JUDGMENT V.P. Gopalan Nambiyar, J. 1. Thirteen accused were tried before the Sessions Judge of Trivandrum in Sessions Case No. 91 of 1972, of offence punishable under sections 143, 147, 148 149, 323, 324, 341, 302, 120-B, 114 and 34 of the I. P. C. The 1st accused was found guilty under section 302 and sentenced to undergo imprisonment for life; the 2nd accused was convicted under section 302, read with section 109 and sentenced to undergo imprisonment for life; the 6th accused was found guilty under sections 323 and 324 for causing hurt, (and for hurting) with a dangerous weapon (M.O.1) to P.W.1, and also for causing hurt to the deceased Gopalakrishna Kurup and sentenced to undergo simple imprisonment for two months, under each of the counts under section 323, and to simple imprisonment for six months under section 324, the sentences to run concurrently; the 7th accused was convicted under section 323 of causing hurt to deceased Gopalakrishna Kurup and also under section 323 read with section 34, for causing hurt along with accused 10, 11, 12 and 13 to P.W. 1, and sentenced to rigorous imprisonment for two months, under each count, the sentences to run concurrently; the 8th and 9th accused were found guilty under section 324 and convicted and sentenced to undergo simple imprisonment for four months each; the 10th and 11th, 12th and 13th accused were each found guilty under section 323, read with section 34 for having, along with the 7th accused, caused hurt to P. W. 1 and were convicted and sentenced to undergo simple imprisonment for two months, each. Accused 3 to 5 were found not guilty and were acquitted. Charges of conspiracy, unlawful assembly, etc. viz. those other than what are referred to above, were found not proved. Criminal Appeal No. 314 of 1973 is by the 1st accused; Criminal Appeal No. 272 of 1973 is by the 2nd accused; Criminal Appeal No. 286 of 1973 is by accused, 8,9,11 and 13; Criminal Appeal No. 301 of 1973 is by accused 7 and 10; Criminal Appeal No. 414 of 1973 is by the State against the acquittal of accused 3 to 5, and against the acquittal in regard to the charges other than those found proved. 2. 2. The relationship between the several accused, as it has come out in evidence is as follows: A-1 is A-4's employee (for plucking cocoanuts), A2 is A4's husband's brother's son. A13 is the brother of A4's husband. A5 is the brother-in-law of A2. A11 and A13 are close friends of A2. A3 and A4, A6, A7 and A9 are brothers. A3; A8 and A10 are cousins, inter se and also of A6, A7 and A 9. 3. The deceased Gopalakrishna Kurup was a servant of the 4th accused, Thankamma. Thankamma's husband, Raghavan, is in Singapore, well-placed and affluent. While the deceased was a servant of the 4th accused, some time in 1964, there was a theft of about Rs. 18,000 from the house of the 4th accused for which the deceased was convicted. There was also a case about the same time against the 4th accused, and her karyastha, the 2nd accused, for violation of the Foreign Exchange Regulation, on information given to the Enforcement Officer, Enforcement Directorate, Trivandrum (P.W. 12). P.W. 12 would swear that show cause memo for violation of the Foreign Exchange Regulations had been issued, against A2, A4 and A4's husband, Raghavan, even in 1971. In Ext.P-60 petition dated 28th August 1971, submitted by the deceased to P.W. 32, the Sub Inspector of Police, Varkala, he complained that the 2nd accused and another were attempting to kill him. Ext. P-59 dated 10th September 1971 is a petition addressed by the 4th accused's husband to the Chief Minister, expressing that he apprehended danger to his life and to those of his wife and children from the activities of the deceased. The backdrop of enmity and strained feelings as between the 2nd and 4th accused on the one hand, and the deceased on the other, is thus fairly well-established. 4. While matters stood thus, the Young Farmers' Club of Elakamon, in Varkala, where the 4th accused was residing, of which P.W. 23 was the President, decided to celebrate the Onam festival in 1971 and to stage a drama 'Agni Pralayam' in commemoration of the event. The deceased was a prominent member of the organisation. M.O. 9 is a copy of the book, containing the drama chosen for the occasion. The deceased was a prominent member of the organisation. M.O. 9 is a copy of the book, containing the drama chosen for the occasion. The leading role in the drama was the heroine, Philomena, portrayed as leading a disreputable life by running night clubs, committing loot and murder, and indulging in other ways of earning "black money". The 4th accused appears to have felt that the cap assigned to Philomena's role might fit her, and that the drama was meant to hold up her ways and habits of life to contempt and ridicule. She and the 2nd accused wanted to prevent the drama being staged, and to book those who organised the same. There is some evidence that the organisers of the drama were warned that the staging of the same, might lead to trouble. The drama, fixed originally for 30th September 1971, could not be staged that day, on account of rain and failure of current. It was postponed to the next day, 1st October 