State of Kerala represented by Public Prosecutor v. Unni

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** ## **CRL.A.No. 1488 of 2012** **AGAINST THE JUDGMENT IN SC 201/2008 of SESSIONS COURT, ALAPPUZHA DATED 12-10-2012** ## **APPELLANT/ACCUSED:** **UNNI AGED 21 YEARS S/O.RAMENDRA LAL, PANAYKAL VEEDU, POONTHOPPU WARD, ALAPPUZHA, NOW RESIDING AT JAFFER MANZILLIL, ASRAMAM WARD, ALAPPUZHA.** **BY ADV. SRI.B.RAMAN PILLAI (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY ADV. SR PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, THE COURT ON 19.02.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.1488/12 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the accused in SC No.201/2008. By judgment dated 12/10/2012, he was convicted and sentenced to undergo imprisonment for life and to pay a fine of `50,000/(Rupees Fifty thousand only) for offence u/s 302 I.P.C. and to undergo simple imprisonment for one month for the offence u/s 341 of I.P.C. The prosecution alleged that the accused inflicted serious injuries on Tony on 27/8/2007 at about 8.30 p.m. Though the injured was taken to the Medical College Hospital, Alappuzha, he succumbed to the injuries at 9.15 p.m. 2. PW1, who is the younger brother of deceased Tony's father, gave the First Information Statement to the Sub Inspector of Police, North Police Station at 8.30 a.m on 28/8/2007 on the basis of which, crime was registered. Ext.P1 is the FIS and Ext.P1(a) is the FIR. PW12 undertook investigation and after completing the investigation, final report was submitted to the Judicial First Class Magistrate Court-I, Alappuzha which was later committed to the Court of Sessions for trial. PW1 to 12 were Crl.Appeal No.1488/12 -:3:- examined on the side of prosecution and they placed reliance on Exts.P1 to P18. MO1 to MO4 were the material objects that were produced and identified. 3. The accused denied the incriminating evidence against him while being questioned u/s 313 of Cr.P.C. and after completing the procedural formalities, the trial Court convicted the accused as stated above. 4. Learned counsel for the appellant while impugning the aforesaid judgment contended that though PW2, PW3, PW5 and PW6 are cited as occurrence witnesses, it could be seen that all of them gave a tutored version and if their evidence is discarded, there is absolutely no other material to implicate the accused to the crime. It is argued that the very prosecution case seems to be impossible taking into account the fact that it is not possible for the accused alone to overpower Tony who was a tall and hefty person. On a reading of the inquest, it will be evident that at the time when the inquest report was prepared, PW2 or PW3 had no idea about the accused. PW2 and PW3 did not even mention about the presence of PW5 and PW6 at the time when the crime was committed. There is also discrepancy in the nature of Crl.Appeal No.1488/12 -:4:- weapon used for the crime, which is also evident from the inquest report and the knife which was recovered based on the confession statement. It is also pointed out that PW10 has recorded the FIS purportedly at 8.30 am on 28/8/2007. There is no mention about the address of the accused in the FIS, whereas in the FIR, which was prepared simultaneously, the address of the accused is shown. That apart, the Magistrate Court is 3 kms north-east of the Police Station and though the FIR is seen to have been recorded on 28/8/2007 at 8.30 am, it reached the Court only on 30/8/2007 which clearly indicates that the FIR and FIS had been manipulated. The accused was arrested on 30/8/2007 at 8.00 p.m. Exts.P12 to P14 are the arrest memo, inspection memo etc. Ext.P10 is the search list prepared between 1.30 p.m and 3 p.m on 30/8/2007. The house of the accused was searched. But he was arrested only at 8.00 p.m. It is pointed out that there are several discrepancies and lapses in the investigation and consequently the accused is entitled for the benefit of doubt. It is submitted that the incident has not happened in the manner as alleged by the prosecution and it is clear that the FIS was prepared after the inquest. Learned Crl.Appeal No.1488/12 -:5:- counsel also took us through the oral evidence of the witnesses in order to support the argument. 5. Learned counsel also placed reliance upon judgment of the Apex Court in _**Kailash Gour and Others v. State of Assam**_ (AIR 2012 SC 786). This judgment has been cited to emphasise the point that there should not be any delay in registering the FIR. Relevant portions in paragraphs 26 and 27 reads as under:- _**“26** . xxxx_ _As a matter of fact, the police arrived on the spot within minutes of the commission of the gruesome murders not because any report was made to it about the said crime but because it had received information about a house having been set on fire. xxxx_ _If the prosecution version were to be believed, the Investigating Officer had the opportunity of getting an eyewitness and first hand account of the incident within minutes of the commission of the crime. In the ordinary course, the Investigating Officer would have immediately recorded the First Information Report based on the eye-witness account of_ _the occurrence given by Md. Hanif and started his investigation in the right earnest. That is not, however, what happened. No effort was made by the Investigating Officer nor is there any explanation for his failure to ascertain