APREN JOSEPH ALIAS CURRENT KUNJUKUNJU & ORS. versus THE STATE OF KERELA

APREN JOSEPH A.LIAS CURRENT KUNJUKUNJU &: ORS.

Tim STATB. OF KBRALA September l, 1972

{J. M. SHELAT, ACTING C.J., I. D. DUA, AND H. R. KHANNA, II.] InditJn PtN.:l Codt-S. 302 rtad wth S. 148 imd 149-Mwdtr-EI«t of btlattd F.I.R. wlrtn fatal.

ln Cr. A. No. 263 of 1971, accused Nos. 6 to 1~ 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. •. No.~ 300 of 1971, accused Nos. 1 to 5 were convicted under S. 302/148 J.P.C. b7. both the Courts below.

The alleged occurrence gh·ing rise to the prosecution of the appellants took place on the night be! ween· December 13 and 14 at about 2 a.m. as result of political animosity between two groups of peoplo-the Marxists and the agriculturists called the "Karshak Sangham", in Puthupally village in Kottayam, Ker6la. 'The eye-witnesses, for fear of retaliation, did not rep(!rt the crim~·to.the police. Only on the next day, member of the 1~1 panc~ayat (P.W 2), lodged :t~e F.I.R. at 8 A.M. at Kottayam East Pollee Stallon, 9 JCM. away from the place of occurrence.

Before this Court, tile 'following points were raised on behalf of the appellants :-(i) that the first information report i! highly belated and (ii) that the alleged eye-witnesses did not lodge the c:omplaint' becauae they h;~d in fact not w:tnessed the oc;curre'lce, and the accused have been falsely implicated. Partly allowing the app~al,

HELD : ('i) The Fir: t Information Report relating to the commissior.t elf an offence is not condition precedent to the setting in motion of II' ~rim!nal investigation. [23 C]

R. V. Khwaja, I.L.R. [1945] Lah. I, re'ferred to.

Nor does the statute provide· that such informatiOn r.:port can ooJy be made by 2.'1 eye-w:tness. F.I.R. is not even considered substantive piece of evidence. It can only be used to corroborate or c:ootradict tbe informants' evidence in court. But this information ·when recorded is the basis of the case set up by the informant. It is very useful it recorded before there is time and opportunity to embeUisb, or before the informants' memory fades.

Undue or unreasonable .delay lodging the F.I.R., therefore, give. 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 trustworthj.. ness of the prosecution ve~ion. No duration of time in the abstract can be fixed a< reasonably for giving information of crime to the police, the question of reasonable time being matter foe determ·inatioa by the court . in each case. [23 E)

(ii) In the pre~Cnt case, the eye-witnesses were tiraid to go to cbt police station during night time and their evidence could Dot be shabcl in cros~amination. Keeping 'in view the local tense atmosphere aod the effect of the ghastly murder on the eye-witnesses, their strong· di!incli-cation to go and lodge the repott ·during the night after the alltged

• ·• · ·· . APREN JOSEPH l'. KERAL.\ ·

.A o~c_urrcnce, which seems ~uitc nOJ·m;~l, cannot by itself arouse any sus-piCIOn about the prosecution case. Further, the prosecution version -as whole, has al!>o been :1ccepted by both the Courts below for rea~ons which cannot be said to he uns<.HtnJ or implausible. Therefore, the: Jclay in m:~king the F.l.R. hao; rt..~~o:1ahly been expl:1inecl by the prosecv-tion wit nesscs. (iii) Tt is not &·putcd and inth:eu r-Oth the Courts below have found that on December 12, 1970, there was full moon, aod as such, there was moon-light at the time · of the occurrence. The ne:lrest street light wa• ahout 130 ft. away t-ow-:~ rds the \'.C';t and th:: n-:ar~st electric post on the eastern side was ;:.bout 90 ft. tm ay from the place of occurrence. The light of the lorry, which was :.1< the pbc.:, :!:;o hcli)cJ -.yc witnes~cs to clearly !.C.:: who the assailants were. Th.:: C"licurrc:-ot ~ :lc!c! :;)n of the tl'lo Courts below leaves no doubt that the witnesses prc-;r.nt r.• the place of occurrence were in p0sition to ch::ar!y t;cc a'"~d identify the acc\L<;eJ pcnons "ho \\"ere not strangers to them. Th.:rdon::. conviction of ac-cus-:<.1 No;. I to 5 under S. 30:! 1. P.C. anJ S. 14S i~ uphclJ as also the •.cntcncc under S. 148 I.P.C. Accused No. 6 h~s also h:en rightly founJ guilty and his sentence is ulso confirmt!J.

(iv) As regards ac'q1~.::J No'i. 7 to 10. they llid not form an unlaw-ful assembly with the common ohjcct l,f 1-.illing the d..:ccascd. Thcrdorc, they arc acquitted. Khanna 1. He~J From the c\:u.::nc-: on record it

Khanna 1. !Jiuentins:) He~J ( iJ From the c\:u.::nc-: on record it wus Jifficul! to subscribe to -the view th~~ the \\ itnc;;o;cs refrained from reporting the muller to the pulicc ~oon aft'!r the occurrence because of fear. The witn.:":·"> h;.J not got nto th:: lorry while the acc\Jscd were on foot. It would nut have t:1kcn the lorry more than t5 or :o minutes to rc:-tcb the police ~t;:.t"on. Further, it cannot he said that the witnesses were not conscious cf t!l.: necessity of informing th~ pollee about the occurrc1cc.

