Baiju @ Kunjukuttappan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936 CRL.A.No. 832 of 2009 (D) -------------------------- SC 459/2007 of SESSIONS COURT,THRISSUR APPELLANT(S)/7TH ACCUSED: ------------------------------------ BAIJU @ KUNJUKUTTAPPAN, S/O.KUTTAPPAN, PALOLI VEEDU, PALAKKAPPARAMBU, KALLUR. BY ADVS.SRI.PEEYUS A.KOTTAM SRI.S.DILEEP (KALLAR) SRI.KURIAN JOSEPH SRI.NAVEEN THOMAS SRI.A.H.NAJMAL SRI.M.A.SHIHAB SRI.RENJITH THOMAS ## RESPONDENT(S)/COMPLAINANT AND STATE: --------------------------------------------------- STATE OF KERALA, REP.BY CIRCLE INSPECTOR OF POLICE, PUTHUKKAD POLICE STATION TRICUR (INVESTIGATING OFFICER IN CRIME NO.153/2003)REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, COCHIN 682 031. BY ADV. PUBLIC PROSECUTOR SRI.K.K.RAJEEV. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2014 ALONG WITH CRA. 928/2009 AND CONNECTED CASES, THE COURT ON 20.9.2014 DELIVERED THE FOLLOWING: ## **THOTTATHIL B.RADHAKRISHNAN** ## **&** ## **P.B.SURESH KUMAR, JJ.** ## **-----------------------------------------------** **Crl. Appeal Nos.832 of 2009, 928 of 2009, 1874 of 2009, 2171 of 2009 and 1117 of 2013** ## **----------------------------------------------Dated 20[th] September, 2014.** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** These matters arise out of the judgment in S.C.No.459 of 2007 on the file of the Court of Session, Thrissur. The subject matter of the said case was an occurrence took place on 29.01.2003, in which one Inus Antony died and one Benny was seriously injured. There were altogether 13 accused in the said case. Crl.Appeal No.832 of 2009 is by accused No.7, Crl.Appeal No.928 of 2009 is by accused Nos.5 and 11, Crl.Appeal No.1874 of 2009 is by accused No.3, Crl.Appeal No.2171 of 2009 is by accused Nos.2 and 6 and Crl.Appeal No.1117 of 2013 is by accused Nos.9 and 12. 2. The appellants have been found guilty and convicted for the offences punishable under Sections 143, 148, 307 and 302 of the Indian Penal Code, hereinafter, referred to Crl.Appeal No.832/09 & connected cases 2 as 'the IPC', for short and for the offence punishable under Section 27(1) of the Arms Act. They were sentenced to undergo rigorous imprisonment for a period of six months each for the offence punishable under section 143 of the IPC. They were also sentenced to undergo rigorous imprisonment for a period of three years each for the offence punishable under Section 148 of the IPC. They were further sentenced to undergo rigorous imprisonment for a period of 8 years and pay a fine of Rs.5,000/- each for the offence punishable under Section 307 of the IPC. They were further sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/each for the offence punishable under Section 302 of the IPC. They were further sentenced to undergo rigorous imprisonment for a period of three years and pay a fine of Rs.2000/- each for the offence punishable under Section 27(1) of the Arms Act. Default sentences were also imposed on the accused. 3. On 26/01/2003, a quarrel took place between accused No.1 and the deceased, in the course of a music programme in connection with the festival of Kalloor West Church. The said quarrel developed an enmity in the mind of accused No.1 and the other accused, who are his close 3 Crl.Appeal No.832/09 & connected cases associates, towards the deceased, which transformed into a common object to do away with the deceased and his friend, Benny. According to the prosecution, in furtherance of the said common object, on 29/1/2003, the accused formed themselves into an unlawful assembly, armed with deadly weapons like swords, country bombs etc., came near the toddy shop at the place called Palakkaparambu and while the deceased and the Benny were proceeding from the toddy shop to get into an autorickshaw parked on the road, accused No.1 hurled a country bomb towards them, causing a huge explosion. It is alleged that the deceased became frightened on account of the explosion and ran towards Palakkaparambu junction. Accused Nos.3, 5, 6 and 9 then rushed towards Benny, surrounded him on the road, and inflicted injuries on him with the swords carried by them. In the meantime, the remaining accused ran behind the deceased and inflicted injuries on him also with the swords carried by them. It is also alleged that in the course of the attack, Benny could manage to snatch away one of the swords from the assailants. Then the accused who have attacked Benny turned away and ran towards the place where the deceased was being attacked by the other accused and Crl.Appeal No.832/09 & connected cases **==> picture [7 x 9] intentionally omitted <==** joined them in attacking the deceased. According to the prosecution, after the occurrence, Benny went to the nearby junction in a Motorbike, got into a taxi and proceeded to his house. Later, he was taken to the Heart Hospital, Thrissur for tratment. In the meanwhile, a police party on patrol duty, reached the scene and when they saw the deceased lying with fatal injuries on the road, they took him to the Medical College Hospital, Thrissur and he succumbed to the injuries on the way to the Medical College Hospital, Thrissur. 