JUDGMENT : Accused Nos.3 and 4 in S.C.No.389 of 2001 on the files of the Sessions Court, Thalassery are the appellants. They were convicted and sentenced for the offences punishable under Sections 143, 147, 148, 452, 324 and 307 r/w Section 149 of the Indian Penal Code, 1860 (IPC). They challenge legality and correctness of the said judgment in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). 2. There were five accused. Accused Nos.1 and 5 expired. Accused Nos.2 was absconding. Appellants/accused Nos.3 and 4 alone stood trial in the aforementioned case. 3. At the trial PWs.1 to 17 were examined and Exts.P1 to P15 were marked. MOs.1 to 7 were identified. After closing the prosecution evidence the appellants were questioned under Section 313(1)(b) of the Code. They maintained that they were innocent. No defence evidence was adduced. The trial court, after appreciating the evidence, found that all the five accused together trespassed into the house of PW1 by breaking open its door and inflicted serious injuries to PW1 using MOs.1 and 2 choppers. Holding that the common object of the five assailants was to cause death of PW1, the appellants were convicted and sentenced. The findings of the trial court are assailed on the grounds of reliability of evidence, impropriety in the investigation and false implication. 4. Heard the learned counsel for the appellants and the learned Public Prosecutor. 5. The case of the prosecution unfolded from the materials on record is as follows: PW1 Bhaskaran was residing along with his sister, niece, her husband and their children. He was sleeping in the southern room of the house. Others were in different rooms. At about 11 O'clock on 29.06.1999 somebody called his name and asked to open the door. PW2 is his niece. All woke up and switched on the electric lights in the house. PW2 and her mother told that PW1 was not in the house. They said so fearing something untoward in the wake of prevailing political clashes in the locality. But, the assailants rammed inside by breaking open the front door. They then demolished the door of the southern bedroom and attacked PW1 using choppers and axe. PW2 pleaded with the assailants not to assault. They did not yield. The 1st accused, uttering that PW1 would be killed, chopped him using MO2 chopper inflicting him injuries. But, the assailants rammed inside by breaking open the front door. They then demolished the door of the southern bedroom and attacked PW1 using choppers and axe. PW2 pleaded with the assailants not to assault. They did not yield. The 1st accused, uttering that PW1 would be killed, chopped him using MO2 chopper inflicting him injuries. The 3rd accused chopped him at his left waist, the 2nd accused assaulted him using an axe. The 1st accused again tried to cut him at his neck using a chopper. That resulted a minor injury. PW1 could ward off further attack using the demolished door and rolling under the cot in that room. Hearing the hue and cry, the people from the neighbourhood started coming, and thereupon the assailants escaped. 6. Apart from PWs.1 and 2, PWs.3 and 4 were examined to state about the occurrence. But they did not support the case of the prosecution. PW3, a neighbour, stated that on hearing the cry from the house of PW1, he reached there and at that time PW1 was sitting on the verandah with injuries. He did not see the assailants. Similar is the version of PW4 also. PW3 accompanied PW1 to the hospital. The evidence of PWs.3 and 4 is not available to prove the identity of the assailants. PWs.1 and 2, however, in detail deposed regarding the incident and the complicity of each of the accused. 7. The trial court after detailed consideration found that evidence of PWs.1 and 2 is reliable and their evidence together with the medical evidence, recovery evidence and other circumstances proved the guilt of the accused beyond reasonable doubt. 8. The learned counsel for the appellants would, at the outset, find fault with the conviction alleging that the crime being a gruesome one, the court below entered the conviction on a moral satisfaction and not based on any legal evidence. In that regard, the learned counsel for the appellants placed reliance on Rahul v. State of Delhi, Ministry of Home Affairs [ (2023) 1 SCC 83 ]. The Apex Court observed as follows:- “33. In that regard, the learned counsel for the appellants placed reliance on Rahul v. State of Delhi, Ministry of Home Affairs [ (2023) 1 SCC 83 ]. The Apex Court observed as follows:- “33. xx xx It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise.” Unless there is evidence to prove the guilt of the accused beyond reasonable doubt, there can be no conviction no matter how cruel and gruesome the crime is. Bearing that in mind sufficiency or not of evidence to justify the conviction of the appellants shall be considered. 9. PW1 narrated in detail the incident occurred. While he was sleeping in his room, he woke up hearing somebody calling his name. Immediately PW2 also woke up and switched on the lights and told them that PW1 was not in the house. The assailants did not retreat; they smashed open the front door and also the door where PW1 was. They did so ignoring the fervent appeal of PW2 and others in the house not to assault. It was at his room PW1 was attacked by the assailants by using choppers and axe. The overt acts of each accused were stated by PW1 as well as PW2. 10. The learned counsel for the appellants submitted that when there is no independent evidence, what PW1 the injured and PW2, his niece spoke about the incident in court is insufficient to prove the charge. The learned Public Prosecutor by placing reliance on M.Nageswara Reddy v. State of Andhra Pradesh [ (2022) 5 SCC 791 ], submitted that merely because the witness is a relative that by itself is not a reason to discard his evidence. It was held therein that merely because the witnesses were the relatives of the deceased, their evidence cannot be discarded solely on that ground. It was held therein that merely because the witnesses were the relatives of the deceased, their evidence cannot be discarded solely on that ground. The facts and circumstances of the case are to be considered and in the light of such matters, the court has to decide the reliability of the witnesses. 