1. The appellants are accused Nos. 1, 3, 5, 6, 11 and 12 in S.C. No. 170 of 2003 convicted and sentenced for the offences under Sections 143, 147, 148, 341, 427 and 452 r/w 149 IPC as per judgment dated 06.03.2006 of the Additional District and Sessions Judge, Fast Track, (Adhoc-I), Kozhikode. The revision petitioner is the de facto complainant and she is challenging the acquittal of the appellants for the offences under Sections 354, 395 and 511 of 376 IPC and the acquittal of accused Nos. 2, 4, 7, 8, 9 and 10 of all the charges levelled against them.

2. A perusal of the committal order dated 21.10.2002 in C.P No. 67 of 2002 of the Judicial First Class Magistrate, Nadapuram and the proceedings of the Magistrate would show that the original first accused, Binu, died before committal and the 8th accused, Raghavan, was absconding and therefore, only the case as against the other accused was committed for trial.

3. The prosecution case is that all the 12 accused, along with two others, formed an unlawful assembly, armed with deadly weapons and trespassed in to the house of PW1 at about 5.30 p.m., on 15.01.2001 by break opening the doors and thereafter, wrongfully restrained PW1 and other members of the house. The accused persons outraged the modesty of PW1 and also attempted to rape her in the presence of her children. The accused persons destroyed the utensils and other articles in the house and they also looted the valuables kept in the house and thus, committed the offences as aforesaid.

4. When the accused persons pleaded not guilty to the charge, PWs 1 to 17 were examined and Exhibits P1 to P39 and MOs 1 to 39 were marked from the side of the prosecution. From the side of the defence, DWs 1 to 6 were examined and Exhibits D1 to D21 marked.

5. The trial court, after analysing the evidence, found the appellants guilty only for the offences under Sections 143, 147, 148, 341, 427 and 452 r/w 149 IPC. The appellants are challenging the legality and correctness of the conviction and sentence and the de facto complainant is challenging the acquittal of the appellants for the offences under Sections 354, 395 and 511 of 376 IPC and the acquittal of the other accused persons of all the offences charged against them.

6. Heard Sri.Gilbert George Correya, the learned counsel for the appellants, Sri. Sunny Mathew, the learned counsel for the revision petitioner and Sri. Alex M. Thombra, the learned Senior Public Prosecutor.

7. The learned counsel for the appellants argued that there is no medical or scientific evidence to corroborate the evidence of PWs 1, 2 and 5, who supported the prosecution case regarding the occurrence and the circumstances in which PW12, Sub Inspector of Kuttiyadi Police Station, reached the house of PW1 on 16.01.2001 for recording Exhibit P1, First Information Statement, is suspicious, especially in view of the problems in the locality in connection with the group rivalry and other connected incidents that occurred there. It is argued that there is no proper dock identification of the appellants and in view of the non- examination of the material witnesses and withholding of scientific evidence, the appellants are entitled for the benefit of reasonable doubt.

8. The learned counsel for the revision petitioner and the learned Senior Public Prosecutor argued that the evidence of PWs 1, 2 and 5 regarding the occurrence and the identity of the appellants and the second accused are sufficient to convict them for all the offences charged against them. However, the learned counsel for the revision petitioner and the learned Senior Public Prosecutor fairly conceded that there is no satisfactory evidence to prove the identity and complicity of the other accused persons acquitted by the trial court. Therefore, it is necessary to analyse the evidence as against the appellants and the second accused.

9. PW1 deposed that at 5.30 p.m., on 15.1.2001, while she was sitting in the veranda of her house, along with her children PW2, CW3 and PW5, they heard the sound of a bomb explosion from the main road and the shout and cry of a gang of people and hence, they went inside the house and closed the grills and doors on the front side and back side. According to PW1, while they were sitting in the centre hall, they saw a gang of people coming to the house by pelting stones to the house. PW1 would say that she saw the same through a gap in the door and by that time, the assailants broke open the grills and the back door and entered into the house and the main hall.

10. According to PW1, 14 persons trespassed into the house and some of them caught hold of her hand and some others caught on her maxi and they forcefully removed her gold ornaments. She would say that 5 persons committed the above overt acts and thereafter, pushed her down and attempted to rape her by pressing on her breast and lifting the maxi. PW1 identified accused Nos. 1, 2, 3 and 4 as the persons who committed the above acts and she would say that one Binu was also with them and it was Binu who lifted her dress and attempted to rape her. As noticed earlier, the case as against the original first accused could not be committed as he died before the committal.

