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2014 DIGILAW 265 (KER)

Suresh v. State of Kerala

2014-03-20

B.KEMAL PASHA, V.K.MOHANAN

body2014
Judgment Kemal Pasha, J. 1. Criminal Appeal No.2207 of 2010 has been preferred by accused Nos.1 to 4 and 6 to 9 in S.C.No.1374/2008 of the Additional Sessions Court (Adhoc-I), Thrissur, challenging the conviction and sentence passed by the said court. Criminal Appeal (V) No.275 of 2014 is filed by PW2, in his capacity as the elder brother of the deceased, challenging the acquittal of A5 in the case and also the acquittal of the appellants except A2, who is the 2nd appellant, for the offence under Section 302 read with Section 149 IPC. 2. The facts reveal that a dispute, which has arisen in between two groups associated with two poorams at the festival of Peedikeshwaram Siva Temple of Pengamukku of Pazhanji Village at 5 p.m. on 17.02.2000, has transformed into a quarrel between the two groups, which ultimately resulted in transforming the festival ground of the temple as a battle field. 3. It is alleged that the accused, in prosecution of their common object, formed themselves into an unlawful assembly armed with deadly weapons like sword, knife and stick, committed rioting and rioting armed with deadly weapons. The prosecution case is that the 1st accused made an exhortation to do away with the deceased and his friends, and attempted to cut one Rajesh with a sword, which was warded off by PW1, who is the elder brother of Rajesh, thereby PW1 sustained an injury on his right palm and forehead. It is alleged that the 2nd accused stabbed the deceased with MO4 knife on his abdomen, and thereby the deceased died prior to his reaching the hospital. 4. The 9th accused stabbed PW3 with MO1 sword. The 5th accused voluntarily caused grievous hurt to PW3 by beating with MO2 bamboo stick. It is alleged that the other accused also aided the aforesaid accused to commit the offences. 5. On the basis of Ext.P1 First Information Statement furnished by PW1 before PW18 Head Constable of Police, Kunnamkulam Police Station, at 6.15 p.m., on the same day, PW18 registered Crime No.76/00 through Ext.P1 (a) FIR at 7.15 p.m. It seems that Ext.P1 was recorded at the Royal Hospital, Kunnamkulam, while PW1 was undergoing treatment as inpatient. The investigation was taken over by PW19, Circle Inspector of Police, Kunnamkulam. 6. PW19 conducted the inquest on the body of the deceased and prepared Ext.P3 inquest report. The investigation was taken over by PW19, Circle Inspector of Police, Kunnamkulam. 6. PW19 conducted the inquest on the body of the deceased and prepared Ext.P3 inquest report. On 18.2.2000 at 4 p.m., he reached the scene of occurrence and prepared Ext.P14 scene mahazar. He had allegedly seized some material objects from the spot through Ext.P14. On 19.2.2000, he placed A2, A5, A6, A7 and A8 under arrest. On the basis of Ext.P19 information allegedly furnished by A6, and as led by him, he seized MO2 taken out and produced by A6 at 10.25 a.m. On 20.2.2000, through Ext.P5 mahazar. On the basis of Ext.P20 information allegedly furnished by A2 and as led by him, PW19 seized MO4 knife taken out and produced by A2, at 11.15 a.m. on 20.2.2000, through Ext.P4 mahazar. Thereafter, the investigation was handed over to PW17. Subsequently, PW16 continued the investigation, completed it, and filed the final report. 7. On the side of the prosecution, PWs.1 to 19 were examined, Exts.P1 to P20 were marked, and MO1 to MO4 were identified. On the side of the accused, Exts.D1 series were marked. After closing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. They denied the incriminating circumstances appeared in the evidence against them, and pleaded innocence. 8. On hearing the prosecution and the defence, the court below could not find any grounds to acquit the accused under Section 232 Cr.P.C., and therefore, they were called upon to enter on their defence. No defence evidence was adduced. Again, the prosecution and the accused were heard. The court below acquitted A5 and found all the other accused guilty of the offences punishable under Sections 326 and 324 IPC read with Section 149 IPC, and Ss.143, 147 and 148 IPC; and each of them were sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of 25,000/- each, in default, simple imprisonment for one year, under Section 326 IPC, rigorous imprisonment for 3 years, each under Sections 148 and 324 IPC read with S.149 IPC and to undergo rigorous imprisonment for 3 months each under Section 143 IPC. Over and above it, the 2nd accused was found guilty of the offence under Section 302 IPC also, and he was sentenced to undergo imprisonment for life and to pay a fine of 2 lakhs, in default, simple imprisonment for 2 more years, under Section 302 IPC. 9. We have heard the learned Senior Counsel Sri.Raman Pillai appearing for the 2nd appellant and the learned Senior Counsel Sri.P.Vijayabhanu appearing for all the other appellants in Crl.A.No.2207/10. For the sake of convenience, the said appellants are hereinafter referred to as the accused in the order in which they were arraigned. We have heard Sri.P.S.Sreedharan Pillai, learned counsel appearing for PW2 who has preferred Crl.A.No.275/14. We have heard Sri.Roy Thomas, learned Public Prosecutor for the State. 