IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE [ENTITY] & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940 CRL.A.No. 2183 of 2011 AGAINST THE JUDGMENT IN [CASE NUMBER] of I ADDL.SESSIONS COURT,KOLLAM DATED 16-11-2011 APPELLANTD/ACCUSED NOS.1,2,4,5,6,7 & 8: 1 [ENTITY], S/O [ENTITY], [ENTITY], [ENTITY], [ENTITY], MULAVANA VILLAGE. 2 [ENTITY] S/[ENTITY], [ENTITY] [ENTITY], MULAVANA VILLAGE. 3 [ENTITY] S/[ENTITY], [ENTITY], [ENTITY], MULAVAMA VILLAGE. 4 [ENTITY] S/O.VISWAN [ENTITY], [ENTITY], MULAVAMA VILLAGE. 5 [ENTITY] S/[ENTITY] [ENTITY], [ENTITY], MULAVAMA VILLAGE. 6 [ENTITY] S/[ENTITY], [ENTITY], [ENTITY], MULAVAMA VILLAGE. [CASE NUMBER] -:2:- 7 [ENTITY] D/[ENTITY] [ENTITY], [ENTITY], MULAVAMA VILLAGE. BY ADVS. [ENTITY] [ENTITY] [ENTITY] SRI.ARJUN SREEDHAR SRI.ARUN [ENTITY] [ENTITY] (SR.) [ENTITY] SRI.MANU [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] SRI.THOMAS ABRAHAM (NILACKAPPILLIL) [ENTITY] RESPONDENT/COMPLAINANT: [ENTITY], REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY SR.PUBLIC PROSECUTOR [ENTITY] THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON 21.11.2018 DELIVERED THE FOLLOWING: [CASE NUMBER] -:3:- JUDGMENT
Shaffique, J.
This appeal has been filed by accused nos. 1, 2 and 4 to 8 challenging the judgment of the First Additional Sessions Judge, Kollam in [CASE NUMBER] by which all of them were convicted and sentenced to undergo imprisonment for life and to pay a fine of `5,000/- (Rupees Five Thousand only) each and in default to undergo simple imprisonment for one year each under [SECTION] of the [ACT] ( for short, '[ACT]'), also to undergo rigorous imprisonment for five years with fine of `2,000/- (Rupees Two Thousand only) each and in default to undergo simple imprisonment for two months each under [SECTION] of [ACT], further sentenced to undergo rigorous imprisonment for a period of three months each under [SECTION] of [ACT], again to undergo rigorous imprisonment for a period of six months each under [SECTION] of [ACT] and also to undergo rigorous imprisonment for one year each under [SECTION] of the [ACT].
2. The case of the prosecution is that on 28.01.2002, accused nos. 1 to 9, in furtherance of their common object for rioting, formed an unlawful assembly with dangerous weapons, at the courtyard of the house of eighth accused, with the intention to commit murder of [ENTITY] and CW2 [ENTITY] (PW2). A1 was armed with a sword, A2 with a dagger, A4 to A6 with bamboo sticks and A8 with a chopper. When the deceased and PW2 went to the house of A8 to enquire about the incident occurred in the temple compound in which the brother of PW2 was assaulted, the deceased [ENTITY] was forcibly taken to the kitchen of the house of A8 and A1 inflicted cut injuries on several parts of the body of the deceased [ENTITY], A2 stabbed him with dagger, and A8 cut him with a chopper and due to all these attacks, [ENTITY] succumbed to the injuries subsequently. The accused also voluntarily caused injuries to PW2 with dangerous weapons with the intention of causing his death. A4, A5 and A6 beat PW2 using bamboo sticks and injured him. The appellants thereby committed offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] of the [ACT].
3. After trial, A3 and A9 were acquitted. The rest of the accused were convicted as mentioned above.
4. The prosecution examined PWs 1 to 19 and marked Exts. P1 to P19. Material Objects 1 to 16 were also identified and marked.
