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2021 DIGILAW 1172 (KER)

Habeeb S/o Ummar v. State of Kerala

2021-12-22

C.JAYACHANDRAN, K.VINOD CHANDRAN

body2021
JUDGMENT : K. VINOD CHANDRAN, J. 1. Conspiracy, political enmity and mistaken identity together resulted in the murder of an innocent person, leaving his family rudderless. Equally rudderless was the investigation, accuse the defence of whom A1 to A4 were arraigned for their antecedents and A5 to A11 for their political affiliation. A8 died when the appeal was pending. The legal heirs of A8 is impleaded and they challenge the conviction. 2. On the night of 02.03.2014 at about 8.45 or 9.15 p.m. PW-1 and PW-2 along with the deceased were sitting in a heap of sand, in the property of PW-7, where a residential construction was going on. PW-3 joined them and while they were chatting, A1 to A5 arrived at the spot with lethal weapons. The assailants attacked the deceased, PW-1 and PW-2 resulting in the death of the former and grievous injury to PW-1 and PW-2. The prosecution case is that A1 to A4 are goondas, who were engaged by the rival political party, on a ‘quotation’ to murder PW-48, an active member of a political party. A5, an affiliate of the CPI (M) and a neighbour of PW-48, accompanied A1 to A4 to the scene of occurrence so as to identify him, an active member of BJP. At the scene of occurrence, A1 to A4 unleashed violence with lethal weapons resulting in the murder and grievous injury. A6 to A11 were alleged to be active participants in the conspiracy to murder PW-48, preparation for the crime, including A1 to A4's transport to the locality, then to the scene of occurrence and later to help the assailants flee the locality. 3. At the trial, the prosecution examined PW-1 to PW-55, through whom were marked Exts.P1 to P117 and material objects MO1 to MO36. The defence examined DW-1 to DW-14 and marked D1 to D5, D7 to D11, D13 and D14 contradictions and D6, D12 and D15 to D27 documents. At the close of trial, A9 was acquitted and A1 to A8, A10 and A11 were found guilty of various offences. A1 to A5 were found guilty for the offences under S.120-B, 143, 147, 148, 302, 307, 326 and 201 of the Indian Penal Code [for brevity ‘IPC’] read with S.149 IPC as also under S.27 of the Arms Act. Each of them were sentenced to undergo (i) imprisonment for life and fine of Rs. A1 to A5 were found guilty for the offences under S.120-B, 143, 147, 148, 302, 307, 326 and 201 of the Indian Penal Code [for brevity ‘IPC’] read with S.149 IPC as also under S.27 of the Arms Act. Each of them were sentenced to undergo (i) imprisonment for life and fine of Rs. 50,000/- each under S.302 IPC read with 149 IPC, (ii) R.I. for 7 years and fine of Rs. 10,000/- under S.307 IPC read with 149 IPC, (iii) R.I. for 5 years and fine of Rs. 10,000/- under S.326 IPC read with 149 IPC, (iv) R.I. for a period of 3 months under S.143, 147 and 148 IPC, (v) R.I. for a period of 1 year and fine of Rs. 5,000/- under S.201 IPC and (vi) R.I. for a period of 3 years and fine of Rs. 5,000/- under S.27 of Arms Act with default sentences for non payment of fine. Accused Nos. 6 to 8, 10 and 11 were found guilty of the offence under S.120-B and each were sentenced to undergo imprisonment for life and fine of Rs. 50,000/- with default sentence under S.302 read with 120B IPC. Accused 6 and 11 were also found guilty for the offence under S.212 for which each was sentenced to undergo R.I. for two years and a fine of Rs. 10,000/- with default sentence. 4. According to the prosecution a conspiracy was hatched on 28.02.2014 by A1 to A8, A10 and A11 to commit the murder of PW-48. In furtherance of the conspiracy, A6 procured the services of A1 to A4, history-sheeters and brought them from Pudukkad to the CPI (M) party office at Perinjanam, in his car. A1 to A4 were then taken to the house of A5, where A8 instigated the history-sheeters to commit the murder of PW-48, who used to frequently visit the nearby construction site, of one Shaji, at night. A5 was entrusted with the task of identifying PW-48. On 02.03.2014 at around 20.42 hours, A9 informed A7 over phone that PW-48 was present at the scene of occurrence and A7 took A1 to A5 in his autorickshaw to the scene of occurrence. On A5's guidance, A1 to A4 attacked the persons sitting on a heap of sand at the construction site. On 02.03.2014 at around 20.42 hours, A9 informed A7 over phone that PW-48 was present at the scene of occurrence and A7 took A1 to A5 in his autorickshaw to the scene of occurrence. On A5's guidance, A1 to A4 attacked the persons sitting on a heap of sand at the construction site. After the attack unleashed on the victims, A5 took the others to the party office at Perinjanam and together with A6 to A8 they concealed the weapons in a pond behind the party office. Thereafter A1 to A4 travelled in a Bolero car hired by A11 and driven by A6, thus facilitating their flight from the locality along with A10. The injured were first taken to Modern Hospital, Kodungallur, where the deceased was declared brought dead. PW-1 and PW-2 were referred to the Medical Trust Hospital, Ernakulam, where they underwent inpatient treatment for the grievous injuries suffered by them. THE ARGUMENTS: 5. Learned Senior Counsel Sri. B. Raman Pillai instructed by Sri. M.Vivek, appeared for A1 to A5, A10 and A11. Sri. S.Rajeev learned counsel appeared for A6, and learned counsel Sri. M. Asokan appeared for A7 and A8. Learned Senior Counsel at the outset pointed out that, there was no charge levelled against A10 and A11. It was argued from the evidence of the Investigating Officers (I.Os) PW-51 and PW-52, that the Section 161 statements recorded were destroyed (torn away) after it was typed out by the I.Os which visits the accused with grave prejudice. This single aspect denied them a fair trial; the most relevant facet of which is, the confrontation of witnesses with their prior statements. There is nothing to prove the veracity of the statements made by the witnesses before police. This assumes significance since the very defence is that, the final report filed against the accused are trumped up charges. Reliance was placed on a judgment of a learned Single Judge wherein when no explanation was offered for the Section 161 statement in the printed form, the case was found to be trumped up and artificial [Premchand R. vs. State of Kerala, 2015 (1) KLT 32 ]. The manner in which the arrest was made demonstrates the allegations having been orchestrated by the police against the accused, based on their antecedents and political affiliation. A1 to A8 were arrested on 14.03.2014 at different places by different police personnel. The manner in which the arrest was made demonstrates the allegations having been orchestrated by the police against the accused, based on their antecedents and political affiliation. A1 to A8 were arrested on 14.03.2014 at different places by different police personnel. The first of the report filed before Court is the remand report, Ext.P97 dated 15.03.2014 after the arrest on 14.03.2014. 6. Statements from various witnesses were recorded by the Police before the arrest, but no report was filed before Court as to the identity of the accused. Coupled with this, is the admission of the prior statements recorded having been destroyed. The prior statements recorded were handwritten, as seen from the deposition of the witnesses, but the same were never produced before Court. What was produced is the typewritten copy, which the I.Os made out themselves allegedly looking at the recorded statements, which it is asserted were torn away. The Inspection Memo prepared at the time of arrest does not indicate any object having been seized from the possession of the accused. There were also no seizures made of mobile phones and in such circumstance, the call details produced cannot at all be looked at. There is absolutely no substantive evidence by way of deposition of the Nodal Officers of the service providers, about the telephone calls between the accused or the tower location, at the time the calls were made. 7. The recovery under Section 27 of the Evidence Act cannot at all be looked into for reason of no concealment being discernible and the confession statements being joint statements. The recovery of the blade from the scene of occurrence, said to be a recovery made under Section 27, cannot at all be believed. First of all, the blade was not concealed and even according to the prosecution, it slipped away when the alleged attack was going on. The mahazar itself indicates that the blade was recovered after a search made from the bushy area near the scene of occurrence. It is pertinent that the blade was not recovered at the first instance, when even as per the deposition of PW-51, there was a sniffer dog brought to the scene of occurrence. The medical evidence and the scientific evidence does not offer any incriminating evidence against the accused. 8. The FIS itself is concocted and PW-1 clearly disowns it. It is pertinent that the blade was not recovered at the first instance, when even as per the deposition of PW-51, there was a sniffer dog brought to the scene of occurrence. The medical evidence and the scientific evidence does not offer any incriminating evidence against the accused. 