10. Both the learned Senior Counsel for the accused have argued that there is no sufficient evidence before the court below to connect any of these accused with the crime. It is also argued that the evidence of the prosecution witnesses, who were examined as occurrence witnesses, is shrouded with contradictions and improbabilities and therefore, the court below ought not to have relied on them to convict and sentence these accused. According to the learned counsel for the appellant in Crl.A.No.275/14, all the accused along with A5 should have been convicted for the offence of murder under Section 302 IPC, with the aid of Section 149 IPC. The learned Public Prosecutor has vehemently supported the prosecution and argued that there is sufficient evidence to uphold the conviction and sentence passed by the court below and therefore, the impugned judgment is not liable to be interfered with. 11. The learned Senior Counsel appearing for the accused have invited our attention to the contents of Ext.P1 F.I.Statement. It seems that Ext.P1 was furnished at 6.15 p.m. by PW1 before PW18 at the Royal Hospital, Kunnamkulam on 17.02.2000. His versions in Ext.P1 can be summarised as follows: On 17.2.2000 at 5 p.m., he along with deceased Unni and PW2, who is the elder brother of the deceased, with others went to Peedikeshwaram Temple for watching the festival. At that time poorams had reached the temple. There occurred a dispute regarding the non-entry of poorams at the specified time to the temple. Following the dispute, there was a quarrel in which beatings occurred. At that time poorams had reached the temple. There occurred a dispute regarding the non-entry of poorams at the specified time to the temple. Following the dispute, there was a quarrel in which beatings occurred. At that time, under the leadership of A1 Suresh, Saji and Chandran, along with other persons numbering a total of around 10, came as a group armed with sword, knife, and stick. They beat, inflicted cuts and stabs on PW1 and his friends. A1 inflicted a cut aimed at the younger brother of PW1, which PW1 warded off and thereby he sustained an injury on his right hand and forehead. Unni was stabbed by 'Saji of Karichal Kadavu' with a knife below his abdomen. Unni collapsed. By that time, those persons who were present with PW1 were cut, stabbed and also beat by the accused. The accused also sustained injuries in the incident. Somebody who had gathered there took the injured persons to the hospital. When PW1 reached the hospital, he came to know that Unni, who was stabbed, died. 12. According to PW1, he and his friends were sympathisers of RSS and the accused are the workers of CPI (M) party. 13. The learned Senior Counsel for the 2nd accused has pointed out that A2 and A4 in the case are named Saji, and it is not clear from the prosecution evidence, whether the liability of causing the death of the deceased was attributed to A2 or A4. Further, the learned Senior Counsel has pointed out that PW1, who claimed to have seen the incident, had given the first statement in the form of Ext.P1 in the case by mentioning that it was 'Saji of Karichal Kadavu' who stabbed the deceased below his abdomen, which resulted in the death of the deceased. In order to fortify that PW1 had meant A4 as 'Saji of Karichal Kadavu' who had allegedly stabbed the deceased to death, our attention has been taken to the versions of PW19. 14. PW19 was the Circle Inspector of Police, Kunnamkulam who started the investigation and conducted and led the investigation almost to the final stage. In order to fortify that PW1 had meant A4 as 'Saji of Karichal Kadavu' who had allegedly stabbed the deceased to death, our attention has been taken to the versions of PW19. 14. PW19 was the Circle Inspector of Police, Kunnamkulam who started the investigation and conducted and led the investigation almost to the final stage. When the learned Senior Counsel appearing for the accused has relied on the versions of PW19, the learned Public Prosecutor has argued that the said investigating officer had to be removed from the duty of investigation of this case as the investigation was not proceeding through the correct line and that the investigation was handed over to PW17, who was working as the Circle Inspector of Police, Town East Police Station, Thrissur. Even though the learned Public Prosecutor has taken strong exceptions for the conduct of the investigation by PW19, any of the records before us does not reveal any such allegations against PW19 by the prosecution. No such questions of irregularities or misconduct were seen put to PW19 when examined before the court below. No such questions attributing flaws in the investigation conducted by PW19 were seen put to PW17 also, when examined before the court below. Even though the learned Public Prosecutor has requested us to peruse the contents of the case diary, we are of the view that it will not yield any fruitful result; especially when any such allegations were not put to PW19 by the, when he was examined before the court below. 15. On going through the evidence of PW19, it could be seen that in chief examination itself he has deposed that over and above the names of the accused, whose names are mentioned in Ext.P1(a) FIR, one Madissery Saji (A2), Sura (A1), Shaju, Rangesh (A7), Ranjith, Vasu (A6), Bineesh (A8), Unnimon (A9) were also mentioned as accused, by CW13 Sudhakaran, who was examined during the inquest. That itself clearly denotes that the name 'Saji of Karichal Kadavu' seen mentioned in Ext.P1 and who was made an accused in Ext.P1(a) is not 'Madissery Saji' who was mentioned as A2 by the court below when PW19 was examined in chief. Further, the position is clear from the deposition of PW19 in cross examination. That itself clearly denotes that the name 'Saji of Karichal Kadavu' seen mentioned in Ext.P1 and who was made an accused in Ext.P1(a) is not 'Madissery Saji' who was mentioned as A2 by the court below when PW19 was examined in chief. Further, the position is clear from the deposition of PW19 in cross