(ii) E\"Cn if the witnesses wcr~ afr:J.id h) go to the police station . in the ni~ht, they t~ould h·Jvc gonl.l to thc station in the morning because they did not remain confined in thdr homcc;; hut were mavin~ nbout and go to difTu~·ot places on the ftlllowing morning, there is no !atisfactory explanation as to why they diJ not ~o to the police station anJ make report. Their f;Jilurc to report to the police the follo\-\-ing day, creates <.-on~iJ.:r;~bJc doubts ubout the veracity of their evidence.

Tlwli!. Kali v. St<ll<' t~/ Tamil Nadu, Cr. A. 165/71 decided on Fcbni- . ary :!5, 1972. rl'fcrrcJ to .

. (iii) Further, the pro>ccution evidence is of partis:m character.

(iv) Thl.' cir~1unhlaflCC\ of tho.: ca~c tend hl ~how that the dccea~cd 1':." l..ilkd ;,r Iilli! hour durin!! the nig.ht Pl'hl~n O.:cembcr 13 :1nd 14, I 'J70 y, h.:n he wa' coming twm place \\here h..: haJ taken toddy. The f:u;t th:tt no rcpo1 t 11 ·'' ltlJ~cJ with the polic.: llurin~; the night and no IHlC '>'cr.t t•' the 1illa~~: or r;1twd •• hu~ anJ cry kmls to show that no on.: \I:J' pr.:>~n t alnng \1 ith tho.' J.:c.:<ht..'<l >II th;ll tim!!. Therefore, it i~ Ol1t po"'hlo.: r·.> ,tl'>l;1in th.: Cllllvktit1:l of the r..ccu.;.:u appellants on the e\'iu-~·~~~·\! :1ddt•c,•d in th,; ~;;,:.

CIU\f!S.\L AI'I'FLLAlF JlllUSDICTIO~: Crimin:.tl ,\ppe:lls 't\'~h. ~OfJ ~tnJ 263 of 1971 . II Ai'r~:tl-.; from the jud~m.:nt and ~-+.

Ai'r~:tl-.; from the jud~m.:nt and on.l.:r JatcJ Augu-.t ~-+. t lJ71 1'f th.: !:..:r;1L Ili~2h Court in Criminal 1\tmcals Nos. ! 6h ltl ! 6S ::nJ R. T. "\'~'. 15 of 1971 an•.l Cr. r-.:ll. 25 !0[1]71.

[1973) 2 s.c.a.

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 res~ pondenr (in Cr. A. No. 263/71).

V. A. S('iyid Mulmuui and A. G. Pudissery, for respondent (in Cr. No. 300/71).

The Judgment of Shelat, Acting C.J. and Dua, J. was delivered by Dua, J. Kb.uma. J. delivered dissenting opinion.

DuA, J.-The.~~ are two appeals (Crl. A.-no. 263 of 1971 and Crl. A. no. 300 of 1971) against common judgment of the Kerala High Court disposin~ of four appeals (3 separate appeals 'by accused nos. 1 :o 5 ctmvicted by the Additional Sessions Judge, Kottayam and one appeal by the State against the acquittal of accused nos. 6 w I 0) affirming the conviction and sentence of accused nos;, 1 to ~ and reversing lhc order of acquittal of accused nos. 6 to 10, convicting them under ss. 302/149, I.P.C. as also under s. 148, I.P.C. Accuscct 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. t.P.C. whereas accused nos. 6 to 10 have been sentenced to im-prisonment for life by the High Court under s. 302/149~ I.P.C. and to rigo!"ous imprisonment for one year under ·s. 148, I.P.C. All the ten accused persons have appealed to this Court and they E. arc:

I. Apren Joseph alias Current Kunjukunju,

2. Kochukunju Vasu alias Thankappan,

3. Velu Damodaran,

4. Kt:savan Kumaran alias Kochu,

5. 'Cherian Mathew aUas Scaria.

6. Mundan Poulose alias Baby.

7. Yohannan Pothan alias Kochu.

8. Gangadiuiran Bhaskaran.

9. Kutty Chellappan alias Jruttu.

10. Kunchan ~ukumaran.

This is also the order in which these ten persons appeared as 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 Cri-minal Appeal Jurisdiction) Act, no. 28 of 1970 by accused nos. 6 to 10 whose acquittal by the trial court was reversed by the

. APREN JOSEPH v, KERALA (Dua, J.)

High Comt 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 abPut 1 O'clock on the night between December 13 and 14, 1970 at place on Manarkad-Tenganal road on the southern side of Kalappurakat dispensary of Baby in Puthupal!y village in Kottayam. The occurrence is stated to be tbc result of political animosity between the members of the ~larxht party and the members of an organisation of agriculturists called "Karshak Sangham" at Puthupally ef which the deceased Kuru\i1!a was the Vice-President. On the evening of December 13, there was meeting of the K:w.haka Sangham near the Puthupally junction and it was over ~~t about 10-30 p.m. After attending the. meeting (Pappu) Joseph (P.W. 1) and Joseph Cheriaa (P.W. 4) along with one Baby started for going home. Kuruvilla who met them at the 0 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 junclion. They readily agreed with the result they all went together to the house of the priest along the Manarkad-Thcnganat 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 Eramallur junction. After KuruvilJa had talk with P.W. 5 and when they were . returning through the same route, at the place of occurrence which is about 7 furlongs <lway from the house of P.W. 5 they met Mathayikutty (Mathayi) (P.W. 3) driving 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 After ~topping the lorry P.W. 3 told these four persons ~hat accu»N no. 2 and others were coming that way armed with deadly weapons. r. W, 3 accordingly asked these lour persons not to proceed towards Puthupally junction. at thl! same time offering to take them in his lorry. Dy the time this conversation was over the accused had alreaJy reached the seen~ of occurrence. As soon 4lS they arrived there accused no. 1 Apren Joseph struck blow with his chopper on Kuruvilla's hi!au. Kuruvilla tried to ward it off with his right hand but WJS not successful. Accused nos. 2 and 3 (Kochukunju Vasu and Velu Damodaran) who had chop-pers in their hands also gave blows with their respective weapons Jl on the back of Kuruvilla's head. This was followed by the fin.t accused giving two more blows at Kuruvilla's right shoulder. TI1~ fourth accused Kesavan Kumaran stabbed Kuruvilla on his back with Mallapuram knife. The fifth accused Cheri:m Mathew alsQ