5. A2 is represented by learned Senior Counsel Sri.[ENTITY], A4 and A5 by Adv. [ENTITY] and A1, A3, A6 and A7 were represented by Adv. [ENTITY]. To avoid repetition and also for clarity and convenience, the arguments raised by the counsels are detailed together, in brief. The learned counsels argued that the prosecution purposefully suppressed the real incident and presented a concocted version as their case in the matter. The appellants are falsely implicated. The appellants are Harijans belonging to Pulaya community. The deceased, CW2 and their group belonged to higher caste, [ENTITY] and [ENTITY]. The prosecution failed to bring before the Court, the fact that the deceased and CW2 along with a group of people attacked the colony in which the appellants were residing with their families peacefully. The deceased and his team unleashed attack on the people and property over there and [ENTITY] might have sustained injuries during the said fight. The deceased and his team destroyed the alleged place of occurrence and many of the houses of the colony. There is absolutely no evidence to connect the appellants with the crime. The fabrication starts even from the stage of registration of crime itself. There is no enmity between the appellants and the deceased. The version of the prosecution that the deceased was taken to the kitchen of the house of A8 itself is unbelievable. Key witnesses were left unexamined purposefully. The wound certificate of the deceased and the injured would show that CW2 received the injuries prior to that of the deceased and he has not witnessed the incident. The very inception of the whole incident itself is not proved by the prosecution and their version that the deceased and his team went to the colony in the night to enquire about the incident of assault on Dr.[ENTITY], which happened at temple would rather probabilize the version of the defence that the deceased and his team had come to the colony to attack the inhabitants of the colony. They relied on the following judgments:-
(i) [PRECEDENT]. Paragraphs 23 to 25 reads thus:-
23. In this context, we may also note with profit a passage from Takhaji Hiraji v. Thakore Kubersing Chamansing, 2001 (6) SCC 145: -
"19 It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap of infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-
examination of such other witnesses may not be material. In such a case the court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court? If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-
examination of other witnesses."
24. Recently in [PRECEDENT], this Court, after referring to earlier decisions, has opined thus:-
" it is quite clear that it is not the number and quantity but the quality that is material. It is the duty of the Court to consider the trustworthiness of evidence on record which inspires confidence and the same has to be accepted and acted upon and in such a situation no adverse inference should be drawn from the fact of non-examination of other witnesses. That apart, it is also to be seen whether such non- examination of a witness would carry the matter further so as to affect the evidence of other witnesses and if the evidence of a witness is really not essential to the unfolding of the prosecution case, it cannot be considered a material witness (see: [PRECEDENT])."
25. In the case at hand, non-examination of the material witnesses is of significance. It is so because PW-11 is really an interested witness though the High Court has not agreed with the same. It appears from the material brought on record that he had an axe to grind against the appellant. That apart, [ENTITY], who was present from the beginning, would have been in a position to disclose more clearly about the genesis of the occurrence. He is the husband of the deceased and we find no reason why the prosecution had withheld the said witness. Similarly, the other three witnesses who are said to be injured witnesses when available should have come and deposed. Therefore, in the obtaining factual matrix that their non- examination gains significance."
(ii) [PRECEDENT]. Paragraphs 12 to 14 reads thus:-
"12. From the aforesaid authorities, it is quite vivid that nonexamination of material witnesses would not always create a dent in the prosecution's case. However, as has been held in the Case of [PRECEDENT] (supra) the charge of withholding a material witness from the Court levelled against the prosecution should be examined in the background of facts and circumstances of each case so as to find out whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. That apart, the court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. Another aspect which is required to be seen whether such witness or witnesses are the only competent witnesses who could have been fully capable of explaining correctly the factual situation. As we have noticed in the case at hand, the daughter was the eye witness and the wife was slightly away from the scene of occurrence. They are the most natural and competent witnesses. They really could have thrown immense light on the factual score, but for the reasons best known to the prosecution, they have not been examined. It is also not the case of the prosecution that they had not been cited as their evidence would have been duplication or repetition of evidence or there was an apprehension that they would have not supported the case of the prosecution. In the absence of any explanation whatsoever and also regard being had to the presence of wife and daughter of the deceased at the place of occurrence, we are of the considered opinion that it has affected the case of the prosecution. We are obliged to hold so as we find the prosecution has otherwise not been able to establish the case against the appellant and, therefore, nonexamination of the material witnesses cannot be regarded as inconsequential. As we find, the conviction wholly rests on the sole testimony of PW - 14. It is well settled in law that conviction can be based on the testimony of a singular witness. It has been held in [PRECEDENT] that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of [SECTION] of the [ACT]. But, if there are doubts about the testimony the courts will insist on corroboration. The same principle has been reiterated in [PRECEDENT] by stating that it is open to a competent court to fully and completely rely on a solitary witness and record conviction, if the quality of the witness makes the testimony acceptable.