examination. He was specifically asked whether A4 in the case could be made known only by denoting him as 'Karichal Kadavu Saji', the witnesses answered in the affirmative. The learned Public Prosecutor has intervened and pointed out that any such question as to whether A4 is 'Karichal Kadavu Saji', was not seen put by the learned counsel for the accused to PW19 in cross examination and therefore, the vague version given by PW19 cannot be accepted. When such a doubt could be clearly corrected by the defence through re-examination of PW19 regarding the identity of A4, the prosecution ought to have clarified it in re-examination, if the prosecution had such a case. It seems that no attempt was made by the prosecution to clarify any such doubt. Even though the said aspect was put to PW1, it seems that the prosecution has not made any attempt to clarify anything regarding the said contents of Ext.P1 during the examination of PW1 also. 16. Now the evidence of PW1 has to be perused. According to PW1, there were altogether 12 poorams for the festival and he belonged to Vivekananda pooram. According to him, the deceased along with PW4, CW12 Kumaran, PW3, PW2, CW13 Sudhakaran, CW11 Pushkaran, CW9 Rajesh, CW8 Prasad and CW6 Murali were also present with him. Here, on that point it has to be noted that even according to PW1, CW13 Sudhakaran was present along with him. It has to be remembered that according to CW13, over and above the said 'Saji of Karichal Kadavu' who was made an accused in Ext.P1(a), another Saji who was mentioned as A2 before the court below was also involved in the incident, when CW13 was examined by PW19 during inquest. 17. According to PW1, the accused belong to Nedumuri pooram. It seems that in cross examination it has come out that even though PW1 has claimed to be a person associated with Vivekananda pooram, he originally belonged to Anaparambu pooram. He only joined the Vivekananda pooram after reaching the temple compound. 17. According to PW1, the accused belong to Nedumuri pooram. It seems that in cross examination it has come out that even though PW1 has claimed to be a person associated with Vivekananda pooram, he originally belonged to Anaparambu pooram. He only joined the Vivekananda pooram after reaching the temple compound. According to PW1, PW2 Sreedharan approached the office bearers of the temple committee and asked them to remove those associated with Nedumuri Pooram as their time was over. At that time the persons associated with Nedumuri Pooram entered inside the temple ground and pushed the gathering of Vivekananda pooram. A1 took out MO1 sword from his pocket inside his shirt and attempted to inflict a cut aimed at the younger brother of PW1. PW1 defended the same with his right hand thereby he sustained injury on his right hand and forehead. Thereafter, it seems that PW1 has substantially deviated from the case in the police charge as well as the court charge. According to PW1, when he defended, MO1 sword got detached from the hand of A1 and it fell down. A9 took MO1 sword and inflicted a cut on the left thigh of PW3. A6 Vasu beat on the left hand of PW3 with a bamboo stick. Saji (the court below has merely recorded as "A2" in brackets) inflicted a stab at the right side of the umbilicus of the deceased with MO4 knife. On getting the stab, the deceased fell down. A5 Pradeep slapped CW8 with his hand. A6 and A3 beat CW8 with bamboo stick. A1 pelted stone on PW2, thereby PW2 sustained an injury below his right hand. On sustaining the aforesaid injury on his hand and forehead, PW1 went to the side of the compound wall and stood there and watched the incident. Saji(whose name is merely recorded as "A4" in brackets by the court below) son of Appukuttan and A8 Bineesh beat the persons associated with Vivekananda pooram with bamboo stick. According to him, members of the committee who gathered for the pooram festival, snatched away the sticks from Saji (the rank number is not noted), Bineesh(A8) and Chandran(A3) and beat them and driven them away. According to him, members of the committee who gathered for the pooram festival, snatched away the sticks from Saji (the rank number is not noted), Bineesh(A8) and Chandran(A3) and beat them and driven them away. On a leading question as to whether the said accused were holding the weapons while they were running away, he answered that A6 was holding Bamboo stick, Saji (whose rank number is noted as "A2" in brackets) was holding MO4 and A9 was holding MO1 sword. The deceased died. He identified MO1 as the sword used by A1 and MO2 as the bamboo stick used by A6. It seems that subsequently MO4 was traced out and the witnesses were recalled and examined to prove that MO4 knife was used by A2 to stab the deceased. 18. It seems from the evidence of PW1 before the court below that he has substantially varied from his versions in Ext.P1 as well as the case in the police charge and the court charge, regarding the incident. In the court charge or the police charge there were no allegations that anybody had pelted stone. Further, there was no case that A9 made use of MO1 sword. There was no such case that MO1 sword got detached from the clutches of A1 and the same was taken by A9 to stage the attack. Further, there was no case that A5 slapped CW8, and that A6 and A3 beat CW8 with bamboo stick. Over and above all these, there is no case that A4 and A5 beat the persons in the group associated with Vivekananda pooram by using Bamboo stick and further there was no such case that bamboo sticks allegedly used by Saji, Bineesh and Chandran were snatched away by the public who gathered there for the pooram festival and those accused were driven away by beating them with the said bamboo sticks. 