Apren Joseph Alias Current Kunjukunju
& Ors Vs. The State of Kerala [1972] INSC 202 (1 September 1972)
DUA, I.D.
DUA, I.D.
SHELAT, J.M.
KHANNA, HANS RAJ
CITATION: 1973 AIR 1 1973 SCR (2) 16 1973 SCC
(3) 114
CITATOR INFO:
R 1974 SC 985 (2)
ACT:
Indian Penal Code-S. 302 read with S. 148 and
149-MurderEffect of belated F.I.R. when fatal.
HEADNOTE:
In Cr. A. No. 263 of 1971, accused Nos. 6 to
10 were acquitted by the trial Court but the High Court reversed the order of
acquittal and convicted them under S. 302/149 and 148 of I.P.C. In Cr. A. No.
300 of 1971, accused Nos. 1 to 5 were convicted under S. 302/148 I.P.C. by both
the Courts below.
The alleged occurrence giving rise to the
prosecution of the appellants took place on the night between December 13 and
14 at about 2 a.m. as a result of political animosity between two groups of
people-the Marxists and the agriculturists called the "Karshak
Sangham", in Puthupally village in Kottayam, Kerala. The eyewitnesses, for
fear of retaliation, did not report the crime to the police. Only on the next
day, a member of the local panchayat (P.W. 2), lodged the F.I.R. at 8 A.M. at
Kottayam East Police Station, 9 K.M. away from the place of occurrence.
Before this Court, the following points were
raised on behalf of the appellants :-(i) that the first information report is
highly belated and (ii) that the alleged eyewitnesses did not lodge the
complaint because they had in fact not witnessed the occurrence, and the
accused have been falsely implicated. Partly allowing the appeal,
HELD : (i) The First Information Report
relating to the commission of an offence is not a condition precedent to the
setting in motion of a criminal investigation. [23 C] R. V. Khwaja, I.L.R.
[1945] Lah. 1, referred to.
Nor does the statute provide that such
information report can only be made by on eye-witness. F.I.R. is not even
considered a substantive piece of evidence. It can only be used to corroborate
or contradict the informants evidence in court. But this information when
recorded is the basis of the case set up by the informant. It is very useful if
recorded before there is time and opportunity to embellish, or before the
informants' memory fades.
Undue or unreasonable delay lodging the
F.I.R., therefore, gives rise to suspicion which put the Court on guard to look
for the possible motive and the explanation for the delay and consider its
effect on the trustworthiness of the prosecution version. No duration of time
in the abstract can be fixed as reasonably for giving information of a crime to
the police, the question of reasonable time being a matter for determination by
the court in each case. [23 E] (ii) In the , present case, the eye-witnesses
were afraid to go to the police station during night time and their evidence
could not be shaken in cross-examination Keeping in view the local tense
atmosphere and the effect of the ghastly murder on the eye-witnesses, their
strong disinclination to go and lodge the report during the night after the
alleged 17 Occurrence, which seems quite normal, cannot. by itself arouse any
suspicion about the prosecution case. Further, the prosecution version as a
whole, has also been accepted by both the Courts below for reasons which cannot
be said to be unsound or implausible. Therefore, the delay in making the F.I.R.
has reasonably been explained by the prosecution witnesses.
(iii) It is not disputed and indeed both the
Courts below have found that on December 12, 1970, there was full moon, and ,is
such, there was moon-light at the time of the occurrence. The nearest street
light was about 130 ft. away towards the west and the nearest electric post on
the eastern side was about 90 ft. away from the place of occurrence. The light
of the lorry, which was at the place, also helped eye witnesses to clearly see
who the assailants were. The concurrent conclusion of the two Courts below
leaves no doubt that the witnesses present at the place of occurrence were in a
position to clearly see and identify the accused persons who \were not
strangers to them.
Therefore, conviction of accused Nos. 1 to 5
under S. 302 I.P.C. and S. 148 is upheld as also the Sentence under S.
148 I.P.C. Accused No. 6 has also been
rightly found guilty and his sentence is also confirmed.
(iv)As regards accused Nos. 7 to 10, they did
not form an unlawful assembly with the common object of killing the deceased.
Therefore, they are acquitted.
Khanna J. (dissenting) Held (i) From the
evidence on record it was difficult to subscribe to the view that the witnesses
refrained from reporting the matter to the police soon after the occurrence
because of fear. The witnesses had not got into the lorry while the accused
were on foot. It' would not have taken the lorry more than 15 or 20 minutes to
reach the police station. Further, it cannot be said that the witnesses were
not conscious of the necessity of informing the police about the occurrence.
(ii) Even if the witnesses were afraid to go
to the police station in the night, they could have gone to the station in the
morning because they did not remain confined in their homes; but were moving
about and go to different places on the following morning, there is no
satisfactory explanation as to why they did not go to the police station and
make a report. Their failure to report to the police the following day, creates
considerable doubts about the veracity of their evidence.
Thulia Kali v. State of Tamil Nadu Cr. A.
165/71 decided on February 25, 1972, referred to.
(iii) Further, the prosecution evidence is of
a partisan character.
(iv) The circumstances of the case tend to
show that the deceased was killed at late hour during the night between
December 13 and 14, 1970 when he was coming from a place where he had taken
toddy. The fact that no report was lodged with the police during the night and
no one went to the village or raised a hue and cry tends to show that no one
was present along with the deceased at that time.
Therefore; it is not possible to sustain the
conviction of the accused appellants on the evidence adduced in the case.
CRIMINAL APPELLANT JURISDICTION : CRIMINAL
Appeals Nos. 300 iiid 263 of 1971.
Appeals front the jud-ii-ient and order dated
August 24, 1971 of the Hi,-h Court in Criiiiin,,ii Appeals Nos. 6(1)to 168 ti)d
R. T. No. 1 5 of 1 97 1 and Ci-. A. No.25101/7 1.
3--L348Sup.C.I./73 1 8 A. S. R. Chari, N.
Sudhakaran and P. Kesava Pillai, for the appellants. (.in both the appeals).
V. A. Seivid Muhmud and M. R. Krishna Pillai,
for the respondent (in Cr. A. No. 263/71).
V. A. Seiyid Muhmad and A. G. Pudissery, for
respondent (in Cr. A. No. 300/71).
The Judgment of Shelat, Acting C.I. and Dua.
J. was delivered by Dua, J. Khanna, J. delivered a dissenting opinion.
DUA, J.-These are two appeals (Crl. A. no.
263 of 1971 and Crl. A. no. 300 of 1971) against a common judgment of the
Kerala High Court disposing of four appeals (3 separate appeals by accused nos.
1 to 5 convicted by the Additional Sessions Judge, Kottayam and one appeal by
the State against the acquittal of accused nos. 6 to 10 affirming the
conviction and entence of accused nos. 1 to 5 and reversing the order of
acquittal of accused nos. 6 to 10. convicting them under ss. 302/149, I.P.C. as
also tinder s. 148, I.P.C.