4. On the basis of the information furnished by the father of the injured Benny, a case was registered under Sections 143, 147, 148, 324, 307 and 302 of the IPC, read with Section 149 of the IPC, Section 27 of the Arms Act and Section 3 of Explosive Substances Act and PW16 commenced the investigation. Later, PW17 and then PW18 continued the investigation and PW19 completed the investigation and laid the final report. 5. Accused No.1 died and accused No.13 absconded during the committal proceedings. Accused Nos.2 to 12 were accordingly committed to trial. Accused Nos.4 and 10 have Crl.Appeal No.832/09 & connected cases 5 absconded and accused No.8 died after the committal of the accused for trial. As such, the remaining accused namely accused Nos.2, 3, 5, 6, 7, 9, 11 and 12 alone were available for trial. 6. On appearance, charge was framed against the accused for the offences punishable under Sections 143, 147, 148, 307 and 302 of the IPC, read with section 149 of the IPC, Section 27 of the Arms Act and Section 3 of the Explosive Substances Act. When the charge was read over and explained, the accused pleaded not guilty. The prosecution, thereupon, examined 19 witnesses as PW1 to PW19, marked 28 documents as Exts.P1 to P28 and caused identification of 8 material objects as Mos.1 to 8, to establish the guilt of the accused. In the course of the proceedings, Exts.D1 to D4 case diary statements of the witnesses were also marked at the instance of the accused. 7. After the evidence of the prosecution, when the accused were questioned under Section 313 of the Code of Criminal Procedure concerning the incriminating circumstances appearing against them, they denied those circumstances and maintained that they are innocent. Since this was not a case Crl.Appeal No.832/09 & connected cases **==> picture [7 x 9] intentionally omitted <==** of no evidence for the prosecution, the accused were called upon to enter on their defence. The accused, however, chose not to adduce any evidence. 8. The Court of Session, on an appraisal of the materials on record, found that accused Nos.2, 3, 5, 6, 7, 9, 11 and 12, who were members of an unlawful assembly, committed the murder of the deceased and attempted to commit the murder Benny, in prosecution of their common object. The Court of Session also found that the said accused have committed the offence punishable under Section 5 of the Arms Act. As far as the offence under Section 3 of the Explosive Substances Act, the Court of Session found that the charge of the said offence was abated on the death of accused No.1. Accordingly, the Court of Session held that accused Nos.2, 3, 5, 6, 7, 9, 11 and 12 are guilty of the offences punishable under Sections 143, 147, 148, 307 and 302 of the IPC read with Section 149 of the IPC and Section 27(1) of the Arms Act. 9. The issue arises for consideration is whether accused Nos. 2, 3, 5, 6, 7, 9, 11 and 12 are guilty of the offences punishable under Sections 143, 147, 148, 307 and 302 7 Crl.Appeal No.832/09 & connected cases of the IPC, read with Section 149 of the IPC and Section 27(1) of the Arms Act. 10. We have heard the Senior Counsel Sri.P.Vijaya Bhanu for accused Nos.9 and 12, Senior Counsel Sri.Gracious Kuriakose for accused Nos.3, 5 and 11, Adv.Sri. Lal.K.Joseph for accused Nos.2 and 6, Adv.Sri.Peeyus A Kottam for accused No.7 and Sri.K.K.Rajeev, the Public Prosecutor for the State. 11. The Ante-mortem injuries noted on the body of the deceased by PW12, the doctor who conducted the postmortem, as recorded in Ext.P6 Post-mortem certificate read thus: 1.Incised wound 10x1.8xbone deep horizontally placed on the right side of head with its front end 4.1cm above right ear. There was a cut on the right parietal bone 7.5 cm long inner end outer table of right parietal bone. The dura was found cut 4x0.2 cm underneath. There was a cut 4x0.5x1 cm on the right parietal lobe underneath. 