with an accident and suffered some injuries. On receipt of this information, P.W. 5 asked P.W. 2 to go to the house of C.W. 9 and enquire about the details. Because of the tension prevailing in the locality between the two groups of Muslim community, P.W. 5 asked P.W. 1 and the deceased Faizal to accompany P.W. 2 to the house of C.W. 9. Thus, all the three proceeded to the house of C.W. 9, at about 9.15 p.m. They could reach the house of C.W. 9 through the pathway through the paddy field. There were two pathways; one at a higher level and the other at a lower level. P.W. 2 along with P.W. 1 and Faizal started proceeding westwards to the house and when they reached the paddy filed, they started walking through the pathway on the higher level (through the bund on the field). Faizal was walking in the front. Harvest was just over in the paddy field and it was free. While they were proceeding westwards, the group of 15 persons came towards eastwards along the same bund. The group also had torches in their hands and they had flashed the torches on P.Ws. 5, 1, 2 and Faizal who also flashed back their torches. In this light, P.W. 1 identified A-1 to A-6 as he knew them by name. A-7 to A-13 were also present in the group whom P.W. 1 could identify; but were cot knowing their names at that time. P.W. 2 knew A-1 to A-13.

When they reached near, the accused suddenly attacked P.Ws. 1, 2 and Faizal. A-1 had M.O. 1 knife in his possession and A-2 to A-6 also had knives with them. A-7 to A-13 were in possession of sticks like M.O. 2. A-1 to A-4, with the weapons in their hands, inflicted cuts on the neck of Faizal. When P.W.2 intervened, A-2, A-3, A-5 and A-6 attacked P.W.2 with weapons in their possession. Because of the severity of the injury suffered by Faizal, he fell down. A-1 to A-6 had again attacked Faizal who was lying down by inflicting cut injuries on his body. The other accused had beaten Faizal and P.W. 2 with sticks. The accused were shouting to do away with P.W. 2 and Faizal. P.W. 1 to save his life jumped from the higher level of the ridge to the lower level and took shelter to the house of C.W. 9. Seeing that P.W. 1 was fleeing the scene, some of the accused chased P.W. 1, but could not catch him. Meanwhile, P.W. 2 who suffered injuries also ran for his life and reached the house of C.W. 9. As Faizal did not reach the house of C.W. 9, P.W. 1 along with a son of C.W. 9 went to the scene of occurrence and saw that Faizal was lying dead in the paddy field.

P.W. 5 heard lot of noise from the side of the paddy field. Since his son and employees went in that direction, he felt something bad. Therefore, becoming restless, he proceeded towards the place of origin of noise. He ran towards west of his house and as he reached the way to Mosque on north direction, he saw some persons entering that pathway from the paddy field on the west. Some persons had already gone towards north. On reaching near to them, he identified accused 1 to 4, 7, 9 and 11 to 13. All of them possessed weapons like knife or sticks. P.W. 5 enquired to A-7 as to what happened to which A-7 replied that they had killed two persons. Suddenly A-13 gave a cut to P.W. 5 with a sharp edged knife like weapon. While warding off the same P.W. 5 had sustained injury on his left hand. P.W. 5, fearing further attack, ran towards his house. He remained inside after locking the door. His attempts to contact C.W. 9 and others over telephone were not successful.

P.W. 7, the then Sub Inspector of Police, Kumbla Police Station received an information at 9.50 p.m. on 30th January 1994 over telephone that some incident had taken place at Ujar Ulwar village resulting the death of one person. The informant did not disclose his identity. P.W. 7 entered this information in Ext. P-9 G.D. and proceeded to the place of occurrence with whatever force he had in the Station. After making enquiries near the local Mosque, he could trace out the house of P.W. 5 who was inside the house. He narrated what happened to P.W. 7 and took them along the pathway to the house of C.W. 9. When P.W. 7 and police party with P.W. 5 reached the house of C.W. 9 they saw P.W. 2 with injuries and P.W.1, apart from C.W. 9 and his family members. They also learnt that Faizal had been murdered. P.W. 7 immediately made arrangements to take P.Ws. 2 and 5 to the hospital in the police jeep.

First information statement was taken from P.W. 1 by P.W. 7 in the house of C.W. 9. Since police jeep was sent with P.W. 2 and P.W. 5 to the hospital, he sent a constable to the Kumbla Police Station. The then Head Constable in the G.D. charge (P.W. 8) registered the F.I.R. at 00.30 hours of 31st January 1994. On that day morning itself it was sent to the Magistrate and the Magistrate signed it on the same day at 3.30 p.m. P.W. 9 was the investigating officer. He was doing law and order duty in connection with a meeting of the Muslim League. When he received information that two groups had clashed at Ujar Ulwar village, he rushed to the village met P.W. 7 and they together made arrangements for keeping law and order. P.Ws. 2 and 5 went upto Bayikatta. They got into a car of their relative. They went to the house of a friend of P.W. 5, Mohan Kammath. All of them went to City Hospital Research and Diagnostic Centre at Mangalore.

P.W. 9 conducted inquest on the body of Faizal and seized M.Os. 2 to 9 and prepared Ext. P-14 report. M.O. 6 knife was covered with M.O. 9 newspaper and found kept at the back of waist of the deceased. During inquest, P.W. 9 got the photographs of the dead body and the scene of occurrence which is marked as Ext. P-2 series. Ext. P-2(a) shows that M.O. 6 was on the waist of the deceased. The photos and the negatives were seized under Ext. P-17 seizure mahazar when produced by the photographer. P.W. 9 also drew up Ext. P-15 scene mahazar. In Ext. P-1, P.W. 1 mentioned only the names of Accused Nos. 1 to 6. But, he stated that seven more accused were there whose names were not given. But, according to him, he can identify them. After questioning P.Ws. 2 and 5, name of other accused were included.

Accused 1 and 3 to 6 had surrendered before P.W. 9 in his office on 3rd February 1994. A-8 to A-12 were arrested on 29th April 1994 and 30th April 1994. A-2 and A-7 had allegedly suffered some injuries in the same transaction. They went to Unity Health Complex at Mangalore on 31st January 1994. They were admitted and treated as inpatients. Exts. P-23 and P-24 are the treatment particulars and Exts. P-25 and P-26 are the case sheets respectively of these accused. They were discharged on 23rd March 1994 on which date P.W. 9 arrested them. A-13 was absconding and later he appeared before the Magistrate''s court. When the 1st accused was questioned, he gave a confession statement to P.W. 9 about the place of concealment of M.O. 1 weapon. After recording the said statement of A-1, as lead by him, P.W. 9 reached the ditch with thick growth on the eastern side of paddy field where the occurrence took place. The 1st accused took out M.O. 1 knife from the place of concealment and P.W. 9 seized the same under Ext. P-8 seizure mahazar on 3rd February 1994 attested by P.W. 6. In the statement u/s 313 of the Code of Criminal Procedure, accused denied the allegations. A-1 stated that he belonged to the Jama-ath. Ustad of the Mosque was stabbed by the complainants party and they are inimical towards all accused as they helped the Ustad. When he was asked a specific question, he answered that he has no defence evidence. We quote : Similar answers were given by all the accused. We may also note some of the evidence noted in the court proceedings.

"9-11-1995 : All accused present. No argument for preliminary trial discharge. Call with 94/95 on 16/XI for steps.

16-11-1995 : All accused present. Call on 23rd November 1995.

23-11-1995 : Accused present. Consolidated. Charges against all the 13 accused in S.C. 66/95 and S.C. 94/95 framed. Trial will proceed in S.C. 66/95. Further proceeding in S.C. 94/95 is dropped.

Charge read over and explained to the accused. They plead not guilty to the charge. Posted for trial to 11/3, 12/3 and 13/3. Additional Public Prosecutor shall appear it is submitted. Additional Public Prosecutor shall file schedule within 30 days. Issue summons to witness.