8. The FIS itself is concocted and PW-1 clearly disowns it. The FIS also does not record the place where the same was recorded; i.e. in the ward of the hospital or ICU. PW-1 and the officer who recorded the FIS, PW-42 has different versions. PW-1 at the first instance and before the Doctor who examined him at the Modern Hospital, Kodungallur, submitted that there were 8 assailants who attacked them. There is inconsistency also in the time stated and it is not clear whether it was 8.45 or 9.15. The overt acts complained of differ from the FIS when deposing before Court. A1 to A4 have been included only for their antecedents and they were never involved in the incident. A5 is a resident of the locality and PW-1 to PW-3 are also long time residents of the locality. They claimed to have no acquaintance with A5, a clear suspicious circumstance. PW-48, another resident of the locality, whose murder was the conspiracy alleged, was familiar with A5 and if A5 was present, there was no question of a mistaken identity occurring. The FIS was not the one recorded since the Sub Inspector (S.I.) and Circle Inspector (C.I.) had come to the scene of occurrence immediately after the incident. The learned Senior Counsel relied on Marudanal Augusti vs. State of Kerala, 1980 (4) SCC 425 , Ramkumar Pande vs. State of M.P. AIR 1975 SC 1026 , Kailash Gour vs. State of Assam, AIR 2012 SC 786 , Awadhesh vs. State of Madhya Pradesh, AIR 1988 SC 1158 and Surendran M. @ Kalyani Surendran and Others vs. State, 2021 KHC 194, to emphasize the vital and valuable role the FIS has in a criminal trial for corroborating the oral evidence. 9. A11 was implicated only on the evidence of PW-16 who is said to have seen him along with some of the other accused travelling in a Bolero rented out by him. However, the prosecution was not able to prove the connection of A11 with the Bolero in which the accused were seen by PW-16. 9. A11 was implicated only on the evidence of PW-16 who is said to have seen him along with some of the other accused travelling in a Bolero rented out by him. However, the prosecution was not able to prove the connection of A11 with the Bolero in which the accused were seen by PW-16. As far as A10 is concerned, PW-11 states that he was shown the said accused by the police on 19.03.2014, when A10 was not even in the array of accused. The testimony of PW-11 is challenged as completely unreliable since even his Section 161 statement originally taken was suppressed. Last but not the least, the learned Senior Counsel argued that there was undue haste in proceeding with the trial and many of the witnesses were examined when the accused were not represented by counsel. After close of evidence, there was a witness list filed for the defence, particularly A1 to A4 with a petition for summons, dated 22.12.2014. The defence intended to prove the factum of the media reporting the subject attack to be by masked men. The witnesses sought to be summoned were all media personnel who had reported the incident; the transcripts of which were produced before Court. The same was posted for objection on 26.12.2014 and summarily dismissed on the same day, though no objection was offered by the prosecution. Judgment was delivered on 31.01.2015. It is also pointed out that, the injured eye witnesses admittedly did not have any acquaintance with the assailants, allegedly A1 to 5 and neither was their description spoken of in the FIS nor were they subjected to a Test Identification Parade (TIP). The accused were also shown to the witnesses in the Police station. Reliance was placed on Mohanlal Gangaram Gehani vs. State of Maharashtra, AIR 1982 SC 839 , Mohd. Abdul Hafeez vs. State of A.P. 1983 SCC (Crl.) 139 and Krishnan Kumar Malik vs. State of Haryana, 2011 Cri. L.J. 4274. 10. Sri. S. Rajeev appears for A6 and pointed out that, as per the final report, A6 has been arrayed only on account of the statements given by PW-10, PW-11 and PW-16, regarding the use of a Ritz Car and a Bolero Car which were alleged to have been driven by the said accused. L.J. 4274. 10. Sri. S. Rajeev appears for A6 and pointed out that, as per the final report, A6 has been arrayed only on account of the statements given by PW-10, PW-11 and PW-16, regarding the use of a Ritz Car and a Bolero Car which were alleged to have been driven by the said accused. PW-10 is a chance witness and despite his attempt to avoid a specific question, it has come out that he is a staunch BJP worker. It is proved that PW-10 was never a school mate of A6. The time PW-10 is said to have seen A6, even according to PW-10's testimony was his working time in a Hotel some distance away. PW-11 is again a chance witness whose testimony is seriously disputed and there is none examined to establish his presence in the spot from where he witnessed certain accused coming out of the Party Office. The testimony of PW-16 is also very suspicious and evidently, he is a planted witness. The conspiracy element is absolutely absent and the mere fact that A6 frequently conversed with A11 does not prove any conspiracy, as they were active members of the same political party. It is pointed out that there is no scientific evidence of the presence of A6, in either the Ritz Car or the Bolero Car. The sample taken from his body did not match the hair recovered from the Car by PW-52, as is evidenced from Ext.P115, FSL report. The call details also cannot be relied on since the Inspection Memo does not show any mobile phone having been recovered from the body of A6, at the time of arrest. The evidence of PW-15 and PW-16 is challenged mainly on the ground that the earlier statements recorded have been destroyed. On the aspect of conspiracy, the learned Counsel placed before us Parveen vs. State of Haryana, Manu/SC/1190/2021. 11. Learned Counsel appearing for A7 and A8 adopted the arguments of the other counsel. Further it was submitted that, A7 was found guilty on the evidence of PW-15, PW-31 to 36 and PW-47. PW-15 is an unreliable witness since despite having admitted that he was not waiting for an autorickshaw, he also speaks of having tried to stop the autorickshaw driven by A7, thus seeing the panic on A7's face, that too at night, after the incident. PW-15 is an unreliable witness since despite having admitted that he was not waiting for an autorickshaw, he also speaks of having tried to stop the autorickshaw driven by A7, thus seeing the panic on A7's face, that too at night, after the incident. The story of PW-15 having seen the accused in A7's autorickshaw proceeding to the scene of occurrence, when the vehicle slowed to manoeuvre a hump on the road, had not been spoken of to the Police. The attempt of the prosecution to connect A7 to a mobile number cannot at all be countenanced. The address details produced was in a typed format and Ext.P16 with respect to A7 does not indicate his father's name. The voters list at P27 shows another Saneesh and PW-15 also has the same name. Regular contacts of A7 with A8 and A9 is absolutely irrelevant, since all are Marxist party workers. A9 who is said to have informed A7 about the presence of PW-48 at the scene of occurrence has been acquitted. Learned counsel would specifically challenge the action of the trial court in having sought for corroboration from the 161 statement of a hostile witness, PW-5. The learned counsel also took us through the evidence of DW-6, DW-9 and DW-13 to seriously assail the incriminating circumstances alleged against the said accused. As far as A8 is concerned, the evidence is of PW-8, PW-9, and PW-11 and PW-14. The amended charge dated 01.01.2015 is read over to argue that the evidence led is contrary to the allegations levelled against the said accused. As far as the mobile phone is concerned and the calls said to have been made by A8, the very same reasoning in A7's case applies squarely. The requirement to supply copy of the prior statements recorded by the I.O. and the prejudice caused on non-furnishing the same was emphasized with Joseph @ Baby vs. The S.I. of Police, MANU/KE/0068/2005. 12. Sri. Alex M Thombra, learned Public Prosecutor at the outset placed reliance on Shankarlal Kachara Bhai vs. State of Gujarat, 1965 (2) Cri. L.J. 266 to bring home the doctrine of ‘transfer of malice’ embodied in Section 301 as the prosecution case itself is of mistaken identity. However, the defence having not even taken such an alternative plea; we find no relevance no application in the instant case. L.J. 266 to bring home the doctrine of ‘transfer of malice’ embodied in Section 301 as the prosecution case itself is of mistaken identity. However, the defence having not even taken such an alternative plea; we find no relevance no application in the instant case. The Learned Prosecutor then, submitted that the prosecution relies on direct evidence of three eye witnesses of whom two are injured. Reliance is placed on State of U.P. vs. Ram Kumar, 2017 (14) SCC 614 and Lakshman Singh vs. State of Bihar, (2021) 5 Supreme 106 . PW-1, one of the injured witness gave the FIS without any delay and the FIR reached the court at 1.30 pm on the very next day. PW-27 conducted autopsy and issued Ext.P21 report which indicates 41 injuries, two of which are incised. The death as opined by the expert Doctor is by reason of the blunt injuries caused to the head and face. MO1 to MO5 weapons were shown to the Doctor who affirmed that the injuries on the deceased could be caused by the above weapons. The injured and the deceased suffered a brutal attack by the five assailants and it is only natural that their features and identity remains imprinted in their minds. The FIS, being the first document, clearly narrates the incident and the presence of PWs. 1 to 3 is further proved by their chappals recovered from the scene of occurrence. 