Topic: Apren Joseph alias Current Kunjukunju & others vs. The State of Kerala - FIR

Apren Joseph alias Current Kunjukunju & others vs. The State of Kerala
Equivalent citations: 1973 AIR, 1     1973 SCR (2)     16 - Bench: Dua, I.D. - BENCH: 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) - DATE OF JUDGMENT01/09/1972


ACT: Penal Code-S. 302 read wth S. 148 and     149-Murder- Effect 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    eye- witnesses 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.

JUDGMENT:

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

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- pondent (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     im- prisonment 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 appealled 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 Manarkad- Tenganal 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 Vice- President.

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     in- juries    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 prosecu- tion 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 plausi- bility    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 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 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 thepolice 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 occur rence 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 wholetime 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 altemative to the witnesses having actually seen the commission of the murder. one     has to ponder to find a rational and plausible ans- 27

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 arguconcoctedstory P.W. 3 could not reasonably have been assigned a role ofsuch    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    dis- believe 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 per- sons, 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 twopermissible 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 occur rence 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     in- defence.

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 tody. 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 shownshelving.

(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    evi- dence 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     re- marks.    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, Trivendrum,     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.

The circumstances of the case tend to show that Kunju     de- ceased    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.

Re: Apren Joseph alias Current Kunjukunju & others vs. The State of Kerala - FIR

First information Report
The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. The information under section 154 of Cr.P.C is generally known a s F.I.R though 'first is not used in the code. F.I.R is not the be all and end all of every criminal case and is not sunstantive evidence . It can be used only for limited purposes, like corroborating the maker thereof or as one of res-gestae or for being tendered in a proper case u/sec 32 (1) of Evidence Act or part of informant's conduct u/sec 8 of Evidence Act. (AIR 1963 AP 252).
http://www.legalservicesindia.com/artic … 126-1.html