Judgment :- Koshy, J. Accused Nos.2, 3 and 9 in Sessions Case No.160 of 2000 on the file of the III Additional Sessions Court (Fast Track Court No.1), Thrissur filed Crl. Appeal No.803 of 2003. Fifth accused in the above case filed Crl. Appeal No.1386 of 2003. They were convicted and sentenced to undergo imprisonment for life under section 302 read with section 149 of the Indian Penal Code. According to the prosecution, on 29-3-1997 at 8.00 p.m. at the West Fort Punkunnam public road near the Gasco West Fort Shop in Ayyanthol village, accused 1 to 14, due to their previous enmity towards the deceased Subramanian, formed themselves into an unlawful assembly, armed with deadly weapons like sword, knives, iron pipes, wooden sticks etc. and inflicted grievous injuries on the deceased Subramanian by means of the above weapons and caused his death and thus accused 1 to 14 committed the offence under sections 143, 147, 148 and 302 read with section 149 IPC. Before trial, accused Nos.4, 6 and 7 died and the case against them was abated. Accused Nos.1 and 8 absconded and the case against them were split up. Only accused Nos.2, 3, 5 and 9 to 14 faced trial. The appellants, namely, accused Nos.2, 3, 5 and 9 were found guilty. A10 to A14 were acquitted. PW1, brother of the accused, gave the first information statement (Ext.P1) at Thrissur West Police Station at about 9-30 p.m. on the same day and Ext.P1(a) FIR was registered. PWs2, 4 and 5 are eye witnesses. PW3 was declared hostile; but, his statement given before the magistrate was marked as Ext.P3. Apart from the evidence of eye witnesses, prosecution also relied on the dying declaration given to the brother of the deceased (PW1) and also recovery of weapons on the disclosure statement made by various accused persons to PW22 investigating officer. PW18 doctor gave first aid to the deceased on 29-3-1997 night and advised them to take the injured to another hospital. PW19 conducted postmortem. PW21 recorded Ext.P1 first information statement from PW1 and registered the case and PW22 conducted the investigation. 2. PW1, brother of the deceased, who gave Ext.P1 first information statement deposed before the Court that he gave the above statement and identified his signature in Ext.P1. He did not see the incident. While he was returning to the house on the incident. 2. PW1, brother of the deceased, who gave Ext.P1 first information statement deposed before the Court that he gave the above statement and identified his signature in Ext.P1. He did not see the incident. While he was returning to the house on the incident. While he was returning to the house on the evening of 29-3-1997, he received information that his brother was stabbed and was taken to West Fort Hospital. He rushed there. He met his brother. He wept there. Injured was taken to Aswini Hospital, but, he was not admitted there. Hence, he was taken to the Heart hospital. On the way to Aswini Hospital, deceased brother told that he was stabbed by Joshy (A2) and 5 to 8 others. “MALAYALAM” When they reached the Heart hospital, doctor told them that his brother already died. He identified A2. Mos 2 and 3 were identified as his dresses which were blood stained while traveling to the hospital. In cross-examination, he deposed that when they reached Heart hospital, it was 9-00 a.m. He was questioned twice by the police. He further deposed that Ext.P1 was given at about 12 o’clock on the next day of the incident. Counsel for the defence vehemently argued that Ext.P1 is given only on the next day and not on the same day night as recorded. PW21 who recorded the first information statement stated that it was recorded at 9-30 p.m. on 29th (Saturday). A suggestion was put to PW21 whether it reached the court only on 31st March (Monday morning) and he replied that it was entrusted to the writer and the writer has forwarded the same to the court. The seal portion of the FIR is seen torn off. Therefore, we are not in a position to see the exact date of receipt of the FIR in the court. In Ext.P1 first information statement in second sentence, the word ““MALAYALAM” (yesterday) was corrected as “MALAYALAM” (today) with the date shown in bracket as ‘29’. It is argued by the counsel for the accused that the first information statement was manipulated and there is delay in sending the first information report. It was finally argued that even if next day was a Sunday, the FIR could have been forwarded to the residence of the magistrate as it is the duty of the police to forward the FIR immediately on recording the same. It was finally argued that even if next day was a Sunday, the FIR could