Shelcy v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 CRA(V) NO. 28 OF 2020** **AGAINST THE ORDER/JUDGMENT DATED 24.3.2020 IN SC 983/2017 & SC 917/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, NORTH PARAVUR / I ADDITIONAL MACT, NORTH PARAVUR** ## **APPELLANT/VICTIM:** SHELCY, AGED 49 YEARS W/O.LATE THOMAS, PALATTI HOUSE, PARAMBAYAM KARA, MUKKANNOOR VILLAGE, ANGAMALI-683577. BY ADVS. SAJAN MANNALI SRI.AADITHYAN S.MANNALI SRI.ALPHIN ANTONY ## **- - RESPONDENT/S/A1 A5, A7, A12 A14, A16, A17, A22 & STATE :** 1 WILSON, AGED 43 YEARS S/O.URUMEES, PALATTIL HOUSE, PARAMBAYAM KARA, MUKKANNOOR VILLAGE, ANGAMALY. 2 SAJI, AGED 30 YEARS S/O.POULOSE, KALLARACHULLIL HOUSE, MUNNOORPPILLY KARA, PALISSERY, ANGAMALY. 3 SHINE PAUL, AGED 26 YEARS S/O.POULOSE, THALIYAN HOUSE, MUNNOORPPILLY, PALLISSERY, ANGAMALY. 4 SIJU @ THOPPIKILY, AGED 31 YEARS, S/O.NARAYANAN, KARIMPANAKKAL HOUSE, NOW RESIDING AT ARAKKAL THAMPY'S HOUSE, NEAR UNION TEMPLE, CHENGAMANAD. 5 SATHEESH, AGED 21 YEARS S/O.SUBRAN, VALIYOLIPARAMBIL HOUSE, MUKKANNOOR VILLAGE, EZHATTUMUGHAM, ANGAMALI. 6 JEBIN, AGED 21 YEARS, S/O.JOSEPH, MENACHERY HOUSE, EDAKKAD KARA, MOOKKANNOOR VILLAGE, ANGAMALY. Crl.A 28/2020 2 - 7 AJITH, AGED 24 YEARS, S/O.RAJU, THOULUKKAD HOUSE, JANARDHANAN COLONY, MUTHARATHIKKARA DESHAM, PARPOOKKARA VILLAGE, THRISSUR. - 8 RAJEESH @ MAKKU, AGED 26 YEARS S/O.RAJENDRAN, PALLIVATTOM HOUSE, MURIYAD VILLAGE, ANANDAPURAM DESHAM, THRISSUR. - 9 SURESH, AGED 37 YEARS, S/O.RAMAN, PUTHENVELI HOUSE, SREEMOOLANAGARAM, CHOWRA VILLAGE, ALUVA. - 10 SAREESH, AGED 31 YEARS S/O.CHANDRAN, ATTAPARAMBIL HOUSE, MUKKANNOOR VILLAGE, ANGAMALY. - 11 ARUN @ CHAKKUTTAN, AGED 26 YEARS S/O.VENU, CHENCHERIPARAMBIL HOUSE, KURUPPANEYAM KARA, NEDUMBASSERY VILLAGE, ERNAKULAM. - 12 SHAJU CHACKO, AGED 44 YEARS S/O.CHACKO, CHAKKYATHU HOUSE, MUKKANNOOR KARA, MOOKKANNOOR VILLAGE, ANGAMALY. 13 STATE OF KERALA, REPRESENTED BY DECTECTIVE INSPECTOR HHW-II, ERNAKULAM, CBCID. BY ADVS. SRI.GEO PAUL FOR R1-R3, R12 SRI.C.R.PRAMOD SRI.RADHIKA RAJASEKHARAN P. SRI.S.ASHOK KUMAR. SHRI.JACOB GEORGE PALLATH SHRI.NAVEEN T.U. SRI.JEN JAISON FOR R4 SRI.K.S.SREENATH FOR R5, R6, R9 TO R11 SRI.M.B.SANDEEP FOR R7 & R8 ## **OTHER PRESENT:** SRI.ALEX.M.THOMBRA, SENIOR PUBLIC PROSECUTOR THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 4.3.2022, THE COURT ON 07.04.2022 DELIVERED THE FOLLOWING: Crl.A 28/2020 3 K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------Crl.Appeal (V) No.28 of 2020 ------------------------------------Dated this the 7[th] day of April, 2022 J U D G M E N T ## Jayachandran, J. 1. Under challenge in this appeal preferred under the Proviso to Section 372 of the Code of Criminal Procedure is the judgment of acquittal in S.C.Nos.983/2017 and 917/2018 dated 24.3.2020 of the Additional Sessions Court-II, North Paravur. The offences alleged are under Sections 143, 147 & 148, read with 149, 120-B, 447, 302, 109, 201 and 212 of the Penal Code and also under Section 27 of the Arms Act. 2. F inal report was preferred by the Detective Inspector, C.B.C.I.D, Ernakulam against 23 accused persons altogether, of whom A6 passed away before committal. A10, A11 and A18 were absconding and hence not committed. Seven accused persons, namely Crl.A 28/2020 4 A8, A9, A15, A19, A20, A21 and A23 were discharged under Section 227, Cr.P.C. The remaining 12 accused persons (A1 to A5, A7, A12 to A14, A16, A17 and A22) faced trial. By the impugned judgment, all the above 12 accused persons were acquitted. In this judgment, the accused persons are referred to from their original status in the final report. ## - 3. The Prosecution case: Wives of A1 and A22 were assaulted by PW14 on 25.2.2011, which, according to the said accused persons, was orchestrated by deceased Thomas @ Thommi. Out of that animosity, accused nos.1 to 4 met on 27.8.2011 and entered into a conspiracy to do away with the deceased. A4 was assigned the task of executing the plan. A2, A3 and A22 took legal advice from A23. Rs.10 lakhs was given to A4 and others. A4 discussed with accused nos.5, 6, 7, 10 to 14, 16 and 17. Pursuant to the conspiracy, A18 hired a red Alto car – KL-17/G-3095 – and delivered it to A5 to A7 and A10 to A13. Accused Crl.A 28/2020 5 nos.4, 14, 16 and 17 brought swords in motor cycle bearing no.KL-7/BB-3828, of which A7 is the owner. The swords were delivered to A10 to A13. On 28.8.2011 at 6.15 a.m, A5 and A6 stood guard in front of the chicken farm of the deceased, while A10 to A13 trespassed into the farm and attacked the deceased mercilessly all over his body with swords, inflicting several cut injuries. The accused persons escaped from the scene after committing the crime. While A5 and A7 escaped in a motor cycle, A9 helped A2 to escape in an autorickshaw bearing no.KL-41/D-1979, whereafter, A2 escaped to Karnataka, with the help of A21. A8 harboured A4, A5, A6 and A10 to A13 in his house. A15 and A23 harboured A4. The accused persons have thus committed the offences enumerated above, according to the prosecution. 4. As many as 59 witnesses were examined on the part of the prosecution and Exts.P1 to P90 were marked through them. MO1 to MO4 material objects were identified. Apart from Exts.D1 to D11 Crl.A 28/2020 6 contradictions marked, no defence evidence was adduced. 5. On an analysis of the facts and evidence, learned Sessions Judge found that PW2 and PW19, two occurrence witnesses, did not support the prosecution case; that recovery of MO1 and MO4 swords under Section 27 of the Evidence Act was not trustworthy; that no evidence, direct or circumstantial, is available on record as against accused nos.5, 7, 12, 13, 14, 16 and 17; that conspiracy alleged has not been established; that the dying declaration propounded by the prosecution is not believable; and finally the prosecution failed to prove the complete chain of circumstantial evidence, unerringly pointing to the hypothesis of guilt of accused persons. ## ' - 6. Appellant s arguments: Sri.Sajan Mannali, learned counsel for the appellants, first pointed out that accused no.22 is a person having high political influence with Crl.A 28/2020 7 the then ruling party, with the result, the investigation progressed in a snails pace. The crime of the year 2011 was initially investigated by the S.H.O, Angamali Police Station, then by the Narcotic Cell and finally by the C.B.C.I.D. According to the learned counsel, nothing transpired during the period from 2011 to 2016. Thereupon, the appellant herein (wife of the deceased) filed OP(Crl.)No.578/2016 before the High Court. It is only pursuant to an interim order passed by the High Court that final report was filed, with undue hurry and haste. The indifferent and lackadaisical attitude of the investigating agency was reflected through out. Although four swords were recovered, only two were sent for forensic examination. Ext.P83 chemical analysis report would acknowledge receipt of four swords, whereas the report speaks of about two only, submits the learned counsel. 