Research › Search › Judgment

Kerala High Court · body

2005 DIGILAW 19 (KER)

Kelu Nair v. State of Kerala

2005-01-11

M.SASIDHARAN NAMBIAR

body2005
ORDER M. Sasidharan Nambiar, J. 1. Accused 1, 3, 4 and 6 in C. C. 48/90 on the file of Judicial First Class Magistrate, Kasaragod who were appellants 1, 3, 4 and 6 in Crl. A. 21/94 on the file of Sessions Court, Kasaragod are the revision petitioners. They are challenging the conviction and sentence passed by the learned Magistrate as confirmed by the learned Sessions Judge. Including the revision petitioners 11 accused were charge sheeted by the Sub Inspector of Police, Adhoor for the offences under S.143, 147, 148, 341, 427 and 326 read with S.149 of IPC. The 7th accused absconded and therefore only the remaining 10 accused were tried by the learned Magistrate. The charge against them was that they were all members of an unlawful assembly and the common object of the assembly was to cause grievous hurt with dangerous weapons to PW 5. He was the accused in the murder of Krishnan Nair, the brother of the revision petitioners 1 to 3. The prosecution case was that in compliance with the conditions of bail granted to PW 5, he had to appear before the Circle Inspector of Police, Kasargod on every Sunday and PW 5 was returning back from the Circle Inspector's Office on 23-7-99. When he got down from the bus at Vannachadavu, all the accused were waiting for him in furtherance of the common object of the unlawful assembly and finding them PW 5 ran towards his house followed by the accused who were armed with dangerous weapons like knives and the sticks. PW 5 ran towards the house of PW 3 and though he got into the house by the accused and they brought him to the road and some of the accused caught hold of his neck and others the legs and made him lie on the road and thereafter inflicted grievous injuries with the knife and sticks and thereby committed the offences. It was further alleged that when PW 5 cried, hearing the cry his mother PW 1 Narayani rushed to the spot from her house and she was also attacked by the accused and they inflicted injuries on her with knife and thereafter the accused threw stones at the house of PW 1 and 5 and destroyed several tiles and then disbursed from the spot. PW 6 Kunhiraman Nair, the father of PW 5, reached the spot and he took them first to the Government Hospital, Kasaragod from where PW 9 the doctor examined PW 5 and PW 1 and prepared Exts. P6 and P7 wound certificates and thereafter referred them to Wenlock Hospital, Mangalore from where PW 7, the doctor examined them at 7 p.m. and prepared Exts. P2 and P3 wound certificates and treated them as inpatients. Intimation was sent from the Wenlock Hospital, Mangalore to Pandeshwar Police Station, Mangalore from where it was informed over phone to Adhoor Police Station and the original intimation was sent by post separately. PW 10, the Head Constable went to Wenlock Hospital, Mangalore and recorded Ext. P1 First Information Statement of PW 5 and on returning back to the Police Station prepared Ext. P8 First Information Report and registered Crime 98/89 of that Police Station, PW 11, the Sub Inspector conducted the investigation including preparation of Ext. P4 scene mahazar and seizure of MO 1 and 2 dresses worn by PW 5 at the time of the incident and seizure of MO 3, series of stones and pieces of tiles at the time of preparing Ext. P4 scene mahazar and laid the charge. All the accused pleaded not guilty before the learned Magistrate. Prosecution examined 11 witnesses and got marked Exts. P1 to P10 and got identified Mos. 1 to 3. On the side of the defence, DWs 1 and 2 were examined. On this evidence, the learned Magistrate found accused 1 to 6 and 8 to 11 guilty of the offences and convicted and sentenced them which was challenged before the Sessions Court, Trivandrum. The learned Sessions Judge reappreciated and reevaluated the entire evidence and found that though PW 1 was relied upon by the learned Magistrate, it is not sage to rely on her evidence. But the evidence of PW 5 could be relied on though not fully but partly. The learned Sessions Judge finding that PW 5 had named the revision petitioners as the assailants to PW 7, the doctor who recorded it in Ext. P2, held that the evidence of PW 5 as against the revision petitioners could be relied on and the prosecution case as against the other accused was not proved. Therefore the conviction of accused 2, 5 and 8 to 11 were set aside and they were acquitted. P2, held that the evidence of PW 5 as against the revision petitioners could be relied on and the prosecution case as against the other accused was not proved. Therefore the conviction of accused 2, 5 and 8 to 11 were set aside and they were acquitted. The learned Sessions Judge found that though revision petitioners were numbers of the unlawful assembly only the first petitioners was armed with dangerous weapon and therefore he alone could be convicted for the offence under S.148 of IPC. The learned Sessions Judge also found that all the revision petitioners were guilty of the offences under S.143, 147, 341 and 427 read with S.149 and S.326 read with S.149 of IPC. The learned Sessions Judge therefore partly allowed the appeal and while acquitting accused 2, 5 and 8 to 11 convicted the revision petitioners confirming the sentence passed by the learned Magistrate for the offence under S.143, 147, 341, 427 and 326 read with S.149 of IPC. The conviction of petitioners 2 to 4 for the offence under S.148 IPC was set aside and the conviction and sentence passed by the learned Magistrate as against the first petitioner was confirmed. This judgment is being challenged by accused 1, 3, 4 and 6 in this revision. 