from the alleged eye-witness the sequence of events and the names and particulars of those who were responsible for the same. Instead, without the registration of the First Information Report, the Investigating Officer completes the_ Crl.Appeal No.1488/12 ## -:6:- _inquest, prepares a site plan and gets the post-mortem of the dead conducted on 15th December, 1992, long before the First Information Report was registered at 11.00 p.m. late in the evening on that date._ _**27** . There can be only two explanations for this kind of a situation.One could be, that the Investigating Officer was so stupid, ill-trained, ignorant of the law and procedure that he did not realise the importance of getting a crime registered in the police station concerned before undertaking any investigation including conduct of an inquest, post-mortem etc. The other explanation could be that since neither the Investigating Officer had any clue as to who the perpetrators of the crime were nor did the witnesses now shown as witnesses of the occurrence had any idea, the investigations started without any First Information Report being recorded till late at night on 15th December, 1992. We are inclined to believe that the second explanation is more probable of the two.”_ 6. It is further argued that a mere suspicion that the accused had committed the crime is not enough to implicate him and suspicion howsoever strong can never take the place of proof. Paragraphs 28 and 29 are relevant, which reads as under:- _**“28** . It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused 'may have committed the offence' and 'must have committed the offence' which must be traversed by the prosecution by adducing_ Crl.Appeal No.1488/12 -:7:- _reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. See Narendra Singh and Anr. v. State of M.P. (2004) 10 SCC 699 : (AIR 2004 SC 3249) and Ranjitsingh Brahmajeetsingh Sharma v. State of Maharashtra and Ors. (2005) 5 SCC 294 : (AIR 2005 SC 2277). To the same effect is the decision of this Court in Ganesan v. Rama Raghuraman and Ors. (2011) 2 SCC 83 : (AIR 2011 SC (Cri) 419) where this Court observed:_ _"Every accused is presumed to be innocent unless his guilt is proved. The Presumption of innocence is human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India."_ _**29** . The above views were reiterated by this Court in State of U.P. v. Naresh and Ors. (2011) 4 SCC 324 : (2011 AIR SCW 1877).”_ 7. On the other hand, learned Public Prosecutor while supporting the judgment of the Sessions Judge argued that the oral testimony of PW2, PW3, PW5 and PW6 itself is enough evidence to implicate the accused to the crime. Further, the recovery of MO1 knife which had been identified by the witnesses corroborates the prosecution case. Though there is some delay in the FIR being sent to the Court, it is not a case in which any manipulation had been done by the investigating officer. Even assuming that there is some discrepancy in the FIR, unless the accused is able to point out any substantial prejudice, Crl.Appeal No.1488/12 -:8:- investigational lapses should not be a reason to discard the substantive evidence before Court. 8. Let us now examine the evidence of the witnesses and the materials placed before Court to have a clear understanding of the crime involved in the case and whether the Court below was justified in convicting the accused. 9. As already stated, PW1 had given FIS. He deposed that at 9.00 pm on 27/8/2007, his neighbour Hari informed him that Unni had stabbed and injured Tony. He identifies the accused in box. Immediately he proceeded to Medical College Hospital and he heard that Tony died. Next day morning, he went to North Police Station and gave FIS. Ext.P1 is the said FIS. In crossexamination he stated that he reached Medical College Hospital by 9.30 p.m. He saw the dead body. When asked who else were present, he said Praveen, Murukesan, Sibi and a few others were present there. When asked whether the police from the local police station had come there, he said he does not know as he immediately came back home. He was asked whether there were any witnesses who had seen the incident when he went to the hospital and he said that Sibi (CW4) was present. He also stated Crl.Appeal No.1488/12 -:9:- that he asked Sibi regarding the incident, but he was not told the nature of weapon which was used for inflicting the injury and regarding the number of stabs. He was further asked whether he was present during inquest. According to him, he does not remember whether such a statement was taken. Ext.D1 is a portion of inquest which states that “yesterday i.e., on 27/8/2007 night by about 9.30, I had come to know that Tony was stabbed by his friend Unni and he was treated at Alappuzha Medical College Hospital and he died”. Ext.D1(a) is another contradiction in his evidence which states that “though he reached the hospital immediately, he could not see the dead body as it was shifted to mortuary”. 