These appeals have matrix from the judgment in S.C.No.216/1999 of the Court of the Additional Sessions Judge Fast Track Court-II, (Adhoc Court), Thrissur. The appellants in the former appeal were accused numbers 1 and 4 and appellants in the latter appeal were accused numbers 2,3,6 and 7 therein. With the aid of section 149 of the Indian Penal Code (for short 'the IPC') the appellants were convicted under section 307, IPC for 10 years each, under section 332, IPC for 5 years each, under section 324, IPC for 2 years each, under section 148, IPC for 2 years each, under section 143, IPC for 3 months each, under section 426, IPC for 2 months each and under section 3 of the Explosive Substances Act for 5 years each. The substantive sentences were ordered to be run concurrently. These appeals are directed against the said judgment of conviction.
2. The prosecution case is as follows:-
A political meeting of the Communist Party of India (Marxist) was held on 7.6.1995 in their office at Puthur, a Village in Thrissur District and after its culmination by 8 p.m about 20 persons came to Puthur centre to catch bus to go home. They got into the bus `St.George' for which PWs 8 and 9 respectively were the then driver and conductor and when it moved hardly 150 metres it was intercepted by the accused, who suddenly appeared from a school compound. The accused persons who were armed with swords, dagger, knife, iron pipes, country bombs etc., smashed its glasses and threw bomb on the road. On its explosion the affrayed passengers other than those CPI(M) workers, alighted from the bus and fled from there. Thereupon, accused Nos.4 and 7 got into the bus and Vigilan had beaten Titus (PW12) on his chest with an iron stick and Ronie, the 4th accused gave a stoccata to Gopalan (PW3) with MO1 sword. Meanwhile, PW4 get down from the bus through the driver's door seeking safety. When he reached near the cassette shop on the road side the first accused Abhi, threw a bomb at him and in its explosion PW4 sustained injuries on his left leg muscles and skin and flesh of the left leg were lost and the bone was exposed. Ramakrishnan (CW5) who alighted from the bus was beaten by the 10th accused on his left leg with an iron stick. On hearing the explosion of the country bombs PWs. 5 to 7, the policemen who were on duty in the police beat rushed to the place of occurrence blowing whistle and then, the 2nd accused Jithraj threw a bomb at them and its explosion caused them injuries. Consequently, they had to ran away and thereby the accused have interfered with the discharge of their official duty. The injured persons, PW3, PW4 and PW5 and the aforesaid Ramakrishnan were admitted in Aswani Hospital Thrissur and PWs 5 to 7 and 11 to 13 were admitted in Medical College Hospital, Thrissur. PW22 went to the Medical College Hospital, Thrissur and recorded Ext.P15 statement from PW11, K.V.Babu. PW26, the then Circle Inspector of police, Ollur reached the place of occurrence and seized MO2, MO7 series and Ext.P12 Trip Sheet under Ext.P18 scene mahazar. Based on the information given by the first accused MO8 sword was recovered under Ext.P20 mahazar and based on the information given by the 6th accused MO1 was recovered. MO7 series and MO9 series were forwarded for forensic examination. After completing the investigation CW36 laid Ext.P24 Final Report. In fact, it was filed against 9 identifiable persons and 5 unidentifiable persons. The appellants were accused of commission of offences under sections 143, 148, 324, 307, 333, 332 & 426 read with section 149, IPC and section 3 of the Explosive Substances Act in the final report filed before the Judicial First Class Magistrate-III, Thrissur. It was then committed to the Court of Session, Thrissur and subsequently it was made over to the Court of the Additional Sessions Judge Fast Track Court-II, (Adhoc Court), Thrissur. On the appearance of the appellants/accused, after hearing both sides and following the procedures, charge was framed, read over and explained to them. The accused persons pleaded not guilty to the charges and claimed to be tried. To substantiate the charge against them the prosecution has examined PWs 1 to 26 and got marked Exts.P1 to P26 and identified MO1 to MO9 series. PWs 3 to 9, 11 to 16 and 25 are the occurrence witnesses and PWs 3 to 7, 11 to 13 and 25 are the injured. PW1 is the Doctor who examined PWs 3, 4 and the aforesaid Ramakrishnan and issued Exts.P1 to P3 wound certificates in respect of each of them. PW2 is the Doctor then attached to Medical College Hospital, Thrissur who examined PWs 5 to 7, 11 to 13 and 25 and issued Exts.P4 to P10 wound certificates. PW10 is the expert who issued chemical analysis report. After the closure of the prosecution evidence the accused were questioned under section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances put to them. The learned Sessions Judge after hearing both sides and after considering the oral and documentary evidence held them guilty and convicted and sentenced them as mentioned aforesaid.