Accused nos. 1 to 5 have been sentenced to
death by both the trial court and the High Court under s. 302, I.P.C. and to
rigorous imprisonment for one year under s. '148 I.P.C.
whereas accused nos. 6 to 10 leave been
sentenced to imprisonment for life by the High Court under s. 302/149, I.P.C
and to rigorous imprisonment for one year under s. 148, I.P.C All the ten accused
persons have appealed to this Court and they are :
1. Apren Joseph alias Current Kunjukunju,
2. Kochukunju Vasu alias Thankappan,
3. Velu Damodaran,
4. Kesavan Kumaran alias Kochu,
5. Cherian Mathew alias Scaria, 6. Mundan
Poulose alias Baby.
7. Yohannan Pothan alias Koehn, 8.
Gangadharan Bhaskaran.
9. Kutty Chellappan alias Iruttu, 10. Kunchan
Sukumaran.
This is also the order in which these ten
persons appeared Is accused in the trial.
Criminal Appeal No. 263 of 1971 has been
presented to this Court under s. 2(a) of the Supreme Court (Enlargement of
Criminal Appeal Jurisdiction) Act, no. 28 of 1970 by accused nos. 6 to 10 whose
acquittal by the trial court was reversed by the 19 High Court on appeal by the
State Criminal Appeal No. 300 of 1971 under Art. 136 of the Constitution has
been presented by accused nos. 1 to 5.
The alleged occurrence giving rise to the
prosecution of the appellants took place at about 1 O'clock on the night
between December 13 and 14, 1970 at a place oil ManarkadTenganal road on the
southern side of Kalappurakal dispensary of Baby in Puthupally village in
Kottayam. The occurrence is stated to be the result of political animosity
between the members of the Marxist party and the members of an Organisation of
agriculturists called "Karshak Sangham" at Puthupally of which the
deceased Kuruvilla was the VicePresident.
On the evening of December 13, there was a
meeting of the Karshaka Sangham near the Puthupally junction and it was over at
about 10-30 p.m. After attending the meeting (Pappu) Joseph (P.W. 1) and Joseph
Cherian (P.W. 4) along with one Baby started for going home. Kuruvilla who met
them at the Puthupully junction requested them to accompany him to the house of
Yesu Kathanar (Christian priest) (P.W. 5) which was on the western side of
Puthupally junction. They readily agreed with the result they all went together
to the house of the priest along the Manarkad-Thenganal road. That road runs
east to west. While Puthupally junction is on the eastern side Eramallur junction
is on the Western side of this road. In order to reach the house of the priest
one has to go through Eeamallur junction. After Kuruvilla had a talk with P.W.
5 and when they were returning through the same route, at the place of
occurrence which is about 7 furlongs away from the house of P.W. 5 they met
Mathayikutty (Mathayi) (P.W. 3) driving a lorry and coming from the opposite
direction. On seeing them P.W. 3 stopped his lorry. One Achankunju was also in
the lorry with P.W. 3.
After stopping the lorry P.W. 3 told these
four persons that accused no. 2 and others were coming that way armed with
deadly weapons. P.W. 3 accordingly asked these four persons not to proceed
towards Puthupally junction, at the same time offering to take them in his
lorry. By the time this conversation was over the accused had already reached
the scene of occurrence. As soon as they arrived there accused no. 1 Apren
Joseph struck a blow with his chopper on Kuruvilla's head. Kuruvilla tried to
ward it off with his right hand but was not successful. Accused nos. 2 and 3
(Kochukunju Vasu and Velu Damodaran) who had choppers in their hands also gave
blows with their respective weapons on the back of Kuruvilla's head. This was
followed by the first accused giving two more blows at Kuruvilla's right
shoulder. The fourth accused Kesavan Kumaran stabbed Kuruvilla on his back with
Mallapuram knife. The fifth accused Cherian Mathew also 20 struck Kuruvilla
thrice with an iron rod on his chest.
Kuruvilla fell down and died after sometime. P.Ws
1 and 4 and Baby managed to get into the lorry when Kuruvilla was being beaten
though while doing so they implored the accused persons not to kill Kuruvilla.
However, P.W. 3 with the three men who got into the lorry at the place of
occurrence (P.Ws 1 and 4 and Baby) and Achankunju who was already in the lorry
drove away towards the west. The sixth accused Mundan Poulose hit him with a
wooden spear. As the lorry started moving, the accused pelted stones at it.
After dropping Achankunju at Eramaloor junction Mathayi (P.W. 3) took P.Ws 1
and 4 and Baby to the house of P.W. 5 and dropped them there. Thereafter P.W. 3
went to his own house. On account of fear he, however, did not go back towards
his home by the same road but took a different route.
Early on the morning of December 14, 1970
Markose Mani (P.W.2) who is a member of the local Panchayat came to know of
Kuruvilla's death. He went to the scene of the occurrence and saw the dead body
of the deceased. After getting whatever information he could gather there he
went to Kottayam East police station, 9 k.m. away, and lodged the first
information report (Ex. P-1) at about 8 a.m.
According to this report Markose Mani ,came
to know of Kuruvilla's death at about 5 O'clock early in the coming of December
14, 1970. Having gone to the spot he saw the dead body of the deceased. He
noticed that the little finger of the right hand of the deceased had been cut
off and the ring finger was hanging due to a cut. There were also cut injuries
on the back of the head of the deceased. After stating what he had seen the
informant proceeded to state :
"....... There was a meeting and
procession of farmers at the Puthupally junction yesterday.
The meeting was over at 10-30 in the night.
Deceased Kunju Kalappurakkal Baby, Padinjarekoothu
Pappa, Inchalkkad Kovhu and some others had gone from Puthupally to take back
the persons who had come from Eramallur for the procession. What I came to know
is that while they were returning after getting down the, persons who had for
the procession at Kochalum Moodu somebody killed him by inflicting cut injuries
at about 2 O'clock in the night at the place where the dead body lay. It is
heard that Achankala Vaslu, Valia Veettil Pothan, current Kunju Kunju,
Carpenter Damodaran,lnchakad Bhaskaran and some others belonging to the Marxist
party who are opponents of the farmers lad followed the persons who had gone to
Eraniallur after the meet at Puthupally held on yesterday and while Kunju etc.,
21 were returning from Kochalummoodu Somebody among them killed Kunju by
inflicting cut injuries at that place by attacking him. The dead body of Kunju
is lying there. I am the member of the IV Ward in Puthupally Panchayat.
I have come over here to report the matter.
The place of occurrence is 9 k.m. away towards
southeast from here......." The, Additional Sessions Judge trying the case
found accused nos. 1 to 5 guilty of an offence under s. 302, I.P.C. and
sentenced them to death. They were also found guilty of an offence under s,
148, I.P.C. and sentenced to rigorous imprisonment for one year each. Accused
nos. 6 to 10 were, however, acquitted of all the charges, reliance for the
order of acquittal having 'been placed on a decision of this Court in Masalti
etc. v. State of Uttar Pradesh(1).
