Criminal Appeal No. 1768 of 2005 · Kerala High Court · 2009

15. Learned counsel appearing for the defence on the other hand pointed out that the prosecution has only to blame themselves for the circumstances created by them which caused several dents in the prosecution story and made it highly suspicious. The counsel maintained that it could be very easily seen that the evidences were manipulated and they were unreal and artificial. The oral testimony of the witnesses does not appeal to common sense. The prosecution has no acceptable explanation regarding the conduct of P.W.1 in registering the FIR without an FIS. He could not have registered the crime on his own. Learned counsel also pointed out that when an information of two persons Crl.A.1768/05 & con.cases. 15 lying injured on the road was received by P.W.13, and when the Fire Station had an Ambulance, he ought to have rushed to the aid of the victims. It cannot be believed that he simply informed P.W.1 about the incident and remained passive. The court below has considered these aspects in great detail and found that the story regarding the registration of FIR is totally unacceptable for cogent reasons. The court below has also given convincing and valid reasons for discarding the testimony of P.Ws. 2 to 6. According to the learned counsel, the Finger Print's report is unhelpful in the light of the evidence given by the Finger Print Expert and his report is unreliable. The investigating officer while recovering M.O.1 swords had no case that the swords had blood stains on them and therefore chemical analysis report, which shows that there were blood stains on the swords can be of no help. The prosecution had no explanation whatsoever regarding delay in recording the statement of P.W.2, the prime witness in the case. The failure to question P.W.2 soon after the incident shows that the Crl.A.1768/05 & con.cases. 16 police officers were creating documents and manipulating the evidence to enable the real culprit to escape. P.W.3 is a chance witness. The evidence of P.Ws. 4 and 5 are too artificial to gain acceptance.

16. Learned counsel for the defence pointed out that the lower court which had the privilege of watching the demeanour of witnesses, on an impartial consideration of the evidence in the case, had come to a definite conclusion that the prosecution has failed to establish the case against the accused persons.

17. The defence counsel also cautioned this court that as an appellate court, though the court has ample power to re- appreciate and re-evaluate the evidence in the case, the appellate court should be very slow in upsetting the order of acquittal. Learned counsel stressed that unless it is found that the order of acquittal is perverse, unreasonable and unjustifiable on the basis of the materials on record, it may not be proper to interfere. It is also pointed out that if two views are possible, the one taken by the Crl.A.1768/05 & con.cases. 17 lower court should prevail.

18. Before going into the evaluation of evidence in the case in an attempt to find out whether the conclusions of the court below are proper or improper, it will be useful to ascertain the power of the appellate court while dealing with an appeal against acquittal.

19. It will be beneficial to refer to the statutory provision and precedence on the point.

20. Section 378 of the Code of Criminal Procedure deals with the right of appeal. Section 385 deals with the procedures to be followed while hearing the appeals which are not summarily dismissed, and Section 386 deals with the power of the appellate court while dealing with an appeal. For the present purpose, it will be sufficient to refer to Section 386 of the Code alone, which reads as follows: “386. Powers of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, Crl.A.1768/05 & con.cases. 18 and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re0tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so a to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or Crl.A.1768/05 & con.cases. 19 (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (3) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.”

21. A reading of the provision relating to appeal clearly shows that the provision confer unfettered and full power to the appellate court to review the evidence. The Code places no limitation on this power. On a re-appreciation of the evidence, the appellate court is entitled to come to its own conclusion. But self Crl.A.1768/05 & con.cases. 20 imposed constrains restrict the scope of interference in the case of acquittal due to various reasons.

22. The power to re-appreciate and re-evaluate the evidence and the scope of interference with an order of acquittal have come up for consideration before various courts on innumerable number of occasions. It is unnecessary to refer all the decisions on this point.

23. In Ramachandra Reddy v. Public Prosecutor (AIR 1976 SC 1994), it was held as follows: “Mr. P.Rama Reddy for the State submitted that Ext.P2 was corroborated by the presence of at least accusd No.1 near the petrol pump slightly before the occurrence took place. The presence of accused No.1 in Tada Bazar near his village is not completely inconsistent with his guilt and being a resident of the village close by his presence in the Bazar can be explained on account of various reasons. It was then submitted that the accused had been absconding. The accused, however, surrendered within 14 days and this is not a circumstance which can outweigh the effect of Crl.A.1768/05 & con.cases. 21 the suspicious circumstances under which the dying declaration was made. It seems to us that as the deceased did not know the names of the appellants nor did he know them from before he was not able to identify his assailants and the names were supplied by P.W.2 his cousin just before the dying declaration was made. Putting the prosecution case at the highest, there can be no doubt that the view taken by the learned Sessions Judge that the dying declaration did not amount to a truthful disclosure cannot be said t be against the weight of the evidence on the record and even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for the reversing the order of acquittal. In Ram Jag v. State of U.P. (AIR 1974 SC 606) this Court observed as follows: “Such regard and slowness must find their reflection in the appellate judgment, which can only be if the appellate court deals with the principal reasons that influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a contrary view of the evidence. It is implicit in this judicial Crl.A.1768/05 & con.cases. 22 process that if two views of the evidence are reasonably possible, the finding of acquittal ought to be disturbed.” Thus in the instant case as two views were reasonably possible and therefore the High Court was in error in disturbing the order of acquittal passed by the Sessions Judge.”

24. In the decision reported in Hari Ram v. State of Rajasthan (AIR 2000 SC 1647), it was held as follows: “It is too well settled that the power of the High Court while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re-appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would be sitting as a trial court, taken the other law. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely Crl.A.1768/05 & con.cases. 23 perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise there would be gross miscarriage of justice.”

25. In the decision reported in State of Goa v. Sanjay Thakran ((2007) 3 SCC 755), it was held as follows: “From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law ignored the material evidence Crl.A.1768/05 & con.cases. 24 on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of materials placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.”

26. In the decision reported in Ghurey Lal v. State of U.P. ((2008) 10 SCC 450), it was held as follows: “The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. Crl.A.1768/05 & con.cases. 25

3. Due to proper weight and consideration must be given to the trial court's decision . This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. In the light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal;

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court's decision. “Very substantial and compelling reasons” exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; Crl.A.1768/05 & con.cases. 26 (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in “grave miscarriage of justice”. (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert etc. (vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.” Crl.A.1768/05 & con.cases. 27

27. In the decision reported in Hem Raj v. State of Punjab (AIR 2003 SC 4259), it was held as follows: “In this state of the evidence on record,we find that the view taken by the trial Court is also a possible reasonable view of the evidence on record. The evidence adduced by the prosecution is rather inconsistent and creates a serious doubt about the truthfulness of the prosecution case. Even if it may be possible to take a different view, we cannot say that the view taken by the trial Court is not a reasonable view of the evidence on record. It is well settled that if on the basis of the same evidence two views are reasonably possible and the trial Court takes the view in favour of the accused, the appellate Court, in an appeal against acquittal, will not be justified in reversing the order of acquittal, unless it comes to the conclusion that the view taken by the trial Court was wholly unreasonable or perverse and it was not possible to take the view in favour of the accused on the basis of evidence on record. Crl.A.1768/05 & con.cases. 28

28. On a reading of the above decisions, the following principles emerge. They are: i) If it is found that the view of the trial Judge regarding the credibility of the witnesses is unsustainable both on facts and in law, then an interference will be justified. ii) There is a presumption of innocence in favour of the accused, and it is further fortified by the acquittal in trial. iii) The accused is entitled to the benefit of doubt and the defence can insist that the prosecution must prove its case beyond reasonable doubt. iv) The appellate court will be slow in disturbing a finding of fact arrived by a trial Judge, who had the advantage of seeing the witnesses and their demeanour. Bearing the above principles in mind, an attempt shall now be made to review and re-evaluate the evidence with the object to ascertain whether the order of acquittal passed by the court below needs to be interfered with in the interest of justice.

29. The incident took place in the mid night of

17.8.1998. While the deceased, P.W.2, P.W.4 and the child of the deceased and P.W.4 were returning in an autorickshaw belonging Crl.A.1768/05 & con.cases. 29 to the deceased after consulting a doctor, they happened to meet P.W.3 and Gopalan. They too got into the autorickshaw. They reached the house of the deceased. Then P.W.5, another child of the deceased and P.W.4, told them that a few people had come to their house and asked for the deceased. That made the deceased, P.W.2, P.W.3 and Gopalan to go in search of those persons. It was then that the incident had occurred.

30. P.W.1 was the police officer in Tirur Police Station on the relevant date. As per this witness, he got a telephone call from P.W.13, who is a leading fireman attached to the Fire Station, Tirur. P.W.13 informed P.W.1 that near Pazhangulangara Junction two persons were lying on the road with bleeding injuries. P.W.1 claims that he made an entry in the GD kept in the station and he along with another Constable went to the place mentioned by P.W.13. They found two persons lying with bleeding injuries on the road. One was lying with his feet in the autorickshaw. P.W.1 claims that he was able to recognize them as the deceased and Crl.A.1768/05 & con.cases. 30 P.W.2. He deposed that he rushed to the nearby houses seeking help to remove the injured persons to the hospital. None co- operated with him. P.W.1 says that he along with his companion took the victims to the hospital in the trucker in which they had come to the place. As soon as they reached the hospital, both Yasir and P.W.2 were examined by P.W.12. Shortly after reaching the hospital, Yasir left for the heavenly abode. P.W.12 referred P.W.2 to the Medical College Hospital for better management. The evidence of P.W.13 is to the effect that he received a call about the incident and P.W.17 has stated that it was he who had made a call to P.W.13. P.W.13 deposed before court that it was he who had called P.W.1 and gave him the information. Evidence of P.W.1 shows that when he came to know that Yasir was no more, he informed his superior officers and P.W.22 reached the hospital almost immediately. Going by the evidence of P.Ws. 1 and 22, P.W.22 asked P.W.1 whether any FIR had been drawn up. P.W.1 replied in the negative. P.W.22 then directed him to register a Crl.A.1768/05 & con.cases. 31 crime and accordingly Ext.P1 FIR was drawn up by P.W.22. Ext.P1 FIR simply contains narration of facts, which P.W.1 had knew at that point of time. Crime was registered for the offences punishable under Sections 302 and 307 of the Indian Penal Code against eight persons. It was sent to the court on the very same day by the noon on 18.8.1998.

31. The court below has come to the conclusion that FIR is vitiated. The court below has dealt with this aspect in paragraph 14 of the judgment and concludes that there was an attempt from the side of the prosecution to develop the case from stage to stage and that P.W.1 could not have registered the FIR without an FIS. One fails to understand the logic behind the reasoning of the court below in reaching the above conclusion. On going through the evidence of P.Ws. 1, 13, 17 and 22, it is not possible to hold that the FIR is vitiated. The lower court harps much on the point that on receipt of information P.W.13 ought to have gone with the Ambulance available in the Fire Station to the Crl.A.1768/05 & con.cases. 32 aid of the injured persons. The lower court relies on the statement of P.W.13 that the Fire Men were bound to help people in distress. According to the lower court P.W.13 had not acted in a manner required from an officer of the Fire Station and therefore the prosecution version is doubtful. Then the lower court held that had the claim of P.W.1 that he had taken the injured to the hospital been true, obviously his dress ought to have been drenched with blood. Since there were no blood stains on his cloth, the prosecution version is again open to serious doubt.