11. PWs.3 and 4 reached the house of PW1 soon after the incident. They could not take PW1 to the hospital immediately. As informed, PW10, the Sub Inspector of Police, who was on patrol duty, reached the house of PW1 and took him along with PW3 and others to the hospital. While he was undergoing treatment at the Government Hospital, Thalassery, PW11, a Head Constable, recorded his statement, which is Ext.P1, based on which, the crime was registered. The learned counsel for the appellants submitted that the failure of PW10 to record the statement of PW1 and register a crime immediately is a serious lapse and strengthened the defense case that there is false implication. PW10 while on patrol duty knew the incident and reached the house. He took PW1 to the hospital at about 12.00 midnight. Since he was on patrol duty, he was not the officer-in-charge of the police station. Soon, at about 1.30 the same night, PW11 recorded Ext.P1 statement. The crime was registered immediately also. In those circumstances, it cannot be said that there was lapse in registering the crime. 12. PW1 admitted during cross-examination that he was not read over the F.I.statement after its recording. That is highlighted to contend that the genesis of the case itself is doubtful. In Ali @ Aali v. State of Kerala [2016 (1) KHC SN 27], a Division Bench of this Court held that when the informant denied the material portions of the F.I.statement and stated that he did not give such statement before the police that is a serious infirmity shaking the very foundation of the prosecution case. It was further held where such a doubt arose about the inception of the case, it became the absolute obligation of the prosecution to convince the court regarding the correctness of the incident. 13. Unlike in the above case, here, PW1 admitted giving F.I. statement and signing of it. He did not deny any portion of Ext.P1. Of course, he stated that the statement was not read over to him. 13. Unlike in the above case, here, PW1 admitted giving F.I. statement and signing of it. He did not deny any portion of Ext.P1. Of course, he stated that the statement was not read over to him. But when he deposed in court the same facts that are averred in Ext.P1, it cannot be said that there arises any doubt about the inception of the case on account of the failure to read over Ext.P1. 14. In Ext.P1, names of all the assailants were not stated. Name of Prasanthan (1st accused) alone was stated. The version therein is that Sri. Prasanthan along with 3-4 other persons came trespassing into the house and assaulted PW1. It was in Ext.P12 report, names of other assailants were disclosed for the first time. It is contended on behalf of the appellants that the investigation was faulty and the evidence regarding involvement of any person other than Prasanthan cannot be believed. In this regard, the learned counsel for the appellants placed reliance on Sivan @ Siva v. State of Kerala [2012 (2) KLD 371]. It was held that the investigation or trial devoid of its true spirit and merit will undermine the confidence of the society in the criminal system of administration of justice as well as in the sublime values enshrined in our Constitution. A fair investigation of the case is not a mere exercise of formulating a particular theory as the prosecution case with such evidence so as to secure a conviction of the accused based on that theory. The prosecution case must be one placing the true facts including those facts which are beneficial to the accused to the notice of the court. A conviction secured without adhering to the fair principles of criminal justice would be anathema. It was pointed out that although PW10 the Sub Inspector accompanied PW1 to the hospital, he did not record the statements of PW1 and registered the crime, instead, PW11 a Head Constable from the police station later came and recorded the statement. It is the submission that in order to implicate innocent persons such a process was resorted to. PW4 stated that when PW1 was brought to the hospital around 10-15 workers of PW1’s political party were there. In the view of the learned counsel for the appellants that fortifies the allegation of false implication. 15. It is the submission that in order to implicate innocent persons such a process was resorted to. PW4 stated that when PW1 was brought to the hospital around 10-15 workers of PW1’s political party were there. In the view of the learned counsel for the appellants that fortifies the allegation of false implication. 15. Both PWs.1 and 2 identified the appellants before the court during trial. The appellants were persons known to PWs.1 and 2. Therefore, their identification of the appellants before the court as members of the assailants’ group cannot be brushed aside solely because their names were not stated in Ext.P1. However, when there is such a lapse, it is required to look for independent corroboration before concluding that the appellants were the members of the assailants’ group. 16. The prosecution relies on the evidence regarding recovery of MOs.1 and 2 to prove complicity of the accused, including the appellants. MO1 chopper was identified to be the weapon used by the 1st accused-Prasanthan. It was recovered as per Ext.P7 by PW13, Circle Inspector of Police. It was on 26.07.1999 following his arrest. On the basis of the statement regarding concealment of the weapon, which is Ext.P7(a), PW13 had effected recovery of MO1 as shown by the 1st accused. 