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PETITIONER: RADHAKRISHANAN NAIR & ORS.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT07/12/1994

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PUNCHHI, M.M.

CITATION:  1995 SCC  Supl.  (1) 217 JT 1995 (1)    14  1994 SCALE  (5)104

ACT:

HEADNOTE:

JUDGMENT: K. JAYACHANDRA REDDY, J. 1.  These  three appeals under Section (2) of  the   Supreme Court  (Enlargement of Criminal Appellate Jurisdiction)  Act read with Section 379 Cr.P.C. are filed against the judgment of  the High Court of Kerala. Original accused nos. 2  to  5 and  7  to  15 are the  appellants  herein.   Altogether  15 accused  were  tried  by the Sessions  Judge,  Alleppey  for offences punishable under Sections 143, 147, 148, 149,  286, 452,  323,  324, 326, 436 and 302 I.P.C.  A-1  was  murdered sometime during the pendency of the trial and the  remaining accused  were  acquitted by the trial court.  The  State  of Kerala  filed  an appeal against the acquittal in  the  High Court.  During the pendency of the appeal A-6 died  and  the High  Court  convicted the remaining accused,  who  are  the appellants   before  us,  and  sentenced  them  to   undergo imprisonment for life under Sections 302/ 149 I.P.C. and for other  periods varying from six months to five  years  under the   other  charges.  Hence  the  present    appeals.   The prosecution case is as follows:     The  accused  are  said to be the  sympathisers  of  the R.S.S.  having political animosity towards the  sympathisers of  Marxist  Party to which the injured  witnesses  and  the deceased  belong.  One R.S.S. sympathiser by name Sivan  was alleged to have been done to death by the Marxists  earlier. This  aggravated  the  strained feelings. On  the  night  of 9.11.81  the  accused  having  formed  themselves  into   an unlawful  assembly armed with deadly weapons like  choppers, sword sticks, axes, lathis and iron rods unleashed terror in Thekkekara at Mankombu in Kuttanad and committed a series of criminal acts.  At about 1 O’clock in the night, the accused 16 in  the first instance approached the house-cum-tea shop  of P.W.4,  cut  open  the fence of the house  and  A-1  to  A-5 entered  the house and thereby committed the  housebreaking. A-2  inflicted  a cut injury with a chopper on the  head  of

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P.W.4.  A-3 and A-5 inflicted several injuries on P.W.5  and when  P.W.6. wife of P.W.4. intervened. she was  kicked  and pushed down. Thereafter A-8 poured petrol over the roof  and set  fire to the tea shop. Then they proceeded to  the  bunk shop   of  Thankappan  and  A-8  set  fire  to  that   shop. Thereafter  they proceeded to Kuttan Taluk committee  office of  C.P.I.(M). trespassed into the compound. broke open  the front  door  and  some of them  entered  the  building.  and damaged the furniture and other articles. A-8 poured  petrol and  set fire. Thereafter the accused proceeded to the  east along  the  road  and reached the house  of  Thankappan  and surrounded  the house. A8 poured petrol and set fire to  the house.  Thankappan  woke  up and extinguished  the  fire  by pouring  water.  P.W.7. his wife. got out of the house  with the  children  and she cried out ,to her  husband  that  the assailants   we.’e  R.S.S.  men.  When Thankappan go out  of the  house. A-1 inflicted cut injury with a chopper  on  his right  shoulder.   The deceased rushed to the east  and  was chased  by all the accused. The deceased then rushed to  the south  and  stepped into the courtyard of  P.W.34.  But  the accused reached the place and A-4 inflicted a cut injury  on the neck with an axe.  The deceased fell down. A-l. A-2. A-3 and  A-5  inflicted a number of injuries with  choppers  and swords.  Thereafter  A-1  cut and severed the  head  of  the deceased  and took up the head of the deceased  raising  war cries  and  proceeded along the road. On the way  they  also came  to the tea shop of P.W. 11 and set fire to  the  same. Likewise  they damaged the house of P.W. 10. Thereafter  the accused went to the local committee office of C.P.I.(M)  and set fire to the furniture. After that they proceeded towards the  east raising cries and placed the severed head  of  the deceased  on  the  bridge.  Then then  proceeded  along  the eastern  side  of  the  bridge and  reached  the  boat  shed belonging to the union and they set fire to the same causing a  loss  of Rs. 1 lac.  P.W.39. S.I of Police.  attached  to Pulincunnu  Police Station on getting information about  the atrocities  proceeded to the place of incident with a  party and  recorded Ex.P.1. the statement of P.W.I and  registered the crime and issued the F.I.R.P.W.40. Dy.S.P., took up  the investigation.  held the inquest over the dead body and  the severed head and visited various places where the damage had been  caused. and prepared mahazars in respect of the  above said places of occurrence. P.W.29. the Doctor. examined  the injured  witnesses  and  issued the  wound  certificates  in respect  of  the injuries found on them.  P.W.31.  Assistant Professor of Forensic Medicines conducted the post-mortem on the body of the accused and the severed head and issued  the post-mortem  certificate.  The  accused  were  arrested   on various dates and after completion of the investigation, the charge-sheet was filed. 2.    The prosecution examined as many as 41 witnesses.  The accused   pleaded  not  guilty.  During  the   trial   P.Ws. 4.5.6.9.12.  14.15.16.17.19.20.22.23.24.25.27.34.37  and  38 turned  hostile.  and they did not support  the  prosecution case.  Then there remained P.Ws.1 to 3.7.8.10.11 and 13  who supported  the  prosecution  story and  who  are  admittedly interested  and inimical witnesses. The trial court  in  the first instance discussed the evidence of P.W.I in detail 17 and  pointed out various infirmities.  According to P.W.  1, he  gave the report Ex.P. 1 at about 4 A.M. on 10.11.81  and admittedly it reached the Magistrate  only on 12.11.1981 and the trial court rightly pointed out that this delay  renders Ex.P.  1 suspicious in the absence of any explanation.  With that background the trial court proceeded further to discuss

