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2024 DIGILAW 1386 (KER)

SIBI, S/o. Paul v. State Of Kerala

2024-10-29

G.GIRISH, RAJA VIJAYARAGHAVAN V.

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JUDGMENT : Raja Vijayaraghavan, J. These appeals have been preferred by the accused Nos. 1, 2, 4, 5 and 6 in S.C.No. 507 of 2013 on the file of the IV Additional Sessions Judge, Thrissur. They were charged along with two others for having committed offences punishable under Sections 120B, 143, 147, 148, 341, 324, 326, 302, 201, 118, 212 r/w. Section 149 of the IPC and Section 27 of the Arms Act, 1959. 2. By the impugned judgment, A. the accused Nos. 1, 2 and 4 to 6 were found guilty and were sentenced a) to undergo simple imprisonment for six months and to pay a fine of Rs.1000/- each under Section 143 r/w. Section 149 of the IPC with a default clause; b) to undergo simple imprisonment for two years and to pay a fine of Rs.5000/- each under Section 147 r/w. Section 149 of the IPC with a default clause; c) to undergo simple imprisonment for 1 month and to pay a fine of Rs. 500/- each under Section 341 r/w. Section 149 of the IPC with a default clause; d) to undergo simple imprisonment for three years and to pay a fine of Rs.5000/- each under Section 324 r/w. Section 149 of the IPC with a default clause; e) to undergo rigorous imprisonment for eight years and to pay a fine of Rs.25,000/- each under Section 326 r/w. Section 149 of the IPC with a default clause; f) to undergo imprisonment for life and to pay a fine of Rs. 50,000/-each under Section 302 r/w. Section 149 of the IPC with a default clause. B. the accused Nos. 1, 2, and 4 were sentenced a) to undergo simple imprisonment for three years and to pay a fine of Rs.5000/- each under Sections 148 of the IPC with a default clause; C. the accused Nos. 7 and 8, who were charged for having committed offence punishable under Sections 118 and 212 of the IPC were found not guilty and were acquitted of all charges. D. the substantive sentences were ordered to run concurrently. Prosecution Case in a nutshell: 3. The accused and the deceased were all residents of the Puthukkad area in Thrissur. Indrankutty (A1), Sibi (A2), and others were friends and members of one gang, while Jamsheer (deceased), Gopi (deceased), and Smithlal (PW1) belonged to a rival gang. D. the substantive sentences were ordered to run concurrently. Prosecution Case in a nutshell: 3. The accused and the deceased were all residents of the Puthukkad area in Thrissur. Indrankutty (A1), Sibi (A2), and others were friends and members of one gang, while Jamsheer (deceased), Gopi (deceased), and Smithlal (PW1) belonged to a rival gang. Both groups used to frequent the "Mayfair Bar" in Puthukkad. On 04.06.2012, disputes arose between the two gangs, with Jamsheer and Gopi on one side and A1 and A2 on the other. A similar confrontation occurred on 05.06.2012, during which Jamsheer, Gopi and Arun committed mischief by throwing soda bottles and challenged Indrankutty and his gang. Indrankutty and his gang members planned revenge. According to the prosecution, on 06.06.2012, accused Nos. 1 to 6 gathered at house No. IV/417 in Puthukkad Grama Panchayat and conspired to murder Jamsheer and Gopi. Jamsheer, on the other hand, suspecting that police are in hot pursuit for the mischief at the bar, decided to make themselves scarce by hiding in a shed located in a brickfield at Pazhayi Desam, accompanied by Gopi, Smithlal and Pratheesh (PW2). The group began drinking around 2 p.m., and later in the evening, Smithlal used Gopi’s mobile phone to call Sachin (A6), who soon joined them. Sachin inquired about the incidents of the preceding days before eventually leaving. Immediately thereafter, Smithlal decided to return home as his mother was ill. As he was walking along the road lying in the east-west immediately on the northern side of the brickfield and when he had advanced approximately 30 meters, he noticed several individuals coming from the opposite direction. Under the impression that they are police officers coming in search of him, he concealed himself behind a bush. He then identified the approaching group as accused Nos. 1 to 6. They were heading toward the brickfield where Jamsheer and Gopi were hiding. The accused were allegedly armed with knives, iron pipes, and choppers. Smithlal stayed in the same position to save himself. Moments later, he heard cries and screams, which he recognized as Jamsheer’s voice. Shortly thereafter, the accused left the scene along the same path they had taken. When they had departed, Smithlal went to the brickfield, where he found Sachin's parents with torches. He initially found Jamsheer lying critically injured and immediately contacted PW3, Reeson, a BJP activist. Moments later, he heard cries and screams, which he recognized as Jamsheer’s voice. Shortly thereafter, the accused left the scene along the same path they had taken. When they had departed, Smithlal went to the brickfield, where he found Sachin's parents with torches. He initially found Jamsheer lying critically injured and immediately contacted PW3, Reeson, a BJP activist. Together, they reached the scene and promptly informed the police. He stated that the police reached the spot in ten minutes. The police searched the place with torches and found Gopi lying in a place about 20 mts. from the place where Jamsheer was lying with injuries. Registration of the Crime and Investigation: 4. On the same day, based on the information furnished by Smithlal, Ext.P42 FIR was registered under Section 302 of the IPC. The investigation was taken over by PW47, the Circle Inspector of Police, Puthukkad Police Station. On 07.06.2012, he conducted the inquest of Jamsheer and prepared Ext.P5 inquest report. PW45, the Sub Inspector of Police, conducted the inquest of Gopi and prepared Ext.P6 inquest report. The investigating officer secured the presence of a Scientific Assistant and Fingerprint Expert for collecting evidence. He prepared the scene mahazar. The Election ID Card of the 5th accused Lalu was found at the spot and the same was seized. On 11.06.2012, at 3.30 a.m., accused Nos. 1, 7, and 8 were arrested as per separate arrest memos. Accused Nos. 2 to 6 were arrested at 4.30 a.m. on the same day. On the basis of the confession statement given by the 1st accused, MO1 to MO4 weapons were recovered as per Ext.P14 seizure mahazar. As per the confession statement of Sibi, the autorickshaw used for fleeing from the place of occurrence was seized as per Ext.P67 mahazar. Later, since the investigation revealed that the 6th accused had come to the spot after getting the call from Smithalal, he was arrested on 16.06.2012 at 6 a.m. as per Ext.P74 arrest memo. The mobile phone found in the possession of Smithlal was seized as per Ext.P33 seizure mahazar. Immediately thereafter, a request was made before the Chief Judicial Magistrate Court, Thrissur for recording the 164 statement of Smithlal. The mobile phone found in the possession of Smithlal was seized as per Ext.P33 seizure mahazar. Immediately thereafter, a request was made before the Chief Judicial Magistrate Court, Thrissur for recording the 164 statement of Smithlal. Later, finding that Smithlal was privy to the offence and he assured that he would make a full and complete disclosure of the events, an application was filed for tendering pardon under Section 306 of the Cr.P.C. An application was also filed to delete Smithlal from the array of the accused. After the completion of the investigation, final report was laid before the jurisdictional Magistrate. The Committal and Framing of Charge: 5. The learned Magistrate numbered the case as C.P.No.137 of 2012 and the case was committed to the Court of Session. The case was later made over to the IV Additional Sessions Judge, Thrissur for trial and disposal. The accused pleaded not guilty to the charge and claimed that they be tried. The evidence let in: 6. On the side of the prosecution, 48 witnesses were examined as PWs 1 to 48 and through them, Exts.P1 to P81 were exhibited and marked. Material Objects 1 to 20 were produced and identified. 