32. The purpose of registering FIR is to set the law in motion. The evidence of P.W.1 is to the effect that as soon as he received the phone call from P.W.13, he made entries in the GD and went to the spot. One must remember that at that point of time all that P.W.1 was given to understand was that two persons were lying on the road with bleeding injuries. He obviously had to verify the information. On reaching the place, he found the injured. He sought the help of the nearby residents. None co- Crl.A.1768/05 & con.cases. 33 operated or obliged. It is absurd to state that at that point of time P.W.1 ought to have returned to the police station and registered the crime. He was conscious about his duty and therefore he gave priority to remove the injured persons to the hospital. Merely because P.W.13 blurted out something in his evidence and even assuming that he shirked from his official duty, one fails to understand as to how that could have an impact on the evidence of P.W.1.

33. P.W.1, as was required of him, took immediate steps to provide medical aid and he removed the victims to the hospital in the trucker in which he had come to the spot. The lower court has found fault with P.W.1 for going in a trucker to the place of the incident.

34. It has to be noticed here that in Exts.P7 and P8, which are the wound certificates relating to the two injured persons, it is clearly stated that the injured were brought by the police constables whose numbers are shown in the document. Crl.A.1768/05 & con.cases. 34 Those numbers relate to P.W.1 and his colleague.

35. It is not possible to understand as to why the police at that point of time should cook up materials or manipulate records. All that Ext.P1 discloses is what P.W.1 had done and the offences made out. It does not made mention of the names of the accused persons. Nobody had a case at that point of time that the name of the assailants were available. Moreover, it is well settled that registration of a crime is not a condition precedent to commence investigation. The observations and conclusions drawn by the court below are totally unwarranted.

36. The criticism based on the finding that there was no blood on the clothes of P.W.1 is also equally perverse. On finding the injured, P.W.1 need not embrace them or place them in lap. Unless they are close relatives or friends the people carrying the injured will be careful not to stain their clothes with blood. So, the absence of blood in the clothes of P.W.1 does not affect the veracity of his deposition. Crl.A.1768/05 & con.cases. 35

37. It is extremely sad and distressing to note the comments made against P.W.1 and his conduct. He had only done what a police officer needed to do at that point of time. Even assuming that there is dereliction of duty on the part of P.W.13, that may result in other consequences. But how that could affect the action taken by P.W.1 is not understandable. It is cruel to say that the police began its manipulations right from the time of registration of the crime. The lower court ought to have noticed that the act of P.W.1 in first making an entry regarding the information received by him in G.D., and later registering a crime is perfectly in accordance with law. He could not have been the first informant. So also, if he felt that the information received by him needed to be verified, or that he needed to gather more information, there was nothing wrong.

38. Learned counsel appearing for the accused is perfectly justified in his submission that as soon as the information regarding cognizable offence is received by a police officer, it is Crl.A.1768/05 & con.cases. 36 incumbent on him to register the FIR. But that is far from saying that any cryptic or nebulous information received should invariably result in registration of a crime. To stretch the words of Section 154 of the Code to the extent that whatever may be the information received regarding the commission of a cognizable offence, however, cryptic or nebulous it may be, the SHO is bound to register a crime cannot be countenanced. Certain amount of discretion is available to the SHO, if he entertains a feeling that he needs to verify the information and needs to gather more factors. If he feels suspicious about the information received by him, he is certainly entitled to make a preliminary enquiry before registration of the crime.

39. It will be useful to refer to certain precedents in this regard. In the decision reported in Animireddy Venkata Ramana v. Public Prosecutor, H.C. Of A.P. (AIR 2008 SC 1603) it was held as follows: Crl.A.1768/05 & con.cases. 37 “When an information is received by an officer incharge of a police station, he in terms of the provisions of the Code was expected to reach the place of occurrence as early as possible. It was not necessary for him to take that step only on the basis of a First Information Report. An information received in regard to commission of a cognizable offence is not required to be preceded by a First Information Report. Duty of the State to protect the life of an injured as also an endeavour on the part of the responsible police officer to reach the place of occurrence in a situation of this nature is his implicit duty and responsibility. If some incident had taken place in a bus, the officers if the Road Transport Corporation also could not ignore the same. They reached the place of occurrence in another bus at about 1 a.m.. The deceased and the injured were, only then, shifted to the Tuni hospital. A First Information Report was recorded at about 3 O'Clock in the night. In the aforementioned situation, it cannot be said that the information received by the investigating officer on the telephone was of such a nature and contained such details which would amount to a First Information Report so as to attract the Crl.A.1768/05 & con.cases. 38 provisions of Section 162 of the Code. ................... ................... Once, however, A First Information Report is found to be truthful, only because names of some accused persons have been mentioned, against whom the prosecution was not able to establish its case, the entire prosecution case would not be thrown away only on the basis thereof. If further more the purported entry in the general diary, which had not been produced, is not treated to be a First Information Report, only because some enquiries have been made, the same by itself would not vitiate the entire trial. Enquiries are required to be mad of several reasons; one of them is to ascertain the truth or otherwise of the incident and the second to apprehend the accused persons. Arrest of accused persons, as expeditiously as possible, leads to a better investigation.”

40. In the decision reported in Rajinder Singh Katoch v. Chandigarh Administration (AIR 2008 SC 178), it was held as follows: Crl.A.1768/05 & con.cases. 39 “Although the officer in charge of a police station is legally bound to register a first information report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not. In this case, the authorities had made investigations into the matter. In fact, the Superintendent of Police himself has, pursuant to the directions issued by the High Court, investigated into the matter and visited the spot in order to find out the truth in the complaint of the petitioner from the neighbours. It was found that the complaint made by the appellant was false and the same had been filed with an ulterior motive to take illegal possession of the first floor of the house. Ms. Madan contended that the right of the appellant to live in the joint family cannot be taken away. Right of a co-sharer to enjoy the joint family Crl.A.1768/05 & con.cases. 40 property is a civil right. Such a right, if denied by the other co-sharers for one reason or the other, must be enforced by taking recourse to the remedies available under the civil laws. Criminal proceedings, in our opinion, cannot be taken recourse to for enforcing such a civil right. In any event, in a case of this nature where the authorities bound by law have already investigated into the matter and found that the allegations made by the appellant against respondent No.4 were not correct, it would not be proper for us to issue any direction to the respondent Nos.1 to 3 to lodge a first information report. We are not oblivious to the decision of this Court in Ramesh Kumar v. State ((2006) 2 SCC 677) wherein such a statutory duty has been found in the Police Officer. But, as indicated hereinbefore, in an appropriate case, the Police Officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not. In Shashikant v. Central Bureau of Investigation (2006(11) SCALE 272) this court stated: Crl.A.1768/05 & con.cases. 41 “Only an anonymous complaint was made in June,

2004. Evidently it was within the province of the first respondent to commence a preliminary inquiry. The procedure laid down int he CBI Manual and in particular when it was required to inquire into the allegation of the corruption on the part of some public servants, recourse to the provisions of the Manual cannot be said to be unfair. It did not find any reason to convert the preliminary enquiry into a regular case. Pursuant to or in furtherance of the recommendations made by the first respondent, which had received the imprimatur by the Central Vigilance Commission, departmental proceedings were initiated. The Central Vigilance Commission advised the Railway Board to initiate minor penalty proceedings against the delinquent officers by a letter dated 4.8.2005.”

41. In the decision reported in Vikram v. State of Maharashtra (AIR 2007 SC 1893, it was held as follows: “He was admitted as an indoor patient in the hospital on 23.1.1997 and was discharged only on

26.1.1997. In a situation of this nature, explanation of P.W.2 and others that they gave priority to the treatment of the deceased which occasioned the delay Crl.A.1768/05 & con.cases. 42 in lodging the First Information Report and the same having been accepted by two courts below, we do not find any reason to disagree. We find no reason to discard the testimony of P.W.2 who is an independent witness. It may be true that P.W.2 had informed the officer in charge of the Police Station on telephone, but the circumstances in which the said call had to be made has been noticed by us heretobefore. The Head Constable states that he had written down the same but then it must have been a cryptic report and only for the purpose of visiting the scene of occurrence. He as well as the Investigating Officer did not say that it was a detailed report. If, in the aforementioned premise, another First Information Report which was a detailed one came to be recorded, no exception can be taken to the same being treated as a First Information Report.”

42. In the light of the above decisions, the finding of the court below in this regard cannot be sustained. Merely because even assuming that P.W.13 was guilty of some latches, to reject the Crl.A.1768/05 & con.cases. 43 prosecution case as false is a proposition, which is clearly unacceptable. The adverse finding regarding the lodging of FIR etc., by the court below is therefore clearly irrational, illogical and illegal.

43. The oral evidence of P.W.2 needs to be referred now. He was injured in the incident. He converted to Islam religion following the foot steps of his employer Yasir. He would depose that the shop owned by Yasir used to open at 9 in the morning and close at 9 in the evening. He also says that when there was excessive work, he used to stay with Yasir. Yasir stays at a place called Kurukkankunnu. On the date of the incident also he had gone to the shop for work. P.W.2 would say that at about 8 p.m. on the date of the incident, Yasir's elder brother Goplan and another person had come to the shop of Yasir. Yasir talked to them. Gopalan and the person, who had come along with him promised to meet him after sometime. On that day the shop was closed by about 10.30 p.m.. Yasir and P.W.2 returned home in the Crl.A.1768/05 & con.cases. 44 autorickshaw, which belonged to Yasir. After having supper, while they were chatting, it was noticed that Yasir's youngest child had developed high temperature. He along with Yasir and P.W.4, Yasir's wife took the child to the Homoeo doctor. P.W.2 claims that he was driving the autorickshaw. After seeing the doctor, they returned home. On the way back, near Chitrasagar Cinema Theatre they happened to meet Gopalan and his friend Ramachandran (P.W.3). Yasir asked them to get into the autorickshaw and accompany him to the house. On the way, since the autorickshaw was not able to negotiate an ascent, Goplan and Ramachandran got down from the autorickshaw and pushed it from behind. P.W.2 says that in the headlight of the autorickshaw, he saw about eight persons coming down the road. He knew them. He identified some of them as the persons present in court. On reaching the house of Yasir, P.W.5 told them that a short while ago about two or three persons had come to their house and one of them had peeped through the window. She described the features Crl.A.1768/05 & con.cases. 45 of the persons who had come to the place. Then Yasir and he wanted to find out who those persons were and they went in search of them. Gopalan and Ramachandran (P.W.3) followed them. Yasir had a torch with him. While they were going in the autorickshaw along Kallingal road, when they reached Pazhakulangara Junction, they found eight persons going towards the western side. P.W.2 would say that Yasir stopped the autorickshaw near them and asked whether it was they who had come in search of him. P.W.2 then deposed that the first accused, namely, Narayanan, asked Yasir, who he was? He replied and also introduced the others. Then the first accused is said to have stated that they were looking for Yasir and he pulled out a sword and attacked Yasir. When Yasir tried to get out of the autorickshaw accused No.6 Manoj restrained him. By that time, accused No.4, namely, Surendran approached P.W.2 and asked for his name. He was dragged out of the autorickshaw. When he looked behind, he saw first accused Narayanan, accused No.3 Sunil and accused No.2 Crl.A.1768/05 & con.cases. 46 Raveendran repeatedly attacking Yasir with swords. Accused No.4 inflicted injury on P.W.2 with a sword. He cried aloud. He ran to escape. He was caught hold of by accused Nos. 8, 5 and 6. He too was repeatedly attacked and received several injuries. He lost one of his tooth. P.W.2 says that he fell on the road. According to him, it was their conversion to Islam religion that had provoked the particular group to attack them. Prior to conversion, P.W.2 and the deceased had associated themselves with RSS. He identified M.O.1 series of swords as the weapons used by the assailants.