13. The scene mahazar at Ext.P4 and Ext.P15 scene plan shows the lamp post; the street light, at about 15.1 metres from the scene of occurrence which had a double tube light in it. The officer of the KSEB vouched that there was no power failure and the Secretary of the Panchayat spoke of there being no fault to the tube lights. The injured witnesses had no enmity with the accused and there is no reason why they should inculpate the accused other than their allegiance to truth. A1 to A5 were clearly identified and so were the weapons. The minor contradictions highlighted by the defence are immaterial especially regarding the identification of the five assailants. PW-1 had admitted his signature and the statement given corroborates his testimony before Court. The medical evidence and the scientific evidence also corroborates the testimony of the eye witnesses. A1 to A5 were clearly identified and so were the weapons. The minor contradictions highlighted by the defence are immaterial especially regarding the identification of the five assailants. PW-1 had admitted his signature and the statement given corroborates his testimony before Court. The medical evidence and the scientific evidence also corroborates the testimony of the eye witnesses. A1 to A5 were undoubtedly in the locality as has been spoken of, even by the other witnesses and the injuries caused on PW-1 and PW-2 were such as to attract Section 326 and 307 IPC. 14. The genesis of the conspiracy is spoken of by PW-8, PW-9 and PW-48 and the crime having been committed by five persons, as spoken of by the eye witnesses, justifies the charge levelled under Section 149 IPC. A1 and A8 were near the house of PW-8 and PW-48 and the mobile phone details as deposed by the various Nodal Officers of service providers clearly reveal the conspiracy. The FSL report at Ext.P115 indicates the blood of the deceased on the handle of the weapon recovered from the scene of occurrence and there is also blood in item nos. 15 to 18 and 24 to 34 as seen from the FSL report. The testimonies of the eye witnesses are fully corroborated by the recoveries, the medical evidence and the scientific evidence. The conspiracy, the converging of the assailants at the locality and in the scene of occurrence and the subsequent flight, are clearly brought out from the evidence proffered by the prosecution before court. The learned Public Prosecutor asserts that there is no reason why the conviction and sentence awarded should be interfered with. THE PRELIMINARY OBJECTIONS: 15. The first argument of the defence is with reference to the charge; which, from the proceedings sheet, indicates the charge having been framed only against A1 to A9 who alone were produced on 07.08.2014. The charge, as per the proceeding sheet, was read over on 08.08.2014 only to A1 to A9. A1 to A8 were first produced by the prosecution before the Sessions Court in S.C. No. 459 of 2014. Later, S.C No. 476 of 2014 in which A9 was the accused, was clubbed along with the above case. That is how the charge against A1 to A9 were read over on 08.08.2014. A1 to A8 were first produced by the prosecution before the Sessions Court in S.C. No. 459 of 2014. Later, S.C No. 476 of 2014 in which A9 was the accused, was clubbed along with the above case. That is how the charge against A1 to A9 were read over on 08.08.2014. Later A10 and A11 were arrayed in SC 653 of 2014 and we see the charge having been read over to them in that case on 30.10.2014 and later, the said case was also clubbed along with S.C. 459 of 2014. We thus see that the charge has been framed against all the accused but as against A10 and A11, only under Section 120-B read with 34 IPC. 16. Later, on 01.01.2015, the charge was amended and the learned Senior Counsel argues, without any hearing. The charge was altered as is evident from the proceedings sheet, only incorporating the plea of conspiracy against A1 to A8. We are also not convinced that any serious anomaly arises from the rejection of the application made by A1 to A4, for examining witnesses on the side of the defence since the order of rejection was never challenged by A1 to A4. We do not find any reason to accept the preliminary objections raised on the charge, but however leave the question of the typed statements produced after tearing away the recorded statements, under Section 161, to be left for later consideration. CONSPIRACY: 17. PW-5, PW-8, PW-9 and PW-48 were examined to prove the conspiracy entered into by the accused to murder PW-48. PW-5 had given Section 164 statement before the Magistrate. He conducts a mechanical workshop and also has an autoriskhsaw. He admitted that he told the Magistrate that there was an attempt to alter the name of his autorikshaw and when he questioned the same, A10 informed him that there is a plan to attack PW-48, in preparation of which, the alteration was made. The prosecution merely put to the witness the statements made under section 164 and nothing was elicited from him in the box about the conspiracy angle. Later, when he was asked a question as to whether he saw A6 in the Ritz Car, he denied the same and he was declared hostile. He refused to tow the prosecution line in the cross-examination by the prosecution. Later, when he was asked a question as to whether he saw A6 in the Ritz Car, he denied the same and he was declared hostile. He refused to tow the prosecution line in the cross-examination by the prosecution. In cross-examination by defence, he stated that he was under threat of being arrayed as an accused and he was also placed under lock up. He was released only when he agreed to be a witness. As for the 164 statement, he said that he was summoned to the police and asked to learn by-heart the narration written in a paper. He also said that the statements made before the Magistrate were coerced and did not have a semblance of truth. PW-5's evidence does not help the prosecution at all. 18. PW-8 only stated that he heard from PW-9 that there was a conspiracy hatched by the CPI (M) to murder himself and PW-48. He also spoke of A8 and A1 being seen near the house of PW-48 and a little later around his own residence. PW-9, deposed that the information regarding conspiracy was told to him by one Biju. PW-9 refused to divulge any further details about Biju. Biju was also not examined before Court. Hence, the evidence of PW-8 and PW-9 cannot be relied on, for reason of it being mere hearsay. PW-48 also spoke of only the information passed on by PW-8 and PW-9 and having seen A1 and A8, in a bike near his house. It cannot be said that there is any reliable evidence from the testimonies hereinabove discussed, to find a conspiracy having been hatched by the accused to murder PW-48, Parveen (supra) held so: “12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences Under Section 120-B of Indian Penal Code. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the Accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-Accused, in absence of other acceptable corroborative evidence, is not safe to convict the Accused.......” 19. The prosecution had put in considerable labour to establish the conspiracy by providing the call details of the accused; sadly it turns out to be futile. PWs. 40, 44, 45, 47 and 53 were Nodal Officers of various service providers who were examined to prove the conspiracy. PW-50 was the Branch Manager of Federal Bank with whom A11 maintained an account. The mobile number given by him in that account was proved to be in the name of PW-54, the mother-in-law of A11. Though PW-54 attempted to depose that the mobile number was never used by A11, her son-in-law; from the totality of the testimony of PW-50 and the documents proved by him it can be safely found that the said number was used by A11. The address details, the call details and the IT certificates were produced by the Nodal Officers. The Nodal Officers were examined and documents marked to prove the conspiracy element. 