Abdul-Rahiman v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939** **CRA(V).No. 643 of 2013** **AGAINST THE ORDER/JUDGMENT IN SC 298/2009 of ADDL. DISTRICT & SESSIONS COURT (ADHOC) III,KASARAGODE DATED 13-03-2012** ## **APPELLANT(S)** **ABDUL-RAHIMAN, AGE, 56 YEARS, S/O.IBRAHIM, BEDIRADUKKA (H), P.O.BEDIRADUKKA, MOGRALPUTHUR, KASARAGOD DISTRICT.** **BY ADV.SRI.S.U.NAZAR, SRI.I.V.PRAMOD** ## **RESPONDENT(S)/STATE & ACCUSED 1, 2 & 3:** **1. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001 THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682031.** **2. B.RAJESH @ RAJU @ KOTTATHENGA RAJU, AGED 26 YEARS, S/O.LATE BABU, PERIYADUKKAM, KUDLU VILLAGE, KASARAGOD DISTRICT 671121.** **3. P.K.MANIKANDAN @MANI, AGED 24 YEARS, S/O.KRISHNAN-MANIYANI, PERIYADUKKAM, KUDLU VILLAGE, KASARAGOD DISTRICT 671121.** **4. UDAYAN @ BATTIYA UDAYAN, AGED, 29 YEARS, S/O.GANGADHARAN, PERIYADUKKAM, KUDLU VILLAGE, KASARAGOD DISTRICT 671121.** **R2-R4 BY ADV. SRI.ARJUN SREEDHAR R2-R4 BY ADV. SRI.ARUN KRISHNA DHAN R2-R4 BY ADV. SRI.JOSEPH GEORGE(MULLAKKARIYIL) R2-R4 BY ADV. SRI.P.S.SREEDHARAN PILLAI R2-R4 BY ADV. SRI.T.K.SANDEEP R1 BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 30-01-2018,THE COURT ON 21/03/2018 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & K.P.JYOTHINDRANATH, JJ.** ============================== Crl.Appeal (V) No. 643 of 2013 ==================== Dated this, the 21[st] day of March, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been filed by the victim's father invoking Section 372 and 378(2) of the Code of Criminal Procedure. 2. Respondents 2 to 4 were chargesheeted for offences punishable u/s 341, 323 and 302 r/w S.34 of I.P.C. in Sessions Case No.298/2007. By judgment dated 13/3/2012, the court below had acquitted the accused. 3. According to the prosecution, the accused with a common intention to attack the deceased, on 14/10/2008, at 6.40 p.m, committed murder of Rafeeq. PW3 who was along with Rafeeq was chased away. The allegation was that the 3[rd] accused restrained the movement of Rafeeq by holding on his shirt, the first accused slapped him on his face and the second accused stabbed him on his belly and back side of the body with a knife. After chasing away PW3 from the scene of crime, 2[nd] accused again inflicted injuries on Crl.Appeal (V) No.643/13 -:2:- Rafeeq with the same weapon and from the result of injuries he sustained, he died. 4. In order to prove the aforesaid allegations, prosecution examined 15 witnesses and placed reliance upon Exts.P1 to P16. Mos 1 to 10 were the material objects that were produced and identified. 5. PW1 has turned hostile. PW2 deposed that when he reached the scene of crime, he saw Rafeeq lying with bleeding injuries on the left side of the road leading to Bhagavathy temple from Periyadukkam road junction. One Ummer who was present at the relevant time took Rafeeq in an Omni van to the hospital. Thereafter, he had come to know that somebody had stabbed Rafeeq. He was also declared hostile by the prosecution. 6. PW3 is a friend of Rafeeq. He deposed that the accused had unleashed an attack against Rafeeq who suffered severe injuries and succumbed to the injuries. According to him, on 14/10/2008, he along with Rafeeq were proceeding to Periyadukkam to witness a cricket match. On the way, they went to the house of Azeez (PW6), who was residing very close to the mosque at Periyadukkam. Azeez was taking rest after being Crl.Appeal (V) No.643/13 -:3:- discharged from hospital in relation to an incident by which Azeez was assaulted by a few persons. After visiting Azeez, he proceeded to the mosque for conducting prayers along with Rafeeq. From the mosque, they proceeded to Periyadukkam Junction which is only 15 metres away from the mosque. While they were proceeding through the road towards Uliyathadukka, they saw the accused sitting beneath a tree on the southern side of the road. On seeing them, the accused came towards them and the first accused asked Rafeeq as to what he had said and slapped him on his face. Rafeeq attempted to run away. The first accused came towards PW3 with a knife and attempted to stab. The 3[rd] accused caught hold of his shirt and attempted to restrain him. PW3 wriggled out of his clutches and ran along the road towards east. When he reached about 200 metres, being chased by the