The Judgment of the Court was delivered by
A. Hariprasad, J.:— Recurring overt acts by members of certain political parties at some parts of the State, especially in some northern districts, eloquently disseminate a message that human lives are less worthier than a political ideology. Annihilation of political opponents has become an order of the day, ignoring the fact that divergent political ideologies are natural in a democratic polity with a multiparty system. Besides, the proponents of the philosophy forget the reality that an ideology, worth its name, should exist for the upliftment, welfare and wellbeing of mankind. Political killings by using arms and explosives are acts of barbarity. This case unfolds yet another doleful story of a political savagery. In this brutal incident, the victim happened to be a worker of Communist Party of India (Marxit), commonly known as CPM and the alleged assailants are workers of Bharathiya Janatha Party (BJP) and Rashtriya Swayamsevak Sangh (RSS). Feud between these two sets of political outfits over a long period of time in Kannur district is a notorious reality.
2. 27 accused persons were charged in this case with offences punishable under Sections 143, 147, 449 and 302 read with Section 149 of the Indian Penal Code, 1860 (in short, “IPC”). The 5th accused was found to be a juvenile at the time of incident and therefore his name was deleted from the array of accused as the court rightly found that he could not be tried along with other accused because of the embargo in the Juvenile Justice (Care and Protection of Children) Act, 2000. After an elaborate trial, the accused 1 to 4 were sentenced to undergo imprisonment for life for murder and appropriate punishments for other offences. They are in appeal before this Court.
3. Heard Sri. P.S Sreedharan Pillai, learned counsel appearing for the accused 1, 2 and 4 and Sri. K.K Dheerendra Krishnan, learned counsel appearing for the 3rd accused. Sri. S.U Nazar, learned Senior Public Prosecutor is also heard on behalf of the prosecution.
4. Brief facts necessary for appreciating the contentions are as follows: Appellants are RSS/BJP workers. They nurtured political hostility towards Areekkal Ashokan as he was an ardent supporter of CPM. With the common object of committing Ashokan's murder, appellants 1 to 4, along with other accused persons, formed themselves into an unlawful assembly on 05.12.2000, armed with deadly weapons like hatchet (wrongly shown as axe by the trial court), sword and chopper. At about 8.30 a.m on that day, they criminally trespassed into the house of PW5 Andy (brother of deceased Ashokan) and brutally assaulted Ashokan with lethal weapons, who had taken shelter in the house of PW5 along with his four year old son, PW4 Akshay. The assailants hacked Ashokan with hatchet, chopper and sword right in front of the small child (PW4). The occurrence was in a room on the upstairs of PW5's house. Thereafter the assailants fled. It is also the prosecution case that a couple of hours before the incident, the same assailants had attacked Ambuvintavida Babu at his house, which is adjacent to the houses of PW5 and deceased Ashokan. Prosecution strongly contended that the political ill-will and hatred are motives for the killing.
5. The defence case is total denial of any complicity of the appellants in the crime. According to them, deceased Ashokan had enemies in his private life. He had an affair with Kallamparambath Sathi, who resides in the neighbourhood. In that relationship, a child by name Midhunlal was born. Sathi's brother Vinodan is a CPM worker. Sathi's family members pressurised Ashokan to marry her for which he was not amenable. Thereafter Sathi claimed maintenance under Section 125 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C”) before the Magistrate having jurisdiction. Despite passing orders thereon, Ashokan failed to provide maintenance and on account of that, there were serious issues between the families. In connection with Ashokan's murder, Panoor Police initially arrested said Vinodan. Thereafter, he was released on account of political pressure exerted by the ruling Left Democratic Front (LDF) in which CPM is a major constituent. Innocent accused persons are falsely implicated due to political rivalry.
6. Trial court heavily relied on the testimony of PWs 1 to 3 to find that the appellants on the alleged day entered PW5 Andy's house with deadly weapons and after some time a loud cry emanated from upstair of the house. Thereafter the accused went out with bloodstained weapons in their possession. PW4 is cited as an eye witness to prove the incident. Prosecution greatly banked on the natural character of the testimony of these witnesses. Per contra, learned counsel for the appellants strongly contended that the trial court seriously erred in placing reliance on the undependable and untrustworthy evidence of the said witnesses to enter the convictions. Apart from the factual issues, legal questions are also raised regarding the legality and sustainability of the conviction pronounced on the appellants. We shall deal with the factual aspects initially.
7. PW1 Leela is wife of deceased Ashokan. She deposed that the incident was at about 8.45 a.m on 05.12.2000 It is her insinuation that the appellants in this case, who are workers of RSS/BJP, committed the gruesome murder. It has come out in evidence that during the period there were lot of law and order issues in the area on account of political clashes. PWs 1 to 3 deposed that they were residing together in the house of deceased Ashokan. PW2 is the mother of PW3. PW2 is the sister-in-law of deceased Ashokan. PW2's husband and their son Areekkal Rajesh (CW9) were running a canteen at Bangalore during that time. All the material witnesses deposed that the incident happened on a harthal day and there was no vehicular movement through the road. It has come out in the testimony of PW1 that CW9 Areekkal Rajesh came two days before the incident and he was present in and around the scene of occurrence at the material time. At about 7 o' clock in the morning, PW1 heard a hue and cry from western side of her house. As such incidents were usual occurrences in that area, she thought it might have been a political clash. Deposition of PWs 1 to 3 coupled with Ext.P2, additional scene mahazar and Ext.P7 site plan would show that deceased Ashokan's house was in a higher level than that of PW5 Andy. Both houses are situated adjacent to one another. On hearing the commotion, deceased Ashokan and children went to the house of PW5. PWs 1 to 3 and other children followed them shortly thereafter. PW5 and his wife were present in their house. Thereafter PW5 and wife went to the place from where the loud cry was heard. After sometime, it was informed that on account of a political issue Ambuvintavida Babu was attacked by the 1st appellant and inflicted injury on his leg. It was further informed that the assailants went away. PWs 1 to 3 and other children returned home. Deceased Ashokan and PW4 remained in the house of PW5. Ashokan asked PW1 to find out if any vehicle was available on the road so that he could move out of that area. PW1 went in search of a vehicle. At that time, PW5's son Baburaj and CW18 Nanu's son Babu were present in the house. PW1 went to the house of CW18 Nanu and enquired about availability of a vehicle. She could not find any vehicle plying on the road. While she was returning home and reached near Valiyaparambathu Velayudhan's house, she saw a group of persons armed with deadly weapons rushing through an alley on the southern side. 1 appellant was holding a hatchet and others were also wielding weapons. They proceeded towards Ashokan's house. She was perturbed on seeing them with lethal weapons. She followed them at a distance. She heard noises, apparently of breaking doors and furniture. The assailants drove PWs 2 and 3 and others away. She deposed that the appellants went to the house of PW5. As stated earlier, the 1 accused was holding a hatchet, 2nd accused was holding a chopper and accused 3 and 4 were holding swords. Persons who accompanied them surrounded PW5 Andy's house. When she reached near Andy's house, the persons standing as watch out, threatened her with dire consequences. PWs 2 and 3 and others were driven towards the side of Nani's house. PW1 stated that anybody approaching PW5's house could be seen by the persons standing by the side of Nani's house. Accused persons entered the house. Huge sound of breaking door could be heard from the first floor followed by a distress cry of PW4. PW1 was sure that they had harmed deceased Ashokan. She fainted and fell down. This witness identified the appellants in the dock. She handed over bloodstained clothes worn by PW4, which are marked as MOs 1 and 2. Those articles were recovered through Ext.P1 mahazar. She also identified MO3 hatchet said to have been held by the 1 appellant.