7. As many as 7 persons were discharged by the trial court, who were the office bearers of a Crl.A 28/2020 8 political party, with which A22 had substantial influence. Challenging the same, appellant herein filed another Writ Petition bearing no.9197/2019, pointing out the flaws in the investigation, which was, however, dismissed as not pressed vide judgment dated 12.3.2020. In the ongoing trial, even evidence with respect to the phone calls to prove conspiracy was not brought before the court. The call details brought before the trial court was not attempted to be proved, whereupon, the appellant filed C.M.P No.237/2019 seeking to reopen the case, for direction to produce the call data records and to mark the same. The said petition was dismissed, challenging which the appellant again approached the High Court in Crl.M.C No.4958/2019. Making critical comments about the course adopted by the trial court, the High Court allowed the said Criminal M.C, setting aside the order of the trial court in C.M.P No.237/2019 and directing the trial court to consider the same on merits. It is accordingly that evidence was reopened and the call data Crl.A 28/2020 9 records marked. Although the nodal officers of the companies involved were examined, the police officers of the Cyber cell, Ernakulam, who downloaded the data pertaining to phone calls, were not examined. The trial was also closed. The appellant again approached the High Court in Crl. M.C No. 419/2020 in order to summon the said police officers, which Criminal M.C was also dismissed on merits by the High Court. According to the learned counsel, the judgment impugned perpetrated miscarriage of justice, paving the way for the real culprits to escape from the clutches of law. Learned counsel contended that non certification of call data records will not affect its admissibility as held in State of Kerala v. Unni [2018 (2) KLD 475] . It was contended that this is a case, where A1 to A3 and A22 are the actual perpetrators, who engaged a quotation team under the leadership of A4 and work was executed by four others, namely A12, A13, A10 and A11. The learned Sessions Judge failed to find the above prosecution case made out from the evidence on Crl.A 28/2020 10 record, since it proceeded with a preconceived notion that the accused persons were innocent. The trial court went wrong in finding fault with PW1 for having omitted to state the dying declaration in his F.I Statement. It should have been noticed by the trial court that the first informant is not duty bound to place the entire facts before the police, but only to inform the gruesome incident, as is decipherable from the expression 'First Information Statement'. At any rate, the trial court grievously erred in not believing PW3, an independent witness, who also spoke about the dying declaration of the deceased. Learned counsel then contended that the trial court failed to appreciate the motive for the crime in its proper perspective. The evidence tendered by PW17, the niece of the deceased, was completely eschewed by the trial court. PW19, an employee at the poultry farm of the deceased, although declared hostile, spoke about the actual incident and even identified the swords employed, which evidence was also not given due credence, submits the learned Crl.A 28/2020 11 counsel. The chappals worn by the deceased at the time of the incident were not seized although the case was dealt with by as many as 5 investigating officers. The case at hand was a fit one for the trial court to order re-investigation, especially, in the light of the order of the Hon'ble High Court in Crl.M.C No.4958/2019. On such premise, learned counsel for the appellant seeks the impugned judgment to be set aside and to convict the accused persons in the light of the evidence on record, or in the alternative, to order further investigation. 8. Per contra, learned counsel for the respondents/accused argued in support of the judgment impugned. PWs 2 and 19, propounded as ocular witnesses, turned hostile. PWs 13, 16 and 20, who were examined to prove conspiracy, also turned hostile to the prosecution. As regards cyber evidence with respect to the call data, learned counsel submitted that it was not proved that the respective accused persons are the Crl.A 28/2020 12 subscribers of the phone numbers alleged. Nor was it established that the said accused persons have used such phone numbers. Besides, the call data was not supported by a certificate under Section 65-B, wherefore, the same is not admissible, as rightly found by the trial court. As regards the alleged dying declaration of the deceased, the omission to state the same in Ext.P1 F.I.S by PW1 is crucial and fatal. Besides, the medical evidence adduced through PW37 to the effect that the deceased was in hypovolaemic shock at the time of examination, rules out the possibility of any such declaration being made by the deceased during transit to the hospital. The victim was initially taken to MAGJ Hospital, from where, he was shifted to the Specialists Hospital, Ernakulam in an ambulance, during which course the alleged dying declaration was made. It has come out in evidence that the victim was administered with injection 'Tramadol' at MAGJ Hospital, which is an opioid narcotic. As per the evidence tendered by PW53, as also, vide Ext.P2, the patient will go to sleep at Crl.A 28/2020 13 once upon administering 'Tramadol'. As regards the very words alleged to have been spoken to by the deceased, there is no consistency amongst the witnesses. Besides, the words allegedly spoken of do not specifically relate to any circumstance leading to the death, but only constitute an opinion of the deceased, incapable of qualifying as a declaration under Section 32 of the Evidence Act. According to the learned counsel, the conclusion arrived at by the trial court is very much a possible one, besides being logical and rational, warranting no interference from this Court in a victim's appeal. Learned counsel finally reminded us of our limitations in interfering with a judgment impugned in an appeal against acquittal. 9. Before addressing the facts and evidence, we will first address the scope, limitation and the principles governing an appeal against acquittal. The High Court has the power to reconsider the whole issue, reappraise the evidence, and come to Crl.A 28/2020 14 its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse. In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence stands fortified and strengthened by the order of acquittal passed by the trial Court. If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanor of witnesses and observing their conduct in the Court especially in the witness-box. The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. Unless the High Court arrives at a definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its Crl.A 28/2020 15 own view on a totally different perspective. The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. [See in this regard: (1) Sheo Swarup v. King Emperor [AIR 1944 PC 227] , (2) Noor Khan v. State of Rajasthan [AIR 1964 SC 286] , (3) Khedu Mohton & Ors v. State of Bihar [(1970) 2 SCC 450] , (4) C.Antony v. K.G.Raghavan Nair [(2003) 1 SCC 1] , (5) Ramanand Yadav v. Prabhu Nath Jha [AIR 2004 SC 1053] , (6) Chandrappa v. State of Karnataka [(2007) 4 SCC 415] and (7) Syed Peda Aowalia v. Public Prosecutor [AIR 2008 SC 2573]]. 