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2012 DIGILAW 865 (KER)

Biju v. State of Kerala

2012-09-14

BABU MATHEW P.JOSEPH, K.HEMA

body2012
JUDGMENT :- Babu Mathew P. Joseph, J. 1. The appellant was found guilty of the offence under Section 302 of IPC by the learned Additional Sessions Judge and he was convicted for that offence. He was sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/-. Rigorous imprisonment for three months was also imposed as default sentence. Challenging the said conviction and sentence, the appellant/accused has preferred this appeal. 2. The prosecution alleged that out of previous enmity towards deceased Sajeevan, the accused committed the murder of the said Sajeevan by intentionally causing his death by inflicting a stab injury on the left side of his chest with MO1 knife at 4.30 p.m. on 6.9.2003 at Kizhakkekakra Thekkummuri in Thrikkunnappuzha village. The deceased Sajeevan was first taken to the Government hospital, Haripad. Thereafter, while he was being taken to the Medical College Hospital, Alappuzha, he succumbed to the injury sustained by him at about 6 p.m. on that day. 3. PW1 went to Thrikkunnappuzha Police Station and gave Ext.P1 First Information Statement to PW12, the Sub Inspector of Police, at 8.30 p.m. on 6.9.2003. Based on Ext.P1, PW12 registered Crime No.168 of 2003 of that Police Station. Ext.P1(a) is the F.I.R. thus drawn by PW12. 4. PW13, the Circle Inspector of Police, Haripad, had taken over the investigation of the case on 7.9.2003 and conducted the investigation. After completing the investigation, he had submitted the Final Report, alleging the offence under Section 302 of IPC against the appellant/accused, before the learned Magistrate having jurisdiction. 5. Learned Magistrate, after observing the legal formalities, committed the case to the Court of Session, which was, subsequently, made over to the Additional Sessions Court. The accused denied the charge, alleging the offence under Section 302 IPC, framed against him by the learned Additional Sessions Judge. The prosecution examined PWs.1 to 13 and marked Exts.P1 to P10. MO1 and MO2 series were also marked. Exts.D1 to D3 were marked on the side of the defence. 6. In the course of cross-examination of the prosecution witnesses, the accused set up a defence that the deceased Sajeevan sustained stab injury with scissors in an attack between two groups of people that occurred at 2.30 p.m. on the day of 'Pooradam' and thus he died. Exts.D1 to D3 were marked on the side of the defence. 6. In the course of cross-examination of the prosecution witnesses, the accused set up a defence that the deceased Sajeevan sustained stab injury with scissors in an attack between two groups of people that occurred at 2.30 p.m. on the day of 'Pooradam' and thus he died. The accused had denied all the incriminating circumstances shown against him while he was being examined under Section 313 (1)(b) of Cr.P.C. Further, he had stated as follows: An attack between people belonging to two different clubs took place at Manivelilchira on the day of Pooradam. The deceased sustained the fatal injury in that attack at the hands of somebody. 7. The prosecution mainly relied on the evidence of PWs.2 and 3, the eyewitnesses. They also relied on the evidence of PWs.1, 4, 5 and 7 for proving their case. Learned Additional Sessions Judge placed reliance on all these witnesses for finding the accused guilty. According to the defence, the prosecution has not placed the true facts before the court and the evidence of PWs. 1 to 5 and 7 is not at all reliable for finding the accused guilty of the offence alleged. In the facts and circumstances, according to the defence, the accused, at least, is entitled to the benefit of doubt. 8. We have heard the learned counsel for the appellant and the learned Public Prosecutor. We have also perused the records. 9. The points that arise for consideration are as follows: (1) Whether the appellant/accused had committed the offence of murder by intentionally causing the death of Sajeevan as alleged by the prosecution? (2) Is the appellant/accused entitled to the benefit of doubt? 10. Learned counsel for the appellant/accused argued that the learned Additional Sessions Judge had erred in placing reliance on the oral testimony of PWs. 1 to 5 and 7. Their evidence should have been disbelieved. The FIR reached the court only after a long delay of about 5 days. This inordinate delay has not been explained by the prosecution. This itself is fatal to the prosecution case. It was further contended that in any view of the matter, the accused is entitled to the benefit of doubt. He has pointed out various facts and circumstances in order to support his arguments. This inordinate delay has not been explained by the prosecution. This itself is fatal to the prosecution case. It was further contended that in any view of the matter, the accused is entitled to the benefit of doubt. He has pointed out various facts and circumstances in order to support his arguments. On the other hand, learned Prosecutor contended that the learned Additional Sessions Judge had committed no error in placing reliance on the evidence of PWs. 1 to 5 and 7. The delay in reaching the FIR was caused by the intervening holidays and hence there was no purposeful delay in sending the FIR to the court. The accused is not entitled to any benefit of doubt as the prosecution fully succeeded in establishing the guilt of the accused beyond reasonable doubt. Hence, he prayed for dismissing this appeal. 11. That the deceased Sajeevan died of homicidal injury suffered by him is established beyond any doubt by the evidence given by PW9 doctor and Ext.P4 Post-mortem Certificate issued by him. There was no dispute also regarding this fact. Therefore, it can be safely found that the deceased had succumbed to the homicidal injury suffered by him and we find so. 12. We shall now consider the evidence of PWs.1 to 5 and 7. PW1 is a fisherman. His version is as follows: PW1 and CW5 Navas had taken tea from the teashop of Krishnankutty after 4 p.m. on 6.9.2003. Thereafter, they were returning on a bicycle and, while so, the deceased Sajeevan was seen standing on the road on the northern side of the house of Kamala. Sajeevan told them that he was stabbed by the accused and requested them to take him to hospital. Accordingly, carrying on his bicycle, PW1 took Sajeevan to the front side of the shop of Panchayat Member Pankajakshan. PW4 Anil, son of Pankajakshan, attempted to make Sajeevan sit on the back seat of his scooter. But, he was not able to sit as his body became deranged. Therefore, PW4 went to his house and brought his car there. Sajeevan was taken to the hospital at Haripad with the help of an elder brother of Sajeevan, Rajesh and another by that car. PW1 and CW5 Navas could not go by that car for want of space in it. Therefore, PW4 went to his house and brought his car there. Sajeevan was taken to the hospital at Haripad with the help of an elder brother of Sajeevan, Rajesh and another by that car. PW1 and CW5 Navas could not go by that car for want of space in it. When they reached Haripad by an autorickshaw, they came to know that Sajeevan was taken to Alappuzha. When they reached Alappuzha, they came to know from the hospital that Sajeevan died and the body was kept in the mortuary. Hence, they returned to the house. PW1 has proved Ext.P1 First Information Statement given by him to the police. 