to reach k .. junction. ~ were . ' . ~-· occurrence \ P.W. 5 they '· r and coming coming ..-. 3 stopped his ' ~ . 3. After After ~ ~hat accu»N ~1 . with deadly j-i .

[1973)2 S.C.R.

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 ~ing 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 I 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 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 Jto 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 different route. Early on the morning of December 14, 1.970 Markose_ ~anL (P.W. 2) who is member of the local Panchaya1 came ·to know of Kuruvilla's dea.th. He went to the scene of the occurrence and saw the dead body of the deceased. After getting whatever .in-D formation he could gather there he went to Kottayam East police station, 9 k.m. away, and lodged the first information report. (Ex. I 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 morning of December J 4, 1970. Having gone to the spot he saw the dead body of the deceased. He noticed that the 1ittle linger of the right hand of the deceased had been cut off and the ring finger was hanging due to cut. There were also cut in· juries on the back of the head of the deceased. After stating what he had seen the informant proceeded to state :

" ..... There was meeting and· procession of farmers at the Puthupally junction yesterday. The meet~ ing was over at 10-30 in the night. Deceased Kunju Kalappurakkal Baby, Padinjarekoothu Pappa, Inchalk~ kad Kochu 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 afte.r getting down the persons who had tor the procession at Kochalum Moodu somE l:x>dy killed him by inflicting cut injudes· at about 2 O'clock in the night at the place where the dead body lay. It is heard that Acbankala Vaslu, Valia Veettil Pothan. ·current Kunju Kunju, Carpenter Damodaran, Inchakad Bhaskaran and some others b~longing to the Marxist party who are opponents . of the faqners had followed . the persons who had gone to Eramallur after the meet-at Puthupally held on yesterday and while Kunju etc.,

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 south-east from here ... , .• ,

The Additional Sessions Judge trying the case found accused nos. 1 to 5 guiHy 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. Accu!,ed nos. 6 to 10 were, however, acquitted of all the charges, reliance for the order of acquittal having been placed on decision of this Court in Ma.mlti etc. v. State of Uttar Ptadesh ( L).

The convicted persons and the State, both appealed to the High Court of Kerala. The High Court, in fairly exhaustive 0 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 eaus~ ing injury (an incised wound) with wooden spear to Joseph Cherian (P.W. 4).

Before us it was strongly t:rged by Shri Chari on behalf of the appellants that -lhG first information report was lodged afteJ: very long delay any this in the drcumstnnces of the case is fatal to the prosecution. The submission most seriously pressed. and this appears to us to be the basic subcrnission which is sought to be supported by reference to other faotors. is that- no one had actually witness~d the occurrence and that the v.·hole of the pro-G secution story has been fabricated with the object of falsely im· plicating all the accused persons, who are enemies of the· prose-cution witnesses. The story invented by the prosecution, it was argued, is the work of highly imaginative and fertile brain. The first jnfonnation report, contended Shri Chari in his usual force-ful manner, was lodged after long delay because plausible story had to be built up .involving the accused so as to fit in with .. found. and the murder of the deceased at the place where this, emphasised the counsel. was his the real cause dead body was for

II) [l%4j 8 S.C.R. n~.

not l?dgin_g the report immediately after the alleged occurrence. The mterval between 'the alleged occurrence and the time when the prosecution story was unfolded to the police was, according to the submission, uti1ised in inventing the story to be placed before the police.

Now if this argument is accepted then obviously the prosecu-tion story has to be rejected and all the appellants acquitted. We have, therefore, to seriously examine the challen~e to the proie-cution story on the basis of the argument that the first informa-tion report is highly belated and that the alleged eye witnesses did not lodge it because they had in fact nCl't 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 con-troverted. The sole argument vehemently pressed upon .us is, that no one saw the deceased b~ing murdered and the accused ha Je 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. fndeed, even according to the accused, there had been quarrel between these two groups about 20 days prior to the occurrence in dispU'te. Some of the accused persons were involved :in other criminal cases as well. But enmity as is well-known is double· . edged weapon. Whereas the accused may rely on it in support of their plea of false implication, the prosecution on the 'other har.d 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 suc-ceed. 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 in-fonnation. Indeed, the submission proceeds like this. After having left the scene of the alleged murder P.W. 3 and his com-panions in tlte lorry could and .should have gone straight to the police station to lodge the first infonnation report. In any event P.W. 3, who, on his own showing, tried to contact the police on telephone but failed to do so as the telephone line was out of

APREN JOSEPH v. KERALA (Dua, /.)