13. In the case at hand the learned trial Judge has placed reliance on the evidence of PW - 14 who has come forward for recording his statement under [SECTION] [ACT] almost after two years and eight months. The only explanation he has given is that he was threatened by the co - accused [ENTITY]. It is interesting to note after his statement was recorded, the accused was arrested after six years and nothing happened to him during the said period. Thus the plea of threat to keep him silent for almost two years and eight months does not inspire confidence. Apart from that, as his testimony would show the accused - appellant had enquired about the deceased and he had accompanied them to the house of the deceased on one day, when the deceased Doctor was absent. His acquaintance with the accused -
appellant was hardly a fortnight old, but he along with the appellant and another had gone to the clinic of the deceased where the other person, pretending as a patient, went inside. It is in his evidence that the accused - appellant had fired at the deceased as a result of which he fell down and died. That the said witness could keep such an incident without disclosing to anyone, defies prudence and baffles commonsense. His plea of being threatened for such a long period to have the sustained silence, is unacceptable and we have no hesitation in holding that his testimony is thoroughly and wholly unreliable. Therefore, we are of considered view that the conviction recorded by the DesignatedCourt on his testimony alone without any corroboration is totally unsustainable.
14. In the result, we allow the appeal and set aside the judgment of conviction. If the detention of the accused appellant is not required in connection with any other case, he be set at liberty forthwith."
6. On the other hand, the learned Public Prosecutor argued that there is sufficient evidence to prove the guilt of the appellants. PW2 is an injured witness and his version is believable. The weapons were recovered based on the information given by the appellants and at their instance. The scene mahazar shows that blood pool of the deceased was found at the kitchen of the house of A8. Motive for the offence is also proved sufficiently. None of the appellants got injured in the incident and it rules out their version that there was a free-fight. The medical evidence also shows that the deceased was murdered in a brutal manner. All the evidence point towards the guilt of the appellants and hence the trial Court is justified in arriving at the finding of guilt.
7. We heard both sides and perused the records.
8. The question to be looked into is whether the trial Court was justified in convicting the appellants based on the available evidence.
9. The prosecution evidence in a nut shell is as follows:
The FIS is given by PW1 and based on which PW18 registered the crime through Ext.P1(a) FIR.
10. PW2 is an injured witness and brother of PW3.
11. PW3 deposed that he had quarrel with A1, A2, A4, A5 and A6 on the date of alleged incident in the temple compound. It is his version that the temple committee members interfered and parted them and he continued to remain there and by 8.30 p.m., he went back home and later admitted PW2 in the hospital.
12. PW4 is the father of the deceased. He identified MO3 shirt, MO4 dhothi and MO5 chappals as that of his son's.
13. PW5 is the Doctor at Sanker's Hospital who examined [ENTITY]. [ENTITY] was brought dead there and PW5 issued Ext.P2 certificate.
14. PW6 is the Village Officer who prepared the scene plan and it is marked as Ext.P3.
15. PW7 is the attestor to Ext.P4 scene mahazar.
16. PW8 is an attestor to Ext.P5 inquest report.
17. PW9 is cited by the prosecution as witness to Ext.P6 recovery mahazar but he turned hostile to the prosecution.
18. PW10 is the Doctor at General Hospital who treated PW2 [ENTITY] and issued Ext.P7 wound certificate.
19. PW11 is the property clerk of the Judicial First Class Magistrate Court. Ext.P8 series are the 151 form for thondy articles.