13. The version of PW2 is as follows: The occurrence in this case took place in between 4 p.m. and 4.30 p.m. on 6.9.2003. While he was returning on his bicycle, he had seen the accused and Sajeevan talking aloud on the northern side of the house of Kamala. When he reached very close to them, the accused was seen inflicting a stab injury on the left chest of Sajeevan. Thereafter, the accused walked towards west leaving the knife a little west of the place of occurrence. Some persons were seen making Sajeevan sit on a bicycle for going to hospital. PW2 soon returned to his house. He identified MO1 as the knife used by the accused for inflicting injury on Sajeevan. 14. PW3 is the wife of the elder brother of deceased Sajeevan. Her version is as follows: The occurrence in this case took place at 4.30 p.m. on 6.9. 2003. She had witnessed the occurrence. She had gone to Pulimootilchira, after 4 p.m., along with Sajeevan for purchasing things in connection with Onam. The list of the things to be purchased was given at the shop and they returned. Sajeevan went ahead on a bicycle. She had followed him. While so, the accused was seen standing on the southern side of the road on the northern side of the house of Kamala. Sajeevan went to the accused and both of them were heard to say something. While so, the accused inflicted a stab injury on the left chest of Sajeevan and blood was seen coming from that wound. Seeing that she had gone to them crying. Sajeevan went to the accused and both of them were heard to say something. While so, the accused inflicted a stab injury on the left chest of Sajeevan and blood was seen coming from that wound. Seeing that she had gone to them crying. Then, the accused told her that he would stab her also if she went to him and put the knife at a shrubby place a little away. So, she ran to her house crying. She had seen some persons gathering there by that time. The accused was seen walking to his house. She identified MO1 as the knife used for inflicting injury by the accused. 15. The version of PW4 is as follows: He is running a grocery shop at S.N. Nagar. He did not remember the date of occurrence. He had seen Sajeevan getting down from the bicycle with the help of PW1 at about 4.45 p.m. When PW4 went to them, PW1 told him that Sajeevan was stabbed by the accused. PW1 attempted to take Sajeevan to hospital on his scooter. But, Sajeevan was unable to sit on the scooter. Therefore, asking PW1 to take care of Sajeevan, he went to his house and brought his car. While so, Sathyappan, elder brother of Sajeevan, also came there. Sajeevan was taken into the car with the help of Reji, Rajesh and Sathyappan. PW4 drove the car to the hospital at Haripad. Sathyaseelan, another elder brother of Sajeevan, also reached there by that time. PW4 returned from there. Later, he came to know that Sajeevan was taken to the Medical College Hospital, Alappuzha and on the way he died. While Sajeevan was being taken to hospital, he was heard to say that he was unable to breathe and he would die. Blood was also seen coming from his chest. 16. PW5 Sathyaseelan is an elder brother of Sajeevan. His version is as follows: While he was in his house, after 4.30 p.m. on 6.9.2003, his niece informed him over phone that Sajeevan was stabbed on his left chest by the accused. Soon he went to the road on a scooter and enquired about the matter with two persons coming through that road. On knowing from them that the occurrence took place on the gravel road on the northern side of the house of Kamala, soon he went there. He had seen 4-5 persons there. Soon he went to the road on a scooter and enquired about the matter with two persons coming through that road. On knowing from them that the occurrence took place on the gravel road on the northern side of the house of Kamala, soon he went there. He had seen 4-5 persons there. They informed him that Sajeevan was taken to the Government Hospital, Haripad. When he reached that Hospital, Sajeevan was seen given first aid. Then, Sajeevan told him that the accused stabbed him and he was unable to breathe. He also told him that he would die and requested him to look after his (Sajeevan) children. As directed by the doctor, Sajeevan was taken to the Medical College Hospital, Alappuzha by Sathyappan, Reji and Rajesh in a car. When he (PW5) reached that hospital, he was informed that Sajeevan died on the way and the dead body was removed to the mortuary. 17. PW7 is another elder brother of Sajeevan. His version is as follows: Sajeevan was seen taken into the car of Anil (PW4) in front of his (PW4) grocery shop at 4.30 p.m. on the day of occurrence. He also accompanied Sajeevan in that car, driven by PW4, to the Government Hospital, Haripad. From there, he was taken to the Medical College Hospital, Alappuzha, by a taxi vehicle. He also accompanied Sajeevan. On the way, Sajeevan told that he could not breathe and he would die. He also requested to look after his children. The doctor examined Sajeevan at the Medical College Hospital and informed that he was dead. 18. Whether the versions of PWs.2 and 3 regarding the occurrence and the evidence of PWs.1, 4, 5 and 7 can be believed? We shall consider. 19. Learned counsel for the accused argued that the evidence of PWs. 1 to 5 and 7 is inconsistent and contradictory to each other and, therefore, no credibility could be attached to their evidence. It is the case of PW1 that while Navas and himself were returning by the bicycle, the deceased Sajeevan was seen near the house of Kamala. He alone was there at that time. As requested by Sajeevan, he had taken him on his bicycle to the shop of Pankajakshan. Sajeevan was sitting on the back seat of the bicycle. It is his definite case that, carrying Sajeevan, he had pedalled his bicycle to that shop. He alone was there at that time. As requested by Sajeevan, he had taken him on his bicycle to the shop of Pankajakshan. Sajeevan was sitting on the back seat of the bicycle. It is his definite case that, carrying Sajeevan, he had pedalled his bicycle to that shop. PW2 claimed that when he reached very close to the accused and Sajeevan, the accused stabbed on the left chest of the deceased with a knife. It is also his case that some persons were seen holding Sajeevan on a bicycle for going to hospital. But, he did not know who were they. He did not enquire also as to who were they. There were 3, 4, 5 persons. 20. If the evidence so given by PW2 is accepted, PW1 should have been present at the scene place at the time of occurrence. But, PW1 does not have such a case. His case is that he had reached there only after the occurrence. It is in evidence that PWs. 1 and 2 know each other. Therefore, there is no justification for PW2 not to identify PW1 as one present there. PW1 stated that he alone had taken Sajeevan on his bicycle by pedalling the same. But, according to PW2, the bicycle was not being pedalled with Sajeevan on it, but it was being pushed and rolled with Sajeevan on it with the help of three persons. 