7. After the close of the prosecution evidence, the incriminating materials arising from the evidence were put to the accused under Section 313 of the Cr.P.C. They emphatically denied the circumstances pointing to their guilt. On finding that the accused could not be acquitted under Section 232 of the Cr.P.C., they were called upon to enter on their defence. On the side of the defence, the Scientist and Director, Meteorological Centre, Thiruvananthapuram was examined as DW1 and through the said witness, Exts.D15 and D16 were marked. Findings of the learned Sessions Judge: 8. The learned Sessions Judge noted that the evidence presented by the prosecution to connect the accused to the crime was mainly circumstantial. PW1, the approver, was deemed a highly reliable witness. The Court observed that PW1's presence at the scene was corroborated by the testimonies of PWs 2 to 5. Testimonies of PWs 2 and 4 supported PW1's account, confirming that the accused left the scene in an autorickshaw after completing their task. PW1, the approver, was deemed a highly reliable witness. The Court observed that PW1's presence at the scene was corroborated by the testimonies of PWs 2 to 5. Testimonies of PWs 2 and 4 supported PW1's account, confirming that the accused left the scene in an autorickshaw after completing their task. The evidence from PWs 9 to 11, the family members of Jamsheer, and PWs 12 and 13 sufficiently established the altercations between the rival gangs at Mayfair Bar on 04.06.2012 and 05.06.2012, as well as Jamsheer’s fear of being attacked by A1 and his gang. The seizure of identification cards, including an election ID card belonging to Lalu (A5) at the crime scene, was considered sufficient to prove his presence. PW39's testimony, the Doctor who treated Sibi (A2) for a cut injury, was used to infer that the injury occurred during the same incident. The recovery of weapons at A1’s instance, in the presence of A2 to A6, was considered corroborative of their involvement in the crime. The presence of blood on the weapons, while not definitive in origin, served as an additional link connecting the accused to the brutal crime. Contentions raised by the Appellant: 9. Crl. A. No. 513 of 2020 is filed by accused Nos.1 and 5 through Sri. M.H. Hanis. Crl. A. No. 441 of 2018 is filed by Sri. Sibi, the 2nd accused through Sri. Revi Krishnan, Crl. A. No. 774 of 2018 is filed by the 4th accused through Sri. K.R. Vinod, the learned counsel, and Crl. A. No. 443 of 2021 is filed by the 6th accused through Adv. Vinay Ramdas. 10. Sri. M.H.Hanis, the learned counsel appearing for the accused Nos. 1 and 5 submitted that since the case rests purely on circumstantial evidence, unless the circumstances collectively considered lead to the irresistible conclusion that the accused alone are the perpetrators of the crime, a finding of guilt cannot be arrived at. He would point out that no reliance ought to have been placed on the evidence of the approver. He would point out that the prosecution relies on the alleged incident which took place on 04.05.2012 and 05.05.2012 as the root cause for the murder of Jamsheer and Gopi on 06.05.2012. However, the fact remains that the prosecution has no case that a crime was registered based on a complaint lodged by the Bar. He would point out that the prosecution relies on the alleged incident which took place on 04.05.2012 and 05.05.2012 as the root cause for the murder of Jamsheer and Gopi on 06.05.2012. However, the fact remains that the prosecution has no case that a crime was registered based on a complaint lodged by the Bar. It is submitted that in a case of circumstantial evidence, motive plays a very important part, and the failure of the prosecution to prove the motive is fatal. The learned counsel would then submit that the prosecution has not initiated any steps to obtain any scientific evidence in the form of mobile phone “Tower Dump Details” to prove that the deceased congregated at the brickfield at Pazhayi. It is further submitted that from the statement of the approver, it is evident that the parents of the 6th accused, who are staying about 15 mts. from the scene of crime, were the persons who had reached the scene of crime immediately after the occurrence. However, for the reasons best known to the Investigating Officer, they have not been cited as witnesses. Arun, who was present along with the deceased from noon till he left in the evening, was cited as CW26, however, he was not examined. He would point out that the investigation has been conducted in a shabby manner and the evidence tendered by PW1 is irreconcilable with the evidence tendered by PWs 2 and 4. 11. Sri. P. Vijayabhanu, the learned Senior counsel appearing for the 2nd accused, submitted that the evidence tendered by PW1, the approver, would not satisfy the twin test. His evidence first of all should be reliable and the same should be sufficiently corroborated. Numerous inconsistencies, omissions, and contradictions were brought out when the witness was in the box, which made his testimony suspect. In the police charge as well as in the court charge, there is a specific allegation that PW1 attacked Gopi with an iron pipe. However, in the First Information Statement, the 164 statement given thereafter and in the statement recorded under Section 306 of the Cr.P.C., he has taken an exculpatory stand. As the evidence tendered by PW1 failed the test of reliability, his evidence ought to have been eschewed. However, in the First Information Statement, the 164 statement given thereafter and in the statement recorded under Section 306 of the Cr.P.C., he has taken an exculpatory stand. As the evidence tendered by PW1 failed the test of reliability, his evidence ought to have been eschewed. According to the learned Senior counsel, PW1, betrayed Jamsheer and Gopi by his action in intimating their presence in the brickfield, betrayed the accused by becoming an approver, and betrayed the prosecution by refusing to state the true version before court. To substantiate his contentions, reliance is placed on the law laid down by this Court in State of Kerala v. Anil Kumar @ Jacky, [2024 KHC 739]. It is further submitted that the justification of PW1 for calling Sachin using the phone kept in the possession of Gopi is that his phone did not have the necessary charge. However, hours after the incident, he is alleged to have called PW3 using his phone. This would show the falsity of his case. The learned Senior counsel would invite the attention of this Court to the evidence of PWs 2 and 4 and it is submitted that their evidence will not tally with each other as regards their encounter with the accused, despite the fact that they were travelling in the same bike. According to the learned Senior counsel, if the accused had left the brickfield in an autorickshaw, this would go against the version of PW1 who said that they had arrived at the scene and left the place on their foot. It is further pointed out that though the allegations against the 2nd accused are that he had inflicted injuries with an iron rod, no corresponding injuries are noted in the Postmortem Certificate. It is further submitted that though an autorickshaw bearing registration No.KL-08-AN-5067 was seized