3. I have heard the learned counsel for the appellants in both the appeals and the learned Public Prosecutor.
4. Evidently, the conclusions and findings of the learned Sessions Judge that the accused have committed the alleged offences based mainly on the evidence of PWs 3, 4 and 5, the injured witnesses and Exts.P1, P2 and P4 to P10 and also the evidence of PW10 along with Ext.P14 and that of PW12. The oral testimonies of PWs 3 to 5 and PW12 were taken into consideration for the purpose of finding that it was the second accused who threw bomb at PW4 and caused the explosion and consequential injuries on him as explained in Ext.P2. The evidence of PWs 1, 3 and 12 along with Ext.P1 were taken into account for the purpose of arriving at the conclusion that it was the 4th accused who inflicted the injury on PW3 with MO1 sword. The learned Sessions Judge found that the evidence of the occurrence witnesses namely PWs 3 to 9, 11 to 16 and 25 would reveal that the appellants herein came to the scene of occurrence suddenly from the nearby school compound and intercepted the bus namely, `St.George' when it hardly moved 150 metres from Puthur centre and that they were armed with deadly weapons viz., MOs 1, 6, and 8 swords, MO2 and 3 Iron sticks and MOs 4 and 5 iron pipes and attempted to commit murder of PW4 by throwing bomb at him. It was found that the 2nd accused had thrown the bomb towards PW4 and the others, armed with deadly weapons, attacked the witnesses namely, PWs 3 to 9, 11 to 16 and 25 and caused the injuries explained in Exts.P1, P2 and P4 to P10 on them. It was found that the evidence of PWs 5 to 7 would reveal that they were the policemen on duty in the police picket on 7.6.1995 and they reached the place of occurrence on hearing the explosion of the country bombs and they were prevented from discharging their duties by the 2nd accused by throwing bomb at them. In fact, the following points were formulated by the trial court for consideration:-
(1) Are the accused proved to have formed into an unlawful assembly and rioted armed with deadly weapons?
(2) Are they proved to have voluntarily caused hurt to CWs 2 to 4, 6 to 8, 10 and 11 and also voluntarily caused hurt to CW14 to CW16 police constables and prevented them from the lawful discharge of their duties?
(3) Are they proved to have attempted to murder CW3 Mr.Shaju?
(4) Are they proved to have committed an offence under the Explosive Substances Act?
Points 1 to 4 were considered jointly and it is the findings returned on those points that ultimately led to the conviction and the sentencing, as aforesaid.
5. There can be little doubt with respect to the position that in an appeal against conviction appellate interference is permissible and in fact, inevitable if the evidence on record was considered by the trial court in an utterly, perverse manner or if the conclusions are based on no evidence. In the case of an improper appreciation of the evidence certainly that by itself cannot be a ground for reversal of the findings, if a proper appreciation of the evidence would also sustain the finding of guilty. In this case, as noticed hereinbefore, the learned Sessions Judge found that oral testimonies of PWs 14 and 25 could not be given any weight at all. Therefore, in view of the contextual situation and the rival contentions raised, the question to be considered is whether the oral testimonies of the witnesses other than PWs 14 and 25 and the documentary evidence would conclusively prove the guilt of the accused as held by the learned Sessions Judge. It is to be noted, at the outset, that though the appellants were convicted under all the aforesaid offences with the aid of Section 149 IPC there was no discussion at all regarding the existence of common object to hold them constructively liable on the principle of joint liability. It is also to be noted that no definite finding has been arrived at by the courts below as to who has actually committed the aforesaid offences and why the others are made constructively liable. Even in the absence of such a consideration the appellants cannot claim for acquittal solely on that score as, in such circumstances, this Court has to consider whether the evidence on record would be sufficient to conclusively arrive at such a finding of guilty.