have been forwarded to the residence of the magistrate as it is the duty of the police to forward the FIR immediately on recording the same. If the story that Ext.P1 was manipulated and it was given only on the next day, all the names of the accused could have been incorporated in the FIR. But, only the name of A2 is mentioned in the FIR. If first information statement was produced later, many more matters could have been incorporated and cooking up a case for prosecution by delayed FIR is not proved in this case. In this connection, we refer to the following observation of the Supreme Court in Sahdeo and others v. State of UP (AIR 2004 SC 3508): “….. The counsel further contended that the FIR must have been concocted later after the inquest and post mortem examinations were over. It was submitted that the delay in sending the FIR to the Magistrate enabled the prosecution to cook up a false case against the appellants. We are not inclined to accept this contention for the reason that the FIR statement contains only a brief statement of events. If the FIR had been prepared later after the inquest and post mortem were over, many more matters could have been incorporated in the FIR. The absence of any further details in the FIR shows its genuineness …. Here, in this case, there is no delay in lodging the F.I.R. 3. We have gone through Ext.P1 first information statement. It starts with the following sentence: ““MALAYALAM” (29-3-1997) MALAYALAM 9.30. ….” So, in the first sentence itself it is made clear that it is given on 29-9-1997 itself. Correction is alleged in the second sentence which reads as follows: “MALAYALAM” (29-3-1997) MALAYALAM.” So date is clearly mentioned. It is true that after “MALAYALAM” (today) there is a correction as one “MALAYALAM” is scored off. But, it was initiated. PW21 also signed with date 29-3-1997. Considering the fact that there is no correction in the first sentence and date is also put there is no manipulation or correction of first information statement after it was given by PW1. PW1 was also not asked whether Ext.P1 was corrected without his knowledge. But, it was initiated. PW21 also signed with date 29-3-1997. Considering the fact that there is no correction in the first sentence and date is also put there is no manipulation or correction of first information statement after it was given by PW1. PW1 was also not asked whether Ext.P1 was corrected without his knowledge. Assuming that there is correction or delay in receiving the first information statement then also, the entire case of the prosecution cannot be thrown out. FIR only sets the law in motion. Immediately after registration of FIR, law was put in motion. A cryptic information received from the hospital also cannot be treated as first information statement. On going through the entire evidence, we agree with the findings of the Sessions Judge that Ext.P1 was given on the same day of incident without delay. Here, there are independent eye witnesses also in this case and the question is whether there is sufficient evidence to prove the charge. A slip of the tongue by PW1 that Ext.P1 was given on the next day, when he gave evidence after about seven years of the incident is not very fatal to the prosecution case. But, we agree that Court has to consider the evidence in a critical way. 4. Motive for the crime is satisfactorily proved by the prosecution. PW deposed that on the previous day of the incident, there was a quarrel between the deceased and second accused. That fact is not disputed in cross-examination. Other witnesses also have stated regarding the same. Therefore, prosecution was able to show that there is some antagonisation or enmity with the second accused and the deceased Subramanian and that shows the motive for the incident. PW1, clearly stated that the altercation between the second accused and the deceased on the previous day was seen by him. That part was not cross-examined. In fact, that was being brought out in cross-examination. So, motive part as against second accused is proved. It is the allegation of the prosecution that others charge-sheeted were friends of second accused. But PW1, identified only A2. His name alone was stated in Ext.P1. 5. PW1 clearly deposed that his brother, while being taken from West Fort Hospital in the vehicle, stated that he was assaulted by A2 and five to eight others. The above dying declaration is very clear about the involvement of A2 in the case. But PW1, identified only A2. His name alone was stated in Ext.P1. 