Criminal Appeal No. 1427 of 2003 · Kerala High Court · 2009

Crl.Appeal.No.1427 of 20034innocence. A1 had the following to submit before the court:-Accused persons are all BJP workers. Theprosecution witnesses are members of DYFI. Thewitnesses have political animosity against the accusedpersons. Radhakrishnan, Circle Inspector of Police(CW6) has personal animosity towards the 1st accused.One day the Police had taken him into custody from thepremises of the Sessions Court. His father had filed apetition before the High Court against the Police. Inthat case the Police had tendered unconditional apology.At that time a threat was made that he would be falselyimplicated in a case. The present case was foisted outof the said enmity and political hostility. He is innocent.The other accused persons also alleged that they werefalsely implicated in this case out of political vendetta.6. Since this was not a case of no evidence for theprosecution, the court below did not record an order ofacquittal of the accused under Section 232 Cr.P.C. When Crl.Appeal.No.1427 of 20035the accused were called upon to enter on their defence theaccused produced Ext.D2 certified copy of the order dated12.11.1997 of this Court in Crl.R.P.No.852 of 1997 as perwhich the Circle Inspector of Police, Town East PoliceStation, Thrissur tendered unconditional apology for thearrest of the 1st accused herein. 7. The learned Sessions Judge, after trial, as perjudgment dated 21.07.2003 acquitted accused Nos.7, 8, 9,11, 13 and 14 but convicted accused Nos.1, 2, 4 to 6 and 10to 12 (appellants herein) for the aforementioned offences.For the conviction under Sections 143,148,323,324,325 and307 IPC, each of the appellants was sentenced to rigorousimprisonment for 1 month, 1 year, 6 months, one year, 2years and 3 years respectively, in addition to a fine ofRs.10,000/- each for the conviction under Section 307 readwith 149 IPC. On default to pay the fine each of thedefaulting accused was directed to undergo rigorousimprisonment for one year. From out of the fine amount a Crl.Appeal.No.1427 of 20036sum of Rs.7,500/- each was directed to be paid to PW1 ascompensation under Section 357(1)(b) Cr.P.C. It is the saidjudgment which is assailed in this appeal. 8.I heard Advocate Sri.P.G.Suresh, the learnedcounsel appearing for the appellants as well as the learnedPublic Prosecutor.9.The only point which arises for consideration inthis appeal is as to whether the conviction entered and thesentence passed against the appellants are sustainable ornot ?The Point:-THE PROSECUTION WITNESSES10.P.W.1 (CW2) (Vichitran) is one of the injuredpersons in the occurrence. He is not the 1st informant inthe case.11. P.W.2 (CW10) Sudhakaran is an independent eyewitness. He is a resident of Polurkara and a friend of PW1.According to him he came to the house of PW1 as the Crl.Appeal.No.1427 of 20037latter was going to Mysore that night. He claims to haveseen the occurrence from the paramba situated to the southof PW1's house. 12. PW3(CW1) Thankamani is the mother of PW1.She is the 1st informant in this case. Ext.P1 is the FirstInformation Statement given by her to PW11 the SubInspector of Ollur Police Station, at about 7.30 p.m on16.9.1997 from her residence. 13. PW4 (CW12)(Anthony) is a witness to Ext.P2scene mahazar prepared by the Investigating Officer. Heturned hostile to the prosecution.14. PW5 (CW14) (Gopalan) is a witness to Ext.P2Seizure Mahazar. He has proved the recovery of MO3 fromthe scene of occurrence. 15. PW6 (Dr.Rafeeque of Medical College Hospital,Thrissur) proved Ext.P3 Wound Certificate of PW1 who wasexamined by him at 7.45 p.m on 17.9.1997. the allegedcause stated to the Doctor was the following:- Crl.Appeal.No.1427 of 20038കണ(cid:3)ല “റ(cid:7)യ(cid:9)ന ആള വ(cid:14)ട(cid:7)ല വന(cid:17) വവട(cid:7) “The following are the injuries noted by PW6.“Incised wound extending from rightZygotic region involving right pinna extendingup to neck 15 cm below mastoid. Wound is oneinch deep. 7 cm cut on scalp mid line. 3 to 5cm lacerated wound on temporal region.” 16. PW7 (Dr.Shibu Abraham, Lecturer in Ortho,Medical College Hospital, Thrissur) proved Ext.P4 WoundCertificate of Chandran (CW4) husband of PW3. The saiddoctor examined CW4 at 8.30 p.m on 16.9.97 with thecomplaint that he was assaulted by many people. The injurynoted was a fracture of 2nd metatarsal of right feet. PW7also proved Ext.P5 Wound Certificate pertaining to CW5(Ajayan) who is one of the brothers of PW1. The doctor whohad examined CW5 was Dr.Koshy George(CW24) was notavailable and his handwriting and signature were familiarto PW7. CW5 was examined by Dr.Koshy George at 8 p.mon 16.9.97 and the history stated was alleged assault at Crl.Appeal.No.1427 of 20039about 7.15 p.m on 16.9.1997. 17. PW8 (CW6) Ajish is another injured witness. He isalso a resident of Polukara and was allegedly visiting PW1who was going to Mysore that night. He was allegedlyreturning from underneath the Banyan tree where theyused to play the game of playing cards. 18. PW9 (CW15) (Sathyajith) was an attestor to Ext.P6seizure mahazar dated 18.9.1997 as per which MO1 swordand MO1(a) sheath were recovered by PW11 at 5.15 p.mconsequent on the confession made by A1.19. PW10(Baiju)(CW16) was cited to prove therecovery of MO5 blood-stained shirt of A8 as per Ext.P8Mahazar prepared by PW11. However, this witness turnedhostile to the prosecution. 