M.C. ALI AND ANR.versusSTATE OF KERALA

                        (2010] 4 S.C.R. 526


A                        M.C. ALI AND ANR.
                                  v.
                        STATE OF KERALA
                (Criminal Appeal Nos. 499 of 2002)

                          APRIL 13, 2010
B
       [B. SUDERSHAN REDDY AND SUFUNDER SINGH
                      NIJJAR, JJ.]

         Penal Code, 1860: ss.302, 307, 149, 34 - Murder of one
C   and grievous injuries to others allegedly on account of
    religious enmity - Acquittal by trial court disbelieving
    prosecution story - High Court setting aside acquittal and
    ordering conviction under ss.302, 307, 149, 34 - Correctness
    of - Held: High Court erred in interfering with the order of
D   acquittal recorded by trial Court - The sequence of events and
    the evidence were meticulously examinea' by the Trial Court
    - Trial Court noticed that the incident took place in dark, but
    no torches were recovered from the accused - The evidence
    of injured prosecution witness PW1 was not believed as his
E   behaviour appeared wholly unnatural - PW2 was present
    when police reached scene of incident but his statement was
    not recorded - Names of accused were me·ntioned in the First
    Statement but not in the inquest report recorded later in time
    - There was no explanation for injuries suffered by the
F   accused - Even the witnesses were interested witnesses and
    could not be believed in the absence of independent
    corroboration - Findings recorded by trial court were neither
    perverse nor unreasonable - Conviction set aside - Evidence
    - Interested witness.

G        Prosecution case was that PW-5, his; family and close
    relatives were believer of a particular soct in the muslim
    community and were socially boycotlted by the large
    section of the community. This created frequent conflicts

H                                526
      M.C. ALI AND ANR. v. STATE OF KERALA             527


in the locality between the two groups. PW-5 brought          A
PW-1 and deceased from a different place to work in his
fields. PW-1 and deceased were residing in the house
of PW-5. On S0.1.1994, PW-5 received information about
the injuries suffered by the son of his brother CW9. Due
to the tension prevailing in the locality between the two     B
groups of the community, PW-5 asked PW1 and the
deceased to accompany his son PW-2 to visit the house
of CW9. At 9.15 p.m., they proceeded towards the house
of CW9 through paddy fields, holding torches in their
hands. A group of 15 persons was standing at tile end         c
of the paddy fields. The group also had torches in their
hands. They flashed torches on them. Accused persons
were in possession of M01 weapon, knives and sticks.
They suddenly attacked PW-1, 2 and the deceased. A1
to A4 inflicted cuts on the neck of the deceased and as a
                                                              0
result he fell down. A-1 to A~6 again attacked deceased.
PW-1 ran from the spot to save himself, and took shelter
in the house of CW-9. PW-2 who also suffered injuries,
ran for his life and reached the house of CW9. As
deceased did not reach the house of CW-9, PW-1 along
with the son of CW9 went to the scene of occurrence and       E
saw the deceased lying dead.

     PW-5 also heard a lot of noise from the side of parldy
field. He went towards the paddy field and on the way
he saw accused 1 to 4, 7, 9, and 11 to 13. All of them        F
possessed knife and sticks. Fearing attack PW-5 ran
towards his house.

    PW-8, the Head Constable registered FIR at 00.30
hours on 31.1.1994. On that day morning, it was sent to       G
the Magistrate who signed it at 3.30 p.m. Trial court did
not believe the prosecution story and acquitted all the
accused. High Court set aside the acquittal and ordered
conviction under Sections 302, 307, 49 and 34 IPC.
Hence these appeals.
                                                              H
    528      SUPREME COURT REPORTS               [2010) 4 S.C.R.


A         Allowing the appeals, the Court

      HELD: 1.1. If two reasonable co,nclusions are
  possible on the basis of the evidence on record, the
  Appellate Court should not disturb the findings of
  acquittal. The acquittal re-enforces and reaffirms the
8
  presumption of innocence of the accused. [Para 44) [556-
  8)

     Antar Singh v. State of M.P. (197'9) 1 SCC 79;
  Chandrappa v. State of Kamataka 2007 (4) SCC 415; Kali
C Ram v. State of H.P. (1973) 2 sec 808, rellied on.

         1.2. The incident took place in the dark. The Trial
    Court noticed that none of the torches were recovered
    or produced by any of the concerned persons. There was
0   also no moon light. In such circumstances, the
    recognition of the six accused could not bie possible. The
    Trial Court had meticulously examined E!ach and every
    issue. It also noticed that there was anticipation of trouble
    otherwise there was no occasion for PW2 to be
E   accompanied by PW1 and the deceased for going to the
    house of CW.9, brother of PW5. The Trial Court also
    traced the progress of these three individuals through the
    paddy field. Since it was a dark night, it was not entirely
    unbelievable that the torches were introd1l1ced to ensure
    that the accused could be said to have been identified.
F   Surprisingly, after the deceased was fatallly injured, PW1
    bolted from the scene of crime. This PW1 was so loyal
    to PW5 that he had been taking undue advantage of
    being a scheduled caste and lodging false complaints
    against the accused persons under the Scheduled
G   Castes and Scheduled Tribes (Prevention of Atrocities)
    Act, 1989. Yet when the other faithful serv<mt of PW5 was
    being brutally murdered, he ran away. Tlhe Trial Court,
    therefore, rightly concluded that the behaviour of PW1
    was wholly unnatural. [Para 47] [557-C-G)
H
     M.C. ALI AND ANR. v. STATE OF KERALA            529


     1.3. The Trial Court meticulously examined the         A
sequence of events with regard to the recording of the
FIR. The FIR was recorded at 0030 hrs on 31.1.1994. It
was not received by the Magistrate till 3.30 p.m. on
31.1.1994. The Trial Court also noticed that the names of
the accused were mentioned in First Information             B
Statement Ex.P.1. But they were not mentioned in the
relevant column of the inquest report. If Ex.P.1 had been
prepared prior to the inquest report Ex.P.14, the names
would surely have been mentioned therein. These
conclusions again cannot be said to be perverse. [Para      c
49] [558-D-F]

     1.4. The Trial Court also noticed that due to the long
enmity of P.W.5 and his family with the accused, the
evidence had to be scrutinized carefully. The deceased
as well as PW1 were the employees of PW5 who were D
brought from the State of Karnataka as the local labour
was not available. The Trial Court noticed that in case
there had been an assault, as projected by the
prosecution, there was no reason why PW1 would have
been spared while the deceased was brutally murdered. E
After all, it was P.W.1 who had proceeded against those
accused while working under PW5 by filing false cases
against the accused. The Trial Court also noticed that
delay in recording the statement of P.W.2 cannot be easily
brushed aside. He was conscious through all the night F
and yet the statement was not recorded at the initial stage
by PW7. He became unconscious only at the time when
general anesthesia was given to him at 11.40 a.m. the
following day. The Trial Court noticed that there was .
absolutely no explanation with regard to the injuries G
suffered by the accused. This apart, all the witnesses
being interested witnesses, their evidence could not be
believed in the absence of independent corroboration.
Taking into consideration the entire facts and
circumstances of the case, it would not be possible to H
    530      SUPREME COURT REPORTS               [2010] 4 S.C.R.


A agree with the High Court that the findings recorded by
  the Trial Court were perverse or that only one conclusion
  consistent with the guilt of the accused was possible. The
  two views being reasonably possible the High Court
  ought not to have interfered with the verdict of acquittal
B recorded by the Trial Court. [Paras 50- 52:] [558-G-H; 559-
  A-B; 559-C-F]
                         Case Law Reference:
          (1979) 1 sec 79         relied on            Para 43
c         2001 (4) sec 415        relied on            Para 44
          (1973) 2 sec so8        relied on            Para 44
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 499 of 2002.
0
        From the Judgment & Order dated 18.12.2001 of the High
    Court of Kerala at Ernakuklam in Crl. A.No. 444 of 1998 (B).

                                WllH
E   Crl. A. Nos. 500-501 & 434 of 2002.

       Ranjeet Kumar, E.M.S. Anam, Syed Ahmad Saud, Mohd.
    Moonis Abbasi, Shakil Ahmed Syed for the Appellants.