19. Both the learned Senior Counsel pointed out that the prosecution has deliberately suppressed the injuries involving the grievous hurt and very serious injuries sustained to all the accused except A9 and has not offered any explanation as to how they had sustained injuries. It seems that Crime No.77/00 was registered in connection with the injuries sustained to the said accused, in which the prosecution witnesses were arraigned as accused. It seems that Crime No.77/00 was registered in connection with the injuries sustained to the said accused, in which the prosecution witnesses were arraigned as accused. The learned Senior counsel have pointed out that though a final report was filed in the matter, even the wound certificate of the injured persons in the said case were not deliberately produced by the prosecution, solely with a view to purchase an acquittal in order to fortify the prosecution versions in the present case. 20. It is true that on a perusal of the evidence of PW1 before the court below it seems that he has substantially deviated from his versions in Ext.P1 and the case in the police charge as well as the court charge. Of course the prosecution can have slight variations from the case in Ext.P1, on the investigation by the police. At the same time, the variations made by PW1 are not mere slight variations. It seems that the prosecution has given a false version by attempting to explain the grave injury sustained to the accused persons, except A9, through the version of PW1, that bamboo sticks from the hands of three accused were snatched away by the public who gathered there for seeing the festival, beat them with it and driven them away. 21. PW2 is none other than the elder brother of the deceased. His versions are that he along with his younger brother, who is the deceased, was associated with Anaparambu pooram and they went for the festival for seeing the other poorams advancing. He stood apart. Altogether there were 12 poorams. By about 4.45 p.m. Vivekananda pooram entered the temple compound. Even after the stipulated time allotted, the persons associated with Nedumuri pooram were playing drums at the temple. Therefore, he questioned the said act with the members of the temple committee. Then CW4 forced the members of the Nedumuri pooram back to the temple ground, from the temple. According to him, all the accused were present among the members of Nedumuri pooram. When Vivekananda pooram were playing drums, the persons associated with Nedumuri pooram also entered among them forcibly. The members associated with Vivekananda pooram and PW2 restrained them. Then CW4 forced the members of the Nedumuri pooram back to the temple ground, from the temple. According to him, all the accused were present among the members of Nedumuri pooram. When Vivekananda pooram were playing drums, the persons associated with Nedumuri pooram also entered among them forcibly. The members associated with Vivekananda pooram and PW2 restrained them. At that time, A1 took the sword from his back, from the inside of his shirt and attempted to inflict a cut on Rajesh, which was warded off by PW1, thereby PW1 sustained an injury on his right hand and forehead. He has also given a version that the sword fell down from the hand of A1 and A9 took it and inflicted a cut on the left thigh of PW3. According to him, A6 beat on the left hand of PW3. He has clearly deposed that A2 stabbed the deceased, below his abdomen at the right side with MO4 knife. On getting the stab, the deceased collapsed. When he attempted to go over there, A1 took a stone and pelted it on his right leg below his knee, thereby he sustained an injury. A7 beat PW4 with a bamboo stick. A4 slapped and stamped CW6. A6 and A3 beat CW6 with bamboo stick. CW11 was beaten by A6 with bamboo stick. It seems that PW2 has made a strange version that he came near the banyan tree on sustaining the injury from pelting of stone by A1, and simply sat there as a witness to the entire incident. It seems that the conduct of PW2 is very strange. According to him, his younger brother was stabbed and thereby he collapsed. When he attempted to move towards the deceased, A1 pelted a stone, which hit below his left knee and therefore, he immediately came back and took a seat beneath the banyan tree and remained there as a mute spectator to watch the entire incident. It cannot be believed that a person, who has seen a fatal injury that was sustained to his younger brother, had remained as a mute spectator, on getting a trivial injury from the alleged pelting of stone on his leg. The conduct of PW2 is not conducive to the ordinary course of human conduct. 22. Over and above it, his further conduct is also very strange. The conduct of PW2 is not conducive to the ordinary course of human conduct. 22. Over and above it, his further conduct is also very strange. It seems that he has not accompanied the deceased to the hospital when he was taken to the hospital. Further, it seems that he went to the Government Hospital, Kunnamkulam, when the deceased, who was in a critical stage, was taken to the Royal Hospital, Kunnamkulam. As rightly pointed out by the learned Senior counsel for the accused, there is every reason to believe that he had no occasion to see the incident in which the deceased had sustained a fatal injury. 23. Apart from the above, it seems that his versions regarding the attack by various accused on the other charge witnesses and prosecution witnesses are also not in tune with the case in the court charge as well as the police charge. 