20. PW11(Chakunni) is the Sub Inspector of Police,Ollur Police Station. He recorded Ext.P5 First InformationStatement of PW3 from her house at 7.30 pm on 16.9.1997and also took into custody MO3 sword which was lying at Crl.Appeal.No.1427 of 200310the scene of occurrence. It was this officer who recoveredMO1 sword and MO1(a) sheath as per Ext.P6 Mahazarpursuant to the confession of A1.21. PW12 (M.R.Maniyan) (CW27) was the CircleInspector of Police who questioned A2 and on the strengthof his confession recovered MO2 sword as per Ext.P11search list. He had sent Ext.P11 search memorandum priorto the search of the house of A2. 22. PW13 Baby (CW18) was a witness to Ext.P11search list prepared for the recovery of MO2 sword fromA2. He turned hostile to the prosecution.23. PW14(Joby)(CW17) was a witness to Ext.P11search list. He also turned hostile to the prosecution. EYE WITNESSES' ACCOUNT 24. Out of 14 witnesses examined by the prosecution,PWs 1 to 3 and 8 are the occurrence witnesses of whomPWs 1 and 8 are the injured. The testimony of PW1 whowas the main target of attack and who sustained the graver Crl.Appeal.No.1427 of 200311injuries is to the following effect:-He is a goldsmith by avocation. He belongs toPolukkara. About five months prior to the occurrence, heand his wife Ajitha (CW3) had gone to Mysore for treatingtheir deaf and dumb daughter. They came home to thenative place in connection with onam. The occurrence tookplace on 16.09.1997 which was the third onam day. Thetime of occurrence was about 6.30 p.m. In their house atPolukkara, his father Chandran (CW4), mother Thankamony(PW3) and brothers Sadanandan (CW7), Ajayan (CW5),himself, his younger brother Vinod are the inmates. Besidesthem, the wives of his two elder brothers are also residingin that house. PW1, his elder brother Ajayan (CW5) andneighbour Ajeesh (PW8) were engaged in pleasantries inthe front varandah of their house. He was supposed toreturn to Mysore in the bus starting at 9.30 in the night.His parents were standing in the front courtyard. Theirhouse is facing west. At that time, about 10 or 11 assailants Crl.Appeal.No.1427 of 200312from west came running to their house. They were in abelligerent mood. As soon as they came, Byju Lal (A2)kicked his father Chandran (CW4) on his right leg and hisfather fell down. Byju Lal is now no more since he wasmurdered by somebody. As soon as his father fell down,PW1 and others went to the rescue of their father. At thattime, A1 to A4 took out this swords which they had hiddenunder their shirts. He knows all those four accusedpersons. Seeing the weapons, he got frightened and rantowards the back side of the house through the southernportion of the house. The four persons who are armed withswords(A1to A4), chased him. Immediately behind him wasA1 Raju. While running for his life, A1 cut him with MO1sword on his right ear resulting in a portion of the pinnashearing from its position and dangling. From the back sideof the house, he ran eastwards. After jumping over thewater channel, he fell into the yam cultivation( ക(cid:19)ര(cid:21) വ(cid:3)ര(cid:23) ).At that time, A4, A3 and others fisted and kicked him. Crl.Appeal.No.1427 of 200313(witness identified A5, A6 and A8 also) His mother (PW3)and sister Latha (CW8) came to his rescue. At that time,the assailants withdrew from the scene. He was carried tothe front portion of the house and made to see there. Hiswife also came to console him and attended on him. At thattime, suddenly A2 emerged there with a sword and cut himon the head twice. One of the blows struck the nose of hiswife who sustained an injury to her nose. The swordwielded by A3 was lying on the ground. All the assailantsthen ran towards the west. Thereafter, PW8 and PW1'sbrother Ajayan (CW5) came there. The leg of PW8 was seeninjured. There was an abrasion on the leg of CW5 as well.His father was complaining of pain at the ankle. Somebodytook them to the hospital. A1 had cut him on the right earby shouting that he will kill him. Sometime prior to theoccurrence, there was some quarrel among his brotherAjayan (CW5), (PW8) and few others who were playingcards. The occurrence took place pursuant to the said Crl.Appeal.No.1427 of 200314incident. He had given a statement to the police. MO1 wasthe sword along with its sheath wielded by A1. MO2 wasthe sword used by A2. The bigger sword which was lyingon the ground at the rescue of crime was MO3. Altogetherfive persons including him were injured in the occurrence.It is not correct to say that the occurrence took place at7.15 p.m. or that darkness had set in from 5.30 onwards.All the five injured persons were taken to the hospitaltogether. He might have told the doctor that identifiablepersons came to his house and cut him. He cannotremember what he is told the doctor since his mentalcondition at that time was very precarious. It was not evensure whether he would survive or not. The majority ofimprovements on the rear side of his house are coconuttrees. The distance of the yam cultivation would be around150 metres from the house. The accused persons used tocome to Polukkara even before. They came to his house onlyon the date of occurrence. He does not know what Crl.Appeal.No.1427 of 200315happened at the place where cards were played. He doesnot know the persons with whom Ajayan and PW8 picked upquarrels. The first cut was received by him while he wasrunning towards northern direction by the side of his house.After running northwards, he ran