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2004 DIGILAW 609 (KER)

Manoj v. State Of Kerala

2004-12-03

M.RAMACHANDRAN, M.SASIDHARAN NAMBIAR

body2004
Judgment :- Ramachandran, J. Sessions Case No.97/01 on the file of the Additional Sessions Judge (Adhoc-I), Thalasserry, arose from Crime No.256/99 registered before the Panoor Police Station of Kannur District. By judgment dated 11-33-2004, the Sessions Judge had convicted all the five accused persons. Accused 1 to 5 were found guilty of forming an unlawful assembly arm3ed with deadly weapons with the common object of committing murder of deceased Pulinholikiuniyil Balan. They were found guilty of offence punishable under section 143 of the Indian Penal code. Finding that essential ingredients of section 147 also have been established by the prosecution as against them, they were found guilty under section 147 of the Indian Penal Code. Accused 1 to 3 were found guilty under section 148 of the IPC, but accused 4 and 5 were acquitted of the said allegations. Accused 1 to 3 were also found guilty of trespass leading to committing an offence punishable under section 449 of the IPC. The accused were not found guilty of having committed offence charged against them under section 120(B) read with sect8ion 149 IPC. As it was found that accused 4 and 5 have shared common object of committing murder of the deceased person along with A1 to A3, they are found guilty under section 302 read with section 149 of the Indian Penala Code. They were not found guilty under section 27 of the Arms Act. As a result, taking notice of the circumstance that accused were also accused (excepting A4) in various criminal offences and finding the antecedents, and their adopted life style of crime, the Court was of opinion that all of them deserve punishment warranted under sections 302, 143, 147, 148 and 449 of the Indian Penal Code. Accordingly they were sentenced to imprisonment for life with a fine of Rs.5,000/- each. Although they had been sentenced with lesser punishments on other different counts, sentences were to run concurrently. All the five appellants have joined together I filing the present appeal, under section 374(2) of the Code of Criminal Procedure. 2. Balan, who is the deceased, had his residence at Panoor, and during December, 1999, he had the company of 4 persons from Alappuzha, who were his paying guests. Other members of his family were residing away, along with his mother-in-law. He was the Mandalam Treasurer of the BJP a political party. 2. Balan, who is the deceased, had his residence at Panoor, and during December, 1999, he had the company of 4 persons from Alappuzha, who were his paying guests. Other members of his family were residing away, along with his mother-in-law. He was the Mandalam Treasurer of the BJP a political party. The prosecution case was that at 5.30 p.m. on 02-12-1999 Sri. Balan was attached by the accused with axe and choppers resulting in his untimely death. Hearing about the commotion, persons including PW1 and PW5 had come to his residence and they had taken steps for hospitalization through police help. It was a day of Harthal called by the BJP to protest the murder of one of their leaders, on the previous day. It appears that other attacks were also there, and the district Magistrate had issued prohibitory orders under section 144 of the Code of Criminal Procedure. The place was screwn with over one thousand police personnel. 3. Getting information from the hospital about the death of Balan, though he had come across with the brutality earlier, PW1, had given First Information Statement at Panoor Police Station at 7.30 p.m. First Information Report had been recorded thereon. The inquest was completed on 30-12-1999 and a scene mahazar is also seen prepared. The Crime Branch (CID) had been directed by the Government to take over the investigation and the charge had been laid on the basis of the report submitted by them, which led to the trial. 4. The first Information Statement did not specify the assailants; but names them as persons belonging to the communist Party of India (Marxist). On 24-01-2000 Ext.P15 report had been submitted, whereunder for the first time the names of the first and second accused were shown as persons who were responsible for the murder and they had been arrested on 25-01-2000. Accused 3, 4 and 5 were arrested on 23-02-2000 on the basis of Ext.P19 report of the same date submitted to the Magistrate. Recovery of MOs 1, 2 and 3 respectively were made on 24-12-1999 and 025-01-2000. MO1 had been recovered in connection with another crime from an abandoned field. The prosecution had examined twenty one witnesses. After recording section 313 statement, the charges had been amended incorporating a charge under section 120(B) of the IPC. Ultimate conviction was based on circumstantial evidence corroborated by the evidence of PW1 to PW5. MO1 had been recovered in connection with another crime from an abandoned field. The prosecution had examined twenty one witnesses. After recording section 313 statement, the charges had been amended incorporating a charge under section 120(B) of the IPC. Ultimate conviction was based on circumstantial evidence corroborated by the evidence of PW1 to PW5. 5. The main question is as to whether it has been possible for the prosecution to prove the charges. The appellants challenge the reasoning and findings in very strong terms. They also referred to lacuna in the investigation, charges, the discrepancy in the evidence, and especially relied on the alleged deliberate omission on the part of the prosecution in examining the crucial witnesses so as to throw light as to what really had happened. 