2. Revision petitioners would contend that though there were 11 accused, 6 accused were already acquitted by the learned Sessions Judge and the absconding 7th accused was subsequently apprehended and tried by the learned Magistrate and was also acquitted and therefore the conviction of the revision petitioners with the aid of S.149 of IPC is unsustainable as the four revision petitioners themselves constitute an unlawful assembly. It is therefore contended that the very conviction is unsustainable. They also contended that the learned Sessions Judge should not have convicted the revision petitioners when the subtraction of the prosecution case was disbelieved and the Sessions Court is not entitled to reconstruct a new case when the prosecution case is found to be unbelievable and therefore the conviction is bad in law. They also contended that the learned Sessions Judge should not have convicted the revision petitioners when the subtraction of the prosecution case was disbelieved and the Sessions Court is not entitled to reconstruct a new case when the prosecution case is found to be unbelievable and therefore the conviction is bad in law. It was also contended that the learned Sessions Judge should have noted that the witnesses and the petitioners are on bitter enmity for the last several years and therefore the petitioners are falsely implicated and the First Information is a belated and fabricated document and though the incident took place on 23-7-89 at 2 p.m. it was recorded only on 9 p.m. on the next day and the delay was not explained and it reached the court only after four days and therefore the court should not have relied on the first information to corroborate the evidence of PW 5 and on the evidence the court below should have acquitted all the petitioners. 3. Heard Advocate Sri. M. K. Damodaran, learned counsel appearing for the revision petitioners and the Public Prosecutor. 4. Advocate Sri. M. K. Damodaran vehemently argued that though the evidence of PW 1, the mother of PW 5 was relied on by the learned Magistrate, the learned Sessions Judge on reappreciation of the evidence found her evidence unreliable and therefore the solitary evidence available for prosecution was that of PW 5. It was further argued that the learned Sessions Judge found the evidence of PW 5 also unreliable and convicted the petitioners only the basis that their names were mentioned by PW 5 to PW 7, the doctor and the learned Sessions Judge omitted to take note of the fact that PW 5 had no consistent case and no overt act was alleged against the second petitioner and the only overt act alleged against the 4th petitioner was that he pushed PW 1 and therefore the statement of PW 5 to PW 7 recorded in Ext. P2 should not have been used to convict the petitioners. It was also argued that the learned Sessions Judge should not have relied on Ext. P1 First Information Statement after finding that it was vitiated as it was delayed and reached the court after two days and the delay remained unexplained, Advocate Sri. P2 should not have been used to convict the petitioners. It was also argued that the learned Sessions Judge should not have relied on Ext. P1 First Information Statement after finding that it was vitiated as it was delayed and reached the court after two days and the delay remained unexplained, Advocate Sri. M. K. Damodaran also argued that all the petitioners were charged for the offences with the aid of S.149 of IPC and when the learned Sessions Judge found that only 4 accused were members of the assailants team, their conviction with the aid of S.149 of IPC is legally unsustainable. It was also argued that in the absence of a finding that apart from the petitioners some other known or unknown accused were also members of the assembly, petitioners themselves will not constitute an unlawful assembly and therefore their conviction is legally untenable. Relying on the decisions reported in Amar Singh v. State of Punjab ( AIR 1987 SC 826 ), Krishna v. State of Maharashtra ( AIR 1963 SC 1413 ), Nagamalleswara Rao v. State of Andhra Pradesh (1991 SCC (Cri.) 564), Marudanal Augusti v. State of Kerala (1980 SCC (Cri) 985, Thanedar Singh v. State of M.P. ( 2002 (1) SCC 487 ), Rajeevan v. State of Kerala (2003) 3 SCC 355 ). Relying on the decision in Nachhattar Singh v. The State of Punjab (1976 SCC Crime 182) it was argued that the distance between may and must was not born in mind by the learned Sessions Judge and relying on the decision in Bhagirath v. State of Madhya Pradesh (1975 SCC (Cri) 742) is was argued that prosecution has to stand on its own legs and the learned Sessions Judge was not competent to reconstruct a new case and therefore the conviction and sentence are to be set aside. The learned Public Prosecutor argued that even if the petitioners cannot be convicted with the aid of S.149 of IPC for the reason that there were only four accused, they could definitely be convicted with the aid of S.34 of IPC. The learned Public Prosecutor argued that even if the petitioners cannot be convicted with the aid of S.149 of IPC for the reason that there were only four accused, they could definitely be convicted with the aid of S.34 of IPC. The learned Public Prosecutor relied on the decisions of the Supreme Court in Dalip Singh v. State of Punjab ( AIR 1953 SC 364 ), W. Slaney v. State of M.P. ( AIR 1956 SC 116 ), Amar Singh v. State of Haryana ( AIR 1973 SC 2221 ), Bhoor Singh v. State of Punjab ( AIR 1974 SC 1256 ), Dhanna v. State of M.P. ( AIR 1996 SC 2478 ). The learned counsel also argued that as the revision petitioners did not challenge Exts. P1 and P8 on the ground of delay before the trial court, it is not competent for them to challenge it at the appellate or revisional stage and therefore Ext. P1 can be used for corroborating the evidence of PW 5 and the learned Sessions Judge rightly relied on the evidence of PW 5 along with the evidence of PW 7 and Ext. P2 and therefore there is no reason to interfere with the conviction and sentence passed by the learned Sessions Judge. 