17. Similarly, MO2 was identified to be the weapon used by the 3rd accused/1st appellant. PW13 stated that he arrested the 1st appellant on 30.07.1999 and based on his statement, MO2 was recovered. Ext.P4 is the mahazar. PWs.6 and 8 are witnesses to Ext.P4. While PW6 failed to support, PW8 testified supporting the case of the prosecution. He stated that he was the 1st appellant pointing out MO2 chopper to the police officer from the foundation of the house of one Janu, which was covered by wild growth. Signatures in Ext.P4 mahazar under which MO2 was recovered are admitted by PW8. The credibility of PW8 was tried to be shaken by pointing out that he had been involved in criminal cases. He admitted that fact, but explained that two cases arose after this incident. At any rate, that is not a reason to disbelieve him, especially when the evidence of PW13 in regard to the recovery is cogent and intact. Ext.P4 the contemporaneous document also corroborates his version. 18. He admitted that fact, but explained that two cases arose after this incident. At any rate, that is not a reason to disbelieve him, especially when the evidence of PW13 in regard to the recovery is cogent and intact. Ext.P4 the contemporaneous document also corroborates his version. 18. The learned counsel for the appellants raised yet another contention that the contents of Exts.P4 and P7 mahazars were not duly proved. In that regard, the learned counsel invited my attention to Mohanan v. State of Kerala [ 2011 (3) KHC 680 ], Krishnankutty v. State of Kerala [ 2015 (2) KHC 322 ] and Ramanand @ Nandlal Bharti v. State of Uttar Pradesh [ AIR 2022 SC 5273 ]. In Mohanan and Krishnankutty (supra), this Court took a similar view that the observations of the investigating officer in the mahazar regarding what he saw at the scene can be proved only if he deposes of such facts before the court. Mere production and marking of the mahazar without the investigating officer narrating what he saw at the scene would not prove contents of the mahazar. 19. The Apex Court in Ramanand (supra) held that before accepting the evidence of recovery under Section 27 of the Evidence Act, 1872 three aspects are to be ensured, which are,-(i) the investigating officer shall depose in court the exact words uttered by the accused while in custody which led to the recovery; (ii) the investigating officer shall prove the contents of the recovery mahazar; and (iii) the authorship of concealment. In a case where the investigating officer failed to prove the mahazar by testifying before the court regarding the statement of the accused and the recovery of the object, and there occurred failure to record the exact words of the accused leading to the recovery, it is difficult to act upon the recovery evidence. 20. In this case, PW13 categorically deposed in court the disclosure statement as given by the accused and also the recovery he has effected based on that statement. The evidence of PW8 fully supported the version of PW13 concerning recovery. Therefore, the evidence came on record satisfies the legal requirements of proving recovery evidence as laid down in the aforesaid decisions. 21. MO2 chopper could be recovered only on account of the statement of the 3rd accused. The evidence of PW8 fully supported the version of PW13 concerning recovery. Therefore, the evidence came on record satisfies the legal requirements of proving recovery evidence as laid down in the aforesaid decisions. 21. MO2 chopper could be recovered only on account of the statement of the 3rd accused. When it is identified by PWs.1 and 2 before the court as the weapon of offence, that confirms his complicity to the crime. When such a definite confirmation to the oral testimony of PWs.1 and 2 is available, that proves that the 3rd accused was a member of the group that trespassed into the house of PW1 and he using MO2 chopped him resulting in injury. 22. Insofar as 4th accused is concerned, no evidence to render support to the version of PWs.1 and 2 is available. Therefore, the lacuna that his name was not mentioned in Ext.P1 F.I. statement, despite being a person known to PW1 even before the incident and the delay in revealing his identity till 04.07.1999 create a reasonable doubt about his complicity. 23. As rightly pointed out by the learned Public Prosecutor, it is not essential that a member of the unlawful assembly should have inflicted injury to the victim for being convicted. His membership in the assembly, member/s of which had committed the offending act, is enough to hold him responsible by virtue of provisions of Section 149 of the IPC. But when evidence as to the membership of the 4th accused in the assailants’ group is doubtful, he cannot be convicted, resorting to Section 149 of the IPC. Therefore, the 4th accused/ 2nd appellant is entitled to get the benefit of doubt. 24. In view of what are stated above, the conviction of the 1st appellant is liable to be confirmed and that of the 2nd appellant is liable to be set aside. Although the identity of the 2nd appellant is not proved, involvement of five persons in committing the offence is established. Therefore, the conviction of the 1st appellant for the offences punishable under Sections 143, 147, 148, 452, 324 and 307 read with Section 149 of the IPC is confirmed. Having considered the nature of the offence and the injuries inflicted to PW1, the sentence imposed by the trial court is commensurate. Therefore, the sentence awarded to the 1st appellant by the trial court is confirmed. 25. Having considered the nature of the offence and the injuries inflicted to PW1, the sentence imposed by the trial court is commensurate. Therefore, the sentence awarded to the 1st appellant by the trial court is confirmed. 25. The appeal concerning the 2nd appellant is accordingly allowed. He is acquitted and set at liberty. The appeal concerning the 1st appellant is dismissed. The 3rd accused/1st appellant shall surrender before the trial court within one month from today to undergo sentence.