2. Incised wound 9.1cmx1.3cm bone deep on the right side of head bone deep. Its back portion was merging with the injury No.1. 3. Incised wound 9.5x1.5xbone deep on the right side of head horizontal with its front end 2.5 cm above right ear. There was a cut 7 cm long on the inner and outer table of right parietal bone. The dura was found cut underneath 4.5x0.5cm. There was a cut 4x0.5x1.2cm on the right parietal lobe underneath. There was subdural clot 7x6x0.5 cm on the right parietal lobe. There was subarachanoid Crl.Appeal No.832/09 & connected cases 8 haemorrhage on the right cerebral hemisphere. 4. Incised wound 17.9x3.4x2.8cm on the lower part of right side of head, right ear lobule and right side of face. It had cut the muscles, underneath and the maxilla. 5. Incised wound 11xbone deep on the right side of head and right temple vertically placed with its lower end touching the tragus of right ear. 6. Incised wound 5x0.4cm on the pinna of right ear. 7. Incised wound 13x5cm on the back of head muscle deep horizontally placed with its lower margin 4.3cm above the hair margin. 8. Linear abrasion 5x0.5 cm on the right shoulder 6cm outer to the root of neck. 9. Incised wound 6.3x3.4cm on the top of contour of right shoulder bone deep. There was a cut 3.4 cm long on the greater tuberale of right humerus. 10. Linear abrasion 6x0.4cm on the contour of right shoulder 1cm below injury No.9. 11. Linear abrasion 6x0.5cm on the outer aspect of right upper arm 15cm above elbow. 12. linear abrasion 7.2x0.6 cm on the front of right upper arm 3.5cm above right elbow. 13. Incised wound 8x3.5x3cm on the medial aspect of right elbow; the elbow joint was found exposed. 14. Graze abrasion 18x7 cm on the medial aspect of right forearm. 15. Incised wound 1.6x0.5cm on the back of right forearm 4cm below elbow. 16. Incised wound 6x3.5x2cm on the back of right wrist. The lower ends of ulna and radius and the muscles vessels and tendons on the posterior aspect of wrist joint were found cut underneath. 17. Linear abrasion 4x0.6cm on the back of right palm 2cm Crl.Appeal No.832/09 & connected cases 9 below wrist. 18. Incised wound 2x0.4 cm on the tip of right big toe. 19. Incised wound 1.8x0.4cm on the tip of right ring finger. 20. Incised wound 3.7x2cm on the right thigh on its lateral aspect 6cm below iliac crest. There was tailing 2x0.5cm long from the lower end of the incised wound. 21. Incised wound 18x5x5cm on the lateral aspect of right thigh 2cm below injury No.20. The muscles of the lateral aspect of thigh were found cut underneath. 22. Abrasion 8x4cm on the front of right knee. 23.Linear abrasion 4.5x0.6cm on the lateral aspect of right leg 16cm below knee. 24. Linear abrasion 8.2x0.5cm on the lateral aspect of right leg 6.5cm below injury No.23. 25. Incised wound 10x3x2.5cm on the lateral aspect of right leg 5cm below injury No.24. 26. Linear abrasion 9x0.6cm on the medial aspect of left leg 18cm below left knee. 27. Abrasion 28x10cm on the lateral aspect of left thigh 11cm below iliac crest. 28. Linear abrasion 20x0.4cm oblique on the front of left side of abdomen 8cm above left iliac crest. 29. Incised wound 4.5x4cm on the back of left elbow. 30. Abrasion 16x4cm on the medial aspect of left forearm. 31. Incised wound 6x5.5x2cm on the front of left wrist. The lower ends of left ulna and radius the tendons and the vessels at the wrist were found cut underneath. 32. Incised wound 2.5x0.5cm on the back of left thumb. 33. Linear abrasion 1.6x0.5cm on the back of web space between left thumb and index finger. ## PW12 testified that the deceased died due to the incised 10 Crl.Appeal No.832/09 & connected cases wounds sustained to his head. According to PW12, injury Nos.1 and 3 in Ext.P6 are sufficient in the ordinary course of nature to cause death. He also testified that injury Nos.4, 9, 16 and 31 are injuries, which would expedite the death. It is thus established that Inus Antony died due to the incised wounds sustained to his head. 12. Ext.P7 is the file containing the case sheets of Heart Hospital, Thrissur pertains to the treatment of Benny, who was examined as PW1. Ext. P8 is the wound certificate issued from Heart Hospital, Trissur to PW1., The aforesaid documents would indicate that PW1 sustained the following injuries:- 1. Extensive incised wound 13x3x5cm on the left scapular region. Profuse bleeding present. 2. Extensive incised wound on the left temporal region 8x3x3cms of scalp deep and bleeding present. 3. Incised wound 3x2cm over right chin. 4. Incised wound on right arm lateral aspect - 4x2x3cm. Bleeding present. 