20. PW12 is the police head constable who prepared Ext.P10 body note of PW2 at the Medical College Hospital, Thiruvananthapuram.
21. PW14 is the SI of Police who recorded Ext.P1 FIS of PW1 and registered Ext.P1(a) FIR.
22. PW15 is the police surgeon who conducted the post- mortem examination on the deceased and issued Ext.P12 post- mortem certificate. Following were the ante-mortem injuries:-
"1. Incised penetrating wound 5 x 1.5 cm obliquely placed on the left side of back of trunk 17 cm outer to midline and 16 cm below ampit. Both ends of the wound were sharply cut. The wound entered into the chest cavity through the IX inter costal space after cutting the upper margin of 10th rib, and was terminated into the under surface of the lower lobe of left lung. The wound was directed upwards, forwards and to the right for a total minimum depth of 10.05 cm. The left chest cavity contained 800 ml of fluid blood with clot.
2. Incised penetrating wound 2.5 x 0.5 cm on the front of right side of abdomen. Both ends of the wound were sharply cut. The lower inner end being 7 cm outer to midline and 10 cm above pubic bone through which the intestine was protruded out. The wound was terminated into the mesocolon after transfixing the mesentery. The abdominal cavity contained 800 ml of fluid blood. The direction of the wound was downwards, backwards and to the left for a total minimum depth of 10 cm.
3. Incised wound 7.5 x 1cm bone deep obliquely placed on the left side of head and adjacent part of ear. Underneath the outlet of the bone was found sharply cut.
4. Incised wound 6 x 1.5 x 0.5 to 1 cm obliquely placed on the left side of face with a tailing towards the ear lobe for a length of 2 cm.
5. Abraded contusion 4.5 x 0.1 to 1 cm on the right of forehead and adjacent part of eyebrow 4 cm outer to midline.
6. Incised wound 1 x 0.5 x 0.5 cm involving the cartilage on the front of top of middle of right ear.
7. Contusion 2 x 2 cm on the right side of head just behind top of ear.
8. Incised wound 6 x 0.2 cm oblique on the left side of abdomen 15 cm outer to midline and 3 cm above the pubic bone.
9. Superficial incised wound 15 x 1 cm on the middle of left shoulder blade and adjacent part of arm, 12 cm outer to midline and 6 cm below root of neck.
10. Superficial incised wound 9.5 x 0.1 cm oblique on the left side of back of trunk the upper inner end being 8 cm outer to midline and 15 cm below root of neck.
11. Superficial incised wound 9 x 0.1 cm oblique on the back of left side of trunk 3 cm outer to midline and 17 cm below root of neck.
12. Superficial incised wound 4 x 5 x 0.2 cm horizontal on the back of left side of trunk 9 cm outer to midline and 23 cm below root of neck.
13. Superficial incised wound 5.5 x 0.1 cm on the left side of back of trunk 7 cm outer to midline and 24 cm below root of neck.
14. Superficial incised wound 1 x 0.1 cm vertical 13 cm outer to midline 11 cm below root of neck (left).
15. Incised wound 3 x 1 x 9 cm on the lower outer quadrant of left buttock. Both ends of the wound were sharply cut.
16. Abraded contusion 11 x 4 cm obliquely placed on the back of right side of trunk 4 cm outer to midline and 6 cm below shoulder blade."
23. PW16 and PW17 were arrayed as eyewitnesses but they turned hostile to the prosecution.
24. PW18 is the CI of Police who conducted the investigation from 27.05.2002 and submitted final report. It is seen that on 03.06.2002, he obtained the custody of the accused and questioned them. It is his version that he questioned A1 in the jail and on information received from him, he effected the recovery of MO1 sword as per Ext.P15 mahazar.