44. One may now refer to the evidence of P.W.3, He is a retired defence service personal. He used to undertake odd jobs. He was residing in a rented room. He happened to meet Gopalan, who was a goldsmith. He asked Gopalan whether he could find out a permanent job for him. Gopalan is said to have told him that his brother and family were residing in Tirur and that if approached, the brother of Goplan my be helpful to them. Gopalan also told him that his brother had converted into Islam. That took Crl.A.1768/05 & con.cases. 47 P.W.2 and Ramachandran to the shop of Yasir on 17.8.1998 at about 8 p.m. P.W.3 says that when they reached the shop of Yasir, P.W.2 was also in the shop. Gopalan talked to Yasir. Yasir asked them to come to his house. P.W.3 would say that after seeing a movie, they proceeded towards the house of Yasir. When they reached the house of Yasir, Gopalan rang the calling bell. Daughter of Yasir peeped through the window and recognized Gopalan. Gopalan asked her whether her parents were at home. Gopalan had handed over the biscuits he had bought to the child. The said child is none other than P.W.5. P.W.5 then told Gopalan that since her sister had fallen sick, her parents might have taken her sister to the hospital. They returned. On their way they met Yasir and P.W.2 coming in an autorickshaw. P.W.4 and the child were also in the autorickshaw. Yasir asked them to get into the autorickshaw. They did so. He too speaks about having seen a few people passing by the autorickshaw while it was going along the road. On reaching home, P.W.5 opened the door and began to Crl.A.1768/05 & con.cases. 48 cry. On enquiry, she told that three persons had come to the house and one of them rang the calling bell and somebody peeped through the window. When she asked who the persons are, he replied that his name was Hydru. They asked for Yasir. She also described the features of those persons. Yasir and P.W.2 then wanted to find out who those persons were and they went in search of them. P.W.3 claims that he and Gopalan followed them. They went in the autorickshaw driven by Yasir. While they were going along the Kallingal road, they happened to see about eight persons going along the road. Yasir stopped the autorickshaw near them and asked them whether they had come in search of him. When one of them asked, who he was, Yasir disclosed his name. He also introduced P.W.2, P.W.3 and Gopalan. The assailants said to have replied that they were looking for Yasir and P.W.2. By that time, eight persons had surrounded the autorickshaw. The person who enquired initially pulled out a sword and attacked Yasir. The blow fell on the back of the head of Yasir and caused a Crl.A.1768/05 & con.cases. 49 bleeding injury. When he tried to get out of the autorickshaw, others prevented him from doing so. A few others, who had swords with them, repeatedly attacked Yasir. Another person attacked P.W.2. P.W.2 was dragged out of the autorickshaw. Frightened P.W.3 would say, he and Gopalan somehow managed to get out of the autorickshaw and they ran for their life. P.W.3 would say that thereafter he does not know what had happened to P.W.2. When they tried to phone from the nearby houses, the inmates refused to help them. On coming to know that P.W.2 and Yasir had been taken to the General Hospital at Tirur, P.W.3 claims that he and Gopalan reached the said hospital. They then came to know that P.W.2 had been taken to the Medical College Hospital and Yasir was no more. He claims to have shown the place of the incident to the police. He was able to identify some of the accused.

45. P.W.4 is the wife of deceased Yasir. She would depose that eight years prior to the incident Yasir had converted to Islam. Yasir continued his earlier avocation as a Goldsmith. Crl.A.1768/05 & con.cases. 50 Initially he did his work in his house itself and later on took a shop on rent at Alinchuvadu. P.W.2 used to help him in his business. P.W.2 too converted to Islam religion. Initially though the family members of Yasir expressed their displeasure and did not co- operate with them, later things turned out to be smooth. She claims that her husband used to go to the tarawad house to meet his mother. P.W.4 says that her husband owned an autorickshaw. On

17.8.1998 her husband had returned home by about 10.30 p.m. P.W.2 was also with him. After having supper, while they were chatting, Ariffa, the youngest child came near her and told her that she was not feeling well. P.W.4 found that the child was running high temperature. Therefore she along with her husband, P.W.2 and the child went to see Dr. Mohammed, who was a Homoeopathic practitioner. While returning from the doctor's house, they happened to meet Gopalan and another person. At that time, P.W.2 was driving the autorickshaw. She would depose that deceased asked Gopalan and Ramachandran,(who is P.W.3) to get Crl.A.1768/05 & con.cases. 51 into the autorickshaw. They did so. She too says about seeing a few persons passing by the autorickshaw in the headlight of the autorickshaw. When they entered the lane to their house, this witness says that she happened to see a school bag and an umbrella lying there. When they reached home, and opened the door, P.W.5 began to cry as soon as she saw them. She told them that a short while ago, three persons had come to the house and one of them had peeped through the window. She described the features of the persons to her parents. P.W.4 says that her husband wanted to know who those persons were and he went in search of them along with P.W.2. She also deposed that P.W.3 and Gopalan went after them. P.W.4 says that she along with her children went to sleep. By about 3.30 a.m. on 18.8.1998 a lady in the neighbourhood came and called her and asked her to come and sleep in her house. She did so. At about 7 a.m. on 18.8.1998 she came to know that her husband is no more and P.W.2 is in the hospital. Crl.A.1768/05 & con.cases. 52

46. P.W.5 is another witness on whose evidence the prosecution places considerable reliance. She is the child of late Yasir and P.W.4. She would say that on 17.8.1998 she went to sleep by about 9 p.m.. When she heard the door bell at about 12.30 in the night, she found that her parents and her sister were not at home. She heard someone calling her father from outside. She looked through the window. She found Gopalan and another person standing there. Gopalan handed over a packet of biscuits to her. Gopalan asked her whether her parents were at home. P.W.5 says, she replied that probably her parents had taken the youngest child to the doctor since her sister was having temperature. Gopalan asked her to close the door and go back to sleep. A short while thereafter, according to this witness, she realised that someone was peeping through the window. She became frightened. The person who peeped though the window said that his name was Hydru and he enquired about the father of P.W.5. She also saw two other persons standing in the courtyard of their Crl.A.1768/05 & con.cases. 53 house. After sometime, they left the place . When her parents returned, she conveyed the information to them. She described their features and the dress worn by those persons. She would say that her father and P.W.2 went in search of those persons. Gopalan and P.W.3 also accompanied them.

47. The evidence of P.W.6 may be of some relevance. He resides near the Madrasa at Alinchuvadu. On the date of the incident, he had gone for a function in the house near the Madrassa. When he was returning from that house late in the night, that is, at about 1.30 a.m.. he found about 5 to 8 persons coming briskly towards him. Seeing him, they changed the course and went into a lane. He was able to see two of them very clearly. As he came along, he found one person lying on the road with bleeding injuries. A short distance away, he also found another person lying on the road near the autorickshaw. Frightened, he ran to his house. He recognised accused Nos. 7 and 8 are the two persons whom he had occasion to see on the date of Crl.A.1768/05 & con.cases. 54 the incident.

48. P.W.7 is a witness to the recovery of M.O.6 torch, which is said to have belonged to deceased Yasir. He is an autorickshaw driver by profession. On 29.8.1998, while he was going from Pookaitha to B.P. Angadi by about 10.30 in the morning, he found a police jeep by the side of the road. The Circle Inspector of Police asked him to stop. Prakasan was also there in the autorickshaw. This witness says that one person was standing behind the police jeep with his face covered. He then led the police party to a house on the northern side of the road. P.W.7 also went along with them. He says that the second accused, whom he pointed out in the dock in court took out M.O.6 torch and handed it over to the police. He identified his signature in Ext.P2 mahazar.

49. P.W.8 is the witness to the recovery of M.O.1 series swords. He was working as an agent of the Tirur Urban Co- operative Bank in 1998. On 29.8.1998 at about 8 a.m. while he was going along the Hospital Road, a police jeep stopped in front Crl.A.1768/05 & con.cases. 55 of the Sangha Mandiram. The witness says that the Circle Inspector of Police attached to Tirur Police Station got down from the jeep and asked him to stop. There were three or four police men along with him. He also says that there were two persons, whose faces were covered with black clothes. One of them was brought out of the jeep. He led the police team and the witness says that he too followed them. He led the police to a particular place and one of the police men brought a spade and dug at a place shown by the person. This witness say that thereafter, the person, who was brought by the police identified as accused No.1 in court, took out four swords from the pit dug by the police constable. He says that he signed in Ext.P1 mahazar and he identified the swords taken out by the first accused.

50. P.W.12 was the then Civil Sergean attached to the Taluk Head Quarters Hospital at Tirur. He says that on 18.9.1998 at about 2.45 a.m. he had examined Yasir and Abdul Azeez. He had prepared Exts.P7 and P8 wound certificates. Ext.P7 relates to Crl.A.1768/05 & con.cases. 56 Yasir and Ext.P8 relates to Abdul Azeez, who is none other than P.W.2. He would say that the injuries stated in Ext.P7 could be caused by the use of weapon like M.O.1 series. So also his case is that injury Nos. 1, 2, 5 and 9 in Ext.P8 could be caused by M.O.1. He also says that those injuries are of grievous nature.

51. P.W.19 is the Finger Print Expert, who at the relevant time was working in Single Digit Finger Print Bureau at Malappuram. He visited the scene of occurrence as per the direction of the Circle Inspector of Police, Tirur. He had taken finger prints from the glass of the autorickshaw. He later received certain sample finger prints which had compared with the sample signatures and they matched, and those finger prints belonged to A1 Narayanan.

