State of Kerala v. Mangalanandan and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM **==> picture [10 x 11] intentionally omitted <==** THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941 ## CRL.A.No.2359 OF 2009(D) SC 405/2004 OF ADDITIONAL SESSIONS COURT , ALAPPUZHA. ## APPELLANT/COMPLAINANT STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR.PP. SRI.S.U.NAZAR ## RESPONDENTS/RESPONDENTS/ACCUSED 1 MANGALANANDAN AGED 37, S/O PADMANABHAN POONJILIKKAVU, WARD -1., MANNANCHERRY PANCHAYAT. **Crl.Appeal.2359/2009** 2 - 2 THIRUMENI AGED 42 SO KUNJAN PUTHUVAL, WARD -18 DO.... - 3 PRAKASHAN AGED 26 SO CHINNAN KALAVOR COLONY, WARD -19, DO.... - 4 FAISAL AGED 25 S/O JAFAR PALLIVELI VEEDU DO.... - 5 RAJESH AGED 34 S/O RAJAPPAN PANAYIL VEEDU, WARD - 18 DO.... - 6 SISUPALAN AGED 42 S/O DAMODARAN THAKIDIVELIYIL, WARD -6,MARAIKULAM SOUTH, PANCHYAT, ALAPPUZHA. - 7 MELAN C. MITTU @ MITTU AGED 32 CHOOTHANATTU VILLA DO.... - 8 SABU BABUKUITTAN AGED 29 S/O RAMACHANDRAN,THAKIDIVELIYIL WARD 19,, MANNANCHERRY PANCHAYAT. - 9 LALAPPAN AGED 41 SO BAHULEYAN KUNNEL VELI, WARD -3, DO.... - 10 SABU AGED 34 S/O MANIYAN ARYAD NORTH **Crl.Appeal.2359/2009** 3 COLONY, WARD 3, DO.... - 11 UDAYAN AGED 30 S/O SARANGADHARAN. KALAVOOR COLONY, WARD NO. 19, DO..... - 12 ASOKAN AGED 39 SO DO........DO..... - 13 SAJI AGED 29 S/O GANGADHARAN KUNNEL VELI ,WARD 12 DO.... - 14 SHIBU AGED 31 SO PURUSHAN PREETHIKULANGARA VELIYILO,, WARD - -4,MARARIKULAM SOUTH PANCHAYAT. - 15 VINAYAKUMAR AGED 25 S/O KRISHNANKUTTY THAYYIL, WARD 19, MANNANCHERRY PANCHAYAT. - 16 ANEESH @ ANI AGED 25 SO RAJAN PUTHUVAL, WARD -19, DO..... - 17 SASIKUMAR @ SASIYAPPAN AGED 42 S/O RAJAN, KALITHATTUNKAL WARD -5,, MARARIKULAM SOUTH PANCHAYAT. - 18 VENU AGED 35 S/O SREEDHARAN, PUTHUVAL VELI, WARD 18, MANNANCHERRY PANCHAYAT. - 19 RANJITH S/O RAVINDRAN ETTUKANDAM LAKSHAMVEEDU. **Crl.Appeal.2359/2009** 4 - 20 RATHEESH @ KILI AGED 26 RATHEESH - BHAVAN, WARD 1,DO.... - 21 BABUDASAN AGED 43 - S/O BHASKARAN, KALAVOOR COLONY, WARD -19,DO.... - 22 SATHEESAN AGED 34 S/O KRISHNAN ITHIPARAMBIL, WARD 19, DO..... - 23 GOKULAN AGED 28 SO MOHANAN MANNAPARAMBIL, WARD -19, DO.... - 24 KISHORE AGED 37 S/O SUKUMARAN SREERANGAM VEEDU, WARD 14, DO.... - 25 SANIL SO SUTHAN THEKKETHAYYIL VEEDU WARD 18, DO..... - 26 RENJITH S/O KRISHNAN THEKKEVELI DO.. - 27 RAJANEESH BABU AGED 24 S/O REMANAN, ITC COLONY, DO. - 28 NAUSHAD AGED 34 SO ABUBACKER KURUPPAN VEEDU, WARD 19 DO.... - 29 SANKAR AGED 31 SO SURENDRAN ARYAD NORTH THAZHCHAYIL,WARD 12 , DO..... - R1 BY ADV. SRI.R.ANIL - R1 BY ADV. SRI.T.ANIL KUMAR - R1 BY ADV. SRI.ANEISH RAVINDRA **Crl.Appeal.2359/2009** 5 R1 BY ADV. SMT.C.G.PREETHA R1 BY ADV. SRI.B.RAMAN PILLAI SR. R1 BY ADV. SRI.A.RAJESH R1 BY ADV. SRI.M.SUNILKUMAR R1 BY ADV. SRI.P.S.SREEDHARAN PILLAI R1 BY ADV. SRI.SUJESH MENON V.B. R1 BY ADV. SRI.THOMAS ABRAHAM NILACKAPPILLIL R1 BY ADV. SRI.E.VIJIN KARTHIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.2.2019, THE COURT ON 23.10.2019 DELIVERED THE FOLLOWING: **Crl.Appeal.2359/2009** 6 ## JUDGMENT ## A.M.Babu, J . 1. The appeal is against a judgment of acquittal. The accused persons were charged and tried for offences punishable under Secs 143, 147, 148, 149, 302, 307, 324, 341, 427 and 449 of the Indian Penal Code (IPC for short). 2. The prosecution case is stated below : The accused persons were members of a trade union called the Bharathiya Masdoor Sangh (BMS for short). They had political grudge and hatred against PW2 and his father, Rajappan by name, as they belonged to the political party called the Communist Party of India (Marxist) - for short the CPI (M). The incident had taken place at 3.00 pm on 5.4.2003. The accused persons formed themselves into an unlawful assembly and committed rioting armed with deadly weapons. The common object of the unlawful assembly was to commit murder of Rajappan and PW2. The accused persons committed housetrespass by entering into the house of Rajappan, where stayed PW2, with murderous intention. PW2 was cut on his **Crl.Appeal.2359/2009** 7 right elbow by accused 2 and 4 and on his forehead by the first accused with swords. The 6[th] accused inflicted a fatal blow on the head of Rajappan with a billhook. Accused 6 and 18 with the same sword cut on the left knee of PW2. Accused 20 beat PW2 on the left thigh with an iron pipe. PWs 1 and 5 were wrongfully restrained by accused 15, 16 and 19 in order to prevent their entry into the house of Rajappan while the incident was going on inside the house. Accused 2 and 18 broke the window bars of the house of Rajappan and cut plantain plants stood in the courtyard of the house causing a loss of Rs 250/-. Rajappan and PW2 sustained serious injuries in the incident. The former succumbed to the injuries at 5.30 pm on the same day while on treatment at the Medical College Hospital, Alappuzha. 3. PWs 1 to 22 were examined and Exts P1 to P40 and MOs 1 to 11 were marked on the side of the prosecution. DW1 was examined and Exts D1 to D19 were marked on the defence side. 4. Accused 2 and 18 died pending the appeal. The appellant **Crl.Appeal.2359/2009** 8 produced the death certificate pertaining to the second accused. It appears that accused No.18 had a homicidal death. The appellant produced copies of the FIR, inquest report and the autopsy report to prove his death. The appeal is abated as against accused 2 and 18. 5. We heard Sri.S.U.Nazar, the learned senior public prosecutor. We also heard the learned senior counsel Sri.B.Raman Pillai appearing for accused 1 and 3 to 10 and Sri.P.S.Sreedharan Pillai appearing for accused 11 to 17 and 19 to 29. 6. At the time when the appeal was heard, the learned counsel appearing for the accused persons did not dispute the homicidal death of Rajappan on 5.4.2003 and the sustainment of the injuries shown in Ext P9 wound certificate by PW2 on that day. Therefore we need not go into those matters. 7. The witnesses examined by the prosecution either to prove the incident or to prove the presence or involvement of the accused persons were PWs 1 to 9. None of them identified **Crl.Appeal.2359/2009** 9 accused 3, 5, 8 to 16, 19, 22, 23 and 25 to 29 in court. In fact no attempt was made at the trial by the prosecution to get the aforesaid accused persons identified in court by PWs 1 to 9. PW2 in his evidence stated the names of accused 3, 8, 12 and 22, but did not identify them in court as he was not asked to identify them. Altogether there were 29 accused persons who faced trial and those who were not identified in court should be acquitted straight off. We therefore confirm the acquittal of accused Nos 3, 5, 8 to 16, 19, 22, 23 and 25 to 29. 