25. PW19 is the CI of Police who conducted investigation from 29/01/2002 onwards. He prepared Ext.P5 inquest report and seized dress found on the dead body of [ENTITY]. He prepared the scene mahazar and recovered MO9 blood-stained clothes from the place of occurrence and MO4 blood-stained kavi cloth. He seized MO7 konki iron and MO2 steel vessel, MO8 kathal and MO2 stick which were blood-stained. He also seized MO16 chilly water and MO11 vessel containing chilly water. MO10 is the plastic mug. MO14 is the citizen watch and MO15 is its dial. He caused arrest of A9 through a Woman Police Constable on 04/03/2002. It is the version of PW19 that he could not arrest the other accused as they were absconding. Ext.P17 is the report regarding the details of the accused. He recovered MO6 knife from the roof of house no.358 on the basis of Ext.P6(a) information received from A2 and Ext.P6 is the mahazar prepared for the same.
26. The case of the appellants can be seen clearly in their additional written statement filed under [SECTION] of the [ACT] and also during cross-examination of the witnesses. According to them, in connection with the temple festival, PW2 and his relatives objected kettukazhcha and there was some dispute regarding the same between the members of the scheduled caste and others and there was a tension in that area. There was a scuffle at the temple compound. On that day, at 8.30 p.m., PW2 and others consumed alcohol at the house of PW2. Later, PW2, deceased [ENTITY], [ENTITY], [ENTITY] and others came with deadly weapons to the scheduled caste colony having 18 houses, to retaliate. They trespassed into the house of accused nos. 8 and 9 and destroyed the articles and they harassed the aged ladies in the house of A9. There was loud cry and so many people who were going to the temple festival and other inhabitants came to the spot. In that scuffle, [ENTITY], PW2 and others who accompanied them sustained injuries. The police party came there and took into custody many innocent persons. PW2 and his brothers are influential people in that locality and after the said incident, a false case has been foisted against the appellants. The appellants had no enmity towards PW2 and the deceased [ENTITY]. The prosecution has not placed before Court the entire details about the incident.
27. Apart from medical and other evidences, the Court below convicted the appellant relying on the oral evidence of PW2 primarily. Of course, the testimony of PWs 1 and 3 were also taken into consideration to arrive at the present conclusion to a certain extent. Hence, it is necessary to look into the version of these witnesses to appreciate the correctness of the conclusions of the trial Court.
28. PW1 had only hearsay information about the incident that allegedly took place between PW3 and the appellants at the temple premises. According to him, on hearing about the said incident, he along with [ENTITY] and [ENTITY] came to the house of A8 and at the courtyard, they found 3 or 4 people. They threatened PW1 and others and [ENTITY] was assaulted by the assailants. It is his version that he escaped from the spot and at that time, he found the dead body of [ENTITY] from the vicinity of the house of A8. The dead body had injuries and there was heavy bleeding. But in cross-examination, he deposed that he had never gone to the house of A8 and do not know about the said house. He further stated that he has not seen the alleged attack on the deceased and PW2. According to him, he along with [ENTITY], [ENTITY] and [ENTITY] went to the police station at 10.00 p.m., on the same day and told whatever they knew about the incident. They left the police station by around 01.00 a.m. to their homes. The evidence of PW1 shows that he had no direct knowledge about the alleged incident. PW19, the investigating officer stated that he did not question the above-mentioned [ENTITY], [ENTITY] and [ENTITY], though he understood from FIS that they got injured in the incident. He didn't even enquire about it.