first accused, he looked back. Nobody was following him. But he saw the first accused stabbing Rafeeq. After a few minutes, people in the locality came to the place where he was standing and he was told that Rafeeq had sustained injuries and was taken to the hospital. PW3 proceeded to Carewell hospital, but he could not find Rafeeq. He thereafter proceeded to Crl.Appeal (V) No.643/13 -:4:- Government Hospital, Kasaragod and had come to know that Rafeeq died in the said incident. He thereafter proceeded to Kasaragod Police Station and gave Ext.P1 First Information Statement about the occurrence and also saw the dead body of Rafeeq in the hospital. He further deposed that two days prior to the aforesaid incident, accused had assaulted one Siddique. At that time, Rafeeq was also present. Siddique had requested Rafeeq to persuade the accused not to assault him. According to him, since Rafeeq is an activist of DYFI. He interfered in the said matter. The accused were BJP activists and it is on account of said enmity that they have attacked him. 7. PW4 deposed that he saw Rafeeq and PW3 on 14/10/2008 in the mosque. After offering prayers, they came out of the mosque. A lady who is residing very close to the scene of crime informed him that somebody had stabbed Rafeeq. He went to that place and found Rafeeq lying still in the courtyard of the mosque. He was injured. He met a person by name Moidu and in his Omni van, Rafeeq was taken to the hospital. 8. PW5 is an Usthad (teacher) of the Madrassa attached to the mosque. He deposed that on 14/10/2008 at about 6.20 p.m, Crl.Appeal (V) No.643/13 -:5:- Rafeeq had participated in the prayer. While he was standing in the premises of mosque after the prayers, he heard a hue and cry. When he went to the road, he saw Raffeeq lying on the side of Uliyathadukka road. Blood was oozing out from his belly and he was taken to the hospital in the Omni van belonging to Moidu. He saw three persons running away from the scene towards the eastern side. 9. PW6 is a person running a meat stall. He is familiar with Rafeeq as well as PW3. He deposed that two days prior to the occurrence, accused 1 to 3 and a few other persons had assaulted him and he sustained injuries. He was admitted in the hospital and thereafter he was taking rest. PW3 and Rafeeq had visited him on the said day and thereafter they proceeded towards the mosque. Later he heard a loud cry. He came out from the house and saw the 3[rd] accused holding on the body of Rafeeq and the second accused stabbing on the back side of the body. He also saw the first accused coming to the scene of occurrence with a knife. He shouted and on hearing the same, accused ran away. Rafeeq was thereafter taken to the hospital and later he came to know that Rafeeq died on account of the injury sustained by him. Crl.Appeal (V) No.643/13 -:6:- He also deposed that when he was assaulted by accused 1 to 3 two days prior to the date of occurrence, Rafeeq had interfered in the matter and that might be the reason for the enmity. 10. PW7 is a witness to Ext.P2 inquest report. PW8 is a witness to scene mahazar Ext.P3. PW9 is a witness to the recovery of MO1 knife at the instance of the second accused. Ext.P4 is the seizure mahazar. PW10 is the RMO, Carewell Hospital. He confirmed that Rafeeq was brought dead to the hospital at 7 p.m. Ext.P5 is the certificate. 11. PW11 is the Assistant Surgeon, Government General Hospital, Kasaragod who conducted autopsy. He opined that the death of the victim was on account of internal bleeding and injuries that were caused with a sharp edged weapon like MO1. Ext.P6 is the copy of the postmortem certificate. 12. PW14 was the Sub Inspector of Police who had recorded Ext.P1 FI statement and registered Ext.P1(a) FIR. PW15 has conducted investigation into the crime and had submitted the final report. 