8. The only witness who identified accused 7, 17, 21 and 24 in court was PW8. Among them, PW2 stated the names of accused 7, 17 and 21. But PW2 did not identify accused 7, 17 and 21 in court. Nor was he asked to identify those accused persons at the trial. The evidence of PW8 who has identified accused 7, 17, 21 and 24 in court does not suggest him to have any previous acquaintance with them. He did not assert that he had any previous acquaintance with them. However, he spoke that he knew the seventh accused even before the incident. The witness did not state **Crl.Appeal.2359/2009** 10 so in the case of accused 17, 21 and 24. The evidence of PW8 that the seventh accused was known to him before the incident cannot be accepted in view of his own evidence. As he admits, he does not know what is the job of the 7[th] accused and where does the said accused work. It is also the evidence of PW8 that he does not know the house name of the seventh accused and the place of abode of the said accused. According to PW8, the seventh accused is not his colleague, neighbour, class or school mate or a person of acquaintance. All that PW8 knows about the seventh accused is that the seventh accused is a member of the BMS. We are satisfied from the evidence of PW8 that accused 7, 17, 21 and 24 are strangers to him. Therefore his evidence identifying the said accused persons cannot be given any weight in the absence of any corroboration from any other witness identifying the aforesaid accused persons. No test identification parade was conducted. What the investigating officer did was to get the accused persons identified by PW8 before the investigating officer himself. Surprisingly, a question was put to PW8 in his examination-in-chief whether he identified the accused persons at the time when **Crl.Appeal.2359/2009** 11 his statement was recorded by the investigating officer. The witness answered in the affirmative. He deposed in crossexamination that he was asked to identify the seventh accused before the police officers. When an investigating officer asks a witness to identify an accused before the investigating officer and when the witness identifies the accused before the investigating officer, what the witness does is to give a statement to the investigating officer under Sec.161 of the Code of Criminal Procedure (for short the Cr.P.C.) identifying the accused. Such evidence is hit by Sec.162 of Cr.P.C and therefore inadmissible in evidence. Even otherwise, we are satisfied that PW8 could identify accused 7, 17, 21 and 24 in court only because he was shown those accused persons by the investigating officer. The evidence of PW8 in court identifying the aforesaid accused persons is liable to be rejected. Accused 7, 17, 21 and 24 are also entitled to acquittal for want of proper identification. We confirm their acquittal also. 9. We, for reasons stated, have confirmed the acquittal of accused 3, 5, 7 to 17, 19 and 21 to 29. As already stated, **Crl.Appeal.2359/2009** 12 accused 2 and 18 died pending the appeal and the appeal against them did abate. Who remain are accused 1, 4, 6 and 20. Their complicity is proved or not is the next question to be decided in the appeal. 10. The prosecution alleges that the incident was at 3.00 pm on 5.4.2003. It is also alleged that the incident of murder had taken place inside the southern room of the house of Rajappan. The sole eyewitness for the prosecution to prove the overt acts relating to the murder of Rajappan and the attempt to commit murder of PW2 is PW2 himself. The overt acts are attributed to accused 1, 2, 4, 6, 18 and 20. PW1 gave Ext P1 FI statement. He was examined to prove that he was wrongfully restrained by accused 15, 16 and 19 and that he saw the entry of accused 1, 2, 4, 6, 18 and 20 into the house of Rajappan through the northern door of the house and the exit of the said accused persons through the southern door. PW3 was examined for the same purpose. The purpose of examination of PW4 was to prove that PWs 1 and 5 were wrongfully restrained and that PW4 saw the exit of the aforesaid six accused persons with weapons in their **Crl.Appeal.2359/2009** 13 hands. PW5 was examined to prove the wrongful restraint and the entry and exit of the aforesaid accused persons. The examination of PW6 was to prove the movement of the accused persons to the house of PW2 with weapons. PW7 completely turned hostile to the prosecution. PW8 was examined to prove the exit of accused 1, 2, 4, 6, 18 and 20 from the house of Rajappan with blood stained weapons. PW9 was examined for the same purpose for which PW6 was examined. We shall consider the evidence of PWs 1 to 9. 11. PW1 lodged the FI statement, Ext P1. He lodged it at 4.30 pm on the date of incident. He spoke that the incident occurred at 3.00 pm on 5.4.2003. He spoke as follows : He was sitting in his house. He saw about 30 members of BMS entering the compound of the house of Rajappan from the road. They carried weapons. They called the pet name of PW2, that is, Unni. The house of Rajappan was surrounded by the assailants. Five/six persons entered the house through the northern door and caused injuries to PW2 and his father. PW1 went to the house of Rajappan hearing the cry of the persons injured. Some of the assailants wrongfully **Crl.Appeal.2359/2009** 14 restrained PW1 and threatened to kill him. He heard from the house PW2 and Rajappan crying “ക��ലലല ക��ലലല ". The persons who entered the house were the first accused Mangalandan, Venukuttan (18[th] accused), Faizal (4[th] accused), Sisupalan (6[th] accused), Thirumeni (2[nd] accused) and Ratheesh (accused No.20). After the incident the aforesaid persons had their exit from the house through the southern door. When the accused persons left, PW1 entered the house and saw PW2 and Rajappan lying with injuries. 12. As stated already, we are considering the complicity of accused 1, 4, 6 and 20. PW1's evidence, if acceptable, may be helpful to the prosecution to some extent to prove the presence and involvement of the said accused persons. PW1 stated that he knew all of them before. But he could not identify the sixth accused by name Sisupalan. PW1 wrongly identified the third accused as the sixth accused. Therefore the evidence of PW1 is not helpful to the prosecution to prove the complicity of the sixth accused. 13. According to the prosecution, accused 15, 16 and 19 **Crl.Appeal.2359/2009** 15 wronglfully restrained PW1. But PW1 failed to help the prosecution in proving as to who wrongfully restrained him. He did not state the name of the 19[th] accused as one of the persons who wrongfully restrained him. According to him, he was wrongfully restrained by Ajith and Vinaykumar. No person by name Ajith was in the array of the accused. It may be said that the name Ajith stated by PW1 could be a mistake for Aneesh who was the 16[th] accused. But, still, the prosecution is without evidence from the deposition of PW1 as to who wrongfully restrained him. It is so because PW1 wrongly identified the 16[th] accused by name Aneesh as the 15[th] accused by name Vinaykumar. The evidence of PW1 that he was wrongfully restrained cannot help the prosecution since his evidence does not prove who restrained him. This creates doubt on the very presence of PW1 at the time of the incident. 