29. The star witness of the prosecution is PW2, who, according to the prosecution, is an injured witness. The deceased was his closest friend. According to him, he went to the house of A8 along with the deceased to enquire about the incident at the temple in which his elder brother PW3 was pushed by A1 and the sons of A8. Before reaching the house, they had a conversation with [ENTITY] on the eastern side of the house and at that time A1, A2 and A6 reached the spot and A6 exhorted others to attack them. According to him, A1 with MO1 sword inflicted cut injuries on his head and A2 and A6 hit him with bamboo sticks. At that time, A7, A8 and A5 had taken [ENTITY] to the house of A8 and when he (PW2) interfered, they again inflicted injuries on him using sword and sticks. Then he heard the cry of [ENTITY] pleading not to kill him. He saw the incident with the help of light available in the house. PW2 reached his house and PW3 had taken him to hospital. It is his version that he received fatal injuries and underwent treatment for 30 days in hospital. During cross-examination, he admitted that he had not seen the incident at temple premises. According to him, he wanted to settle the issue amicably and it was for that purpose they went to the colony. He admitted that he had not enquired about the truth of the incident to his brother PW3. He denied the suggestion that he sustained injuries during a scuffle. It is his deposition that all the accused are familiar to him. He identified A1 as the person who inflicted cut injuries to him using MO1 sword. He also identified A2 and A6 as persons who hit him with bamboo sticks. He further identified A7, A8 and A5 as the persons who had taken the deceased to the house of A8. He also deposed that accused had animosity towards his brother, but it can be seen that no such statement was given to the police.
30. PW3 is the brother of PW2. According to him, all the accused are known to him. He deposed that the appellants had enmity towards him. But it can be seen that he had no such case before police. He stated that he was attacked by A1, A2, A4, A5 and A6 and he was pushed by A1. The committee members intervened and parted them. He continued to watch the festival even after the said incident. After sometime, he left the place and went to his house at about 8.30 p.m and by that time, PW2 reached the house with bleeding and he took him to the hospital. On the way, at 9.00 p.m., he informed the police about the incident but the police asked him to take the injured to the hospital and did not register a crime at that point of time.
31. PW11 is the thondi clerk of Magistrate Court. She deposed that the thondi articles were sent for FSL examination. But no report is available before this Court.
32. PW19 deposed that he noticed circumstances showing the occurrence of scuffle in the two houses which were included in the scene mahazar. He also admitted that there was police party in the temple festival premises. It is his version that he had not taken the statement of PW2 nor he had seen his wound certificate. He also didn't attempt to have an enquiry with the Doctor who treated PW2. There is no evidence to prove the version of PW2 that he was hit by bamboo stick as no such wound is described in wound certificate. Only thing available before us to show that PW2 was treated in Medical College Hospital, Thiruvananthapuram is a so-called discharge summary Ext.P16, which bears no seal or sign. Doctor who treated him at Medical College was also not examined. Hence Ext.P16 is inadmissible in evidence.
33. It is also seen that the incriminating evidence of a witness were put to the appellants under [SECTION] examination in one sentence. This is an obvious lapse on the part of the Court in giving reasonable opportunity to the appellants to explain each and every circumstance in the evidence levelled against him by the prosecution.
34. It is also argued by the learned counsel for the appellants that the alleged recovery was fabricated. There is no trace of blood in them. According to them, weapons except MO1 were marked through the Doctor who conducted the post-mortem examination of the deceased. This identification of weapons cannot be accepted.
35. It can be seen that the alleged recovery of MO1 sword is not proper as the first accused was not in police custody at the time of the said discovery and hence it will not help the prosecution. While recovering MO1, accused was not present. Ext.P6 is the recovery mahazar for the dagger allegedly used by A2. But attestor to Ext.P6 even denied the signature and turned hostile to the prosecution. There is no case for the prosecution that A8 used chopper as a weapon. Eye-witness did not identify any other weapon other than MO1.
36. The very inception of the prosecution story is not free from cloud. The alleged assault on PW3 by the accused, which happened at the temple compound is the genesis for the subsequent developments. But the said incident is not proved to the satisfaction of the Court. PW2 deposed that he did not even attempt to check the truth of the alleged assault on his brother (PW3) with him, who was readily available. According to him, he acted upon the hearsay information from [ENTITY]. What actually triggered the entire incident is not proved by the prosecution. The reason the deceased and PW2 stated for their presence in the house of the appellants at that odd hours is not so convincing. PW19 recorded in the scene mahazar that there was evidence of scuffle in both the houses i.e., house of A8 and house of one [ENTITY].