5. Incised wound on right forearm 2x2cm. 6. Lacerated wound left thenar aspect of palm. 7. Avulsion of skin in two places of left hand 4x3cm. 8. Incised wound on face left side 3x2x1cm. 11 Crl.Appeal No.832/09 & connected cases The cause of injury of PW1 is noted in Ext P8 as “assault at Palakkaparambu centre at 5.30 PM on 29/1/2003” It is thus established that PW1 sustained the injuries referred to above in the occurrence which is the subject matter of these cases. 13. The fact that there was an attack on Inus Antony and Benny on the relevant day at the relevant time by a group of more than 5 persons is not seen disputed by the accused. The fact that Inus Antony died and Benny sustained serious injuries in the said attack is also not disputed. The charge against the accused is that with the common object of committing the murder of Inus Antony and Benny, they formed themselves into an unlawful assembly and in prosecution of the said common object, they inflicted injuries on the deceased and Benny with deadly weapons. Section 149 creates a constructive liability on the members of an unlawful assembly for the unlawful acts committed pursuant to the common object by any member of that assembly. The basis of the constructive guilt is, the membership of the unlawful assembly, with the requisite common object or knowledge. As such, in a case involving an unlawful assembly, the court is not expected to Crl.Appeal No.832/09 & connected cases **==> picture [13 x 9] intentionally omitted <==** see as to who actually did the offensive act or require the prosecution to prove which of the members of the assembly did which of the offensive acts. [See **Lalji and others v. State of U.P.** [(1989)1 SCC 437)]. It is now fairly settled that for a member of an unlawful assembly, having a common object, what is to be seen is as to whether there was any active participation or presence at the scene of occurrence with an active mind. [See **Ramachandran v. State of Kerala** , [(2011)9 SCC 257]. In the light of the aforesaid principles, what is to be seen in this case is whether the accused, who faced the trial have actively participated in the attack or were present at the scene of occurrence with an active mind. 14. Benny gave evidence as PW1. He deposed that on the relevant day, while he was coming out of the toddy shop at Palakkaparambu with the deceased and the autorickshaw driver Sajeev, the accused came together to that place. He stated that, pointing out him, accused No.10 told other accused that he is Benny and on hearing it, accused No.1 hurled a country bomb, causing a huge explosion. PW1 stated further that then accused Nos.3, 5, 6 and 9 came towards him and inflicted injuries on him with the swords carried by them Crl.Appeal No.832/09 & connected cases **==> picture [13 x 9] intentionally omitted <==** throughout his body, including the one on the left side of his head. In the meanwhile, the deceased became frightened and ran towards Palakkaparambu junction. The remaining accused then ran behind the deceased and inflicted injuries on him also with the swords carried by them and near the Ayurvedic shop of PW2, the deceased fell down on the road. According to PW1, while he was being attacked, he could manage to snatch one of the swords carried by the assailants and then accused Nos.3, 5, 6 and 9 turned towards the deceased and joined with the other accused in attacking him. PW1 stated that he then rushed towards the deceased and when the accused saw him, they flee away from the scene. PW1 has identified MO1 sword as the weapon used by accused No.3. He also identified MOs 2 and 3 as the weapons used by the assailants to inflict injuries on the deceased. According to PW1, accused Nos.2, 3, 5, 6, 8, 9, 11 and 12 were known to him prior to the occurrence as they used to come to Palakkaparambu frequently in the company of accused No.1. PW1 has identified accused Nos 2, 3, 5, 6, 9, 11 and 12, when he was asked to identify them in court. PW2 was the owner of the Ayurvedic Medical shop on the side of the road at 14 Crl.Appeal No.832/09 & connected cases Palakkaparambu junction. PW2, however, turned hostile to the prosecution. 