24. PW3, who had allegedly sustained grievous hurt in the incident, has turned hostile to the prosecution and did not support the prosecution case. The learned Senior counsel for the accused have pointed out that his wound certificate was admitted in evidence by the court below against all norms of law and procedure and marked it and relied on as Ext.P13. It seems that Ext.P13 had appeared from the air and took a place in the prosecution evidence. Any of the records of the case does not reveal as to how Ext.P13 was marked in evidence by the court below. It seems that the Doctor, who prepared Ext.P13 wound certificate of PW3, was not examined before the court below. It seems that the said document was not shown to any of the prosecution witnesses, including PW3. It is not clear as to how the court below could admit Ext.P13 in evidence. The strange aspect is that, it is by relying on Ext.P13, the court below found that PW3 had sustained grievous hurt even though PW3 has not such a case at all, the court below has found that the accused have committed an offence punishable under Section 326 IPC read with Section 149 IPC. Any of the other prosecution witnesses has not sustained any grievous hurt as is sufficient to bring out an offence under Section 326 IPC. Any of the other prosecution witnesses has not sustained any grievous hurt as is sufficient to bring out an offence under Section 326 IPC. Over and above all these, the learned Senior counsel have pointed out that any such question relating to Ext.P13 was not specifically put to the accused, when examined under Section 313 Cr.P.C. The procedure adopted by the court below in placing reliance on Ext.P13 without the formal proof of it, is highly illegal and the same has resulted in prejudice to the accused. Without the aid of Ext.P13, the court below could not have found any of the accused guilty of the offence punishable under Section 326 IPC with the aid of Section 149 IPC. On that simple score itself, the conviction and sentence passed by the court below on all the accused under Section 326 read with Section 149 IPC are liable to be set aside. 25. PW4 is the remaining occurrence witness examined by the prosecution to prove the occurrence. It seems that PW4 has also given almost a verbatim reproduction of the versions of PW2. Even though there is no documentary evidence to prove any injuries, PW4 claims that he was also beaten on his hand and abdomen by A7 with a bamboo stick. Admittedly, he had not attended any of the hospitals and not obtained any treatment. 26. Now, the question to be looked into is whether the evidence adduced by PW1, PW2 and PW4 in respect of the occurrence are believable. The learned Senior counsel have pointed out that all the accused, except A9, have sustained injuries. Their argument is that at the most the incident could be treated as an incident occurred on the spur of a moment due to a dispute occurred unexpectedly at the pooram ground between two factions associated to two different poorams. It seems that one of the factions is members attached to 'Anaparambu pooram', which allegedly dissolved in 'Vivekananda pooram', which was being staged allegedly by the RSS people. The other faction is those attached to 'Nedumuri pooram'. Even though the accused, who were allegedly associated with 'Nedumuri pooram', were styled as the workers of the CPI(M) party, there is no allegation or averment that 'Nedumuri pooram' was staged by the CPI(M) party. The other faction is those attached to 'Nedumuri pooram'. Even though the accused, who were allegedly associated with 'Nedumuri pooram', were styled as the workers of the CPI(M) party, there is no allegation or averment that 'Nedumuri pooram' was staged by the CPI(M) party. Ext.D1 is the final report filed in respect of crime No.77/2000 relating to the injuries sustained to the accused in this case in which the prosecution witnesses and the charge witnesses were arraigned as accused. The learned Senior counsel have invited our attention to Ext.D1(a), D1(b) and D1(c) wound certificates proved through PW11. Further, our attention has been invited to the contents of some other wound certificates, which form part of Ext.D1. On a perusal of those documents, it has clearly come out that all the accused, except A9, have sustained injuries and some of them have sustained very serious injuries. The wound certificate appended with Ext.D1 relating to A2 prepared and issued from the District Hospital, Thrissur, clearly reveals that he had sustained "A long cut injury on the centre of scalp, which was bandaged, almost 8 cms long". When it has been specifically mentioned that it was a cut injury, it cannot be believed that such a long cut injury of the size of 8 cms could be caused by beating with a bamboo stick by the public, who allegedly driven them away from the temple compound. Over and above that, it seems that A8 sustained a fracture near his elbow joint, for which POP cast was applied. It seems from Ext.D1(a) that A4 has sustained (1) Lacerated wound 1.5 x 0.5 cm over mid frontal area of the scalp, (2) Another lacerated wound 1.5 x 0.5 cm over left frontal area of the scalp, and (3) Abrasions over sterna area of the chest. Ext.D1(b) shows that A1 sustained a lacerated wound 4 x 1 cm over the crown of the scalp and abrasions over anterior chest wall. Ext.D1(c) shows that A3 had sustained a lacerated wound 10 cm long over left fronto parietal area of the scalp. A6 has sustained (1) A fracture on his left forearm for which POP cast was applied, (2) Four transverse contusions with abrasions 20-30 cm long on upper side of back, and (3) Another contusion 10 cm long on middle of back. A6 has sustained (1) A fracture on his left forearm for which POP cast was applied, (2) Four transverse contusions with abrasions 20-30 cm long on upper side of back, and (3) Another contusion 10 cm long on middle of back. A7 sustained (1) Contusion on left temple, and (2) Abrasions longitudinal in nature 5 cm long in front of left ear. A5 sustained a transverse wound clean in nature of 3 cm long, 6 inches below the patella of left leg. There was edema of lower left leg including ankle. It seems that the wound was sutured. 