Biju Kunnamkandy and Others v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 CRL.A NO. 1083 OF 2015 ``` ``` CRIME NO.75/2014 OF Peruvannamuzhy Police Station, Kozhikode AGAINST THE JUDGMENT IN SC 1370/2014 OF SESSIONS COURT (SPECIAL ADDITIONAL SESSIONS COURT (MARADU CASES), KOZHIKODE ``` ## **`APPELLANT/ACCUSED NO.1 TO 10:`** - `1 BIJU KUNNAMKANDY (HOUSE), MUTHUKAD, CHAKKITTAPPARA` - `2 C K PRAMOD CHERUVATHU KUNIYIL HOUSE, MATHUKADU 2ND BLOCK` - `3 SHIJU R RARATTUMMAL (HOUSE), MUTHUKADU, 2ND BLOCK` - `4 JYOTHISH EDAVANAKKANDI (HOUSE), MUTHUKAD, 3RD BLOCK` - `5 IRSHAD` - `KAROL HOUSE, MUTHUKAD, 2ND BLOCK` - `6 SHIJI T K THANIKANDI, MUTHUKAD, 3RD BLOCK` - `7 RIJITH P K PANANTE KANDI (HOUSE), MUTHUKADU, CHENKOTTUKOLLIL, 1/2 ACRE COLONY` - `8 AJEESH V A VEETTIYULLA PARAMBIL, MUTHUKADU, POTTASSERY MUKKU` - `9 RAMILESH P. M., PADINHARYIL MEETHAL (HOUSE) MUTHUKKAD, CHENKOTTUKOLLIL, 1/2 ACRE COLONY` - `10 RAJIN LAL VALIYAPARAMBIL (HOUSE), MUTHUKAD, 4TH BLOCK` ``` 2 ``` ## **`CRL.A NO. 1083 OF 2015`** ``` BY ADVS. ``` ``` P.K.VARGHESE P.S.ANISHAD ANISH PAUL K.R.ARUN KRISHNAN P.T.MANOJ SANJANA RACHEL JOSE ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, 682031` - `2 SUB INSPECTOR OF POLICE, PERUVANNAMUZHI POLICE STATION KOZHIKODE 687641` ``` ADDL.3JIJO THOMAS VATTOTH HOUSE, MUTHUKADU.P.O., KOZHIKODE IMPLEADED AS ADDL.3RD RESPONDENT AS PER THE ORDER DATED 08.12.2017 IN CRL.M.A NO.6418/2017 ``` ``` BY ADVS. ``` ``` SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN SRI.RANJIT GEORGE – SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON 07.04.2022 DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1083 OF 2015 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the accused Nos.1 to 10 in S.C. No.1370/2014 on the file of Additional Sessions Court, (Marad Cases), Kozhikode. The aforesaid case arises from Crime No.75/2014 of Peruvannamuzhi Police Station. The said case was registered against the appellants herein, and another for the offences punishable under Sections 143, 147, 148, 447, 341, 323, 324, 326, 307, 506 read with Section 149 of the Indian Penal Code. 2. The prosecution case is as follows: On 18.03.2014 at 5.30 p.m., all the accused ( Appellants herein and accused No 11) formed themselves into an unlawful assembly with a common object to commit or for attempting to cause the murder of CW1, with deadly weapons and trespassed into his compound, A1 beat him with a stone which was covered in a flag of DYFI ( Democratic Youth Federation of India; the youth wing of a political party), A2 stamped on his chest and belly, A3 hit on his right stomach and A5 fisted on his chest. The other accused persons slapped his chest and back. It is also alleged that the 3[rd] accused pelted stone, resulting in ``` CRL.A NO. 1083 OF 2015 ``` ``` 4 ``` injury to the son of the de facto complainant. Immediately thereafter, he was taken to Taluk Hospital, Perembara and later, he was taken to Medical College Hospital, Kozhikode. Based on the above incident, a crime was registered, the investigation was conducted, and a final report was submitted for the offences above. 3. After completing the procedural formalities, the learned Magistrate committed the matter to the Sessions Court, Kozhikode. Later, the same was made over to the Additional Sessions Court (Marad Cases), Kozhikode, where the case was tried as S.C. No.1370/2014. 4. In support of the prosecution, PWs 1 to 13 were examined, Exts.P1 to P25 were marked and Material Objects 1 to 6 were identified. After completing the prosecution evidence, the appellants were examined under Section 313 Cr.P.C., and the incriminating materials brought out during the trial were put to them. All of them denied the same and pleaded innocence. No defence evidence was adduced. 5. After evaluating the materials on record, the learned ``` CRL.A NO. 1083 OF 2015 ``` ``` 5 ``` Sessions Judge concluded that the appellants, who are accused Nos.1 to 10, are guilty of the offences punishable under Sections 143, 148, 447, 326, 307 read with Section 149 of the Indian Penal Code. The 11[th] accused was found not guilty, and he was acquitted. Based on the finding of guilty, the appellants herein were sentenced to undergo rigorous imprisonment for three months each under Section 143 read with Section 149 IPC, rigorous imprisonment for six months each under Section 148 IPC, rigorous imprisonment for three months each under Section 447 IPC, rigorous imprisonment for three years each under Section 326 IPC and rigorous imprisonment for seven years each and to pay a fine of Rs.5000/each with a default sentence of six months each under Section 307 IPC. It was ordered that, if the fine amount is realized, an amount of Rs.10,000/- will be paid to PW1 under Section 357 (1) of Cr.P.C. It was also ordered that the sentences shall run concurrently. This appeal is filed challenging the aforesaid order of conviction and consequential sentence. 6. Heard Sri. P.K. Varghese, learned counsel appearing for ``` CRL.A NO. 1083 OF 2015 ``` ``` 6 ``` the appellants and Ranjith George, learned Public Prosecutor appearing for the State. The defacto complainant/ PW1 got himself impleaded in this appeal as an additional 3[rd] respondent, and I have heard Sri. Julian Xavier, learned counsel appearing for the 3[rd] respondent. 