K. Ashokan
& Five Ors Vs. State of Kerala [1998]
INSC 116 (19 February
1998)
M.K.
Mukherjee, Syed Shah Mohammed Quardi. M.K. Mukherjee. J.
ACT:
HEAD NOTE:
17
accused persons, including the six appellants before us, (who were arraigned as
A1 to A4, A10 and A11 respectively in the trial Court and will hereinafter be
so referred to), were tried by the Court of Session, Kozhikode Division for
offences punishable under Sections 143, 147, 148, 341, 449, 452, 307, 302/149
I.P.C. and under Sections 3 and 5 of the Explosive Substances Act. While
convicting and sentencing all the appellants under Sections 143, 147, 449, 452
and 302/149 I.P.C. and A3 under Section 3 of the Explosive Substances Act also,
the trial Court acquitted the others. Assailing their convictions and sentences
the appellants preferred an appeal which was disposed of by the High Court by
setting aside the conviction of A3 under Section 3 of the Explosive Substances
Act and affirming the common convictions recorded against the six appellants.
The above judgment of the High Court is under challenge before us in this
appeal.
According
to the prosecution case, the appellants owe allegiance to the Communist Party
of India (Marxist) and the complainant party of Muslim League. There was
political rivalry between the two parties which resulted in occasional clashes.
A few days before the incident (with which we are concerned in this appeal) one
Pakran, who belonged to Muslim League, sustained a gun-shot injury for which he
was admitted in the Medical College Hospital, Kozhikode. On October
23, 1988, C.P. Abdulla
(the deceased), Moidu (P.W.1) Kannan (P.W.2) and Kunhabdulla Haji (P.W.3) went
to see him in the hospital. After visiting him, they first went to Vadakara by
a bus and from there boarded another bus to go to Kakkad. On the way, when the
bus reached Chelakkad they found a crowd there. Sensing some trouble the bus
driver refused to proceed further. Finding no other alternative they alighted
there and started walking. After covering some distance they found Pariyarathu Chandran
(A-11) and Pandiampurathu Chandran (A-2) standing on the road. A little later
when they were nearing the village Naripatta they heard a sound of explosion.
Apprehending trouble they ran to the nearby house of Kunhikannan (P.W.5) and
tool shelter.
They
then saw a mob armed with various weapons, coming towards his house. In the
meantime P.W.5 had bolted the front door of the house from inside. The mob
broke open the door and, after entering, caught hold of Abdulla and dragged him
to the verandah. To save their own lives P.W.2 ran away and took shelter in his
own house in that village, and P.W.1 and 3 went to the top of the house of
P.W.5. P.W.1 then climbed on a tree and perched himself there. When P.W.3 tried
to escape he was caught hold of by some miscreants.
He,
however, extricated himself and ran to the house of one Pokkar of that village.
After about 15 minutes when the mob left he came to the courtyard of Kunhikaran
and saw Abdulla lying near the gate of his house in a pool of blood with
multiple injuries on his person. While P.W.1 was inside the house of Kunhikaran
police reached there. They took P.W.1 to Kuttiyadi Police Station where his
statement was recorded and case was registered. The Circle Inspector of Police,
Kuttiyadi took up investigation of the case and came to the scene of
occurrence. He had inquest upon the dead body of Abdulla and sent it for
post-mortem examination. On completion of the investigation the police
submitted charge- sheet.
The
appellants pleaded not guilty to the charges levelled against them and their defence
was that they were falsely implicated due to political rivalry. It was their
further case that the investigation was not properly done, in that, the
Investigating Officer falsely roped in the members of their party.
To
give an ocular version of the incident the prosecution relied, principally,
upon the testimonies of P.Ws. 1,2,3 and Kunhi Koya (P.W.6). In convicting the
appellants the trial Court found that their evidence was trustworthy and it was
fully corroborated by the medical and other evidence. The High Court concurred
with all the findings of the trial Court, except that it found that there was
no evidence to prove that it was A3 who hurled the bomb.
After
having gone through the entire evidence on record we are of the opinion that
the learned Courts below were fully justified in arriving at the conclusion
that the incident took place in the manner alleged by the prosecution. We are,
however, unable to share the view of the learned Courts below that the
prosecution succeeded in conclusively proving that the appellants were amongst
the miscreants having regard to the fact that in the FIR the names of the
appellants do not find place as the miscreants.
Indeed,
no one has been named as miscreants therein. From the judgment of the trial
Court we find that it negatived the contention of the accused persons raised on
this aspect of the matter with the following observation:- "It is a fact
that the names of the accused and their individual overt act has not been
specifically stated in the F.I. Statement. Top this aspect in the F.I.
Statement, I may quote what His Lordship Justice Mr. Chettur Sankaran Nair
stated in the judgment report in 1993 (1) KLT Page 14 at Page 18 in Para 11:-
"First Information Report is not a catalogue not does one expect a just
informant, disoriented in mind and in distress to give such graphic
details." The circumstance from which P.W.1 was brought to the Police
Station in this case and his own explanation that he was under perplexity and
fear has to be considered in appreciating Ext. P1 (F.I. Statement)." The
above reasoning of the trial Court cannot be accepted: firstly, because
disclosure of the names or identities of the offenders, if known, (as in the
instant case) by a person who figures as an eye witness is one of the most
material facts and such a fact cannot be equated with narration of graphic
details and secondly, because, the plea of perplexity and fear raised by P.W.1
is not untenable. The F.I.R. was lodged by P.W.1 after about l3 hours of the
incident at the police station and therein he had given all the details of the
incident, except naming the miscreants. Incidentally we may mention that the
High Court has not at all adverted to this aspect. There is another significant
fact appearing on the record which leads us to presume that P.W.1 purposely -
(and not due to fear or perplexity) - did not disclose the name of the
miscreants, so that, later on, after discussion and deliberation with their
party members the names could be given. It appears that two days after the
incident the Investigating Officer (P.W.14) submitted a report (Ext. P-14)
before the local Judicial Magistrate stating that during investigation names of
some of the miscreants (as mentioned therein) could be gathered. In that report
initially names of 5 persons were given and thereafter a host of others. This
subsequent inclusion was found to be an interpolation by the trial Court.
Having Carefully looked into that document we find that some of those names
have been written in different ink and squeezed in, which necessarily means
that those were subsequently inserted. In view of the above facts and
circumstances appearing on record the defence of the appellants (as stated
earlier) cannot be said to be without any substance. We, therefore, feel that
the appellants are entitled to the benefit of reasonable doubt.
For
the foregoing discussion we allow this appeal, set aside the impugned order of
conviction and sentence recorded against the appellants. The appellants, who
are in jail, be released forthwith unless wanted in connection with any other
case.
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