8. In cross examination, it is brought out that Nani's house, shown in Ext.P7 site plan, situated on the eastern side of Ashokan's house and PW5 Andy's house, is the closest one. Defence alleged that non-examination of Nani is a serious flaw. It has come out through the evidence of PWs 1 to 3 that they and their family members are staunch supporters of CPM. Ambuvintavida Babu, who sustained injury at the hands of the same assailants, is also an ardent worker of CPM. PW1 admitted that towards west of her house, Velayudhan Master's house is situated. In between her house and Velayudhan Master's house, there is an alley. Slightly on a lower level of Velayudhan Master's house, Nanu's (CW18) house is situated. It is her deposition that if someone makes a shriek from her house, it could be heard both in Nani's and Velayudhan Master's houses. In this context, the learned defence counsel strongly contended that non-examination of these two persons is fatal to credibility of the prosecution case.
9. PW1 denied the suggestion that she and others had gone to Ambuvintavida Babu's house on hearing his cry and at that time the incident had happened in PW5's house. The vital point brought out in the cross examination of PW1 is that when she saw the assailants entering PW5's house with deadly weapons, she was in front of Velayudhan Master's house. It is important to note that Velayudhan Master's house is not shown in Ext.P7 site plan. PW16, the investigation officer, candidly admitted in cross examination that Velayudhan Master's house was on western side of PW5 Andy's house and that house could not be seen from the place of occurrence. Learned defence counsel contended that the entire case of PW1 proceeded on the footing that she saw the assailants, armed with weapons, entering PW5's house and at that time she was standing in front of Velayudhan Master's house. It is important to note that Velayudhan Master was not even cited as a witness. However, the candid admission by the investigation officer (PW16) that a person standing in front of Velayudhan Master's house could not see anyone entering PW5's house is a very material fact, casting doubt on the credibility of PW1's testimony. Therefore, we are of the view that identity of the accused cannot be fixed solely depending on the testimony of PW1, especially when she herself has a case that the assailants were members of a large group. Notwithstanding the fact that PW1 and others knew the appellants long before the incident, they named them only after 5 days is an established fact. That aspect also prompts us to search for corroboration of PW1's testimony.
10. Testimony of PW2 Santha and PW3 Rejina could be considered together because of the commonalities. PW3 Rejina is the daughter of PW2 Santha. As mentioned above, PW2 is the sister-in-law of slain Ashokan. Both these witnesses testified that identifiable assailants belonging to BJP/RSS outfits killed Ashokan on 05.12.2000 at about 8.30 a.m These witnesses deposed that they were then residing in the house of deceased Ashokan. During that time, PW2's husband with their son Rajesh (CW9) were running a canteen at Bangalore. It has also come out in evidence through these witnesses that Rajesh (CW9) came home two days prior to the incident. CW9 Rajesh was present in Ashokan's house shortly before the incident. The appellants after trespassing into the house threatened him and twisted his arm demanding disclosure of Ashokan's hide out. As stated by PW1, these witnesses also deposed that initially there was a hullabaloo from the western side of their house. Later they realised that the 1 appellant and others hacked Ambuvintavida Babu causing injury to his leg. They also knew that Babu was taken to hospital. It is their definite case that after the incident, 1 appellant and others had left the place. PWs 2 and 3 specifically stated that on hearing the commotion, they initially went to PW5 Andy's house and when matters settled down, they returned to Ashokan's house. Both these witnesses stated that deceased Ashokan asked PW1 to find out whether any vehicle was available so that he could escape from the place. At that time, Ashokan and PW4 were in the house of PW5. After PWs 2 and 3 returned to Ashokan's house and engaged themselves in cooking, a group of persons broke open the front door of Ashokan's house and the appellants entered the house. 1 appellant was wielding a hatchet. 2 appellant possessed a chopper and appellants 3 and 4 were wielding swords. 2 appellant broke a mirror hanged on the wall. 1 appellant caught hold of CW9 Rajesh's hand and questioned where Ashokan was. Rajesh told that Ashokan had gone to Parat. Thereafter, they went upstairs in search of Ashokan and ransacked the furniture, suitcase, etc. They threw out dough prepared for making chappathies. They threatened PWs 2 and 3 and drove them away. Thereafter, the appellants entered the house of PW5 Andy with weapons. Both PWs 2 and 3 were driven through an alley leading to Nani's house. After some time, they heard noises of breaking doors in the upstairs of PW5's house where Ashokan and his son PW4 were hiding. They realized that the appellants had injured Ashokan. Later, they came out and went away with bloodstained weapons. PW2 went to the house of PW5. She saw Ashokan with multiple bleeding wounds lying face down. By that time, he was dead. PW4, four year old child of deceased Ashokan, was petrified and he was crying in extreme fear. They took him from that place and went to Velayudhan Master's house. They saw PW1 lying in a state of utmost despair. These witnesses identified the appellants.
11. These witnesses were subjected to lengthy and searching cross examination. PW2 admitted in cross examination that at the time when the incident took place, PW5's son Babu Raj and CW18's son Babu were present in the house. Appellants raised a strong point that non-examination of Babu Raj and Babu amounted to withholding the best evidence and that was done with an oblique motive to falsely implicate them in the case and also to shield the real assailants. Although we have scanned the evidence of PW16, the investigation officer, we do not find any satisfactory explanation for non-examination of these two persons, who were admittedly present at the place of occurrence. It is also clear that they could have identified the assailants better as they were persons permanently residing there itself.
12. That apart, on going through Ext.P11 FIS, it can be seen that Valiyaparambathu Govindan, who was the informant, had not seen the incident. It has come out in evidence that Valiyaparambathu Govindan died before the trial. What is stated in Ext.P11 is that the informant while sitting home, heard a loud cry originating from the side of Ashokan's house and he saw women and children running helter-skelter in panic. On going there, he met CW9 Rajesh and he in turn informed the first informant that RSS/BJP workers had gone upstairs of PW5's house and attacked the deceased. Both of them decided to get a vehicle urgently. Thereafter he along with CW18 Nanu went to the place of occurrence and found Ashokan lying in a pool of blood. It is the definite version in Ext.P11 that by then, two policemen had come. Learned counsel for the appellants strongly contended that presence of police at the scene, even before registration of Ext.P11, is also a matter of concern while appreciating truthfulness of the prosecution case. We shall deal with that aspect in the succeeding paragraphs. It is clear from Ext.P11 that Rajesh was present near the house where the occurrence took place. Considering these aspects, we are of the view that non-examination of CW9 Rajesh, CW18 Nanu and PW5's son Babu Raj is material factor affecting the credibility of the prosecution case, especially regarding the identity of the assailants.