15. PW3 is an autorickshaw driver, who knows both PW1 and the deceased. Though PW3 could not give evidence as to the overt acts of individual accused, he categorically stated that on the relevant day at the relevant time, while he was coming back from a place called Parekkad in his auto, he saw the occurrence, as stated by PW1. PW3 deposed that accused Nos. 2, 3, 5, 6, 7, 9, 11 and 12 were among the assailants and accused Nos.3, 6, 9 and 12 were the persons who have attacked PW1. He also identified MO1 sword as the weapon used by accused No.3 to inflict injuries on PW1 and MOs 2 and 3 as the weapons used by others. PW3 confirmed the presence of the autorickshaw along with the deceased and PW1, when they came out of the toddy shop. PW3 also clarified that he could see the occurrence from the premises of the nearby property where the construction of a building was going on at the relevant time. PW4 was conducting a tea shop at the place called Padamvazhi at the relevant time. PW1 and the deceased were also known to PW4. PW4 also gave evidence in tune with the prosecution case in so 15 Crl.Appeal No.832/09 & connected cases far as the occurrence is concerned. According to him, he witnessed the occurrence from the nearby property. PW4 identified accused Nos.3, 6, 7 and 9 among the assailants. PW7 was another eye witness. He also gave evidence almost in tune with the prosecution case. According to him, accused Nos.2, 3, 5, 6, 7, 9 and 12 were among the assailants present at the scene of occurrence to attack the deceased and PW1. He stated that he saw the occurrence by hiding behind an STD booth. 16. PW1 has identified accused Nos.2,3,5,6,9,11 and 12 in court as the persons among the assailants who have attacked him and the deceased at the scene of occurrence on the relevant day. He has also named accused Nos.1, 10 and 13 in his deposition. PW3 has identified accused Nos. 3,6, 9 and 12 in court as the persons who have attacked PW1. He also stated that the remaining accused who are present in court were also there among the assailants to attack the deceased. PW4 has identified accused Nos.2,3,6,7 and 9 by their names. PW4 has also stated that accused Nos.1, 8 and 10 were known to him. PW4 has stated further that he had prior acquaintance with the said accused. PW7 has identified all the accused who 16 Crl.Appeal No.832/09 & connected cases were in the dock, by their names. In addition, he stated that accused Nos.1,4, 8,10 and 13 were known to him. 17. Further, Ext.P4 is the mahazar prepared, while effecting recovery of Mos.1 to 3 swords, based on the disclosure made by accused No.2. Ext P4(a) is the disclosure statement of accused No.2 that he has concealed Mos. 1 to 3 swords at the place referred to in Ext.P4 mahazar. PW6 is the witness to Ext.P4 mahazar. PW6 has identified accused No.2 in court. He has also identified Mos.1 to 3 swords. Though PW6 was cross-examined, nothing was brought out to discredit his evidence. PW12, the doctor who conducted the post mortem examination of the body of the deceased, gave evidence that the injuries noted on the body of the deceased could be inflicted with Mos.1 to 3 weapons. The recovery effected as per Exts.P4, therefore, corroborates the oral evidence tendered by the witnesses as to the complicity of accused No.2 in the crime. In the light of the aforesaid evidence, it was established that accused Nos.2, 3, 5, 6, 7, 9, 11 and 12 were among the assailants present at the scene of occurrence to attack the deceased and PW1 on the relevant day, with an active mind and all of them participated actively in the occurrence. The 17 Crl.Appeal No.832/09 & connected cases prosecution has, therefore, established that accused Nos.2, 3, 5, 6, 7, 9, 11 and 12 were members of the unlawful assembly, who have attempted to commit the murder of PW1 and committed the murder of the deceased on the relevant day as alleged by the prosecution. The evidence tendered PW7 is attacked on the ground that the deceased is an active worker of DYFI, the youth wing of the political party, CPI(M) and PW7 is an active worker of the said political party and therefore, PW7 is interested in the deceased. The accused have no case that PW7 is inimical towards the accused. As such, merely for the reason that PW7 and the deceased belong to the same political group, it cannot be contended that PW7 is interested in the conviction of the accused. It is to be mentioned in this context that in cases of this nature, only persons who are interested in the victim would come forward to give evidence. As such, there is no basis for the contention that the evidence tendered by PW7 cannot be acted upon. The evidence tendered by Pws.1,3, 4 and 5 was attacked on the ground that the evidence tendered by the said witnesses are not consistent with each other. True, there were minor variations in the evidence tendered by the witnesses referred to above and the said 18 Crl.Appeal No.832/09 & connected cases variations, in a case of this