10. The inquest was conducted by Circle Inspector of Police on 28/8/2007 at 9.15 am in Medical College Hospital and was over by 11.15 am. The FIS was recorded at 8.30 am on 28/8/2007. In the FIS, PW1 stated that on the previous date, by about 9.00 p.m, his neighbour Hari had informed him that Tony was stabbed by his friend Unni and he was taken to Medical College Hospital, Alappuzha. Immediately he proceeded to the Medical College Hospital and he had come to know that Tony was Crl.Appeal No.1488/12 -:10:- no more. He further stated that Tony along with his friend Praveen, his brother Sibi and Murukesan were talking with Unni. After some time, they went out. Sometime thereafter, Tony and Unni had quarrelled stating some reason. Unni caught hold of Tony on his banyan, restrained him, took a sharp weapon from his tucking and inflicted a stab on his abdomen. Tony was taken in an auto which came by. Sibi, Murukesan and Praveen took the deceased to Medical College Hospital, Alappuzha. In the FIS, it is also stated that Tony and Unni were friends earlier and they quarrelled about something and Praveen, Tony's brother Sibi and Murukesan had witnessed the same. PW1 apparently is not an eyewitness to the incident. He got information about the crime from a person named Hari. 11. PW2 is Syam. He is a friend of Tony. He deposed that, on 27/8/2007, by about 8.30 p.m. he along with Praveen and Gireesh walked towards the road on the western side. At that time, they saw Unni getting hold of Tony by his banyan and stabbing Tony with a knife two-three times. At that time, he saw Sibi, Manesh and Prince coming towards them running from the northern side of the road. They also proceeded to the said place. Crl.Appeal No.1488/12 -:11:- He along with Praveen caught hold of Tony who collapsed. Gireesh restrained Unni by getting hold of his hand where he was holding the knife. Unni retorted that he will stab any person who attempts to restrain him. Thereafter, he ran away. On hearing a hue and cry, some people from the nearby house came. Tony's intestine came out through the wound. He was bleeding. They stopped an auto which came by. Along with Murukesan and Manesh who came from Sajendra Kumar's house, Tony was taken to Medical College Hospital. They proceeded in the bike to the hospital. Doctor on examining him stated that he requires a surgery. At 9.15 p.m, a Nurse came and informed them that Tony died. Tony's brother Sibi was in the hospital at that time but they did not inform him about the death of Tony. Sibi was asked to go home. He also identified the knife used for inflicting injury as MO1. His evidence further narrates about an incident in which Unni had a grudge against Tony. During cross-examination he agreed that he had given a statement to the officer who had conducted inquest. Ext.D2 is a contradiction marked with reference to his previous statement in the inquest. Ext.D2 would indicate that Tony suffered an injury with a sharp weapon. The Crl.Appeal No.1488/12 -:12:- intestines came out. People took him to the Medical College Hospital and while under treatment, he died at 9.15 p.m on 27/8/2007. Though he proceeded to the hospital, he could not see Tony. His body was kept in the mortuary. He denied having given such a statement and according to him it was not the manner in which he had given the statement. During cross-examination, he reiterated that he saw Prince, Manesh and Sibi running towards them from the northern side of the road. He further deposed that when he first saw them, two persons who came along with him and three persons who came running, accused and the deceased alone were there at the relevant time. The persons who came running from the northern side was about 5-8 metres away. He did not hear any exchange of words between the accused and deceased. He further deposed that the stab wound would have been made outside the banyan. He said he did not note it specifically. He further deposed that he saw Tony first in the casualty before he was taken to the operation threatre. 12. PW3 is Gireesh. He also deposed that he had gone to the house of PW2 where he met Praveen. He along with PW2 and Praveen were proceeding to the main road. Then they saw Unni Crl.Appeal No.1488/12 -:13:- getting hold of Tony by his banyan and stabbing Tony with a knife. They saw Manesh, Prince and Sibi coming towards them from north. Tony collapsed. Syam and Praveen held him. PW3 caught hold of Unni's hand. Unni wriggled out and retorted that he will stab every person who obstructs him. He ran towards north and entered into a pathway on the eastern side. He ran with the knife. Tony's intestine came out of the wound along with blood. Hearing the hue and cry, some persons from Sajendra Kumar's house came down. An auto was stopped. Murukesan and Manesh took the injured to the hospital. He along with others followed in the motorbike. Tony was taken to the operation theatre. After sometime, Nurse informed that Tony is no more. During crossexamination he stated that he was present at the time of inquest and he had stated that he had seen the incident at the time of inquest. He is a witness to Ext.P2 scene mahazar and according to the defence, Ext.P2 was not prepared at the time and place mentioned there, which he denied. Ext.D4 is a contradiction marked. In Ext.D4, what he has stated is that, on 27/8/2007, the date of Thiruvonam, by evening 7 o'clock, after having food, he proceeded towards the house of Syam. In Syam's house, his Crl.Appeal No.1488/12 -:14:- brother-in-law Praveen was there. They had tea from Syam's house and he along with Syam and Praveen proceeded to the road for seeing the Onam celebration. When confronted, he only stated that he did not state anything about having taken coffee. The rest of the statement was given by him. In cross-examination he stated that he had gone to Syam's house at 7 p.m. Syam was not there and therefore he went again at 8 p.m. He had stated the same to police, but he does not know why it was not recorded. 