6. True that the evidence of PWs 1 and 2 would reveal that PWs 3 to 9, 11 to 16 and 25 sustained injuries in the alleged incident. The factum of sustainment of such injuries and the evidence of the policemen in the police picket at the relevant point of time would reveal that there was commission of acts of vandalism and damage to properties. It is the case of the prosecution that more than four persons participated in the aforesaid acts. In such circumstances and especially, in the absence of a pointed consideration of such aspects in the impugned judgment the first point to be considered is whether the evidence on record would establish an unlawful assembly. For a proper consideration of the said issue it is only appropriate to consider the ingredients to attract Section 149 IPC. A careful consideration of the provisions under Section 149 IPC would reveal that the following ingredients were to be satisfied to attract the same:-
“(1) There must be an unlawful assembly;
(2) The offence must have been committed by one or the other member of the assembly in prosecution of the common object of the unlawful assembly; and
(3) The offence must be such as the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object.”
Going by the evidence of PWs 3 to 7 and PWs 11 to 13 more than five persons, intercepted the bus and country bombs were thrown and the members of the assembly were armed with deadly weapons and they smashed the glasses of the bus. In such circumstances, with respect to the satisfaction of the number of persons to constitute an unlawful assembly there can be no dispute. A scrutiny of Section 149 IPC would reveal that a person who is a member of an unlawful assembly could be constructively made liable on the principle of joint liability for an offence which he has not actually committed. But, for recording a conviction thereunder the essential ingredients of Section 141, IPC must be satisfied. A close scrutiny of the said provisions would further reveal that it contemplates two situations to hold a person/persons constructively liable for offence on the principle of joint liability though he has/they have, actually not committed the said offence/offences. Under the first situation, if an offence is committed in prosecution of the common object, with a view to accomplish the common object, it would attract Section 149, IPC. To fall under the same, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Under the other situation, even if offence committed is not in direct prosecution of the common object of the assembly it may still attract Section 149, IPC provided, the offence committed was such that the members knew that it was likely to be committed in prosecution of the common object of the assembly. Another aspect also assumes relevance in the matter of such a consideration of complicity and constructive liability based on the principle of joint liability. There can be no doubt with respect to the position that even in a case where there was an unlawful assembly and consequential acts of vandalism to hold a particular person liable for the said acts which was not established to have committed by him but, proved to have been committed by a member of the said assembly, it must be established that the said particular person was a member of the said unlawful assembly. With respect to the common object normally, such object would be entertained in human mind as it being merely a mental attitude it would not be possible to prove the same with direct evidence. In such circumstances, like in the case of common intention attending circumstances must be one from where it could be gathered that there was a common object for the assembly. In the light of the aforementioned aspects I am of the considered view that before analysing the evidence to ascertain what were the offences committed by the unlawful assembly in the instant cases, the question primarily to be considered is whether the prosecution has succeeded in establishing that the appellants are members of the unlawful assembly indulged in the instant cases. In this context, it is also to be noted that if there is no evidence to come to the conclusion of the membership of each of the appellant in the unlawful assembly the question regarding what were the offences committed by the unlawful assembly in these cases would fall into insignificance as whatever be the acts of vandalism or offences committed by such assembly a person who was not proved to be a member of such unlawful assembly could not be convicted with the aid of Section 149, IPC. Bearing in mind the aforesaid positions of law and provisions of law I will proceed with the consideration. Going by the prosecution case, the 4th accused/the 2nd appellant viz., Rony in the former appeal inflicted an injury on PW3. At the same time, the oral testimony of PW3 would reveal that he had not properly identified the person who inflicted injury on him as also the weapon with which injury was inflicted on him. PW1 is the doctor who issued Ext.P1 wound certificate in respect of PW3. It would reveal that PW3 had sustained a lacerated wound of the size 2 cms. x 0.5 cms. on the inner side of the upper arm. During the chief examination PW3 deposed thus:-
“......... ട ണ"യ$ അനറ"$ )മ $"ര )ന). ഇട. ള 8 വര34 കഴ"ഞത"ന ല ഏയറക )റയ പറ$ ന പറ)ക$)ള).”
