State of Kerala v. Praju and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **CRL.A.No.947 OF 2011** **AGAINST THE ORDER/JUDGMENT IN SC 92/2004 OF THE SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES), KOZHIKODE DATED 12.4.2010** ## **APPELLANT/S:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.S.SREEKUMAR,SENIOR PUBLIC PROSECUTOR** ## **RESPONDENT/S:** |**1**|**PRAJU, AGED 36,S/O.KUTTIMON, THEKKETHODI VEEDU,,**| |---|---| ||**SAROJINI BHAVAN, MARAD BEACH, BEYPORE AMSOM.**| |**2**|**MUTHU @ KAILAS, AGED 35**| ||**S/O.RAGHAVAN, THEKKETHODI VEEDU,, MARAD BEACH,**| ||**BEYPORE AMSOM.**| |**3**|**KISHORE, AGED 36**| ||**S/O.NARAYANAN, CHOYICHANTAKATH VEEDU,, MARAD BEACH,**| ||**BEYPORE AMSOM.**| |**4**|**SIVADASAN, AGED 65**| ||**S/O.SAMIKUTTY, KANNANTE PURAYIL, NADUVATTOM,, MARAD**| ||**BEACH, BEYPORE AMSOM.**| |**5**|**PRAHLADAN AGED 31**| ||**S/O.PRAHAKARAN, ARAYACHANTAKATH VEEDU,, MARAD BEACH,**| ||**BEYPORE AMSOM.**| |**6**|**PRASANTH, AGED 31**| ||**S/O.SANKARAN, ARECHANTAKATH,, MARAD BEACH, BEYPORE**| ||**AMSOM.**| |**7**|**SAJEEVAN @ VENKITTAN**| ||**AGED 33, S/O.GOVINDAN, KELAPPANTAKATH,, MARAD BEACH,**| ||**BEYPORE AMSOM.**| 2 CRL.A.No.947 OF 2011 - **8 DEVAN , AGED 50, S/O.RAGHAVAN THEKKETHODI VEEDU, MARAD BEACH,, BEYPORE AMSOM.** - **9 KALESH @ KRISHNAKUMAR AGED 29, S/O.VYASAN, CHOYICHANTAKATH,, MARAD BEACH, BEYPORE AMSOM.** - **10 AMBU @ SWAROOP, AGED 27 S/O.SUNDARAN, ARACHANTAKATH, MARAD BEACH,, BEYPORE AMSOM.** - **11 VIBEESH, AGED 36 S/O.DHARMAN, KORANTAKATH,, NEAR SREEKURUMBA KSHETHRAM, MARAD BEACH,, BEYPORE AMSOM.** - **12 RAJAN, AGED 39 S/O.SANKARAN, ARAYACHANTAKATH VEEDU,, MARAD BEACH, BEYPORE AMSOM.** **BY ADV. SRI.R.ANIL BY ADV. SRI.T.ANIL KUMAR BY ADV. SRI.ARUN KRISHNA DHAN BY ADV. SRI.JOSEPH GEORGEMULLAKKARIYIL BY ADV. SMT.MITHA SUDHINDRAN BY ADV. SMT.C.G.PREETHA BY ADV. SRI.B.RAMAN PILLAI SR. BY ADV. SRI.A.RAJESH BY ADV. SRI.M.REVIKRISHNAN BY ADV. SRI.M.SUNILKUMAR BY ADV. SRI.P.S.SREEDHARAN PILLAI BY ADV. SRI.SUJESH MENON V.B. BY ADV. SRI.T.K.SANDEEP BY ADV. SRI.THOMAS ABRAHAM NILACKAPPILLIL BY ADV. SRI.P.VIJAYA BHANU SR. 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:** 3 CRL.A.No.947 OF 2011 ## **JUDGMENT** ## **A.M.BABU, J.** The accused persons, who number 12, were charged and tried under Secs 143, 147, 148, 149, 153A, 302 and 325 of the Indian Penal Code (IPC). They were acquitted by the trial court. Hence the prosecution has come in appeal. 2. The prosecution case goes as follows: The incident had taken place at 8 p.m on 3.1.2002. The place of occurrence was the beach at Marad in Kozhikode district. The accused formed themselves into an unlawful assembly. The common object of it was to do criminal acts including murder in order to promote communal disharmony among hindus and muslims living in the area. The accused committed rioting. They were then armed with deadly weapons. They set fire to a fibre boat, two engines and fishing nets of one Yunus and attacked him. Yunus was cut with swords by accused 1 and 2, beaten with a stick by the 3[rd] accused, stabbed with a knife by the 4[th] accused, cut with a chopper by the 7[th] accused and beaten with an iron pipe by the 9[th] accused. 3. PWs 1 to 22 were examined and Exts P1 to P27 and MOs 1 to 9 were marked on the side of the prosecution. On the defence side, DWs 1 to 6 were examined and Exts D1 to D25 were 4 CRL.A.No.947 OF 2011 marked. 4. Heard Sri.S.Sreekumar (the learned senior public prosecutor), Sri.B.Raman Pillai (the learned senior counsel for accused 1 to 5), Sri.Vijayabhanu (the learned senior counsel for accused 7 and 11) and Sri.Sreedharan Pillai (the learned senior counsel for the remaining accused). 5. The murder and mischief by fire are not disputed by the accused. What they dispute is not the incident, but their complicity. Yunus was murdered and his boat and fishing nets were set fire to by the culprits, whoever they be. The evidence of PW8, who conducted post-mortem examination and who authored Ext P6 autopsy certificate, proves the death of Yunus to be homicidal. Ext P15 inquest report prepared by PW21 also proves the fact. Murder of Yunus and burning of his properties were not disputed by the learned counsel for the accused persons at the time of hearing of the appeal. It can be concluded even without referring to the ocular evidence that Yunus was murdered and that his properties were set fire to in the incident which occurred on the night of 3.1.2002 at the Marad beach. 