towards the east. It wasat a point on the eastern side of the house that he receivedthe first cut on the right ear. The second cut was receivedby him from the front portion on the western side of thehouse. He does not know whether himself and his familymembers are sympathisers of Marxist party. He also doesnot know whether there used to be clashes between theMarxist and the R.S.S people in that locality since he was inMysore. He does not know as to how his brother Ajayanand neighbour PW8 sustained injuries. He has not shownthe assailants to the police nor had the police shown themto him. He had told the doctor that identifiable persons haddone this to him. All the four accused persons werewielding swords. He had told the police that A1 to A4 had Crl.Appeal.No.1427 of 200316chased him and it was while running that he was cut on hisear from behind. When his mother and sister came, theassailants had withdrawn. Thereafter, when he was carriedto the western side of the house, the assailants re-appearedthere and it was while his wife was attending on him that hewas cut again with MO2 sword which had struck his wife'snose as well. He sustained two cut injuries on his head. Itis only for the past one year that he is a member of theMarxist party. He does not know whether the accused areB.J.P - R.S.S people. Even when the swords were shown tohim by the police, there was blood marks on them. It is notcorrect to say that it was dark at the time of occurrence. Itis also not correct to say that he was giving the names ofpersons as dictated to him by the party people out ofpolitical enmity.25.P.W.2 (Sudhakaran) who is also a goldsmith byavocation is a resident of Polookara. He is a friend ofP.W.1 for the past 21 years. The main part of his Crl.Appeal.No.1427 of 200317testimony is as follows:-The occurrence took place on the third onamday. When he reached P.W.1's house between6 and 6.30 p.m. the assailants had collectedthere armed with weapons and so he did notgo near them. Then he saw Ajayan (CW5),Sadanandan (CW7) and Ajeesh (P.W.8)running and P.W.1 also running behind them.A1, A2 and A4 who were armed with weaponschased them shouting that they will kill him.Then A1 cut P.W.1 on his right ear and the earlobe was cut and a piece was dangling. P.W.1ran and fell in the yam cultivation. A1, A2 andA4 fisted P.W.1 who was lying in the yamcultivation. P.W.1 was carried to the frontcourtyard by his mother and sister. His wifecame and sat beside him. By that time A2suddenly emerged with a sword in his hand Crl.Appeal.No.1427 of 200318and cut P.W.1. In that blow the sword struckthe nose of P.W.1's wife causing an injury. Bythe time people gathered there the assailantsmade good their escape. Sadanandan (C.W.7),Ajesh (PW8) and Vadakkan Sathyan were thepersons who came there. There was an injuryon the leg of P.W.8 and PW8 told him that itwas sustained with the sword of A3. PW2also identified A12, A6 and A5 also among theassailants. When he went to the house of P.W.1on that day besides the inmates of the house,there were 5 to 8 persons. He is a Marxistsympathiser for the past 20 years. He waspresent when P.W.3 the mother of P.W.1 gavestatement to the police. After the occurrencehe hired a car and took the injured persons tothe hospital, He spent the whole night in thehospital. P.W.1's brother Ajayan (CW5) , Crl.Appeal.No.1427 of 200319Ajitha and Ajeesh (P.W.8) were taken to thehospital. Chandran, the father of P.w.1 was nottaken to the hospital. All the four injuredpersons were examined by the doctor. Hewas present when P.w.1 was examined by thedoctor. P.W.1 was in his senses and was able tospeak. P.W.1 also told the doctor about theinjuries. The house situated to the south ofP.W.1's house is that of one Pappan Sankaran .He does not know whether the said Sankaranwas at home at that time. He had got into theparamba of the said Sankaran. There are treeslike coconut, areacanut, jack fruit etc, in thatparamba. It is possible to see the occurrencefrom the house also. He had remained in thatparamba for 10 minutes. At that time, neitherP.W.1 nor his family members had seen him.Besides the house of Sankaran, there are Crl.Appeal.No.1427 of 200320several houses in that locality. The house ofP.W.1 is facing west. It was a forceful cut.The assailants chased PW1 for about 200metres. His wife and sister had run behindthe assailants. It was seeing the sword thatthey got scared and ran. C.W.7 and otherswere running along the side of the house.After P.W.1 was brought the assailants cameback. The parents of P.W.1 were on thewestern side of the house at the beginning ofoccurrence. Ajayan and P.W.8 had run alongwith Sadanandan. It was not dark at the timeof occurrence. It is only by 7.15 that it wouldbecome dark. It was the Sub Inspector whorecorded the statement of the mother of P.W.1.He does not know whether P.W.1 was theMarxist worker. He is a friend of P.W.1 for thepast 21 years. He is not telling falsehood in Crl.Appeal.No.1427 of 200321view of his friendship with P.W.1.26.P.W.3 (Thakamani) is the mother of P.W.1. Sheis the first informant as well. At the time of herexamination of 20-12-2003 she was aged 62 years. Herdeposition is to the following effect:-She is a resident of Polookkara. Theoccurrence took place at 6.30 p.m. on the 3rdOnam day. Herself and her husband(Chandran - CW4) were standing on the frontcourtyard. Her sons Sadanandan (CW7),Vichithran (P.W.1), Ajayan (CW5) and herneighbour