5. PW 1 and PW 5 are the injured. PW 1 and PW 6 are the mother and father of PW 5. PW 2 is the sister of PW 5. They were admittedly living in the same house PW 5 was an accused in a murder case at the time when the incident occurred and at the time when he was examined before the court below he was undergoing imprisonment for life for the murder of Krishnan Nair who was none other than the brother of accused 1 to 4. PW 1 to 6 were examined by the prosecution as eyewitnesses. PW 3 and PW 4 the independent witnesses turned hostile to the prosecution and deposed that they did not see the incident at all. The learned Magistrate disbelieved the evidence of PW 2 and held that she was not an eyewitness and she reached the spot only after the incident. The learned Magistrate also found that PW 6, the father came to the spot much thereafter and was not an eye witness. The learned Magistrate disbelieved the evidence of PW 2 and held that she was not an eyewitness and she reached the spot only after the incident. The learned Magistrate also found that PW 6, the father came to the spot much thereafter and was not an eye witness. The learned Magistrate relied on the evidence of injured PW 1 and PW 5 and held that all the accused were members of an unlawful assembly and the common object was to cause grievous hurt to PW 5. The learned Sessions Judge reappreciated the entire evidence. The learned Sessions Judge considering the enmity between the parties found the possibility of PWs 1 and 5, out of their animosity resorting to omnibus implication of accused Nos. 1 to 4 and their relatives has to be taken note of and guarded against. The learned Sessions Judge further found that the incident occurred at 2 p.m. on 23-7-89 and the injured PW 1 and 5 were first taken to Government hospital, Kasargod from where PW 9, the doctor examined them and prepared Exts. P6 and P7 wound certificates and referred them to Wenlock Hospital, Mangalore. PW 7 examined them and prepared Exts. P2 and P3 wound certificates at 7 p.m. on the same day. Ext. P9 intimation was sent from the hospital to Pandeshwar Police Station, Mangalore. The evidence of PW 10, the Head Constable is that on getting information about the intimation over phone, he proceeded to Mangalore and recorded Ext. P1 First Information Statement of PW 1 at 3 p.m. on 24-7-89 and thereafter returned back to the Police Station and prepared Ext. P8 First Information Report at 9 p.m. on 24-7-89. The learned Sessions Judge found that Ext. P8 FIR reached the Magistrate only on 26-7-89 and the delay was not explained and the evidence of PW 10 and the endorsement seen in Ext. P9 to the effect that the injured PW 1 and PW 5 were not in a position to give statement cannot be correct in view of the evidence of PW 7 and the nature of injuries sustained by them. The learned Sessions Judge also found that the failure to examine the Police Constable from Pandeshwar Police Station is fatal to prove the endorsement in Ext. The learned Sessions Judge also found that the failure to examine the Police Constable from Pandeshwar Police Station is fatal to prove the endorsement in Ext. P9 and the delay in reaching the FIR in Court create "certain amount of reservations in mind of the court about the acceptability of Ext. P1". The learned Sessions Judge felt that it was not uncommon that in situations like this a Court comes across witnesses who has sustained injuries at the hands of some of the accused attempting to implicate, the close relatives of such assailants also as accused in the trial. The learned Sessions Judge then adds. It is that possibility which actually worries me. The implication of the appellants by PWs 1 and 5 gets confirmation only from Ext. P1 F.I. Statement. The F.I.R. Ext. P8 was registered at 9 p.m. on 24-7-89 in turn reaches the learned Magistrate only on 27-7-1989. The calendar shows that 24th, 25th and 26th were all working days and the delayed reception of Ext. P8 by the Magistrate cannot in this context be lightly ignored, notwithstanding the absence of a specific attempt by the defence in the course of trial to advert to that aspect. But the learned Sessions Judge got assurance from Ext. P2 and held that four names have been specified in Ext. P2 recorded by PW 7. The learned Sessions Judge was of the view that regarding these four accused persons PW 5 had made consistent allegations in Ext. P1 and in his oral evidence. PW 1 has also made specific allegations against these four accused persons. On that basis, the learned Sessions Judge convicted the revision petitioners and acquitted the other accused. 6. The learned Sessions Judge then had also the evidence of PW 1 and PW 5 cannot be accepted totally. The learned Sessions Judge got assurance on the evidence of PW 5, as against the petitioners on the basis of their names recorded by PW 7 in Ext. P2. The argument of the learned counsel appearing for the revision petitioners is that if the learned Sessions Judge had appreciated the evidence on the proper perspective at that point of time the learned Sessions Judge would not have convicted the petitioners as has been done in this case. 7. The specific case of the prosecution was that there was an unlawful assembly consisting of 11 members. They were all known. 7. The specific case of the prosecution was that there was an unlawful assembly consisting of 11 members. They were all known. There was no case that in addition to the known, 11 accused there were any other unknown persons. The learned Sessions Judge finding that out of the 11 accused evidence as against 6 accused are unreliable and acquitted them. The 7th accused was absconding at that time. He was subsequently apprehended and was tried by the learned Magistrate. As per judgment dated 28-11-97 which was produced by the petitioners as per Crl. M. Appl. 811/04 learned Magistrate acquitted the 7th accused as prosecution witness including PWs. 1 and 5 herein did not speak against him. The result is that out of 11 accused, 7 accused are already acquitted and the acquittal has become final. The result is that there were only 4 remaining accused. All of them were convicted only with the aid of S.149 of IPC. The question is whether the conviction of 4 accused with the aid of S.149 is sustainable. 