13. PW2 also admitted in cross examination that Valiyaparambathu Govindan, who lodged Ext.P11 FIS, came to know about the incident through CW9 Rajesh. Testimony of PW2 regarding the place where PWs 2 and 3 positioned at the time of occurrence and also the location of PW1 are not in harmony with the testimony of the latter. The defence contention that going by the evidence adduced by PWs 2 and 3, and also the details shown in the site plan, it would be difficult to hold that they had seen the assailants entering PW5's house is a probable version. PW2 testified that at the time of incident, she and her daughter PW3 were standing by the side of a well near PW5's house. Such a statement was not recorded by the investigation officer earlier. Testimony of PW2 is full of omissions and contradictions.
14. PW3 deposed that the appellants are persons residing in the neighbourhood. They were known to each other for more than two decades. PW3 gave evidence to the effect that when they were driven out of Ashokan's house, about 20 persons assembled in and around the place of occurrence. Her version is that she knew only the appellants and the 5 accused. In cross examination, PW3 admitted that she had not given any details regarding identity of the accused when she was questioned as part of investigation. Both PWs 2 and 3 testified that they were standing by the side of a well near PW5's house. As mentioned above, it is not made clear whether a person standing there could see the entry of anyone to PW5's house. Location of the well is not revealed in the evidence. PW16, the investigation officer, also has not given any proper explanation for the material incongruities in the evidence of PWs 1 to 3. It has come out in cross examination of PW3 that PW5's house was facing towards east and the kitchen, where the well is situated, is on the rear side (western side). On a careful reading of the testimony of PWs 1 to 3, it is not convincingly clear as to whether they could have seen the assailants entering PW5's house with deadly weapons from their respective positions. Even though all these witnesses testified that the appellants were residing in the same locality, it is relevant to note that their names were not revealed at the earliest opportunity. CW9 Rajesh also did not inform Valiyaparambathu Govindan that the appellants were responsible for the murder and that is why their names were not mentioned in Ext.P11 FIS. This assumes importance for the reason that PWs 1 to 3 specifically deposed that shortly before the incident, the assailants intimidated CW9 Rajesh and twisted his arm questioning whereabouts of the deceased. If we accept the version of prosecution witnesses that they knew the assailants much before the incident, non-disclosure of their identity at the earliest point of time evokes doubt regarding veracity of the prosecution case.
15. PW4 Akshay Ashok, the unfortunate and hapless son of the victim, had the misfortune to witness the brutal murder. He was about four years at the time of incident. When examined, he was 14 years of age. Learned Sessions Judge put questions to understand his mental ability and satisfied himself that he was a competent witness going by the standards prescribed under Section 118 of the Indian Evidence Act, 1872 (“the Act”, for short). In the chief examination, he deposed that his father was hacked to death from PW5's house about ten years before. He was not remembering the exact date. PW4 along with his father was sitting on a cot in an upstair room. Five persons armed with weapons hacked PW4's father and he fell down. He was drenched in blood. He identified the appellants. PW16, the investigation officer, when cross examined admitted that no previous statement of the child was recorded earlier as he was of tender age at the time of occurrence. Testimony of PW4 that the appellants were known to him because he had seen them on the way to Anganwady and that he had informed their names to Police after the incident cannot be fully believed for the reason that these versions spring up for the first time in court. This witness admitted that police used to visit his house every day. It is true that PW4 is an unlucky child destined to witness a brutal attack on his father, but his testimony before the court cannot be relied on for fixing the criminal liability for the reasons that he was only four years old at the time of incident and he testified after ten years of the incident. He is the only person present at the actual crime scene. But his testimony requires corroboration for the aforesaid reasons.
16. Oral evidence adduced by PWs 1 to 3 are insufficient to satisfy the conscience of the court that they identified the appellants from a group of assailants more than 30 in number. Testimony of the investigation officer (PW16) and the site plan do not support the evidence of these witnesses that they located themselves at places from where the assailants entering PW5's house could be clearly seen. Another important contention raised by the defence is that there is inordinate delay in naming the appellants, though these witnesses testified that the appellants were residing in the neighbourhood and they knew them long time before the incident.
17. Remaining witnesses did not speak about the incident. They came to the place shortly after the incident so that they had no opportunity of seeing any of the assailants. Those who had occasion to see the perpetrators of the crime, viz., CW9 Rajesh, CW2 Babu, CW4 Babu Raj and other probable witnesses were not examined.
18. PW5 Andy is the elder brother of Ashokan. He deposed that his wife and son Babu Raj were residing in the house at the material time. He also testified in terms with the evidence adduced by PWs 1 to 3 regarding the first incident in the house of Ambuvintavida Babu. After the incident, he along with a neighbour by name Balan took Babu on a bicycle to a nearby public road. As mentioned above, there was no vehicle on the road because of harthal. At that time, a police vehicle came and Babu was taken to the Primary Health Centre, Panoor. From there, he was taken to the Co-operative Hospital, Tellicherry for better treatment. Since there was no vehicle PW5 could not return till 5.30 hours in the evening. He sadly deposed that his brother was murdered from his house. He is a witness to Ext.P2 mahazar. Along with PW5, his wife, son Babu Raj and other children Sanalkumar and Anisha were residing in the house. This fact was brought out in cross examination. But this was not revealed to police at the time of questioning. Fact that they were present at the time of incident is clear from PW5's testimony. It has also come out while cross examining PW5 that CW2 Babu was also staying in his house on the date of incident. None of these witnesses were examined and no explanation was offered by the prosecution for not examining them. Testimony of PW5 also reveals the infirmity in the investigation as well as in the prosecution.
19. PW7 Sreedharan is another sibling of deceased Ashokan. He witnessed the recovery of blood stained dress worn by PW4 at the time of incident. He is a witness to Ext.P1 mahazar. He identified MOs 1 and 2.
20. PW8 Anandan is a witness to the inquest report, Ext.P4 In cross examination, this witness completely deviated from the prosecution case that due to political hostility, RSS/BJP workers under the leadership of the 1 appellant, armed with weapons, trespassed into PW5's house and committed the cold blooded murder. He refused to support this case. According to him, he did not say so and he did not hear anyone saying so. Even though he was residing in the neighbourhood, he did not go to Ashokan's house on hearing the distress call.
21. PW9 Balan was the Secretary, Kunnoth Grama Panchayat. He issued Ext.P5 ownership certificate in respect of PW5's house. PW10 Raveendran worked as the Village Officer. He prepared Ext.P7 site plan. According to him, the plan was prepared with reference to the relevant mahazar. In cross examination, he admitted that many houses adjacently situated were not noted in the plan. Importantly, Velayudhan Master's house was omitted to be shown in Ext.P7 site plan.
22. PW11 is the photographer attached to the Finger Print Bureau. He took photographs of the crime scene. Fact that Ashokan met with an unnatural death is unchallengeable. PW12 is the photographer, who took the photographs of Ashokan's dead body. It was taken from mortuary. Ext.P9 series are the photographs.
23. PW14 is the Scientific Assistant attached to the Forensic Science Laboratory, Kannur. He examined the scene of occurrence on 06.12.2000 at about 1 o' clock in the noon. He collected bloodstains from the place of occurrence. He identified MOs 4 to 6.