7. The learned counsel for the appellants raised various contentions. It was contended that the evidence of occurrence witnesses, namely PWs 1 to 5, are inconsistent. Learned counsel pointed out several discrepancies in their evidence. It was also submitted that all the witnesses above are close relatives of the victim. Despite the availability of other possible witnesses, the prosecution failed to examine any of the same. Learned counsel further pointed out the discrepancies in the seizure mahazar, which was prepared on 19.03.2014, wherein it is shown that PW1 himself showed the place of occurrence, but on the other hand, the evidence of PW1 is to the effect that he was admitted in the hospital on 18.03.2014 and he continued in the hospital as an inpatient for three days. The evidence of PW3 and PW4 is also to the effect that he ``` CRL.A NO. 1083 OF 2015 ``` ``` 7 ``` was in the hospital for three days. It was pointed out that the specific case of PW1 is that he was assaulted with MO2 rock, wrapped in MO1 flag, and the injury which is sustained due to the same was on his nose. However, it is discernible from the evidence that, even though bloodstains were found on the stone, no bloodstain was found on the flag in which the stone was found covered. According to the learned counsel for the appellant, this is yet another circumstance that points out the discrepancy in the evidence. It was also pointed out that the wound certificate, which was marked as Ext.P22 and prepared at 6.30 p.m. on the date of the incident, did not contain the names of any assailants, but on the other hand, at 7 O’clock when the Police recorded his First Information Statement he named ten accused persons. The explanation offered by PW1 for not mentioning the name was that, when the Doctor recorded the reason for the incident, he was not in a position to mention the name of the culprits on account of injuries. The learned counsel points out for the appellant that the aforesaid version is not at all believable ``` CRL.A NO. 1083 OF 2015 ``` ``` 8 ``` because the injuries sustained by PW1, as evidenced by Ext.P22, were not much serious to deprive him of his ability to speak. Apart from the above, from Ext.P2 First Information Statement, it is evident that he was able to mention the names of the culprit after half an hour of preparing the wound certificate. According to learned counsel, this is the further circumstance that creates a serious shadow of doubt on the prosecution case. In such circumstances, the learned counsel submits that the prosecution failed to prove the case against the appellants beyond reasonable doubts. Hence, he seeks interference in the finding of guilt. 8. On the other hand, the learned Public Prosecutor and the learned counsel appearing for the 3[rd] respondent/de facto complaint would oppose the contentions above. It is contended by both of them that the evidence of PWs 1 to 4 who have witnessed the incident have narrated the incident. Even though there were some discrepancies in their evidence, those are very minor and natural. The aforesaid differences are not sufficient to discard the evidence of the aforesaid witnesses as a whole. The learned Public ``` CRL.A NO. 1083 OF 2015 ``` ``` 9 ``` Prosecutor also submits that the evidence of PW5 corroborates the evidence of PWs 1 to 4. Regarding the non-examination of other witnesses, it is pointed out that the incident occurred in the compound of residence of PW1, which is a little far away from the public road. Therefore, the presence of the other witnesses is a matter of remote chances, and the presence of PWs 1 to 4 was quite natural, being close relatives of PW1. In such circumstances, the learned Public Prosecutor and the learned counsel appearing for the 3[rd] respondent pray for dismissal of the appeal by confirming the finding of conviction. 9. The crucial evidence available are the depositions of PWs 1 to 4, who are occurrence witnesses. PW1 is the victim himself. The First Information Statement is Ext.P2 which was recorded at 6.30 p.m. on 18.03.2014 while he was admitted to Taluk Hospital, Perambra. The statement given in Ext.P2 is that, on 18.03.2014, at 5 p.m., the 3[rd] appellant/ 3[rd] accused came to his residence in a motorcycle and threatened him by saying that as he filed certain cases against them, he would be done away with. Later ``` CRL.A NO. 1083 OF 2015 ``` ``` 10 ``` at 5.30 p.m., while PW1 was collecting areca nuts, accused Nos.1 to 10 trespassed into the property, wrongfully restrained him, attacked him by using a stone wrapped in the flag of DYFI and inflicted blows upon his back, nose, head and chest. He had fallen down. The aforesaid assault was initially made by the 1[st] accused, and when he fell down, the other accused also assaulted him. The 1[st] accused again attempted to place a blow on his head with the stone wrapped on the flag, and PW1 blocked the same with his hands. He mentions that had he not blocked the said blow, it would have caused