6. The appeal is preferred against a judgment of acquittal. There are certain guidelines to be kept in mind while considering an appeal against acquittal. The apex court has held in **Dharamdeo Singh vs State of Bihar (AIR 1976 SC 832)** as 5 CRL.A.No.947 OF 2011 ## follows: It is well settled 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 would follow as a corollary from that that if the view taken by the trial court in acquitting the accused is not unreasonable, the occasion for the reversal of that view would not arise. ## We quote below what the Supreme Court has stated in **Laxman Kalu Nikalje vs State of Maharashtra (AIR 1968 SC 1390).** The powers of the High Court in an appeal against the acquittal are not different from the powers of the same court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on evidence, provided it pays due regard to the fact that the matter had been before the court of session and the sessions judge had the chance and opportunity of seeing the witnesses depose to the facts. Further the High Court in reversing the judgment of the sessions judge must pay due regard to all reasons given by the sessions judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. It may also be pointed out that an accused starts with a presumption of innocence when he is put up for trial and his acquittal in no sense weakens that presumption, and this presumption must also receive adequate consideration from the High Court. The apex court holds in **Mahavir Singh vs State of Madhya Pradesh (AIR 2016 SC 5231)** thus: 6 CRL.A.No.947 OF 2011 In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion. 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 it was one impossible to be taken or the trial court misread or misappreciated the evidence or its conclusion was unreasonable. 7. Ext P1 is the FI statement. It was given by PW1. Going by Ext P1, the incident was at 8 p.m on 3.1.2002. But the first information statement was given only at 6 am on the next day. The distance between the place of occurrence and the police station as shown in Ext P1 (a) FIR is just 4 kilometres. The author of the FI statement states in it that he saw fibre boats burning and that he went near and saw the dead body of Yunus lying there. It is also stated in the FI statement that after some time the police 7 CRL.A.No.947 OF 2011 came and removed the dead body to hospital. The FI statement thus suggests the presence of the police at the place of occurrence immediately after the incident. PW1 who gave the FI statement deposed in cross-examination to the presence of the police soon after the incident. He spoke that the police came at around 8 p.m and that they were in and around the area since then. The evidence of PW1 suggests that the police force was deployed in the area since there was another murder on the same day at Marad. PW1 spoke to the presence of superior police officers immediately after the incident. PW1 said that he was in the mosque and that the superior police officers came to the mosque. Despite the presence of the police force including superior officers before and after the incident, the FIR was registered only in the next morning at 6 a.m. In such a fact situation, the delay in lodging the FI statement and registration of the FIR has been inordinate. The prosecution should explain the delay. The FI statement was recorded and the FIR was registered by PW15. The prosecution did not try to get any explanation offered by PW15 or any of the investigating officers for the delay in registering the FIR. PW1 spoke that since it was night he did not go to the police station. His such evidence is not sufficient to explain the delay. For, the police cannot afford to wait for the arrival of a person to the police station to give information to 8 CRL.A.No.947 OF 2011 register the FIR and commence the investigation when cognizable offences of grave nature including murder were committed. It is more so particularly when even superior police officers were present in the area before and after the incident. The evidence of PW15 suggests that there were communal clashes at Marad even before the incident on 3.1.2002. The presence of police was vouched by PW21 who was one of the investigating officers. He spoke that the dead body was taken to the hospital in the vehicle of the fire force by the people and police. The prosecution failed to explain the inordinate delay in registering the FIR. The prosecution had a shaky start. The unexplained inordinate delay is fatal to the prosecution. 