- (1.) For an occurrence which took place on 4-5-1981 at about 10.30 p.m., the appellants were arrayed by the police and put up for trial in Sessions Case No. 97 of 1981 for offences under Ss. 302, 452 and 34, Indian Penal Code. In that occurrence, the appellants were alleged by the prosecution to have trespassed into the house of Chandran at Muttada and while appellant No. 1 inflicted Chop wounds on the hands and left leg of Chandran with a Chopper, the appellant No. 2 had flashed a torch light thus aiding the first appellant while the third appellant stood guard at the entrance of the house with an iron rod. The deceased Chandran, after the receipt of injuries, was removed to the hospital by his brother P.W. 1 in the taxi of P.W. 14 Gopakumar. Chandran succumbed to the injuries after being admitted in Ward No. 5 of the hospital during the night. The learned Sessions Judge after appraisal of the evidence and consideration of the material on the record, acquitted the appellants of a the charges by its judgment dated 25-6-1982. On an appeal by the State to the High Court, the judgment of acquittal was set aside and the appellants were convicted. The High Court convicted them for an offence under S. 304, Part I and sentenced each one of the appellants to rigorous imprisonment for a term of ten years. They were also convicted for an offence under S. 450, I. P.C. and sentenced to suffer rigorous imprisonment for a period of one year each. Both these sentences were, however, directed to run concurrently. The appellants are in appeal before us.
(2.) The trial Court found that the evidence with regard to the lodging of the First Information Report both as regard the time and place was shrouded in mystery. After analysing the evidence, the trial Court observed: "P. W. 15 was the then Head Constable of the Peroorkada Police Station. It was he who recorded Ext. P. 1 F. I. Statement of P.W. 1 and registered the case. He would swear that on 5-5-81 at 2.30 a.m. he received a phone message from the Sub-Inspector. Immediately he went to the Medical College Police Station. On reaching the Police Station, he came to understand that a person with cut injuries was brought from Muttada and that he died at 3 p.m. in the hospital and that his body had been removed to the mortuary. Then he proceeded to the mortuary where he saw P.W. 1 and recorded Ext. P. 1 F. I. Statement. After recording Ext. P. 1, he returned to the Police Station and registered the case after preparing Ext. P. 9 F.I. R. It is seen from Ext. P. 9 that PW 15 has recorded the full details about the incident and the names of the accused as also the nature of the injury sustained by Chandran. According to P.W. 15, all these details were furnished by the Sub-Inspector of Police over the phone. But when the Sub-Inspector was examined as PW 16 he would say that he did not give any such information to PW 15. It still remains a mystery as to who furnished these details to PW 15. These facts and circumstances show that the prosecution is suppressing some material facts from the court and the only possible inference is that the incident would not have happened in the manner alleged by the prosecution. P.W. 17 is the investigating officer. "
(3.) After having doubted the manner in which and the place at which the First Information Statement was made, the trial court also dealt with the evidence of P.W. 1 and commented upon the circumstances emerging from his evidence which give a lie to the prosecution version with regard to the recording of the First Information Statement, in the hospital at the instance of P.W. 1, the brother of the deceased. The trial Court noticed: "P.W. 1 would also say that by about 3'O clock, immediately before the death of Chandran, a head constable came there. At that time Chandran was lying in Ward No. V. P.W. 1 told the head constable about the incident and the latter reduced the same to writing. P.W. 1 proved Ext. P. 1 as the statement so recorded. To a leading question put by the Addl. Public Prosecutor, P.W. 1 answered that he gave Ext. P. 1 F. I. Statement while Chandran's body was lying in the mortuary. In his cross-examination he would say that when the police came to the hospital, a mahazar was prepared on the body of Chandran. When he was asked whether his statement was recorded after the preparation of the said mahazar, he would say that his statement was recorded only on the next day after the dead body was brought home and that the said statement is Ext. P. 1. This version of P.W. 1 is contrary to the prosecution case and against his own earlier version. Again P.W. 1 would say that he saw the police for the first time only on the next day at 10.30 a.m. near the mortuary. This also is against his own version given in his examination in Chief. In the next sentence P.W. 1 would say that at 3 a.m. he saw a head constable attached to the Peroorkada Police Station in Ward No. V near the bed of Chandran. He is definite that he did not do anything except helping them while they were in the mortuary. He would categorically state that even though he mentioned to the head constable about the incident, he did not do anything except listening to it. According to him, his house as well as Chandran's house are facing towards east which is also against the prosecution case. From a reading of his testimony it is not possible to find that Ext. P. 1. F. I. Statement was recorded by P.W. 15 at the Medical College Hospital on the night of 4-5-1981 itself or that P.W. 1 was able to see and identify the accused at the scene of occurrence." The indictments by the trial Court were severe on the bona fides of the investigation and the trial Court was justified in coming to the conclusion that the prosecution had suppressed the manner in which the First Information Statement was recorded and therefore the possibility that it had been recorded after due deliberation could not be ruled out. The circumstances emerging from the discussion of the trial Court would show that the discrepancies and the contradictions amongst the evidence of the witness in the matter of recording of the First Information Report were of a serious nature and discredited the prosecution case and cast serious doubts on the conduct of the investigation. The learned judges of the High Court, however, dealt with this aspect of the matter in the following manner: "The fact that there is some minor discrepancy as regards the time and place at which the F.I.R. was lodged is of no significance. After all the witness deposed in court more than a year later. The F.I.S. contains the relevant details fully corroborating on the material particulars what the witnesses spoke. The names of the accused are mentioned in the F.I.S. It contains a clear and cogent narrative of the incident. It is not correct to disbelieve the prosecution case because of such minor insignificant discrepancies.";