11. PW1 deposed that when she cried, one among the accused covered her mouth with his hand and then she bit on his hand and thereafter, two or three persons forcefully took her out of the house and from there, she ran into the nearby house of one Usman along with her children.

12. In answer to a question from the Public Prosecutor, PW1 deposed that somebody has taken her younger daughter (PW5) from the house and two persons forcefully took her son out of the house and that no overt act was committed against her other daughter. But, immediately, the witness added that the accused persons took forceful possession of the ornaments of both her daughters. PW1 also deposed that one among the accused put his fingers into her private parts. According to PW1, her daughter (PW5)         complained of pain on her private parts and on examination, she found swelling and reddish colour on the private parts of PW5.

13. Regarding the motive, PW1 deposed that on the previous days of the occurrence, there was communal riot at Nadapuram and one Santhosh, a member of the CPM, and Moidu Haji, a member of Indian Union Muslim League, were killed in the riot. She also deposed that her elder son, Salam, was a member of the Indian Union Muslim League and he went abroad 15 days prior to the occurrence in this case and the accused persons committed the act because of their enmity towards her elder son and also for the reason that they are members of the Indian Union Muslim League.

14. PW2 is the son of PW1 and his evidence also shows that the occurrence was at about 5.30 p.m. and when some of the accused caught his mother, two other accused took him out of the hall and he also saw another accused taking his sister (PW5), out of the house through the back door. According to PW2, though he attempted to save his mother, three persons among the accused caught him and took him out of the house and he was detained near the well. He would say that some other accused persons were dumping the fridge, TV and other household articles into the well. His evidence shows that subsequently, along with his mother and sisters, he also ran into the house of their neighbour Usman. Before the court, PW2 identified accused Nos. 5, 6, 11 and 12.

15. PW5 is the younger daughter of PW1 aged 12 years at the time of examination before the trial court. She also deposed that the occurrence was at 5.30 p.m., on 15.01.2001 and that she was in the house along with her mother, elder sister and brother and regarding the trespass committed by the accused persons, she also deposed, more or less, in the same way as PWs 1 and 2. She would say that at the time of occurrence, one among the accused took her out of the house and pressed on her private parts with hand and caused hurt. According to PW5, subsequently when their mother came out of the house, she also went to the house of their neighbour Usman along with her mother, elder sister and elder brother. PW5 identified A6 as the person who forcefully took her out of the house.

16. The neighbour of PW1 is examined as PW9. According to PW9, his house is situated about 30 metres away from the house of PW1. He deposed that at about 5 p.m., on 15.01.2001, his children went out of the house for attending the prayer in the church; but, on hearing the noise from the road and the nearby house, they returned to the house. PW9 would say that at about 6 p.m., on that day, he heard noise from the house of PW1 and subsequently, PW1 and her two daughters reached his house. However, he categorically stated that the son of PW1 was not among them.

17. The evidence of PW9 shows that his wife was also there in the house and his wife accompanied PW1 and his daughter to the bathroom for examining the daughter of PW1, when she complained of pain in her private parts. The evidence of PW9 shows that when PW1 and her daughter reached his house, some persons pelted stones towards his house and broke the window glass. According to PW9, he has not made any statement to the police that PW1 and her three children reached his house. PW9 was declared hostile to the prosecution.

18. PW3 is the doctor who examined PW1 at Medical College Hospital, Kozhikode on 16.01.2001 at 6.30 p.m. and issued Exhibit P3 certificate. The evidence of PW3 and Exhibit P3 shows that no external injuries were noted. The evidence of PW3 further shows that she took vaginal smear and swab of PW1 and the chemical examination report is marked as Exhibit P4 and it shows that no semen and spermatozoa was detected in the sample. PW3 also examined PW5 at 6.30 p.m. on 16.01.2001 and issued Exhibit P5 certificate, which shows that PW5 has not sustained any external injuries. The chemical examination report of the vaginal smear and swab of PW5 is marked as Exhibit P6 and it shows that no seman and spermatozoa was detected in the sample.

19. The evidence of PW4, Assistant Professor of Medical College Hospital Kozhikode, shows that she examined PW1 on 09.02.2001 at 4.30 p.m. and issued Exhibit P7 certificate. The evidence of PW4 shows that she examined PW1 as per the request of Superintendent of Police, Crime Branch and there were no scratches or abrasions or injuries on the body of PW1. However, she noticed two old torn marks: one in the hymen and the other in the fourchette and posterior commissure. PW4 cannot say the age of the injury or whether the said injury was sutured or not. According to PW4, she also examined PW5 on the same day and there were no injuries or abrasions on any part of her body. However, PW4 would say that the patient has not allowed her for a proper examination and the patient has also not permitted her to take vaginal smear or swab. Exhibit P9 is the certificate issued by PW4 for examining PW5.