52. The next important witness is P.W.22. At the time of going into his evidence, the evidence of P.Ws.1, 13 and 17 may be kept in mind. Crl.A.1768/05 & con.cases. 57

53. P.W.22 is the investigating officer in this case. He would say that he came to know about the incident 3.10 a.m. He enquired about the incident. He took further steps in the matter. He directed P.W.1 to return to the station and register a crime. He then went to the police station and received a copy of the crime registered by P.W.1. He made necessary arrangements to have the autorickshaw examined by a finger print expert. He then conducted inquest over the body of Yasir and prepared Ext.P14 mahazar. He seized M.O.5 series clothes found on the body and then the body was sent for postmortem examination. He recorded the statements of Goplan and Ramachandran (P.W.3) at Tirur Government Hospital. He returned to the place of occurrence and utilised the services of Finger Print Expert, photographer and police dog squad. He prepared Ext.P15 scene mahazar and seized about 25 items found at the place of occurrence. He says that then he had the statement of the doctor, who had examined Yasir and Aboobacker recorded. Realising about the importance of the Crl.A.1768/05 & con.cases. 58 situation and the consequence that may follow as a result of the incident, he had a special squad constituted for enquiring into the case. He recorded the statements of various witnesses. He would depose that when he went to record the statement of P.W.2, P.W.2 was not in a position to speak. On going through the records, he felt suspicion about the possible role of accused No.4 and therefore he had made arrangements to keep surveillance over accused No.4. He then came to know that after the date of the incident accused No.4 had not come home. On receiving secret information on

28.8.1998 at about 10.15 p.m. he went to the house of accused No.4 and arrested him. He prepared the necessary records. On coming to know about the involvement of others, he had accused Nos. 1, 2, 5 and 6 arrested on the very same day itself. He could not locate accused Nos. 7 and 8. He would depose that based on Ext.P3(a) confession statement given by the first accused, M.O.1 series of swords were recovered by him as per Ext.P3 mahazar. As per Ext.P2(a) confession statement said to have been furnished by Crl.A.1768/05 & con.cases. 59 third accused, he had M.O.6 torch belonged to Yasir recovered as per Ext.P2 mahazar. He filed Ext.P16 report before court showing the details of the accused. On 29.8.1998 he had accused Nos. 7 and 8 arrested. He had stated that on 30.8.1998 he preferred an application before the Chief Judicial Magistrate Court, Manjeri requesting for a test identification parade. Meanwhile on 1.9.1998 P.W.2 was discharged from the Medical College Hospital and P.W.22 says that he then recorded the statement of that witness. He had the finger prints of the accused taken and had send it for examination by the Finger Print Expert. He had the site plan prepared by the Village Officer. He had the test identification parade conducted. He recorded the statements of other witnesses also. Subsequent investigation was conducted by his successor in office.

54. Ext.P2 is the recovery mahazar relating to M.O. 6 torch said to have been belonging to deceased Yasir and Ext.P2(a) is the portion of the confession statement said to have been made Crl.A.1768/05 & con.cases. 60 by accused No.3, which led to the recovery. Ext.P3 is the mahazar relating to recovery of M.O.1 swords and Ext.P3(a) is the relevant portion of the confession statement said to have been made by the first accused. Ext.P11 is the Finger Print Expert's report. Ext.P9 is the report of the identification parade conducted by P.W.14. These are the main items of evidence available in this case.

55. It may now be considered as to how the court below dealt with these items of evidence mentioned above.

56. The oral evidence of P.W.2 was attacked mainly on the ground that his statement was taken by the investigating officer two weeks after the date of the incident and also after the accused had been arrested. This aspect seems to have greatly impressed the court below and it found fault with the investigating officer for the delay. The court below therefore refused to accept the evidence of P.W.2.

57. The defence taken is that if P.W.2 was aware of the names of all the assailants, he would have been the best person to Crl.A.1768/05 & con.cases. 61 give the details at the earliest. Attention is drawn to the fact that initially the police officers had no clue regarding the identity of the assailants. There was tremendous pressure from the public. Therefore the defence says that in order to satisfy the public they had to do something and without any basis the accused have been implicated. It is also pointed out that the explanations offered for the delay are also conflicting and inconsistent. The investigating officer says that during the initial two weeks P.W.2 was unable to speak, whereas P.W.1 doctor who attended to P.W.2 says that P.W.2 was frightened to speak. It was these aspects, which according to the learned counsel had weighed with the lower court to reject the evidence of P.W.2.

58. Learned Public Prosecutor pointed out that the comments made against the evidence of P.W.2 so also against the investigating officer were quite unfair. Learned Public Prosecutor pointed out that the nature of the injuries suffered by P.W.2 were so grievous that he was unable to speak. It was also contended that Crl.A.1768/05 & con.cases. 62 the incident was by no means a pleasant one. If as a matter of fact, initially if P.W.2 shuddered to disclose the names of the assailants fearing consequences, he could not be found fault with. The prosecution has been able to give convincing and cogent reasons for the delay. Learned Public Prosecutor contended that the evidence of P.W.2 ought not to have been rejected.

59. Before going into the above aspects, one fact may be noticed. Precedents are of little help in the matter of appreciation of evidence. The evidence in each case will have to be appreciated on the basis of its own facts. The evidence in each case will have to be independently evaluated and conclusion drawn. While precedence may be of some help in this regard, they are neither conclusive nor absolute.

60. In the decision reported in Lalliram v. State of Madhya Pradesh ((2008) 10 SCC 69), it was observed as follows: “As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases Crl.A.1768/05 & con.cases. 63 the question of precedent particularly relating to appreciation of evidence is really of no consequence.”

61. Learned counsel appearing for the accused persons relied on the decision reported in Jagjit Singh v. State of Punjab ((2005) 3 SCC 689) in support of their contention that delay in recording the statement of an important witness usually considered fatal. In the said case, there was delay of 3 days in recording the statement. The relevant portion reads as follows: “This has to be viewed in the light of the fact that her statement was recorded by the investigating officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. The courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant submitted that this period was utilised by the prosecution for tutoring the witnesses, and therefore the delay of three days in her examination under Section 161 Cr.P.C. is significant. No explanation is forthcoming as to why she was not examined for three Crl.A.1768/05 & con.cases. 64 days when the investigating officer knew that a statement of her's had been recorded by the doctor on

30.8.1996. The trial court took the view that since she was under a shock she was not in a position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on

30.8.1996 and, thereafter, she was fully conscious. The evidence of Dr.Bhupinder Singh, P.W.7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the trial court that the victim P.W.6, was under great shock and was not in a position to make the statement, cannot be sustained. Neither the trial court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to P.W.6 or that P.W.6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW.6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tubewell her grandparents resided, is unacceptable particularly, in view of the fact that there Crl.A.1768/05 & con.cases. 65 is no evidence to establish that she had ever earlier sen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. the delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her later examination after three days, when admittedly she was the sole eyewitness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnesses the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeking him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ext.PW-6/A was being recorded.”

62. A reading of the decision will indicate that the sole criterion for deciding .the case was not on the above basis alone. There were several other factors, which made the prosecution case to be suspicious and along with those facts, the delay in recording the statement was also considered. Therefore, the delay in taking Crl.A.1768/05 & con.cases. 66 the statement of a witness cannot be considered in isolation.

63. It will be useful in this regard to refer to the decision reported in Krishna Pal v. State of U.P. (AIR 1996 SC 733), wherein it was observed as follows: “In the instant case, no explanation has been given by the prosecution as to why eyewitnesses had not been examined shortly after the incident and from the materials on record it appears that there had been inordinate delay in examining the eye witnesses. But simply on that account, the convincing and reliable evidence adduced in this case should not be discarded. The Investigating Officer in his deposition has also admitted that through mistake he omitted to mention the Crime No. in the inquest report. It appears to us that the Investigating Officer had not been diligent enough but for that reason we do not feel that reliable and clinching evidence adduced in this case by the eyewitnesses particularly Dr.Rajeev Singh should be discarded.”

64. In the decision reported in State of U.P. v. Satish ((2005) 3 SCC 114), it was held as follows: Crl.A.1768/05 & con.cases. 67 “As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. (See Ranbir v. State of Punjab, Bodhraj v. State of J&K and Banti v. State of M.P.) ................. .................. It is to be noted that the explanation when offered by the IO on being questioned on the aspect of delayed examination by the accused has to be tested by the court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the court can consider it to be one of the factors to affect credibility Crl.A.1768/05 & con.cases. 68 of the prosecution's evidence tendered by the other witnesses.”

65. In the decision reported in Banti v. State of Madhya Pradesh (AIR 2004 SC 261) it was observed as follows: “As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be said down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion. Consequently, we find no justifying reason or ground substantiated on behalf of the appellants to interfere with the concurrent findings recorded by both the courts based on relevant, cogent and trustworthy evidence adduced by the prosecution to prove the guilt of the appellants beyond reasonable doubt.” Crl.A.1768/05 & con.cases. 69

66. Therefore, it could be seen that it is not an invariable rule that merely because a statement of a witness is taken after a long time of incident, as in this case, nearly two weeks, that by itself is a ground to reject the evidence of that witness.

67. One may refer to the evidence of P.W.2 in this regard. He admits that he was questioned after ten to twelve days of the incident to be precise on 1.9.1998. He has stated in his cross-examination that before such questioning, he had not disclosed the identity of the accused to anybody else. He also states that on several occasions, the police had approached him to take the statement. But he did not disclose the details. He says that due to his injuries, he was unable to pronounce the names of the assailants. He also says that when he and the deceased were examined on the first occasion, that is, as soon as they were brought to the Hospital, there was nobody near them. He deposed that after his conversion to Islam, nobody had any aversion Crl.A.1768/05 & con.cases. 70 towards him and nobody had ever tried to harm him. He denied the suggestion that he had told the doctor that one Hydru had attacked him. He had also deposed that P.W.3 had come to the shop of the deceased along with Gopalan earlier in the day and that he had seen P.W.3 for the first time. In cross-examination by the 8th accused, he would depose that when he received the first blow, he tried to escape and he was restrained by fourth accused and four persons attacked him.

68. Though it is considered to be ideal that the investigating officer questions all the principal witnesses soon after the incident if they were available, it is not the law that because there is delay in taking the statement of a witness, that would be fatal. It must depend upon the facts of each case. In fact Section 161 gives a discretion to the investigating officer to record the statement. It is well established that even if the statement of a person is not recorded, he could still be examined in court as a witness. The object behind the recording of the statement is to Crl.A.1768/05 & con.cases. 71 ensure that a true version of the incident is obtained at the earliest and to test the veracity of the evidences at a later stage. It is not the law that if no such statement is available, a witness cannot be examined or that his evidence cannot be accepted. It is for the court to evaluate the evidence and to come to a conclusion as to whether the evidence should be accepted or not.