and it was alleged that the same was possessed by the 2nd accused, Ext.P23-RC particulars revealed that the autorickshaw stood in the name of one Jayan P.S. According to the learned counsel, the prosecution had miserably failed to link the 2nd accused with the autorickshaw. The next circumstance against the 2nd accused is that he had secured treatment for a cut injury that was sustained to his hand in the course of the transaction, which led to the murder of Jamsheer and Gopi. The prosecution examined PW18, Nursing Assistant, and PW19, General Supervisor of Lal Memorial Hospital. The next circumstance against the 2nd accused is that he had secured treatment for a cut injury that was sustained to his hand in the course of the transaction, which led to the murder of Jamsheer and Gopi. The prosecution examined PW18, Nursing Assistant, and PW19, General Supervisor of Lal Memorial Hospital. However, those witnesses were not in a position to identify either the patient or the persons who had accompanied him. However, the resident Medical Officer of Lal Memorial Hospital, who was examined as PW39, after about five years, went on to identify the 2nd accused as the person who had secured the treatment. According to the learned counsel, without a proper test-identification parade, the evidence tendered by PW39 ought not have been relied upon. Insofar as the 5th accused is concerned, the main circumstance relied on by the prosecution is the detection of Ext.P2 Election ID Card, from the scene of crime, immediately after the incident and at the time of preparation of the Scene Mahazar. It is pointed out by the learned Senior counsel that the Scene Mahazar was prepared at 12:20 p.m. on 07.06.2012, but the same reached the Court along with Ext.P2 ID Card on 11.06.2012 at 4:30 p.m. The 5th accused was arrested on 11.06.2012 and this means that the alleged detection of the ID Card and the preparation of the Scene Mahazar did not happen on 07.06.2012, but only after the arrest of the 5th accused. According to the learned Senior Counsel, as the finding of guilt was based on circumstantial evidence, the trial Court was bound to follow the principles of law laid down in Shivaji Sahabrao Bobade v. State of Maharastra, [ 1973 2 SCC 793 ], wherein, the “panchsheel” principles of the proof of a case based on circumstantial evidence was laid down. According to the learned counsel, if the evidence tendered by the approver is rejected as unreliable, there is no evidence worth the name to connect the accused with the crime. 12. Sri. K.R. Vinod, the learned counsel appearing for the 4th accused, adopted the submissions advanced by the other counsel. He would point out that it is unsafe to act on the evidence of an approver unless the same is corroborated in material particulars, and in the case on hand, for lack of corroboration, the evidence is liable to be rejected. Sri. K.R. Vinod, the learned counsel appearing for the 4th accused, adopted the submissions advanced by the other counsel. He would point out that it is unsafe to act on the evidence of an approver unless the same is corroborated in material particulars, and in the case on hand, for lack of corroboration, the evidence is liable to be rejected. He would invite our attention to the evidence tendered by PW2 and PW4, whose evidence was profusely relied on by the learned Sessions Judge, and it was argued that their version conflicts with each other as regards the manner in which, they had occasion to see and identify the accused, who were travelling in an autorickshaw. Furthermore, their version runs contrary to the version of PW1. It is urged by the learned counsel that on the strength of such inconsistent evidence, the learned Sessions Judge has proceeded to sentence the accused to undergo imprisonment for life. It is submitted by the learned counsel that the learned Sessions Judge has seriously erred in placing reliance on the recovery of MOs 1 to 4 weapons at the instance of the 1st accused. Placing reliance on the principles of law laid down by the Apex Court in Subramanya v. State of Karnataka, [ (2023) 11 SCC 255 ] and Ramanand v. State of U.P., (2023) 16 SCC 510, it is submitted that the evidence of recovery could not have been relied upon. It is further submitted that the evidence adduced by the prosecution by examining DW1, the Scientist and Director of the Meteorological Research Institute, would emphatically show that under no circumstances could PW1 have seen and identified the accused in the dead of night as claimed by him, without there being any source of light. 13. Sri. Vinay Ramdas, the learned counsel appearing for the 6th accused submitted that the entire case against him is concocted and he has been roped in without even a semblance of evidence. According to the learned counsel, even according to the prosecution, the 6th accused is a close friend of Gopi and Smithlal. The 6th accused is residing just on the northern side of the brickfield with his parents. As invited by the accused over the phone, he had come to the brickfield. If that be the case, there is absolutely no reason as to why he would have a grudge against the deceased. The 6th accused is residing just on the northern side of the brickfield with his parents. As invited by the accused over the phone, he had come to the brickfield. If that be the case, there is absolutely no reason as to why he would have a grudge against the deceased. The learned counsel would point out that if the prosecution version is believed, immediately after the 6th accused had left the brickfield, he had managed to contact the rest of the accused and rushed back to the brickfield armed with weapons to commit the gruesome crime. 14. In response, Sri. Alex M. Thombra, the learned Public Prosecutor, submitted that the evidence tendered by PW1 has been corroborated in all material particulars by the testimony of PWs 2 to 4, and it was after finding that the evidence of the approver satisfies the twin test that the learned Sessions Judge proceeded to rely upon the same and enter into a finding of guilt. It is submitted that the detection of the ID Card from the scene of crime also supports the case of the prosecution. The Doctor who treated PW2 on the same day stated that a cut injury was sustained by the said accused on the date of the incident. The 2nd accused was in fact accompanied by Lalu (A5), and they had absconded from the hospital, after getting the treatment. The recovery of the autorickshaw as well as the weapons at the instance of the accused bolstered the case of the prosecution. According to the learned counsel, the mere failure to hold a test identification parade, particularly, when the persons are known to each other, would not render the evidence tendered before the court inadmissible. To substantiate his submissions, reliance is placed on the law laid down in Subash Krishnan V. State of Goa, [ AIR 2012 SC 3003 ]. Reference is also made to the observations in Khokan Giri @ Madhab v. State of West Bengal, [ AIR 2017 SC 668 ] and it is argued that a conviction can be based on the sole testimony of an accomplice if the same is found to be reliable. Reference is also made to the observations in Khokan Giri @ Madhab v. State of West Bengal, [ AIR 2017 SC 668 ] and it is argued that a conviction can be based on the sole testimony of an accomplice if the same is found to be reliable. The learned counsel would then rely on the observations in Ajayan alias Baby v. State of Kerala, 2011 (1) KLT 8 , and it is urged that it is not invariable that authorship of concealment should be admitted in the information to make the same admissible under Section 27 of the Evidence Act. As long as the accused has no explanation as to how he came to know about the concealment of MOs 1 to 4, the mere failure to incorporate authorship in Ext.P2 (a) and Ext.P3 (a), would not be of any consequence. It is further submitted that the failure of the witnesses to support the recovery would not affect the recovery of the weapons, pursuant to the information supplied by the accused. To support the said submission, reliance is placed on the observations in State, Govt. NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652 . 