\ order, could and s!lould, 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 hnportant than go-ing to his home. The fact that none of these persons considered it important enough or even pmper to go and lodge the first in-formation report shows that no one witnessed the murder and the whole story deposed by the prosecution witnesses in court is concoction which is the outcome of the fertile brain of P.Ws. l. 3,. 4 and 5 aod does not represent the truth.Now first information report is report relating to the colUluis-sion of an offence given to the police and recorded by it under s.154, Cr. P.C. As observed by the Privy Council in /1.£. v. Khwaja(') the receipt und recording of information feport by the police is not condition precedent to the setting in motion of criminal investigation. Nor does the statute provide that such irformation report can only be made by an eye witness. First information report under s. 154 is not even considered subs-tantive 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 .l.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 crime to the police, the question of reasonable time being n matter for detennination by the court in each case. Mere delay in lodging the first infonnation report with the police is. there-fore, not necessarily, as matter of law, fatal to the prosecu~ tion. The effect of delay in doing so in the light of the plausi-bility of the explanation forthcoming for such delay accordingly must fall for consideration· on all the facts and circumstances of 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 trust-worthy and has not at all been shaken in cross-examination. The submission that no reasonable human being in those cir-cumstances could or should have felt frightened and, therefore, )., f-1 the ground of fear is mere excuse is unacceptable. Indeed, there is hardly any effective cross·e)(amination on the· point

0) T.t.R. 1945 L:lh, I.

eliciting any illuminating information indicative of suspicion with respect to their reluctance to go, during the night or early in the morning, to the police station for making the report. The effect on their mind of having witnesses such gruesome murder at the hands of group of persons armed with lethal weapons and extremely inimical to the eye witnesses, cannot be measured by any general yard-stick. It necessarily depends on the mental make up 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 tak-e long time to be their normal self, whereas some others would not mind informing the police if they can conveniently do so without going out of 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 infonn 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 ~wn facts and circumstances let us see how the courts berow -.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 infonn the police. P.W. 2 is the Panchayat Member of Ward no. 4 of Puthupally Panchayat. He got informa-tion in the early hours of morning and went to the place of occurrence <}nd sav .. · the deceased. There-after he proceeded to the police st<2tion and gave Ex. P 1 statement, The fact that none of the persons who was present at the time of occurrence did not infom1 the police is not sufficient to warrant conclusion that the alleged eye witnesses were not present there."

1 n 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 1Oth accused was the Secretary of that party there. The formation of tbe Karshaka Sangham which was opposed to the Marxist Party was not to the liking of members of the Marxist

AI'RE:'-i JOSEPH \', KERALA (Dua, J.)

Party. Ten to tw~nty Jays before the occurrence there was quarrel between members of the Marxist Party and the Karshaka Sanghams at Eramalloor about the putting up of bunds on paddy fiields. There was also quarrel between Kuruvilla and members of the Mar-xist Party about agricultural labour at one Puthukari field which belongs to several persons. The whole atmosphere must have been surcharged with tear after the meeting of the Karshaka Sangham on the 13th evening was over. There was no residential house anywhere near the scene. The road there was deso-late. There was, therefore. nothing unusual if P.Ws. L 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 the 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 tllat was why at the Eramalloor junction he asked them to get out of the lorry. P.W.s l and 4 and Baby were in room in the house of P.W. 5 for the rest of the night. At 7.15 a.m. P.W. 1 went out of that house."

Moidu J ., in separate concurring note dealt with this mattel-morc specifically and observed ;

''The only circumstance pointed out during the argument of the learned counsel was that these wit-nesses could not have seen the occurrence and that if they had seen thi!y would have reported the incident to the police without delay. The evidence was clear to show that these witnesses \vould not have dared to get out of the place \Vhcre they stayed in the night after the gruesome murder was committed. Neither P.W. 1 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 hv different route and though he made an attempt to inform the police he did not succeed. On the next day P.W. 3 had to go to Erumeli with the lorry and he returned home only by about 5.30 p.m. Within short time thereafter he was questioned by the police."

From this it is obvious that keeping in view the local tense at-mosphere and the effect of this ghastly murder on the eye wit-nesses their strong disinclination to go and lodge the report du~ing the night after the alleged occurre~c~, which seems quit~ naturaL cannot by itself arouse any susptcton . about t~e. prose-cution ·case. The bad condition of the road, not penmtttng the lorry to go faster than six or ten miles per hour. ac; stated by

P.W. 3, may also have consciously or unconsciously detened them, to some extent, from risking visit to the police station during the night. In this connection it would not be unimpor-J.ant to bear in mind that P.W. 3 did not possess 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 Jigh~ly brushed aside. But that apart, it would also need 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 short span of time, after learning of the murder on the morning of December 14, 1970 and before mak-ing the statement to th~ police at noon the same day as deposed by P.Ws. 1 and 14. In fact P.W. 2, 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 oOccurrence and what he had heard involving five accused persons: This adds to the vu~nerabi1ity 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 tothe spot and then to go to lodge ·the F.I.R. at 9 a.m. arc (i) bringing on the scene (a) lorry driven by its owner (P.W. 3) who does not belong to Karshak Sangham and who nonnally does not drive that lorry and does not even possess driving licence but has employed whole-lime driver for the said lorry; (b) th~ other eye witnesses along with the companion of P.W. 3, Kadiyathuruthil Achan Kunju who has not appeared as witness, (ii) to make P.W. 3 drive 1he 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 Attupura$u Punnachan. What is more intriguing 'is that as many as ten accused persons should have been in· volved but only five assigned overt acts in th~ murder and one only an injury with wooden spear to P.W. 4, the rest (includ-ing accused no 10, the Secretary of the Marxist Party) beh1g r;. only involved as members of the unlawful assembly. In the absence of plausible and rational explanation as to whv only accused nos. 1 to 5 should have been selected bv the author of 1hi~ concocted imaginary version for the direct and active role ·in the murder, this feature also tends to dhcount the credibility of the defence version. Now, assuming sucli' fictional stOJ)' t~ have been. invented i~ retrospect, for this is the only a1tema-H trve to the WJtnesses bavmg actualJy seen the commission of the murder. one has to ponder to find rational and plausible ans-