13. PW5 is Sibi, who is the brother of Tony. He also deposed that he along with Manesh and Prince were walking from north to south near the SNGS prayer building. They were proceeding to Kommadi for having juice. When they reached in front of Sajendra Kumar's house, they saw Unni getting hold of Tony's banyan and stabbing him with a knife. At that time, Gireesh, Syam and Praveen came running. Gireesh caught hold of Unni on his hand. Praveen and Syam held Tony. At the same time, Unni uttered that he will stab any person who obstructs him, wriggled out and ran away from the scene. Tony was taken to the hospital by Murukesan and Manesh. He along with others Crl.Appeal No.1488/12 -:15:- proceeded in a bike. By the time they reached there, Tony was taken to the operation theatre. After some time, his friends asked him to go to his house. He also identified MO1, the knife used for stabbing Tony. He is also a witness to recovery of the knife as per Ext.P4 mahazar. His friend Lithin Peter was also a witness, who is now in U.K. Police collected blood-stains from the scene of crime. Ext.D5 is a contradiction that has been marked. Ext.D5 is his previous statement in which he had stated that after having food, by 3.00 p.m, he had gone to see the Onam celebrations and came back by 8 p.m. They were standing in front of SNGS prayer hall. He saw Manesh standing near Pathuparambu on the northern side near Poonthoppu palli. He further stated during cross-examination that when he saw the incident, he was 10 metres on the northern side. In cross-examination the suggestion was that one autorickshaw driver had seen Tony for the first time lying injured by the side of the road, which he denied. In reexamination he further stated that Ext.D5 statement was given by him. 14. PW6 is Manesh. He also deposed that he saw Tony being stabbed in front of the house of Sajendra Babu by the Crl.Appeal No.1488/12 -:16:- accused. He also deposed regarding the manner in which the other witnesses has stated. He also identified MO1 the knife used for stabbing the deceased. In cross-examination he stated that he was questioned by the police at 4 p.m. on 28/8/2007. He stated that his house is about 400 metres away from SNGS and no one else was with him at that time. He was standing alone in front of SNGS prayer hall. It was 8.05 p.m. When he was asked why he had come to that place, he said that during that time, he used to have PSC coaching class in his friend's house and that is why he had come to that place. His friend's house was 20-25 metres away. On that day, none of his friends who were attending PSC coaching class had come there. On Thiruvonam day also, there was class. Normally the class is from 7 pm to 9-9.15 p.m. He said that he had come in front of the prayer hall after the class. Normally they used to be there till 9.00-10.30 p.m. He further deposed that Unni stabbed Tony with his right hand and he was holding the shirt with his left hand. Tony was about 10 cms taller than the accused. 15. PW7 is a witness to Ext.P5 scene mahazar. In the scene mahazar, it is stated that there was bloodstain in the soil a Crl.Appeal No.1488/12 -:17:- little away on the western side of the scene of occurrence. Blood stained soil was collected from the scene PW4 is Sachu. He is the Village Officer who prepared the scene plan Ext.P3. 16. PW8 was the Additional Professor and Deputy Surgeon, Government Medical College Hospital, Kottayam at the time when the incident occurred. He conducted post-mortem on the deceased on 28/8/2007 at 11.30 a.m. He reported the following ante-mortem injuries:- _“1. Abraded contusion on front of left upper arm 3 x 3 cm 15.5 cm below tip of shoulder._ _2. Stab wound on front of left side of abdomen 3 x 2 cm vertical, 5.3 cm outer to midline, just above umbilicus. The lower end blunt upper end pointed, directed backwards and towards right and made a nick on the mesentric border of small intestine (1.5x1 cm) the nick situated 80 cm below duodenojejunal junction. The wound have a total minimum depth of 9.5 cm._ _3. Stab wound on front of left side of lower abdomen 2x2 cm 4 cm outer to midline, 5 cm above inguinal ligament. The upper end blunt, lower end pointed, vertical, the wound entered the abdominal cavity, directed downwards and backwards cut the abdominal aorta 2 x 2 cm the peritoneal cavity contained 3.5 litres of blood; blood clot noticed on right perinephric and adjacent parts._ _4. Stab wound left flank 1.5x1 cm, 16 cm outer to midline, 5.5 cm above top of bone, transverse muscle_ Crl.Appeal No.1488/12 -:18:- _deep for a depth of 3.5 cm directed downwards, and backwards. The abdominal wall have a thickness of 3.8 cm.”_ According to him, death was due to the stab wound sustained to the abdomen. He also opined that injury Nos. 2 and 3 were penetrating wounds which are also independently sufficient to cause death in its ordinary course and injury Nos. 2, 3 and 4 could be caused by MO1 weapon. 