69. The investigating officer, namely, P.W.22 has also stated that he had gone to the Medical College Hospital on two occasions to record the statement of P.W.22. He was unable to do so since P.W.2 was unable to speak properly. One may at once note that this statement of P.W.22 gets corroboration at the hands of P.W.2 also. P.W.2 says that the investigating officer had come several occasions to take his statement. Of course, it is contended that there was no medical records to show that P.W.2 was unable to speak and therefore the said claim of P.W.2 and P.W.22 should not be accepted. It is also stressed that P.W.11, the doctor who had issued Ext.P6 and attended to P.W.2 had stated that P.W.2 Crl.A.1768/05 & con.cases. 72 appeared extremely frightened.

70. It will be useful at this juncture to refer to the lower court judgment to ascertain as to how the evidence of P.W.2 was dealt with. The discussion begins from paragraph 19 onwards. In paragraph 19, it is seen stated as follows: “But the prosecution clings on to prove a number of tales through one witness after another and the trend of the prosecution was to prove the oral evidence given by one witness through another witness and thus mode of giving evidence was just like that of truck load evidence.” In paragraph 20 it was observed as follows: “He is highly tutored and interested to make the entire penal liability falsely to the accused persons at the instance of other interesting party.”

71. On going through the evidence of P.W.2 and P.W.22, one fails to understand how the above observation could be made. The court below seems to have completely forgotten that P.W.2 was an injured witness and his evidence stands on a high Crl.A.1768/05 & con.cases. 73 pedestal. The characterization of his evidence as feeble and frivolous is rather unfortunate. In fact the observation by the lower court that P.W.2 can go to any extent to tell lies is very unkind. The injuries suffered by this witness are clear from Ext.P8 wound certificate. Several injuries were suffered by him. He has categorically stated that he had never been attacked before. One fails to understand what instigated him to falsely implicate the accused persons and let the real assailants escape. The court below has not considered these vital aspects and was simply led by the fact that there was delay in recording the statement. It is true that prosecution cannot take advantage of its own delay in recording the statement of P.W.2. The incident occurred on 17.8.1998 and the statement was recorded on 1.9.1998, when he was discharged from the hospital. But P.W.2 and so also P.W.11 and P.W.22 had given reasons for the same. There is no reason as to why those reasons cannot be accepted. P.W.22 had also stated that he had gone on two occasions to record the statement of P.W.2. One Crl.A.1768/05 & con.cases. 74 must recollect that he had suffered severe injuries at the hands of the assailants and also he was frightened. Therefore if he was shy to disclose the names of the assailants or their features, he cannot be found fault with. May be that there is no medical evidence to show that P.W.2 was unable to speak. But that is not of much consequence at all in the facts of this case. One cannot ignore that apart from the fact that he could not initially talk, the fact also remains that he was very much frightened. He might have thought that it is better to keep silent regarding the identity of the assailants. There is nothing unnatural with his conduct. One may here recall the evidence of P.W.1. P.W.1 goes to the place of the incident and requested for the aid of nearby inhabitants to remove the injured to the hospital. None of them obliged and had even shown any anxiety or enthusiasm to help. That shows that they were frightened of the consequences if they rendered any help to the victims. That indicates the tense atmosphere at the place. It is necessary to note that there were agitations, processions, strong Crl.A.1768/05 & con.cases. 75 protests quite frequently demanding the arrest of the assailants. But unfortunately, none of the inhabitants thought it necessary to co-operate or help the police in this matter.

72. It is in this context that delay in recording the statement will have to be viewed. It is true that by the time P.W.2 was questioned, the accused had been arrested. But there is nothing to show that P.W.2 was aware of the same. There is nothing to indicate that P.W.2 was taken to the jail and the accused was shown to him. May be that since P.W.22 had already achieved a major breakthrough and there is only a question of identification by the witnesses, he had waited till P.W.2 was able to talk and he was discharged from the hospital. One shall not forget that P.W.2 was an young lad aged about 18 years at the relevant time. If he felt frightened of the consequences, if he discloses the names of the assailants of the incident, there is nothing strange about it. Apprehension of a retaliatory attack on him, if he reveals the names of assailants, cannot be ruled out. If a weak mind in an Crl.A.1768/05 & con.cases. 76 ailing body cannot muster courage to speak out, there is nothing unusual about it. One may again note that no one in the locality was willing to give any information of assistance to the police personnel. Such was the terror and fear prevailing in the area. In court not only P.W.2 had identified the accused, but also had named them. It also turned out that they were familiar to him. There is nothing to show that his evidence is manipulated or is concocted and that the investigating officer had any role in doing so. In all remand reports filed by the investigating officer, he had disclosed the steps taken by him. He had clearly stated how he had traced the assailants and also about the reason for the delay in taking the statement of P.W.2. Therefore the reason given by the court below to discard the evidence of P.W. do not stand legal scrutiny.

73. There is nothing to indicate that the evidence of P.W.2 is either suspicious or tainted, or the sequence of events is not as stated by him. He was only aged 18 years at the time of the Crl.A.1768/05 & con.cases. 77 incident. He was badly wounded in that incident. One must also remember that he was deposing seven years after the incident and it is only natural that minor contradictions might have crept into his evidence. But whatever that be, the essential facts the prosecution seeks to prove through this witness, are established.

74. Another ground, which is relied on by the court below to disbelieve P.W.2 is that Yasir was attacked inside the autorickshaw, but no blood is seen in the autorickshaw, except a very small quantity. Yet another ground is that P.W.2 and Yasir were taken to the hospital and it was P.W.2, who had given the cause of the injuries to the doctor. To the doctor he had stated “..................................................... (due to somebody inflicting cut injury) at 2 a.m. on 13.7.1998 near Kallingal”. The lower court went on to hold that being an official act done by the doctor, it will be presumed to be correct under Section 114 of the Indian Evidence Act. Therefore the court came to the conclusion that P.W.2 was unaware of the assailants. Crl.A.1768/05 & con.cases. 78

75. Learned counsel appearing for the defence in support of the above contention relied on the decision reported in Rajeevan v. State of Kerala (AIR 2003 SC 1813), wherein it was held as follows: “The trial court also noticed that immediately after the incident P.Ws.1 and 4 took the injured Ibrahim (deceased) along with P.Ws. 2 and 3 to the Medical College Hospital which is 48 kilometres away from the place of incident but found that it is improbable that none in the jeep had talked about the incident or accused during the long journey. the trial Court also took note of the fact that it is unnatural not to mention the names of the assailants to the Doctor who examined them; that event relating to the recovery of weapons was found to be suspicious; that the trial court noticed many inconsistencies between the observations noted in the scene mahazar and the version given by occurrence witness. Hence the trial Court concluded that the possibility that the incident might have happened in some other manner and not as stated by the prosecution cannot be ruled out. The trial Crl.A.1768/05 & con.cases. 79 court also relied upon interested nature of evidence of the witnesses and the possibility of taking political revenge and that there was no evidence regarding the conspiracy by the accused. With these conclusions the trial Court acquitted all the accused.”

76. There is indeed an observation that it is unnatural not to mention the names of the assailants to the doctor, who examined them. But that observation has to be read in the context of the facts of the case and in the context in which it occurs. It is neither proper nor fair to pluck a sentence out of context and highlight the same and say that it is a binding proposition.

77. It is trite that it is neither the duty of the doctor to collect the names of the assailants from the injured nor is the law that in its absence the prosecution version is open to serious doubt. The purpose and object of drawing up a wound certificate is quite a different one and the absence of names of the assailants even if the cause was stated by the injured themselves and even if he knew the names of the assailants, is not of much significance and Crl.A.1768/05 & con.cases. 80 consequence. It will not be inappropriate to refer to the decision reported in State of Kerala v. Kilakkatha Parambath Sasi (2004 (2) K.L.J. 606), wherein it was observed as follows: “The Doctor is not bound to record the names of the accused in the wound certificate. In both the wound certificates it is stated that deceased and P.W.1 were attacked by BJP workers. It is stated in Ext.P3 that seven BJP workers attacked them. FI Statement cannot be doubted because the names of the accused were not mentioned in Exts.P3 and P4 wound certificates.” Therefore the grounds relied on by the court below to disbelieve P.W.2 are not acceptable. Equally erroneous is the reasoning that since blood was not seen in the autorickshaw, P.W.2 should be disbelieved. True the initial attack was while Yasir was in the autorickshaw. He tried to get out. He was restrained by force. But that does not mean that all the subsequent injuries were inflicted inside the autorickshaw. In a bid to escape from the horrendous attack he might have sneaked out of the autorickshaw. It is significant to notice that he was found lying outside the Crl.A.1768/05 & con.cases. 81 autorickshaw, except his feet, with bleeding injuries. Therefore, the absence of blood in the autorickshaw is also of no consequence.

78. It may be apposite to refer to the decision reported in Vikram v. State of Maharashtra (AIR 2007 SC 1893) at this juncture. Therein it was held that inconsistencies, discrepancies, omissions, commissions etc.. are bound to occur when a witness gives evidence long after the incident and that cannot make the evidence of the witness unworthy of credit.

79. In the decision reported in Kishan Singh v. State of Punjab (AIR 2008 SC 233) it was held that it is quite unfortunate to say that a witness is speaking falsehood merely because he might have made some mistakes while giving evidence. It was neither a reason to pass disparaging remarks about the witness or doubt the veracity of his testimony.

80. In the decision reported in Himmat Sukhadeo Wahurwagh v. State of Maharashtra ( (2009) 6 SCC 712) it was Crl.A.1768/05 & con.cases. 82 held as follows: “We are also aware of the fact that the evidence in most of these cases is recorded after some delay and that in any case if every witness were to give an identical and parrot-like statement, it would smack of tutoring and would lose credibility. Some inconsistencies are thus bound to arise particularly where a large number of victims, witnesses and accused are involved and the incident itself is spread out over a distance and period of time, as in the present case.”

81. Section 118 of the Indian Evidence Act says that all persons are competent to testify unless the evidence suffers of the infirmities stated in the provision. The approach to be made while appreciating the evidence has been mentioned in the decision reported in State of Maharashtra v. Siraj Ahmed Nisar Ahmed ((2007) 5 SCC 161) wherein it was observed as follows: “While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of Crl.A.1768/05 & con.cases. 83 truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hypertechnical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole.”

82. As observed, there is not even a remote suggestion to P.W.2 as to why he should falsely implicate the accused. He had deposed that he had no bitter experiences from them or that so far he had nothing against them. As is usually said, being an injured witness it is very unlikely that he would let the real culprit to escape and falsely implicate someone else. It could thus be seen Crl.A.1768/05 & con.cases. 84 that none of the grounds relied on by the court below to disbelieve and discard the evidence of P.W.2 is sustainable either on facts on in law.

83. The evidence of P.W.3 is characterised as artificial, interested. He had stated about the physical features of the accused as if he had seen them on the same day. According to the court below, if his claim was true, there should have been blood on his cloth. Then again, being an Ex-Military personnel, when Yasir and P.W.2 were being attacked, he should have intervened and tried to save them, and the last ground relied on his that his acts are not in tune with normal human conduct.