13. The only evidence regarding the incident is the oral testimony of PW3 and PW6. Crl.Appeal (V) No.643/13 -:7:- 14. In order to acquit the accused, Court below has placed reliance upon the following facts:- (i) PW3 and PW6 had animosity against the accused. Therefore, in the absence of examining other witnesses who had actually seen the occurrence, it is not safe to rely upon the testimony of PW3 and 6 for a conviction. Further PW3 and 6 were suppressing certain vital facts regarding the occurrence. (ii) Evidence of PW1 who was hostile to the prosecution reveals that the incident has taken place on the public road just in front of a shop building. (iii) Though PW6 claims that he has seen the incident from the courtyard of his house, he admits that there is a gate just in front of the house and therefore it is impossible for PW6 to have seen the incident. (iv) Recovery of MO5 on the basis of disclosure statement of A2 not believable. (v) Ext.P1(a) FIR was registered at 8.30 p.m on 14/10/2008. It was received in the Court only at 10.30 a.m on the next day. Crl.Appeal (V) No.643/13 -:8:- There is no explanation for the delay in registering the FIR. 15. Learned counsel for the appellant placed reliance upon the following judgments:- (i) _**Karan Singh v. State of Haryana and another**_ (decided on 28/5/2013 in Crl.Appeal No.1474/2010). In this case, Apex Court was considering the issue relating to faulty investigation. After referring to the judgments in _**Ram Bihari Yadav v. State of Bihar and others**_ (AIR 1998 SC 1850), _**Amar Singh v. Balwinder Singh and others**_ (AIR 2003 SC 1164) and _**Ram Bali v. State of Uttar Pradesh**_ (AIR 2004 SC 2329), it was held that omissions made on the part of the investigating officer where the prosecution succeeds in proving its case beyond any reasonable doubt by way of adducing evidence, particularly that of eye witnesses and other witnesses, would not be fatal to the case of the prosecution for the reason that every discrepancy present in the investigation does not weigh upon the Court to the extent that it necessarily results in acquittal of the accused, unless it is proved that the investigation was held in such a manner that it is dubbed as a dishonest or guided investigation which will exonerate the accused. It was therefore held that Crl.Appeal (V) No.643/13 -:9:- unless the lapses made by the investigating authorities are such, so as to cast a reasonable doubt on the case set up by the prosecution or it seriously prejudice the defence of the accused, the Court would not set aside the conviction of the accused merely on the ground of tainted investigation. (ii) _**Shyamal Ghosh v. State of West Bengal**_ [(2012) 7 SCC 646]. In this case, one of the questions was whether the Court could rely upon the evidence of interested witnesses. It was held at paragraphs 46, 47 and 49 as under:- _**“46.** Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW 8, PW 17 and PW 19. Similarly, there is some variation in the statement of PW 7, PW 9 and PW 11. Certain variations are also pointed out in the statements of PW 2, PW 4 and PW 6 as to the motive of the accused for commission of the crime. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the_ Crl.Appeal (V) No.643/13 ## -:10:- _prosecution._ _**47.** The variations pointed out as regards the time of commission of the crime are quite possible in the facts of the present case. Firstly, these witnesses are rickshaw pullers or illiterate or not highly educated persons whose statements had been recorded by the police. Their statements in the court were recorded after more than two years from the date of the incident. It will be unreasonable to attach motive to the witnesses or term the variations of 15-20 minutes in the timing of a particular event as a material contradiction. It probably may not even be expected of these witnesses to state these events with the relevant timing with great exactitude, in view of the attendant circumstances and the manner in which the incident took place.”_ _**“49.** It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.”_ ## (iii) _**Rana Partap v. State of Haryana**_ [(1983) 3 SCC 327]. This was also a case in which the Apex Court had occasion to observe that every person who witnesses a murder reacts in his Crl.Appeal (V) No.643/13 ## -:11:- ## own way. Paragraph 6 is relevant, which reads as under:- _**“6.** Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder 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. Every one reacts in his own special way. 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.”_ ## (iv) _**Baboolal v. State of U.P.**_ [(2000) 10 SCC 388]. In this case, the question was whether there is any lapse in investigation on account of the investigating officer not collecting the clothes of the persons which contain blood of the injured. It was held at paragraph 9 as under:- _**“9.