REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1383 OF 2003

KILAKKATHA PARAMBATH SASI & ORS.  ...APPELLANTS

Versus

STATE OF KERALA          …..RESPONDENT

J U D G M E N T

HARJIT SINGH BEDI, J.

1. The  prosecution  story,  given  by  PW-1  Shaji,  who  is  the  

brother of the deceased, Sathyan is as under:-

At about 1:45 p.m. on the 24th March, 1994, Shaji (PW-1) was  

to  travel  by  bus  on the  route  from Thalassery  to  Vataparra  via  

Ayitharapuzha  and  Kuthuparamba.   He  got  into  the  bus  at  

Ayitharapara.  As he entered the bus, he found his brother Sathyan  

also  traveling by the same bus and as there  was a vacant  seat  

besides  him,  he  too  sat  down  on  the  seat.   10  or  15  other  

passengers including Prakasan (PW-2), Shyamala (PW-3) and the  

accused Sasi and Dasan were also in the bus.  At about 1:55 p.m.

the  bus  reached  

Ayitharapuzha  but  

before PW-1 and the deceased could get down from the bus, Sasi  

and  Dasan  shouted  out  that  they  would  be  murdered  and  on  

saying  so  they  pushed  PW-1  and  Sathyan  out  on  to  the  road.  

Three other persons then ran towards the bus from Babu’s shop  

which  was  alongside  the  road.   Ambu  and  Perutheri-accused  

handed  over  a  sword  each  to  Sasi  and  Dasan  whereupon  Sasi  

inflicted injuries on the hands of Shaji.  Ashokan-accused who was  

armed with an axe caused injuries on the face and head of Sathyan  

whereas accused Babu armed with a long knife caused injuries on  

the left hand of Sathyan and Dasan inflicted a stab injury with a  

sword on the stomach of Sathyan.  The other accused also inflicted  

some injuries on the deceased as well as on PW-1.  As per PW-1’s  

statement,  he  had  recognized  all  the  seven  accused  who  had  

inflicted injuries on him and his brother.  A police jeep soon arrived  

at the spot and PW-1 and Sathyan were taken to Kuthuparamba  

Hospital but as they were in critical condition, they were removed  

in a car and brought to the Thalassery Government Hospital where  

both of them were examined by the Doctor and while PW-1 was  

admitted  therein  Sathyan  was  referred  to  Kozhikode  Medical  

College where he soon died.  At about 5:30 p.m., the police arrived  

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in  the  Thalassery  

Hospital  and  

recorded the statement of PW-1 leading to the recording of the FIR  

referring to seven assailants but naming only four, and suggesting  

that the murder was the outcome of political rivalry as the accused  

belonged to the Bhartiya Janta Party whereas the deceased and  

PW-1 were workers of the Congress Party.  In the FIR it was also  

noted that  the incident  had been seen by  Prakasan (PW-2)  and  

Manoharan (PW-4).  Sathyan’s dead body was also subjected to a  

post-mortem, and PW-7 the doctor, found 58 injuries thereon, most  

of  them  incised  and  cutting  wounds,  some  of  them  of  huge  

dimensions.  PW-1 was also examined for the injuries by the doctor  

PW-8, and three incised wounds were found on him as well.   On  

the completion of the investigation, the accused were charged for  

offences punishable under Sections 147, 148, 307, 324 and 302  

read with Section 149 of the Indian Penal Code.   