“......... 10-15 ടപര) വനവര ഏയറക )യറ ഇന N ] ള തയന$ ണ). എയന ക )ത ന)പട$ ഗ" വ ള കണ ലറ"$ 4 . ഇടത മടറടത ആണ).”
(emphasis added) It is pertinent to note that even after taking note of the manner in which PW3 deposed, the learned Sessions Judge arrived at the finding that MO1, the weapon used for causing injury on him was hesitatingly identified by PW3 and he also identified the 4th accused. Certain other aspects also assume relevance in this context. The case of the prosecution is that MO1 was discovered based on the information furnished by the 6th accused. In other words, it is the definite case of the prosecution that it is the alleged disclosure made by the 6th accused that led to the discovery of MO1 and that MO1 was recovered under Ext.P19 mahazar. PWs 18 and 19 are the independent witnesses allegedly associated with the police at the time of recovery of the incriminating materials. However, they had not supported the case of the prosecution. Though they had deposed to the effect that they had seen a police jeep parking at the place in question it is their evidence that they did not see anyone other than policemen in uniform. They had also deposed to the effect that they did not see the recovery of the alleged incriminating materials. The other witness to Ext.P19 Sri.Thomas who was a police constable then attached to Ollur Police Station, was not examined by the prosecution. The case of the prosecution is that it was PW24 who recovered MO1 based on the alleged disclosure made by the 6th accused. In Ext.P19 it is stated that MO1 was discovered based on the disclosure made by the 6th accused. However, he would depose that it was discovered based on the information given by the 4th accused. Thus the oral testimony of PW24 is against the statement in Ext.P19. Recovery at the instance of the accused under Section 27 of the Evidence Act has to be proved by reliable witness. If this is not proved satisfactorily, mere statement of accused is of no evidentiary value. It is relevant to refer to the decision of this Court in Kunnummal Mohammed and another v. State of Kerala (AIR 1963 Kerala 54). It was held therein that the discovery made on the information of one accused could not be used against another. In the decision in Nabi Mohomed Chand Hussein and others v. State of Maharashtra reported in 1980 Crl.L.J. 860 it was held by the Hon'ble Apex Court that the statement of an accused leading to the discovery could not be used as against the co-accused. In the circumstances, the recovery of MO1 as also the statement leading to its recovery assume no relevance and as such, is inconsequential. That apart, in Ext.P19 recovery mahazar the weapon has been described thus:-
“............... മ)കള"ല $" കന4 ക)റഞ ഭ ഗത) `റ' ടപ യല യവട)ളത)4 മ4ര $ " Lതത)4 പഴക4 യ5നത )4 അലക) ഒര ) ഭ ഗടതക) 5ര"ഞ"ര"ക)നത)മ $ വ ള)ടപ യല$)ള കത".”