8. In Maina Singh's case 1976 (2) SCC 827 the appellant in that case along with 4 others were charged with offence under S.302 read with S.149. The trial court acquitted the 4 accused and convicted the appellant under S.302 read with S.34 IPC. The High Court dismissed the appeal filed by the State challenging the acquittal. So also the appeal filed by the appellant challenging his conviction was dismissed. The appellant challenged that judgment before the Supreme Court contending that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of other coaccused when those accused who had been named had all been acquitted. The Apex Court held as follows:- "In a given case even if the charge disclosed only the named persons as coaccused and the prosecution witnesses confined their testimony to them, it would be permissible to conclude that others, named or unnamed, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise." On the facts of that case, the Apex Court found that the charge related to the commission of the offence of unlawful assembly by the appellant along with four named coaccused and with no other person. It was therefore held:- "The trial in fact went on that basis throughout. There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person. So when the other four coaccused had been given the benefit of doubt and acquitted; it would not be permissible to take the view that there must have been some other person along with the appellant in causing injuries to the deceased. The appellant would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others". A similar question was again considered by the Apex Court in Amar Singh v. State of Punjab (1987 SCC Crl. 232). In that case, 7 accused were charged, for murder under S.302 read with S.149 of IPC. The trial court acquitted two of the accused and convicted others. On appeal the High Court acquitted one more accused and confirmed the conviction of 4 accused for the offence under S.302 read with S.149 of IPC. Thee four convicted accused appealed to the Supreme Court. It was contended that after the acquittal of the 3 accused persons out of 7, the remaining 4 appellants cannot be held to have formed an unlawful assembly within the meaning of S.149 of I.P.C. and therefore the charge under S.149 of IPC was not maintainable. The Apex Court held:- "As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of S.141 IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under S.148 or S.149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly, an unlawful assembly is that such assembly must be of five or more persons, as required under S.141 IPC. In our opinion, the convictions of the appellants under S.148 and 149 IPC cannot be sustained." A similar case was again considered by the Apex Court in Nagamalleswara Rao v. State of Andhra Pradesh (1991 SCC (Cri.) 564). In our opinion, the convictions of the appellants under S.148 and 149 IPC cannot be sustained." A similar case was again considered by the Apex Court in Nagamalleswara Rao v. State of Andhra Pradesh (1991 SCC (Cri.) 564). The appellants along with 11 others were tried for the offence under S.302 read with S.149 of IPC. The Sessions Judge acquitted 9 accused of all the charges and convicted accused 1, 2, 5 and 11 under S.148. First accused was also convicted for the offence under S.302 of IPC and second accused for the offence under S.302 read with S.34 and accused 5 and 11 were convicted for the offence under S.302 read with S.149 of IPC. Accused 1 and 2 were also convicted for the offence under S.302 read with S.149 and accused 5 and 11 under S.324 and accused 1 and 2 for the offence under S.324 read with S.149 of I.P.C. The convicted accused challenged the conviction before the High Court. The High Court confirmed the conviction and sentence of accused 1, 2, 5 and 11 under S.148 and altered the conviction of accused 1 and 2 to 302 read with S.149. The conviction of accused 5 and 11 for the offence under S.148 and 302 read with S.149 was confirmed. The High Court also confirmed the conviction and sentence under S.326 and 324 read with S.149 of IPC. The appeal preferred by the State challenging the acquittal was dismissed. It was challenged before the Apex Court. The Apex Court found that the High Court overlooked that since the accused who were convicted are only 4 in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences and so S.149 cannot be invoked for convicting the 4 appellants. It was held that the High Court was not correct in stating that accused 1,2,5 and 11 can be held to be numbers of the unlawful assembly along with some other unidentified persons. The Apex Court held:- "The charge was not that A1, 2, 5 and 11 and others' or 'and other unidentified persons" formed into an unlawful assembly. But it is that "you A1 to 15" who formed into an unlawful assembly. The Apex Court held:- "The charge was not that A1, 2, 5 and 11 and others' or 'and other unidentified persons" formed into an unlawful assembly. But it is that "you A1 to 15" who formed into an unlawful assembly. It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the 11 other accused were acquitted it means that their involvement in the offence had not been proved. It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object." The same position was reiterated by the Apex Court in Subran v. State of Kerala (1993) 3 SCC 32 ). 9. The settled legal position can therefore be summarised. A combined reading of S.141 and 149 of IPCshow that an assembly of less than five members is not an unlawful assembly within the meaning of S.141. Therefore if there are only 4 accused, they cannot be convicted for an offence with the aid of S.149 of IPC. The effect of an acquittal of two or more accused persons without a specific finding that some other known or unknown persons were also involved in the assault, is that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly. Therefore the remaining accused persons who are numbering less than 5 may be members of the assembly. But such an assembly which comprises less than five members is not an unlawful assembly within the meaning of S.141 IPC. Unless the existence of an unlawful assembly is proved the conviction with the aid of S.149 IPC cannot be sustained. The failure of the prosecution to prove that the assembly was unlawful must necessarily result in the failure of the charge under S.149 IPC. That exactly is the case herein. 10. Though the learned Magistrate convicted all the accused, the learned Sessions Judge acquitted other accused except the petitioners who are numbering only four. The finding of the learned Sessions Judge was not that there were other members known or unknown in that assembly. That exactly is the case herein. 