F       C.S. Rajan, G. Prakash, Ramesh Babu M.R. (NP) for the
    Respondent.

          The Judgment of the Court was delivered by

       SURINDER SINGH NIJJAR, J. 1. These three appeals
G have been filed against a common judgment of the High Court
  whereby the six appellants in the three appeals have been
  convicted under Sections 302, 307, 149 and 34 of the Indian
  Penal Code (for short 'IPC' ); the sentence to life imprisonment
  for offences under Section 302 read with Section 149 or 34 of
H the IPC; rigorous imprisonment for five years under Section 307
      M.C. ALI AND ANR. v. STATE OF KERALA                531
            [SURINDER SINGH NIJJAR, J.]
read with Section 149 or 34 of the IPC; rigorous imprisonment    A
for six months each under Sections 143 and 148 of the IPC.

      2. Initially 13 persons including the six appellants had been
charge-sheeted in Kumbla Police Station, Crime No.22/1994
for offences punishable under Sections 143, 148, 324, 307 and B
302 of the IPC read with Section 149 of the IPC. Upon trial,
the six appellants had been convicted under Sections 143,
147, 148, 307 and 302 read with Section 149 of the IPC and
sentenced to life imprisonment together with various other
periods of imprisonment under different sections. The C
sentences were directed to run concurrently. Accused Nos. 7
to 13 were found not guilty and acquitted of all the charges. The
convicted accused filed Criminal Appeal No.391/96 before the
High Court of Kerala. At the same time, the acquittal of
accused Nos. 7 to 13 was challenged through revision by K.
Hussain (PW2) the son of Moosa Haji, PW5 (the injured D
witness), through Criminal Revision Petition No.1115/96.
Through a common judgment, the High Court was pleased to
accept the appeal filed by the convicts and their convictions as
well as their sentences were set aside. The case was
remanded to the Trial Court for fresh disposal after complying E
with the provisions under Section 233 of the Criminal Procedure
Code. Criminal Revision Petition No.1115/96 against acquittal
of accused Nos.7 to 13 was dismissed.

     3. On remand, accused Nos.1 to 6 appeared before the        F
Court on 9.1.1998. They were given an opportLmity to adduce
defence evidence. Consequently, they examined DW1 to DW5
and marked Exbts. 07 to 010. At the time of the remand, the
earlier Sessions Judge who had convicted accused Nos.1 to
6 had been transferred, therefore, the evidence was recorded     G
by his successor in office. On a reappraisal of the evidence
led by the parties, the Sessions Judge came to the conclusion
that the prosecution had failed to prove the offences alleged
against the accused. They were, therefore, all acquitted.
    4. These acquittals were challenged by the Sate of Kerala    H
    532      SUPREME COURT REPORTS                    [2010] 4 S.C.R.


A in Criminal Appeal No.444/98 and by P'N2, K. Hussain, in
  Criminal Revision No.552/98. The High Court, by a common
  judgment, came to the conclusion that the prosecution had
  conclusively proved the case against accused Nos. 1 to 6 and
  the findings recorded by the Sessions Judge were perverse
B and manifestly erroneous. Therefore, the judgment of the Trial
  Court was set aside. They have all been convicted for various
  offences, as noticed above.

      5. A9ainst the conviction and sentence, accused Nos.1
  and 4, namely, K. M. lddinkunhi and Andan have filed Criminal
C Appeal No.434/2002, accused Nos. 2 and 3, namely, M.C. Ali
  and Andunhi have filed Criminal Appeal No.499/2002 and
  accused Nos.5 and 6, namely, B.K. Bayan Kunhi and K.B.
  Abbas have filed Criminal Appeal Nos.500-501/2002.

D       6. We have heard the learned counsel for the parties.
    Before we consider the submissions made by the learned
    counsel, it would be appropriate at this stage to notice the case
    as presented by the prosecution.

E      7.     It is claimed by the prosecution that Moosa Haji,
  (PW5), his family and some of his close relatives are believers
  of Shemsia Thareequat sect in the Muslim community. They are
  the worshippers of Sun and followers of Sai Baba. They are
  not accepted by a large section of the Muslim community.
  Therefore, the local Jumaath had unleashed "a sort of an overt
F and covert attack on PW5 and other followers of Thareequat
  movement." This had created fights betwe·en the two groups
  of the locality which caused friction in the relationships, activities
  and life which ended up in a number of disputes including
  criminal cases. The majority in the Muslim community of the
G area had ex-communicated PW5 and other followers of
  Thareequat movement. It is further alleged by the prosecution
  that some of the religious scholars had even called upon the
  members of the Muslim community to annihilate the followers
  of the Thareequat movement on the belief that such actions
H would bring the reward from the Almighty. Such type of social
       M.C. ALI AND ANR. v. STATE OF KERALA                  533
             [SURINDER SINGH NIJJAR, J.]

 boycotting had put PW5 and other followers in a situation of       A
not even getting employees to work in the agricultural fields and
also for other work. This had compelled them to bring the
workers from other areas. PW1, Chandrasekhara, was thus
brought by PW5 from Ubradka, Mittur, Karnataka State and
deceased Faizal from Manjeri. Because of the threat· of other       B
people of the Jumaath both PW1 and deceased Faizal were
residing in the house of PW5. PW1 Chandrasekhara belonged
to Scheduled Caste.

      8. On 30.1.1994, PW5 Moosa Haji and his son PW2               C
  Hussain returned at about 8 p.m. to their home. They came to
 know that the child of CW9, Mammunhi Haji, the brother of
 PW5, had met with an accident and suffered some injuries. On
 receipt of this information, PW5 asked PW2 to go to the house
 of CW9 and enquire about the details. Because of the tension
 prevailing in the locality between the two groups of Muslim        D
 community, PW5 asked PW1 and the deceased Faizal to
 accompany PW2 to the house of CW9. Thus all the three
 proceeded to the house of CW9, at about 9.15 p.m. There
 were two ways to reach the house of CW9 from the house of
 PW5. Both were through the paddy fields, one on the higher         E
 level and the other on the lower level. They had proceeded
 along the path way leading through the higher level. When they
 reached the Thrikkandam paddy field of one Kunhamu Haji,
they proceeded westwards to reach the house of CW9. The
paddy field was free of paddy as the harvest was over. They         F
walked through the bund of the fields. All three of them had
torches in their hands. While thus proceeding, they found a
group of about 15 persons standing on the north-western end
of the paddy field. While they were proceeding westwards the
group of 15 moved towards eastwards along the same bund.            G
The group also had torches in their hands and they had flashed
the torches on PWS, 1, 2 and Faizal who also flashed back
their torches. In this light PW1 identified A 1 to A6 as he knew
them by name. A7 to A13 were also present in the group whom
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    534     SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A   PW1 could identify, but did not know their names at that time.
    PW2 knew A1 to A13.

          9. When both the groups thus reached at the paddy field,
    the accused suddenly attacked PWs 1, 2 and Faizal. A 1 had
    M01 weapon in his possession and A2 to A6 were in
8
    possession of knives. A? to A 13 were in possession of sticks
    like M02. A 1 to A4, with the weapons in their hands, inflicted
    cuts on the neck of Faizal. When PW2 intervened, A 1, A3, A5
    and A6 attacked PW2 with weapons in their possession.
C   Because of the severity of the injury suffered by Faizal, he fell
    down. A 1 to A6 had again attacked Faizal who was lying down
    by inflicting cut injuries on his body. The othe~r accused had
    beaten Faizal and PW2 with sticks. The accused were
    shouting to do away with PW2 and Faizal. To save his life, PW1,
    i.e., Chandrasekhara jumped from the higher level of the ridge
D   to the lower level and took shelter in the house of CW9
    Mammunhi Haji. PW2 Hussain, who also suffered injuries, rari
    for his life and reached the house of CW9. As Faizal did not
    reach the house of CW 9 Mammunhi Haji, PW 1 along with a
    son of CW 9 went to the scene of occurrence! and saw that
E   Faizal was lying dead in the paddy field.