PW1 is the doctor who examined PW3 and issued Ext.P1 wound certificate. The evidence of PW1 would reveal that the prosecution has not cared to brought out from him any evidence as to whether the injury noted in Ext.P1 could be caused by using MO1. As noticed hereinbefore, its recovery was not supported by the independent witnesses and that apart, even the official witness PW24 who allegedly effected the recovery did not depose in tune with Ext.P19. In this context, it is relevant to refer to paragraph 38 of the impugned judgment. The alleged recovery of all the weapons at the instance of the accused were dealt with in the said paragraph. It is stated therein that the recovery of the weapons were effected by PWs 22, 23, 24 and 26. Going by the case of the prosecution the statement of the 10th accused led to the recovery of MO2 iron stick which was recovered under Ext.P25 mahazar, statement of the 7th accused led to the recovery of MO3 iron stick under Ext.P22 mahazar, statement of the 3rd accused led to the recovery of MO4 under Ext.P26 mahazar, statement of the 5th accused led to the recovery of MO5 iron pipe under Ext.P21 mahazar, statement of the 4th accused led to the recovery of MO6 under Ext.P27 mahazar, statement of Sunil led to the recovery of MO1 under Ext.P19 mahazar and the statement of the first accused led to the recovery of MO8 sword under Ext.P20 mahazar. Thus, it is MO6 sword that was allegedly recovered at the instance of the 4th accused. Even going by the evidence of PW3, MO6 was not used for the purpose of inflicting the alleged injury noted in Ext.P1. It is pertinent to note that in the impugned judgment itself after appreciating the evidence the learned Sessions Judge found that except MO1 which was hesitatingly identified by PW3 no other weapon were even identified by any of the witnesses as weapons involved in the case. After appreciating the evidence relating the alleged discovery of the weapons in that manner the learned Sessions Judge came to the conclusion that the evidence in that regard is of no help to the prosecution. On a careful consideration of the evidence on record I do not find any reason to disagree with the aforesaid finding with regard to the other weapon and as regards relevancy of the discovery of MO1, I have already held it as inconsequential for the reasons specified thereunder. Going by the case of the prosecution, Abhi (A1) threw bomb at PW4 Shaju when he got down from the bus through the driver's door to escape from the scene of occurrence and when he hardly reached near the cassette shop on the roadside. However, PW4 would depose that it was Jithuraj (A2) who threw bomb at him which resulted in the injury noted in Ext.P2. He would depose that A2 is known to him prior to the incident. After the incident in which PW4 sustained the injuries he was admitted in Aswini Hospital, Thrissur and there he was examined by PW1. PW1 noted injuries and issued Ext.P2 wound certificate. It would reveal that at the time of examination PW4 was conscious though there was bleeding from his left leg and a crushed lacerated wound of 20 cms. x 11 cms. on anterio lateral side of the left leg. Muscles and skin were found lost from the left leg and the bone was seen exposed. It would reveal that the cause of injury was divulged to PW1 by PW4 as assault while travelling in `St.George' bus in front of Puthur school. But, evidently, it would further reveal that he stated to PW1 that it was Santhosh, Rajeev and Ramesan who threw bomb at the bus on 7.6.1995 at 8.35 p.m. During chief examination PW4 would depose; “എയന bomb എറ"ഞത) ജ"ത) ര ജ) ആണ ). എന"ക) ടനരയത പര"5$4 ഉണ) .” and he has correctly identified the second accused. At the same time, during the cross examination another question was put to him as “ജ"ത )ര ജ ണ) ക ല"ല bomb എറ"ഞത)എന ക ര94 ട: കടറ ട ടപ ല<സ"ടന ട പറഞ" ” He would answer:- “ഓരക)ന"
”. He would further depose; “ജ"ത )ര ജ) bomboL ] O O L L V L ] V L ] rO V. ] O U L L L L V \L ]\ÿ L ] O L L V r] V r O.” The said Gopalan is PW3 in this case and he was also admitted in the same hospital and was also examined by the same Doctor viz., PW1. It is evident from Ext.P1 that the cause of injury was stated to PW1 by PW3 on the same lines as has been done by PW4 and according to him, the attack was made by one Asokan, Santhosh and Ramesan. Thus, it is evident that both PWs 3 and 4 though brought to the hospital in a conscious stage and while being examined by PW1 they were conscious they did not divulge the presence of Jithuraj (A2) in the place of occurrence. That apart, according to them, it was three other persons had thrown bomb. In that context, it is pertinent to note that PW3 had not identified all the accused and he had identified only the 4th accused. Even in respect of the 4th accused he had deposed that as eight years have elapsed since the date of occurrence he could not identify the 4th accused with precision. I have already adverted to the manner of his identification of the 4th accused. As noticed hereinbefore, as relates the others he had deposed ; “10-15 V r O r N ] L V.” In respect of the 4th accused he deposed only thus:-
“......... ട ണ"യ$ അനറ"$ )മ $"ര )ന). ഇട. ള 8 വര34 കഴ"ഞത"ന ല ഏയറക )റയ പറ$ ന പറ)ക$)ള).”