84. On going through the evidence of P.W.3, which has already been extracted, one fails to understand as to what made the lower court to make the above observations. We are unable to see any artificiality or undue interest in the evidence of this witness. He has stated as to how he came to the place of the incident and had occasion to watch the incident. He gets ample corroboration Crl.A.1768/05 & con.cases. 85 regarding this aspect from P.Ws. 2, 4 and 5. True there are some contradictions in his evidence. He has stated in cross-examination that he and Gopalan were in the hospital right from morning till noon when the body of Yasir was in the Mortury. However, P.W.22 says otherwise. P.W.3 has also stated that he was detained in custody for four days. He had also stated that the next day of the incident, Narayanan told him, who had done the act and other details. In his cross-examination, he has stated that he had told the police that he had seen the incident when he was questioned in the hospital. Then he and Gopalan were taken to the police station and they were made to wait there.

85. A close reading of the evidence of P.W.22 shows that Gopalan and P.W.3 were in fact questioned in the early hours of 18.8.1998 in the hospital itself. One shall not pick and choose sentences from the evidence of witnesses. It has to be read as a whole. The attempt is to ascertain whether the witness is ill-motivated or whether he has any oblique intention. One can Crl.A.1768/05 & con.cases. 86 characterize a witness as an interested, enimical, chance witness etc. The Evidence Act does not make any such categorization. Gone are the days when on hyper technical grounds acquittal follows. The method of committing the crime have become more ingenuous and therefore the investigating agency and the court should adopt a pragmatic approach. There is absolutely nothing to show that P.W.3 had an axe to grind against the accused. Lower court says that being a retired army personal, he would not have ventured to do manual work and therefore his arrival to the house of Yasir could not be believed.

86. One can only say that there should be a limit for imaginations also. His evidence suffers from no material discrepancies. The incident was in 1998 and he was examined in

2005. It is too much to expect a witness to give evidence with mathematical precision after such a long lapse of time. There is absolutely no lacuna or infirmity in his evidence regarding the actual incident and it is ridiculous to expect a cold blooded murder Crl.A.1768/05 & con.cases. 87 to be as pleasant as a movie so as to note the essential features in detail then.

87. The question is what had prompted these witnesses, namely, P.Ws. 2, 3, 4, 5 etc. to falsely implicate these accused persons. Even assuming that some portions of their evidence do not appear to be very convincing, it does not lead to the inference that their entire testimony should be discarded. Embellishments, exaggerations, developments, additions etc., are bound to occur when a witness gives evidence after a long period.

88. In the decision reported in Vikram v. State of Maharashtra (AIR 2007 SC 1893) it was held as follows: “They were examined in Court two and a half years later. If there occurred some contradictions or even assuming they had omitted to state the incident in great details, the same by itself would not lead to a conclusion that the appellants had been falsely implicated in the case.” Crl.A.1768/05 & con.cases. 88

89. The answers given by P.W.3 in cross-examination as already referred to, cannot have any adverse impact on his evidence. May be that he was a little over enthusiastic and excited in court at the time of giving evidence. But there is nothing to show or suggest that he had the intention to falsely implicate these persons. Equally faulty is the reasoning that P.W.3 should be disbelieved because he did not interfere in the incident and not tried to save Yasir and P.W.2. The court below seems to have forgotten that the accused were on a murderous attack and if P.W.3 thought he should save his life, he cannot be blamed for the same. One must notice that all the assailants are alleged to have been carrying dangerous weapons with them and P.W.3 had actually witnessed the assault on late Yasir and P.W.2.

90. In the decision reported in State of Uttar Pradesh v. Devendra Singh (AIR 2004 SC 3690) it was held as follows: “Human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends Crl.A.1768/05 & con.cases. 89 upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. yet others rush to the rescue of the victim, even going to the extent of counter attacking the assailants. Some may remain tightlipped overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances. There is no set rule of natural reaction. to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.”

91. In the decision reported in Sucha Singh v. State of Punjab (2003 SCW 3984) it was held as follows: Crl.A.1768/05 & con.cases. 90 “So far as inaction of P.Ws.9 and 10 in not coming to rescue of deceased is concerned, it has been noted by the trial court and the High Court that both of them were unarmed and bare handed and the accused persons were armed with deadly weapons. How a person would react in a situation like this cannot be encompassed by any right formula. It would depend on many factors, lime in the present case where witnesses are unarmed, but the assailants are armed with deadly weapons. In a given case instinct of self-preservation can be the dominant instinct. That being the position, their inaction in not coming to rescue of the deceased cannot be ground for discarding their evidence.”

92. There is no strict formula for human conduct. Each human being acts differently in different situations and to base a conclusion that a particular person should be disbelieved on the ground that he has acted in a particular manner does not stand to reason. Equally fallacious is the reasoning that since blood was not found on the clothes of P.W.3, he is to be disbelieved. It may be useful to refer to the decision in Mohammed Arshad v. State Crl.A.1768/05 & con.cases. 91 of Maharashtra (AIR 2007 SC 624), wherein it was held as follows: “Submission of Mr. Lalit that testimony of P.W.6 should not be believed, cannot be accepted. Only because his clothes did not become blood stained, in our view, is not of much significance. He only helped the deceased to sit on the motorcycle, and the same may be the reason of his clothes not stained with blood. There was, thus, no reason for us to reject the testimony of P.W.6 in regard to Shaukat.” Therefore, none of the grounds relied on by the court below to discard the evidence of P.W.3 can be justified.

93. For reasons best known to the court below, the court below felt that evidence of P.W.4 is also artificial. It must be noticed that her role is extremely limited. The court below goes to the extent of saying that P.Ws.4 and 5, the wife and child gave different clues about the perpetrators of crime which make their evidence suspicious. Their evidences have been referred to earlier. We have carefully considered the evidence of P.Ws. 4 and 5 and Crl.A.1768/05 & con.cases. 92 are unable to find the socalled 'suspicious clues”. It is also significant to notice that there is no whisper by the court below regarding the evidence of P.W.6. The reasons given by the court below to discard the evidence of P.Ws. 4 and 5 are not acceptable either in law or on facts.

94. The evidence of these witnesses including the evidence of P.Ws. 2 and 3 regarding the identification of the accused will be dealt with later.

95. The attack made on the investigating officer is more distressing. He is found fault with for the arrest of accused No.4 first. His act of doing so is characterised as illegal and the court below goes on to say that the subsequent acts of P.W.22 have no legal value. According to the lower court the arrest of accused No.4 without any evidence is illegal. P.W.22 is accused of manipulation, tampering of evidence and tutoring and hiring witnesses. Paragraphs 37, 38 and 46 of the trial court judgment deals with these aspects. Crl.A.1768/05 & con.cases. 93

96. One has to bear in mind that when P.W.22 took up investigation on 18.8.1998 there was absolutely no clue about the assailants. He has stated that he had to begin with the description of persons given by P.Ws. 3, 4, 5 etc. There were agitations., there were innumerable protests and processions calling for arresting the accused. No one chose to help the police with any useful information. P.W.22 has deposed in detail as to how he went about trying to find out the culprits. We have gone through the records and from the remand reports, it is evident that P.W.22 had clearly disclosed the various steps taken by him at each stage of the investigation.

97. He has in his evidence stated as to how he nabbed accused No.4 and the reason for the same. Learned counsel appearing for the defence stressed that accused No.4 was involved only in one crime and therefore the doubt entertained by P.W.22 has no force. Suffice it to say, the defence so set up is only to be rejected. May be that there were only one case against accused Crl.A.1768/05 & con.cases. 94 No.4. But according to P.W.22 he was involved in anti social activities and communal riots. It is not the number of crimes that matters, but the conduct of the person concerned. One must also note that he is absconding even as on date.

98. It may be useful to refer to the decision reported in State of Kerala v. Aboobacker (2006(4) K.L.T. SN 33), wherein it was held as follows: “Criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of the witnesses. Every case in the final analysis would have to depend upon its facts. It must be remembered that criminal trial is meant for holding Crl.A.1768/05 & con.cases. 95 justice not only to the victim but also the accused and the society at large. Rape and murder are undoubtedly brutal and diabolic sins constituting the worst forms of criminal incursions on the human body. The perpetrators of such crimes are indeed to despicable that, in appropriate cases, the award of the extreme penalty of death along may be the most condign punishment for them. But a criminal court can do so only on proof before it according to law. Until such proof, the whole case remains in the realm of allegations and accusations. Judges can not act on such allegations or on the spicy versions supplied by the print or visual media. The temptation which a judge in his hermit-like existence should consciously resist is the populist media publicity for his deeds as a Judge. In the divine function of a Jude, there is no place for popularity. A Judge who falls a prey to this weakness is sure to be guided by the heart rather than the head. A Judge cannot be living in a world of fantasy while marshalling the evidence before him in the process of dispensation of justice in order to reconstruct a story different from the one propounded by the prosecution. the wealth of judicial experience Crl.A.1768/05 & con.cases. 96 gained by him should make him more informed, detached and objective rather than publicity-oriented.”

99. As already noticed, there is no law that preceding commencement of investigation, FIR should be registered. The circumstances under which in the present case it so happened have been narrated by P.W.22. True, P.W.22 questioned P.W.2 only on

1.9.1998. His claim that till then P.W.2 was unable to speak may not be supported by medical evidence and therefore may not be totally acceptable. But the mere fact that the statement was taken only later, that by itself is not a ground to doubt the earnestness of P.W.22 or the genuineness of the prosecution case especially when there are other convincing and acceptable evidence.

100. P.W.22 had an identification parade conducted. Much criticism was levelled against the mode and manner in which it was conducted. The identification parade was conducted on 15.9.1998. P.W.22 in his evidence has stated that he had taken precautionary measures to ensure that the witness did not get a Crl.A.1768/05 & con.cases. 97 glimpse of the assailants before the identification parade was made. He has stated the measures taken by him in detail.

101. The defence has produced a few newspapers carrying news items regarding the unfortunate incident. First of all it is not shown that it is produced from proper custody. The evidence of D.W.1 is insufficient to establish the genuineness and authenticity of the contents. Merely because news items and photographs have come in newspapers by themselves cannot altogether erode the evidentiary value of the identification parade.

102. The identification parade was conducted by P.W.14, a judicial officer and Ext.P9 is the report. The court below chose to reject the identification parade on the ground that P.W.6 had stated that the photos of some other accused persons have come in the newspapers. The court below without any justification accuses P.W.22 for having got the photographs published. Crl.A.1768/05 & con.cases. 98

103. The attitude of the court below is very unfortunate. The identification parade conducted during investigation is only for an assurance that the investigating agency is proceeding in the right direction. It is the identification in court, which is substantive evidence. There is a plethora decisions regarding the purpose and evidentiary value of identification parade. In the decision reported in Ankush Maruti Shinde v. State of Maharashtra ((2009) 6 SCC 667) it was held as follows: “If potholes were to be ferreted out from the proceedings of the Magistrate holding such parades possibly no TI parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every TI parade would become unusable. TI parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting TI parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection Crl.A.1768/05 & con.cases. 99 with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.”