       10. PW 5 Moosa Haji heard a lot of noise from the side
  of the paddy field. He sensed something bad must have
  happened, as his son and employees had gone in that
F direction. Therefore, becoming restless, he procHeded towards
  the direction from where the noise originated. He ran towards
  the west of his house and as he reached the path to the mosque
  on the north direction, he saw some persons entering that
  pathway from the paddy field in the west. Some people had
G already gone towards north. On reaching nearer, he identified
  accused 1 to 4, 7, 9 and 11 to 13. All of them possessed
  weapons like knife or sticks. PW 5 Moosa Haji emquired as to
  what happened to which A 7 replied that they had killed two
  persons. Suddenly A 13 gave a cut to PW 5 with a sharp edged
H knife-like weapon. While warding off the same, PW 5, fearing
      M.C. ALI AND ANR. v. STATE OF KERALA                 535
            [SURINDER SINGH NIJJAR, J.]
further attack, ran towards his house. He locked the door and     A
remained inside. His attempts to contact CW 9 Mammunhi Haji
over the telephone were not successful.

     11. PW7, the then Sub-Inspector, Kumbla Police Station,
received information at 9:50 pm on 30.1.1994 over telephone
                                                                  8
that some incident had taken place at Ujar Ulwar village
resulting in the death of one person. The informant did not
disclose his identity. PW7 entered this information in general
diary (Ex. P9). He then proceeded to the place of occurrence
with whatever force he had in the police station.
                                                                  c
     12. On reaching the place of occurrence, after making
inquiries near the local mosque, he was able to trace out the
house. of PW5, who was inside the house. He (PW5) narrated
what had happened to the Sub-Inspector and took the police
party along the pathway to the house of his brother, CW9. At      D
the house of CW9, they saw PW2 who had sustained injuries.
At that time they learnt that Faizal had been murdered. The
Sub-Inspector (PW7) immediately made arrangements to take
PW2 and PW5 to the hospital in the police jeep.
                                                                  E
     13. First lnformat1on Statement was taken from PW1 by
PW7 in the house of CW9. Since Police jeep was sent with
PW2 and PW5 to the hospital, he sent a constable to Kumbla
Police Station. The Head Constable (PW8) on general diary
charge (GD charge) duty, registered the FIR at 00.30 hours on
31.1.1994. On that day morning itself it was sent to the
                                                                  F
Magistrate and the Magistrate signed it on the same day at 3.30
p.m. According to the prosecution, Circle Inspector, Kumbla
Police Station (PW9) who was at Kasargod on law and order
duty in connection with the meeting of the Muslim League,
received wireless information that two groups had clashed at      G
Ujar Ulwar village. He, therefore, rushed to the village with
police party where he met PW7. Both of them made
arrangement for maintaining law and order. They also posted
guards at the scene of occurrence during the night. The injured
witnesses PW2 and PW5, who were traveling in the police jeep,     H
   536     SUPREME COURT REPORTS               [2010) 4 S.C.R.


A reached Bayikatta. From there they got into the car of their
  relative as the jeep had to be returned to the Sub-Inspector
  PW7. At that stage, PWS remembered that he had forgotten
  to take any money. They, therefore, went to the house of one
  Mohan Karnath, a friend of PWS, who also accompanied them
B to the City Hospital Research and Dia1inostic Centre at
  Mangalore.

       14. When the first accused was questioned, he made a
  confessional statement to PW9 about the plaice of concealment
  of M01, weapon of offence. A 1, after recording the statement,
C took PW9 to the ditch with thick grass on t11e eastern side of
  the paddy fields where tile occurrence took place. He took out
  knife (M01) from the place where it had bee11 concealed. This
  was duly sealed by PW9 under Ex.PS seizure mahazar on
  3.2.1994. The seizure mahazar is attested by PW6. The
D accused were produced before the Magistrate Court and
  remanded in custody. The M01 was thErn forwarded for
  chemical examination. The report of the chemical analysis
  Ex.P21 shows there was human blood on M02 series, the
  sticks. There was no blood on M01, 6 and 9.
E
       15. Dr. S. Adhyanth PW3, the duty medical officer,
  examined PW2 and PWS. He issued the wound certificate
  (P4) in respect of PW2 and admitted him for treatment. He
  was discharged on 7.2.1994. The same doctor also issued
F the wound certificate (PS) on examination of PWS who was
  treated as an outpatient. The doctor PW3 sent intimation
  Exbs.P6 and P13 to the police regarding the admission of PW2
  and treatment of PW5. Further investigation was conducted
  by PW9 from 31.1.94. He conducted the inquest on the dead
G body of Faizal. He also seized material objects (MOs 2 to 9)
  and prepared Ex.P14 report. A knife (MOt3) covered with
  newspaper (M09) was found kept at the back of waist of the
  deceased. During the inquest PW9 got the photographs of the
  dead body and the scene of occurrence which is marked at
  Ex.P2 (series). Ex.P2 (A) shows that M06 was on the waist of
H
      M.C. ALI AND ANR. v. STATE OF KERALA                 537
            [SURINDER SINGH NIJJAR, J.]
the deceased. The photos and the negatives were seized under      A
Ex.P17 seizure mahazar, when produced by the photographer.
PW9 also drew up Ex.P.15 scene mahazar. In Ex.P1, PW1
mentioned only the names of accused A 1 to A6. But he stated
several more accused were there whose names were not
given. But according to him, he could identify them. After        B
questioning PW2 and PW5, names of other accused were
included.

      16. Dead body of Faizal was sent for post mortem and
PW3 received the post mortem certificate (Ex.P3) from the then    C
doctor of Community Health Centre, Kasargod. The post
 mortem certificate was marked by consent of both sides under
 Section 294 of the Criminal Procedure Code. In the First
 Information Statement (Ex.P1), PW1 Chandrasekhara had
stated the names of accused 1 to 6. He also stated that there
were 7 more accused whose names were not known to him             D
but he could identify them on sight. PW2, according to the
prosecution, was under general anesthesia for suturing   of the
wounds and, therefore, could not be questioned immediately.
However, he was questioned by PW9 on 3.2.1994 in the City
Hospital. Thereafter PW9 filed report (array of accused) P.16     E
in Court on 3.2.1994 including the names of accused 7 to 12.
PW5 was questioned by the investigating officer, PW9. On
4.2.1994 on the basis of his statement name of 13th accused
was added. Accused Nos. 1 and 3 to 6 surrendered before
the investigating officer in his office on 3.2.1994. They were    F
duly arrested. Accused Nos.AS to 12 were arrested between
29.4.1994 and 30.4.1994.

     17. At the same time, A2 to A7 also claim to have suffered
some injuries on the night of 30.1.1994. They went to Unity       G
Health Complex at Mangalore on 31.1.1994, where they were
admitted and treated as in-patient. Exs. P23 and P24 are the
treatment particulars whereas Exbs.P25 and P26 are the case
sheets respectively of the accused. PW10 and DW1 had
treated them during this period. They were discharged on
                                                                  H
    538     SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A 23.3.1994 on which date PW9 arrested them. A 13 was
  absconding but later appeared before the Magistrate Court.

         18. While at the Unity Health Complex, a statement was
    given by M.C. Ali (A2), which was recorded by the Kadari Police
    Station as the First Information Statement (Ex.P22). In this he
8
    claimed that on 30.1.1994, he and his neighbour Abdul
    Rahiman were returning from Kasargod at 9.30 p.m. after
    attending a Muslim League meeting. Whein they reached a
    place called Trikkandam through Kunjamu Haji's field at 10.15
    p.m., they found Mammunhi Haji's son Hussain, his brother
C   Abdul Khader, Moosa Haji, his son Hussain, his brother-in-law
    Jamal Bayikkatta coming from the opposite direction. The
    complainant also stated that these people had enmity with them
    and thus they blocked them and told "we will not leave anybody''.
    Mammunhi Haji's son and Jamal inflicted injurl1es on his left hand
D   shoulder and armpit. When Abdul Rahimain came to block,
    Moosa Haji and his son inflicted injuries on his right hand and
    the wounds started bleeding. At that time complainant fell down
    and he was beaten up on his right leg and lei~ side of the head
    with a stick and as a result of which he became unconscious.
E   He has also stated in his complaint that t1here was a case
    pending regarding the issue of a mosque betNeen him and the
    accused and thus the accused had caused injuries to them with
    sword-like knife, sticks, etc. On the basis of the aforesaid
    statement, Crime No. 67/94, transfer FIR            (Ex.P11) for
F   offences under Sections 143, 147, 148, 324, 341, 506 read
    with 149 IPC was registered. The same was later on
    transferred to Kumbla Police Station, where 1=>W8 registered it
    as Ex.P12 of Kumbla Police Station. PW9 also conducted the
    investigation of FIR (Ex.P12). On completion of the
G   investigation charges were filed against five accused persons
    including PW2 and PW5.