his death. Immediately, his wife, children, mother and brother came rushing to the spot, and they covered PW1 by laying over him, thus rescuing him from the further assault of the accused. When the local people started coming to the place of occurrence, the accused persons fled. While they were withdrawing from the place, A3 had pelted a stone, which caused injury to his son’s leg. Immediately thereafter, Police came to the place and took PW1 to Perambra Government Hospital. After examination, as the Doctor realised that the injuries were serious in nature, he was referred to Medical ``` CRL.A NO. 1083 OF 2015 ``` ``` 11 ``` College Hospital, Kozhikode, for further treatment. He also stated that the assailants reached the place of occurrence in vehicles bearing Nos.KL 56 7581 (motorcycle), KL 56 C 6556 (autorickshaw), KL 56 D 7819 (autorickshaw) and KL 10 B 9812 (jeep). It was also stated that the reason for assaulting PW1 was that he had obtained a favourable judgment against some of the accused persons. When PW1 cut and removed certain trees in his properties on the strength of the said judgment, some of the accused persons obstructed him. This was the statement given by PW1 in Ext.P2 First Information Statement. 10. While being examined as PW1, he described the incident with more details. One of the crucial aspects he had stated additionally is that, on 18.03.2014, he was admitted to Medical College Hospital and continued his treatment in Medical College Hospital for three days. He also stated that when 1[st] accused attempted to inflict a blow on his head by using the stone wrapped in the flag of DYFI, he blocked the same with his hand and sustained injuries on his hand. He also stated that the 1[st] accused ``` CRL.A NO. 1083 OF 2015 ``` ``` 12 ``` was repeatedly inflicting blows with the stone wrapped in the flag on his shoulder, chest, head, and back. He also identified the flag, and the same was marked as MO1. He further identified two stones seized by the Police as MO2 series, coconut husk recovered from the scene containing bloodstains as MO3 and his shirt, saffroncoloured dhoti and towel, which were recovered from the scene of occurrence were identified and marked as MOs 4 to 6. During cross-examination, he had stated that he could not name the persons who had assaulted him to the Doctor when he was initially examined at General Hospital, Permbra, as he was not in a position to mention their names. According to him, it was difficult for him at the relevant time to mention their name. Later, when Police came, he named the persons. He also stated that he sustained the blow on his nose with the stone wrapped in the flag. He further stated that all the other accused persons assaulted him by kicking and hitting him when he fell down. When the accused persons were withdrawing, A11 pelted a stone, and it resulted in causing injury to the leg of his son, whereas it was A3 who pelted the stone as per Ext ``` CRL.A NO. 1083 OF 2015 ``` ``` 13 ``` P2 FIS. He identified all the persons who were on the dock by name. 11. PW2 is the son of PW1 and sustained injuries on his leg. He stated that he had witnessed the assault of his father by some persons using a stone wrapped in the flag of DYFI. When he went near to his father, A11 pelted a stone, and it caused injuries to his leg. He identified A11 from among the persons on the dock as the person who pelted the stone on him. PW1 was immediately taken to the hospital by Police, and he was taken to the hospital by his mother. According to him, PW1 had fallen down when he was kicked from behind. He also stated that when PW1 was assaulted, he cried and hearing the cry, his mother came. He also says that some other persons, namely Wilson, who was conducting an oil mill nearby, also came to the place. It is also recorded in the deposition that he identified the accused persons. 12. PW3 is the wife of PW1. She also stated about the assault of PW1 with some variations. She had said that when PW1 had fallen down, she, along with her mother and children, came ``` CRL.A NO. 1083 OF 2015 ``` ``` 14 ``` running to the place of occurrence, and they rescued him, laying over him. Hearing the noise, Member James (a member of the Local self-Government Institution) also came to the place of occurrence. While they were returning, A11 pelted a stone, and it hit on the leg of her son. She stated that Ext.P3 scene mahazar through which MOs 1 to 3 were seized, was prepared in her presence. The place of occurrence was shown by her, and the MOs 1 to 3 were identified by her. She also stated that PW1 continued his treatment for three days in Medical College Hospital since his admission on 18.03.2014. In cross-examination, she had clearly stated that her husband was assaulted with the stone, on his head also, and on sustaining a blow on his head, he had fallen down. She also stated that after hearing the noise, Member James also came to the place of occurrence, but according to her, he reached after the incident and therefore, he does not know whether he witnessed the incident. She also mentions the motive behind the assault as the judgment they received from the High Court in their favour regarding the properties. It was also stated that there was an order ``` CRL.A NO. 1083 OF 2015 ``` ``` 15 ``` of Police protection from the High Court, but at the relevant time, there were no Police in the place of occurrence. 