15. We have carefully considered the submissions advanced and have perused the entire records. Error in charge and its consequences: 16. The murder of Jamsheer and Gopi has not been witnessed by any person. The prosecution case pivots on the evidence of PW1, the approver, and the evidence tendered by PWs 2 and 4, who deposed that they had occasion to see the accused Nos. 1 to 6 leaving the brickfield, where the mangled bodies of Jamsheer and Gopi were found a bit later. The prosecution could not and was not expected to present a complete detailed picture of what had transpired in the shed on the night of 6.6.2012. Instead, they only needed to prove incriminating circumstances that could reasonably connect the accused to the crime. However, a reading of the charge would reveal that the investigating officer, apparently based on the confessional statement given by the accused, has presented a graphic picture of what had transpired in the shed. By doing so, a big folly has been committed. Instead, they only needed to prove incriminating circumstances that could reasonably connect the accused to the crime. However, a reading of the charge would reveal that the investigating officer, apparently based on the confessional statement given by the accused, has presented a graphic picture of what had transpired in the shed. By doing so, a big folly has been committed. It was mentioned in the court charge that the approver who was arrayed as accused No. 9 inflicted injuries on Gopi with an iron rod and he was also one among the persons who were with accused Nos. 1 to 6 while they had mercilessly attacked Jamsheer and Gopi. In the court charge, this mistake has been carried over. The relevant portion of the Court Charge dated 3.5.2017 reads as under: “Fifthly, that during the course of the same transaction, in prosecution of the common object of the unlawful assembly, A9, by an iron pipe hit Gopi, A4, by knife stabbed on the back of Gopi and caused fatal injuries, A2 hit Jamsheer by Iron pipe …………………..” 17. The chronology of events is that the FIR was registered on 07.06.2012, based on information furnished by PW1 (Smithlal). His 164 statement was recorded by the Judicial Magistrate of the First Class, Thrissur on 15.06.2012. As per his 164 statement, PW1 had furnished information about the presence of the deceased in the brickfield to A6 (Sachin), he was roped in as accused by Ext.P73 report dated 16.06.2012, and he was arrested on the same day at 6:00 a.m and was arrayed as the 9th accused. Thereafter, Crl.M.P. No.4449 of 2012 was filed by the State before the Chief Judicial Magistrate, Thrissur, seeking to tender pardon to the 9th accused, on condition that he makes a true disclosure of the whole of the circumstances relating to the offences alleged in the case. The learned Chief Judicial Magistrate, after complying with the procedure and after recording his statement, allowed the application and issued directions to the JFMC, Irinjalakuda by Ext.P40 order to examine A9 as a witness, as provided under Section 306 (4) (i) (a) of the Cr.P.C. In terms of the same, Ext.P77 report was submitted before the JFMC, Irinjalakkuda. 18. Neither in the FI Statement nor in the 164 statement, has PW1 stated that he was present in the brickfield when the accused arrived. 18. Neither in the FI Statement nor in the 164 statement, has PW1 stated that he was present in the brickfield when the accused arrived. On the other hand, his specific case is that he had left the company of the deceased and while he was returning back home, he had occasion to witness the accused coming with weapons and going to the place where Jamsheer and Gopi were hiding. In other words, the accusation in the police charge that PW1 had attacked Gopi with an iron rod is a typographical error which was not corrected at any stage. Unfortunately, when the court charge was framed, this error crept into the court charge as well. 19. Under Section 226 of the Code, while opening the case for the prosecution, the Prosecutor has to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution on that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing, as enjoined by Section 227. If, on the other hand, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the court, he shall frame in writing a charge against the accused, as provided under Section 228 of the Code. 20. It needs no reiteration that the framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but the framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but the framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. This is because the object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. The statute requires that every charge framed under the said Code should state the offence with which the accused is charged and if the law which creates the offence gives it any specific name, the offence should also be described in the charge by that name only. The statute further requires that the law and section of the law against which the offence is said to have been committed has to be mentioned in the charge. It is a fundamental principle of criminal law that the accused should be informed with certainty and accuracy of the exact nature of the charge brought against him. The object of the statement of particulars to be mentioned in the charge is to enable the accused person to know the substantive charge he will have to meet and to be ready for it before the evidence is given. The extent of the particulars necessary to be given in the charge depends upon the facts and the circumstances of each case. (See: Santosh Kumari v. State Of Jammu And Kashmir And Others, AIR 2011 SC 3402 ). 21. In Amit Kapoor v. Ramesh Chander and Another, (2012) 9 SCC 460 , framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. 22. In the case on hand, the charge was framed only on 03.05.2017 and such an error attributing an overt act could have been avoided if the learned Sessions Judge had carefully perused the records. 22. In the case on hand, the charge was framed only on 03.05.2017 and such an error attributing an overt act could have been avoided if the learned Sessions Judge had carefully perused the records. At the time of framing of the charge, the 9th accused was not even an accused as he had been granted pardon in the year 2012 itself. Attributing an overt act has created confusion since the learned counsel appearing for the appellants highlighted the specific allegation in the charge and argued that the approver had not made a full and true disclosure of the whole of the circumstances within his knowledge and therefore, his evidence ought to be rejected on that ground itself. However, a perusal of the records would reveal that the assertion in the police charge was merely an error which was unfortunately carried forward into the court charge. The accused were also aware of the fact that this was a mere error and no prejudice could be said to have been caused. Cause of Death- Whether a case of homicide: 23. As to the question, whether Jamsheer and Gopi died due to homicide on 06.06.2012 is not seriously disputed. PWs 1 to 4 stated before the Court that they had seen the dead body of Jamsheer and Gopi lying in the brickfield, late in the night on 06.06.2012. PWs 3 and 5 were witnesses to Ext.P5 inquest, in respect of the body of Jamsheer, and PWs 7 and 8 were the witnesses to Ext.P6 inquest prepared in respect of the body of Gopi. PW29, the Assistant Professor and Police Surgeon conducted the postmortem on the body of Gopi and Jamsheer and prepared Exts.P24 and P25 Postmortem certificates. The Doctor has noted that Gopi died due to the incised penetrative wounds involving the right lung, which were noted as wound Nos. 1, 4 and 5 in Ext.P24 certificate. Insofar as Jamsheer is concerned, PW29 had noted that he had died due to incised penetrative wounds, sustained to the chest involving the heart and left lung, which were noted as injury Nos. 9, 10, 13, and 17, in the Postmortem Certificate. In view of the above uncontroverted evidence, it can be held without any manner of doubt that both Gopi and Jamsheer died consequent to the fatal injuries inflicted on them, while they were in the brickfield, late in the night on 06.06.2012. 