8-5-1996 : All accused present. They are examined u/s 313 Code of Criminal Procedure They are directed to enter upon defence as I am not satisfied that this case can be disposed of u/s 232 Code of Criminal Procedure

Accused and counsel submit that they have no defence evidence. Statement filed by A-7 is received and kept in the file alongwith his 313 statement. For argument to 15th May 1996.

After hearing the argument, the Sessions Judge, who has personally seen the witnesses and took evidence, convicted accused Nos. 1 to 6 guilty of offences punishable under Sections 143, 147, 148 and 307 read with Section 149 (or in the alternate read with Section 34) and Section 302 read with Section 149 or 34 of the Indian Penal Code. Accused Nos. 1 to 6 filed appeal No. 391/96. P.W. 2 filed R.P. No. 1115/96. A Division Bench of this Court set aside the conviction and sentence of A-1 to A-6 and remanded the matter for fresh disposal. Crl. R.P.

filed against acquittal of Accused Nos. 7 to 13 were dismissed. Following is the operative part of the remand order passed by this Court:

We set aside the judgment in so far as the Appellants ate concerned, their conviction and sentence too and remand the case for fresh disposal after complying with the provisions in Section 233 Code of Criminal Procedure They shall be present before the Court of Session, Kasaragod on 9th January 1998 and the case will be disposed of untrammelled by anything in the impugned judgment, within twelve weeks thereafter. Criminal appeal is disposed of as above.

Crl. R.P. No. 1115 of 1996 is against the acquittal of accused 7 to 13. In our view, the court below has given valid reasons for their acquittal and there are no grounds to interfere with the same. Accordingly, we dismiss the revision.

In view of the decision in the remand order which has become final now acquittal of accused Nos. 7 to 13 cannot be reopened. After remand, D.Ws. 1 to 5 were examined for the defence. In fact, D.W. 2 was Village Officer who prepared Ext. P-7 site plan and he was already examined as P.W. 4 by the prosecution. D.W. 5 was P.W.1 himself who gave Ext. P-1 statement. In chief examination by defence itself, he confirmed that what he deposed as P.W. 1 was correct and defence was not able to point out anything in this regard. When the case was remanded, the learned Sessions Judge who convicted accused Nos. 1 to 6 was transferred and his successor-in-office who decided the case after remand after considering the defence evidence held as follows:

In view of the available evidence, the versions given by the defence witnesses are, according to me, not materially affecting the case as a whole.

But, on appraising the prosecution evidence, the learned Sessions Judge came to the conclusion that prosecution failed to prove the offence alleged against the accused and acquitted them. This order is under challenge now.

Before going into the disputed issues, we may look into the injuries suffered by the deceased and P.Ws. 2 and 5. P.W. 10 conducted post-mortem and issued Ext. P-3 certificate. During trial, Ext. P-3 was marked by consent of both sides as per Section 294 of Code of Criminal Procedure External injuries noted by him were as follows:

Incised wound on the face transversely placed extending from the centre of upper lip to the left cheek 14�3�3 c.m. exposing the oral cavity cutting the fall thickness of facial muscles;

Incised wound on the left cheek below tie left eye transversely placed 6�1 c.m. skin deep;

Incised wound on the lower part of chin transversely placed 10�6 c.m. flap of skin and subcutaneous tissue raised exposing the lower part of mandible;

Incised wound on the right side of neck transversely placed 12�5�6 c.m. cutting the muscles of neck on right side with carotid artery and jugular veins and trachea being cut;

Incised wound on the inter aspect of left ankle region transversely placed 6�l�l c.m. cutting the lower end of tibia;

Incised wound 1 c.m. above injury No. 5 transversely placed 4�1 c.m. skin deep;

Incised wound on the front of right leg transversely placed 5�2 c.m. cutting the tibia which is fractured;

Incised wound on the front of right leg 6 c.m. above injury No. 7, 4�0.5 c.m. skin deep;

Incised wound on the dorsum of right second toe 5�0-5�1 c.m. along the long axis of the toe cutting the tendons and bone;

Linear abrasion obliquely placed on the front of right thigh 6 c.m. long;

Linear abrasion obliquely placed on the front of left thigh 5 c.m. long)

Linear abrasion transversely placed on the front of left shoulder 3 c.m. long; and

Incised wound on the right side of scalp running anterior posteriorly 6�1 c.m. exposing the skull.

The opinion as to the cause of death of Faizal given in Ext. P-3 is that "the deceased died due to haemorrhage and shock due to injury to major vessels of neck". During the hearing, neither the prosecution nor the defence has got any challenge to Ext. P-3 findings and the opinion contained therein.

P.W. 2 was examined by P.W. 3 and following injuries were noted in the wound certificate (Ext. P-4) when he examined P.W. 2 at 1.15 a.m. on 31st January 1994:

''L'' shaped incised wound en the parietal aspect of the skull 5�6 c.ms;

Two small incised wounds on the right parietal region of the skull;

Incised wound over the nose 2�1 c.ms;

Swelling and deformity over the lower end of the left band. X-ray of the left hand showed comminuted fracture of right ulna, lower end.

He was admitted on 31st January 1994 and was discharged on 7th February 1994. Injury No. 4 was grievous. Others were simple. The patient was brought by one Mohan Kammath. The history was of ''alleged assault by known persons at Ulwar, Kumbla at 10-15 p.m. on 30th January 1994''. P.W. 5 was also examined by P.W. 3 at 1.25 a.m. on 31st January 1994 and issued Ext. P-5 certificate. As per Ext. P-5 certificate, following injuries were suffered by P.W. 5:

Incised wound over the first web space of the left hand with partial tear of the flexor tendons (1��1/2�);

Incised wound on the base of the left thumb ��+1/4�.

Doctor also opined that injury No. 1 in respect of P.W. 5 was grievous in nature. P.W. 3 sent Ext. P-6 intimation to the police. As per Ext. P-6 R.M.O. has come to the hospital. On the back of Ext. P-6 it has been noted that P.W. 2 is taken to the operation theatre for suturing and closed reduction under general anesthesia was done. It would further show that at 11-40 a.m. on 31st January 1994, the patient was not in a position to give a statement.

Trial court after remand acquitted the accused mainly on the following grounds:

(i) Ext. P-1 first information statement as well as Ext. P-10 F.I.R. was not recorded as alleged by the prosecution at the place and time recorded. In paragraph 55 of the Judgment in question it was held as follows:

All these taken together I hold that Ext P-1 was not recorded as alleged by the prosecution at the place and time recorded both in Ext. P-1 as well as in Ext. P-10.

In paragraph 72 of the Judgment, learned Sessions Judge held as follows:

....But none of the prosecution witnesses, P.Ws. 1, 2 and 5, speak about the manner in which and circumstances under which A-2 and A-7 had sustained injuries. Thus, the prosecution had dearly suppressed some material facts in this regard. It, therefore, leads to a conclusion that the prosecution story as put forward through P.Ws. 1, 2 and 5 are not correct. Therefore, to rely on the evidence of these witnesses and act upon will be an error of law and facts. Hence their testimony cannot be accepted and acted upon.