17. PW9 was the Assistant Engineer of KSEB during the relevant time. He is examined to prove that, on 27/8/2007, from Asramam Junction to Poonthoppu Pally, there were street lights and there were houses by the side of the road. There was power connection and no complaint was obtained regarding power failure. Ext.P7 is the report which he had identified to state the same. 18. PW10 was the Sub Inspector of Police on 28/8/2007. He had recorded Ext.P1 FIS and registered Ext.P1(a) FIR. He deposed during cross-examination that in FIS, the name of accused was mentioned as Unni, S/o Raveendralal, Panakkal house. He admitted that, in the FIS, the full address and age of the accused was not mentioned. He admitted that, in the FIS, Crl.Appeal No.1488/12 -:19:- there is no statement that the accused was residing on rent at Jaffar Manzil, Alappuzha, Poonthoppe Ward and also about the age of the accused. When he was asked how the information which was not in the FIS was incorporated in the FIR, he had no answer. Though he was asked from where he got the information, still, he had no answer. Suggestion was that he had falsely prepared Ext.P1(a), which he denied. According to the defence, FIR was prepared after the inquest. He admitted that the FIS and FIR were received in the Court only on 30[th] . He admitted that in Ext.P1, the word " " (stabbing) was corrected as "മന കുതത " (stabbed thrice). When he was asked who had made the കുതത correction, he had no answer. He admitted that in the FIS, it was stated that stabbing was by a sharp weapon and no mention was made regarding knife. 19. PW11 has filed the final report. He had also marked FSL report Ext.P8. PW12 was the Circle Inspector of Police who conducted the investigation. He deposed that, 27/8/2007 being Thiruvonam day, he was on leave. Next day, he undertook the investigation and as part of it, in the morning, at 9.00 am, he Crl.Appeal No.1488/12 -:20:- had gone to Medical College Hospital mortuary. In the presence of witnesses, inquest was prepared and Ext.P9 is the inquest report. He made arrangements for conducting post-mortem and the dead body was handed over to the relatives after postmortem. The Doctor who conducted post-mortem had collected blood samples which were sent to Court. After preparing the inquest report, he had gone to the scene and scene mahazar Ext.P5 was prepared. The blood-stained soil collected from the scene was marked as MO4 and the dresses of Tony were marked as MO2 and MO3. On 30[th] , search was conducted in the house of the accused. Ext.P10 is the search list and the memorandum of search is Ext.P11. No incriminating articles were recovered during the search. On the same day, at 8 p.m., the accused was arrested. Ext.P12 is the arrest memo and Ext.P13 is the intimation. Inspection memo is Ext.P14. The report regarding the address of the accused was obtained which is marked as Ext.P15. On the basis of the confession statement of the accused that he had kept the knife in the backside of his house beneath the firewood that had been stored in a shed, accused was taken to the said place and the knife was recovered. Ext.P4 is the recovery Crl.Appeal No.1488/12 -:21:- mahazar and MO1 is the knife. The articles which were recovered were sent to the FSL lab as per Ext.P17 forwarding note and Ext.P18 is the remand report. During cross-examination, he stated that even before recording FIS, they received information regarding the incident, but he was on leave on that day. He got information on the next day. CW2 and CW3 were examined on 28[th] . To a question whether he had asked for any explanation, why CW2 to CW8 who were the occurrence witnesses did not give the information in Ext.P1 FIS immediately, his answer was that he had not asked for any explanation. He did not enquire about it. He further deposed that he had taken the statement of PW1 at the time of preparing Ext.P9. He also admitted that the address of the accused as shown in Ext.P9 has been shown in Ext.P1(a). The suggestion of the defence was that Exts.P1 and P1(a) were prepared after the inquest Ext.P9, which he denied. He also stated that CW2 and CW3 were present at the time of inquest. Ext.D6, the previous additional statement of PW1 had been marked wherein he had stated that PW1 could identify the accused. He further deposed that in Ext.P9, nothing has been stated regarding the tear in MO2. MO2 was the T-shirt (banyan) Crl.Appeal No.1488/12 -:22:- which the deceased was wearing at the relevant time. He also admitted that PW2 has given Ext.D2 statement at the time of inquest. He stated that search was conducted in the house of accused on 28/8/2007 and the search memorandum was signed on 30/8/2007. In Ext.P16 property list, the date 28/8/2007 was struck off and the date 31/8/2007 has been entered. Though the suggestion was that it reached the Court only on 22/9/2007, he denied the same. According to the defence, the knife which was the material object was not produced before the Court immediately to fabricate the said evidence. It is further stated that Ext.D3 statement was given by PW2. PW2 has not stated that CW3 Gireesh had come to his house. PW2 had not given a statement that the knife which was used for stabbing had a nail on it. PW2 did not give any statement to have seen Tony assaulting Kannan. PW2 has not given any statement that there was light in the house of Sasi. PW3 has given a statement in terms of Ext.D4. PW5 has given a statement in terms of Ext.D5. PW5 has not given an earlier statement that after suffering the injury, Tony said that Unni had stabbed him. According to the defence, the suggestion to the investigating officer was that a Crl.Appeal No.1488/12 -:23:- false case has been fabricated against the accused. 