13. PW4 is the brother of PW1. He also mentioned the sequence of events almost similar to that of the other witnesses. One of the crucial statements made by PW4 is that MO4 to MO6 were handed over to the Police while they were at the hospital. He also stated that MOs 1 to 3 were also seized by the Police from the hospital. It is to be noted that PW4 is the attester of Ext.P3 scene mahazar by which MOs 1 to 3 were seized, and Ext.P4 mahazar by which MOs 4 to 6 were seized. He admitted the signature in the aforesaid mahazars. He specifically named A1 to A4, A8, A9 and A11. It is seen recorded in the deposition that he identified all the accused from the dock. The presence of Member James in the place of occurrence is also mentioned by PW4 as well, and according to him, he came to the spot upon hearing the noise. He also stated that one Panachikkal Wilson also came to the place. 14. PW5 is the father of PW1. He reached the spot ``` CRL.A NO. 1083 OF 2015 ``` ``` 16 ``` immediately after the incident. However, he stated that just before the incident, when he was in the market nearby, he found A1, A2 and A3 along with some other persons going to the residence of A11 from the Party Office ( Office of a political party), which is nearby. Thereafter when he reached the residence of PW1, he found a gathering of people and later, he found PW1 lying on the ground with blood flowing from his nose. Upon enquiry, he came to know about the incident. 15. The First Information Statement was recorded by PW9. PW10 is the Sub Inspector of Police who conducted a preliminary investigation and prepared Exts.P3 and P4 mahazar by seizing the Material Objects. PW11 is the Circle Inspector of Police who completed the investigation and filed the charge sheet. PW12 is the Doctor who examined PWs1 and 2 in Perambra Government Hospital immediately after the incident. Ext P22 is the wound certificate of PW1 issued by PW12. The injuries sustained by PW1 is seen mentioned in Ext.P22 as (1) pain right shoulder, (2) pain above scapular region right side, (3) pain chest left side and nose. ``` CRL.A NO. 1083 OF 2015 ``` ``` 17 ``` On examination, it was found that there was bleeding from both the nostrils, swelling 5x5 cm. above scapular region, tenderness right shoulder. Later, he was referred to Medical College Hospital for E.N.T and Ortho consultation. In Ext.P22, the alleged cause of the incident is referred to as an assault by some identifiable person at around 5 p.m., by using a stone wrapped in a flag. PW12 opined that the injuries could be caused due to the reasons mentioned above. He also speaks about the examination of PW2 at 8.45 p.m. on the same day. Ext.P23 is the wound certificate issued to PW2, and the cause of the incident mentioned is that around 5 p.m., when Jijo Thomas (PW1) was attacked by 10 - 15 persons, his son sustained injuries due to the stone. PW12 has stated that the injury could be sustained as stated above. PW13 is the Doctor who treated PW1 in Medical College Hospital and issued Ext.P24 discharge certificate and Ext.P25 O.P. ticket. He has stated that the patient was admitted on 18.03.2014 and was discharged on the same day. The patient has epistaxis (traumatic) with fracture nasal bone undisplaced). He was advised to have an ortho consultation. These ``` CRL.A NO. 1083 OF 2015 ``` ``` 18 ``` are the materials available on record, and the prosecution places reliance upon these materials. 16. Some of the main discrepancies pointed out by the learned counsel are in respect of Exts.P3 and P4 mahazars. As mentioned above, Ext.P3 is the scene mahazar and the Material Objects MO1 to MO3 were seized through the said mahazar. PW4 is the witness who attested the aforesaid mahazar, and PW10 prepared the same. The specific narration in Ext.P2 mahazar is that the place of occurrence was identified, as shown by PW1 himself. PW10, in his deposition, has clearly reiterated the aforesaid aspect. However, the evidence of PW1 is to the effect that he was admitted to Medical College Hospital on 18.03.2014, and he continued his treatment in the hospital for three days continuously. According to him, he was not there on 19.03.2014, on which day Ext.P2 was prepared. PW3, the wife of PW1, has also stated that PW1 was in the hospital for three days, and according to her, the scene of occurrence was shown by her to the Police on 19.03.2014. It is also her case that MOs 1 to 3 were identified at her instance, and the ``` CRL.A NO. 1083 OF 2015 ``` ``` 19 ``` Police made the seizure based on the same. Learned counsel for the appellant points out that this is a serious discrepancy. The specific case of PW1 is that he was under treatment for three days in Medical College Hospital following the injury and his admission on 18.03.2014. On the other hand, Ext.P24 and P25 would show otherwise. As mentioned above, Ext.P24 is the treatment certificate