1971, and commenced at about 9 p.m. in the presence of a fairly large gathering. According to the prosecution, that morning a conspiracy was hatched between accused 2 to 5, to prevent the drama being staged and to murder the deceased. All the accused were present at the place where the drama was to be staged, in pursuance of the conspiracy. The 1st accused was fixed as a hireling to do the deed, and was given M.O. 6, the dagger, by the 2nd accused. Ext. P-26 plan of the scene of occurrence, gives a rough indication, of the place and its surroundings. At about 11.30 p.m. the 4th accused's lorry 'Shanti', KLV. 4971 driven by P.W. 4, came along from the west, and stopped in front of the stage with head-lights flashed on to the stage. P.W. 1 who was watching the drama asked P.W. 4, to put out the head-light of the lorry. The 6th accused who was inside the lorry remonstrated, and a quarrel ensued between the 6th accused and P.W. 1, in the course of which P.W. 1 was slapped on cheek by the 6th accused. He retaliated. The 6th accused thereupon took out a knife M.O.1, from his loins and stabbed P.W. 1 on the eyebrow which was warded off by him, with a firewood stick picked up from a neighbouring place. He retaliated. The 6th accused thereupon took out a knife M.O.1, from his loins and stabbed P.W. 1 on the eyebrow which was warded off by him, with a firewood stick picked up from a neighbouring place. Both the knife and the stick fell down on the ground (The knife is stated to have been picked up by P.W. 8 and produced before the police). Immediately A7, and A10 to A13 rushed towards P.W. 1 and fisted him on his back and chest. P.W. 1 retreated towards the betel shop of P.W. 9, where A1 to A3 were standing. P.W. 1 fell down, and A8 hit him with an iron rod M.O. 2 and A 9 with a tyre lever M.O. 3. While P.W.1, was being thus assaulted, the deceased rushed towards him for help and was belaboured by accused 6 and 7. As a result of the beating and belabouring the deceased fell on his face by the side of a gutter indicated in the plan. As he attempted to rise up on his knees and elbows, the 2nd accused shouted to the 1st accused: stab Malayalam. At this, the first accused stabbed the deceased from behind, which caused an injury in the lower part of the abdomen and the penis. The deceased cried out and fell down. The deceased and P.W. 1 were taken to Varkala Police Station nearly eight kilometers away by P.W. 23 and P.W. 31 (brothers of P.W. 1). The Head Constable at the station (not examined) directed them to the Medical College Hospital, Trivandrum, apparently because he felt the condition of Gopalakrishna Kurup was fairly serious, and followed them himself to the place. Before reaching the Trivandrum Hospital, Gopalakrishna Kurup died. The Sub Inspector of Police, P.W. 32, reached the Hospital at about 4.30 a.m., and the Head Constable left immediately. A first information statement (Ext. P-1) was recorded from P.W. 1 at 5 a.m. on 2nd October 1971, by P.W. 32, and reduced to the F.I.R. Ext. P-51. P.W. 33, the Circle Inspector took over the investigation. The 1st accused was arrested on 19th October 1971, and the charge was laid on 16thJune 1972. A first information statement (Ext. P-1) was recorded from P.W. 1 at 5 a.m. on 2nd October 1971, by P.W. 32, and reduced to the F.I.R. Ext. P-51. P.W. 33, the Circle Inspector took over the investigation. The 1st accused was arrested on 19th October 1971, and the charge was laid on 16thJune 1972. A6 and A7 were arrested on 17th October 1971, A8 on 23rd October 1971, A9 and A13 on 9th October 1971, A11 on 18th October 1971, A10 and A12 on 26th November 1971, A3 on 29th January 1972, at Durgapur, and A2 on 12th November 1972. We shall first deal with the appeal against acquittal preferred by the State. Criminal Appeal No. 414 of 1973 5. The Public Prosecutor very fairly and frankly stated, and we are satisfied on the records and evidence, that there is no evidence to substantiate the charges of criminal conspiracy or unlawful assembly and the allied offences. The acquittal on these counts, and of accused 1 to 3 was therefore correct. This criminal appeal is dismissed. Criminal Appeal No. 272 of 1973 6. It would be convenient next to deal with the above criminal appeal of the 2nd accused. 7. Counsel for the appellant complained that there is no charge against him under section 109 of the I.P.C. But there was a charge under section 114. The facts necessary to constitute the offence had been set out in the charge itself, which is in keeping with many other records in the case in the matter of its prolixity and the details covered. It set out that the 2nd accused called out to the 1st accused "Malayalam ("stab"). The formal omission to mention section 109 in the charge is not material. The appellant's Counsel pointed out that in the course of questioning under section 342 of the Crl.P.C. the 2nd accused had not been specifically asked to explain this incitement attributed to him as a circumstance appearing in evidence against him. We think this should have been done. We notice that the learned Judge had merely asked the appellant in the course of questioning him under section 342 that "someone" Malayalam