104. In the decision reported in Saji v. State of Kerala (2007(2) KHC 595) it was held as follows: “The conduct of test identification parade is only for helping the investigating agency to proceed in then right lines for booking the real culprits. Merely because of any such factors like publication of photographs in newspapers, the veracity of the identification parade is not lost. The previous identification in the test identification is a check valve to the evidence of identification in Court of an accused by a witness and the same is a rule of prudence and not law. Their Lordships also held that in exceptional circumstances only, evidence of identification for the first time in Court, without the same being corroborated by previous identification in the test identification parade or any other evidence can form the basis of conviction. Crl.A.1768/05 & con.cases. 100 It has been held that the identification of the accused made in Court by a witness is substantive evidence whereas that of identification in the identification parade is, though primary evidence but is not substantive and the same can be used only to corroborate the identification of accused by a witness in Court.”

105. In the decision reported in Amitsingh Bhikamsing Thakur v. State of Maharashtra (2007(1) KHC 487) it was held as follows: “As was observed by this Court in Matru v. State of U.P. (1971 (2) SCC 75) identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. (See Santokh Singh v. Izhar Hussain 1973(2) SCC 406. The necessity for holding an identification parade can arise only when the accused are not previously known to the Crl.A.1768/05 & con.cases. 101 witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensue that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some Crl.A.1768/05 & con.cases. 102 delay, it cannot be said to be fatal to the prosecution. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a sage rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of Crl.A.1768/05 & con.cases. 103 investigation, and there is no provision in the Code which obliges the investigating agency to hold or constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not made inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.”

106. In the decision reported in Heera v. State of Rajasthan (AR 2007 SC 2425) it was held as follows: “It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first is from its very nature Crl.A.1768/05 & con.cases. 104 inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a sage rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not made inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. Crl.A.1768/05 & con.cases. 105 In Jadunath Singh v. The State of Uttar Pradesh ((1970) 3 SCC 518), the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of the authorities on the subject. That was a case were the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with the deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 67 years as they had been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this Court in Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No.92 of 1956, decided on January 15, 1957), wherein it was observed. “It is also the defence case that Shiv Lal did not know the appellant. But on a reading of the evidence of P.W.7 it seems to us clear that Shiv Lal knew the appellant by sight. Though he made a mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he identified him as such. These Crl.A.1768/05 & con.cases. 106 circumstances are quite enough to show that the absence of the identification parade would not vitiate the evidence. A person who is well known by sight as the brother of Manak Chand, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances.” The Court concluded. “It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani v. The State of Rajasthan (supra) that the absence of test identification in all cases is not fatal and if the accused person is well- known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case.” Crl.A.1768/05 & con.cases. 107

107. It is well settled that identification parade is not a must in all cases. Usually when the culprits are total strangers to the witnesses, by way of abundant caution, it is stated that an identification parade be conducted to ensure that the investigating agency is proceeding in the correct direction. But it is well established that the identification in court really matters and that forms substantive evidence. In the decision reported in Ravinder Kumar Sharma v. State of Assam ((1999) 7 SCC 435) it was held that newspaper reports are merely hearsay evidence and not true facts stated therein. In the light of the above discussion, the court below was not justified in passing the unsavoury remarks on the identification parade conducted by P.W.22.

108. What now arises for consideration is the evidence of P.W.14, who is the learned Magistrate, who conducted the test identification parade. Ext.P9 is his report. P.W.14 speaks about the procedure followed by him. His evidence shows that out of the eight persons, except accused No.5, all others have been identified Crl.A.1768/05 & con.cases. 108 by one or other of the witnesses. P.Ws.2, 3, 4, 5 and 6 have identified the accused in court as they did during the identification parade also. That is sufficient corroboration of the identity of the accused. At the time of evidence the witnesses went near the accused and identified them. The only infirmity pointed out is that the learned Magistrate did not ask the witnesses whether the accused had already been shown to them. But as already noticed, may be there are some minor loop holes in the test identification parade conducted. The mere fact that the Magistrate may have failed to ascertain the above factor by itself is not of much consequence. Selection of persons were made by the learned Magistrate by himself. Two rounds of identification were conducted by the learned Magistrate. His report says as follows: i) P.W.5 Abidha in the first round identified Accused Nos. 1 and 4. In the second round she identified Accused Nos.1, 4 and 7. ii) P.W.2 Sumayya, the wife of the deceased in the first attempt identified Accused Nos. 7 and 8. She Crl.A.1768/05 & con.cases. 109 confirmed the identification in the second attempt also. iii) Gopalan, who is not examined before court in the first attempt identified Accused Nos.1, 3, 4, 7 and 8. In his second attempt he confirmed the same. iv) Ramachandran, who is examined as P.W.3 before court in his first attempt identified Accused Nos. 1, 3, 4, 6 and 7. In his second attempt he identified Accused Nos. 1, 2, 3, 4, 6 and 7. v) Haris, who was examined as P.W.6 in his two attempts identified accused Nos.7 and 8.

109. As already noticed, except accused No.5, all other accused have been identified. If as suggested by the defence, the accused had already been shown to the witnesses and they made familiar, obviously accused No.5 too would have been identified by the witnesses. P.W.5, who identified accused No.4 in the identification parade, in court she would say that one of the persons she had identified during the identification parade is not present in court. Reference is obviously to accused No.4, who is absconding. Crl.A.1768/05 & con.cases. 110

110. Therefore it could be seen that the identification parade was properly conducted by the authority. It could be seen that there is absolutely no justification for the comments made by the court below regarding the identification parade held at the investigation stage. One fails to understand as to what made the court below to make such uncalled for and unmerited comments.

111. The next item of evidence is the recovery said to have been made on the basis of the confession statement said to have been made by accused Nos. 1 and 3. According to the prosecution, based on Ext.P3(a) confession statement given by the first accused M.O.1 series of swords, four in number, were recovered by the investigating officer. P.W.8 is the recovery mahazar witness. His evidence before court shows that he had seen the first accused digging out the swords and handing it over to P.W.22. A reading of the mahazar shows that it was smeared with mud. Ext.P20, the FSL report discloses that the swords had traces of human blood on them. But grouping could not be done for want Crl.A.1768/05 & con.cases. 111 of sufficient quantity of blood. The criticism levelled by the lower court against this recovery is that Ext.P3 mahazar and P.W.22 in his evidence does not mention about traces of blood on swords. The trial court therefore reached the conclusion that blood was latter smeared on the swords.

112. While making the above observation, the court below has conveniently omitted to notice certain vital aspects. Ext.P3 mahazar as well as the evidence of P.W.22 clearly show that the swords were smeared with mud. That being the state of affairs, if to a naked eye the blood stains were not visible, then there is nothing surprising about it. The ground therefore relied on by the court below to reject this items of evidence is without any basis and in fact it is contrary to the evidence on record.

113. Equally strong is the recovery of M.O.6 torch, which belonged to deceased Yasir. Ext.P2(a) is the statement given by the second accused. It was based on his confession statement and as led by him that M.O.6 torch was recovered. Crl.A.1768/05 & con.cases. 112

114. Both the confession statements which led to the recovery contain authorship of concealment. The recovery also satisfies all the necessary ingredients. If that be so, those portions of the confession statement, which led to the recovery fall within the ambit of Section 27 of the Indian Evidence Act and constitute a strong item of evidence against the accused. (See the decisions reported in Geejaganda Somaiah v. State of Karnataka (AIR 2007 SC 1355) and Murugan v. State of Tamil Nadu (AIR 2008 SC 2876).

115. Much was stated by the defence counsel regarding non-examination of Gopalan whom, according to the defence is a staunch witness. According to the defence, he was deliberately withheld so as to prevent truth from being brought before court. It is true that Gopalan was present through out the incident. As pointed out by the learned counsel appearing for the accused persons, may be he is an important witness. No reasons have been given as to why he was not examined. But it is well settled that Crl.A.1768/05 & con.cases. 113 merely because a particular witness is not examined, that by itself may not prove fatal to the prosecution case, if the witnesses examined by the prosecution established the case beyond reasonable doubt. The court has to evaluate the evidence of witnesses, who have deposed before the court and not to worry about witnesses who have not been examined. If any part of the prosecution story remains unproved and the examination of a particular witness becomes essential, then his non-examination may be fatal. In the case on hand, the evidence of P.Ws. 2, 3, 4, 5 and 6 unfolded the prosecution case in all the material particulars and it stands established. Gopalan could have added nothing more to what had been stated by the above witnesses. If under such circumstances the prosecution thought it unnecessary to examine him, there is nothing wrong in that approach.

116. In the decision reported in State of Madhya Pradesh v. Dharkole (AIR 2005 SC 44), the court held as follows: Crl.A.1768/05 & con.cases. 114 “Non-examination of some persons per se does not corrode vitiality of prosecution version, particularly when the witnesses examined have withstood incisive cross-examination and pointed to the respondents as the perpetrators of the crime.” There is nothing to believe that P.Ws. 2, 3, 4, 5 and 6 had any ill-motive or reason to falsely implicate these accused persons. One shall not forget that P.W.2 is an injured witness.

117. It is no doubt true that the accused are entitled to the benefit of reasonable doubt. In the decision reported in State of Madhya Pradesh v. Dharkole (supra) the court has considered the question as to what is the reasonable doubt. The court held as follows: “A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case. Referring to the Crl.A.1768/05 & con.cases. 115 interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [See “The Mathematics of Proof II”: Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell.p. 340(342)]: “The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.” Doubts would be called reasonable if they are free from the zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an Crl.A.1768/05 & con.cases. 116 overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.” (Also see the decision reported in Kunwar Bahadur Singh v. Shiv Baran Singh (2002 SCC (Cri) 428)).

118. P.Ws. 4 and 5 are related to the deceased. P.W.2 was employed under Yasir and has been associated for a long time with the affairs of the deceased. There is no principle of law which says that related and socalled interested witnesses should be disbelieved. In the decision reported in Harbans Kaur v. State of Haryana (AIR 2005 SC 2989) it was held as follows: “There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused.” Crl.A.1768/05 & con.cases. 117

119. One more item of evidence remains to be considered and that is the Finger Print Expert's evidence. P.W.19 has furnished Ext.P11 report. On the basis of the request made by P.W.22, P.W.19 had finger prints from the autorickshaw found at the place of the incident collected by him. It was compared favourably with the sample finger prints of the first accused.

120. Learned counsel appearing for the accused relied on the decision reported in Ponnan v. Kuttipennu (1987(2) K.L.T. 455), wherein it was held that a Finger Print Expert is just an expert and his report is only an opinion. It is further stated that it is for the court to decide whether it should be accepted.