10. For the sake of convenience, the evidence adduced by the prosecution are grouped as follows:- - (1) Eye witnesses, (2) Witnesses to prove motive, (3) Witnesses to prove conspiracy, (4) Witnesses in support of dying declaration, (5) Witnesses to prove medical evidence, (6) Witnesses in support of cyber evidence and (7) Witnesses in respect of Crl.A 28/2020 16 recovery of weapon. We notice at the outset that several important witnesses propounded by the prosecution have turned hostile, which is one of the major contributing factors in acquitting the accused. ## 11. Ocular evidence PWs 2 and 19 are eye witnesses to the incident, according to the prosecution. While PW2 turned completely hostile, PW19 turned hostile in respect of material particulars. We will first examine the evidence of PW2. 12. PW2 was working in the poultry farm of the deceased. He, however, disowned having worked with the deceased on the date of incident. PW2 is not aware as to how the deceased got injured and that his knowledge about the injury is nothing but hearsay. He would specifically state that he had not seen the incident, in which the deceased got injured. The witness was declared hostile, whereupon the incriminating facts spoken to by PW2 Crl.A 28/2020 17 in his former statement were marked as Exts.P2 and P3 contradictions. The prosecution could not elicit any useful information/evidence from PW2. 13. PW19 would admit that he worked with the deceased in his poultry farm. However, he would state in chief examination itself that he is suffering from mental illness and that his family members took him to hospital recently. He deposed that deceased used to come to the farm by 7 a.m. The deceased had two employees, one hailing from Bengal and, the other, a native. PW19 was infected with fever on the date on which deceased got injured. He admits his presence in the farm, but would state that he only heard that deceased was attacked. PW19 deposed that he saw people coming to the farm, whereupon he heard the loud cry of deceased. Hearing this, PW19 sat there holding his hands on his head. Those who came - the witness meant the assailants - went near the shed in the farm. They were 4-5 in number and were youngsters. They came to see chicken. PW19 was also declared Crl.A 28/2020 18 hostile, whereafter, he stated that he had seen the persons who came to the farm, earlier. He would specifically state that he had not witnessed the incident, where deceased got injured. According to PW19, he did not look at the spot, since he was not well. He would, however, admit that Thommi was attacked with a long sword and that there were 3-4 such swords. Those who came - the assailants - pushed PW19. To a specific question, PW19 would answer that the swords would have been brought by those who came. He deposed that he cannot identify the swords, which he saw on the date of incident. PW19 deposed that the deceased was not attacked at the poultry farm, but was lying injured therein. PW19 has no knowledge as to who attacked the deceased. He also does not know whether the assailants are there in the accused-box of the court. Exts.P27 to P35 contradictions were marked through PW19. In cross examination by accused nos.1 to 3, PW19 would state that he was taking medicine for mental disease for the past 28 years. At times, his Crl.A 28/2020 19 family members used to tie his hands and legs and take him to the hospital for treatment. It was also elicited that PW19 used to take sleeping pills and that he was having severe mental disease at the time when deceased died. 14. An analysis of the evidence tendered by PW19 would indicate that he is prevaricating, besides disowning to have witnessed the core of the incident and failing to identify the accused. His version that he did not look at the spot, since he was not well is not convincing. His initial denial of the manner in which the deceased got injured, followed by his hesitant disclosure about the attack by swords, without identifying the accused is of no avail to the Prosecution. No credence can be attached to the evidence tendered by PW19. 15. We conclude the topic by holding that the trial court rightly discarded the evidence tendered by PW2 and PW19. Crl.A 28/2020 20 ## - 16. Evidence to prove motive: The prosecution relied upon the evidence tendered by PWs 6, 7, 9, 10, 11, 14, 15, 17, 25 and 27 to prove the motive alleged. The motive alleged is one arising from the Panchayat election of the year 2010. A22 (Shaju Chacko) and PW25 (Paul P.Joseph) have contested the said election from Ward no.14 of Mukkannur Panchayat. PW25 was contesting as an independent candidate. He won the election and A22 lost. It was the deceased who persuaded and prompted Paul P.Joseph to contest the elections. While a procession to celebrate the victory was going on, one Njalian Paul (PW14) was attacked by A22 (Shaju Chacko), A1 (Wilson) and A2 (Saji). The case registered pursuant thereto was settled at the instance of political leaders for an amount of Rs.10,000/- as compensation, which, however, was not paid to PW14. In 2011, February, PW14 attacked the wives of accused nos.1 and 22 with a knife, causing injuries on their face. Accused nos.1, 2 and 22 Crl.A 28/2020 21 believed that the attack was orchestrated by the deceased and therefore, bore extreme animosity to him. This is the prosecution version as regards the motive. 17. In order to prove the motive, the witnesses above referred were examined, which we will deal with, one by one. PWs 6 and 7 are wives of A1 and A22. Both witnesses supported the prosecution version to the extent that they were attacked by PW14 while they were returning from Church at about 7 p.m. The incident took place 5-6 years before the date on which the evidence was adduced, according to PW6, and 7-8 years before, according to PW7. While PW6 was attacked on her both cheeks, PW7 was attacked above her left eye, requiring 14 sutures. PW6 would state that Njalian Paul attacked her due to political rivalry. PW7 would state that she came to know that the attack was motivated by political rivalry. However, both the witnesses turned hostile to the prosecution version that it was the deceased, who occasioned Crl.A 28/2020 22 the attack by PW14. Both of them specifically denied that accused nos.1 and 22 had animosity to the deceased on account of the said incident. Suggestions made by the learned Public Prosecutor in this regard are seen specifically denied by the witnesses. 