24. PW14 Dr. K.M Sukumaran conducted autopsy on the body of Ashokan on 05.12.2000 Ext.P10 is the postmortem certificate proved by PW14. On the dead body, 16 antemortem injuries were noted. According to the deposition of PW14, injuries 1 to 4 and 14 in Ext.P10 might have caused the death. It is also stated by this witness that such injuries could be inflicted by a hatchet like MO3. Possibility of causing injuries by chopper, sword, etc. was also spoken to by this witness. Despite cross examination of this witness, no answers could be elicited to challenge the veracity of Ext.P10 or the testimony of PW14.
25. Now we shall consider testimony of the police officers examined in this case. PW15 was the Additional Sub Inspector of Police, Panoor Police Station. It is his version that at about 9.40 a.m Valiyaparambathu Govindan (the informant) presented himself before him and gave Ext.P11, FIS. Ext.P11(a) is the first information report (FIR). He deposed that Ext.P11(a) had been sent to the Magistrate having jurisdiction and also to his superiors. At about 10.30 a.m, he reached the place of occurrence and conducted the inquest. He prepared Ext.P4 inquest report. Body was sent for postmortem examination to the Government Hospital, Koothuparamba. In cross examination, it was brought out from PW15 that as mandated by law, General Diary (GD) was kept in the police station at the material time. All events happening every day should be entered in the GD. As came out from the recitals in Ext.P11, as well as the testimony of PW5 and other witnesses, even before registration of Ext.P11(a) FIR, police had come to know of the incident. Presence of two policemen immediately after the incident at the place of occurrence is a fact revealed from the evidence. The defence counsel contended that Ext.P11 is not the information received first in point of time in the police station. According to the defence case, the real information had been suppressed and the appellants are falsely implicated in this case due to political reasons. PW15 deposed that deployment of police personnel for various duties should be recorded in the GD. Details of any crime registered also should be entered in the GD. All these answers were elicited from PW15 to highlight the fact that despite the Court demanded cause production of GD, it was not produced to establish the truthfulness of prosecution case. PW15 admitted that information furnished by Valiyaparambathu Govindan in Ext.P11 was actually received from CW9 Rajesh and the latter had been questioned by PW15 for recording statement. Here also the importance of non-examination of CW9 becomes a relevant factor.
26. PW15 was confronted with questions about delay in forwarding Ext.P11(a) FIR to the Magistrate concerned. He was aware of the fact that in a serious case of this nature, FIR should have been sent as “express FIR” on the same day. According to PW15, he entrusted the matter to the police station writer. A close scrutiny of Ext.P11 would show that FIR was produced before the Magistrate on 05.12.2000 at 5.15 p.m only, although it was recorded at 9.40 a.m It does not bear a court seal, indicating the fact that it must have been produced after the court hours, perhaps at the residence of the Magistrate. PW15 deposed that he came to know about identity of the 1 appellant when he questioned CW9 Rajesh. Pursuant to that, he filed Ext.P12 report before the Additional Chief Judicial Magistrate, Thalassery, implicating the 1 appellant in the case. Though the report is seen dated 05.12.2000, it was received in the above court only on 12.12.2000 The delay in sending Ext.P12 report, coupled with the non-examination of CW9 Rajesh, is certainly a material debility in the prosecution case. PW15 in cross examination deposed that police officers were doing overtime job at the material time due to rampant law and order issues and that was the reason for delay. But, he has not produced either the GD or the duty book to explain the delay. When cross examined, PW15 deposed that he was aware of the fact that two policemen had reached the place of occurrence even before registration of Ext.P11(a). But he could not identify who the police officers were. Appellants harped on the fact that material witnesses were questioned about 5 days after the incident. It is also contended that all these were done intentionally to shape the case in order to implicate the appellants.
27. PW16 was the Deputy Superintendent of Police, Thaliparamba (Dy.S.P). He conducted the investigation. He deposed that on 06.12.2000, the Superintendent of Police, Kannur authorised him to conduct the investigation. At 11.00 a.m on the said day, he visited the place of occurrence. He prepared an additional scene mahazar (Ext.P2) from the place of occurrence. Learned counsel for the appellants contended that as there is no other scene mahazar in this case, the nomenclature itself shows that the prosecution intentionally suppressed material documents and distorted facts for benefiting a political party then in power. It is argued by the learned counsel for the appellants how there could be an additional scene mahazar in the absence of an original scene mahazar. To this, PW16 answered that as the description of the scene had been mentioned in Ext.P4 inquest report, he described Ext.P2 as additional scene mahazar. We are not impressed with the contention of the learned counsel for appellants that merely for that reason Ext.P2 additional scene mahazar, should be thrown over board. It may be true that an officer in the rank of PW16, who presumably must have gained experience, should have taken more care when investigating a case of this importance.
28. PW16 deposed about the steps he had taken in the investigation. He recovered the material objects. Records show that he questioned the material witnesses only on 09.12.2000 He prepared Ext.P14 search memo and Ext.P15 search list and thereafter, he conducted a search in the house of 1 appellant. Nothing noticeable could be found out in the search. For the first time, PW1 was questioned on 09.12.2000 Likewise, other witnesses were also questioned four days after the incident. He prepared Ext.P17 report and forwarded the same to court. Even though, it is seen prepared on 16.12.2000, it reached the court only on 18.12.2000 By this report, the accused 2 to 27 were implicated in the case. Appellants 1 and 2 along with another accused were arrested on 16.02.2001 3 appellant was arrested on 29.05.2001 and the 4 appellant was arrested on 19.12.2000 Other accused were also arrested on different dates. He produced and proved the arrest memos of the appellants and other accused persons. After completing the investigation, PW17 Baby Vinod, the then Circle Inspector, Panoor Police station laid the charge.
29. PW16 was extensively cross examined by the defence counsel. He deposed in cross examination that he did not remember whether he had examined the GD and FIR book maintained in the police station. It is also stated by him that the case diary on hand did not reveal that fact. Another important statement made by PW16 in court is that he was aware that two policemen had gone to the place of incident prior to registration of Ext.P11(a) FIR. It is his version that he enquired about the police personnel, but he could not identify them. It is the defence case that non-production of GD and other records to show deployment of police personnel on duty is an intentional act done to suppress the real version of the incident. It is also contended that the real version was changed to appease the ruling front by falsely implicating their political opponents.
30. PW16 did not satisfactorily answer a volley of questions relating to non-production of GD and non-identification of the police personnel present at the crime scene before Ext.P11(a) was registered. PW15 was the SHO in Panoor Police station at the material time. Even though his statement was recorded by PW16, nothing was asked about the entries in the GD on that particular day and also about identity of the police officers, who had gone to the scene immediately after commission of the crime. These aspects in the evidence of PW16 are causes for raising reasonable doubt in the efficacy and regularity of investigation.
31. PW16 plainly admitted that CW2 Babu was cited as an occurrence witness. CW2 Babu had informed PW16 at the time of questioning that he was present in the house where the incident took place.