The convicted persons and the State, both,
appealed to the High Court of Kerala. The High Court, in a fairly exhaustive
judgment, affirmed the convictions and sentences of accused nos. 1 to 5 and
dismissed their appeals. The reference in regard to their death sentence was
accepted.
The State appeal against the acquittal of
accused nos. 6 to 10 was allowed and their acquittal set aside. They were
sentenced to imprisonment for life under s. 302/149, I.P.C.
and to rigorous imprisonment for one year
under s. 148, I.P.C. The sixth accused was also sentenced to rigorous
imprisonment for one year under s. 324, I.P.C. for causing injury (an incised
wound) with a wooden spear to Joseph Cherian (P.W. 4).
Before us it was strongly urged by Shri Chari
on behalf of the appellants that the first information report was lodged after
'a very long delay and this in the circumstances of the case is fatal to the
prosecution. The submission most seriously pressed, and this appears to us to
be the basic submission which is sought to be supported by reference to other
factors, is that no one had actually witnessed the occurrence and that the
whole of the prosecution story has been fabricated with the object of falsely
implicating all the accused persons, who are enemies of the prosecution witnesses.
The story invented 'by the prosecution, it was argued, is the work of a highly
imaginative and fertile brain. The first information report, contended Shri
Chari in his usual forceful manner, was lodged after a long delay because a
plausible Tory had to be built up involving the accused so as to fit in with be
murder of the deceased at the place where his dead body was bound, and this,
emphasised the counsel, was the real cause for (1) [1964] 8 S.C.R. 133 22 not
lodging the report immediately after the alleged occurrence, be interval
between the alleged occurrence and the time when the prosecution story was
unfolded to the police was, according to the submission, utilised in inventing
the story to be placed before the police.
Now if this argument is accepted then
obviously the prosecution story has to be rejected and all the appellants
acquitted. We have, therefore, to seriously examine the challenge to the
prosecution story on the basis of the argument that the first information
report is highly belated and that the alleged eye witnesses did not lodge it
because they had in fact not witnessed the occurrence.
It may be pointed out that the factum of the
unnatural death of the deceased by violence, at the place where his dead body
was found is not disputed; nor has the time of his death been controverted. The
sole argument vehemently pressed upon us is, that no one saw the deceased bring
murdered and the accused have been falsely implicated, on account of enmity, by
the prosecution witnesses who have deposed to an imaginary story concocted by
them. 'there is of course no dispute that there was considerable ill-will
between the workers of the Marxist party in the local Puthupalli area and the
members of the Krishak Sangham.
Indeed, even according to the accused, there
had been a quarrel between these two groups about 20 days prior to the
occurrence in dispute. Some of the accused persons were involved in-other
criminal cases as well. But enmity as is well-known is a doubleedged weapon.
Whereas the accused may rely on it in support of their plea of false
implication, the prosecution on the other ,hand may legitimately argue that
this provided the necessary motive for the offence. It is that none of the
persons who claim to have been with the deceased since about 10-30 p.m. right
up to the time of occurrence informed the police or made any attempt to do so:
nor did K. Achan Kunju who was sitting in the
lorry next to Mathayi (P.W. 3). Mathayi, however, does state in his evidence
that he made an attempt to contact the police on telephone but the telephone
line being out of order he did not succeed. This, he did, from the house of
Attupurathu Punnachan where he stopped for this purpose on his way back home
from the house of Achan (P.W. 5). The contention forcefully pressed before us
is that P.W. 3 who was driving the lorry could have driven straight to the
police station and lodged the necessary information. Indeed ' the submission
proceeds like this. After having left the scene of the alleged murder P.W. 3
and his companions in the lorry could and should have gone straight to the
police station to lodge the first information report. In any even. P.W. 3, who,
on his own showing, tried to contact the police of telephone but failed to do
so as the telephone line was out on 23 order, Could and should, after this
unsuccessful attempt, have proceeded in his lorry to the police station to make
the report. This should have been considered to be more important than going to
his home. The fact that none of these persons considered it important enough or
even proper to go and lodge the first information report shows that no one
witnessed the murder and the whole story deposed by the prosecution witnesses
in court is a concoction which is the outcome of the fertile brain of P.Ws. 1, 3,
4 and 5 and does not represent the truth.
Now first information report is a report
relating to the commission. of an offence given to the police and recorded by
it under s. 154, Cr. P.C. As observed by the Privy Council in H.E. v. Khwaja(1)
the receipt and recording of information report by the police is not a
condition precedent to the setting in motion of a criminal investigation. Nor
does the statute provide that such information report can only be made by an
eye witness.
First information report under s. 154 is not
even considered a substantive piece of evidence. It can only be used to
corroborate or contradict the informant's evidence in court.
But this information when recorded is the
basis of the case set up by the informant. It is very useful if recorded before
there is time and opportunity to embellish or before the informant's memory
fades. Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably
gives rise to suspicion which puts the court on guard to look for the possible
motive and the explanation for the delay and consider its effect on the
trustworthiness or otherwise of the prosecution version. In our opinion, no
duration of time in the abstract can be fixed as reasonably for giving
information of a crime to the police, the question of reasonable time being a
matter for determination by the court in each case. Mere delay in lodging the
first information report with the police is, therefore, not necessarily, as a
matter of law, fatal to the prosecution.
The effect of delay in doing so in the light
of the plausibility of the explanation for the coming for such delay
accordingly must fall for consideration on all the facts and circumstances of a
given case.
In the case in hand the eye witnesses who had
seen the occurrence were afraid of going to the police station during night
time. The evidence to this effect seems to us to be trustworthy and has not at
all been shaken in cross examination. The. submission that no reasonable human
being in those circumstances could or should have felt frightened and,
therefore, the round of fear is a mere excuse is unacceptable. Indeed, there is,--hardly
any effective cross-examination on the. point (1) I.L.R. 1945 Lah. 1.
24 eliciting any illuminating information
indicative of suspicion with respect to their reluctance to go, during the
night or earl), in the morning, to the police station for making the report.
The effect on their mind of having witnesses such a gruesome murder at the
hands of a group of persons armed with lethal weapons and extremely inimical to
the eye witnesses, cannot be measured by any general yardstick. It necessarily
depends on the mental makeup of each individual person. Some may feel so
frightened that they would rue their decision which took them to the place of
occurrence and would take a Ion(, time to be their normal self, whereas some
others would not mind informing the police if they can conveniently do so
without going out or their way: still others may be highly public-spirited and
may, therefore. feel so, strongly that they would in their, enthusiasm go all
out. as though inspired by missionary seal, to contact the police and inform
them about the crime. It is difficult as also inadvisable to lay down any
uniform general rule in this respect. As each case has to be considered on its
own facts and circumstances let us see how the courts below have dealt with
this question. The trial court repelled the defence contention in these words
"It has been pointed out on behalf of the defence that none of the persons
who were along with the deceased informed the police.