2. The  Trial  Court  held  that  though  PW-1  was  an  injured  

witness, yet he could not be believed as in the FIR he had named  

only four accused i.e. Sasi, Dasan, Ashokan and Babu, although,  

he  had  referred  to  three  others  and  had  in  a  supplementary  

statement to the circle  inspector named these three as well  and  

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that  he  had  also  

admitted to the deep  

political animosity between the two groups, which cast a doubt on  

his  story.   The  court  also  held  that  the  police  had  admittedly  

carried PW-1 and his fatally injured brother in the police jeep to the  

hospital, but as the police officer had made no attempt at recording  

the statement of PW-1, at that stage, the prosecution story was,  

apparently,  an after-thought and could not be relied upon.  The  

Court  also  observed that  the manner  in  which  the  injuries  had  

been caused by all the accused, could not be believed as the eye-

witnesses were discrepant on this material aspect.  The Trial Court  

went through the evidence of PW-2, Prakasan and found that he  

had not been able to explain his presence in the bus at the relevant  

time  despite  the  fact  that  his  presence  had  been  specifically  

indicated in  the FIR.   The court  then examined the evidence  of  

Shyamala  (PW-3),  one  of  the  other  passengers  in  the  bus,  and  

observed that her presence too was doubtful as her name did not  

figure in the FIR.  The court also found that PW-4, another eye-

witness had deposed that he had been present at the bus stop at  

Ayithara near Babu’s shop and that when the bus had stopped and  

the passengers were getting down, he had heard a great deal  of  

shouting and had subsequently, witnessed the incident in which  

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the  four  main  

accused-appellants  

herein caused a large umber of injuries to the deceased and PW-1,  

but as PW-4 was admittedly an autorickshaw driver operating from  

Kuthuparamba  and  as  his  autorickshaw  was  stationed  at  

Kuthuparamba, the story projected by him that he had come to  

Ayithara to get it repaired, appeared to be doubtful.  The court also  

opined that the eye-witness account was not substantiated by the  

medical evidence in the light of the fact that all the incised injuries  

appeared to bear clear-cut margins whereas the prosecution had  

suggested that accused nos.5 to 7 had been armed with a crow bar  

and sticks.

3. The  court  also  went  into  the  evidence  of  the  primary  

investigating officer PW-15 and opined that there appeared to be  

something remiss in the manner in which the investigation  had  

been conducted by him.  In conclusion, the Trial Court observed  

that :

“On an appreciation of the entire evidence available on  record, I am to hold that the evidence of the alleged eye- witnesses  PWs  1  to  4  are  inconsistent  regarding  the  weapon  used  and  also  the  witnesses  have  improved  their  version  when  they  deposed  before  the  Court.   Several  material  points,  which have not been stated  to   the police have been deposed before the court.  I have no  doubt in my mind that in this case the witnesses have   

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not  deposed  before  this   court  the  real   incident that happened.  Developments were made and  therefore,  I  am  unable  to  accept  the  version  of  the   witnesses  as  true  and  correct.   So  also,  the  medical   evidence is not in conformity with the evidence given by  PW-2  and  the  case  of  the  prosecution  that  murder  of   Sathyan and Shaji  formed themselves into an unlawful   assembly and waited at the shop of the 4th accused Babu  for the deceased to reach the place in the bus also cannot   be believed.  In this circumstance, I am to hold that the   prosecution has not presented before this court the true   incident in this  case in which  another  youth has been  murdered  allegedly  due  to  the  political  animosity.   Therefore, I am to hold that the prosecution has failed to   prove the case convincingly against these accused.”

4.   The Trial  Court,  accordingly,  acquitted all  the  accused.   An  

appeal was thereafter taken by State to the High Court.  The High  

Court re-examined the evidence taking note of the principle, now  

universally accepted, that if the view taken by the trial judge was  

reasonable  and  could  possibly  be  taken  on  the  evidence,  no  

interference  by  the  appellate  court  was  called  for  as  the  

presumption of innocence of an accused was strengthened by an  

acquittal  recorded  by  the  trial  court.   The  High  Court  then  

examined the evidence in the light of the above broad principle and  

observed that the incident had happened at about 2:30 p.m. and  

the  injured  had  been  removed  first  to  the  Kuthuparamba  

Government  Hospital  and  then  to  the  Thalaserry  Government  

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Hospital  at  4:00  

p.m.  whereafter  

Sathyan had been referred  to  the Medical  College  at  Kozhikode.  