10. Though the learned Magistrate convicted all the accused, the learned Sessions Judge acquitted other accused except the petitioners who are numbering only four. The finding of the learned Sessions Judge was not that there were other members known or unknown in that assembly. The finding of the learned Sessions Judge reads:- "In these circumstances, I am satisfied from the evidence available that the only safe conclusion possible is that accused Nos. 1, 3, 4 and 6 were definitely the members of the unlawful assembly that indulged in acts of violence against the injured persons." There is no finding that in addition to the four accused there were other members either known or unknown in that assembly. It was pertinent to note that the charge was also specific that only accused 1 to 11 formed an unlawful assembly and not that accused 1 to 11 along with others known or unknown formed into an unlawful assembly. As the learned Sessions Judge acquitted the other accused, for all intent and purpose it is to be held that they were not members of the assembly. The 7th accused was also subsequently acquitted by the learned Magistrate. Therefore only the revision petitioners remain and as they are only four, their assembly can never be termed an unlawful assembly within the meaning of S.141 of IPC. Therefore they cannot be convicted with the aid of S.149 of IPC as has been done by the learned Sessions Judge. 11. Then the question is whether they could be convicted. If there is evidence, with the aid of S.34 IPC. The legal position is now well settled, though there were some confusion because of the decision in Nankchand v. State of Punjab ( AIR 1955 SC 274 ). The Constitution Bench of the Apex Court in W. Slaney v. State of M.P. ( AIR 1956 SC 116 ) has settled this aspect as follows:- "S.34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before conviction for the substantive offence, without a charge can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant." That position has been reiterated by the Apex Court in Amar Singh v. State of Haryana ( AIR 1973 SC 2221 ). Bhoor Singh v. State of Punjab ( AIR 1974 SC 1256 ), Dhanna v. State of M.P. ( AIR 1996 SC 2478 ). Therefore eventhough there is no specific charge for the offence under S.34 of IPC, if there is sufficient evidence that the criminal act was done by the petitioners in furtherance of their common intention, they could be convicted with the aid of S.34 of IPC. The question is whether there is sufficient evidence. 12. The learned Sessions Judge only relied on the evidence of PW 5 though the evidence of PW 1 was also discussed to take some assurance on the evidence of PW 5. Therefore it is also to be seen whether the evidence of PW 1 could be relied on. PW 1 being an injured is definitely a witness who could give evidence as to how he sustained the injury. But the question is whether PW 1 could give evidence as to how PW 5 sustained the injuries. The evidence of PW 1 from the box was that while she was inside the house, she heard the cry; of her son PW 5 and therefore she ran to the spot. Evidence would establish that the house where PWs. 1, 2 and 5 resides was lying on a lower level and away from the scene of occurrence. According to PW 1, when she reached the spot, she found the first accused inflicting an injury on PW 5 with a knife and the other accused were also present at the spot. Evidence would establish that the house where PWs. 1, 2 and 5 resides was lying on a lower level and away from the scene of occurrence. According to PW 1, when she reached the spot, she found the first accused inflicting an injury on PW 5 with a knife and the other accused were also present at the spot. According to PW 1, when she reached the spot, the other accused were beating PW 5 and accused 1, 2 and 5 inflicted injuries on PW 5 with knives and when she reached there, accused 6 to 8 pushed her and then 8th accused stabbed her with a knife and by that time PWs. 2 and 6 reached the spot and the accused left the place. The courts below found that PW 2 and 6 reached the spot only after the incident and they did not witness the incident at all. In cross examination the defence had put her statement, recorded by PW 11 under S.161 of Cr.P.C., where she specifically stated that when she reached the spot, she found PW 5 lying after sustaining the injuries. Though PW 1 denied that statement, it was proved through PW 11 who deposed that when he recorded the statement of PW 1, her case was that when she reached the spot, PW 5 was lying on the road after sustaining the injuries. Unfortunately this aspect was omitted to be taken note of by the learned Sessions Judge. Therefore it is clear that when her statement was recorded by PW 11 she had no case that she found any of the accused inflicting injuries on PW 5 and it was her specific case that when she reached the spot PW 5 had already sustained the injuries and was lying on the road. It is therefore clear that her evidence to the contrary from the witness box is the result of an afterthought and cannot be believed at all. Therefore the evidence of PW 1 could not have been acted upon or relied on to corroborate the evidence of PW 5. The learned Sessions Judge had not even relied on the evidence of PW 1 that the 8th accused inflicted the injury with a knife. Therefore the evidence of PW 1 could not have been acted upon or relied on to corroborate the evidence of PW 5. The learned Sessions Judge had not even relied on the evidence of PW 1 that the 8th accused inflicted the injury with a knife. In fact the evidence of PW 1 was not found credible or reliable by the learned Sessions Judge and was found useful only to take assurance on the evidence of PW 5 as against the four petitioners herein. 