P.W. 3 swears that he made an attempt to
contact the police over phone. But because of some line disorder he could not
inform the police. P.W. 2 is the Panchayat Member of Ward no. 4 of Puthupally
Panchayat. He got information in the early hours of morning and went to the
place of occurrence and saw the deceased. Thereafter he proceeded to the police
station and gave Ex. P1 statement.
The fact that none of the persons who was
present at the time of occurrence did not inform the police is not sufficient
to warrant a conclusion that the alleged eye witnesses were not present
there." In the High Court also this criticism was repeated but met with no
better fate. This is what Narayana Pillai J., said in this connection :
"........ One has to visualise the
situation in which P.Ws. 1 and 4 and Baby were at the time. There were many
active members and sympathisers of the Marxist Party at Puthupally. That party
had strong foothold 'there. The 10th accused was the Secretary of that party
there. The formation of the Karshaka Sangham which was opposed to the Marxist
Party was not to the liking of members of the Marxist 25 Party. Ten to twenty
days before the occurrence there was a quarrel between members of the Marxist
Party and the Karshaka Sanghams at Eramalloor about the putting up of bands on
paddy fields. There was also a quarrel between Kuruvilla and members of the
Marxist Party about agricultural labour at one Puthukari field which belongs to
several persons. The whole atmosphere must have been surcharged with fear after
the meeting of the Karshaka Sanghani on the 13th evening was over. There was no
residential house anywhere near the scene. The road there was desolate.
There was, therefore, nothing unusual if
P.Ws.
1. 3 and 4 and Baby left the place at the
time of the occurrence for safety instead of remaining there to render
assistance to Kuruvilla. Although P.W. 3 had before tile occurrence offered to
take P.Ws. 1 and 4 and Baby in his lorry, after the occurrence he thought that
to take them in his lorry was risky and that was why at the Eramalloor junction
he asked them to get out of the lorry. P.W.s. 1 and 4 and Baby were in a room
in the house of P.W. 5 for the rest of the night. At 7. 15 a.m. P.W. I went out
of that house." Moidu J., in a separate concurring note dealt with this
matter more specifically and observed :
"The only circumstance pointed out
during the argument of the learned counsel was that these witnesses could not
have seen the occurrence and that if they had seen they would have reported the
incident to the police without delay. The evidence was clear to show that these
witnesses would not have dared to get out of the place where they stayed in the
night after the gruesome murder was committed.
Neither P.W. nor P.W. 4 was prepared to get
out of the house of P.W. 5 at midnight. P.W.
3 had to go to his house by a different route
and though he made an attempt to inform the police he did not succeed. On the
next (lay P.W. 3 had to go to Erumeli with the lorry and lie returned home only
by about 5.30 p.m.
Within a short time thereafter he was
questioned by the police." From this it is obvious that keeping in view
the local tense atmosphere and the effect of this ghastly murder on the eye
witnesses, their strong disinclination to go and lodge the report during the
night after the alleged occurrence, which seems quite natural, cannot by itself
arouse any suspicion about the prosecution case. The bad condition of the road,
not permitting the lorry to go faster than six or ten miles per hour. as stated
by 26 P.W. 3, may also have consciously or unconsciously deterred them, to some
extent, from risking a visit to the police station during the night. In this
connection it would not be unimportant to bear in mind that P.W. 3 did not
possess a driving licence and he would naturally have hesitated in driving the
lorry to the police station. The concurrent conclusions of the two courts
,below on this point deserve serious consideration and cannot ,be lightly
brushed aside.
But that apart, it would also need a ,highly
creative and fertile brain to cook up an imaginary story embodying in it, the
peculiar features of the prosecution case, and that also within a short span of
time, after learning of the on the morning of December 14, 1970 and before
making the statement to the police at noon the same day as deposed by P.Ws. 1
and
14. In fact P.W. 2, a member of Panchayat,
who is no partisan and whose statement is corroborated by P.W. 14 had, already
informed the police (per Ex. P-1) much earlier at about 9 a.m. about what he
had seen at the place of occurrence and what he had heard involving five
accused persons. This adds to the vulnerability of the defence version.
Features which seem peculiar for their insertion in an imaginary story which
could hardly be circulated so early as to reach P.W. 2 to enable him to go to
the spot and then to go to lodge the F.I.R. at 9 a.m. are (i) bringing on the
scene (a) a lorry driven by its owner (P.W. 3) who does not belong to Karshak
Sanghani and who normally does not drive that lorry and does not even possess a
driving licence but has employed a whole time driver for the said lorry; (b)
the other eye witnesses along with the companion of P.W. 3, Kadiyathuruthil
Achan Kunju who has not appeared as a witness, (ii) to make P.W. 3 drive the
eye witnesses to the house of Achan for dropping them there. after having
dropped Kadiayathuruthil Achan Kunju on the road, and finally (iii) on his way
back home to make P.W. 3 attempt unsuccessfully to contact the police on
telephone from the house of Attupurathu Punnachan. What is more intriguing is
that as many as ten accused persons should have been involved but only five
assigned overt acts in the murder and one only an injury with a wooden spear to
P.W. 4, the rest (including accused no 10, the Secretary of the Marxist Party)
being only involved as members of the unlawful assembly. In the absence of a
plausible and rational explanation as to why only ,accused nos. 1 to 5 should
have been selected by the author of this concocted imaginary version for the
direct and active role in the murder, this feature also tends to discount the
credibility of the defence version. Now, assuming such a fictional story to
have been invented in retrospect, for this is the only alternative to the
witnesses having actually seen the commission of the murder. one has to ponder
to find a rational and plausible ans27 were to several puzzling questions. To
begin with it is not understood where was the necessity of introducing P.W. 3
instead of his driver. And then what was the reason for bringing
Kadiyathuruthil Achan Kunju in the picture when he was not to appear as a
witness. It is also not easy to understand, on the evidence and in the peculiar
circumstances of this case, as to how the prosecution witnesses deposing about
the occurrence, other than P.W. 3, managed to get together for consultation,
after learning of the murder and then how, where and when, did they contact
P.W. 3 with the object of prevailing upon him to take up the important role in
this drama and subscribe to this imaginary story. P.W. 3 was cross-examined at
great length but his credibility was not at all shaken. He said in a forthright
manner that he had ' reached his house on the fateful night at about 2 a.m. and
on the following morning at about 6 or 7 O'clock he went to Eramalloor from
where he returned at 5.30 p.m. and it was then that he learnt about Kunju's
death. He had, however, narrated the incident to his wife and brother on
reaching his house at 2 a.m. His statement was recorded by the police at about
7 p.m. on his return from Eramalloor.