The court noted that due to Sathyan’s serious condition, his family  

had removed him to the Hospital at the earliest to save him and the  

FIR had been promptly recorded at about 5:30 p.m. at the instance  

of Shaji  (PW-1) in which the accused Sasi,  Dasan, Ashokan and  

Babu,  the  appellants  herein,  had been named.   The  court  then  

considered the evidence of the eye-witnesses and first examined the  

evidence  of  PW-1  who  was  admittedly  an  injured  witness.   The  

court noted that in the FIR, it  had been recorded that Sasi and  

Dasan, two of  the appellants and Prakasan (PW-2) and Shymala  

(PW-3)  had  been  present  in  the  bus  when  the  incident  had  

happened and that his  graphic description fitted in the incident  

with  the  other  circumstances.   The  court  then  went  into  the  

evidence  of  PW-2  who  was  alleged  to  be  a  close  friend  of  the  

deceased and accepted the statement that at 10:00 a.m. on that  

day he and Sathyan had gone to a film show at Kuthuparamba and  

as they were to take lunch at home they had taken a bus to get  

back  and  when  the  bus  had  reached  Ayithara  bus  stand,  the  

incident had happened.  He also stated that he too had been in the  

police jeep which had taken the injured to the hospital.  The court  

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also  examined  the  

statement  of  

Shymala (PW-3) whose name had also figured in the FIR and the  

statement of Manoharan (PW-4), a truly independent witness, as he  

was  standing  near  the  shop  of  Babu  to  get  his  autorickshaw  

repaired and had no connection with either party.

5. In this background of the facts, the court observed that the  

findings of the Trial Court that there was a delay in the recording of  

the FIR was perverse and could not be accepted, the moreso as the  

special  report had been delivered to the Magistrate at 7:50 p.m,  

the same day.  The court also found that the first anxiety of the  

family and friends of the injured was to see them to a hospital and  

if an hour or two was taken in that effort it was but to be expected  

in the circumstances.  The court also held that the presence of PW-

1, who was an injured witness, could not be challenged, and as the  

dispute was apparently between two rival political parties, it would  

be difficult to believe that the true assailants would be left out and  

others  involved  instead.   The  court  further  observed  that  the  

evidence of PW-1 was corroborated by PW-2, PW-3 and PW-4 who  

were truly independent witnesses and though PW-2’s name did not  

figure in the FIR but the fact that he was present when the injured  

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had been removed to  

the  hospital  which  

was evident from the wound certificate, his presence had also to be  

accepted.  The court finally found that the judgment of the trial  

court  was  perverse  and  accordingly  allowed  the  appeal  qua  the  

appellants herein i.e. Sasi, Dasan, Ashokan and Babu whereas the  

acquittal of accused Nos.5 to 7 i.e. P. Sudhakaran, V. Sudhakaran  

and V. Raghu was maintained.

6. The  High  Court  accordingly  awarded  a  sentence  of  life  

imprisonment to the four appellants under Section 302 read with  

Section 34 of the Indian Penal Code.

7. That the matter is before us on these facts.

8. Mr. Lalit,  the learned senior counsel for the appellants has  

raised several arguments before us.  He has first argued that  

there was an unexplained delay in the lodging of the FIR and  

as there was admittedly serious enmity between the parties,  

this delay had been utilized by the prosecution to create a  

false story and to involve innocent persons.  He has also been  

submitted that the High Court too had endorsed the finding  

of the Trial Court that three of the accused had apparently  

not been present which caused grave doubts on the veracity  

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of  the  

prosecution  

witnesses.   It  has also been pleaded that the eye-witness’s  

account of the four eye-witnesses was discrepant inter-se and  

was also not supported by the medical evidence of PWs-7 and  

8,  the  two  doctors  which  clearly  showed  that  the  eye-

witnesses had not been present at the spot.  It has further  

been pointed out that the presence of PWs 2, 3 and 4 was  

even  otherwise  to  be  ruled  out  more  particularly  as  the  

presence of PW-2 was not indicated in the  FIR and that the  

best witnesses to depose for the prosecution were the crew of  

the bus who were not examined, although the investigating  

officer PW-15 had admitted that he had recovered the trip-

sheet from them.  In conclusion he has submitted that the  

facts  did  not  justify  interference  in  an  appeal  against  

acquittal.  

9. Mr. Dwivedi, the learned counsel for the State of Kerala, has  

however, controverted the above submissions and pointed out that  

the  High  Court  had  set  aside  the  order  of  the  trial  court  fully  

cognizant of the fact that it was a dealing with an appeal against  

acquittal wherein the High Court’s interference was circumscribed  

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and  had  observed  

that  interference  

was called for as the judgment of the trial court was perverse.  He  

has, further, submitted out that there was absolutely no delay in  

the  lodging  of  the  FIR  and the  finding  of  the  trial  court  to  the  

contrary, was perverse and could not be sustained on the evidence.  