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the  evidence of the remaining eye-witnesses.  P.Ws.1  to  3 formed  one group. P.W. 1 had merely identified some of  the accused in the group but did not attribute any overt acts to any one of them. He merely stated that there could be 16  to 18   persons.   The  trial  court   also   pointed   various inconsistencies  between  the  version in Ex P.  1  and  his present evidence. The version given by P.W.2 is found to  be contrary to the one given by P.W. 1. The trial court pointed out  numerous inconsistencies in the evidence of  P.W.3  and observed  that  it was extremely difficult to  believe  him. P.W.7 was the wife  of the  unfortunate  deceased Thankappan but her version is inconsistent with the one given by  P.W.I in  respect  of movements of some of the accused.   She  has not,  however, witnessed the attack on the  deceased  fully. She  named as many as 9 accused.  She was cross-examined  at length  as  to how she could come to know  that.  The  trial court after examining many admissions made by her held  that her  evidence  is totally false when she  deposed  that  she recognised  these accused persons and noted that she  is  an interested  witness  and she fell in line with  the  version given  by P.W. 1. We may point out that the trial court  has pointed  out a number of inconsistencies and infirmities  in her  evidence which totally affects her veracity. Coming  to the murder of Thankappan, the prosecution could rely only on the  evidence  of P.W.8. The trial court noted  that  not  a single  neighbor  has been cited to prove any  part  of  the occurrence except P.W. 8. P.W.8 deposed that she was a tadi- tapper and that on the night of9.11.81 he woke up hearing  a loud cry. He came out and he saw a man running ’ahead.  Then he  saw the occurrence namely the attack on the deceased  by A-1 to A-5 and he could not recognise the others. He claimed to have seen the entire incident in the light of the burning electric  light on the northern side of the house  belonging to P.W.34.  Admittedly P.W.8 is also an interested  witness. But  for  the  presence  of the light,  he  could  not  have witnessed  the occurrence and the presence of  light  itself became highly suspicious because P.W.34, Indra, the owner of the house did not support the prosecution case regarding the presence  of the light and she stated that during the  night time  that  light in the courtyard would  be  switched  off. That  apart  there  are some  tell-tale  admissions  in  the evidence of P.W.8 which throw any amount of doubt about  the electric  light burning at the relevant time. Several  other discrepancies  also have been pointed out in  his  evidence. Yet  another  grave  infirmity in his evidence  is  that  he committed  mistake completely in identifying the accused  in the  court. The prosecution, however, contended  before  the trial  court  that P.W.8 was afraid of the  accused  and  in making wrong identification he colluded with the defence. In view of this serious defects in his evidence the trial court held  him to be a false witness. In this view of the  matter the trial court acquitted all the accused. 3.      The  High  Court  in  an  appeal  against  acquittal proceeded to examine the evidence of the remaining witnesses who sought to support the prosecution case. 18 Then in a very short judgment the High Court sought to place reliance on the evidence of some of the remaining witnesses. The High Court strangely placed reliance on the evidence  of P.W.8  who is the sole witness in respect of the  murder  of Thankappan  and on the basis of his evidence  convicted  all the appellants under Sections 302/149 I.P.C. The High  Court pointed  out that the evidence given by P.W.8 in  the  first stage  of examination was correct and the later part of  his evidence  regarding  the identification of the  accused  was

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only a result of collusion.  We are afraid that on the basis of  such  hopelessly  inconsistent  testimony  of  the  sole witness,  the convictions of the appellants could  not  have been awarded. Even with regard to other incidents  involving lesser  offences,  the High Court has  not  discussed  their evidence and has not at all adverted to the various  reasons given by the trial court for rejecting their evidence. 4.     If we may say so, the High Court has not pointed  out any  strong  grounds warranting interference  in  an  appeal against  acquittal. Having examined the entire evidence  and having  gone through the two judgments of the courts  below, we  are of the view that the trial court  rightly  acquitted the accused and that is the only view possible in this case. The  High  Court without any basis whatsoever  reversed  the said  order  of  acquittal.  Therefore  there  is  no  other alternative  except  to set aside the judgment of  the  High Court and restore the judgment of the trial court acquitting the accused. Accordingly all these appeals are allowed. 19