         19. On committal this case was numbered as SC No.66/
    95 against the 13 accused. The case against 5 accused,
    registered on the basis of FIR Ex.P12, was numbered as SC
H
      M.C. ALI AND ANR. v. STATE OF KERALA                     539
            [SURINDER SINGH NIJJAR, J.]
111/95. The trial of both the cases was taken up simultaneously       A
one after the other and judgment in both the sessions cases
was pronounced on the same day. We have noticed above
that after trial accused 1 to 6 were convicted in SC No.66/95.

    20. On remand, the accused had examined DWs 1 to 5.
                                                                      8
The Trial Court takes note of the post mortem report of the dead
body. It was marked as Ex.P3 by consent of both the sides.
The report indicates the following external and internal injuries:

          "Entire body of an adult male lying supine. Rigor
    mortis present in both upper & Lower limbs. Bleeding from         C
    both nostrils present.

    External injuries:- Incised wound on the face transversely
    placed extending from the center of upper lip to Lt. Ch~ek
     14 x 3 x 3 c.m. exposing the oral cavity cutting the full 0
    thickness of facial muscles. 2) Incised wound on the Lt.
    Cheek below the Lt. Eye transversely placed 6 x 1 c.m.
    skin deep. 3) Incised wound on the lower part of chin
    transversely placed 10 x 6 c.m. flap of skin &
    subcutaneous tissue raised exposing the lower part of E
    mandible. 4) Incised wound on the Right side of neck
    transversely placed 12 x 5 x 6 c.m. cutting the muscles of
    neck on Right side with carotid artery and jugular veins and
    trachea being cut.

    Incised wound on the inner aspect of left ankle region            F
    transversely placed 6 x 1 x1 c.m. cutting the lower end of
    tibia. 6) Incised wound 1 c.m. above injury No.5
    transversely placed 4 x 1 c.m. skin deep. 7) Incised wound
    on the front of right leg transversely placed 5 x2 c.m. cutting
    the tibia which is fractured. 8) Incised wound on the front       G
    or right leg 6 c.m. above injury No.7, 4 x 5 c.m. skin deep.
    9) Incised wound on the dorsum of right second toe 5 x
    0.5 x 1 c.m. along the long axis of the toe cutting the
    tendons and bone. 10) Linear abrasion obliquely placed
    on the front of right thigh 6 c.m. long. 11) Linear abrasion      H
    540          SUPREME COURT REPORTS               [2010] 4 S.C.R.


A         obliquely placed on the front of left thigh !5 c.m. long. 12)
          Linear abrasion transversely placed on the front of left
          shoulder 3 c.m. long. 13) Incised wound on the right side
          of scalp running anterior posterior 6 x 1 c.rn. exposing the
          skull.
B
          Internal Examination :- Thoracic cage intact. Heart &
          Lungs intact. Plae stomach, contains partly digested food
          materials. Liver, spleen and kidneys plae. Urinary bladder
          contains 150 c.c. of Urine, skull intact, Brain and meninges
          pale".
c
        21. The opinion as to the cause of death of Faizal given
  in Ex.P3 is that "the deceased dies due to hemorrhage and
  shock due to injuries to major vessels of neck". During the
  hearing neither the prosecution nor the defence has challenged
D the finding and the opinion contained in Ex.P3. Therefore it was
  accepted by the Trial Court that Faizal died due to hemorrhage
  and shock suffered by him because of the injurie:s on the major
  vessels of the neck.

E       22. We may also notice here that the injuries noted in the
    wound certificate (Ex.P4) issued to PW2 on examination by the
    doctor PW3. PW2 was examined at 1.15 am on 31.1.1994.
    The certificate indicates the following injuries:

           "1.    L shaped incised wound on the pariotalaspect of
F                 the skull 5 x 6 c.ms;

           2.     Two small incised wounds on the right      parietal
                  region of the skull;

           3.     Incised wound over the nose 2 cm x ·1 cm;
G
           4.     Swelling and deformity over the lower end of left
                  hand. X-ray of the left hand showed c:omminuted
                  fracture ofright ulna lower   end."

H         23. As noticed earlier, he was admitted on 31.1.94 and
       M.C. ALI AND ANR. v. STATE OF KERALA                     541
             [SURINDER SINGH NIJJAR, J.]
discharged on 7.2.94. The injury No.4 was grievous while the            A
other injuries were simple. The doctor also noticed that the
history was of alleged assault by known persons at Ulwar,
Kumbla at 10.15 pm on 30.1.1994. PW5, who was examined
by doctor PW3 at 1.25 am on 31.1.1994, was also issued
wound certificate Ex.P5. As per Ex.P5 statement following               B
injuries were suffered by PW5:

      "1.   Incised wound over the first web space of the left
            hand with partial tear of the flexor tendons ( 1" x Yi")'

      2.    Incised wound on the base of the leftthumb 3/4 "x           C
            Y4".
      24. Doctor also opined that injury No.1 in respect of PW5
 was grievous in nature. PW3 sent intimation Ex.PS to the
 police. As per the intimation report P6, RMO had come to the           D
 hospital. On the basis of Ex.PG, it has been noticed that PW2
 was taken to the operation theatre for suturing and closed
 reduction under general anesthesia was done. The report also
 shows that at 11.40 am on 31.1.1994 the patient was not in a
 position to give a statement. The Trial Court notices that after       E
 remand the defence had examined DW1 to DW5 and marked
Exs. D7 to D10, the prosecution had marked Ex. P25 (a-g).
Thus the total evidence in this case was PW1 to 10 and Exts
P1 to P26 series together with M01 to 9 for the prosecution
and DW1 to 5 and Exts.01 to D10 for the defence. The Trial
                                                                        F
Court, after hearing submissions from the prosecution as also
the defence, formulated the following points for consideration:

      "1.   What was the cause of death of Faizal?

      2.    Whether the accused 1 to 6 along withothers had             G
            formed themselves in to anunlawful assembly and
            acted, infurtherance of their common object, as
            alleged against them by the prosecution?

      3.    What offence, if any, is proved against the
            accused 1 to 6?                                             H
    542        SUPREME COURT REPORTS             [2010] 4 S.C.R.


A         4.     Regarding sentence?"

        25. As noticed earlier, the post mortem report has been
  accepted by both the sides, according to which Faizal died due
  to hemorrhage and shock suffered by him because of the
  injuries on the major vessels of neck. Whil'e discussing points
8
  No.2 and 3, the Trial Court notices that PW1 is a native of
  Mittur, in State of Karnataka and has been living in the house
  of PW5 as a worker under him for the last about 10 years. He
  had gone with PW2, and the deceased Faizal to the house of
  CW9 at about 9.15 pm on 30.1.1994. It is alleged by the
C prosecution that the occurrence took place1, whilst they were
  enroute to the house of CW9. PW1 has supported the
  prosecution version. It was he who gave Ex.P1 FIS to PW?
  on the basis of which crime against A 1 to A6 was registered
  at Kumbla Police Station. The Trial Court then notices the
D sequence of events as narrated earlier. Prosecution mainly
  relied on the evidence of PW1, 2 and 5 in support of its version.

       26. The Trial Court noticed the entire sequence of events,
  narrated above. It also noticed the defenco version. It was
E noticed that the learned counsel appearing for the accused had
  pointed out that there was delay in sending Ex.P1 and P10 to
  the Court; PW1 was probably not present at the scene of the
  incident; the injuries sustained by A2 and A7 were not
  explained by the prosecution and the registra:tion of a counter
F case by A2 would be sufficient to show that it was the PWs who
  were the offenders.