27. It seems that very serious injuries were inflicted on most of these accused. As pointed out by the learned Senior counsel, most of those injuries were deliberately inflicted on the head. It seems that the investigation has deliberately suppressed the seriousness of those injuries sustained to the accused and highlighted some trivial injuries sustained to some of the prosecution witnesses, only because of the fact that the deceased died in the incident. 28. Another important aspect to be looked into is that the final report has scheduled 19 charge witnesses to prove the occurrence. Those charge witnesses include 3 police officers, one of whom was a Head Constable, who were on duty at the temple compound. Admittedly, they were present at the temple compound and they had occasion to witness the incident and the true state of affairs. Even though it can be said that it is the prerogative of the prosecution to pick and choose their witnesses for examination, the prosecution in this particular case is duty bound to explain as to why those witnesses, who had occasion to witness the incident and the true state of affairs, were omitted to be examined. Even though the prosecution has cited 19 occurrence witnesses to prove the occurrence, they have chosen to examine PW1, PW2 and PW4 only, especially when PW3, who allegedly sustained a grievous hurt, has turned hostile to the prosecution. It seems that some injured witnesses were also omitted by the prosecution. Even though the police charge or court charge does not reveal that such other witnesses had sustained injuries, the versions of PW1, PW2 and PW4, which substantially varied and deviated from the police charge and court charge, have pointed out that many of those charge witnesses had also sustained injuries in the incident. Even though the police charge or court charge does not reveal that such other witnesses had sustained injuries, the versions of PW1, PW2 and PW4, which substantially varied and deviated from the police charge and court charge, have pointed out that many of those charge witnesses had also sustained injuries in the incident. It cannot be understood as to how and why the prosecution could give up all those witnesses. 29. Regarding the veracity of the versions of PW1, PW2, and PW4 regarding the incident, it has to be noted that the deliberate suppression of the serious injuries sustained to most of the accused as detailed above, militates against their versions. As rightly pointed out by the learned Senior counsel for the accused, the suppression of those serious injuries sustained to the accused by the prosecution has resulted in the suppression of the true genesis of the incident by the prosecution from the scrutiny of the court. Of course all the cases, in which the prosecution fails to explain some trivial or superficial injuries to the accused, need not result in such a situation. It depends from case to case. In the present case, it cannot be said that the accused had only sustained trivial or superficial injuries; whereas, three among them had sustained grievous hurt. A2, who allegedly inflicted a stab injury which resulted in the death of the deceased, had also sustained a very serious injury on the middle of his scalp. There is no evidence to show as to when and how he sustained such a serious injury. 30. The learned Senior counsel have invited our attention to the decision in Lakshmi Singh and others Vs. State of Bihar [ AIR 1976 SC 2263 ], wherein the decision in State of Gujarat Vs. Bai Fatima [ AIR 1975 SC 1478 ] was followed. In State of Gujarat (supra), it was held: "In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect he prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case." 31. Following the said decision, it was held in Lakshmi Singh (supra): "It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) The prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." It was further held therein: "We must hasten to add that as held by this Court in State of Gujarat Vs. Bai Fatima [ AIR 1975 SC 1478 ], there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. Bai Fatima [ AIR 1975 SC 1478 ], there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises." It was also held: "We have already pointed out that on one of the most important points arising in a criminal trial, namely, the non-explanation of the injuries on the person of the accused by the prosecution, the High Court has not only committed an error of fact but an eror of law by showing a lack of proper appreciation of the principles decided by this Court." 32. Our attention was also invited into the decision in Babu Ram and others Vs. State of Punjab [(2008) 2 SCC (Cri) 727], wherein it was held in paragraph 18, by following Lakshmi Singh (supra), that, "It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: 1. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." 