** Learned counsel next contended that if the injured person had been carried in a rickshaw as stated by the witnesses the clothes of the carrier would have been soaked in blood. We do agree that there is such a_ Crl.Appeal (V) No.643/13 ## -:12:- _possibility. Want of evidence that the clothes of those persons contained blood does not mean that the injured would not have been carried from the place of occurrence to the hospital. That may be a lapse of the investigating officer to bring it to the Court. But that lapse is not sufficient to offset the creditability of the testimony of the eyewitnesses among whom included the injured Akbar Shah (PW 2).”_ 16. On the other hand, learned counsel appearing for respondents 2 to 4 placed reliance upon the following judgments:- (i) _**Bhaiyamiyan and Jardar Khan v. State of Madhya Pradesh**_ [(2011) 6 SCC 394].That was a case wherein appeal was filed against acquittal. It was held that if two views are possible and the Trial Court has taken one view, High Court should not interfere with the judgment of the Trial Court. ## (ii) _**Kailash Gour and Others v. State of Assam**_ [(2012) 2 SCC 34]. In this case, it was held that suspicion howsoever strong can never take the place of proof. Presumption of innocence of accused cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of investigation by the police. It was also observed that previous enmity between two parties is a double edged weapon. There will be motive on either side for Crl.Appeal (V) No.643/13 -:13:- denail of occurrence as also for false implication. (iii) _**Mahtab Singh v. State of U.P.**_ [(2009) 13 SCC 670]. This judgment is relied upon to emphasise that delay in filing FIR is fatal to prosecution. In this case, the FIR was lodged barely 45 minutes after the incident and the distance to the police station was hardly one furlong from the place of occurrence. The witness who had given the statement had gone to another person's residence for preparing a complaint. It was therefore held that, it creates doubt about the truthfulness of the prosecution case. In this case, the Apex Court also relied upon the judgment in _**Kalyan Singh v. State of MP**_ [(2006) 13 SCC 303] and a long line of judgments and held that the though the power of reviewing evidence is wide and the appellate Court can reappreciate the entire evidence on record, if the view taken by the Trial Court was possible as well as plausible, the reversal of acquittal by the appellate Court is uncalled for. 17. There is no doubt regarding the proposition of law which had been discussed in the judgments cited above. Primarily it has to be considered whether there is any perversity in the finding of fact by the Court below. As already observed, Court below did not Crl.Appeal (V) No.643/13 -:14:- rely entirely on the evidence of PW3 and PW6 who are the eye witnesses on the ground that they were having close association with the deceased and was on inimical terms with the accused. Therefore, the Court below thought that in the absence of any other evidence to corroborate their testimony, conviction cannot be based on their testimony alone. 18. First of all, it has to be examined whether PW3 and PW6 are to be believed as contended by the learned counsel for appellants. There is no dispute about the fact that Rafeeq was a close friend of PW3. PW3 while giving FI statement had not mentioned about the previous animosity between Rafeeq and the accused while interfering in an issue relating to PW6. Court below had made an observation that the incident in which PW6 was attacked by the accused is alleged to have happened on 12/10/2008 and Rafeeq was murdered on 14/10/2008. But no complaint was filed by PW6 against any of the accused and an FIR is registered only on 15/10/2008 as per Ext.D1. Court below observed that Ext.D1 FIR was registered only to prove the motive and it was done belatedly. The evidence of PW3 is that when accused together came towards them, 1[st] accused slapped Rafeeq Crl.Appeal (V) No.643/13 -:15:- on his face and the second accused stabbed him with a knife on his stomach. PW3 started to run away. At that time, first accused came behind him. He attempted to stab him with a knife. At that time, 3[rd] accused tried to get hold of