24. 9, 10, 13, and 17, in the Postmortem Certificate. In view of the above uncontroverted evidence, it can be held without any manner of doubt that both Gopi and Jamsheer died consequent to the fatal injuries inflicted on them, while they were in the brickfield, late in the night on 06.06.2012. 24. Now we shall deal with the evidence to ascertain whether the prosecution has successfully proved that the accused had entered into a conspiracy as alleged in the charge and formed themselves into an unlawful assembly, armed with deadly weapons and attacked the deceased with MOs 1 to 4 weapons and caused their death. Principles governing the evaluation of circumstantial evidence: 25. The finding of guilt of the appellants is grounded entirely in circumstantial evidence. Before proceeding to analyze and assess the circumstances that have influenced the decisions of the learned Sessions Judge, it would only be appropriate to refer to the precedents that may provide guidance on the handling and evaluation of cases based on circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , a Three-Judge Bench of the Apex Court has laid down five golden principles that constitute the “panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade (supra), it was opined that it is a primary principle that the accused “must be” and not merely “may be” guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Evidence of the approver: 26. The prime witness for the prosecution is Smithlal (PW1) and it is around him that the entire prosecution case revolves. Evidence of the approver: 26. The prime witness for the prosecution is Smithlal (PW1) and it is around him that the entire prosecution case revolves. After registering the crime on 07.06.2012, based on the information furnished by him, he was produced before the learned Magistrate, and his 164 statement was recorded on 15.06.2012. In his 164 statement, he added that while Gopi, Jamsheer, and himself were sitting in the brickfield adjacent to Sachin’s (A6) house, he took Gopi’s phone and called him. On the premise that PW1 was the person who had given information about their location to Sachin, a report was filed before the learned Magistrate on 16.06.2012 and the informant was roped in as the 9th accused. Thereafter, without wasting more time, an application was filed before the learned Chief Judicial Magistrate to grant pardon, which was allowed, by order dated 02.07.2012. However, a perusal of the evidence tendered by PW1, let in before the Sessions Judge would not reveal that it was PW1 who had discreetly given the information of the presence of the deceased to the accused. On the other hand, his assertion in his evidence was that it was as suggested by Gopi at about 9:30 p.m. that he had called Sachin. We have mentioned this aspect to highlight the fact that the materials collected by the prosecution do not make out that PW1 turned into a snitch and betrayed his own friends. On the other hand, a reading of the evidence would reveal that Sachin was a close friend of PW1, Gopi, and others. That can be the only reason as to why they chose the brickfield situated about 15 mts. away from the house of Sachin (A6), to be their hiding place. During cross-examination, numerous omissions, embellishments, and contradictions in the evidence of PW1, as regards the material aspects of the case, were brought out. It appears that the investigating agency instead of conducting a proper investigation to collect evidence to link the accused with the crime, attempted to prove its case by banking on the evidence of PW1, by initially portraying him as an accused and later turning him into an approver. 27. It appears that the investigating agency instead of conducting a proper investigation to collect evidence to link the accused with the crime, attempted to prove its case by banking on the evidence of PW1, by initially portraying him as an accused and later turning him into an approver. 27. A Division Bench of this Court in Anil Kumar @ Jacky (supra), after considering past precedents, has delineated the principles with regard to the object behind the grant of pardon and the principles that are to be borne in mind, while appreciating the evidence of an approver. It was observed in paragraphs Nos. 14 and 15 as follows: “14. It is trite that a pardon is granted under S.306 of the Cr.P.C. with a view to obtaining the evidence of any person concerned in or privy to the offence, on condition that he makes a full and true disclosure of what he knows relative to the offence, before the court at the time of trial. The object behind the grant of pardon to one of the accused is to obtain such evidence through him that would prevent the escape from punishment, of the other offenders in a grave offence, for lack of evidence. Accordingly, the evidence of an approver follows the tender of pardon to him on condition that he makes a full and true disclosure, and the pardon once granted would operate in respect of all offences pertaining to that transaction. Once the approver has accepted a tender of pardon, he stands on the same footing as any other witness, with the exception that he is liable to forfeit his pardon if he does not comply with the conditions on which the tender was made. 15. The law relating to the manner of appreciation of the evidence tendered by an approver is also well settled. It recognises that an approver is very often an accomplice ie. a person who participates in the commission of the actual crime charged against an accused. He is a participes criminis. When he agrees to be an approver, and to testify against an accused, he becomes a prosecution witness. It recognises that an approver is very often an accomplice ie. a person who participates in the commission of the actual crime charged against an accused. He is a participes criminis. When he agrees to be an approver, and to testify against an accused, he becomes a prosecution witness. The evidence of an accomplice therefore requires to be accepted with a great deal of caution and scrutiny because (i) he has a motive to shift guilt from himself (ii) he is an immoral person likely to commit perjury on occasion; and (iii) he hopes for pardon or has secured it, and so favours the prosecution (Lal Chand v. State of Haryana - ( 1984 (1) SCC 686 )). xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxx 17. Thus, an approver's evidence has to satisfy the double test ie. (i) his evidence must be reliable and (ii) his evidence should be sufficiently corroborated. If the first test of reliability is not satisfied, there is no necessity to look for a satisfaction of the second test. As observed by the Court in Rampal Pithwa Rahidas & Ors v. State of Maharashtra - (1994 Supp (2) SCC 73), it is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to the rule that his testimony requires corroboration in material particulars, connecting or tending to connect each of the accused to the crime charged. This, however, is as a matter of prudence. (Sarwan Singh v. State of Punjab - ( AIR 1957 SC 637 ); Jnanendra Nath Ghose v. State of West Bengal - ( AIR 1959 SC 1199 )).” 