His testimony appears to be straightforward
and impressive, and it has been believed by the courts below. No convincing
argu concocted story P.W. 3 could not reasonably have been assigned a role of such
vital importance. Indeed, his presence seems to be a strong factor which
renders the defence theory incredible and establishes the truth of the
prosecution version. But apart from the inherent weakness of the theory of the
story having been concocted to falsely implicate the accused persons, the
prosecution version as a whole has also been accepted by both the trial court
and the High Court for reasons which cannot be said to be unsound or
implausible. In fact, there appears to be a ring of intrinsic truth in this
version.
The trial court believed the version given by
P.W. 4 as also the testimony of, P. Ws. 1, 3 and 5. P.W. 5 was not an eye
witness to the occurrence but he fully corroborated that the deceased and P.Ws
1, 4 and Baby had gone to him by 11.30 p.m. and later at 1.30 a.m. The three
persons, other than the deceased, returned to him and informed him of the
occurrence. The trial court felt that P.W. 5 had no reason to falsely swear
against the accused. The story given by P.Ws, 1, 3 and 4 was considered by the
trial court to be consistent and reliable. The High Court in an exhaustive
judgment after discussing the criticism levelled against the prosecution
version observed "We have carefully gone through the entire evidence of
all the witnesses. On all material matters the 28 evidence of P.Ws 1, 3 and 4
is clear, consistent and convincing. All the facts spoken to by them strike as
nothing but truth.
They are quite natural witnesses. There is
absolutely nothing in their evidence to disbelieve them. They corroborate each
other.
Their evidence is also corroborated by the
circumstances brought out in the, case. The trial Judge believed them and we
consider rightly. It is proved beyond reasonable doubt that it was in the manner
spoken to by P.Ws 1, 3 and 4 that the occurrence took place." We have not
been persuaded to hold that these concurrent conclusions of the two courts are
in any way tainted by an infirmity justifying interference by us in the present
appeal so far as accused nos. 1 to 5 are concerned whose appeal has been
presented under Art. 136 of the Constitution. Even otherwise the conclusions
are unexceptionable on the material to which our attention is drawn and we
unhesitatingly agree with them. It is not disputed and indeed both the courts
below have found that on December 12, 1970, there was full moon and as such
there was moonlight at the time of the occurrence. The nearest street light is
also stated to be about 130 ft. towards the west and the nearest electric post
on the eastern side was about 90 ft. away from the place of occurrence. The
light of the lorry also, helped the eye witnesses to clearly see who the
assailants were. The concurrent conclusion of the two courts below leaves no
doubt that the witnesses present at the place of the occurrence were in a
position to clearly see and identify the accused persons who were :not
strangers to them.
The mere fact that the eye witnesses did not
gather up enough courage to go to the police station to lodge the first
information report or to 0 to the place of the occurrence during the night or
early in the following morning to give some aid to the deceased, who
undoubtedly was no blood-relation of any one of the witnesses, does not show
that they had not witnessed the occurrence and the whole story is imaginary and
made up only for falsely implicating the accused due to enmity. P.W. 3 having
decided to go home with the lorry, the other witnesses quite naturally did not
dare to move about during the night. The conviction of accused Nos. 1 to 5
under s. 302 I.P.C. and s. 148 is upheld as also the sentence under s. 148
I.P.C.
In so far as accused no. 6 is concerned the
High Court has believed the testimony of P.W. 4 which is corroborated by the
medical evidence. We see no reason to differ with the conclusion of the High
Court. He must, therefore, be held to have been rightly found guilty of
inflicting injury with the wooden 29 spear on P.W. 4. The sentence imposed on
him is also not open to any objection. This injury was apparently not inflicted
pursuant to the common object to kill the deceased but only when provoked by
P.W.4.
This takes us to the case of accused nos. 7
to 10 who have been convicted by the High Court of ail offence under s.
148, I.P.C. It is true that these accused
persons were accompanying the others but no overt act has been imputed to them.
The entire occurrence seems to have taken place within a short span of time and
it is difficult to hold that they formed an unlawful assembly with the common
object of killing the deceased. No doubt, in their case this Court has to go
into the entire evidence because their appeal had been presented under Act No.
28 of 1970. The evidence does not seem to show that they were aware of the
common object of accused nos. 1 to 5 to kill the deceased. They must,
therefore, be acquitted of the charge under ss. 308/ 149.
Evidence is also wanting on the record to
show that these accused persons were parties to any common object of committing
any unlawful act which accused nos. 1 to 5 had in view. We have, therefore, no
hesitation in acquitting them of the charge under s. 148, I.P.C. as well. On
the same reasoning accused no. 6 is also acquitted of charges under ss. 302/149
and s. 148, Indian Penal Code.
We should like to point out that in this case
the learned counsel for the appellants was permitted to refer to any evidence
he considered proper for considering the credibility of the witnesses with
regard to the whole of the prosecution story because with respect to accused
nos. 6 to 10 the appeal was not before us under Art. 133 of the Constitution
but under S. 2(a) of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 28 of 1970. It was, therefore, only proper that the evidence
be appraised by this Court with respect to all the accused persons, in order to
avoid conflict in the conclusions in this respect.
Coming to the question of sentence imposed on
accused nos.
1 to 5, after the amendment of S. 367(5),
Cr.P.C. in 1955 it is a matter of judicial discretion for the court to decide
on a consideration of all the relevant circumstances of the case, which of the
two permissible sentences under s. 302, I.P.C. should be imposed. It is no
longer necessary to give reasons for the lesser penalty. The determination of sentence
in a given case depends on a variety of considerations, the more important
being, the nature of the crime, the manner of its commission. the motive which
impelled it and the character and antecedents of the accused. So far as the
accused before us are concerned it 3 0 appears that in their excessive zeal for
their party they felt unduly provoked by the success of the meeting organised
by the Karshak Sangham and being misguided by political intolerance and cult of
violence they committed the offences in question soon after the said meeting.
We, therefore, feel that the interest of justice would be fully served in this
case if we substitute the sentence of imprisonment for life for the sentence of
death. We, however. must not be understood to lay down any general rule with
regard to Science applicable to all cases of political murders.
Murder inspired by differences of political
opinions as ideologies, it may be pointed out, is wholly inconsistent with our
system of government ",here the Constitution has guaranteed freedom of
thought and expression to all citizens and parties, so long as they act within
the Constitution and the law. We have reduced the sentence of death to that 'of
life imprisonment on accused nos. 1 to 5 in this, case because of the peculiar
circumstances already mentioned.
The sentence under s. 148 I.P.C. would be
concerned with the sentence under s. 302 I.P.C.
The appeals are, accordingly disposed of as
stated in this judgment.