his shirt to prevent him from running. He somehow wriggled out and ran away towards east. First accused chased him. He ran about 100 to 200 metres and when looked back, he did not see anyone. But he saw Rafeeq being stabbed by the accused which was on the western side of the junction. Thereafter, he did not go to that place. Some people from the junction came to the place where he was standing and he was told that Rafeeq was taken to the hospital on account of the injuries. In cross examination he has stated that he had not seen the incident by which PW6 had suffered injuries and the interference by Rafeeq and he had not mentioned about the said incident to the police. In cross examination he further stated that he saw Mani (A2) stabbing Rafeeq only once and that too while he was face to face. He also deposed that "ഒന�� പത� മണ� റഫ�ക�ന� കഴത�ന പ�ട�ച ന�ർത� ആണ കത�യത�. നനന" വയറ�ന കത�. ഇടത കക നക�ണ� കഴത�ന പ�ട�ച. വലത കകയ�ൽ കരത�യ കത� നക�ണ കത�. A1, A2 എന� പത�കളനട കയ�ൽ Crl.Appeal (V) No.643/13 -:16:- ഞ�ൻ കത� കണ�രന. ഞ�ൻ ഓടനത�ന മൻപ� 5,6 തവണ മണ� (A2) റഫ�ക�നന കത�യ�രന. അത� ഞ�ൻ കണ�രന.”. He further deposed that A2 Mani had inflicted several injuries on Rafeeq. However in further cross examination he admitted that he had not stated before police that the 2[nd] accused had stabbed Rafeeq several times. In further cross examination he deposed that when Raju tried to beat Rafeeq, he asked him not to do so but he had not stated that to the police. He also stated that he had not stated before police that he had gone to the hospital on the same day. The suggestion was that he was not present at the time when Rafeeq got injured. PW3 also deposed that Rafeeq got stabbed at two different places, one on the eastern side of the junction and the other on the western side of the junction. The following was the suggestion put to him: "റഫ�ക�നന ഒര തവണ പത� മണ� കതനത�യ� കണ എന പറഞതല�നത പ�ന�ട അയ�ൾ തനന റഫ�ക�നന കതനത�നയ� മറ പത�കൾ ആന"നയങ�ല� അയ�ന= കതനത�നയ� കണ എന ഞ�ൻ police-ൽ പറഞനക�ടതത�യ� ന"ഖന@ടത� ക�ണ�തത�നന കറ�ച പനതAക�ച ഒന� പറയ�ൻ ഇല.” 19. Coming to the evidence of PW6, he deposed that the incident occurred on 15[th] October 2008 at about 5.00-5.30p.m. He Crl.Appeal (V) No.643/13 -:17:- was taking rest being injured in an attack by the accused a few days back. After visiting him, Rafeeq and PW3 proceeded to the Mosque for prayers. He heard a sound from the road on the eastern side of his house. Somebody was shouting. He went to the courtyard and he saw 3[rd] accused holding Rafeeq and the 2[nd] accused hitting him with a knife on his back. He saw the first accused coming with a knife from the side of transformer. When he shouted, accused ran away from the place. When he reached the scene of occurrence, other people also came. Some of them took him to the mosque and from there he was taken to the hospital. In cross examination, he stated that he had given information to the police about the incident in which he was attacked by the accused and his statement was recorded. He had injury on his eye and thereafter he came home. He admitted in cross examination that he had signed Ext.D1 FIR in Crime No.715/2008 wherein he was the complainant. In the FIR it was stated that there were about 20 assailants. He however admits that he had not stated to the police that it was on account of the involvement of Rafeeq in which he was injured that the accused had a motive to commit murder of Rafeeq. According to him, Crl.Appeal (V) No.643/13 -:18:- Rafeeq was not seen at the time when he was attacked. In cross examination he stated that he cannot say as to how may injuries were inflicted by the second accused. He stated that first accused had stabbed Rafeeq once. That was at the time when Rafeeq was already lying on the ground. When he came out to the road, he saw Rafeeq in severe pain. He cried aloud and the people came. 20. It is true that PW3 and 6 were close associates of the deceased. PW6 of course had an axe to grind against the accused since he was assaulted by the accused a few days before the present incident. But as far as PW3 is concerned, he is a friend of Rafeeq, the deceased. It is also true that one of the witnesses has turned hostile to the prosecution especially PW1. She was an eye witness put up by prosecution, but when she was examined, she deposed that she does not know the deceased nor the accused. But she states