Learned Sessions Judge mentioned certain reasons for coming to the above finding. Senior Counsel appeared for the Respondents also argued that there are many other reasons to arrive at such finding even though not expressed. We may consider all grounds stated in the Judgment as well as argued by the Senior Counsel. They are as follows:

(a) There was delay in reaching the F.I.R. by the Magistrate;

(b) In the inquest report in Sl. No. 12(a) question ''whether any

person is suspected, who and why?'' answer is recorded as ''accused are known''. If first information statement was recorded earlier in time when inquest was prepared between 10.00 a.m. and 12.30 p.m., names of the accused would have been mentioned;

(c) When P.W. 7 reached the house of C.W. 9, he saw P.W. 2, the injured witness, who has seen the entire incident. But, first information statement was taken from P.W. 1, who ran away from the place of occurrence immediately;

(d) P.W. 1 is not to be believed and his presence in the scene of occurrence itself is doubtful because P.W. 1 is a loyal and dedicated worker of P.W. 5 who filed case against some of the accused earlier and failed. In view of Exts. D-7 and D -8 Judgments, he cannot be believed. Even in the counter case, P.W. 1 was not made an accused. P.W. 1 did not sustain injuries;

(e) P.Ws. 2 and 5 were not questioned immediately. That gives sufficient opportunity to have a thinking about the persons whom they have to rope in as accused in the crime;

(f) P.Ws. 2 and 5 are interested witnesses who where wholly inimical towards local Muslims and their versions are not corroborated. (These are the new reasons for doubting the prosecution case by the learned Sessions Judge).

(g) Injuries to the accused 2 and 7 were not explained by the prosecution witnesses. Incident in this case and counter case in Ext. P-12 F.I.R. registered by the same officer is one and the same.

Being an appeal against acquittal, we are bound to see whether views expressed by the learned Sessions Judge are reasonably possible. If the views expressed are reasonably possible, even if another view is possible, appellate court will not interfere in it.

In Antar Singh Vs. State of Madhya Pradesh, it was held as follows:

This Court has repeatedly held that although in an appeal against acquittal, the powers of the High Court in dealing with the case are as extensive as that of the trial court, but before reversing the acquittal, the High Court should bear in mind that the initial presumption of the innocence of the accused is in no way weakened, if not reinforced, by his acquittal at the trial, and further, the opinion of the trial court which had the advantage of observing the demeanour of the witnesses, as to the value of their evidence should not be lightly discarded. Where two views of the evidence are reasonably possible, and the trial court has opted for one favouring acquittal, the High Court should not disturb the same merely on the ground that if it were in the position of the trial court, it would have taken the alternative view and convicted the accused accordingly....

In this case, originally, the trial Judge who saw the witnesses and observed the demeanour of the witnesses and assessed the value of evidence, believed them and convicted A-1 to A-6. After remand, even though witnesses were examined by defence, these witnesses were brushed aside but disbelieving the witnesses P.Ws. 1, 2 and 5, accused were acquitted. Even if two views are possible view that is possible in favour of the accused has to be taken into account. In Kali Ram Vs. State of Himachal Pradesh, . Apex Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

Now, we may analyse whether the reasoning advanced by the learned Sessions Court and finding of the Sessions Judge is a reasonably possible view and whether on review of evidence, a view in favour of the accused can be taken on the facts of this case on the basis of evidence adduced in this case. Court has to see that no innocent man is punished but also should ensure that guilty man does not escape as held by the Supreme Court in State of U.P. Vs. Anil Singh, that both principles are equally important. Now, let us examine the findings and reasonings in the back of evidence adduced in this case.

As far as delay in sending the first information statement and F.I.R. to the Magistrate and defect of Exts.P-1 and P-10, the evidence disclosed following facts. The incident happened after about 9.15 p.m. on 30th January 1994. Ext. P-9 General Diary [Ext. P-9(a) entry] shows that a telephone message was received in the police station from a person who did not disclose his identity by about 9.50 p.m. on the day that fights are going on at Ujar Ulwar village and one person died. Ext. P-9 General Diary shows that it is written continuously without giving any gap for addition or interpolations. P.W. 7 deposed that he a long with other constables reached the village by police jeep after entering the information received in the G.D. and entrusting the G.D. charge to the H.C. When they reached the mosque, they understood that something happened near the house of P.W. 5 and they went to that house. As stated by P.W. 5, from there they went to the house of C.W. 9, brother of P.W. 5. P.W. 1 and P.W. 2 apart from family members of C.W. 9 were there. P.W. 2, injured son of P.W. 5 had injury in skull including nose. According to P.W. 7, he was not in a position to speak. Therefore P.W. 7 took Ext. P-1 statement from P.W. 1. Since injuries of P.W. 2 were very serious and P.W. 5 was also injured, he sent P.W. 2 as well as P.W. 5 in the police jeep for getting medical help. Since jeep had gone, he sent the F.I. statement recorded at 22.45 hours of 30th January 1994 through a constable to the police station. There is no delay in recording the F.I. statement. There is no circumstance to doubt Ext. P-1 was not written at the time and place of the incident. There is also no circumstance for P.W. 7 S.I. or investigating officer P.W. 9 to make any false case. As per the evidence and according to the defence also, P.W. 5 and group were against the Muslims and Jama-ath and they had leniency to B.J.P. According to the accused, some of them were returning after a Muslim League meeting. P.W. 9, investigating officer was a Muslim. P.W. 8 who registered the F.I.R. was a Muslim and Muslim League was one of the constituent part of the ruling Government at that time. Therefore, no reason was there to make a false case for the police against the accused to support P.W. 5.

Recording of F.I. statement and lodging F.I.R. is only starting point of investigation and there is no delay in recording the first information statement or registering Ext. P-10 F.I.R. The learned Sessions Judge found as follows at paragraph 54 of the Judgment:

The receipt of telephonic information by P.W. 7 was recorded in the general diary of Kumbla Police Station which was marked as Ext. P-9. I have already stated the timings of each event as was explained by the prosecution witnesses. The prompt recording of Ext. P-1 and registration of Ext. P-10 containing the names of A-1 to A-6 clearly gives an indication that the prosecution was honest and proceeded in the right direction within the shortest time of occurrence. I should surely appreciate the evidence of P.W. 7 as well as P.W. 9 that on reaching the place of occurrence and after meeting P.W. 5, P.W. 1, P. W. 2 and C.W. 9 they gave more importance in sending P.Ws. 2 and 5 to the hospital and also for maintaining law and order situation in the locality.

Ext. P-9 General Diary as well as deposition of P.W. 8 also show that there was no delay in forwarding the F.I.R. to the Magistrate. Ext. P-10 F.I.R. was registered at 00.30 hours on 31st January 1994. Ext. P-9 shows that there was only P.W.8 head constable and another constable were there in the station at that time. Other police personnel were on law and order duty as situation was tense. Ext. P-10 was sent to the court through a constable P.C. 450 at 8 a.m. on 31st January 1994. If the Magistrate noted his initial only at 3 p.m. prosecution cannot be faulted.

There is no evidence in the case whether the Magistrate was available in the morning. On the facts of the case, there is no delay and even if there is delay, it was explained clearly. Even otherwise, it was held by the Supreme Court in Pala Singh and Another Vs. State of Punjab, that delay in receipt of occurrence report by itself does not make the investigation tainted.

7...Section 157 Code of Criminal Procedure requires such report to be sent forthwith by the police officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction u/s 159. But, when we find in this case that the F.I.R. was actually recorded without delay and the investigation started on the basis of that F.I.R. 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.

We also refer to the findings of the Supreme Court in Om Prakash alias Omla Vs. State of Delhi, . In this case on getting telephonic information after entering in the G.D. police party rushed to the spot. On reaching the spot, without any delay F.I. statement was recorded. There was no delay in starting the investigation. Injured were sent in the police Jeep itself to the hospital. Law and order situation was tense. Ext. P-1 was recorded at the house of C.W. 9 at 11.45 p.m. F.I.R. was registered at 0.30 hours on 31st January 1994 and on the same day morning it was forwarded to the Magistrate and on these circumstances, no infirmity can be placed on Ext. P-1.