33. The learned Public Prosecutor has invited our attention to the decisions in Onkar Nath Singh and others Vs. State of U.P. [ (1975) 3 SCC 276 ], Pritam Singh Vs. State of Punjab [ (1996) 10 SCC 277 ], Shriram Vs. The learned Public Prosecutor has invited our attention to the decisions in Onkar Nath Singh and others Vs. State of U.P. [ (1975) 3 SCC 276 ], Pritam Singh Vs. State of Punjab [ (1996) 10 SCC 277 ], Shriram Vs. State of M.P. [ (2004) 9 SCC 292 ], State of M.P. Vs. Ramesh [ (2005) 9 SCC 705 ] and Raj Pal and others Vs. State of Haryana [ (2006) 9 SCC 678 ], wherein it was held that in all cases it cannot be held that the non-explanation of the injury sustained to the accused is fatal to the prosecution case. All those decisions clearly reveal that, when there are only some trivial injuries or superficial injuries on the accused, the failure of the prosecution to explain such trivial or superficial injuries will not lead to a situation that the genesis of the incident has not been correctly presented by the prosecution. At the same time, in this particular case, we are of the considered view that the said decisions cited by the learned Public Prosecutor can have no application as the injuries sustained to the accused in this case are not trivial or superficial in nature. 34. We have noted another disturbing aspect in the manner in which the court below has recorded the evidence. It is not discernible from the evidence of PW1, PW2 and PW4 that they have properly identified the accused, who were present in the dock. The court below has not specifically noted that such and such accused were identified by the said witnesses. Especially in the present case, when A2 as well as A4 are named Saji, the court below ought to have specifically noted the identification by the said witnesses in respect of A2 and A4. Apart from noting down in bracket after the name of Saji (A2), the court below has not recorded that by naming the said Saji, the witness has identified A2 or A4 in the dock, as the said Saji. In Ext.P1, the person inflicted stab injury on the deceased was stated by PW1 as Saji of Karichal Kadavu. The prefix 'Karichal Kadavu' to the name of Saji has not been stated by PW1 in his evidence in chief examination. In Ext.P1, the person inflicted stab injury on the deceased was stated by PW1 as Saji of Karichal Kadavu. The prefix 'Karichal Kadavu' to the name of Saji has not been stated by PW1 in his evidence in chief examination. At the same time, it seems that the prosecution has not made any effort or attempt to bring out that the said Saji of Karichal Kadavu is A2. The learned Public Prosecutor has, on our specific queries, replied that the prosecution has no case that the said Saji of Karichal Kadavu is the present A2. When unequivocally PW1 had made a statement in Ext.P1 that the deceased was stabbed to death by Saji of Karichal Kadavu, the prosecution was duty bound to explain that the said person was A2 and not A4. PW19 in Ext.P1 has clearly affirmed the proposition that A4 is known as Karichal Kadavu Saji. In such a circumstance, a reasonable doubt arises as to whether the person meant by PW1 as Saji of Karichal Kadavu is A2 or A4. The learned Public Prosecutor has attempted to canvas an argument that Ext.P1 is not a substantive piece of evidence, whereas it has only corroborative value. We do admit that the proposition is correct as far as an F.I.Statement under Section 154 Cr.P.C. is concerned. Here, in this particular case, the said version was given in Ext.P1 by PW1, who claims to be an occurrence witness. This is not a case wherein a stranger to the incident had stepped in to furnish an F.I.Statement; whereas, the same was furnished by PW1, who was also allegedly an injured in the incident. In such circumstances, his first version has got much weight. It seems that a genuine doubt is in existence as to the identity of the person, who allegedly stabbed the deceased as to whether it is A2 in the case or A4 in the case. Unless and until that controversy is resolved, it is not at all safe to conclude that it was A2, who stabbed the deceased to death in order to wrap him in an offence under Section 302 IPC. It seems that rightly the court below has not applied Section 149 IPC to the offence of murder. 35. We have noted yet another disturbing aspect in the procedure adopted by the court below in evidence. It seems that rightly the court below has not applied Section 149 IPC to the offence of murder. 35. We have noted yet another disturbing aspect in the procedure adopted by the court below in evidence. It seems that the court below has chosen to travel through a short cut for examining PW12, who conducted the postmortem examination in order to prove the contents of Ext.P11 postmortem certificate. It seems that the witness has not stated the facts, which he could gather from the postmortem examination, before the court below. Even though the findings were recorded in Ext.P11, it seems that any of the findings in Ext.P11 do not form part of the evidence of PW12. It seems that the court below has marked the postmortem certificate as Ext.P11 on a statement of PW12 that he had examined one Unni, 26 years old male and issued the said postmortem certificate. It is very strange to note that PW12 has not even stated in evidence that Unni was the deceased. It has not been stated that he was injured in crime No.76/2000. Unless and until it is proved that PW12 has conducted the autopsy in respect of the body of the deceased involved in crime No.76/2000 of Kunnamkulam Police Station, it cannot be relied for any purpose at all. It is not discernible from the evidence of PW12 as to how the court below could rely on Ext.P11 as the postmortem certificate in respect of the autopsy of the deceased in this case. The learned Senior counsel have invited our attention to the decision in Munshi Prasad and others Vs. State of Bihar [ (2002) 1 SCC 351 ], wherein it was held in paragraph 6 that, "Post-mortem report is prepared by the doctor who held the post-mortem