13. What remains is only the evidence of PW 5. PW 5 had given Ext. P1 First Information Statement recorded by PW 10 on the day after the date of incident. PW 5 had by that time sufficient time to deliberate and plan as to how he has to proceed against the accused. Therefore the spontaneity of a ordinary First Information Statement is not available to Ext. P1. The learned Sessions Judge has considered the question of delay in recording Ext. P1 statement as well as the delay in sending Ext. P8 First Information Report to the Court. On th the background of the enmity between the parties, it was not safe to rely on Ext. P1 First Information Statement when there is no satisfactory explanation for the delay in recording the same and also for the delay in the FIR reaching the Court. The learned Sessions Judge has rightly appreciated the facts. Ext. P9 intimation from the hospital was received at the Pandeshwar Police Station on the same day. Though there is an endorsement on the reverse side of Ext. P9 that the Police Constable could not record the statements of PWs 1 and 5 as they were not in a position to speak at that time where the Police Constable went there, that Police Constable who recorded the same was not examined. The evidence of PW 7, the doctor who examined PW 1 and 5 and 4 p.m. on 23-7-89 or the evidence of PW 9 who examined them at 4 p.m. and prepared Exts. P6 and P7 would not support the case of inability of PW 1 or PW 5 to give a statement. It is clear that when PW 7 examined them at 7 p.m. and prepared Exts. P2 and P3 on that day there was no impediment for PW 1 or PW 5 to narrate the incident. P6 and P7 would not support the case of inability of PW 1 or PW 5 to give a statement. It is clear that when PW 7 examined them at 7 p.m. and prepared Exts. P2 and P3 on that day there was no impediment for PW 1 or PW 5 to narrate the incident. On the other hand, evidence of PW 7 with Ext. P2 would establish that PW 5 had given the names of assailants to PW 7 disclosing that they effected the injuries on him. Therefore the learned Sessions Judge rightly found that the reason for not recording the statement of PW 1 on 23-7-89 is not satisfactorily explained. The learned Sessions Judge also found it impossible to believe the evidence of PW 10 that he reached the Wenlock Hospital on getting telephonic information from Pandeshwar Police Station and thereafter recorded Ext. P1 First Information Statement at 2 p.m. on 24-7-89 when reached Adhoor Police Station and recorded Ext. P8 First Information Report on the same day when Ext. P8 is seen received at the court only on 27-7-89. The finding of the learned Sessions Judge was that Ext. P1 is bereft of the advantage of spontaneity and danger of introduction of coloured version or exaggerated story vitiate the same. That finding is correct. 14. The effect of the delay in recording the First Information Statement and the consequence of the unexplained delay in the FIR reaching the court was considered by the Apex Court in several decisions. In Meharaj Singh v. State of U.P. 1994 SCC (Cri) 1391, the Apex Court held:- "FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under S.174 Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authentically and it appears to us that the same has been ante timed and had not been recorded till the inquest proceedings were over at the spot by PW 8." The same position reiterated by the Apex Court in Thanedar Singh v. State of M.P. (2002) 1 SCC 487 ). In Marudanal Augusti v. State of Kerala (1980 SCC (Cri.) 985) the Apex Court had considered the effect of delay in dispatching the FIR. In Marudanal Augusti v. State of Kerala (1980 SCC (Cri.) 985) the Apex Court had considered the effect of delay in dispatching the FIR. The most serious infirmity which appeared in that case was that although FIR was lodged on the midnight of June 23/24.1971, it was dispatched to the Sub Magistrate and received by him at 5.30 a.m. on June 25, 1971 after a delay of 29 hours. The Investigating Officer in spite of being questioned in the matter did not give any explanation for the delay. There were intrinsic circumstances which throw serious doubt on the prosecution case. Considering all these facts, the Apex Court held:- "The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence." The principle enunciated will apply to the facts of the case. 15. In view of the finding of the learned Sessions Judge that Ext. P1 First Information Statement was not prepared on the date seen in Ext. P1 and P8, it is vitiated. In such circumstances, the learned Sessions Judge should not have relied on Ext. P1 statement of PW 5 to get assurance for his evidence from the box. If that be so, Ext. P1 cannot be used to corroborate the evidence of PW 5. 16. The evidence of PW 5 shows that the incident was as narrated by him in Ext. P1 First Information Statement which was not believed by the learned Sessions Judge. The case of PW 5 was that all the accused including the petitioners followed him when he ran from the bus stop towards his house and he ran to the house of PW 3 Krishnan Nambiar and from there all the accused caught him and dragged him to the scene of occurrence namely road. What was deposed by PW 5 from the box was that accused 1 and 4 caught him from the house of PW 3 and thereafter they caught his head and accused 6 and 7 caught his legs and made him lie on the road with face downwards. What was deposed by PW 5 from the box was that accused 1 and 4 caught him from the house of PW 3 and thereafter they caught his head and accused 6 and 7 caught his legs and made him lie on the road with face downwards. According to PW 5, the first accused inflicted the injury on the back side of his legs with a knife and the 4th accused caught his head and pushed it forward and then second accused stabbed him with a knife and when PW 5 turns his head, it landed above his left eye inflicting injury and 5th accused inflicted injury on his left ear with a knife and accused 10 and 11 beat him with sticks. There was no whisper about any overt act against the second revision petitioner (third accused). The only allegation against the 4th petitioner namely (A6) was that when PW 2 reached there, he along with accused 7 and 8 pushed her. Therefore PW 5 has no case that petitioners 3 and 4 inflicted an injury on him. With this aspect in mind, the finding of the learned Sessions Judge on the so called assurance given by Ext. P2 wound certificate to strengthen the version of PW 5 has to be born in mind. The learned Sessions Judge found that the evidence of PW 5 without corroboration and assurance from other sources cannot be relied on. The learned Sessions Judge got that assurance from Ext. P1 and P2. In the light of the finding that Ext. P1 was ante dated and ante timed and thereby vitiated it is not possible to rely on Ext. P1 for any corroboration or