wherein the date of admission is shown as 18.03.2014, and the date of discharge is also shown as 18.03.2014. The Doctor has also specifically stated that he was discharged on 18.03.2014 itself. The case of PW1 is also that the scene of occurrence as recorded in Ext.P2 was not shown by him. However, the recital contained in Ext.P2 and the deposition of PW10, who prepared Ext.P2, is to the effect that it was identified as shown by PW1 himself. This is a serious discrepancy, as highlighted by learned counsel for the appellant. This is mainly because Ext.P2 is a contemporaneous document through which the MO1 flag of DYFI, MO2 series stones and MO3 coconut husk containing stains of blood were recovered. Therefore, in the absence of specific evidence proving its recovery, ``` CRL.A NO. 1083 OF 2015 ``` ``` 20 ``` the same could be something very crucial against the prosecution case. 17. There is yet another aspect that makes the prosecution case weaker. Ext.P4 is the seizure mahazar through which bloodstained clothes of the victim, which are MOs 4 to 6, were recovered. PW4 is the attester of the aforesaid mahazar as well. According to him, he had handed over MOs 4 to 6 while they were in the hospital. Even though in Ext.P4, the place of seizure is not mentioned, PW10, in his deposition, categorically stated that the aforesaid articles were made available to the Police Station. However, the evidence of PW4 is contrary to the same. Apart from the above, even the date of such seizure is also in doubt. On one occasion PW4 states that it was on 18.03.2014, and later the date was stated as 19.03.2014. The date of seizure mentioned in Ext.P4 is 19.03.2014 at 11 a.m. This is yet another discrepancy that creates a serious shadow of doubt on the prosecution case. 18. Another contention put forward by the learned counsel for the appellant is about the manner of assault and the nature of ``` CRL.A NO. 1083 OF 2015 ``` ``` 21 ``` injuries sustained by PW1. It is pointed out that, according to PW1, he was inflicted with blows on repeated occasions with the stone wrapped in the flag on his head, shoulder, chest and back by the 1[st] accused. Blow on the head of PW1 was stated by PW2 and PW3 as well. All these witnesses had also said that when 1[st] accused again attempted to place a blow on the head with the stone, PW1 blocked the same with his hands. According to PW1, when he blocked, he also sustained injuries on his hands. However, on going through Ext.P22 wound certificate, there is not even a minor injury either on his hands or his head, even though it was stated that repeated blows were placed on his head, and he blocked one blow with his hands. This is a crucial aspect that remains unexplained throughout the prosecution case. 19. The learned counsel for the appellant also highlighted various discrepancies, such as the sequence of events through which the assault was made and the differences in the sequence thereof as per the deposition of witnesses. However, I am of the view that the same may not be much material or of serious nature. While ``` CRL.A NO. 1083 OF 2015 ``` ``` 22 ``` describing an event by different individuals, it is likely to have some variations. The capacity to describe something would vary from person to person, as it depends upon the person’s skill in observing, understanding and narrating the same. Therefore, there are likely to be some differences in describing the same. Therefore, the difference in the sequence of assault and the acts of assault by each accused person is not much of severe consequence. However, the discrepancy with regard to the non-mentioning of injury on the head and hands of PW1 is a crucial aspect that cannot go unnoticed. 20. Another contention of learned counsel for the appellant is about the identity of the persons. It is true that the prosecution has a case that all the persons were known to the witnesses, and therefore, the question of identity is not a matter of serious dispute. The specific case of the learned counsel for the appellant is that, even if the accused were known to the witnesses, the identity of the accused persons has to be made explicitly while they were on the dock with some indication of their identity. Learned counsel places reliance upon the judgment rendered by this Court in **Vayalali** ``` CRL.A NO. 1083 OF 2015 ``` ``` 23 ``` ## **Girishan and Others v. State of Kerala [2016 (2) KLT SN 2]** . In paragraphs 43 and 44, it is observed as follows: _“43. Recalling the discussion with regard to the presence, participation and fixation identity of the accused, we hold that the evidence of PW 1 to 4 are convincing as regards the incident and there is no reason to doubt their version as regards the involvement of accused Nos. 1, 2, 12 and 15. But we are distressed to note that in case of the other accused, the learned Sessions Judge has adopted a very callous approach. Undoubtedly, substantive evidence is the identification of the accused by the witness before the Court. But in the instant case, the deposition of witnesses only reveals that the learned Sessions Judge has merely recorded the rank number of the accused in