20. The first objection raised by the defence is that the mobile phones or the SIM cards were not seized. The arrest of A1 to A8 were said to have been made from different locations. But the inspection memos of A1 to A8, Ext.P93, proved by PW-52 does not speak of seizure of any personal effects from the arrested persons. The defence had challenged the factum of such arrest itself on the ground that, definitely, there would have been some personal effects on the body of the arrested persons; if in fact the arrests were made as asserted by the Police. Be that as it may, the mobile phones produced as MO24 to MO30 are said to have been seized respectively from the body of A6, A1 to A4, A7 and A8 respectively, as deposed by PW-52. But there is no Seizure Mahazar nor is the seizure evident from the Inspection Memos prepared on the arrest of A1 to A8; which shows no personal effects at the time of arrest. But there is no Seizure Mahazar nor is the seizure evident from the Inspection Memos prepared on the arrest of A1 to A8; which shows no personal effects at the time of arrest. Except for wearing apparels, no valuables, weapons or other items are seen in the Inspection Memos of A1 to A8, which are marked as Ext. P93 series. Further, the SIM cards used in the mobiles were also not seized or produced before Court. 21. The address details of the various mobile numbers are typed copies in which interpolations can be made. As rightly pointed out by the defence, to establish the identity of the subscriber, what is required to be produced is the Customer Application Form (CAF) and the ID proof furnished to the service provider, at the time of subscription. In this context, the specific plea made by A7 Saneesh is very significant. Through DW-13, Thahasildar, D-27 voters list was produced. There in addition to A7, Saneesh S/o Sambasivan at Serial Number: 1215 another Saneesh S/o Dasan is seen at Serial Number: 845. There is also one another Saneesh in the very same locality who is PW-15. Address Details produced at Ext.P60, relevant to A7 does not have the full details including Father's name which puts to peril the proof offered of the subscriber. Even if the call details are found to be admissible and the substantive evidence of each of the Nodal Officers are looked into there are only frequent calls between the accused persons which according to them is natural, since A5 to A11 are residents of the locality and are affiliated to the very same political party. The defence also points out that the call details recovered are only of a specified period mostly a month prior to the incident. In fact even before that, there used to be frequent calls between the said persons. There is no possibility of procuring that at the time of trial since call details can be recovered only within an year and by the time the prosecution furnishes it to Court, the defence would have no possibility of procuring the earlier call details for reason only of lapse of time. 22. In the totality of the above circumstances, we do not find any reason to hold relevant the examination of the Nodal Officers or the marking of the call details. 22. In the totality of the above circumstances, we do not find any reason to hold relevant the examination of the Nodal Officers or the marking of the call details. On an examination of the evidence adduced by the prosecution to prove conspiracy, suffice it to observe that, there is nothing established as to the accused having conspired to murder PW-48 and it remains in the realm of a mere apprehension entertained by PW-8, PW-9 and PW-48. In this context, the deposition of PW-51, the C.I. who prepared the inquest report (Ext.P5) is relevant. In cross-examination, column no. 16 in the inquest report, was specifically pointed out to him. It was stated therein that, about 8 persons by around 8.45 p.m. due to prior enmity, attacked the deceased and caused fatal injuries on his head. Definitely, this is the information that was collected at the time of inquest. No investigation has been done on this aspect. PW-51 also admitted that he had gone to the scene of occurrence, where PW-43 the S.I. of Mathilakam Police Station was also present; before the F.I.S was recorded. We will come to that when the evidence of PW-1, the person who gave the FIS is discussed. THE PRIOR ACTIVITIES OF THE ACCUSED: 23. PW-10 is a Chef at a Hotel in Moothakunnam, whose working time, even according to himself, is till 10 O' clock in the night. He was examined to prove the association between A6, A1, A3 and A4. According to him, at around 3 p.m. on 1.3.2014, A6 came in a white Ritz Car, driven by him with three passengers in the back seat and one in the front. A6 is said to have acknowledged the presence of PW-10 since A6 was studying as senior to PW-10 in the High School. In cross-examination, a specific suggestion was put to PW-10 that he had not spoken to the police about having seen three persons sitting in the back seat, which he denied. In chief examination, he identified the person sitting in the front seat as A1 and though there were three persons sitting in the back seat, only A3 and A4 were identified. It has come out in cross-examination that PW-10 was a BJP candidate in the locality. In chief examination, he identified the person sitting in the front seat as A1 and though there were three persons sitting in the back seat, only A3 and A4 were identified. It has come out in cross-examination that PW-10 was a BJP candidate in the locality. But he purposefully tried to evade the suggestions made regarding his association with the Party; whose active worker and office bearer PW-48 was at that point of time. The witness first spoke of no association with the party and claimed no acquaintance with PW-48, but later, on pointed questioning admitted that he was the BJP candidate who lost to a CPI (M) candidate. The prevaricating statements seriously affect the credibility of the witness and in the context of PW-10 being a chance witness, whose presence at 3 p.m. on a working day also stood unexplained, we find difficulty in placing any reliance on his testimony. We also cannot but observe that even if the witness is believed, it only proves that A6 had travelled in a vehicle along with A1, A3 and A4, which by itself does not offer any connection to the crime. 24. PW-11 is another chance witness who was in the neighbouring building of the party office, visiting a friend's shop. When he reached the shop he did not find his friend Kiran, who informed him over telephone that he will be back in 10 minutes. While he was waiting for his friend to come, he saw four persons standing in the first floor of the party office. He saw A4 along with A6, A8 and A10. He recognized A4 because he was an accused in the Shanavas murder case. The final report in Shanavas murder case has been produced as Ext. D26, marked and proved through DW-12, which indicates that A4 was not an accused in the said case. In cross-examination he admitted that he had seen the photograph of the accused in the newspapers. There was also inconsistency in his statements as to the exact spot from which he saw the four people standing on the first floor of the party office; whether it was from inside the shop room or while standing outside. He admitted that one cannot see outside, if a person sits inside the shop since it had no windows. There was also inconsistency in his statements as to the exact spot from which he saw the four people standing on the first floor of the party office; whether it was from inside the shop room or while standing outside. He admitted that one cannot see outside, if a person sits inside the shop since it had no windows. His 161 statement that he saw the persons conversing in the first floor of the party office while he was sitting inside the shop was marked as a contradiction (Ext.D3). He attempted to change his version as having seen the first floor of the party office from near the stair case. 25. PW-12 is yet another witness who is said to have seen A1 to A4 along with A5 taking liquor in the compound of A5's residence near the Palliyil Temple. PW-15 is a construction supervisor who saw A7 driving an autorickshaw with four persons in the back and one person sitting along with A7 in the driver seat. He identified A5 as sitting in the driver seat along with A7 and A1 to A4 in the back seat. Very pertinent is the fact that even according to PW-15, A7 did not stop the autorickshaw and while passing, told him that there are people inside the autorickshaw. The time was also 9 p.m. at night and the identification is made of A1 to A4, with whom the witness had no earlier acquaintance; which is very unlikely. From a fleeting glance of the persons sitting inside a moving autorickshaw, at night, it is unbelievable that he could later identify them in Court. He also speaks of the autorickshaw having come back within two minutes, in high speed and having seen perplexity on A7's face, again unbelievable. In cross-examination, he admitted that he had no prior acquaintance with A1 to A4 and there was no light inside the autorickshaw. He also made an embellishment that he could see the persons only since the autorickshaw was manipulating a hump in the road. In cross-examination he also said that he was not waiting for an autorickshaw nor did he intend to take one, while he was standing on the road side. He explains that he gestured to stop the autorickshaw, since it was fully occupied; a very strange statement. In cross-examination he also said that he was not waiting for an autorickshaw nor did he intend to take one, while he was standing on the road side. He explains that he gestured to stop the autorickshaw, since it was fully occupied; a very strange statement. What has