assurance. Ext. P2 shows that when PW 7 examined PW 5 on the night of the incident PW 5 disclosed to PW 7 that accused 1, 4 and 6 inflicted the injuries. Accused 4 and 6 and Gopalan (according to learned Sessions Judge that Gopalan was third accused) inflicted the injuries by assault. While appreciating the credibility and reliability of the evidence of PW 5 as against the petitioners 3 and 4, the evidence of PW 5 which was not relied upon by the Sessions Judge as against the accused 5, 10 and 11 have to be born in mind. While appreciating the credibility and reliability of the evidence of PW 5 as against the petitioners 3 and 4, the evidence of PW 5 which was not relied upon by the Sessions Judge as against the accused 5, 10 and 11 have to be born in mind. According to PW 5, the second accused inflicted an injury on his face above the left eye, 5th accused inflicted an injury with a knife on his left ear and 10th accused inflicted an injury on his head by beating with a rod and 11th accused inflicted injury on his right wrist by hitting with sticks. If PW 5 sustained those injuries from the hands of accused 5, 10, 11 it was not at all possible for PW 5 to name accused 3, 4 and 6 when they did not inflict any injury on him. In the light of the evidence, that version of PW 5 is not believable. It is also to be born in mind that PW 5 was convicted for murdering the brother of accused 1 to 4. It may be that because of that enmity PW 5 named the accused 3, 4 and 6 to PW 7. Therefore on the basis of that version of PW 5 made to PW 7 alone and recorded in Ext. P2 it is not possible to believe that accused 3, 4 and 6 were present at the spot or inflicted the injuries especially when the learned Sessions Judge disbelieved the evidence of PW 5 as against the accused 2, 5, 10, 11 and that too when specific overt acts were alleged against them. Though learned Sessions Judge found that Gopalan shown in Ext. P2 is third accused, nobody had spoken about it. PW 5 was not asked at the time of his examination whether Gopalan referred to in Ext. P2 and disclosed by him to PW 7 was the third accused or the 9th accused who is also Gopalan, though he was also called as driver Balan. The learned Sessions Judge held that as 9th accused was referred to as driver Balan, Gopalan mentioned in Ext. P2 could only be the third accused. Hence without sufficient evidence to that aspect, it is not possible to hold that Gopalan referred to Ext. P2 is the third accused. It is more so, when PW 5 had not named third accused. P2 could only be the third accused. Hence without sufficient evidence to that aspect, it is not possible to hold that Gopalan referred to Ext. P2 is the third accused. It is more so, when PW 5 had not named third accused. It is more so, when PW 5 had not named third accused except deposing that he had not named third accused who following him from the bus stop on the date of the incident. If that be the case, Ext. P2 cannot give any assurance about the case, Ext. P2 cannot give any assurance about the presence of accused 3, 4 and 6. Therefore the finding of the learned Sessions Judge that Ext. P2 give assurance about the presence of petitioners 3, 4 and 6 at the scene of occurrence is not sustainable. If that be so, petitioners 3, 4 and 6 are entitled to get the same benefit which was made available to the remaining accused. 17. What remains is only the charge against the first petitioner namely first accused. The argument of Advocate Sri. M. K. Damodaran is that when the prosecution case is that all the accused formed themselves into an unlawful assembly and inflicted the injuries on PW 1, as it is not possible for the court to reconstruct a new case that first accused alone inflicted the injuries so as to convict him. Reliance was placed on the decision of the Supreme Court in State of U.P. v. Moti Ram (1990) 4 SCC 389 ) and in Bhagirath v. State of M.P. (1975 SCC (Cri) 742). In Bhagirath's case, the Apex Court found that notwithstanding their finding that to a material extent the prosecution story was false, the courts extent the prosecution story was false, the courts below have worked out the conclusion that it was a case of free fight in the course of which, two persons on one side and two accused persons on the side of the accused received injuries and in reaching that conclusion, the courts were influenced by the fact that the accused had also not come out with the whole truth. The Apex Court held that the approach of the courts below in reconstructing a story different from the one propounded by the prosecution and then convicting the appellant on that basis was clearly erroneous. The Apex Court held that the approach of the courts below in reconstructing a story different from the one propounded by the prosecution and then convicting the appellant on that basis was clearly erroneous. The Apex Court therefore held:- "It was never the prosecution case that there was a fight or pitched battled between two parties. According to the prosecution, the occurrence was only a one sided affair, that PW Kashiram was forcibly pulled out and taken from his house by the three accused to a distance of 80 feet, and there assaulted. In the F.I.R. Devisingh made no mention whatever of the injuries received by the accused side. At the trial also, the prosecution witnesses brazenly refused to concede that the appellant or his companion Manohar had received any injury at the time of occurrence. Contrary to what these prosecution witnesses had stated, the courts have come to the conclusion that these injuries, three of which were incised wounds, were received by the accused side in the course of free fight, at the hands of the complainant party. It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis." In State of U.P. v. Moti Ram (1990) 4 SCC 389 ) the Apex Court on examining the records scrupulously and meticulously held:- "We regret to say that the entire evidence is nothing but a coloured version is nothing but a coloured version with concocted story and exaggerated account mixed with falsehood and that the prosecution has miserably failed to make out the charges against all or any of the accused beyond all reasonable doubt except Rambali who himself admitted his presence at the scene". 