37. In Ext.P7 wound certificate of PW2, prepared on 28/01/2002 at 9.30 p.m., it is seen that the injury on PW2 was due to assault by five to six known persons with sword and bamboo sticks. But, the place of occurrence and the time at which injury was inflicted is not mentioned. The prosecution story is further improbabilized by the fact that PW2 was admitted in the hospital at 9.30 p.m., on the date of incident and in Ext.P7 wound certificate, this eye-witness did not whisper at least one name of the assailants though he gave evidence before Court that the appellants were so familiar to him that he could approach the appellants for a 'peaceful settlement talk' at that odd hours. Ext.P10 is the body note of PW2. It was prepared by the police on 29/01/2002 at 10.00 a.m. But it is quite strange that no attempt was made by the investigating agency to get information about the incident from PW2 on that occasion. Even after seeing PW2, who was conscious and oriented at that time, the investigating agency had not questioned him to elicit vital information about the grave crime which happened on the previous day. This, of course, is a fatal flaw on the part of the prosecution.
38. As already mentioned, the FIS lodged by PW1 is only hearsay. There is no court charge regarding the attack on PW3 at the temple compound. PW16 and PW17 were key witnesses and they turned hostile to the prosecution. It can be seen that the information regarding the infliction of injuries on the deceased and his subsequent taking away to the hospital are, according to the prosecution witnesses, they understood from CW7 [ENTITY]. CW7 [ENTITY] was cited as a key witness but was not examined. Non-examination of CW7 [ENTITY] also creates doubt regarding the prosecution version about the incident. Also, [ENTITY], [ENTITY] and [ENTITY] were other key witnesses who could have given more credible version of the incident, but they were not even cited as witnesses. PW19, the Investigating Officer admitted that he made no effort to question [ENTITY], [ENTITY] etc who were mentioned by the witnesses as more acquainted with the facts and circumstances of the case.
39. It can be seen that in the Court charge, the overt acts allegedly committed inside the kitchen of A8 are attributed specifically to each accused. But the prosecution failed to prove them to the satisfaction of the judicial scrutiny. Deposition of PW2 would show that A1, A2 and A6 committed the overt acts against him and inflicted injuries to his body. But his version is not believable as to how the deceased got injured and died. There is a hint in the deposition of PW3 that he informed the police about the alleged incident at 9.00 p.m., on the same day. If PW2 witnessed the incident of death of his closest friend [ENTITY], normal human conduct would compel him to depose all the details to the law enforcing authorities. It is seen that not even a statement was given at that time. No FIR was registered. On next day also, even while preparing body note, PW2 had no case which he presents now. Ordinary human conduct and common sense approach compell us to conclude that PW2 might not have witnessed how [ENTITY] was murdered.
40. It can also be seen that [SECTION] of the [ACT] is a specific charge against all the appellants in the Court charge. But not much discussion is done on the aspect of common object as to see whether the appellants gathered together in front of the house of A8, proceeded towards the deceased etc,.
41. The consistent allegation of the defence is that the deceased and PW2 along with the members of his caste unleashed a planned attack and ransacked all the houses of the said colony and the prosecution has suppressed truth from the Court.
42. Of course, the scene mahazar shows that the alleged place of occurrence i.e., house of A8 was in a scattered condition and it is also mentioned that there was indication of violent scuffle. It can be seen from the scene mahazar that the nearby house of one [ENTITY] was also found disorderly. In the scene mahazar, there is no mention about any other house in the colony other than the said house of [ENTITY]. There is no explanation regarding any incident in [ENTITY]'s house. If the prosecution could show that other houses in the colony were intact, the defence version that there was mass attack in the colony by the deceased and his team, leading to massive destruction of property would have come under the shadow of doubt. The present scene mahazar Ext.P4 probablises the version of defence than the prosecution.
43. The case of the prosecution is that the appellants had taken the deceased to the kitchen of A8 and inflicted injuries on him. At the same time, there is no case for the prosecution that there was some previous enmity between the deceased and the appellants. In that circumstance, the version of the defence that the deceased was in his pursuit of attack in the house of A8 is logically more sound than the prosecution version that the deceased was taken by the appellants to the kitchen of A8 to be killed.