18. Two other important witnesses are PWs 9 and 10, both being elder brothers of the deceased. PW9 spoke about the election contest between A22 and Paul P.Joseph (PW25) and also about the success of the latter. Further, he deposed that during the procession in connection with the celebration, PW14 was attacked by accused nos.1, 2 and 22 and that the said case was compromised. The amount agreed was however not paid, with the result, PW14 attacked wives of A1 and A22. PW9 specifically deposed that accused nos.1, 2 and 22 bore animosity to his brother/deceased, on the impression that it was he who orchestrated the attack on the wives of accused nos.1 and 22, through PW14. PW9 deposed that after the said Crl.A 28/2020 23 incident, deceased was continuously being threatened by the said three accused persons. In the case registered pursuant to the attack made by PW14, deceased was also made an accused and he was incarcerated for 24 days. Even after he was enlarged on bail, the accused persons used to create provocation, with an eye fixed on involving the deceased in a criminal case, so that they can seek to get his bail cancelled. In cross examination, PW9 would state that instances of provocation etc. are things which came to his knowledge as spoken to by deceased. It was brought out that these matters were not stated by PW9 at the time he was questioned as an inquest witness. It is also seen brought out that there was no discussion between the brothers, as to who attacked their brother, when deceased was being taken to Specialists Hospital and after reaching there. According to PW9, everybody was aware of the persons behind the act. But even he omitted to speak of the animosity at the inquest of his murdered brother. Crl.A 28/2020 24 19. Similar is the evidence tendered by PW10. In addition, PW10 would state about an incident when himself and deceased went for a house warming function at Cheranelloor. There, the deceased told him that the accused persons are trying to get his bail cancelled by provoking him to get involved in some crime. PW10 also spoke that the accused persons attempted to kill him in the pretext of a bus accident. PW10 also specifically deposed that accused nos.1, 2 and 22 bore serious animosity to the deceased. In the evidence of PW10, there is no contradiction as regards this aspect of motive. Nor is there any omission brought out. 20. PW11, the wife of the deceased specifically spoke about the Panchayat Election of the year 2010, about the success of Paul P.Joseph (PW25), about the role of her husband in the success of Paul P.Joseph, about attack on PW14 by accused nos.1, 2 and 22, about counter attack by Njalian Paul on wives of accused nos.1 and 22 during February, 2011, about the strong belief being Crl.A 28/2020 25 harboured by accused persons that it was deceased, who was behind the attack by PW14, and that her husband was arrested and was in Jail for 24 days in that incident. She also deposed about the provocation made by the accused persons on her husband, so as to entrap him in a criminal case. PW11 specifically stated that on 4[th] July, 2011, one person called her husband from Thammanam threatening that he will chop his hands and legs. The incoming call number was given to the police. On the same day, there was another threatening call from a different number. PW11 deposed about a Benz car found parked in front of their house on August 7[th] at about 8.45 p.m and A2 (Saji) alighting from the car. 2-3 others were also with him. She heard them uttering the name of deceased Thommi. She also spoke about an incident where accused nos.22, 1 and 2 threatened her husband by saying that if they are not in a position to attack the deceased by themselves, they will get it done through others, about which she was told by her husband. She finally referred to an Crl.A 28/2020 26 incident where she was threatened by accused nos.1, 2 and 22 that they have kept something in stock for her and that she will be put to permanent despair. In cross examination, PW11 would state that her husband was arrested in public, while attending a marriage function. It is brought out in cross examination that in her former statement, she had not stated about the murder attempts made by A1 and A22 by using vehicles. Similarly, the allegation against A22 (Shaju Chacko) that he will do away with the deceased by employing others is also not spoken to by PW11 in her former statement. PW11 would state in cross that her husband disclosed his fear about the accused persons to his brothers. In cross examination on behalf of accused nos.12 and 13, it has been brought out that in her former statement, PW11 had not spoken about A2 alighting from the Benz car parked in front of their gate. 21. PW14 was a neighbour of the deceased. He turned hostile to the prosecution. He spoke about Crl.A 28/2020 27 the incident, where wives of accused nos.1 and 22 were attacked. He initially claimed ignorance as to whether deceased was an accused in that case and then went to the extent of saying that deceased was not an accused in that case. He is not aware of the reason why the wives of accused 1 and 2 were attacked. Exts.P10 to P14 contradictions were elicited through PW14. 22. PW15 is the wife of PW14, Njalian Paul. She also turned hostile to the prosecution as regards the motive. She admitted that her husband was the accused in attacking the wives of accused 1 and 22. But she deposed that no other accused person was involved in that crime. She also spoke about the incident, where her husband was attacked by accused nos.1, 2 and 22, during the course of procession after the election. PW15 deposed that it was the deceased and PW25, who took initiative to settle the matter. A specific question suggesting that deceased acted in aid of PW14 in attacking wives of accused 1 and 22 is seen Crl.A 28/2020 28 denied by PW15. She claimed ignorance as regards any such motive. 23. PW25, Paul P.Joseph, was the headmaster of a school. He contested against A22 in the Panchayat election in Ward no.14 of Mukkannur Grama Panchayat as an independent candidate and he succeeded. He deposed that in 2011, he was also made an accused in the case, where wives of accused nos.1 and 22 were attacked by Njalian Paul (PW14). Deceased Thommi was also roped in that crime. PW25 got bail, whereas the deceased and PW14 were incarcerated for some time. PW25 specifically deposed that accused nos.1, 2 and 22 became seriously inimical to the deceased because of that incident. There is no serious cross examination to the evidence deposed by PW25. 