21. It is the case of PW1 that he reached the place where Sajeevan was seen standing by pedalling his bicycle with Navas on its back seat. It is also his case that he alone had taken Sajeevan on his bicycle to the shop of Pankajakshan. It is in evidence that PW1 had stated in Ext.P1 F.I. Statement that he had taken Sajeevan on his bicycle after causing Navas to alight from that bicycle. It is also in evidence that PW1 had stated in Ext.P1 that while he had so taken Sajeevan, Navas had gone to the house of Sajeevan by his (PW1) bicycle for informing the matter. The house of Sajeevan and the shop of Pankajakshan situate at different places. How can the very same bicycle belonging to PW1 go to those different places at the same time? Another thing, with regard to the bicycle, also has to be considered here. 22. The house of Sajeevan and the shop of Pankajakshan situate at different places. How can the very same bicycle belonging to PW1 go to those different places at the same time? Another thing, with regard to the bicycle, also has to be considered here. 22. PW2 does not have a case that he had seen PW1 at the place of occurrence. At the same time, he had stated that when he had reached there on his bicycle, the bicycle of PW1 was there. Whether he had seen that bicycle along with PW1 or he had seen only the bicycle of PW1 there? If he had seen only the bicycle of PW1, how could he identify that bicycle as one belonging to PW1. There is no evidence clarifying these matters. PW2 further stated that there was only one bicycle at that time and Sajeevan was taken from there by that bicycle. It is the prosecution case that Sajeevan came to the place of occurrence by his bicycle. Then, that bicycle should have been present there when PW2 reached that place. If the case of PW1 that he along with Navas came to that place by his bicycle and he had taken Sajeevan from that place to the shop by that bicycle, then, there must be the presence of two bicycles at the place of occurrence one belonging to Sajeevan and another belonging to PW1. But, PW2 is certain that he had seen only one bicycle there and by that bicycle Sajeevan was taken from there. It is the case of PW3 that Sajeevan went ahead of her on a bicycle while they were returning from the shop. When she reached the place of occurrence, she had seen no other bicycle than the one belonging to Sajeevan. So, according to PW2, the bicycle remaining there was the one belonging to PW1 and, according to PW3, the bicycle seen there by her was that of Sajeevan. (At a later stage of his examination, PW2 stated that there was only one bicycle and he did not know to whom it belonged to). Going by the evidence of PW2, three bicycles -one belonging to Sajeevan, another belonging to PW1 and the third one belonging to PW2 himself -should be there at the time of occurrence. But, he did not see or refer to the bicycle by which Sajeevan allegedly came to that place. Going by the evidence of PW2, three bicycles -one belonging to Sajeevan, another belonging to PW1 and the third one belonging to PW2 himself -should be there at the time of occurrence. But, he did not see or refer to the bicycle by which Sajeevan allegedly came to that place. Going by the evidence of PW3, she had seen only one bicycle i.e., the one by which Sajeevan allegedly came to that place. She has no case that she had seen PW2 or his bicycle there. If that be so, the evidence of PW2 that he was present there and witnessed the occurrence cannot be believed. Similarly, the evidence of PW3 is inconsistent with the evidence of PW2. 23. We shall now consider another aspect of the matter. It is the case of PW3 that she had gone to Pulimoottilchira along with Sajeevan for purchasing things in connection with Onam. It is her definite case that that shop belongs to Pulimoottilchira Mohanan. To a question as to whether she had stated this fact to the police, she answered that she had not stated the name of Mohanan. PW3 is the wife of the elder brother of Sajeevan. PW7 is one of the elder brothers of Sajeevan. His case is that he had seen Sajeevan going to the grocery shop of Pankajakshan at 4 p.m. While so, PW1 and Navas were there. Nobody was seen along with Sajeevan at that time. He had also not seen Sajeevan returning from there. 24. A few things emerge here. The case of PW3 that she had gone along with Sajeevan to the shop of Pulimoottilchira Moahanan is belied by the evidence of PW7 as he had seen Sajeevan going to the grocery shop of Pankajakshan at that time. Moreover, PW3 was not accompanying Sajeevan at that time and Sajeevan did not return from there as claimed by PW3. The case of PW1 is that Navas and himself were returning after taking tea from the shop of Krishnankutty. He has no case that he had gone to the shop of Pankajakshan then. But, PW7 says that he had seen PW1 and Navas in front of the shop of Pankajakshan at that time. PW3 does not have a case that she had seen PW1 and Navas at the grocery shop or at the shop of Krishnankutty or at Pulimoottilchira at that time. But, PW7 says that he had seen PW1 and Navas in front of the shop of Pankajakshan at that time. PW3 does not have a case that she had seen PW1 and Navas at the grocery shop or at the shop of Krishnankutty or at Pulimoottilchira at that time. She had also not stated to the police that grocery items would be delivered at the residence if order was given at the shop of Mohanan. 25. PW2 stated that the accused and Sajeevan talked aloud just prior to the occurrence. But, PW3 does not have such a case. It is the definite case of PW1 that when he had seen injured Sajeevan, he had not seen PW2 or PW3 there. Going by the evidence of PW2, PWs. 1 and 3 also must be present there. If that be so, PW1 could have seen PWs. 2 and 3 there, especially in view of the case of PW2 that there were only a few persons then. PW3 does not have a case that she had seen PW1 or PW2 there. PW2 does not have a case that he had seen PW1 or PW3 there at the time of occurrence. 26. PW3 stated that seeing the blood coming from the injury inflicted by the accused on the left chest of Sajeevan, she had gone to them crying. Then, the accused advanced towards her saying that he would stab her also. Hearing that she ran towards her house crying. She claimed that she had stated to the police that the accused threatened her by saying that she would be stabbed. But, it is in evidence that such a statement does not appear in her statement given to the police. She admitted that the knife was not with the accused when the accused threatened her by saying that she would be stabbed by him. 27. PW2 categorically stated that he did not hear the accused saying that he would stab to death anybody. Therefore, the case so spoken to by PW3 is contradicted by the evidence of PW2 as well as by the omission in her statement given to the police. So, the explanation given by PW3 that she could not do anything for saving Sajeevan under those circumstances is not believable. Moreover, there is no evidence to show that she had done anything thereafter for saving the life of Sajeevan. So, the explanation given by PW3 that she could not do anything for saving Sajeevan under those circumstances is not believable. Moreover, there is no evidence to show that she had done anything thereafter for saving the life of Sajeevan. This attitude of PW3 towards the youngest brother of her husband appears to be rather strange and against normal human conduct. Similarly, PW2 also admitted that he did not take any steps for taking Sajeevan to hospital. It is in his evidence that Sajeevan was known to him since long back. His evidence shows that he resides 2 KM away from the place of occurrence. He comes by a bicycle, witnesses the alleged occurrence and soon returns to his house without doing anything! This conduct of PW2 also appears to be strange. 