28. With the above principles in mind, we shall carefully evaluate the various statements of PW1 before us and the manner in which he has improved his version while tendering evidence in Court. It was based on the information furnished by him that Ext.P1 FI Statement was initially registered at 3:30 a.m., on 07.06.2012. A reading of the FI Statement would reveal that his specific case is that he is a close friend and associate of Jamsheer and Gopi. He mentioned about the incident involving the gangs of Jamsheer on one side and Indrankutty and others on the other side. He mentioned that, on receiving information that the police were searching for them, they all concealed themselves in the brickfield near a Brick kiln. He mentioned about the incident involving the gangs of Jamsheer on one side and Indrankutty and others on the other side. He mentioned that, on receiving information that the police were searching for them, they all concealed themselves in the brickfield near a Brick kiln. When Gopi and Jamsheer said that they had decided to spend the night there, PW1 decided to go back home. While he was returning, he saw a few people coming from the opposite side and he hid behind a bush. The accused were carrying swords and they went directly to the brickfield. Later, he heard cries from the shed, and of people running. After some time, the accused left by exhorting loudly that they had set everything right. He stated in the earlier statement that he went back and found Jamsheer lying with the injuries, and he was able to see him with a light from his mobile phone. He called up Reesan (PW3), who came to the spot. It was then that they found Gopi lying about 20 meters away, with injuries. In his 164 statement, which was marked as Ext.P3, he developed his statement and went on to state that it was he who had called Sachin, using the mobile phone of Gopi. He also added that the accused had come running towards the brickfield, armed with weapons. After the accused had left, he went back and found Jamsheer lying with injuries, called Reesan (PW3), using his mobile phone. However, when he tendered evidence before the Court, he stated that it was as suggested by Gopi that he had called Sachin. He stated that his mother was not well and hence, he decided to leave their company. He stated that he had walked towards the east initially, and when he had reached about 30 mts., the accused came walking from the opposite side. Though in the FI statement, he mentioned that the accused were carrying swords, in the 164 Statement, he did not mention anything about the weapons carried by the accused. However, while tendering evidence, he developed his version and stated that the accused were carrying knives, iron pipes, and choppers. He also went on to state the specific weapons carried by each and every accused, so as to tally with the recovered weapons and the sequence of events mentioned in the police charge. However, while tendering evidence, he developed his version and stated that the accused were carrying knives, iron pipes, and choppers. He also went on to state the specific weapons carried by each and every accused, so as to tally with the recovered weapons and the sequence of events mentioned in the police charge. He was confronted with this portion and the contradiction was marked as Ext.D6. While tendering evidence, PW1 mentioned that when he had returned back after the accused had left, he found the parents of Sachin probing the area with torches. PW1 also stated that a person sitting in Sachin’s home can easily see the shed. However, the parents of Sachin have not been cited as witnesses. As they are persons residing immediately on the northern side of the brickfield, they would have been the best persons to speak about what had transpired. Admittedly, the incident took a few minutes and the assailants as well as the injured had run helter-skelter. Evidence tendered by PWs 2 and 4: 29. PW2, Pratheesh stated that Jamsheer was his friend, and the accused are residents of the same locality. He stated that he had called Jamsheer at 8:00 p.m. on 06.06.2012 and Jamsheer told him the hiding place. When he went there, PW1 was with the deceased. He spoke about the call received by Jamsheer that Arun was picked up by the police. He purchased food and alcohol for Jamsheer and Gopi, and at about 10:00 p.m., he left the place. He stated that PW4, Abobacker called him and asked about the whereabouts of Jamsheer. Then they decided to go and meet Jamsheer. When they reached near to “Chitra Company”, they are alleged to have seen A2’s autorickshaw, in which they found all the accused in an elated and jubilant mood. According to him, using the light emanating from “Chitra Company", he was able to identify all the accused inside the autorickshaw. He stated that he and PW4, instead of going directly and meeting Jamsheer, followed the autorickshaw for about 2 kms. Thereafter, they returned to the brickfield, where they found Smithlal, Reesan, and the Police men. They also found the bodies of Jamsheer and Gopi, lying in the shed. In cross-examination, it was brought out that he had seen the autorickshaw, just on the northern side of the brickfield, where Jamsheer and others had concealed themselves. Thereafter, they returned to the brickfield, where they found Smithlal, Reesan, and the Police men. They also found the bodies of Jamsheer and Gopi, lying in the shed. In cross-examination, it was brought out that he had seen the autorickshaw, just on the northern side of the brickfield, where Jamsheer and others had concealed themselves. The trend of cross-examination was to bring out the fact that it was next to impossible to identify the persons traveling in an autorickshaw in the dead of night and that he was made to speak, so as to link the accused with the crime. The striking aspect that the said witness had mentioned that the accused had left the area in an autorickshaw goes against the version of PW1. 30. PW4 is the uncle of Jamsheer. He stated that he asked Pratheesh about the whereabouts of Jamsheer, and Pratheesh agreed to take him to the brickfield. He stated that he had traveled as a pillion rider. When the bike was about to turn to the brickfield, which was slightly at a lower elevation from the road, he saw an autorickshaw driven by Indrakutty coming up from the brickfield, the accused who were inside were all in a jubilant mood. He was able to identify each one of them. They decided to follow the autorickshaw. After some time, they returned back to the brickfield. In cross-examination, it was brought out that it was about 10:45 p.m., that both he and Pratheesh had decided to go and meet Jamsheer. Pratheesh’s house was just 1.5 km away from the brickfield. He stated that they stopped the bike to enable the autorickshaw to climb up. According to him, the bike and the autorickshaw were traveling in the opposite direction, whereas, according to PW2, they were moving in the same direction. 