had shouted "stab "Malayalam, without specifying that it was the 2nd accused who thus shouted. This is an aspect that pertaining to the question whether the charge had been proved beyond reasonable doubt. We notice that the learned Judge had merely asked the appellant in the course of questioning him under section 342 that "someone" Malayalam had shouted "stab "Malayalam, without specifying that it was the 2nd accused who thus shouted. This is an aspect that pertaining to the question whether the charge had been proved beyond reasonable doubt. But we do not think that in the circumstances, or on the facts disclosed, the appellant can complain of prejudice having been caused by the absence of a formal charge incorporating section 109 of the I.P.C. 8. We shall proceed to consider whether the charge against the 2nd accused had been made out on the merits. The First Information Statement (Ext. P-1) which is quite detailed and descriptive, running to eight pages of closely written matter, with so many details, significantly omits any mention of the abetment attributed to the 2nd accused. And we have the evidence of P.W.1 that whatever he felt was necessary, he had told the police. From Ext. P-62 memo dated 2nd October 1971, filed by P.W. 33, we see that it was known that the 2nd accused had "participated" in the crime. P.W.1 does not speak either, in his evidence, about any abetment by the 2nd accused. P.W.2 swears about the same in chief examination (pages 9 and 10 of the original deposition). At page 11, he stated that accused 1, 2 and 5 were talking, and it was then that the 2nd accused called out to the 1st accused to stab. In cross-examination, he stated that he had only heard the voice inciting the 1st accused to stab, and that he felt that it was the voice of the 2nd accused. P.W.2's evidence does not appear to be acceptable, and appears unsafe. P.W.3 stated that it was 'Sasi' who called out to the 1st accused to stab. Both the 3rd and the 5th accused would answer to the name 'Sasi', but not the 2nd accused. P.W.3's evidence therefore does not connect the 2nd accused with the crime. P.Ws. 6 and 7 no doubt connected the 2nd accused with the abetment; but, we feel, that it would be unsafe to place reliance on their testimony to establish the complicity of the 2nd accused. P.W.7 is the mother's sister's son of the deceased. There are certain contradictions in his evidence and certain discrepancies vis-a-vis the testimony of P.W.1. P.Ws. 6 and 7 no doubt connected the 2nd accused with the abetment; but, we feel, that it would be unsafe to place reliance on their testimony to establish the complicity of the 2nd accused. P.W.7 is the mother's sister's son of the deceased. There are certain contradictions in his evidence and certain discrepancies vis-a-vis the testimony of P.W.1. We shall be discussing these more fully when dealing with the appeal of the 1st accused. P.W.6 again, is a witness, whose evidence, for reasons more fully discussed while dealing with the appeal of the 1st accused, must be accepted with caution. 9. In addition to the above circumstances, Counsel for the appellant stressed certain general features such as the belated nature of the First Information Statement Ext. P-1, in contrast with the prompt first information (Ext. P-44) given by the 6th accused in respect of the same occurrence, impliciting P.W.1, deceased Gopalakrishna Kurup, and P.W.3, recorded in the night/morning of the 1st October 1971 at 12.30 a.m. by P.W.26. Ext. P-43 is the F.I.R. Comment was made that P.W.31, the younger brother of P.W.1 and P.W.23, had stated that he had told P.W.26 the Head Constable that the 1st accused had stabbed with a knife. The suggestion was that this was definite information about the commission of a cognisable offence received by P.W.26, that he had admitted that he had recorded the same in the general diary (not produced), and that in the face of this record made by him, Ext. P-1 cannot pass as a first information statement regarding the commission of the offence. We are not satisfied that the contention in this extreme form can be accepted. None of the Counsel for the appellants wished to push the argument to its logical sequence of excluding Ext. P-1 altogether, by holding that there was a prior first information statement and report which had been kept back, and therefore that Ext. P-1 and 151 cannot pass as these, and would rank merely as statements made in the course of investigation. That apart, we are satisfied from the evidence of P.Ws. 25 and 32 that prior to Ext. P-1, no one who could directly speak to the commission of the offence had given any information to P.W. 26, which he reduced to writing. 10. That apart, we are satisfied from the evidence of P.Ws. 25 and 32 that prior to Ext. P-1, no one who could directly speak to the commission of the offence had given any information to P.W. 26, which he reduced to writing. 