28. It is the case of PW2 that when he reached the place of occurrence, a tumult was going on there. But, PW3 does not have such a case. To a specific question as to whether Sajeevan sustained stab injury after hearing that tumult, PW2 replied that he did not know it correctly. This itself indicates that his claim that he had witnessed the alleged occurrence is suspicious. It is the case of PW1 that when Sajeevan had seen him and Navas, he had told them that he was stabbed by the accused and requested them to take him to hospital. But, the case of PW2 is different. He stated that, after sustaining the stab injury, Sajeevan told that he was stabbed. 29. PW3 does not have either the case of PW1 or of PW2 in this regard. It is the case of PW2 that, after the occurrence, the accused abandoned the knife on the side of the gravel road, a little west of the place of occurrence. That place was not shrubbery. The case of PW3 in this regard is different. She stated that the accused abandoned the knife at the southern part on the eastern side where Sajeevan was standing and that place was grassy. PW1 does not have a case that he had seen a knife there. PW3, in chief-examination, deposed that the accused walked towards his house after leaving the knife on the grassy area. But, in cross-examination, deviating from her earlier version, she stated that she did not care where the accused had gone from there. PW1 does not have a case that he had seen a knife there. PW3, in chief-examination, deposed that the accused walked towards his house after leaving the knife on the grassy area. But, in cross-examination, deviating from her earlier version, she stated that she did not care where the accused had gone from there. The foregoing facts affect the credibility of these witnesses and throw shadow of doubt on the prosecution version of occurrence. The case of PW1 that Sajeevan told him and Navas that he was stabbed by the accused cannot be believed. 30. It is the case of PW1 that he had taken Sajeevan after the occurrence to the shop of Pankajakshan. That shop is at Pulimoottilchira S.N. Nagar. PW4 is the son of the said Pankajakshan. PW4 stated that when Sajeevan got down from the bicycle there, PW1 told him that the accused stabbed. Thereafter, PW4 attempted to take Sajeevan to the hospital on his scooter. But, Sajeevan could not sit on the scooter. To a question as to whether Sajeevan was unconscious at that time, PW4 answered in the negative. But, that answer has been contradicted by his Ext.D3 statement. Ext.D3 is to the effect that Sajeevan was unconscious at that time. To another question as to whether Sajeevan was conscious while he was being taken to the car, PW4 expressed his ignorance. It is also the case of PW4 that on the way to hospital, Sajeevan was heard to say that he was unable to breathe and he would die. To another question as to whether Sajeevan was conscious when he reached the hospital, PW4 did not give a proper answer, but stated that Sajeevan was heard to say that he was unable to breathe and he would die. He also stated that Sajeevan did not say anything else. Then, he volunteered and stated that Sajeevan was heard to say that the accused had stabbed him. PW4 had no such case during chief-examination. At that stage, his case was that PW1 said that Sajeeven was stabbed by the accused. 31. Whether the statement of PW4 that Sajeevan was heard to say that he was stabbed by the accused can be believed? According to PW4, PW7 was also in the car while Sajeevan was being taken to hospital in his car. At that stage, his case was that PW1 said that Sajeeven was stabbed by the accused. 31. Whether the statement of PW4 that Sajeevan was heard to say that he was stabbed by the accused can be believed? According to PW4, PW7 was also in the car while Sajeevan was being taken to hospital in his car. PW7 has no case that Sajeevan was heard to say that he was stabbed by the accused. But, he stated that, while going by the car, he knew that Sajeevan was stabbed with a knife. PW7 also claimed that Sajeevan was conscious when they reached the hospital. He further stated that Sajeevan and himself told the facts to the doctor there. Then, he corrected himself and stated that he alone informed the facts to the doctor. It is his case that he told the doctor that Sajeevan was stabbed by the accused with a knife. 32. PW5, another elder brother of Sajeevan, stated that knowing the fact that Sajeevan was taken to the Government Hospital, Haripad, he went there. When he reached there, first aid was being given to Sajeevan. Then, Sajeevan told him that the accused stabbed him, that he was unable to breathe and that he would die and requested him to look after his children. He also stated that Sajeevan was conscious when he (PW5) reached that Hospital. PW4 or PW7 does not have a case that Sajeevan told such things to PW5. 33. PW8 doctor had examined Sajeevan at the Government hospital, Haripad, at 5 p.m. on 6.9.2003 and issued Ext.P3 Wound Certificate. It can be seen from Ext.P3 and the deposition of PW8 that Sajeevan was brought to that Hospital by some friends and the cause of injury alleged was that stabbed with scissors at 4 p.m. on 6.9.2003 at Thrikkunnappuzha. PW8 also stated that no other person accompanying the patient had stated that he was stabbed. The case spoken to by PW7 that he himself had stated the facts to the doctor is belied by the evidence of PW8 doctor. Moreover, whether Sajeevan was conscious or unconscious at that time is not stated in Ext.P3. PW8 answered to a question during cross-examination that if the patient was unconscious that fact would have been recorded. The case spoken to by PW7 that he himself had stated the facts to the doctor is belied by the evidence of PW8 doctor. Moreover, whether Sajeevan was conscious or unconscious at that time is not stated in Ext.P3. PW8 answered to a question during cross-examination that if the patient was unconscious that fact would have been recorded. If that evidence of the doctor is accepted and Sajeevan was found conscious at that time, what prevented Sajeevan to explain the facts to the doctor? The case of PW4 that Sajeevan was conscious when he was seen is contradicted by his own Ext.D3 statement. That the case of PWs. 5 and 7 that Sajeevan was conscious cannot be accepted in the light of the facts stated in Ext.P3. 34. The statement made by the doctor that if the patient was unconscious that fact would have been recorded cannot be relied on for finding that Sajeevan was conscious at that time. The alleged cause of injury noted in Ext. P3 assumes significance when evaluating the evidence of PWs.4, 5 and 7. The cause alleged is that stabbed with scissors and not with a knife. The name of the accused is not stated in the alleged cause of injury. It is also specifically noted in Ext.P3 that Sajeevan was brought to the hospital by some friends. In the light of these facts and the evidence of PW8, the case of PWs. 4 and 5 that Sajeevan was heard to say that he was stabbed by the accused cannot be believed. 