32. Ext.P12 report is dated 05.12.2000 As per this report, the 1 appellant was named for the first time. This report bears a court seal, showing that it was received only on 12.12.2000 No explanation was offered by PW16 for the inordinate delay in submitting the report implicating the accused in a serious crime of this magnitude. This probabilise the defence case that there must have been confabulation in the matter of arraigning accused persons. PW16 made a damaging admission that even before 16.12.2000 he was aware of identity of all the accused. Still he submitted Ext.P12 implicating the 1 appellant only, leaving out others. PW16 failed to offer any explanation for this strange step taken by an investigation officer of his seniority. Further, he was aware that the report to implicate the accused should be submitted as and when their complicity was revealed. This weakens the prosecution case very much as there was absence of prompt action, expected from an investigation officer.
33. Ext.P14 search memo does not bear any date. It was seen received in court on 20.12.2000 Ext.P15 search list was received in court only on the said date. The delay in sending the said documents to court has not been properly explained.
34. It came out in evidence that PW16 had questioned Nani on 06.12.2000, whose house is shown in Ext.P7 site plan. He did not mention any reason for not citing Nani as a witness. As mentioned earlier, PW16 candidly admitted that Velayudhan Master's house was about 20 metres west of Ashokan's house and the first mentioned house was not visible from the place of incident. The suggestion by the defence that initially another FIR and scene mahazar were prepared has been denied by PW16. He further deposed that PW1 has not stated anything about identity of the appellants 3 and 4 said to be found in the company of 1 appellant. It is also stated by PW16 that PW1 when questioned did not inform him that she saw the appellants entering PW5's house. It is also stated by this witness that PW1 did not give any statement that she identified the weapons held by the appellants when they passed through the alley towards house of PW5 Andy. It is also stated by this witness that PW1 had not mentioned that the assailants were known to her previously. Further testimony of PW16 is that PW1 did not inform him that she saw the incident while standing by the side of Velayudhan Master's house.
35. Regarding the testimony of PW2, it is brought out from PW16 in cross examination that she did not state that they were standing at that time near the well in PW5's compound. Likewise, PW2 did not give a statement that after the incident, the assailants returned with bloodstained weapons. PW3 also did not give a statement that she saw bloodstained weapons in the possession of the assailants after the incident. Further, PW3 had given a statement that when they went upstairs after the incident, CW4 Babu Raj and CW2 Babu were standing there with fear stricken faces. It is also deposed by PW16 that when questioned, PW3 stated that CW4 Babu Raj and CW2 Babu were present in the house at the time of incident.
36. Touching upon the deposition of PW4 that he knew the appellants before the incident, PW16 was cross examined. It is his version that PW4 had not informed him about any previous acquaintance with the appellants.
37. PW16 answered to a query that he was not aware whether LDF Government was ruling the State at the material time. He also deposed that he did not remember whether CPM was controlling the Home Department. PW16 conceded that CW9 Rajesh was cited as an eye witness. It is also stated by PW16 that a series of political murders had taken place within a couple of days before and after the incident.
38. On going through the testimony of PW16, we are of the opinion that it cannot be stated that the investigation was a flawless one. There was unexplained and inordinate delay with respect to many steps taken in the investigation. The material witnesses were questioned only four days after the incident. Material documents were produced before the court with much delay, that too with no satisfactory explanation. Contradictory statements given by the material witnesses regarding the vital aspects also very badly affect the credibility and acceptability of the prosecution case. We are constrained to express opinion that a serious crime of this nature and magnitude should not have been so callously investigated. It may be true that there might have been law and order issues on account of serial political murders. But, that is not an excuse for conducting a shoddy and haphazard investigation. Such faulty investigations may not only benefit the accused, but also result in extrication of the real assailants.
39. We shall now consider the legal issues raised by both the sides in support of their respective versions. Learned Prosecutor contended that evidence adduced clearly established the recovery of MO3 hatchet at the instance of the 1 appellant. Prosecution relies on Ext.P3 seizure mahazar and also the testimony of PWs 6 and 16 to support this contention. In Ext.P3, it is mentioned that the 1 appellant deposed, while in custody, about concealment of MO3 at a place exclusively known to him and consequent to the information received from him, PW16, in the presence of the 1 appellant, recovered MO3 from a hole on an earthen wall situated in the property of Elangattu Kunhimuhammed. Description in Ext.P3 would show that it was an unfrequented place with full of wild growth. PW6 is a witness to Ext.P3 He testified that on 19.02.2001 at about 9.30 a.m, he found PW16 taking the 1 appellant in a police jeep towards the side of Kunhimuhammed's property. PW6 also went to that place. At that time, the 1 appellant took out a hatchet from the place of concealment. PW16 thereafter prepared Ext.P3 and he signed from there itself. He was subjected to strict cross examination. He is a coconut climber. He came to that place (Kootteri) to pluck coconuts from one Karunan's compound. On that day, Karunan's neighbour Kunhiraman died and therefore, he had to return without doing any work. On the way back he saw the recovery of MO3. In cross examination, it is brought out that PW6 was residing about 3 kms. south of the place wherefrom MO3 was allegedly recovered. He was a staunch supporter of CPM. He conceded that neither family name of Karunan nor name of the paramba where he had gone for coconut plucking was known to him. Even though there was a shop by the side of the place wherefrom recovery was effected, he was unaware of its exact location. According to him, Karunan's paramba is about four compounds away from deceased Kunhiraman's house. PW6 admitted that he had no acquaintance with deceased Kunhiraman. Defence has a case that PW6 is a planted witness. Nobody by name Kunhiraman died in that locality as stated by PW6. It is the defence version that Ext.P3 is not a genuine document and it has been fabricated from police station to suit the prosecution case. Even though PW6 deposed that he knew the 1 appellant before the incident, in cross examination this version has been seriously affected. PW6 also stated that he did not read and understand Ext.P3
40. PW16 admitted during cross examination that the witnesses in Ext.P3 are inhabitants of Panoor. The recovery was effected from a place slightly away from Panoor. It is admitted by PW16 that there was only a closed shop near the place of recovery and there was no house in the vicinity. Prosecution wanted this Court to believe that PW6 is a chance witness at the place of alleged recovery of MO3. In order to attack this case, DW2 was examined on the side of defence. This witness was the Secretary, Kunnothparambu Grama Panchayat. He produced Ext.D12 letter issued by Grama Panchayat under the Right to Information Act. As he was holding the charge of Secretary, Panoor Grama Panchayat as well at that time, he proved Ext.D13 also. Both these documents do not show that on 19.02.2001 or a couple of days before or after the said day, there was death of a person by name Kunhiraman in that area. Learned Prosecutor contended that testimony of DW2 and Exts.D12 and D13 cannot be relied on to hold that a person by name Kunhiraman did not die as stated by PW6. It is the argument raised by the prosecutor that if a person dies from a hospital outside the limits of a Grama Panchayat, the death would be registered in the local authority where the hospital is situated. True, such a possibility cannot be ruled out. Even if we accept the case of prosecution regarding recovery of MO3, it may be insufficient to enter a finding of guilt of the appellants solely based on that fact.