31. As pointed out by the learned counsel appearing for the accused, Pratheesh knew that Jamsheer, Gopi, and Simithlal were in the shed as he was also contacted using a mobile phone by Jamsheer. If PW4 wanted to talk to him, all that he had to do was call Jamsheer on his mobile phone. PW4 also was aware that Jamsheer was concealing himself to evade the police. If that be the case, it does not stand to reason that PW4 persuaded PW2 to return back to the brickfield to meet Jamsheer. If PW4 wanted to talk to him, all that he had to do was call Jamsheer on his mobile phone. PW4 also was aware that Jamsheer was concealing himself to evade the police. If that be the case, it does not stand to reason that PW4 persuaded PW2 to return back to the brickfield to meet Jamsheer. The contention of the learned counsel that PW2 and PW4 are planted witnesses and it was to set up an encounter with the accused, that they were planted, cannot be ignored. When Jamsheer had a phone in his possession, PW4 could have easily talked to him over phone and ascertained his well-being instead of travelling to the hiding place in the dead of night. Furthermore, there is a serious contradiction in what is stated by PW2 and PW4. According to PW2, the autorickshaw and the bike were travelling in the same direction and it was while they were following the autorickshaw for about 2 km that he had occasion to see the accused inside the autorickshaw. On the other hand, according to PW4, they saw the autorickshaw right outside the brickfield and it was coming in the opposite direction. The bike was stopped about 3mts. away to enable the auto rickshaw to come up through the narrow road. The above evidence is irreconcilable with each other. There is yet another matter. PW2 (Pratheesh) was aware of the rivalry between the two gangs and he was also aware that the accused were hiding in the brickfield. If that be the case, if he was actually taking PW4 to the brickfield and when he saw the accused returning back in the autorickshaw in a jubilant mood, they would certainly have gone directly to the field to ascertain whether Jamsheer and his friends were safe and well in the place that they were hiding. Instead, both witnesses stated that on seeing the accused in a jubilant mood, they decided to follow the accused for about 2 km before turning around and coming to the brickfield to find that both Jamsheer and Gopi were dead. From the evidence of PW2, it is evident that he had consumed alcohol on multiple occasions. If that be the case, it is doubtful whether PW4 would have risked his life and ventured to travel on a bike ridden by PW2 instead of taking the easy way out of calling his nephew. From the evidence of PW2, it is evident that he had consumed alcohol on multiple occasions. If that be the case, it is doubtful whether PW4 would have risked his life and ventured to travel on a bike ridden by PW2 instead of taking the easy way out of calling his nephew. 32. The evidence tendered by PW1 is also irreconcilable with PWs 2 and 4, as according to him, the accused had come walking through the road brandishing the weapons, and after committing the murder they had gone back on foot along the same path. He has no case that the accused had come in an autorickshaw. On the other hand, in his earlier statement, he had stated that he had seen the accused in the section of the road between Chitra Company and the brickfield where the deceased were hiding. He was confronted with this portion and the confronted portion was marked as Ext.D2. PW1 also had no consistent case as to whether the accused had come walking or running. Ext. D4 contradiction was marked and it was brought out that he had seen the accused walking towards the brickfield armed with weapons. In order to base the conviction on the evidence of PW1, it has to satisfy the double test i.e., (i) his evidence must be reliable and (ii) his evidence should be sufficiently corroborated. If the first test of reliability is not satisfied, there is no necessity to look for the satisfaction of the second test. It is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to the rule that his testimony requires corroboration in material particulars, connecting or tending to connect each of the accused to the crime charged. In the case on hand, we find that there are serious infirmities in the evidence of the approver. He has developed his version in stages. The evidence of PWs 2 and 4 contradicts the evidence of PW1 rather than corroborating it. As held in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 , while considering the evidence of the approver on the aspect of corroboration, firstly, the court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime. For this, the court must consider the question as to how the approver came to be arrested, how he became a participant in the crime, the role played by him in the crime, and the circumstances in which he decided to become an approver. Secondly, the court has to seek corroboration of the approver's evidence with respect to the part of other accused persons in the crime, and this evidence has to be of such a nature as to connect the other accused with the crime. The corroboration should be sufficient to afford some sort of independent evidence to show that the approver is speaking the truth with regard to the accused person whom he seeks to implicate. We do not think that the twin test is satisfied in the instant case. There are serious infirmities in the evidence of the approver rendering the evidence tendered by him to be suspect. Recovery of weapons: 33. The next incriminating circumstance is the recovery of MO1 knife, MO2 Iron Pipe, MO3 Chopper and MO4 Knife based on the confession statement of A1 as per Ext.P14 seizure mahazar. Ext.P14 Mahazar reveals that on 11.06.2012 at about 3.30 a.m., while being questioned after his arrest, the 1st accused confessed to PW27 that he shall show the place where the weapons were thrown away and as led by A1, PW47 proceeded to Thumboor Village, and from the southern side of the way, the 1st accused is alleged to have taken MOs 1 to 4 from the bushes and handed over the same to PW47. A2 to A6 also were present at that time. Serious challenge has been made by the learned counsel appearing for the appellants on the admissibility of the recovery so effected. It is also pointed out that in the relevant portion of the confession statement, there is no authorship of concealment. Though PWs 22 and 23 were examined by the prosecution to prove the recovery, they did not support the prosecution. Having evaluated the circumstances, we are of the view that the contemporaneous documents prepared by the Investigating Officer and the manner in which the recovery has been effected go against the principles of law and the guidelines on the subject laid down by the Apex Court. 34. Having evaluated the circumstances, we are of the view that the contemporaneous documents prepared by the Investigating Officer and the manner in which the recovery has been effected go against the principles of law and the guidelines on the subject laid down by the Apex Court. 34. It would be profitable to bear in mind the observations of the Apex Court in Subramanya (supra), wherein the Apex Court has delineated the principles that are to be borne in mind by the Court while confronted with the question of admissibility of recovery effected at the instance of the accused. It was observed as follows in paragraph Nos. 77 and 78 of the judgment: “77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act. 78. If, it is say of the investigating officer that the appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” (emphasis supplied ) A reading of Ext.P14 Seizure Mahazar reveals that the 1st accused made the disclosure immediately after his arrest at 3:30 a.m. on 11.06.2012, with the recovery being effected at 1:30 p.m. on the same day. The Apex Court has held that when an investigating officer intends to proceed with the recovery of material objects based on a confession made by an accused in police custody, the presence of two independent witnesses must be ensured from the very beginning, as soon as the accused starts making the disclosure. 