24. PW17 is the daughter of the brother of deceased. She propounds a case that A1 told her that in the coming six months, only one among A1 and deceased will be alive. This version of PW17 Crl.A 28/2020 29 is difficult to believe. PW17 is ordinarily residing at Changanassery. She left her parental home at Parambayam, ever since her marriage in the year 2007. Her claim is that she comes on every month to take care of her property, at Parambayam. PW17 refers to one Jomon, as the person who takes care of her property. According to her, she entrusted Wilson (A1) to have some granite pieces unloaded in her property. A1 was entrusted by Jomon. She had specifically stated in crossexamination that usually, she would entrust money for the work done to Jomon, who, in turn, would give it to the respective party. Insofar as this particular transaction is concerned, her claim is that she was contacted by A1, who told her that the amount need not be given to Jomon; instead, the same be given to A1 directly, when PW17 comes for qurbana, in connection with her mother's death anniversary. One fails to understand how A1 would come to know about PW17's plan to come for qurbana. It has been elicited in cross-examination that there is no close acquaintance between PW17 Crl.A 28/2020 30 and A1. On reading the evidence tendered by PW17 as a whole, we are not convinced of her bonafides, as also, the credibility of her evidence. We cannot, but discard the same. 25. PW27 is the brother-in-law of deceased. In his case also, we are not persuaded to place any intrinsic reliance. According to PW27, he was contacted by mother of A22 (Shaju Chacko), seeking an interference to settle the issues between A22 and the deceased. Accordingly, he contacted A22, whereupon A22 told him that without the involvement of the deceased, PW14 would not have attacked the wives of A1 and A22. Besides, A22 also told him that a bigger case is yet to come, pertaining to the deceased, which PW27 can see in the near future. The factor, which persuades us to disbelieve the above version is that none of the above facts were spoken to by PW27 in his former statement. The above referred facts are however seen spoken of by the witness in his statement given to Crime Branch. In as much as the witness Crl.A 28/2020 31 had not spoken about the afore referred incriminating circumstances in the first statement before the police, we are not persuaded to rely upon his evidence. The same does not inspire confidence in our minds. 26. Out of the witnesses referred above in proof of motive, PWs 6 and 7 did not support the prosecution version. PWs 14 and 15 have turned hostile to the prosecution version. Although, PWs 17 and 27 supported the prosecution, their version is not fully believable for the reasons already adverted to. 27. However, we find that the evidence tendered by the wife of the deceased (PW11), PW25 and the brothers of the deceased (PWs 9 and 10) are quite convincing. PW25, the one who contested against A22, had direct knowledge about the incident, which constituted the motive. He spoke about the attack against PW14 and his counter attack on the wives of accused nos.1 and 22, in which case, he, Crl.A 28/2020 32 along with the deceased, were also roped in as accused persons. Finally, he specifically deposed that accused nos.1, 2 and 22 became seriously inimical to the deceased because of that incident. Similarly, PW11, the wife of the deceased, categorically spoke about the incidents which constituted the motive. It is worthwhile to point out that neither PW25 nor PW11 were subjected to any serious cross examination as regards the motive component. In support to the evidence tendered by PWs 25 and 11, PWs 9 and 10, who are the elder brothers of the deceased, also vouched the motive alleged. Their version is not eroded in the cross examination. We find no reason for the said witness, who are closely connected with the deceased, to propound a false story as regards motive. We, therefore, conclude that the prosecution has succeeded in proving the motive of accused nos.1, 2 and 22 against the deceased. Point found accordingly. Crl.A 28/2020 33 ## 28. Witnesses to prove conspiracy The prosecution propounded PWs 13, 16 and 20 to prove conspiracy. According to the prosecution, a few hours before the incident in this case, two cars came to the poultry farm of A1. A4 and 3-4 others were there in the car. The witnesses have heard A1 and A22 speaking to the persons, who came in the car. After some time, the said cars returned, of which the red Alto alone came back. According to the prosecution, the incident witnessed by the above referred witnesses is the phase where accused nos.1 and 22 have entrusted A4 and his team members the task of doing away with the deceased. 29. However, none of the above witnesses have supported the prosecution version and all have turned hostile. They deposed that they have not witnessed any conspiracy or any get-together of accused nos.1, 2, 4 and others on the previous day of the incident. Exts.P8 and P9 contradictions were marked through PW3. Exts.P18 to P24 Crl.A 28/2020 34 contradictions were marked through PW16. PW20, the Forest Watcher, supported the prosecution version to a very limited extent, that is to say, he saw two cars passing through the forest area in the night before the incident. But he could neither identify the cars; nor the persons, who traveled therein. Exts.P36 to P40 contradictions were marked through PW20. We, therefore, fully endorse the findings of the learned Sessions Judge that the prosecution miserably failed to prove the conspiracy component. Point concluded accordingly. ## 30. The alleged dying declaration and its sanctity: Prosecution relies upon the evidence tendered by PWs 1, 3, 9, 10 and 23 to prove the dying declaration alleged to have been made by the deceased during the course of his transit to hospital. PW1 is the husband of sister of the deceased. Upon information received through the brother of deceased by name, Devassikutty (PW9), both of them went to MAGJ Hospital in a jeep, Crl.A 28/2020 35 where deceased was lying in a stretcher, in a pool of blood. The deceased asked for some medicine to alleviate pain, whereupon the doctor gave an injection. As instructed by the doctor at MAGJ Hospital, the deceased was taken to Specialists Hospital, Ernakulam. Brothers of the deceased, namely PW9, PW10, PW23, wife of PW9 - Shakkeela, one Ouseph and PW1 accompanied the deceased in the ambulance. By about 10.10, the deceased was declared dead by the doctor at Specialists Hospital. PW1 gave Ext.P1 F.I.S. It is important to note that PW1 did not say anything as regards the dying declaration of the deceased in Ext.P1 F.I.S or in chief examination. However, in cross examination, he would state that he heard the deceased saying something in the ambulance. Therefore, the evidence of PW1 is not of any assistance to the prosecution, insofar as the dying declaration is concerned. 31. According to PW3, the deceased laid his head on his lap, in the ambulance. On the way, deceased Crl.A 28/2020 36 asked for some water and PW3 gave the same. PW3 would depose that deceased told him that Wilson (A1), Shaju Chacko (A22) and Saji (A2) betrayed him. We can only discard the above version of PW3, propounded as dying declaration, for the reason that this version does not find a place in his former statement. The version that the deceased laid his head on the lap of PW3, that he asked for water and PW3 gave it, and the alleged dying declaration, all are crucial omissions, amounting to contradictions. No credence, whatsoever, can be attached to the same. The alleged dying declaration being seminal pointing to the perpetrators of the crime, would not have been omitted by PW3 in his former statement, had there been, as a matter of fact, such a declaration made by the deceased. This renders the evidence of PW3 suspect. 