examination on the body of the deceased Indrasan Prasad and his findings have been recorded therein. The document by itself is not a substantive evidence but it is the doctor's statement in court, which has the credibility of a substantive evidence and not the report, which in normal circumstances ought to be used only for refreshing the memory of the doctor witness or to contradict whatever he might say from the witness box." 36. It is a vital aspect that has given a go by the court below. It is a vital aspect that has given a go by the court below. The court below has not cared to record all what PW12 could see in the postmortem examination, which are facts to be proved. Unless and until those facts came out through the postmortem examination are noted in the evidence of the Doctor who conducted the postmortem examination, it cannot be said that Ext.P11 can be relied on as a substantive piece of evidence. In fact, it seems that the prosecution has to rely on other evidence to prove the homicidal death of the deceased also in this particular case. 37. Regarding the application of constructive liability with the aid of Section 149 IPC, we differ with the view expressed by the learned Public Prosecutor and the learned Senior counsel for PW2. It seems that there was no prior agreement or meeting of minds among the persons allegedly associated with 'Nedumuri pooram'. The allegation is that they were engaged in playing drums even after stipulated time in the temple, and the members of 'Anaparambu pooram', which later allegedly dissolved in 'Vivekananda pooram' wanted to step in the temple for playing drums and their performance of 'Kavadi'. Till that time, there was no reason for any enmity. May be in order to import some enmity, the prosecution has attempted to create political enmity by styling those persons gathered in the temple compound as the faction belongs to CPI(M) and the other faction belongs to RSS. It seems that there was no time at all for a prior agreement for the incident, among the accused. There was no prior agreement among the persons associated with 'Vivekananda pooram' or 'Anaparambu pooram' to entertain a quarrel, as is evident that the alleged quarrel emanated in the spur of a moment. It is the admitted case of the prosecution that around 1000 persons were there at the temple compound attending the festival and to see the arrival of 'poorams'. The learned Senior counsel have pointed out that over and above the 1000 persons, 12 elephants, persons playing drums and persons bearing the 'Kavadi' were also present at the compound. It seems that it was a very small compound having the dimension of 50 x 45 metres. When such persons are there, it was a huge crowd standing in a small place. It seems that it was a very small compound having the dimension of 50 x 45 metres. When such persons are there, it was a huge crowd standing in a small place. When there were attacks and counter attacks among the persons associated to 3 different 'poorams', it is not easily discernible as to who are all the persons sustained injuries and as to who all are the persons caused injuries. If as a matter of fact, the aid of Section 149 IPC is not available, nobody can be made liable for causing such injuries, unless it is specifically proved that such and such persons have caused such and such injuries on specified persons. That may be the reason why the court below had taken the aid of Section 149 IPC in the case. We are of the considered view that there is absolutely nothing to show that the accused were members of any unlawful assembly. They had reached the temple compound with a genuine purpose of attending the festival as well as performing in the temple. Of course, those lawful assembly could have transformed to an unlawful assembly; at the same time, in this particular case, there is nothing to show any such transformation. Matters being so, we are of the view that it is not at all possible to take the aid of Section 149 IPC in this case. 38. As we have already noted above, the prosecution has failed to present the true genesis of the incident and, therefore, the versions of PW1, PW2 and PW4 regarding the incident, are not believable. The said versions cannot be relied on to find the guilt of the accused in any of the offences. When the prosecution has suppressed the serious injuries and the grievous hurt sustained to most of the accused and has not explained the same in a legitimate way and especially when a false explanation has been given, it has to be considered that the prosecution has failed to present the true genesis of the incident from the scrutiny of the court. Matters being so, we are of the view that the appellants in Criminal Appeal No.2207/2010 are entitled to the benefit of doubt and they are entitled to be acquitted. In the result, Criminal Appeal No.2207/2010 is allowed and all the appellants are acquitted. Matters being so, we are of the view that the appellants in Criminal Appeal No.2207/2010 are entitled to the benefit of doubt and they are entitled to be acquitted. In the result, Criminal Appeal No.2207/2010 is allowed and all the appellants are acquitted. The bail bonds of A1, A3, A4 and A6 to A9 stand cancelled and they are set at liberty. A2 shall be set at liberty forthwith, if his continued presence in custody is not required in connection with any other case against him. The fine amount, if paid or realised, shall be returned to the concerned accused. Criminal Appeal (V) No.275/2014 is devoid of merits, and is only to be dismissed, and we do so. The Registry is directed to send the gist of this judgment forthwith to the concerned prison, where A2 is undergoing incarceration.