Another circumstance relied on by the learned Sessions Judge is that the names of the accused were not mentioned in the column provided under Sl. No. 12(a) of the inquest report (Ext. P-14). What is recorded is "accused are known". Their names are not mentioned. But, it should be noted that the names of the accused are mentioned at the column where it is provided that "any person was questioned and whether statement was recorded from any person and their statement". Statement was recorded from C.W. 9 who has not seen the incident. But, even then, the names of the first six accused (Respondents in this case) were mentioned by him as heard by him to have committed the offence even though he had only hearsay (though first hand) information from P.Ws. 1, 2 and 5. Eye witnesses were not present when inquest report was prepared. Even in Column 12(a), it is stated that accused are known. Therefore, non-mentioning of the names of the accused in Column No. 12(a) will not make any infirmity or will not show that Ext. P-1 was not given at the time when inquest was prepared. In Gopalakrishnan v. State of Kerala 1996 (1) KLT 237 a Division Bench of this Court held that when names of the accused are mentioned in Column No. 13 through the evidence collected at the time of incident, it is not at all necessary to mention their names again in Column No. 12(a). In fact, the names of these accused whose names were mentioned in Ext. P-1 were mentioned in Ext. P-14 under Column No. 13. In this connection, we also note the ambit and scope of Section 174 of the Code of Criminal Procedure. In Pedda Narayana and Others Vs. State of Andhra Pradesh, the Supreme Court held as follows:

Proceedings u/s 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings u/s 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report.

The same was approved in Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, .

In Nirpal Singh and Ors. v. State of Haryana 1977 S.C. 262 it was held that it is not necessary to incorporate statement of eye-witnesses in the inquest report while preparing the inquest report. In fact, the Supreme Court in that case held that it is advisable not to record the statement of eye-witnesses in the inquest report. The Supreme Court observed as follows:

... We would, however, like to indicate that it is not at all necessary in law to incorporate the statements of the witnesses in the inquest report. The inquest report is to be made by the Investigating Officer just to indicate the injuries which he has found on the bodies of the deceased persons. It may be witnessed by one or two persons but it is not at all necessary for the Investigating Officer to record the statements of the witnesses or to get the statements of witnesses signed on the inquest report and incorporate the same in it which introduces an element of chaos and confusion and demanding an explanation from the prosecution regarding the statements made therein.

In the above case, it is also stated that non-examination of the witness who was questioned during the time of making the inquest report is not at all fatal to the prosecution and it is not necessary for the prosecution to multiply witness after witnesses on the same point. Therefore, non-examination of C.W. 9 is also not fatal. In George and Others Vs. State of Kerala and Another, the Supreme Court held that the object of preparing inquest report is to investigate into and draw up a report of the apparent cause of death describing such wounds found on the body of the deceased and stating in what manner or by what weapon or instrument, if any, such wounds appear to have been inflicted. But, it is neither necessary nor obligatory on the part of the investigating officer to investigate into or ascertain v*ho were the persons responsible for the death. In this case, even in Column 12(a) it is stated that accused are known and in Column No. 13, the names of the accused (A-1 to A-6) were also mentioned and non-mentioning of their names in Column No. 12(a) of Ext. P-14 inquest report will not make any infirmity to Ext. P-1 first information statement or we cannot gather that the statement was not taken at the time mentioned in it. We are of the opinion that even though it is for the prosecution to prove the charges beyond shadow of doubt, when a contention is taken by the defence that the F.I.R. was not recorded at the time and date mentioned in the F.I.R. and it was prepared later, burden is on the accused to show that there is at least some reasonable basis for such a contention. In this connection, we refer to paragraph 10 of the decision reported in Ram Prakash Singh Vs. State of Bihar, .

Another contention regarding the infirmity in the F.I.R. and flaw in the prosecution evidence relied on by the Respondent was that first information statement was taken from P.W. 1 and not from P.W. 2 who was injured. There is no rule or mandate u/s 154 of the Code of Criminal Procedure that F.I. statement should be recorded only from an eye-witness. It is, of course, true that a cryptic information or a telephonic message is not to be treated as F.I.R. Immediately after getting telephonic information from an unknown person, police party reached the place of occurrence and they went to the house of P.W. 5 hearing that some incident took place there and P.W. 5 took them to the house of C.W. 9. There, they saw P.Ws. 1 and 2. P.W. 1 was there at the time when the incident started. On seeing that the deceased fell down and P.W. 2 was injured, he escaped to the house of C.W. 9 by running. But, he clearly saw the persons assembled there and who attacked the deceased and P.W. 2. He identified the persons at least with regard to A-1 to A-6 with the names. P.W. 2 was seriously injured. Presence of P.W. 2 is not disputed by the defence also as in the counter case, he was made an accused. But, P.W. 2 had injuries in the skull and bleeding through nose and there were injuries. Even though he was not unconscious, he was not able to speak. Even as per Ext. P-4 wound certificate, on 31st January 1994, at 11.40 a.m. he was not in a position to give a statement. Prime concern of the police as well as of the people there in the house of C.W. 9 was to send the injured to the hospital. The Police Inspector had rightly sent P.Ws. 2 and 5 to the hospital in the police jeep itself or at least to the place from where they could catch a car to reach the hospital. P.W. 1 saw the earlier part of the incident when he was with P.W. 2 as well as with the deceased and gave the first information statement with names of the accused 1 to 6. Their names were later disclosed by P.W. 2 also. Their names were seen in Ext. P-14 inquest report also. Therefore, merely because F.I. statement was not taken from P.W. 2 injured person, there is no infirmity in the prosecution case.

Next question is whether the court below is right in disbelieving P.W. 1 because of Exts. D-7 and D-8 Judgments consequent on the complaints filed by him under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Ext. D-7 was dismissed as two witnesses examined were declared hostile and allegations in the complaint itself may not constitute the offence. The second case (Ext. D-8) was dismissed as the offence was not proved beyond doubt and benefit of doubt was given to the accused. It is true that even according to P.W. 5, P.W. 1 was a loyal servant of P.W. 5, Merely because he was a loyal servant of P.W. 5, his evidence cannot be disbelieved. Even evidence of close relatives cannot be ignored. It is for the court to sift the evidence. Further, the case of the prosecution is only probable as when P.W. 2 went to the house of C.W. 9 in the night, deceased and P.W. 1 were asked to accompany them in view of the tense situation prevailing. Presence of P.W. 1 at the place of the incident is spoken to by P.Ws. 2 and 5. Presence of P.W. 1 in the locality is proved by Exts. D-7 and D-8 and, therefore, only because there were two criminal cases wherein P.W. 1 was the complainant is not at all a reason for disbelieving P.W. 1. P.W. 1 did not sustain injuries as he ran away from the place of incident seeing Faizal and P.W. 2 were stabbed by the accused. The conduct of P.W. 1 is most natural and criticism levelled on the conduct of the witnesses is also unwarranted.

The contentions that P.Ws. 2 and 5 were not questioned immediately and that P.Ws. 2 and 5 were interested witnesses and non-corroboration of their evidence by independent witnesses are fatal to the prosecution etc. can be considered together. P.W. 2 was injured very seriously. Apart from fracture, he had deep cut injuries in the skull and nose portion. He was not in a position to speak. This was spoken to by the witnesses including P.W. 7 Sub Inspector of Police when he met them at the house of C.W. 9. It was further deposed by P.W. 7 that he sent P.W. 2 who was seriously injured as well as injured P.W. 5 to the hospital in the police jeep itself. P.W. 7 took the F.I. statement from P.W. 1 thereafter. There was law and order situation in the place. The Sub Inspector as well as Circle Inspector and constables were very much concerned with the law and order situation. Next day they went to the hospital to meet P.W. 2 and he was under general anesthesia. He was not in a position to give statement. Thereafter, when he was able to speak, P.W. 2 was questioned by the investigating officer. Similarly, when P.W. 9 C.I. went to the hospital, P.W. 5 was not there. He was also questioned without much delay and it is clear that there is not much delay in examining P.Ws. 5 and 6. The Supreme Court in Dr. Krishna Pal and Anr. v. State of U.P. 1996 S.C.C. 249 held that even if there is inordinate delay in examination of witness by police and even if the delay is not explained it is not a ground for discarding the evidence of eye witnesses. In Karnel Singh v. State of M.P. 1995 S.C.C. 977 the Supreme Court held that on the basis of defective investigation, it would not be proper to acquit the accused if there is otherwise evidence of eye witnesses. Here, in this case, there is no inordinate delay in examining P.Ws. 2 or 5 by the investigating officer and the delay was explained clearly by P.W. 9. Further Ext. P-1 F.I. statement was taken immediately after the incident without any loss of time. Names of six persons accused were mentioned in the F.I. statement. It was also stated that other seven persons involved in the incident can be identified. At the maximum, other persons added by P.Ws. 2 or 5 when they were questioned can be absolved by giving benefit of doubt. Here, we are concerned only with the first six accused whose names were mentioned in the F.I. statement as well as in the inquest report and deposition given by P.Ws. 1 and 2 are concerned and not accused whose names were added after getting statements from P.Ws. 2 and 5.