In the circumstances, the evidence of PW4 to the effect that it was PW3 who told him that the bomb was thrown at him by the second accused also could not be believed. Exts.P1 to P10 except Ext.P3 would reveal that PWs 3 to 7, 11 to 13 and 25 were admitted to the hospital pursuant to the alleged incident and PWs 3 and 4 and one Ramakrishnan were examined by PW1 and the others were examined by PW2. Exts.P1 and P2 wound certificates pertain to PWs 3 and 4 issued by PW1 and Exts.P4 to P10 are the wound certificates issued in respect of PWs 5 to 7, 11 to 13 and 25 and they were issued by PW2. It is evident from the said wound certificates issued by PWs 1 and 2 respectively that all the aforesaid witnesses, the injured witnesses, were brought to the hospital in a conscious stage and none of them stated regarding the presence of Jithuraj (A2) in the place of occurrence. In this context, the case of the defence assumes relevance. The precise case of the defence is that Jithuraj (A2) is a local leader of BJP in the locality and that was why he was implicated as an accused. A careful scrutiny of the evidence of all the injured witnesses viz., PWs 3 to 9, 11 to 16 and 25 would reveal that none had stated to the Doctor who examined them on being taken from the place of occurrence to the hospital regarding the presence of Jithuraj. It is also to be noted in this context that though PW4 and PW5 deposed before the court that Jithuraj is known to them even prior to the occurrence they did not state regarding the presence of the second accused in the place of occurrence or they too, did not state regarding the presence of Jithuraj to the Doctors. The aforementioned wound certificates would reveal that the cause of injury was uniformly divulged to the respective doctors viz., PWs 1 and 2 by all the injured witnesses and they divulged cause of injury as throwing of bomb by some persons. True that, some of the injured witnesses like PWs 3 and 4 stated that the attack was made by Santhosh, Asokan and Ramesan and witnesses like PW4 stated that it was caused by Rajeev, Santhosh and Ramesan. True that in the decision in Kilakkatha Parambath Sasi and Ors. v. State of Kerala (AIR 2011 SC 1064) the Hon'ble Apex Court held that it was not the function of the doctor to record the names of those who might have caused injuries on the person who was brought to him for examination and hence, non-mentioning of names of the assailants by the doctor would not be a sufficient ground to disbelieve the testimony of the injured. At the same time, that cannot be applied in a case where names of assailants have been disclosed to the doctor and recorded by him. When the injured persons asserted that a particular accused was known to them non-mentioning of the name of that accused has to be duly taken note of. It is also to be noted that PW22 who conducted the investigation had deposed that despite the earnest investigation he could not identify the involvement of any person by name Rajeev in this case. As noticed hereinbefore, regarding the involvement of Jithuraj or even his presence in the place of occurrence had not been stated by any of the injured witnesses either to PW1 or to PW2. The case of the prosecution is also having a dent on account of the non-examination of the material witnesses who allegedly sustained injuries in the attack by the accused persons, like Ramakrishnan in whose respect Ext.P3 wound certificate was issued. In the light of the fact that the case of the prosecution was that in the incident the said Ramakrishnan sustained injury and he was admitted in Aswini Hospital, Thrissur and after examining him PW1 issued Ext.P3 wound certificate no proper explanation is forthcoming as to why the said material witness was not examined. Another important aspect is that even in the case of the injury sustained by PW4 allegedly by the explosion of the bomb thrown by Jithuraj the oral evidence is in conflict with the medical evidence. As noticed hereinbefore, PW1 examined PW4 and issued Ext.P2 certificate. After examination PW1 noticed a crushed lacerated wound of the size 2 cms. x 11 cms. on the anterio lateral side of the left leg of PW4. The muscles and skin of the left leg were found lost and the bone was seen exposed. While being examined as PW1 the said doctor who issued Ext.P2 would depose that the said injury could not be said to be caused by a bomb explosion. Despite the aforementioned injury seen on the left leg of PW4 no foreign body was admittedly found from the injury. Even after discarding the finding that evidence of PWs 14 and 25 were not trustworthy the learned Sessions Judge has not considered the evidence rendered by other occurrence witnesses in detail to identify and fix the culpability of the accused in respect of each of the alleged offences or to find whether their evidence is sufficient to conclusively prove the membership of the appellants herein in the unlawful assembly. A perusal of the discussion would reveal that the evidence of other witnesses were not gone into detail and at any rate, it is not discernible from the judgment as to how the oral testimonies of the other witnesses connect the accused with the alleged offences and how the alleged offences stood proved. The evidence as discussed above would reveal that PW4 who sustained the injury deposed to the effect that he sustained the