35. The Investigating Officer (PW13) admitted that he had seen the alleged cause of injury stated in Ext.P3 Wound Certificate. He also stated that he had questioned PW8 doctor. The alleged cause of injury stated in Ext.P3 is that stabbed with scissors at 4 p.m. on 6.9.2003 at Thrikkunnappauzha. It is also stated in this document that Sajeevan was brought to the hospital by some friends. The name of the accused or the involvement of a knife does not find a place in Ext.P3. In view of these facts, it was incumbent on the part of PW13 to have a thorough investigation of such facts alleged in Ext.P3. But, no such investigation has been conducted by the Investigating Officer. No explanation is forthcoming for such failure. 36. Similarly, the investigation in respect of the place of occurrence is also improper. In view of these facts, it was incumbent on the part of PW13 to have a thorough investigation of such facts alleged in Ext.P3. But, no such investigation has been conducted by the Investigating Officer. No explanation is forthcoming for such failure. 36. Similarly, the investigation in respect of the place of occurrence is also improper. The prosecution claim that PWs. 2 and 3 had witnessed the occurrence. They (prosecution) have no case that PW1 had witnessed the occurrence. But, it is their case that the place of occurrence was shown to the Investigating Officer by PW1, who is admittedly not an eyewitness to the occurrence. Therefore, for that reason alone, no sanctity could be attached to Ext.P7 scene mahazar prepared by the Investigating Officer in this case. Moreover, PW1 did not depose that he had thus shown the place of occurrence to the Investigating Officer. According to the prosecution, PW11 is an attesting witness to the scene mahazar and he was cited and examined for proving the preparation of scene mahazar. But, he did not support the prosecution. He was declared hostile. His evidence is of no use for the prosecution for proving the preparation of scene mahazar. The investigating agency has failed to have a proper investigation in respect of the place of occurrence in this case. 37. The occurrence witnesses PWs. 2 and 3 and the witness PW1 are not at all credible and trustworthy for the reasons already stated. A close evaluation of their evidence would go to show that they are all witnesses planted by the prosecution for proving their particular theory of occurrence. Their evidence is not at all reliable for finding that the occurrence took place as stated by the prosecution or at the place claimed by the prosecution. According to PWs.2 and 3, a few persons gathered there at the time of occurrence. Who were they? PWs. 1 and 3 are residing in the nearby area of the alleged place of occurrence. PW2, according to him, is residing 2 KM away from the alleged place of occurrence. These three witnesses are presented by the prosecution as chance witnesses. For the reasons already stated, their presence at the alleged scene place cannot be believed. Navas, who was allegedly accompanying PW1, is cited as a witness by the prosecution. But, he was not examined. PW2, according to him, is residing 2 KM away from the alleged place of occurrence. These three witnesses are presented by the prosecution as chance witnesses. For the reasons already stated, their presence at the alleged scene place cannot be believed. Navas, who was allegedly accompanying PW1, is cited as a witness by the prosecution. But, he was not examined. A few witnesses residing in the nearby areas of the alleged place of occurrence have been cited for giving evidence supporting the prosecution case. But, none of them were examined resulting in zero corroboration for the evidence given by PW1. 38. Another material contradiction with regard to a particular fact appearing in the evidence of PW4 and in the evidence of PWs. 1 and 7 is also significant to note here. It is the specific case of PW4 that PW1 brought Sajeevan to his shop and when he was going to his house for taking the car, Sajeevan was sitting on his scooter with the help of PW1 just in front of his shop. When he returned with his car also Sajeevan was sitting on the scooter there and, from where, he was taken to the hospital in his car with the help of others including PW7. 39. During chief-examination, PW7 stated that Sajeevan was seen taken into the car of PW4 in front of his (PW4) grocery shop. He further stated that he also went by that car. But, during cross-examination, he had changed his version. He stated that on knowing that Sajeevan was taken to hospital, on the way to hospital, he went to the shop of Krishnankutty at 4.30 p.m. Then, Sajeevan was seen lying down in the shop of Krishnankutty. Similarly PW1, in chief-examination, stated that he had taken Sajeevan on his bicycle to the shop of Pankajakshan (father of PW4). Since Sajeevan could not sit on the scooter, PW4 brought his car and by that car, with the help of three others, he (PW4) had taken Sajeevan to hospital. But, during cross-examination, he had changed his version. He stated that when PW4 went to take his car, Sajeevan and himself waited in front of the shop of Krishnankutty for about 10 minutes. 40. The shop of PW4 and Krishnankutty situate at different places. But, during cross-examination, he had changed his version. He stated that when PW4 went to take his car, Sajeevan and himself waited in front of the shop of Krishnankutty for about 10 minutes. 40. The shop of PW4 and Krishnankutty situate at different places. To a question as to whether Sajeevan was lying down in the shop of Krishnankutty when PW4 returned with his car, PW4 denied the same. The evidence of PW4 shows that he did not even know whether Krishnankutty has a shop. Therefore, when we go through the evidence of PWs.1, 4 and 7, the evidence of PWs. 1 and 7 is self-contradictory and their evidence is contradictory to the evidence of PW4 in this regard. 41. We shall now consider the motive alleged by the prosecution for committing the murder of Sajeevan. The allegation is that the accused had the business of selling illicit arrack, which the deceased Sajeevan opposed. Sajeevan told the accused that he would inform the police if he sold arrack. The enmity developed out of this issue led the accused to kill Sajeevan. PW1 is a friend and neighbour of Sajeevan. He stated that he did not know the reason behind the occurrence. PW2 stated that he had only hearsay information, that too after the occurrence in this case, regarding the sale of arrack by the accused. He categorically stated that he did not know anything about the enmity between the accused and Sajeevan. 42. PW3 stated that the accused had illicit distillation of arrack. Sajeevan told him that he would cause his arrest by the police if he sold arrack. Then, the accused replied that if he was so arrested by the police, he would stab Sajeevan to death. PW3 deposed these facts as heard directly by her from them. She claimed that she had stated to the police that she heard the accused saying to Sajeevan that he would stab him to death. But, it is in evidence that such a statement is absent in her statement given to the police. Therefore, in view of this omission in her statement, no credibility could be attached to the evidence of PW3 regarding the motive alleged against the accused. 43. PW5 stated that Sajeevan was heard to say to the accused that if he had continued the selling of arrack there, he would complain to the police. Therefore, in view of this omission in her statement, no credibility could be attached to the evidence of PW3 regarding the motive alleged against the accused. 