STATE OF KERALAversusANILACHANDRAN @ MADHU AND ORS.

           STATE OF KERALA v. ANILACHANDRAN@ MAOHU 153
                            AND ORS.
      j_
           and his mother PW3 and that in view of their common              A
           object they formed themselves into an unlawful assembly
           with deadly weapons like dagger, sword, iron rod, iron
           bar etc. and assaulted PW1 's father, PW1 and PW3 which
           resulted in the death of PW1 's father and injuries to PWs
           1 and 3.                                                         B
                Placing reliance on the evidences of PWs1 and 3, the
      ~
           trial court convicted the accused-respondents under
           ss.302, 323 and 324 IPC. On appeal, the High Court held
           that the evidence of PWs1 and 3 did not inspire
           confidence; that the original FIR produced in Court was
                                                                            c
           not a complete document as a vital part of it had been
           removed and that there was considerable delay in
           sending the report to the llaka Magistrate and accordingly
           acquitted the accused-respondents. Hence the present
           appeals.                                                         D

               Dismissing the appeals, the Court

                HELD:1. Delay in sending the FIR to the Magistrate
           sometimes afford opportunity to introduce improvement
                                                                            E
           and embellishment thereby resulting in a distorted
           version of the occurrence. Section 157 Cr.P.C. mandates
           that the report should be sent to the Magistrate forthwith.
           That itself indicates the urgency. It needs to be noted here
           that where an explanation is offered by the prosecution
                                                                            F
           for the delay, that has to be tested. The unexplained delay
           by itself may not be fatal, but is a certainly relevant aspect
...        which can be taken note of while considering the role of
           the accused persons for the offence. [Para 7] [159-A-C]

               Pal Singh and another v. State of Punjab AIR (1972) SC       G
           2679 and Swaran Singh and others v. State of Punjab AIR
           (1976) SC 2304, referred to.

               2. In the instant case the High Court found that not
           only the document appeared to be suspicious but in               H
    154       SUPREME COURT REPORTS                 [2009] 6 S.C.R.

A addition there was considerable delay in sending it to
  llaka Magistrate. Added to the aforesaid aspects, the
  noticeable variation in the evidence of PWs.1 and 3 have
  been highlighted by the High Court. The role played by
  PWs.1 and 3 while the deceased was being assaulted
B have been analysed in great detail. The High Court has
  noticed that even if the prosecution version about the
  role of A.1 is accepted to be true, since the genesis of the
  incident has not been established, it will be unsafe to
  record his conviction. The High Court has noticed that
c crime was not committed in the manner as suggested by
  the prosecution and the genesis of the incident is not
  established. Even if a plea of alibi is set up by the
  accused and is discarded, that does not take away the
  duty of the prosecution to prove beyond reasonable
  doubt that the accused persons were guilty. It is certainly
0
  the duty of the persons who plead alibi to prove it beyond
  reasonable doubt. Merely because the accused was not
  able to prove his defence, it cannot be presumed that the
  prosecution case is proved against him. Above being so,
E this is not a case in which interference is called for. [Paras
  8 and 9] [159-C-G]

                           Case Law Reference:
          AIR 1972 SC 2679          Para 7             referred to
F         AIR 1976 SC 2304          Para 7             referred to

        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 32-33 of 2004.

      From the Judgment & Order dated 15.10.2001 of the High
G Court of Kerala at Ernakulam in Crl. Ar9eal No. 444/1999 &
  529 of 1999.
          G. Prakash for the Appellants.

          Mathai M. Paikecfay, Shishir Pinaki and Sanjay Jain for the
H
-        STATE OF KERALA v. ANILACHANDRAN@ MAOHU 155
                          AND ORS.
        Respondents.                                                        A
             The Judgment of the Court was delivered by

             DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
        to the judgment of the Division Bench of Kerala High Court
        allowing the appeal filed by the respondent. Five accused           B
        persons faced trial for alleged commission of offence
        punishable under Sections 143, 147, 148, 323, 324 and 302
        of the Indian Penal Code, 1860, (in short the 'IPC').

            2. All the accused persons denied their involvement in the      C
        crime. Learned First Additional Sessions . Judge,
        Thiruvananthapuram found A 1 to A4 guilty, while AS was
        acquitted. The following convictions and sentences were
        recorded:

              "A.1 to A.4 are found guilty and A.1 is convicted and         o
            sentenced to undergo R.1 for one month u/s 341 and also
            is sentenced to undergo R.I for one year u/s. 323 IPC and
            is also sentenced to undergo imprisonment for life and
            also to pay a fine of Rs.20,000/- in default to undergo R.1
            for 3 year~ u/s. 302 IPC A2 and A3 are convicted and            E
            sentenced to undergo R.I for one month each u/s. 341 IPC
            and also sentenced to undergo R.I for 3 years each u/s.
            324 IPC and also sentenced to undergo imprisonment for
            life and also to pay a fine of Rs.20,000/- each in default to
            undergo R.I for 3 years u/s. 302 IPC. A.4 is convicted and      F
            sentenced to undergo R.I for 2 years u/s. 324 IPC set off
            allowed u/s. 428 IPC sentences shall run concurrently."