8. PW1 did not witness the incident of murder and mischief by fire. He spoke that he did not see the incident. However, the prosecution is relying on his evidence to prove that he saw the assailants proceeding to the actual locale of the crime. According to the prosecution, PW1 could identify some of the accused persons who were members of the mob. PW1 stated the names of accused 1 to 7 and identified in court six of them. He did not identify the 6[th] accused in court. The prosecution is relying on the evidence of PW1 to establish that he saw the assailants proceeding to the place of occurrence and that he identified six of them who were accused 1 to 5 and 7. The learned trial judge did 9 CRL.A.No.947 OF 2011 not accept the evidence of PW1. 9. We state below what PW1 has stated in his examination-in-chief. He came out of the gate of the mosque at 7.45 p.m on the date of incident after his ' _Isha namaz'_ . He saw about 20 persons proceeding through the Marad beach road from east to west carrying sword, torch, jerry can, knife et cetera. They were holding burning torches. They shouted slogans that muslims should be burnt. Everybody was carrying weapons. All the accused persons in the dock were among the mob. PW1 knows the names of all the assailants. He stated to the police the names of only 7 persons as he could identify only 7 of them then. After his return to the mosque he ascertained the names of the remaining accused persons. At that time, the persons who came for prayer and persons who came to the mosque after the incident were in the mosque. There was sufficient light to identify the accused persons. There was light from a few houses there and also from the flames of the torches the accused carried. 10. PW1 could not identify in court the 6[th] accused by name Prasanth. The witness spoke that Prasanth was not in the dock. PW1 did not state the names of seven accused persons while giving the FI statement. He mentioned the names of only 4 persons who were accused 1 to 4. PW1 did not state the names of accused 5 to 7 while giving the FI statement. PW1 did not state in 10 CRL.A.No.947 OF 2011 the FI statement that he identified any of the accused persons in the mob. What he stated in the FI statement was only that he had only heard that Yunus was killed by the four persons whose names were stated in the FI statement and a few others who could be identified by sight. The evidence given by PW1 that he could identify seven of the accused persons was contrary to what he stated in Ext P1. PW1 was examined by the investigating officer under Sec.161 of Cr.P.C. PW1's assertion in court that he did state to the investigating officer the names of the persons he saw in the mob was proved to be an omission amounting to a material contradiction within the meaning of the explanation to Sec.162 of Cr.P.C. PW1 spoke that from his childhood onwards he knew all the accused. But he did not state in the FI statement the name of any one of them as the person seen by him in the mob. The evidence of PW1 cannot be accepted to find that any of the accused was seen by him among the persons who formed a mob. 11. The trial court stated some other reasons also to disbelieve PW1. The learned trial judge did not accept the evidence of PW1 that he went home and returned to the mosque within ten minutes. In order to reject his such evidence, the learned trial judge took notice of Ext D1 contradiction that PW1 returned to the mosque out of fear. We do not consider such matters much relevant. For, the evidence of PW1 was not that he 11 CRL.A.No.947 OF 2011 saw the mob on his way to his house. His evidence was that he saw the mob when he just came out of the gate of the compound of the mosque. Therefore whether he went to his house and returned to the mosque or whether he returned to the mosque without going to his house is not much relevant. We therefore leave it there. PW1 might or might not have seen a mob. Even if he saw the mob, his evidence that the mob consisted of the accused persons as well cannot be accepted for reasons stated by us. 12. The evidence of PW1 is not helpful to the prosecution to prove anything against the accused persons. The prosecution did not gain anything by the examination of PW1 except that he gave the FI statement. 13. PWs 2 to 4 are the ocular witnesses for the prosecution. PW3 is the wife of Yunus. The witness spoke that she witnessed the incident. She identified accused 2 and 6 to 8 in court. PW3 did not identify any other accused. What PW3 stated about the other accused persons was only that they were also present among the assailants. This is not proper identification. PW3 did not say that she had any previous acquaintance with those accused persons. No test identification parade was conducted. If the ocular evidence of PW3 is acceptable, the prosecution can make use of it only against accused 2 and 6 to 8. 