been established is only that KL-47/D 3824 is a Maruthi Ritz Car owned by A6, Habeeb as evidenced by Ext.P28 and the autorickshaw with registration No. KL-16/G1280 belongs to A7, as proved by Ext.P29. The said registration particulars were produced and proved by PW-31, the Joint RTO. The other witnesses so paraded to prove the association between A1 to A4 and A5 to A8, A10 and A11, just prior to the crime, inspires no confidence. Further, even if established, that alone does not provide a link to the crime. As in the case of conspiracy, these are unconnected bits and pieces which have no connection with the crime proper. THE FLIGHT FROM THE SCENE OF OCCURRENCE: 26. PW-4 is a Driver who was sitting in the terrace of his house with a few friends. When he heard cries from the street, he went down to enquire and saw PW-1 sitting on the floor of one Babu's house, drenched in blood. PW-1 is said to have informed him that PW-2 was hacked. He rushed to the scene of occurrence from where Navas was taken first in an Ambulance and then PW-1 and PW-2. He also accompanied PW-1 and PW-2 to the Hospital, first to the Modern Hospital and then to the Medical Trust Hospital. Though he admitted that he accompanied PW-1 and PW-2 to the Hospital, in cross-examination he stated that he had not spoken about the incident to the Doctor since he was not a witness to the same. He also said that PW-1 and PW-2 were unable to speak. PW-6 is another neighbour who turned hostile and did not admit the statement made to the police that she saw some 5-6 persons hurriedly moving through the road in front of her house. PW-16 is an autorickshaw driver who spoke of an incident; of a Bolero Car, rashly driven, almost hitting his autorickshaw, on the crucial night. The driver of the Bolero, identified as A6 abused PW-16, when he noted down the number of the Bolero as KL 46/J 1438; for making a complaint. PW-16 is an autorickshaw driver who spoke of an incident; of a Bolero Car, rashly driven, almost hitting his autorickshaw, on the crucial night. The driver of the Bolero, identified as A6 abused PW-16, when he noted down the number of the Bolero as KL 46/J 1438; for making a complaint. No complaint was made, according to PW-16, since he was informed that the car was involved in a murder. In addition to A6, he identified A11 sitting near the driver's seat. PW-16 spoke about only A11 sitting in the driving seat. A question was put in chief examination as to whether he could recognize the other persons sitting inside the car; without the witness having spoken about any other persons in the car, other than A6 and A11. The witness dutifully identified A1 to A4 as persons in the back seat. PW-16 had admittedly given two statements before the I.O. one on 8.3.2014 and the other on 19.3.2014. On 19.3.2014, according to him, the statement of 8.3.2014 was not read over to him. Ext.D8 contradiction was marked, in so far as the 161 Statement contained such an admission. Interestingly, the I.O. PW-52 says that no statement was taken from the witness on 8.3.2014. This assumes relevance especially in the context of the preliminary objection raised by the defence, in so far as the original 161 statements recorded by the police, not having been handed over to the accused and not being available in the case records. 27. PW-19 is the husband of the owner of the Bolero Car. The ownership is proved by PW-32 the Joint RTO who produced the registration certificate, Ext.P13 which indicates the owner to be one Priya, wife of Sudheer (PW-19). The prosecution case is that A11 had taken the vehicle on hire, but PW-19 says that it was sold to A11, on condition of closing the finance taken for purchase of the Car. The loan was not repaid and hence there was no transfer effected. PW-19 also says that he took the vehicle from the Dy. S.P office, on a kychit, after the same was seized by the police. Again, we have to notice that the aforesaid witnesses and their depositions do not establish any connection with the crime. The loan was not repaid and hence there was no transfer effected. PW-19 also says that he took the vehicle from the Dy. S.P office, on a kychit, after the same was seized by the police. Again, we have to notice that the aforesaid witnesses and their depositions do not establish any connection with the crime. The witnesses put forth by the prosecution, if at all believed, only indicate that the accused were in the locality prior to and after the crime was committed. A5 to A11 are residents of the locality and their presence alone does not tell upon their guilt. A1 to A4 of course are not residents of the locality. But merely by their antecedents and the factum of a crime having occurred, in the vicinity of their presence; they cannot be found guilty. MEDICAL EVIDENCE: 28. PW-20 is the Chief Medical Officer in charge of Casualty at Modern Hospital. The deceased was brought dead to the Casualty and the Certificate issued was marked as Ext.P8. On the same day, he is said to have examined PW-1 and PW-2. He marked Ext.P9 and P10 wound certificates issued as against PW-1 and PW-2. However, he admitted in cross-examination that he had neither examined the patients nor admitted them. One Dr. Reghuram is said to have examined the patients but the certificates were issued by PW-20 itself. Dr. Reghuram was examined as PW-55. He affirmed the fact that he had examined Navas and also PW-1 and PW-2 and confirmed the injuries as noted in Ext.P8 to Ext.P10. Ext.P8 indicates the history of alleged injury, as assault at 9.15 p.m. by 5 to 7 persons. The deceased was brought to the Hospital by one Ajay, son of Keshavan, Tharayil House as seen from Ext.P8. Obviously, since the patient was brought dead, the history would have been spoken by Ajay, who has been examined as PW-4. PW-4 in his cross-examination said that, he had not spoken to the Doctor since he was not aware of the incident. He also said that the injured were not in a fit condition to speak. Ext.P9 and P10 also records a more detailed history, but without specifying the number of persons. There is no clarity as to the person who passed on the history to the Doctor. 29. PW-27 is the Police Surgeon who conducted the Post-mortem examination of the body. He also said that the injured were not in a fit condition to speak. Ext.P9 and P10 also records a more detailed history, but without specifying the number of persons. There is no clarity as to the person who passed on the history to the Doctor. 29. PW-27 is the Police Surgeon who conducted the Post-mortem examination of the body. There were 41 injuries on the body according to PW-27 and the opinion as to cause of death, is by reason of blunt injuries sustained to the head and face. The Doctor also deposed that as per Ext.P22 Chemical Analysis Report, presence of alcohol was detected. The doctor confirmed that the injuries could be caused by the weapons recovered. Ext.P22 detected 232 ml. gram of ethyl alcohol in 100 ml sample of blood, validating the defence version of the deceased having taken liquor at the scene of occurrence before the attack was made; but not at all relevant to the case at hand. 30. PW-46 is the Orthopaedic Surgeon of the Medical Trust Hospital who treated PW-1 between 3.3.2014 to 7.3.2014. He marked Ext.P58 Discharge Certificate and Ext.P59 Case sheet. PW-1 was subjected to a surgery for wound debridement and internal fixation assisted with plastic surgery. PW-26 is the Neurosurgeon of Medical Trust Hospital who attended to PW-2. The discharge summary is marked as Ext.P20 and the case sheet as Ext.P57. From the medical evidence, it is fairly established that the death was by homicide and PW-1 and PW-2 were also injured in the same incident. The deceased, PW-1 and PW-2 were brought to the Modern Hospital at the same time and the wound certificate show almost the same history. PWs. 1 and 2 are hence injured witnesses whose testimony regarding the identification of the assailants have a special sanctity. But the conspiracy angle is not proved nor the converging of minds of the accused. The plan to murder PW-48 having not been established, we are still in the dark as to who the assailants are, though the attack, the resultant death by homicide and injuries to PW-1 and PW-2 are proved. Even then, if the assailants who committed the crime and overt acts are found to have been clearly identified and established; then the conspiracy having not been proved, takes a back seat in so far as convicting the assailants. RECOVERY: 31. Even then, if the assailants who committed the crime and overt acts are found to have been clearly identified and established; then the conspiracy having not been proved, takes a back seat in so far as convicting the assailants. RECOVERY: 31. The prosecution having gone to trial with eyewitnesses, we will first look at the corroborating evidence before looking at the direct evidence. PW-17 was a witness to Ext.P6 mahazar by which the weapons were recovered from a nearby pond. He identified MOs 1 and 3 to 5, a sword and three iron pipes. Ext.P6, Recovery Mahazar, does not record the confession statement of the accused. It merely says that on arrest and interrogation the accused together, confessed that the sword and iron pipes were kept in a plastic sack tied with a rope and thrown into the pond behind the CPI (M) party office. It was also recorded in third person that, if they are taken to the site they would show the pond and the sack. It is trite that a joint confession cannot offer any inculpation, under section 27 and recovery of the weapons cannot at all be said to be incriminating to any of the accused persons Thampi Sebastian vs. State of Kerala, 1988 KHC 152 and Rajesh and Others vs. State of Kerala, 2014 KHC 139 . 