Ajeesh (P.W.8) were talking in thefront veranda. While so, some persons camefrom the west armed with sticks and swords.There were about 10-14 assailants. Byjulalkicked her husband on his leg and he felldown. Byjulal is now no more. When shecried aloud her sons came to the courtyard. At Crl.Appeal.No.1427 of 200322that time Byjulal (A3), Rethi (A4), etc, took outtheir swords. Two more persons took outthe swords hidden inside their shirt. Seeingthis, her sons got frightened and they startedrunning. The four assailants chased them.She and her daughter also went behind themin a frightened mood. When she reached thereher son P.W.1 was lying in the yamcultivation situated near the water channeland about 5 or 8 persons were kicking andbeating him. They include A6, A2, A4 and A1.She does not remember others as she was ina perplexed mood. When she and othersraised a hue and cry the assailants withdrewfrom the scene. She and her daughter carriedP.W.1 to the foot steps on the western side ofthe house and made him sit there. By thattime P.W.1's wife Ajitha also came to his Crl.Appeal.No.1427 of 200323rescue. Suddenly three or four assailants whohad withdrawn earlier emerged there. A2 cutP.W.1 on the head. His wife sustained aninjury on her nose. She does not know as towhat happened thereafter. The assailantswent towards the west. P.W.1's right ear wasdangling. The Police came and she utteredsomething. Ext.P1 is that statement. She doesnot know as to what all matters were stated tothe police. She was not knowing whether herson was alive and what happened to herhusband. She was completely put out. It isnot correct to say that the statement given tothe police was in accordance with the advicegiven by the local Marxist leaders. No partymen had come there. She does not rememberwhether she had seen A3 alone taking out thesword from inside his shirt. The occurrence Crl.Appeal.No.1427 of 200324was from the yam cultivation. P.W.1 was atthe extreme rear. All others had runtogether. She herself and her daughter hadrun behind them. While P.W.1 was lying aftersustaining the cut he had told that he was cutby Raju (A1). He again repeated the samewhile he was brought from the yamcultivation. Her son Sadanandan plays cards.She does not know whether on the date ofoccurrence he had gone for playing cards orwhether he had picked up any quarrel. Shehas not given Ext.D1 statement as per whichshe was told that Byjulal , Rethi, Kadiyan Raju,Rethilal, Thatha Baiju, Sudhi, Vettikka Raju,Kannan, Dixon, Jobby and Shaju etc. are thepersons who had come to her courtyard andassaulted her children. When people startedgathering Byjulal (A3) dropped the sword on Crl.Appeal.No.1427 of 200325the courtyard and ran westwards. Her sonwas not able to speak properly from thehospital. His speech was incoherent. Whenshe saw P.W.1 his ear was hanging and it wasbleeding. She does not remember theoccurrence fully. The occurrence was at 6.30p.m. and not at 7.15 p.m. There was sufficientlight. The person residing in the southernhouse is Sankaran who is the younger brotherof her husband. The inmates of Sankaran'shouse were in that house on that day. Thereis only one house situated close to her house.There are only a few houses in that area andshe did not see whether any of them hadwitnessed the occurrence. Ajitha was in thehospital and she had six stitches. 27. The only other eye witness (P.W.8) was also injured. He along with C.W.5 (Ajayan) were there beneath the Crl.Appeal.No.1427 of 200326banyan tree where people were playing cards. while thecard game was going on, A3 and A4 insisted that they alsoshould be allowed to play the game. P.W 8 and othersrefused. Then A3 and A4 asked them to stop the game.They discontinued the game and disbursed. P.W.8 alongwith C.W.5 then went straight to the house of P.W.1. Theywere sitting in the front portion of P.W.1's house. Theassailants came there. The parents of P.W.1 were alsothere. A3 came and kicked C.W.4 (Chandran) on his leg.The bone cracked. C.W.4 fell down. P.W.8 and others wentto the rescue of Chandran. At that time A1 and A2 took outthe swords which they had concealed in their shirts. Seeingthis, all of them ran. P.W.8 was in the front and behind himthe brother P.W.1 was running. P.W.1 was the last man.The assailants were chasing them from behind. There werethree or four persons. When he looked back, he saw A1cutting P.W.1 from behind. In the meanwhile P.W.8stumbled upon the ridge and fell down. At that time A3 and Crl.Appeal.No.1427 of 200327others came running and he sustained an injury on his legwith the tip of the sword in their hands. Seeing that theywere fast approaching he got up and ran away. When hereached home after some time he saw P.W.1 had beenwounded. P.W.1 told him that A2 had cut him near his ear.They went to the hospital. He had no serious injury whichrequired treatment. MO1 is the weapon used by A1 (Raju).His house is about 200 metres away. P.W.1 was going toMysore that day and the child of P.W.1 was sick that wasthe reason why he went there. By the time he returnedafter the occurrence it was about 7.15 p.m. and darknesshad set in. He had run for about 1 km. When hereturned P.W.1 was in his senses and was able to walk andspeak. There are 7 persons residing on the four sides ofP.W.1's house. He knows those neighbours. When hereturned, neighbours like Subramonian, Suran, Asokan andRaju were in his house. He does not know whether theyare