12 CRL.A.No.947 OF 2011 14. PW3 narrated the incident. She stated as follows in her examination-in-chief: The incident happened sometime between 7.45 p.m and 8.00 p.m on 3.1.2002. She and her husband were in their house. She heard shouts and commotion outside. The assailants uttered that no muslim shall be left alive. The assailants were holding swords, knife, chopper, iron rod, sticks, jerry cans, burning torches _et cetera_ . They poured kerosene and burnt the boat and nets of Yunus. Although PW3 prevented, Yunus ran to the place of occurrence to save the engine of his boat from being burnt. He was encircled by the assailants who attacked him with the weapons they were holding. PW3 heard the cry of her husband. She saw her husband being given blows with weapons. Yunus fell down. The assailants ran to the house of PW3 and she then ran to the mosque for shelter. She knew in the night when she was in the mosque that her husband died. 15. The trial court rejected the evidence of PW3 in view of Exts D10 and D11 statements. She denied having given both those statements. Ext D11 was proved through PW22 who recorded it. There is dispute between the learned public prosecutor and the learned counsel appearing for the accused as to whether Ext D10 statement was proved as a contradiction. The statement which includes the portion of it marked as Ext D10 was 13 CRL.A.No.947 OF 2011 recorded in crime no.71/2002. According to the prosecution, the assailants set fire to the house of Yunus after committing his murder. Crime no.71/2002 was registered in respect of the said offence of arson. PW20 was the circle inspector of police who filed the charge-sheet in crime no.71/2002 as well as the charge-sheet in the present case. He spoke that PW3 had given a statement in crime no.71/2002. The statement was recorded by an assistant sub-inspector of police by name Chandran. Chandran was not examined and therefore the prosecution would contend that Ext D10 was not proved. The learned trial judge stated at paragraph 22 of the impugned judgment that the police officer who recorded the statement of PW3 in crime no.71/2002 was not available and therefore PW20 was recalled and examined. Thus, it was not a case where the defence did not attempt to examine Chandran who recorded the statement of PW3 in crime no.71/2002. Chandran was not examined as he was not available for examination. Therefore the only alternative for the defence was to prove Ext D10 by any other mode. PW20 was recalled and he gave evidence that PW3 did give Ext D10 statement. Ext D10 is proved by the defence and the contrary contention of the prosecution cannot be accepted. 16. PW3 had the following version in Ext D10 previous statement of hers: She successfully prevented her husband from 14 CRL.A.No.947 OF 2011 going out of their house while boats were burning at the sea shore. They locked the front door of their house when they saw the assailants approaching their house. PW3, her husband and others escaped through the back door of the house when the assailants forced open the front door and entered the house. PW3 and others entered the house of one Noorudheen for shelter. When they saw some of the assailants setting fire to the said house too, Yunus and his father's brother Jaffer had their exit from the said house and ran away. PW3 and other women hid in the toilet. They went to the house of the brother of Yunus after sometime when policemen and firemen came. PW3 came to know in the next morning that her husband was killed by the hindus. 17. Thus, going by Ext D10 previous statement of PW3 given in crime no.71/2002, she did not see the incident of murder of her husband. PW3 denied having given Ext D10 statement, but it was proved by the defence through PW20. It is not possible to accept the version of PW3 that she did not give Ext D10 statement. The prosecution does not, and it cannot, dispute the registration of crime no.71/2002. It is also not disputed that the incident alleged in the said case is the setting fire to the house of PW3 in the same night. But she stated that she was unaware of the registration of any such case. The said evidence of hers cannot be accepted. It must be taken that she stated that she 15 CRL.A.No.947 OF 2011 was unaware of the registration of any such case only to get over Ext D10 statement. Ext D10 should be read along with Ext D11 contradiction which was admittedly proved by the defence. Ext D11 statement of PW3 is that only when her brother and father came to the mosque in the next morning, she knew that her husband who had gone out to save the engine from the burning boat was killed by the hindus in the previous night. Thus, Ext D11 too suggests that PW3 did not see the incident. Ext D11 supports the version of PW3 in Ext D10 statement. The only possible conclusion is that PW3 did not see the incident. The learned trial judge was right in rejecting the evidence of PW3. 