32. PW-18 was the witness to Ext.P7 mahazar by which MO2 blade was recovered. He said that one of the persons seen with the Police said that the blade was thrown to the northern side and the same was recovered after cleaning the shrubs in the premises. The blade was recovered by one Aneesh and the person accompanying the Police identified the blade. Then the witness said that the person who identified the blade and handed over the same to the police was A1, without identifying the accused from the dock. It is also pertinent that there was no concealment, since the blade broke away from the sword when the crime occurred. The police would have combed the area and the sniffer dog, brought to the scene of occurrence despite having gone to the pond where the weapons were concealed, did not find the broken blade. It could be assumed that the dog would have followed the smell of the assailants, who threw the weapons in the pond, but did not ferret out the broken blade; quite probable. It could be assumed that the dog would have followed the smell of the assailants, who threw the weapons in the pond, but did not ferret out the broken blade; quite probable. But when the dog went to the pond, definitely the Police would have carried out a search in the pond; which puts to peril the recovery of the weapons from the pond; already found to be not one under Section 27. The recovery of the broken blade is not from a place of concealment and it does not connect the accused. PW-25 attested the seizure mahazar, Ext.P18 by which the dress of A5 was recovered from his house. However, he was declared hostile since he did not tow the prosecution line. PW-28 and PW-39 attested Ext.P23 mahazar for recovery of dress of A4 and PW-29 and PW-30 were the recovery witnesses of A1's dress. All of them turned hostile. Hence, there is no reliable evidence on recovery as against any of the accused. THE OCULAR EVIDENCE: 33. The FIS was by PW-1, recorded in the hospital where he was under treatment. The reason for his admission to the hospital, as per the FIS, was the attack unleashed on himself and his friends-the deceased and PW-2, at the construction site of one Shaji lying to the north of Palliyil Temple; where about 8 persons attacked them with iron rods and swords. The date and time stated was 02.03.2014 at about 8.45 p.m. While the three friends, mentioned above, were chatting in front of the construction site, eight persons armed with iron rods and swords approached them screaming out, kill him. First, a slash was delivered to the head of the deceased, at which he fell down on the sand. When PW-1 and PW-2 tried to prevent the attack, they were also attacked with iron rods and swords. PW-1 was injured on the left ankle and the left elbow, when he cried aloud and ran away. Hearing the cries, the neighbours gathered at the scene of occurrence and the assailants escaped through the back side of the ongoing construction. An ambulance was summoned, in which PW-1, PW-2 and the deceased were taken to Modern Hospital at Kodungallur. PW-1 and PW-2 were then taken to the Medical Trust Hospital, Ernakulam. Hearing the cries, the neighbours gathered at the scene of occurrence and the assailants escaped through the back side of the ongoing construction. An ambulance was summoned, in which PW-1, PW-2 and the deceased were taken to Modern Hospital at Kodungallur. PW-1 and PW-2 were then taken to the Medical Trust Hospital, Ernakulam. They were informed that Navas, who sustained injury to the head, had succumbed and that his body was kept in the Modern Hospital. PW-1 was not aware of the reason behind the attack. He spoke of having seen the assailants in the light from the street light. He asserted that he could identify the assailants and the weapons they carried. 34. PW-1, before Court, made a number of embellishments. He spoke of PW-3 also having joined the group of three sitting on the heap of sand in front of the construction site; i.e. the deceased, PW-1 and PW-2. He also altered the number of persons who attacked them from eight to five, and the time as around 9.15 p.m. which in the FIS was 8.45 p.m. A2 is said to have first struck the deceased on the head with an iron rod, which in the FIS was a slash delivered with the sword. PW-2 then questioned the assailants, when A1 slashed PW-2 on his thigh with a sword. Immediately, A1 again attempted to slash PW-2 with a sword, when the blade slipped away from the handle. A1 then took the iron rod in the hands of A5 and turned on the deceased, beating him all over the body. A3 hit PW-2 on the head with an iron rod and when PW-1 tried to prevent it, the shortest among the five, who had long hair, hacked him on the head which was attempted to be warded off by PW-1 with his hand. The sword slashed his head and hand causing injuries and both PW-1 and his assailant, who was identified as A4, fell down. PW-1 scrambled up to run, when A4 in the lying position hacked on his left ankle. PW-1 ran away screaming that he was being killed and looked back, after hiding behind the motor shed. He saw the four persons hitting and slashing the deceased and PW-2 and then fleeing from the scene of occurrence. PW-1 then limped to the nearby residence of Babu and PW-3 ran away. 35. PW-1 ran away screaming that he was being killed and looked back, after hiding behind the motor shed. He saw the four persons hitting and slashing the deceased and PW-2 and then fleeing from the scene of occurrence. PW-1 then limped to the nearby residence of Babu and PW-3 ran away. 35. The neighbouring residents who gathered at the spot summoned an ambulance. Navas was first taken to the Hospital and then in another ambulance, PW-1 and PW-2. At Modern Hospital, both PW-1 and PW-2 were given first aid and taken to the Medical Trust Hospital at Ernakulam. PW-1 was in the Hospital from 02.03.2014 to 07.03.2014. He confirmed that on the western side of the scene of occurrence, there was a lamp post and he could see the assailants by that light and reiterated that the weapons also could be identified. MO1 was identified as the iron pipe with which A2 struck Navas first. MO2 was the broken blade which was attempted to be used against PW-2. The iron pipe taken by A1 from A5 was identified as MO3. MO4 was identified as the iron pipe used by A3 to hit on PW-2. MO5 was identified as the sword used by A4. He identified his pair of chappals, seized from the scene of occurrence, as MO6. The dress worn by the deceased at the time of occurrence were identified as MO7 (shirt) and MO8 (dhothi). Al to A4 were wearing saffron dhothis while A5, a white dhothi, the latter of which was identified as MO9. PW-1 did not remember the shirts worn by the assailants. He also asserts that the FIS was recorded while he was in the Hospital. 36. In cross-examination, it was stated that his statement was recorded four times. On 15.03.2014, he had stated before the Police that he was informed the name of A1 to A5, who were also said to be quotation goondas from Pudukkad. This was marked as Ext.D9 contradiction which was admitted by PW-1. He also admitted before Court that, he had seen the accused, eight in number, in the police station and PW-2 was along with him. Very strangely in cross-examination PW-1 said that he had not seen the recital in Ext.P1, that the statement recorded was read over and found true and that when he signed the FIS, there was nothing in it. Very strangely in cross-examination PW-1 said that he had not seen the recital in Ext.P1, that the statement recorded was read over and found true and that when he signed the FIS, there was nothing in it. He reiterated that the statement was not read over to him and that he had not admitted that it is correct. Ext.D10 was the contradiction in so far as his statements under Section 161 on 15.3.2014 and 21.3.2014; that the statement was read over and he understood the same. He specifically denied the statement which was also proved by the I.O. in his deposition. There was a suggestion made to PW-1 that the assailants were wearing masks, which was denied by him. He also denied the statement to the Doctor as recorded in the wound certificate that the injuries were suffered in an attack with lethal weapons made by some accused; without specifying the number. He denied the FIS to the extent of the number being eight and asserted that there were only five people. In cross-examination, he also denied the statement in the FIS that, while the assailants attacked them, they screamed aloud: kill him. PW-1 also asserted that he had told the police about the blade in the hands of A1 having slipped away from the handle which was not seen recorded in the FIS. He also did not remember having stated before the Police that when the blade of the sword in the hands of A1 slipped away, A1 took the iron pipe from the hands of A5. PW-1 denied having said in the FIS that he saw somebody hacking the head of Navas with a sword, when he made the FIS. He categorically admitted that he had not seen any of the assailants before the incident and that after seeing the assailants in the Police Station he had seen them only in Court. PW-42, Grade S.I. of Mathilakam Police Station, who recorded the FIS affirmed that, PW-1 had not stated about anybodies presence other than, himself, PW-2 and the deceased-Navas, at the scene of occurrence. 