14. The evidence of PW1 in cross-examination suggests that PW5 was in the courtyard of the house of Rajappan when the assailants came and that PW5 at that time was **Crl.Appeal.2359/2009** 16 talking to Rajappan. This portion of the evidence of PW1 is contrary to the evidence of PW5. According to PW5, the assailants came when he was discharging urine a little away from the house of Rajappan. The presence of PW1 is certainly doubtful. 15. A few vital omissions amounting to material contradictions within the meaning of the explanation to Sec.162 of Cr.P.C could be proved by the defence. PW1's evidence that the assailants surrounded the house of Rajappan was proved to be an omission. Another proved omission was the evidence of PW1 that he saw the entry of 5/6 assailants into the house of Rajappan through the northern door. The evidence of PW1 that he heard PW2 and Rajappan crying “ ക��ലലല ക��ലലല " was also an omission. PW1's evidence that he saw the exit of the assailants through the southern door was another omission proved by the defence. In view of the omissions referred to above, we are clear that PW1 did not see the arrival of the assailants or the entry of any accused into the house or the exit of any accused from the house. We reject the evidence of PW1 that **Crl.Appeal.2359/2009** 17 he heard the cry of PW2 and Rajappan from their house. All vital aspects spoken to by PW1 in court had been proved to be omissions. 16. PW1 spoke that MOs 1 to 3 were used by accused 6, 1 and 20 respectively. His such evidence cannot be given any credence since admittedly he did not see any accused using any weapon. His evidence was not that he saw any accused holding any weapon, but that MOs 1 to 3 were used by accused 6, 1 and 20 respectively. The witness who stated so could not even identify the sixth accused. The evidence of PW1 as to who used what weapon cannot be accepted since his very presence at the time of the incident is liable to be suspected. The evidence of PW1 that accused 6, 1 and 20 used MOs 1 to 3 respectively was also proved to be an omission in his statements recorded under Sec.161 of Cr.P.C. 17. The assertion of PW1 that he knew every accused cannot also be accepted. Out of 29 accused persons, PW1 identified in court only a few of them who were accused 1, **Crl.Appeal.2359/2009** 18 2, 4, 18 and 20. He misidentified accused 6 and 15. PW1 was contradicted in cross-examination with his statements given by him under Sec.161 of Cr.P.C. The contradictions were marked as Exts D2 and D2(a). Ext D2 (a) statement was that the name of the 1[st] accused alone came to his notice on the date of incident. Ext D2 statement of PW1 was that he came to know from his brother-in law (PW2) that the persons who entered the house to inflict injury to PW2 and Rajappan were accused 1, 2, 4, 6 and 18. It is thus clear that PW1 had no direct knowledge regarding the crucial matters he spoke in court. 18. The evidence of PW1 is not reliable and therefore liable to be rejected. His evidence is useful to the prosecution only to the extent that he lodged the FI statement. 19. PW3 turned hostile to the prosecution. She is a neighbour of PW2. PW3 spoke that she heard a commotion and saw the wrongful restraint of PWs 1 and 5. But PW3 said that she was unable to remember who wrongfully restrained PWs 1 and 5. PW3 stated that PWs 1 and 5 were restrained **Crl.Appeal.2359/2009** 19 by the assailants who came carrying weapons. It was also stated by PW3 that she heard the cry of PW2 and Rajappan from their house. PW3 deposed that she was unable to identify any of the assailants. She denied having given the contradicted statements marked as Exts P2 to P2(c). PW3 has stated that she knows Mangalanandan (first accused) and that he is an accused in the case. According to PW3, she does not know accused 2 and 20. PW3 stated that the assailants carried weapons when they left. She deposed that while leaving from the house of Rajappan, the assailants cut the banana plants in the compound of the house of Rajappan. PW3 spoke that she was unable to identify any of the assailants. Thus, PW3 although stated some aspects in favour of the prosecution, did not identify any accused person as an assailant. In view of her such evidence, her evidence is not useful for the prosecution to prove the complicity of any of the accused. 20. PW7 also turned hostile to the prosecution. He spoke that he saw PW2 and Rajappan with heads covered with cloths being taken in a car to the hospital. PW7 deposed that **Crl.Appeal.2359/2009** 20 he heard that persons belonging to the BMS did the crime. But he said that he did not see anything. PW7 denied having heard the cry of anyone from the house of Rajappan. The witness denied Exts P3 to P3(f) contradicted statements. There is nothing in the evidence of PW7 for the prosecution to prove the guilt of any of the accused. 21. We summarise the evidence of PW4 below : He knows about the incident in which Rajappan was killed and PW2 was injured. PW4 heard a cry and commotion at 3.00 pm on 5.4.2003 while he was in his house. He ran to the spot and saw in the courtyard of the house of Rajappan the assailants who were carrying weapons. They holding the weapons threatened him not to come near them. He saw accused 1, 2, 4, 18 and 20 and a short and fair complexioned person coming out of the house. They were holding bloodstained weapons. They also threatened PW4 from coming near them. The first accused carried a sword. Accused 20 carried an iron pipe. The short and fair complexioned person carried a billhook. The remaining three persons were also holding weapons with them. The weapons held by those **Crl.Appeal.2359/2009** 21 three persons were also bloodstained. The assailants who came out of the house cut the banana plants which stood in the courtyard. When the assailants left, PW4 went inside the house and saw Rajappan and PW2 lying with injuries. PW4 bandaged the head and leg of Rajappan with two bath towels. PW1, PW4 and PW5 took Rajappan and PW2 in Shyju's car to the medical college hospital, Alappuza. Rajappan stated on his way to the hospital that he was tired. 