41. Section 25 of the Act creates an absolute prohibition of proving any confession made to a police officer by a person accused of any offence. Section 26 of the Act says that no confession made by any person in custody of a police officer shall be proved against him unless it be made in the immediate presence of a Magistrate. Presence of a Magistrate is regarded as equivalent to removal of influence by the police and so, though in police custody, a confession to a third person in the presence of Magistrate is made admissible.
42. Section 27 of the Act reads as follows:
“How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”
43. We may quote a passage from a classical work “An introduction to the Indian Evidence Act” by Sir James Fitzjames Stephen, Q.C, who drafted the Indian Evidence Act. It reads as follows:
“Admissions in reference to crimes are usually called confessions. I may observe upon the provisions relating to them that sections 25, 26 and 27 were transferred to the Evidence verbatim from the Code of Criminal Procedure, Act XXV of 1861. They differ widely from the law of England, and were inserted in the Act of 1861 in order to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody.”
44. The purpose of incorporating Section 25 of the Evidence Act, creating an embargo in proving a confession by an accused to a Police Officer and providing an exception to that rule in Section 27 of the Evidence Act, can be discerned from the above passage.
45. It is well settled that Section 27 of the Act is by way of a proviso to Sections 25 and 26. The above principle and the proposition that a statement, even by way of a confession made in police custody which distinctly relates to a fact discovered, is admissible in evidence against the accused are indisputable (see State of Karnataka v. David Razaria - AIR 2002 SC 3272).
46. Section 27 of the Act appears to be based on the view that if a fact is actually discovered in consequence of an information given by an accused in custody, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence (see Geejaganda Somaiah v. State of Karnataka - AIR 2007 SC 1355). It is stated in the above decision that the court has to be cautious that no effort is made by the prosecution to make out a statement of accused, with a simple case of recovery, a case of discovery of fact in order to attract the provisions of Section 27 of the Act.
47. Following are the essential requirements according to learned author Sarkar on Law of Evidence (11 Edition) for the application of Section 27 of the Act:
“(1) That consequent to the information given by the accused, it led to the discovery of some fact stated by him.
(2) The fact discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused.
(3) Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information.
(4) The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition i.e, the knowledge of the accused of the place where the object was produced and the knowledge that it was there.
(5) only such portion of the information as is distinctly connected with the said discovery is admissible.
(6) The discovery of the fact must relate to the commission of some offences.”
48. The proposition that merely on the basis of a fact discovered on the confession of an accused, while in custody, the prosecution cannot seek his conviction without establishing other corroborating circumstances is beyond any pale of dispute. In otherwords, it may be imprudent to convict a person solely on the factum of recovery under Section 27 of the Act.
49. Learned counsel appearing for the appellants strongly contended that non-examination of material witnesses, that too without offering any palatable explanation, is a serious infirmity in the prosecution case. According to them, withholding CW2 Babu, CW4 Babu Raj and CW9 Rajesh from the witness box was intentional on the part of prosecution to falsely implicate the appellants. As stated above, CWs 2 and 4 were present in PW5's house where the incident had taken place. If we believe the prosecution case, they must have had a reasonable chance of seeing the assailants from a close proximity. Besides, CW9 Rajesh was the other witness who was present in the house of deceased Ashokan as well as in the house of PW5. Prosecution has a case that shortly before the incident, the aggressors under the leadership of the 1 appellant questioned and intimidated him and physical hurt was meted out by twisting his arm. Therefore, CW9 certainly would have been a material witness to establish identity of the assailants. The prosecution has not put forth any valid reason for the non-examination of these witnesses.
50. We are not oblivious of the principle that the prosecutor in his wisdom is free to decide as to who should be examined to prove a particular aspect in the prosecution case. However, the prosecutor's wisdom can be challenged by the accused by raising a complaint about non-examination of a material witness. The complaint about non-examination of a material witness becomes very relevant when the testimony of witness/witnesses examined to prove that particular aspect of the prosecution case was found to be uninspiring or not credible. Sublime principle that the prosecution should place the entire facts before the Court so as to enable it to take a fair decision is non-negotiable. Withholding a material witness in a given case may amount to thwarting the concept of fair trial. It depends on the facts and circumstances in each case.
51. Learned counsel for the appellants relied on the decisions in Rang Bahadur Singh v. State of U.P ((2000) 3 SCC 454) and Sohan v. State of Haryana ((2001) 3 SCC 620) to advance their arguments. In Rang Bahadur Singh's case, the apex Court, on the facts of the case, held that when four witnesses were examined to speak about the occurrence, normally non-examination of one more witness is not a serious flaw. Non-examination of a witness was commended upon by the Supreme Court finding that he was a material witness to speak about the incident. Similarly, in Sohan's case, the Supreme Court, after analysing the facts, held that non-examination of material witnesses, who are available to corroborate the testimony of other witnesses, was a serious lacuna in the prosecution case.
52. In answer to this argument, learned Prosecutor contended that all the natural and probable witnesses have been examined. In the facts and circumstances of this case, relatives of the victim are the natural witnesses. It is also contended that non-examination of the aforementioned witnesses do not render the prosecution case weak. But we are unable to accept this argument for the reasons pointed out above.
53. The expression “interested witness” should be understood as a person who has a purpose of his own to serve. Merely because a witness is a close relative of the deceased, he does not become an interested witness. Normally, relatives of the deceased will be interested in seeing that the real culprits are punished. Interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to dispute relating to property (see Ram Bharosey v. State of U.P - AIR 2010 SC 917).
54. Evidence of a relative witness need not always be an interested one (see Amzad Ali v. State of Assam - AIR 2003 SC 3587). Supreme Court in D.V Shanmugham v. State of A.P ((1997) 5 SCC 349) has held that when independent witnesses available were not examined and only related witnesses alone were examined by the prosecution, then in such a situation the prosecution case has to be scrutinised with more care and caution.
55. To sum up this point, we find that the testimonies of PWs 1 to 3 and that of PW4 are full of contradictions, embellishments and omissions amounting to contradictions. In this context, non-examination of CWs 2, 4 and 9 assumes much relevance. The plea advanced by the learned counsel for the appellants that the best evidence was withheld from the court's view is forceful and deserves to be approved. For the said reasons, we hold that the prosecution failed to offer any plausible explanation for the non-examination of the above mentioned material witnesses. Dereliction on the part of the prosecution is a blot on the veracity of prosecution case.
56. Another point urged by the learned counsel for the appellants is regarding the presence of police personnel at the crime scene before registration of the crime. Section 154 Cr.P.C mandates that an officer in charge of a police station shall reduce to writing every information relating to commission of a cognizable offence. It further says that every such information, whether given in writing or reduced to in writing, shall be signed by the person giving it. The substance thereof shall be entered in a book to be kept by such officer in the prescribed form. Furthermore, a copy of the information recorded shall be given forthwith, free of cost, to the informant. The Section speaks about the remedy of a person aggrieved by the refusal on the part of an officer in charge of a police station to record the information. If that be so, the aggrieved person may approach the Superintendent of Police.
57. The principal object of the first information report, from the point of view of the informant, is to set the criminal law in motion and from the point of view of the investigating authorities, to obtain information about the alleged criminal activity, so as to enable them to take suitable steps to trace and book the guilty person.
58. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging first information report quite often results in embellishment which is a creature of afterthought (see Thulia Kali v. State Of Tamil Nadu - AIR 1973 SC 501). However, the mere fact that the first information has been lodged early does not rule out embellishment or falsehood in every case.
59. It is also settled law that delay in giving FIR by itself cannot be a ground to doubt the prosecution case. Human nature is that kith and kin, who have witnessed the occurrence, cannot be expected to act mechanically with all the promptitude in giving a report to the police. At times, being grief-stricken because of the calamity, it may not immediately occur to them that they should give a report. Unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. Suspicion about the credibility of FIR normally arises only when the delay remains unexplained (see Tara Singh v. State of Punjab (AIR 1991 SC 63); Amar Singh v. Balwinder Singh (AIR 2003 SC 1164) and Vidyadharan v. State Of Kerala ((2004) 1 SCC 215).
60. It has come out in evidence in this case that immediately after the incident, policemen had visited the crime scene. This fact is plainly admitted by all the material witnesses and also seen from Ext.P11 The incident was at about 8.30 a.m on 05.12.2000 Ext.P11(a) FIR was registered at 9.40 a.m on the same day. The informant himself had mentioned in Ext.P11(a) FIR that when he went to the place of occurrence shortly after the incident, policemen had come there. The question arising for determination is whether there is any breach of duty on the part of the SHO in registering a crime without waiting for a report from the informant?
61. A constitution Bench of the Supreme Court in Lalita Kumari v. Government of Andhra Pradesh (2013 (4) KLT 632) has clearly held that police is duty bound to proceed to conduct investigation into a cognizable offence even without receiving information about commission of such offence, if the officer in charge of a police station otherwise suspects the commission of an offence. Following proposition of law is declared:
“In terms of the language used in S.154 of the Code, the police is duty bound to proceed to conduct investigation into a cognizable offence even without receiving information (i.e, F.I.R) about commission of such an offence, if the officer in charge of the police station otherwise suspects the commission of such an offence. The legislative intent is therefore quite clear, i.e, to ensure that every cognizable offence is promptly investigated in accordance with law. This being the legal position, there is no reason that there should be any discretion or option left with the police to register or not to register an F.I.R when information is given about the commission of a cognizable offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided under S.154 of the Code about the commission of a cognizable offence must be registered as an F.I.R so as to initiate an offence. The requirement of S.154 of the Code is only that the report must disclose the commission of a cognizable offence and that is sufficient to set the investigating machinery into action.”
62. In the above decision, it has been categorically held that Section 154(1) Cr.P.C does not admit of conferring any discretion on the officer in charge of the police station for embarking upon a preliminary enquiry prior to the registration of FIR. The principle stated is thus:
“Therefore, the context in which the word “shall” appears in S.154(1) of the Code, the object for which it has been used and the consequence that will follow from the infringement of the direction to register F.I.R.s, all these factors clearly show that the word “shall” used in S.154(1) needs to be given its ordinary meaning of being of “mandatory” character. The provisions of S.154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer-in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an F.I.R It is settled position of law that if the provision is unambiguous and the legislative intent is clear, the court need not call into it any other rules of construction.”
63. It has come out through the testimonies of PWs 15 and 16 that they did not make any serious enquiry as to who were the policemen present at the scene before registration of Ext.P11(a). It is also not clear whether they had forwarded any information about commission of the crime to the SHO prior to the registration of Ext.P11(a). Lack of evidence on these aspects coupled with the non-production of GD kept in the police station is a serious infirmity in the prosecution case, enabling the appellants to raise a contention that first version of the incident was suppressed with ulterior motives. It is true that the time gap between the alleged incident and registration of Ext.P11(a) FIR may not be too long, but in the peculiar facts established in this case, reasonable doubt may arise about truthfulness of Ext.P11(a). Therefore, this is also a blemish in the prosecution case.
64. About the significance of the GD, we may first refer to the provisions in the Kerala Police Manual, 1970, dealing with duties of police officers. Chapter XV in Vol.II of the Manual is relating to maintenance of diaries and their scrutiny, etc. Rule 390, relating to Station General Diary reads as follows:
“390. (1) The General Diary in K.P.F No. 57 is the record prescribed by the Police Act and by the Criminal Procedure Code for the recording of cognizable and non-cognizable cases and details of the daily events of the Station.
(2) The main object of the Station General Diary is to safe guard the interests of the public by chronicling briefly at the time they arise all important occurrences affecting the Police and the public. A further object of the diary is to keep the superior Police Officers informed of such occurrences.
(3) The entries in the diary should be as brief as possible consistent with the objects of the diary. The entries should be regarding the following among other occurrences reported at the Police Station limits.”
65. Kerala Police Manual, 1971 (Vol.III) deals with administration. Rule 535, relating to period of retention and destruction of records, reads as follows:
“535. (1) Station and Circle records, which have to be retained in the District Police Office, will be sent to the District Police Office by the Circle Inspector at the beginning of the year.
(2) At the close of each year, the Inspector will prepare and forward to the District Police Office by the 15 January, for the orders of the Superintendent of Police, a list in duplicate, in respect of each station and of his office, of time expired records which need not be retained and other useless papers for destruction. On receipt of the orders of the Superintendent of Police, the Inspector should send them to the District Police Office for being either retained there or sold to approved contractors. Records sold to contractors should be torn to pieces.
(3) Similarly, Sub Divisional Officers will follow the same procedure as stated above in respect of records in their offices.
(4) Names of records, period of retention of each record, etc., are given in Appendix IV.”
66. Appendix IV, Entry 29 shows that General Diary (Station copy) shall be retained for three years and it should be destroyed by Inspector on the sanction of the Superintendent of Police. In this case, there is no material produced to find that the GD relating to that particular period was destroyed as per the orders of the Superintendent of Police.
67. Above aspects clinchingly show that both the SHO and investigation officer have failed in placing the relevant facts before the court to establish that Ext.P11(a) is the FIR promptly registered and there was no chance of getting any information by the SHO before the registration of Ext.P11(a). Further, procedural regularity in maintaining the GD is also not at all proved. These aspects cast a reasonable doubt in the mind of court about the propriety of investigation. The appellants are certainly entitled to get the benefit of doubt.
68. Besides the infirmities and irregularities in the investigation and prosecution, the trial Judge has also contributed to a large extent to thwart a fair trial. It is disturbing to note that the trial Judge ignored the basic principles regarding the admissibility of a statement recorded under Section 161 Cr.P.C Sessions Judges handling cases involving death penalty or imprisonment for life should be sober in their judicial functions. Above all, they are expected to know the rudimentary principles of substantive and procedural laws for conducting a fair trial. Every accused has a right to get a fair trial under the Constitution, for which legal acumen and soberity of Judges are essential qualities. Lest, the justice delivery system will be a casualty, besides the affected persons. We are compelled to re-state so because of the glaring illegalities in the trial process. Misuse of the statements recorded by police under Section 161 Cr.P.C is rampant in this case, disregarding the basic principles of law.