Marxist party workers. That was a card game by Crl.Appeal.No.1427 of 200328name 56. There are altogether 8 players. There was aquarrel between those 8 persons. P.W.1 and his brotherwere also there. That was at about 5 p.m. The waterchannel is to the east of the yam cultivation. There is nowater channel to its west. P.W.1 sustained the injury fromthe yam cultivation. It may be about 100 or 150 metresaway from the house. The persons who picked up quarrelsin the card game were Byju and Ratheesh (A3 and A4). Thetotal extent of P.W.1's property would come to 3-4 acres.There are houses of Sankaran and Kesavan in theneighbourhood. ARGUMENTS ON BEHALF OF THE APPELLANTS 28. The learned counsel appearing for the appellantsmade the following submissions before me in support of hisfervent plea for acquittal of the appellants:-A)The specific case of the prosecution is that the Crl.Appeal.No.1427 of 200329occurrence took place at 6.30p.m when there wassufficient light. According to PWs.1 and 2, theoccurrence was between 6 and 6.30 p.m andaccording to PWs.3 and 8 occurrence was at 6.30 p.m.But in Ext.P1 First Information Statement the time ofoccurrence is stated as 7.30 p.m. There has been adeliberate attempt to prepone the occurrence so thatthe failure to offer an explanation regarding thesource of light could be explained away. There isabsolutely no evidence adduced regarding the sourceof light in which the witnesses had seen theoccurrence. From Ext.P5 wound certificatepertaining to Ajayan (CW5), it can be seen that thealleged assault was at 7.15p.m when it would be dark.The fact that the occurrence took place after dark isalso indicated by the testimony of PWs.1 and 8 whosay that MO1 sword was shining.B) The testimony of PW3 (Thankamani) cannot be Crl.Appeal.No.1427 of 200330believed for a moment. Going by Ext.P1 FirstInformation Statement given by her to PW11, it wouldappear as though she had witnessed the entireoccurrence right from the beginning till the end. Hercase in Ext.P1 First Information Statement is that itwas A3 who cut PW1, CW3 and PW8. But while in thewitness box PW3 does not mention about this part ofthe occurrence as stated in Ext.P1. The testimony ofPW3 is fraught with irreconcilable contradictions,omissions and exaggerations. PW3 has deniedExt.D1 contradiction in Ext.P1 First InformationStatement wherein the names of A3, A4, A1, A8, A6and A5 and one Nellikka Baiju, A11, A7,A9 and A10had been mentioned. But in Court she deposed thatshe did not mention their names. It will be unsafe torely on the testimony of such a witness to confirm theconviction against the appellants. C) While according to PW1 and PW8, A1 to A4 did not Crl.Appeal.No.1427 of 200331initially reveal the weapons which they were hiding intheir shirts, according to PW3 a few persons armedwith sticks and swords came there from the westernside. D) The testimony of PWs.1,2 and 8 also suffers fromcontradictions, omissions and embellishments.PWs.1,2 and 8 are all goldsmiths interested insupporting the prosecution at any cost. PW2, whoclaims to have seen the occurrence from the parambasituated to the south of the house of PW1 could nothave seen the occurrence since there were so manytrees preventing vision. His presence at the placeitself is doubtful. These witnesses who are all activeworkers of the BJP-RSS in that locality were falselyimplicating the appellants from out of politicalantagonism.E) The motive put forward by the prosecution is alsototally unbelievable. In the final report what is Crl.Appeal.No.1427 of 200332alleged is that the animosity was on account of thedispute at the place where cards were played at 5 p.mon the same day. What exactly was the dispute is notstated. While according to PW1 he was not presentat the site below the Banyan tree where the cardswere being played, the evidence of PW8 would go toshow that PW1 and his brother were also there at theplace where the card game was played. According toPW8 while they were playing cards A3 and A4 camethere and asked to include them also in the game andthey were not allowed. Thereupon, they asked theplayers to stop the game and the players discontinuedthe game and went away. At any rate, there is noevidence to show that any of the accused had anymotive against PW1 or others so as to proceed to theirhouse armed with deadly weapons and mount anattack against the members of the family.F) PWs.1,2,3 and 8 did not have previous acquaintance Crl.Appeal.No.1427 of 200333with any of the assailants . Hence, dock identificationfor the first time in court after 6 years of theoccurrence is absolutely valueless. Even in Ext.P1First Information Statement what PW3 had stated isthat the assailants are identifiable by sight. Such awoman could not have identified the assailants for thefirst time in court after 6 years.G) Ext.P2 Scene Mahazar shows that the house of oneSankaran S/o.Kunjappan is situated only 18.30 metersto the south-east of the house of PW1 and the houseof one Subramanian s/o.Velayudhan is situated at adistance of 11.55 meters to the north-west of thehouse of PW1 and the house of one Shaju s/o.Kesavanis situated at a distance of 23.10 meters to the northof the house of PW1, the house of Subran, son ofKesavan is situated at a distance of 25 metres furthernorth. PW3 deposed that Sankaran residing in thesouthern house was available in his house. In spite of Crl.Appeal.No.1427 of 200334that none of the nearby residents has been