43. PW5 stated that Sajeevan was heard to say to the accused that if he had continued the selling of arrack there, he would complain to the police. According to PW5, due to enmity developed out of this, the accused stabbed Sajeevan to death. But, it is in evidence that the statement of PW5 that he heard Sajeevan saying so to the accused is absent in his statement given to the police. In view of this omission, no credibility could be attached to the evidence of PW5 regarding the motive alleged against the accused. Therefore, the motive alleged by the prosecution stands not proved. 44. It is the specific case of the defence that PWs. 2 and 3, who were examined by the prosecution as occurrence witnesses, had not witnessed the occurrence at all. The defence also impeaches the veracity and credibility of the evidence tendered by PWs. 1, 4, 5 and 7. According to the defence, the prosecution has not placed the true facts before the court or suppressed the material facts from the notice of the court. No proper investigation has been conducted in this case. For the facts and reasons already considered, the arguments so advanced by the defence have substance. The evidence of PWs.1 to 5 and 7 does not inspire any confidence or faith to place reliance on it. They appear to have deposed to a particular prosecution theory in order to secure the conviction of the accused in a charge of murder. 45. The prosecution cannot have a partisan or hostile attitude in a criminal trial. The investigation and trial of the case shall be fair and transparent to inspire confidence or faith in them. The fairness and transparency of investigation and trial are essential for protecting the rights guaranteed under Article 21 of the Constitution of India. The true faith of the parties as well as the members of the society in the criminal justice delivery system will alone help the system to survive. The investigation or trial devoid of its true spirit and merit will undermine the confidence of the society in the criminal system of administration of justice as well as in the sublime values enshrined in our Constitution. 46. The investigation or trial devoid of its true spirit and merit will undermine the confidence of the society in the criminal system of administration of justice as well as in the sublime values enshrined in our Constitution. 46. A fair investigation of the case is not a mere exercise of formulating a particular theory as the prosecution case with such evidence so as to secure a conviction of the accused based on that theory. The prosecution case must be one placing the true facts including those facts which are beneficial to the accused to the notice of the court. A conviction secured without adhering to the fair principles of criminal justice would be anathema. 47. We shall now consider, in the background of the foregoing facts and circumstances, the case of the defence regarding the delay in the FIR reaching the Magistrate. Learned counsel for the appellant submitted that an inordinate delay of about 5 days occurred in the FIR reaching the Magistrate. This delay, in fact, prejudiced the accused in this case. The witnesses examined and relied on by the prosecution in support of their case cannot be believed and the case of the prosecution so spoken through those witnesses was an afterthought and creation at the hands of the investigating agency for securing the conviction of the accused, learned counsel further submitted. The occurrence in this case, according to the prosecution, took place at 4.30 p.m. on 6.9.2003 at Kizhakkekara Thekkummuri in Thrikkunappuzha Village. Ext.P1 F.I. Statement shows that it was given by PW1 at 8.30 p.m. on 6.9.2003 to PW12, the Sub Inspector of Police, Thrikkunnappuzha Police Station. Based on Ext.P1, PW12 registered Crime No.168/2003 of that Police Station. Ext.P1(a) is the FIR. It is noted in the FIR that it was registered at 8.30 p.m. on 6.9.2003. It can be seen from Ext.P1(a) that this document reached the court at 10.30 a.m. on 11.9.2003 and it came to the notice of the Magistrate at 2.45 p.m. on 11.9.2003. Therefore, the FIR reached the court only after 4 days and 12 hours and it reached the Magistrate 04.15 hours thereafter. The delay thus occurred in the FIR reaching the Magistrate, prima facie, appears to be inordinate in nature. 48. Therefore, the FIR reached the court only after 4 days and 12 hours and it reached the Magistrate 04.15 hours thereafter. The delay thus occurred in the FIR reaching the Magistrate, prima facie, appears to be inordinate in nature. 48. The information furnished by PW1 in Ext.P1 is relating to the commission of a cognizable offence and the FIR registered by PW12, based on Ext.P1, is relating to a cognizable case. Therefore, the information furnished by PW1 is coming under Section 154 of Cr.P.C. and the case registered by PW12 is one which can be investigated by a police officer as provided under Section 156 of Cr.P.C. Section 157 of Cr.P.C. mandates that an officer-in-charge of a police station shall send such FIR to the Magistrate forthwith. On receiving such FIR, the Magistrate is empowered to act as provided under Section 159 of Cr.P.C. 49. Dealing with the delayed filing of FIR and its consequences, the Supreme Court in Thulia Kali v. State of Tamil Nadu [(1972) 3 SCC 393)] held in paragraph 12 as follows: "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained. "Dealing with sending of FIR to the Magistrate forthwith and its delay, a Division Bench of this Court in Appukkuttan v. State (1989 CRL. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained. "Dealing with sending of FIR to the Magistrate forthwith and its delay, a Division Bench of this Court in Appukkuttan v. State (1989 CRL. L.J. 2362) held in paragraph 17 as follows: "The object of recording the earliest version and it reaching the Magistrate forthwith is to avoid embellishments and keep the Magistrate informed of the investigation. When no infirmity is brought to the notice of the Court and no prejudice occasioned to the accused, the delay itself cannot be urged as a technical ground to contend that investigation is tainted and the prosecution is unsupportable". In Arjun Marik & Ors. v. State of Bihar (JT 1994(2) S.C. 627), dealing with the scope of Sections 157 and 159 of Cr.P.C., the Supreme Court held as follows: "24. The matter does not stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the Trial Court as well as the High Court and it is with regard to the sending of occurrence report (FIR) to the Magistrate concerned on 22.7.85 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an Officer-in-charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Section 157, Cr.P.C. thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159, Cr.P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 Cr.P.C. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch in the progress of the investigation. "The Supreme Court in Bhajan Singh alias Harbhajan Singh and Ors. v. State of Haryana (AIR 2011 SC 2552) held as follows: "15. Thus, from the above it is evident that the Cr.P.C provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159, Cr. P.C., if so required. Section 159, Cr. P.C. empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression 'forthwith' mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances. However, unexplained inordinate delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances. However, unexplained inordinate delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations. Delay provides legitimate basis for suspicion of the FIR, as it affords sufficient time to the prosecution to introduce improvements and embellishments. Thus, a delay in dispatch of the FIR by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence". Thus, it is well settled that the FIR should reach the Magistrate immediately and without undue delay. It is also well settled that mere delay in sending the FIR to the Magistrate cannot be a ground for throwing away the prosecution case if the evidence adduced in the case is found to be credible and unimpeachable. The significance of sending the FIR immediately and without delay to the Magistrate cannot be overemphasised as it has a vital and valuable role to be played in a criminal trial. Therefore, Section 157 of Cr.P.C. has to be followed in letter and spirit. This Section mandates that if, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. The word 'forthwith' employed in this Section mandates in unequivocal terms that the FIR should be sent by the concerned police officer immediately and without any delay. 50. An early recording of FIR and it's reaching the Magistrate forthwith may help to ensure that a true version of the occurrence is presented before the Court for its consideration. It may serve as an added assurance to the prosecution case. 50. An early recording of FIR and it's reaching the Magistrate forthwith may help to ensure that a true version of the occurrence is presented before the Court for its consideration. It may serve as an added assurance to the prosecution case. The delay may cause injustice and prejudice to the accused owing to chances of manipulation and distortion of the true facts during that delayed period. The delay may result in introducing embellishments and improvements in the prosecution case. It is also likely that the delay may be caused by the parties interested for introducing embellishments and improvements in respect of the occurrence as an afterthought. Section 159 of Cr.P.C. provides that on receipt of the FIR, the Magistrate may direct an investigation of the case or to hold a primary inquiry into the case either by himself or through a Magistrate subordinate to him. This provision ensures and enables the Magistrate to have a watch in the progress of the investigation or to give appropriate directions to the investigating agency. Therefore, in order to ensure a fair and proper investigation and trial of a criminal case, prompt lodging of FIR with the police in respect of commission of an offence and sending the same forthwith to the Magistrate are necessary. 51. The prosecution have not explained the reason for occurring the delay in sending the FIR to the Magistrate in this case. PW13, the Investigating Officer, did not explain anything justifying the delay occurred in sending the FIR to the Magistrate. Learned Additional Sessions Judge found the intervening holidays as the reason for occurring the delay in the FIR reaching the court. The court below observed that 07.09.2003 was a Sunday and 08.09.2003, 09.09.2003 and 10.09.2003 were Onam holidays. This reasoning of the court below is legally unsustainable. 52. We have already found with the support of rulings that Section 157 of Cr.P.C. mandates that the FIR should be sent to the Magistrate forthwith i.e., immediately and without any delay. Section 157 of Cr.P.C. does not say that the FIR should be sent to the court, but it stipulates that it should be sent to the Magistrate. Therefore, the intervening holidays for the court for any reason cannot be a ground for the delay in the FIR reaching the Magistrate after its registration. Section 157 of Cr.P.C. does not say that the FIR should be sent to the court, but it stipulates that it should be sent to the Magistrate. Therefore, the intervening holidays for the court for any reason cannot be a ground for the delay in the FIR reaching the Magistrate after its registration. Even if holidays are followed after registering the FIR, the FIR should reach the Magistrate at his residence. This position has been explained by the Supreme Court as well as this Court since long back in reported rulings. In Appukuttan's case (supra), the Division Bench of this Court observed in paragraph 18 as follows: "However, we may emphasise the necessity of sending the FIR forthwith to the Magistrate without any delay and point out that there is no justification in putting off the communication of the FIR to a working day as what is contemplated by S.157 is forwarding the report "forthwith" to the Magistrate and not to the Court. We are mentioning this because we find that in large number of cases the Investigating Officers are not sending the report to the Magistrate expeditiously on the ground that a particular date is not a working day." The Supreme Court in Arjun Marik's case (supra) held in paragraph 25 as follows: "If in fact the FIR was already recorded in the morning of 20.7.85 there was no reason not to despatch the same to the Magistrate concerned till 22.7.85. Though there is no material on record to show as to why delayed report was sent to the Magistrate on 22.7.85 but the learned counsel appearing for the respondent-State submitted at the Bar that the Investigating Officer remained busy in the investigation on 20.7.85 which was Saturday and since 21.7.85 was Sunday the report was sent on a Monday, the 22.7.85. He submitted that in Bihar State even in murder cases FIR is never sent to the residence of a Magistrate on Sundays and holidays. If that be so, we are afraid such a practice can never be said to be healthy practice which renders the mandatory provision nugatory. If such a practice is prevalent it must be deprecated and it is high time that the authorities concerned should woke up and see that the provisions of Section 157 Cr.P.C. are complied with in letter and spirit". If such a practice is prevalent it must be deprecated and it is high time that the authorities concerned should woke up and see that the provisions of Section 157 Cr.P.C. are complied with in letter and spirit". A Division Bench of this Court in Samuelkutty v. State of Kerala (1998 (2) K.L.J. 180), relying on the ruling of the Supreme Court in Arjun Marik's case (supra), held in paragraph 11 as follows: "It is not in dispute that Ext.P1(a), the first information report in the case reached the Magistrate only on 14-9-1993 and there is no explanation for the delay in the FIR reaching the Magistrate. When questioned, P.W.15 has admitted that it has reached the court only on 14- 9-1992. The prosecution has no explanation for the said delay. The learned Sessions Judge condoned the delay by observing that 12-9-1992 was a second Saturday and 13-9-1992 was a Sunday and hence Ext.P1 was received by the Magistrate only on 14-9-1992. The fact that 12-9- 1992 and 13-9-1992 were holidays cannot be the reason for the delay in the first information report reaching the court. In Arjun Marik and others v. State of Bihar (JT 1994 (2) SC 627) the Supreme Court while dealing with a contention that the delay in the first information report reaching the court was on account of the intervening holidays held that if such a practice is prevalent, it must be deprecated and it is high time that the authorities concerned should wake up and see that the provisions of Sec.157 Cr.P.C. are complied with in letter and spirit. Though the delay itself may not be significant in a given case, we are of the view that in view of the discussions made earlier, the delay in the first information report reaching the court is also relevant in this case, which delay also throws considerable doubts about the prosecution version." The Supreme Court in State of Rajasthan v. Teja Singh [(2001) 3 SCC 147)] observed in paragraph 4 as follows: "As a matter of fact, the explanation put forth by the learned counsel in regard to the delay in the FIR reaching the court is not tenable because assuming that there were some court holidays that cannot be a ground for the delay in the FIR reaching the Magistrate, because requirement of law is that the FIR should reach the Magistrate concerned without any undue delay." 