20. The defence had pointed out several infirmities in the investigation as well as in the evidence. The first and foremost contention urged by the defence is the delay in registration of the FIR. It is stated that the victim was taken to the Medical College Hospital, Alappuzha and according to the occurrence witnesses, the Doctor advised immediate surgery. But later, a Nurse came and informed that the injured had died and the dead body was removed to the mortuary. Therefore, death of the victim happened immediately after he was brought to the hospital by midnight on 27/8/2007 itself and friends and brother of the deceased were very much there in the hospital. There is no material to indicate that the hospital authorities had informed about the death to the police station and none of the occurrence witnesses had gone to the police station to inform about the injury and the consequent death of Tony. Learned senior counsel also points out that in Medical College Hospital, there is always a police aid post and no one has taken the pain to inform the police about the said incident until the next day morning when FIS is seen recorded at 8.30 am on 28/8/2007. The FIR is also registered Crl.Appeal No.1488/12 -:24:- at the same time. The contention of the defence is that the details regarding the accused were not known even at the relevant time and it is only when the inquest was being prepared, that is for the first time, the name of accused cropped up. The inquest Ext.P9 was prepared at 9.50 am on 28/8/2007 which was over by 11.15 am. During inquest, the statement of PW1 Joseph and PW2 Syam was taken. During inquest, PW1 and PW2 had stated that Unni had stabbed Tony. In the statement given to PW12 which is recorded in Ext.P9, PW1 does not say that he had seen the incident. In fact, he had no such case in Ext.P1 FIS as well. But PW2 has given evidence before Court stating that he had seen the incident. Ext.D2 is the contradiction of PW2 with reference to his statement in Ext.P9 inquest which had been denied by him. In Ext.P9 (Ext.D2) his version was that knowing about the incident that Unni had stabbed Tony with a sharp weapon, that his intestine had come out, that he was taken to the Medical College Hospital Alappuzha and being treated and on 27/8/2007 at 9.15 p.m. he died, he had gone to the hospital. But he could not see him as the dead body was kept in the mortuary. 21. Therefore, according to the defence, neither PW1 or Crl.Appeal No.1488/12 -:25:- PW2 have seen the incident. PW1 admits that he had not seen the incident, but his information was based on the hearsay and PW2 in his statement given during inquest had come to Medical College Hospital only after the incident and he had not stated that he had witnessed the crime. 22. But it is relevant to note that there was information atleast when the inquest was being prepared that the accused was responsible for the crime. Ext.P1 was given on 28/8/2007 at 8.30 am. At that time, apparently PW1 has given some information to the police regarding the crime and there is no improvement as given in the FIS as that of the statement given during inquest. 23. One specific contention urged is that when in the FIS, only the house name, father's name and the name of accused had been mentioned, in the FIR, the age of accused as well as the present place of residence is also mentioned. PW10 who had recorded the FIS when questioned, admitted the aforesaid fact. When he was asked how he had come to know about the full address and the place of residence of accused, he had no answer. The FIS reached Court only on 30/8/2007 at 10.30 am. What was Crl.Appeal No.1488/12 -:26:- the reason for such a delay has not been explained by the prosecution. The evidence indicates that inquest was conducted on 28/8/2007 and even the accused was arrested on 30/8/2007 at 8 p.m. It is also seen from Ext.P15, a report sent by the investigating officer to the Court which indicates that, in the FIR in Crime No.483/2007, in the column of accused, the name is shown as Unni, S/o Ramendralal whereas on enquiry, the full address has been obtained which is Unni, aged 23 years, S/o Ramendralal and residing on rent in Jaffar Manzil, Asramom Ward, Alappuzha Municipality and his permanent residence was Panakkal House, Poonthope Ward, Alappuzha Municipality. In fact, in the FIR, the said address had been indicated. Therefore, it is possible that the FIR had been prepared only on 30/8/2007 or after getting the full address of the accused as the FIR reached the Court at 10.30 am on 30/8/2007. This is a clear case of an investigation lapse. The police officers who are enjoined with the duty of investigating very serious crimes have to maintain the records in accordance with the statutory provisions and the settled law. In this case, we find gross negligence on the part of the Station House Officer in the matter relating to registration of Crl.Appeal No.1488/12 -:27:- FIR. First of all, even according to the prosecution an injured was taken to a hospital at about 8.30 p.m on 27/8/2007. He died at 9.15 p.m. The witnesses say that the Doctors advised an immediate surgery and later on a Nurse came and informed that he is already dead. In a case of homicide or unnatural death, under normal circumstances, the matter is informed to the police having jurisdiction of the area. PW12, the investigating officer says that even before him taking over investigation, which was on the morning