18. The Apex Court therefore held:- "No doubt, it is true that this heinous offence is diabolical in conception and executed in gruesome and ghastly manner. It is. shocking that 13 persons have been done away with in broad daylight in the course of the same transaction. 18. The Apex Court therefore held:- "No doubt, it is true that this heinous offence is diabolical in conception and executed in gruesome and ghastly manner. It is. shocking that 13 persons have been done away with in broad daylight in the course of the same transaction. Nonetheless the court when satisfied that the evidence adduced by the prosecution is not only unworthy of credence, but also manifestly and inextricably mixed up with falsehood cannot be carried away merely on the fact of multiplicity of victims and on the basis of speculations and suppositions in the confused stream of facts." 19. While analysing the evidence of PW 5, the observations of the Apex Court in Balaka Singh v. State of Punjab (1975 SCC (Cri) 601 the following observations has to be born in mind. "....... the court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and chaff are so inextricably mixed up that in the process of separation the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply." 20. When the evidence of PW5 is so appreciated it is clear that without proper corroboration and assurance, his solitary evidence cannot be relied on to convict the petitioners. The learned Sessions Judge himself found that but for the assurance in Ext. P2, the evidence of PW 5 against the petitioners could not be accepted or relied on. When the evidence of PW 5 shows that second petitioner (3rd accused) did not do any overt act at all, it cannot be believed that his name mentioned to PW 7 and seen in Ext. P2 was credible or reliable. So also evidence of PW 5 shows that third petitioner (4th accused) and 4th petitioner (6th accused) did not inflict any injury on PW 5. His only case was that third petitioner pushed PW 1 when she reached the spot and 4th petitioner had to inflict injury on his face with a knife. P2 was credible or reliable. So also evidence of PW 5 shows that third petitioner (4th accused) and 4th petitioner (6th accused) did not inflict any injury on PW 5. His only case was that third petitioner pushed PW 1 when she reached the spot and 4th petitioner had to inflict injury on his face with a knife. If in fact the facts are as narrated by PW 5, in the ordinary human conduct PW 5 will not be furnishing the names of petitioners 2 to 4 who did not inflict any injury on him, when names of accused 2, 5, 10 and 11 were not mentioned to PW 7 at all. Therefore it is clear that no assurance can be taken from Ext. P2 as the names furnished by PW 5 to PW 7 the doctor even according to PW 5 were not that of the persons who allegedly inflicted the injuries on him. Therefore the evidence of PW 5 as against petitioners 2 to 4 cannot be relied on as Ext. P2 cannot be used to get assurance on that fact. Moreover PW 5 did not mention the names of the petitioners to PW 9 who examined him and prepared Exts. P6 and P7, before PW 5 was taken to PW 7. It is possible that the names of the petitioners were subsequently mentioned to PW 7 due to the enmity and as a result of afterthought and deliberation. If so, the conviction of petitioners 2 to 4 will not stand and has to be set aside. 21. Then the question is whether the evidence of PW 5 as against the first petitioner (first accused) can be relied on to find him guilty. When the evidence of PW 5 is disbelieved as against all other accused and that too when his evidence even against accused 2 and 5 who allegedly inflicted injuries on his face and ears with knives and against accused 5, 10 and 11 who inflicted injuries on him by beating with sticks is disbelieved, it is not possible to believe his version as against the first petitioner alone. It is more so because the evidence of PW 5 as against the petitioner was that after he was taken from the house of PW 3, all the accused made him lie on the road face downwards and in that position first petitioner inflicted the injuries on the back of his leg. Evidently if such an inquiry was inflicted in the position, in the normal course PW 5 could not have any opportunity to see who inflicted that injury on the back of his leg. Therefore on an appreciation of the evidence of PW 5, it is not at all possible to separate the grain from the chaff as they are so inextricable mixed up and if they are to be separated the result of separation will be reconstructed of an absolutely no cases which prosecution did not allege and which even PW 5 has not visualised. Moreover first petitioner was not charged for any of the substantive offences. As declared by the Apex Court in Subran v. State of Kerala, 1993 (3) SCC 32 , a person charged for offence road with S.149 IPC cannot be convicted for the substantive offence without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence. First respondent was never called upon to meet a substantive charge simpliciter and therefore in defending himself he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross examination of the prosecution witnesses. Therefore the conviction of the first petitioner for any of the substantive offences charged is not at all permissible. Therefore the conviction of the first petitioner cannot be converted for any of substantive offences, in the absence of a charge and therefore even if the evidence of PW 5 would be relied on, it is not possible to convict the first petitioner for the substantive offence when all the other accused who were charged along with him with the aid of S.149 of IPC stands acquitted. Therefore the conviction as against the first petitioner is also unsustainable and has to be set aside. Therefore the conviction as against the first petitioner is also unsustainable and has to be set aside. The Criminal Revision Petition is therefore allowed. The conviction and sentence passed by the Judicial First Class Magistrate, Kasargod as confirmed by the Sessions Judge against petitioners who are accused 1, 3, 4 and 6 in CC 48/90 is set aside. They are found not guilty. The bonds executed by them stand cancelled. They are set at liberty.