the charge and no effort is seen undertaken to certify the deposition, with exactitude and certainty, that the person referred by witness as one of the members of the unlawful assembly which perpetrated the horrendous act is the person who was standing in the dock. We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the Court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this Court, time and again, have reminded the Trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude. This is all the more important in a case of this nature where most of the accused are attempted to be roped in on the reason that they were members of the unlawful assembly and they had shared the common object. Unfortunately, there is no specific endorsement in the deposition of the eye witnesses that the accused numbering 25 standing in the dock were identified_ ``` CRL.A NO. 1083 OF 2015 ``` ``` 24 ``` _by the witness in any acceptable manner known to law and the Court was satisfied by the identification. In other words, it does not appear from the evidence that the accused was specifically pointed out by their name or specific feature and an endeavor was made by the Court to individually fix each of the accused as being present at the scene of crime so that their complicity as members of an unlawful assembly in prosecution of the common object could be fixed. We have to mention that the identification of the accused in Court, which was conducted in an omnibus and perfunctory manner, cannot be held to be reliable to establish the complicity of accused Nos. 3 to 11, 13, 14 & 16 to 25 and to hold them vicariously liable for the offence under 3.302 r/w 149 of the IPC._ _44. We are afraid that it would result in travesty of justice if we were to hold the accused guilty against whom no specific overt acts are alleged and in respect of whom the identification of Court is extremely sketchy in view of the deficiencies noted above. We note that there are only general allegations against them and we hesitate to convict all of them on such vague evidence. In spite of a meticulous search we are unable to find any reasonable circumstances to lend assurance to hold those accused guilty. From that point of view we are of the view that it will only be safe to convict the accused No. 2 - Vayalali Girisan (appellant No. 1), accused No 12 - K. V. Radhakrishnan (appellant No. 11) and Accused No. 15 - K. V. Mahendran (appellant No. 14) whose presence is not only consistently mentioned from the stage of FIR but also against whom overt - acts are attributed. So far as the other appellants are concerned, for the above stated reasons, we set aside the convictions and sentences passed against them and direct that they shall be set at liberty forthwith if not required in any other case.”_ The aforesaid judgment was relied upon by another Division Bench of this Court in **Shaji @ Babu @ Japan Shaji v. State of Kerala [Crl. A. No.377/2017 judgment dated 05.07.2021]** . In paragraph ``` CRL.A NO. 1083 OF 2015 ``` ``` 25 ``` ## 17 thereof, it is observed as follows: “We find none of these witnesses having identified the accused in Court, as required, which is a very serious omission on the part of the prosecution as also the Court. PW8 has made a vague statement that the accused is present in Court [പ്രതി ക ോടതിയിൽ ഉണ]. If not the prosecution, the Court should have asked the witness to specifically identify the accused, as usually done by asking the witness to point out the man/woman. Even the vague identification, as made by PW8, was not made by the other witnesses paraded before Court.” From the observation made by this Court in the aforesaid judgments, specific identification of the individual accused persons is essential. In this case, when I examine the evidence of PWs 1 to 5, it can be seen that no such personal identification as mentioned in the aforesaid judgment is seen recorded. In **Manu G. Rajan and Another v. State of Kerala [2021 (5) KHC 767],** the abovementioned question was again considered by this Court, and in paragraph 12, it was observed as follows: _“12. The next question to be considered is whether there was proper identification of the accused in the dock. In Vayalali Girishan (supra), this court has indicated the importance of proper identification in the dock. The depositions of PWs 1, 2, 7 and 8 in this case though seem to identify the accused persons including appellants/accused Nos.1 and 2, is contrary to the view taken by Vayalali Girishan (supra) that the witnesses are not expected to know the rank of the accused in the proceedings before the_ ``` CRL.A NO. 1083 OF 2015 ``` ``` 26 ``` _court and it is not sufficient that the accused are identified with reference to their rank in the proceedings before the court. Though, as rightly pointed out by the learned Public prosecutor, this is a case where all the accused persons were directly known by the witnesses namely, PWs 1, 2, 7 and 8, that by itself does not take away the requirement of proper identification in the dock and in the light of the law laid down in Vayalali Girishan (supra), I must hold that there was a failure to identify the accused in the dock properly. In the light of my finding that the dock identification was improper and irregular, it is not necessary to examine the issue raised based on the judgment in Sarad Birdhichand Sarda (supra).”