nature, will not affect the prosecution case at all. The Court of Session found on the facts that Mos. 1 to 3 weapons used by the accused for inflicting injuries on the deceased and PW1 are not weapons designed for domestic, agricultural and industrial purposes and therefore, those are arms within the meaning of Section 27(1) of the Arms Act, 1959 and that the accused are, therefore, contravened the provisions of Section 5 of the Arms Act, 1959. There was no challenge at all to the said finding rendered by the Court of Session. It is thus established that the accused have committed the offences punishable under Sections 143, 147, 148, 307 and 302 of the IPC read with Section 149 of the IPC and Section 27(1) of the Arms Act. 18. The learned counsel for the accused, at the outset, contended that though the occurrence was informed to PW16, the investigating officer, immediately by PW8, the crime was registered and investigation commenced only on the next day and as such, the very genesis of the prosecution case belies and the same cannot be acted upon to convict the accused. In the context of this argument, the learned Public Prosecutor has pointed out that PW8, who took the deceased to 19 Crl.Appeal No.832/09 & connected cases the Medical College Hospital came back to the Police Station and made an entry in the General Diary maintained at the Police Station, which is called for and admitted in evidence as Ext.P20. According to him, the same can be treated as the first information report in this case and therefore, the delay on the part of PW16 in registering the crime is not fatal to the prosecution at all. Ext.P20 shows that at 11.30 p.m. on 29.1.2003, PW8 had made an entry in the General Diary to the effect that on the said day, when he reached Palakkaparambu, while on patrol duty, he found the deceased lying on the road with injuries on his body and he took him to the Thrissur Medical college in the police jeep and at the Medical College, the doctor has informed him that the deceased was brought dead. The entry in the General Diary also indicates that PW1 also sustained injury in the occurrence took place at Palakkaparambu and he is admitted at the Heart Hospital, Thrissur. The entry in the General Diary further indicates that PW8 had informed the occurrence to PW16, over wireless. It is true that PW16 should have registered a crime when he got information regarding the occurrence from PW8 over wireless and there is laches on his part in registering the crime as Crl.Appeal No.832/09 & connected cases **==> picture [13 x 9] intentionally omitted <==** contemplated by law. Though Ext.P20 entry in the General Diary does not indicate any information as to the cause of the death of the deceased and the cause of the injuries sustained by PW1, it contains the earliest possible information about the occurrence that the deceased was lying in a pool of blood on the road near the toddy shop at Palakkaparambu, having sustained injuries on his body. It is settled that a first information report need not disclose all facts and details relating to the offence reported. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable case. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery to collect all necessary evidence, and thereafter, to take action in accordance with law. As far as this case is concerned, the information furnished by PW8 provides the reason to suspect the commission of the offence and therefore, it serves the purpose of a first information report. It is settled that criminal justice should not be made a casualty for the wrongs committed by the investigating officers. If the Crl.Appeal No.832/09 & connected cases **==> picture [13 x 9] intentionally omitted <==** court is convinced that the testimony of the witnesses as to the occurrence is true, the court is free to act upon it albeit the investigating officer's suspicious role. In the instant case, as we found that the testimony of Pws.1,3,4, 5 and 7 as to the occurrence is reliable, the delay on the part of PW16 in registering the crime does not affect the prosecution case at all, especially when an earliest version of the occurrence has been entered in the General Diary attached to the concerned police station. 