18. PWs 2 and 4 spoke that they saw the incident which happened at around 8 p.m on 3.1.2002. They stated that they were sitting at the Marad beach along with two others. According to them, the assailants came from north carrying weapons, burning torches, jerry cans _et cetera_ and shouting slogans against mulsims. PWs 2 and 4 deposed that the assailants set ablaze the fibre boat of Yunus, its engine and also fishing nets. The attack on Yunus was also spoken to by PWs 2 and 4. They identified all the accused in court and spoke to the overt act of each accused. The learned trial judge did not accept the evidence of PWs 2 and 4 stating several reasons. 19. Going by the evidence of PWs 2 and 4, they at the 16 CRL.A.No.947 OF 2011 relevant time were sitting at the beach and saw the incident together. PW4 spoke that he and others reached the beach at 7.45 p.m and started conversation. PW2 also spoke that he and others came to the beach at sometime between 7.30 pm and 7.45 p.m. The learned trial judge stated that PWs 2 and 4 would not have been at the place from where they allegedly saw the incident. In order to state so, the learned judge considered the previous statement of PW4 with which he was contradicted in cross-examination. The contradiction was not marked as an exhibit, but it was proved through DW3. He was the investigating officer of another case which was registered as crime no.70/2002. His evidence suggests that crime no.70/2002 was registered in respect of the offence of setting fire to the house of one Kunjumon. The contradicted statement of PW4 would suggest that while returning to his house from the mosque he saw the house of Kunjumon being set fire to by a few persons at 8 p.m on 3.1.2002. The contradicted statement suggests further that PW4 hid himself behind the house of one Kunjubi and saw the house of Kunjumon being kindled. It is also part of the contradicted statement that PW4 escaped from there. Before the previous statement was contradicted, his attention was drawn to those portions of the statement intended to be contradicted as required under Sec.145 of the Indian Evidence Act. PW4 denied having given such a 17 CRL.A.No.947 OF 2011 statement and he denied that he was a witness in crime no.70/2002. But the defence proved the contradicted statement of PW4 through DW3 as stated already. The defence could prove that PW4 gave a statement in crime no.70/2002 to DW3 that the former at 8 pm on 3.1.2002 was at the place of occurrence of the said crime. Therefore the learned trial judge suspected the evidence of both PWs 2 and 4 that they and two others were in conversation sitting at the beach from 7.45 pm till the happening of the murder of Yunus at 8 pm in the same night. The finding of the learned trial judge was neither perverse nor without the support of evidence. The evidence of PWs 2 and 4 that they saw the incident is not free from suspicion. We confirm the said finding of the trial court. 20. The learned trial judge considered as to what could be the possible inference even if PWs 2 and 4 were sitting at the beach. According to the learned judge, the evidence was confusing as to where exactly they were sitting. In his examination-in-chief PW4 stated that he, PW2 and two others were sitting at the beach on the western side of the house of Yunus approximately 50 metres away from that house. But PW2 stated that they all were sitting at the beach on the western side of the fisheries school. There was no attempt by the prosecution to clarify that PWs 2 and 4 were referring to the same place as the 18 CRL.A.No.947 OF 2011 place where they sat just before and at the time of the incident. PW4 did not refer to the fisheries school in his evidence. In fact he denied having given the contradicted statement marked as Ext D14 which would suggest that he and others were sitting on the western side of the fisheries school. PW4 spoke in crossexamination that he and others were sitting in between the northern and southern sea walls. PW2 also deposed in crossexamination that he and others were sitting at the open space between the said two sea walls. It was also his evidence that the said place was 50-60 metres away from the fisheries school. But the fisheries school is not shown in Ext P12 sketch, Ext P16 scene mahazar and Ext P18 observation mahazar. The nearby shops, houses and even sheds are shown in Ext P18, but not the fisheries school. PWs 2 and 4 have not been consistent as to where exactly they were sitting and from where precisely they saw the incident. Their evidence on the point was confusing as stated by the learned trial judge. The prosecution did nothing to remove the confusion. 