The incident happened in the night after about 9.15 p. m. P.W. 2 alongwith the deceased and P.W. 1 was going to the house of C.W. 9 in the way through the paddy field. Only the victims and assailants were present at the place of incident. There cannot be any independent witnesses. Though P.W. 1 is not related, he was an employee of P.W. 5. Deceased was also an employee of P.W. 5. He was walking in front followed by P.W. 2 and behind him P.W. 1. P.Ws. 1 and 2 are natural witnesses and even the defence has no case that any other person had seen it. In this connection, we refer the following observations of the Supreme Court in State of Rajasthan v. Teja Ram and Ors. 1999 S.C.C. 436.

20...It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against non-examination of such a person as a prosecution witness. Otherwise, merely on surmises the court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.

C.W. 9 was cited as a charge witness to prove the identity of the deceased. But, post-mortem certificate itself was marked without dispute and identity was not disputed. C.W. 9 is not an eye witness it is of course true that he was a witness to the inquest. Ext. P-1 was given in his house. C.W. 9 is also brother of P.W. 5. Even if he was examined, the same allegation that he was an interested witness would have been raised. The only eye-witnesses are P.Ws. 1 and 2 to prove the main part of the incident and P.W. 5 to prove second part when he wits attacked. Evidence adduced by P.Ws. 1, 2 and 5 cannot be discarded merely because they are interested witnesses. P.W. 2 was injured very Seriously. P.W. 5 was also injured. Following the Supreme Court decision reported in Dalip Singh and Others Vs. State of Punjab, Vadivelu Thevar Vs. The State of Madras, and Guli Chand and Others Vs. State of Rajasthan, a Division Bench of this Court in Rajan v. State of Kerala 2000 (1) KLT S.N. 1 Judgment by Shri Justice Arijit Pasayath, Chief Justice (as he then was) held that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person leaving way to the real accused to escape. P.W. 2 is not only related to P.W. 5 but he was seriously injured. In Paresh Kalyandas Bhavsar Vs. Sadiq Yakubbhai Jamadar and Others, also the Supreme Court held that delay in examination of injured witness by the police will not affect their evidence and their relations or interest in the matter is not a ground to discard their evidence in toto. The Supreme Court held as follows:

...It is needless to say that mere interestedness is not a ground to reject the evidence of the eye witnesses particularly those who were injured. Firstly, their presence during the occurrence cannot be doubted. Secondly, the injured witnesses would be the last persons to leave out the real culprits and implicate others falsely.

In the above case, the Supreme Court also observed as follows:

...Merely because his brother figured as a panch witness or even accepting that his brother and some relations were accused in the earlier cases it could not be a valid ground to doubt his veracity and on the suggestion that P.W. 4 was chosen as a complainant purposely and deliberately also has no force since his presence at the scene of occurrence cannot be doubted.

Presence of P.W. 2 at the scene of occurrence is not disputed even accepting the version of the accused because of the counter case. The Supreme Court in State of Rajasthan v. Hanuman (2001) 1 S.C.C. 337 held that testimony of eye-witnesses cannot be rejected merely because the witnesses were related or partisan. There may be cases when atrocities are committed wherein no persons other than related persons will be available. Such evidence cannot be deleted as partisan or interested. If the evidence evokes the confidence of the court, such evidence has to be taken into account [See : Appabhai and Another Vs. State of Gujarat, and paragraphs 6 and 7 of the Judgment of the Apex Court in Sewaka @ Ramsewak v. State of M.P. and Anr. J.T. 2001 (9) S.C.C. 312.

A four member Bench of the Supreme Court in Masalti Vs. State of U.P., held that evidence of eye-witnesses cannot be dicarded merely alleging that they are partisan. The Supreme Court held that:

Mr. Sawhney also argued that the test applied by the High Court in convicting the Appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the Appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case.

In this case, the incident happened in the paddy field where nobody else was available. Here, P.Ws. 1 and 2 spoke about all the 13 accused. But, in Ext. P-1, names of only six accused persons were mentioned. Their names were mentioned in the inquest report also. Therefore, conviction can be made only on that six accused as benefit of doubt can be given to the other accused and merely because no other witnesses were available at the scene of occurrence, evidence of P.Ws. 1, 2 and 5 etc. cannot be discarded.

Another important point argued by the learned Counsel for the accused is regarding non-explanation of the injuries on the accused. Prosecution did not hide or suppress the fact that there was an allegation that accused also sustained injury in the incident. P.Ws. 9 and 10 spoke about the same. During examination in court, it was confirmed by P.W. 9 investigation officer that Ext. P-12 is the F.I.R. in the counter case and P.W. 9 deposed that the incident alleged is one and the same. In that case, Ext. P-22 is the first information statement from the second accused and Ext. P-12 F.I.R. was registered on the basis of Ext. P-22 of the Kadri Police Station and the same was transferred to Kumbla Police Station and the incident was stated to be the same. 2nd and 7th accused in the case had injuries as per Exts. P-23 and P-24 certificates issued by P.W. 10 doctor. The above certificates are regarding the treatment particulars and not wound certificates. A-s per Ext. P-23 certificate, following injuries were suffered by A-2:

Incised wound right shoulder 2� in length;

Incised wound left side of chest 1.5� in length;

Incised wound left elbow 3� in length;

Incised wound left forearm 3� in length;

He has fracture lateral condyle of left humerus.

According to P.W. 10 doctor, injury No. 5 was a grievous injury. Ext. P-24 shows that A-7 had suffered the following injuries:

Incised wound 2.5� long over the left forearm with tendons divided.

P.W. 10 doctor who was examined to prove that certificate had also stated that these injuries in Exts. P-23 and P-24 certificates can be caused otherwise than by assault that is, by a fall or by a road transport accident. Following are the answers given by him:

(Q) Can these injuries in Exts. P-23 and P-24 be caused otherwise than by assault?

(A) Yes, these injuries could have been caused by fall or R.T.A.

(Q) Can the incised wounds in Exts. P-23 and P-24 be caused by self infliction?

(A) It is difficult to say one way or the other.

P.W. 10 Doctor further deposed as follows:

I have been examined as P.W. 3 already in S.C. 111/95 before this Court. The depth of these incised injuries are not noted in any of the two certificates-- Exts. P-23 or P-24. Directions of the injuries are also not noted in Exts. P-23 or P-24.

The injuries in a medico-legal case may have characteristics which give indications about the nature of the weapons used to inflict the injury. The exact location of the injuries are also not noted in Exts. P-23 or P-24.