6. The contentions raised by Mr. Madhusoodann, counsel appearing for the appellants, could be broadly classified as following: (i) The Court charges does not tally with the prosecution case, with particular reference to accused 4 and 5. (ii) It has not been possible for the prosecution to prove the complicity of accused 4 and 5 to the incidents, which thereby destroys the whole prosecution case. (iii) Natural witnesses had been deliberately withheld and it became difficult for the Court to come to conclusions with any definiteness. (iv) The basic evidence, in the form of dying declarations, could not have been acceptable by the standards prescribed for accepting it, so as to base a conviction. 7. The counsel also referred to the mistake committed by the Court in believing the testimony of chance witnesses, the imperfect manner in which recoveries had been made, as also other factors which would have shown that the prosecution was creating a case without any material support. 8. As against this the Public Prosecutor argued that such general criticism had come because of the desperate circumstance that sufficient evidence was made available to see that the accused were guilty of all the charges. He had referred to the unchallenged facts, the prudence and justification in accepting the dying declaration of the deceased, and the ring of honesty attached to the version of the prosecution witnesses. There was justification for not examining innumerous witnesses, and the inquest and recovery had been done in a legal manner and the weak links which might have been there was natural in a case which involved political intones. There was justification for not examining innumerous witnesses, and the inquest and recovery had been done in a legal manner and the weak links which might have been there was natural in a case which involved political intones. Therefore the attempt of the Court should always be to see that the version put up by the Prosecution, if supported by satisfactory evidence, and which had received acceptance by the Sessions Judge, was kept undisturbed. 9. The learned counsel for the appellants, by way of opening remarks, had taken us to the charge which had been framed by the Court as amended. It was framed and read over to the accused on 27-02-2004 and slightly modified on 04-08-2004. there is no procedural irregularity, b7ut we should observe that the charges as framed are in terms in the most pedestrian manner and do not at all conform to the requirements of section 211 of the Code of Criminal Procedure. But that is not the criticism highlighted. 10. Mr. Madhusoodanan had pointed out that the charge as framed materially affected the defence, as the prosecution case was that only A1 to A3 had ever visited the spot. A4 and A5 had withdrawn quite some time back which was directly contradictory to the charges framed by the Court. We may examine the above, in the light of the further submissions that are made. 11. There are five accused persons and the Court has laid the charge as against them in the following words: It is seen from the documents, which have been produced by the prosecution, that at about 5.30 p.m. on 2nd December, 1999 you, who are sympathizers of CPI (M), had conspired and unlawfully formed an assembly with the intention and preparation for causing the death of Pulitholikuniyil Balan, who is a retired Postman and a follower of BJP, had trespassed into the house of Balan and had caused his death, by inflicting wounds on him by using deadly weapons (hand bomb axe, chopper) in different parts of his body. Since your above acts are in violation of sections 143, 147, 148, 149 of the IPC and section 27 of the Arms Act and liable to be punished, and since the acts committed here occurred within the jurisdiction of this Court, you are informed that this Court will try you before this court, for the said offences. [Functional translation from Malayalam]. 12. [Functional translation from Malayalam]. 12. The principal argument of the appellants’ counsel is with reference to the sustainability of the charge. In the chief examination of PW2, he refers to an incident wherein he had seen accused 1 to 5 near the unfinished house of one Ashraf in the company of certain others. They were armed. He had stealthily watched them and had seen them proceeding towards the house of the deceased almost in a procession. But he had heard an explosion, as coming from the detonation of a cracker and soon thereafter saw the 5th accused driving an autorickshaw in which the 4th accused was sitting with blood on his body. They were going towards Thalasserry side. This evidence having come in chief examination, the counsel points out that it has to be accepted in toto. The site plan would show that Thalassery was in the opposite direction, away from the residence of the deceased. This, he submits, results in a position, that after the alleged meeting, because of an explosion, two of the persons at least had withdrawn and had gone away from the site. Therefore, Mr. Madhusoodanan submits that charges framed by the Court was an impossibility as even the possibility of they being in the spot has to be overruled. 