21. The incident relating to the murder of Yunus was not the commencement of riots and violence at Marad. The situation in the area was tensed even before. We have already referred to the evidence of PW1 that police force was deployed in the area since there was another murder at Marad on the same day. The 19 CRL.A.No.947 OF 2011 person killed in the said incident was one Kunjikoya. It is true as argued by the learned public prosecutor that there is no evidence in the present case as to at what time the said incident had taken place. Whatever be the precise time at which it happened, it happened on the same day. PW1 spoke that Kunjikoya and two hindus were killed on the same day in different incidents which took place almost at the same time. PW1 stated that Kunjikoya who sustained injuries was brought to the mosque and that the injured was taken to the hospital from the mosque at around 8 p.m. PW1 spoke that immediately after the ' _Isha namaz'_ an alarm was given from the mosque in the form of group or repeated _'azan'_ (കകൂട്ടബബാങങ). The evidence of PWs 2 and 4 that they did not hear it is not a believable version. According to PW1, people were running here and there after the alarm made from the mosque. The evidence of PW1 does suggest that the situation was tensed and that the people who were panic were running here and there. It is highly improbable, as stated by the trial court, that PWs 2 and 4 were sitting at the beach unaware of what was happening in the surroundings. We agree with the learned trial judge that PWs 2 and 4 could not have been sitting at the beach when the incident happened. Therefore their evidence that they saw the incident from the place where they allegedly sat cannot be considered true. 20 CRL.A.No.947 OF 2011 22. PW1 deposed that before giving the FI statement he enquired in the mosque whether there was anybody who had seen the incident. PW1 stated that he asked both PWs 2 and 4. According to PW1, he did so to ascertain true facts for giving the FI statement. PW2 deposed that he narrated the incident while he was in the mosque to the people who were in the mosque and also to a police officer who came to the mosque after the incident. PW4 stated that he stated to PW1 about the incident. PW4 repeated in cross-examination that he did tell PW1 as to what did he (PW4) see and also the names of the culprits. PW4 said that he talked to PW1 for ten minutes. According to PW4, in fact he wanted to give the statement to the police, but PW1 volunteered to do it. If the evidence of PWs 1, 2 and 4 discussed above is true, PW1 was aware while giving the FI statement that PWs 2 and 4 had seen the incident. Their names would have been mentioned in the FI statement as eye-witnesses in the normal course. We do not say that the failure to mention the names of PWs 2 and 4 in the FI statement as eye-witnesses is fatal to the prosecution. What we say is only that in the light of the evidence of PWs 1, 2 and 4 referred to above, the non-mention of the names of the eyewitnesses in the FI statement is a circumstance to suspect the evidence of PWs 2 and 4 that they saw the incident. In this connection we refer to a decision relied on by the defence. The 21 CRL.A.No.947 OF 2011 ## decision is **Ram Kumar Pande vs State of M.P (AIR 1975 SC** ## **1026).** The Supreme Court has stated as follows: No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 pm on 23.3.1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. The failure of PW1 to state the names of PWs 2 and 4 in the FI statement as eye-witnesses adds more weakness to the prosecution case. 23. Going by the evidence of PWs 1 , 2 and 4, everybody (including police officers, according to PW4) knew on the date of incident itself that PWs 2 and 4 had witnessed the incident. The failure to interrogate PWs 2 and 4 immediately is also suspicious. PW2 spoke that he gave his first statement to the police four or five days after the incident. PW4 deposed that his first statement was recorded by the police on 9.1.2002, that is, on the 6[th] day after the incident. The prosecution has no explanation for the delay in questioning PWs 2 and 4 if everybody knew that they were eye-witnesses. We accept the submission of the learned 22 CRL.A.No.947 OF 2011 counsel for the accused persons that PWs 2 and 4 were subsequently procured as eye-witnesses. They are not genuine ocular witnesses. 