121. It is no doubt true that the court is not bound by the opinion of the finger print expert. It has been held that court is the expert of all experts. But that does not mean that the report of the Finger Print Expert is to be eschewed from consideration. In fact the question regarding the acceptance of the report of the Finger Print Expert is considered in the decision reported in Crl.A.1768/05 & con.cases. 118 Ouseph alias Johny v. State of Kerala (1987(2) K.L.T. 544). In paragraph 18 of the decision, it was held as follows: “Counsel for the accused submitted that opinion of the finger print expert cannot be given much significance as at best it is only an opinion evidence. Counsel relied on Ishwari Prasad v. Mohamed Isa (AIR 1963 SC 1728) and contended that evidence by handwriting expert can never be conclusive, because it is, after all an opinion evidence. In Pritam Singh v, State of Punjab (AIR 1956 SC 415( it is held as follows: “The science of identification of foot-prints is no doubt a rudimentary science and much reliance cannot be placed on the result of such identification. The track evidence, however, can be relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the Court.” Though the Supreme Court held that the science of identification of foot prints is a rudimentary science it held that it can be considered along with other circumstances to identify the culprit. Learned Public Prosecutor relied on Himachal Pradesh Administration Crl.A.1768/05 & con.cases. 119 v. Om Prakash (AIR 1872 SC 975) where it was held that identification of finger prints has not developed into a science and the results derived there have reached a stage of exactitude. Finger Print evidence is accepted by the courts on the assumption that no two individuals have identical finger prints. Scientific research and analysis lead to the conclusion that the probability for the existence of two identical finger print patterns in the world's population is extremely small. The fundamental principles of finger prints are: i. A finger print is an individual characteristic; no two fingers have yet been found to possess identical ridge characteristics. ii. A finger print will remain unchanged during an individual life time. iii. Finger prints have general ridge patterns that permit to be systematically classified (Criminalistics- An introduction to Forensic Science, ByRichard Saferstain Page 281). Finger print evidence is a very valuable piece of evidence in any criminal investigation and its importance can never be underestimated. Crl.A.1768/05 & con.cases. 120

122. From the above discussion, it can be seen that none of the grounds relied on by the court below to come to the conclusion that the prosecution has failed to establish the case against accused is legally sustainable. It is unfortunate that the court below started its evaluation with suspicion. It would appear from a reading of the judgment that the court had first decided to acquit the accused and then had found out reasons for the same. It was really unfortunate that a gruesome murder should have dealt with in such a manner. We say nothing more.

123. Coming to the Crl.M.C. filed by P.W.22, it has to be stated that the remarks passed against him by the court below were unwarranted and uncalled for. It is also unkind and unjust. P.W.22 has not kept anything away from the court and in his various remand reports, he had clearly stated the various steps taken by him during investigation. One should appreciate the position in which he was placed at the beginning of the investigation. Except vague descriptions of some of the assailants, Crl.A.1768/05 & con.cases. 121 he had nothing to start from. It must be appreciated that he understood the consequence and importance of the situation and immediately constituted a special squad for the investigation of the crime. The remarks made by the court below regarding the conduct of P.W.22 in keeping surveillance over accused No.4 and then arresting him were unjust and uncalled for. A police officer is entitled to question any person during investigation and that cannot be labelled as illegal. One is surprised to note that the court below feels that unless there is evidence against a person he cannot even be questioned. There is nothing to indicate that accused No.4 had been kept in illegal custody. When there is a strong suspicion and the investigating officer feels that the fourth accused may be involved, he is entitled to arrest him and question him. Further as soon as information was received by the investigating officer regarding the involvement of a few others, he took prompt steps to arrest them also. This is again criticised by the lower court. One fails to understand the attitude of the court below in this regard. Crl.A.1768/05 & con.cases. 122 P.W.22 had clearly stated that if he delayed the arrest of the other persons, he suspected that they might escape and that would cause difficulties. One has to keep in mind the nature of the acts and the impact it had among the people before making comments on the conduct of the investigating officer. At the risk of repetition, one may notice that none in the locality were ready and willing to help the police or to give any information regarding the assailants. Under such circumstances, the investigating officer had to proceed on his own intusions and it cannot be said to be unjustified. On going through the records, we are unable to find any conduct on the part of P.W.22, which could be termed as illegal or improper. In the remand reports filed by him, it is clearly stated as to how and why he had arrested accused No.4, and the reasons for arresting other accused immediately thereafter. If the view of the lower court is to be accepted, then only after the entire evidence is collected the accused could be arrested. That certainly is not the law. It is also important to notice that none of the accused, when Crl.A.1768/05 & con.cases. 123 produced before the lower court by the investigating officer had any complaint regarding the investigating officer of any ill- treatment or illegal custody.

124. Time and again the Apex Court as well as this Court have cautioned against making remarks regarding the conduct of investigating officer and other police officers. It has also been stressed that in case the situation calls for any such remarks, notice will have to be issued to the person concerned. Whatever that be, the courts have been cautioned judicial propriety demands that the court usually refrain from passing disparaging observations and statements against police officers. One should remember the stress and strain under which they work and also the constraints they are put to. As already noticed, the remarks made by the trial court in this connection against P.W.22 is without any basis whatsoever and it is unjust, unkind and improper. They surely needs to be expunged. Crl.A.1768/05 & con.cases. 124

125. From the above discussions, it follows that the reasons given by the lower court to acquit the accused are legally unsustainable, improper or unjustified, to say the least, the findings are perverse, and totally uncalled for in the light of the clinching and convincing evidence adduced by the prosecution through the various witnesses and documents. We have already noticed the infirmities and illegalities in the reasons given by the court below. Under these circumstances, as laid down in various decisions, we are constrained to interfere with the order of acquittal passed by the court below.

126. It has already been noticed that we are unable to accept the finding of the court below that prosecution has not succeeded in establishing the case against the accused persons. Among the accused persons, accused No.4 is absconding. It has been noticed by this court that the witnesses have failed to identify the fifth accused. None of the witnesses attribute any specific reference to that accused also. There is dearth of evidence so far as Crl.A.1768/05 & con.cases. 125 the involvement of the fifth accused is concerned.

127. As far as the other accused are concerned, namely, accused Nos. 1, 2, 3, 6, 7 and 8 are concerned, there are clinching items of evidence of P.Ws. 2, 3, 4, 5 and 6 taken along with the recovery evidence and other items of evidence to show that they were actually involved in the incident and that they were perpetrators of the crime.

128. The next question that arises for consideration is what are the offences committed by the above persons. The group consisted of more than five persons and their object was unlawful. Each of them knew that they were members of an unlawful assembly and therefore all of them are guilty of the offence punishable under Section 143 IPC. The members of the assembly are guilty of the case of rioting also as would be evident from their acts which has been established by the prosecution during the evidence of the witnesses already made mention of. They are also guilty of the offence punishable under Section 147 IPC also. Crl.A.1768/05 & con.cases. 126

129. The witnesses, namely, P.Ws. 2 and 3, have clearly stated that all the persons were carrying dangerous weapons like swords, cudgels etc. It could therefore be seen that they were all armed with deadly weapons. Therefore the offence under Section 148 IPC is attracted.

130. The nature of the injuries suffered by Yasir, manner of injuries inflicted on him, the gravity of the injuries and its consequence etc., clearly show that the intention of the members of the assembly was to do away with him. The evidence clearly shows that Yasir succumbed to his injuries inflicted by the members of the unlawful assembly. In the facts and circumstances of the case, it is immaterial as to who among the accused had infact inflicted the vital injuries. Since it was a combined act by all the accused persons, each of them is responsible for the act committed by the other. Therefore each of the accused is liable to be punished for the offence punishable under Section 302 IPC read with Section 149 IPC also. Crl.A.1768/05 & con.cases. 127

131. The members of the unlawful assembly also attacked P.W.2 and inflicted grievous injuries on him. The number of injuries inflicted on him, the place where those injuries were inflicted and also the fact that the injuries were serious, clearly show that the members of the unlawful assembly had the intention to cause the death of P.W.2 also. The reason for the attack is the conversion of Yasir and P.W.2 to Islam religion and also Yasir was persuading others persons to convert to Islam. At any rate, from the nature of the acts committed by the above persons, it can reasonably be inferred that they had the necessary knowledge that because of their acts, if death of a person is caused, they will be liable for murder. So, they are liable to be convicted for the offence punishable under Section 307 read with Section 149 IPC.

132. In the result, Crl.Appeal 1768 of 2005 is allowed and the order of acquittal passed by the court below is set aside and Accused Nos.1, 2, 3, 6, 7 and 8 are convicted and sentenced as follows: Crl.A.1768/05 & con.cases. 128 I) Accused Nos.1, 2, 3, 6, 7 and 8 are guilty of the offences punishable under Sections 143, 147, 148, 149, 302 and 307 read with Section 149 Indian Penal Code. II) Acquittal of Accused No.5 by the court below is confirmed. III) Accused Nos.1, 2, 3, 6, 7 and 8 are sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 143 IPC. Each of them is sentenced to suffer simple imprisonment for a period of one year for the offence punishable under Section 147 IPC. Each of them is sentenced to suffer rigorous imprisonment for a period of two years for the offence punishable under Section 148 IPC. Each of them is also sentenced to suffer imprisonment for life for the offence punishable under Section 302 read with Section 149 IPC and to pay a fine of Rs.25,000/- each, in default of payment of which, Crl.A.1768/05 & con.cases. 129 they shall suffer rigorous imprisonment for a further period of two years and also each of them is sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- each for the offence punishable under Section 307 read with Section 149 IPC. In default of payment of fine, each of them shall suffer rigorous imprisonment for a period of one year. IV) If the fine amounts are realized, Rs.1,25,000/- shall be paid to P.W.4 and her children as compensation and a sum of Rs.25,000/- will be paid to P.W.2 as compensation under Section 357(1) (b) of Cr.P.C. V) Substantive sentences shall run concurrently. In case the appropriate Government chooses to exercise the power conferred under Section 432 or Section 433 Cr.P.C., subject ofcourse to Section 433A, the accused persons shall be entitled to set off as per law. The court Crl.A.1768/05 & con.cases. 130 below shall take expeditious steps to take the accused into custody to execute the sentences mentioned above. Crl.M.C. 2543 of 2005 is allowed and the remarks made against P.W.22 in various paragraphs of the judgment of the lower court, especially in paragraphs 36, 37, 38 and 46, shall stand expunged. In view of the judgment in Crl.Appeal No.1768 of 2005, no orders are required to be passed in Crl.R.P. 1820 of 2005 and accordingly it is closed. K. Balakrishnan Nair, Judge sb. P. Bhavadasan, Judge Crl.A.1768/05 & con.cases. 131 K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 1768 of 2005, Crl..R.P. No. 1820 of 2005 & Crl.M.C. No.2543 of 2005. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT

05.11.2009