It has further been pointed out that there could be no doubt as to  

the presence of Shaji (PW-1) who was admittedly an injured witness  

and the brother of the deceased, nor the other witnesses as they  

were  truly  independent  ones  and  merely  because  PW-1  did  not  

name  all  the  seven  accused  at  the  first  instance,  was  of  no  

consequence at this stage as the three who had not been named,  

had been acquitted and were not in appeal before this court.

10. Before we go into the merits of the evidence, we must deal  

with  the  question  of  the  High Court’s  interference  in  an appeal  

against  the  acquittal.  It  is  true  that  in  Arulvelu  and Anr.  Vs.  

State represented by the Public Prosecutor and Anr.  [2009  

(10) SCC 206],  and a string of  earlier & later judgments, it  has  

been held that the High Court should not interfere in an appeal  

against acquittal save in exceptional cases, and that interference in  

such an appeal was called for only if the findings of the Trial Court  

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were  not  borne  out  

by the evidence and  

were perverse.  It is however equally well established that the High  

Court can re-appraise the evidence so as to find out as to whether  

the view taken by the Trial Court was justified or not and if it finds  

that the Trial Court’s findings were not possible on the evidence,  

interference must be made failing which there would be a travesty  

of justice.  We are of the opinion that in the light of what follows,  

the High Court was justified in interfering in this matter.  

11. Mr. Lalit’s primary argument is with regard to the delay in  

lodging  of  the  FIR.   He  has  submitted  that  the  incident  had  

happened  at  about  2.30  p.m.  and  as  per  the  prosecution,  the  

statement of PW-1 had been recorded at about 5.30 p.m., but as  

the special  report  had been delivered to the Magistrate at about  

10.00 p.m., it appeared that the FIR statement had been recorded  

at about 7 or 7.30 p.m. and that too after due deliberation.   

It is true, and if it is so found, that a FIR has been lodged  

belatedly, an inference can rightly follow that the prosecution story  

may not be true but equally on the other side if it is found that  

there is no delay in the recording of the FIR, the prosecution story  

stands  immeasurably  strengthened.   The  High  Court  has  re-

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examined  the  

findings recorded by  

the Trial  Court  with respect  to this  matter.   We notice  that the  

incident happened at about 2.30 p.m. and the police had arrived at  

the place of occurrence an hour later.  PW-1 and the deceased were  

taken to the Government Hospital, Thalassery where the deceased  

was  examined  at  about  3.40  p.m.  but  referred  to  the  Medical  

College, Kozikhode as his injuries were grave whereas PW-1 was  

admitted  to  the  Government  Hospital.   It  has  also  come in  the  

evidence that the ASI, who had taken the injured to the Hospital at  

Thalassery,  was on law and order duty but he nevertheless had  

gone to  the Kuthuparamba Police  Station and given information  

about the incident in that Police Station.  The police had arrived,  

thereafter, at the General Hospital and recorded PW-1’s statement  

at 5.30 p.m. and on its basis, the formal report had been registered  

at  7.15  p.m.  and  immediately  forwarded  to  the  Magistrate  who  

received it at 10.00 p.m.  The Trial judge has, however, found fault  

in this matter by observing that one of the persons accompanying  

the  injured  could  have  gone  to  the  police  station  and  given  a  

statement.  To our mind, this observation is farfetched and it does  

not take into account the realities of life.    It is to be noted that the  

deceased had suffered as many as 58 injuries, most of them incised  

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and cutting wounds  

with large quantities  

of blood spilling out, and was in a very serious condition and the  

first anxiety of everybody, including the attendants and the doctors,  

was to see him to a hospital. He also died at about 4:00 p.m. We,  

therefore,  fully endorse the findings of  the High Court as to the  

spontaneity of the FIR.   

Mr.  Lalit  has also questioned the evidence of  PW-1 who is  

admittedly an injured eye-witness and whose presence cannot be  

doubted.   It  has  been  contended  that  as  the  incident  was  the  

outcome of political rivalry between the Bhartiya Janta Party and  

the Congress workers, and the fact that PW-1 had not named all  

the assailants to the doctor in Thalassery Hospital when he had  

been examined by him and merely stated that BJP workers were  

responsible,  cast a doubt on his statement.   It  has, accordingly,  

been pleaded that PW-1 apparently did not know the names of the  

accused and that the accused had been involved after deliberation.  