13. This position has not been satisfactorily explained by the prosecution. If, according to the version of the prosecution, two persons had left even before the incident of trespass, it would have been improbable to allege that A1 to A5 committed trespass. Perhaps it would have been the suggestion of the prosecution that several others were also involved and after the departure of A4 and A5, there were still persons to constitute an unlawful assembly, who had trespassed, but the charges laid are definite that the said five persons alone had entered into the house of the deceased. There appears to be a very serious omission or comprehension. The circumstance has not been explained, which ultimately was to affect the very charge. There is no case for the prosecution that the explosion or the transporting of the victim of the explosion had taken place after the alleged stabbing. If we examine the sequence of the evidence, spoken to by PW2, it is unequivocal that the said incident took place at 5.17 p.m. or 5.18 p.m. 14. There is no case for the prosecution that the explosion or the transporting of the victim of the explosion had taken place after the alleged stabbing. If we examine the sequence of the evidence, spoken to by PW2, it is unequivocal that the said incident took place at 5.17 p.m. or 5.18 p.m. 14. Naturally, the question arises whether there was an unlawful assembly present at the scene so as to share the guilt and commission of offence as coming under sections 147 and 149. Counsel refers to the decisions of the Supreme Court to indicate that presence of a person at the scene is mandatory so as to bind him as part of an unlawful assembly, as envisaged by the section. The commission of offence is one of causing death of Balan, that took place at this residence according to the prosecution, immediately after 5.30 p.m. Under section 149 of the Indian Penal Code, if an offence is committed by any member of an unlawful assembly in Prosecution of a common object of that assembly, every person who, at the time of committing that offence, if a member of the assembly, is guilty of that offence. We may refer to the decision reported in AIR 1974 SC 1228 [Nawab Ali v. State of U.P]. The Court was examining an incident where the accused had left the assembly before the commission of the offence. It had been held that as he had left the congregation, he cannot be made vicariously liable as the ingredients of section 149 was absent so far as he is concerned. 15. Counsel also referred to a decision in Badruddin v. State of Maharashtra [AIR 1981 SC 1223]. There, one of the persons who assembled outside the premises of the deceased, had challenged him to come out. Murder was committed after dragging the victim out and carrying him away to another place. One of the members of the unlawful assembly till the deceased was dragged out of the house had not participated in what followed at a different location. The court held that he was no more member of the unlawful assembly. Advertence was also made to the decision in Kotta Prakasahan v. State of Kerala [AIR 1998 SC 1521]. One of the members of the unlawful assembly till the deceased was dragged out of the house had not participated in what followed at a different location. The court held that he was no more member of the unlawful assembly. Advertence was also made to the decision in Kotta Prakasahan v. State of Kerala [AIR 1998 SC 1521]. The Supreme Court held that for holding a person vicariouslyliable under section 149 of the IPC fir a particular offence committed by an unlawful assembly, it has to be conclusively proved that he was a member of the unlawful he was a member of the unlawful assembly at the time of commission of that offence. It has been clarified that if the person arraigned ceases to be a member of an unlawful assembly before commission of the offence, he cannot be held liable for the offence with the aid of section 149 IPC. 16. The situation is almost identical here. It is difficult to concur with the views of the Sessions Judge that five persons belonging to an unlawful assembly had been there at the time of commission of the offence. 17. The resultant position, according to the appellants, is that the departure of the 4th and 5th accused from the scene of the alleged incident has been conceded. Unless they could be connected directly with the incident, it may not be fair to faster liability on them, as observed by the Supreme Court in Bhupesh Deb v. State of Tripura [AIR 1978 SC 1972]. Divergent set of allegations inheritably makes the prosecution case unreliable. In fact, the Court has gone to the extent of declaring it as not maintainable, since prejudice is caused to the accuse, who are presumed to be not guilty unless otherwise proved. It is stated that although this was a case under the Prevention of Corruption Act, the principle that such circumstance may prejudice the defence has to be accepted. 18. This error in framing of the charge in the present case is therefore vitiated and corrodes the edifice of prosecution. The Public Prosecutor although refers the contention and argument as hypertechnical, we have reservations to accept the said stand. 18. This error in framing of the charge in the present case is therefore vitiated and corrodes the edifice of prosecution. The Public Prosecutor although refers the contention and argument as hypertechnical, we have reservations to accept the said stand. When the charge states that all the five accused had entered the premises of the deceased, and when the prosecution confine the case as about the entry of three persons alone, the confusion is enormous and cuts at the root of the credibility of the allegation. Only on precise and definite charges the edifice of the case could be built up. 19. The second aspect dealt with by the learned counsel for the appellants was about the quality of evidence that had been let in. He says that for reasons unknown the attempt was to place materials so as to make it appear that it was a case where there was only circumstantial evidence and conviction could have been possible to e made on the materials so placed. Mr. Madhusoodanan submits that it was not so. According to him, as could be gatherable from the wealth of materials that were there, direct evidence was available, and only for prejudicing the named accused individuals, the twist is introduced. It was not as if eye witnesses were available at all. Particular reference is made to the