10. It was contended that P.W.1 was not unconscious at the time he was taken to the Police Station, and sent by the Constable to the Medical College Hospital, that Ext. P-40 the wound certificate issued by Dr. Subash Chandran (not examined) at 2.45 a. m. on 2nd October 1971 does not show that P.W.1 was unconscious, that P.W. 26 followed P.W.1 to the Medical College Hospital (according to him in a private car engaged by him), and waited there till the arrival of P. W. 32 at 4.30 a.m., after which, he left, leaving P. W. 32 to record the first information statement Ext. P-1 at 5 a.m. on 2nd October 1971, which was reduced to the first information report Ext. P-51. The suggestion was made that the recording of Ext. P-1 was purposely delayed to look into Ext. P-44, and shape Ext. P-1 suitably. But it was recorded in Ext. P-1 that P. W. 1 was unconscious at the time. Besides the evidence of P. W. 1 on the point, we have also the evidence of P. W. 23, to that effect. In the circumstances, we do not think that there was undue delay in recording the first information statement or that the stage was being set or prepared for recording the same in a convenient way. It has been ruled in Duraipandi Thevar and others v. State of Tamil Nadu, 1973 (3) S.C.C. 680 that where information of a crime is received by the authorities from persons who are not eye-witnesses, it was open to the authorities to take action on the information; but it was equally open to them to wait for more authentic information for taking action, treating the earlier report as mere gossip. 11. As far as the 2nd accused is concerned, his name and the part attributed to him do not find any mention in Ext. P-1, and the evidence of P. W. 1; and the evidence of P. Ws. 2 and 3 disclose the infirmities noticed earlier. 11. As far as the 2nd accused is concerned, his name and the part attributed to him do not find any mention in Ext. P-1, and the evidence of P. W. 1; and the evidence of P. Ws. 2 and 3 disclose the infirmities noticed earlier. The 2nd accused had not been specifically and pointedly told when examined under section 342, that he had abetted the 1st accused to stab, nor asked to explain the said circumstances appearing in evidence against him. We think that it would not be safe to base a conviction of the 2nd accused on the evidence of P. Ws. 6 and 7. 12. In the result, we allow this appeal, set aside the conviction and sentence of the 2nd accused and direct that he be acquitted and set at liberty forthwith. Criminal Appeal No. 314 of 1973 13. We shall next deal with the above appeal preferred by the 1st accused. On his behalf certain circumstances have been strongly pressed. It was contended that the First Information Statement Ext. P-1 was belated, and therefore it cannot be safely accepted. The Supreme Court, even recently in Thulia Kali v. State of Tamil Nadu, A.I.R. 1973 S.C. 501 has stressed the importance and the evidentiary value of the F. I. R. It was also ruled in Om Prakash v. State of Delhi, 1971 (3) S.C.C. 413 that unless there is evidence to fix the responsibility for the delay on the police alone, a late receipt of the F.I.R. by the authorities is of no consequence. We have discussed the criticism directed against Exts. P-1 and P-51 and found the same to be baseless while dealing with the appeal preferred by the 2nd accused. For reasons given therein, we would reject this contention. 14. It was contended that the 1st accused was taking a very prominent part in the organisation of the celebrations in connection with the Onam, that he was the captain of one of the teams that participated in the Tug of War arranged as one of the events in connection with the celebrations, and he was detained to raise and lower the curtain in connection with the staging of the drama on the day in question. It was urged that one, so prominently associated with the celebrations as he, was not likely to run with the hare and hunt with the hound, by joining those engaged in spoiling the performance and the celebrations. We are not very much impressed by this argument. After the arrival of the lorry, when trouble started and developed, the conduct of the 1st accused, as spoken to by the prosecution witnesses, does not appear to us to be totally inconsistent with the interest or the prominent part that he took in organising the celebrations of the day. 15. It was said that it was impossible for the 1st accused to have inflicted the injuries on the deceased in the fashion and manner spoken to by the prosecution witnesses. The evidence is that as a result of the beating administered to him, the deceased Gopalakrishna Kurup fell on his back and while he was striving to rise on his knees and elbows, the 1st accused standing in the gutter at a much lower level (of about 1 to 1½ feet) than the deceased, stabbed him from the back. It is rather difficult, but perhaps not altogether impossible, to envisage the deceased, almost crouching on all fours, with his posteriors towards the 1st accused, and the latter stabbing the deceased from behind, so as to inflict an injury which pierced through the penis of the deceased and cut into his lower abdomen. The nature of the injury is described in the post-mortem certificate (Ext. P-39), issued by P.W.24, Tutor in Forensic Medicine in the Medical College Hospital. Injury No.1 therein was an incised perforating wound involving the penis with the entrance wound 4.5 X 2 cm. on its back and exit wound 2.5 x 0.5 cm. on its