that Rafeeq was wounded and killed and she was present in the shop at the crucial time. Another eye witness was PW2. He also deposed that when he reached the scene of crime, he saw Rafeeq lying with bleeding injuries. Court below observed that since PW3 and 6 were close associates of the deceased, it is not safe to rely upon their testimony. However, the argument of Crl.Appeal (V) No.643/13 -:19:- the accused was that there are a number of contradictions in their evidence which are sufficient to conclude that the evidence was unworthy of credence. Despite having considered the aforesaid point, Court below having not found out any contradiction or discrepancy, observed that the evidence of PW3 and PW6 that they have seen the accused assaulting the deceased is not genuine. That apart, the Court below observed that there is no corroboration for the evidence of PW3 and PW6. When the Court below clearly observes that some corroboration is required to the evidence of PW3 and 6, who are eye witnesses to the crime, and it is a plausible view, we do not think that a different view can be taken in the matter. 21. The second accused had given a disclosure statement Ext.P4 based on which MO5 knife was recovered. The Court below found that there was no incriminating article recovered based on any disclosure statement of accused 1 and 3. According to the defence, disclosure statement made by the 2[nd] accused was manipulated for the purpose of the case. Court below found that the offence was committed on 14/10/2008 and the accused were arrested three days after the offence from a place named Crl.Appeal (V) No.643/13 -:20:- Mayippadi which was 1 or 2 kms away from the scene of crime. They were arrested at 5.00 pm and brought before the Magistrate at 5.30 pm and remanded to judicial custody. It is observed that in the remand report there is reference about the accused having made a disclosure statement to PW15 about the concealment of the weapon and disposal of the wearing apparels soon after commission of the crime. But no materials were recovered based on the said disclosure statement. The accused were in judicial custody and were released for two days. In the report filed by PW15 before the learned Magistrate on 25/10/2008, he refers to the disclosure statement made by the 2[nd] accused based on which MO5 weapon was recovered. It was found that from a combined reading of the remand report submitted before the learned Magistrate and also the report filed by PW15 when he brought back the accused to the Court on 25/10/2008, it is rather evident that the recovery of MO5 had been manipulated for the purpose of the case since the investigating officer had information regarding concealment of the articles, even while the accused was in their custody earlier and no steps were taken for recovery of either the weapon or the wearing apparels. Further, the Crl.Appeal (V) No.643/13 -:21:- disclosure statements said to have been made by accused 1 and 2 were not seen brought before Court in order to prove the bonafides. Therefore, the Court below found that even the recovery of the weapon smacks absence of bonafides and cannot be relied upon for the purpose of proving the complicity of the accused. 22. Yet another reason for acquitting the accused is the delay in registering the FIR. The crime was committed at 6.40 p.m. and the FIR was registered at 8.30 p.m on 14/10/2008. It was received in the Court only on 15/10/2008 at 10.30 a.m. In the FIR, the names of the accused have been mentioned. The Court below had observed that when PW3 has no prior acquaintance with the accused, it might be an instance where the FIR was deliberately delayed and there is no explanation from the side of the police in not reaching the FIR to the Magistrate within a reasonable time. 23. It is true that a person had been murdered. But unfortunately the evidence in the case was not satisfactory to convict the accused and the Court below had found several infirmities on account of which the accused had to be given the Crl.Appeal (V) No.643/13 ## -:22:- benefit of doubt. Taking into account all these facts, we are of the view that there is no reason to interfere with the judgment of the Trial Court. Appeal is therefore dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.P.JYOTHINDRANATH, JUDGE** Rp //True Copy// PS to Judge