22. According to the prosecution, six accused persons entered the house of Rajappan and did the crime and they were accused 1, 2, 4, 6, 18 and 20. What PW4 stated was also that six accused persons came out of the house after committing the crime. PW4 identified in court accused 1, 2, 4, 18 and 20, but not the sixth accused. PW4 referred to the sixth man as a short and fair complexioned person. PW4 deposed that the said person was holding MO1 billhook. The learned public prosecutor who conducted the case did not ask PW4 to identify the short and fair complexioned person among 29 accused persons who were in the dock. The learned trial judge did not record in the deposition of PW4 or **Crl.Appeal.2359/2009** 22 anywhere that the sixth accused was short and fair complexioned. No other witness examined in the case stated that the sixth accused was short and fair in complexion. There is no evidence that the description 'short and fair complexion' suits the sixth accused or him only among 29 accused persons. As PW4 did not identify the sixth accused and since there is no evidence that the description given by the witness to locate the sixth accused suits him or him only, the deposition of PW4 is no way useful to the prosecution to prove the complicity of the sixth accused. 23. The house of PW4 as stated by him is only 25 metres away from the house of Rajappan. But, as stated by PW4, it was impossible from the courtyard of his house to see the assailants standing in the courtyard of the house of Rajappan. PW4 spoke that he saw the assailants in the courtyard of the house of Rajappan only when he (PW4) reached the compound of that house. He who spoke so in cross-examination repeated once again in crossexamination that it was impossible to see the assailants from his property and that he saw them only when he went **Crl.Appeal.2359/2009** 23 to the house of Rajappan. But his version to the investigating officer was entirely different and his such statement was contradicted with him and marked as Ext D5. Going by Ext D5 contradiction, PW4 saw from his compound the assailants standing in the courtyard of the house of Rajappan. The said contradiction when considered along with a few omissions proved by the defence creates suspicion about the veracity of the evidence of PW4. 24. We have referred to the evidence of PW4 in his examination-in-chief that when he reached the compound of the house of Rajappan, the assailants who were standing in the said compound holding weapons threatened PW4 asking him not to come near them. He asserted in crossexamination that he did state to the police that those assailants were holding weapons. But he did not state so to the investigating officer and the said assertion of PW4 was proved to be an omission. His evidence that the accused persons who came out of the house threatened to cause his death was another material omission proved by the defence. His evidence that the assailants came out of the house with **Crl.Appeal.2359/2009** 24 bloodstained weapons was another vital omission proved in the case. When such omissions are excluded, there is nothing much in the evidence of PW4 for the prosecution to rely on. 25. PW4 claimed that the accused persons were known to him for over ten years before the incident. But he did not identify the sixth accused and the prosecution did not even attempt to get the sixth accused identified by PW4. He identified five of the accused persons as persons who came out of the house with bloodstained weapons. But the witness did not state to the investigating officer the name of accused No.20 as one of them. This fact was brought out as an omission and proved. Although PW4 stated that the second accused carried MO4, the former did not state to the investigating officer that the second accused carried any weapon. This was another omission proved. PW4 spoke that he was unable to say who threatened him when he reached the compound of Rajappan. The witness deposed so in his examination-in-chief itsef. The evidence of PW4 that he bandaged the head and leg of Rajappan with towels was **Crl.Appeal.2359/2009** 25 another omission proved. PW4 spoke in cross-examination that he did not get in the car in which Rajappan was taken to the hospital. He spoke that he went to the hospital in another car. Therefore his evidence in his examination-inchief that he heard Rajappan saying about tiredness while travelling in the car was false. PW4 admitted in crossexamination that he did not hear anything stated by Rajappan while being taken to the hospital. 26. For different reasons stated by us, we are unable to rely on the evidence of PW4. His evidence does not inspire confidence. We reject his evidence. 27. PW5 in his examination-in-chief stated as follows : He is the father-in-law of PW2. The incident was at 3.00 pm on 5.4.2003. PW5 went to see his daughter, but she was not there. PW5 talked to Rajappan and returned. While returning he urinated near the office building which was in the compound of the house of Rajappan. While so, some youngsters came in search of PW2 calling “Unni”. PW2 came out of the house through the southern door. He returned to **Crl.Appeal.2359/2009** 26 his house and closed the door. At that time 3/4 persons restrained PW5. When PW1 came, he was also so restrained. Five/six persons entered the house through the northern door. After 3/4 minutes PW5 heard a cry from the house. Those who entered the house came out through the southern door. They were accused 1, 2, 4 and 20 and two others who could be identified by sight. They were holding bloodstained weapons. Accused 2 and 4 had swords with them. Accused 20 was holding an iron pipe. A billhook was held by one of the persons whose name was not known to PW5. When the assailants left, PWs 1, 4 and 5 entered the house. They saw Rajappan lying with injuries and PW2 who also sustained injuries sitting on the cot. PW4 bandaged the head and leg of Rajappan with bath towels. 28. PW5 identified accused 1, 2, 4 and 20 in court. The witness did not identify accused 6 and 18. The witness was not asked to identify accused 6 and 18. Accused 18 died. Nothing is available in the evidence of PW5 for the prosecution to prove the guilt of the 6[th] accused. **Crl.Appeal.2359/2009** 27 29. PW5 came to see his daughter, but she was not in the house of Rajappan since she had gone to the tailoring shop. Therefore, according to PW5, he returned, but remained in the compound to urinate near the office building situated in the same compound. Therefore, if what PW5 stated was true, he could see what he allegedly saw only because he was discharging urine near the office building in the compound of the house of Rajappan. But PW5 did not state in his statement recorded under Sec.161 of Cr.P.C that he remained in the compound to discharge urine. In view of the said omission proved by the defence, the very presence of PW5 in the compound of the house of Rajappan at the relevant time is a bit doubtful. 