front with a track connecting the two. The wound on the back showed tailing for 3 cm. Injury No. 2 was an incised penetrating wound on the lower part of the abdomen 3 x 0.5 cm. with sharp edges and ends located at 3 cm. above the root of the penis. It had penetrated the abdominal cavity causing 0.5 cm. long out in a loop of intestine and injury to the mesentric blood vessels. The track of the wound on the abdominal wall was oblique, 6.5 cm. long, and directed backwards and upwards. with sharp edges and ends located at 3 cm. above the root of the penis. It had penetrated the abdominal cavity causing 0.5 cm. long out in a loop of intestine and injury to the mesentric blood vessels. The track of the wound on the abdominal wall was oblique, 6.5 cm. long, and directed backwards and upwards. With the penis held up in contact with the lower abdomen, injury Nos.1 and 2 appeared to be in one line, P.W.24 was asked: "if a person falls down and turns to get up by fixing his knees and hands on the ground and if the assailant who is standing at a lower level of 1 to 1½ ft. stabs from behind from beneath the buttocks, then, can these injuries be caused?" His answer was quite guarded: "the injury may be caused. A weapon like M.O.1 can cause injury Nos. 1 and 2". We notice that the witness was given M.O. 1, as recorded by the Judge in the deposition, after measuring the length of the blade portion of the weapon. M.O. 1 was, however, not the weapon used by the 1st accused for stabbing, and we cannot but deeply deplore that, in a serious case where the accused have been charged with murder, this vital question was put and sought to be answered by the doctor without reference to the precise weapon that was used for inflicting the injury. And, if the reference to M.O. 1 in the deposition was a slip or mistake for M.O. 6 which was not the case before us we should think it was a grievous one, which should have been avoided. In cross-examination it was put to the doctor whether the stab was delivered from behind as sought to be made out by the prosecution witnesses; and whether, it would have been impossible to injure the penis without injuring the scrotum. The doctor replied: "if the stab is from the back, it is likely that the scrotum will be injured first. The root of the penis is in the scrotum". He was further asked as to what should have been the position of the penis at the time of the stab. He replied, it must have been held up in contact with the lower abdomen and the end of the penis must have been upwards. The root of the penis is in the scrotum". He was further asked as to what should have been the position of the penis at the time of the stab. He replied, it must have been held up in contact with the lower abdomen and the end of the penis must have been upwards. To fit in with this theory, some evidence has been given that the deceased was wearing an underwear. We feel there is difficulty on this evidence to accept that injuries of the type found on the deceased could be inflicted by the 1st accused in the fashion spoken to by the prosecution witnesses. And the suggestion on behalf of the appellant that the injuries might well have been caused by the knife, which, on the evidence of P.Ws. 2 and 3, the deceased had with him, and on the open blade of which he might have fallen, when A-6 and A-7 fell over him, is not altogether a fanciful one. These difficulties and doubts are only added to, by the evidence of other witnesses to which we may now refer. P.W. 7 described the manner of stabbing. In answer to a question by the Court, he stated that the 1st accused stabbed with a dagger between the legs from the bottom upwards. P.W. 5 stated that A-6, A-7 and the deceased fell on the footpath, the latter two on the top of the deceased, who fell on his face. He further stated that the deceased cried out that he had been stabbed, and it was only then that A-6 and A-7 rose up and went away. P.W. 6 also deposed in much the same way. If this be so, it seems impossible to inflict the stab on the deceased in the fashion spoken to by P.W. 7, or the other witnesses. 16. Comment has been made on the arrest of the 1st accused only on 19th October 1971. The 1st accused was living within 2½ furlongs of the scene of occurrence. One should expect the delay in the arrest to be satisfactorily explained, particularly in view of the disturbing features which appear in evidence. The prosecution would have it that the 1st accused was absconding. The 1st accused was living within 2½ furlongs of the scene of occurrence. One should expect the delay in the arrest to be satisfactorily explained, particularly in view of the disturbing features which appear in evidence. The prosecution would have it that the 1st accused was absconding. P.W. 3 stated that the 1st accused was caught hold of by the Police on the night of the second day after the occurrence at 3.30 a.m. and that when he went to the Police Station on the morning of the 3rd October, the 1st accused was at the station. P.W. 2 also stated that on the 3rd October, the 1st accused and the 11th accused were seen in the Police Station. The witnesses were not treated hostile, and it should really be a naive attempt