32. PW9 is the brother of deceased. Upon receiving information that deceased is being assaulted, PW9 came to the farm of deceased in the bike of one Crl.A 28/2020 37 Sasi. When he reached there, Ajo (PW3), Joy (PW19), Sebi, Davis and Jomon were there and they were tying the wounds of deceased. Deceased was taken in an autorickshaw and PW9 also accompanied him. In that autorickshaw, deceased told PW9 that A2, A1 and A22 have caused to inflict cut injuries on him. We immediately take note that going by the version of PW3, the alleged dying declaration was made by the deceased in the ambulance during his transit from MAGJ Hospital to Specialists Hospital, whereas as per PW9, the said dying declaration was made while the deceased was taken to MAGJ Hospital in an autorickshaw. Here again, we cannot attach any credence to the version of PW9. By virtue of Exts.D2 and D5 contradictions marked through PW9, the very presence of PW9 in the autorickshaw has become suspicious. Going by Exts.D2 and D5 versions of PW9 in his former statement, PW9 reached MAGJ Hospital in a jeep, whereas the deceased was taken in an autorickshaw. Therefore, the very possibility of such a dying declaration being made by the deceased to PW9 Crl.A 28/2020 38 itself appears to be impossible. That apart, dying declaration alleged to have been made by the deceased to PW9 does not find a place in his former statement, which omission is crucial in our estimation, rendering the evidence of PW9 suspect. It has been specifically brought out that in the statement recorded on 1.9.2011 also, PW9 had not spoken about any dying declaration of the deceased. A clear afterthought, as alleged and canvassed by the defence, appears to be probabilised. 33. Another witness examined by the prosecution to prove the dying declaration is PW10 (Varkey), the elder brother of deceased. He would depose that he got information that the deceased was seriously injured and that he went to MAGJ Hospital along with his wife. When they reached the hospital, deceased was being taken to ambulance. The deceased was lying with his head on the lap of PW3 (Ajo). Apart from PW10 and his wife, his brother Joy (PW23), Sebastian @ Baby (PW1) were also there Crl.A 28/2020 39 in the ambulance. When PW10 asked deceased as to what happened, he replied that the attack was caused to be done by A22, A1 and A2. He also deposed that deceased told Joy (PW23) that he need not come to the hospital, but required of him, instead, to go and attack the said three accused persons. In cross, PW10 would admit that the alleged version of deceased Thommi to Joy (PW23) requiring him to attack the accused persons, is not spoken to PW10 in his former statement. The capacity of the deceased to speak at the time when he was being taken from MAGJ Hospital to Specialists Hospital, was also challenged in cross examination. It was suggested that due to the severity of the injuries and also on account of the fact that the deceased was under sedation due to the medicines administered, he was not in a position to speak. PW10, however, denied the suggestion. 34. PW23, the younger brother of deceased got information about the traumatic incident of the Crl.A 28/2020 40 deceased over phone, and accordingly he went to MAGJ Hospital. Within five minutes, the autorickshaw carrying the deceased reached the hospital. Apart from driver, one Mijo alone was there in the autorickshaw. This version of PW23 is contrary to the version of PW3, who deposed that Devassikutty (PW9) and Mijo took the deceased in the autorickshaw to MAGJ Hospital. PW23 and Mijo carried the deceased to the casualty of the hospital. PW23 asked the deceased as to what happened. The deceased replied that the attack was caused to be done by A22, A1 and A2. According to PW23, deceased also told him that he will die and that PW23 and others should be careful. The said version was repeated in the ambulance, when deceased was taken to Specialists Hospital from MAGJ Hospital. PW23 reiterated that deceased wanted him to go and attack the accused persons. This was repeated in the ambulance also. However, in cross examination, the entire version of PW23 crumbles to the ground. It was elicited from PW23 that the alleged version of dying declaration, as Crl.A 28/2020 41 also, the alleged desire of deceased that PW23 should attack the said three accused persons, do not find a place in the former statement given by PW23. Besides, PW23 was a witness to the inquest as well. His statement is recorded. In that version also, there is no whisper, whatsoever, about the alleged dying declaration. It has been further brought out in cross examination that the Police asked as to the cause of death to his brothers, which PW23 heard. Obviously PW23 had no answer at that time. Further, the police also enquired about relatives, if any, who can give reasons for the death of the deceased, whereupon also, PW23 was not persuaded to step forward and speak about the alleged dying declaration. Ext.D10 contradiction is seen marked through PW23, which would indicate that PW23 straightaway went to Specialists Hospital on getting information that the deceased is taken to the said hospital. If that be so, the possibility of a version being spoken to by the deceased to PW23, initially at MAGJ Hospital and thereafter in the ambulance, can Crl.A 28/2020 42 be ruled out. In the circumstances, it can safely be concluded that the version of PW23 cannot be taken stock of in support of the alleged dying declaration. Before concluding the topic, we will also look into the medical condition of the deceased, while appreciating his capacity to make the dying declaration. ## 35. Medical evidence in the context of capacity to - make dying declaration: Ext.P53 is postmortem report and its author is examined as PW33. A perusal of Ext.P53, as also, the evidence tendered by PW33, would clearly establish that the deceased suffered massive injuries, 11 in the right upper limb, 5 in the right lower limb, 3 in the left lower limb, 16 in the left upper limb, besides three incised wounds over the trunk. The evidence in Ext.P53, supported by the version of PW33, indicate that the left lung had collapsed, that all organs were pale as the patient had bled out and that the injuries were caused by heavy cutting weapons, since there Crl.A 28/2020 43 were chip fractures of the bone. However, PW33 deposed that it will take time to bleed out, since the vessels are medium sized vessels, and therefore, death won't be instantaneous. PW33 maintained that he cannot say how long the patient would have remained conscious. In cross examination, it is elicited that if pulse is not recordable, which is a most common condition of death, it indicates that the patient is in shock; he could be dead also. But by resuscitation, the pulse may come back. The suggestion, that if pulse is not recordable, it will be a case of irreversible extreme shock, was denied by PW33. 