He also deposed that the dates of discharge are not shown in Exts. P-23 or P-24 and certificates showing treatment particulars are normally issued at the time or after discharge. According to him he was working as a visiting surgeon at Unity Health Complex, Mangalore. It is very difficult to believe and act on the above certificates. The doctor had deposed that he was an Assistant Surgeon at District. Wenlock Government Hospital, Mangalore and not a full-time doctor in the Unity Health Complex, Mangalore where A-2 and A-7 were treated. He also stated that apart from his Government service he was having his own private clinic by name ''Indu Clinic'' and he was also doing service in Unity Hospital. Records were not available in the hospital. They were with the doctor. According to him, he got permission from the Administrative Medical Officer and he himself searched and got the same from the old files. He stated as follows:

Case sheets relating to M-L cases are kept separately in the hospital in a store room. The case sheets pertaining to Exts. P-23 and P-24 were not available in that store room. They were available in another store room. After searching the new store room, I went to the old store room and got the two case sheets.

According to him, no entries are made by him in Ext. P-25 case sheet. No entries are also made by him in Ext. P-25(a) admission record. He had not admitted the patient and the patient was not examined by him first. Similar is the case with respect to Ext. P-26 and Ext. P-26(a). Ext. P-25(b) and Ext. P-26(b) series are Doctors'' records. He has stated that Ext. P-25(b) and Ext. P-26(b) series do not contain any entry/note/direction by him. He further stated that he just examined these patients after referring them by Dr. Umanand Mallya who is an Orthopaedic Surgeon. Date of discharge in Exts. P-25 and P-26 also is not correct. Exts. P-25 and P-26 did not contain doctors sheet written by Dr. Umanand Mallya who treated them. X-ray records were also not produced; Treatment of the patients were over as per the case sheets on 28th February 1994 and from 28th February 1994 to 17th March 1994 ho treatment was given. But, on 14th February 1994 there is an instruction by Dr. Mallya in Ext. P-25(b)(I) to stop all drugs. He also stated that there is no wound certificate. According to him, Ext. P-25(e) and Ext. P-26(e) are the doctors'' record sheet written by Dr. Umanand Mallya. He further stated that both A-2 and A-7 were in the hospital till 15th March 1994. But Exts. P-25 and P-26, A-2 and A-7 were discharged on 28th February 1994. They were operated only on 22nd February 1994. According to P.W. 10 even though case sheets are usually maintained chronologically, Ext. P-25 and P-26 are not arranged so. He again stated that he had helped Dr. Mallya to perform surgeries.

When the case was remanded Dr. Mallya was also examined as D.W. 1. He was not also a permanent doctor of the Unity Health Complex, Mangalore. He was a visiting doctor. He explained what were the injuries caused to A-2 as per Ext. P-25. He stated that in Ext. P-25(e) P.W. 10 had not recorded any fracture. He also stated that Unity Health Complex is a private institution. According to him, P.W. 10 alone could issue a wound certificate as A-2 was admitted in the casualty. But, in this connection, we see that P.W. 10 had stated that he was not the first doctor who saw the patient in the hospital. According to him, a register was maintained by the hospital authorities pertaining to medico-legal cases. He stated as follows:

...The entries in such register involving medico-legal cases are made by the doctors like P.W. 10 who are called in for that purpose. According to my knowledge that register is called accident register and when a certificate is issued to the patient or the police authorities, that certificate is called as wound certificate.

D.W. 1 was a Professor of Ortho at Kasthurba Medical College, Bangalore. According to him X-ray films will be there. He also stated as follows:

Ext. P-25 as it does not show that after 16th February 1994 A-2 was given any physiotherapy treatment. The case sheet in my hand, Ext. P-25, does not show that after 16th February 1994 any treatment was given to A-2. Ext. P-25 does not show that prior to 16th February 1994 A-2 required physiotherapy.

But, he stated later, during cross-examination as follows:

Do you have any explanation to offer with regard to the absence of entries made by you in Exts. P-25 and P-26?

Those sheets containing my entries are not seen in these sheets (A).

He also stated that:

According to me, the surgery done on A-2 and A-7 were major. I agree that none of the vital organs of the body of A-2 and A-7 were affected as could be seen from Exts. P-25 and P-26. No major blood vessels were cut in respect of these persons I have not noted that any nerve system was affected or cut in respect of A-2 and A-7. None of the vital parts of the body of A-2 and A-7 were affected as could be seen from Exts. P-25 and P-26.

He also stated as follows:

It is possible that the injuries on A-2 and A-7 could be caused other than by weapons like M.O. 1 and M.O. 6. I only said that these injuries were caused by sharp edged weapons. I have not noted the direction of the injury on the body of the patients, A-2 and A-7.

We are of the opinion that what are the specific injuries caused to A-2 and A-7 during the incident are not proved. Whether these injuries as mentioned in Exts. P-25 and P-26 were actually caused, whether such injuries were sustained by A-2 and A-7 as alleged by them at the same scene of occurrence etc. are also doubtful. There is no irrebutable presumption that always evidence given by the doctor should be accepted. Their evidence also is to be appreciated like that of any other witnesses See Mayur Panabhai Shah Vs. State of Gujarat, .

We also refer to the defence in the statement u/s 313 of the Code of Criminal Procedure. They had no case that they inflicted injuries on P.W. 2 or the deceased for private defence or they attacked the accused. The learned Sessions Judge held as follows:

In the 313 Code of Criminal Procedure statement none of the six accused had stated that they were attacked and therefore, they in self defence attacked the prosecution witnesses and the deceased. During the argument also, the defence did not put forward a plea of right of private defence. That was the reason why I did not frame a point on that aspect. The clear case of the accused during their examination u/s 313 Code of Criminal Procedure is that they were involved in the case as they had supported the Ustad of the Mosque. A-2 stated that while he was going to his home, he was prevented and attacked. Thus, there is absolutely no case of right of private defence either in the evidence or for the accused.

However, the Sessions Judge held that none of the prosecution witnesses P.Ws. 1, 2 or 5 spoke about the manner in which and the circumstances under which A-2 and A-7 had sustained injuries and, therefore, it was held by the learned Sessions Judge that they cannot be believed. The accused had no case that they were exercising the right of private defence. So, they had no case that the deceased or P.Ws. 2 or 1 attacked them. We are of the opinion that observations of the learned Sessions Judge is incorrect. In fact it cannot be concluded that any serious injuries were caused to A-2 and A-7 during the course of incident when deceased and P.W. 2 sustained injuries. The evidence of P.W. 10 is very doubtful. No records were kept in the hospital and no accident-cum-wound certificate was produced. Date of Discharge itself was seen corrected whereas the certificate and oral evidence of P.W. 10 will not tally with Ext. D-5 certificate produced by the defence. In any event, since the defence has no case that they sustained injuries while exercising the right of private defence, it cannot be stated that what was stated by P.Ws 1, 2 and 5 are not correct merely because of the injuries alleged to have sustained by A-2 and A-7 on the date of the incident. The manner of commission of the crime was explained by the prosecution. When there are very clear and cogent evidence adduced by the prosecution including the evidence of witnesses, the absence of explanation of the alleged injuries caused to A-2 and A-7 are not fatal to the prosecution case.