statement of CW7 (Sulaiman) and the version of CW8 (Shmna). They could have shed light to dark areas. According to the prosecution, they were not in close proximity, nor very near the scene and perhaps had not sent the incident. The Public Prosecutor points out that as much as 18 persons, who could have fared as witnesses have been given up, after a careful examination of their stand. Granted, the prosecution has the discretion to examine a particular witness or let him off. But, when a criticism is raised, an objective assessment of the situation becomes absolutely relevant. Even according to PW1 and PW5, Sri. Sulaiman, referred to earlier, who was living with the deceased for a number of months, could have supplied the best evidence. He could have identified the assailants. He knew the locality and the persons of the village. But, when a criticism is raised, an objective assessment of the situation becomes absolutely relevant. Even according to PW1 and PW5, Sri. Sulaiman, referred to earlier, who was living with the deceased for a number of months, could have supplied the best evidence. He could have identified the assailants. He knew the locality and the persons of the village. We have therefore to gather that the said witnesses have been withheld as they would have, perhaps spoken against the version of the prosecution that the accused were the persons who were present at the spot on the day. 20. Of course, we take notice of the stand of the prosecution that CW7, belonged to Alappuzha and he was not conversant of the name of any of the assailants. However there is no explanation as to why an identification parade was not held. Since the defence had arrayed arguments, doubting the presence of PW2 and PW3 in the vicinity, the corroboration would have added strength to the version. Prosecution has a stand that CW8 was a minor at the time of incident and her testimony could have been of no value. But, here also, the stand appears to be brittle. 21. Resultantly, there is no direct eye witness about the incident and the most that has been spoken to comes from PW3 alone. It is about the presence of accused 1 to 3 near about the scene, immediately after the incident. In fact, that is the reason why circumstantial evidence, including the dying declaration, is sought to be given importance. Notwithstanding the criticism, the prosecution alone has the discretion to adopt the procedure, which they think might be the course to be followed. 22. If that be the case, we have to put the circumstances to most stringent, if not an acid test, and may examine the effort made in this behalf, so as to see whether they have been successful. We may advert to, rather in detail, about the possibility and probability of a dying declaration and as to whether it could have been acceptable as positive proof to come to a conclusion that accused had been guilty as alleged by the prosecution. 23. For this purpose, we may scan the First Information Statement and other records, including the inquest report. 23. For this purpose, we may scan the First Information Statement and other records, including the inquest report. Even according to the court charge, the issue involves political intones and we have to be careful while adverting to the cumulative circumstances as gatherable from the submissi9ons that had been made by the appellants as also prosecution. 24. Ext.P1 is the First Information Statement. It is recorded as given at 7.30 p.m. On 02-12-1999 by Suresh Babu. Mr. Babu is PW1 and he is closely related to deceased Balan. According to him, he is the Headmaster of a U.P. School and his uncle Balan had been murdered during the evening of the day. According to him, he is residing about 100 meters away from the house of his uncle. Immediately after 5.30 p.m. he saw people running towards his uncle’s house shouting that something untoward had happened there. He also went there and had found his uncle lying on his back on the cot inside the house with injuries on the head, face, hands et. In the statement, he also referred to the presence of four outsiders, who belonged to Alappuzha, usually engaged in the manufacture of soap. He had asked them for details and he was informed that about 10 persons at about 5.30 p.m. had come inside with sword, chopper etc., and had struck the deceased and had sped away. He further stated that as there was no vehicle available, he had informed the police and police had taken his uncle to the Thalassery Government Hospital. Later on, he was informed about the death of his uncle through a telephone call. He stated that the miscreants belong to CPI (M). He was definite that because of political enmity, his uncle being a BJP sympathizer, had away with. He said that the residents had disclosed to him that they could recognize the miscreants. 25. More importantly, there is nothing in the First Information Statement to disclose that there was occasion for the deceased to tell anything to him, or make a dying declaration in his presence. If, as a matter of fact, such a declaration had been made, appellants point out that normally this would have formed part of the statement, and would have attracted credibility. If, as a matter of fact, such a declaration had been made, appellants point out that normally this would have formed part of the statement, and would have attracted credibility. Pointing out the above, counsel for the appellants argues that at is a strong circumstance to show that a story of dying declaration might have been an interpolation. Even in the statement, he did not refer to any names, whom he suspected, and this would not have been the conduct, had he been divulged the names by the deceased. Mr. Babu, as PW1, had referred to the dying declaration in his deposition before the Court, but the circumstance glares at him and the credibility of his testimony, at least on this crucial point. 