        27. The Trial Court further notices that the local Muslim
  community who are in majority have a long standing enmity with
  PW5, his family and other close relatives. The religious
G scholars had even called upon their followers to do away with
  the believers of Shemsia Thareequat sect of the Muslim
  community. Their life and movement had been made
  impossible in the locality. The majority of the Muslim community
  was encouraged to disrupt the life of the family of PW5 and his
H relatives. They had been boycotted and were not allowed to
       M.C. ALI AND ANR. v. STATE OF KERALA                   543
             [SURINDER SINGH NIJJAR, J.]
socialize with the local Jumaath. The Trial Court also notices        A
the prosecution version that on 30.1.1994 at about 8 pm, PW5
and his son PW2 returned to the house. They were informed
that CW9, brother of PW5, who was residing at some distance
from the house of PW5 had telephoned to inform that his son
had sustained some injuries because of a fall. Therefore PW5          B
had asked PW1 and deceased Faizal to go along with PW2
to the house of CW9. PW1 and Faizal had been asked to go
along with PW2 due to the peculiar situation existing in the
locality against PW5 and his family. At about 9.15 P .M. they
proceeded to the house of CW9 Mammunhi Haji.                          c
      28. In appreciating the evidence with regard to the alleged
 occurrence, the Trial Court notices the background of both PW1
 and deceased Faizal with regard to their relationship with PW5
 Moosa Haji. It is noticed that PW1, who belongs to a schedule
caste community, had been working for PW5.for the last 10             D
years. At the time of the occurrence he was allegedly residing
in the house of PW5.    He   admits that his native place is Mittur
 Sullia in the State of Karnataka. Faizal was also working under
PW5 and he is the native of Manjeri, Malappuram District. He
 had also been brought by PW5 for employment as he was                E
unable to find any local workers. The Trial Court notices that
according to both PW1 and PW2 they had taken the shortest
route through the paddy field to the house of CW9. All of them
had torches in their hands. Whilst they were going they found
a group of 15 people standing together about 50 meters away           F
from them. At that time they were passing through the pathway
near the house of A4. They did not suspect anything when they
had moved forward for another 10.5 meters. One of the
individuals from the crowd flashed the torch light at them. Other
members of the crowd flashed their torch lights on the ground.        G
By that time the distance between the deceased PW1 and
PW2 and the other group was about 5 meters. All three of them
also flashed back their torch lights. PW1 and PW2 were
walking with Faizal in the front, in the torch light. Suddenly they
cut Faizal on his neck causing injuries. PW2 intervened. Then         H
   544      SUPREME COURT REPORTS                [2010] 4 S.C.R.


A A2, A3 and AS and A6 caused injuries with their weapons on
  the hands, head, face and other parts of the body of PW2 by
  cutting with the weapons. Faizal fell down and PW1 ran away
  from the scene. PW1 stated that after s13eing that PW2 and
  Faizal were injured, he ran for safety to the house of CW9. The
B door of the house was closed as they were afraid of further
  attacks. Since Faizal did not reach the house of CW9, PW1
  and son of CW9 went to the place of occurrence. They saw that
  Faizal was lying dead in the paddy field. Both of them returned
  to the house of CW9 and reported the matter. PW? then got
c the information over the telephone as narrated earlier. He came
  to the place of occurrence, and went to the house of PW5. He
  had also sustained injuries in the same incident, after Faizal
  had been killed and PW2 had been injured. PW5 then took the
  police party to the house of CW9 by the same route which had
  been taken by PW1, PW2 and Faizal. Statement made by PW
0
  1 was recorded as First Information Statement by PW 7 which
  is produced as Ex. P1. This was sent to PW8 who recorded
  the FIR. The FIR according to PW? was recorded at 00.30 hrs
  on 31.1.1994. It was received by the Judicial Magistrate, 1st
  Class, Kasargod at 3.30 pm on 31.1.1994. The Trial Court
E notices the submissions of the defence that this gap of 15 hrs
  clearly shows that PW1 was not present in the house of CW9
  when PW? went to that house. In fact, no First Information
  Statement was recorded by PW? at that place. According to
  the defence Ex.P10 FIR was registered much later. This gap
F has given an opportunity for the prosecution to manipulate the
  case and book innocent persons who were thought to be
  inimical with PW5 and his family.

       29. Analyzing the aforesaid submissions of the defence,
G the Trial Court notices that Ex.P10 FIR. W3$ received by
  Kasargod Magistrate at 3.30 pm on 31. f.94. The distance
  from Kumbla Police Station to Kasargod is less than 15
  kilometers. They had a duty police constable who comes to
  the court to attend the day's cases at Kurnbla Police Station.
H Therefore, there was no difficulty for the Kumbla Police Station
      M.C. ALI AND ANR. v. STATE OF KERALA                    545
            [SURINDER SINGH NIJJAR, J.]
 authority to send Ex.P10 and Ex.P1 along with police constable      A
 so that they will be received at least by the office of the
 Magistrate if not the Magistrate himself before 11 am on that
day. The Trial Court scrutinizes the effect of late receipt of the
FIR by the Court very closely. The prosecution had submitted
that the delay in receiving Ex.P10 FIR was not fatal to the          B
 prosecution case as it did not prejudice the accused and it was
 not introduced to make any improvements or distort the version
 of the occurrence. After appreciating the aforesaid legal
position the Trial Court notices that since it is the case of the
prosecution that PW1 had run away from the place of                  c
occurrence after witnessing the assault, the action of PW1 and
the evidence of the prosecution needs close scrutiny. Therefore
late receipt of Ex.P10 and P1 assumes importance. The Trial
Court then notices that it is recorded in the inquest report
Ex.P14 that the inquest on the .dead body of Faizal was              0
conducted on 31.1.1994. The inquest commenced at 10 a.m.
and was completed at 12.30 p.m. The query at Sl.No.12 (a) of
the prescribed form is to be filled by PW9 under Section 174
Criminal Procedure Code. The query is "while conducting
inquest is any person suspected who and why". In answer to           E
this Ex.P.14, PW9 recorded that "accused are known". The
Trial Court also notices that P.W.9 did not record who the
accused are and why they are suspected.

      30. The Trial Court agrees with the suggestions made by
the defence that Ex. P.14 was perhaps prepared prior to Ex. P.1.     F
Vague answer was given to Question 12 (a) of Ex.14, so that
other persons could be added as the accused. Therefore, it
has been held that Ex.P1 has not been registered as alleged
by P.W.7. Another suspicious circumstance was that PW1 had
deposed that Ex.P1 was recorded by himself. But in cross             G
examination, he conceded that Ex.P1 was not in his own hand
writing and is in that of some other person's hand writing. The
Trial Court, therefore, holds that Ex.P1 was not recorded as
alleged by the prosecution at the place and time recorded both
in Ex.P1 as well as in Ex.P10. The Trial Court also notices that     H
    546     SUPREME COURT REPORTS                [2010] 4 S.C.R.


A when PW1 appeared as DW5 after the remand, he depose9
  that he had been working for PW5 for th13 last 10 years. He
  also deposed that he would do whatever PW5 asked him to
  do. However, since the witness had clarified in the re-
  examination that he did not understand the question, the Trial
B Court ignored the earlier statement.

        31. The Trial Court then examines the sequence by which
  the names of accused No.7 to 12 have been incorporated. The
  Trial Court takes not~ of the fact that both the parties claim to
  have recognized each other in torch light. After analyzing the
C evidence with regard to the assault, the Trial Court notices that
  there is no reason as to why the attackers would allow PW1 to
  escape. After all they were fifteen persons in a group and had
  every intention to kill the three members of the opposite group
  approaching them. The Trial Court also concludes that
D behaviour of PW1, PW2 and Faizal to continue· walking
  towards the other group even though they were carrying
  weapons in their hands would not be consistent with normal
  human conduct. The normal instinct would have been either to
  retaliate or to run away from the scene. On the basis of the
E above the Trial Court had formed an opinion that the
  prosecution had not placed before the Court the exact situation
  under which the attack had really occurred. This would put a
  cloud of suspicion over the presence of PV\11 at the scene of
  the crime. In case PW1 was present, he ought to have identified
F the accused with their respective weapons. If he had fled the
  scene, he could not have given all the graphic details of the
  assault, in the FIS, as recorded in the house of CW9. For this
  reason perhaps PW9 was not in a position to reply to the
  prescribed query at Sl.12A under Section 174, Criminal
G Procedure Code while conducting the inquest.