36. The deceased was first taken to MAGJ Hospital, the records of which, is produced as Ext.P58, marked through PW49. PW49 is the Administrator of the hospital, who was examined only in his capacity as the custodian of the case sheet. However, a perusal of Ext.P58 case sheet would indicate that deceased Thomas was administered injection 'Tremedol' and that he was referred to a Crl.A 28/2020 44 higher centre, since the patient's condition was critical. The impact of administering analgesics, like 'Tremedol', has been spoken of by PW53, the C.M.O of Specialists Hospital, Ernakulam. According to him, 'Tremedol' is an analgesic, a kind of opioid and a narcotic. It relieves pain by acting on the central nervous system and it reduces body's capacity to sense pain. Vomiting is the most common side effect and sleep will come at once. Based on this evidence, it was strenuously argued by the learned defence counsel that if 'Tremedol' is administered to the deceased at MAGJ Hospital, he would have gone to sleep at once, as spoken of by PW53, in which case, the possibility of a dying declaration as canvassed by the prosecution is practically nil. However, a contrary opinion is expressed by PW37, another Casualty Medical Officer of Specialists Hospital. In chief examination, she deposed that the patient himself had stated the history. This statement is not seen challenged in cross examination, although it was suggested that the patient without palpable Crl.A 28/2020 45 pulse will not be in a condition to talk. We perused the history stated at Ext.P61 wound certificate, wherein it is stated “Alleged H/o Assault near Mookanor at 6.00 am on 28/8/11 by 3 known persons and 3 unknown persons”. However, it is pertinent to note that PW37 also deposed that the patient was going into hypovolaemic shock and that his pulse was feeble and blood pressure not recordable. In cross, it was clarified that the pulse could be felt, but could not be counted. It is further elicited in cross examination that when pulse is feeble, it implies that the cardiac output was very low, which is the final stage of hypovolaemic shock. PW37 would vouch that during examination, the deceased was occasionally becoming unconscious. It is seen elicited that the patient was going into shock when he was brought to the hospital and that he may or may not able to speak sensibly at that time. PW37 also deposed that administration of analgesics will have an impact on the consciousness of the patient. Crl.A 28/2020 46 37. Thus two versions as regards the capacity of the deceased to make a dying declaration has surfaced. PW53, the C.M.O attached to the Specialists Hospital, deposed that the patient will go to sleep at once upon administering injection 'Tremedol'. PW37, another C.M.O attached to the same Hospital, deposed that it was the patient himself, who gave history at the time of admission. Having regard to the opinion of PW53 and the severity of the multiple injuries sustained by the deceased, the learned Sessions Judge discounted the possibility of the deceased himself stating the history before PW37. The learned Sessions Judge also considered the fact that PW37 is deposing before the court years after the incident and, therefore, it cannot be comprehended that PW37 would remember specifically as to who gave the details of history. Here, it is significant to note that the one, who recorded history in Ext.P61 wound certificate is not PW37. Instead, it is PW53. He had not adduced evidence to the effect that it was the patient himself who Crl.A 28/2020 47 stated the history. Instead, in re-examination, he would state that the deceased was in hypovolaemic shock, that he was speaking disoriently and that he could not have given any sensible answer in such condition. Therefore, this Court is not in a position to take stock of the solitary evidence of PW37 to find that the deceased was having the capacity to make a dying declaration. When two versions as regards the capacity of the deceased to make a dying declaration surface, we cannot find fault with the Sessions Court in taking the one in favour of the accused. 38. The above finding regarding the capacity of the deceased to make a dying declaration, coupled with the inherent lack of trustworthiness of the evidence tendered in support of dying declaration due to serious omissions, amounting to contradictions, we are not in a position to accept and act upon the alleged dying declaration of the deceased. Point found accordingly. Crl.A 28/2020 48 ## 39. Cyber evidence with respect to use of mobile - phones by the accused: As per the evidence adduced by PW59 - the crime branch inspector - mobile phone no.9847100004 belongs to the first accused. The details of the calls pertaining to that number received in the mail of the Superintendent of Crime Branch is marked as Ext.P84. Similarly, mobile phone nos.9744709211, 9656250290, 7871690100 and 9447791963 are the numbers used by A2 to A4 and A22, respectively. The respective call details of the said phone numbers have been produced and marked as Exts.P85 to P88, respectively. The trial court discounted this evidence for the reason that in the call details provided at Exts.P84 to P88, name of the subscriber is not seen mentioned. According to the trial court, the prosecution could not establish that the respective accused persons have used the above referred numbers, so as to connect them with the crime in question. Crl.A 28/2020 49 40. Having scanned through the evidence tendered by PWs 54, 57, 58 and 59, we find no infirmity in the above conclusion arrived at by the learned Sessions Judge. The relevant witnesses are PW54, the Detective Inspector; PW57, the nodal officer of Vodafone-Idea Ltd.; PW58, the nodal officer of BSNL and PW59, the Inspector of Crime Branch. We cannot assign any evidentiary value to Ext.P90 chart prepared by PW54, since it only contains the analysis of the call data details of accused nos.1 to 4, 22 and 23 during the period 15.8.2011 to 28.11.2011. PW54 would admit in cross that the names of the accused persons are not mentioned in Ext.P90 chart. In answer to a suggestive question that the phone numbers referred to in Ext.P90 chart are not that of the accused persons, PWs 57 and 58 nodal officers, both, deposed that the call details for a period of one year alone will be kept in the server and therefore, the details pertaining to the year 2011 are not available therein, since it gets deleted automatically upon the expiry of one year. Both deposed that they Crl.A 28/2020 50 cannot vouch the