26. The other witness, who had referred to the dying declaration, is PW5. He is Suryakumar. He states that deceased was his uncle and PW1 is his brother. After taking lunch on the day of the incident, Balan had gone to his own residence. The witness had heard about the commotion at about 5.30 p.m. on 02-12-1999. He says that he got information from the soap makers, who shared residence along with his uncle. The above persons had seen 5 to 8 persons going inside the house with weapons. On reaching the place of incident, he had seen PW3 Mohanan and had seen his uncle lying on a cot with injuries all over his body. According to him, he asked his uncle, who had done this, and his uncle had told him that it had been done by A1 to A3. Along with his brother, he had stepped out and had taken initiative for hospitalization. He had gone to the hospital in the police vehicle. As he was told by the doctor that Balan had died, he had passed on the information to his brother over phone and required him to lodge a complaint to the police. 27. However, it has not been possible for him to explain as to why in the inquest report prepared he had not referred to an incident where a dying declaration was made by the deceased. Ext.P5 is the inquest report. In the report, he has stated that the deceased was his uncle and was the Treasurer of the Mandalam BJP Unit and during the days, was mostly confined to his house being unwell. Ext.P5 is the inquest report. In the report, he has stated that the deceased was his uncle and was the Treasurer of the Mandalam BJP Unit and during the days, was mostly confined to his house being unwell. He refers to about 10 persons, who were CPI(M) workers, who had trespassed into the house, and coming to know of the attack, had taken steps to admit deceased to the hospital. There is a definite is a definite statement made by him that he did not know who all were CPI (M) members who had participated in the attack. 28. We feel that this also has to be taken serious notice of. According to the counsel for the appellants, as at least on the following day names told over to him would have been fresh in his memory if at all a dying declaration was made. The names of the assailants would have been at the tip of his tongue. It is also pertinent to note that the exact words, that are alleged to have been made by deceased Balan have not been repeated. 29. According to the Prosecution, only two persons as above had heard the dying declaration. Counsel for the appellants points out the circumstance that this would have been highly improbable, for more than one reasons. The first, according to him, is that the injuries that had been sustained by the deceased were so grave that he would have lost senses, thus in capacitating him to give any sensible statement, because of the loss of blood. According to him, the evidence of the medical attendant also is important in this regard, since he could not emphatically say that the deceased might have been capable of giving any answers, and even if there was an omission by the police to note down the submission of PW5 about the alleged dying declaration, the evidence of PW4 was sufficient to throw doubts. Further, he refers to the presence of PW3 in the close vicinity and the statement of PW5 that several persons were in the scene present in the house after the incident. There was no suggestion by the prosecution that PW1 and PW5 had asked others to get out of the room so as to facilitate their uncle to speak to them. They were not the first to arrive, and conduct as suggested was against normal course of events. There was no suggestion by the prosecution that PW1 and PW5 had asked others to get out of the room so as to facilitate their uncle to speak to them. They were not the first to arrive, and conduct as suggested was against normal course of events. Thus, if at all there was any declaration that would have been heard by others, whose presence cannot be doubted. Therefore, the circumstances, according to him, very well indicated that there was no possibility of any dying declaration and it would have been dangerous, if not atrocious, to enter a finding of guilt on the basis of such a statement. 30. Mr. Madhusoodanan had invited our attention to a few decisions of the Supreme Court dealing with such circumstance. The Supreme Court had held that two days delay in informing about the dying declaration, for that reaso0n, made in unacceptable as it would have been positively difficult to accept such a version so as to implicate a person. Reference was made to the decision reported in AIR 1994 ASC 464 (Ramsai v. State of M.P). In the present case, the story of dying declaration was highly belated and therefore was highly unacceptable. He submits that especially in a case where political involvement of persons was alleged, a dying declaration should have been accepted with the utmost care and caution. Advertence was also made to the decision in Chacko v. State of Kerala [AIR 2003 SC 265]. It was a case where there was no reference to any dying declaration at the earliest point of time, and the court had found the circumstance suspicious. The counsel also argued that unless the doctor certified the capacity of the persons as capable of giving a dying declaration it could not have been acceptable, so as to incriminate persons. This argument was relying on the observations made in the decision in Paparambaka Rosamma v. State of Andhra Pradesh [AIR 1999 SC 3455]. It was a case where a person had given a declaration to the Magistrate, but the doctors had not certified that the injured was in a fit state of mind at the time of making declaration. The Court had held that opinion by Magistrate recording declaration that injured was in a fit stage of mind cannot be relied on, since the subjective satisfaction of the Magistrate was insufficient. The Court had held that opinion by Magistrate recording declaration that injured was in a fit stage of mind cannot be relied on, since the subjective satisfaction of the Magistrate was insufficient. It was a circumstance where the doctor had requested the Magistrate to come, and the doctor had stated that patient was conscious while recording the statement. The counsel pointed out the standard of strictness which was attached to a declaration was too fastidious. 