30. Ext D6 is a contradiction proved by the defence. Going by Ext D6, PW5 tried to stop the accused persons who entered the house. PW5 denied Ext D6 statement and spoke that he did not try to stop the accused persons who carried weapons. The evidence of PW5 is not in agreement with his previous statement contradicted and marked as Ext D6. This too affects the reliability of the evidence of PW5. **Crl.Appeal.2359/2009** 28 31. As we stated, PW5 stated that accused 1, 2, 4 and 20 and two other accused persons came out of the house after the incident through the southern door holding bloodstained weapons. Exit of any such accused from the house through the southern door was proved to be an omission. The evidence of PW5 that the weapons were bloodstained was another omission proved by the defence. His evidence that the assailants who kept themselves outside the house also carried swords was also an omission. Although PW5 spoke that he was restrained by some of the assailants, he said he was unable to say who restrained him. PW5's evidence that he entered the house after the exit of the assailants was also proved to be an omission. 32. The presence of PW5 before at or after the incident is not proved in view of Ext D6 contradiction and the omissions proved by the defence. His evidence is therefore not worth for the prosecution. 33. PW6 stated as follows : At the place called Milma **Crl.Appeal.2359/2009** 29 junction, which is 500 metres away from the house of Rajappan, he (PW6), at 3.00pm on 5.4.2003, overheard the discussion of a group of persons. They were discussing about a fight which had taken place in connection with a labour dispute at D.C.Mill at Valavanad. Accused 1, 2, 4, 18 and 20 were those persons who were in discussion. Another group of persons was standing slightly away from the five accused persons who were in conversation. The said group of five accused persons left along with the other group stating that they would come back after meeting Unni (PW2). They by road proceeded to north. PW6 returned to his house. 34. PW6 did not say anything about or against the sixth accused. Going by the evidence of PW6, the sixth accused was not in the group of five accused persons or in the other group. The witness did not say who were the persons in the other group. According to PW6, he is unable to say who were the persons who constituted the other group although he knew them when he saw them on 5.4.2003. There is no evidence whatsoever against the sixth accused in the **Crl.Appeal.2359/2009** 30 evidence of PW6 too. 35. PW6 stated the names of accused 1, 2, 4, 18 and 20 as the persons in conversation. The witness stated that he could identify all of them. But he could identify in court only three of those five accused. The accused who were identified in court by PW6 were accused 1, 2 and 4. Accused 22 was wrongly identified as accused 18. PW6 failed to identify accused 20. The learned trial judge noted that PW6 took time to identify accused 20, but he was unable to identify the said accused. The evidence of PW6 is not useful to the prosecution to use against accused 20 as he was not identified PW6. 36. The prosecution wanted to prove through PW6 that accused 1, 2, 4, 18 and 20 carried weapons when the witness allegedly saw them at the Milma junction. PW6 was asked whether he saw anything in the hands of those accused. The witness answered that he did not see anything. However, he stated that it appeared to him that those accused persons hid something under the cloths they wore. **Crl.Appeal.2359/2009** 31 The witness deposed in cross-examination that he did not see what was kept by the accused persons under their shirts. PW6 added that he was unable to say as to what material did the accused keep inside their shirts. The prosecution was not successful in proving through PW6 that any accused possessed any weapon when they were allegedly seen by the witness at the Milma junction at 3.00 pm on 5.4.2003. 37. According to PW6, he saw accused 1, 2, 4, 18 and 20 engaged in a discussion and he overheard the discussion. The discussion, according to PW6, was about the fight which had taken place in connection with the labour issue at the D.C.Mill. PW6 stated further that his attention was focused on them in view of the subject they were in discussion. But, as admitted by PW6 in cross-examination, he did not state to the investigating officer that he saw five persons engaged in a conversation. PW6 added that he disclosed the said fact only when he was examined in court. Therefore the evidence of PW6 on the point was an improvement. PW6 spoke that he was unable to remember whether he mentioned about the subject of discussion while giving statement to the **Crl.Appeal.2359/2009** 32 investigating officer. In fact, he did not state so and the said fact was proved by the defence as an omission. For these reasons, we are unable to accept the evidence of PW6 that he saw any accused or heard any discussion at the Milma junction on 5.4.2003. 38. Going by the evidence of PW6, he, PW2, and Rajappan belonged to the same political party, the CPI(M). PW6 on those days was the member of the panchayat representing the ward in which the house of Rajappan was situated. According to PW6, he who was riding on a bicycle stopped at the Milma junction to hear the conversation of the five accused persons. Going by his evidence, he did smell a rat and he got panic. In the normal course, he would have done something to save PW2, at least an alarm to PW2. But PW6 did not do that. He simply left Milma junction without doing anything. He went to his house going by his evidence in his examination-in-chief or to his sister's house going by his evidence in cross-examination. If PW6 had seen the assailants at Milma junction and heard their discussion, he, being a panchayat member, would not have gone to his **Crl.Appeal.2359/2009** 33 house or his sister's house. We therefore reject his evidence that he saw the assailants or heard their discussion or saw them proceeding to north. The evidence of PW6 is also of little worth. 39. Accused 1, 2, 4, 6, 18 and 20 were identified in court by PW8. The purpose of examination of PW8 was to prove the exit of the aforesaid accused persons through the southern door of the house of Rajappan carrying bloodstained weapons. PW8 stated that he heard a cry from the house of Rajappan at 3.00 pm on 5.4.2003. PW8 said that he ran to that destination and that when he reached the eastern side of the house of PW3, he (PW8) saw accused 1, 2, 4, 6, 18 and 20 coming out of the house of Rajappan through the southern door holding bloodstained weapons. PW8 spoke in cross-examination as well that he saw the exit of the aforesaid six accused persons while standing at the eastern side of the house of PW3. The evidence of PW8 that he saw the six accused persons coming out of the house of Rajappan through the southern door holding bloodstained weapons was proved to be an omission. Therefore the **Crl.Appeal.2359/2009** 34 evidence of PW8 that he saw the exit of six accused persons with bloodstained weapons through the southern door cannot be relied on. In view of the said omission on a crucial aspect for which PW8 was examined, the prosecution did not gain anything by his examination. His evidence that he saw the exit of those accused persons while standing on the eastern side of the house of PW3 was also proved as an omission. 