       32. The Trial Court pointed out numerous other infirmities
  in the prosecution case. It is noticed that PW1 was such a
  dedicated worker of PW5. He had even made a false
H complaint against three of the accused under Section 3(1)(X)
       M.C. ALI AND ANR. v. STATE OF KERALA                 547
             [SURINDER SINGH NIJJAR, J.]

of the Scheduled Castes and Scheduled Tribes (Prevention of         A
Atrocities) Act, 1989 and under Section 506(2) read with
Section 34 IPC. All the accused were acquitted as the
prosecution version was disbelieved. The Trial Court also
refers to another judgment Ex.08 in case No.98/1995 delivered
on 30.5.1996 in which four accused were proceeded against           B
by PW1 under Sections 341, 323, 324 IPC read with 34 IPC
and Section 310 of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. In this also the Court
observed that it is not safe to accept an~ to act upon the
evidence of PW1, therefore the accused were acquitted. The          c
Trial Court, therefore, notices that PW1 is not a believable
witness. He is a sincere employee of PW5. In view of his past
conduct the locals probably had more hatred towards PW1 than
Faizal. Therefore it becomes more suspicious that Faizal gets
killed while PW1 is left uninjured by the same group.               D

       33. Moving on to the evidence of PW2, who was admitted
 and treated in the city hospital Bangalore at 1.15 AM. on
 31.1.1994, the Trial Court takes note of the wound certificate
 issued by PW3. PW3 stated that till PW2 was taken to the
 operation theatre, he was in a position to speak. It is further    E
stated by this witness that the effect of general anesthesia may
 last for two and a half hours and thereafter the patient will be
normal. According to the endorsement made on Ex.P6 by Dr.
Geeta Rao the then RMO, PW2 had been taken for suturing
and closed reduction under general anesthesia at 11.40 am on        F
31.1.1994. PW2 was not questioned until 3.2.1994. He was
able to speak till he was taken for suturing at 11.40 on
31.1.1994. Although PW2 was present in the house of CW9,
PW7 did not record any statement from him. Since PW2 was
the injured witness he would have surely given a true version.      G
He was present at the scene of occurrence. He had faced the
attackers whereas PW1 had fled the scene on seeing the
assailants. The prosecution had totally failed to explain as to
why PW2 was not questioned till 3.2.1994. The explanation
given by prosecution that PW2 was not in a position to speak        H
    S48      SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A   is belied by the statement of PW3 together with the
    endorsement as well as the recorded content in Ex.P4. From
    the above also the Trial Court formed an opinion that the
    prosecution is not placing the whole truth before the Court.

          34. The Trial Court then critically examined the evidence
8
     of PWS, father of PW2. PW3 had also treated PWS and given
    wound certificate Ex.PS. It is noticed that PW9 did not question
     PWS till 4.2.94. It was after questioning PWS that A 13 was
    added to the earlier accused and then no explanation was
    available as to why PWS was not questioned till 4.2.94. The
C   only explanation given by the prosecution is that he was not
    available for interrogation. Rejecting the aforesaid explanation
    the Trial Court concluded that PW9 deliberately delayed
    recording the statement of PWS to implicate other innocent
    persons. At this stage, the prosecution had argued that the
D   statements of PW2 and PWS cannot be discarded only on the
    ground that they are interested witnesses. The principle of law
    is accepted by the Trial Court. Therefore, the evidence of these
    witnesses was very carefully scrutinized. The Trial Court notices
    that there is absolutely no independent evidence in this case
E   to corroborate the evidence of these interested witnesses.
    Neither the immediate neighbours nor any of the people living
    in the vicinity have been examined. The explanation given by
    the prosecution is that due to enmity towards PWS and his
    family none has come forward to give the evidence. The Trial
F   Court, therefore, observes that in such circumstances the
    evidence of PW1 and PW2 had to be carefully examined to rule
    out any inherent inconsistencies. The Trial Court further notices
    that there is no independent evidence with regard to the injuries
    caused to PW2 by A2, A3, AS and A6. If these four persons
G   had actually attacked PW2, he would have suffered many more
    grievous injuries. The only grievous injury suffered by him was
    fracture of ulna lower and other injuries were simple in nature.
    PW2 at that time had run away. Faizal after suffering fatal
    injuries had fallen down. Again there is no corroboration from
H   any independent witness.
                                 ?




      M.C. ALI AND ANR. v. STATE OF KERALA                     549
            [SURINDER SINGH NIJJAR, J.]

     35. To make the matter even worse, A2 and A7 had                A
suffered a number of injuries. PW10 had deposed that A2 had
suffered the following injuries:

      "(1)   incised wound right shoulder 2" in length

      (2)    incised wound left side of chest 1%" in length,         B

      (3)    incised wound left elbow 3" in length,

      (4)    incised wound left forearm 3" in length and

      (5)    fracture of lateral condyle of left humerus."           c
      36. According to PW10 injury No.5 is a grievous injury.
Similarly, injuries in respect of A7 were given in Ex.P24. This
also shows that he had sustained an incised wound 2% inches
long over the left forearm with tendons divided. This injury is      D·
grievous in nature. As noticed earlier, this assault had resulted
 in the registration of transfer FIR in Crime No.67 of 1994 which
was subsequently transferred and registered as FIR Ex.P12 at
 Kumbla Police Station. There is no explanation offered of the
injuries. The Trial Court notices that in this case PW9 had          E
concluded after the investigation that both the cases are true.
But none of the prosecution witnesses PW1, PW2 and PW5
speak about the manner and the circumstances under which
A2 to A7 had sustained injuries. Therefore, this also leads to
the conclusion that the prosecution story as put through PW1,
                                                                     F
2, and 5 is not correct.

     37. The defence has also pointed out that the investigating
team did not even care 'to collect blood stained earth from the
scene of the occurrence. There was no moonlight on
30.1.1994. The torches allegedly possessed by Faizal, PW1            G
and PW2 at the time of the occurrence were not recovered. In
spite of the availability of son of CW9 and CW9 himself, they
were examined as witnesses. The Trial Court, however,
observed that "these small issues were, however, not
considered to materially effect the case as put forward by the       H
    550     SUPREME COURT REPORTS                    [2010] 4 S.C.R.


A prosecution either in favour of the prosecution or in favour of
  the defence." However, otherwise on independent assessment
  of the evidence the Trial Court concluded that there was no
  evidence to connect accused with the crime.