31. The prosecution however submits that a dying declaration was a solemn statement given at a point of time when a person who had no hope of remaining alive and in the present case corroborations by two nephews would have been acceptable. The reason pointed out was that it is only natural that the victim and his close relatives would be anxious that the real culprits are booked and innocent persons may not be punished. They had have no axe to grind. 32. However, for this reason alone it would be unsafe to rely on the testimony, since it has come out that there is political enmity, which resulted in the whole incident, and even if the deceased might have been capable of giving a dying declaration, the version coming from him could not have been accepted without a strong corroboration. The deceased had received a cut injury on his upper lip as could be seen from Ext.P3 Postmortem certificate. He was sick, and the other injuries were inflicted by the miscreants, devilishly. The version of a declaration had not come at the earliest expected stage. There was a strong dose of misunderstood political flavour. For all these reasons, we have to come to finding that the dying declaration attributed to the deceased was unacceptable. 33. If the evidence about the dying declaration become doubtful, very little remains as circumstances capable of implicating the accused. A4 and A5t were not available at the scene and the enquiry has to be confined with reference to accused 1 to3. What we have is only the evidence of PW1, PW2, PW3 and PW5. A perusal of the evidence of oPW1 and PW5 indicated that they had not witnessed anything, nor had seen the assailants and whatever information that had been given to hem has been supplied by the outsiders. If that be so, we are left with the evidence of PW2 and PW3. A perusal of the evidence of oPW1 and PW5 indicated that they had not witnessed anything, nor had seen the assailants and whatever information that had been given to hem has been supplied by the outsiders. If that be so, we are left with the evidence of PW2 and PW3. In fact, the prosecution had been relying on their evidence principally to show about the existence of an unlawful assembly and if it is found that accused 1 to 3 could not have been treated as members of unlawful assembly at the time of incident, inside the house of the deceased, their respective role in the process of inflicting the injuries are to be substantiated beyond any shadow of doubt. Here also the evidence is scanty and the prosecution has no case that anybody had witnessed the assault. 34. We my examine the deposition of PW2, at the first instance. He has the avocation of sweet making. On the date of incident, he had gone tot eh house of the carpenter in connection with the house construction of his friend Ramesan. On his way, he had seen the five accused and few others near the house of Ashraf. After about two minutes of seeing them, they started walking with weapons and carrying a packet. Shortly thereafter, while reaching near the shop of Swamidas he heard the sound of a cracker and two minutes thereafter he saw A4 and A5 traveling in an autorickshaw. He had thereafter gone to the house of Murali, and came to know the bad news, while he was there. In the cross examination, he had stated that he had disclosed his information about the assembly on the following day, but had given a statement only after a week. The suggestion in the cross examination was that he might not have come there at all and it was impossible for him to see any person, as suggested, situated as he was. Excepting the claim about the presence of A1 to A3, since the witness had not gone to the place of occurrence nothing more could have been possible to be found in the deposition than the above, to support the prosecution case. 35. The only other witness, who attempted to contribute to the prosecution’s version was PW3. Excepting the claim about the presence of A1 to A3, since the witness had not gone to the place of occurrence nothing more could have been possible to be found in the deposition than the above, to support the prosecution case. 35. The only other witness, who attempted to contribute to the prosecution’s version was PW3. According to him, he, a building worker, had gone to the Veterinary Doctor at about 5 p.m. and while he was near about the house of Balan, he heard sounds of commotion from there, people were running here and there. According to him he had seen about 5 to 3 persons getting out of the house of Balan with weapons. He had seen A3 with an axe, on which there was blood. He has also seen the first and second accused and they were having choppers with them. He had hidden himself and they were all walking westwards. He had thereafter rushed to house of Balan and nobody was there. He had seen Balan with injuries all over his body and Balan was making grunting sounds. He had ran out and was having idea to inform PW1, but by that time they had come and had gone inside the house. They had come back and PW1 had gone inside the house. They had come back and PW1 had gone for getting a vehicle. He had duly gone to the Veterinary Doctor