KHANNA, J. Ten accused Apren Joseph (36),
Kochukunju Vasu (32) Velu Demodaran (32), Kesavan Kumaran (24), Cherian Mathew
(34), Mudan Poulose (30), Yohanna Pothen (45), Gangadharan Bhaskaran (24),
Kutty Chellappan (42) and Kunchan Sukumaran (40) were tried in the court of
learned Additional Sessions Judge Kottayam for offences under section 302,
section 302 read with section 149, section 324 read with section 149, 148 and
143 Indian Penal Code in connection with the murder of Kuruvilla alias Kunju
(50) and for causing hurt to PW 4 Joseph Cherian (31). The trial court
convicted accused 1 to 5 for offences under section 148 and 302 Indian Penal
Code and sentenced them to undergo rigorous imprisonment for a period of one
year on the former count and to death on the latter count. Accused 6 to 10 were
acquitted. On appeal and reference, the Kerala High Court confirmed the
conviction and sentence of accused 1 to
5. The High Court further on State appeal
convicted accused 6 to 10 under section 148 and section 302 read with section
149 Indian Penal Code and sentenced them to undergo rigorous imprisonment for a
period of one year on the former count and imprisonment for life on the latter
count. The sixth accused was also convicted under section 324 Indian Penal Code
and was sentenced to undergo rigorous imprisonment for a period of one year.
The sentences awarded to each of accused 6 to 10 were ordered to run
concurrently. Accused 6 to 10 have filed 'criminal appeal No. 263 of 1971 under
Act No. 28 of 1970 31 while accused 1 to 5 have filed criminal appeal No. 300
of 1971 by special leave. This judgment would dispose of both the appeals.
The ten accused belong to the Communist Party
(Marxist)., Accused No. 10 was the Secretary of that party in the area., Kunju
deceased was the Vice President of an organization of agriculturists called
'Karshaka Sangham' at Puthuppally.
Yesu Kathanar (PW 5), who is a priest, was
the President of the, Karshaka Sanghani in the adjoining village Eramalloor.
There was some dispute between Kunju deceased
and the accused relating to a ridge and regarding work in the paddy fields.
About, 20 days before the occurrence, there was aquarrel between persons
belonging to Karshaka Sangham and those belonging to the Marxist party.
According to the prosecution case, there was
a meeting of the Karshaka Sangham on the evening of December 13, 1970 at,
Puthuppally junction. Earlier on that day the organizers of the,meeting
alsoarranged a procession. The meeting was over at, about 10 or10.30 p.m. Pappu
(PW 1), who was present in the meeting, then wanted to go to his house along
with one. Achankunju and Kai ' appurakkal Baby.
Kunju deceased then called Pappu and his
companions and requested them to accompany him to the house of Yesu Kathanar
(PW 5). Pappu and. his two companions agreed and accompanied by them, Kunju. deceased
went to the house of Yesu Kathanar. They arrived at, that house at about 11.30
p.m. Kunju had some talk with Yesu and thereafter Kunju and his three
companions left the house of Yes at 12 mid-night.
It was a moonlit night. There was also, light
from the electric poles. When Kunju and his three companions were going on the
road in front of a dispensary, they saw the lights of a lorry coming from the
eastern side. Kunju got on one side of the road, while his three companions got
on the, other side of the road. The lorry was driven by Mathayi (PW 3), who
then told Kunju and his companions that Vasu, accused No. 2, and the other
accused were coming that way armed with weapons and that Kunju and others
should not go in that direction but should get into the lorry.
Immediately thereafter accused No. 1 arrived
there and aimed a blow with a chopper at Kunju. Kunju warded off the blow with
Ws right hand. The, other accused also in the meanwhile arrived there. Accused
2 and 3 then gave blows on the back of the head of Kunju with choppers. Accused
No.
inflicted two injuries on the right shoulder
of Kunju.
Accused 4 then stabbed Kunju deceased in his
back with a Malapuram. knife. At the same time, accused 5 gave three blows with
an iron rod in the chest of the deceased. Kunju deceased fell down on receipt
of these injuries. The corn-.
32 panions of Kunju then got into the back of
the lorry and shouted to the accused not to kill Kunju. Accused No. 6, who had
a wooden spear, then gave a blow with it on the right hand of Achan-Kunju. The
lorry then started. While the lorry was ,moving away, some stones were thrown
on the lorry by the accused. The lorry thereafter stopped at Eramalloor second
junction where Achan-Kunju got down from the lorry. Mathayi asked Pappu and his
companions also to get down from the lorry, but they declined to do so and told
Mathayi to drop them at the house of Yesu PW. Time then was past 10 O'clock.
Pappu. Baby and Joseph Cherian got down near Yesu's house and told Yesu PW that
accused Nos. 1, 2, 10 and others had killed Kunju. Pappu, Baby and Joseph
thereafter slept at the house of Yesu. ,On the following morning they left the
house of Yesu.
The case of the prosecution further is that
on the morning ,of December 14, 1970 Markose (PW 2) whose house is situated
near Puthupally market, was told about the present occurrence by his children.
Markose is a member of the Panchayat. After taking coffee Markose went at 6.30
a.m.
to, the spot where the dead body of Kunju was
lying.
Markose thereafter went to the Kottayam
police station at a distance of 9 kilometers from the place of occurrence and
lodged there report Ex. P1 at 8. a.m. According to that report, Kunju
deceased-had been killed by body at 2 a.m.
Markose added that he had heard that accused
Nos. 1, 2, 3, 7 and 8 had followed the persons who had gone to Eramalloor after
the meeting at Puthuppally. Somebody amongst them was stated to have killed
Kunju.
Circle Inspector John (PW 15) then went to
the spot of occurrence and arrived there at It a.m. The Inspector found the
dead body lying there and prepared the inquest report.
The dead body was thereafter sent to the
mortuary where post mortem examination was performed by Dr. George Paul (PW 7)
at 3.30 p.m. on that day. Joseph Cherian also earlier on that day got himself
examined from Dr. Nair (PW 6) at 10 a.m. The doctor found an incised wound
1"X1/4" x 1/4" on the posterior aspect of right forearm of
Joseph. There was also an abrasion on the lip and a contusion on the right side
of the face of Joseph P.W. Accused 7, 8 and 10 were arrested on December 18,
1970. Accused 1 to 6 surrendered in the court of magistrate on December 21.
1970, while accused No. 9 surrendered in that court on December 23, 1970. No
weapon alleged to have been used by the accused could be recovered by the
police.
At the trial the prosecution examined Pappu
(PW 1 Mathayi (PW 3) and Joseph (PW 4) as eye witnesses of the occurrence and
they supported the prosecution case. Achan Kunju and Baby were given up by the
Public Prosecutor.
33 The plea of all the accused in the course
of their statements under section 342 Code of Criminal Procedure was denial
simpliciter. According to them, they had been falsely involved in this case
because they belonged to the Communist Party (Marxist). No evidence was
produced indefence.
Learned Additional Sessions Judge held that
accused 1 to 5 had formed an unlawful assembly after arming themselves with
deadly weapons with the common object of committing, murder of Kunju deceased.