            A.1 filed Criminal Appeal No.529/1999 challenging the
        order of conviction and sentence. The other accused filed
        Criminal Appeal No.444./1999 against the same judgment.             G
    +   Both the appeals were heard together by the High Court.

              3. Prosecution version as unfolded during trial is as
        follows:

        Gangadharan Pillai (hereinafter referred to as the 'deceased')      H
    1S6      SUPREME COURT REPORTS                  (2009] 6 S.C.R.
                                                                         -
A father of PW1, and Raveendran, Al's father's brother, were
  neighbours. A coconut tree belonging to the said, Raveendran
  was slanting over the building of the deceased. On the
  allegation of falling of tender coconut etc. from the coconut trees,
  there were frequent quarrels between the deceased and
8 Raveendran. The deceased Gangadharan Pillai demanded to
  cut and remove and remove the said coconut tree. On
  27.10.1993 at about 8.1S p.m. a quarrel occurred between
  Raveendran and Gangadharan Pillai and Reveendran
  sustained injuries, for which the Poonthura Police registered
C Crime No.82 of 1993 for offences punishable under Sections
  341, 323 read with Section 34 IPC. Ext. 03 is the scene
  mahazar in respect of crime No.82 of 1993. On account of the
  injuries sustained by Raveendran, Al to A4, close relatives of
  Raveendran, and AS, a friend of A 1, decided to do away the
  deceased and to inflict bodily harm on PWs 1 and 3. In
D prosecution of their common object they formed themselves
  into an unlawful assembly with deadly weapons like dagger,
  sword, Iron rod, iron bar etc. at 8.4S p.m. on 27.10.1993 inside
  the coconut garden of one Mohammed Shah situated by the
  side of the pathway that starts from Ambalathara-Poonthura
E Road at Numari Chantha near the Vedanthara Bridge. Al
  caught hold of the collar of the shirt of PWI and fisted thrice on
  his chest. A4 with the iron rod inflicted a blow on the back of
  PW1 and A3 with the iron bar inflicted four or five blows on the
  right shoulder of PW 1. Then PW1 cried aloud. At that time, Al
F inflicted a stab injury on PW1 with the dagger which was
  warded off by PW1. On hearing the cry of PW1, his father
  Gangadharan Pillai (deceased) rushed to the scene and tried
  to prevent the accused from causing further harm to PW1. At
  that time A2 and A3 caught hold of the deceased and wrongfully
G restrained him. Then Al with the dagger inflicted a stab injury
  on the back at the left side above the· aist on the deceased.
  A4 and AS inflicted blows on the body of the deceased with
  iron rods. At that time PW3, mother of PW1 and wife of the
  deceased, intervened and tried to prevent the accused from
H causing further harm to the deceased and PW1. A2 with a
     STATE OF KERALA v. ANILACHANDRAN@ MAOHU 157
            AND ORS. [DR. ARIJIT PASAYAT, J.]
                                                '
    . sword, inflicted a cut injury on the head and two other cut injuries   A
      on the thighs of PW3. A3 and A4 inflicted blows on many
      portions of the body of PW3 with the iron rods. The deceased
      and PW3 were taken to the General Hospital,
      Thiruvananthapuram in an autorikshaw. PW3 was admitted at
      the General Hospital and the deceased was referred to the              B
      Medical College Hospital. PW1 also went to the General
      Hospital and later accompanied the deceased to the Medical
      College Hospital. PW1 was admitted there. On the way to the
      Medical College Hospital itself the deceased succumbed to the
      injuries sustained by him. The deceased was removed to the             c
      mortuary. This is the sum and substance of the prosecution
      case.