and thereafter gone back home. He had identified accused 1 to 3 and had identified the weapons as well. In the cross examination he deposes that he had given a statement after one week of the incident. He was sympathizer of BJP. There were cases against him and he had been arrested by the police. He had close contact with deceased Balan as he was looking after his properties. He had gone there in connection with the delivery of goat to see the Veterinary Doctor. He had admitted that before he entered the house, there were people running here and there. Contradictions were highlighted as between his earlier statements given. If we go by the version of the said witness, it will have to be assumed that he had identified at least three persons with blood smeared weapons, who had walked away. But, he had hidden himself and had come to the scene only thereafter. 36. Contradictions were highlighted as between his earlier statements given. If we go by the version of the said witness, it will have to be assumed that he had identified at least three persons with blood smeared weapons, who had walked away. But, he had hidden himself and had come to the scene only thereafter. 36. As we see it, even going by his version, he would not have been in a position to explain the individual role of the accused, as according to him there was an attack by a group. He says that there were 5 to 8 persons involved. 37. Circumstances highlighted by the appellants compel us to assume that it will be unsafe to go by his testimony alone. Firstly, this is because he is a chance witness and normally could not have been there at the time of the incident. Secondly, he had given a statement days after the incident, which may render his testimony highly suspicious. Thirdly, he admits of a political stand diametrically opposite to that of the accused. Fourthly, it has not been possible for one prosecution to explain his movements. He had seen persons running here and there and they are persons other than the accused and their supporters obviously. He had heard about a the commotion and obviously he was not the first person, who had reached the spot. Others were already there, who had been aware of the incident. He might have reached the spot after about a couple of minutes after the incident, since after hearing about the atrocity, PW1 and PW5, who were more 100 to 150 meters away in the first floor of their house, had been given information and they had already set out and were reaching the house of the deceased close by that he had not sent he presence of the accused with weapons. There is no hiding place, as claimed by him, the appellants submit. The number of assailants given does not tally with the prosecution case. 38. The presence of a chance witness and his version about a crime have to be subjected to extra scrutiny. Reference may be made to the decision of the Supreme Court in Jagdish Prasad v. State of M.P. [AIR 1994 SC 1250]. A further sieving is required when there is allegation that the witness might be on inimical terms with the accused. Reference may be made to the decision of the Supreme Court in Jagdish Prasad v. State of M.P. [AIR 1994 SC 1250]. A further sieving is required when there is allegation that the witness might be on inimical terms with the accused. The cited case was one of political murder. Of course, if the name of the witness was there in the first Information Report or in contemporaneous documents, it would have made a difference but that is not the case here [see also State of U.P. v. Roop Singh [AIR 1996 SC 215] and State of Punjab v. Suraj Ram [AIR 1995 SC 2413]. Version of PW3 is that though he was a close associate of the deceased, after being there, he simply walked home without helping the deceased for hospitalization. As suggested by the appellants, it could not be taken as acceptable to normal conduct. 39. Of course, we are not unmindful of the contention of the learned Public Prosecutor that a chance witness is a misnomer and the intrinsic strength of the testimony alone has to be noticed. This is a proposition based on the observations made by the Supreme Court in Rana Partap v. State of Haryana [1993 SCC (Cri) 601]. But the political connection makes it difficult for us to convince ourselves that what had been stated by the witness is sufficient for basing conviction. 40. The case of the prosecution about the presence of A1 to A3, and the dying declaration involving them can be subjected to probe, a second time, while we are testing the testimony of PW3. According to the said witness, he had seen them, with blood smeared weapons, hiding himself. He states that Police had come and the injured was removed in a Jeep. PW1 had not accompanied Balan. Therefore, both of them were in the premises of the house for at least a little time and there was opportunity for reminiscence. It was probable that they would have compared their notes, as they appear to be close acquaintances. If names of A1 to A3 were disclosed in the dying declaration, this would have been told to PW3, when he had claimed that of the assailants A1 to A3 were known to him. It was improbable, not to have a discussion at that time. If names of A1 to A3 were disclosed in the dying declaration, this would have been told to PW3, when he had claimed that of the assailants A1 to A3 were known to him. It was improbable, not to have a discussion at that time. But notwithstanding these, while F.I. Statement was given after about an hour, no names were divulged or a statement given about the dying declaration. Therefore, the version of PW3 becomes unreliable, about his claim of having seen A1 to A3. The criticism that he is a chance witness, or even a planted witness cannot altogether be ignored. 