40. Although PW8 deposed that accused 1, 2, 4, 6, 18 and 20 carried bloodstained weapons at the time of their exit from the house of Rajappan, the witness did not state so to the investigating officer except the holding of a weapon by the second accused. Although PW8 asserted that he stated to the investigating officer about the weapons held by the other five accused persons, the defence proved the omission pertaining to the holding of weapons by those five accused. The second accused is no more and the evidence of PW8 that he saw weapons in the hands of the other five accused persons cannot be accepted. **Crl.Appeal.2359/2009** 35 41. The evidence of PW8 suggests that he was shown some of the accused persons by the investigating officer. PW8 spoke that he identified some of the accused persons before the investigating officer. The witness was asked in crossexamination whether he was shown by the investigating officer accused 1, 2, 4, 6, 20 and 21. The answer given by PW8 was that he was unable to remember. He did not say that he was not shown those accused persons. We are convinced that accused 1, 2, 4, 6 and 20 were shown to PW8 by the investigating officer at the time of recording his statement under Sec.161 of Cr.P.C. Therefore the identification of those accused persons in court by PW8 cannot be given any weight. The prosecution gained nothing from the evidence of PW8. 42. The evidence given by PW9 goes as follows : While he was in conversation with a person of acquaintance at 3.00 pm on 5.4.2003 in front of the shop of PW7, he saw about 30 members of BMS including accused 1, 2, 4, 18 and 20 coming along the road from south to north. He asked them where were they going. They told him that they wanted to **Crl.Appeal.2359/2009** 36 see Unni (PW2). PW9 saw PW1 moving in PW1's compound towards east and the entry of the assailants into that compound. After their entry into the said compound, PW9 moved to the northern side of the house of PW1. Two or three minutes later PW9 heard a commotion and cry from the house of Unni (PW2). PW9 did not go to the said house out of fear. He went there after some time. He went inside the house and saw PW4 bandaging the head of Rajappan with a towel. PWs 1 and 5 were in the room at that time. PW2 who sustained injuries was sitting holding his head with hands. Rajappan and PW2 were taken in the car of Shyju to the hospital. 43. One of the accused persons whose complicity is being considered is the sixth accused. The evidence of PW9 is also not useful to the prosecution to prove the guilt of the sixth accused. There is nothing about him or against him in the deposition of PW9. 44. Among the 30 persons PW9 saw, he said, he could identify only five persons. He spoke that he was unable to **Crl.Appeal.2359/2009** 37 identify any accused other than those five. The witness mentioned the names of accused 1, 2, 4, 18 and 20 and identified them in court. Identification of those accused persons by PW9 was not challenged in cross-examination. But the defence challenged his evidence on what he saw and also his very presence to see what he stated to have seen. 45. According to PW9, when he saw 30 persons including the accused persons whom he identified in court, he was standing in front of the shop of PW7 talking to a person with whom he had acquaintance. The distance from the said spot to the house of Rajappan is 30 yards as per the evidence of PW9. His house is 500 metres away from the house of Rajappan. PW9 said that he was on his way to the Deshabhimani library and that he stopped in front of the shop of PW7 to talk to the person of acquaintance. PW9 spoke that he and the assailants were proceeding along the same road in the same direction, that is, south to north. PW9 conceded that he would not have seen the assailants who were walking behind him, had he not stopped in front of the shop of PW7 and takled to the other person. Thus, PW9 who **Crl.Appeal.2359/2009** 38 was residing 500 metres away had no chance to see the assailants if he was not takling to the other person. PW9 had no idea as to who precisely the other person was. PW9 deposed that he was unable to remember the name of that person. His such evidence is difficult to accept as he claimed to have acquaintance with that person. PW9's evidence that he was talking to a person when he saw the assailants was proved to be an omission by the defence. Ext D7 contradiction proved by the defence was to the effect that PW9 saw the assailants when he reached in front of the shop of PW7 on the way to the library. The presence of the other person for PW9 to talk is missing in Ext D7 contradiction too. It does not appear that any such person was questioned by the investigating officer or made a witness in the case to corroborate the evidence of PW9. The other person was certainly a fictitious person introduced by PW9 and the prosecution at the trial of the case to explain the presence of PW9, who was residing 500 metres away, near the place of occurrence. His presence in front of the shop of PW7 to see anything is liable to be suspected. **Crl.Appeal.2359/2009** 39 46. There were a few more omissions proved by the defence which would also contribute to make the evidence of PW9 and his very presence at 3.00 pm on 5.4.2003 near the house of Rajappan to see and talk to the assailants suspicious. PW9's evidence that he saw the entry of the assailants into the compound of PW1 was an omission. The statement of PW9 in court that he saw PW4 covering the head of Rajappan with towel was another omission. The evidence that PW9 saw PW4 in the house of Rajappan was yet another omission. All these omissions would suggest that PW9 was no where near the place of occurrence at the relevant time. His evidence in cross-examination suggests such a conclusion. He spoke in cross-examination that he went to the house of Rajappan 10 minutes after he heard the cry. Nothing more is necessary to find that he had no occasion to see the assailants or their entry into the compound of PW1. The duration of the incident was only five minutes as per the evidence of PW2. Had PW9 been 30 yards away from the place of occurrence and if he was in the compound of PW1 on the northern side of PW1's house, he (PW9) would not have take ten minutes to reach the house of **Crl.Appeal.2359/2009** 40 Rajappan when the assailants left the place within five minutes. It was also the evidence of PW9 that before he reached the house of Rajappan, people had come there and gone from there. The evidence of PW9 cannot be relied on for various reasons stated by us. 47. PW2. He is the key witness of the prosecution. He sustained injuries in the incident,. According to the prosecution, he was the target of the accused persons. The question is whether relying on his evidence alone the acquittal of accused 1, 4, 6 and 20 can be set aside and they can be convicted. Such a course is possible only if the evidence of PW2 is of a sterling quality. We shall consider his evidence. 