5. PW1 clearly deposed that his brother, while being taken from West Fort Hospital in the vehicle, stated that he was assaulted by A2 and five to eight others. The above dying declaration is very clear about the involvement of A2 in the case. PW18 doctor who gave first aid to the deceased at West Fort Hospital deposed that the patient was talking and was capable of talking. Since the patient was in a very serious condition he immediately sent the patient to a better hospital and hence would certificate was not prepared. Mos 2 and 3 dress worn by PW1 was blood stained as per Ext.P33 chemical analysis report. PW1 stated that he was taking the injured brother to the hospital and we are satisfied that the statement given by the deceased was voluntary. There is no case for the accused that PW1 was entertaining any illwill towards the accused and there is nothing to disbelieve the evidence of PW1 that the deceased stated as his last words before death while going to the hospital that A2 and 5 to 8 persons assaulted him. Version of eye witnesses is fully corroborated by the same. In this connection, we refer to the decision of the Apex Court in State of UP v. Ram Sagar Yadav and others (AIR 1985 SC 416) and Mathukutty v. State (2004 (8) Supreme 128) wherein Apex Court held that if dying declaration is found to be true, it can be accepted even without corroboration. 6. PW2 is an eye witness. He deposed that he alongwith the deceased and two others went to JP Bar for drinking beer. Somebody called Subramanian by name from behind and one tall person inflicted cut injuries on the head of Subramanian. Then the deceased ran to Aiswarya Nagar. Second accused said “don’t let him” and he and party chased them. He identified A2 in the court. PW2 did hide himself behind a tempo. A3 Sudheer inflicted another injury on Subramanian and Subramanian feel down. The deceased, A7 and A8, the absconding accused stabbed him by knife. Witness also identified A5 who also inflicted injuries on him. A9, A12 and A13 were also identified as persons in the group who inflicted injuries. He said that there were about 10 to 14 persons in the group. The deceased, A7 and A8, the absconding accused stabbed him by knife. Witness also identified A5 who also inflicted injuries on him. A9, A12 and A13 were also identified as persons in the group who inflicted injuries. He said that there were about 10 to 14 persons in the group. He and two friends took him to Hospital. PW1, accompanied the deceased brother from West Fort Hospital. PW5, another eye witness, has also accompanied the deceased, like PW2, to JP Bar and he also deposed in the similar way as PW2 stated. But, he identified A2 only at the first instance. Later, he stated that A10 was also there. He ran away through the way he came and then they saw that the attackers were running away. Other than A2 and A10, no others were identified by him. He also deposed in chief examination that among the persons who were running away with weapons only one person is in court. “MALAYALAM” PW4 who is also an eye witness also gave a similar version but identified only A2. 7. PW19 is the surgeon who conducted the autopsy. Antemortem injuries noticed by the doctor are as follows: “1. 9 x 5.5 c.m. relecting the scalp to the right, longitudinal on the top of head, the front end being 9.2 c.m. from middle of eye brow and 4 c.m. outer to midline. Skull bone showed a cut 7.5 c.m., tapering to the front. 2. 4.6 x 2.2 c.m. relecting the left side and tip of nose, upper lip (left half) and gum and bone with the 2 central incisors, left lateral incisor and the left canine teeth. The right central incisor tooth showed a cut 0.6 x 0.5 c.m. at; its right side (lower part). 3. 8.7 x 2.4 c.m. severing the tendons and matacarpal bones of right hand (partial cut) oblique involving outer 3 metacarpals. 4. Partially serving right index finger, 3 x 1.7 c.m. nail bed and terminal phalanx missing. 5. 6.3 x 1.9 c.m. almost horizontal on the outer aspect of right knee for a maximum depth of 2.3 c.m. at the center (ligament deep). 6. 2.5 x 1.2 x 0.8 c.m. horizontal on the right side of right leg 8.4 c.m. below No.5. 7. 7 x 2.1 x 3 c.m. oblique on the inner and back aspect of right knee. 8. 6. 2.5 x 1.2 x 0.8 c.m. horizontal on the right side of right leg 8.4 c.m. below No.5. 7. 7 x 2.1 x 3 c.m. oblique on the inner and back aspect of right knee. 8. 5.2 x 2.2 x 4 c.m. on the front of right ankle exposing bone. The dorsalis pedis artery was cut and ends separated. 9. 4 x 2 x 0.5 c.m. at the upper aspect of front of right foot at the root of 1st and 2nd toes. 10. 1.4 x 1 cm. at the sole of foot under the right big toe. 11. 3 x 0.1 x 0.4 c.m. vertical on the inner aspect of right heel. 12. 