41. At this point, we may also examine as to what prompted the Sessions Judge to come to his conclusions. After referring to the political scenario of murders and counter murders in the area, the Court has observed, in paragraph 28 of the judgment, as following: “This is a crime in which one politician was murdered by followers of rival political party. Ordinary civilized villagers may not involve themselves in giving the evidence like the case in hand. Naturally they would withdraw both from the victim’s side and the assailants. They do not like to come to the Court unless it is inevitable though they have any kind of interest. One cannot be ignored the above said handica0p with which the investigating agency even if acted in good faith in discharging his duty. Here in the instant case what is available is evidence led by the relatives and interested witnesses. It is quite natural upon the said factors that only interested or relative of a deceased would come to the court for unfolding the fact they knew. In the said backdrop let us see how far the relative and interested witnesses examined in this case are found reliable or trustworthy?” 42. Possibly, a relaxed approach is advocated. We disagree. The punishment curtails the civil liberty of an individual, and whatever be the backdrop, the investigating agency, and the prosecution have to make available unflinching evidence, for bringing about a conviction. We cannot water down the requirement for proper evidence. This thread of adoption of relaxed standard is evident all through out the discussions, and we feel this might not at all be the yardstick. We cannot water down the requirement for proper evidence. This thread of adoption of relaxed standard is evident all through out the discussions, and we feel this might not at all be the yardstick. We are also expressing our opinion taking note of the observations made by the learned Judge in paragraph 49, wherein he had referred to the possible improvements and contradictions made by the witnesses, but had chosen to ignore them. 43. The Judge had adverted to the case of the defence that material witnesses were kept back, but opted to rely on the observations of the Supreme Court in Banti alias Guddu v. State of Madhya Pradesh [AIR 2004 SC 261] wherein it had been held that the discretion was vested in them. But the point urged by the accused however was different, viz., that when eye witnesses were found as available, instead the attempt was to resort to the held of circumstantial evidence. According to us, for whatever reasons, the best evidence has not been made available, and it was at the risk of the prosecution. 44. We are of the opinion that the finding in paragraph 51 of the judgment, about the unlawful assembly is not supported by any evidence. PW2 had no case that he overheard them. Therefore, it would have been unthinkable to conclude that they had brewed a plan to murder the deceased person. After finding that at least two of them had withdrawn, perhaps for obtaining medical assistance, it may be uncharitable to assume that there still was an unlawful assembly, there was no evidence to show the presence of more than three. His finding in paragraph 53 was that: “Being found that A4 A5 not used any force or violence so as to attract Se.148. A4 and A5 are found not guilty of committing the offence punishable u/s 148 IPC.” Thereafter, finding about unlawful assembly was unwarranted. The dictum in AIR 1989 SC 754 [Lalji and others v. State of U.P], although referred to by him, it has not been properly appreciated. The finding of the motive [paragraph 56] also was haphazard, and not convincing. Political polarization as between individuals, ipso facto not constitute motive for liquidation. 45. A conviction shall always stand on a firm footing, and the charge has to be proved against the accused beyond all reasonable doubt. The finding of the motive [paragraph 56] also was haphazard, and not convincing. Political polarization as between individuals, ipso facto not constitute motive for liquidation. 45. A conviction shall always stand on a firm footing, and the charge has to be proved against the accused beyond all reasonable doubt. Examining the evidence that is with us, we have to hold that the prosecution has not been able to discharge its duty. Accordingly, we hold that the appellants are entitled to acquittal. 46. The political climate made available in the Kannur District by a few militants were shameful to the whole State, a State which boasted of one hundred percent literacy. Fortunately, they have now found the futility of the pursuits of the above nature, we may hope. A Court cannot just ignore the possibility of accusation against prominent fire brands of the rival group, even though the individual concerned might not have participated in the named atrocity. The assailants might have been imported so as to mislead one and all, and the accused possibly might have been behind assaults committed at different places. The human brain is capable of brewing up and executing inhuman acts, and the cleverness exhibited will be unimaginable. These are all probabilities. The evidence has to be sifted, and the circumstances against the accused have to be subjected to extra scrutiny, so as to enter into a finding as about the guilt of the person charged for the specific offence. These are limitations prescribed by the law of land. Of course, this poses challenge to the investigative machinery, but a Court of Law cannot be a party to a suggestion that rig4orous standards are to be lowered. 47. We find that the prosecution has not been able to prove the charges against the accused satisfactorily. The appellants are to be released forthwith, if their custody is not required in connection with any other proceedings. Criminal Appeal is allowed.