69. Section 161 Cr.P.C speaks about examination of witnesses by police. That part of the Section relevant for our purpose is quoted hereunder:
“161. Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:
Provided that statement made under this sub-section may also be recorded by audio-video electronic means:”
70. Under this Section, a police officer making an investigation can examine the person acquainted with the facts of the case. The expression “any person” occurring in the Section includes an accused person also (see Mathew Zacharish v. State of Kerala - 1974 Cri.L.J 1198 (Ker)).
71. Section 162 Cr.P.C mainly deals with two things, viz., statements to police not to be signed and how the statements can be used in evidence. Sub-section (1) of Section 162 Cr.P.C with its proviso is quoted hereunder:
“162. Statements to Police not to be signed - Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.”
72. Explanation to the Section says that an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. It further says that whether the omission amounts to a contradiction in a particular context shall be a question of fact.
73. On a plain reading of Section 162 Cr.P.C, it is crystal clear that no statement made by a person to a police officer in the course of an investigation under Chapter XII shall be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except to contradict such witness in the manner provided under Section 145 of the Act. And when any part of such statement is so used, any part thereof may be used in the re-examination of such witness only for explaining any matter referred to in his cross examination. Axiomatic principle is that the statement recorded by a police officer under the above provision shall not be used for any purpose other than those mentioned in the proviso to Section 162(1) Cr.P.C This basic principle has been violated by the Sessions Judge to the extreme prejudice of the accused.
74. In the light of the clear provisions in Section 162 Cr.P.C, we find no necessity to quote any precedent regarding the use of statements recorded by police under Section 161 Cr.P.C during an investigation. Still, we may refer to two decisions by Division Benches of this Court in Alikutty Alias Ali v. State of Kerala (2006 (3) KLJ 467) and Sujith K.M v. State of Kerala (2010 KHC 224). In both these decisions, this Court has clearly held that statements under Section 161 Cr.P.C cannot be treated as evidence in a criminal trial. In paragraphs 47 and 49 of the judgment, we find clear breaches of this legal provision committed by the trial Judge. As stated above, there are lot of contradictions and omissions amounting to contradictions elicited from PWs 1 to 4 during examination. All these lacunae have been filled up by the trial Judge relying on the statement of the witnesses recorded under Section 161 Cr.P.C In paragraph 47, the learned Sessions Judge has made the following observations:
“……….. A perusal of the evidence of PWs 1 to 3 and their 161 statements would show that the ladies and children ran towards the house of CW1 crying after the incident. It is after Ashokan was killed the ladies (not PW1) and children ran towards the house of Govindan. ………”
75. In paragraph 49, the following observations are made:
“………….. A perusal of the 161 statement of PW1 will show that she has specifically stated the names of A1 and A2 with axe and chopper as the person who lead the assailants. The name of A3 to 5 and the weapons held by them is also stated by PW1 to investigating officer. But she only stated that when the assailants came to the house of PW5 the axe which A1 had with him and the chopper which A2 had, were blood stained. She has not specifically stated to the investigating officer that she saw A1 to A5 entering the house of PW5. Similarly, PW2 has specifically stated the names of A1 to A5 and the weapons which they possessed when they entered the house of PW5, before the investigating officer. She did not state that she saw blood stained weapons with A1 to A5 when they came out. She only stated that after some time A1 and his friends went towards Kaivelickal through the southern side of the house. The statement of PW3 before police is also similar to that of PW2. Before court, PWs 1 to 3 deposed that when A1 to 5 came out of the house of PW5 their weapons had blood in it. ……………”
76. Extraction of the above observations from the trial court's judgment clearly show that the trial Judge had looked into the case diary statements of material witnesses recorded by police under Section 161 Cr.P.C Such statements have been used against the accused despite the witnesses have deviated from the case diary statements at the time of tendering evidence. This action on the part of the Sessions Judge, in the modest words, is the height of illegality possible in a criminal trial. Accused were found guilty by referring to the case diary statements of the witnesses, which were either deviated from or not proved at the trial.
77. Additional Sessions Judge, if so eager to reach at the truth, could have invoked the provisions in Section 311 Cr.P.C to summon any person as a witness at any stage of enquiry, trial or other proceedings under Cr.P.C though not summoned as a witness. The Supreme Court in Mohanlal Shamji Soni v. Union of India (1991 Cr.L.J 1521) has held that power of a court to recall any witness or witnesses already examined or to summon any witness can be invoked even if the evidence on both sides has been closed so long as the court retains seisin of the criminal proceedings. The object of the provision is to do justice not only from the point of view of the accused and the prosecution, but also from the point of view of an orderly society. The trial Judge did not think it fit to invoke this provision to satisfy his judicial conscience. Instead, he tried to fill up the lacunae in the prosecution case by resorting to an illegal act of relying on the case diary statements as substantive evidence. We express deep anguish for the lack of legalistic and justice oriented approach on the part of a senior judicial officer in the subordinate judiciary. We refrain from making any further comment on the conduct of the trial Judge because we find other valid reasons too to upset the judgment under appeal.
78. From the above discussion, it is clear that the prosecution has utterly failed to establish the guilt of the accused beyond reasonable doubt. One more soul in a serial political killing goes unavenged due to unskilled investigation and faulty prosecution. Victims (martyrs, as the parties may call them for political gain) of the spate of political murders are from the rank and file. Those who in the higher echelons masterminding and orchestrating these barbaric activities remain safe and secure. They celebrate martyr's days and shed crocodile tears.
79. Inevitable conclusion is that the prosecution failed to establish the guilt of the appellants beyond reasonable doubt and therefore we allow the appeal and set aside the judgment of the trial court.
80. In the result, the appeal is allowed and the impugned judgment is set aside. The appellants are found not guilty of any of the offences charged on them in S.C No. 151 of 2003 on the file of the Additional Sessions Court (Adhoc-II), Thalassery. They are acquitted of all the charges. They shall be set free forthwith, if not wanted in any other case.
81. Before parting with the case, we direct the Registrar (Subordinate Judiciary) to forward a copy of this judgment to the trial Judge (Additional Sessions Judge), wherever he works and whatever post he now holds, for future guidance.
GIST OF JUDGMENT
82. Accused persons convicted and sentenced in S.C No. 151 of 2003 on the file of the Additional Sessions Court (Adhoc-II), Thalassery have preferred this criminal appeal. This Court has pronounced judgment in the appeal finding that the appellants, viz., (1) Mottammal Shaji @ Kakka Shaji, S/o. Kunhikannan, Panoor Amsom, Kootteri; (2) Karyullathil Sajith @ Aasha Sajith, S/o. Govindan, Puthoor Amsom, Kootteri; (3) Mullan Kunnummal Uthaman, S/o. Kumaran, Malantavida House, Panoor Amsom, Chirayinbhagam; and (4) Moodentavida Rijesh, S/o. Govindan, Moodenatvida House, Puthoor Amsom, Kootteri, are not guilty of the offences punishable under Sections 143, 147, 449 and 302 read with Section 149 of the Indian Penal Code, 1860 and they are acquitted of all the charges in the above Sessions Case. Therefore, they are entitled to be released forthwith, if not wanted in connection with any other case.
83. Registrar shall immediately communicate this direction to the Superintendent of Jail, Central Prison, Kannur for compliance.
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