cited aswitnesses to the occurrence. Latha (CW8) who wasin the company of PW3,Ajitha, (CW3) who was injuredduring the 2nd attack, Chandran (CW4) who sustaineda fracture on his right leg, Ajayan(CW5) anotherinjured witness, Sadanandhan CW7 and 2independent witnesses Sathyan (CW9) Anil Kumar(CW11) etc. have all been kept out of the witness box.Instead, persons who were either closely related toPW1 or his close friends alone have been examined aswitnesses to the occurrence.H) Eventhough PW1 claims to have known theassailants even before the occurrence what wasstated to the doctor at 7.45 p.m on 16.9.1997 asevidenced by Ext.P3 wound certificate is that aperson identifiable by sight came to his house and cuthim. Failure to mention the names of the assailants tothe doctor is a serious flaw. Crl.Appeal.No.1427 of 200335I) Eventhough, according to the prosecution witnesses,4 of the assailants were armed with swords, 3 swordsalone have been produced before court. MO1 is thesword which was allegedly used by A1 and seized asper Ext.P6 mahazar in which it is recited that therewere blood stains on the sword. Likewise, MO5 is theblood stained dress worn by A8 and recovered as perExt.P8 mahazar. MO2 sword was recovered byPW12 as per Ext.P11 seizure mahazar pursuant to theconfession by A2. The said sword is described assmeared with blood. PW1 has admitted that one ofthe swords shown to him by the Police had bloodsmears. PW11, the Investigating Officer hasadmitted that the swords and MO5 dress were notsent for chemical examination to confirm the presenceof blood on those material objects. This is also aserious flaw, the benefit of which should undoubtedlygo to the accused. Crl.Appeal.No.1427 of 200336J) The alleged confession made by A1 to PW11 isneither extracted in Ext.P6 Mahazar nor deposed toby PW11 while giving evidence. Likewise, the allegedconfession of A2 is neither extracted in Ext.P11search list in the words of A1 nor was it deposed to byPW12. Hence, the recovery under Exts.P6 and P11do not fall under Section 27 of the Evidence Act.That apart, the confessions of A1 and A2 recited inthird person in Exts.P6 and P11 fall short of theauthorship of concealment. A1 and A2 had not statedthat they had concealed the weapons at the respectiveplaces mentioned. Hence the recovery of MO1 andMO2 swords does not fall under Section 27 of theEvidence Act and cannot be relied on.JUDICIAL EVALUATION28. I am afraid that I cannot agree with the abovesubmissions. It is true that all the prosecution witnesses Crl.Appeal.No.1427 of 200337mentioned that the occurrence took place either at 6 pmor 6.30 pm, when there would have been sufficient light foreach of them to witness the occurrence. But going byExt.P5 wound certificate pertaining to Ajayan(CW5) it isstated that the assault was at 7.15 pm. As per thetestimony of PW11 (the Sub Inspector) he reached the placeof occurrence within 10 mts of getting information aboutthe occurrence and the time of occurrence stated by PW3was 7.30 pm. If so, it is reasonable to infer that theoccurrence might have taken place between 7.15 and 7.30p.m. It is also true that none of the prosecution witnesseshas deposed about the presence of light at the scene ofoccurrence. Except suggesting that it was dark, nobodywas asked by the defence as to whether there was anysource of light enabling them to witness the occurrence. Itis pertinent to note that if the assailants had enough light toidentify their targets and inflict injuries on them usingdeadly weapons carried by them, it is futile for the defence Crl.Appeal.No.1427 of 200338to contend that it was dark and there was no sufficient lightenabling the witnesses to see and identify the assailants. InState of Uttar Pradesh v. Nahar Singh ( 1998 SCC (Crl)850) the Apex Court observed that when the light wasenough to enable the assailants to identify their victims itcould not be said that the light was not enough to identifythe assailants. In Kalika Tiwari v. State of Bihar (1997SCC (Crl)600) the Apex Court observed that the visibilitycapacity of urban people who are acclimatised tofluorescent lights or incandescent lamps is not the standardto be applied to villagers whose optical potency is attunedto country-made lamps. The witnesses in this case are allrustic witnesses and the assailants are also known to them,though not by name. In fact, PW1 has stated that he hadseen all of them at Polukara and they were coming to hishouse for the first time only on the date of occurrence. 30. There is a classic observation by the SupremeCourt in Kedar Singh and Others v. State of Bihar (1998 Crl.Appeal.No.1427 of 200339SCC Crl.907) where the incident took place at 8 p.m. Thisis what the Apex Court observed:-“Even on a full dark night there is never totaldarkness. Identification is possible through shape ofbody, clothes, gait, manner of walking etc. and also byvoice.” The assailants in this case are not strangers to the eyewitnesses and they were all used to be traditional nativehabits. Hence, the identification of the assailants by theprosecution witnesses cannot be said to be faulty. 