20. The Manager of State Bank of Travancore, Kallachi Branch is examined as PW6. The evidence of PW6 and Exhibit P11, ledger extract, shows that PW1 had withdrawn Rs.17,000/- on 23.12.2000 and Rs.8,000/- on 06.01.2001. The then secretary of Nadapuram Panchayath is examined as PW7. The evidence of PW7 and Exhibit P12 certificate shows that house No. N.P X/590 of Nadapuram Panchayath belongs to Ottappilavullathil Muhammed. PW8 is the Village Officer who prepared Exhibit P3, sketch of the scene of occurrence. The evidence of PW10 shows that as per the request of the police, he recovered TV, fridge and other household utensils from the well of PW1 during 2001.

21. CW3 is the elder daughter of PW1 and CW6 is the wife of PW9. As per the prosecution case, CW3 was there in the hall room of the house, when the accused persons outraged the modesty of PW1 and attempted to rape her and as per the prosecution case, the accused persons also forcibly took the ornaments of CW3. As per the prosecution case, it was CW6, the wife of PW9, who accompanied PW1 and his younger daughter to the bathroom and examined the private parts of the younger daughter of PW1 when she complained of pain while urinating.

22. The learned counsel for the appellants argued that in spite of the fact that CWs 3 and 6 are material witnesses, they were given up by the prosecution and there is no satisfactory explanation for the non examination of the said material witnesses. In Shinoj Singh v. State of Kerala (2024 KHC 62), the Honourable Supreme Court held that if a material witness, who would unfold the genesis of incident or an essential part of the prosecution case, is not convincingly brought to fore, or where there is a gap or infirmity in the prosecution case, which could have been bridged or made good by examining a witness who, though available, is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution.

23. The evidence of PW12, Sub Inspector of Kuttiyadi Police Station who was on special duty at Nadapuram, shows that he reached the house of PW1 at 1.30 p.m. on 16.01.2001 and recorded Exhibit P1, First Information Statement of PW1. According to PW12, he proceeded to the house of PW1 on receiving a wireless message from a superior officer. But, the witness cannot say the identity of the superior officer who issued the direction.

24.   In cross examination, PW1 deposed as follows:

                 

                 

25. In Jai Prakash Singh v. State of Bihar [(2012) 4 SCC 379], the Honourable Supreme Court held that promptness in filing the FIR gives assurance of veracity of information and reflects first hand account of occurrence and persons responsible therefor. It is well settled that FIR is the most immediate and first version of the incident and has great value in ascertaining the truth as it reduces the chances of improvement in the prosecution story. The evidence of PW1 in cross examination clearly shows that on the next day morning, along with her children and brother—Latheef, she proceeded to Nadapuram and that Nadapuram Police Station is at a distance of 150 meters from the bus stand and despite the fact that they travelled in a jeep to Nadapuram, they have not lodged any complaint in the Police Station regarding the occurrence at that time.

26. According to PW1, she decided to file the complaint after discussing the matter with her husband and elder son and that she also discussed the matter with the office bearers of the Muslim League on the date of occurrence and the next day morning before giving Exhibit P1, statement to the police. She also deposed in cross examination that at the time of giving Exhibit P1 First Information Statement to the police, her brother Latheef and other members of the Muslim League were present.

27. The learned counsel for the appellants argued that the trial court has not believed the evidence of PWs 1, 2 and 5 about outraging the modesty of PW1 and the attempt to rape her and since their evidence regarding the occurrence is not supported by any medical or scientific evidence or prompt FIR, the trial court ought to have found that their evidence regarding the occurrence is not at all reliable, especially in view of the fact that PW9, the independent witness, turned hostile to the prosecution.

28. The learned counsel for the appellants invited my attention to Exhibit P1, First Information Statement, to point out that there is a specific allegation in Exhibit P1 that the accused persons robbed 25,000 rupees and 25 sovereigns of gold ornaments from the house and thereby, she sustained a loss of Rs.4,00,000/-. But, in the final report filed after investigation, there is no conclusive finding as to whether the accused persons robbed currency notes worth Rs.25,000/- and 25 sovereigns of gold ornaments from the house and it is only alleged that the accused persons destroyed the utensils and looted the valuables and the prosecution has no case that any money or gold ornaments were recovered during the course of investigation.