48. We state below the evidence of PW2 as appear in his examination-in-chief. He was lying on his cot in the afternoon of 5.4.2003 in the southern room of his house. He heard a noise outside his house and someone calling his name, Unni. He came out of his house through the southern door. He saw a mob approaching his house with weapons. **Crl.Appeal.2359/2009** 41 He saw among them accusd 1, 2, 4, 6, 18 and 20 who were familiar to him. He sensed a fray, went to the courtyard, returned to his room, closed the door and locked it. The assailants entered his room through the northern door of the room. His father also came to his room. The 4[th] accused with a sword in his hand cut PW2 with force. PW2 resisted the blow with his right hand. The blow hit his right elbow resulting in an injury. Then the second accused with a sword struck a blow which also PW2 defended with his right hand. The blow hit his right hand and he sustained an injury on that hand. He sat on his cot. Holding his injured hand, his father cried and requested the assailants not to harm his son. Thereafter the first accused with the sword in his hand struck a blow at the head of PW2. The hit produced a wound on his forehead. Holding his hand his father again cried for mercy. The sixth accused with a billhook cut on the head of PW2's father who sustained an injury on the back of his head. It was a deep wound and blood oozed. PW2 made his father lie on the cot. Then accused No.18 with a sword cut PW2 on his left knee. The sixth accused with the billhook cut PW2's father on the left knee. It produced a deep wound **Crl.Appeal.2359/2009** 42 making the patella visible. Accused No.20 with an iron pipe beat PW2 on the left thigh. Thereafter the accused persons opened the door and made their exit. PW1, 4 and 5 came inside the room. They bandaged with cloths the wounds of PW2 and his father. PW2 and his father were taken to the medical college hospital at Alapuzha in a car. From there PW2 was taken to the unit of the medical college hospital at Vandanam for scanning. Only on the next day he knew about the death of his father. On 7.4.2003 PW2 gave a statement to the police. 49. PW2 identified in court accused 1, 2, 4, 6, 18 and 20. He identified MOs 1 to 5 and spoke that MO1 was the billhook used by the sixth accused, that MO3 was the iron pipe used by accused 20 and that MOs 2, 4 and 5 were the swords used by accused 1, 2 and 4 respectively. 50. The learned public prosecutor submitted that PW2 spoke to the overt acts of accused 1, 2, 4, 6, 18 and 20 and that he identified in court all of them. It was also submitted that nothing tangible could be brought out in cross- **Crl.Appeal.2359/2009** 43 examination to discredit the evidence of PW2. The learned counsel for the accused, on the other hand, argued that almost every statement of PW2 in court was contradicted either by his own evidence or by other evidence including the medical evidence. It was also argued that as nobody else saw any over act of any accused, who allegedly attacked PW2 and his father, medical evidence was the only evidence which the prosecution could rely on for corroboration, but the medical evidence would contradict the evidence of PW2 in many respects. We shall consider whether the evidence of PW2 is acceptable as one free from suspicion or is liable to be rejected as suspicious. 51. The apex court in several decisions has laid down the guidelines to be followed in deciding an appeal against a judgment of acquittal. We may refer to a few of those decisions. It is held in Dharamdeo Singh v. State of Bihar (AIR 1976 SC 832) that in an appeal against an order of acquittal, if two conclusions can be based upon the evidence on record, the high court should not disturb the finding of acquittal recorded by the trial court. It is also held that if the **Crl.Appeal.2359/2009** 44 view taken by the trial court in acquitting the accused is not unreasonable, the occasion for reversal of that view would not arise. The apex court holds in Kilakkatha Parambath Sasi v. State of Kerala (AIR 2011 SC 1064) that the high court should not interfere in an appeal against acquittal except in exceptional cases. The same decision holds that interference in such an appeal is called for only if the findings of the trial court are not borne out by the evidence and are perverse. The apex court states further that it is equally well established that the high court can re-appraise the evidence so as to find out as to whether the view taken by the trial court is justified or not and that if it finds that the findings of the trial court are not possible on evidence, interference must be made, failing which there would be travesty of justice. Two more decisions which we find it apposite to mention here are Laxman Kalu Nikalje v. State of Maharashtra (AIR 1968 SC 1390) and Mahavir Singh v. State of Madhya Pradesh (AIR 2016 SC 5231) . The law is thus clear and settled. An interference with the judgment of acquittal passed by the trial court can be had only if the view taken by the trial court was one impossible to be taken or the trial **Crl.Appeal.2359/2009** 45 court misread or misappreciated the evidence or its conclusion was unreasonable or perverse. 52. Going by the evidence of PW2, he sustained four wounds as he was cut with swords by accused 1, 2, 4 and 18. The sites of wounds as stated by PW2 were his right elbow, right hand, forehead and left knee. He repeated in cross-examination that he sustained four wounds with swords. He said he sustained one more injury which was a contusion on his left thigh which was caused by accused No.20 by beating with an iron pipe. The evidence of PW2 that he sustained five injuries was not supported by medical evidence. Only three injuries are shown in Ext P9 wound certificate pertaining to PW2. Ext P9 and its author's evidence as PW17 do not suggest sustainment of any injury by PW2 on his left knee and left thigh allegedly caused by accused 18 and 20 respectively. PW2 asserted that the doctor examined his hands and legs and had seen the injury on the left knee. It was also the assertion of PW2 that the contusion on his left thigh was shown to the doctor and that the doctor examined the said injury. PW17 did not agree **Crl.Appeal.2359/2009** 46 with the suggestion put to him by the public prosecutor that generally only major injuries would be noted in wound certificates. PW17 stated that usually almost all injuries would be noted. He deposed that he examined all the four limbs of PW2 and ascertained that all the limbs were moving. That means PW17 thoroughly examined the limbs of PW2. Therefore the doctor would not have missed to note any injury on the left knee and left thigh of PW2. PW17 stated further that if the victim had drawn the attention of the former to any injury, it would have certainly been noted. In view of the evidence of PW17, PW2 cannot be heard to say that he sustained an injury on his left knee and a contusion on the left thigh. In view of what we have stated above, we are unable to accept the evidence of PW2 as fully true. His evidence on the overt acts of accused 18 and 20 is liable to be rejected as incorrect. 