to explain away this evidence as an improvement on their 162 statements, which should have been put to them for contradiction. This was pot done. The Sub Inspector, P.W. 32 when questioned, stated that he could not remember whether P.W. 3 was with him for showing the house of the accused on the next day of the occurrence at 3.30 p.m. Nor did he remember who showed the house of the 1st accused. He admitted that they had gone to the house of the 1st accused on the 2nd October, but stated that the 1st accused was not seen there that day. The 1st accused's house was searched on the 3rd October, but nothing was recovered. Ext. P-52 is the memo for searching the house of the 1st accused, and accused 8 and 9, and Exts. P-53, P-53 (a) and P-53 (b) are the search lists for having effected the search of their houses. In Ext. P-53 against the relevant entries, it is laconically recorded that the 1st accused did not attend the search and his wife was the one in whose presence it was made. P.W.32 stated that the 1st accused was arrested in Kaikkuyil House, Andoorkonam, that the 1st accused's sister's daughter was present at the time of the arrest, that the case diary for arrest on 19th October 1971 was written by the Circle Inspector, that the name of the niece is not seen in the case diary, and that the details of arrest are entered in the General Diary. He did not remember the name of the niece of the 1st accused. He did not remember the name of the niece of the 1st accused. He added that immediately after the arrest, the 1st accused was produced before the Circle Inspector, Attingal, and that the arrest was within the jurisdiction of the said Circle Inspector. P.W. 33, the Circle Inspector, attempted to put the ball back in the Sub Inspector's court, and stated that he had issued instructions to the Sub Inspector for the arrest of the accused, and that he did not remember if P.W.32 informed him on the day of the arrest that he was going to arrest the 1st accused. It might perhaps have been profitable for the defence to have cross-examined pointedly as to whether the efforts taken for arrest, would be found recorded in the diary, and seek cross-examination, if possible, with the help of the diary. But even in its absence we are rather dismayed that not one scrap of paper has been produced regarding the arrest of the 1st accused. Ext. P-48 is the confession made by the 1st accused to the Sub Divisional Magistrate, P.W.29, on 20th October 1971 and retracted by him at the trial. The same was not accepted by the Sessions Judge and we shall leave it alone. Quite apart from what is stated in Exts. P-48, P.W.29 deposed that the 1st accused told her when produced, that he had been arrested, and that it was 10 days since he was so arrested. These features in the evidence required to be cleared up by some record to show that he was not in Police custody at all from the date of the commission of the offence till 19th October 1971. We regret that there was none. We are inclined to treat the case of the prosecution that the 1st accused was arrested only on 19th October 1971 and that he was absconding till then, with suspicion, to say no more. 17. This is enhanced by the evidence relating to the discovery of M.O.1 from the 1st accused's house, in pursuance of the statement made by him to the Investigating Officer. The search on 3rd October 1971 proved abortive (Ext. P-53). The only record of the statement by the 1st accused, admissible under section 27 of the Evidence Act is what we get from Ext. P-42 mahazar, made out to evidence the recovery of M.O.6, and attested by P.W.25. The search on 3rd October 1971 proved abortive (Ext. P-53). The only record of the statement by the 1st accused, admissible under section 27 of the Evidence Act is what we get from Ext. P-42 mahazar, made out to evidence the recovery of M.O.6, and attested by P.W.25. P.W. 25, when examined, turned hostile, and said that he attested Ext. P-42 as the Circle Inspector wanted him to do so, and that he had not seen the recovery of M.O.6. Ext. P-42 embodies the statement alleged to have been made by the 1st accused to P.W.32, within quotations. It is regrettable that beyond so indicating the statement, no attempt was made to separately record or mark that portion of the statement which alone would be admissible under section 27. Even what is put within quotations in Ext. P-42, contains, we should think, portions which would be inadmissible (for instance, the portion "I shall take out the knife"). We deplore these lapses in recording evidence in Sessions trials. 18. M.O.6 itself was recovered from underneath a cow-dung pit near the house of the 1st accused. The way in which it was kept under the cow-dung heap sufficiently proclaims the object of concealment of the weapon. But it does appear strange that the perpetrator of the crime who was out to conceal a bloodstained weapon in a heap of cow-dung, should have taken care to sheathe the blade (as has been done in this case) so as to preserve the bloodstains for detection by the analyst and prevent their annihilation by cow-dung: Perhaps, as the Public Prosecutor would have it, the mysteries of a depraved mind are unfathomable, and a slip up, such as the sheathing of the blade in this case, has not infrequently led to the detection of a crime. We shall not rule this out altogether, but taken with the other circumstances which we have already noticed, it does further darken a sufficiently overcast horizon that we see before us. 19. It was contended that the injuries on A-6 and A-7 had not been explained by the prosecution. As to how these injuries were caused, and that they were of a simple nature, has come out in evidence. 