wer to several puzzling ~estions. To begin with it is not under-stood where was the necessity of introducing P.W. 3 insteact of his driver. And then what was the reason for bringing Kadi-yathuruthil Achan Kunju in the picture when he was not to appear as witness. lt is also not easy to understand, on the evidence and in the peculiar circumstances of this case, as to how the prosecution witnesc;es deposing about the occurrence, other than P.W. 3, managed to get together for consultation. after learning of the murder and incn 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 cros<>-examincd at great length but his credibility was not at all shaken. He said in forth-right 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 Erumalloor 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 f) !>n 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 apoears to be straightforward and imoressive, and it has been believed by the courts below. No convincing argu-ment has been advanced for differing with their view. In concocted story P .W. 3 could not reasonably have been assigned role of such vital imPOrtance. Indeed, his presence seems to be strong factor which renders the defence theory incredible and establishes the truth of the prosecution version. But apart fn>m the inherent weakness of the theory of the story having been concocted to fa1se1y imolicate the accused persons, the prosecution version as whole has also been accented bV both the trial court and the Hh:!h Court for reasons which cannot be said to be unsound or imolau<;ible. In fact, there appears 10 be ring of intrinsic truth in this version.

The trial court believed the version given by P.W. 4 as also the tesHmonv of P. Ws. 1. 3 and 5. P.W. 5 was not an eve witness to the occurrence but he fully corroborated that the deceased and P.Ws.l, 4 and Babv had gone to him bv 11.30 p.m. and later at 1.30 a.m. The three persons, other than the dece~s­~d. 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 sto• .. , given bv P.Ws 1. 3 and 4 was consirlered bv the trial court to b.! sonc:;~ tcnt and reliable. The High Court in an exhaustive judgment after di~cu~sing the criticism levelled a)!ainst the orosecution version observed :

"We have carefully gone through the cnti:-~ evi-dence of all the witnesses. On all material matters the

(1973] 2 S.C.R.

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. Tht(y are quite natural witnesses. There is absolutely nothing in their evidence to dis-believe them. They corroborate each other. Their evidence i-; abo corroborated by the circumstances brought out in the case. case. The trial Judge believed them and we cordider rightly. It is proved beyond reason-able doubt that it was was in the manner spoken to by P.Ws 1, 3 and 4 that the the occurrence took place.'' brought out in the case. case. The trial Judge believed them and we cordider rightly. It is proved beyond reason-able doubt that it was was in the manner spoken to by P.Ws 1, 3 and 4 that the the occurrence took place.'' We have not been persuaded to hold that these concurrent cooclusions of the two courts arc in any wa)• tainted by an infir-c mity justi~ying interference by us in the present appeal so far as accused nos. 1 to 5 are concerned whose appeal has been pro-sented under Art. 136 of the Constitution. Even otheiWise the conclusions arc 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, J 970, 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 sec 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 position to clearly see and identify the accused persons who were not strangers to them.

The lriere fact that the eye witnesses did not gather up enough courage to go to the police station to lodge the first infor-mation report or to go 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 nigh't. The con-viction 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 conclu-sion of the High Court. He must, therefore, be held to have been nghtly found guilty of inflicting injury with the wooden

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 t<tkes us to the case of accused nos. 7 to 10 who have been convicted by the High Court of an offence uneler 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 short span of time and it is difficult to hold that they formed an unlawful assembl} 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. 2S 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 or 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. l 48, l.P.C. as well. On the same reasoning accused no. 6 is also acquitted of charges under ss. 302/149 and s. l4R . . Indian Penal Code.

We should like to point out that in this case the learned coun-sel for the appellants was penuittcd 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 per-sons, in order to avoid conflict in the conclusions in this respect.

Coming to the question of sentence imposed on accused nos. to 5, after the amendment of s. 367(5), Cr.P.C. in 1955 it is matter of judicial discretion for the court to decide on consi-deration of all the relevant circumstances of th~ case, which of the two pem1issible sentences under s. 302, I.P.C. should be imposed. It is no longer necessary to give reasons for the lessrr penalty. The detennination of sentence in given case depenas on variety oi considerations, the more important being, the .,1. nature of the crime, the manner of its commission, the motive which· impelled it and the character and antecedents of the accused. So far <ts the accused before us 'lfe concerned it

30 SUPREtfE COURT REPORTS

(1973] 2 S.C.R,

appears that in their excessive . zeal f<;>r their p~rty they felt undulv provoked by the success of the meetmg organtsed by the Karshak. San&ham and being m~sguided by. politic.al intolerance and cult of VIOlence they committed the offences m 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 impri~onmcnt for· me for the sentence ·of deatlt. We, how-n ever, must not be understood to lay down any general rule with regard to sentence applicable to all cases of political murders. Murder inspired by dilfcrences of politicnl opinions ·as idcoloaics. it may be pointed out, is wholly inconsistent with our svste~ of government \'!here the Con~titLttion has guaranteed frceJom of thought and expression to all citizens and patties. so lono- as thcv act within the Constitution and the law. We have red~tced th~ · sentence of death to tbut of li[c impri<;onmcnt OH accused nos. 1 to 5 in thi-; case because of the peculiur circumstances already mentioned. The sentence under s. 148 I.P.C. woultl be con-cerned with the sentence under s. 302 l.P.C.