6.3 x 2.4 x 3.2 c.m. almost horizontal, 11 c.m. above the back of left wrist. Muscles vessels and nerves cut. 13. 14 x 2.8 x 4.4 c.m. oblique across the left knee and leg (front aspect) left shin bone (tibia cut 6 x 0.2 x 1.8 c.m.) 14. 11 x 8.4 x 5.5 c.m. across the back of left knee and thigh. The collateral branches of political artery were severed. 15. 3 x 0.6 x 2.8 c.m., 2 c.m. below the right side of knee. Muscles and vessels severed. 16. 12.2 x 3.9 x 4.5 c.m. oblique along the inner aspect of left leg. Muscles and vessels severed 8.8 c.m. below knee. 17. 5.5 x 3.2 x 9 c.m. obliquely upwards in the calf muscle plane, exposing the bone on the left leg. 18. 14 x 3.8 x 4.2 c.m. along the left side of leg. Muscles and vessels severed. 19. 3 x 2.3 x 3.5 c.m., 3.3 c.m. above the middle of injury No.18.” Apart from that, there were several abraded contusions. These injuries show that this poor man was brutally murdered by a group of people. The doctor found that he died of multiple incised wounds. Injury Nos.1, 7, 8, 12 to 16 and 18 are sufficient, in the ordinary course either individually or in combination, to cause death. He also gave the opinion that all incised wounds can be caused by Mos 6, 7, 8, 10 and 11. Doctor also stated that injury Nos.1 to 5 and 13 could be caused by Mos 6 to 8. 8. He also gave the opinion that all incised wounds can be caused by Mos 6, 7, 8, 10 and 11. Doctor also stated that injury Nos.1 to 5 and 13 could be caused by Mos 6 to 8. 8. As regards A2 is concerned, the weapon alleged to have been used is MO18 which was recovered under Ext.P15 mahazar on the basis of the confession made by him to which attestors were PWs 14 and 15. Though PW14 denied having seen the recovery, he stated that he signed the mahazar. Even though PW15 earlier stated that he did not sign the mahazar, later, he stated that, PW14 was also present at the time of his signing the mahazar. Ext.P23 is the disclosure statement made by him which is an admissible evidence in view of section 27 of the Indian Evidence Act. On going through the evidence, we are of opinion that it is very clear that a group of people consisting of more than five persons attacked the deceased and he was brutally murdered. But in the dying declaration, only the name of A2 was mentioned and also stated that others were accompanying him. Presence of A2 was clearly spoken to by the eye witnesses. PWs 2, 4 and 5. PW1 as well as PW3 spoke about the motive for A2 only. Involvement of A2 in that unlawful assembly cannot be denied and he was carrying weapon. He participated in the unlawful assembly and the deceased was brutally murdered. It is true that the name of A3 was mentioned by PW2. But his name was not mentioned by PWs 4 and 5 and his name was not mentioned in the dying declaration or in the first information statement or in any other place. Similarly, PW5 mentioned about A10. Positive identification was done only with regard to A2. Therefore, it cannot be stated that involvement of A3, A5 and A9 is proved beyond doubt. It is submitted that it is not proved with precision that A2 struck the deceased with MO 18 pipes. MO18 is the G1 pipe recovered at the instance of A2. When several persons join together and assault a person definite role cannot be ascribed to each of the accused, but the accused should be identified. It is submitted that it is not proved with precision that A2 struck the deceased with MO 18 pipes. MO18 is the G1 pipe recovered at the instance of A2. When several persons join together and assault a person definite role cannot be ascribed to each of the accused, but the accused should be identified. (See: Dani Sing and others v. State of Bihar (2004 AIR SCW 3719) and Masalti v. State of UP (AIR 1965 SC 202). When presence of more than five persons with the common object of committing criminal act is established, merely because some of the accused were not clearly identified, application of section 149 cannot be rule out as held by the Apex Court in Ram Dular Rai and others v. State of Bihar (AIR 2004 SC 1043). Involvement of A2 in that unlawful assembly in murdering the deceased cannot be disputed. However, there is reasonable doubt regarding the identification of A3, A5 and A9. Others were acquitted by the Sessions Court and no appeal is filed by the State. In the above circumstances, we confirm the conviction and sentence of A2. The conviction and sentence of A3, A5 and A9 are set aside and they are acquitted. They should be set free immediately, if they are not required in connection with any other case. Crl. Appeal No.803/2003 is partly allowed and Crl. Appeal No.1386/2003 is allowed.