31. No doubt the testimony of PW3 is full ofcontradictions, as rightly contended by the learned counselfor the appellants. Eventhough, she has narrated theentire occurrence in Ext.P1, F.I.Statement, she has notstated in Ext.P1 that she had seen the entire occurrence.The source of her information about the occurrence can behearsay as well. For setting the law in motion, one does nothave to be an occurrence witness. PW3 did not narrate Crl.Appeal.No.1427 of 200340before court most part of the occurrence in which PW1sustained cut on his right ear. Evidently she has not seenthat part of the occurrence. It must be remembered that itwas without any hint or indication that more than 10assailants suddenly barged into the compound of PW1armed with deadly weapons. PW3 and her husband werestanding in the courtyard when the assailants made theirentry. As observed by the Apex Court, every person whowitnesses a ghastly crime reacts in his own way. Some maybe stunned; some become speechless ; some stand rooted tothe spot; some become hysteric and others start wailing.Some start shouting for help. Still others run away to keepthemselves as far removed from the spot as possible. Stillothers rush to the rescue of the victim, even going to theextent of counter-attacking the assailants. None of thesewitnesses can be said to be unbelievable merely because heor she reacted in a particular way. Everyone reacts in hisown specific way. There is no set rule of natural reaction. Crl.Appeal.No.1427 of 200341To discard the evidence of the witnesses on the ground thatthey did not react in any particular manner is to appreciateevidence in a wholly unrealistic and unimaginative way.See Rana Pratap and others v. State of Haryana (AIR1983 SC 680)32. When the assailants in this case made their entryinto the compound towards dusk, PW3 and her husbandand other family members were in relaxed mood. Seeingthe sudden emergence of the assailants she must have beendumb founded and stunned. The occurrence was thentaking place in quick succession and PW1 cannot beexpected to recall each of the sequence of events,particularly when she was giving evidence 6 years after theoccurrence. Even if she were physically present at the spotit may not be possible for her to register each and everyepisode, retain the same and recapitulate either to thepolice officer sooner or later or depose before court yearsthereafter. Hence, the testimony of PW3 cannot decide the Crl.Appeal.No.1427 of 200342fate of the prosecution in this case.33. PWs.1,2 & 8 who are the other eye witnesses tothe occurrence have given a credible account of theoccurrence. No doubt, there are contradictions, omissionsand exaggerations in their testimony as well. Suchcontradictions, omissions, exaggerations, embellishmentsetc. are bound to happen even in the case of the mosttruthful witnesses. As long as those aspects do not affectthe main core of the testimony, such contradictions,omissions, exaggerations and embellishments are liable tobe discarded by the courts while appreciating the evidence.The testimony of these 3 witnesses clearly shows that atabout day break on that day, more than 10 assailantssuddenly barged into the compound of PW1. Among themA2 first set upon Chandran, the father of PW1 by kicking onhis right leg. The blow was so heavy that he fell downsustaining a fracture of 2nd metatarsal of right foot asevidenced by Ext.P4 wound certificate proved by PW7. Crl.Appeal.No.1427 of 200343When PW1 and others went to the rescue of their father,A1 to A4 took out the deadly swords which they were hidingin the shirts worn by them. Thereupon sensing dangerPW1, his brothers and others including PW8 who was aneighbour talking with them, took to their heels. PW8 wasin the front and PW1 was the last man. The assailants,mainly A1 to A4 chased them with the deadly weapons intheir hands. PWs.1 and 8 and others were taking a coursetowards the yam cultivation on the eastern side of thehouse. On the way A1 cut PW1 on the right ear resulting inPW1 sustaining a bleeding injury. His right pinna was cutand the piece of the pinna was dangling. PW1 afterreceiving the cut ran further and he jumped over the waterchannel and fell into the yam cultivation, which going byExt.P2 scene mahazar, is situated 78.80 metres away atthe back of the house. When the mother(PW3) and thesister (CW8) of PW1 came to the spot raising a hue and cry,the assailants withdrew from the spot . Wounded PW1 was Crl.Appeal.No.1427 of 200344brought to the front portion of the house and made to sitthere. His wife Ajitha(CW3) came and started bringingsuccor to him. It was at that time that suddenly A2 andothers emerged at the spot and mounted a fresh attack onPW1 again by A2 cutting him with MO2 sword on the headtwice in the course of which the tip of the sword hit thenose of his wife Ajitha(CW3). She also sustained an injury.When people started pouring in, the assailants made goodtheir escape through the western side after A3 leaving MO3sword at the place of occurrence and it was subsequentlyseized by PW11, the Investigating Officer at the time ofpreparing Ext.P2 scene mahazar. This aspect of theoccurrence is amply proved by the testimony of PW1, 2 and8.34. It is true that the prosecution has not examined allthe injured persons and all the persons who were witnessesto the occurrence. The prosecution has no duty to examineeach and every eye witness and each and every injured Crl.Appeal.No.1427 of 200345person. It is a discretion available to the Public Prosecutor .When the entire occurrence has been unfolded through thetestimony of PWs,1,2,3 and 8, the Public Prosecutor incharge of the case might have used his discretion by notexamining the rest of the injured persons. It must beremembered that PW1 is the person who