29. In cross examination, PW1 admitted that she has not stated the name of the accused who put his fingers in her private parts to the Magistrate, while recording her statement under Section 164 Cr.P.C. as his name was not known to her. She would say that she has not stated to the police that it was Binu who put his fingers into her private parts. In another part of the cross examination, PW1 deposed as follows:

                  

30. The learned counsel for the appellants argued that there is no proper dock identification of the accused persons before the court and cited the decisions of this Court in Vayalali Girishan and Others v. State of Kerala [2016 KHC 204] and Shaji @ Babu @ Japan Shaji v. State of Kerala [2021 (5) KHC SN 27], wherein it was held that the identification of an accused in court by the witness is the substantive evidence and even if the witness and the accused are persons known to each other, it is obligatory for the witness to identify the accused in court by pointing out that the person referred to by him in the evidence is the person who is standing in the dock and it is obligatory for the court to record in the deposition that the witness had identified the accused in the dock.

31. In another part of the cross examination, PW1 stated that among the accused persons who trespassed into her house, she first identified Binu, the original first accused, and when the learned counsel for the accused persons suggested that she was not able to identify any other accused, the witness answered as follows:





32. In cross examination, PW1 stated that it is not correct to say that the ornaments and money were kept in the almirah; but, she admitted that she made a statement to the police that the accused persons robbed Rs.25,000/- and 7 sovereigns of gold ornaments kept in the almirah and the said portion in the statement of PW1 to the police is marked as Exhibit D2.

33. In cross examination, PW2 stated that they were not able to identify the accused persons before they entered the hall room. According to PW2, the first five persons who entered the house and the 5th accused, Muthu, are previously known to him. PW2 deposed in cross examination that the name and house names of the said five accused are previously known to him. But, he denied that he made statement to the police that it was Kaniyankandy Muthu who broke opened the grill by hitting it with a large stone and the said portion in his statement to the police is marked as Exhibit D1. The evidence of PW2 in cross examination shows that on the date of occurrence, they went to their tharavadu house and their neighbours came there and it is not known to him whether the leaders of political parties were there among the persons who reached the tharavadu house. He would say that upto 2 a.m. in the night, there was discussion about the incident in their tharavadu house.

34. In cross examination, PW2 categorically deposed that he is not in a position to identify the persons who forcibly detained him near the well. In cross examination PW2 deposed as follows:



35. In cross examination, PW2 stated that on the next day at about 8.30 a.m., they went to Government Hospital, Nadapuram from their tharavadu house and returned to the tharavadu house by 10 a.m. PW2 admitted that there is facility for inpatient treatment at Government Hospital, Nadapuram and several doctors are working there. He denied the suggestion that they have not gone to Government Hospital on the next day morning. In cross examination, PW2 stated that he was not able to identify the three persons who brought his mother to the back side of the house and he has not stated to the police as per Exhibit D1(a).

36. In cross examination, PW5 stated that she cannot remember whether she made a statement to the police that she cannot identify the person who caught her mother or forcibly took her from the house and the said portion in her statement to the police is marked as Exhibit D3. She also denied making statement to the police as per Exhibits D4 and D5.

37. The evidence of PW15, Deputy Superintendent of Police who conducted the investigation, shows that he arrested accused Nos. 2, 4, 6, and 12 on 31.07.2001. Even though, PW15 deposed that he collected the pubic hair of the accused persons and sent the same for examination by preparing a forwarding note, the same is not marked in evidence. Exhibit P26 is the forwarding note for sending the dress of PW1 for examination and Exhibit P29, report from the Forensic Science Laboratory, shows that vaginal secretions were not detected on items 1 and 2. In cross examination, PW15 deposed that in the statement of PW1 recorded by him, it is stated that in the evening of 16.01.2001, after the Sub Inspector recorded her statement, the Sub Inspector has given them letter for availing treatment from Government Hospital, Nadapuram and the said portion is marked as Exhibit D7.

38. The evidence of PW15 further shows that PW1 has given statement to him that Rs.25,000/- and gold ornaments kept in the almirah were stolen. According to PW15, in the statement of PW2 recorded by him, it is stated that it was Kaniyankandi Muthu who hit on the house with a big stone and it was Pavithran and Paran Babu who forcibly took the mother to the courtyard.

39. It is well settled that delay in lodging the FIR often results in embellishment which is a creature of an after-thought and can also lead to the introduction of a coloured version or exaggerated story. In the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault and in such situations, the courts are called upon to be very cautious and required to sift the evidence with care. When the accused are prosecuted in a criminal case, the burden lies on the prosecution to prove the allegations beyond all reasonable doubt and an accused is not required to establish or prove his defence beyond all reasonable doubt.