Now, we may examine the injuries on the accused with respect to Ext. P-14 inquest report. In Ext. P-14 inquest report, it is noted that M.O. 6 knife wrapped with M.O. 9 newspaper was found from the waist of the deceased. In the chemical analysis report it was found that there was no bloodstain on it. M.O. 6 was an unused weapon wrapped in M.O. 9 newspaper found from the waist of the deceased and police party arrived immediately after the incident. There was a tense situation. There is no case that the prosecution witnesses planted the knife in the waist of the body of the deceased. There was also no chance or need for the same. The fact that M.O. 6 knife was wrapped in M.O. 9 newspaper shows that there was no time for the deceased to attack the second or seventh accused or any others. Before making use of such weapon which he was keeping with him for use in case of necessity by way of private defence, he was attacked and he fell down. The prosecution case would be served in no manner by introducing such a weapon on the person of the deceased. Similarly, there is nothing to suggest that the accused would have introduced M.O. 6 weapon wrapped in M.O. 9 newspaper on the body of the deceased after the occurrence. Therefore, M.O. 6 weapon wrapped in M.O. 9 paper was in the person of the deceased at the time of his death and obviously he had not received time to take out that weapon and use it for offence or defence. The nature in which M.O. 6 weapon was found shows that the deceased was not the aggressor. If P.Ws.l, 2 and the deceased had intention to attack the group of persons which came against them, it was improbable that the deceased who was walking ahead of them would not have taken out M.O. 6 weapon which was kept concealed on his body. This probabilise the version of P.Ws. 1 and 2 that it was unanticipated attack on them. So, the minor nature of injuries found on the person of the accused will not show that they sustained injuries in a deliberate pre-planned aggression by the deceased or P.W. 2 or their group. We are also of the opinion that on the facts and circumstances of the case, no explanation of the injuries on the accused by P.Ws. 1, 2 and 5 the occurrence witnesses is not fatal. In Takhaji Hiraji Vs. Thakore Kubersing Chamansing and Others, the Supreme Court held that:

...the Court ought to make an effort at searching out the truth on the material available on record with a view to find put how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting prosecution case in its entirety for non-explanation of the injuries sustained by the accused persons is erroneous. this Court further held, it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions:

(i) that the injuries on the person of the accused were of a serious nature; and

that such injuries must have been caused at the time of the occurrence in question.

In this case, we are not satisfied that any serious injuries were caused to A2 and A7 in the incident. Even though the defence need not prove their case beyond doubt like the prosecution, their defence also cannot be ignored and taking into account their own defence, we can attribute no serious flaw in the prosecution case especially when prosecution themselves had tried to explain injuries by questioning P.Ws. 9 and 10. Evidence adduced in this case by the prosecution are consistent and creditworthy and disprobabilise the case of the accused in this regard.

Next we may summarise the evidence in this case to reassure ourselves that there is clear and cogent evidence against A1 to A6.

P.W. 1 who gave Ext. P-1 first information statement has given evidence also in accordance with the same in the court. There was no contradiction in his deposition before court and the statement given before the police. It is true that he ran away from the place seeing that P.W. 2 and deceased who were walking ahead of the varambu were injured. He ran away from the place for his safety to the house of C.W. 9 He has identified all the accused. However, only six names were given at the time of giving F.I. statement immediately after the incident. The statement given immediately after the incident without any time gap has to be given its due weight. Even though delay in lodging F.I.R. itself is not fatal to the prosecution as law has not fixed any time limit as held by the Supreme Court in Ravinder Kumar and Anr. v. State of Punjab AIR 2001 S.C.W. 3366 taking F.1. statement immediately and lodging F.I.R. without delay expels the opportunity for any possible concoction of a false version. In the F.1, statement P.W. 1 had stated that the other accused who were present also were known to him even though the names were not stated in the F.1. statement. The manner of attack on the deceased as well as P.W. 2 were deposed by P.W. 1 in accordance with the prosecution case. He was an eye witness. He saw the incident till he ran away and he identified the persons involved in the incident. P.W. 2 was an injured witness. It is not disputed that P.W. 2 saw the incident. He was also attacked brutally along with the deceased. When he alongwith P.W. 1 and the deceased were going to the house of C.W. 9, they saw a group of persons standing there and those persons proceeded towards them when they lit the torch and they also lighted the torch on them and the entire incident as per the prosecution story which we have stated at the beginning of the judgment was deposed by P.W. 2. He is a direct eye witness. He was injured seriously. He was unable to speak when the police came because of the injuries on the head and bleeding through nose. He was sent to the hospital in the police jeep itself. When police went to the hospital, he was under general anesthesia for operation. When police questioned, he also gave the statement. There are no notable contradictions or omissions in the statement as well as in the deposition. Names of all the 13 persons including the six Respondents were also given by him. P.W. 5 left his house to the place where the sound was heard. He saw some people running away and identified the other people. According to him, he enquired with A-7 what happened and he said they have finished two persons. A-13 gave a stab on him. He ran away to his house. In fact, A-13 was his own brother-in-law. He also explained how injuries were caused to him. He identified A-2, A-3 A-4, A-7, A-9, A-11, A-12 and A-13. He also corroborated the evidence given by P.W. 7 S.I. of Police and stated when police came and how they went to the house of C.W. 9 and balance part of the prosecution story. The injuries found on the persons of the deceased, P.Ws. 2 and 5 would show that the victims and the assailants must be close to each other. Even believing that injuries were caused to A-2 and A7, it can be seen that they were very near to them. They bad also taken torches with them. There was no difficulty for identification. Therefore, evidence of P.Ws. 1 and 2 as well as P.W. 5, eye witness, the statement in the inquest report, medical evidence, motive and the surrounding circumstances etc. would show that the accused inflicted the injuries on the person of P.W. 2, P.W. 5 and the deceased in the manner and at the time and place as alleged, by the prosecution, In fact, benefit of doubt was given to accused Nos, 7 to 13 as only names of six persons were mentioned in Ext. P-1 F.I. statement and Ext. P-14 inquest report. Therefore, we are of the opinion that prosecution was able to prove conclusively that accused Nos. 1 to 6 are guilty of the offences charged against them. Their presence cannot be disputed and their over acts were also proved by clear and cogent evidence of P.W. 2 supported by P.W. 1 as well as P.W. 5. Motive and other circumstances are also support the case of the prosecution.

We may also point out another disturbing fact in this case. On the ground that no opportunity was granted to examine the defence witness case was remanded to the Sessions Court in the appeal against conviction of A-1 to A-6. At the time when earlier appeal was filed, there was no contention for the Appellant that the witnesses already examined were not fully cross-examined or they were not given time for cross-examination or they want the prosecution witnessess to be recalled again for cross-examination. But, when the case was remanded for defence evidence, if any, P.W. 4 was again summoned as D.W. 2 and P. W. 1 was again summoned as D.W. 5 as defence witnesses. They were asked leading questions also in chief examination by the defence counsel. Perhaps they might have been examined to see that by distance of time, the defence will be able to get some contradictions. But, those witnesses stuck on their earlier statements. Nothing was elicited from D.W. 5 to show that earlier deposition was incorrect. Of course, Exts. D-7 and D-8 Judgments were marked through him. Details regarding the Judgments were questioned to him when he was examined earlier. In any event, he con firmed the prosecution story as a defence witness in his chief examination when he was examined as D.W. 5. So, by examining D.W. 5, the accused''s own witness has confirmed that prosecution case is correct. Now, it cannot be stated by the accused that defence evidence adduced in chief examination is not binding on them and evidence of D.W. 5 clearly proves the case of the prosecution. D.W. 4 was examined to set up a plea of alibi for A-1 and A-4 to A-6. He was the Panchayat President and he attended a Muslim League meeting at Kasaragode on 30th January 1994 and after the meeting he returned in a jeep driven by A-5. In the jeep, A-4 to A-6 where also there. They on their way home dropped him at 10.45 p.m. In cross-examination, he deposed that he did not go to the meeting place with the accused and he was not aware when they came to the meeting. His evidence was shattered during cross-examination and the Sessions Judge who acquitted the accused did not place any reliance on his evidence and did not consider the plea of alibi. It is settled law that plea of alibi should be pleaded with absolute certainty completely excluding the presence of the accused at the time and presence of occurrence See Rajesh Kumar v. Dharam Vir and Ors. 1997 S.C.C. 591. Strict proof totally excluding the possibility of presence of the accused has to be established to accept the plea of alibi as held by the apex court in State of Maharashtra Vs. Narsingrao Gangaram Pimple, Here defence failed to establish the plea of alibi by the examination of D.W. 4. Senior Advocate who was appearing for the Respondent also did not press the plea of alibi. D.W. 4 also stated in cross-examination that he read from the newspapers that the houses of P.W. 5, his brother, his sister and other close relatives had been destroyed by the Jamaath people. It will only aid the prosecution case regarding motive. Evidence adduced for the defence after remand did not make any dent on the prosecution evidence. In fact, it only supported the prosecution as a whole.