authenticity of the respective call data details. PW59, the Inspector of Crime Branch, although deposed that the specific mobile numbers were used by accused nos.1 to 4, 22 and 23, had to admit that the name of the subscriber is not available in Exts.P84 to P89 records; rather names of the accused persons are not shown as subscribers to the respective numbers. It was further elicited from PW59 that Exts.P84 to P89 call data records are not duly certified under Section 65-B of the Evidence Act. 41. Now we come to the final contention of the learned counsel for the appellant pertaining to certification under Section 65-B of the Evidence Act based on the decision in State of Kerala v. Unni [2018(2) KLD 475] . We may straightaway reject this contention, as the same is not sustainable, in view of the authoritative pronouncement of the Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others [(2020) 7 SCC 1] . A three Judges Bench of the Hon'ble Crl.A 28/2020 51 Supreme Court held in Anvar P.V. v. P.K.Basheer [(2014) 10 SCC 473] that the certification under Section 65-B of the Evidence Act is mandatory. A two Judges Bench of the Honourable Supreme Court in Shafhi Muhammad v. State of Himachal Pradesh [(2018) 2 SCC 801] , however, held that Section 65-B is procedural and hence not mandatory. The earlier legal position held in Anvar P.V. (supra) was restored in Arjun Panditrao (supra) by another three Judges Bench of the Hon'ble Supreme Court, after taking note of this dichotomy between Anvar P.V. (supra) and Shafhi Muhammad (supra). The three Judges Bench held that a certificate under Section 65-B is mandatory in order to render an electronic record admissible in evidence. A clarification was given to Anvar P.V.'s case (supra) that if an electronic record is used as such as a primary evidence under Section 62 of the Evidence Act, the same is admissible, even without a certificate under Section 65-B of the Act, which situation is, however, not arising in the given facts. Therefore, the contention of the appellant, Crl.A 28/2020 52 that the call data records vide Exts.P84 to P89 ought to have been considered in evidence or held admissible in evidence even in the absence of a certificate under Section 65-B, cannot be accepted. 42. In the light of the evidence discussed above, particularly in the absence of the names of the subscribers of the numbers alleged to have been used by the respective accused persons, as also, the certificate under Section 65-B, we cannot but endorse the findings of the trial court that the prosecution failed to produce adequate materials to connect the accused persons with Exts.P84 to P89 call data records. Point answered accordingly. ## 43. Evidence with respect to recovery of weapons: The final topic to be dealt with is the prosecution evidence adduced to prove recovery of weapons based on the confessional statement made by accused nos.13 and 12 under Section 27 of the Evidence Act. The original accused no.13 is Crl.A 28/2020 53 accused no.8 in the subject Sessions Case. Based on his confessional statement, MO1 sword was recovered, as evidenced from Ext.P25 mahazar, wherein PWs 18 and 22 are the attesters. The recovery was disbelieved by the learned Sessions Judge for the following reasons:- - (1) Recovery was effected after 43 days from the date of occurrence. MO1 sword was merely kept under a cot in the south-western room of the house of the accused. It is difficult to believe that MO1 was not noticed by anyone, at least when the room was swept and cleaned. - (2) According to the prosecution, recovery was effected from the house of A13, but no evidence was adduced to show that the house belongs to A13. PW36 is the Secretary of Mooriyadu Grama Panchayat. He deposed that the said house belongs to one Radha, W/o.Rajendran. Therefore, exclusive knowledge of A13 as regards concealment is not established. - (3) As per Ext.P56 chemical analysis report, Crl.A 28/2020 54 no human blood was detected on MO1 sword. 44. We are in agreement with the conclusions arrived at by the learned Sessions Judge. In addition to the above reasons, we also find that PW18, who is an attester to Ext.P25 mahazar, is a member of the investigating team. It has been elicited in cross examination that he is a witness to all mahazars prepared by the investigating officer in the instant crime. In the circumstances, we are not in a position to place substantial reliance upon the evidence tendered by PW22. That apart, he spoke about the identification marks of MO1 sword before the court, which, however, was not stated by him in his former statement, which omission appears to be material. 45. The second recovery is with respect to MO4 sword based on the confessional statement of accused no.12, who has been arraigned as the 7[th] accused in the subject Sessions Case. Ext.P54 is Crl.A 28/2020 55 the mahazar. PWs 38 and 43 are the attesters, both of whom turned hostile to prosecution. Here again, the place from where recovery was effected is a chicken coop of a house belonging to accused no.12 in Parpookkara Panchayat. According to PW34, the Secretary of the Panchayat, the house belongs to one Vasudevan. Thus, the prosecution version that accused no.12 gave a confessional statement that the weapon was secreted in his house is not proved. There is nothing on record to show that the house belongs to accused no.12, which tells harsh upon the exclusive knowledge of A12 regarding concealment. As per Ext.P56 chemical examination report, no blood was detected on MO4 sword. For the said reasons, the trial Judge disbelieved recovery of MO4 sword. 46. We find that the reasons stated by the trial court are cogent and its view, quite probable, based on evidence on record. The learned Sessions Judge also observed in paragraph no.67 of the judgment that even if the recovery is taken to be Crl.A 28/2020 56 proved, the court cannot take stock of the same as the sole repository to convict an accused. Section 27 being an exception to the mandate under Sections 25 and 26, requires strict proof. The facts and circumstances, as taken note of above, does not answer the requirements of strict proof. Therefore, we reject the evidence based on recovery of weapons. 47. As is trite, what is to be looked into while appreciating an appeal against acquittal is to ensure whether the view taken by the trial court is a possible one, based on the evidence on record. Whether a different view/conclusion is possible is wholly immaterial, unless and until it is found that the view taken by the Sessions Court is perverse and not sustainable at all. We cannot find any misreading or misappreciation of evidence. We cannot say that the judgment impugned is perverse in any manner, whatsoever. Nor could we find any failure of justice occasioned by the impugned judgment. Crl.A 28/2020 57 48. In the light of above discussion, this victim appeal fails and the same is hereby dismissed. Sd/K.VINOD CHANDRAN JUDGE Sd/C.JAYACHANDRAN JUDGE jg