_ The appeals arc accordingly di,poscd of as stated in thi..; JUdgment. ,

KHANNA, J. Ten accused Apren Jo:-.cph (36), Kochukunju Vasu (32), Vclu Th:modaran (32). Kcs;mtn Kumaran (24), Chcrian Mathew (34), Mudan Poulose (30), Yohanna Pothen (45), Gangadharan Bhaskaran (24). Kutty Chcllappan (42} and Kunchan Sukumaran ( 40) were tried in the court of learned Addi-tional Sessions Judge Kottayam for offences under section 302, section 302 read with section 149, ~ecti0n 324 read with section 149, 148 and I 43 Indian Penal Cod<! in connection with the murder of Kuruvilla alias Kunju (50) and for causing hurt to PW 4 Joseph Chcrian (31 ). 1l1c trial court convicted accused I to 5 for offences under section 148 and 302 Indian Penal Code and sentenced them to undergo rigorous imprisonment for period of one year on the former coul!t and to death on the latter count. Accused 6 to J 0 were acquitted. On appeal and reference, the Kcrala High C.ourt confirmed the conviction und sentence of accused 1 to 5. The High Court further or1 St:~tc appeal con-. victed accused 6 to 10 undt:r section 148 ami section 302 read with section 149 Indian Penal Code <IIH.l sentenced them to LUtdcr· go rigorous imprisomnent for period u( one year on the fo~er count and imprisonment for life on the Iutter count. The srxth accused was <Jiso convicted under section 324 Indian Penal Code and was sentenced to undergo rigorous imprisonment for period of one year. The sentences awarded to each of nccuscu 6 to 10 were ordered to ruo concurrently. Accused 6 to 10 have filed criminal appeal No. 263 of 1971 under Act No. ~ of . 1970

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 'Karsh aka Sang ham' at Puthuppally. Yesu Kathanar ( PW 5), who· is priest, \Vas the President of the Karshaka Sangham in the adjoining viJJagc Eramallo0r. Therl' was some dispute between Kunju dccea~ and the accused relat-ing to ridge and regarding work in the paddy fields. Aboul 20 days before the occttrrencc, there was u quarrel bctWC''"n per-· sons belonging to Karshnka Sanghum aml those belonging to the Marxist puny. Accordiocg to the prosecution case, tber.c was u m~~:.ting ~f the Kursbaka Sangham on the evening of .l}cccmber 13, 1910 at Puthuppnlly junction. Earlier on that day the organiY:ers of the meeting also arranged procession. The meeting ·w,ls O\·er at about 10 or 10.30 p.m. Pappu (PW 1), who wa~ pre&:nt in the meeting, then wanted to go to his house along with one I ·.~ Achankunju and Kalappurakkal Baby. Kunju deceased then cal1ed Pappu and his companions and r~uested them to accom-pany 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 Y esu Kathanar. They arrived al 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 Y esu at 12 mid-night. It was moonlit night. There was also light from the electric poles. When Kunju and his three compa-nions were going on the road in front of dispensary, they saw the lights of lorry cOming from the eastern side. Kunju got on one side of the road, w!dle 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 am1ed with weapons and that Kunju n.nd others should not go in that direc-G tion but should get into the lorry. Immediately thereafter accused No. 1 arrived there and aimed blow with chopper at Kunju. Kunju warded off the blow with his right hand. The other accused also in the meanwhile anived there. Accused 2 and 3 then gave blows on the back of the head of Kunju with choppers. Accused No. 1 inflicted two injuries on the right shoulder of Kunju. Accused 4 then stabbed Kunju deceased in his back with Malapuram knife. At the same time, accused 5 gave three blows with an irou rod in the chest of the deceased. Kunju deceased fel1 down on receipt of these injuries. The com-

.32 SUPREME COURT REPORTS .