of 28/8/2007, they had information about the crime. PW10 who was the Station House Officer during the relevant time had not registered a crime as contemplated u/s 157 of the Cr.P.C. In most of the cases which we come across, we find that the police waits for a statement to be recorded in terms of S.154 of Cr.P.C. Such practice requires to be deprecated. Whenever an information relating to commission of a cognizable offence is brought to the notice of the Station House Officer or an officer in charge of a police station, if he has reason to suspect the commission of an offence, which he is empowered u/s 156 to investigate and is bound to send a report of the same to the Magistrate who is empowered to take cognizance of such offence, Crl.Appeal No.1488/12 -:28:- failure to adhere to the statutory provisions will render miscarriage of justice as it will always be to the advantage of the accused to contend that FIS and FIR are being manipulated and a story is being developed at a later stage. The very purpose of providing information to the Magistrate immediately after recording a statement u/s 154 or a report u/s 157, is to ensure that there shall not be any manipulation during investigation process. Many a time, the officers do not comply with such procedures which ultimately results in the accused getting the benefit of doubt. To avoid such situations, It is the bounden duty of the higher ups in the police hierarchy to ensure that the officers subordinate to them comply with the statutory procedural formalities in letter and spirit, or else, appropriate action has to be taken against them in accordance with the procedure prescribed. In the case on hand, we have no hesitation to hold that there was delay on the part of the investigating agency to send the FIR to the Court. 24. However, it has to be seen whether on account of such delay, the accused had been prejudiced in any manner. This is a case which rests on the oral testimony of witnesses. The Crl.Appeal No.1488/12 -:29:- veracity of those witnesses will decide the fate of the case. The narration of events by the occurrence witnesses, PW2, PW3, PW5 and PW6, if taken for granted, can only result in a conviction of the accused. But, it has to be seen whether they were planted witnesses and whether they have actually seen the crime or not. 25. PW2's evidence has to be discarded. He was present in the Medical College Hospital at the time of police preparing the inquest. Before Court, he deposed that he had witnessed the incident, he saw the accused stabbing the deceased, the accused running away and the deceased being taken to the Medical College Hospital and he followed them in a motorbike. But in Ext.D2, his version was that he heard about the death of Tony and though he rushed to the Medical College Hospital, he could not see the dead body as it was already in the mortuary. This apparently is a material contradiction and therefore the evidence of PW2 Syam cannot be taken into consideration. 26. PW3 is Gireesh. He is also a friend of Tony and the accused. His version is that he had gone to PW2's house and he along with PW2 and Praveen were proceeding towards the main road towards Kommadi. When they entered the road through a Crl.Appeal No.1488/12 -:30:- pathway, they saw accused stabbing the deceased. He then states that at that time Manesh, Prince and Sibi were running towards them. Manesh is PW6 and Sibi is PW5. If PW2 was not present at the relevant time, evidence of PW3 also has to be viewed with suspicion. PW3 was also present at the time when the inquest was prepared. The defence had clearly questioned him on the same. When he was asked whether his statement was recorded, he said he does not remember. A specific question was asked whether at the time of inquest he told that he had seen the incident, his answer was in the affirmative. Though Ext.D4 is a contradiction marked in his evidence, it is of not much consequence. However, as already mentioned, his evidence also has to be viewed with suspicion as PW3 had stated that he had seen the incident along with PW2. If PW2 had seen the incident, as already observed, his statement during inquest is as if he was not there in the scene of occurrence. 27. PW5 Sibi is the brother of Tony. He also knew the accused. He along with Manesh and Prince were walking from north to south and while they were proceeding to Kommadi for having a juice, they saw the accused stabbing Tony by holding on Crl.Appeal No.1488/12 -:31:- to his banyan on the western road side of Sajendra Kumar's house. He also says that he saw Gireesh, Syam and Praveen running towards them from a pathway and Gireesh caught hold of Unni. Further he submits that Murukesan and Manesh took Unni in an auto and they followed in a motorbike and when he reached the hospital, Tony was taken to the operation theatre. He also identified MO1 knife. He is also a witness to the mahazar through which MO1 knife was recovered. He further stated during crossexamination, that Tony cried aloud after suffering the injury and he said that Unni had stabbed him. But he did not say so in his chief-examination and it might be an embellishment. The evidence of PW5 is almost the same as that of PW2 and PW3. Of course, an incident cannot be narrated in a different manner. But, when we have already expressed our doubt regarding the presence of PW2 and PW3, when PW5 also says that PW2 and PW3 were present, is it not a case which is being made up by tutoring the witnesses ? Further, the evidence of PW6 would show that, after knowing about the death of Tony, PW5 was asked to go home and PW5 left to his residence and at that time he was not informed about the death of Tony. When the death Crl.Appeal No.1488/12 -:32:- was confirmed by 9.15 p.m. itself, ie immediately after the incident, it is not known why PW5 had gone home. At any rate, PW5's evidence is also to be viewed with suspicion as he is also an interested witnesses. 