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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 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.


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




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
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
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. and 38
turned hostile. and they did not support the prosecution
case. Then there remained P.Ws.1 to 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
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
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.
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
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.



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