injury on account of the explosion of the bomb thrown by A2. I have already discussed the reasons as to why the said version of PW4 could not be believed. Even after deposing to the effect that Jithuraj was known to him much prior to the incident he did not state to the doctor even when he was taken to the doctor immediately after the incident in a conscious stage that it was Jithuraj who threw the bomb at him and that apart, he did not divulge even the presence of Jithuraj at the place of occurrence. When none of the injured persons who were taken to the hospital gave a statement to the doctor, in a conscious stage, about the presence of Jithuraj in the place of occurrence and when the case of the prosecution is that he is a local leader of BJP the omission on the part of the injured in mentioning the name of Jithuraj cannot be said to be a minor omission. The appellants relied on the decisions of the Hon'ble Apex Court in Prabir Mondal and Another v. State of West Bengal ((2010) 1 SCC 386) Rajeevan and Another v. State of Kerala ((2003) 3 SCC 355) to contend that the failure to reveal the name of the assailants even when the assailants' names are not known to the doctor is fatal to the prosecution. It is to be noted that the first instance in which an injured would get to disclose the name of the assailant immediately after any incident is when he/she is brought to the doctor for treatment. In this case, evidently, all the injured witnesses including PWs 3 and 4 were brought either to Aswini Hospital, Thrissur or to Medical College Hospital, Thrissur in conscious stage and they did not state that the bomb was thrown by Jithuraj and conspicuously they did not state even the presence of Jithuraj in the place of occurrence while stating the names of some other persons. In case of a clash between political parties and when the alleged incident is by a group, going by the settled position of law, caution has to be taken and the chance of roping in of known political leaders has to be ruled out.
The circumstances as also the evidence tendered by the injured witnesses in this case as relates Jithuraj have to be viewed in the light of the said position. When the case of the prosecution is that Jithuraj is one of the local leaders of BJP and when it is the case of at least some of the prosecution witnesses that Jithuraj is known to them the failure on the part of the injured witnesses to name Jithuraj as one of the assailants either to PW1 or PW2 has to be viewed seriously. As noticed hereinbefore, though some of them like PWs 4 and 5 deposed before the court that it was 2nd accused Jithuraj who threw the bomb they did not state that fact either to PW1 or PW2. In this context, it is to be noted that PW5 is a police constable who was posted in the police picket on the relevant date and had not sustained any serious injuries. PW5 though in the box deposed to the effect that Jithuraj was known to him and it was he who thrown the bomb at him and the other policemen who proceeded to the place of occurrence immediately after hearing the bomb blast he did not state anything about the presence of Jithuraj in the place of occurrence. Taking into account the totality of the circumstances the chance of implication of Jithuraj, considering the fact that he is one of the local leaders of BJP, could not be ruled out. When a chance of roping in a leader in such matters cannot be ruled out, in the light of the material omission it would be unsafe to attribute complicity on the 2nd accused. The material contradiction in the evidence of the prosecution witnesses were also not at all taken into consideration by the learned Sessions Judge. As noticed hereinbefore, going by the evidence of PW3 he was attacked by the 4th accused. In that context, it is to be noted that PW14 Poulose who allegedly sustained injuries in the incident deposed to the effect that it was Abhi (A1) who inflicted a cut on PW3. PW12 Titus would depose that A4 inflicted the injury by stabbing with a sword while PW3 was standing at the door step of the bus. PW3 would depose that after intercepting the bus and after throwing the bomb on the road some persons had entered into the bus and the 4th accused stabbed him with the sword and the 7th accused beat PW11 with an iron stick. I have found why the evidence of PW3 is untrustworthy. One another witness would depose to the effect that PW3 sustained a wound when the sword was wielded at PW3 from outside the bus. A careful scanning of the evidences of the witnesses would reveal that with regard to the incident in which PW3 and the others sustained injuries the witnesses gave different versions. The different versions given by them cannot be said to be minor discrepancies. The learned Senior counsel appearing for the appellants contended that none of the accused persons were identified properly. In this case, admittedly, no test identification parade was conducted and the accused were identified by the witnesses from the box. In such circumstances, it is to be ensured that the accused persons were properly identified by the respective witnesses. I have already adverted to the manner in which PW3 identified A4 and PW4 gave the name of A2 as the offender against him. PW25 identified the 5th accused from the box as follows:-
“കകയകട" ന"ലക )ന ആള അവര"ല ഉണ $"ര )ന). ഇട. ള മറ)ളവയര ഓരക)ന" . r] LoL ] O O.”