[~973] 2 S.C.R •

. 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 ·wooden spear, then gave blow with it on the right hand of Achan-Kunju. The lorry then started. While the lorrv was moving away, some stones were thrown on the · lorry by the accused. The lorry thereafter stopped at Eramalloor second junction where Ach?n-Kunju ~ot down from the lorry.·· · Mathayi ;.~sked. Pappu and h1s companiOns a(<;o to get down from the lorry, but they declined to do so and told Mathayi to drop th~m .at the house of Yesu P\Y. Tim.e then was past! O'clock. Pappu. Baby and Joseph Chenan got down ncar Ycsu's house and told Ycsu PW that accused Nos. 1, 2, J 0 and. others had killed Kunju. Pappu, Baby and Joseph thereafter slept at the house of Ycsu. ·Oa the [ollov.ing morning they left th~ house of Ycsu.Th.:: cnsc of the prosecution further is that on the mom:.1g .of December l 4, 1970 Markose ( P\V 2), whose house is situated near Putbupally ·market,· was told about the present occurrence .by his children. Markose is member of the Panchayat. After taking coffee Markose went ut 6.30 a.m. to the spot where the de:td body of Kunju was lying. Marlose thereafter went to the Kottayam police station at distance of 9 kilometres froin the place of occurrence and lodged there .r.::port Ex. Pl at 8. a.m. According to that report, Kunju dccea~cd haJ been kilkJ by body at 2 a.m. Markose adtkd thut he ha<..l heard that accused Nos. 1, 2, 3, 7 and 8 had followed the persons who hao gone to Er:tnwlloor 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 ;~t 11 a.m. The Inspector" found the dcail body lying thcr.: anJ prepared the inquc~t report. The dead body was thereafter !>COt to tile mortuury where post mor-tem examination was p.:rformed by Dr. George Paul ( PW 7) at 3.30 n.m. on that Jay. Joseph Chcrian also earlier 011 th;1t day "Ot himself examined from Dr. N:~ir (PW 6) at 19 u.m. ·The doctor found an incised wound 1 " :< !"Y. J" on the poste_rior aspect ·of right· forearm or Joseph . . Thc.rc was also Jn :~bra~IOn 01\ the lip and contu~ion on the nght stele of the fuce of Joseph P.W. Accused 7, 8 and I 0 were <lffC\t.:d on Dccen!bcr 18. 1970. AccuS<:d I to 6 surn:nucred in the ,.,1urt of magts!rate l11l Dcct>m· her 21, 1970, while accu~ed '1'-io. 9 \Urr<:nJ.:rcd in tlwt court lltl Dcl.'clllher 23, 1970. No ~ l':tp~1n alkg~.:d tn haw h~.:en liS~~ by the :t~o:<.:U'>cJ co\dd he r~l'<WCr.:d hy the police. /\t the trial the pro,.:cu:ion c>.amincd P:1ppu (P\V 1),' .\ LftiJ J\ i ( P\V ) ) ;IIH1 J O'-I!flh ( P\V .f) liS eye. \1 itlleS~C\ l[1]f' the o::curr~qt·e an:J th•:y •.uppmt.:J the prno,cc.uttun C.1~~-Adiill1 j.: 11nil.l :tr.d lbh~· ·~cr.: :·in:n u;, by the Public P n,,.:<.:utor.

7he plea of all the accused in the course of their statements under section 342 Code of Criminal Procedure was denial sim-pliciter. According to them, they had been falsely involved in this case because they belonged to the Communist Party (Mar-xist). No evidence was produced in defence.

Learned Additional Sessions Judge held that accused 1 to 5 had formed an unlawful as<;embly after arming themselves with deadly weapons with the common object of committing murder of Kunju deceased. It 'Yas further held that those five accused had caused injuries to Kunju deceased with their respective wea-pons. They were accordingly convicted under section 148 and 302 Indian Penal Code. Accused 6 to· 10 were acquitted as, in the Qpinion 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 concern-ed. As regards accused 6 to 10, it was observed that it was not nece~sary 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 r~ccused 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 result of t the various injuries which were inflicted upon him. According to Dr. George Paul, who pedormed post mortem examination on the body of the deceased, there were 21 injuries on t1~ oody of the deceased, out of which 7 were incised wounds, one was stab ,\·ound and two were cut wou'nds. Besides that, there were four contused abrasions and 7 abrasions. The stab wound was on the 1eft 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 smell similar to that of toddv. The following incised wounds were sufficient. in the opinion: of the doctor. to cause death in the ordinary course of nature :

" ( i ) Incised wound 14.5 em long. 1 em aping obliquely placed on the right side of the back cl the heae, the lower and inner end being on the midline at 4-U48Sup.C.l. /73

[1973) 2 S.C.R.

SUP.RBMB COUilT ABPOI.TS

tbe 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 em and fissured frac· ttlfeS were found running outwards for 2 and 5 em-respectively from the upper and middle portions of the outer edge of the cut on the skull. The coverings of 8~ the brain were torn and the brain contused under the fractures.

(2) Incised wound 13.5 em long 1.5 em gaptn~ hoci~<mtally placed at the back of the head at level of the lower end of injury No. ( 1) right end being at higher level and both ends being 7.5 em behind the ears. Wound had clean cut margins and ends were. ~harp and the lower edge showed shelving. The under· Jying skull was cut through for 10.5 em and the left occipital bene of the brain showed cut 2 em deep.

( 3) Incised wound 5 x 1.5 em bone deep obliquely placed at the back of the head 2 em below injury No. (2). Margins were clearly cut and the upper edge shown shelving.

( 4) Incised wound 7. 5 em long 1. 5 em gaping vertically placed on the back of the right shoulder, the upper end being at the level of the top of the shouldec with clean cut margins and sharp ends, the underlyin~ spine of the shoulder blade was cut through exposin~ the shoulder joint cavity.

(5) Incised wound 10.5 em x 3 em muscle deep vertically placed on the right side of the back and top of the shouluer, 8 em inner to injury No. ( 4). The wound had clean cut margins the upper end was sharp ~nd ]ower end showed tailing for 2.5 em."

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 w<~s accepted by the trial court and the High Court_

Mr. Chari on behalf of the appellants hac; assailed th~ ocular evidence adduced by the prosecution and has contended that it soffers from serious infirn1itics. As against that, Dr. Mahmood on behalf of the State has canvassed for the correctness of the view taken by the High Court.