sustained themajor injuries as revealed by Ext.P3 wound certificate.Hence the prosecution has chosen to examine him. Itcannot be said that the discretion was improperly exercised.35. Failure by PW1 and others to mention the nameof the assailants to the doctor also cannot be takenadvantage of by the defence to contend that the prosecutioncase is to be thrown out. Failure by the injured to mentionthe name of the person who stabbed him does not meanthat he was not aware as to who stabbed him. It is a matterof common knowledge that such an entry in the woundcertificate does not necessarily amount to a statement. At Crl.Appeal.No.1427 of 200346that stage, the doctor was required to fill up the columnsin the wound certificate in a normal manner and it was notthe duty of the doctor to enquire from the injured about theactual assailants. Doctor's enquiry is confined to thequestion as to how the injuries namely the weapon usedetc. The paramount duty of the doctor is to save the patient.He is not concerned about who committed the offence etc.(See Venkaiah v. State of Andra Pradesh (1985 SC 1715)and State of Kerala v. Kilakkatha Parambath Sasi andothers (2004(2)KLJ606).36. It is true that neither the weapons nor MO5 dressof A8 were sent for chemical examination to confirmwhether they were smeared with human blood. When theoccular and other evidence in the case clearly proves thatthe injuries were caused with the weapons produced,omissions to send the weapon to the serologist to determinewhether the blood on the weapon was human blood or not Crl.Appeal.No.1427 of 200347cannot put the prosecution case out of court. (See the lastportion of the decision in Ananta Mahanto v/s.State ofOrissa- AIR 1979 SC 1433). Even if the weapons weresent it could be argued that the serological test could notlocate the origin of the blood or the owner of the blood.There can be no end for such exercise. At the most, asobserved by the Apex Court in Surendra Paswan v. Stateof Jharkand (2003(12)SCC 360) the failure to send theweapon to the serologist may be a defect in theinvestigation, but it does not corrode the evidentiary valueof the eye witnesses. Moreover this is not a flaw in theinvestigation which the defence can take advantage of (SeeState of Karnataka vs. Yarappa Reddi - 1999(3) KLT 456(SC).37. It may be out of ignorance that the exact confessionstatements of A1 and A2 have not been extracted in Exts.P6 andP11. PWs.11 and 12 the investigating officers also did notdepose before Court about the confession of A1 and A2 in their Crl.Appeal.No.1427 of 200348own words (that is ipsissima verba). But that alone cannotrender the evidence of recovery inadmissible. However, in theabsence of a statement by A1 and 2 that it was they who hadconcealed the weapons at the respective places from which theweapons were recovered, the defence can legitimately contendthat this statement cannot fall under Section 27 of the EvidenceAct, for want of authorship of concealment. Even if thosestatements would not fall under Section 27 of the Evidence Act,the conduct of A1 and A2 leading the Police party to therespective places and pointing out the weapons will certainlyfall under Section 8 of the Evidence Act and can constitute yetanother piece of incriminating evidence (Prakash Chand v.State (Delhi Administration (AIR 1979 SC 400) Raveendranv. State (1989(2) KLJ 534)38. After a careful evaluation of the oral and documentaryevidence in the case, I have no hesitation to conclude that therewas an unlawful assembly consisting of A1 to A4 and othersformed with the common object of committing offencespunishable under Sections 323,324,325 and 307 IPC and all themembers of the unlawful assembly committed rioting, armed Crl.Appeal.No.1427 of 200349with deadly weapons, such as swords etc. But at the same timeexcept statement by PW1 to the effect that A5,A6 & A8 were alsopresent among the assailants, there is nothing to show that thosepersons shared the common object of the said assembly or thatthey committed any overt acts. PW2 added the name of A12 alsoas one of the persons who was present. PW8, the other eye-witnesses has not implicated anybody specifically except A1 toA3. PW3 has implicated A1 to A4 and A6. Hence, it may not besafe to convict A5,A6,A10 and A12 mainly for their allegedpresence for which also there is no unanimous testimony. Butthe existence of an unlawful assembly though not withA5,A6,A10 and A12 as members was definitely there.Accordingly, I do not think the conviction recorded againstA5,A6,A10 and A12 is sustainable. Those accused are,therefore, found not guilty of the offences punishable underSections 143, 145, 147, 148, 323, 324, 325 and 307 read with149 IPC and are acquitted of the same. They shall be set atliberty forthwith. Since A3 died pending trial, the charge againsthim stands abated. In the case of accused Nos.1,2 and 4 who areappellants 1 to 3, they were rightly convicted by the court below Crl.Appeal.No.1427 of 200350for the aforementioned offences. The sentence imposed onthem also cannot be said to be harsh or disproportionatelyexcessive. Accordingly, the conviction entered and sentencepassed against Accused Nos.1,2 and 4 are hereby confirmed. In the result, this appeal is allowed in part acquittingaccused Nos.5,6,10 and 12, but confirming the convictionentered and the sentence passed against accused Nos.1,2 and 4.Dated this the 1st day of December, 2009.V. RAMKUMAR, JUDGE sj/rv/ani