40. DW1 is the doctor who examined the second accused, Vinodan, at 6.45 p.m. on 15.01.2001 and issued Exhibit D11 certificate. The evidence of DW1 shows that on the same day, at 7.15 p.m., he examined the 8th accused, Raghavan, and issued Exhibit D11(b) certificate. DW5 was the Superintendent of Medical College Hospital, Calicut and Exhibit D18 is the case sheet relating to the treatment of the second accused, Vinodan. The evidence of DW5 and Exhibit D18 shows that the second accused, Vinodan, was admitted on 15.01.2001 and he has undergone surgery for amputation of his left palm below the elbow.

41. DW2 was the Head Constable of Nadapuram Police Station who recorded Exhibit D12, First Information Statement, and registered Exhibit D13 FIR in Crime No. 108 of 2001 of Nadapuram Police Station. The evidence of DW2 and Exhibit D13 would show that the de facto complainant in the said case is one Madhavi and the allegation is that at about 5.30 p.m., on 15.01.2001, her house was attacked by the accused persons in the said case.

42. DW3 was the Head Constable of Nadapuram Police Station who registered Exhibit D17 FIR on the basis of Exhibit D16, First Information Statement. DW4 deposed that on 15.01.2001, a bomb exploded in the property of Pilavullathil Kannan near to his house at about 5.15 p.m., and that one Vinodan sustained injuries in the incident and the said vinodan was subsequently taken to Medical College Hospital. The evidence of DW4 shows that he has given consent to the doctor for conducting the operation. DW6 was the Circle Inspector of Nadapuram Police Station, who conducted investigation in Crime No.109 of 2001 of Nadapuram Police Station and filed Exhibit D20 final report.

43. The evidence of DWs 4 and 5 and Exhibit D18 case sheet in connection with the surgery of A2, Vinodan, would clearly show that he sustained injuries in a bomb explosion on 15.01.2001, at about 5.15 p.m. and that his left palm was amputated below the elbow and he was discharged from hospital only on 01.02.2001. A perusal of Exhibit D16 FIS and Exhibit D17 FIR in Crime No. 192 of 2001 of Nadapuram Police Station would show that the said crime is registered on the basis of Exhibit D16, First Information Statement given by one Vinodan who is none other than the second accused in this case. Therefore, I find force in the argument of the learned counsel for the appellants that the prosecution has suppressed material facts regarding the occurrence in Exhibit D17 FIR and the hospitalisation and the surgery of the second accused in this case for amputation of the left palm below the elbow.

44. At the time of 313 questioning, the accused persons filed statement that because of the political murders, group rivalries and enmities, PW1 and her children shifted their residence to their tharavadu house on the previous day and there was nobody in their house on 15.01.2001.

45. The learned counsel for the appellants argued that PWs 1, 2 and 5 were in their tharavadu house on the date of the alleged occurrence and that a group of persons from the rival group attacked their house and destroyed the household articles and the accused were falsely implicated because of group rivalry. In Balu Sudam Khalde v. State of Maharashtra [(2023) 13 SCC 365 = 2023Live Law (SC) 279), the Honourable Supreme Court held thus:

                  “27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.”

46. As noticed earlier, in this case, there is no prompt FIR and the prosecution has not explained the inconsistency in the evidence of PW1 and that of PW12, Sub Inspector of Kuttiyadi Police Station, regarding the time of recording Exhibit P1 First Information Statement. The evidence of PW1 in cross examination clearly shows that the First Information Statement was given only on the next day evening after discussing the matter with several persons including political leaders and therefore, the possibility of introduction of a coloured version or exaggerated story cannot be ruled out, especially in view of the group rivalries and enmities prevailing there.

47. It is well settled that a conviction cannot be sustained when the prosecution case is riddled with material contradictions and discrepancies. In the absence of medical and scientific evidence and independent occurrence witness to support the prosecution case and in view of the material contradictions and inconsistencies, I find that a conviction cannot be based on the evidence of PWs 1, 2 and 5 and therefore, I find that the appellants are entitled for the benefit of reasonable doubt.

                  In the result, the appeal is allowed and the revision petition is dismissed. The appellants are acquitted of the offences under Sections 143, 147, 148, 341, 427 and 452 r/w 149 IPC. The bail bond executed by the appellants/accused shall stand cancelled and they are set at liberty forthwith.