53. Therefore, the intervening holidays for the court is not at all a ground justifying the delay in the FIR reaching the Magistrate. The investigating agency in this case cannot be found to be ignorant about the law to be followed in the matter of sending FIR to the Magistrate as stipulated under Section 157 of Cr.P.C. and as held by the Supreme Court as well as this Court in various rulings. 54. The inordinate and unexplained delay occurred in the FIR reaching the Magistrate is very significant in this case. This delay has to be considered in the backdrop of the inconsistent and contradictory evidence tendered by the occurrence witnesses PWs. 2 and 3 as well as the witnesses PWs.1, 4, 5 and 7. The evidence of these witnesses cannot be believed for various reasons already adverted to. The presence of PWs.2 and 3 at the alleged place of occurrence cannot be believed. PW1 is a friend and neighbour of deceased Sajeevan. PW3 is the wife of the elder brother of Sajeevan. PWs. 5 and 7 are elder brothers of Sajeevan. On a careful consideration of the entire facts and circumstances, we find that their testimonies are interested in nature. No credibility can be attached to their evidence. Similar is the position in regard to the evidence of PW4. 55. We have already seen the alleged history of the injury stated in Ext.P3 Wound Certificate and deposed to by PW8 doctor. That stabbed with scissors at Thrikkunnappuzha is stated to be the alleged cause of injury. No credibility can be attached to their evidence. Similar is the position in regard to the evidence of PW4. 55. We have already seen the alleged history of the injury stated in Ext.P3 Wound Certificate and deposed to by PW8 doctor. That stabbed with scissors at Thrikkunnappuzha is stated to be the alleged cause of injury. The prosecution does not have a case that the deceased Sajeevan was stabbed with scissors. According to them, he was stabbed with a knife. The place of occurrence, according to the prosecution, is Kizhakkekara Thekkummuri in Thrikkunnappuzha Village. The place of occurrence noted against the cause of injury in Ext.P3 is Thrikkunnappuzha. Thrikkunnappuzha and Kizhakkekara Thekkummuri are different places. The Investigating Officer (PW13) has not investigated into the alleged cause of injury entered in Ext.P3. We have already found that no sanctity could be attached to the scene mahazar showing the place of occurrence in this case. 56. Ext.P1(a) FIR shows that a serious correction has been effected in the entry regarding the time of occurrence. Both the figures now seen before '.30 Hrs' in Ext.P1 (a) have been entered after scratching away some other figures earlier written there. PW12 has registered Ext.P1(a) FIR. To a suggestion that the entry of 2.30 hours on 6.9.2003 against the column showing the day of occurrence of offence has been corrected as 16.30 hours, PW12 admitted the same. As a matter of fact, that entry cannot be exactly read as 16.30 hours. That correction is not authenticated. The necessity for effecting such a correction has not been explained either by PW12 or by PW13. PW13 deposed that there was no correction in the FIR available in his CD file and he had not seen the original FIR. 57. It is the definite case of the defence that Sajeevan sustained the fatal injury at 2.30 p.m. on that day and not at 4.30 p.m. as claimed by the prosecution. Therefore, the unexplained correction, regarding the time of occurrence, in Ext.P3 also assumes significance affecting the prosecution case. When all these facts are considered along with other facts and circumstances pointed out while considering the evidence of PWs. 1 to 5 and 7, the probability that a different earlier version of occurrence had been changed into the present one seen in Ext.P1 and P1(a) cannot be ruled out. When all these facts are considered along with other facts and circumstances pointed out while considering the evidence of PWs. 1 to 5 and 7, the probability that a different earlier version of occurrence had been changed into the present one seen in Ext.P1 and P1(a) cannot be ruled out. For all these reasons, the case of the defence that an attack between people belonging to two different clubs took place on the day of Pooradam and in that attack the deceased Sajeevan sustained a fatal injury at the hands of somebody also cannot be lightly brushed aside. 58. It is also the case of the defence that Sajeevan was drunk while he was so receiving the fatal injury. PWs. 3, 5 and 7 deposed that Sajeevan did not have the habit of consuming liquor. This is belied by Ext.P5 Certificate of Chemical Analysis, which shows that ethyl alcohol was detected in the sample of blood of Sajeevan and its percentage was 23.00 mg. Ext.P4 Post-mortem Certificate also shows that smell of toddy was present while examining the contents in the stomach of deceased Sajeevan. 59. The presumption of innocence of the alleged accused is fundamental in nature in the criminal justice delivery system until the charges framed against him are proved beyond reasonable doubt by way of credible, cogent and unimpeachable evidence. The evidence collected by the investigating agency and adduced before court during trial shall not create suspicion and cast shadow of doubt on the credibility and truthfulness of the prosecution case spoken through their witnesses. The facts narrated and the discussions held in this case would definitely create serious suspicion and cast a reasonable doubt on the prosecution case. Therefore, the accused in this case is entitled to the benefit of doubt. The reliance placed by the court below on the evidence of PWs. 1 to 5 and 7 for finding the accused guilty is on a wrong appreciation of evidence. Therefore, the conviction and sentence passed against the appellant/accused are liable to be set aside and he is entitled to be acquitted of the charge laid against him. In the result, (a) The conviction and sentence passed against the appellant/accused are set aside.(b) The appellant/accused is found not guilty of the offence alleged against him. Therefore, the conviction and sentence passed against the appellant/accused are liable to be set aside and he is entitled to be acquitted of the charge laid against him. In the result, (a) The conviction and sentence passed against the appellant/accused are set aside.(b) The appellant/accused is found not guilty of the offence alleged against him. He is acquitted of the offence under Section 302 of IPC.(c) A copy of this judgment shall forthwith be communicated by the Registry to the court below and the prison concerned.(d) If further detention of the appellant/accused is not required in connection with any other case, he shall be set at liberty forthwith.(e) The Registry is directed to issue the release order forthwith. This Criminal Appeal is allowed.