19. The learned counsel for the accused then contended that in the nature of the present case, a test identification parade should have been conducted by the investigating agency to ensure the correctness of the identity of the accused. When the accused were not previously known to the witnesses, the test identification parade serves to satisfy the investigating officers of the bonafides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. However, in a case where the accused were known to the witnesses, the test identification parade serves no purpose. In this case, as found by us earlier, PW1 has categorically deposed that all the accused are known to him. 22 Crl.Appeal No.832/09 & connected cases Likewise, PW3 has identified accused Nos.3, 6, 9 and 12 by their names. PW3 has also stated that they used to travel in his autorikshaw along with accused No.1. PW4 has identified accused Nos.2, 3, 6, 7 and 9 by their names. In the cross examination of the witnesses, there was no suggestion at all from the accused that the accused are not previously known to the witnesses. We are, therefore, of the view that the want of test identification parade has not affected the prosecution case in any manner. 20. The learned Senior Counsel Sri.Gracious Kuriakose contended that it has come out in evidence that the arrival of PW1 and the deceased at the toddy shop was not preplanned and therefore the said fact, together with the recovery of two unexploded bombs from the scene and the injuries sustained by accused No.1 to his hand would indicate that the occurrence is not as alleged by the prosecution. According to him, in all probability, PW1 and the deceased would have been the aggressors and the accused were only defending themselves and therefore, even if they have done something in exercise of their right of private defence, they cannot be found guilty of the offences attributed against them. According to 23 Crl.Appeal No.832/09 & connected cases him, the instant case, at best, could only be a case of free fight, in which individual overt acts will have to be established to find each person guilty. He has relied on the decision of the Apex Court in **Periasami and another v. State of T.N.** [1997 SCC (Crl) 121]. To buttress the said argument, the learned counsel has also pointed out that possession of weapons by all the accused was not established as only three swords were produced before the court, which according to him, would show that only some among the accused were armed, which might not have been known to others. It was pointed out that in the absence of specific evidence regarding individual overt acts and the identity of the persons who have attacked the deceased, all the accused cannot be found guilty under Section 302 read with Section 149 of the IPC. 21. There is nothing on record to indicate that any of the accused were present at the scene before the arrival of the deceased and PW1, along with the auto driver, Sajeev. Going by the evidence, it is only probable to think that the accused have come to the scene of occurrence together, on getting information about the presence of the deceased and PW1. There is nothing on record to infer that the deceased and Crl.Appeal No.832/09 & connected cases **==> picture [13 x 9] intentionally omitted <==** PW1 has brought the unexploded country bombs to the scene. The evidence would only indicate that accused No.1 has hurled the country bomb at the scene. There is nothing on record to infer that somebody else threw bomb on accused No.1, as pointed out by the counsel. Further, as found earlier from the materials on record, it is evident that all the accused were present at the scene with an active mind and they actively participated in the occurrence. As such, we do not, therefore, find any merit in the arguments advanced by the learned Senior Counsel. 22. The learned counsel for the appellants in Crl.Appeal No.2171 of 2009 has contended, relying on the decisions of the Apex Court in **Abdulwahab Abdulmajid Baloch v. State of Gujarat** [(2009) 11 SCC 625], **Biju v. State of Kerala** [2012(4) KLT 382] and **State of Punjab v. Dalbir Singh** [(2012) 3 SCC 346] that when the investigation is carried on perfunctorily and when the prosecution evidence creates suspicion, the accused are entitled to the benefit of doubt. We have perused the decisions relied on by the learned counsel and we find that the said decisions are essentially decisions on the facts of the respective cases. The said Crl.Appeal No.832/09 & connected cases **==> picture [13 x 9] intentionally omitted <==** decisions, in the circumstances, may not have any application to the facts of the present case. In these facts and circumstances, there is no merit in the Criminal Appeals and the same are, accordingly, dismissed. Sd/- ## **THOTTATHIL B.RADHAKRISHNAN, JUDGE** . Sd/- **P.B.SURESH KUMAR, JUDGE.** (true copy) tgs/smv