24. According to PWs 2 and 4, they were together standing at one place when they witnessed the incident. They narrated the whole incident. When PW4 deposed that the assailants set fire to the fibre boat of Yunus, PW2 spoke that they set fire to a number of boats and that the boat of Yunus also caught fire. According to PW2, there were twenty assailants and twelve of them attacked Yunus at a time. But, according to PW4, only six persons attacked Yunus and the others were encouraging those who actually attacked Yunus. PW2 spoke that some of the assailants attacked Yunus with burning torches. But no ante- mortem burn injury is shown in Ext P6 autopsy report. PW8 who conducted autopsy testified that the burns shown in Ext P6 report were not antemortem injuries, but those caused by flames after the death of the victim. PW4 did not speak to any attack on Yunus with burning torches. PW2 stated that when he and others (who include PW4 also) were standing at the place from where they saw the incident, they saw the assailants burning the house of Yunus. It was thereafter, said PW2, he and others ran to the mosque for shelter. PW4 did not speak to the witnessing of setting fire to the house of Yunus. What PW4 stated was only that he saw the assailants 23 CRL.A.No.947 OF 2011 moving towards the house of Yunus. PW4 did not state that he saw the house of Yunus set to fire by the assailants. In fact PW4 denied having given Ext D12 contradicted statement which would suggest him to have seen the act of burning the house of Yunus. The inconsistencies pointed out above would also ruin the evidence of PWs 2 and 4. 25. The overt act alleged against the 7[th] accused is that he cut Yunus with a chopper. PWs 2 and 4 spoke so. But, as admitted by them in cross-examination, they did not state so to the investigating officer in their first statement. They stated that they omitted to state the role of the 7[th] accused while giving the first statement. Two witnesses omitting to state one fact, a crucial fact, is not conceivable. Both the witnesses deposed that they stated to the investigating officer about the role of the 7[th] accused in their second statement. Both the witnesses admitted that they gave the second statement months after giving the first statement. In the meantime came Ext P6 autopsy report. PW8 deposed that injury numbers 14, 15, 19 and 20 shown in Ext P6 could be caused by a chopper. The submission on the side of the defence that a role was attributed to the 7[th] accused in view of the autopsy findings cannot be brushed aside. The 7[th] accused therefore has an additional ground for acquittal. 26. The prosecution would contend that MO1 sword, MO2 24 CRL.A.No.947 OF 2011 sword, MO3 wooden stick, MO4 iron pipe and MO5 knife were recovered at the instance and based on the disclosure statements made by accused nos 2, 1, 3, 9 and 4 receptively. The prosecution cannot make use of the recoveries of weapons against any accused other than accused 1 to 4 and 9. But, in a case where the ocular evidence is suspicious and unacceptable, the prosecution cannot bring home the guilt of accused 1 to 4 and 9 solely based on the evidence touching recovery of the weapons. It is more so in the present case since the ocular evidence diminishes the veracity of the alleged recoveries. The place of concealment alleged by the prosecution in the case of each recovery is more or less the same and is very close to the place of occurrence. PW2 spoke in his examination-in-chief that after the incident the accused persons ran away towards east and while so they were holding the weapons in their hands. He confirmed it in cross-examination by stating that he did state to the police that the accused persons left the place of occurrence with the weapons held by them. Can it be said that accused 1 to 4 and 9 came back to the place of occurrence to hide the weapons near the place of occurrence? It should be noted in this connection that the 4[th] accused was in the hospital at 8.30 p.m on the date of incident. The evidence of DW1 who has issued Ext D24 wound certificate proves that he examined the 4[th] accused at 8.30 p.m on 3.1.2002 25 CRL.A.No.947 OF 2011 at the medical college hospital, Kozhikode. It was not at all probable that five of the accused persons including the one who was in the hospital for treatment came back to the place of occurrence to hide the weapons. The recovery of weapons is highly suspicious and therefore liable to be rejected. 27. We may not be in agreement with some of the reasons stated by the learned trial judge to acquit the accused persons. We need not discuss those matters as we find the evidence considered by us sufficient to confirm the decision of the trial court to acquit the accused persons. We find no merit in the appeal. It deserves only a dismissal. 28. Dismissed. **Sd/C.K.ABDUL REHIM JUDGE Sd/A.M.BABU JUDGE** SKS/17.9.2019