44. It is true that a young man is killed in the incident. But, nothing is brought out in evidence by the prosecution to prove that the deceased suffered injuries at the hands of the appellants. None of the witnesses deposed about the alleged killing of deceased by the appellants in A8's kitchen. As discussed earlier, the alleged recovery is also suspicious and not seem to be proper. In our view, the evidence in its totality probabilizes the defence version rather than the version put forward by the prosecution and hence we extent benefit of doubt to all the appellants regarding the murder of the deceased [ENTITY].
45. The prosecution could however prove how PW2 got injured in the incident. The evidence of PW2 would show that A1, A2 and A6 inflicted injuries upon him using sword and bamboo sticks respectively. The accused have also been found guilty u/[SECTION] of [ACT] The Court below placed reliance on the testimony of PW2 coupled with recovery of weapons at the instance of accused 1 and 2 and the medical evidence. It is observed that PW2 suffered four incised wounds. Injury No.1 is on the forearm, injury No.2 is on the shoulder and Injury Nos. 3 and 4 on the scalp. PW2 deposed that the said injuries were inflicted by accused 1, 2 and 6. The other accused have been implicated taking into account their involvement as members of unlawful assembly. We have already held that the genesis of the incident and the prosecution story cannot be believed as such. From the evidence on record, it is rather clear that the genesis of the incident is not in the manner spoken to by PW2. But, he had clearly deposed before Court that accused 1, 2 and 6 had inflicted injuries on him by using sword and bamboo sticks. His deposition would show that A1 had inflicted an injury with a sword in his hand and A2 and A6 had beaten him with bamboo sticks. The four incised injuries which he had sustained is from the sword which according to him is inflicted by A1. Though the prosecution had a case that PW2 had fractures, legal evidence is lacking to prove the said fact. That apart, it is in evidence of PW2 that on his suffering injuries, he ran away from the scene. He does not have a case that any of the accused followed him. Therefore, it appears that use of sword by A1 and sticks by A2 and A6 were as a preventive mechanism and not to commit the murder of PW2. In order to attract [SECTION] of [ACT], the essential ingredient required to prove is that death of PW2 was attempted or that the injuries were inflicted with the intention of causing death or such bodily injury as is likely to cause death or that the injury was sufficient in the ordinary course of nature to cause death. In the case on hand, it is rather clear that the intention of assault was not to do away with the injured. The assailants could have caused severe injuries on PW2, whereas the injuries caused to PW2 were not fatal. Of course, the injuries according to PW10 were serious injuries, but there is no evidence to indicate that those injuries were enough to cause death in the ordinary course of nature. In [PRECEDENT], the Apex Court held that while examining whether a case of commission of offence u/[SECTION] [ACT] is made out, the Court is required to see, whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without such ingredient being established, there can be no offence of attempt to murder. In the case on hand, apparently, the intention of the assailants i.e. A1, A2 and A6, was only to cause some injury and they had no intention to commit murder. Their intention was only to ward off PW2 from the scene. They did not endeavour to chase him and finish him off. Therefore, we are of the view that the prosecution has not established that the accused committed the offence u/[SECTION] of [ACT] But in so far as hurt has been caused to PW2 using dangerous weapons like MO1 and MO2, the accused 1, 2 and 6 would become liable to be punished for the offence u/[SECTION]/[SECTION] of [ACT]
46. In the result, the appeal is partly allowed. Conviction and sentence of the appellants under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION]/[SECTION] of the [ACT] are hereby set aside.
47. Accused nos. 1, 2 and 6 are found guilty under [SECTION] of the [ACT] and are sentenced to undergo rigorous imprisonment of two years each and a fine of `2,000/- (Rupees Two Thousand only) each and in default to undergo simple imprisonment for one month each. If accused 1, 2 and 6 have already suffered the sentence, they shall be released immediately. Accused Nos.4, 5, 7 and 8 shall also be released immediately, if their confinement is not required in any other case.
[ENTITY] JUDGE Sd/-
[ENTITY] True Copy JUDGE PS to Judge