19. It was contended that the injuries on A-6 and A-7 had not been explained by the prosecution. As to how these injuries were caused, and that they were of a simple nature, has come out in evidence. It has been ruled that where the injuries sustained by the accused are simple in nature, and the accused, according to the prosecution are the aggressors, there is no duty to explain the injuries. See Bappiti Varma Beddi v. State of A.P., 1973 (3) S.C.C. 89 , see also Ramlagan Singh v. State of Bihar, 1973 (3) S.C.C. 881 and Bhagwan v. The State of Maharashtra, A.I.R. 1974 S.C. 21. In the light of the above decisions, we do not think that the failure of the prosecution to explain the injuries on A-6 and A-7 is much consequence. 20. Counsel for the 1st accused and for the 2nd accused dwelt at some length on the improbability of the motive part of the prosecution case. It was argued that if the object of the several accused was to frustrate the efforts of the Young Friends Club in staging the drama 'Agni Pralayam', it would have been inconceivable that rather than nip it in the bud, when the victims were at the scene from the start, the accused would have allowed a seven-scene-drama to draw almost to its close, before wreaking their revenge on its actors and organisers. We notice too, that there is no evidence of any harm being caused or attempted, against the one who played the offensive role of Philomena. The criticism is not quite sound. The prosecution would have it that the object was to prevent the drama being staged and also to murder the deceased, who was taking a prominent part in organising the function; and against whom the feelings of the 2nd and 4th accused had been sufficiently strained. The evidence of P.W. 6, who was one of the actors in the drama, is that he was playing the role of Advocate Thomas and that he had no part after the fifth scene, and that it was while he was wiping the powder from his face, as he had finished his part after the fifth scene, that the lorry "Santhi" drove up and flashed its light on to the stage. His evidence has been subjected to severe cross-examination. His evidence has been subjected to severe cross-examination. It is seen from M.O.9 that Advocate Thomas whose role he played figures actively also in the sixth scene; and if his wiping the powder from his face were to be regarded as having been mistakenly placed after the fifth, instead of, the sixth scene, that would take things still further to the close of the play. His version in regard to stabbing is that it was while the deceased was being held in a bent position by A-6 and A-7 that he was stabbed. P.W. 3's evidence is that P.W.6 was acting the part of the Advocate when the lorry came. P.W.14 was the electrician who arranged the lighting in connection with the drama on the fateful day. His evidence is that shortly after the stabbing, P.W.6 came and reported to him that someone had beaten and stabbed P.W.1 and Gopalakrishna Kurup, and he did not mention who had done so. If this be one of the earliest versions of P.W.6, we should receive his evidence with caution. We are not prepared to place much reliance on the testimony of P.W.6. 21. We will next refer to another circumstance deposed to by P.Ws.2 and 3. P.W.2 stated that Gopalakrishna Kurup had held something firmly in the hand. P.W.3, who stated that he was the best friend of the deceased Gopalakrishna Kurup, deposed that the deceased had a knife in hand at the time, and that generally he used to go about with a knife. This is a circumstance that adds suspicion to the happenings as deposed to by the prosecution witnesses. In the circumstances, we feel that the whole truth has not been placed before the court, and that it would be unsafe to hold that the guilt of the appellant has been established beyond reasonable doubt. We allow the appeal, acquit the appellant, and direct that he be set at liberty forthwith. Crl. Appeal Nos. 286 and 301 of 1973 22. Criminal Appeal No. 286 of 1973 is by accused 8, 9, 11 and 13 and Criminal Appeal No.301 of 1973 is by accused 7 and 10. At the outset of this common judgment in these connected appeals, we have noticed the offences of which they have been convicted. 23. Crl. Appeal Nos. 286 and 301 of 1973 22. Criminal Appeal No. 286 of 1973 is by accused 8, 9, 11 and 13 and Criminal Appeal No.301 of 1973 is by accused 7 and 10. At the outset of this common judgment in these connected appeals, we have noticed the offences of which they have been convicted. 