28. What remains is the oral testimony of PW6. PW6 is the only person who says that he was in the autorickshaw. He had taken the victim in an autorickshaw along with Murukesan. Murukesan is not examined. Evidence of PW6 Manesh is also exactly identical with that of PW2, PW3 and PW5. He also identifies MO1 knife. He submits that he had given statement to the police after burial of Tony. His presence in the locality is doubted by the defence. According to him, he resides 400 metres away from SNGS prayer hall and he had come to the said place as he had to attend a coaching class for PSC. According to him, it was Thiruvonam day. Normally class was during evening hours between 7 and 9.15 p.m. On that day also, there was coaching, but none of his friends had come. He stated that PW5 had come to the hospital and he was present when the death was announced. He admitted having given an earlier statement that Sibi was sent home without informing the death of Tony whereas Crl.Appeal No.1488/12 -:33:- before Court he admitted that Sibi was present there, but he does not know whether he was aware of the death of Tony. Defence has a case that even Manesh was not present in the hospital at the relevant time and he or Murukesan had not taken the victim to the hospital. 29. Apparently, this is a case where there is some lacuna in the investigation. The autorickshaw in which the victim was taken to the hospital has not been traced out and no witness had been examined to prove the said fact. Of course PW6 says that they have taken the victim in an autorickshaw along with Murukesan, but we are considering the veracity of the evidence tendered by PW6. He also had stated that after the incident, he saw PW2, PW3 and Praveen running towards the scene and PW2 and Praveen held Tony. We have already explained the fact that PW2, if he was present at the scene of crime, definitely would have stated the same during inquest whereas, during inquest, PW2's version was that he came to the hospital after hearing about the incident. 30. Further, the investigating officer had not taken the statement of the Doctor who had examined the victim when he Crl.Appeal No.1488/12 -:34:- was brought to the hospital. No medical records are produced and it is not known whether any surgery was conducted on the victim. 31. All the occurrence witnesses give a picture of the incident in the same fashion. Even assuming that their narration of events are similar, when their presence itself is doubtful, it may not be possible for the Court to consider the said evidence and implicate the accused. 32. PW6 says that he along with Murukesan had taken the injured to the hospital. It is also stated that after the stab injury, the intestine of the victim had come out and he was profusely bleeding. If Manesh had taken him to hospital, his dress would have been soaked with blood. No attempt is seen made to collect the dress of Manesh and he has no such case as well. He being present in the scene itself is doubtful. Three of the occurrence witnesses are friends and one of them is the brother. Their evidence do not instill confidence in the Court to render a judgment and to find the accused guilty. Court below however had placed reliance upon their evidence. Court below proceeded on the basis that the presence of the witnesses near the place of Crl.Appeal No.1488/12 -:35:- occurrence is probable. But nothing has been stated with reference to the contradiction which had been marked as Ext.D2 which apparently cuts to the root of the prosecution story. 33. As far as the recovery of the knife is concerned, recovery has been effected based on the statement of the accused. PW5 is the only witness examined to prove recovery. Apparently, he is an interested witness. The other recovery witness, according to PW5, has gone to U.K. and he could not be examined. Recovery of the weapon only proves the fact of concealment and the incriminating factor is that it was bloodstained. But there is nothing to indicate that it was the blood of the deceased. Even otherwise, when the evidence of eyewitnesses are found to be not reliable, and their oral testimony is suspicious, it may not be possible for this Court to implicate the accused only for the reason that MO1 knife had been recovered at the instance of the accused. 34. In the light of the aforesaid discussion, we are of the view that the prosecution has not established the case against the accused beyond reasonable doubt. Evidence of the eyewitnesses are suspicious and cannot be relied upon for Crl.Appeal No.1488/12 -:36:- convicting the accused. In the result, this appeal is allowed. The judgment convicting and sentencing the accused under Sections 302 and 341 of I.P.C. are set aside. The accused is acquitted. He shall be released from prison forthwith, if his presence is not required in any other case. **Sd/A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge