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PETITIONER: K. ASHOKAN & FIVE ORS.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       19/02/1998

BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUARDI.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE. J.      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.

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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

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    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.