_ In the above case, after referring to the judgment in **Vayalali Girishan’s** (Supra), it was observed that, even though the accused persons were directly known by the witnesses, that by itself does not take away the requirement of proper identification in the dock. In such circumstances, I am of the view that identification is also a question that is in doubt. 21. Another aspect is about the discrepancy in the wound certificate. It is pointed out that, from the Ext.P22 wound certificate issued in respect of PW1, it can be seen that he was brought to the Perambra Hospital at 6.30 p.m., which is immediately after the incident. The learned counsel for the appellant points out that, according to the prosecution case, it was the Police who had taken ``` CRL.A NO. 1083 OF 2015 ``` ``` 27 ``` him to the hospital. Still, surprisingly none of the close relatives of PW1 who were present at the place of occurrence at the relevant time had accompanied him. It is also a crucial aspect that in the same incident, PW2, the son of PW1, also sustained injuries on his leg, and he was not brought to the hospital along with PW1. Ext.P23 is the wound certificate in respect of PW2, and it indicates that he was brought by PW3 to the same hospital at 8.45 p.m on the same day, i.e. after 2 hours and 15 minutes after PW1 was brought to the hospital. According to the learned counsel for the appellant, this is the result of an afterthought. Considering the facts and circumstances of the case, I am of the view that there is some force in the contention put forward by the learned counsel in this regard. The fact that no close relative accompanied PW1 to the hospital even though he claimed to have sustained serious injuries in the incident is a matter which raises serious doubt as to the veracity of the prosecution case. The aforesaid aspect became more suspicious when the son of PW1, who sustained an injury in the same incident, was brought to the hospital after more than two hours. When this ``` CRL.A NO. 1083 OF 2015 ``` ``` 28 ``` aspect is considered along with all the other discrepancies mentioned above, it creates a serious shadow of doubt on the prosecution case. 22. Another contention of the learned counsel for the appellants is regarding the non-examination of crucial witnesses. The learned counsel points out for the appellants that all the occurrence witnesses, namely PWs 2 to 5, were close relatives of PW1 and therefore are interested witnesses. The enmity of the aforesaid witnesses with the accused persons is also an admitted fact. In the aforementioned circumstances, the evidence of such interested witnesses must be dealt with very cautiously, contends the learned counsel. Reliance was placed upon the observations made in **Deo Narain v. State of U.P. [2010 (12) SCC 298]** and **Parminder Kaur @ P.P. Kaur @ Soni v. State of Punjab [2020 (8) SCC 811].** In **Deo Narain’s** case (supra), it was observed by the Hon’ble Supreme Court that where the animosity between the parties is admitted, a case of false implication is a clear possibility. In such circumstances, while sifting the evidence to separate the ``` CRL.A NO. 1083 OF 2015 ``` ``` 29 ``` grain from the chaff, the court has an obligation to see that in a case of admitted animosity, there must be some corroborative evidence to support the versions of eyewitnesses. The same view is seen adopted by the Hon’ble Supreme Court in **Parminder Kaur’s** case (supra) as well. In the said decision, the observations made by the Hon’ble Supreme Court in **Takhaji Hiraji v. Thakore Kubersing Chamansing and Others [2001 (6) SCC 145] were** also relied on. In **Takhaji Hiraji’s** case, it was observed as follows: _“19. … It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. ...”_ When the aforesaid principles laid down by the hon’ble Supreme Court are applied in the facts of this case, there are certain aspects to be taken note of. All the witnesses are indeed interested, and there is clear evidence of animosity between the witnesses and the accused persons. In such circumstances, the evidence of the ``` CRL.A NO. 1083 OF 2015 ``` ``` 30 ``` aforesaid witnesses has to be treated with caution as there are chances of false implication. The specific case of the prosecution in this regard is that, the incident has occurred within the compound of the residence of PW1, and therefore it was natural that the other witnesses who are close relatives of PW1 happened to be there. According to the prosecution, the chances of the other witnesses being present on the spot are very low. It was also pointed out that, merely because the other witnesses are interested and have closely related to PW1, their evidence cannot be discarded. However, the specific case of the learned counsel for the appellants is that evidence of PWs 1 to 4 indicate that certain persons, including Member James, Wilson and some other persons, came to the place of occurrence