23. As a result of the judgments in the other three criminal appeals, which we have just delivered, the main fabric of the prosecution case, stands demolished. The criminal conspiracy between the various accused, their forming themselves into an unlawful assembly, or sharing a common intention under section 34, all these, have been found against; and, in the appeal preferred by the prosecution, it has not been able to make good any of these aspects. While discussing the appeals preferred by the 1st accused and by the 2nd accused, we had occasion to find that many of the circumstances, relied on by the prosecution, to establish their guilt had not been proved beyond reasonable doubt. We had commented, for instance, on the recovery of the knife M.O.6, from the 1st accused; on the unsatisfactory features of the evidence regarding the abetment attributed to the 2nd accused, and of the unsatisfactory features in regard to whether the 1st accused had been kept in police custody before he was arrested on 19th October 1971. We had also occasion to notice that the evidence of P.W.6 and of P.W.7 cannot be said to be very satisfactory or acceptable. There is thus enough to leave us with the impression that there has been admixture of a good deal of suspicious and unsatisfactory elements and embellishments to the prosecution story. In the midst of these, the task of sizing the residue of truth becomes difficult, if not impossible. Analysing the evidence against the accused in the above two criminal appeals, we feel that it would not, in the circumstances, be safe to enter a conviction against any of them. We may briefly recall a few of the unsatisfactory features in the evidence relating to these accused, based on the evidence of P.Ws. 1, 2, 3, 5 and 6. P.W.2 stated in cross-examination (page 34 of the original deposition) that the incident began by P.W.1 beating A-6 with the hand twice. P.W.3 also stated that he heard that P.W.1 beat A-6 who was seated in the lorry. 1, 2, 3, 5 and 6. P.W.2 stated in cross-examination (page 34 of the original deposition) that the incident began by P.W.1 beating A-6 with the hand twice. P.W.3 also stated that he heard that P.W.1 beat A-6 who was seated in the lorry. P.Ws.2 and 3 stated that they saw A-1, A-6 and A-7 in police custody on 3rd October 1971. A-6 and A-7 were arrested only on 17th October 1971. It is true that A-7's house was searched, and M.O.2 iron rod was recovered under Ext. P-27 mahazar on 10th December 1971; and that on the search of A-8's house, M.O.3 tyre lever was recovered under Ext. P-38 mahazar on 23rd December 1971. These apparently embody also, the statements made by the accused, sought to be rendered admissible under section 27 of the Evidence Act. The relevant portions are put within quotations in Exts. P-25 and P-38. But beyond these, we regret to observe that no attempt was made to specifically mark the portions of the statements; and, as in the case of Ext. P-42, the statements put within quotations contain at least a portion that appears inadmissible. A-8 to A-11 have been found guilty of section 323 read with section 34 on the ground that along with A-7, they also beat P.W.1. There is little discussion as to how, or in what circumstances, A-8 to A-11 could be said to have shared the common intention with A-7 under section 34. We have found it difficult to support this part of the conviction. And so did the Public Prosecutor. The learned Judge, we are afraid, did not bestow sufficient attention to the discrepancies or the features of the evidence. P.W.3 stated that A-8 had not done anything to P.W.1. P.W.5 stated that A-8 and A-9 only gave a blow each, and P.W. 7 stated that he did not see A-13 after 8.45 p. m. P.W. 9's evidence is that M.O.2 iron rod was used only by the 8th accused. The knife M.O.1, used by the 6th accused against P.W.1, was produced by P.W.8 on 25th January 1972 before P.W.33. Ext. P-12 is the mahazar signed by P.W.8, under which M.O.1 was taken into custody. P.W.8 turned hostile. The knife M.O.1, used by the 6th accused against P.W.1, was produced by P.W.8 on 25th January 1972 before P.W.33. Ext. P-12 is the mahazar signed by P.W.8, under which M.O.1 was taken into custody. P.W.8 turned hostile. His evidence is that he took it up from the road and was advised by the Panchayat President (not examined) to keep it safe and produce it before the police, if questioned. He stated that when A-6 beat P.W.1, P.W.1 retaliated, and thereafter A-6 did nothing. It was after this, that P.W.8 was declared hostile. He then admitted that A-6 stabbed P.W.1, with a penknife on the eyebrow. He admitted that he had told the Panchayat President that the knife was of A-6, and that he had handed over the knife that he picked up, to the Circle Inspector, which he identified as M.O.1. The witness then added that the knife handed over was not the one shown to him, but was a longer one. The witness's deposition in the committal court was marked under section 288 of the Cr.P.C. as Ext. P-13. In the face of the tissue of contradictions, we do not think it would be safe to place reliance on the testimony of P.W.8 or the recovery of M.O.1 as spoken to by him. 24. We do not think, it would be safe to enter a conviction of the accused in these appeals. In the result, we allow these criminal appeals and direct that accused 7 to 11 and 13 be acquitted and set at liberty forthwith.