After considering the entire evidence adduced in the case, we are satisfied that prosecution was able to prove the case conclusively against A-1 to A-6 beyond any shadow of doubt and the finding by the Sessions Court otherwise is perverse and manifestly erroneous. Appreciation of evidence by the Sessions Court in this case lacks coherence and findings are based on unwarranted assumptions. Hence, even though it is an order of acquittal, interference is required See Para 12 of the Judgment of the apex court in Narinder Singh v. State of Pnnjab AIR 2000 S.C.W. 2313. It was held in Ambika Prasad and Another Vs. State of (Delhi Administration, Delhi), that a criminal trial is meant for doing justice not only to the accused but also to the victim and the society so that law and order is maintained. In this case, only conclusions possible from the evidence is that accused Nos. 1 to 6,that is, Respondents in this appeal are guilty of the charges levelled against them. Therefore, we set aside the judgment of the learned Sessions Judge in acquitting accused Nos. 1 to 6 u/s 302 of the Indian Penal Code and other offences charged against them. Their identity, their presence and overt acts made by A-1 to A-6 as alleged by the prosecution were clearly proved. Common object of the unlawful assembly consists of 13 persons including A-1 to A-6 was to annihilate members of the Thareequet sect. That is the reason why they gathered in the night in between the house of P.W. 5 and C.W. 9. They were armed with deadly weapons and committed the offences of rioting. Out of the 13 persons, clear identification was made only with respect to A-1 to A-6 and they cannot in any event escape from constructive liability u/s 149. They are equally guilty of offences u/s 302 and 307 read with Section 149 of the Indian Penal Code in murdering Faizal and attempting to murder P.W. 2. Even otherwise, it is clearly proved that simultaneous attack done by several persons with common intention attracts Section 34 of the Indian Penal Code. In Harshadsingh Pahelvansingh Thakore Vs. The State of Gujarat, apex court held as follows:

7...When a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstance that one man''s stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulative. Section 34 I.P.C. fixing constructive liability conclusively silences such a refined plea of extrication. See Amir Hussain v. State of U.P. 1975 S.C.C. 505 and Maina Singh v. State of Rajasthan (1976) S.C.C. 332. Lord Sumner''s classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse ''They also serve who only stand and wait'' a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer Justice niceties can be pressed into service to nullify or jettison the plain punitive, purpose of the Penal Code.

We also refer to the observations of the Supreme Court in State of U.P. v. Jhinkoo Nai III (2001) C.C.R. 159 (S.C.) where the apex court held as follows:

Further, when several persons simultaneously attack with common intent, no distinction between causing the fatal and non-fatal wounds could be drawn while allocating the guilt.

Under Section 149, unlike Section 34, even without prior meeting of minds and concerted action in furtherance of common intention, an unlawful object can develop after people assemble in a place. For an offence committed by a member of the unlawful assembly in prosecution of their common object, other members also will be liable. Common purpose of the unlawful assembly is an inference of fact and common object can also develop subsequently as held by the apex court in Sukha and Others Vs. The State of Rajasthan, . On the evidence and facts of this case, we are of the opinion that Section 149 of the Indian Penal Code is attracted as Faizal was murdered arid P.W. 2 was seriously injured in accomplishment of common object of the unlawful assembly. Both Section 149 as well as Section 34 can be applied with respect to commission of offence u/s 302 and 307 in the case of A-1 to A-6 considering the role played by them as proved in this case. They were not passive members of the assemly who gathered in the night between the house of P.W. 5 and C.W. 9. Evidence in this case celarly proves that A-1 to A-6 are equally guilty for murdering Faizal and attempting to murder P.W. 2. Defence evidence instead of disproving the same, reinforces the same. We hold that prosecution was able to prove conclusively beyond doubt that A-1 to A-6 are quilty of offences punishable under Sections 143, 148 and also under Sections 302 and 307 read with Section 149 of the Indian Penal Code. We convict the Respondents for the above offences. Since the accused are convicted for the offence u/s 148 of the Indian Penal Code, it is not necessary to convict them for the offence u/s 147 which is lesser offence in relation to the offence u/s 148 of the Indian Penal Code. The view taken by the learned Sessions Judge in the impugned Judgment and the conclusions made therein are not possible at all on the basis of the evidence adduced in this case.

Now, we have to consider the question of sentence, originally, when Respondents were convicted by Sessions Court by the Judgment dated 16th June 1996, they were heard on the question of sentence. They submitted that they were innocent and leniency may be shown to them as their family members were depending on them. After considering their plea, court imposed following sentence on each of the accused for the offences now found guilty by us:

(1) Imprisonment for life u/s 302 read with Section 149 or 34 of I.P.C.;

(2) Rigorous imprisonment for 5 years u/s 307 read with Section 149 or 34 of I.P.C.;

(3) Rigorous imprisonment for 6 months each u/s 143 and 148 of I.P.C.;

In appeal, that Judgment was set aside only for non-compliance of Section 233 of Code of Criminal Procedure After remand, they were acquitted by the Sessions Court and we are considering the question of sentence after finding that Respondents are guilty of the offences mentioned above in an appeal filed by the State.

Article 25(1) of the Constitution of India guarantees freedom of conscience and freedom to profess practise and to propagate religion. While one is exercising this right, he must remember that others also have got similar right and one cannot prevent others from exercising their fundamental rights. In the name of religion which is intented for the benefit of mankind and in the name of God Almighty who is Most Gracious, Merciful and Benevolent nobody has got power to take life of a fellow-being ridiculing the Great Creator. Lord of entire ''Alamin'' call human beings, spirits, jinn and all that exist who gives life to all. Intolerance arising out of religious fundamentalism and blind fanatical beliefs in various dogmas is on the increase which is a menace to the peaceful future of the world. It is true that since such offences are on the increase, deterrent punishment should be imposed. While considering the sentence, we also note that accused were acquitted by the lower court after remand and originally also they were not sentenced with death but only with life imprisonment u/s 302. Taking into account all relevant factors, we impose the following punishments on A-1 to A-6 (Respondents in this appeal):

(1) Imprisonment for life u/s 302 read with Section 149 I.P.C.;

(2) Rigorous imprisonment for 5 years u/s 307 read with Section 149;

(3) Rigorous imprisonment for 6 months each under Sections 143 and 148 I.P.C.;

We also order that that sentence shall run concurrently. Since only minimum punishment of imprisonment for life is imposed u/s 302 and other sentence are to run concurrently and Respondents-accused were heard on the sentence when they were convicted originally for the very same offences and their submissions at that time v ere also considered by us, it is not necessary to hear the accused again in the matter of sentence in the appeal. Apex Court in Tarlok Singh v. State of Punjab AIR 1977 (S.C.) 1747 held that when only minimum sentence u/s 302 is imposed, hearing on the question of sentence is unnecessary u/s 235(2) of CPC It was held by the Supreme Court in Shanker Kerba Yadav v. State of Maharashtra 1969 S.C.W.R. 468 that in view of the powers vested in the appellate court in Section 386(a) of CPC it is open to the High Court to pass appropriate sentence, if the accused is found guilty so long as the sentence is not harsher than that can be imposed by the trial court for such offence.

This Judgment is certified to the Court of Sessions, Kasaragod as per Section 388 of Code of Criminal Procedure and that Court is direct to take necessary steps to execute the sentence forthwith.

The appeal filed by the State is allowed. The Crl. R.P. is also disposed of accordingly.