We find absolutely no merit in this submission, as admittedly PW-1  

is  an  injured  witness  and  his  presence,  therefore,  cannot  be  

disputed.  Even as per the defence put up by the accused, PW-1  

was not an active worker of the Congress Party.  The question of  

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the false implication  

of  BJP  workers  at  

his instance on account of political rivalry, therefore appears to be  

remote.  Even otherwise, we find it difficult to believe that PW-1  

would have left out the true assailants of his brother.  The Trial  

Court had however given a finding that in the FIR, PW-1 had given  

the  names  of  only  four  of  the  accused  (who  are  the  appellants  

before us) whereas he had added three more subsequently by way  

of a supplementary statement and as such, his story could not be  

believed. Likewise, the Trial Court had found some doubt as to the  

story  put  up  by  PW-1  as  to  his  medical  examination  in  the  

Thalassery Hospital where he had told the doctor that he and his  

brother had been injured by BJP workers but had not divulged the  

names  to  him.   The  Trial  court  has  supported  this  finding  by  

referring to the doctor’s evidence that had the names been given, he  

would have noted them down in the medical record.   We find this  

observation to be farfetched.  First and foremost, it has to be borne  

in mind that it is not the function of the doctor to record the names  

of those who may have caused the injuries to the person who is  

being  examined  by  him.   On  the  contrary,  the  fact  that  the  

statement about the involvement of BJP had been made at about  

4.00 p.m. in the Thalassery Hospital suggests that the prosecution  

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story  was  entirely  

correct.  We also see  

that PW-1 has given full details as to how he and his brother had  

happened to meet by chance in the bus and the manner in which  

the incident had happened at Ayithara  bus stand.   

12. The prosecution story is also fully supported by the evidence  

of PWs 2,3 and 4.  The High Court has relied on PW-1’s statement  

with respect to the presence of PWs 3 and 4, but expressed some  

doubt as to the presence of PW-2.  We have examined the findings  

arrived at by the High Court vis-à-vis the observations of the Trial  

judge.   We see that  PW-2 was one of  those who had taken the  

deceased and PW-1 to the Thalassery Hospital after the incident, as  

his name figures as being present in the Hospital at the time of the  

examination of the injured.  Merely therefore because PW-1 does  

not refer to PW’s presence in the FIR does not mean that he was  

not  present.   We  also  find  that  PWs  3  and  4  are  independent  

witnesses.  Significantly, PW-1 and PW-2 did state that PW-3 was  

also  traveling  in  the  same  bus,  PW-3  also  gave  a  categoric  

statement that she had seen the deceased and PW-1 in the bus and  

had witnessed the incident outside Babu’s shop at the Ayithara bus  

stand.  We are further of the opinion that there is absolutely no  

doubt  with  regard  to  the  presence  of  PW-4  who  is  a  truly  

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independent  

witness.   He  stated  

that he was an auto-rickshaw driver and had come to the place to  

get  his  auto-rickshaw repaired  and  had  seen  the  incident  as  it  

happened.  There is absolutely no reason as to why his statement  

should be discarded.   

Mr.  Lalit  has,  however,  also  raised  some  argument  with  

regard to the non-examination of the bus crew.  It is true that PW-

15,  the  Investigation  Officer,  did  testify  that  he  had  taken  into  

possession the ‘Trip-Sheet’ for the route which the bus had taken.  

Even assuming,  however,  that  the bus crew ought to have been  

examined as that  would have greatly  enhanced the value of  the  

prosecution evidence,  but  their  non-examination  case  would not  

mean that the entire prosecution story would fall through as there  

were several other credible witnesses including an injured one.

We are, therefore, of the opinion that the High Court was fully  

justified  in  interfering  in  this  matter  under  the  guidelines  and  

principles in Arulvelu’s case (Supra).  

The appeal is accordingly dismissed.

…………………………..J. (HARJIT SINGH BEDI)

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……………… ….…………………..

J. (CHANDRAMAULI KR. PRASAD)

FEBRUARY 4, 2011 NEW DELHI.

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