It was further held that those five accused had caused injuries to Kunju
deceased with their respective weapons. They were accordingly convicted under
section 148 and 302 Indian Penal Code. Accused 6 to 10 were acquitted as, in
the opinion of the learned judge, they were not shown to be members of an
unlawful assembly. As regards injury on the person of Joseph (PW 4), the trial
judge observed that it could not be said that the above injury was inflicted by
accused No. 6 as alleged by the prosecution.
On appeal the High Court agreed with the
conclusion of the trial court so far as the guilt of the accused 1 to 5 was
concerned. As regards accused 6 to 10, it was observed that it was not
necessary to show that they had committed some illegal overt act or had been
guilty of some illegal omission. In the opinion of the High Court,-the
circumstances of the case showed that all the accused were members of an
unlawful assembly and that the common object of that assembly was to do away
with Kunju deceased, who had earlier on that day organized the meeting. In the
result, accused 6 to 10 were also convicted as mentioned earlier.
It cannot be disputed that Kunju deceased
died as a result of the various injuries which were inflicted upon him.
According to Dr. George Paul, who performed
post mortem examination on the body of the deceased, there were 21 injuries on
the body of the deceased, out of which 7 were incised wounds, one was a stab
wound and two were cut wounds. Besides that, there were four contused abrasions
and 7 abrasions. The, stab wound was on the left side of the back of the chest,
while the cut wounds were on the little finger of the right hand. One of the
incised wounds was on the back of the right hand, while another incised wound
was on the left hand. The stomach contained 280 mls of greyish white fluid with
a smell similar to that of today.
The following incised wounds were sufficient,
in the opinion, of the doctor. to cause death in the ordinary course of nature
:
"(1) Incised wound 14.5 cm. long, I am
gaping obliquely placed on the right side of the back of the head, the lower
and inner end being on the midline at 4-L348Sup.C.I./73 34 the level of the top
of the ears. The wound had clear cut margins and the ends were sharp.
The underlying skull bone was cut through for
12 cm and fissured fractures were found running outwards for 2 and 5 cm
respectively from the upper and middle portions of the outer edge of the cut on
the skull. The coverings of the brain were torn and the brain contused under
the fractures.
(2)Incised wound 13.5 cm long 1.5 cm gaping
horizontally placed at the back of the head at level of the lower end of injury
No. (1) right end being at a higher level and both ends being 7.5 cm behind the
cars. Wound had clean cut margins and ends were sharp and the lower edge showed
shelving. Ile underlying skull was cut through for 10.5 cm and the left
occipital borne of the brain showed a cut 2 cm deep.
(3)Incised wound 5 x 1.5 cm bone deep
obliquely placed at the back of the head 2 cm below injury No.(2).Margins were
clearly cut and the upper edge shown shelving.
(4) Incised wound 7.5 cm long 1.5 cm gaping
vertically placed on the back of the right shoulder, the upper end being at the
level of the top of the, shoulder with clean cut margins and sharp ends, the
underlying spine of the shoulder blade was cut through exposing the shoulder
joint cavity.
(5)Incised wound 10.5 cm x 3 cm muscle deep
vertically placed on the right side of the back and top of the shoulder, 8 cm
inner to injury No. (4). The wound had clean cut margins the upper end was
sharp and lower end showed tailing for 2.5 cm." According to the
prosecution case, the injuries found on the body of Kunju deceased were caused
by accused 1 to 5. In support of its case, the prosecution has examined Pappu
(PW 1), Mathayi (PW 3) and Joseph (PW 4) as eye witnesses of the occurrence.
The above mentioned three witnesses, as stated earlier, supported the
prosecution case and their evidence was accepted by the trial court and the
High Court.
Mr. Chari on behalf of the appellants has assailed
the ocular evidence adduced by the prosecution and has contended that it
suffers from serious infirmities. As against that, Dr. Mahmood on behalf of the
State has canvassed for the correctness of the view taken by the High Court.
35 This Court normally does not interfere
with the appraisement of evidence of the trial court and the High Court, but
that fact would not prevent this Court from interfering if it is found on
scrutiny of the evidence that it suffers from glaring infirmities. As many as five
persons have been sentenced to death in this case and five others have been
sentenced to undergo imprisonment for life. It is essential, in my opinion,
that the evidence should be clear and cogent, so as to bring the charge home to
the accused beyond all reasonable doubt.
According to the prosecution case, Pappu (PW
1) and Joseph (PW 4) were going with Kunju deceased from the house of Yesu PW
at about I am when Kunju was attacked by the party of the accused. Mathayi (PW
3) claims to have witnessed the occurrence because, according to him, he
arrived at the spot shortly before the occurrence in his lorry after paying a
visit to a contractor. It is also in the evidence of the three witnesses that
soon after the accused had caused injuries to Kunju and the latter had fallen
down, Pappu and Mathayi PW s along with Baby, who too was with them, got into
Mathews' lorry which was then driven away by Mathayi.
The conduct of these witnesses if they had,
in fact, witnessed the occurrence after that was most unnatural for none, of
them made any serious attempt to inform the police about the occurrence. It is
in the evidence of the above mentioned witnesses that at first Achan-Kunju was
dropped from the lorry at the next junction at a distance of about one furlong
from the scene of occurrence. Thereafter the lorry was taken by Mathayi at the
request of Pappu and others to the house of Yesu PW and Pappu PW, Joseph PW and
Baby were dropped there in front of that house. Mathayi thereafter took the
lorry to his own house. Pappu, Joseph and Baby after informing Yesu about the
occurrence are stated to have slept at Yesu's house, while Mathayi remained at
his own house. There is nocogent explanation as to why the above mentioned
witnesses did not go at that time in the lorry to the police station and lodge
a report about the occurrence. If, in fact, a murderous assault had been made
on Kunju deceased in their presence, this would have been the normal reaction
of the eye witnesses. No attempt was made in the judgment of Narayana Pillai
J., who wrote the main judgment of the High Court, to find any explanation for
the above conduct of the eye witnesses. Moidu J., who added a small note,
mentioned that the above was indeed the principal contention which had been
advanced on behalf of the accused.In the opinion of the learned Judge, the
witnesses could not have dared to go out of the place where they were staying
for the night after the gruesome murder. I find it difficult to subscribe to
the view that the witnesses reframed from reporting the matter to the police
soon after the occurrence because of fear. The witnesses 36 had got into the
lorry, while the accused were on foot. The police station was at a distance of
only nine kilometers from the place of occurrence. It would not have taken the
lorry more than 15 or 20 minutes to reach the police station. There could be no
apprehension in the minds of the witnesses that they would be overtaken and
assaulted by the accused because the accused were on foot while the witnesses
had the advantage of being in a lorry.