37. PW-42, Grade S.I. of Mathilakam Police Station, who recorded the FIS affirmed that, PW-1 had not stated about anybodies presence other than, himself, PW-2 and the deceased-Navas, at the scene of occurrence. 37. We have to notice that, in the FIS, none of the assailants were named, particularly A5, who is a resident of the locality, in which locality PW-1 also resides, as has been admitted by PW-52, I.O. PW-1 in his testimony admits that his house is to the west of Palliyil Temple and according to the deposition of PW-52, A5's house is 200 metres to the west of the boundary wall of Palliyil Temple (page 31 of deposition of PW-52). The house of A5 according to PW-52, I.O. is also only 200 metres away from PW-48's (CW9) residence. PW-1 and 2 also are residents of that locality and the very fact that both the eye witnesses feigned that they were unacquainted with A5 is very suspicious. This is only to cover up the anomaly in not naming a known person in the FIS; which puts a cloud over that statement. More pertinent is the fact that, Ext. P1 is not the first information received by the police. PW-43 is the Station House Officer of Mathilakam Police Station, who reached the scene of occurrence between 9.30 and 9.45 p.m. on the day of occurrence and remained there for about 2 hours. He was informed of the incident from the police station, which information to the police station is obviously the first information. PW-43 the SHO, also did not think it fit to record the information received by him at the scene of occurrence. PW-51, the C.I. also reached the spot after PW-43 informed him. The FIS was however recorded by PW-42, who was send to the Hospital at Ernakulam for recording the statement of the injured. There was no warrant for the said statement to be recorded as the FIS and in this context, one has to look at the discrepancy in the signature of PW-1, in the FIS, as argued by the defence. We have compared the signature with that in the deposition of PW-1. There was no warrant for the said statement to be recorded as the FIS and in this context, one has to look at the discrepancy in the signature of PW-1, in the FIS, as argued by the defence. We have compared the signature with that in the deposition of PW-1. PW-1 deposed that, he is not very literate and his signature in the deposition is more of a scrawl while that in the FIS is a well drawn-S. PW-1 signed the FIS when he was lying in the hospital grievously injured and this throws further doubt on the signature. 38. We have to pertinently notice the cross-examination of PW-43 where he admits that the first information he received at the spot was that, there was an attack by around eight masked persons. This should be latest by two hours from 9.30 p.m. since he states that he was in the scene of occurrence for about 2 hours. The FIS, Ext. P1 was recorded at 12.15 a.m. and the FIR registered at O1.30 a.m. which is also very unlikely. The FIS was recorded at Ernakulam and the Police Station is at Mathilakam, Kodungalloor, which is 45 kilometers away. PW-43 also admits that some of the news papers reported an attack by masked men. The FIS and the identification by the persons in the scene of occurrence cannot be believed, also for the prevaricating statements made by PW-1 in his cross-examination. 39. Kailash Gour (supra) was a case in which FIR was registered after 25 hours; despite the I.O. having reached the spot within minutes of the occurrence, in which three people were killed and the FIS was by the eye witness. The situation according to their Lordships, had only two explanations: one that the I.O. was ill-trained or ignorant and the other, that neither the I.O. nor the witnesses had any clue as to who the real perpetrators were. Here, though the delay is not that large, the fact that the police who reached the spot immediately did not record the FIS; especially that of masked men having made the attack, indicates deliberation on the part of the Police to shape the case in a particular manner. Here, though the delay is not that large, the fact that the police who reached the spot immediately did not record the FIS; especially that of masked men having made the attack, indicates deliberation on the part of the Police to shape the case in a particular manner. Raju (supra) was also a case in which the Station House Officer having reached the spot immediately after the incident, failed to record the FIS and register FIR, which according to the Division Bench could result in gross miscarriage of justice. 40. PW-2 spoke about the incident and identified the weapons and the dress worn by the deceased and confirmed the existence of a street light in which he witnessed the incident. PW-2 was an employee of the Panchayat and was a resident of the locality; his father too having been employed in the Panchayat. In chief examination, he also admitted that he was informed at the police station by somebody that A1 to A5 were quotation goondas from Pudukkad. His statement under Section 161 also reveal that the names of A1 to A4 and the nature of their antecedents were revealed to him at the Police Station. When he was specifically asked whether the C.I. had pointed out the accused; he said that the accused were pointed out by him; definitely not in a properly constituted TIP. He does not remember who told him their names. Admittedly, PW-1 and PW-2 had no acquaintance with A1 to A4 and had not seen them before the incident. 41. The testimonies of PW-1 and 2, with respect to the identification of the assailants are definitely suspicious, especially so when the prosecution case is that A5 was among the assailants; to identify PW-48, another resident of the locality, whose murder was the conspiracy alleged. There is also the admission by PW-43, S.I. who reached the spot first that he was told that the attack was by masked men. Mohanlal Gangaram Gehani (supra) was a case in which though a TIP was held, it was held to be unreliable since the accused were shown to the witnesses in the police station before the TIP. Krishan Kumar Malik (supra) also eschewed dock identification since the victim was shown the accused in the police station. Here, there was no TIP and the eyewitnesses admitted to being shown the accused in the police station. Mohd. Krishan Kumar Malik (supra) also eschewed dock identification since the victim was shown the accused in the police station. Here, there was no TIP and the eyewitnesses admitted to being shown the accused in the police station. Mohd. Abdul Hafiz (supra) refused to accept the identification of the accused; with whom the victim had no prior acquaintance, made in Court for the first time after four months of the crime, since there was a possibility of the victim having seen the accused in the intervening period. The instant case was one with political overtones and admittedly, the accused were shown to the witnesses in the police station. 42. It is in this context, the evidence of PW-3 another resident of the locality who also would have had acquaintance with A5 has to be looked into. The presence of PW-3, we cannot but observe, was not stated by PW-1 in the F.I.S. which FIS itself is in a cloud going by our findings above. PW-3 did not suffer any injury and there is no reason why he should have been spared. Though the prosecution allege conspiracy to kill PW-48, the attack was unleashed on all persons present there and there is also an allegation of mistaken identity. Here we notice the deposition of PW-51, the C.I. who prepared the scene mahazar, Ext. P4. The scene is declared to have been pointed out by PW-3, but he has not stated that he is a witness to the incident. PW-51 also says that he asked PW-3 about the handle of the sword recovered from the scene, about which PW-3 had nothing to say. In Marudanal Augusti (supra), the Hon'ble Supreme Court considered a case of direct evidence by six eye-witnesses. It was found that, one of them, PW-1, who gave the FIS, did not at all speak of three eye-witnesses, in the scene of occurrence. Though the other two were mentioned as having given first aid to the deceased, there was nothing stated regarding their presence at the time of attack, which was sudden and short. Here too the attack was sudden and short and when the two eye witnesses were injured grievously; PW-3 suffered no injury and his name was not mentioned in the FIS. PW-3, we have no doubt, cannot be believed. 43. Here too the attack was sudden and short and when the two eye witnesses were injured grievously; PW-3 suffered no injury and his name was not mentioned in the FIS. PW-3, we have no doubt, cannot be believed. 