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 1 a.m. 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 visit to 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 PWs along with Baby. who too was with them, got into Mathayi's 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 infonn the police about the occurrence. It is in the evidence of the above mentioned witnesses that at first Achan-Kunju was droppe<l from the lorry at the next junction at distance of about one furlong from the scene of occurrence. Thereafter the lorry wa<; 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 infonning Y esu about the occurrence are stated to have slept at Y esu's house, while Mathayi remained at his own house. There is no cogent explanation as to why the above mentioned witnesses ditt not go at that time in the lorry to the police station and lodge report about the occurrence. If, in fact, murderous assault had been made on Kunju decea~ed in their presence, this would have been the n01mal 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 ~ 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. T find it difficult to subscribe to the view that the witnes~es refrained from reporting the matter to the police <:Oon after the occurrence because of fear. The witnesses

had got into the lorry, while the accused were on foot. The police station was at distance of only nine kilometres 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 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 t he went to the house of one Attupnrathu Punnachan before going to his house and tried to send tP.lephonic intimation to the police. The witness added that he could not contact the police because the telephone line was out of order.

added

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 whe-ther the deceased needed some aiel. The witnesses were appa-rently 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 fur the witnesses to shout to the accused at the time they le7t not to kill the deceased. J~deed, according to Mathayi (PW 3). he came to know of the death of Kunjn 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 perfow.ed 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 wit-nesses did not.go out_of fear after the occurre:nce to the place where the deceased was lying because in the nonnal 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 ~fraid to go to the police stntion in the darkness of the night, there appears to be no justification or cogent reason for their not reporting the matter to the police early on the following morning. It is in evidence that on the following morning the witnesses did not remain confined to their houses but were movin!! ~bout. According to Pappu (PW 1), he went to Puthupaltv fn bus on the foJlowing morning and p:lsSed through the spot where the dead body of Kunju was lying. The witness did not step down from the bus despite the fact that h·~ saw the dead body lying there. Mathayi (PW 3) admits that he went on the

following morning at 6 a.m. to Erum.eli and returned from that place at S.30 p.m. Joseph PW s1ates that he went to Va.kathanam 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 report about tlle occurrence if; in fact, Kunju deceased had been sub-jected to 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. evi-dence 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 decid-ed on· February 25, 1972) stressed the importance of making prompt report to the police regarding the commission of cogniz-uble offence. It was observed :

"First information repot1 in 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 infor-mation report quite often results in embellishment which is creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in o~ the introduction of coloured version, exaggerated acwunt or concocted story as result of deliberation and consultation. It is, .therefore, essential that the delay in lodging of the first infonnation report should be satisfactorily explained."

Apart from the above ~nfinnity in the evidence of three eye witnesses, I find that the prosecution evidence is of partisan character and not such on which implicit reliance ern be placed. Pappu (PW 1) admits th<lt there was criminal case between his cou ~in and the fifth accused five or six months before the pre-sent occurrence. Pappu was asked whether he was member of the Karshaka Sangham. He denied this fact though he admitted that he had paid money rto Kunju for tht- meeting of Karshaka Sangham which had been earlier he]d on th~ day of occurrence. The evidence of Joseph PW, however, shows thnt

Pappu is member of Karshaka Sangham. JOseph PW admits that there were two ca_ses against him for good conduct. Joseph . and two others were also sentenced to pay fine in connection with an assault on tapper. There was also some property dispute in which Joseph and Kunju were arraigned as accused but they were acquitted. Joseph is member of Karshaka Sangham and was earlier also cited as witness in case against the accused.

The prosecution has tried to see~ corroboration. of the evi~ dence of eye witnesses from the testimony of Yesu ( PW 5), who has deposed that on the nigh~ of occurrence at first Kunju, de-ceased came to l.is house _accompanied by Pappu, Joseph and Baby, and that subsequently Pappu, Joseph and Baby came to the house and informed him of the occurrence. Y esu, as al~ ready stated earlier, is the President of Karshaka Sangham in Eramalloor. It is admitted by Yesu that he was accused in 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 wac; accused in case filed in the court of District Magistrate. Y esu was also prosecution witness in case in the Court of Sub-Divisional Magistrate Kottayam in which certain remarks were made against Yesu. Yesu there-after filed petition in the High Court for expunging those re-marks. Y esu was asked whether finding had been given in civil case that he .had forged document. Y esu adnutted that there had been such case, but according to him, it related to the correction of 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 u_pon 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 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 Col-lege, Trivendrum, the incised wound could not be caused with wooden spear and t~at such spear would cause only lacerat-ed injury. Dr. Paul's testimony thus creates some doubt regard-ing the reliability of the prosecution evidence that Joseph had received injury with wooden spear at the hand of accused No.6. In any case the aforesaid injury could have been caused in variety of circumstances and would not necessarily show that Joseph was present at the scene of occurrence.

The circumstances of the case tend to show that Kunju de~ ceased was killed at late hour during the night between Decem-ber 13 and December 14, 1970 when he was coming from 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 pre-B sent along with the deceased at that time. His dead body, it seems, wa! discovered in the morning and thereafter report was lodged by Markose who admittedly was not witness of the occurrence. Markose in the report mentioned the names Of only accused l, 2, 3, 7 and 8 and, according to him, he had heard that someone out of them had killed Kunju deceased. 1n my opinion, it is not possible to sustain the conviction of the aecused-appellants on the evidence adduced in the case .

.I, therefore,_ accept the appeal, set aside the convietioa and acquit the accused .