35. In Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh, 2022 SCC OnLine SC 1396, the principles were clarified further and it was observed as under: “56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. 35. In Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh, 2022 SCC OnLine SC 1396, the principles were clarified further and it was observed as under: “56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW7,­ Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place. (emphasis supplied) xxxxxx xxxxx xxxx xxxxx 71. (emphasis supplied) xxxxxx xxxxx xxxx xxxxx 71. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon 72. If it is the case of the prosecution that the PW2,­ Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW2,­ Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW6­ and PW7­ respectively.” 36. In the case on hand, when the Investigating Officer was examined, he merely stated that the accused while in custody furnished a statement and nothing more. No witnesses were available at the time when the alleged disclosure was made by the 1st accused. The Investigating Officer has also not mentioned that he had procured the presence of independent witnesses of the locality to witness the search. As held by the Apex Court, in order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose, the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a mahazar was drawn up as the accused was willing to point out the place where the jewellery was sold. Thus, in the absence of exact words, attributed to the appellant, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama, by examining independent witnesses no reliance could be placed on the circumstance of discovery of MOs 1 to 4 weapons. Seizure of Election ID card of Lalu ( A5): 37. Seizure of Election ID card of Lalu ( A5): 37. The next circumstance is the seizure of Ext.P2 Election Identity Card of Lalu (A5) in the case from the scene of occurrence. PW47 stated that Ext.P2 was found at the scene and the same was seized at the time of preparation of Ext.P11 Scene Mahazar prepared on 7.6.2012. We have perused the original records and find that the accused were arrested on 11.6.2012. Ext.P11 Scene Mahazar and Ext.P2 Election ID card of the 5th accused reached the court only after the arrest of the accused. If that be the case, the contention of the learned counsel appearing for the 5th accused is that the Election ID card was incorporated in the scene mahazar after the arrest of the accused cannot be ignored. PW26 is the attestor to the scene mahazar and though he stated that an ID card was seized, he is unsure as to whom it belongs to. PW20 is another attestor but he did not support the prosecution case. In that view of the matter, there is no credible evidence to conclude that Ext.P2 was recovered from the scene on 07.06.2012. Injury sustained by Sibi (A2): 38. The next circumstance is the injury alleged to have been sustained by Siby (A2) as part of the transaction. In the police charge, it is stated that a cut injury inflicted by the 3rd accused accidentally hit on the hands of Siby resulting in an injury. The prosecution further alleges that Siby claiming himself to be one Ramesh went to Lal Memorial Hospital, Mapranam, Irinjalakuda on the same day and secured treatment. PW39, the RMO of Lal Memorial Hospital stated that on 07.06.2012 at 12.45 a.m., he had examined Ramesh, S/o Sahadevan. He had noted an incised wound 4 x 1 x ½ cm right forearm lower third. Further, he deposed that two persons accompanied the patient and the name of the bystander was Lalu. After securing treatment, without paying the bill amount, they absconded. PW39 identified Siby (A2) as the patient examined by him. He further deposed that injuries noted by him could be caused by the chopper that was seized. In this context, it would be pertinent to note that the witness was examined in Court on 30.10.2017. The Doctor had seen the patient on 07.06.2012, over 5 years preceding the date on which he had tendered evidence. He further deposed that injuries noted by him could be caused by the chopper that was seized. In this context, it would be pertinent to note that the witness was examined in Court on 30.10.2017. The Doctor had seen the patient on 07.06.2012, over 5 years preceding the date on which he had tendered evidence. He stated that he had no previous acquaintance with the injured or the bystander. In this context, it would be apposite to mention that PW18, the Nursing Assistant, and PW19, the General Supervisor of Lal Memorial Hospital were examined as witnesses. P34 is the Accident Register cum Wound Certificate, wherein the name of the injured is shown as Ramesh. PW18 and PW19 were not able to identify the 2nd accused as the person who secured treatment from the hospital. PW39, on the other hand, without any prior acquaintance, was able to remember A2. However, there is no report indicating that the accused was shown to the Doctor immediately after his arrest for identification, and the same was carried out in accordance with law. Such an identification would have been proven invaluable and there is no reason why such measures were not taken. In that view of the matter, we are not in a position to give credence to the prosecution version that the 2nd accused had sustained an injury in the course of the same incident and that it was he who had received treatment at Lal Memorial Hospital. Motive: 39. Much reliance was placed by the learned Sessions Judge on the evidence of PWs 9 to 11, the father, mother, and sister of deceased Jamsheer, to conclude that there were issues at the Mayfair Bar and that the deceased had received threats. PW11 also stated that the police had come to their house along with Arun in search of Jamsheer. The evidence of the above witnesses will only show that there was bad blood between the two gangs. Criminal conspiracy: 40. Though the prosecution had attempted to prove that the accused had hatched a criminal conspiracy and had examined PW17 to establish the said fact, the learned Sessions Judge, after evaluating the entire evidence, came to the conclusion that the prosecution had failed to adduce any sort of convincing evidence to prove the prior meeting of minds of the accused to annihilate Jamsheer and Gopi. Conclusion: 41. Conclusion: 41. As stated earlier, it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See State Of U.P v. Satish (2005) 3 SCC 114 , JT (2005) 2 SC 153, Padala Veera Reddy v. State of A.P 1989 Supp (2) SCC 706, Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 , Gambhir v. State Of Maharashtra . (1982) 2 SCC 351 and Hanumant Govind Nargundkar v. State Of M.P. AIR 1952 SC 343 ) 42. After evaluating the entire evidence, we are not in a position to conclude that the circumstances from which an inference of guilt is sought to be drawn have been cogently and firmly established in the instant case. The circumstances made out cannot be said to be consistent with the guilt of the accused and inconsistent with their innocence. In that view of the matter, we are inclined to allow this appeal. In the result, these appeals will stand allowed. The conviction and sentence of the appellants, who are accused Nos. 1, 2, 4, 5, and 6 in S.C.No. 507 of 2013 on the file of the IV Additional Sessions Judge, Thrissur, is set aside. We acquit the appellants and direct that they be set at liberty forthwith if their continued incarceration is not required in any other case.