But, the evidence of PW25 was rightly discarded by the trial court. A scanning of the identification of the accused by the other witnesses also would reveal that except Jithuraj the others were not properly identified from the box. I have already dealt with the case of Jithuraj (A2) and as to why the evidence tendered by the witnesses as against him could not be believed. In a case where the alleged incident is a clash between two political parties and a group of men on both sides involved in the incident the chance of implication of persons of prominence has to be ruled out. In such circumstances, necessarily, whether the presence of such persons were disclosed at the first opportunity by the injured witnesses is a test to decide whether the culpability was rightly attributed or whether such a person of prominence was implicated. In this case, it is true that the prosecution has succeeded in establishing the fact that on 7.6.1995 a group of men intercepted a bus by name `St.George' at about 8.15 p.m. and there occurred an attack by using country bombs. True that, some of the occurrence witnesses sustained injuries. In the light of the decision of the Hon'ble Apex Court in State of M.P. v. Mansingh and others ((2007) 2 SCC (Cri) 390) the evidence of injured witnesses and victims got greater evidential value and in the absence of material contradiction or omission the evidence of injured witnesses has to be taken as trustworthy. As noticed hereinbefore, in this case, the contradictions and omissions cannot be said to be minor and as such, to be ignored. In fact, the discrepancies and omissions are of such a degree that the presence of the appellants could not be taken as conclusively proved. Apart from the non-examination of one of the material witnesses who got injured in this case CW36 who laid the charge after completing the investigation was not examined. No proper explanation was given by the prosecution as to why the Investigating Officer who completed the investigation and laid the charge was not examined. Evidently, the reason as to why despite the recovery of the incriminating material it was not sent to the Forensic Science Laboratory for examination was to be explained by him. The prosecution cannot be heard to contend that he is not a material witness and in the said circumstances, the failure on the part of the prosecution to examine the Investigating Officer who laid the charge is also certainly fatal to the prosecution. In short, as noticed hereinbefore, in this case, there was no proper identification of the accused persons. In a case of this nature, proper identification is required. The conclusion regarding the commission of offences under Sections 143, 148, 307, 324, 332, 426 read with Section 149, IPC against the appellants could not be sustained. The mere fact that the prosecution has succeeded in establishing that on 7.6.1995 an untoward incident happened and some of the occurrence witnesses sustained injuries by itself is not sufficient to find the appellants guilty without conclusive proof regarding their membership in the unlawful assembly. For all these reasons, though the prosecution has succeeded in establishing the acts of vandalism and sustainment of injuries to some witnesses and usage of country bombs in the incident that occurred on 7.6.1995 I am of the view that in the absence of proper identification of the accused and for the other material lapses and dent in the prosecution case, specifically mentioned hereinbefore, the appellants are to be given the benefit of doubt. In short, the judgment of conviction entered against the appellants by the learned Sessions Judge and the consequential imposition of sentence against them cannot be sustained and certainly, appellate interference is inevitable in the circumstances.
In the result, the appeals are allowed. The judgment of conviction and the consequential imposition of sentence against the appellants are set aside. They are set at liberty and their bail bonds are cancelled.
TKS Sd/-
C.T.RAVIKUMAR Judge