53. Accused 1, 2 and 4 allegedly cut PW2 with swords and caused him injuries. He stated in cross-examination that every blow with swords was executed with great force. If that be true, he must have received deep and serious **Crl.Appeal.2359/2009** 47 injuries. The prosecution even examined a few witnesses to speak to the holding of bloodstained swords by the accused persons who allegedly entered the house to do the crime. But PW2 did not sustain any injury of serious nature. All the three injuries noted in Ext P9 and deposed to by PW17 were simple lacerated injuries. According to PW17, all the injuries noted by him were soft tissue injuries which could be termed simple injuries. The veracity of the evidence of PW2 should be suspected since he said that he was cut with swords with great force to cause him injuries, but he sustained only simple soft tissue lacerated wounds. 54. The defence challenged the evidence of PW2 identifying accused 1, 2, 4, 6, 18 and 20. PW2 spoke that before the entry of the said accused persons into his house, he saw their arrival to his compound holding weapons. It was also stated by him that they were persons familiar to him. The familiarity stated by PW2 was disputed by the defence. PW2 deposed that at the hospital the doctor asked him how he and his father sustained injuries. PW2 did not state to the doctor (PW17) the names of any of the accused. PW2 did not **Crl.Appeal.2359/2009** 48 tell the doctor that the assailants were persons familiar to PW2. According to him, what he stated to the doctor was that a large number of persons came to his house and attacked him and his father. The witness denied having stated to the doctor that 10/15 persons who could be identified by sight came to his house and attacked him. Although he denied, what was recorded by PW17 in Ext P9 wound certificate and deposed to in court by PW17 was that about 15 persons who could be identified by sight attacked PW2. Such would not have been the version of PW2 if the persons attacked him and his father were known to him or familiar to him. PW17 deposed that he would not have omitted to record the names of the assailants if the victim told him any name. Describing the assailants at the earliest opportunity as persons who could be identified by sight ruin the claim of PW2 that accused 1, 2, 4, 6, 18 and 20 were persons familiar to him. It is more so in the light of his evidence that nothing prevented him from disclosing the names of the assailants to the doctor. 55. PW2 did not sustain any serious injury. He sustained **Crl.Appeal.2359/2009** 49 only simple soft tissue injuries. His condition was not bad. As he himself stated, he was able to talk while being taken to the hospital in a car as also at the hospital. At the hospital he did talk to the doctor. The history and alleged cause of injuries were told to the doctor by PW2 himself. The incident was at 3.00 pm and PW19 examined PW2 at 3.40 pm. PW2 was then conscious and well oriented as noted in Ext P9 wound certificate and as stated by PW17. It was also deposed by PW17 that the heart beat and blood pressure of PW2 were normal when the former examined the latter. PW2 was taken to Vandanam for scanning, but he was brought back to the ward in the hospital within one hour as he stated. He spoke that he was in the ward of the medical college hospital since 5.15 pm on 5.4.2003. From the hospital, he said, he came to his house for one hour to perform the religious obsequies in connection with the cremation of the dead body of his father. PW2 stated that when he came to his house to perform the religious rites, many police officers were in his house. It was possible to record the statement of PW2 as he was fit to give statement, but his statement was recorded only on 7.4.2003. The **Crl.Appeal.2359/2009** 50 prosecution is without any explanation for the delay in recording the statement of the most crucial witness. As he stated, his statement was recorded only in the afternoon of 7.4.2003. The learned counsel for the accused submitted that the recording of the statment of PW2 was deliberately delayed till the afternoon of 7.4.2003 in order to fix the accused persons against whom overt acts were alleged. The submission cannot be brushed aside. 56. PW2's evidence is not free from inconsistencies, discrepancies and contradictions. He spoke that he opened the southern door of his house when he heard a noise outside and someone calling him. He stated in crossexamination that he opened the door and did not go beyond the door. He denied having gone to the courtyard. His such denial was not only contrary to the contradiction marked as Ext D3(b), but also to his own evidence in his examinationin-chief. What he stated in his examination-in-chief was that he opened the door, saw the assailants, went to the courtyard, returned to his room and closed and locked the door. He only knows why he denied his going to the **Crl.Appeal.2359/2009** 51 courtyard after opening the door. He did not have a uniform version as to when did his father come to his room at the time of the incident. His version in the examination-in-chief was that his father entered his room immediately after the entry of the six accused persons and before the first attack on him by the fourth accused with the sword. But his version in cross-examination was that his father came after he sat on the cot subsequent to the attack on him by the second accused, which, according to him, was the second attack on him. PW2 spoke in chief-examination that after the incident the accused who attacked him opened the southern door and left. He did not say that the said door was forced open by those accused persons from inside or any other accused person from outside. But what he stated to the investigating officer was different. The contradiction was marked as Ext D3(c). The version therein was that the door was forced open from outside by the companions of the attackers. The above noted discrepancies in the evidence of PW2 cannot be eschewed when considered along with the other matters considered by us. **Crl.Appeal.2359/2009** 52 57. We conclude. There are a few findings and conclusions made by the trial court we are not in agreement with. We need not state those matters. We have considered the evidence of the material witnesses and we are satisfied that the acquittal of the accused persons is not liable to be interfered with. The appeal deserves only a dismissal. 58. Dismissed. Sd/- C.K.ABDUL REHIM Judge A.M.BABU Judge Sd/- Mrcs/18.9.