It also cannot be said that the witnesses
were not conscious of the necessity of informing the police about the
occurrence. According to Mathayi (PW 3), he went to the house of one
Attupurathu Punnachan before going to his house and tried to send telephonic
intimation to the police. The witness added that he could not contact the
police because the telephone line was out of order.
Another unnatural feature of the conduct of
Pappu, Mathayi and Joseph PWs is that they made no attempt to see as to what
was the condition of Kunju deceased after the assault and whether the deceased
needed some The witnesses were apparently not aware at the time they left the
scene of occurrence that Kunju had died because according to their evidence they
shouted at that time to the accused not to kill Kunju. Had Kunju died in the
presence of the witnesses, there would have been no occasion for the witnesses
to shout to the accused at the time they left not to kilt the deceased. Indeed,
according to Mathayi (PW 3), he came to know of the death of Kunju only on the'
following day at 5.30 p.m. It may also be observed in this context that the
evidence of Dr. Paul, who performed post mortem examination on the body of the
deceased, shows that the deceased might have survived for some time after the
assault. It also cannot be said that the witnesses did not go out of fear after
the occurrence to the place where the deceased was lying because in the normal
course of events the assailants do not remain at the spot of occurrence after
the assault.
Even if it may be assumed that Pappu, Mathayi
and Joseph PWs were afraid to go to the police station in the darkness of the
night, there appears to be no justification cogent reason for their not
reporting the matter to the police early oil the following morning-. It is in
evidence that on the following morning the about. According to Pappu (PW 1) he
went to Puthupally in a bus on the following morning and passed through the
spot where the dead body of Kunju was lying. The witness did not step down from
the bus despite the fact that he saw the dead body lying there. Mathavi (PW 3)
admits that he went on the 37 following morning at 6 a.m. to Erumeli and
returned from that place at 5.30 p.m. Joseph PW states that he went to Vakathanam
Hospital by bus at 7.15 a.m. on the following morning. If the three eye
witnesses could move about and go to different places on the following morning,
there is no satisfactory explanation as to why they did not go to the police
station and make a report about the occurrence if, in fact, Kunju deceased had
been subjected to a murderous assault in their presence. The failure of Pappu,
Mathayi and Joseph PWs to report the matter to the police creates considerable
doubt about the veracity of the evidence of these witnesses that they had seen
the accused causing injuries to the deceased. This Court in the case of Thulia
Kali v. State of Tamil Nadu (Criminal Appeal No. 165 of 1971 decided on
February 25, 1972) stressed the importance of making prompt report to the
police regarding the commission of cognizable offence. It was observed :
"First information report in a criminal
case is an extremely vital and valuable piece of evidence for the purpose of
corroborating, the oral evidence adduced at the trial. The importance of 'the
above report can hardly be overestimated from the standpoint of the accused.
The object of insisting upon prompt lodging of the report to the police in
respect of commission of an offence is to obtain early information regarding
the circumstances in which the crime was committed, the names of the actual
culprits and the part played by them as well as the names of eye witnesses
present at the scene, of occurrence. Delay in lodging the first information
report quite often results in embellishment which is a creature of
afterthought. On account of delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of the introduction of coloured
version exaggerated account or concocted story as a result of deliberation and
consultation. It is, therefore, essential that the delay in lodging of the
first information report should be satisfactorily explained." Apart from
the above infirmity in the evidence of three eye witnesses, I find that the
prosecution evidence is of a partisan character and not such on which implicit
reliance can be placed. Pappu (PW 1) admits that there was a criminal case
between his cousin and the fifth accused five or six months before the present
occurrence. Pappu was asked whether be was a member of the Karshaka Sangham. He
denied this fact though he admitted that he had paid money to Kunju for the
meeting of Karshaka Sangham which had been earlier held on the day of
occurrence. The evidence of Joseph PW, however, shows that 38 Pappu is a member
of Karshaka Sangham. Joseph PW admits that there were two cases against him for
good conduct.
Joseph and two others were also sentenced to
pay fine in connection with an assault on a tapper. There was also some
property dispute in which Joseph and Kunju were arraigned as accused but they
were acquitted. Joseph is a member of Karshaka Sangham and was earlier also
cited as a witness in a case against the accused.
The prosecution has tried to seek
corroboration of the evidence of eye witnesses from the testimony of Yesu ( PW
5), who has deposed that on the night of occurrence at first Kunju deceased
came to his house accompanied by Pappu, Joseph and Baby, and that subsequently
Pappu, Joseph and Baby came to the house and informed him of the occurrence.
Yesu, as already stated earlier, is the
President of Karshaka Sangham in Eramalloor. It is admitted by Yesu that he was
accused in a case concerning the church. He was also accused in another
criminal case. One other case had been filed against him. Shortly before his
evidence in court he was accused in a case filed in the court of District
Magistrate. Yesu was also a prosecution witness in a case in the Court of
Sub-Divisional Magistrate Kottayam in which certain remarks were made against
Yesu. Yesu thereafter filed a petition in the High Court for expunging those remarks.
Yesu was asked whether a finding had been given in a civil case that he had
forged a document. Yesu admitted that there had been such a case, but according
to him, it related to the correction of a document. It further in the evidence
of Yesu that the police had sent up for trial Yesu's son and four others for
causing injuries to accused No. 10. In view of the above, I find it difficult
to place much reliance upon his testimony.
Reference has also been made by Dr. Mahmood
to the fact that an incised wound was found on the person of Joseph PW by Dr. Nair
when he examined Joseph on the morning of December 14, 1970. It is urged that
the aforesaid injury was caused to Joseph by accused No. 6 with a wooden spear.
The presence of the said injury, according to the learned counsel, lends
assurance to the testimony of Joseph that he was present at the scene of
occurrence. In this respect I find that according to Dr. Paul, who is Assistant
Professor of Forensic Medicine in Medical College, Trivandrum, the incised
wound could not be caused with a wooden spear and that such a spear would cause
only a lacerated injury. Dr. PauL's testimony thus creates some doubt regarding
the reliability of the prosecution evidence that Joseph had received injury
with a wooden spear at the hand of accused No. 6. In any case the aforesaid
injury could have been caused in a variety of circumstances and would not
necessarily show that Joseph was present at the scene of occurrence.
39 The circumstances of the case tend to show
that Kunju deceased was killed at a late hour during the night between December
13 and December 14, 1970 when he was coming from a place where he had taken
toddy. The fact that no report was lodged with the police during the night and
no one went to the, village abadi and raised hue and cry tends to show that no
one was present along with the deceased at that time.
His dead body, it seems, was discovered in
the morning and thereafter a report was lodged by Markose who admittedly was
not a witness of the occurrence. Markose in the report mentioned the names of
only accused 1, 2, 3, 7 and 8 and, according to him, he had heard that someone
out of them had killed Kunju deceased. In my opinion, it is not possible to
sustain the conviction of the accused appellants on the evidence adduced in the
case.
I, therefore, accept the appeal, set aside
the conviction and acquit the accused.
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