          38. The High Court in the impugned judgment has narrated
8
    the entire sequence of events as recapitulated by us above.
    The High Court also noticed briefly the reasons given by the
    Trial Court for not believing the prosecution story. It is observed
    that there is no delay in recording the F.1. Statement. According
C   to the High Court, there is no circumstance to doubt that Ex.P .1
    was not recorded at the time and place of the incident. There
    is no reason for PW7, the Sub-Inspector or PW9, the
    Investigating Officer, to make any false case. The High Court
    also concluded that it was unlikely that P.W.9, the Investigating
    Officer, and P.W.8 who had registered the FIR being Muslims,
D   would concoct the story against the accused who were also
    Muslims. It was unlikely that they would have supported PW5
    and his family who had leniency towards BJP. The High Court
    also concluded that there was no delay in forwarding the FIR
    to the Magistrate. Ex. P10 FIR was registered at 00.30 hrs on
E   31.1.1994. Ex P9 shows that there was only PW 8, Head
    Constable and another constable in the police station at that
    time. Other Police personnel were on law and· order duty.
    Ex.P.10 was sent to the Court through a Constable PC 450 at
    8 a.m. on 31.1.1994. If the Magistrate noted his initial only at 3
F   p.m. the prosecution cannot be faulted. Even if there is delay,
    it has been clearly explained. Mere delay in receipt of
    occurrence report by itself does not make the investigation
    tainted. The High Court also observed that on getting telephonic
    information, after entering the same in the G.D., the police party
G   rushed to the spot. On reaching the spot without any delay, F.I.
    Statement was recorded. There was no delay in starting the
    investigation. Injured were sent to the hospital in the police jeep
    itself. Law and order situation was tense. Ex. P.1 was recorded
    at the house of C.W.9 at 11.45 p.m. and the FIR was registered
H   at 00:30 hours on 31.1.1994. With regard to the non-
      M.C. ALI AND ANR. v. STATE OF KERALA                    551
            [SURINDER SINGH NIJJAR, J.]
 mentioning of the accused in the column provided under               A
 Sl.No.12 (a) of the inquest report (Ex.P.14), it is noted that the
 names of the accused are mentioned at the column where it is
 provided that "any person was questioned and whether
statement was recorded from any person and their statement."
The High Court accepted the fact that the statement was               B
 recorded from C.W.9 who had not seen the incident. The eye
witnesses PW1, PW2 and PW5 were not present when the
 inquest report was prepared. That is why in column 12(a), it was
 recorded that "accused are known". Their names were actually
mentioned at column No.13 in Ex.P .14. The High Court also            c
observed that non-examination of C.W.9 is not fatal. The High
Court also makes the observation that the object of preparing
the inquest report is only to draw a report of the apparent cause
of death describing the wounds found on the body of the
deceased and stating in what manner and by what weapon or
                                                                      0
 instrument such injuries were inflicted. It is neither necessary
 nor obligatory on the part of the investigating officer to
 investigate into or ascertain who were the persons responsible
for the death. Since the names of the accused have been
 mentioned in column No.13 it would not, in any manner, weaken        E
the prosecution case. The High Court also negatived the
 reasoning of the Trial Court as to why the FIS was not recorded
on the basis of the information given by P.W.1 rather than
P.W.2 who was injured. According to the High Court, there is
no rule or mandate under Section 154 of the Code of Criminal
Procedure that F.I. Statement should be recorded only from an         F
eye witness. The High Court reiterated that the police reached
the trouble spot on receiving information by telephone. They
went to the house of PW5 hearing that some incident had
taken place near his house. PW5 then took them to the house
of C.W.9. There they saw PW1 and PW2. The High Court also             G
notices that when P. W .1 saw that the deceased fell down and
PW 2 injured, he then escaped to the house of C.W.9. Since
he had seen the persons who had attacked the deceased, he
identified at least A 1 to A6 with their names. It is noticed by
the High Court that PW2 was seriously injured. His presence           H
    552     SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A was also not doubted. He was made an accused in the counter
  case. The High Court noticed that although PW2 was injured,
  he was not unconscious. According to the wound certificate,
  Ex.P4 on 31.1.1994 at 11.40 a.m. he was not in a position to
  give a statement. At the time the anxiety of the police was to
B send the injured for treatment, therefore, the names of the
  accused were subsequently disclosed by PW2. The High Court
  then considered the conduct of PW1 in filing complaints under
  the Scheduled Castes and Scheduled Tribes (Prevention of
  Atrocities) Act, 1989. It is, however, observed that the evidence
c of PW1 cannot be ignored on the ground that he was a loyal
  servant of PW5. Non recording of the statement of PW2 and
  P.W.5 immediately was also explained by the High Court on
  the ground that there was a law and order problem in the area.
  When the police went to record the statement on the next day,
D P.W.2 was under general anesthesia. He was not in a position
  to give a statement. He was only questioned when he was in a
  position to speak. With regard to adding the names of accused
  nos. 7 to 13, it is held that at the maximum, the other persons
  added by PW.2 or 5 when they were questioned can be
  absolved by giving the benefit of doubt. The High Court then
E examined the circumstance that the incident happened in the
  night after 9.15 p.m. PW1 and PW2 are natural witnesses. PW2
  was an injured eyewitness. PW5 was also injured.

       39. On the basis of the law as settled by this Court in a
F number of judgments which are noticed by the High Court, it is
  held that relationship is not a factor to affect credibility of a
  witness. It is more often than not that a relation would not
  conceal actual culprit and make allegations against an innocent
  person leaving a way for the real accused to escape. PW2 is
G not only related to PW5 but he was also seriously injured. The
  High Court reiterates that the presence of PW2 at the scene
  of occurrence is not disputed due to the registration of the
  counter case. With regard to the non explanation of the injury
  on the accused, it is stated that PW9 and PW10 spoke about
H the same. The injuries were also explained by PW10, the
       M.C. ALI AND ANR. v. STATE OF KERALA                   553
             [SURINDER SINGH NIJJAR, J.]
doctor, who stated that the injuries in Ex. P .23 and P .24          A
certificates can be caused otherwise than by assault, i.e., by a
fall or by ~ road transport accident.

       40. Upon consideration of the entire evidence, the High
  Court held that the prosecution was able to prove the case
                                                                     B
  conclusively against A 1 to A6 beyond any shadow of doubt.
  The High Court also recorded that "the findings by the Sessions
. Court otherwise is perverse and manifestly erroneous.
  Appreciation of evidence by the Sessions Court in this case
  lacks coherence and findings are based on unwarranted
  assumptions. Hence, even though it is an order of acquitteil,      C
  interference is required." The High Court also observed that "in
  this case, only conclusion possible from the evidence is that
  accused Nos. 1 to 6, i.e., respondents in this appeal are guilty
  of the charges levelled against them." With these observations,
  the judgment of the Trial Court was set aside and the appellants   D
  were convicted as noticed by us above.

      41. We have heard the learned counsel for the parties. Mr.
 Ranjit Kumar, Learned Senior Counsel, appearing for the
 appellants in Criminal Appeal No.434 of 2002 has addressed          E
 the Court on all the issues discussed by the Trial Court as also
by the High Court. The learned senior counsel has reiterated
the infirmities in the prosecution evidence as narrated by the
Trial Court. Learned counsel submitted that the findings of the
Sessions Court were just and reasonable and the High Court
                                                                     F
ought not to have interfered in the appeal. It is settled law that
if two views are possible, the one which favours the accused
has to be accepted. That being the position, the High Court
erred in upsetting the acquittal and recording the conviction of
the appellants. The submissions made before the Trial Court          G
as before the High Court have been reiterated. It is not
necessary to recapitulate the same again.

     42. On the other hand, the learned counsel appearing for
the State of Kerala has submitted that acquittal of the appellants
                                                                     H
    554      SUPREME COURT REPORTS                   [2010) 4 S.C.R.


A has been set aside by the High Court on a thorough
  appreciation of the evidence. Each and every circumstance
  relied upon by the Trial Court had been answered by the High
  Court. It is unbelievable that PW2 and PW5, who were injured
  witnesses, would falsely implicate the accused. According to
B the learned counsel, only one conclusion was possible which
  has been duly recorded by the High Court.

       43. We have considered the submissions made by the
  learned counsel. We may notice here that the High Court has
C clearly recorded the legal proposition involved in this case in
  the following words:

                "Being an appeal against acquittal, we are bound to
          see whether views expressed by the learned Sessions
          Judge are reasonably possible. If the views expressed are
D         reasonably possible, even if another view is possible,
          appellate court will not interfere in it."

       The aforesaid statement of law recognizes the settled
  position in the case of Antar Singh v. State of M.P., (1979) 1
E sec 79:
          "This Court has repeatedly held that although in an appeal
          against acquittal, the powers of the High Court in dealing
          with the case are as extensive as of the Trial Court, but
          before reversing the acquittal, the High Court should bear
F         in mind that the initial presumption of the innocence of the
          accused is in no way weakened, if not reinforced, by his
          acquittal at the trial; and further, the opinion of the Trial
          Court which had the advantage of observing the
          demeanour of the witnesses, as to the value of their
G         evidence should not be lightly discarded. Where two views
          of the evidence are reasonably possible, and the Trial
          Court has opted for one favouring acquittal, the High Court
          should not disturb the same merely on the ground that if it
          were in the position of the Trial Court, it would have taken
H         the alternative view and convicted the accused
      M.C. ALI AND ANR. v. STATE OF KERALA                   555
            [SURINDER SINGH NIJJAR, J.]
    accordingly."                                                    A
     44. This settled proposition of law has been reiterated by
this Court in the case of Chandrappa v. State of Kamataka
{2007 (4) SCC 415}. In this case, the provisions of Section
378 of the Code of Criminal Procedure, 1997 were critically
                                                                     8
examined. After adverting to numerous decisions of this Court,
it was observed as follows:

          "From the above decisions, in our considered view,
    the following general principles regarding powers of the
    appellate court while dealing with an appeal against an          C
    order of acquittal emerge:

          (1) An appellate court has full power to review,
    reappreciate and reconsider the evidence upon which the
    order of acquittal is founded.
                                                                     D
            (2) The Code of Criminal Procedure, 1973 puts no
    limitation, restriction or condition on exercise of such power
    and an appellate court on the evidence before it may reach
    its own conclusion, both on questions of fact and of law.
                                                                     E
           (3) Various expressions, such as, "substantial and
    compelling reasons"~ "good and suffici~nt grounds", "very
    strong circumstances", "distorted conclusions", "glaring
    mistakes", etc. are not intended to curtail extensive powers
    of an appellate court in an appeal against acquittal. Such       F
    phraseologies are more in the nature of "flourishes of
    language" to emphasise the reluctance of an appellate
    court to interfere with acquittal than to curtail the power of
    the court to review the evidence and to come to its own
    conclusion.
                                                                     G
           (4) An appellate court, however, must bear in mind
    that in case of acquittal, there is double presumption in
    favour of the accused. Firstly, the presumption of
    innocence is available to him under the fundamental
    principle of criminal jurisprudence that every person shall      H
    556       SUPREME COURT REPORTS                  [2010) 4 S.C.R.


A         be presumed to be innocent unless he is proved guilty by
          a competent court of law. Secondly, the accused having
          secured his acquittal, the presumption of his innocence is
          further reinforced, reaffirmed and strengthened by the Trial
          Court.
B               (5) If two reasonable conclusions are possible on the
          basis of the evidence on record, the appellate court should
          not disturb the finding of acquittal recorded by the Trial
          Court."

C From the above, it becomes evident that if two reasonable
    conclusions are possible on the basis of the evidence on
    record, the Appellate Court should not disturb the findings of
    acquittal. The acquittal re-enforces and reaffirms the
    presumption of innocence of the accused. The High Court, in
D · fact, makes a reference to the judgment of this Court in the case
    of Kali Ram v. State of H.P., (1973) 2 SCC 808, wherein this
    Court has observed :

          "Another golden thread which runs through the web of the
          administration of justice in criminal cases is that if two
E         views are possible on the evidence adduced in the case,
          one pointing to the guilt of the accused and the other to
          his innocence, the view which is favourable to the accused
          should be adopted."

F      45. Having noticed the aforesaid principle, the High Court
  reviewed the entire evidence. It reached the conclusions which
  are opposite to the conclusions recorded by the Trial Court. We
  are unable to accept the opinion of the High Court that findings
  recorded by the Trial Court are perverse and manifestly
G erroneous.

        46. We have very elaborately dealt with the judgments of
    both the courts below, to show that the Trial Court had
    meticulously examined the entire evidence, to record its
    conclusions. We may ·now briefly indicate our reasons for not
H
       M.C. ALI AND ANR. v. STATE OF KERALA                  557
             [SURINDER SINGH NIJJAR, J.]
agreeing with the view expressed by the High Court, that the         A
conclusions reached by the Trial Court were perverse and
manifestly erroneous.

      47. There was a clear cut enmity between PWS and his
 family on the one side and the accused party on the other side.     8
 It was a religious dispute which undoubtedly led to high tension.
 The majority group had gone so far as to encourage the
 members of its community to annihilate PW5 and his family.
 Prior to the assault, there was a meeting of the Muslim
 community. The incident took place in the dark. The Trial Court     C
 noticed that none of the torches were recovered or produced
 by any of the concerned persons. There was also no moon light.
 In such circumstances, the recognition of the six accused may
 not be possible. The Trial Court on this matter reached a
 reasonable conclusion. The Trial Court had meticulously
examined each and every issue. The Trial Court also noticed          D
that there was anticipation of trouble otherwise there was no
occasion for PW2 to be accompanied by PW1 and i=aizal for
going to the house of CW.9, brother of PW5. The Trial Court
also traced the progress of these three individuals through the
paddy field. Since it was a dark night, it was not entirely          E
unbelievable that the torches had been introduced to ensure
that the accused could be said to have been identified.
Surprisingly, after Faizal was fatally injured, PW1 bolts from the
scene of crime. This PW1 is so loyal to PW5 that he has been
taking undue advantage .of being a scheduled caste and               F
lodging false complaints against the accused persons under
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. Yet when the other faithful servant of PW5
was being brutally murdered, he decided not to defend and ra11,
away. The Trial Court, therefore, concluded that the behaviour       G
of PW1 was wholly unnatural.

     48. Moving on to the evidence of PW5, the Trial Court
noticed that when he went out of the house, he heard lot of
noise from the side of the paddy field. When he went towards
                                                                     H
    558     SUPREME COURT REPORTS                [2010] 4 S.C.R.


A the west of his house, he saw some persons entering the
  pathways from the paddy field. He identified the accused
  persons. When he enquired from A7 as to what had happened,
  he was also attacked and injured. He also ran back to the
  house. His attempt to contact his brother and others on the
B telephone remained unsuccessful. In the meantime, PW1 and
  2 had reached the house of CW.9. Subsequently, Faizal's dead
  body was discovered by PW1 and the son of CW.9. The police
  arrived at the scene. Although PW2, the injured witness, was
  available, his statement was not recorded. It was PW1 who
c gave the F.I. Statement. It must be remembered that he had run
  away when the deceased was being assaulted. In such
  circumstances, we are unable to hold that the conclusions
  reached by the Trial Court were unreasonable or perverse.

       49. The Trial Court meticulously examined the sequence
D of events with regard to the recording of the FIR. It cannot be
  held that the conclusion reached by the Trial Court that the
  occurrence report· could not have been sent earlier, as the
  same was yet to be prepared, is not possible. The FIR was
  recorded at 0030 hrs on 31.1.1994. It was not received by the
E Magistrate till 3.30 p.m. on 31.1.1994. The Trial Court also
  noticed that the names of the accused were mentioned in
  Ex.P.1. But they were not mentioned in the relevant column of
  the inquest report. If the First Information Statement Ex.P.1 had
  been prepared prior to Ex.P.14, the names would surely have
F been mentioned therein. These conclusions again, in our
  opinion, cannot be said to be perverse.

       50. The Trial Court also noticed that due to the long enmity
  of P.W.5 and his family with the accused, the evidence had to
G be scrutinized carefully. Faizal as well as PW1 were the
  employees of PW5 who had been brought from the State of
  Karnataka as the local labour was not available. The Trial Court
  noticed that in case there had been an assault, as projected
  by the prosecution, there was no reason why PW1 would have
H been spared while Faizal was brutally murdered. After all, it was
       M.C. ALI AND ANR. v. STATE OF KERALA                    559
             [SURINDER SINGH NIJJAR, J.]
P.W.1 who had proceeded against those accused while                    A
working under PW5 by filing false cases against the accused.
The Trial Court also noticed that delay in recording the
statement of P.W.2 cannot be easily brushed aside. He was
conscious through all the night and yet the statement was not
recorded at the initial stage by PW?. He became unconscious            B
only at the time when general anesthesia was given to him at
11.40 a.m. the following day.

      51. Mr. Ranjit Kumar also pointed out that PW2 in the
witness box merely stated that he was tired at the time when
P.W.7 had come to the house of CW9. The Trial Court noticed            C
that there was absolutely no explanation with regard to th~
injuries suffered by the accused. This apart, all the witnesses
being interested witnesses, their evidence could not be
believed in the absence of independent corroboration.
                                                                       D
      52. In our opinion, taking into consideration the entire facts
arid circumstances of the case, it would not be possible to agree
with the High Court that the findings recorded by the Trial Court
were perverse or that only one conclusion consistent with the
guilt of the accused was possible. We are of the opinion that          E
the two views being reasonably possible the High Court ought
not to have interfered with the verdict of acquittal recorded by
the Trial Court. Consequently, we allow the appeal and set aside
the judgment of the High Court.

Criminal Appeal No.434 of 2002 and                                     F

Criminal Appeal Nos. 500-501 of 2002:-

    1. In view of the judgment passed in Criminal Appeal
No.499 of 2002, these appeals are also allowed.
                                                                       G
D.G.                                            Appeals allowed.