43. In cross-examination, PW-3 also stated that his statement was taken twice, once at the scene of occurrence and then at the police station. He also vouches that at both instances the statements were recorded in hand. At the scene of occurrence, it was taken down in hand placing the paper on the bonnet of the police jeep, according to PW-3. We called for the case diary and also perused the final report. The Section 161 statements are all computer print outs. Apart from finding that PW-3 is a planted witness; there arises the larger issue of the veracity of the statements produced before Court, along with the Final Report, as statements recorded under Section 161 Cr.P.C. during the course of investigation. Under Section 161, sub clause (3) requires the Police Officer to reduce into writing any statement made to him under Section 161 and he is also obliged to make a separate and true record of the statement of each of such persons who is examined under the provision. The first proviso also permits recording by audio video electronic means. Section 173 speaks of the final report of a Police Officer on completion of investigation. Sub-Section (5) requires the Police Officer to forward, along with the final report, inter-alia the statements recorded under Section 161, of all the persons whom the prosecution proposes to examine as its witnesses. In cases triable by Court of Sessions, Section 208 prescribes by clause (i) that the statements and confession recorded under Section 161 or Section 164 shall be supplied to the accused, free of cost. The said requirement is a necessary ingredient of fair trial where the witnesses may embellish, prevaricate and differ from the earlier statements, the benefit of which should go to the accused if such omissions and contradictions are found to be relevant. It is imperative that the statements enclosed in the final report and those supplied to the accused are the statements recorded originally, in writing or the photostat or carbon copies or if recorded digtally, the audio or video clippings. 44. It is imperative that the statements enclosed in the final report and those supplied to the accused are the statements recorded originally, in writing or the photostat or carbon copies or if recorded digtally, the audio or video clippings. 44. In the present case, PW-52 (I.O.) categorically states that, he tore off the previous statements recorded and typed it out in the computer at the Police Station. PW-51 says that he had typed out the statements from the witness, on the computer, which is a falsehood, since the witness, PW-3, examined by him specifically stated that it was taken down by a police man by keeping the paper on the hood of the police van. If the I.O. had typed out the statements for making it readable, then necessarily the original, all the same, should have been produced in the final report and their copies given to the accused for the purpose of verification. Be that as it may, we cannot but find, that the prosecution though has destroyed the statements recorded during investigation, the gravamen of charges as deduced from the available statements, have not been established by the evidence led in trial. But for completeness we also look at the specific objection raised. 45. Pulukuri Kottayya vs. Emperor, AIR 1947 34 (PC) 67 dealt with failure of supply of statements under section 161 and held so: “The right given to an accused person by this section is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate break-down of the whole of his evidence and in the present case it has to be remembered that the accused contention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to Section 162 as matter of gravity, where the record of statements made by witnesses had been destroyed, where the court had refused to supply to the accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of Section 162 have led to the conviction being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost ‘irresistible, arises of prejudice to the accused.” 46. The Hon'ble Supreme Court in Noor Khan vs. State of Rajasthan, AIR 1964 SC 286 considered an identical case. The I.O. admitted that the statements recorded of the witnesses during investigation were mere jottings. Later, the same was dictated by the I.O. and reduced to writing which were made available to the accused and the Court. Their Lordships after quoting from Pulukuri Kottaya (supra) declared so: However strong the inference may be, failure to supply copies will not by itself render the trial illegal. The Court must in each case consider the nature of the defect, the objection raised at the trial, and the circumstances which lead to an inference of prejudice. The strength of the inference of prejudice must always be adjudged having regard to the circumstances of each particular case. Narayan Rao Case AIR 1957 SC 737 related to failure to comply with the provisions of Sections 173 and 207-A. It appears that in that case the statements of witnesses recorded under Section 161 were supplied to the accused in the Court of Session, and irregularity in the proceeding to that extent was mitigated. In the present case what could be regarded as statements recorded under Section 161 (3) were never supplied to the accused. But on that account the principle applicable to the consequences of deprivation of the statutory right is not different. (Emphasis supplied) Having considered the evidence led before Court and the infirmities including the non-supply of the original jottings made, in that case the Hon'ble Supreme Court found no prejudice, particularly since the objection was not made before the High Court in appeal, and their Lordships were in an appeal by Special Leave. It was declared so: 21. We may repeat that the provisions of Section 162 of the Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. It was declared so: 21. We may repeat that the provisions of Section 162 of the Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of copies to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under Section 161 the court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction. This, in our judgment, is one of those cases in which such a course is warranted. (Emphasis supplied) 47. In the present case too, the prior statements recorded under Section 161 in the course of investigation has been destroyed and this puts to peril the entire prosecution against the accused juxtaposed with the other infirmities found by us. There is no explanation offered as in the cited case that originally jottings were made which were later transcribed properly. Despite the defence having raised the said objection as a preliminary objection, we kept it for the last, lest we be accused of shirking our responsibility to peruse the entire evidence and evaluate the same as is required in an appeal against conviction. We have found that none of the elements alleged by the prosecution, of a conspiracy, the converging of minds to attack and kill PW-48; which due to a mistaken identity sadly resulted in the death of an innocent person and grievous injuries suffered by two others, arise in this case. One of the injured just escaped from the jaws of death as his injuries indicate. One of the injured just escaped from the jaws of death as his injuries indicate. But the direct evidence by the testimonies of PW-1 to PW-3 has been disbelieved by us for cogent and valid reasons. 48. We found the identification of the accused to be not trust worthy. There was the defect of the I.O. the C.I. and the S.I. having jurisdiction, not having recorded the FIS from the scene of occurrence, where they were available for two hours and deputing another to take the statement from the injured, much later. The FIS also left out very relevant aspects, the presence of PW-3, later projected as an eyewitness and the absence of A5, a neighbour and resident of the locality. There is also the very relevant fact of the S.I. who reached the spot first, having admitted that he was told that the attack was by masked men. To cover up this the FIS is alleged to have been recorded from PW-1; albeit with delay. The witnesses were also admittedly shown to the eye-witnesses from the police station and no attempt was made to hold a TIP; despite the witnesses admitting no prior acquaintance with the accused. Coupled with these discrepancies, the non-furnishing of the copies of Section 161 statements, which were recorded in writing, causes serious prejudice to the accused. The accused allege trumped up charges based on planted witnesses and there is sufficient cause to find prejudice. We find the conviction of guilt entered by the Trial Court to be erroneous for reason of complete absence of evidence, incriminating A1 to A5 on whom the overt acts were alleged and not at all, as against A6 to A11 who were roped in for the conspiracy, said to have been hatched. We overturn the conviction as entered by the Trial court and acquit the accused. 49. The appeals are allowed and the accused, if they are in custody, shall be released forthwith if they are not required in any other case.