immediately after the incident. The presence of Member James is specifically mentioned by PWs 1, 3 and 4. However, the aforesaid persons were not cited as witnesses. PW10, in his deposition, stated that James has stated that he had seen the accused persons running away from the scene of occurrence. However, the said James has not been examined. Learned counsel ``` CRL.A NO. 1083 OF 2015 ``` ``` 31 ``` for the appellant places reliance upon the judgments in **Ankush Maruti Shinde and Others v. State of Maharashtra [2019 (15) SCC 470]** and **D.V. Shanmugham and Another v. State of A.P. [1997 (5) SCC 349],** in support of the aforesaid contention. In **Ankush Maruti Shinde’s** case (supra) the Hon’ble Supreme Court considered the question of non-examination of material witnesses and observed as follows: _“10.4 Even in a case where the public prosecutor did not examine the witnesses who might have supported the accused, this Court in the case of Darya Singh v. State of Punjab AIR 1965 SC 328 has observed that the prosecution must act fairly and honestly and must never adopt the device of keeping back from the Court only because the evidence is likely to go against the prosecution case. It is further observed that it is the duty of the prosecution to assist the court in reaching to a proper conclusion in regard the case which is brought before it for trial. It is further observed that it is no doubt open to the prosecutor not to examine witnesses who, in his opinion, have not witnessed the incident, but, normally he ought to have examined all the eye-witnesses in support of his case. It is further observed that it may be that if a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness box. It is further observed that if at the trial it is shown that the persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the accused and may, in a proper case, record the failure of the prosecution to examine the said witnesses as constituting a serious infirmity in the proof of the_ ``` CRL.A NO. 1083 OF 2015 ``` ``` 32 ``` _prosecution case.”_ Similarly, in **D.V. Shanmugham’s** case, in paragraph 15, it is ## observed as follows: _“It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined, then in such a situation, the prosecution case has to be scrutinised with more care and caution.”_ 23. Thus, going by the principles laid down by the Hon’ble Supreme court, if independent witnesses who were available were not examined by the prosecution and only those closely related to the victim were examined, the prosecution case has to be scrutinised with more care and caution. It is true that merely because certain relevant witnesses are not examined and the witnesses examined were related witnesses of the victim, the evidence as a whole need not be discarded. The court has to treat the aforesaid evidence with care and caution. In this case, I have already pointed out certain serious discrepancies in the evidence of occurrence witnesses in the earlier paragraphs. In such circumstances, the close relationship of the witnesses examined and the failure on the part of the ``` CRL.A NO. 1083 OF 2015 ``` ``` 33 ``` prosecution in examining the relevant material witnesses who were present or likely to be present at the scene of occurrence is a matter of crucial importance. In such circumstances, the failure above has to be treated as a serious lacuna in the prosecution case. 24. When all the aforesaid evidence is analysed, the only irresistible conclusion possible is that, even though the abovementioned evidence clearly casts a suspicion about the involvement of appellants/accused in this case, it is not sufficient to hold them guilty. It is a well settled position of law that a conviction cannot be made merely because of suspicion. To convict a person, the prosecution has to establish the offence against them by producing unimpeachable evidence and ruling out all hypotheses of innocence of the accused. To be precise, the prosecution has to travel from the situation of “may be true” to “must be true” by adducing evidence in this regard. When I apply the aforesaid test in the materials brought out by the prosecution during the trial, I am of the view that the prosecution is not successful in bringing the prosecution case within the ambit of “must be true”. Therefore, it ``` CRL.A NO. 1083 OF 2015 ``` ``` 34 ``` cannot be concluded that the prosecution could establish the case against the appellants herein beyond reasonable doubts. Thus the appellants are entitled to the benefit of the doubt. 25. In such circumstances, considering the entire facts and circumstances and the evidence on record, I am of the view that the finding of guilt entered by the Sessions Court is liable to be interfered with. In the result, this appeal is allowed, and judgment dated 26.10.2015 in S.C 1370/2014 passed by the Special Additional Sessions Judge ( Marad Cases) is hereby set aside. Appellants who are accused Nos.1 to 10 are found not guilty of the aforesaid offences. Accordingly, they are acquitted of all the charges. Their bail bonds shall stand cancelled. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` SCS