        After investigation was completed charge-sheet was filed.
    Since accused persons pleaded innocence, trial was held for
    proving the occurrence. Four witnesses were primarily                    D
    examined as eye witnesses. They are PW.1, PW.3, PW.4 and
    PW.5. PW.1 is the son of the deceased while PW.3 is his wife.
    PWs. 4 and 5 turned hostile and resiled from the statements
    made during investigation. PW.2 is the doctor who examined
    PW.1 and issued wound certificate. PW.3 was examined by                  E
    PW.14 Doctor and the wound certificate was issued by him.
    PW.15 is the Doctor who conducted post-mortem examination
    and Exhibit P .13 is the post-mortem report .
•
         The trial Court placed reliance on the evidences of PW.I            F
    and 3 to record conviction. As noted above, appeals were filed
    by the accused persons. Their stand in Court was that the
    evidence of PW.1 and 3 does not inspire confidence. The
    original FIR which was produced in Court was not a complete
    document and a vital part. of it had been removed. It was pointed        G
    out that there was a considerable delay in sending the report
    to the llaka Magistrate. The High Court found the submissions
    to be acceptable and directed acquittal of the acc,used, which
    is being questioned in these appeals.
         4. Learned counsel for the appellant State submitted that           H
    158       SUPREME COURT REPORTS                   [2009] 6 S.C.R.


A the trial Court on analysis of evidences and the factual scenario,
  as supported by materials on record, recorded conviction which
  should not have been set aside by the High Court. It is pointed
  out that there were minor variations, if any, in the evidences of
  PW.1 and PW.3 and that they should not have been construed
B as a ground for directing acquittal. It is submitted that
  accusations in any event have been substantially established
  so far as accused No.1 is concerned, and the High Court
  should not have directed acquittal. Learned counsel for the
  respondents supported the judgment of the High Court.
c      5. High Court firstly dealt with the authenticity of the First
  Information Report. The High Court has noted that PW 1
  allegedly gave Exhibit P.1 Fl Statement. The original of the
  statement showed that the last page which contained the
  signature was torn out. The Sessions Judge after seeing the
D last page of Ext. P1 Fl statement observed as follows:
                                                                          J
           ''The First Information Statement is shown to the witness.
          It is seen that the place of which the signature of the
          informant was there torn off. That portion of the paper is
          seen torn and removed. From the manner in which is torn
E
          away, it is clear that it was not separated due to wear and
          tear, but that portion alone is deliberately removed. The FIS
          is handed over to the witness.'
      6. The High Court made comparison of the document with              •
F other documents and found that document was suspicious.
  Added to that it was noted that the Exhibit P.1 was purportedly
  recorded on 27.10.1993 at 11.00 p.m. It is accepted that llaka
  Magistrate received it on 28.10.1993 at 8.05 p.m. The High
  Court found that there was unexplained delay in receipt of the
G occurrence report by the Magistrate.
       7. It is true that the delay itself does not make the
  investigation tainted. (See: Pa/ Singh and anotherv. State of
  Punjab (AIR (1972) SC 2679). The position was reiterated in
  Swaran Singh and others v. State of Punjab (AIR (1976 SC
H 2304) where it was observed that the police should not make
STATE OF KERALA v. ANILACHANDRAN@ MAOHU 159,
       AND ORS. [DR. ARIJIT PASAYAT, J.]
                                            •
unnecessary delay in sending the FIR. Delay in sending the FIR        A
to the Magistrate sometimes afford opportunity to introduce
improvement and embellishment thereby resulting in a distorted
version of the occurrence. Section 157 of the Code of Criminal
Procedure, 1973 (in short the 'Code') mandates that the report
should be sent to the Magistrate forthwith. That itself indicates     B
the urgency. It needs to be noted here that where an explanation
is offered by the prosecution for the delay, that has to be tested.
                                                        a
The unexplained delay by itself may not be fatal, but is certainly
relevant aspect which can be taken note of while considering
the role of the accused persons for the offence.
                                                                      c
      8. In the instant case the High Court found that not only the
 document appeared to be suspicious but in addition there was
 considerable delay in sending it to llaka Magistrate. Added to
the aforesaid aspects, the noticeable variation in the evidence
of PWs.1 and 3 have been highlighted by the High Court. The           D
role played by PWs.1 and 3 while the deceased was being
assaulted have been analysed in great detail. The High Court
has noticed that even if the prosecution version about the role
of A.1 is accepted to be true, since the genesis of the incident
has not been established, it will be unsafe to record his             E.
conviction. The High Court has noticed that crime was not
committed in the manner as suggested by the prosecution and
the genesis of the incident is not eitablished. Even if a plea of
alibi is set up by the accused and is discarded, that does not
take away the duty of the prosecution to prove beyond                 F
reasonable doubt that the accused persons were guilty. It is
certainly the duty of the persons who plead alibi to prove it
beyond reasonable doubt. Merely because the accused was
not able to prove his defence, it cannot be presumed that the
prosecution case is proved against him.
                                                                      G
      9. Above being so, we find that this is not a case in which
interference is called for. The appeals are dismissed.
8.8.B.                                       Appeal dismissed.